United States Court of International Trade

Slip Op. 20-149

Before the Court in Canadian Solar Inc., et. al., v. United States, et. al., Court No. 18- 00184, Slip Op. 20-149 (October 19, 2020) was a challenge to Commerce’s redetermination findings in an administrative review of the countervailing duty order on crystalline silicon photovoltaic cells from China. Plaintiffs specifically challenge the findings that “the provision of aluminum extrusions and electricity are countervailable subsidies and Commerce’s refusal to accept Canadian Solar’s import data in setting the benchmark for polysilicon.” Id. at 3. Defendant-Intervenor, SolarWorld, challenged Commerce’s finding that the respondents did not benefit from the Export Buyer’s Credit Program and contested Commerce’s revised benchmark for aluminum extrusions. For the following reasons, the Court sustained Commerce’s remand results.

In this case, the Court held that accepting respondents’ certifications of non-use in this situation was permissible and sustained Commerce’s determination because no party submitted any new evidence or argument that would allow the Court to sanction Commerce’s position that the certifications were, as Commerce claimed, unverifiable. Id. at 6. The Court also found that “it was not unreasonable for Commerce to decide not to revise its determination in view of the Government of China’s (“GOC”) recent, conclusory statements offered without sufficient supporting information. Id. at 8. Although the evidence provided by Canadian Solar listed additional uses for aluminum extrusions not previously noted, the Court found that “this does not render Commerce’s decision that aluminum extrusions are predominately utilized by few users unsupported by substantial evidence.” Id. at 9. As for aluminum extrusions, the Court held that reliance on just the selected data in this instance was supported by substantial evidence given its specificity to the product at issue and sustained Commerce’s determination. Id. at 10. The Court sustained Commerce’s determination regarding the countervailable subsidization of electricity in China. Id. at 13. Furthermore, the Court found that “Commerce’s determination that the solar- grade polysilicon market was distorted such that it could not use Canadian Solar’s import data as a tier-one metric is supported by substantial evidence and is accordingly sustained.” Id. at 15. As such, the Court sustained Commerce’s remand results. Id. at 16.

Slip Op. 20-148

Before the Court in Saha Thai Steel Pipe Pub. Co. v. United States, et. al., Court No. 19- 00208, Slip Op. 20-148 (October 19, 2020) was a challenge to Commerce’s determinations in an administrative review of the antidumping duty order covering circular welded carbon steel pipes and tubes from Thailand. In this case, the Court reviewed two issues: (1) Whether Commerce’s particular market situation adjustment to the cost of production when conducting a sales-below- cost test is in accordance with the law; and (2) Whether Commerce’s duty drawback adjustment is in accordance with the law. Plaintiff argued that “Commerce has no legal authority to make a particular market situation adjustment to Saha Thai’s costs of production for sales-below-cost test purposes.” Id. at 7. Plaintiff also argued that Commerce should have made a duty drawback adjustment for “imputed Thai AD and safeguard duties that Commerce calculated on Saha Thai’s purchased hot-rolled coil pursuant to its particular market situation adjustment methodology.” Id. at 13. For the following reasons, the Court remanded determinations for reconsideration.

Commerce determines antidumping duties by calculating the amount by which the normal value of subject merchandise exceeds the export price or the constructed export price for the merchandise. Among the many ways Commerce can accomplish this is by the use of a constructed value determination. In this case, the Court found that Trade Preferences Agreement Act (“TPEA”) only amended the constructed value determination to grant Commerce discretion to use an alternative calculation methodology. In addition, TPEA amended ordinary course of trade statute to grant Commerce an additional ground on which it may disregard sales from the normal value calculation when using home market sales. Therefore, the Court concluded that Commerce’s particular market situation adjustment for purposes of the sales-below-cost test, based on the TPEA amendment, while basing normal value on home market sales was not in accordance with the law. The Court did not reach the question of whether Commerce’s particular market situation determination was supported by substantial evidence. Id. As such, the Court concluded that Commerce’s cost-based particular market situation adjustment was not in accordance with the law, and the Court did not consider whether Commerce should have made a duty drawback adjustment.