[Federal Register: December 24, 2003 (Volume 68, Number 247)]
[Notices]
[Page 74552-74553]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24de03-49]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-580-839]
Certain Polyester Staple Fiber from the Republic of Korea: Notice
of Amended Final Determination and Amended Order Pursuant to Final
Court Decision
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Notice of Amended Final Determination and Amended Order
Pursuant to Final Court Decision on Polyester Staple Fiber from the
Republic of Korea.
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SUMMARY: On August 22, 2002, the Court of International Trade (``CIT'')
affirmed the Department's second remand determination and entered a
judgment order in Geum Poong Corporation and Sam Young Synthetics Co.
Ltd. v. United States v. E.I. Dupont De Nemours, Inc., et. al., Slip.
Op. 02-95, 2002 Ct. Intl. Trade LEXIS 94 (CIT 2002), a lawsuit
challenging certain aspects of the Department of Commerce's (``the
Department'') Notice of Final Determination of Sales at Less Than Fair
Value: Certain Polyester Staple Fiber from the Republic of Korea and
Antidumping Duty Orders: Certain Polyester Staple Fiber from the
Republic of Korea and Taiwan, 65 FR 16880 (March 30, 2000) and
accompanying Issues and Decision Memorandum (March 22, 2000) (``Issues
and Decision Memorandum''), and Notice of Amended Final Determination
of Sales at Less Than Fair Value: Certain Polyester Staple Fiber from
the Republic of Korea, and Antidumping Duty Orders: Certain Polyester
Staple Fiber from the Republic of Korea and Taiwan, 65 FR 33807 (May
25, 2000) (collectively, ``Final Determination''). The Department
appealed this decision. On October 9, 2003, the CIT's opinion upholding
the Department's final remand was affirmed without opinion by the U.S.
Court of Appeals for the Federal Circuit. See Geum Poong Corp. and Sam
Young Synthetics Co. v. United States, et. al, Court No. 03-1056, 1057,
2003 U.S. App. LEXIS 21438 (Fed. Cir. 2003) (Nonprecedential).
In its remand determination, the Department reviewed the record
evidence and derived a facts available profit cap using the financial
statements of Saehan Industries, Inc., (``Saehan'') and SK Chemical Co.
Ltd., (``SK Chemical''), and calculated a profit rate for Geum Poong
Corporation (``Geum Poong'') using the same information.
As a result of the remand determination, Geum Poong will be
excluded from the antidumping duty order on certain polyester staple
fiber from Korea because its antidumping rate decreased from 14.10
percent to 0.12 percent (de minimis). The All-Others rate decreased
from 11.38 percent to 7.91 percent. The antidumping duty rates for
respondents Sam Young Synthetics Co. (``Sam Young''), and Samyang
Corporation (``Samyang'') were unchanged from the Final Determination.
As there is now a final and conclusive court decision in this action,
we are amending our Final Determination.
EFFECTIVE DATE: December 24, 2003.
FOR FURTHER INFORMATION CONTACT: Andrew McAllister or Judith Rudman,
Group I, Office 1, Import Administration, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, N.W., Washington, D.C. 20230; telephone: (202)
482-1174, or(202) 482-0192, respectively.
SUPPLEMENTARY INFORMATION:
Background
Following the publication of the Final Determination, the
petitioners and the respondents in this case filed lawsuits with the
CIT challenging the Department's Final Determination.
In the underlying investigation, the Department was required to
calculate a CV profit rate for Geum Poong. Based on the information on
the record, the Department determined that a combination of the CV
profit rates calculated for the other respondents, Sam Young and
Samyang, and a general profit ratio for the entire man-made fibers
industry in Korea, extracted from a Bank of Korea (``BOK'')
publication, was a reasonable method for calculating Geum Poong's
profit and was permissible under section 773 (e)(2)(B)(iii) of the Act.
(See Final Determination).
In its September 6, 2001, opinion, the Court affirmed certain
aspects of the Department's method for calculating Geum Poong's CV
profit. (See Geum Poong Corp. v. United States, 163 F. Supp. 2d. 669
(CIT 2002) (``Geum Poong I''). The Court also remanded certain aspects
of the Department's determination. Specifically, the Court stated that
the Department had not
[[Page 74553]]
adequately explained why a profit cap was not available and, even
assuming a profit cap could not be applied, the Department had not
adequately explained why the profit methodology it selected was
reasonable. Id. at 678-9.
On October 5, 2001, the Department submitted its Final Results of
Redetermination Pursuant to Court Remand (``Redetermination I'') in
response to the Court's remand order in Geum Poong I. In that
redetermination, the Department stated its view that as a matter of law
none of the profit information on the record of this proceeding could
be used as a profit cap because all of the profit rates under
consideration included, or likely included, profits on non-Korean
sales. The Department further provided an explanation of its decision
to reject certain profit data and to combine other profit rates to
calculate the CV profit rate for Geum Poong.
In Geum Poong Corporation and Sam Young Synthetics Co., Ltd. v.
United States v. E. I. Dupont De Nemours, Inc., et. al., Slip Op 02-26
(March 8, 2002) (``Geum Poong II''), the Court remanded again the issue
of Geum Poong's CV profit.
We released the Draft Redetermination Pursuant to Court Remand
(``Draft Results'') to interested parties on April 16, 2002. Comments
on the Draft Results were received from the petitioners, Geum Poong and
Sam Young on April 23, 2002. On April 30, 2002, the Department
responded to the Court's Order of Remand by filing its Final Results of
Redetermination Pursuant to Court Remand (``Final Results of
Redetermination'').
In the Final Results of Redetermination, we calculated a ``facts
available profit cap'' using the financial statements of Saehan and SK
Chemical. As per the Court's express instructions, we used this ``facts
available profit cap'' as the CV profit rate for Geum Poong.
The CIT affirmed the Department's Final Results of Redetermination
on August 22, 2002. See Geum Poong Corporation and Sam Young Synthetics
Co., Ltd. v. United States v. E.I. Dupont De Nemours, Inc., Court No.
00-06-00298, Slip. Op. 02-95 (CIT 2002). The Department appealed this
decision. On October 9, 2003, the CIT's decision was affirmed by the
United States Court of Appeals for the Federal Circuit. See Geum Poong
Corp. and Sam Young Synthetics Co. V. United States, et. al, Court No.
03-1056, 1057, 2003 U.S. App. LEXIS 21438 (Fed. Cir. 2003)
(Nonprecedential). On September 30, 2002, the Department published
Certain Polyester Staple Fiber from the Republic of Korea: Notice of
Court Decision and Suspension of Liquidation (``Timken Notice''). See
67 FR at 61316. No party appealed the Federal Circuit opinion.
Accordingly, we are now publishing the Amended Final Determination as
provided in the Timken Notice.
Amendment to the Final Determination
Because there is now a final and conclusive decision in the court
proceeding, effective as of the publication date of this notice, we are
amending the Final Determination and establishing the following revised
weighted-average dumping margins:
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Weighted-average
Exporter/manufacturer margin percentage
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Geum Poong Corporation Ltd.......................... 0.12 (de minimis)
All-Others.......................................... 7.91
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The antidumping duty rates for respondents Sam Young and Samyang
were unchanged from the Final Determination. The Department will issue
appraisement instructions directly to U.S. Customs and Border
Protection (``CBP''). The Department will instruct CBP to revise cash
deposit rates for all parties subject to the All-Others rate, effective
as of the publication of this notice. Furthermore, we will instruct CBP
to liquidate entries from Geum Poong, which have been suspended
pursuant to the antidumping duty order. In accordance with the Court's
decision, Geum Poong is now excluded from the antidumping duty order
and its entries should be liquidated without regard to antidumping
duties.
This notice is issued and published in accordance with section
751(a)(1) of the Act.
Dated: December 17, 2003.
James J. Jochum,
Assistant Secretary for for Import Administration.
[FR Doc. 03-31775 Filed 12-23-03; 8:45 am]