Samsung Electronics Co., Ltd. v. U.S., Slip Op. 96-181.

• Decision Date: 07 November 1996
• Docket Number: Slip Op. 96-181.,Court No. 96-03-00685.
• Citation: 946 F.Supp. 5
• Parties: SAMSUNG ELECTRONICS CO., LTD., Samsung Electronics America, Inc., Plaintiffs, v. The UNITED STATES, Defendant, and United Electrical Workers of America, Independent, International Brotherhood of Electrical Workers, International Union of Electronic, Electrical, Salaried, Machine and Furniture Workers, and the Industrial Union Department, AFL-CIO, Defendant-Intervenors.
• Court: U.S. Court of International Trade

946 F.Supp. 5

SAMSUNG ELECTRONICS CO., LTD., Samsung Electronics America, Inc., Plaintiffs, v. The UNITED STATES, Defendant and United Electrical Workers of America, Independent, International Brotherhood of Electrical Workers, International Union of Electronic, Electrical, Salaried, Machine and Furniture Workers, and the Industrial Union Department, AFL-CIO, Defendant-Intervenors.

Slip Op. 96-181.

Court No. 96-03-00685.

United States Court of International Trade.

November 7, 1996.

Akin, Gump, Strauss, Hauer & Feld, L.L.P, (Warren E. Connelly and Katherine M. Ho, Washington, DC) for plaintiff.

Frank W. Hunger, Assistant Attorney General, David M. Cohen, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (Velta A. Melnbrencis), Mark A. Barnett, Attorney-Advisor, Office of Chief Counsel for Import Administration, United States Department of Commerce, of counsel, for defendant.

Collier, Shannon, Rill & Scott, PLLC (Paul D. Cullen, Jeffrey S. Beckington and Mary T. Staley, Washington, DC) for defendant-intervenors.

OPINION

RESTANI, Judge:

This case is before the court on plaintiffs Samsung Electronics Co., Ltd.'s and Samsung Electronics America, Inc.'s (collectively "Samsung") motion for judgment upon the agency record pursuant to USCIT Rule 56.2. Samsung contests the United States Department of Commerce's ("Commerce") rejection of Samsung's untimely requests for revocation of the antidumping order against color television receivers ("CTVs") from Korea.

BACKGROUND

A request for revocation of antidumping duties requires, inter alia, three annual reviews resulting in zero or de minimis dumping margins. 19 C.F.R. § 353.25(a)(2). The first administrative review of Samsung's import sales resulted in a finding of more than de minimis margins.¹ Color Television Receivers from Korea, 49 Fed.Reg. 50,420 50,431 (Dep't Comm.1984) (final results of admin. rev.). In the fourth and fifth administrative reviews, Commerce found for the first time de minimis dumping margins.² Color Television Receivers from the Republic of Korea, 56 Fed.Reg. 12,701, 12,711 (Dep't Comm.1991) (final results of admin. rev.); Color Television Receivers from the Republic of Korea, 55 Fed.Reg. 26,225, 26,237 (Dep't Comm.1990) (final results of admin. rev.).

Following the two administrative reviews finding de minimis dumping margins, the sixth administrative review had the potential to fulfill the three year requirement for a revocation request. As the antidumping duty order of CTVs from Korea was published in April of 1984, April 1989 was the opportunity month in which Samsung could request an administrative review for the sixth review period. Samsung did not request that Commerce consider revocation of the antidumping duty order at that time.

In May 1989, Commerce published a notice of initiation of the sixth administrative review. Color Television Receivers from the Republic of Korea, 54 Fed.Reg. 22,465, 22,465 (Dep't Comm.1989) (initiation of antidumping and countervailing duty admin. revs.). Samsung filed a request for partial revocation of the Korean CTV antidumping order on November 12, 1993, three and one half years after initiation of the review and two and one half years after verification in the sixth review.

With respect to the seventh review period, Commerce published a notice of initiation of the administrative review on June 1, 1990. Color Television Receivers from the Republic of Korea, 55 Fed.Reg. 22,366, 22,366 (Dep't Comm.1990) (initiation of antidumping and countervailing duty admin. revs.).³ Samsung did not request revocation during the anniversary month of April 1990. Instead, Samsung requested revocation of the Korean CTVs antidumping duty order on its merchandise on November 3, 1993, two and one half years after initiation of the seventh review.

In February 1995, Commerce published the preliminary results of the sixth and seventh reviews and found de minimis margins. Color Television Receivers from the Republic of Korea, 60 Fed.Reg. 9005, 9008 (Dep't Comm.1995) (prelim. results). In February 1996, Commerce published the final results of both reviews which included a finding of de minimis margins. Color Television Receivers from the Republic of Korea, 61 Fed.Reg. 4408, 4415 (Dep't Comm.1996) (final results of admin. rev.) [hereinafter "Sixth and Seventh Administrative Reviews"]. In both the preliminary and final results, Commerce did not consider Samsung's untimely requests for revocation.

On June 24, 1996, Commerce initiated a review pursuant to 19 C.F.R. § 353.22(f) to determine whether changed circumstances exist sufficient to warrant revocation of the antidumping order as to Samsung. Color Television Receivers from the Republic of Korea, 61 Fed.Reg. 32,426, 32,427 (Dep't Comm.1996) (initiation of changed circumstances rev.). In the notice of initiation, Commerce indicated that a changed circumstances review was warranted based upon "the combination of the timing of certain court decisions, the timing of certain results of administrative review in this proceeding, and the coincidence of these events with the company's decision to stop shipping from Korea...." Id.

On January 19, 1996, Commerce initiated an anti-circumvention inquiry to determine whether Samsung is circumventing the antidumping order by completing or assembling CTVs in Mexico and Thailand for exportation to the United States. Commerce is conducting this review concurrent with the changed circumstances review. Id. A final determination has not yet been issued in either proceeding, but is expected in June 1997.

STANDARD OF REVIEW

The standard of review for an agency's determination requires the court hold any determination unlawful if unsupported by substantial evidence on the record, or otherwise not in accordance with law. 19 U.S.C. § 1516a(b)(1)(B)(i) (1994); Koyo Seiko Co. v. United States, 17 CIT 474, 475, 840 F.Supp. 136, 138 (1993), aff'd, 20 F.3d 1156, 1157 (1994).

DISCUSSION

The basic requirements for revocation of an antidumping duty order are set forth in 19 C.F.R. § 353.25(a)(2), which provides that Commerce may revoke an order, in part, if: (1) a producer sold the merchandise in issue at not less than foreign market value ("FMV") for at least three consecutive years, (2) it is not likely that the producer will in the future sell the merchandise at less than FMV, and (3) the producer agrees to the immediate reinstatement of the antidumping order if it is found to sell at less than FMV. 19 C.F.R. § 353.25(a)(2) (1996). The request must contain a certification that the producer has sold at not less than FMV during the period under review and that in the future, the manufacturer will not sell at less than FMV. 19 C.F.R. §§ 353.22(b), 353.25(b)(1).

The request must be submitted during the third annual anniversary month of the publication of an order, or during any subsequent anniversary months (e.g., fourth, fifth, etc.) if it is to be considered in the review requested that month. Commerce has interpreted this time limitation to be a mandatory, bright line requirement, see Certain Fresh Cut Flowers from Columbia, 56 Fed.Reg. 50,554, 50,557 (Dep't Comm.1991) (final results admin. rev.), an interpretation upheld by the Court of International Trade. See Exportaciones Bochica/Floral v. United States, 16 CIT 670, 671, 802 F.Supp. 447, 448 (1992), aff'd without opinion, 996 F.2d 317 (Fed.Cir.1993) [hereinafter "Bochica/Floral"].

Samsung did not submit its request for revocation during April 1989, the first anniversary month of the antidumping order following its third year of de minimis dumping margins, or during any subsequent anniversary month, as required by 19 C.F.R. § 353.25(b). Instead, in 1993 and 1994 Samsung submitted requests for revocation in November, which is not an anniversary month. Plaintiff concedes that its requests were untimely, but nevertheless asks that the court require Commerce to waive the time limitation set forth in the regulations and review their revocation requests.

Plaintiff essentially advances two arguments in support of its claim. First, plaintiff argues that Commerce had discretion under the regulation to waive the mandatory time requirements of 19 C.F.R. § 353.25, and that Commerce should do so in this case. Second, plaintiff argues that Commerce's prolonged delay in issuing the final results for the administrative reviews, coupled with the uncertainty resulting from the decision in Daewoo Elecs. Co. v. United States, 13 CIT 253, 712 F.Supp. 931 (1989), rev'd, Daewoo Elec. Co. v. Int'l Union of Electronic, Technical, Salaried and Machine Workers, 6 F.3d 1511 (Fed.Cir.1993), effectively prevented Samsung from timely filing the required certification for revocation.

To support its first argument, Samsung relies on two cases interpreting Commerce's discretion to waive the mandatory time requirements set forth in 19 C.F.R. § 353.31(a), which prescribes time limitations for submission of factual information: CEMEX, S.A. v. United States, Slip Op. 95-72, at 23, 1995 WL 251561 (CIT Apr. 24, 1995); and Böwe-Passat v. United States, 17 CIT 335, 338-39, 1993 WL 179269 (1993). Neither CEMEX nor Böwe-Passat addressed 19 C.F.R. § 353.25, the regulation in issue here.

The court in Böwe-Passat ordered Commerce to accept the plaintiff's untimely filed factual submission into the administrative record. Böwe-Passat, 17 CIT at 343. The court carefully circumscribed the holding by emphasizing that it is "based on and limited to the specific circumstances of this case."⁴ Id. The narrow holding of Böwe-Passat significantly undermines Samsung's reliance on it for an interpretation of a different regulation, in a case with markedly different facts.

As for CEMEX, in writing about 19 C.F.R. § 353.31(a) (not § 353.25), the court noted that although "the language of Commerce's regulation is mandatory, Commerce routinely accepts data after deadlines depending on the circumstances of...