[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]


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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.

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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.
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    \1\ See Certain Internal-Combustion Industrial Forklift Trucks 
from Japan; Final Results of Antidumping Duty Administrative Review, 
62 FR 5592 (February 6, 1997).
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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).
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    \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).
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    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.
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    \3\ See Certain Internal-Combustion Industrial Forklift Trucks 
from Japan: Amended Final Results of Antidumping Duty Administrative 
Review, 62 FR 12598 (March 17, 1997).
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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