Pirelli Tyre Co., Ltd., Pirelli Tyre S.p.a., Pirelli Tire LLC v. United States, United Steel, Paper

United States Court of Appeals
for the Federal Circuit
______________________
PIRELLI TYRE CO., LTD., PIRELLI TYRE S.P.A.,
PIRELLI TIRE LLC,
Plaintiffs-Appellants
SHANDONG NEW CONTINENT TIRE CO., LTD.,
Plaintiff
v.
UNITED STATES, UNITED STEEL, PAPER AND
FORESTRY, RUBBER, MANUFACTURING,
ENERGY, ALLIED INDUSTRIAL AND SERVICE
WORKERS INTERNATIONAL UNION, AFL-CIO,
CLC,
Defendants-Appellees
______________________
2023-2266
______________________
Appeal from the United States Court of International
Trade in No. 1:20-cv-00115-JCG, Judge Jennifer Choe-
Groves.
______________________
Decided: February 11, 2025
______________________
D ANIEL L. P ORTER, Curtis, Mallet-Prevost, Colt &
Mosle LLP, Washington, DC, argued for plaintiffs-appel-
lants. Also represented by J AMES P. D URLING; A NA MARIA
AMADOR G IL , New York, NY.
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PIRELLI TYRE CO., LTD. v. US 2
SOSUN B AE , Commercial Litigation Branch, Civil Divi-
sion, United States Department of Justice, Washington,
DC, argued for defendant-appellee United States. Also
represented by BRIAN M. BOYNTON, P ATRICIA M.
MCCARTHY ; AYAT MUJAIS , Office of the Chief Counsel for
Trade Enforcement and Compliance, United States De-
partment of Commerce, Washington, DC.
N ICHOLAS J. BIRCH , Schagrin Associates, Washington,
DC, argued for defendant-appellee United Steel, Paper and
Forestry, Rubber, Manufacturing, Energy, Allied Indus-
trial and Service Workers International Union, AFL-CIO,
CLC. Also represented by CHRISTOPHER CLOUTIER,
ELIZABETH D RAKE, WILLIAM ALFRED F ENNELL , J EFFREY
D AVID G ERRISH , L UKE A. MEISNER, ROGER B RIAN SCHAGRIN.
______________________
Before P ROST , T ARANTO, and CHEN, Circuit Judges.
T ARANTO, Circuit Judge.
Based on the United States Department of Commerce’s
2015 antidumping-duty order covering certain passenger-
vehicle and light-truck tires from the People’s Republic of
China (PRC), Commerce conducted an administrative re-
view under section 751 of the Tariff Act of 1930, 19 U.S.C.
§ 1675, of merchandise that was covered by the 2015 order
and entered into the United States between August 1,
2017, and July 31, 2018 (the 2017–2018 administrative re-
view). In that review, Commerce followed its practice, ap-
proved by this court since Sigma Corp. v. United States,
117 F.3d 1401, 1405–07 (Fed. Cir. 1997), of applying a re-
buttable presumption that all exporters within the “non-
market economy” of the PRC are subject to the PRC
government’s control and hence assigning such an exporter
a PRC-wide antidumping-duty rate unless the exporter
demonstrates independence from government control suf-
ficient to entitle it to a separate rate. See 19 U.S.C.
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PIRELLI TYRE CO., LTD. v. US 3
§ 1677(18). Pirelli Tyre Co., Ltd. (Pirelli China), a foreign
producer and exporter of certain tires covered by the 2015
order, sought to establish such independence, but Com-
merce determined that it had not done so. The United
States Court of International Trade (Trade Court) upheld
Commerce’s determination as in accordance with the law
and supported by substantial evidence. We now affirm.
I
In 2015, Commerce issued an antidumping-duty order
for certain passenger-vehicle and light-truck tires from the
PRC. Certain Passenger Vehicle and Light Truck Tires
From the People’s Republic of China: Amended Final Af-
firmative Antidumping Duty Determination and Anti-
dumping Duty Order; and Amended Final Affirmative
Countervailing Duty Determination and Countervailing
Duty Order, 80 Fed. Reg. 47902 (Aug. 10, 2015). Upon re-
quest from Pirelli China and its affiliated U.S. importer,
Pirelli Tire LLC (Pirelli USA), Commerce initiated the
2017–2018 administrative review to determine rates for
the identified period. Initiation of Antidumping and Coun-
tervailing Duty Administrative Reviews, 83 Fed. Reg.
50077 (Oct. 4, 2018) (Initiation Notice). We do not repeat
the recitation of the procedural history set forth by the
Trade Court in upholding the ultimate results of the review
(as relevant here). Pirelli Tyre Co., v. United States, 627 F.
Supp. 3d 1322, 1326–28 (Ct. Int’l Trade 2023) (First Opin-
ion), superseded by Pirelli Tyre Co., v. United States, 638
F. Supp. 3d 1361, 1364–67 (Ct. Int’l Trade 2023) (Amended
Opinion).
Commerce may assign a “single dumping margin appli-
cable to all exporters and producers” within the PRC be-
cause, as is accepted here, the PRC is a “nonmarket
economy” (NME) country. 19 C.F.R. § 351.107(d); see 19
U.S.C. §§ 1677(18)(A) (defining an NME country as one
whose economy that does “not operate on market principles
of cost or pricing structures, so that sales of merchandise
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PIRELLI TYRE CO., LTD. v. US 4
in such country do not reflect the fair value of the merchan-
dise”), 1673d(c)(1)(B)(i); China Manufacturers Alliance,
LLC v. United States, 1 F.4th 1028, 1036–37 (Fed. Cir.
2021); Michaels Stores, Inc. v. United States, 766 F.3d
1388, 1390 (Fed. Cir. 2014); Sigma, 117 F.3d at 1405–06.
In the current proceeding, Commerce followed its
longstanding, judicially approved practice of presuming
“that all companies within the [PRC] are subject to govern-
ment control and, thus, should be assigned a single anti-
dumping duty deposit rate,” and requiring Pirelli China, in
order to justify a separate rate for itself, to “demonstrate
the absence of both de jure and de facto government control
over [its] export activities.” Initiation Notice, 83 Fed. Reg.
at 50078; see, e.g., Michaels Stores, Inc., 766 F3d at 1390,
1392. Attempting such a showing, as Commerce in-
structed, id., required providing, in a separate-rate appli-
cation, information relevant under a test set forth in a 2005
policy bulletin—which the parties here accept as control-
ling. Policy Bulletin 05.1, Separate-Rates Practice and Ap-
plication of Combination Rates in Antidumping
Investigations involving Non-Market Economy Countries
1–7 (Dep’t of Commerce Apr. 5, 2005), available at
https://enforcement.trade.gov/policy/bull05-1.pdf (Separate
Rate Policy Bulletin).1 At issue here is whether Pirelli
China met the third criterion of the de-facto-control test—
having “autonomy from the central, provincial and local
governments in making decisions regarding the selection
of its management,” Separate Rate Policy Bulletin, at 2; see
1 After briefing was complete in this court, Com-
merce added 19 C.F.R. § 351.108 to its regulations, codify-
ing a version of the separate-rate test that included two
more de facto criteria. Regulations Enhancing the Admin-
istration of the Antidumping and Countervailing Duty
Trade Remedy Laws, 89 Fed. Reg. 101694, 101699–705,
101758–60 (Dec. 16, 2024).
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PIRELLI TYRE CO., LTD. v. US 5
Amended Opinion, at 1366, 1372–73; Pirelli Opening Br. at
22, 24–25, 38.
Pirelli China (along with Pirelli USA) filed a separate-
rate application. J.A. 201–42; see also J.A. 557–1461 (ex-
hibits attached to application). The application disclosed
an “indirect relationship” between Pirelli China and the
Central State-owned Assets Supervision and Administra-
tion Commission of the State Council (SASAC): Two state-
owned enterprises supervised by SASAC—the Silk Road
Fund and China National Chemical Corporation (referred
to in the proceedings as Chem China, ChemChina, or
China Chem)—“had indirect ownership interests in Pirelli
& C. S.p.A. [(Pirelli Italy)],” which was “the Italian holding
company of the Pirelli Group” and “indirect controlling
shareholder of [Pirelli China].”2 J.A. 220. The application
referred to Italian law in passing, but it did not include cop-
ies of relevant Italian laws or English translations (or ex-
pert analysis). J.A. 226 & n.11, 227–29.
Commerce issued its preliminary results on October
18, 2019, rejecting the separate-rate request because Pi-
relli China had not demonstrated an absence of de facto
control by the PRC’s government. Certain Passenger Vehi-
cle and Light Truck Tires From the People’s Republic of
China: Preliminary Results of Antidumping Duty Adminis-
trative Review and Rescission, in Part; 2017–2018, 84 Fed.
Reg. 55909, 55912 (Oct. 18, 2019). Pirelli China then sub-
mitted a case brief arguing that the preliminary determi-
nation was “legally and factually wrong” and pointing to
Italian law as evidence that Pirelli Italy’s board of direc-
tors, Pirelli Italy, and Pirelli China are independent from
SASAC entities. J.A. 1615, 1642–46, 1657–60. In April
2 China Chem’s indirect control ran through its
wholly owned subsidiary, China National Tire & Rubber
Corporation, Ltd. (CNRC). See Amended Opinion, at 1379;
Pirelli Opening Br. at 14.
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2020, Commerce issued its final results, in which it “con-
tinue[d] to find” that Pirelli China had not demonstrated
its entitlement to a separate rate. Certain Passenger Vehi-
cle and Light Truck Tires From the People’s Republic of
China: Final Results of Antidumping Duty Administrative
Review; 2017–2018, 85 Fed. Reg. 22396, 22397 (Apr. 22,
2020). Commerce found that Pirelli China “ha[d] not
demonstrated on this record that Chem China no longer
retains actual or potential control and influence through-
out the Pirelli companies’ ownership structure (i.e., Pirelli
[Italy] and Pirelli China) and management, including Pi-
relli China’s board and management,” specifically identify-
ing the failure to demonstrate “autonomy from government
control over the selection of management.” Decision Mem-
orandum for the Final Results of the Antidumping Duty Ad-
ministrative Review of Certain Passenger Vehicle and Light
Truck Tires from the People’s Republic of China and Rescis-
sion, in part; 2017 2018 at 14, 17–18 (Dep’t of Commerce
Apr. 15, 2020) (Final Decision Memo). Commerce rejected
Pirelli China’s Italian-law arguments as unsupported by
the record, which did not include the relevant provisions of
Italian law. Id. at 15–17.
On May 21, 2020, Pirelli China, Pirelli USA, and Pirelli
Tyre S.p.A. (another entity in the corporate chain between
Pirelli Italy and Pirelli China3) (collectively, Pirelli) chal-
lenged Commerce’s decision in the Trade Court. See 19
U.S.C. §§ 1516a(a), (d), 1677(9); 28 U.S.C. § 2631(c). After
a remand for reasons not important on appeal now, the
Trade Court held that Commerce’s assignment of the PRC-
wide rate to Pirelli China was in accordance with the law
and supported by substantial evidence. First Opinion, at
1342. The Trade Court did not address Pirelli’s arguments
3 Pirelli Tyre S.p.A. is 100% owned by Pirelli Italy
and is the indirect owner of Pirelli China. Final Decision
Memo, at 15; Government Response Br. at 8.
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premised on Italian law, holding that “Commerce’s rejec-
tion of Pirelli’s unsupported interpretations of Italian law
was reasonable.” Id. at 1339. Pirelli moved to amend or
alter the judgment, asking the Trade Court to address its
Italian-law arguments. The Trade Court did so in its
Amended Opinion, concluding that “[e]ven if Italian law
had been on the record before Commerce, it would not have
rebutted the presumption of de facto government control.”
Amended Opinion, at 1380; see id. at 1380–83.
Pirelli timely appealed. We have jurisdiction pursuant
to 28 U.S.C. § 1295(a)(5).
II
We review decisions of the Trade Court by “apply[ing]
anew the same standard used” by the Trade Court. Ad Hoc
Shrimp Trade Action Committee v. United States, 802 F.3d
1339, 1348 (Fed. Cir. 2015) (alteration in original) (quoting
Mittal Steel Point Lisas Ltd. v. United States, 548 F.3d
1375, 1380 (Fed. Cir. 2008)). We uphold Commerce’s de-
termination here 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 Union Steel v.
United States, 713 F.3d 1101, 1106 (Fed. Cir. 2013). “Sub-
stantial evidence means ‘such relevant evidence as a rea-
sonable mind might accept as adequate to support a
conclusion.’” China Manufacturers Alliance, LLC, 1 F.4th
at 1035 (quoting Universal Camera Corp. v. National La-
bor Relations Board, 340 U.S. 474, 477 (1951)).
A
Pirelli argues that Commerce’s analysis of whether Pi-
relli China was entitled to a separate rate contained two
“legal flaw[s]”—first, not explicitly linking the selection of
management to “export functions,” and second, adopting
and applying an unlawful interpretation of “rebuttable pre-
sumption.” Pirelli Opening Br. at 20–37. We disagree.
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PIRELLI TYRE CO., LTD. v. US 8
Pirelli argues that the test articulated in the Separate
Rate Policy Bulletin requires Commerce to establish on the
record a link between the selection of management and in-
fluence over export activities. Id. at 21–31. But, as the
Trade Court held, Pirelli’s view is counter to the text of the
accepted Separate Rate Policy Bulletin: The third factor for
de facto control, addressing “selection of its management,”
omits the restrictions to “export prices” or “export sales”
that appear in the first and fourth factors. Amended Opin-
ion, at 1377. And there is no persuasive reason to read
such restrictions into this factor, contrary to the facially
plain reading: Control of selecting management may rea-
sonably be thought to entail control of all significant man-
agement decisions such as the ones at issue here. We
conclude that Commerce properly gave this factor its plain
meaning as part of the multi-factor test, with the ultimate
finding subject to substantial-evidence review that re-
quires bottom-line reasonableness.
Pirelli also argues that Commerce employed a “legally
flawed” approach by treating the rebuttable presumption
as a “new standard of evidence” where the respondent must
“prove that the presumption is affirmatively wrong to win
separate rate eligibility.” Pirelli Opening Br. at 31–32. We
understand Pirelli to be arguing that overcoming the re-
buttable presumption here is distinct from having to carry
a burden of persuasion and that the latter is not required.
See id. at 31–37. It is enough to say that, whatever varia-
tions in usage there may be in law generally, it is clear in
this context that Commerce requires the respondent in pre-
sent circumstances to carry a burden of persuasion to jus-
tify a separate rate, and we have upheld that practice. E.g.,
Zhejiang Machinery Import & Export Corp. v. United
States, 65 F.4th 1364, 1366 (Fed. Cir. 2023) (explaining
that Commerce can decline a separate-rate application “[i]f
the exporter fails to meet its burden in demonstrating the
absence of government control” and listing evidence that
the exporter may provide to meet its burden); Diamond
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Sawblades Manufacturers Coalition v. United States, 866
F.3d 1304, 1311 (Fed. Cir. 2017) (collecting cases); Sigma,
117 F.3d at 1405–06 (explaining that a respondent in an
NME country “must ‘affirmatively demonstrate’ its entitle-
ment to a separate, company-specific margin” (citation
omitted)); Dongtai Peak Honey Industry Co., v. United
States, 777 F.3d 1343, 1350, 1354 (Fed. Cir. 2015). Because
Commerce found that Pirelli did not carry that burden, it
does not matter whether the burden of persuasion is part
of, or additional to, the presumption.
B
Pirelli contends that Commerce’s finding that Pirelli
failed to show the absence of de facto government control is
not supported by substantial evidence, arguing that Com-
merce “did not seriously address” all evidence “and instead
simply relied heavily on the presumption of state control.”
Pirelli Opening Br. at 38–65. We disagree.
First, Pirelli’s argument depends in large part on its
assertions about Italian law. See Pirelli Opening Br. at 18,
39, 45–51, 60–64. But Commerce did not act improperly in
declining to consider those arguments given that the record
did not contain the relied-on provisions of Italian law, Eng-
lish translations of them, or expert analyses of relevant
Italian law. At least where all three were missing, we
agree with the Trade Court that Commerce’s rejection of
the Italian-law arguments was reasonable given that Com-
merce has “discretion in the manner in which it conducts
its administrative proceedings” and that “[t]he respondent
bears the burden of creating the record for Commerce’s re-
view.” First Opinion, at 1339; Amended Opinion, at 1378.
We note that the separate-rate application did not even in-
clude full citations to specific provisions of Italian law that
Pirelli now argues should have been considered, see, e.g.,
J.A. 228–29; Pirelli Opening Br. at 62–63, and that Pirelli
should have been aware of the importance of providing
such documentation on the record given that the separate-
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PIRELLI TYRE CO., LTD. v. US 10
rate application had instructions to include English trans-
lations of relevant documents and laws, see, e.g., J.A. 217–
18.
Second, substantial evidence supports Commerce’s de-
termination. The substantial-evidence standard requires
Commerce to consider all evidence on the record, but such
consideration does not necessitate explicit mention and dis-
cussion of each piece of evidence. See Charles G. Williams
Construction, Inc. v. White, 326 F.3d 1376, 1380 (Fed. Cir.
2003) (citation omitted); cf. Novartis AG v. Torrent Phar-
maceuticals Ltd., 853 F.3d 1316, 1328 (Fed. Cir. 2017) (ci-
tations omitted). In explaining why it found that Pirelli
had not shown “its autonomy from government control over
the selection of management,” Commerce recited at least
the following: (1) Pirelli Italy “is the indirect majority
shareholder of Pirelli China” and “selects most of [Pirelli
China’s] board members”; (2) “Pirelli entities share com-
mon board membership and management,” including Mr.
Ren Jianxin, who is the “Chairman and President of
SASAC-owned China Chem and the Chairman of the
Board of Pirelli [Italy]”; (3) “China Chem is the single larg-
est indirect shareholder in Pirelli [Italy]”; (4) Pirelli’s 2017
Annual Report stated that Pirelli Italy is “indirectly con-
trolled . . . by ChemChina via [China National Tire & Rub-
ber Corporation, Ltd.] and certain of its subsidiaries” and
Commerce, with the relevant Italian-law provisions miss-
ing from the record, was “not convinced that Pirelli [Italy]
must report that it is controlled by Chem China mainly for
accounting purposes pursuant to the Italian Finance
Code”; (5) an SASAC entity “appointed the majority of Pi-
relli [Italy’s] board” and Commerce, lacking the relevant
Italian-law provisions, was “not convinced that those mem-
bers are free from control from China Chem”; and (6) the
record did not support a conclusion that Pirelli Italy’s CEO
“has exclusive authority to select Pirelli [Italy’s] manage-
ment, thereby preventing board members from influencing
the company’s day-to-day operations.” Final Decision
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PIRELLI TYRE CO., LTD. v. US 11
Memo, at 14–17 (citations omitted). In light of the limited
evidence Pirelli properly placed on the record, and Pirelli’s
arguments here, we see no basis for doubt that Commerce
made a reasonable factual determination on the entirety of
the evidence. Amended Opinion, at 1378–80.
III
For the foregoing reasons, we affirm the Trade Court’s
decision.
AFFIRMED
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