Advanced Tech. & Materials Co., Ltd v. United States , 885 F. Supp. 2d 1343 ( 2012 )

Slip Op. 12 - 147
UNITED STATES COURT OF INTERNATIONAL TRADE
:
ADVANCED TECHNOLOGY & MATERIALS :
CO., LTD., BEIJING GANG YAN DIAMOND :
PRODUCTS COMPANY, and GANG YAN :
DIAMOND PRODUCTS, INC., :
:
Plaintiffs, : Before: R. Kenton Musgrave, Senior Judge
:
BOSUN TOOLS GROUP CO. LTD, : Consol. Court No. 09-00511
:
Plaintiff-Intervenor, : PUBLIC VERSION
:
v. :
:
UNITED STATES, :
:
Defendant, :
:
and :
:
DIAMOND SAWBLADES MANUFACTURERS :
COALITION, WEIHAI XIANGGUANG :
MECHANICAL INDUSTRIAL CO., LTD., :
and QINGDAO SHINHAN DIAMOND :
INDUSTRIAL. CO., LTD., :
:
Defendant-Intervenors. :
:
OPINION
[Remanding first results of remand of antidumping duty investigation of sales at less than fair value
of diamond sawblades and parts thereof from the People’s Republic of China.]
Dated: November 30, 2012
Jeffery S. Neeley, Michael S. Holton and Stephen W. Brophy, Barnes, Richardson & Colburn,
of Washington DC, for the plaintiffs.
Consol. Court No. 09-00511 Page 2
Delisa M. Sanchez, Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington DC, for the defendant. With her on the brief were Stuart F.
Delery, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Franklin E. White,
Jr., Assistant Director. Of Counsel on the brief was Nathaniel J. Halvorson, Office of the Chief
Counsel for Import Administration, U.S. Department of Commerce.
Daniel B. Pickard and Maureen E. Thorson, Wiley Rein, LLP, of Washington DC, for
defendant-intervenor Diamond Sawblades Manufacturers Coalition.
Musgrave, Senior Judge: This opinion considers the results of remand from the U.S.
Department of Commerce, International Trade Administration (“Commerce” or “Department”) on
the investigation into sales from the People’s Republic of China (“PRC”) of diamond sawblades and
parts thereof at less than fair value (“LTFV”).1 See Slip Op. 11-122 (Oct. 12, 2011), familiarity with
which is presumed. The petitioners, Diamond Sawblades Manufacturers Coalition (“DSMC”), argue
for further remand while the defendant and the three respondents comprising the “AT&M
entity,”Advanced Technology & Materials, Co., Ltd. (“AT&M”), Beijing Gang Yan Diamond
Products Company (“BGY”) and Gang Yan Diamond Products, Inc., argue for sustenance.
The standard of review requires “substantial” evidence on the record, 19 U.S.C. §
1516a(b)(1)(B)(I), which assesses the reasonableness of the agency’s determination. E.g., U.S. Steel
Corp. v. United States, 621 F.3d 1351, 1357 (Fed. Cir. 2010), citing Universal Camera Corp. v.
NLRB, 340 U.S. 474, 477 (1951). See Charles H. Koch, Jr., 3 Admin. L. & Prac. § 9:24 (3d ed.) (the
standard requires the “court to assure that there is a relatively high probability that the agency is
correct”). A determination “of less than ideal clarity” may be sustained “if the agency’s path may
1
Diamond Sawblades and Parts Thereof From the People’s Republic of China, 71 Fed. Reg.
29303 (May 22, 2006) (final LTFV determination) “Final Determination”), as amended, 71 Fed.
Reg. 35864 (June 22, 2006). The period of investigation (“POI”) is October 1, 2004, through March
31, 2005.
Consol. Court No. 09-00511 Page 3
reasonably be discerned,” but the determination is examined on that basis. Bowman Transp. Inc. v.
Arkansas-Best Freight System, Inc., 419 U.S. 281, 286 (1974). In other words, it will not be
sustained upon a “reasoned basis for the agency’s action that the agency itself has not given[.]” Id.
at 285-86, referencing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947). As explained below, the
remand results will be remanded for further analysis.
“Separate Rate” Analysis of the AT&M Entity
I. Background
Previously discussed, Commerce employs a rebuttable presumption of governmental
control over export operations in antidumping duty proceedings involving non-market economy
(“NME”) participants. See, e.g., Bicycles from the People’s Republic of China, 61 Fed. Reg. 19026(Apr. 30, 1996) (final LTFV determination). To obtain a “separate” antidumping duty rate, a
respondent must demonstrate that its export operations meet the three de jure and four de facto
factors comprising the separate rate test announced in Sparklers from the People’s Republic of
China, 56 Fed. Reg. 20588 (May 6, 1991) (final LTFV determination), as modified by Silicon
Carbide From the People’s Republic of China, 59 Fed. Reg. 22585 (May 2, 1994) (final LTFV
determination) (“Silicon Carbide”). See Import Administration Policy Bulletin 05.1 (Apr. 5, 2005).
The de jure factors are (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) other formal measures by the government decentralizing control of companies.
The de facto factors typically considered are (1) the ability to set export prices independently of the
government and without the approval of a government authority, (2) the authority to negotiate and
Consol. Court No. 09-00511 Page 4
sign contracts and other agreements, (3) the possession of autonomy from the government regarding
the “selection” of management, and (4) the ability to retain the proceeds from sales and make
independent decisions regarding the disposition of profits or financing of losses.
In answer to the question of how BGY sets its export prices, for the preliminary
determination Commerce outlined that BGY certified in its August 25, 2005 questionnaire response
that those prices are neither set by nor subject to the approval of a government agency, and that BGY
had provided emails between its general manager and unaffiliated U.S. customers regarding price
negotiation on U.S. sales as well as documents “demonstrating independent negotiation of contracts
for purchases of raw materials” in addition to “documentation that both BGY and AT&M select their
own management and boards of directors[.]” Diamond Sawblades and Parts Thereof from the
People’s Republic of China, 70 Fed. Reg. 77121, 77127 (Dec. 29, 2005) (inter alia, preliminary
LTFV determination). The petitioners DSMC challenged this, arguing that the AT&M entity,
through shareholding, is controlled by the Central Iron and Steel Research Institute (“CISRI”), which
is owned by one of the PRC’s state-owned assets supervision and administration commissions
(“SASAC”). Nevertheless, Commerce preliminarily granted a separate rate because, “[a]lthough
Petitioner has stated that SASAC has the authority to hire and fire management and order asset sales
and acquisitions at CISRI, it has provided no evidence on the record of this proceeding that SASAC
had the ability to exercise such control over AT&M and BGY during the POI.” Id.For the final determination, the DSMC (re)iterated that Commerce’s finding was
contrary to “Decree of the State Council of the People’s Republic of China No. 378: Interim
Regulations on Supervision and Management of State-owned Assets of Enterprises (2003)” (“Interim
Consol. Court No. 09-00511 Page 5
Regulations” or “IR”), the PRC law governing state-owned enterprises, which DSMC contended de
jure undermined BGY’s independence under the Company Law. Commerce’s essential response
was that it “has consistently found an absence of de jure control when a company’s operations were
governed by the Company Law of the PRC, and when it supplied business licenses and export
licenses, each of which have been found to demonstrate an absence of restrictive stipulations and
decentralization of control of the company.” Issues and Decision Memorandum for the Final
Determination, 71 ITADOC 29303 (May 15, 2006) (I&D Memo) (Comment 16). Further
explanation followed:
The information submitted by Petitioner addresses a theoretical control by SASAC
over CISRI, rather than any control of the PRC [G]overnment at any level over the
numerous individual export decisions of the AT&M single entity that took place
during the POI. BGY placed numerous documents on the record that were examined
for the Preliminary Determination. . . .
***
. . . With respect to Petitioner’s argument that the Department found at verification
that four members of AT&M’s board of directors are PRC [G]overnment officials,
the Department notes that this is a misreading of the report which states merely that
four members of AT&M’s board were representatives of CISRI. See BGY
Verification Report, at 9. Further, we note that these four individuals are a minority
on the board of directors, of which two other members are representatives of AT&M,
and three additional members are independently appointed by the stock exchange
committee. See id.Id., referencing 70 Fed. Reg at 77126.
As part of this consolidated action, the DSCM’s challenge to that determination was
remanded to Commerce for clarification of the separate rate test in general and explanation of why
Commerce essentially considered irrelevant the shareholder control over the AT&M entity that
appeared traceable to the PRC Government, as argued by the DSMC.
Consol. Court No. 09-00511 Page 6
II. Summary of Remand Results
On remand, Commerce continues to conclude that the government-owned status of
AT&M’s majority shareholder, CISRI, does not affect determining that the AT&M entity is eligible
for a separate rate, and it offers three broad reasons therefor. First, Commerce declares CISRI free
of PRC control in its own right, de jure, by virtue of its corporate form, an “owned by all the people”
company,2 of the type Commerce has previously declared “insulated” from governmental control and
to which state control has been “devolved,” and therefore CISRI cannot “pass on” any governmental
control to the AT&M entity through shareholding.
Second, Commerce finds the existence of legal “barriers” between PRC companies
and their majority shareholders, such that even if CISRI is AT&M’s majority shareholder, the
AT&M entity is also free, de jure, of government control in its own right. The legal matter relied
upon for this conclusion includes AT&M’s articles of association, the “Company Law of the
People’s Republic of China (1999 Amended)” (“Company Law” or “CL”) and the “Code of
Governance for Listed Companies.” Commerce notes the latter are among the PRC laws it has
previously accepted as evidence of the “absence” of de jure governmental control over a company’s
export operations. Commerce acknowledges that AT&M’s board of directors is responsible for
2
Remand Results (“RR”) at 3. Specifically, Commerce relied on CISRI’s articles of
association to find CISRI able to conduct its own business operations “without any level of input
from the PRC Government or the SASAC,” able to control its own profits, losses, capital and assets
despite being fully financed by SASAC, able to “elect” its president at the employee representatives
meeting “without input or influence from the PRC Government or SASAC,” and able to permit the
employees to “democratically elect[ ]” CISRI’s management, “actively participate in decisions”
concerning business operations “through a democratic process,” and “retain[ ] control of its business
operations.” Id. at 3-4, referencing BGY’s Sep. 20, 2005 Supp. Q. Resp. at Ex. 10-2 (CISRI’s
articles of incorporation).
Consol. Court No. 09-00511 Page 7
selecting the general management including management over export operations and that only
shareholders owning a certain minimum percentage of shares (i.e., CISRI) are permitted to nominate
candidates for board and management positions, but Commerce found that candidates nominated to
the board require the unanimous votes of the shareholders in order to gain appointment and reasoned
that the power of veto means CISRI does not “control” AT&M’s board, as does the fact that CISRI’s
representatives on the board are a minority in number.
Third, with respect to de facto control over the AT&M entity, Commerce concludes
that its absence was established in the original investigation as well as by (re)analysis on remand of
copies of certain board resolutions documenting the voting and appointment of certain managers as
well as certain financial statements and board meeting minutes at which all board members discussed
and voted upon profit distribution. RR at 8, referencing BGY’s Sep. 20, 2005 Supp. Q. Resp., at Ex.
SA-22. Commerce thereby reiterates that the AT&M entity has demonstrated the absence of both
de jure and de facto control regarding the selection of managers and the distribution of profits, and
that DSMC’s information, in particular the Interim Regulations, is insufficient to undermine the
AT&M entity’s entitlement to a separate rate.
III. Discussion
The court cannot sustain the remand results on the bases articulated by Commerce.
In particular, the court remains concerned that Commerce has failed to consider important aspects
of the problem and offered explanations that run counter to the evidence before it. See Motor
Vehicle Mfrs. Ass’n of United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
In other words, the thread of analysis pretty much begins where left off. See Slip Op. 11-022 at 26.
Consol. Court No. 09-00511 Page 8
A. Commerce Policy re Ownership of
Separate Rate Applicant; Form of Owner
The court requested explanation of why CISRI is considered irrelevant to the separate
rate analysis. The stated answer is that “in keeping with precedent” CISRI was not required “to
address the separate-rate criteria because the separate rates test applies only to exporters.” That may
be true, but it does not explain. There is no dispute that the focus of the separate rates test here is
the AT&M entity’s export operations, that Commerce’s test applies only to exporters, and that CISRI
is not an exporter, but CISRI is still an owner, and even the AT&M entity agrees consideration of
that ownership is relevant. See AT&M Comments at 5.
Commerce did analyze CISRI to some degree nonetheless, and it concluded the
corporeal form of CISRI effectively “insulated” CISRI from governmental control. As part of their
argument concerning governmental control of AT&M, the DSMC pointed to the fact that CISRI
defines itself as a “state-owned enterprise,” however Commerce dismissed this point on remand as
mere “designation that does not restructure or reformulate the corporate form,” and because after
promulgation of the Interim Regulations and the creation of the SASAC, CISRI did not file for a new
business license or restructure or reformulate its articles of association. See RR at 18-19. The retort
does not make sense. Commerce admits CISRI is a “state-owned enterprise,” see RR at 20, and the
advent of the Interim Regulations and the creation of SASAC would not have resulted in changes
to CISRI’s articles or license unless CISRI no longer intended to operate, e.g., as state-owned.3
3
See Global Economic and Technological Change: Former Soviet Union and Eastern
Europe, and China, S. Hrg. 102-586, Pt. 2, 129, 196 (Jun. 8 and Jul. 27, 1992) (CIA Report on
China’s Economy) (“‘State-owned enterprise’ is a short-hand term for the Chinese designator
‘enterprise under the ownership of all the people’”); see also Silicon Carbide (relying on said report).
Consol. Court No. 09-00511 Page 9
As to “insulation” from governmental control, Commerce essentially appeals to its
“long standing” position with respect to “owned by all the people” companies, which is that the PRC
Government has “devolved” control to them, which therefore “demonstrat[es] that CISRI is insulated
from government control . . . and thus [is] not in a position to exercise government control over
ATM as one of its shareholders[.]” RR at 5-6 (italics added). This is faulty logic. Appeal to
tradition may simply indicate ossification, undeserving of deference,4 and, to the court’s knowledge,
corporate form in and of itself has never been found to “demonstrate” insulation from governmental
control, or further de jure proof of the absence thereof in accordance with the separate rate test would
serve no purpose. Commerce here runs the risk of being interpreted as effectively disavowing its
own test, when the prior opinion only observed that “government ownership by itself is not
dispositive” of the issue of governmental control. Slip Op. 11-122 at 14-15, quoting Qingdao Taifa
Group Co. v. United States, 33 CIT ___, ___, 637 F. Supp. 2d 1231, 1242 (2009). As stated in
Import Policy Bulletin 05.1, “the test focuses on controls over the decision-making process on
export-related investment, pricing, and output decisions at the individual firm level;” thus, the
precise inquiry is governmental involvement in “decision-making.” The second of the de jure factors
is “legislative enactments decentralizing control of companies.” And owners, of course, may be
“companies” -- with obvious interests in the “decision-making process” to which their investments
are being put -- which naturally leads to the following.
4
See, e.g., Butterbaugh v. Department of Justice, 336 F.3d 1332 (Fed. Cir. 2003) (any
deference to “traditional” administrative interpretation owed under Skidmore v. Swift & Co., 323
U.S. 134, 140 (1944) does not outweigh contrary conclusions drawn from certain statutory text); see
also United States v. Mead Corp., 533 U.S. 218, 247 (2001) (Scalia, J., dissenting). The court here
could not previously discern Commerce’s parent-subsidiary policy. See Slip Op. 11-122 at 24-26.
Consol. Court No. 09-00511 Page 10
B. Further Analysis of the Interim
Regulations and Governmental Control
The circa-2003 creation of the SASACs and the Interim Regulations that intervened
since issuance of Silicon Carbide are of some import to the matter at bar. As with other PRC laws
and regulations, the Interim Regulations evince corporeal identification of “ownership” and
“management” for all companies covered thereby. Those include state-owned enterprises, such as
CISRI, and enterprises with state-owned equity, such as AT&M. See IR, Art. 2. The remand results’
analysis of the Interim Regulations, however, raises more questions than answers as to the relevant
distinctions of those concepts in the context of “governmental control” and this case.
Commerce maintains that the Interim Regulations changed nothing of relevance and
that SASAC/CISRI essentially continue to act merely as passive owner/investors with respect to the
AT&M entity.5 Thus, Commerce concludes that “the Interim Regulations do not automatically
demonstrate de jure control of a state-owned enterprise[,]” id. at 20, and that the Interim Regulations
“set[ ] aside particular protections for the autonomy of companies operating under SASAC, showing
that SASAC solely provides oversight and is not intended to direct day-to-day business operations”
and does not “interfere [in] or influence” the latter. RR at 21 (italics added). The court fails to
discern from the record why that is the case, as various provisions among the Interim Regulations
directly conflict with these observations. The latter reasoning also rests on a slippery slope.
5
See, e.g., RR at 12-14 & 20-21, referencing IR at Arts. 3 & 4. Commerce notes that the
Interim Regulations provide for “separation of ownership from management.” Id. at 21 quoting IR,
Art. 7. Commerce further observed that “those companies operating under SASAC ‘enjoy autonomy
in their operation,’ and that SASAC ‘shall support the independent operation of enterprises
according to law, and shall not interfere in their production and operation activities . . ..’” Id.,
quoting IR, Art. 10. The DSMC justifiably criticize Commerce for omitting the remainder from
Article 10: “. . . apart from performing the responsibilities of investor.”
Consol. Court No. 09-00511 Page 11
The Interim Regulations provide that SASAC’s “invested enterprises shall accept the
supervision and administration conducted by the State-owned assets and administration authority
according to law[.]” IR, Art. 11. This seems an obvious declaration of re-centralized de
jure control, of “invested enterprises” including those that are wholly state-owned, such as CISRI,
and those in which the state has an investment, such as AT&M. See, e.g., IR, Art. 1. SASAC “is
responsible for directing State-owned enterprises[,]” id., Art. 20 (italics added). Further substantial
evidence of record does not support the inference that SASAC’s “management”6 of its “state-owned
assets” is restricted to the kind of passive-investor de jure “separation” that Commerce concludes.
For example, the Interim Regulations confer upon SASAC the authority to appoint
or remove (including proposals therefor) “the responsible persons of its invested enterprises”
including the general manager, deputy general manager, and/or chief accountant of SASAC’s state-
owned enterprises “in accordance with the relevant provisions.” See IR, Arts. 13, 17. CISRI’s
February 23, 2000 articles of association state that to the extent they conflict with any PRC laws the
6
By way of background, the Interim Regulations provides that SASAC “manages” the
“state-owned assets of enterprises,” and the “state-owned assets supervision and administration
authority of the government at a higher level guides and supervises according to law the management
work of state-owned assets supervision and administration of the government at a lower level.” IR,
Art. 12. The main responsibilities of a state-owned assets supervision and administration authority
include performing “the responsibilities of investor for the invested enterprises” in accordance with
the Company Law and other related laws and regulations and dispatching “supervisory panels to the
invested enterprises,” in addition to “appoint[ing] or remov[ing] the responsible persons of the
invested enterprises[.]” IR, Art. 13. Article 14 states that SASAC shall “respect and safeguard the
operational autonomy of State-owned enterprises and State-owned holding enterprises” but also
obliges SASAC to more nebulous activity, such as “explore effective systems and ways for the
management of State-owned assets of enterprises, enhance the work of supervision and management
of State-owned assets of enterprises,” “improve corporate governance, and advance the
modernization of management,” impel enterprises to “operate and manage according to law” et
cetera. Article 15 states that SASAC “shall report to the government at the corresponding level
about the supervision and management work of State-owned assets of enterprises.” Cf. IR, Art. 12.
Consol. Court No. 09-00511 Page 12
latter control. Thus, the DSMC were correct in pointing out that conflicting provisions in CISRI’s
articles of association were abrogated upon promulgation of the Interim Regulations, at which point
SASAC had the right, de jure, to appoint/remove members of CISRI’s board and management during
the POI despite the “democratic” election of CISRI’s president stated in its articles of association.
Further, “in accordance with the Company Law” SASAC has the authority to
nominate candidates “for the director of the board or supervisor to be dispatched” to a company with
state-owned equity such as AT&M7 and instruct those directors/representatives to exercise voting
rights in accordance with SASAC’s instructions, id., Art. 22. “Voting rights” are made explicit with
respect to “major matters” (e.g., division, merger, bankruptcy), but the authority of a director who
also happens to represent the state’s interests is broader. As Commerce is aware, those duties
explicitly encompass, e.g,, implementation of shareholder resolutions, deciding the company’s
operational and investment plans, formulating annual budgets and plans for profit distribution and
recovery of losses, appointing or dismissing the company’s general manager, et cetera. Cf. Company
Law, Art. 46. Also, Commerce recognizes that the board of directors of AT&M “is in charge of
overseeing . . . business matters[.]” RR at 19. That recognition is in direct contrast to Commerce’s
declared position, from its analysis of de jure “control” in the Interim Regulations, supra, that a
director under SASAC/CISRI’s dispatch is effectively absolved of responsibility for “directing.”
Further, the exclusion of “day to day operations” from “oversight” responsibility is a straw man.
7
Cf. IR, Arts. 11, 12, 17. Commerce regards Article 17 as “limited to those companies that
are deemed ‘invested enterprises” and thus “CISRI’s majority ownership in ATM is not a vehicle
by which SASAC or the PRC [G]overnment can exercise control over the ATM Entity’s export
activities,” RR at 21, but that is a misreading. Commerce acknowledges CISRI is fully financed by
SASAC, RR at 4-5, CISRI’s investment in AT&M is an “asset” of a state-owned enterprise, IR, Art.
3, and as mentioned, SASAC/CISRI owns “state-owned equity” in AT&M. See id., Art. 4.
Consol. Court No. 09-00511 Page 13
Commerce’s analytical assumptions are not based on common or business sense.
They are particularly conspicuous when confronting the de jure possibility of a general manager
appointed by a board under SASAC’s effective control, as permitted (or declared) by the Interim
Regulations. Commerce acknowledges from CISRI’s articles of association that CISRI’s president
is “responsible for” business operations including any investment-related export operations (e.g.,
CISRI’s investment in the AT&M entity) in addition to production, research and development, and
“human resources,” and Commerce is also aware that CISRI, or possibly SASAC, dispatched at least
four individuals, de facto, to AT&M’s board and management. The record further shows two
members of AT&M’s management on the board including its chief executive officer, which opens
up the possibility of subjugation, as well as three “independent” board members who appear to be
directly answerable to another PRC Government agency apart from SASAC. See infra.
Commerce’s interpretation of the Interim Regulations, however, prevented it from acknowledging
a de jure prospect of “governmental control” of AT&M or determining the full de facto actuality of
CISRI’s and AT&M’s management -- by whom and how selected, nominated, dispatched, to whom
answerable, and so forth -- in addition to approval or confirmation by board resolution.8
Commerce’s last references to the Interim Regulations are to Article 27, which
provides that “state-owned enterprises are able to enjoy the rights of an investor in those companies
in which they hold shares, consistent with the Company Law,” and which Commerce concludes
means “CISRI’s independence from the government with regard to its decisions as an AT&M
8
Cf. Verification Report at 11 (providing cursory description(s) of management approval
process). In that regard, it might not be unreasonable to deem such consideration unnecessary, a
fortiori, if the only reasonable interpretation of the record on the issue of governmental control of
AT&M’s board is that only CISRI is relevant and only has“minority” power thereat and there is no
other evidence of “governmental control,” but those assumptions require re-examination. See infra.
Consol. Court No. 09-00511 Page 14
investor are protected by the Company Law from any government interference,” and to Article 42,
which provides that “organizational form, organizational structure, rights and obligations . . . shall
be governed by the Company Law,” and which Commerce declares it “has previously found to
demonstrate the absence of de jure control.” RR at 22. The court does not understand these points.
Even if CISRI had obtained State Council approval as required by Article 27 to act as an investment
company, holding company or investment institution, either in general or with specific respect to its
state-owned equity in AT&M, see IR, Art. 27, see also id. at 12 & 20, it remains the case that
SASAC is CISRI’s sole owner and enjoys all of the rights over CISRI and over CISRI’s investment
in AT&M that inhere in shareholders under the Company Law -- which, in and of itself, is not
demonstrative on the issue of de jure governmental control.
The Company Law rather appears neutral on that issue. As the DSMC point out,
previous findings of the “absence” of de jure governmental control are mainly due to the significant
rights the Company Law provides to investors, including the right to “enjoy the benefits of assets of
the company, make major decisions, choose managers, et cetera, in accordance with the amount of
capital they have invested in the company.” See CL, Art. 4; see, e.g., Certain Cased Pencils From
the People’s Republic of China, 59 Fed. Reg. 55625, 55628 (Nov. 8, 1994) (final LTFV
determination) (finding significant the percentage of private individual shareholdings of respondent).
In other words, where the government or its agency is the controlling investor, de facto, the
Company Law does not free the investee from governmental control, it is being used to subject the
investee to governmental control -- with or without (but especially given) the Interim Regulations.
See DSMC Comments at 18. Indeed, Commerce admits as much, having in other instances looked
to whether the government has exercised its de jure control de facto. See Qingdao Taifa Group,
Consol. Court No. 09-00511 Page 15
supra, 33 CIT at ___, 637 F. Supp. 2d at 1243 and determinations cited. That amounts to conflation
of the de jure and de facto analyses, but here, at least, the court can agree Commerce’s statement that
the Company Law has been “found to demonstrate an absence of de jure control,” e.g. RR at 22, is
inadequate consideration of the DSMC’s proposition, and it lacks, as above opined, common
business sense.9
9
Commerce appears to acknowledge much of the foregoing when it recast the DSMC’s
arguments in the original determination and on remand, see, e.g., RR at 12-14, but Commerce’s
response seems based on numerous red herrings, such as the fact that minority shareholders have
certain rights, et cetera. Rejecting all such fallacious argument, the court remains unclear as to what
this all means in the larger context of Commerce’s separate rate policy. For example,
notwithstanding provisional reference in the Interim Regulations to corporeal “autonomy,” supra,
if SASAC is permitted to appoint and dispatch a “responsible person” pursuant to Articles 13 and
17 and directors pursuant to Article 22, then where is the bright-line “separation” of ownership and
management that Commerce apparently perceives in such a circumstance? And what, if any,
“interference” is there in action undertaken by such individual, once seated to such position, in the
sense contemplated by Article 10 of the Interim Regulations, or Article 21 of the Corporate
Governance Code to the same effect? Or, similarly, where is the “subordination relationship”
ostensibly precluded by Article 26 of the Corporate Governance Code? See also note 10, infra. To
the extent such person embodies SASAC’s policies, objectives, and/or directives, how can the
company’s “independent” operation or interest be discerned, or has it rather been subsumed? As
mentioned above, Commerce concluded that “SASAC solely provides oversight and is not intended
to direct day-to-day business operation” (italics added), but how can that be the case if any SASAC-
appointed/nominated “responsible person” or director or even manager within SASAC’s “invested
enterprises” (including “a company with State-owned equity,” i.e., AT&M) has had a hand or vote
that results in “guiding” or “supervising” or “overseeing” any of such enterprise’s operational
activities including its export activities? That is, where does “oversight” end and “day-to-day
business operation” begin, or does the exception swallow the rule? And notwithstanding whether
a controlling shareholder’s board nominees are a minority of the board, based on whatever
numerosity, if other board members also hold managerial offices within the company, then why does
that not present a potential problem of subjugation that should be examined? To whom are such
persons and controlling shareholder nominees answerable? And lest Commerce simply presume
such persons to wear the kind of “separate hat” described in United States v. Bestfoods, 524 U.S. 51,
69 (1998), why would it be appropriate to project the operation of U.S. law onto the managerial
operation of PRC companies, and how would that square with the presumption of state control that
is supposed to be the context of the separate rate test in the first place? On the other hand, given the
imprecise treatment of the issue thus far, and begging the parties’ indulgence, at this point the court
has little confidence these are even the right questions to ask in moving towards proper disposition
of this matter.
Consol. Court No. 09-00511 Page 16
C. Further Analysis of the Company Law
Commerce’s analysis of the Company Law adds little to assuage the de jure issue of
governmental control of a company through ownership. Commerce notes that Articles 16 and 20
of the Company Law allow state-owned enterprises to invest of their own accord in limited liability
companies which, according to Commerce, ensures that the company will continue to operate under
a “democratic management structure.” RR at 23 (citation omitted). See also note 2. But, Article
20 simply provides in relevant part that “a state-authorized investment institution or a department
authorized by the state may invest on its own to establish a wholly state-owned limited liability
company.” CL, Art. 20; see also RR at 23. On its face, this provision preserves state shareholding
power by allocating state institutions, with appropriate governmental deputization, to create wholly
state-owned companies in which the state’s shareholding power is undiluted. It does not appear that
this may reasonably be construed to “limit” the power of the state in the companies in which the state
invests. Further, Commerce does not explain the significance of “ensure . . . a democratic
management structure” or why such a “structure,” per se, would be detached from governmental
involvement. In the absence of clarity in the context of the separate rate test, this seems gratuitous.
Article 38 of the Company Law, which is implicated by the Interim Regulations,
“delimits,” according to Commerce, the exact powers that shareholders can hold. Commerce implies
these are limited to “high level” powers only, such as the appointment of the board of directors,
establishing the articles of association, and approving various financial decisions such as profit
distribution and budget plans that are established by the board of directors. Commerce omits the
ability “to decide on the company’s operational policies and investment plans,” but be that as it may,
Consol. Court No. 09-00511 Page 17
the court remains unclear why Commerce has concluded, in effect, that the Company Law restricts
the PRC Government from implementation of its own Interim Regulations and from becoming a
company’s controlling shareholder and acting in furtherance of such control of the company.
After analyzing various other provisions that basically support identification of
limited liability companies as legal entities, Commerce concludes that “the Company Law separates
the powers between the shareholders and the Board of Directors, where the primary purpose of the
Board of Directors is to design plans related to business functions and to enact them as they are
approved by the shareholders,” and that Article 50 “provides for another degree of separation” by
concentrating certain powers in the hands of a general manager. Id. (italics added). Once again, it
is unclear what significance Commerce draws from this. The concern here is not over directorial
liability,10 and none of the points undermines or addresses the fact of CISRI as AT&M’s controlling
shareholder, or indicates that the operation of the board and general manager are “insulated” from
the shareholders to the extent Commerce implies, or addresses in any way the fact that “shareholders
representatives” may be, and often are, sitting as directors on the board itself.
Article 37 of the Company Law makes clear that the general meeting of all
shareholders is the supreme organ of the company, as numerous legal commentators have noted. The
boards of PRC limited liability companies are “responsible to the shareholders” pursuant to Articles
37 and 46. Shareholders have the ability to hire and fire each board member and decide their pay
10
But cf. IR, Art. 38 (“Where, in violation of the relevant provisions, the State-owned assets
supervision and administration authority . . . illegally interferes in the production and operation of
the invested enterprises . . .” et cetera). Given that SASAC seems to have the authority to appoint
or nominate a general manager in charge of operations, is the “illegal interference” of that
provisional context rather with respect to any SASAC objective for production and operation?
Consol. Court No. 09-00511 Page 18
pursuant to Article 38, and each board member is thereby beholden. That amounts to delegation, as
opposed to separation,11 as does Article 50, since the general manager, in point of fact, is selected
by the same board of directors “in charge of overall business planning and the selection of upper
management” that is “responsible to the shareholders” and can readily be replaced at their whim.
CL, Arts. 38, 50.
The point here is that “governmental control” in the context of the separate rate test
appears to be a fuzzy concept, at least to this court, since a “degree” of it can obviously be traced
from the controlling shareholder, to the board, to the general manager, and so on along the chain to
“day-to-day decisions of export operations,” including terms, financing, and inputs into finished
product for export. The other provisions of the Company Law generally cited by Commerce do not
implicate shareholders in any clear way, or clarify why Commerce regards ownership and
management as “separated” by the equivalent of a Great Wall, or what this all signifies, and its
reading of general, hortatory language as limiting is perplexing. See RR at 22-23. For example, it
is unclear why Commerce has determined that Article 6, which states that “a company implements
an internal management structure,” acts to “limit” the power of shareholders, in particular controlling
shareholders, to influence that implementation or structure or what this implies. See id. at 23. To
summarize: given that the separate rate test factors are not facially restricted to obvious “direct”
control of export pricing, e.g., via export licensing, the court, as mentioned, continues to be mystified
11
Taken as a whole, the PRC perspective of corporate ownership and management could be
construed as rather in line with the general Anglo-Saxon jurisprudential view of corporations until
the end of the 19th century, i.e., that the board of directors is merely an agent of the company and
its shareholders and serving at their pleasure. See, e.g., Isle of Wight Railway Co. v Tahourdin,
(1884) LR 25 Ch D 320.
Consol. Court No. 09-00511 Page 19
as to why Commerce reflexively interprets the Company Law to preclude the PRC Government, de
jure, from lawful control, de facto, through ownership of a company including its export operations.
Repetition, to the point of mantra, that the Company Law “establishes an absence of de jure control,”
et cetera (see RR passim), does not transform incomplete analysis or ipse dixit conclusion.
D. Further Analysis of the
Code of Corporate Governance
Commerce’s analysis of the Code of Corporate Governance (“Code”) also does not
enlighten. The Code applies only to stock market listed companies such as AT&M, and Commerce
cites it mainly for the proposition that majority shareholders’ powers in the companies in which they
invest are particularly limited. But, Commerce reading of certain provisions goes beyond their text
and without explanation for broad interpretation. For example, a provision Commerce cites as
protecting “the rights of all shareholders, including minority shareholders” contains the caveat that
minority shareholders’ rights and duties are “based on the shares that they hold.” Compare RR at
24 with Code, Art. 2. And a provision Commerce cites as requiring complete separation between
a listed company’s personnel and its controlling shareholder in fact provides for listed company
personnel to act as directors of the majority shareholder and vice versa. Compare RR at 24 with
Code, Art. 23. The court fails to understand how Commerce interprets these provisions to curtail
in any manner a controlling shareholder’s de jure control of a company.
Commerce also relies on Article 20 of the Code for the proposition that “majority
shareholders must consult with all shareholders to appoint senior management.” RR at 24. Article
20 actually states that “controlling shareholders are forbidden to appoint senior management by
circumventing the shareholders’ meetings or the board of directors.” Apart from the fact that this
Consol. Court No. 09-00511 Page 20
provision conflicts with Commerce’s reading of the Company Law and AT&M’s articles of
association, pursuant to which management is not appointed by the shareholders at all but by the
directors, compare RR at 24 with id. at 23, it is unclear how Commerce reads Article 20 as
effectively limiting the controlling shareholder’s powers when, for example, the controlling
shareholder could simply call12 a shareholders meeting to comply with relevant provision(s).
Elsewhere, Commerce attempts to bolster its decision by citing Articles 22-27 of the
Code as further confirming the independence of listed companies from their majority shareholders
and further confirming AT&M’s autonomy from CISRI. RR at 24-25. Articles 22 and 23, for
example, state that a listed company (such as AT&M) shall be “separate” and “independent” from
controlling shareholders in such aspects as personnel, assets, and financial affairs. But those
concepts are not in a vacuum: when read as a whole, Articles 22-27 rather intend protections for
minority shareholders by forbidding controlling shareholders from absconding with listed company
assets, using listed company personnel to further the shareholders’ own independent businesses, or
engaging in business that competes with the listed companies’ business, and such economic and
fiduciary protections for minority shareholders do not appear to indicate why AT&M, de jure, is
“independent” of its state-owned majority shareholder, which has the ability to nominate, hire or fire
12
Moreover, it has been observed elsewhere that in practice the voting power of shareholders
in PRC company shareholders’ meetings is usually exercised by so-called “shareholders’
representatives,” who, for the controlling shareholder(s), is/are usually one or more of the directors
of the company, so in such cases, when the board of directors signs its resolution and submits it to
the shareholders’ meeting for approval, the resolution has already been “approved” by the
shareholders’ meeting, since the controlling shareholder representatives/directors have already signed
the resolution. See, e.g., Foreign Direct Investments in China -- Practical Problems of Complying
with China’s Company Law and Laws for Foreign-Invested Enterprises, 20 NW. J. Int’l L. & Bus.
475, 486-87 (2000).
Consol. Court No. 09-00511 Page 21
its directors, decide on profit allocations, et cetera. They thus reveal little to an inquiry into
“governmental control” in the running of a company including its export operations.
E. Further Analysis of the AT&M Entity
The court also fails to understand from the evidence of record that AT&M’s articles
of association, the Code, and the Company Law create legal “barriers” separating AT&M and CISRI
as concluded by Commerce. In addition to its analysis above, Commerce states that AT&M’s
articles require that nominees for the board of directors “may not be shareholders” and implies that
shareholders are not permitted to be directors. See RR at 19. But, AT&M’s articles of association
only state that directors “need not be shareholders of the company.”13 That is not a barrier. Given
CISRI’s majority stake, this article rather appears to confirm CISRI’s lawful control of AT&M’s
board. Commerce also finds significant that AT&M’s “Board of Directors operates independently
of the shareholders and is in charge of overseeing the business matters of the company,” RR at 19,
but, once again, even to the extent this de jure declaration is true, it is no indication of a controlling
shareholder’s de jure and de facto ability to “control” the board of directors and the company itself.
Ultimately, Commerce finds that AT&M is not “controlled” by CISRI because there
are numerous other AT&M shareholders who all have “protected rights” as minority shareholders
including voting rights. But facts drive the law, not vice versa. AT&M itself identifies its
13
BGY’s Sep. 20, 2005 Supp. Q. Resp. at Ex. SA-10(1) (AT&M articles of association), Art.
96. See also id. at Art 29 (requiring directors to “regularly declare the number of shares he
possesses”). And if the term had been “may not” instead of “need not,” would that prohibit the
appointment of “shareholder representatives” or other agents from becoming directors?
Consol. Court No. 09-00511 Page 22
“controlling shareholder” as CISRI in its financial statements,14 and the power to veto nomination
does not equilibrate the power of control over nomination.15 See, e.g., Metropolitan Washington
Airports Authority v. Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S. 252, 268-70 & n.15
(1991) (appointments under Transfer Act “must” be made be made from the lists submitted by the
Speaker of the House; therefore, whether plaintiff has formal statutory power of appointment and
removal over board of review is irrelevant) (italics in original); Biloxi Regional Medical Center v.
Bowen, 835 F.2d 345, 352 (D.C. Cir. 1987) (any influence the “City” might exert through mayoral
veto power “falls well short” of establishing “control” under 42 C.F.R. § 405.427(b)(3)).
Curiously, Commerce acknowledges as part of its de jure analysis that “the Interim
Regulations provide that SASAC may intervene in certain business operations” but then it “notes
that there is no record evidence that SASAC acted upon this power and intervened in the selection
of management and board members.” RR at 21. Apart from this further conflation of de facto and
de jure analysis and evisceration of the presumption of state control in “the selection of . . .
management,” et cetera, the administrative proceeding does not appear to have advanced to such a
14
See, e.g., BGY Section A Comments at Ex. 7; Letter to Sec’y of Comm. from Greenberg,
Traurig, re: Diamond Sawblades and Parts Thereof from China: Supplemental Questionnaire
Response at Ex. 4, p. 19 (notes to 2004 financial reports, sec. VI) (Dec. 5, 2005).
15
Furthermore, under Article 66 of AT&M’s articles of association, only “eligible
shareholders” -- whatever that means -- in addition to members of the board are permitted to “collect
voting power.” Given that the presumption is of state control, in the absence of proof to the contrary
(and the court’s review of the record did not reveal proof to the contrary) whoever is elected to the
board will necessarily have received CISRI’s approval for nomination. AT&M’s board cannot
“lawfully” act otherwise, see AT&M Art. of Assoc. 130, and this circumstance necessarily counters
any inference of minority “control” that might otherwise be drawn from the requirement of
unanimous voting, but if unanimity is still relevant, it may also be of some significance that voting
is not anonymous at AT&M, id. Art. 83, although the remands results do not discuss this.
Consol. Court No. 09-00511 Page 23
state that the onus had shifted to the DSMC on that burden.16 Cf., e.g., Certain Paper Clips From
the People’s Republic of China, 59 Fed. Reg. 51168, 51170 (Oct. 7, 1994) (final LTFV
determination) (management nomination meeting minutes, appointment announcements and
correspondence between respondent and state established that state involvement in respondent’s
management appointment process “reflects nothing more than an administrative formality”).
Apart from de jure control, the overriding question is whether there is de facto
governmental control over export operations. As above indicated, Commerce recognizes that
scrutiny of board and management is critical to that inquiry. In the original final results and on
remand, Commerce found four of the nine AT&M directors representatives of CISRI. One of those
is AT&M’s chairman of the board. Commerce also found five directors not “involved in CISRI’s
business functions in any way” during the POI. The record excerpts provided by the parties,
however, do not evince information that would permit construal to the extent of the latter.17
16
As argued by the DSMC, albeit in the context of the absence of record information
showing how CISRI’s board members or managers were actually selected during the POI:
In a situation in which the burden of proof is upon respondent to show a lack of state
control (or, in this case, upon the agency to demonstrate that its determination of no
state control is reasonable) a lack of record information regarding control cannot
logically be adduced to show that the presumption has been rebutted.
DSMC Comments at 16-17. At this point it would also seem appropriate to note the original
determination’s criticism, supra: “The information submitted by Petitioners addresses a theoretical
control by SASAC over CISRI, rather than any control over the PRC Government at any level over
the numerous individual export decisions of the AT&M entity that took place during the POI.” I&D
Memo at Comment 16(C). The statement’s first part is precisely what de jure analysis is all about --
theory, of meaning -- and the second part is precisely of which the DSMC complain -- burden-
shifting.
17
The remand results reference Exhibit SA-11 of BGY’s supplemental questionnaire
response dated September 20, 2005 as support for the assertion, which concerns “Ownership of
AT&M” and reveals nothing of significance regarding board membership, although the record also
contains the verification report for AT&M and BGY.
Consol. Court No. 09-00511 Page 24
The verification report for AT&M notes that two of the “non-CISRI” directors
consisted of AT&M management, including the company’s chief executive officer. Verification
Report at 9 (Mar. 26, 2006). The DSMC argue the verification report actually proves at least one
of those is also connected to CISRI See, e.g., DSMC Comments n.2. The report also notes that the
three other “non-CISRI” directors are “independent,” in that they are “subject to approval by the
independent stock exchange committee which will establish their independence.” The remand
results, however, do not delve into detail and thus do not resolve whether any of such individuals
embody “governmental control.”
Commerce’s analysis of AT&M’s board focuses only on CISRI’s ability to control
it. See RR at 19. If the proper analysis concerns “governmental control” of AT&M’s board, it is
unclear from this last statement or from the report itself whether the three “independent” directors
are free of such governmental control in toto. Cf. Verification Report at 8 (“companies’ conduct is
supervised by the independent China Stock Exchange Committee”). BGY declared that none of its
board members are “employed by” the PRC Government and it further declared that none of the
AT&M entity companies are affiliated, owned, or controlled by “individuals employed by” the PRC
Government, BGY’s Sep. 20, 2005 Supp. Q. Resp. at 2, 6, 8, but apart from this and the statements
of company officials at verification, the court does not discern corroboration of “independence” from
“governmental control” of the five “non-CISRI” directors. Their independence seems assumed.
Regarding the two directors who are also members of AT&M management, the
DSMC also raise a second legitimate concern. In their managerial capacity, those AT&M members
appear on the record, de facto as well as de jure, to be beholden to the board that controls their pay,
Consol. Court No. 09-00511 Page 25
in particular to the chairman of the board as the de facto company head under the PRC model. If
board members are properly presumed subject to governmental control, directly or indirectly, then
true independence and autonomy remain in doubt until proven otherwise. If they are not so
presumed, then the presumption of state control is without purpose or application. Examination of
subjugation, therefore, ought to have been a necessary extension of any inquiry into “governmental
control,” a question not to be conflated with any de jure directorial obligations. Cf., e.g., Code, Art.
23 (“[a] listed company shall be separated from its controlling shareholders in such aspects as
personnel”) with Art.33 (“[d]irectors shall faithfully, honestly and diligently perform their duties for
the best interests of the company and all the shareholders”).
It may well be the case that there is evidence of record from which these five directors
true independence from governmental control may reasonably be concluded, but the remand results,
arguments, and record excerpts provided by the parties do not appear conclusive to this point. The
court was tempted to revive and grant, sua sponte, DSMC’s motion for oral argument, as the parties
might be able to provide assistance, but in view of the resources this would have consumed and the
fact that remand is required on other ground, the court considers that such questions are better left
for Commerce and the parties to address on remand.
F. Further Defendant Commentary
The defendant would here disagree, with all of the foregoing, in arguing that the
separate rate analysis is not simply a “litmus test for government influence in general” but is rather
a “particularized analysis” of a company’s export activities. The separate rate test purports to
“focus[ ] on controls over the decision-making process on export-related investment, pricing, and
Consol. Court No. 09-00511 Page 26
output decisions at the individual firm level,” Import Policy Bulletin 05.1 (italics added), and the
defendant argues this means an examination of the “degree” to which those activities are
“controlled” by a government or by the company itself. Def’s Resp. at 6. The test “does not purport
to ensure that no government interests are promoted through the exporter’s business venture, but
rather serves to ensure that the Government of China itself is not controlling the day-to-day export
activities of the exporter in question.” Id. at 6-7 (italics added).
Unfortunately, this does not clarify. The Interim Regulations, for example, provide
for more than mere “influence in general.” See supra. Nonetheless, the defendant argues that when
all is said and done, the question is simply concerned with price variability: is the price of the
diamond sawblades that AT&M exports to the United States “set by” the PRC Government or by
AT&M; in other words, “does the price of AT&M’s diamond sawblades exports to the United States
by AT&M vary depending on world market conditions or is the price set and orchestrated by the
PRC Government and only responds to changes ordered by the central government?” Def’s Resp.
at 11. But this too does not clarify, as those concepts are not mutually exclusive. The price of an
arm’s length transaction to a buyer in the market is always a “market” transaction by definition, and
regardless of any “setting” of or involvement in price by the seller’s government. See, e.g., Case
C-337/09, Judgment of the Court, ¶ 86 (Grand Chamber, European Court of Justice) (July 19,
2012).18 For that matter, the actual setting of price is only one of the four de facto factors described
in the Policy Bulletin, whereas governmental manipulation of the cost of inputs, see id., or
18
Available at http://curia.europa.eu/juris/document/document.jsf?text=&docid=125218&
pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=375494 (last visited this date).
Consol. Court No. 09-00511 Page 27
rationalization of industry or output are among numerous other scenarios of concern that can affect
seller pricing.
In the end, the defendant concludes: “[b]ecause there is no record evidence indicating
that the [PRC] Government . . . sets the price of the diamond sawblades exported by AT&M,
Commerce correctly assigned AT&M a separate rate.” Given the presumption of state control,
however, the reviewing standard requires record evidence that the PRC Government (including any
agent thereof) did not “set” (however defined) the price of diamond sawblades exported by AT&M.
That still remains in doubt. The obvious instance of governmental control of price setting would
be direct regulatory approval of a particular export price, but to what extent does the inquiry also
concern governmental “influence” in what might otherwise appear to be the company’s decision?
The court cannot agree that is irrelevant. The question to Commerce might thus be better phrased
as follows: what is the agency’s definition of the “degree”of “governmental control” in the “setting”
of export prices that must not be shown in order for an applicant to receive a separate rate, and where
is the line drawn to exclude or include implementation of governmental influence or policy? After
all, personnel is policy: it is axiomatic that inert entities (e.g., corporations, governments) can only
act through agency,19 concerning which “state” of affairs even socialistic European cousins recently
expressed a certain misgiving (without irony):
[I]n the context of a non-market economy country, the fact that a company
established in that country is de facto controlled by State shareholders raises serious
doubts as to whether the company’s management is sufficiently independent of the
State to be able to take decisions regarding prices, costs and inputs autonomously and
in response to market signals.
19
Louis XIV cut to the chase: “l’Etat, c’est moi.”
Consol. Court No. 09-00511 Page 28
Id.
For the above reasons, the court remains unclear as to the extent of “governmental
control” that would preclude, or lack thereof permit, the grant of a separate rate, particularly with
regard to the third and fourth de facto factors, as previously pondered. See Slip Op. 11-122 at 24.
Specifically, it is unclear what the defendant means by “degree” or what Commerce means by
“control,” “separate,” “autonomy,” “independent,” and so forth in the context of the separate rate
policy, and one that lacks clarity in purpose or application borders on arbitrary and capricious.
Whatever “degree” that is, Commerce’s use of such terms to describe ownership and management
in the context of this matter leads to confusion,20 but it is at least clear that apart from the camel’s
nose of “guidance” or “oversight,” Commerce concludes there is no degree of “control” or influence
whatsoever by SASAC over CISRI or AT&M or by CISRI over AT&M, and that appears to be
based on flawed analysis. The court must therefore await Commerce’s reasonable explanation and
analysis of “controls over the decision-making process on export-related investment, pricing, and
output decisions at the individual firm level,” as previously requested. See Import Policy Bulletin
05.1.
20
For example, in addition to the foregoing, the finding that shareholders lack control over
the board concerning their decisions including selection of management and distribution of profits
appears to conflict with the finding that shareholders have control over the board in the form of veto
power over CISRI’s nominations thereto. For that matter, the remand results also give no indication
that any de jure provisions permitting boards that include “shareholders representatives” were
considered. Cf. note 12, supra.
Consol. Court No. 09-00511 Page 29
G. Further Analysis of Governmental
Control Over AT&M’s Finances
The DSMC also argue the evidence in support of AT&M’s right to distribute its
profits without government interference is similarly lacking. RR at 8; see also BGY’s Sep. 20, 2005
Supp. Q. Resp. at Ex. SA-5. The court agrees in part. The evidence includes the records of a board
meeting at which all discussions of profit distribution were explicitly accompanied by the caveat:
“This resolution should be approved by the Shareholder’s Meeting.” Id. AT&M’s controlling
shareholder was CISRI, and shareholders’ voting power is in proportion to their shares. See id at Ex.
SA-10(1), Art. 35 & Ex. SA-11; see also BGY Section A Comments at Ex. 7. The DSMC are
correct in pointing out that CISRI had the power over any profit distribution regardless of what the
board of directors decided. However, the defendant is also correct in pointing out that CISRI’s
portion of AT&M’s allocated profits is consistent with CISRI’s role as a shareholder entitled to a
proportionate share of the profits.
On the other hand, the defendant argues too narrowly that this “does not suggest or
establish government control upon AT&M’s export activities, nor did Commerce’s review of the
board minutes from the relevant AT&M’s board meeting suggest any government control over
export activities. Remand Redetermination at 8. The DSMC’s larger point here is that the financial
statements to which Commerce cites are only balance sheets, without auditor’s notes or other detail,
cf. RR at 8 with BGY’s Sep. 20, 2005 Supp. Q. Resp. at Ex. SA-22, and more complete versions that
AT&M submitted in a later response clarify that CISRI had significant [[
]]. See BGY’s Dec. 5, 2005 Supp. Q. Resp. at Ex. 4, p.48 (Notes to Main Items of
Parent Company Financial Report at Item 23); see also id. at Ex. 2 (Footnotes, Section V.27 and
Consol. Court No. 09-00511 Page 30
XI.3). The DSMC thus contend this indicates AT&M’s [[
]]. See
id. at Ex. 4, p.48; id. at Ex. 2 (Footnotes, Section V.27 and XI.3). Cf. Import Policy Bulletin 05.1
(“the test focuses on controls over the decision-making process on export-related investment” et
cetera) (citations omitted; italics added). That, of course, implicates profits and losses, because
money is fungible. Therefore, in addition to the foregoing, Commerce will consider (or reconsider)
and address the DSMC’s specific concerns on these points on remand, bearing in mind the
presumption of state control.21
21
In passing, the court also notes that in response to Slip Op. 11-122, Commerce
distinguished the separate rates test as “unlike” the affiliation/collapsing test on the ground that the
latter is premised on shareholders’ ability to control a respondent’s future acts, whereas the separate
rates test is focused on evidence of control being exercised on current acts during the period of
investigation or review. RR at 17-18 (the separate rate test “then prospectively applies to the results
of this analysis until the next review period”). The DSMC point out that Commerce in 1997
explained that the purpose of the separate rates test is to “prevent an NME government from later
circumventing an antidumping order by controlling the flow of subject merchandise through
exporters which have the lowest margin[,]” which is clearly an implication of future behavior. See
Certain Cut-to-Length Carbon Steel Plate From Ukraine, 62 Fed. Reg. 61754, 61757-60 (Dep’t
Commerce Nov. 19, 1997) (final determination of sales at less than fair value) (italics added).
Furthermore, the DSMC contend, if the current results are allowed to stand, there will be no future
review period since the results are de minimis. AT&M comments that the policy bulletin “made
even more apparent” that it is not the ability to shift sales among companies, as in the collapsing
methodology, that is the basis of denying a separate rate, but is rather the independence from
government control with regard to export activities. AT&M Comments at 4-5. At this point, the
court regards the discussion as academic. Whatever their motivation, both tests obviously overlap
on such matters as level(s) of ownership, the extent to which companies are directed by the same
employees or board members, and interdependency of intertwined operations such as through
involvement in production and pricing decisions or financing, et cetera. Cf. 19 C.F.R. § 351.401(f)
with Sparklers, supra, 56 Fed. Reg. at 20589 (respondent’s argument “that there is no evidence of
coordination among the companies on such matters as price setting, market division, and production
practices”) (italics added). As to the DSMC’s other concern, of whether there will be a future review
period, they are, of course, aware that the court is bound to let the chips must fall where they must.
Consol. Court No. 09-00511 Page 31
IV. Conclusion
The court appreciates that Commerce labors under constraints, administrative and
other, wise or not, in reaching determinations entitled to a presumption of administrative regularity,22
but at this point the results may not be sustained on the bases articulated by Commerce. Remand is
22
Cool and deliberate, true judgment is tied to the mast and impervious to seductive song.
But cf., e.g., An Analysis of State-owned Enterprises and State Capitalism in China at 3, 92
(U.S.-China Economic and Security Review Comm., Oct. 26, 2011) (italics added):
When it joined the WTO in 2001, China promised that the government would
not influence, directly or indirectly, the commercial decisions of [state-owned
enterprises (“SOEs”)]. China does not appear to be keeping this commitment. The
state does influence the commercial decisions of SOEs and the most recent five-year
guidance does not herald a change in this regard. If anything, China is doubling
down and giving SOEs a more prominent role in achieving the state’s most important
economic goals.
***
The [PRC] government’s prominent economic role, coming a decade after
China joined the WTO, throws into doubt expectations that China’s WTO
membership would lead it to pull back from market interventions. The
back-and-forth between China’s representative and the Working Party [of the WTO]
on China’s accession [to the WTO] is memorialized in the Working Party Report. As
the following text from the report demonstrates, China itself encouraged these
expectations:
The representative of China further confirmed that China would ensure that
all state-owned and state-invested enterprises would make purchases and
sales based solely on commercial considerations, e.g., price, quality,
marketability and availability, and that the enterprises of other WTO
Members would have an adequate opportunity to compete for sales to and
purchases from these enterprises on non-discriminatory terms and conditions.
In addition, the Government of China [promised it] would not influence,
directly or indirectly, commercial decisions on the part of state-owned or
state-invested enterprises, including on the quantity, value or country of
origin of any goods purchased or sold, except in a manner consistent with the
WTO Agreement.
The Working Party took note of these commitments. But given the strong state
direction embodied in the 12th Five Year Plan, as well as the incentive structure
facing the leaders of China’s SOEs, it is clear that SOEs will continue to be driven
by government policies. . . .”
Consol. Court No. 09-00511 Page 32
therefore necessary for reconsideration and clarification in accordance with the foregoing. As to
what that implies for purposes of remand, no opinion is here expressed, except that the court
emphasizes it is not here substituting judgment for that of Commerce on these issues or insisting
upon application of the separate rates test in a certain way in contravention of Arkansas v. Oklahoma,
503 U.S. 91, 113 (1992). The court simply seeks to discern the reasonableness of a determination,
and the wisdom to do so. If necessary, upon remand Commerce may re-open the administrative
record to gather additional information.
Analysis of 30CrMo Steel Plate Valuation
I. Background
In the original final results, based upon certain verification report exhibit records
Commerce calculated the surrogate values for the AT&M entity’s 30CrMo steel plate inputs for the
manufacture of diamond sawblade cores using Indian Harmonized Tariff Schedule provisions
covering alloy steel plate both above and below 600mm wide, in a variety of thicknesses,. See RR
at 11-12; see also I&D Memo at 74. This decision was voluntarily remanded.
II. Summary of Remand and Results
On remand, Commerce accepted the AT&M entity’s arguments and recalculated the
30CrMo steel input based only upon Indian HTS categories covering steel plate of widths of 600mm-
and-greater and rejected using the two categories for below-600mm. See RR at 11. Commerce
justified this result on the ground that the “raw material purchase documentation for 30CrMo steel
plate on the record only shows that the AT&M Entity purchased it in widths of either 1210mm or
l050mm,” and on the ground that it its verification team was provided a worksheet by company
Consol. Court No. 09-00511 Page 33
officials “demonstrating the total purchases of steel during the POI,” from which the team noted “the
purchases of 30CrMo were clearly for steel sheets with dimensions listed on the invoices.” Id. at 26-
27, referencing Verification Report at 27 & Ex. 12, and BGY’s Nov. 3, 2005 Supp. Q. Resp. at Ex.
SD-4, 16-17. Commerce found that “the measurements in the column in the inventory-out log refer
to the diameters of the finished product being produced from the 30CrMo steel which was
withdrawn, as opposed to the widths of the 30CrMo steel plate input itself.” Id. at 27.
III. Discussion
This decision is not fully explained, and the record evidence upon which Commerce
relies does not fully support its conclusion. In large part, the analysis contradicts, without adequate
explanation, Commerce’s analysis of record documents for similar inputs. The record indicates that
neither the invoices nor the other purchase documents on the record reflect all of the steel plate that
the AT&M purchased during the POI, therefore the fact that the record does not contain invoices
showing the purchase of 30CrMo steel less than 600 mm wide is not dispositive of whether such
goods were purchased. The referenced Exhibit 12, supra, consists in part of two pages of a purchase
subpedger memorializing purchases of steel plate in two non-consecutive months during the POI,
plus an invoice for 30CrMo steel matching to the first entry on the first page of the subledger. No
invoices are provided to match the entries on the second page of the subledger. The DSCM also
pointed out that the 30CrMo steel purchase documents provided in AT&M’s questionnaire response
do not match, in either quantity or value, any of the entries on the purchase subledgers. Thus, it
would appear that the subledger pages on the record do not reflect all of AT&M purchases of steel
plate and that the invoices and other purchase documents on the record do not account for all such
Consol. Court No. 09-00511 Page 34
purchases. As such, the DSMC correctly argue that it is unreasonable for Commerce to rely on the
above purchase record evidence to find that “no” purchases of sheet under 600 mm wide occurred
and remark that the record is “bereft” of any indication that BGY purchased 30CrMo steel in widths
under 600mm, see infra, when other record evidence may be readily construed to indicate that such
purchases were in fact made.
The DSMC argue it is “highly unlikely” that the dimensional values in AT&M’s
inventory out-logs represent finished diamond sawblade widths as found by Commerce, rather than
the width of the input steel. The DSMC in particular point to the fourth line item of the raw material
subledger referencing a particular quantity -- to the hundredth kilogram -- of 30CrMo steel and its
amount in renminbi. See Ex. 12, supra, at 7. Because the inventory-out record, Ex. 12 at 11, records
the removal of exactly those same amounts, it would seem clear, as the DSMC argue, “that the
inventory-out record refers to the same 30CrMo steel as the raw material subledger.” Commerce
accepted AT&M’s explanation that the dimensional values described in the inventory-out record
reflect those not of the 30CrMo steel input but to the dimensions of the end product. The DSCM
contend AT&M has not explained why it would record the dimensions of as-yet-unproduced finished
goods in its raw material inventory records.
The DSMC also argue AT&M has conceded that the dimensional values recorded in
its inventory logs reflect the dimensions of input steel, not output cores. Commerce confirmed that
AT&M uses 65Mn steel plate in widths under 600 mm by comparing a subledger showing the
purchase of a particular quantity of that steel in kilograms with an inventory-in log showing the
placement of that quantity of steel into inventory. I&D Memo at 74; see also Ex. 12, supra, at 1, 4.
Consol. Court No. 09-00511 Page 35
The purchase subledger did not indicate the dimensions of the purchased steel. See Ex. 12 at 1.
However, like the inventory-out log, Ex. 12 at 11, this inventory-in log contained a second column
with dimensional values. See id. at 4, 11. On the basis of these, Commerce determined that the
AT&M entity purchased 65Mn steel in dimensions less than 600mm wide. I&D Memo at 74. And
in its motion brief for judgment, the AT&M entity relied on the “validity” of this determination to
support its arguments, apparently since abandoned,23 on the proper valuation of 65Mn steel.
AT&M’s Brief at 42. This, the DSMC contend, indicates AT&M’s concession that the dimension
values recorded in its inventory logs reflect the dimensions of input steel, not output cores.
Even apart from that, the DSMC contend, the original determination regarding 65Mn
steel and the remand determination for the 30CrMo steel creates a logical contradiction that
Commerce has not addressed. Commerce found that with respect to inventory-out records for
23
In their Rule 56.2 brief, AT&M also assigned error on the Indian HTS categories used in
the original determination as surrogate values for its 65Mn steel. In the preliminary determination,
Commerce valued the AT&M entity’s 65Mn steel using an average of Indian HTS categories
7209.16,20, 7209.16,30, and 7209.16,50. The DSMC argued in their rebuttal brief that the facts
of record justified using only Indian HTS 7211.29.50. Commerce agreed in part. For the final
determination, Commerce dropped using HTS 7209.16,20, 7209.16,30, and 7209.16,50, and instead
used 7211.29.50 -- as well as 7209.25.20, 7209.25.30, 7209.26.20, 7209.27.20, and 7209.27.30.
Commerce reasoned these changes because “there was no information on the record to support the
continued use of HTS numbers 7209.16.20 and 7209.16.30, as all items in inventory for 65Mn steel
listed in BGY Verification Report at Exhibit 12, as well as invoices provided in BGY’s second
supplemental response dated December 5, 2005, are coils in widths less than 600 mm.” I&D Memo
at 74. In its 56.2 brief, AT&M pointed out that HTS heading 7209 covers “flat-rolled products of
iron and non-alloy steel, of a width of 600 mm or more, cold-rolled (cold-reduced), not clad, plated
or coated” while HTS heading 7211 covers “flat-rolled products of iron and non-alloy steel, of a
width less than 600 mm, not clad, plated or coated,” and argued that Commerce’s refusal to use HTS
7209.16.20 and 7209.16.30 on the ground that the categories were for steel of 600 mm and above
but adoption of five other categories under HTS 7209 which were for 600 mm and above is
contradictory and unsupported by substantial evidence or plain logic and therefore required
reconsideration. As mentioned, AT&M appears to have since abandoned this argument. Cf. Pls’
Reply to Def. and Def-Int’s Opp. to Pls’ Rule 56.2 Mot. for J. on the Agency Record at 5-8.
Consol. Court No. 09-00511 Page 36
30CrMo steel, the second column reflects the dimensions of as yet unproduced finished goods. See,
e.g., RR at 11-12, 26-27. But, the record also contains inventory-out records for 65Mn steel plate,
with dimensional values matching to those seen in the inventory-in records for the same type of steel.
Verification Report, Ex. 12 at 4, 9-10.
Commerce dismissed the DSMC’s argument with the following:
[S]imply because some measurements overlap does not mean that any definitive
conclusions can be drawn from such observation and then applied to the 30CrMo
steel input. The inventory-in records for 65Mn steel clearly show purchases of less
than 600mm in width, indicating BGY purchased this input in widths closer to the
diameters of the finished product than it did for 30CrMo steel. In contrast, the record
is absolutely bereft of any indication that BGY purchased 30 CrMo steel in widths
under 600mm.
RR at 27.
At this point the court must ponder why the dimensions of input steel are recorded
in both the inventory-in and inventory-out records for 65Mn steel but not for 30CrMo steel, but
cannot speculate. The DSMC also point out that the fact that the dimensions recorded in the second
column of the 65Mn inventory-in and inventory-out records match exactly tends to discount the
argument that the inventory-out records show the dimensions of finished cores, because an exact
match between the figures would seem to leave no room for scrap or error whatsoever in cutting
cores from the input plates. The court must therefore agree with the DSMC that this situation
appears to be more than mere “overlap” -- after all, the -in and -out 65Mn steel records and the
30CrMo steel records are formatted nearly identically and record what appears to be the same kinds
of information, including dimensional values. See Verification Report, Ex. 12 at 4, 6, 9-11.
Consol. Court No. 09-00511 Page 37
IV. Conclusion
For the above reasons, the matter of the 30CrMo steel inputs valuation will also be
remanded for further explanation or reconsideration.
A separate and confidential order of remand to the above effect will be issued
herewith.
/s/ R. Kenton Musgrave
R. Kenton Musgrave, Senior Judge
Dated: November 30, 2012
New York, New York
Errata
Advanced Technology & Materials Co. v. United States, Consol. Ct. No. 09-00511, Slip Op. 12-147
dated Nov. 30, 2012.
Page 29, second full paragraph, second line, replace the comma after “activities” with a closed
quotation mark (”), and on the fourth line, change “Remand Redetermination” to “Def’s Resp. at 10,
referencing RR”.
Page 32, last line, delete “it”.