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).
(Continued)

D. UNADOPTED GATT PANEL DECISIONS ARE NOT BINDING INTERNATIONAL LAW

Even assuming, arguendo, that this panel has the authority to consider CEMEX’s arguments concerning the applicability of the 1992 GATT panel report to the third administrative review, we are unpersuaded that the GATT panel’s report should be afforded any probative weight. While we respect the GATT panel’s opinion on the standing issue, we are not bound by that opinion. While CEMEX, CdC, and the Government of Mexico acknowledge that the unadopted 1992 GATT panel recommendation is not "binding" on this binational panel, they suggest that this panel should nevertheless respect and apply the GATT panel recommendation, as "the best available interpretation of what GATT requires". See, e.g., CEMEX Reply Brief at 1 (Apr. 15, 1996). Those parties also argue that U.S. law must be interpreted to conform with U.S. "international obligations", and that Commerce’s failure to revoke the antidumping order is inconsistent with those obligations.

Our analysis of the law leads us to conclude that (1) no binding international obligation was created by the 1992 GATT panel report, and therefore Commerce’s actions cannot be deemed illegal on that ground; and (2) nothing in U.S. law, GATT law, or international law required Commerce retroactively (or prospectively) to revoke the original 1990 antidumping order irrespective of whether there are any conflicts between the petitioner standing criteria applied by Commerce and that recommended by the GATT panel report in 1992.

It is a general principle of U.S. constitutional law that international agreements to which the U.S. specifically agrees to be bound, including the GATT, constitute the "supreme law of the land." See Footwear Distributors and Retailers v. United States, 852 F. Supp. 1078, 1093 (Ct. Int’l Tr. 1994); Federal Mogul Corp. v. United States, 63 F.3d 1572, 1581 (Fed. Cir. 1995). For instance, Article VI(2) of the U.S. Constitution provides that all treaties made under the authority of the U.S. are the supreme law of the land, and hence supersede prior acts of Congress. See Chew Heong v. United States, 112 U.S. 536, 540 (1884).

Normally, in the case of non-self-executing treaties, such as the GATT, the U.S. agrees to be bound only when it enacts legislation implementing those treaties. See Restatement (Third) of the Foreign Relations Law of the United States § 111 (1987). We note, however, that there have been instances, as in The Paquete Habana and the Lola, 175 U.S. 667 (1900), where U.S. courts have adopted or "incorporated" customary international laws into domestic law even in the absence of implementing legislation. This has typically occurred, however, in cases where there is no particular treaty, legislation, or court decisions to the contrary.

A GATT panel report is neither an "international agreement" nor a "treaty" which Congress or the President has approved. Nor are we faced with a situation where there is no ²¹ domestic legislation or case law governing Commerce’s actions. Therefore, the only question presented here is whether, despite the general rules just mentioned, the unadopted 1992 GATT panel report should be considered to constitute a form of customary international law or other international obligation which Commerce was bound to apply. We approach this issue keeping in mind the CIT’s observation in Footwear Distributors, supra (citing The Paquete Habana and the Charming Betsy, infra) that, when faced with issues involving the application of U.S. law and U.S. compliance with international agreements such as the GATT, courts should make a "good faith" effort to construe the relevant law so as to give effect to both U.S. law and to such agreements. See Restatement (Third) of the Foreign Relations Law of the United States § 321 ("Every international agreement in force is binding upon the parties to it and must be performed by them in good faith.").

The principle that the law of nations forms part of a nation’s municipal laws, sometimes referred to as the doctrine of "incorporation", has its common law jurisprudential roots in the eighteenth century British case styled Triquet v. Bath, Great Britain, Court of King’s Bench, 1764. 3 Burrow 1478. Forty years after the Triquet case, in Murray v. The Schooner Charming Betsy, 6 U.S. 64, 2 Cranch 64 (1804), the U.S. Supreme Court confirmed and emphasized the importance of construing Congressional acts in conformity with international law and international agreements of the United States. This principle was reaffirmed by the Supreme Court at the start of this century in The Paquete Habana, 175 U.S. 667. Writing for the court, Justice Gray noted that

"International law is part of our law and must be ascertained and admitted by the courts of justice and appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination." 175 U.S. at 700 (emphasis added); see United States v. Smith, 19 U.S. (5 Wheat.) 152, 160-61 (1820) (courts must "ascertain" the law of nations); International Court of Justice: Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States), 25 I.L.M. 1023, 1028-29 (1986).

The highlighted portions of the quoted passage from The Paquete Habana establish certain criteria that courts should apply to determine what, if any, relevant international law or obligation exists and whether it should be applied in a given case. The judiciary’s role in "ascertaining and admitting" relevant international law was succinctly explained by the International Court of Justice in Nicaragua v. United States:

The Court . . . , as an international judicial organ, is deemed to take judicial notice of international law, and is therefore required . . . to consider on its own initiative all rules of international law which may be relevant to the settlement of the dispute. It being the duty of the Court itself to ascertain and apply the relevant law in the given circumstances of the case, the burden of establishing or proving rules of international cannot be imposed upon any of the parties, for the law lies within the judicial knowledge of the Court. 25 I.L.M. at 1028-29 (quoting the Fisheries Jurisdiction cases, I.C.J. Reports 1974, p.9, para. 17; p. 181, para. 18) ²²

The 1992 GATT panel report contains certain findings on a particular factual situation, and merely recommends, rather than mandates, that certain actions be taken. There is no "consistent practice of states" to be followed here. Additionally, since the adoption of the GATT panel report was blocked by the U.S. in accordance with GATT procedures, the U.S. cannot be said to have undertaken an international obligation or agreement.

Applying the above principles, the resolution of this issue is straightforward. For the following reasons, we conclude that the 1992 GATT panel report does not constitute relevant international law, and does not otherwise constitute an international obligation that the U.S. agreed to undertake.

First, the 1992 unadopted GATT panel report was a recommendation, hardly attaining the status of "international law" which has the "comment consent" of nations. The CIT ²³ in Footwear Distributors addressed the legal relevancy of a GATT panel report in some detail. It noted "that GATT contracting parties do not automatically accept [GATT] panel decisions as binding." In Footwear Distributors, Judge Aquilino observed that the legal status of GATT panel decisions has not been established within the international community. 852 F. Supp. at 1093 25 The court therefore concluded that the GATT panel decision did not create a ²⁴ legally binding international obligation on the U.S. The complaining party in Footwear Distributors, as here, was subject to the U.S. antidumping laws, and was ultimately required to demonstrate that the administering authority’s decision was not based upon substantial evidence, or was contrary to U.S. law.

Moreover, as pointed out by Commerce in its brief, the non-binding status of unadopted GATT panel reports may be inferred in the Tokyo Round agreements. Article 15.7 of the GATT-AD Code provides that disputes arising thereunder must be governed by the 1979 Understanding regarding Notification, Consultation, Dispute Settlement and Surveillance, and its annex, the "Agreed Description of the Customary Practice of the GATT in the Field of Dispute Settlement." GATT, Basic Instruments and Selected Documents 26^th Supp. 210, 215 (1980) ("Understanding"). Paragraph 21 of the Understanding provides that when disputes are referred to a GATT panel, a report must be issued and that report shall be adopted by consensus within a reasonable time. Paragraph 17 provides that the GATT panel’s report "should normally set out the rationale behind any findings and recommendations that it makes." However, nothing in the

Understanding leads us to believe that an unadopted panel report—that is, a report lacking consensus is to be construed as other than merely a recommendation.

Second, rather than having assented to the GATT panel report and its interpretation of the GATT-AD Code, the U.S. objected to that report, blocking its adoption as consensus of all contracting parties was required for adoption at that time. Nothing in the then operative GATT rules provide that antidumping disputes resolved by GATT panels, but not adopted by the GATT Antidumping Code Committee, were binding on the parties. This reflects the views of many in the international legal community, including tribunals in Europe, Japan, and the United States. See, e.g., Bello & Homer, GATT Dispute Settlement Agreement: Internationalization or Elimination of Section 301?, 26 Int’l Law. 795, 796 (1992); Jackson, Restructuring The GATT System 68 (1990); Young, Dispute Resolution in the Uruguay Round: Lawyers Triumph Over Diplomats, 29 Int’l Law. 389, 395 (1995); Davey, Dispute Settlement in GATT, 11 Fordham Int’l L. J. 51, 94 (1987); Jackson, Status of Treaties in Domestic Legal Systems: A Policy Analysis, 86 Am. J. Int’l L. 310, 33-34 (1992) (describing instances where the European Court of Justice and the Japanese Supreme Court have deemed GATT panel decisions non-binding).

The unadopted 1992 GATT panel report, therefore, constitutes neither the "law of nations" nor an obligation of the United States. Since there is no international law or international agreement to apply here, there is no occasion to invoke the principle of statutory construction found in The Charming Betsy.

Additionally, whatever non-binding relevancy the 1992 GATT Panel report might have is severely undercut, if not nullified, by the binding international agreement under which this NAFTA panel operates. As discussed above, Article 1906(a) states, in no uncertain terms, that this binational panel may only review final determinations of Commerce rendered after January 1, 1994.

Commerce’s initiation of the original antidumping investigation, which is challenged here, took place in 1989, and the dumping order was issued in 1990. Therefore, the GATT panel report lacks legal relevancy within the meaning of The Paquete Habana, since there is no "legitimate occasion" for its application. ²⁵

CEMEX argues that the rule of statutory construction in The Charming Betsy compels this panel to adopt of the reasoning of the GATT panel because it provides the only available neutral and authoritative guidance. CEMEX suggests that The Charming Betsy should be applied to resolve the interpretive "conflict" concerning the GATT-AD Code between Commerce and the GATT panel.

This position must be rejected. The Charming Betsy does not apply where there are no binding international obligations to observe.

CEMEX also argues that the reasoning of the GATT panel report should be adopted by this binational panel because it was the intent of Congress to conform U.S. antidumping law (found in the 1979 Trade Agreements Act) with the GATT-AD Code. Since all parties agree that the pertinent language of the U.S. antidumping law is identical to the GATT, CEMEX is in effect arguing that Commerce’s interpretation of U.S. antidumping law must give way to the GATT panel’s interpretation of that law. This issue was addressed by the CAFC in Suramerica De Aleaciones Laminadas v. United States, 966 F.2d 660 (Fed. Cir. 1992). In that case, the appellee argued that an unadopted GATT panel report had rejected the DOC’s interpretation of the statutory provisions on standing and industry support for a petition. The court opined that even if Commerce’s interpretation of U.S. law in that case were found to be in conflict with the GATT (which the court did not), "the GATT is not controlling." 966 F.2d at 667. The court concluded that the GATT, and by implication an unadopted GATT panel report, "does not trump domestic legislation . . . .", or Commerce’s interpretation of that legislation. Id. at 668. The court reasoned that it was the role of Congress, and not the court, to resolve such conflicts. Irrespective of the holding in Suramerica, neither the DOC nor this binational panel, in the context of an annual review under Section 751(a), are empowered to retroactively nullify the original antidumping order. This is true whether or not there is a conflict between the GATT-AD Code (as interpreted by the 1992 GATT panel) and the DOC’s interpretation of U.S. antidumping law. Also, to give effect to the unadopted GATT panel report would violate statutorily-imposed U.S. procedural laws concerning the statute of limitations, and would undermine established principles of res judicata. Both legal doctrines are of enormous importance in common law jurisprudence, and should not be cast aside in favor of a recommendation of questionable legal status.²⁶

In sum, we conclude that Commerce was acting upon substantial evidence in the record and in accordance with law when it refused to revoke its original antidumping order notwithstanding the 1992 GATT panel report.

E. COMMERCE’S APPLICATION OF BIA

The next set of issues we address concerns the Department’s application of the BIA standard to arrive at a dumping margin for Types II and V cement in the third annual administrative review. The threshold issue we must decide is whether the DOC acted within its authority when it chose to use BIA in assigning a dumping margin to imports from CEMEX. The second issue is whether, in its choice of BIA to apply to CEMEX, Commerce acted within its authority.

1. Commerce Properly Used BIA for CEMEX’s Imports

The antidumping statute of the United States provides that the DOC "shall [use BIA] whenever a party . . . refuses or is unable to produce information requested in a timely manner and in the form required." 19 U.S.C. § 1677e(b) (1992). This provision applies to requests for information made during administrative reviews pursuant to Section 751 of the antidumping statute, as well as during LTFV determinations. See Allied-Signal Aerospace Co. v. U.S. 996 F.2d 1185 (Fed. Cir. 1993).

In premising resort to BIA on the provision of requested information in a manner and time satisfactory to the Department, the statute vests Commerce with broad authority as to whether to use BIA in any particular case. While not binding upon this panel, we find the reasoning of a recent binational panel under the U.S.-Canada Free Trade Agreement (USCFTA) persuasive on this issue: the DOC’s discretion to resort to BIA stems not only from the variety of statutory grounds for the use of BIA—refusal to produce information, inability to produce information in the required form, significantly impeding an investigation—but also from the need for [Commerce] to control the fact-gathering process. The courts have viewed [Commerce]’s authority to resort to BIA as essential to the fulfillment of [Commerce]’s responsibility to determine in a timely manner an accurate dumping margin, both in antidumping investigations and in administrative reviews.

Certain Cut-to-Length Carbon Steel Plate from Canada, USA-93-1904-04, 1994 FTAPD, LEXIS 14, October 31, 1994, at 68, quoting Replacement Parts for Self-Propelled Bituminous Paving Equipment from Canada, USA-90-1904-01, 1992 FTAPD, LEXIS 2, May 15, 1992, at 74 (footnote omitted).

Commerce’s discretion to use BIA is, of course, not unbounded. A reviewing court— and hence, this panel—is not obligated to sustain a decision by Commerce to use BIA should said decision be unsupported by substantial evidence on the record or otherwise not in accordance with law. 19 U.S.C. § 1516a(b)(1)(B) (1988). Applying this standard, the Department’s use of BIA has been upheld, save for the unusual situation in which its requests for information from respondents have been unreasonable under the circumstances—as where, for example, the information did not exist or the Department failed adequately to notify respondent of what it was seeking. See, e.g., Olympic Adhesives, Inc. v. United States, 899 F.2d 1565 (Fed. Cir. 1990); Mitsui & Co., Ltd. v. United States, 1994 Ct. Int’l. Tr. LEXIS 59, Slip Op. 94-44; NTN Bearing Corp. v. United States, 13 CIT 713, 826 F. Supp. 1435 (1993); Daewoo Electronics Co., Ltd. v. United States, 13 CIT 253, 712 F. Supp. 931 (1989), aff’d in part and rev’d in part, remanded, 6 F.3d 1151 (Fed. Cir. 1993).

Stated differently, where the Department’s requests for information have been reasonable in view of the circumstances, both courts and USCFTA panels have upheld the use of BIA when such information has not been provided in a form and at a time acceptable to the DOC. See, e.g., Allied-Signal, 996 F.2d 1185; Koyo Seiko Co., Ltd. v. United States, 898 F. Supp. 915 (Ct. Int’l Tr. 1995); Certain Cut-to-Length Carbon Steel Plate from Canada, U.S.A.-93-1904-04, 1994 FTAPD, LEXIS 14 (Oct. 31, 1994).

In the instant case, the DOC made a series of requests for information concerning CEMEX’s home market sales of Type I cement. These requests had two principal bases. One ²⁷ concerned Commerce’s need to determine whether sales of Types II and V cement occurred "within the ordinary course of trade," as was claimed by CEMEX. Given that the ordinary course of trade is defined at least in part through comparison with the terms and conditions for sales of similar products, the DOC was of the view that it could not evaluate this claim absent the data it sought from CEMEX regarding sales of Type I cement. Final Results of Third Review, 60 Fed. Reg. at 26,869.

The record is quite clear that CEMEX did not provide such data to the Department, thereby impairing the DOC’s ability to complete a comparative investigation. Id.

A second, independently sufficient basis for Commerce’s request for sales information concerning Type I cement lay in the possibility that sales of Types II and V cement might, indeed, be found to be outside the ordinary course of trade, thereby necessitating the DOC’s reliance on sales of Type I cement, as similar merchandise, in order to determine Fair Market Value ("FMV"). In this regard, it should be noted that in the second administrative review, Commerce determined that CEMEX’s home market sales of Types II and V cement were outside the ordinary course of trade, and that the CIT affirmed that finding, in so doing instructing the DOC to collect Type I sales information rather than resort to a constructed value methodology. CEMEX, S.A. v. United States, CIT Slip Op. 95-72 (April 24, 1995). In the words of the CIT,

There is a statutory preference for the use of similar merchandise in determining FMV . . . . Constructed value should only be used where Commerce has made a determination that the exporter’s home market prices are inadequate or unavailable for the purpose of calculating FMV.

Id. at 31-32 (citation omitted). To be sure, Commerce’s finding in the second administrative review is not binding on subsequent reviews and the above-cited CIT decision was not handed down until well after the third administrative review began. Nonetheless, Commerce’s finding in the second administrative review of the need for Type I sales data, and its affirmation by the CIT, lends support to the DOC’s position in the instant case that its requests for Type I sales data in the third administrative review were not unreasonable.

CEMEX argues that the Department did not need information on sales of Type I cement because CEMEX had submitted information demonstrating that sales of Types II and V were in the ordinary course of trade for the period of review of the third administrative review. Based on this, CEMEX argues that the DOC’s requests for information on Type I sales were unreasonable, and that, therefore, its resort to BIA should be overturned by this panel. We do not find that argument persuasive. As has been stressed previously, Commerce’s discretion here is broad, with requests for information being subject to the general reasonableness standard described above. Believing that the DOC gave adequate consideration to the evidence of changed circumstances submitted by CEMEX, we find no basis for CEMEX’s assertion that the Department acted unreasonably during the third administrative review in requesting information on Type I sales for FMV purposes.

Although we are sensitive to the risks involved in allowing the DOC too free a hand in requesting information, lest it lead to a de facto barrier to imports, that was not the case here. Commerce’s requests for Type I sales information clearly came within the range of discretion implied by the reasonableness standard, and we, therefore, hold that the DOC was justified in applying BIA when those requests for information were not answered. This decision is made easier by the fact that CEMEX had provided information on Type I sales during the LTFV investigation and during the first and second administrative reviews. In addition, over the course of its requests to CEMEX, the Department (i) warned CEMEX that BIA might be applied if the requested information were not forthcoming (Letter of 2/4/94, supra note 24); (ii) narrowed the scope of its requests to reduce the burden which supplying the requested information would place on CEMEX (Letter of 11/29/93, supra note 24); and (iii) granted a time extension requested by CEMEX (Letter of 11/29/93, supra note 24). For this panel to hold otherwise would be to sanction CEMEX’s tactic of answering routine requests for information with substantive objections to the appropriateness of those requests, a practice that would render it impossible for Commerce to administer the antidumping statute in the manner intended by Congress. See Ansaldo Componenti, A.p.A. v. United States, 628 F. Supp. 198 (Ct. Int’l Tr. 1986); Mitsubishi Heavy Industries, Ltd. v. United States, 833 F. Supp. 919 (Ct. Int’l Tr. 1993).

2. Commerce’s Methodology in Applying BIA Was Within the Scope of its Authority

The second issue we must address is whether the Department acted within its discretion when implementing the BIA provision; specifically, whether its decision to apply its two-tier BIA methodology was supported by substantial evidence and was otherwise in accordance with law.

The DOC’s two-tier methodology is set forth in Antifriction Bearings and Parts Thereof from France, et al., 57 Fed. Reg. 28360 (June 24, 1992). Under the two-tier methodology, respondents that refuse to cooperate with the Department, or otherwise significantly impede proceedings, are assigned dumping margins from the first-tier, while respondents that substantially cooperate with the DOC’s requests for information, but fail to supply it in the form or within the time requested, are subject to second-tier BIA. See Preliminary Results of Third Review, 59 Fed. Reg. 28,844, 28,845. In selecting first-tier BIA the DOC will use the highest dumping rate assigned in the LTFV investigation or any subsequent administrative review to any company from the same country of origin selling the same class or kind of merchandise. Id. Second-tier BIA potentially is less adverse to the respondent, being the higher of the highest rate assigned to that respondent during any prior proceeding, or the highest rate assigned to any respondent in the administrative review then underway. Id.

It should be noted that the two-tier methodology may, in proceedings involving a small number of companies, result in a company receiving the same rate under either the first or the second tier of the two-tier test. As the two-tier methodology is an administrative practice developed by the Department itself, the Department has the right to depart from this methodology in such a situation, see Krupp Stahl A.G. v. United States 822 F. Supp. 789, 795 (Ct. Int’l Tr. 1993), provided that it explains the reasons for its departure and does not act arbitrarily. See Citrosuco Paulista, S.A. v. United States, 704 F. Supp. 1075, 1087-88 (Ct. Int’l Tr. 1988).

In the case before us, however, the Department decided not to depart from its two-tier BIA methodology. This decision resulted in CEMEX being assigned the same antidumping margin it would have been subject to under BIA had it simply been unable to provide the requested information, rather than unwilling.

As discussed above, the Department is to use BIA when its reasonable requests for information are not met. 19 U.S.C. § 1677e(b) (1992). In choosing not to provide a statutory definition of BIA, Congress, in effect, left Commerce free to develop and apply its own methodologies for determining BIA. The Department’s practice, embodied in the implementing regulations, of using BIA to foster compliance with its requests for the data needed to complete its investigations under the antidumping laws in the absence of subpoena power, has been upheld by the courts. See, e.g., Allied Signal, 996 F.2d at 1189-90. The particular two-tier methodology applied to CEMEX has been upheld by the Court of Appeals for the Federal Circuit as "a reasonable and permissible exercise of the ITA’s statutory authority to use the best information available when a respondent refuses . . . to provide requested information." Allied-Signal, 996 F.2d. at 1192.

With regard to the Department’s discretion over its use of BIA as a tool to induce compliance with information requests, both the Ad Hoc Committee and Commerce assert that the Rhone Poulenc decision requires the Department to select BIA that is adverse or unfavorable to the non-complying respondent. See Ad Hoc Committee Brief, at 30-31 (the DOC is under an "obligation to use a BIA margin that is unfavorable to the noncomplying respondent. Rhone Poulenc, 899 F.2d at 1190-91"); Commerce’s Main Brief at 67 (April 2, 1996) ("Under the statute and regulations, the Department must draw an inference when selecting BIA that is reasonably adverse to the respondent and, therefore, likely to induce its cooperation in the future. Rhone Poulenc, 899 F.2d at 1191").

Where the parties differ is that Commerce argues that the BIA rate it selected was sufficiently adverse to induce future cooperation, in spite of being the same rate a cooperative BIA respondent would have received. Commerce bases its position on the fact that the BIA rate it selected (61.85%) was considerably higher than the rate assigned in the second administrative review (42.74%). The Ad Hoc Committee argues, on the other hand, that such an increase from the second to the third administrative review was not in itself sufficient to support the Department’s contention, and that, in fact, the BIA rate of 61.85% assigned to CEMEX in the third review was not adverse because, under the two-tier methodology, this was the same rate CEMEX would have received if it had been a cooperative BIA respondent. Although this panel may read the legal effect of Rhone Poulenc somewhat differently than do the parties, we do not need to reach that issue in order to decide the ²⁸ case before us. Even if Commerce was required by law to select as BIA a margin adverse to CEMEX, as argued, we find that the Department was not acting arbitrarily or without substantial evidence when it selected the rate of 61.85%.

The Ad Hoc Committee makes much of language in previous cases suggesting that the Department’s choice of BIA is a "rebuttable presumption," as though this creates a particular standard for court or NAFTA panel review of the Department’s BIA decisions. We decline to endorse this view for the following reasons. First, the "rebuttable presumption" notion seems to arise from the fact that Commerce has been allowed to take into account, in determining BIA, whether or not the respondent is cooperative in providing information. 19 C.F.R. § 353.51 (1988); Rhone Poulenc, 899 F.2d at 1190-91. Although the attitude of a party would normally seem irrelevant to a factual determination such as the BIA in a particular proceeding, the courts have allowed the Department to presume that the highest prior margins are the best information of current margins, based on "a common sense inference that the highest prior margin is the most probative evidence of current margins because, if it were not so, the importer, knowing of the rule, would have produced current information showing the margin to be less." Rhone Poulenc, 899 F.2d at 1191. This presumption "fairly places the burden of production on the importer, which has in its possession the information capable of rebutting the agency’s inference." Id. at 1190-91.

The purpose of the "rebuttable presumption" notion thus seems to be to encourage potentially uncooperative parties to comply with the DOC’s requests for information by rebutting presumptions which the Department is allowed to make. The Ad Hoc Committee’s assertion of a right to rebut Commerce’s use of its normal two-tier BIA methodology does not comport with this understanding of the purpose underlying the "rebuttable presumption" notion.

Second, none of the cases cited by the Ad Hoc Committee to support its "rebuttable presumption" argument hold that a party in the position of the Ad Hoc Committee, a petitioner in an antidumping action, has any particular right to rebut the DOC’s BIA presumption. The cases either recognize a right of respondents to rebut Commerce’s BIA presumptions by supplying withheld information, in accordance with the cooperation-inducing function of BIA discussed above, see, e.g., Rhone Poulenc, 899 F.2d at 1190-91, or recognize the right of the Department to depart from its usual two-tier methodology in particular proceedings, see, e.g., Krupp Stahl A.G. 822 F. Supp. 789, 795, a right that can be understood as nothing more than the normal right of an agency to depart from established practice in particular cases, so long as it explains the reasons for its departure and does not act arbitrarily. See Citrosuco Paulista, S.A., 704 F. Supp. at 1087-88.

In the opinion of this panel, information submitted by the Ad Hoc Committee to the DOC on this issue should be treated no differently than information placed on the record with regard to any comparable determination. The question for the reviewing court or NAFTA panel remains whether the Department’s decision was supported by substantial evidence and was otherwise in accordance with law. To state the problem somewhat differently, the question is not whether the record evidence would have justified a departure by Commerce from its two-tier BIA methodology, but whether the record evidence required such a departure—that is, whether, absent such a departure, the Department should be found to have acted arbitrarily. We find that the record evidence did not require such a departure.

V. DISPOSITION OF PENDING MOTIONS

Also pending before this panel are three procedural motions. The first was filed by the Government of Mexico to appear before this panel as amicus curiae, and accompanied by a brief submitted for this purpose. We note that while Article 1904 of the Panel Rules does not specifically address appearances by amicus parties, this panel has the authority to adopt procedures not covered by those rules in the particular case before it. See Statement of General Intent, Preamble to Rules of Procedure for Article 1904 Binational Panel Reviews. Under the Rule 76 of the CIT, an entity wishing to appear as amicus may do so at the discretion of the court. Accordingly, we hereby grant this motion.

Second, Commerce has moved to strike Exhibit 1 to CEMEX’s Reply Brief. Exhibit 1 is a memorandum of law by Professor Ralph G. Steinhardt of George Washington University that was apparently prepared for this litigation in response to a request by CEMEX. This panel agrees in principle with Commerce that the submission of a legal memorandum prepared by non-party to the case may be improper. For example, the Steinhardt memorandum neither attests to specific facts in the record nor constitutes a published scholarly writing. The document discusses generally the international legal dimensions of the GATT, and offers a specific legal opinion on a matter before this panel: the legal effect of the 1992 GATT panel report vis-a-vis Commerce’s refusal to revoke the antidumping duty order.

However, there is nothing in the NAFTA Article 1904 Rules precluding the submission of such documents. And since there are no page limitations on briefs submitted to this panel, it cannot be said that CEMEX improperly extended its briefing by attaching the memorandum to its reply brief. Finally, while a sworn affidavit by, or the appearance of, Mr. Steinhardt would have been more appropriate, in view of the fact that the memorandum to a certain extent reflects Mr. Steinhardt’s published views on international law (e.g., R. Steinhardt, The Role of International Trade as a Canon of Domestic Statutory Construction, 43 Vanderbilt L. Rev. 1103 (1990)), the panel declines to strike the memorandum from CEMEX’s pleadings. Commerce’s motion to strike Exhibit ²⁹ 1 of CEMEX’s Reply Brief, then, is hereby denied.

Finally, Commerce and the Ad Hoc Committee have moved to strike the brief filed by CdC, because that brief allegedly exceeds the scope of permissible intervention by raising arguments which have not already been presented in the pleadings of the existing parties. In ruling on CdC’s intervention, this panel permitted arguments that "support[ed] positions framed by the complaints." Because we find that CdC’s arguments are within the scope of permissible intervention, the motion to strike is denied.

The arguments presented in CdC’s brief are not materially different than that raised by CEMEX. For example, CdC argues that the "plain language" of the U.S. antidumping statute requires that Commerce revoke the underlying 1990 antidumping order. While CEMEX argues that the GATT Ad-Code, as interpreted by the 1992 GATT panel, requires Commerce to revoke the antidumping order, both parties have acknowledged that the language of the relevant U.S. antidumping law and the GATT are identical. CEMEX Main Brief at 39-40; CdC Main Brief at 14 (Jan. 16, 1996). Furthermore, both CEMEX and CdC argued that Commerce improperly issued the antidumping order in 1990 because it failed to investigate, prior to initiation, whether the petition had the support of the requisite regional industry as required by law. Therefore, we find that the legal arguments raised by CdC in its brief, while not identical to those presented by CEMEX, at least support the arguments framed by the pleadings of the parties. There would be little point to allowing a party to intervene only to restrict its briefing to the identical arguments already raised by other parties.

VI. CONCLUSION

For the reasons discussed above, this panel finds that the U.S. Commerce Department’s final determination in its third administrative review of the antidumping order on gray portland cement and cement clinker, 60 Fed. Reg. 26,865 (May 19, 1995), to have been based upon substantial evidence on the record and in accordance with law.

September 13, 1996.Dated Issued.

John M. Peterson, Chairman.

Víctor Blanco Fornieles.

William P. Alford.

Eduardo Magallón.

Morton Pomeranz.

²¹ On the other hand, the original GATT itself "became part of U.S. law via executive orders in accordance with congressional delegation of power to the President." Footwear Distributors, 852 F. Supp. at 1093 and n. 30 (citing Proclamation No. 2761A, 12 Fed. Reg. 8,863 (Dec. 30, 1947). Also, unlike unadopted GATT panel decisions, NAFTA panel determinations which review antidumping and countervailing duty determinations are binding on the parties.

²² See also West Rand Central Gold Mining Co. v. The King, Great Britain, King’s Bench Division, 1905. [1905] 2 K.B. 391 (emphasis added):

It is quite true that whatever has received the common consent of civilized nations must have received the assent of our country, and that to which we have assented along with other nations in general may properly be called International Law, and as such will be acknowledged and applied by our municipal tribunals when legitimate occasion arises for those tribunals to decide questions to which doctrines of international law may be relevant.

²⁴ By way of contrast, Judge Aquilino noted that Chapter 19 of the NAFTA specifically provides that NAFTA panel decisions which review antidumping and countervailing duty determinations are binding upon the parties to that proceeding as concerns the dispute in question. (emphasis added).

²⁵ Therefore, even if the 1992 GATT panel report were deemed to embody a persuasive "international" statement on Commerce’s initiation procedures in 1989, the third annual review of an antidumping order is certainly not a "legitimate occasion" for revisiting that original determination.

²⁶ We note that nothing prevents a court (or this panel) from voluntarily adopting the reasoning of another tribunal, including an unadopted GATT panel report in other circumstances, assuming that its reasoning is sound and does not conflict with the law that the court is bound to apply, including applicable standards of review and statutorily-imposed procedural rules.

²⁷ See Antidumping Questionnaire of October 14, 1993; Letter of November 29, 1993 from Laurie A. Lucksinger, Division Director, Office of Antidumping Compliance, ITA, to CEMEX; Supplementary Questionnaire of February 4, 1994 and covering letter from Laurie A. Lucksinger, Division Director, Office of Antidumping Compliance, ITA, to CEMEX.

²⁸ The cited passages recognize the authority of the Department to assign high BIA rates to uncooperative respondents based on the assumption that these respondents would supply the withheld information, if said information would result in lower rates. The Rhone Poulenc court upheld the practice against a charge that it should be prohibited as punitive, but said nothing, even in dicta, that would require Commerce to tailor its selection of BIA to achieve any particular objective. Rhone Poulenc, 899 F.2d at 1190-91.

²⁹ We note however, that Professor Steinhardt’s memorandum acknowledges that the unadopted 1992 GATT panel report does not create an international obligation on the U.S. Furthermore, the opinions offered therein do not address issues of res judicata, statutes of limitation, and the limitation on the scope of this panel’s review.