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Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Notices6187imports from companies that were notspecifically reviewed at the entered raterather than the punitive ‘‘PRC-wide’’rate. L&S also states that the prospectivedeposit rate for these unreviewedcompanies should be 2.96 percent,which was the ‘‘all others’’ rate in theinitial investigation.Petitioner states that it is its intentionthat all exporters are covered by thisreview and points out that theDepartment’s notice of initiationspecified that all ‘‘otherexporters * * * are conditionallycovered.’’ Therefore, Petitioner argues,all other suppliers of Transcom notentitled to a separate rate should beexpressly listed in the final results asamong 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-controlled entityand assign that entity a single rate,except for those exporters whichdemonstrate an absence of governmentcontrol, both in law and in fact, withrespect to exports. Our guidelinesconcerning the de jure and de factoseparate-rates analyses, as well as thecompany-specific separate-ratesdeterminations, are discussed in thePreliminary Results at 40611–12. Wehave determined that companies in thegovernment-controlled entity failed torespond to our requests for informationin this review and, accordingly, we haveestablished the rate applicable to suchcompanies (the PRC rate) usinguncooperative facts available. Asdiscussed below, the Act mandatesapplication of facts available for suchcompanies because they are subject tothe review and they failed to cooperateby responding to our requests forinformation.Pursuant to our NME policy, wepresume that all PRC exporters orproducers that have not demonstratedthat they are separate from PRCgovernment control belong to a single,state-controlled entity (the ‘‘PRCenterprise’’) for which we mustcalculate a single rate (the ‘‘PRC rate’).The CIT has upheld our presumption ofa single, state-controlled entity in NMEcases. See UCF America, Inc. v. UnitedStates, 870 F. Supp. 1120, 1126 (CIT1994), Sigma Corp I, and TianjinMachinery Import & Export Corp. v.United States, 806 F. Supp. 1008, 1013–15 (CIT 1992). Section 353.22(a) of ourregulations allows interested parties torequest an administrative review of anantidumping duty order once a yearduring the anniversary month. Thisregulation specifically states thatinterested parties must list the‘‘specified individual producers’’ to becovered by the review. In the context ofNME cases, we interpret this regulationto mean that, if at least one namedproducer or exporter does not qualifyfor a separate rate, the PRC enterprise asa whole (i.e., all exporters that have notqualified for a separate rate) is part ofthe review (this is analogous to ourpractice in market-economy cases ofincluding in reviews persons affiliatedto a company for which a review wasrequested). On the other hand, if allnamed producers or exporters areentitled to separate rates, there has beenno request for a review of the PRCenterprise and, therefore, the NME rateremains unchanged. Accord Federal-Mogul II (‘‘[i]n a situation where acompany’s entries are unreviewed, theprior cash deposit rate from the LTFVinvestigation becomes the assessmentrate, which must in turn become thenew cash deposit rate for thatcompany’’).In this review, numerous companiesnamed in the notice of initiation did notrespond to our questionnaires. We senta letter to the PRC embassy inWashington and to the Ministry ofForeign Trade and EconomicCooperation (MOFTEC) in Beijing,requesting the identification of TRBproducers and manufacturers, as well asinformation on the production of TRBsin the PRC and the sale of TRBs to theUnited States. MOFTEC informed usthat the China Chamber of Commercefor Machinery and Electronics ProductsImport & Export (CCCME) wasresponsible for coordinating the TRBscase. MOFTEC also said it forwardedour letter and questionnaire to theCCCME. We also sent a copy of ourletter and the questionnaire directly tothe CCCME, asking that thequestionnaire be transmitted to allcompanies in the PRC that producedTRBs for export to the United States andto all companies that exported TRBs tothe United States during the POR.Because we did not receiveinformation concerning many of thecompanies named in the notice ofinitiation, we have presumed that thesecompanies are under governmentcontrol. In accordance with our NMEpolicy, therefore, the governmentcontrolledenterprise, which iscomprised of all exporters of subjectmerchandise that have notdemonstrated they are separate fromPRC control, is part of this review.Therefore, we must assign a reviewspecific‘‘PRC’’ rate to that enterprise.Because we did not receive responsesfrom these exporters, we have based thePRC rate on the facts available, pursuantto section 776(c) of the Act. This ratewill form the basis of assessment for thisreview as well as the cash deposit ratefor future entries. In this regard,Transcom’s reliance on OlympicAdhesives and other cases is misplacedbecause the PRC entity to which weassigned the review-specific PRC ratewas requested to respond to ourquestionnaire.We acknowledge a recent CITdecision cited by Transcom and by L&S,UCF America Inc. v. United States, SlipOp. 96–42 (CIT Feb. 27, 1996), in whichthe Court affirmed the Department’sremand results for reinstatement of therelevant cash deposit rate but expresseddisagreement with the PRC-ratemethodology which formed theunderlying rationale for reinstatement.In UCF, the Court suggested that theDepartment lacks authority for applyinga PRC rate in lieu of an ‘‘all others’’ rate.However, despite the concernsexpressed by the Court, it is our viewthat we have the authority to use thePRC rate in lieu of an ‘‘all others’’ rate.See Hand Tools at 15221. Further, asubsequent CIT decision accepted ourapplication of a review-specific PRC rateto non-responding PRC firms notindividually named in the notice ofinitiation. See Yue Pak, Ltd. v. UnitedStates, Slip Op. 96–65, at 66 (April 18,1996).The PRC rate is consistent with thestatute and regulations. As discussedabove, in NME cases, all producers andexporters which have not demonstratedtheir independence are deemed tocomprise a single enterprise. Thus, weassign the PRC rate to the PRCenterprise just as we may assign a singlerate to a group of affiliated exporters orproducers operating in a marketeconomy. Because the PRC rate is theequivalent of a company-specific rate, itchanges only when we review the PRCenterprise. As noted above, all exportersor producers will either qualify for aseparate company-specific rate or willbe part of the PRC enterprise andreceive the PRC rate. Consequently,whenever the PRC enterprise has beeninvestigated or reviewed, calculation ofan ‘‘all others’’ rate for PRC exporters isunnecessary.Thus, contrary to the argument byTranscom and L&S, the Department’sautomatic-assessment regulation (19CFR 353.22(e)) does not apply to thisreview except in the case of companiesthat demonstrate that they are separatefrom PRC government control and arenot part of this review. See Comment 2,above.We also disagree with the assertion byTranscom and L&S that companies not