United States Court of International Trade

Slip Op. 20-83

Before the Court in Canadian Solar Int’l Ltd, et. al., v. United States, et. al., Slip Op. 20-83, Court No.17-00173 (June 15, 2020) was Commerce’s second remand results regarding in the third administrative review of the antidumping duty order on crystalline silicon photovoltaic products, whether or not assembled into modules, from China.  Defendant-Intervenor SolarWorld Americas, Inc. (“SolarWorld”) argued Commerce’s determination was unreasonable and unlawful because record evidence supported the application of an adverse inference using the adverse facts available (“AFA”).  The Government, as well as plaintiffs requested the Court to sustain the second remand results, not finding an application of the AFA. For the following reasons, the Court sustained Commerce’s second remand results. Id.

“Parties are required to exhaust administrative remedies before the agency by raising all issues in their initial case briefs before Commerce.” Id. at 10. However, the Court has discretion not to require exhaustion of administrative remedies. “Here, SolarWorld failed to exhaust its administrative remedies, because it did not file any comments on Commerce’s draft remand redetermination.” Id. at 11. “SolarWorld does not address the fact that it did not file comments in its case brief.” Id. “Given that Commerce did not have the opportunity to hear the challenge in the first instance, the Court declines to hear SolarWorld’s challenge regarding Commerce’s decision not to apply an adverse inference.” Id. As such, the second remand results comply with the Court’s previous remand order and were sustained.