Dynamic Random Access Memory Semiconductors of One Megabit or Above From the Republic of Korea: Final Results of Antidumping Duty Administrative Review

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

ACTION:

Notice of final results of Antidumping Duty Administrative Review.

SUMMARY:

On June 7, 2001, the Department of Commerce (the Department) published the preliminary results of administrative review of the antidumping duty order on dynamic random access memory semiconductors of one megabit or above (DRAMs) from the Republic of Korea. The merchandise covered by this order is DRAMs from the Republic of Korea. The review covers two manufacturers, Hyundai Electronics Industries Co., Ltd. and Hyundai Electronics America (collectively Hyundai), and LG Semicon Co., Ltd. and LG Semicon America (collectively LG), and six resellers of subject merchandise to the United States. The period of review (POR) is May 1, 1999, through December 31, 1999. Based on our analysis of the comments received, we have made changes in the margin calculations. Therefore, the final results differ from the preliminary results. The final weighted-average dumping margins for the reviewed firms are listed below in the section entitled “Final Results of the Review.”

EFFECTIVE DATE:

October 12, 2001.

FOR FURTHER INFORMATION CONTACT:

Paige Rivas or Ron Trentham, AD/CVD Enforcement, Office 4, Group II, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Ave., NW., Washington, DC 20230; telephone: (202) 482-0651 or 482-6320, respectively.

SUPPLEMENTARY INFORMATION:

The Applicable Statute

Unless otherwise indicated, all citations to the Tariff Act of 1930, as amended (the Act), are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Act by the Uruguay Round Agreements Act (URAA). In addition, unless otherwise indicated, all citations to the Department's regulations are to 19 CFR part 351 (1999).

Background

The antidumping duty order for DRAMs from Korea was revoked, pursuant to the sunset procedures established by statute, effective January 1, 2000. See Dynamic Random Access Memory Semiconductors (DRAMs) of One Megabit and Above From the Republic of Korea; Final Results of Full Sunset Review and Revocation of Order, 65 FR 1471366 (October 5, 2000). Therefore, we are conducting this review of exports of the subject merchandise to the United States by Hyundai Electronics Industries Co., Ltd. and LG Semicon Co., Ltd. (LG) for the 8-month period from May 1, 1999 through December 31, 1999.

On June 7, 2001, the Department published the preliminary results of administrative review of the antidumping duty order on DRAMs from Korea. See Dynamic Random Access Memory Semiconductors of One Megabit or Above From the Republic of Korea: Preliminary Results of Antidumping Duty Administrative Review and Notice of Intent Not to Revoke Order in Part, 66 FR 30688 (June 7, 2001) (Preliminary Results). As stated in the Preliminary Results, we are collapsing Hyundai and LG into one entity for the purposes of in this administrative review (collectively Hyundai). See Preliminary Results, 66 FR at 30690. We invited parties to comment on our preliminary results of review. On July 9, 2001, we received case briefs from Micron Technology, Inc. (Micron), the petitioner, and Hyundai. On July 13, 2001, we received rebuttal briefs from Micron and Hyundai. The petitioner requested a public hearing on July 12, 2001, and a public hearing was held on July 17, 2001. The Department has conducted this administrative review in accordance with section 751 of the Act.

Scope of Review

Imports covered by the review are shipments of DRAMs from Korea. Included in the scope are assembled and unassembled DRAMs. Assembled DRAMs include all package types. Unassembled DRAMs include processed wafers, uncut die, and cut die. Processed wafers produced in Korea, but packaged or assembled into memory modules in a third country, are included in the scope; wafers produced in a third country and assembled or packaged in Korea are not included in the scope.

The scope of this review includes memory modules. A memory module is a collection of DRAMs, the sole function of which is memory. Modules include single in-line processing modules (SIPs), single in-line memory modules (SIMMs), or other collections of DRAMs, whether unmounted or mounted on a circuit board. Modules that contain other parts that are needed to support the function of memory are covered. Only those modules which contain additional items which alter the function of the module to something other than memory, such as video graphics adapter (VGA) boards and cards, are not included in the scope. The scope of this review also includes video random access memory semiconductors (VRAMS), as well as any future packaging and assembling of DRAMs; and, removable memory modules placed on motherboards, with or without a central processing unit (CPU), unless the importer of motherboards certifies with the Customs Service that neither it nor a party related to it or under contract to it will remove the modules from the motherboards after importation. The scope of this review does not include DRAMs or memory modules that are reimported for repair or replacement.

The DRAMS and modules subject to this review are currently classifiable under subheadings 8471.50.0085, 8471.91.8085, 8542.11.0024, 8542.11.8026, 8542.13.8034, 8471.50.4000, 8473.30.1000, 8542.11.0026, 8542.11.8034, 8471.50.8095, 8473.30.4000, 8542.11.0034, 8542.13.8005, 8471.91.0090, 8473.30.8000, 8542.11.8001, 8542.13.8024, 8471.91.4000, 8542.11.0001, 8542.11.8024 and 8542.13.8026 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS subheadings are provided for convenience and customs purposes, the Department's written description of the scope of this review remains dispositive.

Facts Available (FA)

In accordance with section 776(a) of the Act, we have determined that the use of adverse FA is warranted for G5 Corporation (G5), Kim's Marketing, Jewon Trading (Jewon), Wooyang Industry Co., Ltd. (Wooyang), Jae Won Microelectronics (Jae Won), and Techsan Electronics (Techsan) for these final results of review.

1. Application of FA

Section 776(a) of the Act provides that, if an interested party withholds information that has been requested by the Department, fails to provide such information in a timely manner or in the form or manner requested, significantly impedes a proceeding under the antidumping statute, or provides information which cannot be verified, the Department shall use, subject to sections 782(d) and (e) of the Act, facts otherwise available in reaching the applicable determination. In this review, as described in detail below, the above-referenced companies failed to provide the necessary information in the form and manner requested and, in some instances, the submitted information could not be verified. Thus, pursuant to section 776(a) of the Act, the Department is required to apply, subject to section 782(d), facts otherwise available.

Section 782(d) of the Act provides that, if the Department determines that a response to a request for information does not comply with the request, the Department will inform the person submitting the response of the nature of the deficiency and shall, to the extent practicable, provide that person the opportunity to remedy or explain the deficiency. If that person submits further information that continues to be unsatisfactory, or this information is not submitted within the applicable time limits, the Department may, subject to section 782(e), disregard all or part of the original and subsequent responses, as appropriate.

Pursuant to section 782(e) of the Act, notwithstanding the Department's determination that the submitted information is “deficient” under section 782(d) of the Act, the Department shall not decline to consider such information if all of the following requirements are satisfied: (1) The information is submitted by the established deadline; (2) the information can be verified; (3) the information is not so incomplete that it cannot serve as a reliable basis for reaching the applicable determination; (4) the interested party has demonstrated that it acted to the best of its ability; and (5) the information can be used without undue difficulties.

The Department has concluded that, because G5, Kim's Marketing, Jewon, Jae Won, Techsan, and Wooyang failed to respond to the Department's questionnaire, a determination based on a total FA is warranted for these companies. See the Preliminary Results for a detailed discussion of this analysis.

2. Selection of FA

In selecting from among the facts otherwise available, section 776(b) of the Act authorizes the Department to use an adverse inference if the Department finds that an interested party failed to cooperate by not acting to the best of its ability to comply with the request for information. See, e.g., Certain Welded Carbon Steel Pipes and Tubes From Thailand: Final Results of Antidumping Duty Administrative Review, 62 FR 53808, 53819-20 (October 16, 1997). In the Preliminary Results, the Department determined that by not responding to the Department's questionnaire, each of these six companies did not act to the best of its respective abilities, and therefore an adverse inference is warranted in applying facts available for these companies.

For the final results, no interested party comments were submitted regarding this issue and we continue to find that the failure of G5, Kim's Marketing, Jewon, Jae Won, Techsan, and Wooyang to respond to the Department's questionnaire in this review demonstrates that these entities failed to cooperate by not acting to the best of their ability. Thus, consistent with the Department's practice in cases where a respondent fails to respond to the Department's questionnaire, in selecting FA for G5, Kim's Marketing, Jewon, Jae Won, Techsan, and Wooyang in this review, an adverse inference is warranted. See Static Random Access Memory Semiconductors From Taiwan; Final Determination of Sales at Less Than Fair Value, 63 FR 8909, 8932 (February 23, 1998). Therefore, we are assigning G5, Kim's Marketing, Jewon, Jae Won, Techsan, and Wooyang an adverse FA rate of 10.44 percent, the rate calculated for Hyundai in a previous review and the highest margin from any segment of the proceeding related to DRAMS from Korea.

Information from prior segments of the proceeding, such as involved here, constitutes “secondary information” under section 776(c) of the Act. Section 776(c) of the Act provides that the Department shall, to the extent practicable, corroborate secondary information used for FA by reviewing independent sources reasonably at its disposal. The SAA provides that to “corroborate” means simply that the Department will satisfy itself that the secondary information to be used has probative value. See SAA at 870. As noted in Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, from Japan, and Tapered Roller Bearings, Four Inches or Less in Outside Diameter, and Components Thereof, from Japan; Preliminary Results of Antidumping Duty Administrative Reviews and Partial Termination of Administrative Reviews, 61 FR 57391, 57392 (November 6, 1996) (TRBs), to corroborate secondary information, the Department will, to the extent practicable, examine the reliability and relevance of the information used. However, unlike other types of information, such as input costs or selling expenses, there are no independent sources from which the Department can derive calculated dumping margins; the only source for margins is administrative determinations. Thus, in an administrative review, if the Department chooses as total adverse FA a calculated dumping margin from a prior segment of the proceeding, it is not necessary to question the reliability of the margin for that time period.

As to the relevance of the margin used for adverse FA, the Department stated in TRBs that it will “consider information reasonably at its disposal as to whether there are circumstances that would render a margin irrelevant. Where circumstances indicate that the selected margin is not appropriate as adverse FA, the Department will disregard the margin and determine an appropriate margin.” Id.; see also Fresh Cut Flowers from Mexico; Preliminary Results of Antidumping Duty Administrative Review, 60 FR 49567 (February 22, 1996), where we disregarded the highest margin in the case as best information available because the margin was based on another company's uncharacteristic business expense resulting in an extremely high margin.

As stated above, the highest rate determined in any prior segment of the proceeding is 10.44 percent, a calculated rate from the fifth administrative review. See Dynamic Random Access Memory Semiconductors 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). In the absence of information on the administrative record that application of the 10.44 percent rate to G5, Kim's Marketing, Jewon, Jae Won, Techsan, and Wooyang would be inappropriate as an adverse FA rate in the instant review, that the margin is not relevant, or that leads us to re-examine this rate as adverse facts available in the instant review, we have applied, as FA, the 10.44 percent margin from a prior administrative review of this order, and have satisfied the corroboration requirements under section 776(c) of the Act.

Analysis of Comments Received

All issues raised in the case and rebuttal briefs by parties to this administrative review are addressed in the “Issues and Decision Memorandum” (Decision Memorandum) from Bernard T. Carreau, Deputy Assistant Secretary, Import Administration, to Faryar Shirzad, Assistant Secretary for Import Administration, dated October 5, 2001, which is hereby adopted by this notice. A list of the issues which parties have raised and to which we have responded, all of which are in the Decision Memorandum, is attached to this notice as an Appendix. Parties can find a complete discussion of all issues raised in this review and the corresponding recommendations in this public memorandum which is on file in the Central Records Unit, room B-099 of the main Department building. In addition, a complete version of the Decision Memorandum can be accessed directly on the Web at http://ia.ita.doc.gov/frn/summary/list.htm . The paper copy and electronic version of the Decision Memorandum are identical in content.

Changes Since the Preliminary Results

Based on our analysis of comments received, we have made certain changes in the margin calculations. These changes are listed below and discussed in the relevant sections of the Decision Memorandum.

1. We corrected an error in the CEP offset calculation, see Comment 8.

2. We corrected two errors in the margin part of the program, see Comment 9.

3. We recalculated HM credit expense, see Comment 10.

4. We recalculated CEP profit ratio, see Comment 11.

5. We recalculated U.S. credit expense, see Comment 12.

Final Results of Review

We determine that the following percentage weighted-average margins exist for the period May 1, 1999 through, December 31, 1999:

Assessment

The Department will not issue cash deposit instructions to Customs based on the results of this review. Since the order was revoked effective January 1, 2000, current and future imports of DRAMs from Korea shall be entered into the United States without regard to antidumping duties. We have already instructed Customs to liquidate all entries on or after January 1, 2000, without regard to antidumping duties.

The Department shall determine, and the Customs Service shall assess, antidumping duties on all appropriate entries during the POR. The Department will issue appraisement instructions directly to the Customs Service. Where the importer-specific assessment rate is above de minimis, we will instruct Customs to assess antidumping duties on that importer's entries of subject merchandise.

These final results of review shall be the basis for the assessment of antidumping duties on entries of merchandise covered by this review. For duty-assessment purposes with respect to Hyundai, we calculated importer-specific assessment rates by aggregating the dumping margins calculated for all U.S. sales to each importer and dividing this amount by the total estimated entered value reported for those sales. Hyundai, in accordance with the Department's questionnaire, estimated the entered value of these sales by calculating the average of the entered value of each control number for the POR. For all other respondents, we based the assessment rate on the facts available margin percentage.

Notification

This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.

This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely notification of return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.

We are issuing and publishing this determination and notice in accordance with sections 751(a)(1) and 777(i) of the Act.

Appendix—Issues in Decision Memorandum

Comments and Responses

1. Offset to Foreign Currency Translation Losses

2. Research and Development (R&D)

3. Cross-Fertilization of R&D

4. Use of Cost of Goods Sold (COGS) to Calculate R&D Ratio

5. Increase in Useful Lives

6. U.S. Antidumping Statute and World Trade Organization (WTO) Antidumping Agreement

7. Post-POR Sales of Subject Merchandise Entered During the POR

8. Offset for CEP Sales

9. Recalculation of Expenses in Margin Program

10. Calculation of Home Market Credit Expense

11. CEP Profit Ratio—Calculation of Total Profit

12. U.S. Credit Expense