Opinion

Jiangsu Jiasheng Photovoltaic Technology Co. v. United States

28 F. Supp. 3d 1317
36 I.T.R.D. (BNA) 1263
2014 CIT 134
2014 Ct. Intl. Trade LEXIS 134
2014 WL 6482206

Court: United States Court of International Trade
Filed: Nov 20, 2014
Status: Published
Author: Pogue
On the bench: Pogue
Nature of suit: 1581(c)
Cited by: 20 cases
Authority: More cited than 75.6%

granting Commerce’s request for voluntary remand with respect to these four specific respondents, and remanding the Final Results solely with , regard to "the separate rate eligibility of the four respondents named in Commerce's request”

How later courts described this case

granting Commerce’s request for voluntary remand with respect to these four specific respondents, and remanding the Final Results solely with , regard to "the separate rate eligibility of the four respondents named in Commerce's request”
upholding Commerce’s practice 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”
"In both its de jure and de facto determinations, Commerce may make reasonable inferences from the record evidence."
governmental control over export pricing decisions

Written by the judges who cited it.

The opinion

Slip Op. 14 - 134

UNITED STATES COURT OF INTERNATIONAL TRADE

JIANGSU JIASHENG PHOTOVOLTAIC

TECHNOLOGY CO., LTD.,

Plaintiff, Before: Donald C. Pogue,

Senior Judge

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.

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

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).

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”).

See infra note 65 (explaining the process for constructing

“normal” comparison prices in investigations of merchandise from

the PRC).

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.”).

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.

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.

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)

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

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

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.”).

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).

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).

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.”).

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

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).

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.

Cover Letter to Jiasheng Q&V Quest., ECF No. 45 at Doc. 15.

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

Cover Letter to Jiasheng Q&V Quest., ECF No. 45 at Doc. 15.

Attach. III to Jiasheng Q&V Quest., ECF No. 45 at Doc. 15.

Id.

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”).

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.”).

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”).

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

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.”).

See Resp’t Selection Mem., ECF No. 56-1 at P.D. 275, at 2 n.4.

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

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.”).

Jiasheng’s Br., ECF No. 41, at 20.

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).

See Prelim. Results, 77 Fed. Reg. at 31,310, 31,315.

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).

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

. . . .”)).

See supra notes 11-13 and accompanying text.

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

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).

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).

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).

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,

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).

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

See Jiasheng’s Br., ECF No. 41, at 14-15, 23.

See id.

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).

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

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”).

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).

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”).

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

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).

Attach. III to Jiasheng Q&V Quest., ECF No. 45 at Doc. 15,

at ¶¶ A.1, A.3.

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).

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

See Resp’t Selection Mem., ECF No. 56-1 at P.D. 275; I&D Mem.

cmt. 45 at 104.

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.

See supra notes 31 and 32 (providing relevant citations).

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).

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.”).

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

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.

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

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”).

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.

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

See I&D Mem. cmt. 16.

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).

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”).

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

SolarWorld’s Br., ECF No. 44, at 10-21.

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).

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

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).

Prelim. SV Mem., ECF No. 47 at Tab 16, at 3.

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

Prelim. SV Mem., ECF No. 46 at Tab 16, at 3.

See I&D Mem. cmt. 16 at 63 (discussing HTS category 7610.10).

Prelim. SV Mem., ECF No. 46 at Tab 16, at 3.

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

Id. at 63; see Thai HTS Ch. 76, ECF No. 56-2 at P.D. 1267

Ex. 2.

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.

SolarWorld’s Br., ECF No. 44, at 10-14.

Id. at 15.

Id. at 16; see also id. at 17-20.

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

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.

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”).

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)).

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).

Id. at 15.

Id. at 16-17.

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

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.”).

Id.

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.

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).

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

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

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