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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
6188 Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Noticesnamed in the initiation notice did nothave an opportunity to defend theirinterests by demonstrating theirindependence from the PRC entity. Anycompany that believes it is entitled to aseparate rate may place evidence on therecord supporting its claim. Thecompanies referenced by Transcom andL&S made no such showing, despite ourefforts to transmit the questionnaire toall PRC companies that produce TRBsfor export to the United States.Furthermore, Transcom’s argumentthat the facts-available-based PRC-widerate cannot be applied to exports bycompanies outside of China becausethese companies are not PRC companiesis also unfounded. Because theseexporters’ Chinese suppliers did notrespond to the Department’squestionnaire, we were unable todetermine, with respect to sales by theseexporters, whether the exporter or theChinese suppliers were the first sellersin the chain of distribution to know thatthe merchandise they sold was destinedfor the United States. See Yue Pak at 6.When resellers choose to useuncooperative suppliers that are underan antidumping order, they must bearthe consequences. See Yue Pak at 16.Otherwise, uncooperative PRC exporterswould be free to hide behind andcontinue exporting through low-rateresellers in other countries.6. Miscellaneous IssuesComment 28Guizhou Machinery et al. state thatthe Department identified Xiangfan as‘‘Xiangfan International TradeCorporation’’ in the preliminary results,despite the fact the Xiangfan providedinformation on the record indicatingthat its name had changed to ‘‘XiangfanMachinery Foreign Trade Corporation,Hubei China.’’ Guizhou Machinery et al.request that the Department identifyXiangfan by this name for the finalresults.Petitioner responds that this namechange illustrates the ease with whichentities can make name changes andthereby circumvent the order. Petitionerasks that the Department consider suchevidence when making its separate-ratesdeterminations.Department’s PositionWe agree with Guizhou Machinery etal. and have made this change for thefinal results. This name change by asingle company in this review does notaffect our separate-rates analysis (seeour responses to Comments 1 and 2).Comment 29Guizhou Machinery et al. request thatthe Department specifically identify allbranches of CMC that sold subjectmerchandise to the United States duringthe POR. Respondents state that,although the Department properlyincluded sales made by CMC branchesCMC Bali, CMC Yantai, and Yantai CMCBearing Company in its analysis ofCMC, it did not identify these exporters.Respondents state that suchidentification is necessary in order toensure that entries of merchandise fromthese exporters receive the appropriatedeposit and assessment rates.Petitioner responds that theDepartment has not made an individualseparate-rate finding for each of thesefirms and, therefore, it should denyRespondents’ request.Department’s PositionWe agree with Guizhou Machinery etal. We included all sales by the abovenamedcompanies in our analysis ofCMC in these final results and ourassessment and cash deposit ratesreflect this analysis.Final Results of ReviewAs a result of our analysis of thecomments we received, we determinethe following weighted-average marginsto exist for the period June 1, 1994through May 31, 1995:Manufacturer/exporterMargin(percent)Premier Bearing and Equipment,Limited ......................................... 2.76Guizhou Machinery Import and ExportCorporation .......................... 17.65Luoyang Bearing Factory ............... 0.00Jilin Machinery Import and ExportCorporation .................................. 29.40Wafangdian Bearing Factory .......... 29.40Liaoning Co.; Ltd ............................ 9.72China National Machinery Importand Export Corp .......................... 0.00China Nat’l Automotive Industry Importand Export Corp .................. 25.66Tianshui Hailin Import and ExportCorp ............................................. 24.17Zhejiang Machinery Import and ExportCorp ..................................... 2.75Xiangfan Machinery Foreign TradeCorporation, Hubei China ........... 0.00East Sea Bearing Co., Ltd .............. 3.23PRC Rate ........................................ 29.40The Department shall determine, andthe Customs Service shall assess,antidumping duties on all appropriateentries. Individual differences betweenexport price or constructed export priceand NV may vary from the percentagesstated above. The Department will issueappraisement instructions directly tothe Customs Service.Furthermore, the following cashdeposit requirements will be effectiveupon publication of these final resultsfor all shipments of the subjectmerchandise entered, or withdrawnfrom warehouse, for consumption on orafter the publication date, as providedfor by section 751(a)(1) of the Act: (1) forthe companies named above that haveseparate rates and were reviewed(Premier, Guizhou Machinery, Jilin,Luoyang, Liaoning, Tianshui, Zhejiang,CMC, China National AutomotiveIndustry Import and Export Guizhou,Xiangfan, East Sea, and Wafangdian),the cash deposit rates will be the rateslisted above; (2) for Shandong,Wanxiang, and Great Wall, which wedetermine to be entitled to separaterates, the rate will continue be thatwhich currently applies (8.83 percent);(3) for all remaining PRC exporters, allof which were found not to be entitledto separate rates, the cash deposit willbe 29.40 percent; and (4) for other non-PRC exporters of subject merchandisefrom the PRC, the cash deposit rate willbe the rate applicable to the PRCsupplier of that exporter. These depositrequirements shall remain in effect untilpublication of the final results of thenext administrative review.This notice serves as a reminder toimporters of their responsibility under19 CFR 353.26 to file a certificateregarding the reimbursement ofantidumping duties prior to liquidationof the relevant entries during thisreview period. Failure to comply withthis requirement could result in theSecretary’s presumption thatreimbursement of antidumping dutiesoccurred and the subsequent assessmentof double antidumping duties.This notice also serves as a reminderto parties subject to APOs of theirresponsibility concerning disposition ofproprietary information disclosed underAPO in accordance with 19 CFR353.34(d). Timely written notification ofthe return/destruction of APO materialsor conversion to judicial protectiveorder is hereby requested. Failure tocomply with the regulations and theterms of an APO is a sanctionableviolation.This administrative review and noticeare in accordance with section 751(a)(1)of the Act (19 U.S.C. 1675(a)(1)) and 19CFR 353.22.Dated: February 3, 1997.Robert S. LaRussa,Acting Assistant Secretary for ImportAdministration.[FR Doc. 97–3355 Filed 2–10–97; 8:45 am]BILLING CODE 3510–DS–P
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