The Department of Commerce (“Commerce”) assigns separate rates in non-market economy
(“NME”) cases only if the applicant can demonstrate an absence of both de jure and de facto
governmental control over its export activities in accordance with the separate-rates test criteria.
In determining whether companies should receive separate rates, Commerce focuses its attention
on the exporter rather than the producer. See Notice of Final Determination of Sales at Less
Than Fair Value: Manganese Metal from the People’s Republic of China, 60 FR 56045
(November 6, 1995). Consequently, in this proceeding, Commerce will limit its consideration of
separate-rate applications to firms that exported the merchandise to the United States. Further, to
be considered for separate-rate treatment, the applicant must have a relevant U.S. sale of subject
merchandise to an unaffiliated purchaser, and, for an administrative review, the applicant also
must have a suspended entry of subject merchandise into the United States during POR. The
sale to an unaffiliated purchaser generally must be during the period of investigation or review,
or, in a review, a sale related to a suspended POR entry.
To establish whether a company’s export activities are sufficiently independent of the
government to be eligible for separate rate status, Commerce analyzes each exporting entity
under the test established in the Final Determination of Sales at Less Than Fair Value: Sparklers
from the People’s Republic of China, 56 FR 20588 (May 6, 1991) (“Sparklers”), and later
expanded upon in Final Determination of Sales at Less Than Fair Value: Silicon Carbide from
the People’s Republic of China, 59 FR 22585 (May 2, 1994) (“Silicon Carbide”). Under this
analysis, exporters of subject merchandise are accorded separate, company-specific margins if
they can provide sufficient proof of an absence of government control, both in law and in fact,
with respect to their export activities. Evidence supporting, though not requiring, a finding of de
jure absence of government control over export activities includes: 1) an absence of restrictive
stipulations associated with an individual exporter’s business and export licenses; 2) any
legislative enactments decentralizing control of companies; and 3) any other formal measures by
the central and/or local government decentralizing control of companies. See Sparklers, 56 FR at
20588.
Our analysis of absence of de facto government control over exports is typically based on the
following four factors: 1) whether each exporter sets its own export prices independent of the
government and without the approval of a government authority; 2) whether each exporter
retains the proceeds from its sales and makes independent decisions regarding disposition of
profits or financing of losses; 3) whether each exporter has the authority to negotiate and sign
contracts and other agreements; and 4) whether each exporter has autonomy from the
government regarding the selection of management. See Silicon Carbide, 59 FR at 22586-87.
Following the test outlined above, this form is an application for separate rate treatment in the
investigation/review. If used in an administrative review, this Application is intended for firms
that do not currently have separate rate status; firms that currently have separate rate status
should complete the separate rate Certification form instead. Firms that Commerce selects to be
mandatory respondents will be required to respond to Commerce’s antidumping questionnaire in
order to retain their eligibility for consideration of separate rate status.