US Says CAFC's Recent Pirelli Decision Backs Its Claims on Lack of Tire Exporters' Independence
The U.S. told the U.S. Court of Appeals for the Federal Circuit that a recent CAFC decision, Pirelli Tyre Co. v. U.S., supports the government's position that the U.S. doesn't need to show a link between the "selection of management and the company’s export activities" in finding that a respondent has failed to show a lack of government control. Filing a notice of supplemental authority in a trio of cases, the government said Pirelli also supports its position that "respondents must meet the burden or persuasion to establish independence regardless of any evidentiary presumption" (Guizhou Tyre Co. v. United States, Fed. Cir. #s 23-2163, -2164) (China Manufacturers Alliance v. United States, Fed. Cir. # 23-2391).
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The Federal Circuit issued its decision in Pirelli in February, finding that the Commerce Department's third factor for assessing de facto government control over an exporter, which addresses the selection of management, doesn't require a link to export activities (see 2502110030). The appellate court also said that the respondent still must meet its burden of persuasion under the "substantial evidence" despite the "rebuttable presumption" of state control. The court ultimately found that the evidence failed to establish an independence from state control.
Three appeals at the CAFC currently concern whether a respondent exhibited independence from Chinese state control. One is on the 2012-13 antidumping duty review of off-the-road tires from China, while two concern the 2014-15 review of the AD order on new pneumatic off-the-road tires from China (see 2406210036 and 2402080054).
Invoking Pirelli, the U.S. said the decision "detracts from appellants' position" that the U.S. "misapplied the presumption of state ownership." In both cases, the government said the evidence at issue in Pirelli "is of a similar nature to that supporting Commerce’s decision in this case."