Trade Updates for Week of August 23, 2017

United States Court of International Trade


Decision on Welded Line Pipe Remanded in Part

In Toscelik Profil Ve Sac Endustriusi A.S., and Tosyali Dis Ticaret A.S. v. United States, Court No. 15-339, Slip Op. 17-107 (August 22, 2017), the Court considered plaintiffs’ motion for judgment on the agency record filed by Plaintiffs Cayirova Boru Sanayi ve Ticaret A.S./Yucel Boru Ithalat-Ihracat ve Pazarlama A.S. (collectively, “Yucel”) and Toscelik Profil ve Sac Endustrisi A.S./Tosyali Dis Ticaret A.S. (collectively, “Toscelik”). This action involves the U.S. Department of Commerce (“Commerce”) antidumping duty investigation covering Welded Line Pipe from the Republic of Korea and the Republic of Turkey. See Welded Line Pipe From the Republic of Turkey, 80 Fed. Reg. 61,362 (Dep’t of Commerce Oct. 13, 2015) (final determination of sales at less than fair value) (Final Determination).  The Court determined that Commerce’s normal use of the invoice date as the date of sale is a presumption that must not be disturbed unless a better date is established that correctly reflects the date on which the exporter or producer provides the material terms of sale.  Thus, the Court sustained the use of the invoice date since Yucel has not provided sufficient evidence to the contrary.  As for drawback, Commerce requested an unopposed remand to address its treatment of plaintiffs’ duty drawback claims.  The Court thus granted the remand.


Commerce’s Decision Remanded in Part regarding Silicon Photovoltaic Cells

In Changzhou Trina Solar Energy Co., Ltd., & Solarworld Americas, Inc. v. United States, & Solarworld Americas, Inc., & Changzhou Trina Solar Energy Co., Ltd., Slip Op. 17-106, Court No. 16-00157 (August 18, 2017) the Court heard arguments about Commerce’s decisions from the second annual review of the countervailing duty order on crystalline silicon photovoltaic cells from the People’s Republic of China (“PRC”). Plaintiffs argued Commerce erred by finding US Customers did not use a loan program sponsored by the respondent, by averaging data sets for the benchmark price of solar glass, by choosing not to average data sets for an ocean freight benchmark adjustment, and by including value added tax (“VAT”) in its benchmark calculations. For the following reasons, the Court agreed with Commerce on three issues, but remanded back to the agency to reconsider its decision to average data in calculating the solar glass benchmark.

The first issue was the loan credit program used by the respondent. In the administrative review Commerce determined that no customers from mandatory respondent, JA Solar, used the credit program.  The respondent submitted to Commerce declarations that none of their US customers used the program, however the PRC government did not cooperate or submit any declarations.  Plaintiffs believed that because the PRC government did not cooperate, Commerce should have applied adverse facts available (“AFA”) and found use of the program. Commerce should use the AFA “when an interested party . . . withholds information that has been requested.” Id. at 6. However, Commerce should “seek to avoid such impact if relevant information exists elsewhere on the record.” Id. at 7.  The Court agreed with Commerce that the declarations on the record that no US customers used the program was substantial evidence enough to not use any AFA. The next issue involved Commerce averaging data from respondents IHS Technology and Global Trade Atlas.  Commerce concluded that the IHS data was more specific than the GTA data, but that the GTA data was favorable because it was reported in an annual statistic rather than IHS’s monthly, so Commerce averaged the data.  The Court agreed with plaintiffs and said that Commerce’s decision to average the data was not supported by evidence on the record. The Court remanded to Commerce for an opportunity to provide this evidence to support averaging.

The next issue was Commerce’s decision to use ocean freight data submitted by respondent, JA Solar, rather than Solarwold’s data because the JA Solar’s data was from the period of review, and specific to the forty foot containers used to ship the goods. Plaintiff argued this decision was not supported by substantial evidence.  The Court said that “Commerce has broad discretion in determining how to adjust the world market benchmark price to reflect costs incurred by purchasers so long as it does so reasonably.” The court agreed with Commerce that the evidence on the record, data from the POR and involving the forty foot containers, was enough to use it. The final issue was Commerce’s decision to include VAT in the calculation for benchmark prices. Plaintiffs argued regulations prevent Commerce from including any adjustment other than delivery charges and import duties, because the regulation lists these and does not explicitly state that other adjustments are allowed. Commerce believed inclusion of VAT is allowed under law. Commerce is allowed to make adjustments “to reflect the price that a firm actually paid or would pay if it imported the product,” but the statue does not make clear whether that includes VAT. Id. at 15.  The Court agreed with Commerce because the agency’s interpretation to include the VAT was not “plainly erroneous or inconsistent with the regulation”. Id. at 19.