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).
John M. Peterson, Chairman.
William P. Alford.
Víctor Blanco Fornieles.
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.)
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.
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
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
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.
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.
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.
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
* * * *
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
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
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
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
(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
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
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
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,
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
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
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
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;
North American Free Trade Agreement, Article 1911: Definitions.
(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];
(4) all notices published in the [Federal Register] in connection with
the administrative proceeding.
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
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.
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.