99-20217. Final Results of Expedited Sunset Review: Internal-Combustion, Industrial Forklift Trucks From Japan [A-588-703]  

  • [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
    
    
    

Document Information

Effective Date:
8/5/1999
Published:
08/05/1999
Department:
International Trade Administration
Entry Type:
Notice
Action:
Notice of final results of expedited sunset review: certain internal-combustion, industrial forklift trucks from Japan.
Document Number:
99-20217
Dates:
August 5, 1999.
Pages:
42662-42665 (4 pages)
PDF File:
99-20217.pdf