Zhejiang Machinery Import & Export Corp. v. United States

United States Court of Appeals
for the Federal Circuit
______________________
ZHEJIANG MACHINERY IMPORT & EXPORT
CORP.,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2021-2257
______________________
Appeal from the United States Court of International
Trade in No. 1:19-cv-00039-GSK, Judge Gary S.
Katzmann.
______________________
Decided: April 14, 2023
______________________
ADAMS L EE , Harris Bricken McVay Sliwoski, LLP, Se-
attle, WA, argued for plaintiff-appellant.
K ELLY A. K RYSTYNIAK, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for defendant-appellee. Also repre-
sented by BRIAN M. BOYNTON, P ATRICIA M. MCCARTHY ,
L OREN MISHA P REHEIM ; N IKKI K ALBING, J ESUS N IEVES
SAENZ, Office of the Chief Counsel for Trade Enforcement
and Compliance, United States Department of Commerce,
Washington, DC.
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ZHEJIANG MACHINERY IMPORT & EXPORT CORP. v. US 2
______________________
Before P ROST , REYNA, and HUGHES , Circuit Judges.
REYNA, Circuit Judge.
Appellant Zhejiang Machinery Import & Export Corp.
appeals the judgment of the U.S. Court of International
Trade that affirms the U.S. Department of Commerce’s fi-
nal determination in the 2016–2017 administrative review
of tapered roller bearings from China. Zhejiang challenges
Commerce’s decision that Zhejiang did not qualify for a
separate antidumping duty rate because it failed to suc-
cessfully rebut the presumption of de facto control by the
government of China. Commerce’s determination that
Zhejiang was not entitled to a separate rate was reasonable
and supported by substantial evidence because a labor un-
ion is the majority shareholder with significant rights over
Zhejiang and has overlapping membership with the em-
ployee stock-ownership committee. Accordingly, we affirm.
I.
In June 2017, the U.S. Department of Commerce
(“Commerce”) initiated an antidumping duty investigation
on certain tapered roller bearings (“TRBs”) from the Peo-
ple’s Republic of China (“PRC”). See 82 Fed. Reg. 26,443
(Dep’t of Commerce June 1, 2017); 82 Fed. Reg. 35,749–51
(Dep’t of Commerce Aug. 1, 2017). Antidumping duties
may be imposed on U.S. imports of goods that have been
determined are sold in the United States at less than fair
value, i.e., dumped or dumping, and that a domestic indus-
try is “materially injured” or “threatened with material in-
jury,” by virtue of the dumped imports. 19 U.S.C. § 1673;
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ZHEJIANG MACHINERY IMPORT & EXPORT CORP. v. US 3
see, e.g., Diamond Sawblades Mfrs. Coal. v. United States,
866 F.3d 1304, 1306 (Fed. Cir. 2017).1
An antidumping duty investigation may involve a non-
market economy (“NME”). A non-market economy country,
such as the PRC, is “any country that the administering
authority determines does not operate on market princi-
ples of cost or pricing structures, so that sales of merchan-
dise in such country do not reflect the fair value of the
merchandise.” 19 U.S.C. § 1677(18)(A); see, e.g., J.A. 526–
722.
Investigated goods from a non-market economy coun-
try are subject to a single country-wide antidumping duty
rate. Sigma Corp. v. United States, 117 F.3d 1401, 1405
(Fed. Cir. 1997). An individual producer from that country
can seek to receive an individual rate (as opposed to the
country-wide rate) if it demonstrates that the NME coun-
try’s government lacks both de jure and de facto control
over its activities. Id. at 1405. Only de facto control is at
issue in this appeal. Oral Arg. at 4:55–5:04.
To show an absence of de facto government control, the
foreign producer can demonstrate that it sets its prices in-
dependently, negotiates its own contracts, selects its man-
agement autonomously, and keeps its sales proceeds.
Silicon Carbide from the People’s Republic of China, 59
Fed. Reg. 22,585 (Dep’t of Commerce May 2, 1994); see also
Sigma Corp., 117 F.3d at 1405–06. If the exporter fails to
meet its burden in demonstrating the absence of govern-
ment control, Commerce can decline to issue a separate
1 Generally, in an antidumping investigation, Com-
merce determines the extent of dumping, and the U.S. In-
ternational Trade Commission investigates whether a
domestic industry that produces a like product (here,
TRBs) under investigation is materially injured or threat-
ened with material injury by virtue of dumped imports. 19
U.S.C. § 1673(2).
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ZHEJIANG MACHINERY IMPORT & EXPORT CORP. v. US 4
company-specific rate and instead apply to that exporter
the country-wide antidumping duty rate. Ad Hoc Shrimp
Trade Action Comm. v. United States, 925 F. Supp. 2d
1315, 1320 (Ct. Int’l Trade 2013).
On October 26, 2017, Commerce published a memoran-
dum, “China’s Status as a Non-Market Economy” (the
“NME Status Memorandum”), which discussed various fac-
tors that the agency examines in making its determination
on de facto government control, including the Chinese
economy as a whole. J.A. 526. A key factor is the legal and
institutional framework of trade unions of the Government
of China (“GOC”). J.A. 545–548. The NME Status Memo-
randum explains that Chinese labor laws permit employ-
ees to join and organize trade unions and negotiate
contracts, but the unions must be approved by the state.
J.A. 545. In actuality, labor and management do not “carry
out real bargaining” and “management does not even meet
with the trade unions, and “just sends them a collective
contract for ‘approval.’” J.A. 551 (internal citations omit-
ted). In other words, “[f]ormal indicia of trade union mem-
bership in China do not necessarily support a conclusion
[of] free bargaining.” Id.
The NME Status Memorandum outlines that the All-
China Federation of Trade Unions (“ACTFU”) has been
China’s official trade union since the founding of the PRC
in 1949. J.A. 546. The ACTFU has a “legal monopoly on
all trade union activities” and the ACTFU is subject to the
control of the Chinese Communist Party (the “CCP”) such
that trade or labor union leaders concurrently hold office
at a corresponding rank of the CCP or government. Id. In-
deed, “[t]rade union officials are officially employees of the
Chinese government” and are considered, by Commerce, to
be “government actors under CCP control.” Id. Addition-
ally, State-Owned Assets Supervision and Administration
Commission of the State Council (“SASAC”) is the manag-
ing entity of state-owned assets that has the power to
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ZHEJIANG MACHINERY IMPORT & EXPORT CORP. v. US 5
appoint managers and board members of state-owned en-
terprises but is influenced by the CCP. J.A. 608–09.
II.
In 1987, in the underlying antidumping duty investi-
gation, Commerce established a country-wide anti-dump-
ing duty for TRBs from the PRC. Tapered Roller Bearings
and Parts Thereof, Finished or Unfinished, from the Peo-
ple’s Republic of China, 52 Fed. Reg. 22,667, 22,667 (Dep’t
of Commerce June 15, 1987). In 2009, Commerce revised
the rate to 92.84%. Zhejiang Machinery Import & Export
Corp. v. United States, 471 F. Supp. 3d 1313, 1326 (Ct. Int’l
Trade 2020) (Decision I) (citing 74 Fed. Reg. 3,987, 3,989
(Dep’t of Commerce Jan. 22, 2009)). Since 2017, Zhejiang
Machinery Import & Export Corp. (“ZMC”) had previously
been granted separate rate status in prior reviews of TRBs
from China. Appellant’s Br. 4, 32. An interested domestic
party requested review of ZMC’s entries for a period of re-
view of June 1, 2016, to May 31, 2017, and submitted data
indicating de facto control of ZMC by the GOC. Decision I,
at 1326–27; see also Initiation of Antidumping and Coun-
tervailing Duty Administrative Reviews, 82 Fed. Reg.
35,749, 35,749 (Dep’t of Commerce Aug. 1, 2017).
At the request of an interested party, Commerce can
conduct an administrative review of an outstanding anti-
dumping duty order and, to the extent necessary, recalcu-
late antidumping duties for the period of review. 19 U.S.C.
§ 1675(a)(1)–(2). In 2017, Commerce published a notice of
opportunity to request review of the 2009 rate (“the 2009
Administrative Review”). ZMC filed an application seeking
a separate review.
CORPORATE STRUCTURE
In its response to a questionnaire issued by Commerce,
ZMC provided details about its corporate structure.
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ZHEJIANG MACHINERY IMPORT & EXPORT CORP. v. US 6
Appellant’s Br. 6. According to that data, ZMC (or
“Zhejiang Machinery” in the chart above) is wholly owned
by Zhejiang Sunny I/E Corporation (“Sunny”) which is, in
turn, owned in minority part by Zhejiang Province Metal &
Minerals Import and Export Co., Ltd. (“Zhejiang MMI&E”).
Appellant’s Br. 5. Zhejiang MMI&E is ultimately owned
by the Zhejiang Provincial SASAC. Id. at 7. Sunny’s ma-
jority shareholder, a labor union, was registered in accord-
ance with the Labor Union Law of the PRC and Civil Law
of the PRC and is registered before the Zhejiang Federation
of Trade Unions, a provincial level branch of the ACTFU.
Id. at 9–10. ZMC characterized Sunny’s labor union as the
“nominal owner” of the majority shares because the ulti-
mate owners were the members of Sunny’s employee stock
ownership company (“ESOC”), which cannot have legal
personhood under Chinese law or be assigned shares. De-
cision I, at 1327.
CIT ACTIONS
In July 2018, Commerce issued its preliminary deter-
mination in the 2009 Administrative Review. Decision I,
at 1326–27. After assessing ZMC’s corporate structure pro-
vided in ZMC’s separate rate application, Commerce pre-
liminarily found that ZMC failed to rebut the presumption
of de facto government control over its export activities.
Appellee’s Br. 5; Decision I, at 1327. In particular,
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ZHEJIANG MACHINERY IMPORT & EXPORT CORP. v. US 7
Commerce found that Sunny’s labor union and the GOC-
controlled SASAC together own 100% of Sunny and that
Sunny, in turn, owns 100% of ZMC. Decision I, at 1327.
According to Commerce, all labor unions are under the con-
trol and direction of the ACTFU, which is a government
affiliated “organ” of the CCP, and therefore, the GOC has
actual or potential control over ZMC’s export activities. Id.
at 1327–28.
ZMC submitted its case brief that included a revision
of the original translation of the ESOC’s Articles of Associ-
ation, but Commerce rejected consideration of the new
translation as untimely, and, instead, it considered ZMC’s
revised brief without the translation of the ESOC’s Articles
of Association. Id. at 1328.
In February 2019, Commerce published its final deter-
mination, which maintained the preliminary results that
ZMC failed to rebut the presumption of de facto control.
Decision I, at 1328–29. Commerce reasoned that Sunny’s
labor union (the majority shareholder) was ultimately con-
trolled by the ACTFU—an extension of the CCP—and that
Zhejiang MMI&E (the minority shareholder) was wholly
owned by the Zhejiang SASAC. Appellee’s Br. 9. Addition-
ally, the ESOC and labor union are intertwined because all
members of the ESOC are labor union members. Id. at 10.
ZMC appealed to the Court of International Trade
(“CIT”), challenging Commerce’s final determination, in-
cluding the refusal to consider the revised translation of
the ESOC Articles. Decision I, at 1329. The CIT held that
Commerce erred in rejecting the revised translation of
Sunny’s Articles and remanded the case, directing Com-
merce to consider the translation and explain how Sunny’s
labor union had the potential to exercise majority share-
holder rights in light of the presence of the ESOC. Appel-
lee’s Br. at 11–12; Decision I, at 1330.
On remand, Commerce reviewed the revised transla-
tion but maintained its determination that ZMC failed to
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ZHEJIANG MACHINERY IMPORT & EXPORT CORP. v. US 8
rebut the presumption of de facto government control for
several reasons. First, Commerce pointed to Article 20 of
the ESOC Articles of Association, which states that “[t]he
labor union members of [Sunny] may become members of
the ESOC after approval of the ESOC, and may purchase
and hold shares of the company according to their positions
or achievements in the company.” Appellee’s Br. 12. Sec-
ond, Commerce observed that ZMC’s separate rate ques-
tionnaire response states that members of the ESOC are
also members of the labor union:
Sunny is majoritively (sic) owned by its labor un-
ion, which consists of [] private individuals. In Ex-
hibit 1, please see the Articles of Association of
Sunny and the list of labor union members who own
the shares of Sunny. Based upon the Articles of As-
sociation, the majority shareholder, i.e., Sunny’s la-
bor union, takes majority members of the board of
directors and majority voting rights over all im-
portant decisions of Sunny within the board of di-
rectors. The board of directors, which is controlled
by the majority shareholder, also appointed the
general manager who is in return responsible for
all daily activities of Sunny.
Id. at 13 (citing J.A. 803) (emphases in original). Third,
Commerce did not distinguish labor union membership
from leadership, noting that the GOC “has the ability to
control labor union members to the same extent as labor
union leaders” and that collectively, these individuals, who
are members of the labor union, direct the equity owner-
ship of Sunny through the ESOC by selecting management
and the directors. Id. at 9, 13–15, 48–49 (citing J.A. 782,
804–05).
ZMC challenged Commerce’s determination, asserting
that Commerce had changed its position to rely entirely on
the premise that the CCP controlled Sunny because some
owners of Sunny were also members of the labor union.
Zhejiang Machinery Import & Export Corp. v. United
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ZHEJIANG MACHINERY IMPORT & EXPORT CORP. v. US 9
States, 521 F. Supp. 3d 1345, 1350 (Ct. Int’l Trade 2021)
(Decision II). The CIT reviewed Commerce’s remand de-
termination and affirmed Commerce’s determination that
ZMC had failed to rebut the presumption of government de
facto control. Id. at 1351. ZMC appealed. We have juris-
diction under 28 U.S.C. § 1295(a)(5).
D ISCUSSION
We review a judgment of the Court of International
Trade de novo, reapplying the same standard of review ap-
plied by that court in its review of Commerce’s antidump-
ing duty determinations. See NEXTEEL Co. v. United
States, 28 F.4th 1226, 1233 (Fed. Cir. 2022). As such, we
review Commerce’s findings for substantial evidence. Id.
Substantial evidence is “evidence that a reasonable mind
might accept as adequate to support a conclusion.” SeAH
Steel VINA Corp. v. United States, 950 F.3d 833, 840 (Fed.
Cir. 2020) (citation omitted); see also Nippon Steel Corp. v.
United States, 337 F.3d 1373, 1379 (Fed. Cir. 2003).
On appeal, ZMC contends that the corporate structure
here differs from other cases where Commerce has denied
separate rate status to an exporter that was either directly
or indirectly owned by a company with majority sharehold-
ing held by a SASAC entity. Appellant’s Br. 19. ZMC as-
serts that the SASAC entity in this case only held an
“indirect minority shareholding.” Id. (emphasis in origi-
nal). The record evidence, ZMC believes, shows that the
union could not exercise any control—actual or potential—
over the corporation because the union could not make cap-
ital contributions and, consequently, had no voting rights.
Oral Arg. at 3:43–4:03. ZMC argues that Commerce should
have focused on the majority of the corporation’s shares be-
ing held by the twenty individual employees who formed
the ESOC because they had true voting rights while the
labor union’s possession of those shares were nominal. Ap-
pellant’s Br. 20; Oral Arg. at 3:56–4:11. ZMC claims that
mere passive membership of the ESOC in a labor union
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ZHEJIANG MACHINERY IMPORT & EXPORT CORP. v. US 10
where they participate only in non-union activities is not
enough to establish the GOC’s control. Appellant’s Br. 20.
The government argues that the NME Status Memo-
randum explains how the Chinese union structure shows
government involvement and is evidence of a “top-down,
state-led approach to collective bargaining in China [that]
essentially produces government-managed outcomes.” Ap-
pellee’s Br. 26–27 (citing J.A. 551). While ZMC’s question-
naire response and case brief assert that the union is a
nominal majority shareholder, the government contends
that the Articles of Association do not limit the labor un-
ion’s power—let alone “carve out any rights for the ESOC.”
Id. at 37–38. The government explains that the union can
still appoint board members who control operations and
price setting, can still vote on shareholder resolutions, and
can still determine the disposition of profits. Id. at 39. Ad-
ditionally, the government asserts that Zhejiang MMI&E,
the state-owned minority owner of ZMC, has significant
control over Sunny because it can elect two out of five board
members. Id. at 39–40. So, not only are Sunny’s employees
members of the union, but the union itself is the majority
shareholder. Id. at 41. Therefore, the government argues,
the GOC could exert influence over Sunny and ZMC if it
wanted to. Id.
As the CIT has noted, “[w]here a majority shareholder
has potential control[,] that control is, for all intents and
purposes, actual control.” An Giang Fisheries Imp. & Exp.
Joint Stock Co. v. United States, 284 F. Supp. 3d 1350, 1359
(Ct. Int’l Trade 2018). The mere presence of a government-
owned minority shareholder may not be sufficient to estab-
lish de facto government control. Id. at 1359, 61–62. But
where evidence of additional indicia of control shows that
the minority shareholder could exercise its right to con-
trol—such as Articles of Association without restrictions on
the minority shareholder’s rights, or evidence that the mi-
nority shareholder stifled other shareholders’ opportunity
to put competing nominations to the board or indirectly
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ZHEJIANG MACHINERY IMPORT & EXPORT CORP. v. US 11
appointed board members—a determination of de facto
government control is reasonable. Id. at 1361–64.
There is no dispute that the labor union is the legal
majority shareholder of ZMC. Oral Arg. at 8:42–8:48. The
record demonstrates that the labor union is a majority
shareholder of and has influence over Sunny, which owns
100% of ZMC. Corporate documents show that the labor
union is the majority shareholder; the union voted to ap-
point the corporation’s general manager and board mem-
bers; one of the twenty ESOC members is both a union
member and a union official; and the remaining ESOC
members are also union members. J.A. 785; Appellee’s Br.
13, 24; Oral Arg. at 18:29–35. Commerce’s NME Status
Memorandum explains that (1) workers in China have
“limited collective bargaining power because they lack the
freedom to associate and assemble and the right to strike,”
J.A. 551, and (2) all labor unions are ultimately under the
control of the ACTFU and—by extension—the CCP, J.A.
785. Even if ZMC were correct that the ESOC exercises
majority shareholder rights, the common membership of
the ESOC members with the labor union (and one union
official) shows that the GOC has the potential to exercise
control over the ESOC through its labor union members
and, consequently, over Sunny and ZMC. J.A. 805–06;
Oral Arg. at 15:49–16:34, 17:17. Even ZMC’s minority
shareholder, which is owned by a SASAC entity, has the
power to appoint two board members, thereby having at
least the potential to control ZMC—if not actual control
over the corporation.
ZMC’s corporate documents do not support its argu-
ment that the labor union cannot exercise any voting rights
as the legal majority shareholder. Article 11 of Sunny’s Ar-
ticles of Association lists “Zhejiang Province Metals and
Minerals Import and Export Co., Ltd.” as Shareholder A
and “Labor Union of Zhejiang Sunny I/E Co., Ltd.” as
Shareholder B. J.A. 149. Article 12(1) gives the sharehold-
ers the right to participate in meetings and “exercise voting
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ZHEJIANG MACHINERY IMPORT & EXPORT CORP. v. US 12
rights . . . in proportion to their capital contribution.” Id.
at 149. While ZMC argues that this proportionality of
rights hinges on capital contributions, and the union can-
not legally make any capital contributions, ZMC has not
shown whether all shareholder rights are tethered to capi-
tal contributions. For example, Article 12(3) gives “share-
holders of the Company” the right to “elect and be elected
as director or supervisor of the Company,” and Article 12(5)
permits shareholders to “exercise the priority purchase
right.” Id. Article 14 provides that the “board of share-
holders of the Company shall be composed by both of its
shareholders” as the “organ of authority of the Company.”
Id. Article 21 explains that the Board is accountable to the
shareholders (including the labor union) and “shall” “de-
cide on business plans and investment plans,” formulate
the annual budget, formulate the “profit distribution plans
and plans for making up losses,” and decide on the “inter-
nal management organization.” Id. at 150; see Tapered
Roller Bearings and Parts Thereof, Finished and Unfin-
ished from the People’s Republic of China: Factual Infor-
mation Regarding Zhejiang Machinery (Oct. 2, 2017), P.R.
109 (“ZMC October Submission”); Appellee’s Br. 10. Article
27 provides that the company “shall have a board of super-
visors, which shall have three members,” and that board is
to be “appointed by the board of shareholders.” J.A. 151.
These shareholder rights do not appear to be expressly tied
to a shareholder’s capital contributions from the Articles.
The record does not disclose an instance where Sunny
was unable to exercise its rights as a majority shareholder
due to GOC influence through the labor union. Appellant’s
Br. 22, 36–37; Appellee’s Br. 16–17; Arg. at 15:25–50. The
absence of such evidence, however, does not necessarily ne-
gate the potential for GOC control, particularly as the bur-
den lies with ZMC to develop a full record and affirmatively
rebut the presumption. Sigma, 117 F.3d at 1405–06; see
also Decision II, at 1351–52.
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ZHEJIANG MACHINERY IMPORT & EXPORT CORP. v. US 13
Commerce found that Sunny’s labor union had the in-
herent ability to appoint board members who “in turn con-
trol Zhejiang Machinery, including company operations
and price setting,” vote on shareholder resolutions, and
“determine the disposition of profits.” Appellee’s Br. 10
(citing J.A. 783); ZMC October Submission. Sunny’s “Res-
olution of Shareholders’ Meeting” suggests that sharehold-
ers approve board appointments. Appellee’s Br. 6. Board
meeting minutes also suggest that only the board elected
by the labor union voted on matters. Appellee’s Br. 48. Ar-
ticle 20 of the ESOC’s Articles of Association states that the
labor union members can purchase shares of the company.
Appellee’s Br. 12. And yet, neither Sunny’s Articles of As-
sociation nor its board meeting minutes mention the em-
ployees or “ESOC.” J.A. 148–53; Appellee’s Br. 37–38.
Accordingly, ZMC’s argument that the corporation is actu-
ally governed by the ESOC is unreasonable and unsup-
ported by substantial evidence. Contra Appellant’s Br. 50–
51.
Commerce has previously found an exporter’s labor un-
ion membership relevant to the de facto analysis. See Ap-
pellee’s Br. 42 n. 3 (citing Multilayered Wood Flooring from
the People’s Republic of China: Final Results of Antidump-
ing Duty Administrative Review and Final Determination
of No Shipments; 84 Fed. Reg. 38,002 (Dep’t of Commerce
Aug. 5, 2019), and accompanying IDM at 50 (“Thus, we con-
tinue to conclude that [the company’s] government-owned
entity, the Labor Union, which is under control of the
ACTFU, exercises, or has the potential to exercise, control
over [the company’s] export operations.”)). When “Com-
merce has a routine practice for addressing like situations,
it must either apply that practice or provide a reasonable
explanation” as to why it departs from it. Save Domestic
Oil, Inc. v. United States, 357 F.3d 1278, 1283–84 (Fed. Cir.
2004). Thus, Commerce’s consideration of the labor union’s
role in ZMC’s corporate structure was not error.
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ZHEJIANG MACHINERY IMPORT & EXPORT CORP. v. US 14
Together, ZMC’s submissions demonstrate that the
shareholders, including the labor union, have the power to
select managers and keep the profit distribution—factors
that Commerce has considered in establishing the pre-
sumption of de facto control. See, e.g., Sigma, 117 F.3d at
1405–06 (considering independent pricing, contract negoti-
ation, management selection, and profit management).
Given the legal framework of unions in China, there is no
absence of control over ZMC from the labor union or
ACTFU because the ESOC cannot negotiate its own con-
tracts or organize as a legal person, nor is there any meas-
urement by the GOC to decentralize control of unions or
the union in this case as majority shareholder. Even if this
is the first case where an exporter is arguing that the vot-
ing shareholder is an employee stock ownership committee,
Commerce’s determination of de facto government control,
based on ZMC’s corporate structure comprising union
membership and overlapping ownership with a union offi-
cial, paired with an absence of support for ZMC’s argument
of restricted GOC control over the ESOC, is reasonable and
supported by substantial evidence. The CIT properly af-
firmed Commerce’s remand determination denying ZMC a
separate rate due to de facto government control.
CONCLUSION
We hold that Commerce’s determination of the pre-
sumption of de facto government control over ZMC was
supported by substantial evidence and otherwise not con-
trary to law. We therefore affirm the CIT’s decision sus-
taining Commerce’s final results of redetermination
pursuant to court remand that denied ZMC a separate an-
tidumping rate. We have considered ZMC’s remaining ar-
guments and find them unpersuasive.
AFFIRMED
COSTS
No costs.
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