[Federal Register Volume 64, Number 150 (Thursday, August 5, 1999)] [Notices] [Pages 42662-42665] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 99-20217] ----------------------------------------------------------------------- DEPARTMENT OF COMMERCE International Trade Administration Final Results of Expedited Sunset Review: Internal-Combustion, Industrial Forklift Trucks From Japan [A-588-703] AGENCY: Import Administration, International Trade Administration, Department of Commerce. ACTION: Notice of final results of expedited sunset review: certain internal-combustion, industrial forklift trucks from Japan. ----------------------------------------------------------------------- SUMMARY: On April 1, 1999, the Department of Commerce (``the Department'') initiated a sunset review of the antidumping duty order on industrial forklift trucks from Japan (64 FR 15727) pursuant to section 751(c) of the Tariff Act of 1930, as amended (``the Act''). On the basis of a notice of intent to participate and adequate substantive comments filed on behalf of domestic interested parties and inadequate response (in this case, no response) from respondent interested parties, the Department determined to conduct an expedited review. As a result of this review, the Department finds that revocation of the antidumping duty order would be likely to lead to continuation or recurrence of dumping at the levels indicated in the Final Results of Review section of this notice. For Further Information Contact: Kathryn B. McCormick or Melissa G. Skinner, Office of Policy for Import Administration, International Trade Administration, US Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482- 1698 or (202) 482-1560, respectively. Effective Date: August 5, 1999. Statute and Regulations This review is being conducted pursuant to sections 751(c) and 752 of the Act. The Department's procedures for the conduct of sunset reviews are set forth in Procedures for Conducting Five-year (``Sunset'') Reviews of Antidumping and Countervailing Duty Orders, 63 FR 13516 (March 20, 1998) (``Sunset Regulations'') and in CFR Part 351 (1998) in general. Guidance on methodological or analytical issues relevant to the Department's conduct of sunset reviews is set forth in the Department's Policy Bulletin 98:3--Policies Regarding the Conduct of Five-year (``Sunset'') Reviews of Antidumping and Countervailing Duty Orders; Policy Bulletin, 63 FR 18871 (April 16, 1998) (``Sunset Policy Bulletin''). Scope The merchandise subject to this antidumping duty order is internal- combustion, industrial forklift trucks, with lifting capacity of 2,000 to 5,000 pounds, from Japan. The products covered are 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 1. 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. Imports of these products were classified under items 692.4025, 692.4030 and 692.4070 of the Tariff Schedules of the United States Annotated (``TSUSA''), and are currently classifiable under Harmonized Tariff Schedule of the United States (``HTSUS'') item numbers 8427.20.00, 8427.90.00, and 8431.20.00. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description remains dispositive. --------------------------------------------------------------------------- \1\ See Certain Internal-Combustion Industrial Forklift Trucks from Japan; Final Results of Antidumping Duty Administrative Review, 62 FR 5592 (February 6, 1997). --------------------------------------------------------------------------- History of the Order On April 15, 1988, the Department published a final affirmative determination of sales at less than fair value with respect to certain internal-combustion, industrial forklift trucks from Japan (53 FR 12552). The order resulted in the following company margins: ------------------------------------------------------------------------ Margin Manufacturer/Exporter (percent) ------------------------------------------------------------------------ Toyota Motor Corp.......................................... 17.29 Nissan Motor Corp.......................................... 51.33 Komatsu Forklift Co., Ltd.................................. 47.50 Sumitomo-Yale Co., Ltd..................................... 51.33 Toyo Umpaki Co. Ltd........................................ 51.33 Sanki Industrial Co........................................ 13.65 Kasagi Forklift, Inc....................................... 56.81 [[Page 42663]] All Other Japanese Manufacturers/Exporters 39.45 ------------------------------------------------------------------------ Since the imposition of the order, there have been four administrative reviews, 2 in which all the respondents subject to these reviews were found to have continued dumping. There were two scope rulings: first, at the request of Mitsubishi Heavy Industries to clarify whether a particular model forklift truck, the Mitsubishi FD-70, was within the scope of this antidumping duty order, the Department, by letter dated October 12, 1989, advised petitioner's counsel that it had determined that the Mitsubishi FD-70 internal- combustion, industrial forklift truck, was excluded from the scope of the order. Second, the Department published notice that it had determined that a particular model forklift truck produced by Nissan Motor Co., Ltd. and Nissan Forklift Truck Corporation, the Nissan F05- 70, was not within the scope of this antidumping duty order (63 FR 6722, February 10, 1998). --------------------------------------------------------------------------- \2\ See Certain Internal-Combustion, Industrial Forklift Trucks from Japan; Final Results of Antidumping Duty Administrative Review, 57 FR 3167 (January, 28, 1992); Certain Internal-Combustion, Industrial Forklift Trucks from Japan; Final Results of Antidumping Duty Administrative Review, 59 FR 1374 (January 10, 1994); Certain Internal-Combustion, Industrial Forklift Trucks from Japan; Final Results of Antidumping Duty Administrative Review, 62 FR 34216 (June 25, 1997); Certain Internal-Combustion, Industrial Forklift Trucks from Japan; Final Results of Antidumping Duty Administrative Review, 62 FR 5592 (February 6, 1997). --------------------------------------------------------------------------- At the request of the domestic industry, during the 1989-1990 administrative review period, the Department conducted an anticircumvention investigation of four groups of manufacturers of certain internal-combustion, industrial forklift trucks from Japan (55 FR 6028). The petitioners alleged that four groups of forklift truck manufacturers were circumventing the antidumping duty order on forklift trucks by exporting forklift truck parts to the United States for assembly. In its final anticircumvention determination, the Department concluded, pursuant to section 781(b) of the Act, as amended,19 U.S.C. Sec. 1677j(b) (1988), that the difference in value between the parts imported into the United States and the trucks sold in the United States was not small, as required by the statute (55 FR 6028, February 21, 1990). Based on this conclusion, the Department determined that the manufacturers were not circumventing the antidumping duty order. Background On April 1, 1999, the Department initiated a sunset review of the antidumping order on certain internal-combustion, industrial forklift trucks from Japan (64 FR 15727), pursuant to section 751(c) of the Act. The Department received a Notice of Intent to Participate on behalf of NACCO Materials Handling Group, Inc. (``NMHG'') and Clark Material Handling Company (``Clark'') within the applicable deadline (April 16, 1998) specified in section 351.218(d)(1)(i) of the Sunset Regulations. Clark and NMHG claimed interested party status under section 771(9)(C) of the Act as U.S. manufacturers of a domestic like product. We received their complete substantive responses to the notice of initiation on April 29, 1999 and May 3, 1999, respectively. Without a substantive response from respondent parties, the Department, pursuant to 19 CFR 351.218 (e)(1)(ii)(C), determined to conduct an expedited, 120-day review of this order. Determination In accordance with section 751(c)(1) of the Act, the Department conducted this review to determine whether revocation of the antidumping order would be likely to lead to continuation or recurrence of dumping. Section 752(c) of the Act provides that, in making this determination, the Department shall consider the weighted-average dumping margins determined in the investigation and subsequent reviews and the volume of imports of the subject merchandise for the period before and the period after the issuance of the antidumping order, and shall provide to the International Trade Commission (the Commission) the magnitude of the margin of dumping likely to prevail if the order is revoked. The Department's determinations concerning continuation or recurrence of dumping and the magnitude of the margin are discussed below. In addition, domestic interested parties' comments with respect to continuation or recurrence of dumping and the magnitude of the margin are addressed within the respective sections below. Continuation or Recurrence of Dumping Drawing on the guidance provided in the legislative history accompanying the Uruguay Round Agreements Act (``URAA''), specifically the Statement of Administrative Action (``the SAA''), H.R. Doc. No. 103-316, vol. 1 (1994), the House Report, H.R. Rep. No. 103-826, pt.1 (1994), and the Senate Report, S. Rep. No. 103-412 (1994), the Department issued its Sunset Policy Bulletin providing guidance on methodological and analytical issues, including the bases for likelihood determinations. In its Sunset Policy Bulletin, the Department indicated that determinations of likelihood will be made on an order-wide basis (see section II.A.2). In addition, the Department indicated that normally it will determine that revocation of an antidumping order is likely to lead to continuation or recurrence of dumping where (a) Dumping continued at any level above de minimis after the issuance of the order, (b) imports of the subject merchandise ceased after the issuance of the order, or (c) dumping was eliminated after the issuance of the order and import volumes for the subject merchandise declined significantly (see section I I.A.3). In addition to consideration of the guidance on likelihood cited above, section 751(c)(4)(B) of the Act provides that the Department shall determine that revocation of an order is likely to lead to continuation or recurrence of dumping where a respondent interested party waives its participation in the sunset review. In the instant review, the Department did not receive a response from any respondent interested party. Pursuant to section 351.218(d)(2)(iii) of the Sunset Regulations, this constitutes a waiver of participation. In its substantive response, NMHG argues that actions taken by the manufacturers and exporters of Japanese internal-combustion, industrial forklift trucks during the life of the order, including the dramatic decline in imports from Japan consequent to the antidumping duty order and subsequent administrative reviews, particularly in combination with the fact that Japanese manufacturers and exporters continued to dump after the order was issued, are a strong indication that dumping in the United States is likely to recur should the order be revoked (see May 3, 1999 Substantive Response of NMHG at 8). With respect to whether dumping continued at any level above de minimis after the issuance of the order, NMHG and Clark assert that during the four administrative reviews since the 1989 imposition of the order, all respondents subject to the reviews were found to have continued dumping at substantial margins (see May 3, 1999 Substantive Response of NMHG at 10 and April 30, 1999 Substantive Response of Clark at 3). With respect to whether imports of the subject merchandise ceased after the issuance of the order, or dumping was eliminated after the issuance of the [[Page 42664]] order and import volumes for the subject merchandise declined significantly, Clark asserts that two of the exporters initially assessed antidumping duties and subject to reviews, ceased importing after 1992 (see April 30, 1999 Substantive Response of Clark at 3). Both Clark and NMHG note a significant decline in the volume of imports of subject merchandise since the order was imposed. Citing U.S. Department of Commerce statistics, NMHG asserts that imports of the subject merchandise have decreased from 25,663 units in 1986, the year immediately preceding the filing of the petition, to 9,522 units in 1998 (see May 3, 1999 Substantive Response of NMHG at 20). Further, NMHG argues that recent data do not reflect imports of the subject merchandise, and should in fact be estimated to be lower, as the Japanese Industrial Vehicles Association (``JIVA'') reported only 384 internal-combustion trucks were shipped to the United States in 1998, many of which were over 15,000 lbs. capacity (see May 3, 1999 Substantive Response of NMHG at 20), and thus outside the scope of the order. Additionally, Clark argues that there are other factors, such as Japan's domestic recession during the past three years, which support a finding that dumping would recur if the order were revoked. Clark argues that despite declining prices in the U.S. market during the past nine months, Japanese manufacturers are desperate to make export sales even at prices below costs (see April 30, 1999 Substantive Response of Clark at 4). Furthermore, if the dumping order were revoked, Japanese manufacturers would increase exports from their severely underutilized factories and, where they also own U.S. production factories, substitute imports for U.S. production (see April 30, 1999 Substantive Response of Clark at 4). In conclusion, the domestic parties argue that the Department should determine that there is a likelihood that dumping would continue were the order revoked because (1) Dumping margins above de minimis levels have continued throughout the life of the order, (2) imports of subject merchandise have continued since the issuance of the order, but are significantly below pre-order levels, or ceased altogether, as in the case of two exporters subject to the original investigation and administrative reviews, (3) recent U.S. Department of Commerce data on imports of the subject merchandise are in fact overestimated, and (4) Japanese manufacturers, desperate to make export sales even at prices below costs, would increase exports from their severely underutilized factories and, where they also own U.S. production factories, substitute imports for U.S. production. As discussed in Section II.A.3 of the Sunset Policy Bulletin, the SAA at 890, and the House Report at 63-64, if companies continue dumping with the discipline of an order in place, the Department may reasonably infer that dumping would continue if the discipline were removed. Dumping margins above de minimis levels continue to exist for shipments of the subject merchandise from all Japanese manufacturers/ exporters (62 FR 5592, February 6, 1997). Consistent with section 752(c) of the Act, the Department also considered the volume of imports before and after issuance of the order. By examining U.S. Census Bureau IM146 reports and the margins in the original investigation and subsequent administrative reviews, the Department finds imports of the subject merchandise decreased sharply following the imposition of the order. Moreover, although some imports continued throughout the life of the order, margins increased. Based on this analysis, the Department finds that the existence of dumping margins after the issuance of the order is highly probative of the likelihood of continuation or recurrence of dumping. Deposit rates for exports of the subject merchandise by all known Japanese manufacturers and exporters exceed de minimis levels. Therefore, given that dumping has continued over the life of the order, respondent interested parties have waived their right to participate in this review before the Department, and absent argument and evidence to the contrary, the Department determines that dumping is likely to continue if the order were revoked. Magnitude of the Margin In the Sunset Policy Bulletin, the Department stated that it will normally provide to the Commission the margin that was determined in the final determination in the original investigation. Further, for companies not specifically investigated or for companies that did not begin shipping until after the order was issued, the Department normally will provide a margin based on the ``all others'' rate from the investigation (see section II.B.1 of the Sunset Policy Bulletin). Exceptions to this policy include the use of a more recently calculated margin, where appropriate, and consideration of duty absorption determinations (see sections II.B.2 and 3 of the Sunset Policy Bulletin). The Department, in its notice of the antidumping duty order on internal-combustion industrial forklift trucks from Japan, identified company-specific margins for imports of the subject merchandise from Japan as established in the original investigation (53 FR 20882, June 7, 1988). As noted above, the Department has conducted four administrative reviews of this order. Further, we note that, to date, the Department has not issued any duty absorption findings in this case. Both Clark and NMHG argue that, with the exception of Toyota, the margins in the original investigation are probative of the behavior of Japanese forklift truck producers/exporters. NMHG asserts that Toyota's dumping at an even higher rate after the imposition of the order is compelling evidence that this respondent would dump at least to the same degree without the discipline of the antidumping duty order if revocation were to be granted (see May 3, 1999 Substantive Response of NMHG at 13). In its substantive response NMHG argues that the Department should therefore use, in its report to the Commission, Toyota's 47.79 percent margin calculated in the most recent administrative review (62 FR 5592 (February 6, 1997)) instead of the 17.29 percent margin from the original investigation. With respect to the behavior of Japanese forklift truck producers/ exporters other than Toyota, the Department finds that the margins in the original investigation are probative of their behavior if the order were to be revoked. With respect to Toyota, we disagree with the domestic interested parties' assertion that we should use the most recently calculated margin for Toyota simply because it is higher than the original margin. However, we have reviewed the level of imports and Toyota's dumping margins over the life of the order. Since Toyota is not participating in this review and, therefore, we do not have company-specific export volume and value data, we relied on publicly available U.S. customs value data. Specifically, we found that import volumes decreased after the issuance of the order through 1992 (based on import statistics provided by NMHG). Further, we found that imports began increasing in 1993, and then increased significantly from 1993 to 1994, and again, from 1994 to 1995. During these same time periods, Toyota's dumping margin increased from a low of 6.87 percent to 31.58 percent and again to 47.79 percent. In addition, we note that the two other Japanese producers/exporters subject to [[Page 42665]] the administrative reviews covering these periods were found not to have made any shipments. Therefore, we view the order-wide data as an appropriate surrogate for Toyota. According to the Sunset Policy Bulletin, ``a company may choose to increase dumping in order to maintain or increase market share. As a result, increasing margins may be more representative of a company's behavior in the absence of an order'' (see section II.B.2 of the Sunset Policy Bulletin). In addition, the Sunset Policy Bulletin notes that the Department will normally consider market share. However, absent information on market share, and absent argument or evidence to the contrary, we have relied on import values in the present case. Therefore, in light of the correlation between an increase in imports and an increase in Toyota's dumping margins, the Department finds Toyota's more recent rate from the last administrative review 3 (62 FR 5592 February 6, 1997)) to be the most probative of Toyota's behavior if the order were revoked. For all companies other than Toyota, the Department will report to the Commission the rate from the original investigation (53 FR 12552 April 15, 1988) as contained in the Final Results of Review section of this notice. --------------------------------------------------------------------------- \3\ See Certain Internal-Combustion Industrial Forklift Trucks from Japan: Amended Final Results of Antidumping Duty Administrative Review, 62 FR 12598 (March 17, 1997). --------------------------------------------------------------------------- Final Results of Review As a result of this review, the Department finds that revocation of the antidumping duty order would likely lead to continuation or recurrence of dumping at the margin listed below: ------------------------------------------------------------------------ Margin Manufacturer/exporter (percent) ------------------------------------------------------------------------ Toyota Motor Corp.......................................... 47.79 Nissan Motor Corp.......................................... 51.33 Komatsu Forklift Co., Ltd.................................. 47.50 Sumitomo-Yale Co., Ltd..................................... 51.33 Toyo Umpaki Co. Ltd........................................ 51.33 Sanki Industrial Co........................................ 13.65 Kasagi Forklift, Inc....................................... 56.81 All Other Japanese Manufacturers/Exporters................. 39.45 ------------------------------------------------------------------------ This notice serves as the only 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 351.305 of the Department's regulations. Timely notification of return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation. This five-year (``sunset'') review and notice are in accordance with sections 751(c), 752, and 777(i)(1) of the Act. Dated: July 30, 1999. Joseph A. Spetrini, Acting Assistant Secretary for Import Administration. [FR Doc. 99-20217 Filed 8-4-99; 8:45 am] BILLING CODE 3510-DS-P