[Federal Register Volume 61, Number 152 (Tuesday, August 6, 1996)]
[Notices]
[Pages 40813-40815]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20000]


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DEPARTMENT OF COMMERCE
International Trade Administration
[A-588-703]


Certain Internal-Combustion, Industrial Forklift Trucks From 
Japan; Preliminary Results of Antidumping Duty Administrative Review

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

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

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SUMMARY: In response to requests from interested parties, the 
Department of Commerce (the Department) is conducting an administrative 
review of the antidumping duty order on certain internal-combustion, 
industrial forklift trucks from Japan. The review covers three 
manufacturers/exporters of the subject merchandise to the United States 
during the period June 1, 1993 through May 31, 1994.
    We have preliminarily determined that sales have been made below 
foreign market value (FMV). If these preliminary results are adopted in 
our final results of the administrative review, we will instruct U.S. 
Customs to assess antidumping duties equal to the difference between 
the United States price (USP) and FMV.
    We invite interested parties to comment on these preliminary 
results. Parties who submit comments in these proceedings are requested 
to submit with each argument (1) a statement of the issue and (2) a 
brief summary of the argument.

EFFECTIVE DATE: August 6, 1996.

FOR FURTHER INFORMATION CONTACT: Davina Hashmi or Thomas Barlow of 
Import Administration, International Trade Administration, U.S. 
Department of Commerce, Washington, D.C. 20230; telephone (202) 482-
4733.

SUPPLEMENTARY INFORMATION: Unless otherwise indicated, all citations to 
the statute and to the Department's regulations are references to the 
provisions as they existed on December 31, 1994.

Background

    On June 7, 1988, the Department published in the Federal Register 
(53 FR 20882) the antidumping duty order on certain internal-
combustion, industrial forklifts from Japan. On June 7, 1994, the 
Department published a notice of ``Opportunity to Request an 
Administrative Review'' (59 FR 29411). Petitioners requested that we 
conduct a review of three respondents, Nissan Motor Company (Nissan), 
Toyota Motor Corporation (TMC), and Toyo Umpanki Company, Ltd (TCM). On 
July 15, 1994, we initiated an administrative review of this order for 
the period June 1, 1993, through May 31, 1994 (59 FR 36160). The 
Department is now conducting this administrative review in accordance 
with section 751 of the Tariff Act of 1930, as amended (the Act).

Scope of Review

    The products covered by this review are certain internal-
combustion, industrial forklift trucks, with lifting capacity of 2,000 
to 15,000 pounds. The products covered by this review are further 
described as follows: Assembled, not assembled, and less than complete, 
finished and not finished, operator-riding forklift trucks powered by 
gasoline, propane, or diesel fuel internal-combustion engines of off-
the-highway types used in factories, warehouses, or transportation 
terminals for short-distance transport, towing or handling of articles. 
Less than complete forklift trucks are defined as imports which include 
a frame, by itself or a frame assembled with one or more component 
parts. Component parts of the subject forklift trucks which are not 
assembled with a frame are not covered by this order. This merchandise 
is currently classifiable under the Harmonized System (HTS) item 
numbers 8427.20.00, 8427.90.00, and 8431.20.00. The HTS item numbers 
are provided for convenience and Customs purposes. The written 
description remains dispositive.

Such or Similar Comparisons

    In this administrative review, respondents made no sales of 
identical merchandise in the home and U.S. market. Therefore, for all 
respondent companies, pursuant to section 771(16) of the Act, we 
established categories of ``such or similar'' merchandise on the basis 
of load (lifting) capacity of the forklift. Within these categories, we 
based our product comparisons on six primary characteristics, to which 
we assigned ``points'' indicating their relative importance. These 
characteristics and their point totals are as follows: tire type, 6 
points; upright style, 5 points; engine type, 4 points; transmission 
type, 3 points; maximum forklift height, 2 points; engine size, 1 
point. If no matches were found at the 21-point level at the exact or 
same load capacity, then matches of forklift trucks were found with 
tire type taking preference. For a more detailed description of the 
product matching criteria, see Section VII of the Department's 
Questionnaire, June 16, 1995, Product Comparisons

[[Page 40814]]

(Concordance) And Adjustments For Differences In Merchandise.

United States Price (USP)

    For those sales made directly to unrelated parties prior to 
importation into the United States, we based the United States price on 
purchase price, in accordance with section 772(b) of the Act.
    Where the sale to the first unrelated purchaser took place after 
importation into the United States, we based United States price on 
exporter's sales price (ESP), in accordance with section 772(c) of the 
Act. The calculation of United States price for each respondent is 
detailed below.
    Nissan: The information submitted by Nissan in this review, as well 
as our consultations with the Customs Service, indicates that Nissan 
made no sales of subject merchandise during the period of review.
    TMC: We calculated purchase price and ESP based on packed and 
delivered, f.o.b., and c&f prices to unrelated customers in the United 
States. Pursuant to section 772(d)(2) of the Act, we made deductions 
from purchase price and ESP, where appropriate, for foreign inland 
freight, export brokerage, U.S. brokerage and handling, ocean freight, 
marine insurance, and U.S. inland freight. We also made deductions for 
discounts. For sales made to unrelated customers which were financed 
through Toyota's credit corporation, we added interest revenue earned 
to USP. For ESP sales, we made further deductions from USP under 
section 772(e) (1) and (2) of the Act for credit expenses, commissions, 
warranties, direct advertising, and indirect selling expenses (which 
include inventory carrying costs, advertising, product liability 
expenses, and selling expenses). For ESP transactions involving further 
manufacturing (e.g., swapping forks and masts, and installation of 
certain accessories by a U.S. related entity of TMC) prior to sale in 
the United States, we deducted all value added in the United States, 
pursuant to section 772(e)(3) of the Act. Also, based on a decision by 
the Court of Appeals for the Federal Circuit (Federal Mogul v. United 
States, CAFC No. 94-1097), the Department returned to the methodology 
of adding the absolute amount of consumption taxes collected in the 
home market to both U.S. price and home market price. Pursuant to this 
court decision and in accordance with section 772(d)(1)(C) of the Act, 
we calculated this amount by multiplying the tax rate in the home 
market by home market price net of discounts and rebates.
    We did not incorporate operating leases into our calculations of 
U.S. Price. In accordance with 19 CFR 353.2(t), we accounted for 
capital leases in our preliminary margin calculations.
    TCM: The information submitted by TCM in this review, as well as 
our consultations with the Customs Service, indicates that TCM made no 
sales of subject merchandise during the period of review.

Foreign Market Value

    In accordance with section 773(a) of the Act, we calculated foreign 
market value (FMV) on the basis of home market sales and, where 
appropriate, constructed value. The calculation of FMV for Toyota is 
detailed below.
    Petitioners alleged that Toyota sold forklift trucks in Japan at 
prices below the cost of producing the merchandise. Based on our 
analysis of the sales-below-cost-of-production (COP) allegation filed 
by petitioners, and in accordance with section 773(b) of the Act, we 
determined that there were reasonable grounds to believe or suspect 
that such sales were being made. We therefore initiated a COP 
investigation.
    In accordance with 19 CFR 353.51(c), we calculated the COP based on 
the sum of the costs of materials and fabrication employed in producing 
such or similar merchandise plus selling, general and administrative 
expenses, and all costs and expenses incidental to placing such or 
similar merchandise in condition, packed, and ready for shipment. In 
our COP analysis, we used the home market sales and COP information 
provided by TMC in its questionnaire and supplemental questionnaire 
responses.
    We performed a model-specific COP test in which we examined whether 
each home market sale was priced below the merchandise's COP. For each 
model, we compared the COP to the reported home market unit price, net 
of price adjustments and movement expenses. In accordance with section 
772 (b) of the Act, we also examined whether the home market sales of 
each model were made at prices below their COP in substantial 
quantities over an extended period of time. Toyota did not submit 
evidence that such sales were made at prices which would permit 
recovery of all costs within a reasonable period of time in the normal 
course of trade. Therefore, we assumed that prices would not recover 
the costs in the normal course of trade.
    For each model where less than 10 percent, by quantity, of the home 
market sales during the period of review (POR) were made at prices 
below the COP, we included all sales of that model in the computation 
of FMV. For each model where 10 percent or more, but not more than 90 
percent, of the home market sales during the POR were priced below the 
merchandise's COP, we excluded from the calculation of FMV those home 
market sales which were priced below the merchandise's COP, provided 
that these below-cost sales were made over an extended period of time. 
For each model where more than 90 percent of the home market sales 
during the POR were priced below the COP and over an extended period of 
time, we disregarded all sales of the model from our calculation of FMV 
and used the constructed value (CV) of those models as described below. 
See Antifriction Bearings (Other Than Tapered Roller Bearings) and 
Parts Thereof From France, et al.; Preliminary Results of Antidumping 
Duty Administrative Reviews, Partial Termination of Administrative 
Reviews, and Notice of Intent To Revoke Orders (in Part) 59 FR 9463 
(February 28, 1994).
    In order to determine whether below-cost sales had been made over 
an extended period of time, we compared the number of months in which 
each product was sold below cost to the number of months during the POR 
in which each model was sold. If a product was sold in fewer than three 
months during the review period, we did not exclude the below-cost 
sales unless there were below-cost sales in each month of sale. If a 
product was sold in three or more months, we did not exclude the below-
cost sales unless there were below-cost sales in at least three months 
during the POR.
    For those models that had sufficient above-cost sales, we 
calculated FMV based on delivered prices and f.o.b. prices to unrelated 
and related customers in the home market. Where appropriate, and in 
accordance with section 773(a)(4)(B) of the Act, we made deductions 
from the home market price for inland freight, inland insurance, and 
rebates. Since no packing costs were claimed on the home market sales, 
we added U.S. packing to the home market price.
    In accordance with section 773(a)(4)(B) of the Act and 19 CFR 
353.56, for comparisons involving ESP and purchase price sales 
transactions, we made deductions from the home market price, where 
appropriate, for credit expenses, warranties, and advertising. We made 
an adjustment to FMV for indirect selling expenses (which included 
incentive program expenses, inventory carrying costs, product liability 
expenses, and other indirect expenses) in the home market to offset 
indirect selling expenses on ESP sales in the United States. We

[[Page 40815]]

limited the indirect expense deduction on home market sales by the 
amount of the indirect selling expenses incurred in the United States 
in accordance with 19 CFR 353.56(b)(2). Pursuant to section 
773(a)(4)(C) of the Act and 19 CFR 353.57, we made further adjustments 
to the home market price to account for differences in the physical 
characteristics of the merchandise.
    We used CV as FMV for those U.S. sales for which there were no 
contemporaneous sales of the comparison home market model or 
insufficient sales at or above the COP. We calculated CV, in accordance 
with section 773 (e) of the Act, as the sum of the cost of manufacture 
(COM) of the product sold in the United States, home market selling, 
general and administrative (SG&A) expenses, home market profit and U.S. 
packing. Pursuant to 19 CFR 353.51, the COM of the product sold in the 
United States is the sum of direct material, direct labor, and variable 
and fixed factory overhead expenses. For home market SG&A expenses, and 
in accordance with section 773(e)(1)(B)(i) of the Act, we used the 
larger of the actual SG&A expenses reported by Toyota or 10 percent of 
the COM, the statutory minimum for general expenses. For home market 
profit, and in accordance with section 773(e)(1)(B)(ii) of the Act, we 
used the larger of the actual profit reported by the respondents or the 
statutory minimum of eight percent of the sum of COM and general 
expenses. We deducted home market direct selling expenses and added 
U.S. direct selling expenses to CV.

Preliminary Results of Review

    As a result of our comparison of United States price to foreign 
market value, we preliminarily determine that the following margins 
exist for the period June 1, 1993 through May 31, 1994:

------------------------------------------------------------------------
                                                                Margin  
                        Manufacturer                          (percent) 
------------------------------------------------------------------------
Toyota Motor Corporation...................................        43.41
Nissan.....................................................      \1\7.36
Toyo Umpanki, Ltd..........................................     \1\4.48 
------------------------------------------------------------------------
\1\ No shipments or sales subject to this review. Rate is from the last 
  relevant segment of the proceeding in which the firm had shipments/   
  sales.                                                                

    Parties to this proceeding may request disclosure within 5 days of 
the date of publication of this notice. Any interested party may 
request a hearing within 10 days of the date of publication of this 
notice. A hearing, if requested, will be held 44 days from the date of 
publication of the preliminary results at the main Commerce Department 
building.
    Issues raised in hearings will be limited to those raised in the 
respective case briefs and rebuttal briefs. Case briefs from interested 
parties and rebuttal briefs, limited to the issues raised in the 
respective case briefs, may be submitted not later than 30 days and 37 
days, respectively, from the date of publication of these preliminary 
results. Parties who submit case briefs or rebuttal briefs in this 
proceeding are requested to submit with each argument (1) a statement 
of the issue and (2) a brief summary of the argument.
    The Department will subsequently publish the final results of this 
administrative review, including the results of its analysis of issues 
raised in any such written briefs or hearing.
    The Department shall determine, and the Customs Service shall 
assess, antidumping duties on all appropriate entries. Because the 
inability to link sales with specific entries prevents calculation of 
duties on an entry-by-entry basis, we have calculated an importer-
specific ad valorem duty assessment rate for the merchandise based on 
the ratio of the total amount of antidumping duties calculated for the 
examined sales made during the POR to the total customs value of the 
sales used to calculate those duties. This rate will be assessed 
uniformly on all entries of that particular importer made during the 
POR. (This is equivalent to dividing the total amount of antidumping 
duties, which are calculated by taking the difference between foreign 
market value and United States price, by the total United States price 
value of the sales compared, and adjusting the result by the average 
difference between United States price and customs value for all 
merchandise examined during the POR.) The Department will issue 
appropriate appraisement instructions directly to the Customs Service 
upon completion of this review.
    Furthermore, the following deposit requirements will be effective 
upon publication of the final results of this administrative review for 
all shipments of certain internal-combustion, industrial forklift 
trucks from Japan entered, or withdrawn from warehouse, for consumption 
on or after the publication date, as provided by section 751(a)(1) of 
the Tariff Act: (1) the cash deposit rate for TMC will be the rate 
established in the final results of this administrative review, unless 
these final results are preceded by the final results in the 1994/1995 
administrative review; (2) for previously reviewed 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, or a prior review, or the original 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) the cash deposit rate for any future entries 
from all other manufacturers or exporters who are not covered in this 
review, or a prior administrative review, and who are unrelated to the 
reviewed firm or any previously reviewed firm will be 39.45 percent , 
the ``all others'' rate established in the amended final notice of the 
investigation by the Department (53 FR 20882, June 7, 1988).
    This notice serves as a preliminary reminder to importers of their 
responsibility under 19 CFR 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 administrative review and this notice are in accordance with 
section 751(a)(1) of the Tariff Act (19 U.S.C. 1675(a)(1)) and 19 CFR 
353.22(c)(5).

    Dated: July 29, 1996.
Robert S. LaRussa,
Acting Assistant Secretary for Import Administration.
[FR Doc. 96-20000 Filed 8-5-96; 8:45 am]
BILLING CODE 3510-DS-P