[Federal Register Volume 61, Number 227 (Friday, November 22, 1996)]
[Notices]
[Pages 59402-59407]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-29942]
[[Page 59402]]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-580-008]
Color Television Receivers 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.
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SUMMARY: On May 24, 1996, the Department of Commerce (the Department)
published a notice of preliminary results of administrative review of
the antidumping duty order on color television receivers (CTVs) from
the Republic of Korea (49 FR 18336, April 30, 1984). The review covers
one manufacturer/exporter of the subject merchandise and the period
April 1, 1994, through March 31, 1995.
We gave interested parties an opportunity to comment on the
preliminary results of review. Based on our analysis of the comments
received, we have not changed our analysis for the final results from
that presented in the preliminary results of review.
EFFECTIVE DATE: November 22, 1996.
FOR FURTHER INFORMATION CONTACT: David Genovese or Zev Primor, Import
Administration, International Trade Administration, U.S. Department of
Commerce, 14th Street and Constitution Avenue, N.W., Washington, D.C.
20230; telephone: (202) 482-5253.
SUPPLEMENTARY INFORMATION:
Background
On April 28, 1995, Samsung Electronics Co., Ltd. and its U.S.
subsidiary, Samsung Electronics America, Inc. (collectively Samsung)
requested an administrative review and partial revocation of the
antidumping duty order on CTVs from Korea. The Department initiated the
review on May 15, 1995 (60 FR 25885), covering the period April 1,
1994, through March 31, 1995 (the twelfth review). On May 24, 1996, the
Department published the preliminary results of review (61 FR 26158).
The Department has now completed this review in accordance with section
751 of the Tariff Act of 1930 (the Act).
Applicable Statute
Unless otherwise indicated, all citations to the statute 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. In addition, unless otherwise indicated, all citations to the
Department's regulations are to the current regulations, as amended by
the interim regulations published in the Federal Register on May 11,
1995 (60 FR 25130).
Scope of the Review
Imports covered by this review include CTVs, complete and
incomplete, from the Republic of Korea. This merchandise is currently
classified under item numbers 8528.10.08, 8528.10.11, 8528.10.13,
8528.10.17, 8528.10.19, 8528.10.24, 8528.10.28, 8528.10.34, 8528.10.38,
8528.10.44, 8528.10.48, 8528.10.54, 8528.10.58, 8528.10.61, 8528.10.63,
8528.10.67, 8528.10.69, 8528.10.71, 8528.10.73, 8528.10.77, 8528.10.79,
8529.90.03, 8529.90.06, and 8540.11.10 of the Harmonized Tariff
Schedule (HTS). Since the order covers all CTVs regardless of HTS
classification, the HTS subheadings are provided for convenience and
for the U.S. Customs Service purposes. Our written description of the
scope of the order remains dispositive. The period of review is April
1, 1994, through March 31, 1995.
Analysis of Comments Received
We gave interested parties an opportunity to comment on the
preliminary results of review. We received comments from Samsung and
from the International Brotherhood of Electrical Workers, International
Union of Electronic, Electrical, Salaried, Machine & Furniture Workers,
AFL-CIO, and the Industrial Union Department, AFL-CIO (the
Petitioners).
Comment 1
Samsung argues that the Department's policy, which precludes
revocation when one or more periods of no shipments follows three or
more periods of no dumping, is not in accordance with the Department's
past practice, the antidumping statute (i.e., the Act), or the
Department's regulations.
With regard to the Department's past practice, Samsung argues that
the Department's decision to deny Samsung's revocation request
contradicts its decision in a prior case. Specifically, Samsung argues
that the Department has granted a respondent's revocation request even
though it was filed in an administrative review period during which the
respondent made no shipments to the United States. See, Elemental
Sulphur from Canada; Final Results of Antidumping Duty Administrative
Review, 56 FR 5391 (February 11, 1991) (hereinafter Elemental Sulphur
from Canada). Samsung contends that the fact that the respondent in
Elemental Sulphur from Canada filed revocation requests in previous
reviews in which it made shipments is not a sufficiently distinguishing
factor. Samsung asserts that because the situation here is
indistinguishable from the situation in Elemental Sulphur from Canada
it would be arbitrary and capricious for the Department to deny
Samsung's revocation request.
With regard to the Act, Samsung asserts that the Act authorizes the
Department to revoke an order after conducting an administrative review
but that it does not limit a revocation request to a review in which
shipments have occurred. Samsung refers to section 751(d) of the Act to
support its claim.
With regard to the Department's regulations, Samsung states that
the Department's regulations (specifically section 353.25(b)) do not
mandate that a revocation request be filed in only the last year of the
three-year period in which shipments to the United States have
occurred, only that the request be filed during any anniversary month
beginning with the anniversary month of the third consecutive review in
which respondent had sales at not less than foreign market value. See
section 353.25(b) of the Department's regulations. Samsung states that
in accordance with the Department's regulations, it submitted the
required certification attesting to the fact that it had not sold CTVs
at less than foreign market value during the twelfth review. Samsung
contends that the fact that it made no shipments inherently
demonstrates that it did not sell CTVs at less than foreign market
value during the twelfth administrative review. Moreover, Samsung
argues that according to section 353.25(b)(1) of the Department's
regulations, the certification provision does not require that sales be
made in the review period in which revocation was requested. Samsung
asserts that the issue addressed by the Court of International Trade
(CIT) in Exportaciones Bochica/Floral v. United States, 802 F. Supp.
447 (1992), aff'd without opinion, 996 F.2d 317 (Fed. Cir. 1993)
(hereinafter Bochica/Floral) is distinguishable from this case. In
Bochica/Floral, contends Samsung, the Court upheld the Department's
interpretation that section 353.25(b) requires ``that any revocation
request be filed on the anniversary month of the order if it is to be
considered in the review requested that month.'' (Emphasis added).
Samsung argues that it did in fact request
[[Page 59403]]
revocation in the opportunity month for the twelfth review. Thus,
Samsung asserts that Bochica/Floral does not control this case and does
not prevent the Department from considering revocation in this review.
Samsung asserts that its claim that it did not have to file its
revocation request during the anniversary month of the third year of
sales at not less than foreign market value is supported by the CIT's
differentiation between mandatory and directory statutes. Samsung
argues that the CIT has stated that deadlines are usually directory if
no limits are affirmatively imposed on the doing of the act after the
time specified and no adverse consequences are imposed for delay. See
Kemira Fibres Oy v. United States, 858 F. Supp 229 (1994) (hereinafter
Kemira Fibres Oy). In contrast, Samsung states, where a regulation uses
the mandatory term ``will'', as, for example, in the sunset provision
of section 353.25(d)(4), it is clear that failure to comply with the
regulatory requirements will result in certain consequences. Kemira
Fibres Oy at 234. Samsung argues that section 353.25(b) does not impose
any time limit on the Department's ability to consider a request to
revoke an antidumping duty order which is filed after the three-year
base period. Thus, Samsung asserts that nothing in section 353.25(b)
prevents a party from submitting a revocation request based on the
absence of dumping in prior reviews. Additionally, Samsung argues that
section 353.25 (b) does not impose any adverse consequences for waiting
to request revocation and, therefore, by the CIT's definition, section
353.25(b) is merely directory, rather than mandatory.
Samsung then argues that it would have requested revocation during
the anniversary month of the eighth review, the last review in which
Samsung had shipments of CTVs from Korea to the United States, but that
the Department's failure to at least publish the preliminary results of
review for the sixth and seventh reviews prevented it from doing so.
Samsung contends that the regulatory framework and the Department's
practice assumes that the reviews for the first two of the three-year
base period for qualifying for revocation has been completed or have at
least reached the preliminary determination stage. Samsung refers to
Fresh Cut Flowers from Mexico, 61 FR 28166 (June 4, 1996); Roller
Chain, Other Than Bicycle, from Japan, 61 FR 28168 (June 4, 1996);
Brass Sheet and Strip from Germany, 61 FR 20214 (May 6, 1996) to
support its claim. Samsung further argues that since the Department had
not published the preliminary results of review by the anniversary
month of the eighth review period, the Department should waive its
policy of requiring respondents to request revocation during the
anniversary month of the third consecutive year of sales at not less
than foreign market value. Samsung asserts that waiver of the
regulatory requirements is necessary when failure to do so would lead
to inequitable results and refers to Brass Sheet and Strip from France,
52 FR 812 (1987); Cold-Rolled Carbon Steel Flat Products from Austria,
58 FR 37082 (July 9, 1993); Certain Granite Products from Spain, 53 FR
24335 (June 28, 1988); Sugar and Syrups from Canada, 46 FR 27985 (May
22, 1981); Cemex, S.A. v. United States, 1995 CIT Lexis 109, Slip Op.
95-72 (CIT 1995). According to Samsung: (1) the Department has waived
deadlines under indistinguishable circumstances (see, Carton Closing
Staples and Stapling Machines from Sweden, 57 FR 4596 (February 6,
1992)); and (2) the CIT has noted that where the Department is at fault
for a party's non-compliance, it must carry the burden of remedying the
situation. See Kemira Fibres Oy at 235. Samsung further asserts that
since the deadline here is directory, not mandatory (as explained
earlier), the case for waiver is even more compelling.
Samsung then argues that it would have been fruitless for it to
submit a revocation request without the required certification for the
twelfth review and that it could not file the required certification
since it could not do so on a good faith factual basis. Samsung argues
that section 353.25(b) of the Department's regulations requires that a
respondent's certification of no shipments at less than foreign market
value for the current review period and the two preceding review
periods be founded on a good faith factual basis. Samsung states that
given the uncertainty of pending reviews it could not form a good faith
belief that it had an adequate factual basis to predict de minimis
margins in the sixth and seventh reviews (i.e., the Court of Appeals
for the Federal Circuit (the Federal Circuit) had before it several
precedent-setting issues relating to the first review that would
significantly affect the results of all subsequent reviews (the Federal
Circuit issued its decision on September 30, 1993 (see Daewoo
Electronics Co., Ltd., et al. v. United States, 6 F.3d 1511 (Fed. Cir.
1993) (hereinafter Daewoo)) and litigation on the fifth and sixth
reviews was pending before the CIT). Samsung contends that the
Department has: (1) Acknowledged that a respondent must reasonably
believe that a basis for revocation exists before it may file a
revocation request (see Color Television Receivers from the Republic of
Korea; Preliminary Results and Termination in Part of Antidumping Duty
Administrative Review, 60 FR 9005, 9007 (February 16, 1995)); and (2)
recognized that parties cannot be required to comply with regulatory
deadlines when they lack the information to make a good faith claim.
See Television Receivers, Monochrome and Color, from Japan, 56 FR 5392
(February 11, 1991).
Samsung also claims that the Department has violated Article 11 of
the GATT Antidumping Code (the Antidumping Agreement) by continuing to
impose duties despite the absence of dumping and by failing to self-
initiate a revocation proceeding. Samsung argues that the Antidumping
Agreement imposes only two restrictions on the Department's obligation
to consider revocation requests: (1) Consideration of a request must be
warranted and (2) the requesting party must provide the Department with
evidence supporting its claim that the order is no longer needed to
protect the domestic industry. Samsung argues that both conditions have
been satisfied since it has demonstrated six consecutive years of no
dumping and certified that it would agree to the immediate
reinstatement of the order if it were found to have sold CTVs at less
than foreign market value in the future.
Samsung further claims that because Article 11.1 of the Antidumping
Agreement provides that ``[a]n anti-dumping order shall remain in force
only as long as and to the extent necessary to counteract dumping which
is causing injury,'' the Department's failure to self-initiate a
revocation review violated the Antidumping Agreement. Samsung states
that the Department's initiation of a changed circumstances review
constitutes a recognition of the Department's Article 11 obligations.
Samsung cites to Color Television Receivers From the Republic of Korea:
Initiation of Changed Circumstances Antidumping Duty Administrative
Review and Consideration of Revocation of the Order (in Part), 61 FR
32426 (June 24, 1996) in support of its claim.
Samsung argues that because this case is still at the preliminary
stage, there is ample time for the Department to consider Samsung's
revocation request and, if necessary, conduct a verification.
Therefore, contends Samsung, neither the Department nor any interested
party
[[Page 59404]]
will be prejudiced by the Department's consideration of Samsung's
revocation request. Moreover, argues Samsung, no party will be
prejudiced by the partial revocation of the antidumping order since
Samsung has demonstrated six years of no dumping.
Finally, Samsung argues that the Department's continuation of the
order will have the effect of punishing Samsung for the Department's
failure to comply with its regulatory deadlines. Samsung contends that
this violates the Federal Circuit's finding that ``[t]he antidumping
duty laws are intended to be remedial, not punitive'' as specified in
NTN Bearing Corporation, 74 F.3d at 1208.
Petitioners disagree with Samsung's assertion that the Department's
policy, which precludes revocation when one or more periods of no
shipments follows three or more periods of no dumping, is not in
accordance with the Department's past practice or the Department's
regulations.
With regard to the Department's past practice, Petitioners assert
that Samsung's reliance on Elemental Sulphur from Canada to define the
Department's practice with regard to revocation is wrong. Petitioners
contend that the Department's decision in Elemental Sulphur from Canada
was a significant departure from the Department's regulations and from
the Department's established practice of basing revocation of an order
on the absence of dumping rather than the absence of shipments.
Petitioners claim that the Department's regulations and its discussion
of those regulations make clear that revocation under section 353.25(a)
cannot be based on the absence of shipments. Rather, Petitioners assert
that revocation must be based on an absence of dumping. Petitioners
state that in this case, Samsung had no shipments during the twelfth
review and, therefore, failed to meet the requirements of the
Department's revocation regulations. Petitioners, citing to Atochem v.
United States, 609 F. Supp. 319, 321, n.5 (1985), note that in certain
instances when revocation has not been opposed by any interested party,
the Department has taken a ``short-cut'' approach to revocation.
Petitioners state that in those circumstances the Department has
apparently taken the view that when the order is no longer of interest
to the domestic interested party, certain revocation requests should be
treated as a kind of hybrid revocation request that combines the
absence of dumping with the lack of interest by the domestic industry
and has accorded revocation.
Petitioners assert that Samsung's claim that the Department's
regulations do not require that respondent seek revocation of an order
during the anniversary month of the third consecutive year of sales at
not less than foreign market value (i.e., that respondent can seek
revocation anytime after it has established three consecutive years of
no dumping) is wrong for several reasons. First, it ignores the plain
language of the regulations (section 353.25(b)) which requires a
respondent to certify that it did not sell at less than foreign market
value in the current review period. Second, Petitioners contend that
the goal of the regulations is to ensure that respondents have altered
their unfair pricing practices and are not likely to dump in the
future. This goal, Petitioners assert, cannot be satisfied simply
because a respondent can demonstrate that it did not dump five years
earlier and thereafter decided to stop shipping. Moreover, as stated in
the preamble to the Department's regulations (Antidumping Duties; Final
Rule, 54 FR 12742, 12758 (March 28, 1989)), the absence of shipments is
an unreliable indicator of whether a respondent is likely to dump in
the future. Petitioners contend that if the Department had intended to
allow respondents to obtain revocation after three prior, consecutive
years of no dumping followed by an indeterminate period of no
shipments, the regulations would have included such a provision.
Rather, Petitioners assert that the regulations were revised with the
express purpose of ensuring that periods of no shipments would not be
included in the Department's decision whether to revoke an order under
section 353.25(a). Third, Petitioners contend that Samsung's argument
ignores the requirements imposed by the Court in Freeport Minerals Co.
v. United States, 776 F.2d 1029 (Fed. Cir. 1985), and companion cases
that require that revocation be based on current data. See PPG
Industries, Inc. v. United States, 702 F. Supp. 914 (1988); Matsushita
Electric Industrial Co. v. United States, 688 F. Supp. 617 (1988)
aff'd, 861 F.2d 257 (Fed. Cir. 1988). Lastly, Petitioners disagree with
Samsung's assertion that there is no deadline for submitting a
revocation request since the Department's regulations are directory
rather than mandatory. Petitioners assert that Samsung's efforts to
compare the situation that exists in this case to other cases involving
timing requirements and deadlines are clearly in error. Petitioners
argue that the requirement that a respondent must have shipments during
the POR to qualify for revocation is not a deadline or timing
requirement. Rather, Petitioners claim that it is a substantive
requirement of the regulations and the Department must follow its
regulations. See Torrington Company v. United States, 82 F.3d 1039
(Fed. Cir. 1996); Chang Tieh v. United States, 840 F. Supp. 141, 149
(1993).
With regard to Samsung's argument that the Department should waive
the requirement of the revocation regulations because Samsung was
unable to request revocation in the eighth review, Petitioners state
that the timing of events and the actions taken by the Department in
prior reviews have no impact on whether Samsung can meet the
requirements of revocation in this administrative review. In this
review, Petitioners assert that Samsung had no shipments. Since the
regulations do not permit the Department to base revocation on the
absence of shipments, Samsung has failed to meet the requirements for
revocation.
Petitioners argue that contrary to Samsung's assertion, under the
law that was in effect at the time of the eighth review, the Department
was under no obligation to complete administrative reviews in a twelve-
month time frame. See Nissan Motor Corporation in U.S.A. v. United
States, 651 F. Supp. 1450, 1455 (1986). Consequently, Petitioners argue
that Samsung's contention that the Department is under an obligation to
carry the burden of remedying the situation is unfounded.
Additionally, Petitioners claim that nothing prevented Samsung from
requesting revocation in the eighth review. Petitioners assert that at
the time of the initiation of the eighth review, while the final
results of the sixth and seventh reviews were still pending, Samsung
had received de minimis margins in the fourth and fifth reviews.
Furthermore, in the final results of the fifth review, the Department
made clear that it was not following the CIT's decision in Daewoo since
it had not had an opportunity to appeal those cases and was instead
following its standard practice for calculating the adjustment for the
commodity tax. See Color Television Receivers from the Republic of
Korea; Final Results of Antidumping Duty Administrative Review, 56 FR
12701 (March 27, 1991). Petitioners argue that based on the results in
the fourth and fifth reviews coupled with the knowledge that the
Department did not intend to follow the Court's decision in Daewoo
until it had an opportunity to appeal the decisions to the Federal
Circuit, Samsung could have properly certified that it would have no
sales at
[[Page 59405]]
less than foreign market value in the eighth review and sought
revocation based on the Department's practice as it existed in April
1991. Accordingly, Petitioners conclude that Samsung's attempts to lay
blame on the Department for its own failure to request revocation in
the eighth review must fail.
Petitioners assert that the Department's decision not to grant
Samsung's request for revocation is consistent with the World Trade
Organization's (WTO's) Antidumping Agreement. Petitioners argue that
the Department's requirements for revocation of at least three
consecutive years of no dumping, with reliance on current data, and
with no likelihood of a resumption of dumping, are compatible with
Article 11's direction that an antidumping duty order should remain in
force only as necessary to offset injurious dumping and shall be
terminated as soon as the member country's authorities determine that
the order is no longer warranted in their judgment. Petitioners contend
that the Department's withholding of revocation from Samsung would be
upheld by any WTO dispute settlement panel convened under Article 17 of
the Antidumping Agreement as a permissible interpretation of the
Antidumping Agreement.
Lastly, Petitioners argue that Samsung's assertion that no party
would be prejudiced by the partial revocation of the order is untrue.
Petitioners assert that in the absence of any showing that Samsung has
actually altered its pricing practices to stop dumping and that Samsung
is not likely to dump in the future, the domestic industry would be
seriously injured by revocation of the order. Furthermore, argue
Petitioners, Samsung stopped shipping CTVs from Korea because it had
begun to ship to the United States from facilities in Mexico and other
countries. Petitioners state that the Department is currently
investigating whether this constitutes circumvention (see Color
Television Receivers from Korea; Initiation of Anticircumvention
Inquiry on Antidumping Duty Order, 61 FR 1339 (January 19, 1996)), and
that the domestic industry would be prejudiced if the Department were
to grant revocation in the twelfth review without first determining
whether imports entering through Mexico are circumventing the order.
According to Petitioners, however, whether Samsung is found to be
circumventing the new law is not the only dispositive issue in this
case. The absence of shipments does not mean that Samsung would not
have dumped if it had been shipping during the most recent periods nor
is it any indication that it would not dump in the future if the order
was revoked. Accordingly, the Department should continue to deny
Samsung's request for revocation in its final results of review.
Department's Position
In this review, Samsung seeks to invoke the revocation procedure
provided for in 19 CFR section 353.25(a), absent shipments of subject
merchandise to the United States during the period of this
administrative review. Under section 353.25(a)(2), the Department may
revoke an order in part if (1) a producer ``sold the [subject]
merchandise at not less than foreign market value for a period of at
least three consecutive years;'' (2) it is not likely that the producer
will in the future sell the merchandise at less than foreign market
value; and (3) if the producer has previously sold the merchandise at
less than foreign market value, it agrees to immediate reinstatement of
the order if it is found that it sold the merchandise at less than
foreign market value in the future (emphasis added). The procedures
established for revocation provide for a respondent (1) to request
revocation in writing during the third or subsequent anniversary month
of the publication of the order, and submit with the request (2) the
agreement, as needed, and (3) a certification that respondent ``sold
the merchandise at not less than foreign market value'' during the
period of the current review. Thus, the plain language of the
regulations indicates that revocation must be based upon three years of
sales at non-dumped prices; not on the absence of shipments.
Further, in promulgating the 1989 regulations, the Department made
clear that revocation under section 353.25(a)(2) cannot be based upon
an absence of shipments. As explained in the preamble to the final
regulations, the Department specifically eliminated the regulatory
language that allowed respondents to obtain revocation under that
provision based upon no shipments and noted as follows:
In a departure from the Department's past practice, this rule
does not provide for revocations based on a period of no shipments.
It has been the Department's experience that the absence of
shipments is no indication of the absence of price discrimination,
which is the basis for revocation under this paragraph. In
determining, however, whether an order should be revoked based on
changed circumstances under paragraph (d), the Department may
consider among other things periods of no shipments.
Antidumping Duties; Final Rule, 54 FR 12742, 12758; March 28, 1989
(emphasis added).
Therefore, contrary to Samsung's assertion, it is not the
Department's practice, nor is it the intent of the regulations that
periods of no shipments be used to satisfy the revocation requirements
of section 353.25(a)(2) of the regulations.
Further, we disagree with Samsung's argument that the Department's
regulations permit revocation requests to be filed without any further
restrictions or conditions during any anniversary month beginning with
the third anniversary month (i.e., that respondent could request
revocation given three years of sales at not less than foreign market
value followed by one or more years of no requests for reviews/no
shipment reviews) and that this is supported by the CIT's distinction
between mandatory and directory statutes.
In the Department's view, the 1989 amendment to the revocation
regulation was also implemented to ensure that current data provide the
basis for any revocation determination. The regulation requires that a
respondent submit with its revocation request in the third or
subsequent anniversary month a certification that:
the person sold the merchandise at not less than foreign market
value during the period [under review].
Sections 353.25(b)(1) and 353.22(b) of the Department's regulations.
The requirement that the respondent certify for the current review
period, together with the requirement that revocation be based upon
three ``consecutive years'' of no dumping establishes a rolling three-
year period (the current year and the two preceding years) that
constitute the relevant period for revocation purposes. Thus, the
Department interprets section 353.25(b) normally to require a producer
or a reseller to submit its revocation request during the opportunity
month for the administrative review which the respondent believes would
establish its eligibility for revocation (the third year in the rolling
period). This interpretation reflects the Department's concern that
revocation determinations be based upon current data and is consistent
with Bochica/Floral. See also, Freeport Minerals Co. v. United States,
776 F.2d 1029 (Fed. Cir. 1985) and PPG Industries, Inc. v. United
States, 12 CIT 1189, 702 F. Supp. 914 (1988).
With respect to Samsung's contention that Elemental Sulfur
represents the Department's practice on this issue, we
[[Page 59406]]
disagree. In that case, the foreign producer sought and received
revocation during a period of no shipments (56 FR 5391). In the
Department's view, Elemental Sulfur is an exception to the Department's
standard practice. It is the only revocation granted in a no-shipments
review following the promulgation of the 1989 regulations, as stated
above. All other such requests were denied. See Color Television
Receivers, Except for Video Monitors, from Taiwan, 58 FR 4148 (January
13, 1993); Animal Glue and Inedible Gelatin from West Germany; Final
Results of Antidumping Duty Administrative Review; 54 FR 50791
(December 11, 1989); and Carbon Steel Wire Rod from Argentina;
Preliminary Results of Antidumping Duty Administrative Review, 54 FR
27921 (July 3, 1989).
Moreover, the facts in Elemental Sulfur were significantly
different from the present case. In Elemental Sulfur, the foreign
producer which sought revocation had sales at not less than foreign
market value in the three years immediately preceding the revocation
review and made a timely request for revocation in the third
consecutive year of sales at not less than foreign market value.
In contrast, Samsung has not had shipments of subject merchandise
into the United States for a period of more than five years. In such a
case the Department's concern about the lack of current data is more
compelling. If the Department were to grant such a request, the
revocation determination would be based solely upon data from more than
five years ago. Further, unlike the respondent in Elemental Sulfur
which filed a timely request for revocation in the third consecutive
year of sales at less than foreign market value, Samsung has not done
so in this case.
Moreover, in the present case, it is unnecessary for the Department
to exercise the extraordinary discretion Samsung is requesting in this
administrative review. Section 353.25(a) contains detailed criteria for
revocation, resulting in limited agency discretion. In contrast, under
section 353.25(d) the agency has broad discretion to revoke if it finds
changed circumstances sufficient to warrant revocation. The discretion
Samsung asks the Department to exercise is available under section
353.25(d) and, in fact, such a proceeding is underway. See, Color
Television Receivers from the Republic of Korea: Initiation of Changed
Circumstances Review and Consideration of Revocation of Order (in
Part), 61 FR 32426 (June 24, 1996).
The Department disagrees with Samsung's argument that the
Department's failure to complete the sixth and seventh reviews in a
timely fashion prevented Samsung from requesting revocation in the
eighth review. The issue of Samsung's failure to request revocation in
a timely fashion was thoroughly addressed by the Department in the
sixth and seventh reviews. Color Television Receivers from the Republic
of Korea; Final Results of Antidumping Duty Administrative Reviews, 61
FR 4408 (February 6, 1996). The Department incorporates by reference,
its position in the sixth and seventh reviews in this review.
With respect to Samsung's contention that the Department has
violated Article 11 of the Antidumping Agreement by continuing to
impose duties despite the absence of dumping, and by failing to self-
initiate a revocation proceeding, we disagree. The Antidumping
Agreement recognizes each country's authority and responsibility to
establish rules for the implementation of the Agreement. Article 11 of
the Antidumping Agreement provides a broad directive concerning the
parameters of the determination. Article 11.2 in part states:
If, as a result of the review under this paragraph, the
authorities determine that the anti-dumping duty is no longer
warranted, it shall be terminated immediately.
Antidumping Agreement at Article 11.2.
In our view, the provisions of section 353.25 of the Department's
regulations, which reflect the Department's longstanding practice,
fully implement Article 11.2 of the Antidumping Agreement. The
regulation is consistent with the broad discretion provided by the
statute and reflected in the Antidumping Agreement.
Accordingly, the Department has determined not to revoke the
antidumping duty order with regard to Samsung.
Final Results of Review
Based on our analysis of the comments received, we have determined,
as we did in the preliminary results, to maintain Samsung's current
cash deposit rate. This rate is zero percent, because the margin
assigned to Samsung in the most recent final results of review in which
it made shipments was a de minimis rate (0.47 percent).
The following deposit requirements will be effective for all
shipments of the subject merchandise entered, or withdrawn from
warehouse, for consumption on or after the publication date of these
final results of administrative review, as provided by section
751(a)(1) of the Act: (1) The cash deposit rate for Samsung will remain
zero percent; (2) for merchandise exported by manufacturers or
exporters not covered in this review but covered in a previous review
or the original less-than-fair-value (LTFV) investigation, the cash
deposit rate will continue to be the rate published in the most recent
final results or determination for which the manufacturer or exporter
received a company-specific rate; (3) if the exporter is not a firm
covered in this review, earlier reviews, or the original investigation,
but the manufacturer is, the cash deposit rate will be that established
for the manufacturer of the merchandise in these final results of
review, earlier reviews, or the original investigation, whichever is
the most recent; and (4) if neither the exporter nor manufacturer is a
firm covered in this or any previous review or the original
investigation, the cash deposit rate will be 13.90 percent, the ``all
others'' rate, as established in the original less-than-fair-value
investigation (49 FR 18336).
These deposit requirements, when imposed, shall remain in effect
until publication of the final results of the next administrative
review.
This notice also serves as a final reminder to importers of their
responsibility under 19 CFR 353.26 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 double antidumping duties.
This notice also serves as a reminder to parties subject to
administrative protective orders (APOs) of their responsibility
concerning the disposition of proprietary information disclosed under
APO in accordance with 19 CFR 353.34(d). Timely written 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.
This administrative review and notice are in accordance with
section 751(a)(1) of the Act (19 U.S.C. 1675(a)(1)) and 19 CFR 353.22.
[[Page 59407]]
Dated: November 14, 1996.
Robert S. LaRussa,
Acting Assistant Secretary for Import Administration.
[FR Doc. 96-29942 Filed 11-21-96; 8:45 am]
BILLING CODE 3510-DS-P