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6186 Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Noticesobtain cost data selectively, stating thatit linked its FOP reporting to itssuppliers if that supplier’s data was onthe record. Finally, Premier states thatPetitioner is incorrect in asserting thatthe real focus should be on the PRCproducers. Premier states that any PRCproducer who sells merchandise totrading companies without priorknowledge that the merchandise isdestined for the United States is notsubject to a separate dumping-margincalculation and by law cannot be thefocus for resolution of this issue.Department’s PositionWe disagree with Petitioner. Premierresponded to the best of its ability to ourrequests for information regarding FOPdata. Given the level of cooperationevidenced by Premier in this review,including the submission of responsiveinitial and supplemental questionnaireresponses as well as its participation ina complete verification of its data, andthe amount of usable informationprovided, Premier’s inability to providecertain FOP data does not warrant theuse of adverse facts available incalculating a margin in this case.Premier provided enough information toallow us to calculate an accuratemargin, and we used our discretionappropriately to determine how to applyfacts available to account for the missingdata. Accordingly, for these final results,we are following our methodology fromthe preliminary results.Premier was able to provide factorsdata from its suppliers for models thatrepresented most of Premier’s sales byvalue. For those U.S. sales for whichPremier was unable to provide FOP datafrom its own suppliers, it provided FOPdata from other PRC suppliers of thesame models. For such merchandise, wedetermined that there is little variationin factor-utilization rates among TRBproducers from whom we have receivedFOP data. Accordingly, we used suchdata for Premier for U.S. sales of thosemodels. For a small percentage of sales,Premier was unable to report any FOPdata. We determined that a simpleaverage of the calculated margins forother companies in this review is areasonable rate to apply, as factsavailable, for these sales by Premier.5. AssessmentComment 27Transcom and L&S, domesticimporters of subject merchandise, arguethat the Department’s decision to applywhat they consider to be punitive factsavailableappraisement and depositrates to companies that were never partof the review is unlawful. Transcom andL&S state that, for this review, therewere various companies from whichthey purchased subject merchandise,none of which received a questionnaireor was named in the notice of initiationof review. Transcom states that entriesfrom each of the unnamed companieswere subject to estimated antidumpingduty deposits at the ‘‘all others’’ rate ineffect at the time of entry and arguesthat the Department is precluded as amatter of law from either assessing finalantidumping duties on the unreviewedcompanies at any rate other than that atwhich estimated antidumping dutydeposits were made or imposing thenew facts-available-based deposit rateon shipments from unreviewedcompanies.Transcom and L&S, citing section751(a) of the Act, state that theDepartment is directed to determine theamount of antidumping duties to beimposed pursuant to periodic reviews.They add that, in accordance with 19CFR 353.22(e), unreviewed companiesare subject to automatic assessment ofantidumping duties and a deposit ofestimated duties at the rate previouslyestablished. Transcom and L&S notethat the Court of International Trade(CIT) has concluded that, in situationswhere a company’s entries are notreviewed, the prior cash deposit ratefrom the less-than-fair-value (LTFV)investigation becomes the assessmentrate, ‘‘which must in turn become thenew cash deposit rate for that company’’(citing Federal Mogul Corp. v. UnitedStates, 822 F. Supp. 782, 787–88 (CIT1993) (Federal Mogul II)). Transcom andL&S claim that the CIT has affirmed thisrationale in other, more recent,decisions as well, concluding that theDepartment’s use of a new ‘‘all others’’rate calculated during a particularadministrative review as the new cashdeposit rate for unreviewed companieswhich have previously received the ‘‘allothers’’ rate is not in accordance withlaw (citing Federal Mogul Corp. v.United States, 862 F. Supp. 384 (CIT1994), and UCF America, Inc. v. UnitedStates, 870 F. Supp. 1120, 1127–28 (CIT1994) (UCF America)).Based on these CIT decisions,Transcom contends that an exporter thatis not under review would have noreason to anticipate that antidumpingduties assessed on its merchandisewould vary from the amount deposited.Transcom notes that Federal Mogul II (at788) 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 a ratebased on the facts available on anexporter neither named in the reviewrequest nor in the notice of initiationhave been overturned, citing SigmaCorp. v. United States, 841 F. Supp.1255 (CIT 1993) (Sigma Corp. I). In thatcase, Transcom contends, the CIT heldthat the Department was required toprovide the company in questionadequate notice to defend its interestsand, because it failed to do so, orderedthe liquidation of entries ofmerchandise exported by that companyat the 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 the importers in question werenever served notice that they weresubject, conditionally or otherwise, toreview, Transcom claims that theDepartment is precluded from applyinga punitive rate to the company’sexports.Transcom contends that, inaccordance with section 776 of the Act,the Department must have requestedand been unable to obtain informationbefore applying adverse facts available.Transcom claims that the Departmentmay not resort to facts available‘‘because of an alleged failure to providefurther explanation when thatadditional explanation was neverrequested’’ (quoting Olympic Adhesives,Inc. v. United States, 899 F.2d 1565,1574 (1990); also citing Mitsui & Co.,Ltd. v. United States, 18 CIT 185 (March11, 1994); Usinor Sacillor v. UnitedStates, 872 F. Supp. 1000 (1994); andSigma Corp. I at 1263). Finally,Transcom argues that the factsavailable-basedPRC-wide rate cannot beapplied to exports by companies outsideof China because these companies arenot PRC companies.L&S requests that the Departmentliquidate entries of the company’s