Jiangsu Jiasheng Photovoltaic Tech., Co. v. United States , 28 F. Supp. 3d 1317 ( 2014 )

Slip Op. 14 - 134
UNITED STATES COURT OF INTERNATIONAL TRADE
JIANGSU JIASHENG PHOTOVOLTAIC
TECHNOLOGY CO., LTD.,
Plaintiff, Before: Donald C. Pogue,
Senior Judge
v.
Consol. Court No. 13-000121
UNITED STATES,
Defendant.
OPINION and ORDER
[affirming in part and remanding in part the Department of
Commerce’s final results of antidumping investigation]
Dated: November 20, 2014
Francis J. Sailer, Mark E. Pardo, Andrew T. Schutz,
and Brandon M. Petelin, Grunfeld, Desiderio, Lebowitz, Silverman
& Klestadt LLP, of Washington, DC, for Plaintiff and Defendant-
Intervenor Jiangsu Jiasheng Photovoltaic Technology, Co., Ltd.
and Defendant-Intervenor Hanwha Solarone (Qidong) Co., Ltd.
Timothy C. Brightbill, Tessa V. Capeloto, and Laura
El-Sabaawi, Wiley Rein LLP, of Washington, DC, for Plaintiff and
Defendant-Intervenor SolarWorld Industries America, Inc.
L. Misha Preheim, Senior Trial Counsel, and Melissa M.
Devine, Trial Attorney, Commercial Litigation Branch, Civil
Division, U.S. Department of Justice, of Washington, DC, for the
Defendant. Also on the brief were Stuart F. Delery, Assistant
Attorney General, Jeanne E. Davidson, Director, and Reginald T.
Blades, Jr., Assistant Director. Of counsel was Rebecca Cantu,
Attorney, Office of the Chief Counsel for Trade Enforcement &
Compliance, U.S. Department of Commerce.
1
This action is consolidated with SolarWorld Indus. Am., Inc. v.
United States, Ct. No. 13-00006. Order June 12, 2013,
ECF No. 18.
Consol. Ct. No. 13-00012 Page 2
John M. Gurley, Diana Dimitriuc Quaia, and Tina
Termei, Arent Fox LLP, of Washington, DC, for Defendant-
Intervenors Changzhou Trina Solar Energy Co., Ltd., Trina Solar
(U.S.), Inc., Wuxi Suntech Power Co., Ltd., Suntech America,
Inc., Suntech Arizona, Inc., JA Solar Technology Yahngzhou Co.,
Ltd., Shanghai JA Solar Technology Co., Ltd., and JingAo Solar
Co., Ltd.
Neil R. Ellis, Richard L.A. Weiner, Brenda A. Jacobs,
Rajib Pal, and Raphaelle E. Monty, Sidley Austin LLP, of
Washington, DC, for Defendant-Intervenors Yingli Green Energy
Americas, Inc. and Yingli Green Energy Holding Co., Ltd.
Gregory S. Menegaz, J. Kevin Horgan, and John J.
Kenkel, deKieffer & Horgan PLLC, of Washington, DC, for
Defendant-Intervnors Ningbo Komaes Solar Technology Co., Ltd.,
Ningbo Etdz Holdings Ltd., Ningbo Qixin Solar Electrical
Appliance Co., Ltd., LDK Solar Hi-Tech (Nanchang) Co., Ltd., and
LDK Solar Hi-Tech (Suzhou) Co., Ltd.
Pogue, Senior Judge: This consolidated action arises
from the United States Department of Commerce’s (“Commerce”)
antidumping investigation of crystalline silicon photovoltaic
cells (“CSPC”) from the People’s Republic of China (“PRC” or
“China”).2 Plaintiff Jiangsu Jiasheng Photovoltaic Technology
2
See [CSPC], Whether or Not Assembled into Modules, from the
[PRC], 77 Fed. Reg. 63,791 (Dep’t Commerce Oct. 17, 2012) (final
determination of sales at less than fair value, and affirmative
final determination of critical circumstances, in part) (“Final
Results”) and accompanying Issues & Decision Mem., A-570-979,
Antidumping Duty (“AD”) Investigation (Oct. 9, 2012)
(“I&D Mem.”). The subject merchandise includes solar cells used
to make solar energy panels and modules. See [CSPC], Whether or
Not Assembled into Modules, from the [PRC], 76 Fed. Reg. 70,960,
70,965 (Dep’t Commerce Nov. 16, 2011) (initiation of antidumping
duty investigation) (“Notice of Initiation”) (Appendix I: Scope
of the Investigation) (providing a full description of the
merchandise covered by this investigation); id. at 70,960
(noting that the period of investigation (“POI”) was April 1,
(footnote continued . . .)
Consol. Ct. No. 13-00012 Page 3
Company, Limited (“Jiasheng”) challenges Commerce’s
determination, in its investigation, to reject Jiasheng’s
application for “separate-rate status.”3 In addition, Plaintiff
SolarWorld Industries America, Incorporated (“SolarWorld”)
challenges 1) Commerce’s decision, in constructing a home market
or “normal value”,4 to calculate the cost of aluminum frames (a
component used to make the subject merchandise) based on goods
classified under Thai Harmonized Tariff Schedule (“HTS”) Heading
7604, rather than Thai HTS Heading 7616; and 2) Commerce’s
determination to grant separate-rate status to certain
respondents.5
The court has jurisdiction pursuant to
Section 516A(a)(2)(B)(i) of the Tariff Act of 1930, as amended,
19 U.S.C. § 1516a(a)(2)(B)(i) (2012),6 and 28 U.S.C.
§ 1581(c) (2012).
2011, through September 30, 2011).
3
Mem. of L. in Supp. of Pl.’s Rule 56.2 Mot. for J. on the
Agency R., ECF No. 41 (“Jiasheng’s Br.”). See infra Discussion
Section I.A of this opinion (explaining “separate-rate status”).
4
See infra note 65 (explaining the process for constructing
“normal” comparison prices in investigations of merchandise from
the PRC).
5
See Pet’r-Pl.’s Rule 56.2 Mot. for J. on the Agency R.,
ECF Nos. 43 (conf. version) & 44 (pub. version) (“SolarWorld’s
Br.”).
6
Further citations to the Tariff Act of 1930, as amended, are to
the relevant provisions of Title 19 of the U.S. Code,
(footnote continued . . .)
Consol. Ct. No. 13-00012 Page 4
For the reasons presented below, Commerce’s Final
Results are sustained against the challenges presented here,7
except with regard to separate rate issues for which Commerce
has requested a voluntary remand.8 Commerce’s request for remand
is granted. Following a statement of the standard of review,
each challenge to the Final Results presented in this action is
addressed in turn.
STANDARD OF REVIEW
The court will sustain Commerce’s antidumping
determinations if they are supported by substantial evidence and
otherwise in accordance with law. See 19 U.S.C.
§ 1516a(b)(1)(B)(i). Substantial evidence refers to “such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion,” SKF USA, Inc. v. United States,
537 F.3d 1373, 1378 (Fed. Cir. 2008) (quoting Consol. Edison Co.
v. NLRB, 305 U.S. 197, 229 (1938), and the substantial evidence
standard of review can be roughly translated to mean “is the
determination unreasonable?” Nippon Steel Corp. v. United
2012 edition.
7
These Final Results are also subject to challenges presented in
two additional actions before this Court, SolarWorld Indus. Am.,
Inc. v. United States, Ct. No. 13-00219, and Changzou Trina
Solar Energy Co. v. United States, Consol. Ct. No. 13-00009.
See Severance & Consolidation Order June 12, 2013, ECF No. 18.
8
Def.’s Mot. for Voluntary Remand, ECF No. 81 (“Def.’s Mot.”).
Consol. Ct. No. 13-00012 Page 5
States, 458 F.3d 1345, 1351 (Fed. Cir. 2006) (quotation and
alteration marks and citation omitted). In this context,
substantial evidence is “something less than the weight of the
evidence, and the possibility of drawing two inconsistent
conclusions from the evidence does not prevent an administrative
agency’s finding from being supported by substantial evidence.”
Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966) (citations
omitted).9
“It is not for [the courts] to reweigh the evidence
before the [agency],” Henry v. Dep’t of the Navy, 902 F.2d 949,
951 (Fed. Cir. 1990), but there must be a rational connection
between the facts found based on the record evidence and the
choices made in the agency’s determination. See Burlington Truck
Lines, Inc. v. United States, 371 U.S. 156, 168 (1962).
Although the reviewing court “may not supply a reasoned basis
for the agency’s action that the agency itself has not given,
[the court] will uphold a decision of less than ideal clarity if
the agency’s path may reasonably be discerned.” Bowman Transp.,
Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974)
9
See also, e.g., Technoimportexport, UCF Am. Inc. v. United
States, 16 CIT 13, 18, 783 F. Supp. 1401, 1406 (1992) (“When
Commerce is faced with the decision to choose between two
reasonable alternatives and one alternative is favored over the
other in their eyes, then they have the discretion to choose
accordingly.”).
Consol. Ct. No. 13-00012 Page 6
(citations omitted).
In addition, where the agency is vested with
discretion to set the procedures by which it administers its
governing statute,10 the court reviews such decisions for abuse
of discretion. See, e.g., Dongtai Peak Honey Indus. Co. v.
United States, __ CIT __, 971 F. Supp. 2d 1234, 1239 (2014).
“An abuse of discretion occurs where the decision is based on an
erroneous interpretation of the law, on factual findings that
are not supported by substantial evidence, or represent an
unreasonable judgment in weighing relevant factors.” Id.
(quoting WelCom Prods., Inc. v. United States, 36 CIT __, 865 F.
Supp. 2d 1340, 1344 (2012) (citing Star Fruits S.N.C. v. United
States, 393 F.3d 1277, 1281 (Fed. Cir. 2005))). In abuse of
discretion review, “an agency action is arbitrary when the
agency offers insufficient reasons for treating similar
situations differently.” See SKF USA Inc. v. United States, 263
F.3d 1369, 1382 (Fed. Cir. 2001).
DISCUSSION
I. Commerce’s Rejection of Jiasheng’s Application for
Separate-Rate Status
10
See, e.g., Yantai Timken Co. v. United States, 31 CIT 1741,
1755, 521 F. Supp. 2d 1356, 1370 (2007) (“Commerce has broad
discretion to establish its own rules governing administrative
procedures, including the establishment and enforcement of time
limits.”) (quotation marks and citation omitted).
Consol. Ct. No. 13-00012 Page 7
A. Background
Because Commerce considers the PRC to be a non-market
economy (“NME”),11 when investigating merchandise from China, the
agency presumes that the export operations of all Chinese
producers and exporters are controlled by the PRC government,
unless respondents show otherwise.12 As a result, Commerce’s
practice is to assign to all exporters from the PRC a single
“countrywide” antidumping duty rate unless they affirmatively
demonstrate eligibility for a “separate rate.”13 Applying this
11
See Notice of Initiation, 76 Fed. Reg. at 70,962 (“The
presumption of NME status for the PRC has not been revoked by
[Commerce] and, therefore, in accordance with [19 U.S.C.
1677(18)(C)(i)], remains in effect for purposes of the
initiation of this investigation.”).
12
See Yangzhou Bestpak Gifts & Crafts Co. v. United States,
716 F.3d 1370, 1373 (Fed. Cir. 2013) (“[In] [p]roceedings
involving a nonmarket economy, such as China, . . . Commerce
begins with a rebuttable presumption that all respondents in the
investigation are under foreign government control and thus
should receive a single countrywide dumping rate.”) (citation
omitted); [CSPC], Whether or Not Assembled into Modules, from
the [PRC], 77 Fed. Reg. 31,309, 31,315 (Dep’t Commerce May 25,
2012) (preliminary determination of sales at less than fair
value, postponement of final determination and affirmative
preliminary determination of critical circumstances) (“Prelim.
Results”) (“In proceedings involving NME countries, [Commerce]
has a rebuttable presumption that all companies within the
country are subject to government control and thus should be
assessed a single AD rate.”) (citation omitted).
13
See Transcom, Inc. v. United States, 294 F.3d 1371, 1373
(Fed. Cir. 2002) (“Commerce determined that NME exporters would
be subject to a single, countrywide antidumping duty rate unless
they could demonstrate legal, financial, and economic
independence from the Chinese government (referred to by
(footnote continued . . .)
Consol. Ct. No. 13-00012 Page 8
practice, in announcing the initiation of this investigation,
Commerce reminded respondents that to obtain “separate-rate
status,” exporters and producers must submit a separate-rate
application (“SRA”), and that a timely response to Commerce’s
questionnaire regarding the quantity and value of exported
merchandise (“Q&V questionnaire”) is a pre-requisite to
separate-rate eligibility.14
Commerce sent Q&V questionnaires to 75 PRC-based
producers and exporters.15 The United Parcel Service (“UPS”)
confirmed delivery of the Q&V questionnaire to Respondent-
Plaintiff Jiasheng on November 12, 2011, seventeen days prior to
Commerce as ‘the NME entity’). . . . Under [this] NME
presumption, a company that fails to demonstrate independence
from the NME entity is subject to the countrywide rate, while a
company that demonstrates its independence is entitled to an
individual rate as in a market economy.”) (relying on Sigma
Corp. v. United States, 117 F.3d 1401, 1405 (Fed. Cir. 1997)
(“[I]t was within Commerce’s authority to employ a presumption
of state control for exporters in a nonmarket economy.”))
(additional citations omitted).
14
Initiation Notice, 76 Fed. Reg. at 70,964 (citing Import
Admin., U.S. Dep’t Commerce, Separate-Rates Practice &
Application of Combination Rates in Antidumping Investigations
Involving Non-Market Economy Countries, Policy Bulletin No. 05.1
(Apr. 5, 2005) (“Commerce Policy 5.1”), available at
http://enforcement.trade.gov/policy/bull05-1.pdf
(last visited Oct. 22, 2014)); Commerce Policy 5.1 at 4 (“Firms
to whom [Commerce] sends a Quantity and Value (‘Q&V’)
questionnaire, which is used in certain investigations to select
mandatory respondents, must respond to the Q&V questionnaire to
receive consideration for a separate rate.”).
15
Notice of Initiation, 76 Fed. Reg. at 70,964.
Consol. Ct. No. 13-00012 Page 9
the stated response deadline.16 This correspondence apprised
Jiasheng of Commerce’s investigation and requested information
on the quantity and U.S. dollar value of Jiasheng’s sales of
subject merchandise to the United States during the POI.17 The
cover letter sent with the questionnaire informed Jiasheng that
its response was due no later than November 29, 2011,18 and the
questionnaire warned that failure to timely respond would
forfeit Jiasheng’s opportunity to be considered for separate-
rate status in this investigation.19
In addition, the cover letter notified Jiasheng that
instructions for responding to the Q&V questionnaire were
16
See Mem. re Issuance of Quantity and Value Questionnaires,
[CSPC], Whether or Not Assembled into [Modules,] from the [PRC],
A-570-979, AD Investigation (Dec. 8, 2011), reproduced in Pub.
App. of Docs. in Supp. of Def.’s Opp’n to Pls.’ Mots. for J. on
the Agency R. (“Def.’s App.”), ECF No. 56-1 at P.D. 225 (listing
UPS tracking number 1ZA610W90498461594 for the Q&V questionnaire
sent to Jiasheng, and listing that tracking number as delivered
and signed for on November 12, 2011, at 4:10pm); Notice of
Initiation, 76 Fed. Reg. at 70,964 (“A response to the quantity
and value questionnaire is due no later than November 29,
2011.”) (footnote omitted).
17
Quantity & Value Questionnaire, [CSPC], Whether or Not
Assembled into Modules, from the [PRC], A-570-979, AD
Investigation (Nov. 9, 2011) (“Jiasheng Q&V Quest.”), reproduced
in App. to Br. in Supp. of Pl.’s Rule 56.2 Mot. for J. Upon the
Agency R. (“Jiasheng’s App.”), ECF No. 45 at Doc. 15.
18
Cover Letter to Jiasheng Q&V Quest., ECF No. 45 at Doc. 15.
19
Jiasheng Q&V Quest., ECF No. 45 at Doc. 15, at 2 (“[Commerce]
will not give consideration to any separate-rate status
application made by parties that fail to timely respond to the
Quantity and Value Questionnaire . . . .”).
Consol. Ct. No. 13-00012 Page 10
included in the package as Attachment III, and advised Jiasheng
to utilize the included check list (Attachment V) “to make
certain [that Jiasheng] fully complie[s] with all filing
requirements.”20 Paragraph A.1 of the General Instructions
included in Attachment III to the Q&V questionnaire received by
Jiasheng states that “[a]ll submissions must be made
electronically using [Commerce’s] IA ACCESS website at
http://iaaccess.trade.gov.”21 Paragraph A.3 explains that “[a]n
electronically filed document must be received successfully in
its entirety by IA ACCESS by 5 p.m. Eastern Time (ET) on the due
date, unless an earlier time is specified.”22 The check list
included in Attachment V warns respondents: “Do not submit your
response via email or facsimile. Your response must be
electronically filed using IA [ACCESS] unless you meet one of
the exceptions listed under the ‘Manual Filing’ section of the
General Instructions.”23
20
Cover Letter to Jiasheng Q&V Quest., ECF No. 45 at Doc. 15.
21
Attach. III to Jiasheng Q&V Quest., ECF No. 45 at Doc. 15.
22
Id.
23
Attach. V to Jiasheng Q&V Quest., ECF No. 45 at Doc. 15,
at ¶ 4. (emphasis in original). The manual filing exceptions
apply to unusually large documents or data files, or when the IA
ACCESS system is unable to accept filings. See Attach. III to
Jiasheng Q&V Quest., ECF No. 45 at Doc. 15, at ¶ C.1. It is
undisputed that these manual filing exceptions are not relevant
to this case. See Oral Arg. Tr., ECF No. 83, at 7 (Jiasheng’s
counsel’s concession that the manual filing exceptions refer to
(footnote continued . . .)
Consol. Ct. No. 13-00012 Page 11
Commerce received timely-filed Q&V questionnaire
responses from 80 exporters – who all filed their responses
using Commerce’s IA ACCESS website24 – but not from Jiasheng.
Rather, on November 30, 2011, at 10:59 local time (i.e., after
the November 29, 2011, deadline), Jiasheng sent an email message
to one of the contact persons listed on the Q&V questionnaire.25
This email invited the official to “check the attachment” and
apologized for the late submission, without providing any
explanation.26
Nine days after receiving the questionnaire responses
a “different issue”).
24
Mem. re Resp’t Selection, [CSPC], Whether or Not Assembled
into Modules, from the [PRC], A-570-979, AD Investigation
(Dec. 8, 2011) (“Resp’t Selection Mem.”), reproduced in Def.’s
App., ECF No. 56-1 at P.D. 275, at 2 (noting also that nine of
the 80 Q&V questionnaire responses were rejected as improperly
filed and those respondents were provided with an opportunity to
correct the filing deficiencies, as well as that “many of the
companies to which [Commerce] issued Q&V questionnaires did not
respond to the questionnaire”). But see Prelim. Results, 77 Fed.
Reg. at 31,309 (“Commerce received timely responses to its Q&V
questionnaire from 76 companies.”).
25
See Ex. A (email correspondence) to Letter re Commerce’s
Rejection of Jiasheng’s Q&V Resp. & Separate Rate Appl., [CSPC],
Whether or Not Assembled into Modules, from the [PRC],
A-570-979, AD Investigation (Feb. 29, 2012) (“Jiasheng’s Feb. 29
Protest”), reproduced in Jiasheng App., ECF No. 45 at Doc. 2;
see also Cover Letter to Jiasheng Q&V Quest., ECF No. 45 at Doc.
15 (naming two contact persons, and providing their phone
numbers and email addresses, to whom to direct “any questions or
comments”).
26
Ex. A to Jiasheng’s Feb. 29 Protest, ECF No. 45 at Doc. 2.
Consol. Ct. No. 13-00012 Page 12
through IA ACCESS, on December 8, 2011, Commerce completed its
analysis of the 80 submissions and selected two respondents for
individual examination (the “mandatory respondents”), pursuant
to 19 U.S.C. § 1677f-1(c)(2)(B).27 In doing so, Commerce made
its selection without relying on data from a number of companies
that had timely but deficiently submitted their responses
through IA ACCESS.28 Rather, Commerce permitted those companies
to properly re-file their Q&V questionnaire responses by
December 14, 2011, in order to preserve their eligibility for a
separate rate.29 Because Jiasheng did not timely submit its Q&V
questionnaire response through IA ACCESS, Jiasheng was neither
contacted by Commerce nor permitted an opportunity to preserve
separate-rate eligibility by properly filing its Q&V
27
See Resp’t Selection Mem., ECF No. 56-1 at P.D. 275, at 4-5;
19 U.S.C. § 1677f-1(c)(2)(B) (“If it is not practicable to make
individual weighted average dumping margin determinations [for
each known exporter and producer of the subject merchandise]
because of the large number of exporters or producers involved
in the investigation . . ., [Commerce] may determine the
weighted average dumping margins for a reasonable number of
exporters or producers by limiting its examination to . . .
exporters and producers accounting for the largest volume of the
subject merchandise from the exporting country that can be
reasonably examined.”).
28
See Resp’t Selection Mem., ECF No. 56-1 at P.D. 275, at 2 n.4.
29
See Letters to Certain Resp’ts, [CSPC], Whether or Not
Assembled into Modules, from the [PRC], A-570-979,
AD Investigation (Dec. 9, 2011), reproduced in Jiasheng’s App.,
ECF No. 45 at Docs. 4-12; see also supra note 14 and
accompanying text.
Consol. Ct. No. 13-00012 Page 13
questionnaire response.30
Jiasheng then retained counsel and ultimately filed
its Q&V questionnaire response through IA ACCESS on December 12,
2011.31 Because this was the first filing of Jiasheng’s response
within the electronic filing system for this investigation,
Commerce rejected the filing as untimely.32
Meanwhile, in December 2011 through January 2012,
Commerce received 68 timely-filed SRAs from companies who had
also timely filed their Q&V questionnaire responses through
IA ACCESS.33 Although Jiasheng also submitted an SRA by the
applicable deadline, using IA ACCESS, Commerce rejected the
submission because Jiasheng had not timely filed a Q&V
questionnaire response.34 In explaining its decision to reject
30
I&D Mem. cmt. 45 at 103 (“Jiasheng failed to officially file a
Q&V questionnaire response on the record of the case by the
deadline for doing so; thus there was nothing on the record for
[Commerce] to examine for filing deficiencies.”).
31
Jiasheng’s Br., ECF No. 41, at 20.
32
See Letter re Rejection of Jiasheng’s Q&V Questionnaire Resp.,
[CSPC], Whether or Not Assembled into Modules, from the [PRC],
A-570-979, AD Investigation (Jan. 6, 2012) (“Jiasheng Q&V
Rejection”), reproduced in, Def.’s App., ECF No. 56-1
at P.D. 356 (informing Jiasheng that its submission dated
December 12, 2011, was rejected as untimely filed).
33
See Prelim. Results, 77 Fed. Reg. at 31,310, 31,315.
34
See Letter re Rejection of Jiasheng’s Separate Rate Appl.,
[CSPC], Whether or Not Assembled into Modules, from the [PRC],
A-570-979, AD Investigation (Feb. 10, 2012) (“Jiasheng SRA
Rejection Letter”), reproduced in, Jiasheng’s App., ECF No. 45
(footnote continued . . .)
Consol. Ct. No. 13-00012 Page 14
Jiasheng’s SRA, Commerce emphasized that both the notice of
initiation for this investigation and the specific Q&V
questionnaire received by Jiasheng explicitly required
respondents to timely file Q&V questionnaire responses as a
precondition for separate rate eligibility.35
Those respondents that timely filed their Q&V
questionnaire responses through IA ACCESS and whose separate-
rate applications demonstrated sufficient independence from
government control36 were ultimately assigned an antidumping duty
cash deposit rate of 25.96 percent, which was lower than that
assigned to the PRC-wide entity.37 This lower 25.96 percent
at Doc. 14 (informing Jiasheng that its separate rate
questionnaire response dated January 17, 2012, was rejected
because Jiasheng had not timely filed a Q&V questionnaire
response and “a timely response to the Q&V Questionnaire is
necessary to be considered for receipt of a separate rate”);
Prelim. Results, 77 Fed. Reg. at 31,317 (explaining that
Commerce did not grant a separate rate to Jiasheng because
Jiasheng failed to submit a timely response to Commerce’s Q&V
questionnaire).
35
Jiasheng SRA Rejection Letter, ECF No. 45 at Doc. 14, at 1
(quoting Initiation Notice, 76 Fed. Reg. at 70,964
(“[R]espondents [must] submit a response to both the quantity
and value questionnaire and the separate rate application by the
respective deadlines in order to receive consideration for
separate-rate status.”); Jiasheng Q&V Quest., ECF No. 45
at Doc. 15, at 2 (“[Commerce] will not give consideration to any
separate-rate status application made by parties that fail to
timely respond to the Quantity and Value Questionnaire
. . . .”)).
36
See supra notes 11-13 and accompanying text.
37
See Final Results, 77 Fed. Reg. at 63,794-95.
Consol. Ct. No. 13-00012 Page 15
separate rate reflected an average of the rates calculated for
the two mandatory respondents, who also qualified for separate
rates.38 The PRC-wide entity, on the other hand, comprised of
all the remaining companies that did not qualify for a separate
rate,39 including Jiasheng, was assigned a 249.96 percent rate
based on an adverse inference.40 Commerce judged this rate, which
38
See id. at 63,794 (“The separate rate is normally determined
based on the weighted-average of the estimated dumping margins
established for exporters and producers individually
investigated, excluding zero and de minimis margins or margins
based entirely on adverse facts available (‘AFA’). [citing
19 U.S.C. § 1673d(c)(5)(A)] In this investigation, both
[mandatory respondents] have estimated weighted-average dumping
margins which are above de minimis and which are not based on
total AFA. Because there are only two relevant weighted-average
dumping margins for this final determination, using a weighted-
average of these two margins risks disclosure of business
proprietary information (‘BPI’) data. Therefore, [Commerce] has
calculated both a simple average and a weighted-average of the
two final dumping margins calculated for the mandatory
respondents using public values for sales of subject merchandise
reported by respondents and used the average that provides a
more accurate proxy for the weighted-average margin of both
companies calculated using BPI data, which in this investigation
is 25.96 percent.”) (additional citation omitted).
39
See id. at 63,794 (“Because [Commerce] begins with the
presumption that all companies within an NME country are subject
to government control, and because only the mandatory
respondents and certain Separate Rate Applicants have overcome
that presumption, [Commerce] is applying a single antidumping
rate to all other exporters of subject merchandise from the PRC.
Such companies have not demonstrated entitlement to a separate
rate.”) (citation omitted).
40
Id. at 63,794-96 (finding that the PRC-wide entity “failed to
cooperate to the best of its ability” because “certain PRC
exporters/producers did not respond to [Commerce]’s requests for
information and did not establish that they were separate from
(footnote continued . . .)
Consol. Ct. No. 13-00012 Page 16
was the highest dumping margin alleged in the petition to
initiate these proceedings, to be derived from data that were
“within the range of the U.S. prices and normal values for the
respondents in this investigation.”41
Jiasheng now challenges Commerce’s determination to
reject its SRA and assign to Jiasheng the PRC-wide rate.
See Jiasheng’s Br., ECF No. 41. Jiasheng does not challenge the
PRC-wide rate itself, claiming only that this rate was
the PRC-wide entity”; accordingly employing an adverse inference
when determining the dumping margin for the PRC-wide entity,
pursuant to 19 U.S.C. § 1677e(b); and explaining that, when
determining rates based on an adverse inference, Commerce’s
practice is “to select a rate that is sufficiently adverse as to
. . . induce respondents to provide [Commerce] with complete and
accurate information in a timely manner”) (quotation marks and
citation omitted); see 19 U.S.C. § 1677e(b) (“If [Commerce]
finds that an interested party has failed to cooperate by not
acting to the best of its ability to comply with a request for
information from [Commerce], [the agency] . . . may use an
inference that is adverse to the interests of that party in
selecting from among the facts otherwise available.”); Yangzhou
Bestpak, 716 F.3d at 1373 (“Commerce may use adverse inferences
when calculating a rate if an investigated respondent refuses to
cooperate by impeding the investigation or not properly
providing information. Commerce typically concludes that some
part of the countrywide entity has not cooperated in the
proceeding because those that have responded do not account for
all imports of the subject merchandise. Commerce is required to
corroborate chosen AFA rates to ensure that they fall within the
purportedly acceptable range of margins determined.”) (citing 19
U.S.C. § 1677e(b)-(c)); E. Sea Seafoods LLC v. United States,
__ CIT __, 703 F. Supp. 2d 1336, 1354 n.15 (2010) (“[I]n most,
if not all, cases involving a country-wide NME antidumping duty
rate, the country-wide margin has been calculated using adverse
inferences.”) (citation omitted).
41
Final Results, 77 Fed. Reg. at 63,795 (citation omitted).
Consol. Ct. No. 13-00012 Page 17
improperly applied to Jiasheng. See id.; Oral Arg. Tr.,
ECF No. 83, at 13 (Jiasheng’s confirmation that it is not
challenging the China-wide rate).
B. Analysis
Commerce has discretion to set and enforce deadlines
and reject untimely filed submissions,42 and may make its
determinations “us[ing] facts otherwise available” when, inter
alia, a respondent “fails to provide [requested] information by
the deadlines for submission of the information or in the form
and manner requested.” 19 U.S.C. 1677e(a)(2)(B).43 Here,
Commerce used facts otherwise available (i.e., the presumption
of government control attaching to all exporters from NME
countries like the PRC) because Jiasheng failed to provide
information requested of it by the applicable deadline.
See I&D Mem. cmt. 45 at 105. Jiasheng argues that its SRA,
42
See NTN Bearing Corp. v. United States, 74 F.3d 1204, 1207
(Fed. Cir. 1995) (“Inasmuch as Congress has not specified the
procedures [Commerce] must use to obtain information, it is
within the discretion of [the agency] to promulgate appropriate
procedural regulations.”) (citation omitted); Yantai Timken,
31 CIT at 1755, 521 F. Supp. 2d at 1371 (“In order for Commerce
to fulfill its mandate to administer the antidumping duty law,
including its obligation to calculate accurate dumping margins,
it must be permitted to enforce the time frame provided in its
regulations.”) (citation omitted).
43
Reliance on this statutory provision is subject to the
requirements of 19 U.S.C. §§ 1677m(c)(1), 1677m(d), and
1677m(e), which are discussed below.
Consol. Ct. No. 13-00012 Page 18
which was filed using IA ACCESS by the deadline provided for
respondents who timely filed Q&V responses, contained the
information necessary to determine Jiasheng’s actual separate-
rate eligibility, in the form and manner requested by Commerce.44
Jiasheng therefore contends that Commerce inappropriately used
“facts otherwise available” when the actual information was in
fact timely and properly submitted on the record of this
investigation.45
But as Commerce explained, the agency unambiguously
and consistently requires respondents to properly and timely
file Q&V responses as a precondition for separate-rate
eligibility, because doing so prevents respondents from
circumventing the mandatory respondent selection process and
benefitting from the all-others separate rate without the risk
or burden of individual investigation.46 Because Commerce has
44
See Jiasheng’s Br., ECF No. 41, at 14-15, 23.
45
See id.
46
See I&D Mem. cmt. 45 at 104-05; Oral Arg. Tr., ECF No. 83,
at 32-33. Because Commerce generally makes its separate-rate
determinations after selecting the mandatory respondents (based
on Q&V submissions), without this link between separate-rate
eligibility and timely Q&V data submission respondents would be
free to submit their SRAs without having made any Q&V
submissions. In this way, respondents would be able to avoid
the possibility of detailed examination that accompanies
selection as a mandatory respondent, but nonetheless benefit
from the separate rate, which is usually based on the mandatory
respondents’ rates. See supra note 38 (explaining Commerce’s
(footnote continued . . .)
Consol. Ct. No. 13-00012 Page 19
broad discretion to set the procedures it needs in order to
adequately perform and enforce its regulatory role, and because
the agency’s basis for this particular procedure is reasonable,
Commerce’s policy of requiring timely Q&V responses as a
precondition of separate-rate eligibility is not a prima facie
abuse of the agency’s discretion.
Because Commerce’s policy of predicating the
timeliness of separate-rate applications on timely Q&V data
submission is not a prima facie abuse of discretion, the next
question raised by Jiasheng’s challenge is whether Commerce’s
application of its policy in this case amounts to an abuse of
discretion. In evaluating such an as-applied challenge to
Commerce’s timeliness requirements and procedures, the court
asks “whether the interests of accuracy and fairness outweigh
the burden [resulting from the late submission] placed on
[Commerce] and the interest in finality.”47 In support of its
argument that Commerce abused its discretion by rejecting
Jiasheng’s SRA in the circumstances presented here, Jiasheng
relies on this Court’s decisions in Grobest, __ CIT __,
815 F. Supp. 2d 1342, and Artisan Mfg. Corp. v. United States,
practice for calculating separate rates).
47
Grobest & I-Mei Indus. (Vietnam) Co. v. United States,
__ CIT __, 815 F. Supp. 2d 1342, 1365 (2012).
Consol. Ct. No. 13-00012 Page 20
__ CIT __, 978 F. Supp. 2d 1334 (2014).48 But the facts of this
case are distinguishable from the issues presented in those
actions.
In Grobest, an NME company that was wholly-owned by a
market economy company had qualified for a separate rate in an
antidumping investigation, and had then maintained separate-rate
status in three subsequent administrative reviews by timely
filing certifications of no material changes.49 Then, in the
fourth review, that company untimely submitted the same
certification that it had consistently used over all the years
during which its merchandise had been subject to the antidumping
duty order.50 Under such circumstances, Commerce’s sudden
48
See Jiasheng’s Br., ECF No. 41, at 10-16 (relying on Grobest);
Pl.’s Notice of Supplemental Auth., ECF No. 79 (advising the
court of the decision in Artisan, and requesting that the court
“take this decision into account in its deliberations”).
49
Grobest, __ CIT at __, 815 F. Supp. 2d at 1364 (noting that
the company in question, “Amanda Foods,” received separate-rate
status in the initial investigation, which it retained “in all
subsequent reviews prior to the fourth by filing [certifications
of no material changes]”); id. at 1366 (noting that Amanda
Foods’ separate-rate status in the investigation and three
subsequent reviews was based on evidence that this company “was
wholly owned by foreign entities located in a market economy
country”); see id. at 1364 (“If an exporter or producer received
a separate rate in a prior review and has not undergone relevant
changes, it may submit a separate-rate certification (‘SRC’) to
maintain separate-rate status in subsequent reviews. All other
companies seeking separate-rate status must file a separate-rate
application (‘SRA’).”) (citations omitted).
50
See id. at 1366 (“Amanda Foods received separate-rate status
(footnote continued . . .)
Consol. Ct. No. 13-00012 Page 21
rejection of the certification, without any evidence of an
intervening change and where “every indication suggest[ed] that
the burden of reviewing the [separate rate certification] would
not be great,” was an abuse of discretion.51
But Jiasheng’s case is not analogous. Here Commerce
had no prior history to rely on, and the issue before the court
is not the rejection of a certification of continued separate
rate eligibility in the absence of changed circumstances, but
rather the untimely attempt to establish such eligibility in the
first instance, under circumstances that would impose a
significant burden on the agency (requiring Commerce to either
begin its already-completed mandatory respondent selection
process anew, or else undermine the agency’s policy objective by
permitting Jiasheng’s effective circumvention of that process).
Nor is this case analogous to the facts in Artisan,
where Commerce abused its discretion by rejecting a response
filed via IA ACCESS after 5:00pm on the day of the deadline but
in the initial investigation and has maintained that status in
each subsequent review prior to the fourth due to it being
wholly foreign-owned; . . . [Amanda Foods’ late certification in
the fourth review shows that] it remains wholly foreign-
owned.”); id. at 1367 (finding that “the late-filed SRC appears
to maintain the status quo”).
51
Id. at 1367.
Consol. Ct. No. 13-00012 Page 22
before 9:00am on the following day.52 Here, rather than properly
submitting its response via IA ACCESS before the start of
business on the day after the deadline, Jiasheng emailed its
late response, despite clear instructions not to do so, and made
no IA ACCESS filings until two weeks after the deadline.
Commerce’s instructions, received by Jiasheng
seventeen days before the filing deadline, clearly stated that
1) Q&V questionnaire responses were to be filed only by using
the IA ACCESS website,53 and were not to be emailed under any
circumstances54; and 2) failure to timely file the Q&V
questionnaire response would forfeit the opportunity to be
considered for a separate rate.55 Moreover, at the close of the
52
Artisan, __ CIT at __, 978 F. Supp. 2d at 1338; see also id.
at 1345 (“On the record evidence, . . . [the relevant] Q&V
information was unavailable to Commerce only between the 5:00pm
close of business on the due date, April 11, 2012, and a time at
or near the beginning of the next business day. Such a brief
period could not have delayed the investigation in any
meaningful way.”) (citation omitted); id. at 1344 (narrowing the
holding to the particular facts of that case).
53
Attach. III to Jiasheng Q&V Quest., ECF No. 45 at Doc. 15,
at ¶¶ A.1, A.3.
54
Attach. V to Jiasheng Q&V Quest., ECF No. 45 at Doc. 15,
at ¶ 4; see also Attach III to Jiasheng Q&V Quest., ECF No. 45
at Doc. 15, at ¶ A.1 (“If an exception to the electronic filing
requirement applies, you must address and manually submit your
response to the address indicated on the cover page of this
questionnaire.”) (emphasis added).
55
Jiasheng Q&V Quest., ECF No. 45 at Doc. 15, at 2;
see supra note 19 (quoting relevant language).
Consol. Ct. No. 13-00012 Page 23
IA ACCESS filing deadline, Commerce had received data from 80
respondents, which it then processed to select mandatory
respondents within nine days, in order to adhere to a schedule
for completing the investigation within the statutory time
limitations.56 Then, just as Commerce was compiling, organizing,
and analyzing all of this information, Jiasheng sent a brief,
uninformative email, with no explanation, attempting to submit
its questionnaire response as an attachment, despite very clear
instructions – followed by the vast majority of the respondents
in this investigation – not to do so.57 By the time of
Jiasheng’s actual untimely response, filed using IA ACCESS on
December 12, 2011,58 the investigation was already well under
way.59
56
See Resp’t Selection Mem., ECF No. 56-1 at P.D. 275; I&D Mem.
cmt. 45 at 104.
57
It is true that the Q&V questionnaire had provided the email
address along with an invitation for questions or comments. But
the questionnaire also emphatically stated that the response was
not to be emailed under any circumstances and must be submitted
via IA ACCESS by November 29, 2011. The logical reading of this
is that any questions or comments were to be sent in advance of
the filing deadline, and that the email addresses provided were
not to be used to submit the required responses.
58
See supra notes 31 and 32 (providing relevant citations).
59
See Prelim. Results, 77 Fed. Reg. at 31,309-10 (demonstrating
that by December 12, 2011, Commerce had already selected the
mandatory respondents, issued its antidumping questionnaires to
those companies, and was starting to receive timely separate
rate applications); see also I&D Mem. cmt. 45 at 104 (“The fully
extended deadline for issuing the preliminary determination is
(footnote continued . . .)
Consol. Ct. No. 13-00012 Page 24
Jiasheng’s failure to follow Commerce’s instructions
and file its response through IA ACCESS by the November 29,
2011, deadline is also what distinguishes Jiasheng from the nine
respondents who had timely, though deficiently, filed their Q&V
questionnaire responses through IA ACCESS, and who were
therefore permitted an opportunity to re-file and thus preserve
their separate-rate eligibility.60 Accordingly, Commerce’s
less than six months from the due date for Q&V questionnaire
responses. During this period [Commerce] must choose mandatory
respondents, analyze questionnaire responses, issue and analyze
supplemental questionnaire responses, calculate dumping margins
for the respondents, and in this case, analyze nearly 70 SRAs
and a significant amount of comments on various issues including
scope, separate rates and critical circumstances. Jiasheng
officially filed its Q&V questionnaire response almost two weeks
after the due date for such responses.”). Compare with Artisan,
__ CIT at __, 978 F. Supp. 2d at 1345; see supra note 52
(quoting relevant language from Artisan).
Jiasheng argues that the Commerce official to whom
Jiasheng emailed its late response should have opened the
attachment, realized it was Jiasheng’s attempt at filing the
questionnaire response, promptly contacted Jiasheng to alert the
company of its error, and then permitted Jiasheng to properly
re-file and so preserve separate-rate eligibility.
See, e.g., Jiasheng’s Br., ECF No. 41, at 19. But Jiasheng’s
own failure to provide a timely explanation for its improper
filing attempt precluded any such response. See infra note 60.
Moreover, Commerce notified Jiasheng of its improper filing
promptly after Jiasheng’s response was finally filed through the
IA ACCESS website. See Jiasheng Q&V Rejection, ECF No. 56-1
at P.D. 356 (informing Jiasheng, on January 6, 2012, that its
December 12, 2011 filing was rejected as untimely).
60
See I&D Mem. cmt. 45 at 103 (“While Jiasheng argues that it
should have been notified that its Q&V questionnaire response
was improperly filed because nine other respondents[] were
notified of filing deficiencies in their Q&V questionnaire
responses, these nine respondents submitted timely Q&V
(footnote continued . . .)
Consol. Ct. No. 13-00012 Page 25
disparate treatment of Jiasheng vis-à-vis these nine companies
is not arbitrary, as Jiasheng suggests,61 because it has a
reasonable basis. The nine companies that followed instructions
and timely filed their responses through IA ACCESS were included
within Commerce’s initial data compilation and analysis, whereas
Jiasheng did not enter that system until two weeks later. Given
this distinction, Commerce did not act arbitrarily in treating
Jiasheng differently from these nine companies.
Finally, while Commerce’s use of “facts otherwise
available” (here, the presumption of government control)
pursuant to 19 U.S.C. § 1677e(a)(2)(B) is subject to the
requirements of 19 U.S.C. §§ 1677m(c)(1), 1677m(d), and
1677m(e), none of these latter provisions is applicable on the
facts presented. Section 1677m(c)(1) provides that if an
interested party promptly notifies Commerce that it is unable to
comply with the agency’s request, “together with a full
explanation and suggested alternative forms in which such party
questionnaire responses through IA ACCESS, albeit each of their
submjissions had certain filing deficiencies. [In contrast,]
Jiasheng failed to officially file a Q&V questionnaire response
on the record of the case by the deadline for doing so
. . . .”); id. at 105 (“The nine companies referenced by
Jiasheng met the filing deadline. Jiasheng did not.”).
61
See, e.g., Jiasheng’s Br., ECF No. 41, at 14; Pl.’s Br. in
Reply to Def.’s & Pet’r-Pl.’s Opp’n to Pl.’s Mot. for J. on the
Agency R. Pursuant to Rule 56.2, ECT No. 71, at 6.
Consol. Ct. No. 13-00012 Page 26
is able to submit the information,” then Commerce “shall
consider the ability of the interested party to submit the
information in the requested form and manner and may modify such
requirements to the extent necessary to avoid imposing an
unreasonable burden on that party.” 19 U.S.C. § 1677m(c)(1).
This provision is not applicable here because, although Jiasheng
received Commerce’s request seventeen days prior to the
submission deadline, Jiasheng neither notified Commerce of any
anticipated difficulties nor provided any explanation therefor
or offered any alternatives.62
Similarly, Section 1677m(e) – which provides that
Commerce “shall not decline to consider information that is
submitted by an interested party and is necessary to the
determination but does not meet all the applicable requirements
established by [Commerce]” if the five conditions listed in
19 U.S.C. § 1677m(e)(1)-(5) are met – is inapplicable because
62
See Ex. A to Jiasheng’s Feb. 29 Protest, ECF No. 45 at Doc. 2
(reproducing Jiasheng’s initial email to Commerce, sent on
November 30, 2011 (i.e., the day after the deadline for filing
Q&V questionnaire responses), apologizing for the late
submission and inviting the agency official to “check the
attachment,” without providing any explanation). Accordingly,
Section 1677m(c)(1) is not applicable because Jiasheng did not,
“promptly after receiving [Commerce’s request] for information,
notif[y] [Commerce] that [Jiasheng] [was] unable to submit the
information requested in the requested form and manner, together
with a full explanation and suggested alternative forms in which
[Jiasheng] [was] able to submit the information.” See 19 U.S.C.
§ 1677m(c)(1).
Consol. Ct. No. 13-00012 Page 27
Jiasheng did not submit the information requested of it “by the
deadline established for its submission,” see 19 U.S.C.
§ 1677m(e)(1), and did not demonstrate “that it acted to the
best of its ability in providing the information and meeting the
requirements established by [Commerce],” see id.
at § 1677m(e)(4).
Finally, Section 1677m(d) requires the agency to
promptly inform a party whose submission is determined to be
deficient and, “to the extent practicable, provide that person
with an opportunity to remedy or explain the deficiency . . . .”
19 U.S.C. § 1677m(d). Commerce satisfied this requirement when
it informed Jiasheng that its December 12, 2011, IA ACCESS
filing was untimely,63 and reasonably determined that permitting
Jiasheng’s tardy entry into the investigation was no longer
practicable by the time of its late IA ACCESS submission, “in
light of the time limits established for the completion of
investigations.” See 19 U.S.C. § 1677m(d); I&D Mem. cmt. 45
at 104. Accordingly, Commerce reasonably applied
Section 1677e(a) to rely on facts otherwise available when
Jiasheng failed to timely submit the information requested of it
and did not properly submit such information until a time when
its consideration was no longer practicable.
63
Jiasheng Q&V Rejection, ECF No. 56-1 at P.D. 356.
Consol. Ct. No. 13-00012 Page 28
II. Commerce’s Valuation of Aluminum Frames
A. Background
In its investigation, Commerce calculated surrogate
values for the factors of production (“FOPs”) used by the two
mandatory respondents, Trina Solar and Wuxi Suntech,64 to produce
subject merchandise.65 Commerce valued all surrogate FOPs using
data from Thailand, the primary surrogate market economy country
selected for this investigation.66 Among the FOPs required for
producing the subject merchandise are the aluminum frames used
64
Defendant-Intervenors Changzhou Trina Solar Energy Co., Ltd.
(“Trina Solar”) and Wuxi Suntech Power Co., Ltd. (“Wuxi
Suntech”) were “the two companies reporting the largest quantity
of solar cell sales to the United States during the [POI],”
Prelim. Results, 77 Fed. Reg. at 31,309, and were accordingly
selected as mandatory respondents in this investigation. Id.
(unchanged in the Final Results, 77 Fed. Reg. at 63,791).
See 19 U.S.C. § 1677f-1(c)(2)(B) (permitting Commerce to limit
its individualized examination to the “exporters and producers
accounting for the largest volume of the subject merchandise
from the exporting country that can be reasonably examined” if
“it is not practicable to make individual weighted average
dumping margin determinations . . . because of the large number
of exporters or producers involved in the investigation or
review”).
65
Because Commerce treats China as an NME country, the agency
determines the home market or “normal” value of merchandise from
China by using surrogate market economy data to calculate
production costs, including FOPs, and profit. See 19 U.S.C.
§ 1677b(c)(1). In doing so, Commerce’s valuation of the FOPs
must be “based on the best available information regarding the
values of such factors in a market economy country or countries
considered to be appropriate by the [agency].” Id.
66
See I&D Mem. cmt. 4 at 19-20.
Consol. Ct. No. 13-00012 Page 29
to encase photovoltaic cells into solar panels.67 For the Final
Results of this investigation, Commerce “valued Trina [Solar]’s
and Wuxi Suntech’s aluminum frames using Thai HTS categories
covering alloyed aluminum profiles.”68 Specifically, Commerce
valued Trina Solar’s frames using Thai HTS subheading
7604.29.90001 (aluminum alloy non-hollow profiles), based on
Trina Solar’s verified description of its frames as non-hollow
alloyed aluminum profiles.69 Because Wuxi Suntech described its
frames as hollow alloyed aluminum profiles, Commerce valued Wuxi
Suntech’s frames using Thai HTS subheading 7604.21 (aluminum
alloy hollow profiles).70 SolarWorld argues that these
67
See I&D Mem. cmt. 16.
68
Id. at 62 & n.233 (noting that “interested party comments
regarding the appropriate [surrogate value] for this material
input [were] limited to specificity,” and that “parties have not
commented on contemporaneity, the inclusion or exclusion of
taxes and import duties, public availability, etc.”); see I&D
Mem. cmt. 39 at 92 (“It is [Commerce]’s stated practice to
choose a surrogate value [pursuant to 19 U.S.C. § 1677b(c)(1)]
that represents country-wide price averages specific to the
input, which are contemporaneous with the period under
consideration, net of taxes and import duties, and based on
publicly available, non-aberrational, data from a single
surrogate [market economy] country.”) (citations omitted).
69
Id. at 62 & n.236 (citing Ex. 74 to Trina Solar’s Verification
Report). See also Ex. 2 (extracts from Thai HTS Chapter 76) to
[Trina Solar’s] Additional surrogate Info., [CSPC], Whether or
Not Assembled into Modules, from the [PRC], A-570-979,
AD Investigation (July 9, 2012), reproduced in Def.’s App.,
ECF No. 56-2 at P.D. 1267 (“Thai HTS Ch. 76”).
70
Id. at 62 & n.237 (citing Wuxi Suntech’s Apr. 25, 2012,
submission at resps. to questions 35-36).
Consol. Ct. No. 13-00012 Page 30
determinations are not supported by substantial evidence,
contending that the sole reasonable choice of “best available”
information regarding this FOP was to value Trina Solar and Wuxi
Suntech’s aluminum frames using Thai HTS category 7616.99
(articles of aluminum not elsewhere specified).71
To SolarWorld, HTS category 7616.99 is the sole
reasonable choice here because of a ruling issued prior to the
POI by U.S. Customs and Border Protection (“Customs”), in
response to a request by Wuxi Suntech’s U.S. affiliate for
guidance on classifying its “extruded aluminum frames for solar
panels” for U.S. tariff assessment purposes.72 In this ruling,
Customs determined that, based on the description provided by
Wuxi Suntech, its aluminum frames would be assessed tariff rates
based on USHTS subheading 7616.99.5090 (articles of aluminum,
other).73
In its preliminary determination, however, Commerce
explained that it “is not bound by U.S. Customs classifications
71
SolarWorld’s Br., ECF No. 44, at 10-21.
72
Id. at 10 (quoting Ex. 1 (Customs Ruling N139353 Jan. 13, 2011
(“Customs Ruling N139353”)) to [SolarWorld’s] Comments on Trina
[Solar]’s 2d Supplemental Surrogate Questionnaire Resp., [CSPC],
Whether or Not Assembled into Modules, from the [PRC], A-570-
979, AD Investigation (Apr. 20, 2012), reproduced in App. to
Pet’r-Pl.’s Br. Supp. Rule 56.2 Mot. for J. on the Agency R.
(“SolarWorld’s App.”), ECF Nos. 46 (conf. version) & 47 (pub.
version) at Tab 3).
73
Customs Ruling N139353, ECF No. 47 at Tab 3 Ex. 1.
Consol. Ct. No. 13-00012 Page 31
for U.S. imports when selecting import values from surrogate
countries” but must instead “select a value using the best
available information.”74 Commerce determined that HTS
subheading 7616.99 was not the best information available
regarding the market value of Trina Solar and Wuxi Suntech’s
aluminum frames because “HTS category 7616.99 is an ‘other’
category and could reflect imports of numerous types of
products”75 – such as pencil ferrules, textile yarn spools, or
spouts and cups for latex collection – that are very different
(in nature and value) from the aluminum frame inputs in
question.76 Instead, Commerce determined that because “aluminum
window frames are structurally similar to the frames used in
74
Factor Valuation Mem., [CSPC], Whether or Not Assembled into
Modules, from the [PRC], A-570-979, AD Investigation
(May 16, 2012) (“Prelim. SV Mem.”), reproduced in SolarWorld’s
App., ECF No. 47 at Tab 16, at 3. See supra note 65 (discussing
relevant statutory framework).
75
Prelim. SV Mem., ECF No. 47 at Tab 16, at 3.
76
See Def.’s Opp’n to Pls.’ Rule 56.2 Mots. for J. Upon the
Agency R., ECF Nos. 54 (conf. version) & 55 (pub. version)
(“Def.’s Br.”), at 38 (emphasizing that “the descriptions for
the sub-categories under HTS 7616.99 indicate that this category
includes a number of products that are wholly unrelated to the
aluminum frame inputs used by Trina [Solar] and Wuxi Suntech,
including ‘ferrules used in the manufacture of pencils’
(HTS 7616.99.20), ‘slugs’ (HTS 7616.99.30), ‘bobbins, spools,
reels and similar supports for textile yarn’ (HTS 7616.99.40),
and ‘spouts and cups for latex collection’ (HTS 7616.99.60)”)
(citing I&D Mem. cmt. 16 at 63; Thai HTS Ch. 76, ECF No. 56-2
at P.D. 1267 Ex. 2).
Consol. Ct. No. 13-00012 Page 32
modules,”77 the best information for valuing aluminum frames is
provided by Thai HTS category 7610.10 (“aluminum doors, windows
and their frames and thresholds for doors”78), “which reflects
imports of a product most similar to the aluminum frames used
[by the respondents].”79
In its final determination (reached after considering
additional briefing from interested parties), however, Commerce
changed course and concluded that HTS category 7610.10 did not
in fact provide the best available information for valuing the
aluminum frames used to manufacture the subject merchandise,
because that category covers items specific to doors and windows
rather than the type of aluminum used in solar panel frames.80
Instead, Commerce determined to value Trina Solar’s frames using
Thai HTS subheading 7604.29.90 (other aluminum alloy non-hollow
77
Prelim. SV Mem., ECF No. 46 at Tab 16, at 3.
78
See I&D Mem. cmt. 16 at 63 (discussing HTS category 7610.10).
79
Prelim. SV Mem., ECF No. 46 at Tab 16, at 3.
80
See I&D Mem. cmt. 16 at 63 (“We agree that HTS category
7610.10 (‘aluminum doors, windows and their frames and
thresholds for doors’) does not specify the types of aluminum
frames used in solar cell modules.”); id. at 61 (noting the
Petitioner’s argument that HTS category 7610.10 should not be
used to value respondents’ aluminum frames because that category
“covers many items unrelated to aluminum frames; items that are
not used by respondents”); id. (noting Trina Solar’s argument
that HTS category 7610.10 should not be used to value
respondents’ aluminum frames because that category “covers
specific items related to doors and windows, rather than the
type of aluminum used in solar panel frames”).
Consol. Ct. No. 13-00012 Page 33
profiles), and to value Wuxi Suntech’s frames using Thai HTS
subheading 7604.21 (aluminum alloy hollow profiles), noting that
“both respondents have consistently described their aluminum
frames as alloyed aluminum profiles.”81 In continuing to reject
SolarWorld’s proposal to value the aluminum frames using HTS
category 7616.99, Commerce reiterated its prior position that
this category did not provide the best available information
regarding the market value of the aluminum frames in question
because “HTS category 7616 covers a number of inputs, such as
ferrules used in pencils, slugs, bobbins, spools, reels, spouts,
cups, handles for traveling bags, cigarette cases or boxes, and
blinds, which are dissimilar to the aluminum frames used by
respondents.”82
B. Analysis
SolarWorld argues that Commerce’s decision to classify
Wuxi Suntech and Trina Solar’s aluminum alloy frames under Thai
HTS category 7604 is not reasonable because 1) Commerce did not
choose to calculate surrogate market economy values for the
frames by using the same HTS category as that chosen by Customs
81
Id. at 63; see Thai HTS Ch. 76, ECF No. 56-2 at P.D. 1267
Ex. 2.
82
I&D Mem. cmt. 16 at 63.
Consol. Ct. No. 13-00012 Page 34
for U.S. tariff assessment83; 2) other Customs rulings
purportedly demonstrate that HTS category 7604 “covers base
level products of uniform shape that require further working and
processing before assembly into finished goods”84 whereas the
frames at issue are not of uniform cross-section and are “fully
processed units, ready for simple and final assembly”85; and
3) Commerce’s determination to value the mandatory respondents’
aluminum frames using Thai HTS category 7604 does not follow
from the reasons provided by the agency, because category 7616,
like category 7604, also covers alloyed aluminum products, such
that the alloyed constitution of respondents’ aluminum frames
cannot serve as a basis for determining to value such
merchandise using category 7604 rather than 7616.86 Each
argument is addressed in turn below.
1. Customs Ruling N139353
SolarWorld first argues that Customs Ruling N139353
was the best available information regarding the surrogate
market value of the aluminum frames used to produce the subject
merchandise. SolarWorld’s Br., ECF No. 44, at 10-14.
83
SolarWorld’s Br., ECF No. 44, at 10-14.
84
Id. at 15.
85
Id. at 16; see also id. at 17-20.
86
Id. at 21.
Consol. Ct. No. 13-00012 Page 35
SolarWorld claims that Commerce has an established
practice of relying on Customs classification rulings in similar
cases, from which it has here deviated without adequate
justification.87 But while SolarWorld emphasizes that Commerce
has often used Customs’ U.S. tariff classification rulings to
support Commerce’s determinations when calculating surrogate FOP
values, both in past cases and with regard to other surrogate
values in this case, Commerce explains that its “practice,” in
those cases as here, is to “carefully consider the available
evidence in light of the particular facts of each industry when
undertaking its analysis of valuing the FOPs on a case-by-case
basis.”88 The fact that Commerce has at times found support for
87
See id. at 12-14. SolarWorld identifies a range of other
instances where Commerce has accepted Customs rulings as the
“best available information” to establish surrogate FOP values,
as well as several other surrogate value determinations in this
investigation that have relied on Customs classification rulings
for support. Id. at 12 n.4.
88
Def.’s Br., ECF No. 55, at 40 (alteration omitted) (quoting
Issues & Decision Mem., Certain New Pneumatic Off-the-Road Tires
from the [PRC], A-570-912, ARP 10-11 (Apr. 9, 2013) (adopted by
78 Fed. Reg. 22,513 (Dep’t Commerce Apr. 16, 2013) (final
results of antidumping duty administrative review)) cmt. 5.A
at 13-14). See also Issues & Decision Mem., Certain Preserved
Mushrooms from the [PRC], A-570-851, ARP 04-05 (July 5, 2006)
(adopted by 71 Fed. Reg. 40,477 (Dep’t Commerce July 17, 2006)
(final results and final partial rescission of the sixth
administrative review)) cmt. 1 at 3 (“[Commerce] must weigh
available information with respect to each input value and make
a product-specific and case-specific decision as to what the
‘best’ surrogate value is for each input.”) (citing Issues &
Decision Mem., Freshwater Crawfish Tail Meat from the [PRC],
(footnote continued . . .)
Consol. Ct. No. 13-00012 Page 36
its surrogate value choices in Customs classification rulings
does not lead to the conclusion that Commerce must follow such
rulings in every case. On the contrary, as this Court has
previously held, “[t]he statute’s silence regarding the
definition of ‘best available information’ provides Commerce
with ‘broad discretion to determine the ‘best available
information’ in a reasonable manner on a case-by-case basis.’”89
2. Appropriateness of Thai HTS Category 7604
Next, SolarWorld argues that Thai HTS category 7604
was an unreasonable choice for calculating appropriate surrogate
market economy values for respondents’ aluminum frames because
SolarWorld interprets that category to cover solely products
with a “uniform cross-section along their whole length,”90 which
A-570-848, ARP 99-00 (Apr. 22, 2002) (adopted by 67 Fed.
Reg. 19,546 (Dep’t Commerce Apr. 22, 2002) (notice of final
results of antidumping duty administrative review, and final
partial rescission of antidumping duty administrative review))
at “Surrogate Value Information – Introduction”).
89
Goldlink Indus. Co. v. United States, 30 CIT 616, 619,
431 F. Supp. 2d 1323, 1327 (2006) (quoting Timken Co. v. United
States, 25 CIT 939, 944, 166 F. Supp. 2d 608, 616 (2001)).
See also Lasko Metal Prods., Inc. v. United States, 43 F.3d
1442, 1446 (Fed. Cir. 1994) (“The Act simply does not say –
anywhere – that the [FOPs] must be ascertained in a single
fashion. The Act requires that [Commerce’s] determination be
based on the ‘best available information regarding the values of
such factors in a market economy country or countries considered
to be appropriate by the administering authority.’”) (quoting
19 U.S.C. § 1677b(c)(1)).
90
SolarWorld’s Br., ECF No. 44, at 16 (quotation marks and
(footnote continued . . .)
Consol. Ct. No. 13-00012 Page 37
must also “require further working and processing before
assembly into finished goods,”91 whereas respondents’ frames
require only simple assembly and are not of uniform cross-
section by virtue of having been mitered for assembly.92
But as Commerce explains, SolarWorld’s claim – which
relies on Customs rulings applying HTS category 7604 to
unfinished aluminum articles93 – is unpersuasive. The fact that
HTS category 7604 has been applied in the past to unfinished
articles does not support the conclusion that Thai HTS
category 7604 covers solely unfinished merchandise that is
different in nature and value from the aluminum frames at
citation omitted).
91
Id. at 15.
92
Id. at 16-17.
93
See id. at 15 (relying on three Customs rulings classifying
unfinished aluminum extrusions under HTS category 7604).
SolarWorld also relies on Note 1(b) to HTS Chapter 76 (“Aluminum
and Articles Thereof”), SolarWorld’s Br. at 16, which defines
“profiles” as “[r]olled, extruded, drawn, forged or formed
products, coiled or not, of a uniform cross section along their
whole length, which do not conform to any of the definitions of
bars, rods, wire, plates, sheets, strip, foil, tubes or pipes,”
USHTS (2012) Ch. 76 Note 1(b) (emphasis added). But that same
note also provides that “[t]he expression [‘profiles’] also
covers cast or sintered products, of the same forms, which have
been subsequently worked after production (otherwise than by
simple trimming or descaling), provided that they have not
thereby assumed the character of articles or products of other
headings.” Id.
Consol. Ct. No. 13-00012 Page 38
issue.94 “While other HTS categories identify whether they
contain finished or unfinished items, HTS category 7604 does not
specify whether it contains finished or unfinished aluminum
profiles.”95 Moreover, Note 1(b) to Chapter 76 (“Aluminum and
Articles Thereof”) of the HTS provides that aluminum profiles
(such as those covered by category 7604 (“aluminum bars, rods
and profiles”)) includes products that “have been subsequently
worked after production (otherwise than by simple trimming or
descaling), provided that they have not thereby assumed the
character of articles or products of other headings.”96 This
94
See I&D Mem. cmt. 16 at 63 (“While [Customs] rulings on the
record supporting the use of HTS category 7604 concern
unfinished aluminum articles, this does not necessarily mean
that HTS category 7604 would only contain unfinished aluminum
profiles.”).
95
Id.
96
See supra note 93. See also 4 World Customs Organization,
Harmonized Commodity Description and Coding System Explanatory
Notes 76.04 (5th ed. 2012) (“These products [i.e., aluminum
bars, rods an profiles], which are defined in Notes 1(a) and
1(b) to [Chapter 76], correspond to similar goods made of
copper. The provisions of the Explanatory Note to heading 74.07
[“Copper bars, rods, and profiles”] apply therefore, mutatis
mutandis, to this heading.”); id. at 74.07 (“[Products under
this heading] may also be worked (e.g., drilled, punched,
twisted, or crimped), provided that they do not thereby assume
the character of articles or of products of other headings.”)
(emphasis omitted). During oral argument, counsel for
SolarWorld suggested that the frames in question could not
reasonably be valued by reference to merchandise covered by Thai
HTS category 7604 because such frames have “assumed the
character” of products covered by Thai HTS category 7616.99.
See Oral Arg. Tr., ECF No. 83, at 17-18. But Commerce
(footnote continued . . .)
Consol. Ct. No. 13-00012 Page 39
description reasonably supports Commerce’s decision that Thai
HTS category 7604 covers products most similar in nature and
value to the aluminum solar panel frames in question, despite
the fact that such frames have been mitered, drilled, and
notched in the ways described in the record evidence cited by
SolarWorld.97
3. Alloyed Aluminum Profiles
Finally, SolarWorld argues that Commerce’s
determination to value the mandatory respondents’ aluminum
frames using Thai HTS category 7604 does not follow from the
reasons provided by the agency, because category 7616, like
category 7604, also covers alloyed aluminum products, such that
the alloyed constitution of respondents’ aluminum frames cannot
serve as a basis for Commerce’s decision to value such
merchandise using category 7604 rather than 7616.98 But Commerce
reasonably concluded that the simple mitering of the
respondents’ alloyed aluminum profiles, in preparation for their
assembly into solar panel frames, does not transform such
profiles to assume the character of the myriad different
products covered by the catch-all “other” HTS 7616.99 category.
See I&D Mem. cmt. 16 at 63.
97
See [SolarWorld’s] Rebuttal Br. on Gen. Issues, [CSPC],
Whether or Not Assembled into Modules, from the [PRC],
A-570-979, AD Investigation (Aug. 6, 2012), reproduced in
SolarWorld’s App., ECF Nos. 46 & 46-1 at Tab 20, at 56-57
(photographs of subject aluminum frames showing worked sections
consistent with this description).
98
SolarWorld’s Br., ECF No. 44, at 21.
Consol. Ct. No. 13-00012 Page 40
did not choose HTS category 7604 over category 7616 based simply
on the alloyed nature of respondents’ aluminum frames, but
rather it did so based on its determination that category 7604
covers products most similar in nature and value to the aluminum
frames at issue, whereas category 7616.99 covers many diverse
products whose natures and values are not reasonably comparable
to such frames.99
Commerce weighed the available information before it
and reasonably determined that the best available information
regarding the market value of respondents’ aluminum frames is
provided by merchandise covered by Thai HTS category 7604
(“aluminum bars, rods, and profiles”), rather than Thai HTS
category 7616.99 (“Other articles of aluminum: Other”100) because
“both [mandatory] respondents have consistently described their
aluminum frames as alloyed aluminum profiles”101 and category
7604 specifically covers alloyed aluminum profiles, whereas
category 7616.99 is a catch-all category that covers many
diverse aluminum products – such as reels, cups, bag handles,
and cigarette cases – whose value is not reasonably comparable
99
See I&D Mem. cmt. 16 at 63.
100
See Thai HTS Ch. 76, ECF No. 56-2 at P.D. 1267 Ex. 2.
101
I&D Mem. cmt. 16 at 63.
Consol. Ct. No. 13-00012 Page 41
to that of respondent’s aluminum solar panel frames.102 Because
this determination comports with a reasonable reading of the
record evidence in this case, it is sustained.
III. Commerce’s Determination to Grant Separate-Rate Status to
Certain Respondents
As noted above, when investigating merchandise from
NME countries, Commerce presumes that all companies operating
within such countries are controlled by the government and
should accordingly receive a single countrywide rate, unless
respondents affirmatively demonstrate both de jure (in law) and
de facto (in fact) autonomy during the POI.103 Commerce’s
102
Id.
103
See supra notes 11-13 and accompanying text. With regard to
evidentiary support for relevant de jure autonomy, Commerce
generally looks for evidence such as “(1) an absence of
restrictive stipulations associated with an individual
exporter’s business and export licenses; (2) any legislative
enactments decentralizing control of companies; or (3) any other
formal measures by the government decentralizing control of
companies.” I&D Mem. cmt. 6 at 26 (citing Sparklers from the
[PRC], 56 Fed. Reg. 20,588, 20,589 (Dep’t Commerce May 6, 1991)
(final determination of sales at less than fair value)). With
regard to de facto autonomy, Commerce examines “(1) whether
export prices are set by, or are subject to the approval of, a
government agency; (2) whether the respondent has authority to
negotiate and sign contracts and other agreements; (3) whether
the respondent has autonomy from the government in making
decisions regarding the selection of management; and (4) whether
the respondent retains the proceeds of its export sales and
makes independent decisions regarding the disposition of profits
or financing of losses.” I&D Mem. cmt. 6 at 31; see also Def.’s
Br., ECF No. 55, at 44-45 (citing Silicon Carbide from the
[PRC], 59 Fed. Reg. 22,585, 22,587 (Dep’t Commerce May 2, 1994)
(footnote continued . . .)
Consol. Ct. No. 13-00012 Page 42
essential inquiry with regard to whether a particular
respondent’s circumstances warrant the grant of separate-rate
status focuses on whether, “considering the totality of
circumstances,” the respondents in question “had sufficient
independence in their export pricing decisions from government
control to qualify for separate rates.”104 To that end, the
relevant de jure autonomy “can be demonstrated by reference to
legislation and other governmental measures that decentralize
control,”105 and the relevant de facto autonomy “can be
established by evidence that [the] exporter sets its prices
independently of the government and of other exporters, and that
[the] exporter keeps the proceeds of its sales.”106 In both its
de jure and de facto determinations, Commerce may make
reasonable inferences from the record evidence. See Daewoo
Elecs. Co. v. United States, 6 F.3d 1511, 1520 (Fed. Cir. 1993)
(explaining that substantial evidence may include “reasonable
inferences from the record”) (quotation marks and citation
(final determination of sales at less than fair value) (“Silicon
Carbide from China”)).
104
Certain Cut-to-Length Carbon Steel Plate from Ukraine, 62
Fed. Reg. 61,754, 61,759 (Dep’t Commerce Nov. 19, 1997) (notice
of final determination of sales at less than fair value) (“Steel
from Ukraine”) (emphasis added).
105
Sigma, 117 F.3d at 1405 (citation omitted).
106
Id. (citation omitted).
Consol. Ct. No. 13-00012 Page 43
omitted).
Here, recognizing that “within the NME entity,
companies exist which are independent from government control to
such an extent that they can independently conduct export
activities,” I&D Mem. cmt. 6 at 26 (citation omitted), Commerce
granted a number of separate-rate applications in this
investigation, finding that “the evidence placed on the record
of this investigation by [these respondents] . . . demonstrates
both de jure and de facto absence of government control with
respect to each company’s respective exports of the merchandise
under investigation.” Final Results, 77 Fed. Reg. at 63,794.
SolarWorld claims that Commerce’s determinations to
grant some of these SRAs were not supported by substantial
evidence. SolarWorld’s Br., ECF No. 44, at 22-40.107
107
As discussed above, see supra notes 12-13 and accompanying
text, Commerce requires SRAs from NME respondents to rebut the
presumption of government control. SolarWorld has no statutory
claim to require Commerce to apply this presumption in a
particular way, or indeed to require Commerce to apply it at
all. The presumption of government control does not appear in
the statute. It is a policy espoused by Commerce to effectuate
19 U.S.C. § 1677b(c), see Commerce Policy 5.1, supra note 14,
which in turn simply grants Commerce permission to disregard NME
respondents’ actual home market prices where the agency
determines that “available information does not permit the
normal value of the subject merchandise to be determined under
[19 U.S.C. § 1677b(a), i.e., by using “the price at which the
foreign like product is first sold . . . for consumption in the
exporting [or a third] country].” 19 U.S.C. § 1677b(c)(1). (Not
only does the statute omit any mention of a “countrywide rate,”
it moreover requires Commerce to calculate individual dumping
(footnote continued . . .)
Consol. Ct. No. 13-00012 Page 44
Specifically, SolarWorld challenges (1) Commerce’s determination
to grant separate-rate status to certain companies that either
did not disclose the full extent of their ownership or “for whom
[China’s State-Owned Assets Supervision and Administration
Commission (‘SASAC’)] appears at some point in the chain of
ownership,”108 arguing that these companies categorically failed
margins “for each known exporter and producer of the subject
merchandise.” 19 U.S.C. § 1677f-1(c)(1). The only exception to
this rule is the “large number” exception, pursuant to which
Commerce may limit its investigation to a set of representative
respondents and assign to all remaining respondents the “all
others” rate (usually an average of the individually-examined
respondents’ rates). See id. at §§ 1677f-1(c)(2); 1673d(c)(5).)
While the presumption of NME government control is a policy
within Commerce’s sound discretion, see Sigma, 117 F.3d
at 1405-06 (holding that “it was within Commerce’s
[discretionary] authority to employ a presumption of state
control for exporters in a nonmarket economy” because “[t]he
antidumping statute recognizes a close correlation between a
nonmarket economy and government control of prices, output
decisions, and the allocation of resources”) (citing 19 U.S.C.
§§ 1677(18)(B)(iv)-(v)), its application must necessarily be as
fact-intensive and as flexible as the circumstances demand.
See, e.g., Cope v. Scott, 45 F.3d 445, 450 (D.C. Cir. 1995)
(“[F]lexibility is the essence of [agency] discretion.”).
See also Jiangsu Changbao Steel Tube Co. v. United States,
__ CIT __, 884 F. Supp. 2d 1295, 1311-12 & n.21 (2012) (opining
that, although Commerce’s NME presumptions were upheld by the
decision in Sigma in 1997, the issue may be worth revisiting);
Qingdao Taifa Grp. Co. v. United States, __ CIT __,
760 F. Supp. 2d 1379, 1384-85 (2010) (holding that Commerce’s
reliance on a presumption of government control, without
evidence, is incompatible with the agency’s duty to support its
decision with substantial evidence).
108
I&D Mem. cmt. 6 at 26 (discussing the Petitioner’s (i.e.,
SolarWorld’s) argument); see id. at Table of Abbreviations and
Acronyms (deacronymizing “SASAC”).
Consol. Ct. No. 13-00012 Page 45
to rebut the presumption of de jure government control;109 and
(2) Commerce’s determination to grant separate-rate status to
certain companies whose chain of ownership included the SASAC,
the Communist Party of China (“CPC”), the National People’s
Congress (“NPC”), and/or the Chinese People’s Political
Consultative Conference (“CPPCC”), contending that the record
does not support Commerce’s findings that these companies
operated free from de facto “direct government involvement in
the activities of the board members or in the day to day
operations of the company”110 during the POI, and claiming that
Commerce improperly failed to address “significant arguments and
evidence which seriously undermine[] its reasoning and
conclusions.”111
Commerce has requested a voluntary remand to
reevaluate the evidence and reconsider the separate rate
eligibility of four specific separate-rate recipients whose
separate-rate status SolarWorld challenged.112 As this motion is
109
See SolarWorld’s Br., ECF No. 44, at 22-33.
110
I&D Mem. cmt. 6 at 32 (discussing de facto findings
challenged by SolarWorld).
111
Pet’r-Pl. [SolarWorld]’s Reply to Resps. to SolarWorld’s Rule
56.2 Mot. for J. on the Agency R., ECF Nos. 73 (conf. version)
& 74 (pub. version), at 12 (quoting Altx, Inc. v. United States,
370 F.3d 1108, 1113 (Fed. Cir. 2004)). See SolarWorld’s Br.,
ECF No. 44, at 33-40.
112
Def.’s Mot., ECF No. 81, at 2.
Consol. Ct. No. 13-00012 Page 46
both unopposed and based on a “substantial and legitimate”
concern,113 Commerce’s motion for a voluntary remand to
reconsider the separate rate eligibility of these four
respondents is granted. SolarWorld’s remaining challenges to
Commerce’s grant of separate rates in this case are addressed in
turn below.
A. Commerce’s De Jure Determinations
1. De Jure Autonomy of Companies Indirectly Owned by
China’s SASAC
SolarWorld argues that four of the separate-rate
recipients failed to establish de jure autonomy from the PRC
government because, although none of these companies is directly
owned by China’s SASAC, the SASAC appears at some point in these
companies’ chain of ownership, such as when the company is owned
113
See SKF USA Inc. v. United States, 254 F.3d 1022, 1029
(Fed. Cir. 2001) (“[E]ven if there are no intervening events,
the agency may request a remand (without confessing error) in
order to reconsider its previous position. . . . [I]f the
agency’s concern is substantial and legitimate, a remand is
usually appropriate.”). Here, Commerce’s stated concern is
consistency of agency action with “other pending cases where a
similar issue is presented.” Def.’s Mot., ECF No. 81, at 3
(citing Diamond Sawblades Mfrs.’ Coalition v. United States,
Ct. No. 13-00078 and Diamond Sawblades Mfrs.’ Coalition v.
United States, Ct. No. 13-00241, and noting that the court
granted a similar remand request in Ct. No. 13-00078) (citing
Diamond Sawblades Mfrs.’ Coalition v. United States, Slip Op.
14-50, 2014 WL 1673757 (CIT Apr. 29, 2014)).
Consol. Ct. No. 13-00012 Page 47
by other companies that are in turn SASAC-owned.114 Because this
portion of SolarWorld’s challenge concerns the same four
respondents with respect to whose separate rate eligibility the
court has now granted Commerce’s voluntary remand request,115 the
court will reserve judgment in this respect until Commerce has
had an opportunity to effect its reconsideration and the parties
have had an opportunity to submit their comments. In the
interest of expedition, however, some clarification may be
114
See SolarWorld’s Br., ECF No. 44, at 27 (naming the four
separate-rate recipients whose separate-rate status is
challenged based on these companies’ links to SASAC); I&D Mem.
cmt. 6 at 26 (noting that “these companies are not directly
owned by SASAC,” but rather these companies “are owned by SASAC-
owned companies or for whom SASAC appears at some point in the
chain of ownership”). According to SolarWorld’s uncontested
description of this institution, the SASAC is “a central
governmental body in China” that was “created to represent the
state’s shareholder interests in state-owned enterprises
(‘SOEs’).” SolarWorld’s Br., ECF No. 44, at 27 (quotation marks
and citation to SolarWorld’s submission to Commerce below
omitted). SolarWorld argues that Commerce’s findings of je dure
autonomy with regard to companies owned by other companies that
are in turn owned by the SASAC (or for whom SASAC may appear at
some point in the chain of ownership) are not supported by
substantial evidence because certain provisions of Chinese laws
and regulations “confer upon SASAC the authority to appoint or
remove the responsible persons of its invested enterprises,” id.
at 30 (quotation and alteration marks and citation omitted); to
“nominate candidates for the director of the board or
supervisor” and “instruct those directors/representatives to
exercise voting rights in accordance with SASAC’s instructions,”
id. (quotation marks and citation omitted); and generally
provide investors, including the government, with the power to
intervene in companies’ operations in a variety of ways. See id.
at 29-31.
115
Compare SolarWorld’s Br., ECF No. 44, at 27, with Def.’s
Mot., ECF No. 81, at 2.
Consol. Ct. No. 13-00012 Page 48
relevant here.
Specifically, SolarWorld argues that Commerce gave
insufficient weight to evidence that Chinese laws permit the
government to intervene in Chinese companies’ operations in a
variety of ways.116 But by definition, the laws of an NME
country will generally permit the government of such country to
intervene in the operations of its companies.117 Thus to require
NME companies to prove complete legal autonomy would introduce
an internal inconsistency into the analysis. Instead, as
Commerce explained in this case,118 the agency determines whether
116
See SolarWorld’s Br., ECF No. 44, at 29-32. See, e.g., id.
at 30 (arguing that Chinese laws and regulations “make clear
that there is a de jure possibility of a general manager
appointed by a board under SASAC’s effective control”)
(quotation marks and citation omitted; emphasis added).
117
See 19 U.S.C. § 1677(18)(A) (defining “nonmarket economy
country” as a foreign country that “does not operate on market
principles of cost or pricing structures”); Qingdao Taifa Grp.
Co. v. United States, 33 CIT 1090, 1101, 637 F. Supp. 2d 1231,
1243 (2009) (“The statute applies special rules to NME countries
because prices and costs are not reliable in valuing goods from
NME countries ‘in view of the level of intervention by the
government in setting relative prices.’”) (quoting ICC Indus.,
Inc. v. United States, 812 F.2d 694, 697 (Fed. Cir. 1987))
(additional citations omitted).
118
Admittedly, Commerce’s articulation of its separate-rates
analysis has not been a model of clarity. Cf., e.g., Advanced
Tech. & Materials Co. v. United States, Slip Op. 11-122,
2011 WL 5191016, at *13 (CIT Oct. 12, 2011) (“Advanced Tech I”)
(remanding Commerce’s separate-rates analysis because the court
could not decide on the reasonableness of Commerce’s practice in
this regard “without [Commerce]’s full explanation of [this]
practice, which [was] not evident from [the] determination
(footnote continued . . .)
Consol. Ct. No. 13-00012 Page 49
the legal possibility exists to permit the company in question
to operate as an autonomous market participant, notwithstanding
any residual authority for potential governmental
intervention,119 and if so, whether that company should be
exempted from the NME system-wide analysis because it in fact
[at issue in that case] (or any other, for that matter)”);
Advanced Tech. & Materials Co. v. United States, __ CIT __,
885 F. Supp. 2d 1343, 1350-53 (2012) (“Advanced Tech II”)
(adjudicating challenges to the results of the remand ordered in
Advanced Tech I, and opining that Commerce’s separate-rates
analysis appeared to conflate the de jure and de facto analyses
where Commerce did not clearly articulate the focus of its
determination and failed to delineate whether Chinese law
created actual restrictions on individual firms’ export price-
setting autonomy or merely allowed for the possibility thereof).
119
See I&D Mem. cmt. 6 at 26 (“The existence of government
ownership does not necessarily indicate de jure control over
pricing decisions . . . . [A]n absence of de jure government
control over [export] activities [may be demonstrated] through
the absence of restrictive stipulations associated with the
companies’ business licenses and export certificates of approval
. . . .”); cf., e.g., Issues & Decision Mem., Certain Circular
Welded Carbon Quality Steel Line Pipe from [the PRC], A-570-935,
AD Investigation (Mar. 23, 2009) (adopted by 74 Fed. Reg. 14,514
(Dep’t Commerce Mar. 31, 2009) (final determination of sales at
less than fair value)) cmt. 11 at 20 (granting a separate-rate
application, over petitioners’ objections, because there was
credible record evidence that the respondent in question was
both legally permitted to operate autonomously in managing its
production and pricing, and in fact did so operate, and
explaining that “[t]he information submitted by petitioners
addresse[d] only speculative and potential control by SASAC over
[this respondent]”) (emphasis added). When the de jure analysis
is properly construed in this way, it is not clear that Commerce
regularly conflates its de jure and de facto government control
analyses, as SolarWorld suggests. See SolarWorld Br.,
ECF No. 44, at 32-33 (relying on Advanced Tech II, __ CIT __,
885 F. Supp. 2d 1343); see also supra note 118 (providing
context for Advanced Tech II).
Consol. Ct. No. 13-00012 Page 50
managed its production, pricing, and profits as an autonomous
market participant.120 Here, Commerce first determined that, as
a matter of de jure possibility, the respondents in question
could have acted as sufficiently autonomous market participants
to deserve separate rates; then, having made this threshold
determination, Commerce determined that the evidence in the
record reasonably supported the conclusion that these
respondents in fact did act sufficiently autonomously in terms
of managing production and profit and setting prices during the
POI.121
120
See I&D Mem. cmt. 6 at 26 (“[Commerce] has recognized, over
time, that within the NME entity, companies exist which are
independent from government control to such an extent that they
can independently conduct export activities.”) (citing Separate-
Rates Practice in Antidumping Proceedings Involving Non-Market
Economy Countries, 69 Fed. Reg. 77,722 (Dep’t Commerce Dec. 28,
2004) (“Separate-Rates Practice”)). See also Separate-Rates
Practice, 69 Fed. Reg. at 77,723 (“[Commerce’s separate-rates]
test focuses on controls over the decision-making process on
export-related investment, pricing, and output decisions at the
individual firm level.”) (citations omitted); Fujian Mach. &
Equip. Imp. & Exp. Corp. v. United States, 25 CIT 1150, 1174,
178 F. Supp. 2d 1305, 1331 (2001) (“The essence of a separate
rates analysis is to determine whether the exporter is an
autonomous market participant, or whether instead it is so
closely tied to the communist government as to be shielded from
the vagaries of the free market.”) (footnote omitted).
121
See Prelim. Results, 77 Fed. Reg. at 31,316-17 (unchanged in
the Final Results, 77 Fed. Reg. at 63,794); I&D Mem. cmt. 6
at 26-27, 31-33. Thus in this case, the path of Commerce’s
analysis may be reasonably discerned. See, e.g., I&D Mem. cmt. 6
at 27 (finding a permissive de jure space for export pricing
autonomy by emphasizing evidence that the PRC government’s reach
did not extend “as a matter of law to such day-to-day activities
(footnote continued . . .)
Consol. Ct. No. 13-00012 Page 51
Commerce requests and is granted permission to
reconsider the record evidence regarding whether certain
respondents were sufficiently autonomous from the Chinese
government in the conduct of their export activities as to
qualify for rates separate from the PRC-wide entity. In doing
so, Commerce need not require proof of complete freedom from any
mere legal possibility of government control.
2. De Jure Autonomy of Companies that Did Not Disclose
the Full Extent of their Ownership
SolarWorld also argues that Commerce’s decision to
grant separate-rate status to certain respondents that did not
provide exhaustive details of their indirect ownership was
unreasonable and arbitrary in light of Commerce’s prior
practice.122 Specifically, SolarWorld argues that a number of
respondents who received separate rates “revealed that they were
ultimately held by a legal entity, such as a holding company or
limited partnership,” but then “failed to disclose the
as export pricing of the companies in question”); id. at 32
(“[Commerce] issued supplemental questionnaires to numerous
separate rate respondents and reviewed the respondents’ SRAs and
supplemental questionnaire responses and found no evidence of
direct government involvement in the decisions of the board
members, the selection of management, or in the operations of
any respondents granted a separate rate in the [Prelim. Results,
77 Fed. Reg. at 31,316-17].”).
122
SolarWorld’s Br., ECF No. 44, at 24-27.
Consol. Ct. No. 13-00012 Page 52
controlling shareholders of such entities.”123 SolarWorld
contends that Commerce must deny separate-rate status to
respondents “who failed to report the ultimate owner(s) of their
parent company because the ultimate ownership of the company
could point to relevant government control.”124
In response, Commerce explains that the weight of the
evidence on record supports the agency’s determination that
these separate-rate recipients operated their export activities
independently of government control during the POI.125 Commerce
emphasizes that the agency is neither required, nor permitted by
its resource constraints, to exhaustively detail every aspect of
a company’s indirect ownership when the evidence is otherwise
sufficient to reasonably find the existence of relevant autonomy
over export activities.126
123
Id. at 24. See also id. (“The companies that failed to
provide sufficient evidence to rebut the presumption of
government control by not providing ownership information are
Trina [Solar]; Chint Solar; Shanghai BYD; Solarone Qidong;
Solarone Hong Kong; Motech; tenKsolar; Zhejiang Jiutai;
CEEG Shanghai; Jatison Solar; CSG PV; CEEG Nanjing; Ningbo
Komaes; and China Sunergy.”).
124
I&D Mem. cmt. 6 at 31 (discussing SolarWorld’s argument in
this regard).
125
Id. at 31-33.
126
Id.; Def.’s Br., ECF No. 55, at 47; Oral Arg. Tr.,
ECF No. 83, at 36-37 (emphasizing that Commerce requested and
received “substantial information from these companies regarding
their owners, their direct owners and the owners of those
companies[,] and with respect to companies that are listed on
(footnote continued . . .)
Consol. Ct. No. 13-00012 Page 53
For example, Trina Solar – a Defendant-Intervenor in
this action and one of the respondents whose separate-rate
status is challenged by SolarWorld on grounds of failure to
provide exhaustive details of ultimate ownership127 – submitted
evidence, which was verified by Commerce, that its parent
company is a foreign entity incorporated outside of China,128 in
the Cayman Islands, which “has been listed on the New York Stock
Exchange since December 2006.”129 Ownership of this parent
public exchanges or owned by companies that are listed Commerce
did ask for some information regarding shareholders [but it did
not] obtain information regarding every single shareholder from
every single entity that might be in that [ownership] chain,”
and arguing that doing the latter was “not a requirement here”
because “at some point Commerce has to draw the line”); id.
at 37 (noting that, for “most companies,” Commerce requested
information regarding “the top ten shareholders”); id. (arguing
that requiring Commerce to exhaustively investigate every single
entity in a respondent company’s ownership chain, no matter how
far removed, would “require Commerce to conduct an inquiry that
is far more robust than Commerce could in fact conduct given the
time constraints and administrative burdens that it has”).
127
See supra note 123 (quoting SolarWorld’s list of separate-
rate recipients challenged on this ground).
128
In Commerce’s practice, a full separate-rate analysis is
generally considered unnecessary for wholly foreign-owned
companies. See, e.g., Petroleum Wax Candles from the [PRC],
72 Fed. Reg. 52,355, 52,356 & n.3 (Dep’t Commerce Sept. 13,
2007) (final results of antidumping duty administrative review).
129
Verification of the Sales & Factors of Prod. Info. Submitted
by [Trina Solar], [CSPC], Whether or Not Assembled into Modules,
from the [PRC], A-570-979, AD Investigation (July 19, 2012)
(“Trina Solar Verif. Rep.”), reproduced in App. to Def.-
Intervenor [Trina Solar]’s Resp. to Pet’r-Pl.’s Rule 56.2 Mot.
for J. on the Agency R., ECF Nos. 68 & 68-1 (conf. version) & 70
(pub. version), at Tab 5, at 5.
Consol. Ct. No. 13-00012 Page 54
company was in turn revealed to be “in two forms: ordinary
shares and ADRs [American Depository Receipts] (one ADR is the
equivalent of 50 ordinary shares),”130 and Commerce examined the
ordinary share ownership, which was tracked by the parent
company’s “secretary company,” and the ownership of ADRs by
institutional shareholders, which was “tracked by Ipreo, a
market intelligence company, at the beginning of the POI, and by
Bank of New York Mellon at the end of the POI.”131 Although
Trina Solar was unable to identify the ultimate shareholders of
its parent company’s largest shareholder, and noted that
“holders of ADRs are not obligated to identify their individual
shareholders,”132 Commerce found that the evidence was sufficient
to conclude that there was no “Chinese government ownership
among [Trina Solar’s parent company’s] top 75 institutional
shareholders or among the largest ordinary shareholders, which
together represent approximately 70 percent of all outstanding
shares of [Trina Solar’s publicly traded non-Chinese parent
company].”133
130
Id. at 6.
131
Id.
132
Id.
133
Id.
Consol. Ct. No. 13-00012 Page 55
In another example, Hanwha Solarone (Qidong) Company,
Limited (“Hanwha”) – another Defendant-Intervenor/respondent in
this action whose separate-rate status SolarWorld challenges on
grounds of failure to provide exhaustive details of ultimate
ownership134 – submitted evidence that, during the POI, it was
wholly owned by a company domiciled in Hong Kong, which was in
turn wholly owned by a company domiciled in the British Virgin
Islands, which was in turn wholly owned by a company registered
in the Cayman Islands and listed on the NASDAQ exchange.135
The Government maintains that, as with Trina Solar and
Hanwha, Commerce obtained sufficient information regarding the
ownership of each separate-rate recipient in this investigation
to reasonably conclude that the Chinese government did not
exercise control over these companies’ export activities during
the POI.136 And while SolarWorld speculates that,
134
Hanwha is referred to in SolarWorld’s brief as “Solarone
Qidong” and “Solarone Hong Kong.” See supra note 123 (quoting
SolarWorld’s list of separate-rate recipients challenged on this
ground); [Hanwha’s] Resp. Br. in Opp’n to Pet’r-Pl.’s Rule 56.2
Mot. for J. on the Agency R., ECF No. 63 (“Hanwha’s Br.”), at 1
n.1 (explaining name discrepancy).
135
Hanwha’s Br., ECF No. 63, at 2-3 (quoting [Hanwha’s] Separate
Rate Application, [CSPC], Whether or Not Assembled into Modules,
from the [PRC], A-570-979, AD Investigation (Jan. 17, 2012),
reproduced in Ex. 1 to App. to [Hanwha’s Br.], ECF No. 65
at Doc. 1 Ex. 1, at 8-9).
136
See supra note 126; see also Oral Arg. Tr., ECF No. 83, at 36
(emphasizing that, for each separate-rate recipient, Commerce
(footnote continued . . .)
Consol. Ct. No. 13-00012 Page 56
notwithstanding all this evidence, the Chinese government is
nevertheless exerting control over these companies through
ownership of shares at least two steps removed from the
companies themselves (e.g., in the case of Trina Solar, shares
invested in a company which in turn holds shares in a company
which ultimately owns the company in question), Commerce has
determined that the weight of the evidence suggests the contrary
conclusion, and SolarWorld has not pointed to any specific non-
speculative evidence to cast doubt upon this determination.137
Accordingly, because Commerce has considered and relied upon
sufficient evidence to reasonably support the agency’s
conclusion that the respondents in question were sufficiently
autonomous from government control over their export activities
to qualify for a separate rate, and because SolarWorld presents
no specific evidence to impugn these reasonable determinations,
received “documentation of price negotiations and other
interactions with customers . . .; bank statements, financial
documents, articles of incorporation, [and, in many instances,]
documentation of ownership by foreign entities”).
137
See SolarWorld’s Br., ECF No. 44, at 25 (speculating that “it
is impossible to fully explore the issue of control unless all
of a company’s government ownership is revealed” but identifying
no evidence to impugn the sufficiency of the evidence considered
by Commerce when inferring that the likelihood of indirect
Chinese government control of these companies was too small to
warrant a fully exhaustive inquiry into indirect ownership,
beyond the extensive inquiry already performed by the agency).
Consol. Ct. No. 13-00012 Page 57
Commerce’s findings with regard to these separate-rate
recipients are supported by substantial evidence.
SolarWorld also argues that Commerce’s decision to
grant separate-rate status to these respondents was arbitrary
because, in the past, Commerce has denied such status to
respondents who submitted ownership evidence that was later
contradicted at verification.138 But the issue presented here is
not analogous to the prior decisions on which SolarWorld relies
because the respondents in those cases had submitted ownership
information that was contradicted at verification, whereas here
there was no similar impeachment of any of the evidence
submitted by the challenged separate-rate recipients.139
138
See id. at 26 (relying on Issues & Decision Mem., Certain
Frozen Warmwater Shrimp from the [PRC], A-570-893, NSR 2/06-7/06
(Dec. 17, 2007) (adopted by 72 Fed. Reg. 72,668 (Dep’t Commerce
Dec. 21, 2007) (final rescission of antidumping duty new shipper
review)) (“Shrimp from China New Shipper”) cmt. 1; Issues &
Decision Mem., Porcelain-on-Steel Cooking Ware from the [PRC],
A-570-506, ARP 03-04 (Apr. 21, 2006) (adopted by 71 Fed. Reg.
24,641 (Dep’t Commerce Apr. 26, 2006) (notice of final results
of antidumping duty administrative review)) (“Cooking Ware from
China”) cmt. 1).
139
Cf. Shrimp from China New Shipper cmt. 1 at 7-9 (detailing
the information that was discredited at verification, including
information relating to the respondent’s “sales negotiation and
sales execution process”); Cooking Ware from China cmt. 1 at 4-5
(explaining that the respondent in that case provided evidence
at verification that contradicted the evidence it had previously
submitted, and that verification produced evidence of a material
undisclosed affiliation, which the respondent had concealed by
refusing to answer Commerce’s repeated requests for
information).
Consol. Ct. No. 13-00012 Page 58
In both of the prior cases upon which SolarWorld’s
argument relies, the record revealed material discrepancies
between the information initially provided by the respondents
and that ultimately obtained at verification.140 These material
discrepancies impugned the reliability of evidence that had been
previously accepted to preliminarily rebut the presumption of
government control. Finding such evidence to have been
discredited, Commerce found that the record did not contain
reliable evidence to rebut the presumption of government
control, and accordingly denied those respondents separate-rate
status.141
140
See supra note 139.
141
Compare Shrimp from China New Shipper cmt. 1 at 10
(“[Commerce] found at verification information contrary to [the
respondent’s] description of the sales negotiation and sales
execution process . . . . As a result, [this respondent] has
not affirmatively proven that it is free from de facto
government control . . . .”), and Cooking Ware from China cmt. 1
at 5 (“[The respondent in question] did not disclose the
existence of an affiliate despite [Commerce]’s numerous requests
both in its questionnaires and at verification to identify any
affiliates . . . . Because [this respondent] chose not to
disclose the existence of this affiliate, and it was not
discovered until the middle of [the respondent]’s one-week
verification, [Commerce] was not able to fully question and
consider this affiliate’s relationship with the PRC government
through written questions and at verification.”); id. at 6
(“[Because this respondent] withheld information requested by
[Commerce] and significantly impeded the proceeding by not
providing accurate or complete responses to [Commerce]’s
questions regarding the identity of the respondent’s
affiliates[,] . . . we find that [this respondent] did not
affirmatively demonstrate that it operates free of government
(footnote continued . . .)
Consol. Ct. No. 13-00012 Page 59
Here, on the other hand, the record contains credible
evidence – which was not subsequently invalidated or discredited
– of a de jure space for the respondents’ de facto autonomy from
government control. Based on this evidence, Commerce concluded
that the presumption was rebutted.142 Specifically, the
respondents “placed on the record laws, regulations, business
licenses, export licenses, and other documents demonstrating
[sufficient] de jure independence from the government on the
relevant issues”143 to satisfy Commerce’s threshold inquiry, and
control.”), with supra notes 126 and 136 and accompanying text
(detailing the extent of unimpeached evidence relied on by
Commerce in granting separate-rate status to the challenged
recipients).
142
See Prelim. Results, 77 Fed. Reg. at 31,316-17 (discussing
the evidence). Because a presumption is not evidence,
see, e.g., Amanda Foods (Vietnam) Ltd. v. United States,
__ CIT __, 714 F. Supp. 2d 1282, 1295 (2010) (discussing
relevant case law analyzing the evidentiary status of
presumptions) (quoting, inter alia, A.C. Aukerman Co. v. R.L.
Chaides Constr. Co., 960 F.2d 1020, 1037 (Fed. Cir. 1992) (“[A]
presumption compels the production of [a] minimum quantum of
evidence from the party against whom it operates, nothing more.
In sum, a presumption is not evidence.”) (citation omitted)),
the presence of any credible rebutting evidence dispenses with
the presumption, such that only conflicting evidence may now
weigh against the evidence submitted in support of separate-rate
eligibility. Put differently, the question presented here
concerns the reasonableness of Commerce’s weighing of the
totality of reliable evidence before it, whereas that presented
in Shrimp from China New Shipper and Cooking Ware from China
concerned Commerce’s resort to a presumption in the absence of
any reliable evidence at all.
143
I&D Mem. cmt. 6 at 31 (citing Prelim. Results, 77 Fed. Reg.
at 31,317).
Consol. Ct. No. 13-00012 Page 60
therefore to reasonably support Commerce’s decision to move on
to consider whether these companies in fact availed themselves
of the autonomy that these legal documents appear to permit.
Given these circumstances, Commerce reasonably determined that
its threshold de jure criteria were satisfied by the challenged
separate-rate recipients who submitted sufficient proof of legal
autonomy without providing even more extensive information
regarding their ultimate chain of ownership (e.g., not reporting
some far-removed ultimate owner(s) of their respective parent
companies), and the agency moved on to examining the evidence of
these companies’ de facto autonomy. As Commerce explained,
“[a]bsent evidence of de facto control over a company’s export
activities, even if one of the respondents in question had
identified the government among one of its ultimate owners,
government ownership alone would not have warranted denying the
company separate rate status.”144 Accordingly, Commerce’s
144
I&D Mem. cmt. 6 at 31-32. See also id. at 33 (quoting
Structural Steel Beams from the [PRC], 66 Fed. Reg. 67,197,
67,199 (Dep’t Commerce Dec. 28, 2001) (notice of preliminary
determination of sales at less than fair value and postponement
of final determination) (“As stated in [Silicon Carbide from
China, 59 Fed. Reg. at 22,587], ownership of the company by a
state-owned enterprise does not require the application of a
single rate.”) (unchanged in the final determination, 67 Fed.
Reg. 35,479 (Dep’t Commerce May 20, 2012) (notice of final
determination of sales at less than fair value))); id. at 32
(explaining that Commerce “found no evidence of direct [de
facto] government involvement in the decisions of the board
members, the selection of management, or in the operations of
(footnote continued . . .)
Consol. Ct. No. 13-00012 Page 61
challenged de jure determinations with regard to these
respondents are also sustained.145
any respondents granted a separate rate in the [Prelim. Results,
77 Fed. Reg. at 31,316-17]”).
145
SolarWorld also makes a policy argument that the effect of
denying separate rates when ownership information proves
unverifiable, as in Shrimp from China New Shipper and Cooking
Ware from China, combined with permitting respondents to receive
separate rates without complete ownership disclosure, will be to
encourage respondents to withhold relevant information.
SolarWorld’s Br., ECF No. 44, at 27. But this argument
overlooks a crucial distinction between the facts of this case
and those of Shrimp from China New Shipper and Cooking Ware from
China. In those prior cases, the respondents in question either
submitted contradictory information in response to Commerce’s
specific requests, or else withheld information specifically
requested of them. See, e.g., Shrimp from China New Shipper
cmt. 1 at 7-8 (explaining that the respondent in question had
withheld ownership information that had been specifically and
repeatedly requested by Commerce, which then ultimately did not
come to light until verification); id. at 8 (“[Commerce] found
at verification information contrary to [the separate-rate
applicant’s] description of the sales negotiation and sales
execution process . . . .”); Cooking Ware from China cmt. 1 at 5
(explaining that the respondent in question “did not disclose
the existence of an affiliate despite [Commerce]’s numerous
requests both in its questionnaires and at verification to
identify any affiliates . . . .”); see also I&D Mem. cmt. 6
at 32 n.117 (noting these distinctive facts). Here, by
contrast, the challenged separate-rate recipients neither
withheld any information in response to Commerce’s follow-up
questionnaires nor submitted any information that was later
discredited. Rather, Commerce concluded that the evidence
submitted in support of these respondents’ claims to de jure
autonomy during the POI was sufficient for that determination,
and did not seek any additional information. This in no way
limits Commerce’s authority to request relevant information and
respond appropriately to a respondent’s failure to provide such
information. Accordingly, this is not a case that will
“incentivize respondents to withhold information from the agency
completely,” SolarWorld Br., ECF No. 44, at 27, because this
matter does not affect respondents’ incentives to provide the
(footnote continued . . .)
Consol. Ct. No. 13-00012 Page 62
B. Commerce’s De Facto Autonomy Determinations
SolarWorld additionally argues that Commerce
improperly granted separate-rate status to certain respondents
whose senior managers and/or board directors held membership or
positions in certain state-owned enterprises or governmental
entities during the POI. Essentially, SolarWorld believes that
the potential for governmental control through such managers or
board directors categorically precludes a finding that such
companies in fact acted autonomously in conducting their own
export activities.146 The core of SolarWorld’s argument is that
information requested of them.
146
See SolarWorld’s Br., ECF No. 44, at 34-40 (relying on
[SolarWorld’s] Case Br. on Gen. Issues, [CSPC], Whether or Not
Assembled into Modules, from the [PRC], A-570-979,
AD Investigation (July 30, 2012) (“SolarWorld’s Case Br.”),
reproduced in SolarWorld’s App., ECF Nos. 46 & 47 at Tab. 19,
at 88-114). Cf., e.g., SolarWorld’s Case Br., ECF Nos. 46 & 47
at Tab. 19, at 93 (arguing that a certain respondent failed to
demonstrate relevant de facto autonomy because a manager who
also held positions within the parent state-owned enterprise had
“the legal authority” to influence the company’s decisions); id.
at 96 (arguing that another respondent failed to demonstrate
relevant de facto autonomy because its Articles of Association
“authorize” decision-making by persons who may also hold
positions in state-owned enterprises); id. at 99 (arguing the
same with regard to another respondent); id. at 102-03 (arguing
that companies whose senior managers and board members include
members of the NPC should be categorically denied separate-rate
status because “NPC members are government officials and can
control a company’s export activities when in senior management
positions of a company”) (emphasis added); id. at 103-05
(arguing that certain respondents failed to demonstrate relevant
de facto autonomy because these companies employ high-level
officials who are members of the NPC); id. at 106-13 (arguing
(footnote continued . . .)
Consol. Ct. No. 13-00012 Page 63
these respondents failed to establish de facto autonomy because
1) some of these companies’ shareholders are SOEs (i.e., wholly
state-owned companies), with the power to recommend or appoint
the company’s board members and senior managers; and 2) some of
these companies’ senior managers or board directors
contemporaneously also held membership or positions within
organizations such as the CPC, NPC, and/or CPPCC.147 But these
facts alone are not dispositive of the de facto autonomy
inquiry, because they speak solely to the possibility for
governmental control over export activities through these
persons, not whether such control was in fact reasonably likely
to have been exercised during the POI.
Fundamentally, SolarWorld’s arguments regarding the de
facto autonomy of the challenged separate-rate recipients suffer
from the same analytical defect as its arguments regarding de
jure autonomy – namely that, in an NME country, there will
usually be state involvement and authority to intervene in
that certain respondents failed to demonstrate relevant de facto
autonomy because some of their company officials are also
government officials, implying the possibility of effective
government control of these companies’ export activities through
these officials).
147
See SolarWorld’s Br., ECF No. 44, at 34-40 (relying on
SolarWorld’s Case Br., ECF Nos. 46 & 47 at Tab 19); SolarWorld’s
Case Br., ECF Nos. 46 & 47 at Tab 19, at 89-113.
Consol. Ct. No. 13-00012 Page 64
commercial affairs.148 But this fact alone does not necessarily
lead to the conclusion that all NME producers and exporters
should be categorically treated as in fact setting their prices
according to some centralized strategy.149
Here, each of the challenged separate-rate recipients
submitted evidence that “(1) [t]heir [export prices] are not set
by, and are not subject to, the approval of a governmental
agency; (2) they have authority to negotiate and sign contracts
and other agreements; (3) they have autonomy from the government
in making decisions regarding the selection of management; and
(4) they retain the proceeds of their export sales and make
independent decisions regarding the disposition of profits or
148
Cf., e.g., Advanced Tech II, __ CIT at __, 885 F. Supp. 2d
at 1355 (“‘[G]overnmental control’ in the context of the
separate rate test appears to be a fuzzy concept . . . since a
‘degree’ of it can obviously be traced from the controlling
shareholder [which is often a state-owned enterprise], to the
board, to the general manager, and so on along the chain to
‘day-to-day decisions of export operations,’ including terms,
financing, and inputs into finished product for export.”);
see also id. at 1353-54 n.9 (“Commerce concluded that ‘SASAC
solely provides oversight and is not intended to direct day-to-
day business operation’ (italics added), but how can that be the
case if any SASAC-appointed/nominated ‘responsible person’ or
director or even manager within SASAC’s ‘invested enterprises’
(including ‘a company with State-owned equity’ . . .) has had a
hand or vote that results in ‘guiding’ or ‘supervising’ or
‘overseeing’ any of such enterprise’s operational activities
including its export activities? That is, where does
‘oversight’ end and ‘day-to-day business operation’ begin, or
does the exception swallow the rule?”).
149
See supra note 120 (quoting relevant authorities).
Consol. Ct. No. 13-00012 Page 65
financing of losses.”150 Moreover, “[a]ll of the separate rate
respondents at issue reported that neither SASAC nor the
government was involved in the activities of the board of
directors.”151
Upon examination of this record, Commerce concluded
that, despite SolarWorld’s challenges to the agency’s analysis
in the Preliminary Results, “the evidence placed on the record
of this investigation by the [s]eparate [r]ate [a]pplicants that
were granted separate rate status in the Preliminary
Determination [continues to demonstrate] both de jure and
de facto absence of government control with respect to each
company’s respective exports of the merchandise under
investigation.” Final Results, 77 Fed. Reg. at 63,794. “The
record does not show that the membership or position of senior
managers or board directors of certain [separate-rate
applicants] in [organizations such as the CPC, CPPCC, or NPC]
resulted in a lack of autonomy on the part of the respondent[s]
to set prices, negotiate and sign agreements, select management,
150
Prelim. Results, 77 Fed. Reg. at 31,316-17 (unchanged in the
Final Results, 77 Fed. Reg. at 63,794); I&D Mem. cmt. 6 at 31
(noting that all of the challenged separate-rate recipients
“provided information demonstrating an absence of de facto
control of their export activities”) (referencing the Prelim.
Results).
151
I&D Mem. cmt. 6 at 27 (footnote omitted).
Consol. Ct. No. 13-00012 Page 66
or decide how to dispose of profits or financing of losses,”
I&D Mem. cmt. 6 at 35, and “there is no record evidence of PRC
government direction with respect to the day-to-day export
related operations of any of the companies with senior board
members or managers in the CPC, CPPCC, [or] NPC . . . .” Id.
at 36.
Our standard of review does not require more.
Commerce has reasonably exercised its responsibility for
investigating, questioning, and verifying the respondents’
submitted data and evidence,152 as well as for determining the
appropriate treatment for producers and exporters from NME
countries.153 Because Commerce possesses both expertise and
relevant first-hand knowledge – sending follow-up questionnaires
and conducting on-sight verification as needed – the court will
152
See 19 U.S.C. §§ 1673b(b), 1673d(a); see also Max Fortune
Indus. Ltd. v. United States, __ CIT __, 853 F. Supp. 2d 1258,
1263 (2012) (“In an antidumping administrative review, Commerce
is the expert factfinder . . . .”) (citing Nippon Steel,
458 F.3d at 1358); British Steel PLC v. United States, 20 CIT
663, 702, 929 F. Supp. 426, 457 (1996) (“As the fact-finder in
these complex investigations, Commerce is charged with surveying
the record and making a determination; the agency’s decision
need not be the most correct, nor the one the Court would have
reached had the Court considered the evidence de novo.”)
(citations omitted).
153
See 19 U.S.C. § 1677b(c). Notably, the antidumping statute
exempts Commerce’s NME designations from judicial review, id.
at § 1677(18)(D), further supporting Commerce’s general
authority with regard to NME matters.
Consol. Ct. No. 13-00012 Page 67
not reweigh the evidence before the agency.154 Here, Commerce
relied on certifications from the companies, each of which
affirmed that they independently managed their own sales
negotiations and set their own export prices.155 As needed,
Commerce sent follow-up inquiries, all of which were answered to
Commerce’s satisfaction.156 The agency’s conclusion was that,
despite the systemic cross-contamination of personnel between
the government and the commercial sector within the PRC, these
companies exhibited sufficient localized control over their own
export activities during the POI to warrant individualized
154
Cf., e.g., Usinor Sacilor v. United States, 215 F.3d 1350
(Fed. Cir. 1999) (Table) (“Our review of the record indicates
that the [Court of International Trade] evaluated and weighed
the evidence in order to make its own [factual] determination
. . . . That was error. It was not proper for the court to
conclude that evidence that it considered ‘persuasive’ eclipsed
contrary evidence that Commerce thought persuasive.”) (citing
Trent Tube Div., Crucible Materials Corp. v. United States,
975 F.2d 807, 815 (Fed. Cir. 1992) (noting that a court
reviewing a factual determination for substantial evidence does
not reweigh the evidence or reconsider questions of fact anew);
Henry, 902 F.2d at 951 (noting that, when reviewing agency
determinations for, inter alia, whether such determinations are
supported by substantial evidence, “[i]t is not for this court
to reweigh the evidence before the [agency]”)).
155
See supra note 150 and accompanying text (quoting relevant
text from Commerce’s determinations in this proceeding).
156
See Prelim. Results, 77 Fed. Reg. at 31,317 (“[Commerce] has
examined the record, including responses to supplemental
questionnaires that were issued to a number of separate rate
applicants, and . . . determined to grant these companies a
separate rate.”) (unchanged in the Final Results, 77 Fed. Reg.
at 63,794).
Consol. Ct. No. 13-00012 Page 68
rates.157
Beyond emphasizing the legal and practical possibility
that the company officials who are also in some capacity
government officials could have influenced these companies’
export sales negotiations during the POI,158 SolarWorld has not
pointed to any specific evidence that, in influencing the
companies’ operations pursuant to their duties as company
officials (including through the selection of management and
preparation of profit distribution plans), these persons were
directing the companies’ export pricing decisions based on the
will of the PRC government.159 Commerce concluded that, on the
157
See id. In this case, where Commerce limited its
individualized examination pursuant to the “large number”
exception, see 19 U.S.C. § 1677f-1(c)(2), the individualized
rate for all non-individually examined separate-rate recipients
was the “all others” rate, see 19 U.S.C. § 1673d(c)(5).
See Prelim. Results, 77 Fed. Reg. at 31,318 (unchanged in the
Final Results, 77 Fed. Reg. at 63,795).
158
See supra notes 146 and 147 and accompanying text (discussing
SolarWorld’s specific arguments regarding de facto autonomy).
159
SolarWorld argues that requiring it to produce such evidence
in challenging Commerce’s grant of separate-rate applications
would impermissibly shift the burden of proof to the domestic
industry, when the burden is properly on the respondents to
rebut the presumption against their autonomy. See, e.g.,
SolarWorld Br., ECF No. 44, at 33; Sigma, 117 F.3d at 1406
(“[B]ecause exporters have the best access to information
pertinent to the ‘state control’ issue, Commerce is justified in
placing on them the burden of showing a lack of state control.”)
(quoting Zenith Elecs. Corp. v. United States, 988 F.2d 1573,
1583 (Fed. Cir. 1993) (“The burden of production should belong
to the party in possession of the necessary information.”)
(footnote continued . . .)
Consol. Ct. No. 13-00012 Page 69
evidence presented, it was more likely that these companies had
autonomy over their own export price negotiations, and that
grouping them within the countrywide entity would be accordingly
inappropriate.160 Commerce credited evidence, which was never
persuasively contradicted, that the companies themselves
negotiate and set their U.S. export prices, notwithstanding the
(citation omitted)). But, as previously mentioned,
see supra note 142 (discussing the evidentiary status of
presumptions), the submission of relevant credible evidence
(i.e., evidence that is both relevant to the presumed fact and
not subsequently discredited) disposes of the presumption, which
is not evidence and only operates in the absence of relevant
credible evidence. Here Commerce relied on evidence submitted
by the challenged separate-rate recipients, and the
investigation did not reveal – and SolarWorld does not point to
– any specific evidence to the contrary.
160
After all, the purpose of an antidumping duty order is solely
to encourage exporters to sell (and importers to buy) at fair
prices. See, e.g., Ad Hoc Shrimp Trade Action Comm. v. United
States, __ CIT __, 925 F. Supp. 2d 1367, 1373 (2013) (noting
that “the antidumping deposit [imposed upon publication of an
AD order, see 19 U.S.C. § 1673e(a)(3)] merely serves to provide
an incentive to ensure fair export prices”). The pertinent
inquiry, therefore, is who actually sets the export prices?
SolarWorld quotes a statement made by Commerce, in a 1997
investigation of merchandise from Ukraine, to suggest that
“[t]he purpose of applying one countrywide rate in an NME
context is to prevent an NME government from later circumventing
an antidumping order by controlling the flow of subject
merchandise through exporters which have the lowest margin.”
SolarWorld’s Br., ECF No. 44, at 23 (quoting Steel from Ukraine,
62 Fed. Reg. at 61,759). This is true as far as it goes. But
in the same document, Commerce explains that the essence of its
separate-rate analysis is whether, “considering the totality of
circumstances,” the respondents in question “had sufficient
independence in their export pricing decisions from government
control to qualify for separate rates.” Steel from Ukraine,
62 Fed. Reg. at 61,759 (emphasis added).
Consol. Ct. No. 13-00012 Page 70
dual roles played by some company officials as both company
managers and members of government, and the agency concluded
that these companies negotiated and set their U.S. export prices
during the POI separately, both from each other and from any
centralized countrywide mind. This conclusion is at least as
reasonable as the one SolarWorld suggests Commerce should have
reached instead – i.e., that the relatively low-level government
officials holding high-level positions within these companies
were in fact all conduits effectuating a countrywide
governmental price-setting scheme.
Accordingly, because Commerce’s conclusions regarding
these companies’ de facto autonomy to set export prices during
the POI are consistent with a reasonable reading of the record
presented here, these conclusions are supported by substantial
evidence, and are therefore sustained.
CONCLUSION
For all of the foregoing reasons, this matter is
remanded for reconsideration of the separate rate eligibility of
the four respondents named in Commerce’s request for voluntary
remand, consistent with this opinion. Commerce’s Final Results
are sustained against all other challenges presented in this
consolidated action. Commerce shall have until February 18,
2015, to file its remand results. The parties shall have until
Consol. Ct. No. 13-00012 Page 71
March 4, 2015, to file their comments, and until March 18, 2015,
to file any replies.
It is SO ORDERED.
_____/s/ Donald C. Pogue_____
Donald C. Pogue, Senior Judge
Dated: November 20, 2014
New York, NY