# Certain Internal-Combustion, Industrial Forklift Trucks From Japan; Preliminary Results of Antidumping Duty Administrative Review > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A96-20000 ## Record - **Collection:** Federal Register - **Document type:** Notice - **Published:** August 6, 1996 - **Citation:** 61 FR 40813 ## Text 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. ----------------------------------------------------------------------- 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A96-20000. Public record. Not legal advice.