378 F. Supp. 3d 1292
Ct. Intl. Trade2019Background
- Third administrative review (Dec 1, 2014–Nov 30, 2015) of the antidumping duty order on crystalline silicon photovoltaic products from the PRC; Commerce selected Canadian Solar and a collapsed Trina entity as mandatory respondents.
- Commerce selected Thailand as the primary surrogate country and adopted surrogate values for inputs including module glass, aluminum frames, nitrogen, and polysilicon; it also adopted surrogate financial ratios.
- Commerce applied partial AFA to Canadian Solar for missing supplier FOP data, included GTA import lines reporting zero quantities in surrogate-value averages, and excluded Trina U.S.’s reported debt-restructuring gain from its U.S. indirect selling expense offset.
- Qixin filed a separate-rate application and timely responded to supplemental questionnaires but Commerce omitted discussion of Qixin in the Preliminary Results and later denied the separate-rate application in the Final Results.
- Multiple parties challenged Commerce’s determinations at the Court of International Trade; the court sustained several surrogate-value selections and other determinations but remanded module glass valuation, Commerce’s use of an adverse inference in Canadian Solar’s rate, and rejection of Qixin’s separate-rate application.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Surrogate value for module glass (Thai HTS tempered glass) | Trina/SolarWorld/Canadian Solar: Thai tempered-glass data are aberrational or not the best match (thickness, coatings, Hong Kong outliers) | Commerce: tempered-glass HTS is product-specific, contemporaneous and not aberrational in the aggregate | Court: choice of tempered glass as HTS heading reasonable, but remanded because Thai data were likely distorted by high-value Hong Kong imports and Commerce failed to adequately explain not disaggregating those outliers |
| Surrogate value for aluminum frames (Thai HTS 7604.29.90001) | SolarWorld: HTS selection misclassifies processed frames, ignores CBP rulings and extra fabrication | Commerce: HTS 7604 is the most specific surrogate heading on record; CBP rulings not controlling | Court: Commerce’s selection supported by substantial evidence; sustained |
| Surrogate value for nitrogen (Thai HTS 2804.30.00) | Canadian Solar/Trina: Thai data are aberrational/distorted by a few high-value country entries; exclude US/Swiss lines | Commerce: Thai AUV within range of comparable countries and prior years; declines to disaggregate to avoid cherry‑picking | Court: Commerce's determination not aberrational was reasonable on this record; sustained |
| Surrogate value for semi‑finished polysilicon ingots/blocks (world raw polysilicon price) | SolarWorld: raw price omits substantial processing/value‑added; Commerce should construct cost of ingot production | Commerce: no record polysilicon-ingot price; raw polysilicon is the best available proxy | Court: Commerce reasonably used world raw polysilicon price as best available; sustained |
| Surrogate financial ratios (Styromatic 2015) | SolarWorld: Ekarat (identical producer) is better | Commerce: Ekarat’s revenues are primarily from non‑comparable transformers and its solar subsidiary unprofitable; Styromatic is contemporaneous and comparable | Court: Commerce reasonably chose Styromatic; sustained |
| Partial AFA applied to Canadian Solar for suppliers’ missing FOPs | Canadian Solar: it cooperated; Commerce improperly applied an adverse inference against a cooperating respondent | Commerce: Canadian Solar could have induced suppliers to cooperate; reliance on Mueller | Held: Commerce’s use of an adverse inference under 19 U.S.C. §1677e(b) against a cooperative respondent was contrary to law; remanded for reconsideration (Commerce may consider inducement/evasion under §1677e(a) but must support any such finding with substantial evidence) |
| Inclusion of GTA import lines reporting zero quantity in surrogate averages | Trina: zeros are errors or distortive and should be excluded | Commerce: no record basis to conclude zeros are errors; they may reflect rounding; prefer full dataset | Court: Commerce’s inclusion of zero‑quantity lines was reasonable and supported by substantial evidence; sustained |
| Debt‑restructuring gain offset to Trina U.S. indirect selling expenses | Trina: gain should offset indirect selling expenses; Commerce failed to raise concerns earlier | Commerce: insufficient record detail to attribute gain to POR; Commerce’s practice requires POR attribution | Court: Commerce reasonably declined the offset for lack of evidence tying gain to POR; sustained |
| Rejection of Qixin’s separate‑rate application after omission from Preliminary Results | Qixin: Commerce’s failure to mention Qixin denied notice and opportunity to address rejection | Commerce/Defendant: omission inadvertent; asks remand | Court: Commerce deprived Qixin of adequate process; remanded for reconsideration |
Key Cases Cited
- QVD Food Co. v. United States, 658 F.3d 1318 (Fed. Cir.) (Commerce has discretion to determine "best available information")
- Rhone Poulenc, Inc. v. United States, 899 F.2d 1185 (Fed. Cir.) (statute's objective is accurate dumping margins)
- Parkdale Int'l v. United States, 475 F.3d 1375 (Fed. Cir.) (surrogate‑value selection considerations)
- Mueller Comercial de Mexico S. De R.L. de C.V. v. United States, 753 F.3d 1227 (Fed. Cir.) (inducement/evasion rationales and §1677e(a) use)
- Universal Camera Corp. v. NLRB, 340 U.S. 474 (U.S.) (agency must address evidence that fairly detracts from its findings)
- Consolo v. Federal Maritime Commission, 383 U.S. 607 (U.S.) (substantial‑evidence standard tolerates competing reasonable inferences)
- Gallant Ocean (Thailand) Co. v. United States, 602 F.3d 1319 (Fed. Cir.) (AFA jurisprudence context)
- F.lli De Cecco Di Filippo Fara S. Martino S.p.A. v. United States, 216 F.3d 1027 (Fed. Cir.) (AFA should be a reasonably accurate estimate with deterrent effect)
- Changzhou Wujin Fine Chemical Factory Co. v. United States, 701 F.3d 1367 (Fed. Cir.) (limits on deterrence rationale when respondent cooperates)
- SolarWorld Americas, Inc. v. United States, 320 F.Supp.3d 1341 (CIT) (prior remand concerning Thai tempered glass data)