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.

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 Cir. 2003) (Nonprecedential).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 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:

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.