Steel Jacks From Canada; Final Results of Antidumping Duty Administrative Review

DEPARTMENT OF COMMERCE

[A-122-006]

Steel Jacks From Canada; Final Results of Antidumping Duty

Administrative Review

AGENCY: Import Administration, International Trade Administration,

Department of Commerce.

ACTION: Notice of Final Results of Antidumping Duty Administrative

Review.

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SUMMARY: On October 16, 1995, the Department of Commerce (the

Department) published the preliminary results of its administrative

review of the antidumping finding on steel jacks from Canada. The

review covers two manufacturers/exporters of this merchandise to the

United States, New-Form Manufacturing Co., Ltd. (NFM) and Seeburn Metal

Products (Seeburn). The period covered is September 1, 1993 through

August 31, 1994. The review indicates the existence of dumping margins

for this period.

We gave interested parties an opportunity to comment on our

preliminary results. We have adjusted NFM's margin for these final

results, based on our analysis of the comments received and as a result

of a changed treatment of home market consumption taxes, as explained

below.

EFFECTIVE DATE: February 21, 1996.

FOR FURTHER INFORMATION CONTACT: Thomas Killiam or John Kugelman,

Office of Antidumping Compliance, Import Administration, International

Trade Administration, U.S. Department of Commerce, 14th Street and

Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-

5253.

SUPPLEMENTARY INFORMATION:

Background

On October 16, 1995, the Department published in the Federal

Register (60 FR 53584) the preliminary results of its 1993-94

administrative review of the antidumping finding on steel jacks from

Canada (31 FR 7485, May 17, 1966).

Applicable Statute and Regulations

The Department has now completed this administrative review in

accordance with section 751 of the Tariff Act of 1930, as amended (the

Act). Unless otherwise indicated, all citations to the statute and to

the Department's regulations are in reference to the provisions as they

existed on December 31, 1994.

Scope of the Review

Imports covered by this review are multi-purpose hand-operated

heavy-duty steel jacks, used for lifting, pulling, and pushing,

measuring from 36 inches to 64 inches high, assembled, semi-assembled

and unassembled, including jack parts, from Canada. The merchandise is

currently classified under Harmonized Tariff Schedule (HTS) item number

8425.49.00. The HTS number is provided for convenience and Customs

purposes. The written description remains dispositive.

This review covers two manufacturers/exporters, NFM and Seeburn.

The period of review (POR) is September 1, 1993 through August 31,

1994.

Home Market Consumption Taxes

In light of the Federal Circuit's decision in Federal Mogul v.

United States, CAFC No. 94-1097, the Department has changed its

treatment of home market consumption taxes. Where merchandise exported

to the United States is exempt from the consumption tax, the Department

will add to the U.S. price (USP) the absolute amount of such taxes

charged on the comparison sales in the home market. This is the same

methodology that the Department adopted following the decision of the

Federal Circuit in Zenith Electronics Corp. v. United States, 988 F. 2d

1573, 1577 (Fed. Cir. 1993), (Zenith), and which was suggested by that

court in footnote 4 of its decision. The Court of International Trade

(CIT) overturned this methodology in Federal Mogul v. United States,

834 F. Supp. 1391 (1993), and the Department acquiesced in the CIT's

decision. The Department then followed the CIT's preferred methodology,

which was to calculate the tax to be added to USP by multiplying the

adjusted USP by the foreign market tax rate; the Department made

adjustments to this amount so that the tax adjustment would not alter a

``zero'' pre-tax dumping assessment.

The foreign exporters in the Federal Mogul case, however, appealed

that decision to the Federal Circuit, which reversed the CIT and held

that the statute did not preclude Commerce from using the ``Zenith

footnote 4'' methodology to calculate tax-neutral dumping assessments

(i.e., assessments that are unaffected by the existence or amount of

home market consumption taxes). Moreover, the Federal Circuit

recognized that certain international agreements of the United States,

in particular the General Agreement on Tariffs and Trade (GATT) and the

Tokyo Round Antidumping Code, required the calculation of tax-neutral

dumping assessments. The Federal Circuit remanded the case to the CIT

with instructions to direct Commerce to determine which tax methodology

it will employ.

The Department has determined that the ``Zenith footnote 4''

methodology should be used. First, as the Department has explained in

numerous administrative determinations and court filings over the past

decade, and as the Federal Circuit has now recognized, Article VI of

the GATT and Article 2 of the Tokyo Round Antidumping Code required

that dumping assessments be tax-neutral. This requirement continues

under the new Agreement on Implementation of Article VI of the GATT.

Second, the Uruguay Round Agreements Act (URAA) explicitly amended the

antidumping law to remove consumption taxes from the home market price

and to eliminate the addition of taxes to USP, so that no consumption

tax is included in the price in either market. The Statement of

Administrative Action (p. 159) explicitly states that this change was

intended to result in tax neutrality.

While the ``Zenith footnote 4'' methodology is slightly different

from the URAA methodology, in that section 772(d)(1)(C) of the pre-URAA

law required that the tax be added to USP rather than subtracted from

home market price, it does result in tax-neutral duty assessments. In

sum, the Department has elected to treat consumption taxes in a manner

consistent with its longstanding policy of tax-neutrality and with the

GATT.

Seeburn

On February 3, 1995, the Department determined that the products

exported by Seeburn were automobile tire jacks outside the scope of the

antidumping finding on steel jacks from Canada (see February 3, 1995

Memorandum of Final Scope Ruling). Therefore, because Seeburn had no

shipments of subject merchandise during the POR and Seeburn has never

before been reviewed, we are assigning Seeburn the ``all others'' rate.

Analysis of Comments Received

We received comments from the petitioner, Bloomfield Manufacturing

Co., Inc. (Bloomfield).

Comment 1: Bloomfield argues that the Department was correct in

adding U.S. direct selling expenses (two commissions and credit

expenses) to

[[Page 6628]]

foreign market value (FMV) since the U.S. sales were purchase price

(PP) transactions. However, according to the petitioner, the Department

used incorrect amounts for these expenses for certain U.S. sales.

Department's Position: In the preliminary review results, for

certain U.S. sales we incorrectly divided per-unit, rather than total,

expense amounts by the total quantity sold. Therefore, we agree with

Bloomfield, and for these final results we have used the correct

expense amounts for these sales.

Comment 2: The petitioner claims that the Department should have

included in its analysis home market and U.S. sales of product 1020,

and a missing U.S. sale of product 1120.

Department's Position: We agree with the petitioner. These sales

were inadvertently omitted from the preliminary analysis. We have

included them in these final results.

Final Results of Review

As a result of our analysis of the comments received, we determine

that the following margins exist:

------------------------------------------------------------------------

Margin

Review period Manufacturer/Exporter (percent)

------------------------------------------------------------------------

9/1/93-8/31/94....................... NFM................... 22.63

Seeburn............... *28.35

------------------------------------------------------------------------

*No shipments or sales subject to this review; because this firm has

never been reviewed, the rate is the all others rate explained in (4)

below.

Individual differences between the USP and FMV may vary from the

above percentages. The Department will issue appraisement instructions

directly to the U.S. Customs Service.

Furthermore, the following deposit requirements will be effective

for all shipments of subject merchandise entered, or withdrawn from

warehouse, for consumption on or after the publication date of these

final results, as provided for by section 751(a)(1) of the Act, and

will remain in effect until the final results of the next

administrative review:

(1) The cash deposit rates for the reviewed companies will be the

rates listed above;

(2) For previously reviewed or investigated 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, a prior

review, or the original less-than-fair-value (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) If neither the exporter nor the manufacturer is a firm covered

in this or any previous review conducted by the Department, the cash

deposit rate will be 28.35 percent, the ``all others'' rate established

in the first final results of review published by the Department (52 FR

32957, September 1, 1987).

This notice serves as a final reminder to importers of their

responsibility under 19 CFR Sec. 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 notice also serves as a 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 Sec. 353.34(d). Timely written

notification of the return/destruction of APO materials or conversion

to judicial protective order is hereby requested.

Failure to comply with the regulations and terms of an APO is a

sanctionable violation.

This administrative review and notice are in accordance with

section 751(a)(1) of the Act (19 U.S.C. 1675(a)(1)) and 19 CFR

Sec. 353.22.

Dated: February 12, 1996.

Susan G. Esserman,

Assistant Secretary for Import Administration.

[FR Doc. 96-3755 Filed 2-20-96; 8:45 am]

BILLING CODE 3510-DS-P