CS Wind Vietnam Co. v. United States
2014 CIT 33
| Ct. Intl. Trade | 2014Background
- Commerce investigated antidumping on utility-scale wind towers from Vietnam; CS Wind (plaintiff) challenged Commerce’s Final Determination (51.50% margin) on several surrogate-value and adjustment decisions.
- Vietnam treated as a non-market economy (NME); Commerce must value factors of production (FOPs) using best available information from comparable market-economy surrogate countries (here, India).
- Primary disputes: surrogate valuation of steel plate (critical input), valuation of CO2, surrogate financial-ratio offsets (Ganges financial statement line items), treatment of market-economy input purchases (Korean suppliers), weight discrepancy between reported FOP weights and packing-list “Packed Weight,” and brokerage & handling (B&H) document-preparation fees.
- Commerce used GTA (Global Trade Atlas) Indian import data (HTS 7208.51.10) for steel plate and GTA for CO2; it adjusted normal value upward to correct a weight shortfall and adjusted U.S. price to offset free internal components; it excluded certain Korean market-economy purchase prices on suspicion of export subsidies; it converted World Bank Doing Business document costs to $/kg based on a 20-ft container.
- CS Wind argued many alternative price sources (Steel India, JPC, MEPS, Metal Expert, Infodrive, etc.) were improperly dismissed, that Commerce misapplied its financial-statement offsets, miscalculated the U.S. price weight adjustment, and unreasonably allocated B&H document costs. The court remanded several issues and sustained others.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Surrogate valuation of steel plate (use of GTA import data vs. other sources) | GTA is not product-specific (96% non-S355); Commerce should have used Steel India or at least considered other submitted data for corroboration | GTA satisfied Commerce’s surrogate criteria (contemporaneity, India as surrogate, public, net of duties); other datasets flawed | Remanded: Commerce unreasonably rejected many alternative datasets and must reconsider steel surrogate or better justify GTA choice |
| Valuation of CO2 (GTA imports vs. SICGIL financials) | SICGIL financials reflect a large Indian CO2 producer and should be considered despite being slightly non-contemporaneous | GTA met surrogate criteria; SICGIL not shown to be broad-market average and not contemporaneous | Remanded: Commerce must re-weigh evidence on SICGIL’s market significance and contemporaneity before choosing surrogate |
| Treatment of certain income offsets in surrogate financial ratios (Ganges: jobwork vs. erection/civil income) | Income lines labeled "Erection" and "Civil" are clearly related to jobwork charges and should offset overhead consistently | Commerce treats only miscellaneous income as offsets when appropriate and declined to include erection/civil income without looking behind the statements | Remanded: Commerce’s exclusion unsupported by substantial evidence given the financial statement language; must reconsider or explain |
| Weight discrepancy adjustment and U.S. price offset for free internal components | Commerce’s normal-value upward adjustment for underreported internal components was OK, but the U.S. price offset used a combined average SV and therefore undercompensated CS Wind | Commerce treated adjustment as quantity-based and relied on inability to distinguish purchased vs. free component shares | Partially sustained/remanded: Weight adjustment to NV upheld; U.S. price adjustment remanded because Commerce’s math did not offset the free-component value correctly |
| Market-economy input purchases (Korean suppliers) — suspicion of subsidy | Actual Korean purchase prices should be used; Commerce lacked specific objective evidence that suppliers received subsidies | Commerce had reason to believe/suspect widely available Korean export subsidies existed (citing contemporaneous CVD findings), justifying surrogate values | Sustained: Court finds Commerce met the Fuyao-Glass–style standard here (existence, eligibility, and likely use) and reasonably excluded ME prices |
| Brokerage & handling (document-prep) conversion to $/kg | Commerce improperly converted a $/shipment Doing Business fee (based on a filled 20-ft container) to $/kg using container weight, producing unrealistically high per-kg costs for CS Wind’s shipment form | Commerce followed prior practice and lacked a better conversion basis on the record | Remanded: Method of converting $415 fee to $/kg by using weight of a filled 20-ft container is unreasonable; Commerce must recalculate or explain (allocate fee over actual shipment weight appears reasonable) |
Key Cases Cited
- Rhone Poulenc, 899 F.2d 1185 (Fed. Cir. 1990) (antidumping statute aims to determine current margins as accurately as possible)
- Lasko Metal Prods. v. United States, 43 F.3d 1442 (Fed. Cir. 1994) (Commerce’s duty to determine margins accurately using best information)
- QVD Food Co. v. United States, 658 F.3d 1318 (Fed. Cir. 2011) (deference to Commerce on “best available information”)
- Consolidated Edison Co. v. NLRB, 305 U.S. 197 (Supreme Court 1938) (substantial evidence standard described)
- Nucor Corp. v. United States, 601 F.3d 1291 (Fed. Cir. 2010) (agency must consider whole record, including evidence that detracts from its conclusion)