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 investigat ion 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 theConsol. Court No. 19-00031 Page 2

briefs was Elio Gonzalez , Senior Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Departme nt of Commerce, of Washington, D.C. Stanceu, Judge: In this action, plaintiffs contested a final affirmative less-thanfair-value determination of t he 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”) Co mmerce 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. B ACKGROUND 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 p laintiffs in this consolid ated action. One group (“Guizhou Tyre”) consists of Guizhou Tyre Co., Ltd. (“GTC”), a Chinese producer of truck and bus tires, and its affiliated expo rter, Guizhou Tyre Import and Export Co., Ltd. (“GTCIE”), a Chinese exporter of th is merchandise. Compl. ¶ 3 (Apr. 15, 2019),Consol. Court No. 19-00031 Page 3
ECF No. 7. The other group of plaintiffs consists of a Chin ese producer and exporter of truck and bus tires, Shang hai Huayi Group Corporation Ltd., to which its counsel referred by its former name, Do uble 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 thes e two plaintiffs collec tively as “Double Coin.” Double Coin Holdings Ltd. was one of the two “mandatory” respondents in the investigation, i.e., respondents for which Co mmerce 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 fro m 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 explan atory 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 in vestigation 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: Initia tion of Antidumping Duty Investigation , 81 Fed. Reg. 9,434 (Int’l Trade Admin. Feb. 25, 2016), with a pe riod of investigation (“POI”) of July 1, 2015 through December 31, 2015, id . at 9,435. Commerce published a Prelim inary Affirmative LTFV Determination later in 2016, Truck and Bus Tires From the People’s Repu blic of China: Preliminary Affirmative Determinations of Sales at Less Than Fair Valu e 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 “Pr eliminary 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 an d 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 Th an 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, Commerc e calculated an es timated weighted average dumping margin of 22.57% for what it considered to be a nationwide entity (the “PRC-wide” or “China-wide” entity) consis ting 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 th at did not respond to the Department’s requests for information during the preliminary phas e 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 indi vidually determined esti mated weighted average dumping margin of 9.00% for Prinx Chengsh an (Shandong) Tire Co., Ltd., the otherConsol. Court No. 19-00031 Page 6
mandatory respondent in the investigat ion, 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 t herefore 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 issuin g 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 co mments on the Remand Redetermination.
Pls.’ Comments on Remand Redeterminat ion (May 25, 2022), ECF Nos. 69 (Conf.), 70 (Public) (“Guizhou Tyre’s Comments”); Consol. Pls. Co mments 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 (P ublic), 75 (Conf.) (“Def.’s Response”).Consol. Court No. 19-00031 Page 7

II. D ISCUSSION 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 de termination, the court “shall hold unlawful any determination, finding, or co nclusion 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 ad equate 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. Internat ional Trade Commission (“ITC”). Guizhou Tyre I ,

3 All citations to the United States Co de 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, furt her, that “the Tariff Act requir es 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. Custo ms and Border Protection] to liquidate these entries without regard to antidumpin g duties and to refu nd 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 th at 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 Departm ent’s reasoning is fl awed, being vague and ambiguous as to whether its inquiry is focused on government control of export
activities.” Id . The court reached this same conc lusion with respec t to the analysisConsol. 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 clai m 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 verifica tion 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 Du ty Order Prior to an Affirmative ITC Determination In the Remand Redetermination, Commerc e stated that “[s]hould the Court proceed with its intended remedy and it is necessary to identify the earliest date that Commerce hypothetically co uld 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 ofConsol. 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 ar e 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 intere st shall be payable on antid umping duty cash deposits
made on and after “the date of publication of a counte rvailing 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 [antidu mping duty] Order was prematurely issued and order its intended remedy when it enter s a final judgment in this case, Commerce

4 Double Coin did not make a claim pertain ing to the timing of the issuance of the antidumping duty or der and, in its comments on t he Remand Redetermination, did not address any issue pertaining to Guizho u 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 wa rehouse, 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 publicat ion of the Order on February 15, 2019
occurred in the absence of an affirmative ITC determin ation, 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 antidum ping 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, pursuan t 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 resp ect 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 memb ers were elected in a meeting not open to all shareholders, Commerce stated in t he Remand Redetermination that “[w]eConsol. 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. Ho wever, as we explain below, other record
evidence demonstrates that GT CIE 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., (“GI IG”) “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 Gu izhou Tyre) bearing on the issue of an operational relat ionship between GTC and GTCIE. Id. at 23. Commerce also found that GIIG is 100% owned by a government entity, the Guiyang State-owned Assets Supervis ion and Administration Commi ssion (“Guiyang SASAC”). Id . at 6. Commerce concluded that this evid ence, 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 contro l or influence: (1) the composition of GTC’s board of directors, including the selec tion of the chair and vice chair; (2) the putting forth of proposals fo r consideration at the compan y’s shareholders’ meetings; (3) the calling of interim shareholders’ m eetings; and (4) the appointment and removal of the company’s general manager and four deputy general managers. RemandConsol. 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 examp le, that Article 83 of the AoAs provided that “nonindependent directors are nominated by the bo ard of directors or shareholders holding individually or jointly more than ten pe rcent of the company’s shares” and that “independent directors are nominated by the bo ard of directors, board of supervisors, or shareholders individually or jointly ho lding 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 shal l be elected and dismissed by the votes of
more than half of all directors.” Id . at 11–12 (footnote omitte d). Commerce considered it significant that “[w]ith its 25.20 percent ow nership 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 mo re than three percent of shares, GIIG is the only shareholder with the requisite share s to individually put forward proposals for
consideration at shareholder s’ meetings, purs uant to Article 54 of GTC’s AoAs.” Id . at 12 (footnotes omitted). On the issue of the board’s abili ty to control GTC’s management, Commerce pointed to Article 130 of the AoAs, which “states that the board of directors shall appoint or remo ve 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 autono my from the government in making decisions regarding the selection of management; and, (4) whether the respondent retains th e proceeds of its export sales and makes independent decisions regardin g 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 cr iteria, Commerce is not required to continue its analysis with respect to the remainder of the criteria.” Id . (footnote omitted).
Based on the record evidence summar ized 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, co nsidered that finding sufficient to support a denial of separate rate status, id . at 15. Commerce acknowledged thatConsol. Court No. 19-00031 Page 15
GTCIE satisfied the first factor in its four-p art 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 t he second factor because it demonstrated “authority to negotiate and sign contracts and other agreements on its own behalf.” Id

. (citation omitted). Commerce cited evid ence 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, autono my from the go vernment 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 resp ective government shareholders maintain the potential to control the ex port operations of GTC and its wholly owned subsidiary, GTCIE, because the management of a firm cont rols its operations, including its export
functions.” Id. at 19. Commerce also explained why it consid ered 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 thatConsol. Court No. 19-00031 Page 16
independence from government control ov er setting of export prices does not necessarily mean independence from governm ent 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 argu es 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 implement ed a new analysis that is in consistent wi th its past practice. Id . at 28–31. The court addresses ea ch of these arguments below. In support of its first argument, Gui zhou 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 au thority to deny GTCIE’s separate rate based on management selection and profit distributi on—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 thatConsol. Court No. 19-00031 Page 17
Commerce lacked any discretion to apply its four-part test so as to require independence from governm ent 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 independen ce as to all four factors was unlawful per se . Although questioning the Department’s rati onale as to the first factor, the court’s decision did not go so far as to require Co mmerce to recognize separate rate status absent evidence of government control of ex port prices. Instead, the court viewed the reasoning Commerce put forth in support of its less-than- fair-value dete rmination 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 whet her that reasoning suffices to support the Department’s ultimate conclusion to d eny 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 spec ific 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, legis lative history, or regulatoryConsol. Court No. 19-00031 Page 18
language or preamble in judging whet her the Department’s methodology is ultra vires
or unreasonable per se . At the same time, binding prec edent of the Court of Appeals for the Federal Circuit (“Court of Appeals”) repeatedly has affirmed the Department’s authority to apply a rebuttable pres umption 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 th e discretion to select the methodology by which it interprets and effectuates its pres umption of government control over export functions and thereby will decide which ex porters are included within the PRC-wide entity, so long as that meth odology is reasonab le. The breadth of this discretion requires the court to reje ct Guizhou Tyre’s general ob jection to the methodology Commerce applied in the Remand Redeterminatio n, 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 demonstr ating 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 agenc y 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 M a tsushita Elec. Indus. Co. v. United States , 750 F.2d 927, 933 (Fed. Cir. 1984) for the principle that “substantial evidence includes ‘reasonableConsol. 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 refu te the Department’s findings as to the third and fourth factors of its de facto test. Guizhou Tyre argues that after it plac ed on the record evidence sufficient to rebut the presumption of gove rnment control, it then be came the Department’s burden to establish government control of GTC IE’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 crit erion requires a respondent to rebut the presumption by demonstrating “autonomy” from the governm ent in making decisions regarding the selection of management and “independent” decisions regarding the disposition of profits. Guizhou Tyre is, ess entially, 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 ignore d evidence that a Nomination Committee under GTC’s board of directors, and not GI IG, was responsible for the nominations of
board members and that the election of board member s 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, t hey must work for the best interests ofConsol. Court No. 19-00031 Page 20
GTC; board members and management ow e fiduciary duties to GTC and all of its
shareholders.” Id . at 25 (citation omitted). The evid ence concerning the formalities of the nomination process does not refute evidence, including evidence on ownership, the AoAs, and proprietary inform ation on voting records, see Remand Redetermination at
12

- 13, that together demonstrate GIIG’s ab ility to control or influence the general business operations of GTC and GTCIE and, sp ecifically, 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 intere sts, 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 argu ment, 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 Antidump ing 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 depa rture,” where the “past practice” was “not a burden imposed by statute or regulation” but was merely “a g eneral practice of Commerce.”). Commerce explained that its practice has ev olved 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 shareho lder’s ability to control the composition of the board of
directors and the selecti on 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 preced ent 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 submissi on, Double Coin observed that “[t]his test is a matter of agency practice unto uched by the legislature or even notice and comment,” Consol. Pls. Comments on Rem and 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 Do uble Coin during the POI and, in turn, was 100 percent owned by the Shanghai St ate-owned Assets Supervision and Administration Commission (“Shanghai SASAC”), a government entity. Remand Redetermination at 24. Commerce found, further, th at Shanghai Huayi, as the majority shareholder, “has rights to elect directors at the shareholders’ g eneral 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 uncontes ted facts that “Shanghai SASA C 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, Doub le Coin’s affiliated U.S. importer. Commerce found that Double Coin “can effectively appo int CMA’s directors and managers, who control the operations (i ncluding export acti vities) 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 regardin g 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 co ntrol over export functions in light of the ability of Double Coin’s board to “effectively appo int 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 owne rship establishes control over export functions, Double Coin’s Comments 3–6; (2) Commerc e 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 t hat majority ownership by a government entity such as a SASAC will ma ke it impossible for a respondent to obtain a separate rate. The Department’s relian ce on the decision of this Court in AdvancedConsol. Court No. 19-00031 Page 24
Technology & Materials Co. v. United States , supports such an objectio n. In explaining the decision in the Remand Redetermination, Co mmerce struggled to leave room for the remote possibility that a majority-governm ent-owned company coul d be organized and governed such as to prevent the Chinese go vernment’s ability to control the company’s operations. Commerce discussed that possibility in this way: To clarify, if the majority owner ship by a SASAC entity entitles the SASAC entity to make decisions regard ing the selection of management of a respondent, then the respondent will necessarily not be able to show that it has autonomy from the govern ment in making decisions regarding the selection of management (the third fa ctor) 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 majo rity share of the respondent, then the respondent may satisfy the third fact or 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 explanat ion. As Double Coin points out, Double Coin’s Comments 4, the Remand Redetermination contains t he following statement: In evaluating the de facto factors, Commerce has found that where a government entity holds a majority ownership share, eit her 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). “Thi s may include control over, for example, the selection of management, which is a key factor in de termining whether a company has sufficient independence in its export activities.” Id . The Remand
Redetermination includes these stat ements 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 acknowledg ed that the possibility of a majority-governmentowned respondent’s obtaining a separate rate under the Depa rtment’s practice is more theoretical than real. Moreover, the am bivalent way the Remand Redetermination approached this possibility was, at best , inartful. Nevertheless, the Department’s inartful and internally-inconsi stent approach does not give the court a basis to order another remand. This case does not pr esent the question of whether a majoritygovernment-owned respondent could place on the record evidence demonstrating that the majority shareholder could not cont rol the selection of management. The evidentiary record in this proceeding, un der which Commerce permissibly could find that Double Coin was not free of governm ent control or influence on the issue of management selection, does not demonstrate su ch 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 manag er, 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 abili ty to select management indep endently 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 ir rebutable 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 Nego tiations 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 fo r a building renova tion 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 re ferred to an established presumption, which the contractor could rebut, that the contra ct 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 mi splaced because in this instance, CommerceConsol. 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 “comp elling basis” for linking potential influence over the selection of management to actual control of export activities, Double Coin’s Comments 7–10, is also unpers uasive. This argument essentially is a contention that Commerce lacke d 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 satisf y the third criterion. But as explained above, a court must afford Commerce the disc retion to devise and apply reasonable criteria for deciding the compos ition of the PRC-wide entity. Double Coin’s final argument is that t he Department’s denial of separate rate status is not supported by su bstantial 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 requ iring 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 actual ly prevented the type of influence that
Commerce has inferred.” Id. at 13. It points to an affi davit from Double Coin’s LegalConsol. Court No. 19-00031 Page 28
Director certifying that “[t]he Corporat e Governance Code, much like the Company Law, provides that a publicly traded company should act independently from the controlling shareholder for all issues of su bstantial 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 reco rd evidence, is not the only evidence
relevant to whether Doub le Coin demonstrated that its management was de facto independent of a majority shareholder entir ely owned by a government entity. Other
evidence established that shareholder’s abili ty to control, directly or indirectly, the selection of the company’s senior managemen t. Commerce could infer that the Legal Director, unlike Commerce itself, did not consid er this ability to be among the “issues of
substantial relevance to the co mpany.” The broad, indefi nite language of the Legal Director’s opinion begs the question of what , if any, influence the Legal Director would consider the government-owned majority sh areholder to have. Also, Commerce was
aware of evidence that could support a conclusion that Chin ese laws, in some respects, treated companies in which the government held a majority in terest in the same way it treated other public companies, but that ev idence did not require Commerce to base a denial of separate rate status on a compan y’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, veri fy 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 Depa rtment’s new decision, as set forth in a redetermination submitted upon remand, and whether any fact ual determinations underlying that redeterminat ion will be in dispute.” Guizhou Tyre I , 46 CIT at __, 557 F. Supp. 3d at 1326–27. The Remand Redete rmination did not address this claim. Double Coin, while commenting that the Remand Redetermination was unsupported by record evidence, did not renew or otherwis e 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. C ONCLUSION The Remand Redetermination permissibl y 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 Orde r, 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