Case: 20-1159 Document: 74 Page: 1 Filed: 06/10/2021
United States Court of Appeals
for the Federal Circuit
______________________
CHINA MANUFACTURERS ALLIANCE, LLC,
DOUBLE COIN HOLDINGS LTD.,
Plaintiffs-Appellees
GUIZHOU TYRE CO., LTD., GUIZHOU TYRE
IMPORT AND EXPORT CO., LTD.,
Plaintiffs
v.
UNITED STATES,
Defendant-Appellant
______________________
2020-1159
______________________
Appeal from the United States Court of International
Trade in Nos. 15-cv-00124-TCS, 15-cv-00128-TCS, Chief
Judge Timothy C. Stanceu.
______________________
Decided: June 10, 2021
______________________
JAMES P. DURLING, Curtis, Mallet-Prevost, Colt &
Mosle LLP, Washington, DC, argued for plaintiffs-appel-
lees. Also represented by CHRISTOPHER A. DUNN, DANIEL
L. PORTER; GENE C. SCHAERR, Schaerr Jaffe LLP, Washing-
ton, DC.
JOHN JACOB TODOR, Commercial Litigation Branch,
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2 CHINA MANUFACTURERS ALLIANCE v. US
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for defendant-appellant. Also repre-
sented by BRIAN M. BOYNTON, JEANNE DAVIDSON,
FRANKLIN E. WHITE, JR.; PAUL KEITH, Office of the Chief
Counsel for Trade Enforcement and Compliance, United
States Department of Commerce, Washington, DC.
______________________
Before LOURIE, CLEVENGER, and HUGHES, Circuit Judges.
CLEVENGER, Circuit Judge.
The United States appeals from the final judgment of
the United States Court of International Trade (“Trade
Court”), which held that the Department of Commerce
(“Commerce”) could not apply an existing China-wide anti-
dumping duty rate, applicable to all Chinese exporters that
had not demonstrated independence from the Chinese gov-
ernment, to Double Coin Holdings Ltd. (“Double Coin”),
even though it is undisputed that Double Coin failed to
demonstrate independence from the Chinese government.
For the reasons set forth below, we reverse the final judg-
ment of the Trade Court and remand for further proceed-
ings consistent with this opinion.
BACKGROUND
Initial Investigation and Four Administrative Reviews
The background to this appeal begins with Commerce’s
antidumping investigation into “Certain New Pneumatic
Off-The-Road Tires from the People’s Republic of China.”
Commerce’s Final Determination in this investigation en-
compassed a period of investigation from October 1, 2006
through March 31, 2007 and was published on July 15,
2008. Certain New Pneumatic Off–The-Road Tires from the
People’s Republic of China: Final Affirmative Determina-
tion of Sales at Less Than Fair Value and Partial Affirma-
tive Determination of Critical Circumstances,
73 Fed. Reg.
40,485, 40,485–92 (Dep’t of Commerce July 15, 2008); see
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CHINA MANUFACTURERS ALLIANCE v. US 3
also Certain New Pneumatic Off-the-Road Tires from the
People’s Republic of China: Notice of Amended Final Af-
firmative Determination of Sales at Less Than Fair Value
and Antidumping Duty Order,
73 Fed. Reg. 51,624 (Dep’t
of Commerce Sept. 4, 2008). In antidumping investigations
concerning countries with non-market economies
(“NMEs”), such as the People’s Republic of China (“PRC”),
Commerce applies a presumption that all exporters are
subject to government control. Our court has previously ap-
proved Commerce’s application of a presumption of govern-
ment control over exporters in NME countries, as well as
Commerce’s use of a single antidumping rate for an NME-
wide entity composed of companies that have not demon-
strated their independence from government control. See
Sigma Corp. v United States,
117 F.3d 1401, 1405–06 (Fed.
Cir. 1997). In its Final Determination, Commerce identi-
fied Double Coin as among the companies that had over-
come the presumption of government control and assigned
Double Coin a separate weighted-average antidumping
margin. 1 The “PRC-wide entity,” comprising all exporters
that failed to overcome the presumption of government
control (i.e., all exporters not individually listed in Com-
merce’s Final Determination) was assigned a rate of
210.48%. Commerce calculated this rate from facts availa-
ble with an adverse inference (“adverse facts available” or
“AFA”), based on Commerce’s determination that the PRC-
wide entity had “failed to cooperate [with Commerce’s in-
vestigation] to the best of its ability” because the record in-
dicated that there were many exporters of subject
merchandise who failed to respond to Commerce’s ques-
tionnaires. Certain New Pneumatic Off-The-Road Tires
from the People’s Republic of China; Preliminary Determi-
nation of Sales at Less Than Fair Value and Postponement
1 Commerce initially assigned Double Coin a margin
of 9.48%. 73 Fed. Reg. at 40,489. This margin was subse-
quently amended to 12.91%. 73 Fed. Reg. at 51,626.
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4 CHINA MANUFACTURERS ALLIANCE v. US
of Final Determination,
73 Fed. Reg. 9278, 9285 (Dep’t of
Commerce Feb. 20, 2008); 73 Fed. Reg. at 40,488.
Commerce subsequently conducted three annual ad-
ministrative reviews of the antidumping duty order. 2 Dou-
ble Coin’s individual assigned antidumping rate remained
in place following each of these reviews. The PRC-wide en-
tity rate remained at 210.48%. A fourth annual antidump-
ing review was initiated by Commerce, but was rescinded
before it was conducted after all parties that requested a
review timely withdrew their requests. 3
2 See Certain New Pneumatic Off-the-Road Tires
from the People’s Republic of China: Final Results of the
2008–2009 Antidumping Duty Administrative Review,
76
Fed. Reg. 22,871 (Dep’t of Commerce April 25, 2011) (pe-
riod of review February 20, 2008 through August 31, 2009);
Certain New Pneumatic Off-the-Road Tires from the Peo-
ple’s Republic of China: Final Results of the 2009–2010 An-
tidumping Duty Administrative Review and Final
Rescission, in Part,
77 Fed. Reg. 14,495 (Dep’t of Commerce
March 12, 2012) (period of review September 1, 2009
through August 31, 2010); Certain New Pneumatic Off-the-
Road Tires from the People’s Republic of China: Final Re-
sults of Antidumping Duty Administrative Review and Fi-
nal Rescission, in Part; 2010–2011,
78 Fed. Reg. 22,513
(Dep’t of Commerce April 16, 2013) (period of review Sep-
tember 1, 2010 through August 31, 2011).
3 Certain New Pneumatic Off-the-Road Tires from
the People’s Republic of China: Rescission of Antidumping
Duty Administrative Review; 2011–2012,
78 Fed. Reg.
33,059 (Dep’t of Commerce June 3, 2013) (review period
September 1, 2011 through August 31, 2012).
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CHINA MANUFACTURERS ALLIANCE v. US 5
Fifth Administrative Review and
Trade Court Proceedings
Notice of initiation of the fifth administrative review
(the review on appeal in this case) was published in No-
vember 2013. See Initiation of Antidumping and Counter-
vailing Duty Administrative Reviews and Request for
Revocation in Part,
78 Fed. Reg. 67,104 (Dep’t of Commerce
Nov. 8, 2013). Double Coin was selected as a mandatory
respondent in this review.
Id. at 67108; see also J.A. 168–
226, 168 4 (Issues and Decision Memorandum for Final Re-
sults of Antidumping Duty [Fifth] Administrative Review).
Double Coin fully cooperated with Commerce during the
course of the fifth administrative review.
Based on the information Double Coin submitted to
Commerce during the review, Commerce initially calcu-
lated a de minimis 0.14% final antidumping margin for
Double Coin. J.A. 371. However, Commerce also deter-
mined that Double Coin had “failed to demonstrate absence
of de facto government control over export activities due to
the fact that its controlling shareholder is wholly owned by
the State-owned Assets Supervision and Administration
Commission of the State Council and the significant level
of control this majority shareholder wields over the re-
spondent’s Board of Directors,” and was thus not eligible
for its separate rate. 5 Certain New Pneumatic Off-the-Road
Tires from the People’s Republic of China: Preliminary Re-
sults of Antidumping Duty Administrative Review; 2012–
2013,
79 Fed. Reg. 61,291, 61,293 (Dept. of Commerce Oct.
10, 2014); see also Certain New Pneumatic Off-the-Road
Tires from the People’s Republic of China: Amended Final
4 Citations to “J.A. ___” refer to the joint appendix
filed by the parties to this appeal.
5 Double Coin does not appeal Commerce’s factual
determination that Double Coin failed to demonstrate de
facto independence from Chinese government control.
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6 CHINA MANUFACTURERS ALLIANCE v. US
Results of Antidumping Duty Administrative Review;
2012–2013,
80 Fed. Reg. 26,230 (Dep’t of Commerce May 7,
2015). Commerce’s policy, which we have approved, is that
exporters that fail to demonstrate independence from gov-
ernment control do not qualify for a separate rate. Trans-
com, Inc. v. United States,
294 F.3d 1371, 1373 (Fed. Cir.
2002); see also 78 Fed. Reg. at 67,111 n.10 (Initiation Notice
of fifth administrative review, stating that exporters who
do not qualify for a separate rate will be deemed part of a
single China-wide entity).
Commerce’s practice in place at the time of the fifth ad-
ministrative review was to conditionally review the NME
entity during an administrative review of an antidumping
duty order if one or more of the exporters subject to the re-
view did not demonstrate that it was separate from the
NME entity (i.e., did not overcome the presumption of gov-
ernment control). J.A. 178–79. Thus, Commerce’s Initia-
tion Notice for the fifth administrative review put the PRC
entity in this case on notice that it was conditionally sub-
ject to the review: “If one of the above-named companies
does not qualify for a separate rate, all other exporters of
Certain New Pneumatic Off-the-Road Tires [from] the PRC
who have not qualified for a separate rate are deemed to be
covered by this review as part of the single PRC entity of
which the named exporters are a part.” See 78 Fed. Reg. at
67,111 n.10.
Following from Double Coin’s failure to overcome the
presumption of control by the Chinese government, the
PRC-wide entity (including Double Coin) became subject to
the fifth administrative review. J.A. 179. Commerce thus
reviewed the assigned PRC-wide antidumping rate, which
had previously been set at 210.48%. Because Double Coin
fully cooperated with Commerce and had provided Com-
merce with its verified sales and production data (resulting
in the calculated rate of 0.14%), but no other portion of the
PRC entity had provided data to Commerce, Commerce de-
termined that it was “able to calculate a margin for an
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CHINA MANUFACTURERS ALLIANCE v. US 7
unspecified portion of a single PRC-wide entity [i.e. Double
Coin], but cannot do so for the remaining unspecified por-
tion of the entity [i.e., any and all other exporters in the
PRC-wide entity].” 79 Fed. Reg. at 61,293. Commerce thus
performed a simple average of the previous PRC-wide rate
and the calculated rate for Double Coin, to arrive at a final
rate of 105.31% applicable to the PRC-wide entity (includ-
ing Double Coin). 80 Fed. Reg. at 26,231.
Multiple companies, including Double Coin, challenged
the Final Results of the fifth administrative review before
the Trade Court. See China Mfrs. Alliance, LLC v. United
States,
205 F. Supp. 3d 1325 (Ct. Int’l Trade 2017) (CMA
I). In CMA I, the Trade Court concluded that because Com-
merce had selected Double Coin to participate in the review
as a mandatory respondent and had calculated an individ-
ual rate for Double Coin (prior to determining that Double
Coin failed to demonstrate independence from the Chinese
Government), the antidumping statute 19 U.S.C. § 1677f-
1(c) required Commerce to assign the calculated individual
rate of 0.14% to Double Coin, notwithstanding Commerce’s
policy to assign the PRC-wide entity rate to manufacturers
that failed to demonstrate independence from the Chinese
government. 205 F. Supp. 3d at 1339–41. The Trade Court
determined that, because Double Coin fully cooperated
with Commerce’s investigation, Commerce could not law-
fully carry forward against Double Coin the adverse infer-
ences built into the original PRC-wide 210.48% rate,
because to do so would apply a punitive rate to a cooperat-
ing party. 205 F. Supp. 3d at 1334–41. The Trade Court
held that Commerce could not permissibly assign any rate
other than the 0.14% calculated rate to Double Coin, and
remanded the case to Commerce for further proceedings.
In its Remand Redetermination, Commerce assigned the
de minimis 0.14% rate to Double Coin under respectful pro-
test. J.A. 705. Various parties again contested the Remand
Redetermination before the Trade Court. J.A. 72–73.
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8 CHINA MANUFACTURERS ALLIANCE v. US
The Intervening Diamond Sawblades Decision
After Commerce issued its Remand Redetermination
but before the Trade Court issued its opinion in China
Mfrs. Alliance, LLC v. United States,
357 F. Supp. 3d 1364
(Ct. Int’l Trade 2019) (CMA II) reviewing the challenges to
the Remand Redetermination, we issued our opinion in Di-
amond Sawblades Manufacturers Coalition v. United
States,
866 F.3d 1304 (Fed. Cir. 2017), which reviewed
Commerce’s first administrative review of the underlying
antidumping order. Like this case, Diamond Sawblades in-
volved a fully cooperating non-independent exporter who
was assigned an antidumping rate as part of the PRC-wide
entity, which rate was based in part on AFA.
Specifically, Diamond Sawblades concerned an anti-
dumping rate assigned to a group of affiliated Chinese ex-
porters of diamond sawblades, the group identified as the
Advanced Technology & Materials Co. (“ATM”). In the orig-
inal investigation that led to the antidumping order, ATM
was determined to have overcome the presumption of Chi-
nese government control, was individually investigated,
and was assigned an individual antidumping rate of 2.50%.
The Diamond Sawblades Manufacturers Coalition, on be-
half of the United States domestic industry, appealed the
final antidumping order, and the Trade Court remanded
the case for further explanation of the test used to deter-
mine independence, and other evidence of record. On re-
mand, Commerce again found ATM independent of
Chinese government control, and hence entitled to its
2.50% antidumping rate. After yet another appeal to the
Trade Court, the case was again remanded for further re-
view of ATM’s status. On that remand, Commerce deter-
mined that ATM had failed to rebut the presumption of
government control and was thus not qualified for its indi-
vidually investigated rate. ATM unsuccessfully appealed
that determination to the Trade Court, and then to this
court, which affirmed Commerce’s determination without
opinion under our Rule 36. Advanced Tech. & Materials Co.
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CHINA MANUFACTURERS ALLIANCE v. US 9
v. United States, 541 F. App’x 1002 (Fed. Cir. 2013). While
ATM’s status was sub judice before the Trade Court and
this court, Commerce’s first administrative review of the
diamond sawblades antidumping order commenced. In the
initial proceedings Commerce designated ATM as a man-
datory respondent, found it to be independent of Chinese
government control, and with ATM fully cooperating, as-
signed ATM an individually investigated antidumping rate
of 0.15%. After judicial confirmation that ATM was not in-
dependent, Commerce determined that ATM was disquali-
fied from its 0.15% individually investigated rate. The
then-governing PRC-wide entity rate for non-independent
exporters (established through AFA in the original investi-
gation) was 164.09%. Commerce reviewed and updated the
existing PRC-wide rate in the first administrative review
proceedings by calculating a simple average of the existing
rate with ATM’s 0.15% rate to set a new PRC-wide rate of
82.12%. See Diamond Sawblades, 866 F.3d at 1307–11 (cit-
ing Diamond Sawblades Mfrs. Coal. v. United States (Re-
mand Redetermination) at 9, Court No. 13-00078 (Dep’t of
Commerce Apr. 10, 2015), http://enforcement.trade.gov/re-
mands/14-50.pdf).
ATM unsuccessfully appealed to the Trade Court,
which affirmed Commerce’s application of the PRC-wide
rate to ATM. ATM then appealed to this court. In deciding
Diamond Sawblades, we rejected ATM’s argument that,
because ATM cooperated with the first administrative re-
view, Commerce could not apply a PRC-entity rate to ATM
which was derived in part from a rate based on AFA. Id. at
1310–11. We held that because it had failed to rebut the
presumption of government control, ATM was subject to
the PRC-wide rate, and that the calculation of the PRC-
wide rate using AFA did not change this result. Id. at
1312–13. Over ATM’s challenge to application of an AFA-
based rate to it, we expressly approved as lawful “Com-
merce’s use of the previously established PRC-wide entity
rate to calculate an updated PRC-wide entity rate that
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10 CHINA MANUFACTURERS ALLIANCE v. US
applies to ATM in this administrative review . . . .” Id. at
1314. We further observed that “[t]he CIT . . . concluded
that Commerce’s decision was a review of the PRC-wide en-
tity rate within the meaning of
19 U.S.C. § 1675(a), not a
review of the makeup of the PRC-wide entity.”
Id. at 1309–
10 (internal citation omitted). Though “Commerce ex-
pressly found that the PRC-wide entity included ATM and
21 other companies[,]” “Commerce did not address the co-
operation—or lack thereof—of other companies that make
up the PRC-wide entity.”
Id. at 1313–14. It was thus ATM’s
failure to rebut the presumption of government control, not
the composition of the PRC-wide entity or the cooperation
or non-cooperation of ATM or any other potential member
of the PRC-wide entity, that validated Commerce’s deter-
mination to apply the AFA-derived PRC-wide rate to ATM.
Post-Remand Proceedings in Trade Court
Returning to the case here now on appeal, various par-
ties filed comments on Commerce’s Remand Redetermina-
tion (issued pursuant to the Trade Court’s opinion in CMA
I). Double Coin did not comment on the Remand Redeter-
mination. CMA II, 357 F. Supp. 3d at 1369. The govern-
ment also filed a motion before the Trade Court seeking a
partial remand for Commerce to revisit the issue of Double
Coin’s margin in light of our intervening decision in Dia-
mond Sawblades, which Double Coin opposed. Id. at 1367–
68. Unsurprisingly, the government viewed our holding in
Diamond Sawblades to foreclose any challenge Double
Coin could mount against application of the PRC-wide rate
to it.
The Trade Court correctly understood our decision in
Diamond Sawblades to authorize Commerce to assign a
partially AFA-based PRC-wide entity rate to a fully coop-
erating exporter selected as a mandatory respondent that
fails to rebut the presumption of government control. Id. at
1382. Nonetheless, the Trade Court perceived a difference
between the facts in this case and in Diamond Sawblades
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CHINA MANUFACTURERS ALLIANCE v. US 11
that prohibited Commerce from assigning the 105.31%
PRC-wide entity rate to Double Coin. In this case, the
Trade Court emphasized that all parties to the administra-
tive review cooperated with Commerce, and that Com-
merce “did not find the PRC-wide entity, or any portion of
it, to be an uncooperative respondent in the [fifth adminis-
trative] review.” Id. at 1380. But in Diamond Sawblades,
the PRC-wide entity included twenty-one companies that
did not cooperate in the first administrative review. Id. at
1383 n.11. The Trade Court treated our decision in Dia-
mond Sawblades to condition our approval of the AFA-
based PRC-wide entity rate for ATM on the lack of cooper-
ation of part of the PRC-wide entity in that case, and thus
to make our decision in Diamond Sawblades inapplicable
to the situation where all parties to a review fully cooperate
with Commerce. Because no party to the review proceeding
in this case failed to cooperate so as to warrant lawful ap-
plication of an AFA-based rate, the Trade Court held that
the PRC-wide rate must be fixed at the 0.14% rate individ-
ually investigated for Double Coin. Having distinguished
Diamond Sawblades, the Trade Court denied the govern-
ment’s motion for partial remand on the ground that the
only permissible rate for Double Coin is the 0.14% rate pre-
viously mandated by the Trade Court. Id. at 1382. 6
The case was again remanded to Commerce on matters
related to exporters other than Double Coin. Commerce’s
second Remand Redetermination was again appealed to
the Trade Court, which affirmed all of Commerce’s
6 As discussed below, we disagree with the Trade
Court that the non-cooperation of some identified portion
of the PRC-wide entity with the administrative review on
appeal was a predicate to our decision in Diamond Saw-
blades, and we accordingly disagree with the Trade Court
that Diamond Sawblades can be distinguished from this
case on that ground.
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12 CHINA MANUFACTURERS ALLIANCE v. US
decisions, including the 0.14% rate assigned to Double
Coin. China Mfrs. Alliance, LLC v. United States, No. 15-
00124,
2019 WL 4165274 (Ct. Int’l Trade Sept. 3, 2019)
(CMA III).
The United States timely appeals from the Trade
Court’s final judgment in CMA III. We have jurisdiction
pursuant to
28 U.S.C. § 1295(a)(5). For the reasons dis-
cussed below, we reverse the final judgment of the Trade
Court.
DISCUSSION
We apply the same standard of review as was applied
by the Trade Court, without deference. Dupont Teijin
Films USA, LP v. United States,
407 F.3d 1211, 1215 (Fed.
Cir. 2005); SNR Roulements v. United States,
402 F.3d
1358, 1361 (Fed. Cir. 2005). Accordingly, we uphold Com-
merce’s determination unless it is “unsupported by sub-
stantial evidence . . . or otherwise not in accordance with
law.” 19 U.S.C. § 1516a(b)(1)(B)(i); see Dupont Teijin,
407
F.3d at 1215; SNR Roulements,
402 F.3d at 1361. Substan-
tial evidence means “such relevant evidence as a reasona-
ble mind might accept as adequate to support a
conclusion.” Universal Camera Corp. v. NLRB,
340 U.S.
474, 477 (1951).
The question before the court is whether Commerce is
justified in assigning the 105.31% PRC-wide entity rate to
Double Coin in this case. The government argues that our
decision in Diamond Sawblades governs this case because,
in its view, the record in that case is not materially differ-
ent from the record in this case; consequently, Commerce
lawfully applied a carried-forward PRC-wide rate to an ex-
porter who failed to rebut the presumption of government
control. Double Coin counters, arguing that the records of
the two cases materially differ. In this case, the only iden-
tified member of the PRC-wide entity is Double Coin, but
in the Diamond Sawblades first annual review, there were
other members of the PRC-wide entity identified in the
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CHINA MANUFACTURERS ALLIANCE v. US 13
review. According to Double Coin, the permissibility of ap-
plying the carried-forward PRC-wide rate in this case
hinges on the presence of such other members of the PRC-
wide entity, and absent any such other members in this
case, the Trade Court correctly blocked application of the
PRC-wide rate and instead required application of the
0.14% rate to Double Coin. For the reasons set forth below,
we reject the ground relied upon by the Trade Court to dis-
tinguish our decision in Diamond Sawblades, and also re-
ject as immaterial the distinction Double Coin draws
between this case and Diamond Sawblades. Consequently,
no basis has been argued to preclude Commerce from ap-
plying to this case the same analysis and rationale it used
in Diamond Sawblades to sustain the applicable PRC-wide
entity rate.
Legal Authority for NME Entity-Wide Antidumping Rates
Double Coin argues that Congress has specifically pro-
vided for only two kinds of rates in antidumping investiga-
tions. For support, it cites 19 U.S.C. § 1673d(c)(1)(B)(i),
which provides in subpart (I) for a rate “for each exporter
and producer individually investigated,” and in subpart (II)
for “the estimated all-others rate for all exporters and pro-
ducers not individually investigated.” Double Coin
acknowledges
19 C.F.R. § 351.107(d), an antidumping pro-
ceeding regulation, which reads as follows:
(d) Rates in antidumping proceedings involving
nonmarket economy countries. In an antidumping
proceeding involving imports from a nonmarket
economy country, “rates” may consist of a single
dumping margin applicable to all exporters and
producers.
Because Congress has expressly provided for only two
kinds of rates in antidumping proceedings, Double Coin ar-
gues that this regulation cannot serve as authority to cre-
ate and impose a third kind of rate, to be applicable to
exporters or producers from NME countries who fail to
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14 CHINA MANUFACTURERS ALLIANCE v. US
rebut the presumption of government control. The govern-
ment does not disagree with Double Coin on this point, and
indeed agrees with Double Coin that a lawful antidumping
rate for an NME-wide entity must be one of the two rates
specified in § 1673d.
The government argues that the rate assigned to the
PRC-wide entity in this case is a rate for the defined entity,
and is a rate that was individually investigated for that
group. Double Coin disagrees, arguing first that Commerce
lacks authority to treat the entity as an “each exporter” un-
der the statute, and additionally, even if Commerce has au-
thority to recognize the PRC-wide entity as an “each
exporter,” the PRC-wide rate in this case cannot stand be-
cause it was not “individually investigated.”
As to whether Commerce may treat a group of export-
ers in an NME-economy as a single, separate exporter for
purposes of receiving an antidumping rate, Double Coin
recognizes that binding cases (too numerous to list in their
entirety) have uniformly sustained Commerce’s recogni-
tion of an NME-wide entity as a single exporter for pur-
poses of assigning an antidumping rate to the individual
members of the entity. See, e.g., Michaels Stores, Inc. v.
United States,
766 F.3d 1388, 1390–91 (Fed. Cir. 2014). But
Double Coin questions here the authority for Commerce to
so recognize such an NME-wide entity. Although
19 C.F.R.
§ 351.107 may bar an additional kind of antidumping rate,
Double Coin does not come to grips with the clear authority
provided by the regulation for Commerce to fashion a sin-
gle rate for all exporters and producers that qualify for the
single rate. We think it clear that Commerce may, where
the facts warrant, recognize a single NME-wide entity to
include all exporters that fail to rebut the presumption of
government control. The authority question left in this case
is thus whether the PRC-wide rate in this case can fairly
be understood as a rate investigated for the single PRC-
wide entity. We think, contrary to Double Coin’s view, that
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CHINA MANUFACTURERS ALLIANCE v. US 15
the PRC-wide rate in this case qualifies as individually in-
vestigated. 7
It is true, as Double Coin notes, that in the fifth admin-
istrative review the members of the PRC-wide entity (other
than Double Coin, the later-arriving member of the entity)
were not individually investigated. Double Coin, of course,
was so investigated and given its individually investigated
rate, which it forfeited upon its failure to rebut the pre-
sumption of government control. But the non-Double Coin
members of the PRC-wide entity were investigated in the
initial investigation. As the government explains, “Com-
merce investigated the exporters in China during its initial
investigation and calculated a single, China-wide entity
rate to be applied to exporters who fail to establish inde-
pendence from state control.” See Appellant Reply Br. at 6.
In the initial antidumping investigation, Commerce sent
quantity and value questionnaires to ninety-four identified
7 The subject of what kind of antidumping rates
Commerce may legally apply in antidumping investiga-
tions was under adjudication in another case before the
Trade Court during the time this case was also pending be-
fore the Trade Court. In Thuan An Production Trading &
Service Co. v. United States, the Trade Court held that the
only permissible rates for antidumping proceedings are the
two specified in 19 U.S.C. § 1673d(c)(1)(B)(i)(I)–(II), and
that
19 C.F.R. § 351.107(d) does not provide authority for
a third kind of rate.
348 F. Supp. 3d 1340, 1347–48 (Ct. Int’l
Trade 2018) (Thuan An I). Following a remand, the Trade
Court further held that the rate established for the PRC-
wide entity in that case qualified as “individually investi-
gated” within the meaning of § 1673d(c)(1)(B)(i)(I). Thuan
An Prod. Trading & Serv. Co. v. United States,
396 F. Supp.
3d 1310, 1315–19 (Ct. Int’l Trade 2019) (Thuan An II). The
final decision in Thuan An II was not appealed to this
court.
Case: 20-1159 Document: 74 Page: 16 Filed: 06/10/2021
16 CHINA MANUFACTURERS ALLIANCE v. US
Chinese exporters, and received responses from only thirty.
Based on that information, Commerce identified an entity
composed of uncooperative exporters, who had failed to re-
but the presumption of government control and for whom
Commerce had no individual data. Accordingly, Commerce
calculated an AFA rate for this PRC-wide entity. The PRC-
wide entity rate resulting from Commerce’s initial investi-
gation constitutes an “individually investigated” weighted
average dumping margin within the meaning of
§ 1673d(c)(1)(B)(i)(I) because “Commerce treats the compa-
nies comprising the China-wide entity as a single entity
and investigated them as such in the original investiga-
tion.” See Appellant Reply Br. at 6. Double Coin fails to es-
tablish that any additional investigation into the country-
wide entity is required in order to comport with the statute
in carrying this investigated rate forward into later admin-
istrative review proceedings. Our decision in Diamond
Sawblades confirmed that Commerce may carry forward
an initial NME entity rate, including the adverse infer-
ences built into that rate, in subsequent administrative re-
views. 866 F.3d at 1314–15.
Application of PRC-Wide Rate in This Case
Commerce determined that the proper PRC-wide en-
tity rate in the fifth annual review is a simple average of
the carried-forward AFA-based PRC-wide rate of 210.48%
and Double Coin’s 0.14% investigated rate, for a PRC-wide
rate of 105.31%. 8 Commerce’s authority generally to carry
forward pre-existing AFA-based PRC-wide rates was sus-
tained in Dongtai Peak Honey Industry Co. v. United
8 We understand Double Coin to challenge the pro-
priety of carrying forward the previously established
210.48% PRC-wide rate into the fifth annual review, but if
the carrying forward is permissible, not to challenge the
averaging methodology used by Commerce to calculate the
105.31% rate.
Case: 20-1159 Document: 74 Page: 17 Filed: 06/10/2021
CHINA MANUFACTURERS ALLIANCE v. US 17
States,
777 F.3d 1343, 1356 (Fed. Cir. 2015), and Double
Coin points to no precedent that precludes the discretion
Commerce exercised in averaging the two rates in this
case. See Sigma,
117 F.3d at 1405 (Commerce “has broad
authority to interpret the antidumping statute and devise
procedures to carry out the statutory mandate.”). The
Trade Court correctly understood our holding in Diamond
Sawblades to authorize a PRC-wide rate for Double Coin,
but the court concluded that Commerce is barred from ap-
plying an AFA-based PRC-wide rate to a cooperating ex-
porter following an administrative review in which no
member of the PRC-wide entity failed to cooperate with
Commerce. Because the record in Diamond Sawblades
showed that twenty-one exporters within the PRC-wide en-
tity had not cooperated with Commerce, the Trade Court
interpreted our Diamond Sawblades decision to condition
its holding on the presence of non-cooperating PRC-wide
entity members in the annual review. Thus distinguishing
Diamond Sawblades, the Trade Court concluded that the
only permissible rate for Double Coin on the record of this
case is its 0.14% rate.
In Diamond Sawblades, a mandatory respondent
(ATM) who cooperated with the review and supplied suffi-
cient data for calculation of an individual rate for it, but
who failed to rebut the presumption of government control,
was denied its individually investigated rate and instead
given an AFA-based PRC-wide rate set by investigation in
the underlying antidumping investigation. In that case, as
in this case, Commerce did not review the composition of
the PRC-wide entity, or data particular to the exports of
members of the PRC-wide entity, but did review the PRC-
wide rate. 9 The other 21 identified members of the PRC-
9 See Diamond Sawblades, 866 F.3d at 1309 (noting
lack of information concerning other members of the PRC-
wide entity and review of only the PRC-wide rate).
Case: 20-1159 Document: 74 Page: 18 Filed: 06/10/2021
18 CHINA MANUFACTURERS ALLIANCE v. US
wide entity, like Double Coin in this case, joined the PRC-
wide group after failing to rebut the presumption of gov-
ernment control. See Appellant Br. at 30. The review of the
PRC-wide rate consisted of Commerce’s carrying forward
of the preexisting AFA-based PRC-wide entity rate, in com-
bination with a simple averaging of ATM’s individually in-
vestigated rate, to calculate an updated PRC-wide entity
rate. Diamond Sawblades, 866 F.3d at 1314. In Diamond
Sawblades, the cooperation (or lack thereof), or even the
presence, of other exporters who made up the composition
of the PRC-wide entity was immaterial to Commerce’s de-
cision to apply the PRC-wide rate to ATM, and was simi-
larly considered immaterial by this court. We found “no
issue with Commerce’s use of the previously established
PRC-wide entity rate to calculate an updated PRC-wide en-
tity rate that applies to ATM.” Id. Because the conduct of
members of a PRC-wide entity is not a condition necessary
to sustain an AFA-based PRC-wide entity rate for a coop-
erating mandatory respondent who joins the PRC-wide en-
tity during a review, this case cannot be distinguished from
Diamond Sawblades. As we perceive no material difference
between the record upon which Commerce established its
PRC-wide rate in the two cases, we conclude that Com-
merce was within the law in assigning the 105.31% PRC-
wide entity rate to Double Coin.
Double Coin nonetheless points to numerous past cases
involving PRC-wide antidumping rates in which numerous
members of the PRC-wide entity were present before Com-
merce during the relevant investigations, 10 and in which
other exporters fell into the PRC-wide entity upon failure
10 See, e.g., Albemarle Corp. v. United States,
821 F.3d
1345 (Fed. Cir. 2016); Michaels Stores,
766 F.3d 1388;
Transcom, Inc. v. United States,
294 F.3d 1371 (Fed. Cir.
2002); Sigma Corp. v. United States,
117 F.3d 1401 (Fed.
Cir. 1997).
Case: 20-1159 Document: 74 Page: 19 Filed: 06/10/2021
CHINA MANUFACTURERS ALLIANCE v. US 19
to rebut the presumption of government control. Double
Coin suggests that the presence of other PRC-entity mem-
bers in those cases was a legal prerequisite to application
of the PRC-wide rate to the exporters who fell into the
group after failing to rebut the key presumption. But none
of those cases state such a prerequisite, and we see no rea-
son to read such a prerequisite into those cases. Double
Coin also makes much of the fact that in this case, Com-
merce did not review exports by other members of the PRC-
wide entity. But Double Coin has not pointed to any record
evidence in Commerce’s proceedings in Diamond Saw-
blades showing review by Commerce of exports by any of
the other members of the PRC-wide entity in that case. 11
As our decision in Diamond Sawblades recognized, focus
on the other members of the PRC-wide entity was not a
condition upon which the legality of the PRC-wide rate de-
pended. The fact that Double Coin is the only member of
the PRC-wide group identified by name in the fifth annual
review in this case does not undermine the assignment of
the PRC-wide entity rate to Double Coin. Double Coin en-
tered the fifth annual review knowing that Commerce was
carrying forward a preexisting PRC-wide rate, based on
AFA, for application to any exporter who failed to rebut the
presumption of government control. Double Coin sought,
but failed, to rebut the presumption of government control.
Double Coin has not convinced us that application of the
PRC-wide rate to it is unlawful, but the government has
convinced us that the Trade Court erred in blocking Com-
merce from applying the PRC-wide rate to Double Coin.
CONCLUSION
We have previously affirmed Commerce’s practice of
applying a rebuttable presumption that all companies
11 Our independent review of Commerce’s actions in
Diamond Sawblades also did not reveal any assessment of
exports by other members of the PRC-wide entity.
Case: 20-1159 Document: 74 Page: 20 Filed: 06/10/2021
20 CHINA MANUFACTURERS ALLIANCE v. US
within an NME country are subject to government control.
Sigma,
117 F.3d at 1405. We now confirm that the result-
ing country-wide NME entity rate may be an “individually
investigated” rate within the meaning of 19 U.S.C.
§ 1673d(c)(1)(B)(i)(I), which Commerce may determine us-
ing its ordinary techniques of investigation. Commerce
may permissibly assign such a rate to the unitary group of
exporters in an NME country that have failed to rebut the
presumption of government control. This rate may be
based in whole or in part on FA or AFA, and Commerce
may carry forward an initial NME entity rate, including
adverse inferences built into that rate, in subsequent ad-
ministrative reviews. Diamond Sawblades, 866 F.3d at
1312–15. As we concluded in Diamond Sawblades, where a
respondent in an NME country cooperates with an investi-
gation or review but fails to rebut the presumption of gov-
ernment control, Commerce may permissibly apply the
country-wide NME entity rate. This conclusion applies
whether or not other members of the NME-wide entity are
identified by name and subject to the administrative re-
view at issue. For the reasons discussed, we conclude that
Commerce’s application of the 105.31% PRC-wide entity
rate to Double Coin was not contrary to law and was rea-
sonable on the facts of this case. Accordingly, we reverse
the final judgment of the Trade Court and remand the case
with instructions to return the case to Commerce for it to
proceed in a manner consistent with this opinion.
REVERSED AND REMANDED
COSTS
No costs.
