China Manufacturers Alliance v. United States

C
Case: 20-1159   Document: 74    Page: 1   Filed: 06/10/2021




   United States Court of Appeals
       for the Federal Circuit
                 ______________________

    CHINA MANUFACTURERS ALLIANCE, LLC,
        DOUBLE COIN HOLDINGS LTD.,
              Plaintiffs-Appellees

     GUIZHOU TYRE CO., LTD., GUIZHOU TYRE
         IMPORT AND EXPORT CO., LTD.,
                   Plaintiffs

                           v.

                   UNITED STATES,
                  Defendant-Appellant
                 ______________________

                       2020-1159
                 ______________________

    Appeal from the United States Court of International
 Trade in Nos. 15-cv-00124-TCS, 15-cv-00128-TCS, Chief
 Judge Timothy C. Stanceu.
                ______________________

                 Decided: June 10, 2021
                 ______________________

     JAMES P. DURLING, Curtis, Mallet-Prevost, Colt &
 Mosle LLP, Washington, DC, argued for plaintiffs-appel-
 lees. Also represented by CHRISTOPHER A. DUNN, DANIEL
 L. PORTER; GENE C. SCHAERR, Schaerr Jaffe LLP, Washing-
 ton, DC.

    JOHN JACOB TODOR, Commercial Litigation Branch,
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 2                      CHINA MANUFACTURERS ALLIANCE   v. US



 Civil Division, United States Department of Justice, Wash-
 ington, DC, argued for defendant-appellant. Also repre-
 sented by BRIAN M. BOYNTON, JEANNE DAVIDSON,
 FRANKLIN E. WHITE, JR.; PAUL KEITH, Office of the Chief
 Counsel for Trade Enforcement and Compliance, United
 States Department of Commerce, Washington, DC.
      ______________________

 Before LOURIE, CLEVENGER, and HUGHES, Circuit Judges.
 CLEVENGER, Circuit Judge.
     The United States appeals from the final judgment of
 the United States Court of International Trade (“Trade
 Court”), which held that the Department of Commerce
 (“Commerce”) could not apply an existing China-wide anti-
 dumping duty rate, applicable to all Chinese exporters that
 had not demonstrated independence from the Chinese gov-
 ernment, to Double Coin Holdings Ltd. (“Double Coin”),
 even though it is undisputed that Double Coin failed to
 demonstrate independence from the Chinese government.
 For the reasons set forth below, we reverse the final judg-
 ment of the Trade Court and remand for further proceed-
 ings consistent with this opinion.
                        BACKGROUND
     Initial Investigation and Four Administrative Reviews
     The background to this appeal begins with Commerce’s
 antidumping investigation into “Certain New Pneumatic
 Off-The-Road Tires from the People’s Republic of China.”
 Commerce’s Final Determination in this investigation en-
 compassed a period of investigation from October 1, 2006
 through March 31, 2007 and was published on July 15,
 2008. Certain New Pneumatic Off–The-Road Tires from the
 People’s Republic of China: Final Affirmative Determina-
 tion of Sales at Less Than Fair Value and Partial Affirma-
 tive Determination of Critical Circumstances, 73 Fed. Reg.
 40,485, 40,485–92 (Dep’t of Commerce July 15, 2008); see
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 CHINA MANUFACTURERS ALLIANCE      v. US                      3



 also Certain New Pneumatic Off-the-Road Tires from the
 People’s Republic of China: Notice of Amended Final Af-
 firmative Determination of Sales at Less Than Fair Value
 and Antidumping Duty Order, 73 Fed. Reg. 51,624 (Dep’t
 of Commerce Sept. 4, 2008). In antidumping investigations
 concerning countries with non-market economies
 (“NMEs”), such as the People’s Republic of China (“PRC”),
 Commerce applies a presumption that all exporters are
 subject to government control. Our court has previously ap-
 proved Commerce’s application of a presumption of govern-
 ment control over exporters in NME countries, as well as
 Commerce’s use of a single antidumping rate for an NME-
 wide entity composed of companies that have not demon-
 strated their independence from government control. See
 Sigma Corp. v United States, 

117 F.3d 1401

, 1405–06 (Fed.
 Cir. 1997). In its Final Determination, Commerce identi-
 fied Double Coin as among the companies that had over-
 come the presumption of government control and assigned
 Double Coin a separate weighted-average antidumping
 margin. 1 The “PRC-wide entity,” comprising all exporters
 that failed to overcome the presumption of government
 control (i.e., all exporters not individually listed in Com-
 merce’s Final Determination) was assigned a rate of
 210.48%. Commerce calculated this rate from facts availa-
 ble with an adverse inference (“adverse facts available” or
 “AFA”), based on Commerce’s determination that the PRC-
 wide entity had “failed to cooperate [with Commerce’s in-
 vestigation] to the best of its ability” because the record in-
 dicated that there were many exporters of subject
 merchandise who failed to respond to Commerce’s ques-
 tionnaires. Certain New Pneumatic Off-The-Road Tires
 from the People’s Republic of China; Preliminary Determi-
 nation of Sales at Less Than Fair Value and Postponement


     1   Commerce initially assigned Double Coin a margin
 of 9.48%. 73 Fed. Reg. at 40,489. This margin was subse-
 quently amended to 12.91%. 73 Fed. Reg. at 51,626.
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 4                     CHINA MANUFACTURERS ALLIANCE    v. US



 of Final Determination, 73 Fed. Reg. 9278, 9285 (Dep’t of
 Commerce Feb. 20, 2008); 73 Fed. Reg. at 40,488.
      Commerce subsequently conducted three annual ad-
 ministrative reviews of the antidumping duty order. 2 Dou-
 ble Coin’s individual assigned antidumping rate remained
 in place following each of these reviews. The PRC-wide en-
 tity rate remained at 210.48%. A fourth annual antidump-
 ing review was initiated by Commerce, but was rescinded
 before it was conducted after all parties that requested a
 review timely withdrew their requests. 3




     2    See Certain New Pneumatic Off-the-Road Tires
 from the People’s Republic of China: Final Results of the
 2008–2009 Antidumping Duty Administrative Review, 76
 Fed. Reg. 22,871 (Dep’t of Commerce April 25, 2011) (pe-
 riod of review February 20, 2008 through August 31, 2009);
 Certain New Pneumatic Off-the-Road Tires from the Peo-
 ple’s Republic of China: Final Results of the 2009–2010 An-
 tidumping Duty Administrative Review and Final
 Rescission, in Part, 77 Fed. Reg. 14,495 (Dep’t of Commerce
 March 12, 2012) (period of review September 1, 2009
 through August 31, 2010); Certain New Pneumatic Off-the-
 Road Tires from the People’s Republic of China: Final Re-
 sults of Antidumping Duty Administrative Review and Fi-
 nal Rescission, in Part; 2010–2011, 78 Fed. Reg. 22,513
 (Dep’t of Commerce April 16, 2013) (period of review Sep-
 tember 1, 2010 through August 31, 2011).
      3   Certain New Pneumatic Off-the-Road Tires from
 the People’s Republic of China: Rescission of Antidumping
 Duty Administrative Review; 2011–2012, 78 Fed. Reg.
 33,059 (Dep’t of Commerce June 3, 2013) (review period
 September 1, 2011 through August 31, 2012).
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 CHINA MANUFACTURERS ALLIANCE     v. US                    5



                Fifth Administrative Review and
                    Trade Court Proceedings
     Notice of initiation of the fifth administrative review
 (the review on appeal in this case) was published in No-
 vember 2013. See Initiation of Antidumping and Counter-
 vailing Duty Administrative Reviews and Request for
 Revocation in Part, 78 Fed. Reg. 67,104 (Dep’t of Commerce
 Nov. 8, 2013). Double Coin was selected as a mandatory
 respondent in this review. 

Id. at 67108

; see also J.A. 168–
 226, 168 4 (Issues and Decision Memorandum for Final Re-
 sults of Antidumping Duty [Fifth] Administrative Review).
 Double Coin fully cooperated with Commerce during the
 course of the fifth administrative review.
      Based on the information Double Coin submitted to
 Commerce during the review, Commerce initially calcu-
 lated a de minimis 0.14% final antidumping margin for
 Double Coin. J.A. 371. However, Commerce also deter-
 mined that Double Coin had “failed to demonstrate absence
 of de facto government control over export activities due to
 the fact that its controlling shareholder is wholly owned by
 the State-owned Assets Supervision and Administration
 Commission of the State Council and the significant level
 of control this majority shareholder wields over the re-
 spondent’s Board of Directors,” and was thus not eligible
 for its separate rate. 5 Certain New Pneumatic Off-the-Road
 Tires from the People’s Republic of China: Preliminary Re-
 sults of Antidumping Duty Administrative Review; 2012–
 2013, 79 Fed. Reg. 61,291, 61,293 (Dept. of Commerce Oct.
 10, 2014); see also Certain New Pneumatic Off-the-Road
 Tires from the People’s Republic of China: Amended Final


    4     Citations to “J.A. ___” refer to the joint appendix
 filed by the parties to this appeal.
      5   Double Coin does not appeal Commerce’s factual
 determination that Double Coin failed to demonstrate de
 facto independence from Chinese government control.
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 6                      CHINA MANUFACTURERS ALLIANCE      v. US



 Results of Antidumping Duty Administrative Review;
 2012–2013, 80 Fed. Reg. 26,230 (Dep’t of Commerce May 7,
 2015). Commerce’s policy, which we have approved, is that
 exporters that fail to demonstrate independence from gov-
 ernment control do not qualify for a separate rate. Trans-
 com, Inc. v. United States, 

294 F.3d 1371

, 1373 (Fed. Cir.
 2002); see also 78 Fed. Reg. at 67,111 n.10 (Initiation Notice
 of fifth administrative review, stating that exporters who
 do not qualify for a separate rate will be deemed part of a
 single China-wide entity).
     Commerce’s practice in place at the time of the fifth ad-
 ministrative review was to conditionally review the NME
 entity during an administrative review of an antidumping
 duty order if one or more of the exporters subject to the re-
 view did not demonstrate that it was separate from the
 NME entity (i.e., did not overcome the presumption of gov-
 ernment control). J.A. 178–79. Thus, Commerce’s Initia-
 tion Notice for the fifth administrative review put the PRC
 entity in this case on notice that it was conditionally sub-
 ject to the review: “If one of the above-named companies
 does not qualify for a separate rate, all other exporters of
 Certain New Pneumatic Off-the-Road Tires [from] the PRC
 who have not qualified for a separate rate are deemed to be
 covered by this review as part of the single PRC entity of
 which the named exporters are a part.” See 78 Fed. Reg. at
 67,111 n.10.
     Following from Double Coin’s failure to overcome the
 presumption of control by the Chinese government, the
 PRC-wide entity (including Double Coin) became subject to
 the fifth administrative review. J.A. 179. Commerce thus
 reviewed the assigned PRC-wide antidumping rate, which
 had previously been set at 210.48%. Because Double Coin
 fully cooperated with Commerce and had provided Com-
 merce with its verified sales and production data (resulting
 in the calculated rate of 0.14%), but no other portion of the
 PRC entity had provided data to Commerce, Commerce de-
 termined that it was “able to calculate a margin for an
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 CHINA MANUFACTURERS ALLIANCE     v. US                     7



 unspecified portion of a single PRC-wide entity [i.e. Double
 Coin], but cannot do so for the remaining unspecified por-
 tion of the entity [i.e., any and all other exporters in the
 PRC-wide entity].” 79 Fed. Reg. at 61,293. Commerce thus
 performed a simple average of the previous PRC-wide rate
 and the calculated rate for Double Coin, to arrive at a final
 rate of 105.31% applicable to the PRC-wide entity (includ-
 ing Double Coin). 80 Fed. Reg. at 26,231.
      Multiple companies, including Double Coin, challenged
 the Final Results of the fifth administrative review before
 the Trade Court. See China Mfrs. Alliance, LLC v. United
 States, 

205 F. Supp. 3d 1325

 (Ct. Int’l Trade 2017) (CMA
 I). In CMA I, the Trade Court concluded that because Com-
 merce had selected Double Coin to participate in the review
 as a mandatory respondent and had calculated an individ-
 ual rate for Double Coin (prior to determining that Double
 Coin failed to demonstrate independence from the Chinese
 Government), the antidumping statute 19 U.S.C. § 1677f-
 1(c) required Commerce to assign the calculated individual
 rate of 0.14% to Double Coin, notwithstanding Commerce’s
 policy to assign the PRC-wide entity rate to manufacturers
 that failed to demonstrate independence from the Chinese
 government. 

205 F. Supp. 3d at 1339

–41. The Trade Court
 determined that, because Double Coin fully cooperated
 with Commerce’s investigation, Commerce could not law-
 fully carry forward against Double Coin the adverse infer-
 ences built into the original PRC-wide 210.48% rate,
 because to do so would apply a punitive rate to a cooperat-
 ing party. 

205 F. Supp. 3d at 1334

–41. The Trade Court
 held that Commerce could not permissibly assign any rate
 other than the 0.14% calculated rate to Double Coin, and
 remanded the case to Commerce for further proceedings.
 In its Remand Redetermination, Commerce assigned the
 de minimis 0.14% rate to Double Coin under respectful pro-
 test. J.A. 705. Various parties again contested the Remand
 Redetermination before the Trade Court. J.A. 72–73.
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 8                     CHINA MANUFACTURERS ALLIANCE    v. US



      The Intervening Diamond Sawblades Decision
     After Commerce issued its Remand Redetermination
 but before the Trade Court issued its opinion in China
 Mfrs. Alliance, LLC v. United States, 

357 F. Supp. 3d 1364

 (Ct. Int’l Trade 2019) (CMA II) reviewing the challenges to
 the Remand Redetermination, we issued our opinion in Di-
 amond Sawblades Manufacturers Coalition v. United
 States, 

866 F.3d 1304

 (Fed. Cir. 2017), which reviewed
 Commerce’s first administrative review of the underlying
 antidumping order. Like this case, Diamond Sawblades in-
 volved a fully cooperating non-independent exporter who
 was assigned an antidumping rate as part of the PRC-wide
 entity, which rate was based in part on AFA.
     Specifically, Diamond Sawblades concerned an anti-
 dumping rate assigned to a group of affiliated Chinese ex-
 porters of diamond sawblades, the group identified as the
 Advanced Technology & Materials Co. (“ATM”). In the orig-
 inal investigation that led to the antidumping order, ATM
 was determined to have overcome the presumption of Chi-
 nese government control, was individually investigated,
 and was assigned an individual antidumping rate of 2.50%.
 The Diamond Sawblades Manufacturers Coalition, on be-
 half of the United States domestic industry, appealed the
 final antidumping order, and the Trade Court remanded
 the case for further explanation of the test used to deter-
 mine independence, and other evidence of record. On re-
 mand, Commerce again found ATM independent of
 Chinese government control, and hence entitled to its
 2.50% antidumping rate. After yet another appeal to the
 Trade Court, the case was again remanded for further re-
 view of ATM’s status. On that remand, Commerce deter-
 mined that ATM had failed to rebut the presumption of
 government control and was thus not qualified for its indi-
 vidually investigated rate. ATM unsuccessfully appealed
 that determination to the Trade Court, and then to this
 court, which affirmed Commerce’s determination without
 opinion under our Rule 36. Advanced Tech. & Materials Co.
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 CHINA MANUFACTURERS ALLIANCE   v. US                     9



 v. United States, 541 F. App’x 1002 (Fed. Cir. 2013). While
 ATM’s status was sub judice before the Trade Court and
 this court, Commerce’s first administrative review of the
 diamond sawblades antidumping order commenced. In the
 initial proceedings Commerce designated ATM as a man-
 datory respondent, found it to be independent of Chinese
 government control, and with ATM fully cooperating, as-
 signed ATM an individually investigated antidumping rate
 of 0.15%. After judicial confirmation that ATM was not in-
 dependent, Commerce determined that ATM was disquali-
 fied from its 0.15% individually investigated rate. The
 then-governing PRC-wide entity rate for non-independent
 exporters (established through AFA in the original investi-
 gation) was 164.09%. Commerce reviewed and updated the
 existing PRC-wide rate in the first administrative review
 proceedings by calculating a simple average of the existing
 rate with ATM’s 0.15% rate to set a new PRC-wide rate of
 82.12%. See Diamond Sawblades, 

866 F.3d at 1307

–11 (cit-
 ing Diamond Sawblades Mfrs. Coal. v. United States (Re-
 mand Redetermination) at 9, Court No. 13-00078 (Dep’t of
 Commerce Apr. 10, 2015), http://enforcement.trade.gov/re-
 mands/14-50.pdf).
     ATM unsuccessfully appealed to the Trade Court,
 which affirmed Commerce’s application of the PRC-wide
 rate to ATM. ATM then appealed to this court. In deciding
 Diamond Sawblades, we rejected ATM’s argument that,
 because ATM cooperated with the first administrative re-
 view, Commerce could not apply a PRC-entity rate to ATM
 which was derived in part from a rate based on AFA. 

Id. at
1310

–11. We held that because it had failed to rebut the
 presumption of government control, ATM was subject to
 the PRC-wide rate, and that the calculation of the PRC-
 wide rate using AFA did not change this result. 

Id. at
1312

–13. Over ATM’s challenge to application of an AFA-
 based rate to it, we expressly approved as lawful “Com-
 merce’s use of the previously established PRC-wide entity
 rate to calculate an updated PRC-wide entity rate that
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 10                    CHINA MANUFACTURERS ALLIANCE     v. US



 applies to ATM in this administrative review . . . .” 

Id. at
1314

. We further observed that “[t]he CIT . . . concluded
 that Commerce’s decision was a review of the PRC-wide en-
 tity rate within the meaning of 19 U.S.C. § 1675(a), not a
 review of the makeup of the PRC-wide entity.” 

Id. at 1309

–
 10 (internal citation omitted). Though “Commerce ex-
 pressly found that the PRC-wide entity included ATM and
 21 other companies[,]” “Commerce did not address the co-
 operation—or lack thereof—of other companies that make
 up the PRC-wide entity.” 

Id. at 1313

–14. It was thus ATM’s
 failure to rebut the presumption of government control, not
 the composition of the PRC-wide entity or the cooperation
 or non-cooperation of ATM or any other potential member
 of the PRC-wide entity, that validated Commerce’s deter-
 mination to apply the AFA-derived PRC-wide rate to ATM.
         Post-Remand Proceedings in Trade Court
      Returning to the case here now on appeal, various par-
 ties filed comments on Commerce’s Remand Redetermina-
 tion (issued pursuant to the Trade Court’s opinion in CMA
 I). Double Coin did not comment on the Remand Redeter-
 mination. CMA II, 

357 F. Supp. 3d at 1369

. The govern-
 ment also filed a motion before the Trade Court seeking a
 partial remand for Commerce to revisit the issue of Double
 Coin’s margin in light of our intervening decision in Dia-
 mond Sawblades, which Double Coin opposed. 

Id. at 1367

–
 68. Unsurprisingly, the government viewed our holding in
 Diamond Sawblades to foreclose any challenge Double
 Coin could mount against application of the PRC-wide rate
 to it.
      The Trade Court correctly understood our decision in
 Diamond Sawblades to authorize Commerce to assign a
 partially AFA-based PRC-wide entity rate to a fully coop-
 erating exporter selected as a mandatory respondent that
 fails to rebut the presumption of government control. 

Id. at
1382

. Nonetheless, the Trade Court perceived a difference
 between the facts in this case and in Diamond Sawblades
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 CHINA MANUFACTURERS ALLIANCE     v. US                     11



 that prohibited Commerce from assigning the 105.31%
 PRC-wide entity rate to Double Coin. In this case, the
 Trade Court emphasized that all parties to the administra-
 tive review cooperated with Commerce, and that Com-
 merce “did not find the PRC-wide entity, or any portion of
 it, to be an uncooperative respondent in the [fifth adminis-
 trative] review.” 

Id. at 1380

. But in Diamond Sawblades,
 the PRC-wide entity included twenty-one companies that
 did not cooperate in the first administrative review. 

Id. at
1383 n.11

. The Trade Court treated our decision in Dia-
 mond Sawblades to condition our approval of the AFA-
 based PRC-wide entity rate for ATM on the lack of cooper-
 ation of part of the PRC-wide entity in that case, and thus
 to make our decision in Diamond Sawblades inapplicable
 to the situation where all parties to a review fully cooperate
 with Commerce. Because no party to the review proceeding
 in this case failed to cooperate so as to warrant lawful ap-
 plication of an AFA-based rate, the Trade Court held that
 the PRC-wide rate must be fixed at the 0.14% rate individ-
 ually investigated for Double Coin. Having distinguished
 Diamond Sawblades, the Trade Court denied the govern-
 ment’s motion for partial remand on the ground that the
 only permissible rate for Double Coin is the 0.14% rate pre-
 viously mandated by the Trade Court. 

Id. at 1382

. 6
     The case was again remanded to Commerce on matters
 related to exporters other than Double Coin. Commerce’s
 second Remand Redetermination was again appealed to
 the Trade Court, which affirmed all of Commerce’s



     6   As discussed below, we disagree with the Trade
 Court that the non-cooperation of some identified portion
 of the PRC-wide entity with the administrative review on
 appeal was a predicate to our decision in Diamond Saw-
 blades, and we accordingly disagree with the Trade Court
 that Diamond Sawblades can be distinguished from this
 case on that ground.
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 12                     CHINA MANUFACTURERS ALLIANCE      v. US



 decisions, including the 0.14% rate assigned to Double
 Coin. China Mfrs. Alliance, LLC v. United States, No. 15-
 00124, 

2019 WL 4165274

 (Ct. Int’l Trade Sept. 3, 2019)
 (CMA III).
     The United States timely appeals from the Trade
 Court’s final judgment in CMA III. We have jurisdiction
 pursuant to 28 U.S.C. § 1295(a)(5). For the reasons dis-
 cussed below, we reverse the final judgment of the Trade
 Court.
                         DISCUSSION
      We apply the same standard of review as was applied
 by the Trade Court, without deference. Dupont Teijin
 Films USA, LP v. United States, 

407 F.3d 1211

, 1215 (Fed.
 Cir. 2005); SNR Roulements v. United States, 

402 F.3d
1358

, 1361 (Fed. Cir. 2005). Accordingly, we uphold Com-
 merce’s determination unless it is “unsupported by sub-
 stantial evidence . . . or otherwise not in accordance with
 law.” 19 U.S.C. § 1516a(b)(1)(B)(i); see Dupont Teijin, 

407
F.3d at 1215

; SNR Roulements, 

402 F.3d at 1361

. Substan-
 tial evidence means “such relevant evidence as a reasona-
 ble mind might accept as adequate to support a
 conclusion.” Universal Camera Corp. v. NLRB, 

340 U.S.
474

, 477 (1951).
      The question before the court is whether Commerce is
 justified in assigning the 105.31% PRC-wide entity rate to
 Double Coin in this case. The government argues that our
 decision in Diamond Sawblades governs this case because,
 in its view, the record in that case is not materially differ-
 ent from the record in this case; consequently, Commerce
 lawfully applied a carried-forward PRC-wide rate to an ex-
 porter who failed to rebut the presumption of government
 control. Double Coin counters, arguing that the records of
 the two cases materially differ. In this case, the only iden-
 tified member of the PRC-wide entity is Double Coin, but
 in the Diamond Sawblades first annual review, there were
 other members of the PRC-wide entity identified in the
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 CHINA MANUFACTURERS ALLIANCE     v. US                    13



 review. According to Double Coin, the permissibility of ap-
 plying the carried-forward PRC-wide rate in this case
 hinges on the presence of such other members of the PRC-
 wide entity, and absent any such other members in this
 case, the Trade Court correctly blocked application of the
 PRC-wide rate and instead required application of the
 0.14% rate to Double Coin. For the reasons set forth below,
 we reject the ground relied upon by the Trade Court to dis-
 tinguish our decision in Diamond Sawblades, and also re-
 ject as immaterial the distinction Double Coin draws
 between this case and Diamond Sawblades. Consequently,
 no basis has been argued to preclude Commerce from ap-
 plying to this case the same analysis and rationale it used
 in Diamond Sawblades to sustain the applicable PRC-wide
 entity rate.
 Legal Authority for NME Entity-Wide Antidumping Rates
      Double Coin argues that Congress has specifically pro-
 vided for only two kinds of rates in antidumping investiga-
 tions. For support, it cites 19 U.S.C. § 1673d(c)(1)(B)(i),
 which provides in subpart (I) for a rate “for each exporter
 and producer individually investigated,” and in subpart (II)
 for “the estimated all-others rate for all exporters and pro-
 ducers not individually investigated.” Double Coin
 acknowledges 19 C.F.R. § 351.107(d), an antidumping pro-
 ceeding regulation, which reads as follows:
     (d) Rates in antidumping proceedings involving
     nonmarket economy countries. In an antidumping
     proceeding involving imports from a nonmarket
     economy country, “rates” may consist of a single
     dumping margin applicable to all exporters and
     producers.
     Because Congress has expressly provided for only two
 kinds of rates in antidumping proceedings, Double Coin ar-
 gues that this regulation cannot serve as authority to cre-
 ate and impose a third kind of rate, to be applicable to
 exporters or producers from NME countries who fail to
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 14                     CHINA MANUFACTURERS ALLIANCE      v. US



 rebut the presumption of government control. The govern-
 ment does not disagree with Double Coin on this point, and
 indeed agrees with Double Coin that a lawful antidumping
 rate for an NME-wide entity must be one of the two rates
 specified in § 1673d.
     The government argues that the rate assigned to the
 PRC-wide entity in this case is a rate for the defined entity,
 and is a rate that was individually investigated for that
 group. Double Coin disagrees, arguing first that Commerce
 lacks authority to treat the entity as an “each exporter” un-
 der the statute, and additionally, even if Commerce has au-
 thority to recognize the PRC-wide entity as an “each
 exporter,” the PRC-wide rate in this case cannot stand be-
 cause it was not “individually investigated.”
     As to whether Commerce may treat a group of export-
 ers in an NME-economy as a single, separate exporter for
 purposes of receiving an antidumping rate, Double Coin
 recognizes that binding cases (too numerous to list in their
 entirety) have uniformly sustained Commerce’s recogni-
 tion of an NME-wide entity as a single exporter for pur-
 poses of assigning an antidumping rate to the individual
 members of the entity. See, e.g., Michaels Stores, Inc. v.
 United States, 

766 F.3d 1388

, 1390–91 (Fed. Cir. 2014). But
 Double Coin questions here the authority for Commerce to
 so recognize such an NME-wide entity. Although 19 C.F.R.
 § 351.107 may bar an additional kind of antidumping rate,
 Double Coin does not come to grips with the clear authority
 provided by the regulation for Commerce to fashion a sin-
 gle rate for all exporters and producers that qualify for the
 single rate. We think it clear that Commerce may, where
 the facts warrant, recognize a single NME-wide entity to
 include all exporters that fail to rebut the presumption of
 government control. The authority question left in this case
 is thus whether the PRC-wide rate in this case can fairly
 be understood as a rate investigated for the single PRC-
 wide entity. We think, contrary to Double Coin’s view, that
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 CHINA MANUFACTURERS ALLIANCE      v. US                     15



 the PRC-wide rate in this case qualifies as individually in-
 vestigated. 7
      It is true, as Double Coin notes, that in the fifth admin-
 istrative review the members of the PRC-wide entity (other
 than Double Coin, the later-arriving member of the entity)
 were not individually investigated. Double Coin, of course,
 was so investigated and given its individually investigated
 rate, which it forfeited upon its failure to rebut the pre-
 sumption of government control. But the non-Double Coin
 members of the PRC-wide entity were investigated in the
 initial investigation. As the government explains, “Com-
 merce investigated the exporters in China during its initial
 investigation and calculated a single, China-wide entity
 rate to be applied to exporters who fail to establish inde-
 pendence from state control.” See Appellant Reply Br. at 6.
 In the initial antidumping investigation, Commerce sent
 quantity and value questionnaires to ninety-four identified



     7   The subject of what kind of antidumping rates
 Commerce may legally apply in antidumping investiga-
 tions was under adjudication in another case before the
 Trade Court during the time this case was also pending be-
 fore the Trade Court. In Thuan An Production Trading &
 Service Co. v. United States, the Trade Court held that the
 only permissible rates for antidumping proceedings are the
 two specified in 19 U.S.C. § 1673d(c)(1)(B)(i)(I)–(II), and
 that 19 C.F.R. § 351.107(d) does not provide authority for
 a third kind of rate. 

348 F. Supp. 3d 1340

, 1347–48 (Ct. Int’l
 Trade 2018) (Thuan An I). Following a remand, the Trade
 Court further held that the rate established for the PRC-
 wide entity in that case qualified as “individually investi-
 gated” within the meaning of § 1673d(c)(1)(B)(i)(I). Thuan
 An Prod. Trading & Serv. Co. v. United States, 

396 F. Supp.
3d 1310

, 1315–19 (Ct. Int’l Trade 2019) (Thuan An II). The
 final decision in Thuan An II was not appealed to this
 court.
Case: 20-1159    Document: 74     Page: 16    Filed: 06/10/2021




 16                     CHINA MANUFACTURERS ALLIANCE     v. US



 Chinese exporters, and received responses from only thirty.
 Based on that information, Commerce identified an entity
 composed of uncooperative exporters, who had failed to re-
 but the presumption of government control and for whom
 Commerce had no individual data. Accordingly, Commerce
 calculated an AFA rate for this PRC-wide entity. The PRC-
 wide entity rate resulting from Commerce’s initial investi-
 gation constitutes an “individually investigated” weighted
 average dumping margin within the meaning of
 § 1673d(c)(1)(B)(i)(I) because “Commerce treats the compa-
 nies comprising the China-wide entity as a single entity
 and investigated them as such in the original investiga-
 tion.” See Appellant Reply Br. at 6. Double Coin fails to es-
 tablish that any additional investigation into the country-
 wide entity is required in order to comport with the statute
 in carrying this investigated rate forward into later admin-
 istrative review proceedings. Our decision in Diamond
 Sawblades confirmed that Commerce may carry forward
 an initial NME entity rate, including the adverse infer-
 ences built into that rate, in subsequent administrative re-
 views. 

866 F.3d at 1314

–15.
          Application of PRC-Wide Rate in This Case
     Commerce determined that the proper PRC-wide en-
 tity rate in the fifth annual review is a simple average of
 the carried-forward AFA-based PRC-wide rate of 210.48%
 and Double Coin’s 0.14% investigated rate, for a PRC-wide
 rate of 105.31%. 8 Commerce’s authority generally to carry
 forward pre-existing AFA-based PRC-wide rates was sus-
 tained in Dongtai Peak Honey Industry Co. v. United


      8  We understand Double Coin to challenge the pro-
 priety of carrying forward the previously established
 210.48% PRC-wide rate into the fifth annual review, but if
 the carrying forward is permissible, not to challenge the
 averaging methodology used by Commerce to calculate the
 105.31% rate.
Case: 20-1159    Document: 74     Page: 17   Filed: 06/10/2021




 CHINA MANUFACTURERS ALLIANCE    v. US                    17



 States, 

777 F.3d 1343

, 1356 (Fed. Cir. 2015), and Double
 Coin points to no precedent that precludes the discretion
 Commerce exercised in averaging the two rates in this
 case. See Sigma, 

117 F.3d at 1405

 (Commerce “has broad
 authority to interpret the antidumping statute and devise
 procedures to carry out the statutory mandate.”). The
 Trade Court correctly understood our holding in Diamond
 Sawblades to authorize a PRC-wide rate for Double Coin,
 but the court concluded that Commerce is barred from ap-
 plying an AFA-based PRC-wide rate to a cooperating ex-
 porter following an administrative review in which no
 member of the PRC-wide entity failed to cooperate with
 Commerce. Because the record in Diamond Sawblades
 showed that twenty-one exporters within the PRC-wide en-
 tity had not cooperated with Commerce, the Trade Court
 interpreted our Diamond Sawblades decision to condition
 its holding on the presence of non-cooperating PRC-wide
 entity members in the annual review. Thus distinguishing
 Diamond Sawblades, the Trade Court concluded that the
 only permissible rate for Double Coin on the record of this
 case is its 0.14% rate.
     In Diamond Sawblades, a mandatory respondent
 (ATM) who cooperated with the review and supplied suffi-
 cient data for calculation of an individual rate for it, but
 who failed to rebut the presumption of government control,
 was denied its individually investigated rate and instead
 given an AFA-based PRC-wide rate set by investigation in
 the underlying antidumping investigation. In that case, as
 in this case, Commerce did not review the composition of
 the PRC-wide entity, or data particular to the exports of
 members of the PRC-wide entity, but did review the PRC-
 wide rate. 9 The other 21 identified members of the PRC-



     9    See Diamond Sawblades, 

866 F.3d at 1309

 (noting
 lack of information concerning other members of the PRC-
 wide entity and review of only the PRC-wide rate).
Case: 20-1159    Document: 74     Page: 18    Filed: 06/10/2021




 18                     CHINA MANUFACTURERS ALLIANCE     v. US



 wide entity, like Double Coin in this case, joined the PRC-
 wide group after failing to rebut the presumption of gov-
 ernment control. See Appellant Br. at 30. The review of the
 PRC-wide rate consisted of Commerce’s carrying forward
 of the preexisting AFA-based PRC-wide entity rate, in com-
 bination with a simple averaging of ATM’s individually in-
 vestigated rate, to calculate an updated PRC-wide entity
 rate. Diamond Sawblades, 

866 F.3d at 1314

. In Diamond
 Sawblades, the cooperation (or lack thereof), or even the
 presence, of other exporters who made up the composition
 of the PRC-wide entity was immaterial to Commerce’s de-
 cision to apply the PRC-wide rate to ATM, and was simi-
 larly considered immaterial by this court. We found “no
 issue with Commerce’s use of the previously established
 PRC-wide entity rate to calculate an updated PRC-wide en-
 tity rate that applies to ATM.” 

Id.

 Because the conduct of
 members of a PRC-wide entity is not a condition necessary
 to sustain an AFA-based PRC-wide entity rate for a coop-
 erating mandatory respondent who joins the PRC-wide en-
 tity during a review, this case cannot be distinguished from
 Diamond Sawblades. As we perceive no material difference
 between the record upon which Commerce established its
 PRC-wide rate in the two cases, we conclude that Com-
 merce was within the law in assigning the 105.31% PRC-
 wide entity rate to Double Coin.
     Double Coin nonetheless points to numerous past cases
 involving PRC-wide antidumping rates in which numerous
 members of the PRC-wide entity were present before Com-
 merce during the relevant investigations, 10 and in which
 other exporters fell into the PRC-wide entity upon failure



      10 See, e.g., Albemarle Corp. v. United States, 

821 F.3d
1345

 (Fed. Cir. 2016); Michaels Stores, 

766 F.3d 1388

;
 Transcom, Inc. v. United States, 

294 F.3d 1371

 (Fed. Cir.
 2002); Sigma Corp. v. United States, 

117 F.3d 1401

 (Fed.
 Cir. 1997).
Case: 20-1159    Document: 74     Page: 19   Filed: 06/10/2021




 CHINA MANUFACTURERS ALLIANCE    v. US                    19



 to rebut the presumption of government control. Double
 Coin suggests that the presence of other PRC-entity mem-
 bers in those cases was a legal prerequisite to application
 of the PRC-wide rate to the exporters who fell into the
 group after failing to rebut the key presumption. But none
 of those cases state such a prerequisite, and we see no rea-
 son to read such a prerequisite into those cases. Double
 Coin also makes much of the fact that in this case, Com-
 merce did not review exports by other members of the PRC-
 wide entity. But Double Coin has not pointed to any record
 evidence in Commerce’s proceedings in Diamond Saw-
 blades showing review by Commerce of exports by any of
 the other members of the PRC-wide entity in that case. 11
 As our decision in Diamond Sawblades recognized, focus
 on the other members of the PRC-wide entity was not a
 condition upon which the legality of the PRC-wide rate de-
 pended. The fact that Double Coin is the only member of
 the PRC-wide group identified by name in the fifth annual
 review in this case does not undermine the assignment of
 the PRC-wide entity rate to Double Coin. Double Coin en-
 tered the fifth annual review knowing that Commerce was
 carrying forward a preexisting PRC-wide rate, based on
 AFA, for application to any exporter who failed to rebut the
 presumption of government control. Double Coin sought,
 but failed, to rebut the presumption of government control.
 Double Coin has not convinced us that application of the
 PRC-wide rate to it is unlawful, but the government has
 convinced us that the Trade Court erred in blocking Com-
 merce from applying the PRC-wide rate to Double Coin.
                        CONCLUSION
    We have previously affirmed Commerce’s practice of
 applying a rebuttable presumption that all companies


     11  Our independent review of Commerce’s actions in
 Diamond Sawblades also did not reveal any assessment of
 exports by other members of the PRC-wide entity.
Case: 20-1159     Document: 74   Page: 20    Filed: 06/10/2021




 20                    CHINA MANUFACTURERS ALLIANCE    v. US



 within an NME country are subject to government control.
 Sigma, 

117 F.3d at 1405

. We now confirm that the result-
 ing country-wide NME entity rate may be an “individually
 investigated” rate within the meaning of 19 U.S.C.
 § 1673d(c)(1)(B)(i)(I), which Commerce may determine us-
 ing its ordinary techniques of investigation. Commerce
 may permissibly assign such a rate to the unitary group of
 exporters in an NME country that have failed to rebut the
 presumption of government control. This rate may be
 based in whole or in part on FA or AFA, and Commerce
 may carry forward an initial NME entity rate, including
 adverse inferences built into that rate, in subsequent ad-
 ministrative reviews. Diamond Sawblades, 

866 F.3d at
1312

–15. As we concluded in Diamond Sawblades, where a
 respondent in an NME country cooperates with an investi-
 gation or review but fails to rebut the presumption of gov-
 ernment control, Commerce may permissibly apply the
 country-wide NME entity rate. This conclusion applies
 whether or not other members of the NME-wide entity are
 identified by name and subject to the administrative re-
 view at issue. For the reasons discussed, we conclude that
 Commerce’s application of the 105.31% PRC-wide entity
 rate to Double Coin was not contrary to law and was rea-
 sonable on the facts of this case. Accordingly, we reverse
 the final judgment of the Trade Court and remand the case
 with instructions to return the case to Commerce for it to
 proceed in a manner consistent with this opinion.
                REVERSED AND REMANDED
                           COSTS
 No costs.

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