United States Court of International Trade

20-23

Before the Court in Canadian Solar Inc. et. al. v. United States et. al., Slip Op. 20-23, Court No. 18-00184 (February 25, 2020) was a challenge to the final determinations made by Commerce in the Fourth Administrative Review of the countervailing duty order on crystalline silicon photovoltaic cells, whether or not assembled into modules from China. Plaintiff’s requested that the court hold Commerce’s final determinations unsupported by substantial evidence or otherwise not in accordance with law. For the following reasons the Court partially sustained and partially remanded for further consideration.

The first argument raised by plaintiffs was that Commerce erred in refusing to accept arms-length purchases of polysilicon as a tier-one benchmark source. Commerce argued the Government of China’s (“GOC”) “intervention in China’s solar grade polysilicon market leads to significantly distorted prices for solar grade polysilicon in China, and thus discounted” plaintiff’s import data. Id. at 6. The Court said that “Commerce did not sufficiently explain how the GOC’s minimal participation in the … industry led to … price distortion [,]” and remanded the issue. See id. at 7. The second issue raised was the exclusion of Xeneta data in the calculation of international freight charges. Commerce argued the “data inconsistently included or excluded terminal handling charges, which Commerce requires to be included … as charges reflective of ‘the price that a firm actually paid or would pay if it imported the product.’” Id. at 7. The Court said it was necessary to remand for Commerce to reconsider whether the data submitted properly include all terminal handling charges. Another issue was the problem of translation errors into the calculation of the resulting electricity benchmark.  The court did not decide this issue but simply remanded it to Commerce to consider. See id. at 12.   The next issue was the use of the wrong denominator in the calculation of a program benefit. Plaintiffs argued “that in previous reviews Commerce has used total sales but has since changed its methodology without explanation.” Id. at 12. The Court said Commerce followed its regulations by excluding certain sales from denominator.

The final issue was the denial to plaintiff Canadian Solar of an entered value adjustment (“EVA”) to its subsidy rate. Commerce argued this was because plaintiffs “failed to demonstrate that all sales made via its affiliate were for a higher customs value than the sales value initially used to calculate the subsidy rate.” Id. at 17. The Court found Commerce’s decision to deny an EVA to Canadian Solar was supported by substantial evidence and otherwise in accordance with law.

20-22

Before the Court in Linyi Chengen Imp. & Exp. Co. et. al. v. United States et. al., Slip Op. 20-22, Court No. 18-0002 (February 20, 2020) were the remand redeterminations made in a challenge to Commerce’s final affirmative determination in the antidumping duty investigation of certain hardwood plywood products from China. The main issue was Commerce’s determination that plaintiff Linyi Chengen Imp. & Exp. (“Linyi”) provided incomplete information regarding volume calculations, conversions, and formulas, and that Linyi failed to establish that it applied the Chinese National Standard in calculating its log volumes. During verification, Commerce requested Linyi provide a copy of the Chinese National Standard used to calculate the volume of purchased logs. Linyi attempted to provide a 12-page document representing the Chinese National Standard used for log volume, but Commerce accepted only a two-page excerpt of that document into evidence containing a conversion table. Linyi now challenges Commerce’s refusal to accept the full 12 page document. For the following reasons, the Court remanded the issue for reconsideration.

“Generally, Commerce examines the record at verification to test the accuracy of information collected during the investigation.” Id. at 10. “Yet, Commerce has developed a practice of accepting new facts at verification when: ‘(1) the need for that information was not evident previously, (2) the information makes minor corrections to information already on the record, or (3) the information corroborates, supports, or clarifies information already on the record.’” Id. The Court said “the 12-page complete document should be construed … as information corroborating, supporting, or clarifying information already on the record (regarding Linyi Chengen’s method of calculating log volumes) that should be accepted pursuant to Commerce’s past practices at verification, rather than viewing the pages as prohibited new factual information.” Id. at 11. The Court criticized Commerce saying “it strains logic that Commerce would accept two pages of the conversion table, yet would reject additional pages of the same document that would clarify ‘the provenance and accuracy of conversion table and formula’ used to calculate log volumes.”  Id.