Color Television Receivers From the Republic of Korea; Final Results of Antidumping Duty Administrative Review

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