1 F.4th 1028
Fed. Cir.2021Background
- Commerce investigated antidumping on certain off-the-road tires from the PRC and, in the original investigation, set a PRC-wide entity rate of 210.48% based on adverse facts available (AFA) for exporters that failed to rebut the presumption of government control.
- Double Coin was individually investigated and, in the fifth administrative review, Commerce initially calculated a de minimis margin (0.14%) for Double Coin but later found Double Coin failed to rebut the presumption of government control and thus was subject to the PRC-wide entity.
- Because only Double Coin provided detailed data in the fifth review, Commerce updated the PRC-wide rate by averaging the carried-forward 210.48% with Double Coin’s 0.14% to reach 105.31% and applied that rate to the PRC-wide entity (including Double Coin).
- The Trade Court held that Double Coin, having fully cooperated and been individually investigated, must receive its 0.14% rate and blocked application of the averaged PRC-wide rate.
- On appeal, the Federal Circuit reversed, relying on precedent (notably Diamond Sawblades) that a cooperating but non‑independent exporter may be assigned a carried‑forward AFA‑based PRC‑wide rate even when other PRC‑wide members are not identified or were not uncooperative in the same review; case remanded to Commerce.
Issues
| Issue | Plaintiff's Argument (Double Coin) | Defendant's Argument (Commerce/US) | Held |
|---|---|---|---|
| Whether Commerce may apply an AFA‑based PRC‑wide rate to a cooperating exporter that failed to rebut the presumption of government control | Commerce cannot apply the PRC‑wide rate to Double Coin because Double Coin was individually investigated and cooperated; doing so would punish a cooperating party | Commerce may apply a carried‑forward PRC‑wide rate (including AFA components) to any exporter that fails to rebut the presumption of state control | Commerce may apply the carried‑forward AFA‑based PRC‑wide rate to a cooperating but non‑independent exporter; reversal of Trade Court |
| Whether the PRC‑wide rate qualifies as an "individually investigated" rate under 19 U.S.C. § 1673d(c)(1)(B)(i)(I) | The PRC‑wide rate is not an individually investigated rate for purposes of assigning it to Double Coin | The PRC‑wide rate was established in the original investigation (as to the entity) and thus counts as an individually investigated rate that may be carried forward | The court held the PRC‑wide AFA rate can qualify as an "individually investigated" rate and be carried forward |
| Whether the presence or non‑cooperation of other PRC‑wide members in the administrative review is required to apply the PRC‑wide rate | Because all parties in the fifth review cooperated, applying an AFA‑based PRC‑wide rate is improper | The cooperation (or absence) of other PRC‑wide members in the review is immaterial; Diamond Sawblades controls | The court held that other members’ cooperation in the review is not a prerequisite to apply the PRC‑wide rate |
| Whether Commerce’s averaging (210.48% and 0.14% → 105.31%) is permissible | (Double Coin did not meaningfully challenge the averaging; main dispute was carry‑forward application) | Commerce has discretion to carry forward and to update the PRC‑wide rate by averaging with an individually calculated rate | The court accepted Commerce’s approach as reasonable and within its discretion |
Key Cases Cited
- Sigma Corp. v. United States, 117 F.3d 1401 (Fed. Cir.) (affirming Commerce’s rebuttable presumption of government control in NMEs)
- Diamond Sawblades Mfrs. Coal. v. United States, 866 F.3d 1304 (Fed. Cir.) (upholding application of a carried‑forward AFA‑based PRC‑wide rate to a cooperating but non‑independent respondent)
- Dongtai Peak Honey Indus. Co. v. United States, 777 F.3d 1343 (Fed. Cir.) (confirming Commerce may carry forward AFA‑based entity rates)
- Transcom, Inc. v. United States, 294 F.3d 1371 (Fed. Cir.) (supporting Commerce’s separate‑rate policy)
- Michaels Stores v. United States, 766 F.3d 1388 (Fed. Cir.) (recognizing Commerce’s authority to treat NME firms as a single entity for rate purposes)
- Universal Camera Corp. v. NLRB, 340 U.S. 474 (U.S.) (explaining "substantial evidence" standard)