OAS
BINATIONAL PANEL REVIEW PURSUANT TO THE NORTH AMERICAN FREE TRADE AGREEMENT
Article 1904


Secretariat File No.
USA-95-1904-02


IN THE MATTER OF:

Gray Portland Cement and Clinker from Mexico; Final Results of the Third Antidumping Administrative Review (August 1, 1992-July 31, 1993).

PANEL:

    John M. Peterson, Chairman.

    William P. Alford.

    Víctor Blanco Fornieles.

    Eduardo Magallón.

    Morton Pomeranz.

COUNSEL:

For CEMEX, S.A. de C.V. ("CEMEX"): Manatt, Phelps & Phillips (Irwin P. Altschuler, Esq., David R. Amerine, Esq., Ronald M. Wisla, Esq., and Claudia G. Salzberg, Esq.)

For the Ad Hoc Committee of AZ-NM-TX-FL Producers of Gray Portland Cement and the National Cement Company of California: King & Spalding (Joseph W. Dorn, Esq., Michael P. Mabile, Esq., Stephen A. Jones, Esq.)

For the Investigating Authority: U.S. Department of Commerce, Office of the Chief Counsel for Import Administration (Stephen J. Powell, Esq. and Duane W. Layton, Esq.)

For Intervenor Cementos de Chihuahua, S.A. de C.V.: White & Case (Walter J. Spak, Esq. and Christopher M. Curran, Esq.)

For Amicus Curiae the Government of Mexico: Keller and Heckman (Stephan E. Becker, Esq. and Elliot Belilos, Esq.)


I. INTRODUCTION

Pursuant to Article 1904 of the North American Free Trade Agreement (the "Agreement"), this binational panel was convened at the request of the parties to review the final determination of the United States Commerce Department ("DOC", "Commerce", "agency" or "Department"), International Trade Administration ("ITA") in its third annual administrative review of an antidumping duty order on gray portland cement and cement clinker from Mexico. Final 1 Results of Third Review, 60 Fed. Reg. 26,865 (May 19, 1995) (Final) ("third administrative review"). The parties include CEMEX, S.A. de C.V. ("CEMEX"), the DOC, and the Ad Hoc Committee of AZ-NM-TX-FL Producers of Gray Portland Cement and the National Cement Company of California (the "Ad Hoc Committee"). Leave to intervene in this matter was previously granted to Cementos 2 de Chihuahua, S.A. de C.V. ("CdC"), a Mexican manufacturer of cement. The Government of 3 Mexico has sought leave of this panel to file a brief in the capacity of amicus curiae. The Government of Mexicoís motion is discussed at the end of this opinion with other outstanding motions. In conformity with Article 1904.8 of the Agreement, and Part VII of the Rules of Procedure for Article 1904 Binational Panel Reviews, this panel hereby renders its written decision.

II. BACKGROUND

On September 26, 1989, a petition was filed with the DOC by the Ad Hoc Committee of AZ-NM-TX-FL Producers of Gray Portland Cement , requesting that the DOC initiate an 4 antidumping duty investigation on gray portland cement and cement clinker from Mexico. The petitioner claimed to have filed the petition "on behalf of" a regional industry in accordance with 19 U.S.C. § 1673a(b) . 5

In response to the petition, on October 23, 1989, the DOC initiated an antidumping investigation. 54 Fed. Reg. 43,190 (Oct. 23, 1989). Thereafter, as required by statute, the U.S. International Trade Commission ("ITC") initiated an investigation to determine if a U.S. industry had been injured or was likely to be injured as a result of less than fair value imports of gray portland cement and cement clinker.6

As provided by law, interested parties were given time to file comments in response to the antidumping petition. No comments were filed opposing the petition. On November 8, 1989, the ITC made its preliminary affirmative determination of injury. Gray Portland Cement and Cement Clinker from Mexico, Inv. No. 731-TA-451 (Preliminary). Thereafter, on April 12, 1990, the DOC issued its preliminary results finding that the portland gray cement and cement clinker from Mexico was being sold in the United States at less than fair value ("LTFV"). 55 Fed. Reg. 13,817; see 19 U.S.C. § 1673b(b).

On July 18, 1990, in accordance with 19 U.S.C. § 1673d(a), Commerce issued its final LTFV determination. 55 Fed. Reg. 29,244 (July 18, 1990). On August 13, 1990, the ITC issued its final affirmative injury determination. Gray Portland Cement and Clinker From Mexico, Inv. No. 731-TA-451 (Final), USITC Pub. 2305 (Aug. 13, 1990); see 19 U.S.C. §1673d(b). Thereafter, on August 30, 1990, the DOC imposed an antidumping duty order. Gray Portland Cement and Clinker from Mexico, 55 Fed. Reg. 35,433 (Aug. 30, 1990); see 19 U.S.C. § 1673e(a).

As a result of the antidumping duty order, Commerce directed the U.S. Customs Service to assess antidumping duties on certain imports of gray portland cement and cement clinker from Mexico. 19 U.S.C. § 1673e. The statute allows parties to seek judicial review of Commerceís decision to initiate the dumping investigation in the United States Court of International Trade ("CIT") [28 U.S.C. § 1581©], but no party exercised this right.

On October 24, 1990, the Government of Mexico requested consultations with the United States under Article 15:2 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade (known as the GATT Antidumping Code, hereinafter "GATT-AD Code") to address Mexicoís concern that the DOC in 1989 had improperly initiated the antidumping 7 investigation on gray portland cement and cement clinker by failing to determine, affirmatively and prior to initiation of the investigation, that the petition was filed by a party with proper standing.

According to Mexico, the Ad Hoc Committeeís petition was not filed on "behalf of the industry affected" within the meaning of Articles 4:1(ii) and 5:1 of the GATT AD-Code. Thereafter, a GATT panel was established under Article 15:5 of the GATT to examine the matter.

On July 9, 1992, the GATT panel issued a report supporting Mexicoís position on petitioner standing, finding that the term "industry" in the phrase "on behalf of the industry affected" in the case of a regional market means "the producers of . . . almost all of the production within such market". The Report of the Panel, under the Agreement on Implementation of Article VI, on United States Antidumping Duties on Gray Portland Cement and Cement Clinker from Mexico, GATT Doc. No. ADP/82 (unadopted) ("GATT panel report") at 76. However, the GATT panel report was never adopted by the GATT Antidumping Code Committee because the U.S. blocked its adoption in accordance with the GATT procedures in effect at that time.

During the GATT deliberations, the DOC conducted two administrative reviews of the dumping order, covering the periods August 1990 to July 1991 (56 Fed. Reg. 47,185), and August 1991 to July 1992 (57 Fed. Reg. 44,551). Commerceís results in the second annual review 8 were challenged by CEMEX in the CIT. However, at no time during the first two annual review 9 periods did any party question the legality of the original dumping investigation either at the administrative level or in court.

On September 30, 1993, the DOC initiated its third administrative review, covering the period August 1, 1992 through July 31, 1993. 58 Fed. Reg. 51,053 (Sept. 30, 1993). The third administrative review covered one manufacturer/exporter, CEMEX. Among other things, CEMEX challenged Commerceís decision to initiate the original 1989 antidumping investigation. CEMEX alleged, for the first time, that the intervening GATT panel report created an international obligation on the United States, and hence Commerce, to void the original antidumping order as violative of the United Statesí international obligations under the GATT AD-Code.

The final results of the third administrative review were issued by the DOC on May 19, 1995. 60 Fed. Reg. 26,865 (May 19, 1995). Therein, Commerce determined that CEMEX had failed during the third administrative review to provide the Department with information needed to complete the review. Accordingly, the DOC assigned CEMEX a dumping margin based upon the "best information available" ("BIA") in accordance with 19 U.S.C. § 1677e(b). Using its "BIA" 10 formula Commerce assigned a dumping margin equal to the highest rate found for any firm in the LTFV investigation, which in this case was CEMEXís margin of 61.85 percent. Commerce rejected CEMEXís request that the antidumping duty order be revoked on the ground of faulty initiation, per the GATT panel report.

III. SCOPE AND STANDARD OF REVIEW

In accordance with NAFTA Article 1904(1), this binational panel is empowered to conduct reviews, in place of judicial review, of final administrative antidumping determinations issued by the "administering authority", in this case the DOC. The determination in question is DOCís final determination in its third administrative review of the 1989 antidumping order. 60 Fed. Reg. 26,865 (May 19, 1995).

The scope of the panelís review is limited to the administrative record compiled by the DOC during its third administrative review. NAFTA Article 1904(2). Furthermore, the decisions 11 of this panel may only apply prospectively to final determinations which were made by Commerce after the date of entry into force of NAFTA, which was January 1, 1994. See NAFTA Article 1906(a).

The standard of review to be applied by this panel is defined in Annex 1911 of the Agreement. See NAFTA Article 1904.3. Annex 1911 requires that we apply the same United States statutory standard of review as would be applied by the CIT in reviewing a final determination of the DOC under section 516A(b)(I)(B) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(b)(1)(B).

Accordingly, in reviewing final determinations in antidumping investigations, this panel "shall hold unlawful any [antidumping] determination, finding, or conclusion found . . . to be unsupported by substantial evidence on the record, or otherwise not in accordance with law." The United States Court of Appeals for the Federal Circuit ("CAFC"), the decisions of which are binding on this panel, has defined "substantial evidence" as "such relevant evidence as a reasonable mind might accept to support a conclusion." Matsushita Elec. Indus. Co. v. United States, 750 F.2d 927, 933 (Fed. Cir. 1984) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).

In this case, the ultimate question is whether the DOCís findings, made in the third administrative review of the dumping order, were based upon substantial evidence on the record and otherwise in accordance with law.

Although the scope of this panelís review is limited to the administrative record compiled in the third administrative review, and to Commerce decisions made after January 1, 1994, CEMEX, CdC, and the Government of Mexico argue that this panel should include in the record the 1992 GATT panel report, and that consideration of that report dictates revocation of the underlying antidumping duty order dated August 30, 1990.

IV. DISCUSSION

Before this panel, CEMEX and CdC assert that the 1989 decision of the DOC to initiate an antidumping investigation of gray portland cement and cement clinker from Mexico was not in accordance with law. Specifically, CEMEX asserts that because the petition filed by the Ad Hoc Committee seeking the initial investigation defined industry as a "regional industry", the DOC, as the investigating authority, was obliged to "poll" the domestic industry prior to initiation, and affirmatively determine that the petition was supported by producers accounting for "all or almost all" of the production in the region. Because, in CEMEXís view, the DOC failed to do this, and improperly presumed that the petition had the requisite level of support from the regional industry, the anitdumping duty order was void ab initio.

It is noteworthy that neither CEMEX nor any other participant in the original investigation appealed to the CIT after issuance of the antidumping order in this case, in order to challenge the DOCís initiation of the investigation. Rather, CEMEX and CdC waited until the DOC 12 conducted it third administrative review of the antidumping order, covering entries made during the period August 1, 1992 through July 31, 1993. 60 Fed. Reg. 26,865. At that time, CEMEX argued, for the first time, that the DOC should find that the agencyís initiation of the antidumping investigation was unlawful, and that the order was void ab initio. CEMEXís principal support for this argument was the July 9, 1992 determination by the GATT panel, which concluded that the DOCís failure to affirmatively ascertain the level of regional industry support before initiating the antidumping investigation was inconsistent with Article 5:1 of the GATT AD-Code, and which therefore recommended that the antidumping order be revoked and that all antidumping duties paid or deposited under the order be reimbursed.

In its brief before this panel, CEMEX frames the issue as follows:

Whether the DOC improperly initiated the antidumping investigation by failing to determine affirmatively, prior to initiation, whether the petition was filed on behalf of "all or almost all" of the regional cement industry consisting of the "Southern Tier" of the United States.

CEMEX Main Brief at 16 (Jan. 16, 1996) (emphasis added). In sum, although both CEMEX and CdC challenge DOCís final results in the third annual review, it is clear that the error of which they complain was the DOCís 1989 decision to initiate the underlying investigation.13

For the reasons set forth herein, the panel determines that (a) CEMEXís and CdCís claims relating to the initiation of the antidumping investigation are barred by the applicable statute of limitations; (b) those claims are also barred by the doctrine of res judicata; (c) the panel lacks authority under the Agreement to review or alter the DOCís 1989 decision to initiate the antidumping investigation, or the 1990 antidumping duty order into which DOCís 1989 decision is subsumed; (d) the unadopted GATT panel decision does not bind this binational panel or compel the result suggested by CEMEX, CdC, and the Government of Mexico; and (e) the DOC acted within its authority in choosing BIA, and the particular BIA methodology it used, in assigning a dumping margin to imports from CEMEX.

A. CEMEX AND CdCíS CLAIM THAT THE ANTIDUMPING INVESTIGATION WAS IMPROPERLY INITIATED IS BARRED BY THE STATUTE OF LIMITATIONS

Section 516a of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(2)(A) provides a short statute of limitations for interested parties to challenge final administrative determinations in antidumping investigations. It provides as follows:

(2) Review of determinations on record. (A) In general. Within thirty days after the date of publication in the Federal Register of -

(i) notice of any determination described in clause (ii), (iii), (iv) or (v) of subparagraph (B), or

(ii) an antidumping or countervailing duty order based upon any determination described in clause (i) of subparagraph (B), an interested party who is a party to the proceeding in connection with which the matter arises may commence an action in the United States Court of International Trade by filing a summons, and within thirty days thereafter, a complaint, each with the content and in the form, manner and style prescribed by the rules of that court, contesting any factual findings or legal conclusions upon which the determination is based.

Section 516(a)(2)(A) constitutes a waiver of the United Statesí sovereign immunity, and is strictly construed. Lehman v. Nakshian, 453 U.S. 156, 161 (1981); Soriano v. United States, 352 U.S. 270, 276 (1957). As the CAFC noted in NEC Corp. v. United States, 806 F.2d 247, 249 (Fed. Cir. 1986):

The United States is immune from suit except in accordance with the terms and conditions under which it consents to be sued. Under 19 U.S.C. Section 1516a, an interested party may commence an action contesting an antidumping determination by properly filing a summons and complaint within 30 days after a notice of the determination is published in the Federal Register.

* * * *

The terms of the governmentís consent to be sued in any particular court define that courtís jurisdiction to entertain the suit. United States v. Testan, 424 U.S. 392, 399 (1976), quoting United States v. Sherwood, 312 U.S. 584, 586 (1941). Conditions upon which the government consents to be sued must be strictly observed and are not subject to implied exceptions. 14

It is equally well-settled that challenges to the DOCís decision to initiate an antidumping investigation, including a challenge claiming that the requisite level of domestic industry support did not exist, must be brought within 30 days following the agencyís final determination, or within 30 days from publication of an antidumping duty order. See, e.g., Minebea Co., Ltd. v. United States, 782 F. Supp. 117 (Ct. Intíl Tr. 1992); NTN Bearing Corp. of America v. United States, 757 F. Supp. 1425 (Ct. Intíl Tr. 1991).

CEMEX or any other party with standing could have filed an action in the CIT within 30 days after either (1) the DOCís final affirmative determination of LTFV sales; or (2) the DOCís publication of the antidumping duty order in this case. In such an action CEMEX could have presented to that court any and all arguments concerning the definition of the "industry" in a regional industry case, and could have challenged the DOCís failure to poll the regional industry prior to initiation to determine whether the necessary level of domestic support existed. However, neither CEMEX nor any other party filed such an action, and the statute of limitations for doing so has long expired. Moreover, CEMEX has offered no explanation of why the arguments that it seeks to raise now (or those that the Government of Mexico presented to the GATT panel) could not have been presented to the United States courts in the context of a timely-filed challenge to the final result of the DOCís investigation, or to the publication of the antidumping order. As explained below, issues which the parties could have raised in a prior challenge, but failed to raise, are barred by the doctrine of res judicata.

Although CEMEXís and CdCís challenge is nominally directed to the final results of the DOCís third administrative review of the antidumping order, neither party has identified any specific error that the DOC committed in that review that is distinct from the original 1989 initiation decision. To the contrary, CEMEXís and CdCís basic claim is that the DOC should, in the context of the third administrative review, have found that the 1989 initiation was unlawful.

The scope of an annual antidumping administrative review, conducted pursuant to Section 751(a) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1675(a), is far more limited than that of the underlying antidumping investigation. As this panel has noted in a Preliminary Order issued in this proceeding:

antidumping investigations, and Section 751(a) annual reviews, are different types of proceedings having different goals. Antidumping investigations are designed to establish whether sales of a class or kind of foreign merchandise have been sold at "less than fair value", and have caused or threatened material injury to an industry in the United States.

* * * *

By contrast, Section 751(a) annual review proceedings accept as a given the existence of the antidumping or countervailing duty order, and instead seek to calculate the amount of special duty to be assessed on particular import shipments.

Gray Portland Cement and Cement Clinker from Mexico, Secretariat File No. USA-95-1904-02 (Order issued Jan. 18, 1996) at 12 n.5. Nothing in the Tariff Act suggests that, in the context of a Section 751(a) annual reviewóthe purpose of which is to calculate antidumping duty liabilities for goods imported during a defined periodóthe DOC may revisit or correct errors made during the original investigation. Indeed, Section 751(a) itself indicates that, in an annual review the DOC shall "review and determine . . . the amount of any antidumping duty" [19 U.S.C. § 1675(a)(1)(B)], and in particular, shall determineó

(A) the foreign market value and United States price of each entry of merchandise subject to the antidumping duty order and included within that determination, and

(B) the amount, if any, by which the foreign market value of each such entry exceeds the United States price of such entry. 19 U.S.C. § 1675(a)(2). The DOCís authority and responsibility in a Section 751(a) investigation is to calculate the amount of duties to be assessed pursuant to an antidumping duty order, not to reconsider and change decisions made during the original antidumping investigation.

In its final decision in the third administrative review, the DOC correctly held that it lacked authority to provide CEMEX the relief it soughtórescission of the agencyís 1989 decision to initiate an antidumping investigation. Accordingly, even assuming arguendo that CEMEX and 15 CdC had stated a claim for which the DOC could grant relief, it is clear that the requested relief could not be afforded in the context of the Section 751(a) annual review of the antidumping order.16

Indeed, in Oregon Steel Mills, Inc. v. United States, 862 F.2d 1541, 1543-44 (Fed. Cir. 1988), the CAFC held that the DOC could not, in a Section 751(a) annual review, revoke an antidumping duty order based upon a reconsideration of the underlying LTFV determination:

A straightforward reading of the above-quoted statutory provisions indicates that [19 U.S.C.] Section 1675(a) allows the [DOC] to adjust the amount of antidumping duties; section 1675(b) allows the [DOC] to review its affirmative determination; and section 1675© gives the [DOC] authority to review an outstanding antidumping order "after review under this section". Logically, revocation must be predicated upon section 1675(b) review, not merely on review under section 1675(a).

* * * *

. . . a section 1675(a) review is insufficient in itself to provide a ground for revocation of the antidumping duty order. Section 1675(b), by its terms, is the section providing for review of [DOC]ís section 1673a affirmative [LTFV] determination.

CEMEX and CdC assert that a challenge to the original investigative determination is not barred by the statute of limitations, but the cases upon which they rely are inapposite. Oregon Steel Mills, supra, involved a revocation of an antidumping duty order under Section 751(b) based upon changed facts, not a new legal interpretation of the facts as they existed during the original antidumping investigation. In Gilmore Steel Corp. v. United States, 585 F. Supp. 671 (Ct. Intíl Tr. 1984), the court ruled that DOC could rescind a decision to initiate an antidumping investigation, after expiration of the 20-day period provided in 19 U.S.C. § 1673a©, but during the original investigation. Gilmore Steel did not involve an attempt to overturn a final antidumping order in the 17 context of an annual review of the order under Section 751(a). Finally, in Zenith Electronics Corp. v. United States, 872 F. Supp. 992 (Ct. Intíl Tr. 1994), the court ruled that an interested party could challenge the DOCís determination that a domestic manufacturer had standing to request a Section 751(a) annual review of an antidumping order. However, this challenge was raised in connection with a court challenge to the initiation of an annual review of an earlier antidumping investigation.

CEMEX urges that this panel revisit the issue of whether the original investigation should have been initiated, based upon the "well-established" rule that "the courts may revisit a decision from below in situations where there have been judicial interpretations of existing law after decision below and pending appealóinterpretations which if applied might have materially altered the result." CEMEX Main Brief (Jan. 16, 1996) at 23 (citing Hormel v. Helvering, 312 U.S. 552, 558 (1941)). However, the cases upon which CEMEX relies do not stand for the proposition that a change in legal interpretation (in this case a non-binding one) authorizes a reviewing body to reopen prior agency decisions which are otherwise final. Rather, the cases cited 18 stand for the far narrower proposition that a party may raise on appeal a new issue, not argued before the lower court or agency, if applicable law has changed due to an intervening judicial decision.

In sum, the panel concludes that to the extent CEMEX and CdC seek to overturn the DOCís 1989 decision to initiate an antidumping investigation of Gray Portland Cement and Cement Clinker from Mexico, its action is barred by the applicable statute of limitations.

B. CEMEXís AND CdCís CLAIM THAT THE ANTIDUMPING INVESTIGATION WAS IMPROPERLY INITIATED IS BARRED BY THE DOCTRINE OF RES JUDICATA

CEMEXís and CdCís claim that the DOC improperly initiated the antidumping investigation is also barred by the doctrine of res judicata. "Res judicata prevents litigation of all grounds for, or defenses to, recovery that were previously available to the parties, regardless of whether they were asserted or determined in the prior proceeding." Finch v. Hughes Aircraft Co., 926 F.2d 1574, 1577 (Fed. Cir. 1991), quoting Brown v. Felson, 422 U.S. 127, 131 (1979).19

In this regard, the panel notes that neither CEMEX nor any other Mexican producer sought judicial review of the DOCís final LTFV determination rendered during the antidumping investigation. That decision has now become final. CEMEX offered no explanation for why it 20 failed to raise the standing issue in a challenge to the investigation decision. Presumably, CEMEX could have presented to the CIT substantially the same arguments regarding initiation which the Government of Mexico presented to the GATT panel shortly thereafter. For whatever reasons, however, CEMEX elected not to pursue this issue before the United States courts. "Res judicata precludes not only the relitigation of issues that were actually decided, but also issues which could have been presented for determination." Watkins v. M&M Tank Lines, Inc., 694 F.2d 309, 311 (4th Cir. 1982).

Clearly, the question of whether a petitioner has standing to seek initiation of an antidumping investigation is potentially an issue in every antidumping investigation. CEMEX has furnished the panel with no reasons why its failure to raise this issue before the CIT in a timely fashion should be excused. Because CEMEX could have raised the issue in a timely challenge to the original determination, but failed to do so, the panel concludes that its challenge to initiation is barred by res judicata.

C. THIS PANEL LACKS AUTHORITY TO REVIEW OR ALTER DOCíS FINAL LESS THAN FAIR VALUE DETERMINATION, OR TO AFFORD THE PARTIES RETROSPECTIVE RELIEF

Even if CEMEXís and CdCís claims were not barred by the statute of limitations or the doctrine of res judicata, this panel would be without power to provide the relief sought by those parties. Specifically, Article 1906(a) of the NAFTA provides:

Article 1906. Prospective Application

This Chapter shall apply only prospectively to:

(a) final determinations of a competent investigating authority made after the date of entry into force of this Agreement . . . .

This panel is without power to review final determinations of the DOC rendered prior to January 1, 1994, the date NAFTA entered into force. To the extent that CEMEX and CdC ask the panel to rule that the DOC erred by initiating the antidumping investigation in 1989 without polling the members of the domestic regional industry to determine their level of support for the investigation, or that the DOC erred by publishing an affirmative final LTFV determination in 1990, the panel is without power to furnish the relief sought.

Furthermore, this panel is limited by NAFTA Article 1906(a) to furnishing review on a prospective basis only. In this regard, we disagree with CEMEXís claim that the panel "has full authority to order the DOC to revoke the antidumping duty order ab initio" [CEMEX Main Brief at 23] or to "give retrospective effect to the GATT Panelís interpretation of the Antidumping Code and cause the antidumping duty order in this case to be revoked as of the date DOC issued the order" [Id. at 23-24]. Clearly, the panel has no authority to review or alter the DOCís original investigation decision, or to give retrospective" effect to the GATT panel report.

Continue on to Section D: Unadopted GATT Panel Decisions are not binding International Law


1 The third administrative review covers the period of August 1, 1992, through July 31, 1993.

2 Three Mexican cement companies were respondents in the original antidumping investigation:
CEMEX; Apasco, S.A. de C.V.; and Cementos Hidalgo, S.C.L. CEMEX was the only Mexican respondent that participated in the third annual review.

3 Gray Portland Cement and Cement Clinker from Mexico, USA-95-1904-02 (Issued January 18, 1996).

4 The Ad Hoc Committee of AZ-NM-TX-FL Producers of Gray Portland Cement represents producers of gray portland cement in the Arizona-New Mexico-Texas and Florida regions. The National Cement Company of California was not named as a petitioner.

5 Section 1673a(b) provides:

(b) Initiation by petition. (1) Petition requirement. An antidumping proceeding shall be commenced whenever an interested party described in subparagraph ©, (D), (E), (F), or (G) of section 771(9) [19 U.S.C. § 1677(9)©, (D), (E), (F), or (G)] files a petition with the administering authority [the DOC] on behalf of an industry which alleges the elements necessary for the imposition of the duty imposed by section 731 [19 U.S.C. § 1673], and which is accompanied by information reasonably available to the petitioner supporting those allegations. The petition may be amended at such time, and upon such conditions, as the administering authority and the [U.S. International Trade] Commission may permit. (2) Simultaneous filing with the Commission. The petitioner shall file a copy of the petition with the Commission on the same day as it is filed with the administering authority.

6 Under United States law, the imposition of antidumping duties is predicated upon two independent administrative findings made by Commerce and the ITC, respectively. Specifically, 19 U.S.C. § 1673 provides that antidumping duties may be imposed if

    (1) the administering authority [the DOC] determines that a class or kind of foreign merchandise is being, or likely to be sold in the United States at less than fair value, and

    (2) the [U.S. International Trade] Commission determines tható
     

      (A) an industry in the United Statesó
       
        (i) is materially injured, or

        (ii) is threatened with material injury, or

      (B) the establishment of an industry in the United States is materially retarded, by reason of imports of merchandise, or by reason of sales (or the likelihood of sales) of that merchandise for importation.
7 GATT-AD Code, Done at Geneva, April 12, 1979; entered into force January 1, 1980. 31 U.S.T. 4919; T.I.A.S. 9650; 1186 U.N.T.S. 2.

8 Each year, if requested by an interested party, Commerce is required to conduct annual reviews of dumping orders. 19 U.S.C. § 1675(a)(1)(B). The results of the first two annual reviews of the subject dumping order are not before this panel.

9 See CEMEX, S.A. v. United States and Ad Hoc Committee of AZ-NM-TX-FL Producers of Gray Portland Cement and Cement and National Cement Co., CIT Slip Op. 95-72 (April 24, 1995).

10 The issues concerning Commerceís use of BIA are discussed in a later section of this opinion.

11 The reviewable "administrative record" in this case means:

    (1) all documentary evidence or other information presented to or obtained by [Commerce] in the course of the administrative proceeding, including any governmental memoranda pertaining to the case, and including any record of ex parte meetings as may be required to be kept;

    (2) a copy of the final determination of [Commerce], including reasons for the determination;

    (3) all transcripts or records of conferences or hearings before [Commerce]; and

    (4) all notices published in the [Federal Register] in connection with the administrative proceeding.

North American Free Trade Agreement, Article 1911: Definitions.

12 Commerceís results in the second annual review were challenged by CEMEX in the CIT, as noted earlier in this opinion. We repeat, however, that at no time during the first two annual review periods did any party challenge the legality of the initiation of the original dumping investigation either at the administrative level or in court. Significantly, the GATT panel report was issued two months prior to the commencement of the second administrative review.

13 CdC frames the issue as "whether the [DOCís] determination in the underlying administrative review not to revoke the antidumping duty order was contrary to U.S. law in light of the fact that the antidumping duty petition was not filed on behalf of producers accounting for all or almost all of the production in the regional industry." CdC Main Brief at 7 (Jan. 16, 1996) (emphasis added).

14 Indeed, the CAFC has held that, even where an interested party timely files a summons challenging a final determination in an antidumping case, but fails thereafter to file a complaint within the time prescribed by statute, the action is time-barred. See Georgetown Steel Corp. v. United States, 801 F.2d 1308 (Fed. Cir. 1986).

15 The DOC noted that:

    [T]he Department has no authority to rescind its initiation of the LTFV investigation. Under Sections 514(b) and 516A(c)(1) of the [Tariff] Act, a LTFV determination regarding initiation becomes final and binding unless a court challenge to that determination is timely initiated under Section 516A. Even if judicial review of a determination is timely sought, the Departmentís determination continues to control until there is a resulting court decision "not in harmony with that decision." See 19 U.S.C. § 1516(a)(c)(1). In this case, no one challenged the Departmentís determination on standing before the CIT. Therefore, that determination is final and binding on all persons, including the Department. 60 Fed. Reg. at 26,866 (May 19, 1995).
16 The panel notes that Section 751(b) of the Tariff Act [19 U.S.C. § 1675b)] provides a separate mechanism whereby an interested party may ask the DOC or ITC to conduct a special review of an antidumping order based upon "changed circumstances sufficient to warrant review of such determination." In Oregon Steel Mills, Inc. v. United States, 862 F.2d 1541 (Fed. Cir. 1988), the CAFC held that the evaporation of domestic industry support for an antidumping order might constitute "changed circumstances" sufficient to warrant revocation of an existing antidumping duty order. However, the Oregon Steel Mills court took pains to refrain from holding that "loss of industry support for an existing order creates a jurisdictional defect" or otherwise precludes the DOC from enforcing the order. Id. at 1545 n.4.

17 The panel notes that a DOC decision not to initiate an antidumping investigation is considered a separate final determination, subject to judicial review under 19 U.S.C. § 1516a(1)(i).

18 Hormel, 312 U.S. at 558; Ceramica Regiomontana, S.A. v. United States, 16 CIT 358, 359 18 (1992); Timken Co. v. United States, 779 F. Supp. 1402 (Ct. Intíl Tr. 1991); Rhone-Poulenc, S.A. v. United States, 583 F. Supp. 607 (Ct. Intíl Tr. 1984).

19 NAFTA Article 1904(3) provides that "[t]he panel shall apply the standard of review set out in Annex 1911 and the general legal principles that a court of the importing Party would otherwise apply to review a determination of the competent legal authority." Res judicata is a legal principle which the courts of the United States may apply to review agency determinations.

20 The Ad Hoc Committee did seek judicial review of certain aspects of the DOCís final LTFV sales investigation. CEMEX participated as a defendant-intervenor in support of the DOC in that action, which was finally adjudicated by the CAFC. Ad Hoc Committee of AZ-NM-TX-FL Producers of Gray Portland Cement v. United States, 68 F.3d 487 (Fed. Cir. 1995). The legality of the DOCís decision to initiate the investigation was not raised in that action.

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