E6-12554. Dynamic Random Access Memory Semiconductors of One Megabit or Above From the Republic of Korea; Notice of Amended Final Results Pursuant to Court Decision

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On April 5, 2006, the United States Court of International Trade (CIT) sustained the final remand redetermination made by the Department of Commerce (the Department) pursuant to the CIT's third remand of the final results of the 1997-1998 administrative review of dynamic random access memory semiconductors of one megabit or above (DRAMs) from the Republic of Korea (Korea). See Hyundai Electronics Industries Co., Ltd. and Hyundai Electronics America, Inc. v. United States and Micron Technology, Inc., 425 F. Supp. 2d 1321 (CIT 2006) (Hyundai IV). Because all litigation in this matter has now concluded, the Department is now issuing its amended final results in accordance with the CIT's decision.

Effective Date: August 3, 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, D.C. 20230; telephone: [phone] or 482-3814, respectively.

SUPPLEMENTARY INFORMATION:

Background

On December 14, 1999, the Department published a notice of final results of the antidumping duty administrative review of DRAMs from Korea covering the period May 1, 1997 through April 30, 1998. See Dynamic Random Access Memory Semiconductors of One Megabit or Above From the Republic of Korea, 64 FR 69694 (Dec. 14, 1999) (Final Results). Subsequently, Hyundai Electronics Industries Co., Ltd. (Hyundai) ^[1] filed suit at the CIT contesting the Final Results.

In the Final Results, the Department determined that: (1) The use of total adverse facts available (AFA) was warranted for LG Semicon (LG) (see Final Results at 64 FR 69695); (2) Hyundai and LG's reported research and development (R&D) expenses did not reflect the appropriate R&D cost of the subject merchandise (see Final Results at 64 FR 69702); and (3) the reduced R&D costs recognized by Hyundai and LG, through the amortization and deferral of their R&D expenses, did not reasonably reflect the R&D cost of the subject merchandise (see Final Results at 64 FR 69700).

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) (Hyundai I). In its remand, the Court ordered the Department to: (1) Recalculate LG's dumping margin by application of AFA to only a portion of its U.S. sales; (2) provide additional information regarding the effect of non-subject merchandise 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 and LG's actual R&D expenses for the period of review 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 its first redetermination on remand, the Department: (1) Recalculated LG's dumping margin using 89.10 percent as partial AFA; (2) provided information to demonstrate that Hyundai and LG's production of subject merchandise has benefitted from cross-fertilization; (3) recalculated LG and Hyundai's R&D costs to allow for amortization, and (4) expensed Hyundai and LG's deferred R&D costs in the period incurred and explained why deferral of certain R&D expenses does not reasonably reflect the R&D expenses related to the subject merchandise.

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) (Hyundai II), the Court sustained the Department's application of 89.10 percent as partial AFA, and its use of amortized R&D expenses for calculating Hyundai and LG's respective costs of production. The Court remanded the Department's cross-fertilization determination with instructions to recalculate Hyundai and LG's R&D expenses without application of the cross-fertilization theory, and also remanded the Department's recognition of all of Hyundai 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 and Hyundai's cost amortization methodology, as stated in the Final Results, shall be reinstated in accordance with Hynix Semiconductor Inc. v. United States, 424 F.3d 1363 (Fed. Cir. 2005) (Hynix IV). However, the Court denied the Department's motion that its original findings rejecting LG and Hyundai's R&D deferral methodology, as stated in the Final Results, be reinstated in accordance with Hynix IV.

On April 5, 2006, the CIT found that the Department complied with the CIT's remand order in Hyundai III and sustained the Department's remand redetermination. See Hyundai IV, 425 F. Supp.2d at 1321. On June 5, 2006, consistent with the decision of the U.S. Court of Appeals for the Federal Circuit, in Timken Co. v. United States, 893 F. 2d 337 (Fed. Cir. 1990), the Department notified the public that the CIT's decision was “not in harmony” with the Department's Final Results. See 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, 71 FR 32305 (June 5, 2006). We are issuing amended final results to reflect the results of the remand determinations because no party has further appealed and there is now a final and conclusive decision in the court proceeding.

Amended Final Results of Review

We are amending the final results of the 1997-1998 administrative review of the antidumping duty order on DRAMs from the Republic of Korea for LG and Hyundai. The revised weighted-average dumping margin for LG is 15.87 percent and the revised weighted-average dumping margin for Hyundai is 3.76 percent.

Assessment

The Department shall determine, and the U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries. In accordance with section 351.212(b)(1) of the Department's regulations, we have calculated importer-specific assessment rates by dividing the dumping margins found on the subject merchandise examined by the estimated entered value of such merchandise. Where the importer-specific assess rates are above de minimis, we will instruct CBP to assess antidumping duties on that importer's entries of subject merchandise. The Department will issue appropriate assessment instructions directly to CBP within 15 days of publication of these amended final results of review.

These amended final results of administrative review are issued and published in accordance with section 516A(c)(1) of the Act.

Dated: July 26, 2006.

David M. Spooner,

Assistant Secretary for Import Administration.

Footnotes

1.  After the 1997-1998 administrative review was completed, respondent Hyundai acquired LG Semicon. Subsequent to the acquisition the name of the combined company was changed to Hynix Semiconductor, Inc.