Jiangsu Jiasheng Photovoltaic Technology Co., Ltd. v. United States, 1:13-cv-00012

Background

This consolidated action challenges Commerce’s antidumping investigation of crystalline silicon photovoltaic cells (CSPC) from the People’s Republic of China; Jiasheng and SolarWorld are principal challengers.
Commerce treats the PRC as a non-market economy (NME) and presumes government control, assigning a PRC-wide rate unless an exporter proves eligibility for a separate rate via a timely separate-rate application (SRA) and timely Q&V (quantity & value) questionnaire response filed through IA ACCESS.
Jiasheng missed the IA ACCESS Q&V deadline (filed by email after the deadline and only later filed via IA ACCESS), so Commerce rejected its SRA and applied the PRC-wide rate (based on adverse facts available).
SolarWorld challenged Commerce’s choice of Thai HTS categories to value aluminum frames (Commerce used HTS 7604/7604.21; SolarWorld advocated HTS 7616.99 or alternatives) and also contested Commerce’s grants of separate-rate status to several respondents.
The Court sustained Commerce’s Final Results except it granted Commerce’s unopposed voluntary remand request to reevaluate separate-rate eligibility for four respondents; remand results due Feb 18, 2015 (comments/replies schedule set).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
1. Rejection of Jiasheng’s SRA for untimely Q&V filing	Jiasheng: its SRA (timely filed) contained information Commerce needed; Commerce therefore should not have relied on facts available.	Commerce: requires timely IA ACCESS Q&V filing as prerequisite to SRA to prevent circumvention of respondent-selection; agency discretion to enforce deadlines.	Court: Commerce’s enforcement of its IA ACCESS deadline and rejection of Jiasheng’s SRA was reasonable; use of facts available upheld.
2. Whether §1677m(c)/(d)/(e) required Commerce to accommodate or accept Jiasheng’s late submission	Jiasheng: statutory provisions required consideration or accommodation.	Commerce: Jiasheng did not promptly notify inability to comply nor explain; statutory exceptions not triggered.	Court: statutory provisions inapplicable because Jiasheng failed to timely notify or explain; Commerce satisfied §1677m(d) by notifying rejection and it was impracticable to admit late filing.
3. Valuation of aluminum frames (surrogate HTS selection)	SolarWorld: Commerce should have used Thai HTS 7616.99 (or otherwise followed Customs ruling N139353) as best available information.	Commerce: HTS 7616.99 is a broad "other" category including many dissimilar products; HTS 7604 better matches respondents’ descriptions (alloyed aluminum profiles) and is best available.	Court: Commerce reasonably selected Thai HTS 7604/7604.21 for valuing frames; substantial-evidence standard satisfied.
4. Granting separate-rate status to certain respondents	SolarWorld: Commerce erred in granting separate rates where record showed possible government control (SASAC links, nondisclosure of ultimate owners, company officials holding government or party positions).	Commerce: considered de jure and de facto factors, relied on submitted legal documents, ownership and verification evidence, and concluded companies exercised autonomous export pricing; some respondents will be reconsidered on voluntary remand.	Court: Commerce’s de jure and de facto findings mostly supported by substantial evidence; remand granted only for four respondents as requested by Commerce.

Key Cases Cited

SKF USA, Inc. v. United States, 537 F.3d 1373 (Fed. Cir. 2008) (defines substantial-evidence review standard for Commerce determinations)
Consol. Edison Co. v. NLRB, 305 U.S. 197 (U.S. 1938) (classic articulation of substantial-evidence concept)
Nippon Steel Corp. v. United States, 458 F.3d 1345 (Fed. Cir. 2006) (courts defer to Commerce’s expertise absent unreasonableness)
Sigma Corp. v. United States, 117 F.3d 1401 (Fed. Cir. 1997) (upholding Commerce’s NME state-control presumption)
Yangzhou Bestpak Gifts & Crafts Co. v. United States, 716 F.3d 1370 (Fed. Cir. 2013) (discusses rebuttable presumption and use of adverse facts available)
Consolo v. Federal Maritime Comm’n, 383 U.S. 607 (U.S. 1966) (substantial evidence standard and conflicting-inferences principle)
Burlington Truck Lines v. United States, 371 U.S. 156 (U.S. 1962) (agency decisions must show rational connection between facts and choices)
Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281 (U.S. 1974) (agency action of less-than-ideal clarity may be upheld if path reasonably discerned)
Lasko Metal Prods., Inc. v. United States, 43 F.3d 1442 (Fed. Cir. 1994) (Commerce has broad discretion to determine best available information for factor valuation)
Daewoo Elecs. Co. v. United States, 6 F.3d 1511 (Fed. Cir. 1993) (reasonable inferences from record are proper for Commerce)