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6212 Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Noticesthat the CIT has concluded that, insituations where a company’s entries arenot reviewed, the prior cash deposit ratefrom the LTFV investigation becomesthe assessment rate, ‘‘which must inturn become the new cash deposit ratefor that company’’ (citing Federal MogulCorp. v. United States, 822 F. Supp. 782,787–88 (CIT 1993) (Federal Mogul II)).Transcom and L&S claim that the CIThas affirmed this rationale in other,more recent, decisions as well,concluding that the Department’s use ofa new ‘‘all other’’ rate calculated duringa particular administrative review as thenew cash deposit rate for unreviewedcompanies which have previouslyreceived the ‘‘all other’’ rate is not inaccordance with law (citing FederalMogul Corp. v. United States, 862 F.Supp. 384 (CIT 1994), and UCFAmerica, Inc. v. United States, 870 F.Supp. 1120, 1127–28 (CIT 1994) (UCFAmerica)).Based on these CIT decisions,Transcom says that an exporter that isnot under review would have no reasonto anticipate that antidumping dutiesassessed on its merchandise would varyfrom the amount deposited. Transcomnotes that Federal Mogul II (at 788)states that parties rely on the cashdeposit rates in making their decisionwhether to request an administrativereview of certain merchandise. In viewof the Department’s regulations,Transcom claims that the absence of anynotice from the Department thatunnamed companies faced thepossibility of increased antidumpingduty liability is fundamentallyprejudicial to the unnamed companies.Transcom states that previous attemptsby the Department to impose the BIArate on an exporter neither named in thereview request nor in the notice ofinitiation have been overturned, citingSigma Corp. v. United States, 841 F.Supp. 1255 (CIT 1993) (Sigma Corp. I).In that case, Transcom contends, theCIT held that the Department wasrequired to provide the company inquestion adequate notice to defend itsinterests and, because it failed to do so,ordered that the merchandise exportedby that company was to be liquidated atthe entered deposit rate.Transcom argues that theDepartment’s statement that allexporters of subject merchandise are‘‘conditionally covered by this review’’(Initiation of Antidumping DutyAdministrative Reviews and Request forRevocation in Part (Initiation Notice), 59FR 43537, 43539 (August 24, 1994)) isinadequate in that it fails to explainunder what ‘‘conditions’’ exporters arecovered and whether such ‘‘conditions’’were met. If the statement is meant toinclude unconditionally all unnamedexporters, Transcom asserts that it iscontrary to the regulatory requirement at19 CFR 353.22(a)(1) that the reviewcover ‘‘specified individual producersor resellers covered by an order.’’Because Gold Hill was never servednotice that it was subject, conditionallyor otherwise, to review, Transcomclaims that the Department is precludedfrom applying a punitive rate to thecompany’s exports.Transcom contends that, inaccordance with section 776 of the Act,the Department must have requestedand been unable to obtain informationbefore applying punitive BIA. Transcomclaims that the Department may notresort to BIA ‘‘because of an allegedfailure to provide further explanationwhen that additional explanation wasnever requested’’ (quoting OlympicAdhesives at 1574 and citing Mitsui &Co., Ltd. v. United States, 18 CIT 185(March 11, 1994), and Usinor).Transcom states that, if theDepartment assigns the unreviewedexporters the ‘‘all other’’ BIA rate, theDepartment should not apply this rate toexports of TRBs by Gold Hill, a privatetrading company located in Hong Kong.Transcom contends that there is nobasis for assessing it with the punitiveChinese ‘‘all other’’ rate on the premisethat it failed to demonstrateindependence from the central Chinesegovernment; as a Hong Kong company,it necessarily cannot be subject to suchcontrol.L&S requests that the Departmentliquidate the company’s imports whichcame from companies that were notspecifically reviewed at the entered raterather than the punitive ‘‘PRC-wide’’rate. L&S states that the prospectivedeposit rate for these unreviewedcompanies should be 2.96 percent—the‘‘all others’’ rate in the initialinvestigation.Petitioner notes that the PreliminaryResults state at 49576 that, ‘‘for othernon-PRC exporters of subjectmerchandise from the PRC, the cashdeposit rate will be the one applicableto the PRC supplier of that exporter.’’Petitioner claims that this situationclearly includes Gold Hill. Petitioneralso states that it is its intention that allexporters are covered by this review andpoints out that the Department’s noticeof initiation at 43539 specified that all‘‘other exporters . . . are conditionallycovered.’’ Therefore, Petitioner argues,Gold Hill and all other suppliers ofTranscom not entitled to a separate rateshould be expressly listed in the finalresults as among those to which the‘‘PRC rate’’ applies.Department’s PositionWe disagree with Transcom and L&S.It is our policy to treat all exporters ofsubject merchandise in NME countriesas a single government-controlledenterprise and assign that enterprise asingle rate, except for those exporterswhich demonstrate an absence ofgovernment control, both in law and infact, with respect to exports. Wediscussed our guidelines concerning thede jure and de facto separate-ratesanalyses, as well as the companyspecificseparate-rates determinations,in the Preliminary Results at 49572–49573. We have determined thatcompanies in the government-controlledenterprise failed to respond to ourrequests for information and,accordingly, we have established therate applicable to such companies (thePRC rate) using uncooperative BIA. Asdiscussed below, the Act mandatesapplication of BIA for such companiesbecause they were properly included inthe review and did not respond to theDepartment’s requests for information.Pursuant to our NME policy, all PRCexporters or producers that have notdemonstrated that they are separatefrom PRC government control arepresumed to belong to a single, statecontrolledentity (the ‘‘NME entity’’), forwhich we must calculate a single rate(the ‘‘PRC rate’). The CIT has upheld ourpresumption of a single, state-controlledentity in NME cases. See UCF America,Inc. v. United States, 870 F. Supp. 1120,1126 (CIT 1994), Sigma Corp I, andTianjin Machinery Import & ExportCorp. v. United States, 806 F. Supp.1008, 1013–15 (CIT 1992). Section353.22(a) of our regulations allowsinterested parties to request anadministrative review of anantidumping duty order once a yearduring the anniversary month. Thisregulation states specifically thatinterested parties must list the‘‘specified individual producers’’ to becovered by the review (see 19 CFR353.22(a) (1994)). In the context of NMEcases, we interpret this regulation tomean that, if at least one namedproducer or exporter does not qualifyfor a separate rate, all exporters that arepart of the NME entity are part of thereview. On the other hand, if all namedproducers or exporters are entitled toseparate rates, the NME entity is notrepresented in the review and, therefore,the NME rate remains unchanged(accord Federal-Mogul II at 788 (‘‘(i)n asituation where a company’s entries areunreviewed, the prior cash deposit ratefrom the LTFV investigation becomesthe assessment rate, which must in turn