[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