Cemex, S.A. v. United States

133 F.3d 897, 1998 WL 3626
CourtCourt of Appeals for the Federal Circuit
DecidedJanuary 8, 1998
DocketNo. 97-1151
StatusPublished
Cited by74 cases

This text of 133 F.3d 897 (Cemex, S.A. v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cemex, S.A. v. United States, 133 F.3d 897, 1998 WL 3626 (Fed. Cir. 1998).

Opinion

CLEVENGER, Circuit Judge.

This is an appeal from a United States Court of International Trade (“CIT”) decision sustaining, after two remands, the results of a final administrative review of an antidumping duty order issued by the U.S. Department of Commerce (“Commerce”) against CEMEX. CEMEX argues that Commerce misinterpreted several sections of the antidumping laws and, consequently, erred in computing the dumping margin. In addition, CEMEX contends that, in remanding to Commerce for the correction of an error in the computer program that calculated the dumping margin, the CIT abused its discretion. On the contrary, Commerce’s legal conclusions were correct, and its factual determinations were supported by substantial evidence. Furthermore, the CIT acted within its discretion in granting the remand to correct the computer program error. We therefore affirm.

I

Pursuant to the antidumping laws, Commerce must impose duties on imported prod[899]*899ucts sold, or likely to be sold, in the United States at less than their fair value if such sales harm, or pose the potential to harm, domestic industry. See 19 U.S.C. § 1673 (1988)1; Zenith Electronics Corp. v. United States, 77 F.3d 426, 428 (Fed.Cir.1996). The amount of such duties, known as the dumping margin, is equal to the “amount by which the foreign market value exceeds the United States price for the merchandise.” 19 U.S.C. § 1673. Commerce may calculate the United States price and the foreign market value on several alternative bases. See Zenith Elecs., 77 F.3d at 428. The United States price is calculated as the more appropriate of either the United States “purchase price” or the “exporter’s sales price.” 19 U.S.C. § 1677a(a). Foreign market value is based on the prices of home market sales that are made in the ordinary course of trade, third country sales, or constructed value as appropriate, see 19 U.S.C. § 1677b, although home market sales are preferred, see Smith-Corona Group v. United States, 713 F.2d 1568, 1572-73, 1 Fed. Cir. (T) 130, 133-34 (1983). To ensure that dumping duties are calculated fairly, foreign market value and United States price are subject to various adjustments to achieve a common basis for comparing prices. See, e.g., 19 U.S.C. § 1677b(a)(4); NSK Ltd. v. United States, 115 F.3d 965, 969 (Fed.Cir.1997). Commerce compares these two adjusted values and imposes an anti-dumping duty in the amount by which foreign market value exceeds the United States price. See 19 U.S.C. § 1673.

CEMEX is a Mexican manufacturer and exporter of gray Portland cement, the primary binding agent of concrete. Among other products, CEMEX manufactures Type I cement, Type II cement, and Type V cement. It sells Types II and V cements in the United States and Types I, II, and V cements in Mexico. On August 30, 1990, Commerce issued an antidumping duty order against CEMEX, Gray Portland Cement and Clinker from Mexico, 55 Fed.Reg. 35,443 (1990), be-

cause it determined that CEMEX was selling gray portland cement (Types II and V cements) in the United States at less than fair value. See id. .Commerce issued the final results of the review of this order on September 8,1993. See Gray Portland Cement and Clinker from Mexico, 58 Fed.Reg. 47,253 (1993). In this review, Commerce based foreign market value on the constructed value of Types II and V cements, because it found that sales of these products in Mexico, the home market, were outside the ordinary course of trade. See id. at 47,255. CEMEX and the Ad Hoc Committee of AZ-NM-TX-FL Producers of Gray Portland Cement and National Cement Company of California (“Ad Hoe Committee”) challenged the final results of the administrative review.

Although the CIT affirmed Commerce’s determination that the home market sales of Types II and Y cements were outside the ordinary course of trade, it remanded to Commerce and ordered it to request and consider data to determine whether home market sales of Type I cement were suitable for comparison to U.S. sales .of Types II and

V cements in order to compute foreign market value. See CEMEX S.A. v. United States, No. 95-72, 1995 WL 251561, slip op. at 31 (Ct. Int’l Trade Apr. 24,1995).

Commerce collected this data and determined that Type I cement was sufficiently similar to Types II and V cements to allow ■ for a comparison between U.S. sales of Types II and V cements and Mexican sales of Type I cement. Therefore, to arrive at the dumping margin, Commerce based foreign market value on this price-to-price comparison rather than the constructed value of Types II and

V cements. In addition,. citing CEMEX’s unwillingness or inability to comply fully with its requests for information, Commerce, in computing the difference in merchandise adjustment for foreign market value, utilized a twenty percent upward adjustment as best information available. See 19 U.S.C. § 1677e(c). This adjustment increased for-

§ 291(c)(2)(b); Zenith Electronics Corp. v. United States, 77 F.3d 426, 428 n. 1 (Fed.Cir.1996). Because the review in this case was initiated prior to January 1, 1995, all citations herein refer to the pre-URAA code.

[900]*900eign market value significantly, which in turn increased the dumping margin. See 19 U.S.C. §§ 1677b(a)(4)(c), 1673.

On appeal, the CIT affirmed Commerce’s decision but remanded again for the correction of an error in the computer program that was used to calculate the dumping margin. See CEMEX S.A. v. United States, No. 96-132, 1996 WL 467731, slip op. at 9, 22-24 (Ct. Int’l Trade Aug. 13, 1996). On remand, Commerce corrected the error, and the CIT sustained the results, CEMEX S.A. v. United States, No. 96-170, 1996 WL 625055, slip op. at 1 (Ct. Int’l Trade Oct. 24, 1996).

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133 F.3d 897, 1998 WL 3626, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cemex-sa-v-united-states-cafc-1998.