[Federal Register Volume 61, Number 35 (Wednesday, February 21, 1996)]
[Notices]
[Pages 6627-6628]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3755]



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DEPARTMENT OF COMMERCE
[A-122-006]


Steel Jacks From Canada; Final Results of Antidumping Duty 
Administrative Review

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.

ACTION: Notice of Final Results of Antidumping Duty Administrative 
Review.

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SUMMARY: On October 16, 1995, the Department of Commerce (the 
Department) published the preliminary results of its administrative 
review of the antidumping finding on steel jacks from Canada. The 
review covers two manufacturers/exporters of this merchandise to the 
United States, New-Form Manufacturing Co., Ltd. (NFM) and Seeburn Metal 
Products (Seeburn). The period covered is September 1, 1993 through 
August 31, 1994. The review indicates the existence of dumping margins 
for this period.
    We gave interested parties an opportunity to comment on our 
preliminary results. We have adjusted NFM's margin for these final 
results, based on our analysis of the comments received and as a result 
of a changed treatment of home market consumption taxes, as explained 
below.

EFFECTIVE DATE: February 21, 1996.

FOR FURTHER INFORMATION CONTACT: Thomas Killiam or John Kugelman, 
Office of Antidumping Compliance, Import Administration, International 
Trade Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-
5253.

SUPPLEMENTARY INFORMATION:

Background

    On October 16, 1995, the Department published in the Federal 
Register (60 FR 53584) the preliminary results of its 1993-94 
administrative review of the antidumping finding on steel jacks from 
Canada (31 FR 7485, May 17, 1966).

Applicable Statute and Regulations

    The Department has now completed this administrative review in 
accordance with section 751 of the Tariff Act of 1930, as amended (the 
Act). Unless otherwise indicated, all citations to the statute and to 
the Department's regulations are in reference to the provisions as they 
existed on December 31, 1994.

Scope of the Review

    Imports covered by this review are multi-purpose hand-operated 
heavy-duty steel jacks, used for lifting, pulling, and pushing, 
measuring from 36 inches to 64 inches high, assembled, semi-assembled 
and unassembled, including jack parts, from Canada. The merchandise is 
currently classified under Harmonized Tariff Schedule (HTS) item number 
8425.49.00. The HTS number is provided for convenience and Customs 
purposes. The written description remains dispositive.
    This review covers two manufacturers/exporters, NFM and Seeburn. 
The period of review (POR) is September 1, 1993 through August 31, 
1994.

Home Market Consumption Taxes

    In light of the Federal Circuit's decision in Federal Mogul v. 
United States, CAFC No. 94-1097, the Department has changed its 
treatment of home market consumption taxes. Where merchandise exported 
to the United States is exempt from the consumption tax, the Department 
will add to the U.S. price (USP) the absolute amount of such taxes 
charged on the comparison sales in the home market. This is the same 
methodology that the Department adopted following the decision of the 
Federal Circuit in Zenith Electronics Corp. v. United States, 988 F. 2d 
1573, 1577 (Fed. Cir. 1993), (Zenith), and which was suggested by that 
court in footnote 4 of its decision. The Court of International Trade 
(CIT) overturned this methodology in Federal Mogul v. United States, 
834 F. Supp. 1391 (1993), and the Department acquiesced in the CIT's 
decision. The Department then followed the CIT's preferred methodology, 
which was to calculate the tax to be added to USP by multiplying the 
adjusted USP by the foreign market tax rate; the Department made 
adjustments to this amount so that the tax adjustment would not alter a 
``zero'' pre-tax dumping assessment.
    The foreign exporters in the Federal Mogul case, however, appealed 
that decision to the Federal Circuit, which reversed the CIT and held 
that the statute did not preclude Commerce from using the ``Zenith 
footnote 4'' methodology to calculate tax-neutral dumping assessments 
(i.e., assessments that are unaffected by the existence or amount of 
home market consumption taxes). Moreover, the Federal Circuit 
recognized that certain international agreements of the United States, 
in particular the General Agreement on Tariffs and Trade (GATT) and the 
Tokyo Round Antidumping Code, required the calculation of tax-neutral 
dumping assessments. The Federal Circuit remanded the case to the CIT 
with instructions to direct Commerce to determine which tax methodology 
it will employ.
    The Department has determined that the ``Zenith footnote 4'' 
methodology should be used. First, as the Department has explained in 
numerous administrative determinations and court filings over the past 
decade, and as the Federal Circuit has now recognized, Article VI of 
the GATT and Article 2 of the Tokyo Round Antidumping Code required 
that dumping assessments be tax-neutral. This requirement continues 
under the new Agreement on Implementation of Article VI of the GATT. 
Second, the Uruguay Round Agreements Act (URAA) explicitly amended the 
antidumping law to remove consumption taxes from the home market price 
and to eliminate the addition of taxes to USP, so that no consumption 
tax is included in the price in either market. The Statement of 
Administrative Action (p. 159) explicitly states that this change was 
intended to result in tax neutrality.
    While the ``Zenith footnote 4'' methodology is slightly different 
from the URAA methodology, in that section 772(d)(1)(C) of the pre-URAA 
law required that the tax be added to USP rather than subtracted from 
home market price, it does result in tax-neutral duty assessments. In 
sum, the Department has elected to treat consumption taxes in a manner 
consistent with its longstanding policy of tax-neutrality and with the 
GATT.

Seeburn

    On February 3, 1995, the Department determined that the products 
exported by Seeburn were automobile tire jacks outside the scope of the 
antidumping finding on steel jacks from Canada (see February 3, 1995 
Memorandum of Final Scope Ruling). Therefore, because Seeburn had no 
shipments of subject merchandise during the POR and Seeburn has never 
before been reviewed, we are assigning Seeburn the ``all others'' rate.

Analysis of Comments Received

    We received comments from the petitioner, Bloomfield Manufacturing 
Co., Inc. (Bloomfield).
    Comment 1: Bloomfield argues that the Department was correct in 
adding U.S. direct selling expenses (two commissions and credit 
expenses) to 

[[Page 6628]]
foreign market value (FMV) since the U.S. sales were purchase price 
(PP) transactions. However, according to the petitioner, the Department 
used incorrect amounts for these expenses for certain U.S. sales.
    Department's Position: In the preliminary review results, for 
certain U.S. sales we incorrectly divided per-unit, rather than total, 
expense amounts by the total quantity sold. Therefore, we agree with 
Bloomfield, and for these final results we have used the correct 
expense amounts for these sales.
    Comment 2: The petitioner claims that the Department should have 
included in its analysis home market and U.S. sales of product 1020, 
and a missing U.S. sale of product 1120.
    Department's Position: We agree with the petitioner. These sales 
were inadvertently omitted from the preliminary analysis. We have 
included them in these final results.

Final Results of Review

    As a result of our analysis of the comments received, we determine 
that the following margins exist:

------------------------------------------------------------------------
                                                                 Margin 
            Review period               Manufacturer/Exporter  (percent)
------------------------------------------------------------------------
9/1/93-8/31/94.......................  NFM...................      22.63
                                       Seeburn...............     *28.35
------------------------------------------------------------------------
*No shipments or sales subject to this review; because this firm has    
  never been reviewed, the rate is the all others rate explained in (4) 
  below.                                                                

    Individual differences between the USP and FMV may vary from the 
above percentages. The Department will issue appraisement instructions 
directly to the U.S. Customs Service.
    Furthermore, the following deposit requirements will be effective 
for all shipments of subject merchandise entered, or withdrawn from 
warehouse, for consumption on or after the publication date of these 
final results, as provided for by section 751(a)(1) of the Act, and 
will remain in effect until the final results of the next 
administrative review:
    (1) The cash deposit rates for the reviewed companies will be the 
rates listed above;
    (2) For previously reviewed or investigated companies not listed 
above, the cash deposit rate will continue to be the company-specific 
rate published for the most recent period;
    (3) If the exporter is not a firm covered in this review, a prior 
review, or the original less-than-fair-value (LTFV) investigation, but 
the manufacturer is, the cash deposit rate will be the rate established 
for the most recent period for the manufacturer of the merchandise; and
    (4) If neither the exporter nor the manufacturer is a firm covered 
in this or any previous review conducted by the Department, the cash 
deposit rate will be 28.35 percent, the ``all others'' rate established 
in the first final results of review published by the Department (52 FR 
32957, September 1, 1987).
    This notice serves as a final reminder to importers of their 
responsibility under 19 CFR Sec. 353.26 to file a certificate regarding 
the reimbursement of antidumping duties prior to liquidation of the 
relevant entries during this review period. Failure to comply with this 
requirement could result in the Secretary's presumption that 
reimbursement of antidumping duties occurred and the subsequent 
assessment of double antidumping duties.
    This notice also serves as a reminder to parties subject to 
administrative protective order (APO) of their responsibility 
concerning the disposition of proprietary information disclosed under 
APO in accordance with 19 CFR Sec. 353.34(d). Timely written 
notification of the return/destruction of APO materials or conversion 
to judicial protective order is hereby requested.
    Failure to comply with the regulations and terms of an APO is a 
sanctionable violation.
    This administrative review and notice are in accordance with 
section 751(a)(1) of the Act (19 U.S.C. 1675(a)(1)) and 19 CFR 
Sec. 353.22.

    Dated: February 12, 1996.
Susan G. Esserman,
Assistant Secretary for Import Administration.
[FR Doc. 96-3755 Filed 2-20-96; 8:45 am]
BILLING CODE 3510-DS-P