Slip Op. No. 23-81

UNITED STATES COURT OF INTERNATIONAL TRADE 

GUIZHOU TYRE CO., LTD. AND 

GUIZHOU TYRE IMPORT AND 

EXPORT CO., LTD., et al.,

Plaintiffs, 

v. 

UNITED STATES,

 Defendant.

 Before: Timothy C. Stanceu, Judge 

 Consol. Court No. 19-00031 

OPINION 

[Sustaining a decision issued in response to court order in an action contesting 

final agency determination in an antidumping duty investigation of imports of certain 

truck and bus tires from the People’s Republic of China.] 

Dated: May 22, 2023 

Ned H. Marshak, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP, of 

New York, N.Y. and Washington, D.C., for plaintiffs Guizhou Tyre Co., Ltd. and 

Guizhou Tyre Import and Export Co., Ltd. With him on the briefs were Jordan C. Kahn, 

Elaine F. Wang, and Brandon M. Petelin. 

Daniel L. Porter, Curtis, Mallet-Prevost, Colt & Mosle LLP, of Washington, D.C., 

for consolidated plaintiffs Shanghai Huayi Grp. Corp. Ltd., formerly known as Double 

Coin Holdings Ltd., and China Manufacturers Alliance LLC. With him on the brief 

were James P. Durling, James C. Beaty, and Kimberly Reynolds. 

Kara M. Westercamp, Trial Attorney, Commercial Litigation Branch, Civil 

Division, U.S. Department of Justice, of Washington, D.C., for defendant. With her on 

the briefs were Brian M. Boynton, Principal Deputy Assistant Attorney General, Patricia 

M. McCarthy, Director, and L. Misha Preheim, Assistant Director. Of counsel on the
Consol. Court No. 19-00031 Page 2 

briefs was Elio Gonzalez, Senior Attorney, Office of the Chief Counsel for Trade 

Enforcement and Compliance, U.S. Department of Commerce, of Washington, D.C. 

Stanceu, Judge: In this action, plaintiffs contested a final affirmative less-thanfair-value determination of the International Trade Administration, U.S. Department of 

Commerce (“Commerce” or the “Department”) in an antidumping duty investigation of 

certain truck and bus tires from the People’s Republic of China (“China” or the “PRC”) 

and the resulting antidumping duty order. Before the court is the decision (the 

“Remand Redetermination”) Commerce submitted in response to the court’s opinion 

and order in Guizhou Tyre Co. v. United States, 46 CIT __, 557 F. Supp. 3d 1302 (2022) 

(“Guizhou Tyre I”). Final Results of Redetermination Pursuant to Ct. Remand (April 25, 

2022), ECF Nos. 66-1 (Conf.), 67-1 (Public) (“Remand Redetermination”). The court 

sustains the Remand Redetermination. 

I. BACKGROUND

Background on this case is presented in the court’s previous opinion, Guizhou 

Tyre I, 46 CIT at __, 557 F. Supp. 3d at 1304–06, and is supplemented herein. 

A. The Parties to this Consolidated Action 

There are two groups of plaintiffs in this consolidated action. One group 

(“Guizhou Tyre”) consists of Guizhou Tyre Co., Ltd. (“GTC”), a Chinese producer of 

truck and bus tires, and its affiliated exporter, Guizhou Tyre Import and Export Co., 

Ltd. (“GTCIE”), a Chinese exporter of this merchandise. Compl. ¶ 3 (Apr. 15, 2019), 
Consol. Court No. 19-00031 Page 3 

ECF No. 7. The other group of plaintiffs consists of a Chinese producer and exporter of 

truck and bus tires, Shanghai Huayi Group Corporation Ltd., to which its counsel 

referred by its former name, Double Coin Holdings Ltd., and its affiliated U.S. importer, 

China Manufacturers Alliance LLC (“CMA”). Compl. ¶ 3 (Mar. 18, 2019), Ct. No. 

19-00034, ECF No. 7. The court refers to these two plaintiffs collectively as “Double 

Coin.” Double Coin Holdings Ltd. was one of the two “mandatory” respondents in the 

investigation, i.e., respondents for which Commerce intended to conduct an individual 

investigation. Truck and Bus Tires From the People’s Republic of China: Final Affirmative 

Determinations of Sales at Less Than Fair Value and Critical Circumstances, 82 Fed. Reg. 

8,599, 8,604 (Int’l Trade Admin. Jan. 27, 2017) (the “Final LTFV Determination”). 

Defendant is the United States. 

B. The Antidumping Duty Investigation and the Contested Determinations 

Two related agency decisions stemming from an antidumping duty investigation 

are contested in this consolidated action.1 They are a “Final Less-Than-Fair Value 

(‘LTFV’) Determination,” Final LTFV Determination, and the subsequently-issued 

antidumping duty order (“Order”), Truck and Bus Tires From the People’s Republic of 

China: Antidumping Duty Order, 84 Fed. Reg. 4,436 (Int’l Trade Admin. Feb. 15, 2019) (the 

1

 Consolidated with the lead case, Guizhou Tyre Co., Ltd. et al. v. United States, 

Court No. 19-00031, is China Mfrs. All. LLC et al. v. United States, Court No. 19-00034. See 

Order (June 7, 2019), ECF No. 24. 
Consol. Court No. 19-00031 Page 4 

“Order”). Incorporated by reference in the Final LTFV Determination is an “Issues and 

Decision Memorandum” containing specific findings and explanatory discussion. Truck 

and Bus Tires from the People’s Republic of China: Issues and Decision Memorandum for the 

Final Affirmative Determinations of Sales at Less Than Fair Value and Critical Circumstances

(Int’l Trade Admin. Jan. 19, 2017) (P.R. Doc. 855) (“Final I&D Mem.”).2

Commerce initiated the antidumping duty investigation of certain truck and bus 

tires from the PRC (the “subject merchandise”) in early 2016, Truck and Bus Tires From 

the People’s Republic of China: Initiation of Antidumping Duty Investigation, 81 Fed. Reg. 

9,434 (Int’l Trade Admin. Feb. 25, 2016), with a period of investigation (“POI”) of July 1, 

2015 through December 31, 2015, id. at 9,435. 

Commerce published a Preliminary Affirmative LTFV Determination later in 

2016, Truck and Bus Tires From the People’s Republic of China: Preliminary Affirmative 

Determinations of Sales at Less Than Fair Value and Critical Circumstances, and Postponement 

of Final Determination, 81 Fed. Reg. 61,186 (Int’l Trade Admin. Sept. 6, 2016), which 

incorporated by reference the “Preliminary Decision Memorandum.” Truck and Bus 

Tires from the People’s Republic of China: Decision Memorandum for the Preliminary 

2 All citations to documents from the Joint Appendix (Mar. 30, 2020), ECF Nos. 55 

(Conf.), 56 (Public) are to public documents and are cited as “P.R. Doc. __.” All citations 

to documents from the Joint Appendix to Remand Comments and Reply (June 28, 2022), 

ECF Nos. 76 (Conf.), 77 (Public) are cited as “P.R.R. Doc. __.” 
Consol. Court No. 19-00031 Page 5 

Affirmative Determinations of Sales at Less Than Fair Value and Critical Circumstances, and 

Postponement of Final Determination (Int’l Trade Admin. Aug. 26, 2016) (P.R. Doc. 716) 

(“Prelim. Decision Mem.”). Commerce also published an Amended Preliminary LTFV 

Determination. Truck and Bus Tires From the People’s Republic of China: Amended 

Preliminary Affirmative Determination of Sales at Less Than Fair Value, 81 Fed. Reg. 71,051 

(Int’l Trade Admin. Oct. 14, 2016). 

In the Final LTFV Determination, Commerce calculated an estimated weighted 

average dumping margin of 22.57% for what it considered to be a nationwide entity (the 

“PRC-wide” or “China-wide” entity) consisting of all exporters of the subject 

merchandise that it determined not to have rebutted its presumption of control by the 

PRC government. Final LTFV Determination, 82 Fed. Reg. at 8,604. Commerce included 

in the China-wide entity 102 companies that did not respond to the Department’s 

requests for information during the preliminary phase of the antidumping duty 

investigation, Prelim. Decision Mem. at 4, and ten other companies that responded but 

were determined by Commerce to have failed to rebut its presumption of government 

control, Prelim Decision Mem. at 16–17; Final I&D Mem. at 6–8. Among the ten 

companies were Double Coin, Prelim. Decision Mem. at 16; Final I&D Mem. at 11–13, and 

GTCIE, Prelim Decision Mem. at 16; Final I&D Mem. at 24–28. 

Commerce calculated an individually determined estimated weighted average 

dumping margin of 9.00% for Prinx Chengshan (Shandong) Tire Co., Ltd., the other 
Consol. Court No. 19-00031 Page 6 

mandatory respondent in the investigation, which Commerce considered to have 

rebutted its presumption of government control and thus was a “separate rate” 

respondent, i.e., a respondent entitled to receive a margin separate from the rate 

assigned to the PRC-wide entity. Final I&D Mem. at 6–7. Commerce assigned the 9.00% 

rate to the numerous other companies that Commerce also determined to have rebutted 

the presumption of government control and therefore qualified for a separate rate but, 

not having been individually investigated, did not receive an individually determined 

margin. Final LTFV Determination, 82 Fed. Reg. at 8,600–04; Final I&D Mem. at 6–7. 

C. Proceedings Before the Court 

Following the court’s issuing its opinion and order in Guizhou Tyre I, Commerce 

submitted the Remand Redetermination for the court’s consideration on April 25, 2022. 

Guizhou Tyre and Double Coin submitted comments on the Remand Redetermination. 

Pls.’ Comments on Remand Redetermination (May 25, 2022), ECF Nos. 69 (Conf.), 70 

(Public) (“Guizhou Tyre’s Comments”); Consol. Pls. Comments on Remand 

Redetermination (May 25, 2022), ECF No. 71 (“Double Coin’s Comments”). Defendant 

responded to the comment submissions. Def.’s Response to Comments on Remand 

Redetermination (June 14, 2022), ECF Nos. 74 (Public), 75 (Conf.) (“Def.’s Response”). 
Consol. Court No. 19-00031 Page 7 

II. DISCUSSION

A. Jurisdiction and Standard of Review 

The court exercises jurisdiction under section 201 of the Customs Courts Act of 

1980, 28 U.S.C. § 1581(c), pursuant to which the court reviews actions commenced 

under section 516A of the Tariff Act of 1930 (the “Tariff Act”), as amended 19 U.S.C. 

§ 1516a, including an action contesting a final determination that Commerce issues to 

conclude an antidumping duty investigation.3

In reviewing a final determination, the court “shall hold unlawful any 

determination, finding, or conclusion found . . . to be unsupported by substantial 

evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. 

§ 1516a(b)(1)(B)(i). Substantial evidence refers to “such relevant evidence as a 

reasonable mind might accept as adequate to support a conclusion.” SKF USA, Inc. v. 

United States, 537 F.3d 1373, 1378 (Fed. Cir. 2008) (quoting Consol. Edison Co. v. Nat’l 

Labor Relations Bd., 305 U.S. 197, 229 (1938)). 

B. The Court’s Opinion and Order in Guizhou Tyre I

In Guizhou Tyre I, the court found merit in a claim by Guizhou Tyre that 

Commerce invalidly issued the Order prior to the effective date of an affirmative injury 

determination of the U.S. International Trade Commission (“ITC”). Guizhou Tyre I, 

3 All citations to the United States Code herein are to the 2012 edition, except 

where otherwise indicated. 
Consol. Court No. 19-00031 Page 8 

46 CIT at __, 557 F. Supp. 3d at 1307–16. The court concluded that the earliest date 

Commerce validly could have published an antidumping duty order following a 

decision of the Court of International Trade (“CIT”) sustaining an affirmative remand 

redetermination of the ITC was February 21, 2020. Id., 46 CIT at __, 557 F. Supp. 3d at 

1315. The court concluded, further, that “the Tariff Act requires that entries made prior 

to that date not be assessed antidumping duties” and stated its intention “to order 

Commerce to direct Customs [i.e., U.S. Customs and Border Protection] to liquidate 

these entries without regard to antidumping duties and to refund all cash deposits 

collected on these entries, with interest as provided by law.” Id., 46 CIT at __, 557 

F. Supp. 3d at 1315–16. The court invited the parties to comment on the remedy the 

court identified, including the date the court identified as the earliest date the Order 

lawfully could have issued. Id. 

In response to Guizhou Tyre’s claim that Commerce should have ruled that 

GTCIE was a separate rate respondent, the court concluded that Commerce invalidly 

based its decision, in part, on a finding that GTC’s meeting to elect board members was 

not open to all shareholders. Id., 46 CIT at __, 557 F. Supp. 3d at 1318. The court 

concluded, additionally, that “the Department’s reasoning is flawed, being vague and 

ambiguous as to whether its inquiry is focused on government control of export 

activities.” Id. The court reached this same conclusion with respect to the analysis 
Consol. Court No. 19-00031 Page 9 

Commerce applied to the issue of whether Commerce should have granted separate 

rate status to Double Coin. Id., 46 CIT at __, 557 F. Supp. 3d at 1324–26. 

Based on the holdings in China Mfrs. Alliance, LLC v. United States, 1 F.4th 1028 

(Fed. Cir. 2021) (“CMA”), the court rejected a claim by Double Coin that Commerce 

lacked statutory authority to establish an estimated dumping duty rate for the PRCwide entity. Id., 46 CIT at __, 557 F. Supp. 3d at 1323–24. 

Finally, the court deferred any ruling on Double Coin’s claim that Commerce 

impermissibly declined to conduct a verification of the factual information on which 

Commerce based its decision to deny Double Coin separate rate status. Id., 46 CIT at __, 

557 F. Supp. 3d at 1326–27. 

C. The Department’s Decisions in the Remand Redetermination 

1. The Issuance of the Antidumping Duty Order Prior to an Affirmative ITC 

Determination 

In the Remand Redetermination, Commerce stated that “[s]hould the Court 

proceed with its intended remedy and it is necessary to identify the earliest date that 

Commerce hypothetically could have published the Order following the CIT’s 

February 18, 2020 decision sustaining the ITC’s affirmative redetermination, Commerce 

believes the Court’s choice of February 21, 2020, is reasonable.” Remand 

Redetermination at 4. Commerce also stated that the remedy “will necessarily only apply 

to entries of subject merchandise exported by GTCIE,” noting that “all other entries of 
Consol. Court No. 19-00031 Page 10 

subject merchandise from the date of the Order through February 21, 2020 have been 

liquidated.”4 Id. at 5. 

Guizhou Tyre agrees with the court’s determining that entries prior to 

February 21, 2020 should be addressed in any remedy the court would order on its 

claim and “requests affirmance of this aspect of the Remand so that [antidumping duty] 

cash deposits collected on such entries are refunded with interest per 19 U.S.C. 

§ 1677g.” Guizhou Tyre’s Comments 31. The Remand Redetermination also refers to 

19 U.S.C. § 1677g in citing “section 778 of the Act” as governing the payment of interest 

on overpayments of antidumping duty deposits.5

 Remand Redetermination at 5. The 

provision directs that interest shall be payable on antidumping duty cash deposits 

made on and after “the date of publication of a countervailing or antidumping duty 

order under this subtitle.” 19 U.S.C. § 1677g(a)(1). Commerce stated, further, that 

“[s]hould the Court hold that the [antidumping duty] Order was prematurely issued 

and order its intended remedy when it enters a final judgment in this case, Commerce 

4 Double Coin did not make a claim pertaining to the timing of the issuance of 

the antidumping duty order and, in its comments on the Remand Redetermination, did 

not address any issue pertaining to Guizhou Tyre’s claim or any remedy thereon. 

5 Section 778 of the Tariff Act of 1930, as amended (“Interest on Certain 

Overpayments and Underpayments”) provides, in pertinent part, that “Interest shall be 

payable on overpayments and underpayments of amounts deposited on merchandise 

entered, or withdrawn from warehouse, for consumption on and after . . . the date of 

publication of a countervailing or antidumping duty order under this title . . . .” 

19 U.S.C. § 1677g. 
Consol. Court No. 19-00031 Page 11 

intends to publish a notice of amended order in the Federal Register and issue 

appropriate customs instructions to [U.S. Customs and Border Protection].” Remand 

Redetermination at 68. 

Even though the Department’s publication of the Order on February 15, 2019 

occurred in the absence of an affirmative ITC determination, it nevertheless was a 

publication of an antidumping duty order for purposes of the court’s ordering an 

adequate remedy on Guizhou Tyre’s claim. Therefore, the court will order Commerce 

to publish an amended antidumping duty order and to direct U.S. Customs and Border 

Protection to liquidate without regard to antidumping duties, and refund all estimated 

antidumping duties deposited on, entries of truck and bus tires exported by GTCIE that 

were made prior to February 21, 2020 and to pay interest, pursuant to 19 U.S.C. § 1677g, 

on any such antidumping duty cash deposits that were made on or after February 15, 

2019 and prior to February 21, 2020. 

2. The Department’s Decision that GTCIE Did Not Rebut the Presumption of 

Government Control 

The Remand Redetermination concluded, once again, that GTCIE was not 

independent of government control with respect to its export activities and, therefore, 

did not qualify for a separate rate. In response to the court’s questioning the 

Department’s finding that GTC’s board members were elected in a meeting not open to 

all shareholders, Commerce stated in the Remand Redetermination that “[w]e 
Consol. Court No. 19-00031 Page 12 

acknowledge that details of the May 2015 and July 2015 meetings indicate that public 

notices were available to all shareholders. However, as we explain below, other record 

evidence demonstrates that GTCIE did not operate independent [sic] of government 

control.” Id. at 8. 

Commerce relied on record evidence that a state-owned enterprise, the Guiyang 

Industry Investment Group Co., Ltd., (“GIIG”) “is GTC’s single largest, and thus 

controlling, shareholder with 25.20 percent ownership,” id. at 10 (footnote omitted) and 

that “GTC owned 100 percent” of GTCIE, id. at 6. In addition to the latter finding, 

Commerce cited record evidence (designated as confidential by Guizhou Tyre) bearing 

on the issue of an operational relationship between GTC and GTCIE. Id. at 23. 

Commerce also found that GIIG is 100% owned by a government entity, the Guiyang 

State-owned Assets Supervision and Administration Commission (“Guiyang SASAC”). 

Id. at 6. Commerce concluded that this evidence, as well as record evidence gleaned 

from GTC’s Articles of Association (“AoAs”), GTC and GTCIE Rebuttal Factual 

Information Submission at Ex. 4 (May 6, 2016) (P.R. Docs. 438–440), demonstrated GTC’s 

lack of independence from GIIG’s ability to control or influence: (1) the composition of 

GTC’s board of directors, including the selection of the chair and vice chair; (2) the 

putting forth of proposals for consideration at the company’s shareholders’ meetings; 

(3) the calling of interim shareholders’ meetings; and (4) the appointment and removal 

of the company’s general manager and four deputy general managers. Remand 
Consol. Court No. 19-00031 Page 13 

Redetermination at 11–13. Commerce listed a number of provisions of GTC’s AoAs that 

supported its conclusion. 

Commerce noted, for example, that Article 83 of the AoAs provided that “nonindependent directors are nominated by the board of directors or shareholders holding 

individually or jointly more than ten percent of the company’s shares” and that 

“independent directors are nominated by the board of directors, board of supervisors, 

or shareholders individually or jointly holding more than one percent of company 

shares.” Id. at 11 (footnotes omitted). Commerce also noted that “Article 117 states that 

the chairperson and vice chairperson shall be elected and dismissed by the votes of 

more than half of all directors.” Id. at 11–12 (footnote omitted). Commerce considered 

it significant that “[w]ith its 25.20 percent ownership share, GIIG is the only individual 

shareholder with more than ten percent or even one percent of shares” and that 

“because GIIG is the only shareholder with more than three percent of shares, GIIG is 

the only shareholder with the requisite shares to individually put forward proposals for 

consideration at shareholders’ meetings, pursuant to Article 54 of GTC’s AoAs.” Id. at 

12 (footnotes omitted). On the issue of the board’s ability to control GTC’s 

management, Commerce pointed to Article 130 of the AoAs, which “states that the 

board of directors shall appoint or remove GTC’s general manager and four deputy 

managers.” Id. at 13 (footnote omitted). 
Consol. Court No. 19-00031 Page 14 

In response to Guizhou Tyre I, the Remand Redetermination provided a revised 

explanation for its methodology. Commerce restated the four factors that it “typically 

considers” in determining “whether a respondent is subject to de facto control of its 

export functions:” 

(1) whether the export prices are set by, or are subject to the approval of, a 

government agency; 

(2) whether the respondent has authority to negotiate and sign contracts 

and other agreements; 

(3) whether the respondent has autonomy from the government in making 

decisions regarding the selection of management; and, 

(4) whether the respondent retains the proceeds of its export sales and 

makes independent decisions regarding the disposition of profits or 

financing of losses. 

Id. at 9 (footnote omitted). Commerce explained that its “practice is to deny a request 

for a separate rate if an applicant fails to demonstrate separation from the government 

with respect to any one of the factors (the aforementioned de facto factors) and that if an 

applicant fails to establish any one of the criteria, Commerce is not required to continue 

its analysis with respect to the remainder of the criteria.” Id. (footnote omitted). 

Based on the record evidence summarized above, Commerce concluded “that 

GTCIE is not free from government control in making decisions regarding the selection 

of its management,” id. at 10, and, under its practice, considered that finding sufficient 

to support a denial of separate rate status, id. at 15. Commerce acknowledged that 
Consol. Court No. 19-00031 Page 15 

GTCIE satisfied the first factor in its four-part test, stating that “sales manager(s) set 

export prices for GTCIE” and that “there was no indication of direct involvement or 

approval on behalf of any government authority regarding price-setting.” Id. at 21. 

Commerce also found that GTCIE satisfied the second factor because it demonstrated 

“authority to negotiate and sign contracts and other agreements on its own behalf.” Id. 

(citation omitted). Commerce cited evidence that GTCIE was not independent from 

GIIG’s exercising control over distribution of profits, and, thus, that GTCIE did not 

satisfy the fourth factor. Id. at 15, 21.

On the question of government control of “export functions,” Commerce further 

explained that its finding as to the second factor, autonomy from the government in 

making decisions regarding the selection of management, “allows for the reasonable 

inference, considering the presumption of government control in NME [nonmarket 

economy] country proceedings, that their respective government shareholders maintain 

the potential to control the export operations of GTC and its wholly owned subsidiary, 

GTCIE, because the management of a firm controls its operations, including its export 

functions.” Id. at 19. 

Commerce also explained why it considered independence in setting export 

prices insufficient to show independence from control of export functions. In addition 

to explaining that control over selection of management supports an inference of control 

over operations generally, including export operations, Commerce explained that 
Consol. Court No. 19-00031 Page 16 

independence from government control over setting of export prices does not 

necessarily mean independence from government control of other individual company 

activities affecting export functions. Id. at 22–23. 

Guizhou Tyre challenges the Remand Redetermination on three grounds. It 

argues, first, that the decision does not comply with Guizhou Tyre I. Guizhou Tyre’s 

Comments 4–19. Second, it argues that substantial evidence on the record does not 

support the denial of separate rate status to GTCIE. Id. at 23–28. Third, it argues that 

Commerce unlawfully implemented a new analysis that is inconsistent with its past 

practice. Id. at 28–31. The court addresses each of these arguments below. 

In support of its first argument, Guizhou Tyre maintains that the court in 

Guizhou Tyre I “rejected Commerce’s effort to avoid the first and second de facto factors” 

and that Commerce “claims authority to deny GTCIE’s separate rate based on 

management selection and profit distribution—without considering other factors.” Id. 

at 6 (citing Guizhou Tyre I, 557 F. Supp. 3d at 1318–20 and Remand Redetermination at 

15-16, 18–21, 23, 40–42). In the view of these plaintiffs, Commerce must consider all 

four factors in light of the evidence on the whole and, specifically, demonstrate 

government control of prices of truck and bus tire exports before denying separate rate 

status. Id. at 13–17. These arguments are not convincing for two reasons: they read too 

much into the court’s decision in Guizhou Tyre I, and they incorrectly presume that 
Consol. Court No. 19-00031 Page 17 

Commerce lacked any discretion to apply its four-part test so as to require 

independence from government control as to each of the four factors. 

Guizhou Tyre I did not hold that the Department’s practice of requiring a separate 

rate respondent to demonstrate independence as to all four factors was unlawful per se. 

Although questioning the Department’s rationale as to the first factor, the court’s 

decision did not go so far as to require Commerce to recognize separate rate status 

absent evidence of government control of export prices. Instead, the court viewed the 

reasoning Commerce put forth in support of its less-than-fair-value determination as 

“flawed, being vague and ambiguous as to whether its inquiry is focused on 

government control of export activities.” Guizhou Tyre I, 557 F. Supp. 3d at 1318. In 

response, the Remand Redetermination offers new reasoning for the court’s 

consideration, and the issue presented is whether that reasoning suffices to support the 

Department’s ultimate conclusion to deny separate rate status to GTCIE. 

Commerce must be afforded broad discretion in crafting a methodology for 

making its de facto determination. As this Court has recognized, neither the adoption of 

the rebuttable presumption of government control, nor the methodology by which 

Commerce effectuates it, implements any specific provision of the Tariff Act or a 

procedure set forth in the Department’s regulations. See, e.g., Jilin Forest Indus. Jinqiao 

Flooring Grp. Co. v. United States, 47 CIT __, __, 617 F. Supp. 3d 1343, 1356 (2023). As a 

result, the court is guided by no statutory language, legislative history, or regulatory 
Consol. Court No. 19-00031 Page 18 

language or preamble in judging whether the Department’s methodology is ultra vires

or unreasonable per se. At the same time, binding precedent of the Court of Appeals for 

the Federal Circuit (“Court of Appeals”) repeatedly has affirmed the Department’s 

authority to apply a rebuttable presumption of government control. CMA, 1 F.4th at 

1039; Diamond Sawblades Mfrs. Coal. v. United States, 866 F.3d 1304, 1313 (Fed. Cir. 2017). 

A court, therefore, must afford Commerce the discretion to select the methodology by 

which it interprets and effectuates its presumption of government control over export 

functions and thereby will decide which exporters are included within the PRC-wide 

entity, so long as that methodology is reasonable. The breadth of this discretion 

requires the court to reject Guizhou Tyre’s general objection to the methodology 

Commerce applied in the Remand Redetermination, which placed weight on the ability 

of a single, government-owned shareholder to control the selection of board members 

and to control indirectly the selection of the senior managers who operated the 

company. From record evidence demonstrating that ability, Commerce reasonably 

could find or infer that GIIG had the power to exert significant control or influence over 

the business operations of GTC and its wholly-owned affiliate, GTCIE, including 

operations involving exports. An agency has the discretion to draw reasonable 

inferences from the record evidence. SeAH Steel VINA Corp. v. United States, 950 F.3d 

833, 845 (Fed. Cir. 2020) (quoting Matsushita Elec. Indus. Co. v. United States, 750 F.2d 927, 

933 (Fed. Cir. 1984) for the principle that “substantial evidence includes ‘reasonable 
Consol. Court No. 19-00031 Page 19 

inferences from the record’”). While Guizhou Tyre objects on the ground that GIIG was 

not a majority shareholder, that fact alone is not sufficient to refute the Department’s 

findings as to the third and fourth factors of its de facto test. 

Guizhou Tyre argues that after it placed on the record evidence sufficient to 

rebut the presumption of government control, it then became the Department’s burden 

to establish government control of GTCIE’s export functions, Guizhou Tyre’s 

Comments 11–15, a burden Commerce did not meet, id. at 23–27. In addition, it argues, 

Commerce could not lawfully deny separate rate status absent evidence of “actual state 

control” as opposed to “potential to control.” Id. at 19–23. These arguments are also 

unconvincing. 

The Department’s third criterion requires a respondent to rebut the presumption 

by demonstrating “autonomy” from the government in making decisions regarding the 

selection of management and “independent” decisions regarding the disposition of 

profits. Guizhou Tyre is, essentially, taking issue with the criteria the Department chose 

to apply, which focus on the government’s ability to exert influence or control. Guizhou 

Tyre argues, further, that Commerce ignored evidence that a Nomination Committee 

under GTC’s board of directors, and not GIIG, was responsible for the nominations of 

board members and that the election of board members was in compliance with the 

AoAs and all applicable legal requirements. Id. at 24. It argues, in addition, that 

“[w]hile managers are selected by the board, they must work for the best interests of 
Consol. Court No. 19-00031 Page 20 

GTC; board members and management owe fiduciary duties to GTC and all of its 

shareholders.” Id. at 25 (citation omitted). The evidence concerning the formalities of 

the nomination process does not refute evidence, including evidence on ownership, the 

AoAs, and proprietary information on voting records, see Remand Redetermination at 

12-13, that together demonstrate GIIG’s ability to control or influence the general 

business operations of GTC and GTCIE and, specifically, profit distribution. Also, 

Commerce did not base its determination on a finding that GIIG or GTC’s board of 

directors did anything improper, inimical to the company’s interests, or in derogation of 

a fiduciary duty. 

Guizhou Tyre’s third argument is based on the notion that Commerce departed 

from “longstanding” practice in adopting a new methodology that “myopically fixates 

on management selection and to a lesser extent profit distribution.” Guizhou Tyre’s 

Comments 28. In a related argument, it points out that Commerce conferred separate 

rate status on GTC for the fifth review of the antidumping duty order on off-the road 

tires from the PRC in 2015, when GIIG’s ownership share was 33.6% and the Guiyang 

SASAC was conducting performance reviews, which it no longer was doing during the 

POI. Id. at 25 (citing Certain New Pneumatic Off-the-Road Tires From the People’s Republic 

of China: Final Results of Antidumping Duty Administrative Review; 2012–2013, 80 Fed. Reg. 

20,197 (Apr. 15, 2015)). 
Consol. Court No. 19-00031 Page 21 

An agency may change its practice if it provides an adequate explanation. See, 

e.g., Atchison, T. & S. F. Ry. Co. v. Wichita Bd. of Trade, 412 U.S. 800, 808 (1973); Allegheny 

Ludlum Corp. v. United States, 346 F.3d 1368, 1373 (Fed. Cir. 2003) (citing Atchison, 

412 U.S. at 808) (“Commerce is permitted to deviate from this past practice, at least 

where it explains the reason for its departure,” where the “past practice” was “not a 

burden imposed by statute or regulation” but was merely “a general practice of 

Commerce.”). Commerce explained that its practice has evolved upon its considering 

decisions of this Court, including Advanced Technology & Materials Co. v. United States, 

37 CIT 1487, 938 F. Supp. 2d 1342 (2013), which, although differing from this case in 

involving majority government ownership, sustained a denial of separate rate status 

based on a government shareholder’s ability to control the composition of the board of 

directors and the selection of management. Remand Redetermination at 15–17. 

In summary, Commerce employed a methodology that is not per se unreasonable, 

is adequately explained, and is reasonable in light of the wide discretion the agency is 

afforded under applicable precedent of the Court of Appeals.6 Applying that 

6 In this proceeding, neither group of plaintiffs argued that the de facto test for 

separate rate status was invalid for the failure to adhere to notice-and-comment 

rulemaking. See Guizhou Tyre Co., Ltd. v. United States, 46 CIT __, __, 557 F. Supp. 3d 

1302, 1326 n.18 (2022). In its comment submission, Double Coin observed that “[t]his 

test is a matter of agency practice untouched by the legislature or even notice and 

comment,” Consol. Pls. Comments on Remand Redetermination 17 (May 25, 2022), ECF 

(continued . . .) 
Consol. Court No. 19-00031 Page 22 

methodology, Commerce acted upon a sufficient basis in the record evidence when it 

denied separate rate status to GTCIE. 

3. The Department’s Decision that Double Coin Did Not Rebut the Presumption of 

Government Control 

Commerce found that Shanghai Huayi (Group) Company (“Shanghai Huayi”) 

held a 72.15 percent ownership share in Double Coin during the POI and, in turn, was 

100 percent owned by the Shanghai State-owned Assets Supervision and 

Administration Commission (“Shanghai SASAC”), a government entity. Remand 

Redetermination at 24. Commerce found, further, that Shanghai Huayi, as the majority 

shareholder, “has rights to elect directors at the shareholders’ general meetings in 

accordance with the number of shares it owns, i.e., 72.15 percent” and that “Double 

Coin’s board appoints its general manager, and the general managers appoints other 

managers, including deputy general managers.” Id. at 26. Finding also that “[t]hree of 

four directors are general manager and deputy general managers,” Commerce 

concluded from these uncontested facts that “Shanghai SASAC controls the selection of 

Double Coin’s management and the de facto control over Double Coin exists.” Id.

(footnote omitted). 

(. . . continued) 

No. 71, but the submission does not state a claim that the failure to engage in noticeand-comment rulemaking invalidated the agency’s decision. 
Consol. Court No. 19-00031 Page 23 

Commerce also made findings pertaining to CMA, Double Coin’s affiliated U.S. 

importer. Commerce found that Double Coin “can effectively appoint CMA’s directors 

and managers, who control the operations (including export activities) of CMA, by 

virtue of being the majority shareholder of CMA.” Id. at 29. While Commerce also 

found that while “there was no indication of direct involvement or approval on behalf 

of any government authority regarding price-setting (the first factor),” id. at 30, CMA’s 

negotiating prices with unaffiliated U.S. customers does not suffice to rebut the 

presumption of government control over export functions in light of the ability of 

Double Coin’s board to “effectively appoint CMA’s directors and managers, who 

control the operations (including export activities) of CMA,” id.at 29. 

Double Coin objects to the decision in the Remand Redetermination by raising 

three arguments: (1) Commerce essentially is applying an “irrebuttable presumption” 

that majority government ownership establishes control over export functions, Double 

Coin’s Comments 3–6; (2) Commerce failed to show a “compelling basis” for linking 

potential influence over the selection of management to actual control of export 

activities, id. at 7–10; and (3) “the record does not support” the Department’s 

conclusion, id. at 11–16. 

On the first argument, Double Coin validly can object that majority ownership by 

a government entity such as a SASAC will make it impossible for a respondent to obtain 

a separate rate. The Department’s reliance on the decision of this Court in Advanced 
Consol. Court No. 19-00031 Page 24 

Technology & Materials Co. v. United States, supports such an objection. In explaining the 

decision in the Remand Redetermination, Commerce struggled to leave room for the 

remote possibility that a majority-government-owned company could be organized and 

governed such as to prevent the Chinese government’s ability to control the company’s 

operations. Commerce discussed that possibility in this way: 

To clarify, if the majority ownership by a SASAC entity entitles the 

SASAC entity to make decisions regarding the selection of management of 

a respondent, then the respondent will necessarily not be able to show 

that it has autonomy from the government in making decisions regarding 

the selection of management (the third factor) and, thus, it will necessarily 

be ineligible for a separate rate. We disagree, however, that a finding of 

majority ownership by a SASAC entity is a bright line test for which there 

is no evidentiary escape. While we acknowledge that we would expect 

such instances to be rare, if a respondent were to show that the SASAC 

entity could not make decisions regarding the selection of management of 

the respondent despite owning a majority share of the respondent, then 

the respondent may satisfy the third factor and, assuming it satisfied all of 

the other de facto and all of the de jure factors, it would be eligible for a 

separate rate. 

Remand Redetermination at 64. Double Coin objects, justifiably, that the Remand 

Redetermination itself contradicts this explanation. As Double Coin points out, Double 

Coin’s Comments 4, the Remand Redetermination contains the following statement: 

In evaluating the de facto factors, Commerce has found that where a 

government entity holds a majority ownership share, either directly or 

indirectly, in the respondent exporter, the majority ownership holding in 

and of itself means that the government exercises, or has the potential to 

exercise, control over the company’s operations. 
Consol. Court No. 19-00031 Page 25 

Remand Redetermination at 26 (citation omitted). “This may include control over, for 

example, the selection of management, which is a key factor in determining whether a 

company has sufficient independence in its export activities.” Id. The Remand 

Redetermination includes these statements even though also stating that “[w]e clarify 

that Commerce did not find that a lack of autonomy in management selection equates 

to a direct finding of government control of export activities.” Id. at 25–26. 

Commerce itself acknowledged that the possibility of a majority-governmentowned respondent’s obtaining a separate rate under the Department’s practice is more 

theoretical than real. Moreover, the ambivalent way the Remand Redetermination 

approached this possibility was, at best, inartful. Nevertheless, the Department’s 

inartful and internally-inconsistent approach does not give the court a basis to order 

another remand. This case does not present the question of whether a majoritygovernment-owned respondent could place on the record evidence demonstrating that 

the majority shareholder could not control the selection of management. The 

evidentiary record in this proceeding, under which Commerce permissibly could find 

that Double Coin was not free of government control or influence on the issue of 

management selection, does not demonstrate such a possibility. Commerce permissibly 

found that the majority shareholder had the power to select the members of the board, 

that the board appointed the company’s general manager, and that the general 

managers appointed other managers, including deputy general managers. Id. at 26. 
Consol. Court No. 19-00031 Page 26 

These findings were adequate to support a conclusion that Double Coin did not 

demonstrate its right or ability to select management independently of the governmentowned shareholder. 

Double Coin quotes Universal Restoration, Inc. v. United States, 798 F.2d 1400, 1406 

(Fed. Cir. 1986) for the principle that “[a]n irrebutable presumption of fact violates due 

process.” Double Coin’s Comments 6. This argument is unavailing. The Court of 

Appeals made that statement in reversing a decision of the Court of Claims that a 

contractor had violated the Truth and Negotiations Act, 10 U.S.C. § 2306(f), when it 

failed to disclose its actual overhead to the government, as required by a standard 

contract term, during negotiations for a building renovation project. Universal 

Restoration, 798 F.2d at 1406 (citing Vlandis v. Kline, 412 U.S. 441, 453 (1973)). The 

principle the Court of Appeals identified referred to an established presumption, which 

the contractor could rebut, that the contract price would have been lower but for the 

nondisclosure. Id. Based on the “due process” principle identified in Universal 

Restoration, Double Coin argues that “Commerce’s redetermination is premised on a 

prohibited analytical approach and must be remanded as unlawful.” Double Coin’s 

Comments 6. In its opinion in Universal Restoration, the Court of Appeals ruled that the 

contractor actually did rebut the presumption. Universal Restoration, 798 F.2d at 1406. 

Double Coin’s reliance on the case is misplaced because in this instance, Commerce 
Consol. Court No. 19-00031 Page 27 

permissibly relied on record evidence to conclude that Double Coin did not rebut the 

presumption of government control over the selection of management. 

Double Coin’s argument that Commerce lacked a “compelling basis” for linking 

potential influence over the selection of management to actual control of export 

activities, Double Coin’s Comments 7–10, is also unpersuasive. This argument 

essentially is a contention that Commerce lacked discretion to deny separate rate status 

when a respondent failed to demonstrate independence from the government in the 

selection of management, i.e., it failed to satisfy the third criterion. But as explained 

above, a court must afford Commerce the discretion to devise and apply reasonable 

criteria for deciding the composition of the PRC-wide entity. 

Double Coin’s final argument is that the Department’s denial of separate rate 

status is not supported by substantial record evidence. Id. at 11–16. Double Coin 

highlights evidence that “CMA negotiated its prices free of government control,” id. 

at 11, but this argument also takes issue with the de facto criteria per se and the 

Department’s practice of requiring a separate rate respondent to satisfy each of them. 

Double Coin objects that the decision “fail[s] to account for affirmative evidence 

submitted by Double Coin that shows that, with respect to Double Coin, the Company 

Law, the Code of Corporate Governance, and Double Coin’s articles of association were 

effective during the investigation and actually prevented the type of influence that 

Commerce has inferred.” Id. at 13. It points to an affidavit from Double Coin’s Legal 
Consol. Court No. 19-00031 Page 28 

Director certifying that “[t]he Corporate Governance Code, much like the Company 

Law, provides that a publicly traded company should act independently from the 

controlling shareholder for all issues of substantial relevance for the company and that 

directors and management must act in the interests of the company.” Id. (quoting 

Double Coin’s Separate Rate Application at Ex. 17 (May 23, 2016) (P.R.R. Doc. 297)). 

The Legal Director’s opinion, although record evidence, is not the only evidence 

relevant to whether Double Coin demonstrated that its management was de facto

independent of a majority shareholder entirely owned by a government entity. Other 

evidence established that shareholder’s ability to control, directly or indirectly, the 

selection of the company’s senior management. Commerce could infer that the Legal 

Director, unlike Commerce itself, did not consider this ability to be among the “issues of 

substantial relevance to the company.” The broad, indefinite language of the Legal 

Director’s opinion begs the question of what, if any, influence the Legal Director would 

consider the government-owned majority shareholder to have. Also, Commerce was 

aware of evidence that could support a conclusion that Chinese laws, in some respects, 

treated companies in which the government held a majority interest in the same way it 

treated other public companies, but that evidence did not require Commerce to base a 

denial of separate rate status on a company’s having violated those laws or having 

acted contrary to the company’s business interests. 
Consol. Court No. 19-00031 Page 29 

4. Double Coin’s Claim that Commerce Failed to Verify Double Coin’s Information 

on Separate Rate Status 

In Guizhou Tyre I, the court deferred a decision on Double Coin’s claim that 

Commerce was required to, but did not, verify the information Double Coin submitted 

in seeking separate rate status, reasoning that “it is not known at this time what record 

information will form the basis for the Department’s new decision, as set forth in a 

redetermination submitted upon remand, and whether any factual determinations 

underlying that redetermination will be in dispute.” Guizhou Tyre I, 46 CIT at __, 557 

F. Supp. 3d at 1326–27. The Remand Redetermination did not address this claim. 

Double Coin, while commenting that the Remand Redetermination was unsupported 

by record evidence, did not renew or otherwise preserve its claim that verification was 

required for the record information it submitted. See Double Coin’s Comments 3–17. 

The claim, therefore, is waived. 

III. CONCLUSION

The Remand Redetermination permissibly determined that GTCIE and Double 

Coin failed to rebut the presumption of de facto control of their respective export 

functions and, as a result, did not qualify for separate rate status. The Remand 

Redetermination also achieves a satisfactory resolution of the issue posed by the 

Department’s premature issuance of the Order, to which resolution plaintiff does not 

object. 
Consol. Court No. 19-00031 Page 30 

The court will enter judgment in accordance with this Opinion. 

 /s/ Timothy C. Stanceu 

 Timothy C. Stanceu 

 Judge 

Dated: May 22, 2023 

 New York, New York