SolarWorld Americas, Inc. v. United States
182 F. Supp. 3d 1372
| Ct. Intl. Trade | 2016Background
- Commerce conducted the first administrative review (POR Mar 26–Dec 31, 2012) of the CVD order on crystalline silicon photovoltaic cells from China; SolarWorld challenged Commerce’s final results.
- During the original investigation Commerce found the China Ex-Im Bank Export Buyer’s Credit Program countervailable and applied AFA at 10.54%.
- In this administrative review Commerce applied AFA to the Export Buyer’s Credit Program because GOC responses could not be verified, but chose a lower AFA rate of 5.46% drawn from a similar program (Preferential Policy Lending to the Renewable Energy Industry) in the same review.
- SolarWorld challenged the 5.46% AFA selection as unsupported and inconsistent with Commerce’s prior methodology and investigation results.
- Commerce explained it uses a hierarchical methodology in administrative reviews that (after identical-program matches) prefers the highest non-de minimis rate for a similar program from the same proceeding before looking to identical programs in other proceedings.
- The court found Commerce failed to explain why its AFA-selection hierarchy in administrative reviews departs from the hierarchy it applies in investigations and remanded for explanation or reconsideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Commerce reasonably selected a 5.46% AFA rate for the Ex‑Im Bank Export Buyer’s Credit Program | SolarWorld: selection is unreasonable and inconsistent with the 10.54% AFA used in the original investigation; Commerce should have used the investigation hierarchy | U.S.: Commerce reasonably followed its established administrative‑review hierarchy that prefers similar‑program rates from the same proceeding | Remanded: Commerce must explain or reconsider why its administrative‑review AFA hierarchy differs from its investigation hierarchy |
| Whether Commerce adequately justified treating similar programs in‑proceeding as superior to identical programs in other proceedings | SolarWorld: Commerce’s preference is arbitrary and not justified given investigations favor identical programs from other proceedings | U.S.: preference reflects a focus in reviews on industry‑level subsidization experience and stronger relation to respondents’ prior commercial activity | Remanded: agency must provide a reasoned explanation linking distinctions between reviews and investigations to the differing hierarchies |
| Whether Commerce acted arbitrarily by applying a lower AFA in the review than in the investigation | SolarWorld: inconsistent outcomes undermine reasoned decisionmaking | U.S.: different procedural context and available record information justify different approaches | Remanded: Commerce did not sufficiently explain the disparate treatment; must clarify or revisit methodology |
| Whether post‑hoc rationalizations from the government suffice | SolarWorld: post‑hoc explanations insufficient | U.S.: cites prior cases and practice; offers post‑hoc rationale on remand request | Court: post‑hoc rationalizations are inadequate; requires explanation in agency decision on remand |
Key Cases Cited
- F.lli De Cecco di Filippo Fara S. Martino S.p.A. v. United States, 216 F.3d 1027 (Fed. Cir. 2000) (AFA must balance deterrence and accuracy; corroboration limits overreaching)
- SKF USA Inc. v. United States, 263 F.3d 1369 (Fed. Cir. 2001) (agency action is arbitrary when it treats similar situations differently without adequate explanation)
- Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29 (U.S. 1983) (agency must provide reasoned explanation for policy changes)
- Ad Hoc Shrimp Trade Action Comm. v. United States, 802 F.3d 1339 (Fed. Cir. 2015) (TPEA amendments apply prospectively to Commerce determinations after enactment)
- Essar Steel Ltd. v. United States, 753 F.3d 1368 (Fed. Cir. 2014) (upholding Commerce AFA practices in certain contexts)