|In the matter of:
GRAY PORTLAND CEMENT AND
CLINKER FROM MEXICO
||File no. USA-97-1904-02
For CEMEX, S.A. de C.V. : Irwin P. Altschuler, David R.
Amerine, Thomas P. Ondeck and Ronald M. Wisla.
For the United States Department of Commerce: Stephen
J. Powell, Bernice Brown and Thomas H. Fine.
For the Southern Tier Cement Committee: Joseph W. Dorn
and Michael P. Mabile.
TABLE OF CONTENTS
- PROCEDURAL HISTORY OF THE CASE
- PANEL JURISDICTION AND THE STANDARD OF REVIEW
- Exhaustion of administrative remedies
- Use of the 109.43 percent dumping margin as BIA
- Time period for administrative reviews
- Investigating Authority selection of a BIA Rate
SEPARATE OPINION OF PANELIST VICTOR CARLOS
BINATIONAL PANEL OPINION AND ORDER
This binational panel review concerns a challenge by CEMEX, S.A. de C.V.
("Cemex") to the "first tier" "best information available"
("BIA") dumping margin assigned by the U.S. Department of Commerce
("Investigating Authority" or "The Department") in its final
results of the Fourth Administrative Review of the United States antidumping order, Gray
Portland Cement and Clinker from Mexico (62 Fed. Reg. 17,581 (1997)). Cemex contests
the Investigating Authoritys decision to use as BIA the 109.43 percent rate
determined for Cemex and affirmed by the Court of International Trade in an earlier review
on the ground that the 109.43 percent rate was determined well after the expiration
of the 12 month period for conducting administrative reviews. The Investigating Authority,
and Petitioner Southern Tier Cement Committee ("STCC"), defend the application
of the 109.43 percent rate, and argue that Cemex is barred from raising this claim before
this Panel for failure to exhaust administrative remedies. We affirm the Department
of Commerce determination.
I. Procedural History of the case
This Panel opinion is
being issued nearly 18 months after Cemex properly requested panel review on May 8, 1997 1, rather than within the 315 days specified in NAFTA, 2 owing to factors beyond the control of either the
participants or the panelists. While the Cemex complaint and
various motions, discussed below, were timely filed from May through August 1997, the
panel review was suspended on September 3, 1997, by the United States NAFTA Secretary
because a panel had not been appointed. 3 The panel review was resumed on March 17, 1998, after the selection
of panelists, 4 and has proceeded in a normal fashion
since that date.
The Cemex complaint, filed June 6, 1997, contained two claims. Claim One
charged that the Investigating Authority lacked statutory authority to impose antidumping
duties because of its alleged failure to ascertain industry support for the petition
during the initial investigation. Claim Two challenged the 109.43 percent BIA rate.
When the proceeding resumed on March 17, 1998,
two motions were pending, which were decided by the Panel on April 20, 1998. 5 The Panel
denied as moot a consent motion of the Investigating Authority of July 3, 1997, for an
extension of time to file the administrative record, 6
since the record was actually filed on July 23, 1997. 7 The Panel also denied a motion filed on July
8, 1997, by the Petitioners 8 and supported by the
Investigating Authority 9 to dismiss Claim One. The Panel declined to decide Claim One on motion rather than in the
normal course of the proceedings, citing possible due process concerns (if no public
hearing were held on the issue) and other procedural and cost concerns.10
A public hearing was held on August 6, 1998, in
Washington, D.C. to provide participants with an opportunity for oral argument. 11 At the public hearing, Cemex
formally abandoned Claim One if its complaint. 12
Simultaneous interpretation in English and Spanish was provided, and transcripts in both
languages were made available to the panelists and participants.
recitation of the facts in this case can be
brief, as they are not in dispute. On August 30, 1990, the Investigating Authority issued
an antidumping order relating to Gray Portland Cement and Clinker from Mexico. 13 This (fourth) administrative
review was initiated by the Investigating Authority on September 16, 1994, at the request
of both Cemex and STCC. 14 On
May 14, 1996, the Investigating Authority issued its preliminary results, assigning Cemex
a BIA rate of 61.85 percent, which at the time was the highest prior dumping margin rate
determined for any producer or importer in the original investigation or subsequent
reviews. 15 The Investigating
Authority indicated that it used this "first-tier" BIA rate because Cemex had
been uncooperative in providing certain requested information Mexican sales data on
Type I cement to the Investigating Authority on a timely basis. 16
Subsequent to the preliminary results, but
before the final results were issued, the Court of International Trade ("CIT"),
on October 24, 1996, affirmed the Investigating Authoritys second remand results of
the second administrative review, where the dumping rate assessed against Cemex was
determined to be 109.43 percent. 17 When,
on April 10, 1997, the Investigating Authority issued its final results in this fourth
administrative review, it used as first-tier BIA, not the 61.85 percent rate used in the
preliminary results, but the 109.43 percent rate approved by the CIT on October 24, 1996. 18 The Investigating Authority
again cited Cemexs failure to cooperate as the grounds for applying first-tier BIA,
and, in accordance with Department practice, applied "the highest rate found
for any firm in the second administrative review, i.e., CEMEXs margin, as amended
pursuant to court-ordered remand proceedings, 109.43 percent." 19
The Department addressed at length objections by Cemex to the
refusal of the Department to accept late filing of the requested information concerning
Mexican sales data on Type I cement, but the Department did not specifically address
reasons for changing the first-tier BIA rate from 61.85 percent used in the preliminary
results to the more recently affirmed 109.43 percent used in the final results. 20
Cemex complains that the final results under
review by this Panel were issued by the Investigating Authority only on April 10, 1997,
more than two and one half years after the review was initiated on September 16, 1994, and
utilized a rate approved by the CIT on October 24, 1996, more than one year after the
expiration of the 12 month period for conducting administrative reviews. 21
III. Binational Panel Jurisdiction
and the Standard of Review
Binational panel review of final antidumping determinations by the
investigating authorities of the NAFTA Parties is founded on Chapter 19 of the North
American Free Trade Agreement ("NAFTA"). Article 1904.1 of NAFTA provides that
"each Party shall replace judicial review of final antidumping and countervailing
duty determinations with binational panel review." The term
"final determinations" includes final results of administrative reviews by the
Investigating Authority. 22
The law that governs binational panel reviews is not international law,
but national law.
Under NAFTA, Article 1904.2, panels are to apply:
"[T]he relevant statutes, legislative history, regulations,
administrative practice, and judicial precedents to the extent that a court of the
importing Party would rely on such materials in reviewing a final determination of the
competent investigating authority."
This is significant. It means that panel reviews will be governed by
different legal principles depending on which NAFTA country is the "importing
party," which could lead to different results in different NAFTA Parties. Thus, in
the United States, a common law jurisdiction, panels must rely on court decisions, in this
case the CIT and the Court of Appeals for the Federal Circuit ("CAFC") which are
the courts that panel review replaces. Binational panels sitting
in the United States are bound by decisions of the CAFC, 23
and will normally give great weight to precedents issued by the CIT, just as one CIT judge
respects the decisions of another CIT judge. In contrast, in
Mexico, a civil law country with a different legal tradition, decisions of the competent
local court, the Tribunal Fiscal de la Nacion (Federal Tax Court), might well be given far
less weight because in Mexico court decisions do not have the same precedential value as
do court decisions in the United States. 24
NAFTA Article 1904.3 directs panels to apply the "standard of
review . . . that a court of the importing Party otherwise would apply . . . ."
Further, Annex 1911 specifies that when the importing Party is the United States, panels
will apply the standard of review specified in section 516A(b)(1)(B) of the Tariff Act of
1930, as amended (19 U.S.C. § 1516a(b)(1)(B) (1995)). Section 516A(b)(1)(B) states, in
pertinent part, that "[t]he court shall hold unlawful any determination, finding or
conclusion found . . . to be unsupported by substantial evidence on the record, or
otherwise not in accordance with law."
Considering the NAFTA requirement that panels apply "judicial
precedents" in the same manner as the national courts of the importing country, NAFTA
panel review of United States agency actions is quite narrow. The Supreme Court has
adopted a two-stage approach to judicial review of an agencys interpretation of its
governing statutes. In the leading case, Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, a unanimous Supreme Court stated the basic principle as follows:
"When a court reviews an agencys construction of the statute
which it administers, it is confronted with two questions. First, always, is the question
whether Congress has directly spoken to the precise question at issue. If the intent of
Congress is clear, that is the end of the matter; for the court, as well as the agency,
must give effect to the unambiguously expressed intent of Congress. If, however, the court
determines Congress has not directly addressed the precise question at issue, the court
does not simply impose its own construction on the statute, as would be necessary in the
absence of an administrative interpretation. Rather, if the
statute is silent or ambiguous with respect to the specific issue, the question for the
court is whether the agencys answer is based on a permissible construction of the
With respect to the first stage, where Congress
has "unambiguously expressed" its intent, the Court stated that "[t]he
judiciary is the final authority on issues of statutory construction and must reject
administrative constructions which are contrary to clear congressional intent." 26 As to the second stage, where a
court determines that "Congress has not directly addressed the precise question at
issue," the Court stated that the courts "need not conclude that the agency
construction was the only one it permissibly could have adopted to uphold the
construction." 27 In such a case, the law does not
permit the reviewing court to substitute its own views on the proper construction of a
statute for those of the Investigating Authority.
The Chevron standard of review must be applied even if judges
or panelists might have favored a different, perhaps fairer or more reasonable,
interpretation of the statute. Where Congress has not addressed
the question, the standard of review requires judicial deference to "reasonable
interpretations by an agency of a statute that it interprets." 28
In such a case, it is sufficient that the interpretation of the
statute by the agency is "plausible, if not preferable" in the eyes of the
reviewing court. 29 When the statute is silent or
ambiguous, a court or a binational panel reviewing an agency interpretation must give
great deference to the agencys views. The Chevron Court
stated that a court "may not substitute its own construction of a statutory provision
for a reasonable interpretation made by the administrator of an agency." 30
"We have long recognized that considerable
weight should be accorded to an executive departments construction of a statutory
scheme it is entrusted to administer, and the principle of deference to administrative
interpretations has been consistently followed by this Court whenever decision as to the
meaning or reach of a statute has involved reconciling conflicting policies, and a full
understanding of the force of the statutory policy in the given situation has depended
upon more than ordinary knowledge respecting the matters subjected to agency
The importance of the standard of review is
underlined by the fact that one of the very limited grounds for appeal of a binational
panel decision through the "extraordinary challenge procedure," is that the
panel "manifestly exceeded its powers, authority or jurisdiction . . . for example, by
failing to apply the appropriate standard of review." 32
As one panel has aptly admonished, "[p]anels must
conscientiously apply the standard of review", "must follow and apply the law,
not create it" and "must understand their limited role and simply apply
established law." 33
The Complaint submitted by Cemex on June 6, 1997 raised two issues:
A. Claim One challenged the validity of the imposition of antidumping
duties on the ground that the Investigating Authority had not determined that the petition
in the original investigation had the requisite support of the regional cement industry,
in alleged violation of a 1992 GATT panel decision;
B. Claim Two contended that the Investigating
Authority had improperly used as BIA the margin ultimately applied by the Investigating
Authority to Cemex in the second remand of the second administrative review, 109.43
Cemex did not pursue
Claim One in its briefs, 35 and, as noted in Section I,
counsel for Cemex confirmed at the public hearing that Cemex did not intend to pursue
Claim One in this proceeding. 36 Thus, only one
substantive issue, Claim Two, remains. Both the Investigating
Authority and the STCC have argued in their briefs that this Panel should not decide Claim
Two because Cemex failed to raise that issue before the Investigating Authority during the
administrative review, and thus impermissibly failed to exhaust its administrative
We discuss the procedural issue exhaustion of administrative
remedies first, followed by consideration of the substantive issue whether the
Investigating Authority was justified in using the 109.43 percent BIA margin in the
circumstances herein. In each instance, the parties positions are briefly summarized
at the outset.
A. Exhaustion of Administrative
Both the Petitioner and the Investigating
Authority contended in their briefs and at oral argument that this Panel should not decide
Cemex BIA claim because Cemex had failed to exhaust its administrative remedies
before the Investigating Authority in the course of the administrative review. 38 In their view, Cemexs
failure to contest the application of the 109.43 percent BIA rate during the
administrative proceedings precludes Cemex from raising this issue before this Panel. 39
Cemex counters that exhaustion of administrative remedies was not
mandatory in this instance. The applicable statute indicates only
that "the Court of International Trade shall, where appropriate, require the
exhaustion of administrative remedies." 40 Thus, the court, or this Panel, has discretion according to the
circumstances to determine whether to require exhaustion, and should not do so where the
affected litigant has not had an adequate opportunity to raise the issue before the
administrative entity. 41 Since the Investigating
Authority used what Cemex considered the appropriate BIA rate in the preliminary results,
Cemex believes it had no need to comment at that time. The higher
109.43 percent margin became available owing to CIT approval in the second remand of the
second administrative review, on October 24, 1996, well after the close of the comment
Exhaustion of administrative remedies is
generally required before a litigant will be allowed to raise a claim or issue in judicial
review of agency action. 43 Nevertheless, in cases other
than those relating to import classification, Congress has left the matter to judicial
discretion. The applicable statute provides "the Court of
International Trade shall, where appropriate, require the exhaustion of
administrative remedies." 44 Thus, unless it
considers exhaustion "appropriate", the CIT will allow a party to raise an issue
not previously raised with the Investigating Authority. In
determining whether to require exhaustion of administrative remedies the CIT has stated
that "[t]he judicial determination of whether to require exhaustion of remedies in
non-classification actions is thus individual to the circumstances of each case, with each
exercise of judicial discretion in not requiring litigants to exhaust administrative
remedies characterized as 'an exception to the doctrine of exhaustion." 45 Consequently, the CIT and, by analogy, this Panel, should
analyze the applicability of the doctrine of exhaustion on a case-by- case basis.
Further, in applying the exception to the
doctrine of exhaustion set forth in 28 U.S.C. § 2637(d), courts have consistently stated
that "courts must resist inflexible applications of the doctrine . . . which
frustrate the ability to apply exceptions developed to cover 'exceptional cases or
particular circumstances . . . where injustice might otherwise result' if it were strictly
applied." 46 More to the point in the present
proceeding, the court in A.L. Tech Special Steel Corporation v. United States
[t]hat inherent in the application of the exhaustion doctrine . . . lies
a responsibility for the agency, necessarily vested with control over the administrative
proceedings, to allow a sufficient opportunity to raise issues. Thus
in determining whether questions are precluded from consideration on appeal, the [c]ourt
will assess the practical ability of a party to have its arguments considered by the
administrative body. 47
Following this reasoning, the CIT has held that
the doctrine of exhaustion should not apply where a party does not have an opportunity to
raise the issue before the administrative agency. 48 For
example, in American Permac, Inc. v. United States, a West German manufacturer of
dry cleaning machinery brought an action contesting the final results of a periodic review
of an anti-dumping finding, arguing that import entries covered by the review were barred
from consideration because of a four year statute of limitation on the liquidation of such
entries. The Investigating Authority argued that the plaintiff failed to raise the
limitation on liquidation issue at the administrative level and thus could not raise this
issue before the Court. The Court concluded that the four year limitation period had not
expired until long after the plaintiff's comment period in the administrative proceedings.
On this basis the Court concluded the plaintiff did not have an
opportunity to raise this issue during the comment period, and determined the exhaustion
doctrine was not applicable. 49
Additionally, in Carnival Cruise Lines, Inc. v. United States,
the ITC also refused to apply the doctrine of exhaustion in circumstances analogous to the
present case. In Carnival Cruise Lines the Court concluded that the U.S. Customs
Service had not decided the issue in question. Accordingly, there had been no decision
which the plaintiff could protest in the administrative proceeding. Thus,
the Court concluded that the plaintiff did not have an opportunity to present that issue
to the Customs Service. 50
Finally, in Geneva Steel v. United States, the CIT declined to
apply the exhaustion doctrine because the plaintiff was not made aware of an Investigating
Authority determination regarding a particular issue until after the administrative
agencys amended determination. On this basis the Court
allowed the plaintiff to present the issue to the court despite not having raised it
before the administrative agency. 51 Thus, courts have
consistently held that the doctrine of exhaustion of administrative remedies is not
appropriate where the plaintiff does not have an opportunity to raise its argument to the
In addition to the lack of opportunity to raise a particular issue
before an administrative agency, courts have set forth other circumstances in which the
exhaustion doctrine should be inapplicable. Courts have held that
the exhaustion doctrine should not apply if raising the issue before the agency would be
futile. 52 The CIT has also
declined to apply the doctrine where the plaintiff raises a purely legal issue that does
not require further agency involvement. 53
The facts and circumstances of this case indicate that Cemex did not
have an appropriate opportunity to raise an objection to the Investigating Authority to
challenge the 109.43 percent margin as first-tier BIA. The 109.43 percent was affirmed by
the CIT on October 24, 1996, seven months after the issuance of the preliminary results in
the present proceeding, where the Department used a lower margin rate of 61.85 percent as
first-tier BIA. As noted earlier, the Investigating Authority did
not apply the 109.43 percent margin to Cemex's fourth administrative review until it
issued its final results on April 10, 1997, 54 well after
the termination of the regulatory comment period. The Investigating Authority could not
have made its decision to use the 109.43 percent dumping margin until sometime after
October 24, 1996. Both the October 1996 and the April 1997 dates
were well after the termination of the comment period, which ended June 20, 1996. 55 The use of the 109.43 percent margin was not disclosed to
Cemex until April 10, 1997. Accordingly, Cemex lacked the
practical ability at any time during the administrative proceeding to raise an objection
to the 109.43 percent margin. 56 This Panel believes that
it would be inappropriate to require Cemex to anticipate the possibility that the
109.43 percent margin would be applied in final results, which were not published until
nearly ten months after the close of the comment period.
Based on these facts and the Panel's discretion to apply the exhaustion
doctrine on a case-by- case basis, this Panel concludes that it would be inappropriate to
preclude Cemex from contesting the 109.43 percent margin for failure to exhaust
B. Use of the 109.43 Percent Dumping
Margin as BIA
The Panel notes initially that the remaining substantive issue in the
proceeding raised by Cemex is a narrow one. Cemex challenges only the use of the
109.43 percent margin as first-tier BIA in place of the 61.85 percent margin used in the
preliminary results. At the time of the preliminary results (May
14, 1996) and at the time the 12 month period for administrative reviews expired (August
31, 1995), 61.85 percent was the highest available margin for use as BIA under
Investigating Authority policy.57 Cemex does not
challenge the Investigating Authoritys use of "best information available"
to determine Cemexs dumping margins for this review, conceding that it had failed to
provide certain information requested by the Investigating Authority. Nor
does Cemex challenge the Investigating Authoritys use of
adverse "first-tier" BIA margin for Cemex, 58
since that usage was consistent with then applicable law as interpreted by the
Investigating Authority, 59 and approved by the Court
Appeals for the Federal Circuit. 60 The Investigating
Authority explained its BIA policy as follows:
"Generally, the Department will assign BIA
based on the following two-tier methodology: (1) When a company refuses to cooperate with
the Department or otherwise significantly impedes the proceedings, we use as BIA the
higher of (a) the highest of the rates found for any firm for the same class or kind of
merchandise in the same country of origin in the LTFV [original] investigation or prior
administrative review, or (b) the highest rate found in this review for any firm for the
same class or kind of merchandise in the same country of origin, and (2) when a company
substantially cooperates with our requests for information, but fails to provide the
information requested in a timely manner or in the form required, we use as BIA the higher
of (a) the highest rate (including the all others rate) ever applicable to the
firm for the same class or kind of merchandise from either the LTFV investigation or a
prior administrative review, or (b) the highest calculated rate in this review for any
firm for the class or kind of merchandise from the same country of origin." 61
Essentially, Cemex argues that where the
Investigating Authority fails to complete an administrative review within in the 12-month
period, it may not take advantage of that delay by using a more adverse, unduly punitive
BIA that became available after the 12-month period, but before the final
results in the current administrative review are issued. 62
In other words, Cemex contends that,
because the review was initiated on September 16, 1994, and should have been completed by
August 31,1995, 63 the Investigating Authority was
limited to using the highest prior rate available as of August 31, 1995 the end
of the 12-month period for completion of administrative reviews or 61.85
percent. 64 Thus, Cemex contends
that as of the date the final results were issued (April 10, 1997), the Investigating
Authority was barred from using what then was the highest prior rate, the 109.43 percent
rate resulting from the affirmance by the CIT October 24, 1996 65
of the recalculated Cemex dumping margin in the second remand in the second administrative
The Investigating Authority and STCC contend that the Investigating
Authority has broad discretion in determining what BIA rate to use for a particular
administrative review and is not restricted by whether the highest prior rate for any firm
is finally determined within the 12-month period, or subsequently, prior to the
Investigating Authoritys completion of the administrative review. The Investigating Authority and STCC rely on various court decisions
holding that the 12-month period is directory, not mandatory, and that no legal
penalty such as restricting the Investigating Authoritys use of a higher prior
dumping margin as BIA may be imposed on the Investigating Authority for failure to
meet the deadline. 66
Continue to: 2. Time Period of Administrative Reviews
1 NAFTA Panel Docket No. 1.
2 NAFTA, Art. 1904.14.
3 Docket no. 46.
4 Docket no. 63.
Docket no. 80.
6 Docket no. 18.
7 Docket no. 38.
8 Docket no. 23.
9 Docket no. 32.
10 Order of April 20,
1998, at 2, Docket no. 80.
11 See NAFTA
Panel Rule 67.
Transcript of Public Hearing, Docket no. 105 (English); Docket no. 106 (Spanish) [hereinafter
"OT"] at 7-8. (Citations in the English language opinion are to the English
version of the official transcript, Docket no. 105).
13 55 Fed. Reg.
14 59 Fed. Reg. 47609
15 61 Fed. Reg.
24,283, 24,285 (1996).
16 Id. at
17 Cemex, S.A. v.
United States, Slip-Op. 96-170 (CIT 1996).
18 62 Fed. Reg.
20 Id. at
21 Cemex brief of
April 24, 1998, Docket no. 5, at 5.
22 For the United
States, NAFTA Annex 1911 defines "final determination" inter alia, as
including the final results of administrative reviews by the Department of Commerce under
section 751(a) of the Tariff Act of 1930, as amended (19 U.S.C. § 1675(a) (1994)).
23 The Court of
Appeals for the Federal Circuit exercises exclusive appellate jurisdiction over decisions
by the Court of International Trade. 28 U.S.C. § 1295(a)(5) (1998).
24 As two expert
commentators have noted, "The judicial precedents are part of the
anti-dumping provisions only to the extent that a court of the importing party would
rely on such materials in reviewing the final determination . . . . Neither the
Fiscal Tribunal [of Mexico] nor the federal tribunals would ever use the decisions of
other courts as a source of domestic law." J.C. Thomas & Sergio Lopez Allon,
"NAFTA Dispute Settlement and Mexico: Interesting Treaties and Reconciling Common and
Civil Law Systems in a Free Trade Area," 1995 Canadian Yearbook of International Law
U.S.A., Inc. v. Natural Resources Defense Council, 476 U.S. 837, 842-43 (1984).
26 Id. at
843, n. 9.
27 Id. at
28 National R.R.
Passenger Corp. v. Boston & Maine Corp., 503 U.S. 407, 417 (1992).
29 Id. at
30 Chevron, 467 U.S.
at 844 (citations omitted).
31 Id; See also
Daewoo Elec. Co. v. International Union of Electronic, Elec. Technical, Salaried and Mach.
Workers, 6 F.3d 1511, 1516 (Fed. Cir. 1993), cert. denied, 512 U.S. 1204
32 NAFTA, Article
1904.13(a)(iii) (emphasis added).
Cut-To-Length Carbon Steel Plate From Canada, USA-93-1904-04 (Oct. 31, 1994).
34 Cemex Complaint at
3, Docket no. 7.
35 Cemex brief of
April 24, 1998, Docket no. 82; Cemex reply brief of July 8, 1998, Docket no. 98.
36 OT at 7-8. The
issue raised in Claim One was decided against Cemex in Gray Portland Cement and
Clinker from Mexico, USA-95-1904-02 (Sept. 13, 1996), at 11.
Authority brief at 20-21; STCC brief at 27-34.
Authority brief at 20-21; STCC brief at 27-34.
39 According to
STCCs exhibit at the public hearing, Cemex failed to argue in its post preliminary
results brief or at the Commerce hearing that a higher BIA should be barred for the legal
reason cited to this panel, and again failed to raise that legal issue when STCC argued in
a submission of August 26, 1996, that any available higher rate should be used. STCC
exhibit no. 1; see OT at 87-89.
40 28 U.S.C. §
41 Cemex reply brief at
2-3; Docket no. 98.
43 United States
v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 36-37 (1952); Philipp Bros., Inc.
v. United States, 630 F.Supp. 1317, 1319 (Ct. Intl Trade 1986), Rhone
Poulenc S.A. v. United States, 583 F.Supp. 607, 609 (Ct. Intl Trade 1984);
44 28 U.S.C. §
2637(d) (1982) (italics added); Alhambra Foundry Co., Ltd. v. United States, 685
F.Supp. 1252, 1255-57 (Ct. Intl Trade 1988)
685 F.Supp. at 1255 (citations omitted).
46 A.L. Tech
Specialty Steel Corporation v. United States, 661 F.Supp. 1206, 1210 (Ct. Intl
Trade 1987), quoting Rhone Poulenc, 583 F.Supp. at 609.
47 661 F.Supp. at
1210 (citations omitted).
48 Geneva Steel
v. United States, 914 F.Supp. 563, 606 (Ct. Intl Trade 1996); Carnival
Cruise Lines, Inc. v. United States, 866 F.Supp. 1437, 1441 (Ct. Intl Trade
1994); Philipp Bros., 630 F.Supp. at 1321; American Permac, Inc. v. United
States, 642 F.Supp. 1187, 1188 (Ct. Intl Trade 1986)
49 42 F.Supp. at
50 866 F.Supp. at
51 914 F.Supp. at
52 Rhone Poulenc,
583 F.Supp. at 610; Alhambra, 685 F. Supp. at 1256.
53 Id. at
611-12; Saarstahl v. United States, 949 F.Supp. 863, 868-9 (Ct. Intl Trade
54 62 Fed. Reg.
55 In the
Administrative Record provided to this Panel by the Investigating Authority, the only
substantive document listed after the filing of the rebuttal briefs on June 20, 1996, was
a filing by STCC bringing two recent CIT decisions to the Investigating Authoritys
attention, on August 26, 1996, which document was accepted by the Investigating Authority
for filing. (A.R. Investigating Authority. No. 86.) The preliminary results specified that
briefs commenting on the preliminary results be filed within 30 days of the publication of
the preliminary results were published on May 14, 1996, and rebuttal briefs, within 37
days. 61 Fed. Reg. 24,283, 24,285 (1996). The thirty-seventh day was June 20, 1996.
56 Cemex could
perhaps have responded to the STCC filing of August 26, 1996, which advocated a first-tier
BIA rate of 82.86 percent, but Cemex had no obligation to do so. Cemexs failure to
respond to STCCs August 26, 1996 submission has no bearing on its asserted failure
to exhaust administrative remedies with the respect to the application of the 109.43
57 The Investigating
Authoritys policy is set out in the Final Results of the Fourth Administrative
Review. See infra, note 61 and accompanying text.
58 Cemex brief, at 8;
Docket no. 82.
59 Under 19 U.S.C. §
1677e(c) (1994), the Investigating Authority is authorized to use BIA whenever "an
interested party or any other person withholds information . . . fails to provide such
information by the deadline . . . or in the form and manner requested . . . [or]
significantly impedes" the proceeding. The then applicable Department of Commerce
regulations, 19 C.F.R. § 353.37, also provide for use of BIA in such circumstances.
Aerospace Co. v. United States, 996 F.2d 1185, 1192 (Fed. Cir. 1993).
61 62 Fed. Reg.
17,585. In the present proceeding, the Investigating Authority used the
"first-tier" [(1), above] BIA rate methodology.
62 Cemex brief, at 8.
63 One year from the
last day of the anniversary month of the original antidumping order; see 19 U.S.C. §
1675(a)(1), Antidumping Duty Order: Gray Portland Cement and Clinker from Mexico,
55 Fed. Reg. 35,443 (Aug. 30, 1990). Relevant dates in the 4th Administrative Review are
|September 16, 1994
||Initiation of the 4th Administrative
|August 31, 1995
||12-month period for completion of administrative
|May 14, 1996
||Preliminary Results issued
|June 20, 1996
||Close of comment period
|April 10, 1997
||Final Results issued
61.85 percent rate used in the preliminary results in this proceeding was at that time the
highest rate that had been assigned to any firm. Preliminary Results of Antidumping
Duty Administrative Review; Gray Portland Cement and Clinker from Mexico, 61 Fed.
Reg. 24,283, 24,285 (1996).
65 See Gray Portland
Cement and Clinker from Mexico; Final Results of Antidumping Duty Administrative Review,
62 Fed. Reg. 17,581, 17,586 (1997); Cemex Exh. 1 (time line).
Authority brief at 30-31; Docket no. 94; STCC brief at 36 et seq.; Docket no. 96.