Solarworld Americas, Inc. v. United States
2017 Ct. Intl. Trade LEXIS 83
Ct. Intl. Trade2017Background
- This case challenges Commerce’s final results of the first administrative review (2012–2013) of the antidumping order on crystalline silicon photovoltaic cells from the PRC. Plaintiffs SolarWorld and Goal Zero seek review under 19 U.S.C. § 1516a.
- Commerce: (1) applied a China-wide AFA rate (final effective rate 238.95% after subsidy offset; underlying petition rate used was 249.96%), (2) treated ERA Solar as part of the China-wide entity for failing to submit a separate-rate application, and (3) used certain surrogate values and financial-statement adjustments to calculate normal value for NME valuation.
- Goal Zero primarily challenged Commerce’s use of the NME presumption, the placement of ERA Solar in the China-wide entity, and the corroboration of the AFA China-wide rate.
- SolarWorld challenged Commerce’s surrogate-value choices for aluminum frames and semi-finished polysilicon ingots/blocks, inclusion of an "other income" line in the surrogate profit calculation, treatment of certain Suntech U.S. sales as CEP, the chosen date of sale for those CEP sales, and the use of FOP data from Suntech and some tollers.
- The court sustained Commerce on all major issues except it remanded Commerce’s decision to use date of shipment rather than date of contract for Suntech’s CEP sales for further explanation or reconsideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Application of NME presumption to ERA Solar (separate-rate burden) | Goal Zero: presumption outdated and inconsistent with CVD findings; Commerce must not presume state control | Commerce: presumption lawful, longstanding practice; respondent must prove separate-rate status each segment | Court: Sustained Commerce — presumption permissible; parties must establish separate-rate status in each segment; record support adequate |
| Assignment of China-wide AFA rate to ERA Solar / application of AFA to China-wide entity | Goal Zero: imputing non-cooperation to ERA Solar and China-wide entity unsupported; many members cooperated | Commerce: some PRC exporters failed to provide required Q&V data; statutory facts-available and AFA standards met | Court: Sustained Commerce — application of AFA to China-wide entity supported by substantial evidence |
| Selection and corroboration of AFA/China-wide rate (use of petition rate) | Goal Zero: 249.96% uncorroborated, disproportionate to cooperating respondents, methodology differs | Commerce: selected corroborated petition/high historic rate; compared margins from investigation and Suntech margins in this review; corroboration to extent practicable | Court: Sustained Commerce — corroboration adequate under 19 U.S.C. § 1677e(c) and regulations |
| Surrogate value for aluminum frames (Thai HTS 7604) | SolarWorld: chosen HTS covers unfinished profiles; frames are finished/processed and better fit other headings | Commerce: HTS 7604 most specific to Yingli’s non‑hollow aluminum profiles; processing did not alter heading character | Court: Sustained Commerce — HTS 7604 selection supported by substantial evidence |
| Surrogate value for semi-finished polysilicon ingots/blocks (use of world polysilicon price) | SolarWorld: world polysilicon price fails to capture additional processing into ingots/blocks and may be aberrational | Commerce: no direct SV for ingots/blocks on record; polysilicon feedstock best available; additional processing largely self-produced and accounted for elsewhere | Court: Sustained Commerce — selection reasonable and supported by record |
| Inclusion of PT Len’s "other income" in surrogate financial profit calculation | SolarWorld: no record support that "other income" represents general-operating income and thus should not offset SG&A | Commerce: "other income" items (FX, interest) typically offset SG&A; PT Len treated it as part of operating results | Court: Sustained Commerce — inclusion supported by record and practice |
| Classification of Suntech’s U.S. sales to affiliate as CEP; date of sale for those CEP sales | SolarWorld: sales reflect turnkey contracts where module price not separately fixed; date of contract, not shipment, should govern | Commerce: CEP appropriate because affiliate sold to unaffiliated buyer at verified identical price; date of shipment appropriate because contracts subject to change per record and industry practice | Court: CEP classification sustained; date-of-sale determination remanded — Commerce must explain/support use of shipment date or reconsider |
| Use of FOP data from Suntech and certain tollers as facts available (no AFA) | SolarWorld: using Suntech’s/toller data risks inaccuracy/manipulation; unaffiliated tollers likely have different costs | Commerce: Suntech timely identified tollers, documented efforts to collect data; responding tollers and Suntech data covered large POR share; applied facts available without adverse inference | Court: Sustained Commerce — substitution of reporting FOPs and use of facts available justified and supported by evidence |
Key Cases Cited
- Corus Staal BV v. United States, 502 F.3d 1370 (Fed. Cir.) (agency expertise and exhaustion principles discussed)
- Nippon Steel Corp. v. United States, 337 F.3d 1373 (Fed. Cir.) (standards for AFA and "best of its ability" analysis)
- Gallant Ocean (Thailand) Co. v. United States, 602 F.3d 1319 (Fed. Cir.) (review of disproportional AFA rates applied to cooperating respondents)
- Papierfabrik August Koehler SE v. United States, 843 F.3d 1373 (Fed. Cir.) (corroboration of AFA for individually examined respondents)
- Ad Hoc Shrimp Trade Action Comm. v. United States, 802 F.3d 1339 (Fed. Cir.) (corroboration of petition rates and probative value analysis)
- Calgon Carbon Corp. v. United States, 145 F. Supp. 3d 1312 (Ct. Int’l Trade) (separate-rate procedural considerations)