2017 Ct. Intl. Trade LEXIS 63
Ct. Intl. Trade2017Background
- Commerce conducted an antidumping (AD) investigation of crystalline silicon photovoltaic products from the PRC covering Apr 1–Sep 30, 2013; Trina Solar and Renesola Jiangsu were mandatory respondents; Jinko Solar was also a mandatory respondent.
- Commerce selected South Africa as the primary surrogate country and used South African data (including Mustek financials and several HTS import categories) to value factors of production for normal value calculations.
- Commerce found that members of the Li family group held significant ownership and managerial positions across Jinko and ReneSola entities, concluded the entities were affiliated, and collapsed them into a single entity for margin calculation.
- Commerce valued aluminum frames using South African HTS subheading 7604.29.65 and valued Trina’s scrap/by-product using South African HTS subheading 8548.10; it accepted verification-stage information from Trina on quality-insurance expenses covering the entire POI.
- Commerce offset respondents’ AD cash-deposit rate by the full amount of an export-subsidy rate calculated (using adverse facts available) in the companion countervailing duty (CVD) investigation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Affiliation (Li family) and collapsing ReneSola with Jinko | Jinko: no record evidence that Li family members act in concert; insufficient managerial/corporate overlap to justify collapse | Gov: Li family held largest ownership stakes and key board/management positions across entities; transactions interlinked; supports common control and collapse | Court: Affiliation through Li family supported by substantial evidence; collapsing not adequately explained—REMANDED for further explanation or reconsideration |
| Use of Mustek (South African) financial statements to value general expenses and profit | SolarWorld: Mustek is not a comparable producer, statements not specific or sufficiently contemporaneous; Thai alternatives better | Gov: Thai firms’ statements evidence countervailable subsidies; Mustek is the best available, sufficiently comparable (assembly activity) and contemporaneous | Court: Commerce reasonably selected Mustek; decision SUSTAINED |
| Surrogate value for aluminum frames: HTS 7604 vs 7616 | SolarWorld: frames are finished and non-uniform cross-section; 7616 (residual category) is correct per CBP rulings | Gov: 7604 (profiles) is a closer fit; 7616 is a catch-all with many dissimilar products; Commerce not bound by CBP classifications for surrogate selection | Court: Commerce’s choice of 7604.29.65 is supported by substantial evidence; SUSTAINED |
| Surrogate value for scrap/by-product (Trina) — HTS 8548.10 vs 2804.69 | SolarWorld: scrap value driven by polysilicon; HTS 2804.69 (silicon scrap) is the appropriate category; 8548 concerns batteries and is unrelated | Gov: 8548.10 is more similar to scrap solar cells; 2804.69 may undervalue multi-component cells | Court: Commerce failed to adequately address SolarWorld’s contrary evidence and reasoning; selection of 8548.10 REMANDED for explanation or reconsideration |
| Trina’s quality-insurance indirect selling expense — acceptance of verification evidence | SolarWorld: Commerce should have applied "facts available" for first four months (company withheld timely info); verification docs unreliable | Gov: Verified corrections at verification clarified and corrected record; Commerce properly accepted minor corrections | Court: Commerce reasonably accepted and used the verified insurance information for the full POI; SUSTAINED |
| Offsetting AD cash-deposit rate by export subsidy calculated via AFA in companion CVD | SolarWorld: Offsetting the full AFA-based export subsidy neutralizes the adverse inference and understates combined deterrence | Gov: Offset avoids double-counting the same subsidy in both AD and CVD cash deposits; AFA-based subsidy is a reasonable estimate and may be offset | Court: Commerce’s practice of offsetting by the full AFA-calculated export subsidy is reasonable and within agency discretion; SUSTAINED |
Key Cases Cited
- QVD Food Co. v. United States, 658 F.3d 1318 (Fed. Cir.) (Commerce has discretion to choose best available surrogate data)
- Nation Ford Chem. Co. v. United States, 166 F.3d 1373 (Fed. Cir.) (agency discretion in surrogate selection)
- Fujitsu Gen. Ltd. v. United States, 88 F.3d 1034 (Fed. Cir.) (deference to Commerce on complex economic/accounting decisions)
- De Cecco Di Filippo Fara S. Martino S.p.A. v. United States, 216 F.3d 1027 (Fed. Cir.) (AFA rate must be reasonably accurate estimate)
- Gallant Ocean (Thailand) Co. v. United States, 602 F.3d 1319 (Fed. Cir.) (AFA deterrent/accuracy balance)
- United States v. Eurodif S.A., 555 U.S. 305 (2009) (agency discretion where statute silent)
- Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (agency must provide reasoned explanation)
- Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951) (substantial evidence review considers record detracting evidence)
- Am. Tubular Prods., LLC v. United States, 847 F.3d 1354 (Fed. Cir.) (scrap/by-product offsets in normal value)