E6-8684. Dynamic Random Access Memory Semiconductors of One Megabit or Above From the Republic of Korea; Notice of Court Decision Not in Harmony with Final Results of Administrative Review

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On April 5, 2006, the United States Court of International Trade (the Court) sustained the final remand redetermination made by the Department of Commerce (the Department) pursuant to the Court's remand of the final results of the 1997-1998 administrative review of dynamic random access memory semiconductors of one megabit or above from the Republic of Korea. See Hyundai Electronics Industries Co., Ltd. and Hyundai Electronics America, Inc., v. United States and Micron Technology, Inc., Court No. 00-01-00027, Slip Op. 06-46 (CIT 2006) (Hyundai IV). This case arises out of the Department's Dynamic Random Access Memory Semiconductors (DRAMS) of One Megabit or Above From the Republic of Korea: Final Results of Antidumping Duty Administrative Review and Determination Not to Revoke the Order in Part, 64 FR 69694 (December 14, 1999) (Final Results). The final judgment in this case was not in harmony with the Department's December 1999 Final Results.

EFFECTIVE DATE:

June 5, 2006.

FOR FURTHER INFORMATION CONTACT:

Ron Trentham or Tom Futtner, AD/CVD Operations, Office 4, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Ave., NW., Washington, DC 20230; telephone: [phone] or 482-3814, respectively.

SUPPLEMENTARY INFORMATION:

On April 16, 2004, the Court remanded the Department's Final Results, in Hyundai Electronics Industries, Co., Ltd., and Hyundai Electronics America Inc. v. United States and Micron Technology, Inc., 342 F. Supp. 2d 1141 (CIT 2004). In its remand, the Court ordered the Department to: (1) Recalculate LG Semicon's (LG's) dumping margin by application of adverse facts available (AFA) to only a portion of its U.S. sales; (2) provide additional information regarding the effect of non-subject merchandise research and development (R&D) on R&D for subject merchandise, or recalculate R&D costs on the most product-specific basis possible; (3) provide specific evidence showing how Hyundai Electronics Industries Co., Ltd. (Hyundai) and LG's actual R&D expenses for the review period are not reasonably accounted for in their amortized R&D costs, or accept their amortization of R&D expenses and; (4) provide additional information showing how R&D expenses that are currently deferred by Hyundai and LG affect production or revenue for the instant review period, or accept their deferral methodology.

In Hyundai Electronics Industries, Co., Ltd., and Hyundai Electronics America Inc. v. United States and Micron Technology, Inc., 395 F. Supp. 2d 1231 (CIT 2005) the Court sustained the Department's partial AFA rate for LG and its use of amortized R&D expenses for calculating Hyundai's and LG's respective costs of production. The Court remanded the Department's cross-fertilization determination with instructions to recalculate Hyundai's and LG's R&D expenses without application of the cross-fertilization theory, and also remanded the Department's recognition of all of Hyundai's and LG's 1997 R&D expenses for antidumping duty purposes with instructions to accept Hyundai's and LG's deferral methodology in calculating R&D expenses for their respective costs of production.

In Hyundai Electronics Industries, Co., Ltd., and Hyundai Electronics America Inc. v. United States and Micron Technology, Inc., 414 F. Supp. 2d 1289 (CIT 2006) (Hyundai III), the Court ordered that the Department's original findings rejecting LG's and Hyundai's cost amortization methodology, as stated in the Final Results, be reinstated in accordance with Hynix Semiconductor Inc. v. United States, 424 F.3d 1363 (Fed. Cir. 2005).

The Department submitted its final results of redetermination on remand to the Court on February 23, 2006. On April 5, 2006, the Court sustained the Department's remand results in all respects. See, Hyundai Electronics Industries, Co., Ltd., and Hyundai Electronics America Inc., v. United States and Micron Technology, Inc., Court No. 00-01-00027, Slip Op. 06-46 (CIT 2006).

Timken Notice

In its decision in Timken Co., v. United States, 893 F.2d 337, 341 (Fed. Cir. 1990) (Timken), the United States Court of Appeals for the Federal Circuit held that, pursuant to section 516a(e) of the Tariff Act of 1930, as amended (the Act), the Department must publish a notice of a court decision that is not “in harmony” with a Department determination, and must suspend liquidation of entries pending a “conclusive” court decision. The Court's decision in Hyundai IV on April 5, 2006, constitutes a final decision of the Court that is not in harmony with the Department's Final Results. This notice is published in fulfillment of the publication requirements of Timken. Accordingly, the Department will continue the suspension of liquidation of the subject merchandise pending the expiration of the period of appeal, or, if appealed, pending a final and conclusive court decision.

This notice is issued and published in accordance with section 516A(c)(1) of the Act.

Dated: May 30, 2006.

David M. Spooner,

Assistant Secretary for Import Administation.