[Federal Register Volume 67, Number 189 (Monday, September 30, 2002)]
[Notices]
[Pages 61316-61317]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-24775]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-580-839]


Certain Polyester Staple Fiber from the Republic of Korea: Notice 
of Court Decision and Suspension of Liquidation

AGENCY: International Trade Administration, Import Administration, 
Department of Commerce.
SUMMARY: On August 22, 2002, in Geum Poong Corporation and Sam Young 
Synthetics Co., Ltd. v. United States v. E.I. Dupont De Nemours, Inc., 
et. al., Court No. 00-06-00298, Slip. Op. 02-95 (CIT 2002), a lawsuit 
challenging the Department of Commerce's (``the Department's'') 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, FR 65 16880

[[Page 61317]]

(March 30, 2000) and accompanying 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 Court of International Trade (``CIT'') 
affirmed the Department's second remand redetermination and entered a 
judgment order. In the instant remand redetermination, in accordance 
with the Court's order, 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 redetermination, Geum Poong will be 
excluded from the antidumping duty order on certain polyester staple 
fiber from Korea because its antidumping rate was decreased from 14.10 
percent to 0.12 percent (de minimis). The ``all others'' rate was 
decreased from 11.38 percent, established in the Final Determination, 
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.
    This decision was not in harmony with the Department's original 
Final Determination. Consistent with the decision of the Court of 
Appeals for the Federal Circuit in Timken Co. v. United States, 893 
F.2d 337 (Fed. Cir. 1990) (``Timken''), the Department will continue to 
order the suspension of liquidation of the subject merchandise until 
there is a ``conclusive'' decision in this case. If the case is not 
appealed, or if it is affirmed on appeal, the Department will instruct 
the U.S. Customs Service to terminate the suspension of liquidation for 
Geum Poong and revise the all others cash deposit rate.

EFFECTIVE DATE: September 30, 2002.

FOR FURTHER INFORMATION CONTACT: Jarrod Goldfeder or Scott Holland, 
Office 1, Group 1, AD/CVD Enforcement, Import Administration, 
International Trade Administration, U.S. Department of Commerce, 14th 
Street and Constitution Ave., NW., Washington, D.C. 20230, telephone: 
(202) 482-0189 or (202) 482-1279, 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 
(Ct. Int'l Trade 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, Commerce had not adequately explained why the profit 
methodology it selected was reasonable. Id. at 678-9.
    On October 5, 2001, Commerce 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, Commerce 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. Commerce 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 and 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 Court 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).

Suspension of Liquidation

    The U.S. Court of Appeals for the Federal Circuit in Timken held 
that the Department must publish notice of a decision of the CIT or the 
Federal Circuit which is not ``in harmony'' with the Department's Final 
Determination. Publication of this notice fulfills that obligation. The 
Federal Circuit also held that the Department must suspend liquidation 
of the subject merchandise until there is a ``conclusive'' decision in 
the case. Therefore, pursuant to Timken, the Department must continue 
to suspend liquidation pending the expiration of the period to appeal 
the CIT's August 22, 2002, decision or, if that decision is appealed, 
pending a final decision by the Federal Circuit. The Department will 
instruct the U.S. Customs Service to revise cash deposit instructions 
and liquidate relevant entries covering the subject merchandise 
effective September 30, 2002, in the event that the CIT's ruling is not 
appealed.

    Dated: September 23, 2002.
Faryar Shirzad,
Assistant Secretary for Import Administration.
[FR Doc. 02-24775 Filed 9-27-02; 8:45 am]
BILLING CODE 3510-DS-S