Diamond Sawblades Manufacturers Coalition v. United States , 866 F.3d 1304 ( 2017 )

United States Court of Appeals
for the Federal Circuit
______________________
DIAMOND SAWBLADES MANUFACTURERS
COALITION,
Plaintiff-Appellee
v.
UNITED STATES,
Defendant-Appellee
v.
BEIJING GANG YAN DIAMOND PRODUCTS
COMPANY, GANG YAN DIAMOND PRODUCTS,
INC.,
Defendants-Appellants
CLIFF INTERNATIONAL, LTD.,
Defendant
______________________
2016-1253
______________________
Appeal from the United States Court of International
Trade in No. 1:13-cv-00078-RKM, Senior Judge R. Kenton
Musgrave.
______________________
Decided: August 7, 2017
______________________
2 DIAMOND SAWBLADES MANUFACTURER v. UNITED STATES
DANIEL B. PICKARD, Wiley Rein, LLP, Washington,
DC, argued for plaintiff-appellee. Also represented by
USHA NEELAKANTAN, MAUREEN E. THORSON.
JOHN JACOB TODOR, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, argued for defendant-appellee. Also
represented by BENJAMIN C. MIZER, JEANNE E. DAVIDSON,
FRANKLIN E. WHITE, JR.; AMANDA T. LEE, Office of Chief
Counsel for Trade Enforcement and Compliance, United
States Department of Commerce, Washington, DC.
JEFFREY S. NEELEY, Husch Blackwell LLP, Washing-
ton, DC, argued for defendants-appellants. Also repre-
sented by MICHAEL SCOTT HOLTON.
DANIEL L. PORTER, Curtis, Mallet-Prevost, Colt &
Mosle LLP, Washington, DC, for amici curiae Shanghai
Huayi Group Corporation Limited, China Manufacturers
Alliance. Also represented by JAMES P. DURLING, CLAUDIA
DENISE HARTLEBEN; GENE C. SCHAERR, Schaerr Duncan,
Washington, DC.
WILLIAM ALFRED FENNELL, Stewart & Stewart, Wash-
ington, DC, for amici curiae United Steel, Paper and
Forestry, Rubber, Manufacturing, Energy, Allied Indus-
trial and Service Workers International Union, AFL-CIO-
CLC, Titan Tire Corporation. Also represented by
NICHOLAS J. BIRCH, LANE S. HUREWITZ, TERENCE PATRICK
STEWART.
______________________
Before LOURIE, O’MALLEY, and TARANTO, Circuit Judges.
O’Malley, Circuit Judge.
The Advanced Technology & Materials entity
(“ATM”), comprised of Beijing Gang Yan Diamond Prod-
ucts Company, Gang Yan Diamond Products, Inc., and
DIAMOND SAWBLADES MANUFACTURER v. UNITED STATES 3
other affiliated companies, appeals from a decision of the
Court of International Trade (“CIT”) upholding the De-
partment of Commerce’s (“Commerce”) determination in a
first administrative review of an earlier-imposed anti-
dumping order. 1 In that review, Commerce imposed an
adjusted PRC-wide entity rate of 82.12% on subject goods
imported by ATM. See Diamond Sawblades Mfrs. Coal. v.
United States (CIT Decision), 2015 Ct. Int’l Trade LEXIS
107 (Ct. Int’l Trade Sept. 23, 2015). Because the CIT did
not err in upholding Commerce’s decision, we affirm.
I. BACKGROUND
A. Basis for Investigations and Administrative Reviews
Pursuant to 19 U.S.C. § 1673, Commerce imposes an
antidumping duty on foreign merchandise if: (1) it deter-
mines that the merchandise “is being, or is likely to be,
sold in the United States at less than its fair value,” and
(2) the International Trade Commission (“ITC”) deter-
mines that the sale of the merchandise at less than fair
value materially injures, threatens, or impedes the estab-
lishment of an industry in the United States. If an inter-
ested party files a petition with Commerce on behalf of an
industry alleging that foreign merchandise warrants the
1 This appeal is related to the appeal in Diamond
Sawblades Manufacturers Coalition v. United States
(Diamond Sawblades II), Case Nos. 2016-1254, -1255,
also decided today. Both opinions involve administrative
reviews of the antidumping duty order Commerce issued
after its investigation into the potential dumping of
diamond sawblades and parts thereof from the People’s
Republic of China (“PRC”). This opinion addresses Com-
merce’s first administrative review of the antidumping
duty rate, covering the period 2009–2010, and the opinion
in Diamond Sawblades II addresses the second adminis-
trative review, covering the period 2010–2011.
4 DIAMOND SAWBLADES MANUFACTURER v. UNITED STATES
imposition of an antidumping duty under § 1673, Com-
merce initiates an antidumping duty investigation. 19
U.S.C. § 1673a. As part of this investigation, Commerce
calculates a “normal value” for the subject merchandise—
the price at which the “foreign like product” is sold in the
exporting country or in a representative country if, inter
alia, the exporting country has a market situation that
does not permit a proper comparison—so that it can
compare the export price of the foreign merchandise with
the normal value. Id. § 1677b.
If Commerce and the ITC conclude that the imports or
sales of the subject merchandise are governed by § 1673,
Commerce issues an antidumping duty order. Id.
§ 1673d(c)(2). The amount of the antidumping duty is
“the amount by which the normal value exceeds the
export price (or the constructed export price) for the
merchandise.” Id. § 1673. If requested, Commerce con-
ducts a yearly administrative review of the antidumping
duty order and calculates a new antidumping duty rate.
Id. § 1675(a)(1)–(2).
B. Commerce’s Investigation into Diamond Sawblades
On May 3, 2005, Diamond Sawblades Manufacturers
Coalition (“DSMC”) filed a petition on behalf of the do-
mestic industry and workers producing diamond saw-
blades regarding imports of diamond sawblades.
Preliminary Determination of Sales at Less than Fair
Value, Postponement of Final Determination, and Prelim-
inary Partial Determination of Critical Circumstances:
Diamond Sawblades and Parts Thereof from the People’s
Republic of China (Investigation Preliminary Determina-
tion), 70 Fed. Reg. 77,121, 77,121 (Dep’t of Commerce Dec.
29, 2005). In response to the petition, Commerce initiated
an investigation on June 21, 2005. Id. In its final deter-
mination, Commerce found that diamond sawblades from
the PRC were being, or were likely to be, sold in the
United States at less than fair value. Final Determina-
DIAMOND SAWBLADES MANUFACTURER v. UNITED STATES 5
tion of Sales at Less Than Fair Value and Final Partial
Affirmative Determination of Critical Circumstances:
Diamond Sawblades and Parts Thereof from the People's
Republic of China (Investigation Final Determination), 71
Fed. Reg. 29,303, 29,303 (Dep’t of Commerce May 22,
2006). The ITC separately found that the importation of
diamond sawblades from the PRC threatened a United
States industry with material injury. See Diamond
Sawblades and Parts Thereof from China, Inv. No. 731-
TA-1092, USITC Pub. 4559, 2015 ITC LEXIS 1140, at *3–
4 (Sept. 1, 2015) (Review).
In the Investigation Final Determination, Commerce
acknowledged that, in proceedings involving non-market-
economy (“NME”) countries, Commerce “begins with a
rebuttable presumption that all companies within the
country are subject to government control.” 71 Fed. Reg.
at 29,307. Based on this presumption, Commerce assigns
all exporters of the subject merchandise in a NME coun-
try a single antidumping duty rate “unless an exporter
can demonstrate that it is sufficiently independent so as
to be entitled to a separate rate.” Id.
Commerce initially concluded that ATM had demon-
strated de jure and de facto absence of government control
and, thus, qualified for a separate rate. Id. at 29,307.
Commerce set the ATM duty rate at 2.50%. Id. at 29,309.
DSMC appealed Commerce’s rate determination to the
CIT. The CIT remanded the separate rate determination
to Commerce for clarification of the test applied by Com-
merce and for an explanation regarding Commerce’s
treatment of the evidence of record. Advanced Tech. &
Materials Co. v. United States, 885 F. Supp. 2d 1343, 1348
(Ct. Int’l Trade 2012). On remand, Commerce again
concluded that ATM was entitled to the separate rate of
2.50%. Id. at 1348–49. On appeal, the CIT once more
remanded the separate rate determination to Commerce,
concluding that Commerce “failed to consider important
aspects of the problem and offered explanations that run
6 DIAMOND SAWBLADES MANUFACTURER v. UNITED STATES
counter to the evidence before it.” Id. at 1349. In the
second remand, Commerce concluded that ATM had failed
to rebut the presumption of government control. Ad-
vanced Tech. & Materials Co. v. United States, 938 F.
Supp. 2d 1342, 1345 (Ct. Int’l Trade 2013).
Specifically, Commerce found that the State-Owned
Assets Supervision and Administration Commissions of
the State Council of the PRC (“SASAC”), a Chinese gov-
ernment agency, owned 100 percent of the China Iron &
Steel Research Institute (“CISRI”) during the investiga-
tion period, and CISRI held a majority share in AT&M
(one of the five companies making up ATM). Id. CISRI
placed four of its senior officials on AT&M’s board, and
the other five board members were all nominated by
CISRI. Id. Because the AT&M board was active in
selecting the company’s management, Commerce conclud-
ed that AT&M did not choose its own management auton-
omously, rendering ATM part of the PRC-wide entity. Id.
ATM’s status as part of the PRC-wide entity meant that it
did not qualify for a separate rate. Id. The CIT affirmed
Commerce’s conclusion, id. at 1345–53, and we affirmed
the CIT’s judgment without opinion pursuant to our Rule
36, Advanced Tech. & Materials Co. v. United States, 541
F. App’x 1002 (Fed. Cir. 2013).
C. First Administrative Review Proceedings
During the first administrative review, Commerce
again considered whether ATM should receive a separate
rate. Before the final decisions of the CIT and this court
affirming Commerce’s finding that ATM failed to rebut
the presumption of government control in the initial
investigation, Commerce again found that ATM qualified
for a separate rate. Diamond Sawblades and Parts
Thereof from the People’s Republic of China: Final Results
of Antidumping Duty Administrative Review: 2009–2010
(Initial Final Results), 78 Fed. Reg. 11,143, 11,145 (Dep’t
of Commerce Feb. 15, 2013). Commerce set the ATM duty
DIAMOND SAWBLADES MANUFACTURER v. UNITED STATES 7
rate at 0.15%. Id. at 11,145. After the CIT issued its
decision confirming that ATM did not qualify for a sepa-
rate rate in the initial investigation, Commerce asked for
a voluntary remand in the first administrative review to
reconsider its separate rate analysis in light of the CIT’s
decision. See Diamond Sawblades Mfrs. Coal. v. United
States (Remand Redetermination), Court No. 13-00078,
slip op. 14-50 (Dep’t of Commerce Apr. 10, 2015),
http://enforcement.trade.gov/remands/14-50.pdf.
On remand, Commerce concluded that ATM did not
qualify for a separate rate because it failed to rebut the
presumption of government control. Id. at 2–4. Com-
merce referenced its analysis from the initial investiga-
tion proceedings, which the CIT and this court affirmed,
and concluded that, “based on the evidence on the record
of this proceeding, there is no meaningful difference
between the circumstances at issue in the less-than-fair-
value investigation and this review . . . .” Id. at 3.
Because ATM failed to qualify for a separate rate,
ATM was subject to the PRC-wide entity rate. See id.
The then-governing PRC-wide entity rate was 164.09%.
Commerce concluded, however, that it was appropriate to
update the PRC-wide entity rate in light of information it
had received from ATM during the first administrative
review. Id. at 7–10. ATM had cooperated in the first
administrative review, providing Commerce with addi-
tional information regarding a portion of the PRC-wide
entity that Commerce did not have when it first calculat-
ed the PRC-wide entity rate. Commerce acknowledged
that the sales and production data provided by ATM
allowed it “to calculate a margin for an unspecified por-
tion of the single PRC-wide entity.” Id. at 8–9. Com-
merce explained, however, that it needed “to determine a
single rate for the PRC-wide entity”; i.e., a single rate that
would apply to all companies that make up the PRC-wide
8 DIAMOND SAWBLADES MANUFACTURER v. UNITED STATES
entity, including ATM and the other 21 companies. 2 Id.
Although Commerce had information from ATM—which
made up an unknown percentage of the PRC-wide enti-
ty—it did not have the necessary information “from the
remaining unspecified portion of the PRC-wide entity to
calculate a margin for the unspecified portion of the PRC-
wide entity.” Id. Commerce also noted that it did not
have “information on the record with respect to the com-
position of the PRC-wide entity.” Id.
Because ATM only made up an unknown portion of
the PRC-wide entity, Commerce rejected ATM’s argument
that “the entire government-controlled PRC-wide entity
should be given” the margin Commerce calculated when it
initially gave ATM a separate rate. Id. at 9. Commerce
also stated, “unlike the less-than-fair-value investigation,
no part of the PRC-wide entity failed to cooperate to the
best of its ability.” Id. Given these considerations, Com-
merce decided to recalculate the PRC-wide entity rate—
which would apply to ATM and all other members of the
PRC-wide entity—by taking “a simple average of the
previously assigned PRC-wide rate (164.09 percent) and
the calculated final margin for [ATM] (0.15 percent),”
which resulted in a new PRC-wide entity rate of 82.12%. 3
Id. (footnote omitted).
2 As acknowledged in the Remand Redetermination,
the PRC-wide entity comprised twenty-one other compa-
nies, aside from ATM, that also had failed to demonstrate
a lack of government control. Id. at 10. The other twen-
ty-one companies did not cooperate in the first adminis-
trative review.
3 Neither party challenges Commerce’s decision to
take a simple average of the two rates as its method for
recalculating the PRC-wide entity rate based on the
information it had before it. We therefore do not address
the reasonableness of that decision.
DIAMOND SAWBLADES MANUFACTURER v. UNITED STATES 9
The CIT sustained Commerce’s recalculation of the
PRC-wide entity rate and the application of the new PRC-
wide entity rate to ATM. CIT Decision, 2015 Ct. Int’l
Trade LEXIS 107, at *18–28. In considering Commerce’s
statement that “no part of the PRC-wide entity failed to
cooperate to the best of its ability,” the CIT rejected
ATM’s argument that this amounted to a determination
by Commerce of “‘full’ cooperation by the PRC-wide enti-
ty.” Id. at *23. The CIT noted that ATM’s argument
“depends on the extent to which [ATM’s] cooperation may
reasonably be imputed to the remainder of the PRC
entity.” Id. The CIT concluded that “substantial evidence
of record does not support” reading Commerce’s statement
to mean that the entire PRC-wide entity cooperated fully
during the first administrative review; instead, the CIT
interpreted Commerce’s statement to apply only to ATM’s
cooperation, not that of all others who make up the PRC-
wide entity. Id. at *23–24. The CIT also concluded that
Commerce’s decision was a review of the PRC-wide entity
rate within the meaning of 19 U.S.C. § 1675(a), not a
review of the makeup of the PRC-wide entity. Id. at *24.
Based on this understanding and its review of the record,
the CIT concluded that Commerce’s decision was not
“unreasonable, unsupported by substantial evidence, or
otherwise not in accordance with law.” Id. at *27.
II. DISCUSSION
We apply the same standard of review used by the
CIT in reviewing determinations made by Commerce.
AMS Assocs., Inc. v. United States, 737 F.3d 1338, 1342
(Fed. Cir. 2013). We will uphold Commerce’s determina-
tion unless it is “unsupported by substantial evidence on
the record, or otherwise not in accordance with law.” 19
U.S.C. § 1516a(b)(1)(B)(i); see also Dupont Teijin Films
USA, LP v. United States, 407 F.3d 1211, 1215 (Fed. Cir.
2005).
10 DIAMOND SAWBLADES MANUFACTURER v. UNITED STATES
ATM argues that the CIT and Commerce impermissi-
bly applied the PRC-wide entity rate because it based that
rate on adverse facts available (“AFA”). 4 Pursuant to 19
U.S.C. § 1677e, Commerce can use an inference “that is
adverse to the interests of [a] party in selecting from
among the facts otherwise available” when determining
the party’s rate if it finds that the interested party “has
failed to cooperate by not acting to the best of its ability to
comply with a request for information” from Commerce.
Id. § 1677e(b)(1). ATM asserts Commerce could not apply
the PRC-wide entity rate to ATM in the first administra-
tive review because Commerce was not allowed to apply
an AFA rate to a cooperating entity.
ATM specifically contends that, in accordance with 19
U.S.C. § 1677e(b), Commerce can apply adverse infer-
ences only to a party that “has failed to cooperate by not
acting to the best of its ability to comply with a request
for information from the administering authority or the
Commission.” 19 U.S.C. § 1677e(b)(1). Because Com-
merce agreed that ATM cooperated during the adminis-
trative review, ATM argues that Commerce cannot apply
the PRC-wide entity rate from the investigation proceed-
ings to ATM because the PRC-wide entity rate was calcu-
lated using AFA. According to ATM, its cooperation in
this administrative review and 19 U.S.C.
§ 1673d(c)(1)(B)(i) mandate that Commerce give ATM
4 During oral argument, ATM clarified that it does
not challenge Commerce’s ability to apply a PRC-wide
entity rate under the statutory framework. When asked
whether it was asserting that Commerce cannot use a
PRC-wide entity rate, as amici believed it was, ATM
responded, “No. We do not think you need to reach that
in this case.” Oral Arg. at 2:19–2:29,
http://oralarguments.cafc.uscourts.gov/default.aspx?fl=20
16-1253.mp3.
DIAMOND SAWBLADES MANUFACTURER v. UNITED STATES 11
either an individual rate or an “estimated all-others rate”
for parties not individually investigated. ATM also ar-
gues that Commerce’s decision in this case will “elimi-
nate[] any incentive for cooperation by the PRC-wide
entity, which will be given AFA regardless of whether it
cooperates or not. Such an outcome is neither in keeping
with statutory requirements or sound policy.” Appellant’s
Br. 24–25.
ATM’s position ignores the effect of its failure to rebut
the presumption of government control. In Sigma Corp.
v. United States, we considered Commerce’s decision to
assign certain manufacturers a single country-wide rate
for their antidumping duty rates. 117 F.3d 1401, 1405
(Fed. Cir. 1997). Commerce had concluded that, because
the PRC is a NME country, “all commercial entities in the
country are presumed to export under the control of the
state, and that no manufacturer would receive a separate
antidumping duty rate unless it could demonstrate that it
enjoyed both de jure and de facto independence from the
central government.” Id. We noted that Commerce “has
broad authority to interpret the antidumping statute and
devise procedures to carry out the statutory mandate.”
Id. We agreed that “it was within Commerce’s authority
to employ a presumption of state control for exporters in a
[NME country], and to place the burden on the exporters
to demonstrate an absence of central government control.”
Id.
Since our decision in Sigma Corp., we consistently
have sustained Commerce’s application of a rebuttable
presumption of government control to exporters and
producers in NME countries, such as the PRC. See, e.g.,
Changzhou Hawd Flooring Co. v. United States, 848 F.3d
1006, 1009 (Fed. Cir. 2017) (noting that Commerce “pre-
sumes that each Chinese exporter and producer is state-
controlled, and thus covered by a single China-wide
antidumping-duty rate, but a firm may rebut the pre-
sumption”); Michaels Stores, Inc. v. United States, 766
12 DIAMOND SAWBLADES MANUFACTURER v. UNITED STATES
F.3d 1388, 1390 (Fed. Cir. 2014) (“In NME proceedings,
Commerce begins with a rebuttable presumption that a
company operating within a NME is subject to state
control.”); Changzhou Wujin Fine Chem. Factory Co. v.
United States, 701 F.3d 1367, 1370 (Fed. Cir. 2012) (“In
proceedings involving [NME] countries, including China,
Commerce presumes that exporters and producers are
state-controlled, and assigns them a single state-wide
rate.”). If a company from the NME country rebuts the
presumption by showing its independence from state
control, it can qualify for a separate rate; if the company
fails to rebut the presumption, however, it receives the
single state-wide dumping rate. See, e.g., Michaels Stores,
766 F.3d at 1390 (“Commerce therefore applies a single
country-wide antidumping deposit rate to all NME pro-
ducers and exporters, unless the producer, exporter, or
another interested party can prove through an adminis-
trative review process (established by 19 C.F.R.
§ 351.213(b)) that the exporter or producer at issue is not
subject to government control and thus eligible for a lower
rate.”); Changzhou Wujin, 701 F.3d at 1370 (noting that a
party who fails to rebut the presumption of state control
receives “a single state-wide rate” but that the presump-
tion is rebuttable such that “a company that demonstrates
sufficient independence from state control may apply to
Commerce for a separate rate.”); Transcom, Inc. v. United
States, 294 F.3d 1371, 1373 (Fed. Cir. 2002) (“Under the
NME presumption, a company that fails to demonstrate
independence from the NME entity is subject to the
countrywide rate, while a company that demonstrates its
independence is entitled to an individual rate as in a
market economy.”).
In the first administrative review, ATM cooperated
with Commerce and sought a separate rate, just as it
did—with initial success—in the investigation proceed-
ings. See Initial Final Results, 78 Fed. Reg. at 11,145.
But Commerce ultimately concluded, in accordance with
DIAMOND SAWBLADES MANUFACTURER v. UNITED STATES 13
the decisions rendered by the CIT and this court in the
investigation proceedings, that ATM failed to rebut the
presumption of government control. Remand Redetermi-
nation, slip op. 14-50, at 2–4. ATM thus received the
PRC-wide entity rate. See Transcom, 294 F.3d at 1373
(“Under the NME presumption, a company that fails to
demonstrate independence from the NME entity is subject
to the countrywide rate . . . .”). Commerce’s decision to
assign ATM the PRC-wide entity rate was fully in accord-
ance with our case law addressing the application of the
PRC-wide entity rate to companies that fail to show an
absence of government control. See Michaels Stores, 766
F.3d at 1390; Changzhou Wujin, 701 F.3d at 1370; Trans-
com, 294 F.3d at 1373.
The statutory framework, including 19 U.S.C.
§§ 1673d and 1677e(b), is not to the contrary. We have
explained that 19 U.S.C. § 1673d “applies on its face only
to investigations, not periodic administrative reviews.”
Albemarle Corp. v. United States, 821 F.3d 1345, 1352
(Fed. Cir. 2016). “The statute also explicitly applies only
to market economy proceedings,” rather than NME pro-
ceedings. Id. at 1352 n.6. But since the statutory frame-
work requires Commerce to employ the same methods for
calculating a separate rate in periodic administrative
reviews for market economies as it does in initial investi-
gations, Commerce has adopted that statutory framework
in NME proceedings as well. Id. at 1352 & n.6.
Although Commerce generally applies the statutory
framework to administrative reviews involving a NME
country like the PRC, it continues to have “broad authori-
ty to interpret the antidumping statute and devise proce-
dures to carry out the statutory mandate.” Sigma Corp.,
117 F.3d at 1405. Because the statutory framework does
not directly apply to administrative review proceedings
involving a NME country, Commerce maintains its broad
authority to devise alternate procedures to carry out the
statutory mandate. We find nothing in the statutory
14 DIAMOND SAWBLADES MANUFACTURER v. UNITED STATES
framework that would require us to depart from our
conclusion in Sigma Corp. that Commerce acted within its
authority when it “employ[ed] a presumption of state
control for exporters in a [NME country], and [placed] the
burden on the exporters to demonstrate an absence of
central government control.” Id. Because ATM failed to
rebut the presumption of government control, Commerce’s
decision to apply the PRC-wide entity rate to ATM was
not contrary to law.
The fact that a country-wide rate may have been cal-
culated using AFA does not change its applicability to a
NME entity that cooperated, but ultimately failed to
qualify for a separate rate. This court’s reasoning in
Transcom, although addressing a slightly different factual
scenario, is instructive on this point. In that case, Trans-
com argued that Commerce improperly applied a best
information available (“BIA”) 5 rate to Transcom’s produc-
ers and suppliers because Commerce had failed to show
that the producers and suppliers had not cooperated with
Commerce’s investigation. 294 F.3d at 1380–81. Accord-
ing to Transcom, Commerce’s imposition of a BIA rate
under those circumstances violated § 1677e, “which
prohibits Commerce from imposing BIA-based rates on a
company that had not refused to provide information or
otherwise failed to cooperate in Commerce’s investiga-
tion.” Id. at 1381. But this court rejected Transcom’s
argument that § 1677e does not allow Commerce to apply
a BIA rate to an entity that had not failed to cooperate
with Commerce; we explained:
5 ATM explains that BIA is “the older term for
AFA.” Appellant’s Br. 28. Indeed, BIA “was the precur-
sor to the current ‘adverse inference’ from ‘facts otherwise
available’ rule.” Ta Chen Stainless Steel Pipe, Inc. v.
United States, 298 F.3d 1330, 1339 (Fed. Cir. 2002).
DIAMOND SAWBLADES MANUFACTURER v. UNITED STATES 15
That argument sidesteps the core principle under-
lying the NME presumption, because it proceeds
from the unspoken assumption that the producers
are independent of the NME entity, when in fact
the NME presumption begins with the assump-
tion that the producers are part of the NME entity
until they prove otherwise. If the producers are
assumed from the outset to be part of the NME
entity, then Commerce’s conclusion that the NME
entity is subject to a BIA-based rate logically re-
quires Commerce to apply the same BIA-based
rate to all other producers within the scope of the
review that have not proved their independence of
the state.
Id.
In this case, ATM similarly argues that § 1677e does
not allow Commerce to apply an AFA rate to a cooperat-
ing party. ATM asserts that Commerce calculated the
PRC-wide entity rate using AFA during the investigation
proceedings, so Commerce cannot apply the PRC-wide
entity rate to ATM after the first administrative review
because ATM cooperated in that review. But this argu-
ment “sidesteps the core principle underlying the NME
presumption.” Id. Since the beginning of this first ad-
ministrative review, Commerce has acknowledged that
the PRC-wide entity is composed of numerous entities
that all received a PRC-wide entity rate of 164.09%. See
Initial Final Results, 78 Fed. Reg. at 11,145 & n.20.
Commerce’s NME presumption begins by assuming that
ATM is part of the PRC-wide entity unless it can prove
otherwise. Because ATM failed to rebut the presumption
of government control, Commerce’s conclusion that the
PRC-wide entity is subject to an AFA-based rate logically
requires Commerce to apply the same AFA-based rate to
all members of the PRC-wide entity that have not proven
16 DIAMOND SAWBLADES MANUFACTURER v. UNITED STATES
their independence from the state, including ATM. 6 See
Transcom, 294 F.3d at 1381. Commerce’s decision, there-
fore, is not contrary to law.
6 ATM points to the CIT’s decision in China Manu-
facturers Alliance, LLC v. United States as supplemental
authority in support of its position. 205 F. Supp. 3d 1325
(Ct. Int’l Trade 2017). In China Manufacturers Alliance,
Commerce calculated a dumping margin of 0.69% for an
entity but then assigned the entity the PRC-wide entity
rate because the entity failed to rebut the presumption of
government control. The CIT concluded that Commerce
erred in assigning the entity the PRC-wide entity rate.
The CIT reasoned that the statutory framework required
Commerce to give the entity the rate it calculated based
on the entity’s status as a mandatory respondent, even
though the entity failed to rebut the presumption of state
control. DSMC and the United States argue that the CIT
erred in China Manufacturers Alliance when it attempted
to distinguish that case from its decision in Advanced
Technology & Materials, 938 F. Supp. 2d at 1350–51,
which this court affirmed. DSMC and the CIT are correct.
ATM, or at least a component of it, was selected as a
mandatory respondent in the investigation into the dump-
ing of diamond sawblades. See Investigation Preliminary
Determination, 70 Fed. Reg. at 77,122, 77,127–28. The
CIT’s analysis in China Manufacturers Alliance suffers
from the same deficiencies as ATM’s arguments in this
appeal. The analysis does not properly apply our prece-
dent upholding Commerce’s use of the PRC-wide entity
rate for companies that fail to rebut the presumption of
government control and is incompatible with the underly-
ing NME presumption. See Transcom, 294 F.3d at 1381.
Accordingly, we do not find the CIT’s decision in China
Manufacturers Alliance persuasive.
DIAMOND SAWBLADES MANUFACTURER v. UNITED STATES 17
ATM tries to avoid this conclusion by latching onto
Commerce’s statement in the Remand Redetermination
that, “unlike the less-than-fair-value investigation, no
part of the PRC-wide entity failed to cooperate to the best
of its ability.” Remand Redetermination, slip op. 14-50, at
9. But ATM takes this sentence out of the context provid-
ed by the remainder of Commerce’s decision. Commerce
expressly found that the PRC-wide entity included ATM
and 21 other companies. Id. at 9–10. ATM attempts to
distance itself from those companies by claiming that they
are not affiliated with ATM or they do not make up part
of the PRC-wide entity. But Commerce expressly found
that they are part of the PRC-wide entity. See Initial
Final Results, 78 Fed. Reg. at 11,145 & n.20. Given the
full context of Commerce’s opinion and its discussion in
the Initial Final Results, we do not believe Commerce’s
single statement overrides its findings regarding the
makeup of the PRC-wide entity. Instead, we understand
this statement as a recognition that ATM cooperated to
the best of its ability in this first administrative review.
Commerce did not address the cooperation—or lack
thereof—of other companies that make up the PRC-wide
entity.
ATM also attempts to avoid the PRC-wide entity rate
by arguing that the information supporting the PRC-wide
entity rate of 164.09% from the investigation proceedings
was not on the record of this administrative review.
According to ATM, the lack of evidence supporting the
calculation of the 164.09% rate renders Commerce’s
decision applying the PRC-wide entity rate to ATM un-
supported by substantial evidence. But this argument
again ignores the nature of the PRC-wide entity rate.
Commerce did not calculate a new separate rate for ATM
in this administrative review; it was applying the NME
presumption that ATM would receive the existing PRC-
wide entity rate unless it could show an absence of gov-
ernment control. As mentioned above, we have upheld
18 DIAMOND SAWBLADES MANUFACTURER v. UNITED STATES
this method of applying the PRC-wide entity rate to any
company that does not qualify for a separate rate on
numerous occasions. See Transcom, 294 F.3d at 1373;
Changzhou Wujin, 701 F.3d at 1370; Michaels Stores, 766
F.3d at 1390; Albemarle, 821 F.3d at 1348. Commerce
also acknowledged the historical PRC-wide entity rate
from the beginning of this administrative review. See
Initial Final Results, 78 Fed. Reg. at 11,145. We there-
fore find no issue with Commerce’s use of the previously
established PRC-wide entity rate to calculate an updated
PRC-wide entity rate that applies to ATM in this admin-
istrative review and conclude that Commerce’s conclu-
sions are supported by substantial evidence.
Our decision is not inconsistent with our decision in
Albemarle. There, we considered an administrative
review of antidumping duty rates for three companies
from the PRC. See Albermarle, 821 F.3d at 1347–48.
Commerce determined that all of the parties to the appeal
were entitled to separate rates, so the central issue in-
volved “the calculation of those separate rates.” Id. at
1348. Rather than calculate a separate rate for each of
the three companies in the administrative review, howev-
er, Commerce merely carried forward the rates used from
a previous administrative review and applied those as the
separate rates for the administrative review at issue. See
id. at 1347–51. We concluded that the record in that case
did not support Commerce’s ability to carry forward the
separate rates of the three companies from a previous
administrative review to the administrative review at
issue. See id. at 1351–59.
But our decision in Albemarle acknowledged at the
outset that, “[i]n proceedings involving [NME] countries,
including China, Commerce presumes that exporters are
state-controlled, and assigns them a single state-wide
dumping rate.” Id. at 1348 (emphasis added). Albemarle
therefore drew a distinction between the calculation of
separate rates for individual companies that qualify for
DIAMOND SAWBLADES MANUFACTURER v. UNITED STATES 19
such a rate and the application of the PRC-wide entity
rate to all companies that do not so qualify. See id. at
1348, 1351–53.
Commerce’s action in this case also complies with the
general admonition in Albemarle that administrative
reviews should “be as accurate and current as possible.”
821 F.3d at 1356 (quoting Allegheny Ludlum Corp. v.
United States, 346 F.3d 1368, 1373 (Fed. Cir. 2003)). In
this review, Commerce used the information it received
from ATM to recalculate the PRC-wide entity rate so that
it would reflect the most recent information it had re-
ceived from members of the PRC-wide entity. Remand
Redetermination, slip op. 14-50, at 9. Commerce
acknowledged that it did not have sufficient information
from all members of the PRC-wide entity to allow it to
calculate “a margin for the unspecified portion of the
PRC-wide entity,” but it accounted for the new infor-
mation it received from ATM by taking an average of the
two calculated rates and reducing the PRC-wide entity
rate from 164.09% to 82.12%. Id. Commerce’s actions are
supported by substantial evidence and are not contrary to
law.
III. CONCLUSION
A party in a NME country, such as ATM, must coop-
erate with Commerce if it hopes to receive a separate rate
rather than the single rate applied to the country-wide
entity. But, if the party, despite its cooperation, fails to
rebut the presumption of government control, the party
remains part of the country-wide entity and therefore
receives the country-wide entity rate. In other words, the
fact of cooperation may help an entity in a NME country
seek a reduction of the country-wide rate, as it did here,
but it does not, without more, save it from that rate. As
discussed above, we have reaffirmed this proposition
numerous times since Sigma Corp. See Transcom, 294
F.3d at 1373; Changzhou Wujin, 701 F.3d at 1370;
20 DIAMOND SAWBLADES MANUFACTURER v. UNITED STATES
Michaels Stores, 766 F.3d at 1390; Albemarle, 821 F.3d at
1348. Because ATM failed to rebut the presumption of
government control, it remained part of the PRC-wide
entity and received the PRC-wide entity rate.
For the foregoing reasons, we affirm the CIT’s deci-
sion sustaining Commerce’s application of the recalculat-
ed PRC-wide entity rate to ATM.
AFFIRMED
COSTS
No costs.