Trade Courts Update for Week of June 15, 2016

United States Court of International Trade


Preliminary Injunction Granted

In Neo Solar Power Corporation v. United States, Court No. 16-88, Slip Op. 16-58 (June 9, 2016), Neo Solar Power Corporation’s (“Neo”) moved for a preliminary injunction regarding liquidation of its entries into the United States. Neo is a producer and exporter of certain crystalline silicon photovoltaic (“CSPV”) products from Taiwan, which are subject to an antidumping (“AD”) duty order. See Certain Crystalline Silicon Photovoltaic Products From Taiwan: Antidumping Duty Order, 80 Fed. Reg. 8596, 8596 (Dep’t Commerce Feb. 18, 2015). At issue were liquidation instructions relating to an administrative review of that order covering entries from July 31, 2014 through January 31, 2016. These liquidation instructions ask the United States Customs and Border Protection (“Customs”) to liquidate all entries of certain CSPV products from Taiwan for firms not specifically listed in the instructions. The instructions also require that Customs is to “assess antidumping duties on merchandise entered, or withdrawn from warehouse, for consumption at the cash deposit or bonding rate in effect on the date of entry.”   Even though Neo was not listed in the liquidation instructions, its entries will nonetheless be subject to liquidation unless a preliminary injunction issues.  Moreover, Neo was improperly excluded from the administrative review and that a preliminary injunction is required to prevent its entries from being liquidated pending the duration of this case.

The court held in favor of the injunction because (1) liquidation will foreclose plaintiff’s remedies resulting in irreparable harm; (2) there is a substantial issue to be decided;  (3) securing judicial review and properly administering AD law is in the public interest; and (4) balance of hardships falls in Neo’s favor where it has already made cash deposits.   For these reasons, the court granted an injunction to suspend liquidation of Neo’s entries pending the case.


Remanded Final Determination Regarding Scope

In SunEdison, Inc. v. United States, Slip Op 16-59, Court No. 15-66 (June 14, 2016) (Solar II Taiwan), the court remanded the final determinations made by the U.S. Department of Commerce (“Commerce”) in its antidumping investigation of certain crystalline silicon photovoltaic products (solar cells and panels) from Taiwan. See Certain Crystalline Silicon Photovoltaic Products from Taiwan, 79 Fed. Reg. 76,966 (Dep’t Commerce Dec. 23, 2014) (final determination of sales at less than fair value) and accompanying Issues & Decision Mem., A-583-853, Investigation (Dec. 15, 2014) (“Solar II Taiwan I&D Mem.”).  Before the court were motions for judgment on the agency record, challenging Commerce’s final determinations regarding the scope of these proceedings.  The court remanded the final determination from Commerce for consistency with, and based on the same reasoning as, related proceedings concerning solar panels from the People’s Republic of China (“China” or “PRC”). Commerce’s final scope determination, in both cases, treated solar panels differently depending on their country of assembly, and failed to consider or discuss either the proportion of production necessary to determine a solar panel’s country of origin or the reasonableness of applying duties to the entire value of solar panels assembled in the PRC when only a small percentage of the cost of production actually occurs there.  The court remanded several parts of the final determination.

First, both here in Solar II Taiwan and in Sun Power Corporation v. United States, Slip Op. 16-56, Consol. Ct. No. 15-00067(“Solar II PRC”), Commerce established two different origin rules for solar panels, depending on where they are assembled.  Specifically, Commerce found that solar modules assembled in the PRC using Taiwanese cells were within the scope of, and therefore subject to, the Solar II PRC investigations as Chinese modules.  This is in contrast to cells from Taiwan “which are used in the assembly of solar modules in other countries . . ., [which] are considered Taiwanese in origin, and are within the scope of this [Solar II Taiwan] investigation.”) See Solar II PRC, Slip Op. 16-56, Consol. Ct. No. 15-00067.  Commerce did not provide sufficient explanation for departing from the agency’s prior practice of establishing a single consistent origin rule for all products within a single class or kind of merchandise, or treating similarly-situated products differently.

Second, as the court also held in Solar II PRC, Commerce deviated from its prior policy by determining, in Solar II PRC and also here in Solar II Taiwan, that solar panels assembled in

China from cells produced elsewhere were to be assessed antidumping duties based on a comparison to normal values calculated for China, rather than the market where most of the production of the panels (i.e., cell-production) took place. Because Commerce neither discussed nor reconciled this aspect of its Solar II PRC and Solar II Taiwan scope decisions with the agency’s prior policy and reasoning, remand was necessary.

For these reasons the court remanded the final determination back to Commerce for further explanation.