SolarWorld Americas, Inc. v. United States , 125 F. Supp. 3d 1318 ( 2015 )

Slip Op. 15 - 
UNITED STATES COURT OF INTERNATIONAL TRADE
SOLARWORLD AMERICAS, INC.,
Plaintiff,
Before: Donald C. Pogue,
v. Senior Judge
UNITED STATES, Court No. 13-000071
Defendant.
OPINION
[affirming the Department of Commerce’s final determination in
countervailing duty investigation]
Dated: December 11, 2015
Timothy C. Brightbill and Laura El-Sabaawi, Wiley Rein
LLP, of Washington, DC, for the Plaintiff.
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
Benjamin C. Mizer, Principal Deputy Assistant Attorney General,
Jeanne E. Davidson, Director, and Reginald T. Blades, Jr.,
Assistant Director. Of counsel was Lisa Wang, Attorney, Office
of the Chief Counsel for Trade Enforcement & Compliance, U.S.
Department of Commerce.
Pogue, Senior Judge: In this case, Plaintiff
SolarWorld Americas Incorporated (“SolarWorld”) challenges the
United States Department of Commerce’s (“Commerce”)
1 This case was previously consolidated into
Consol. Ct. No. 13-00009, Order, June 12, 2013, ECF No. 37,
at ¶ 3, but was subsequently severed therefrom, Order,
Aug. 4, 2015, ECF No. 38; Order, Aug. 20, 2015, ECF No. 40.
Court No. 13-00007 Page 2
determination, during the countervailing duty (“CVD”)
investigation of crystalline silicon photovoltaic cells (“solar
cells”) from the People’s Republic of China (“PRC” or “China”),
to defer examination of two subsidy allegations until a
subsequent administrative review.2
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),3 and 28 U.S.C.
§ 1581(c) (2012).
As explained below, because the challenged agency
determinations are based on a reasonable reading of the record
evidence and free of error of law or judgment, and are therefore
not an abuse of the agency’s discretion, Commerce’s Final
2 See SolarWorld’s Mot. for J. on the Agency R.,
Consol. Ct. No. 13-00009, ECF Nos. 78 (conf. version) & 79
(pub. version) (“Pl.’s Br.”); [Solar Cells], Whether or Not
Assembled into Modules, from [China], 77 Fed. Reg. 63,788
(Dep’t Commerce Oct. 17, 2012) (final affirmative countervailing
duty determination and final affirmative critical circumstances
determination) (“Final Determination”) and accompanying Issues
& Decision Mem., C-570-980, Investigation (Oct. 9, 2012)
(“I&D Mem.”) cmt. 10 at 36-38. The period of investigation
(POI”) was January 1, 2010, through December 31, 2010. [Solar
Cells], Whether or Not Assembled into Modules, from [China],
76 Fed. Reg. 70,966, 70,966 (Dep’t Commerce Nov. 16, 2011)
(initiation of countervailing duty investigation) (“Initiation
Notice”).
3 Further citations to the Tariff Act of 1930, as amended, are to
the relevant provisions of Title 19 of the U.S. Code,
2012 edition.
Court No. 13-00007 Page 3
Determination in this CVD investigation is sustained.
BACKGROUND
“A countervailing duty investigation shall be
initiated whenever [Commerce] determines, from information
available to it, that a formal investigation is warranted into
the question of whether the elements necessary for the
imposition of a duty under [19 U.S.C. § 1671(a)] exist.”4 In
this case, Commerce initiated a CVD proceeding based on
SolarWorld’s petition, which initially covered twenty-seven
separate Chinese government programs that SolarWorld alleged
provided countervailable subsidies to the respondents during the
POI.5 Thereafter, SolarWorld submitted additional allegations
regarding the aluminum extrusions and glass used to assemble
solar cells into solar panels or modules. These latter two
allegations are the subject of this dispute. Relevant
background with respect to each of these allegations is
presented below.
I. Aluminum Extrusions
SolarWorld’s initial petition included an allegation
4 19 U.S.C. § 1671a(a).
5 Initiation Notice, 76 Fed. Reg. at 70,968-69; see 19 U.S.C.
§ 1671(a) (providing for the imposition of duties “equal to the
amount of the net countervailable subsidy”).
Court No. 13-00007 Page 4
that the Chinese government was providing primary aluminum to
producers of subject merchandise for less than adequate
remuneration.6 Responding to Commerce’s inquiries regarding this
allegation, however, both mandatory respondents in Commerce’s
investigation7 stated that they purchased and used extruded
aluminum, rather than primary aluminum, in producing the subject
merchandise during the POI.8 SolarWorld then, on February 14,
6 See [SolarWorld’s] Pet. for the Imposition of Antidumping
& Countervailing Duties Pursuant to Sections 701 & 731 of the
Tariff Act of 1930, As Amended, Vol. III (Information Relating
to the People’s Republic of China – Countervailing Duties)
[Solar Cells], Whether or Not Assembled into Modules, from
[China], C-570-980, Investigation (Oct. 19, 2011),
reproduced in Def.’s App., ECF No. 44-1 at Tab 1 (“SolarWorld’s
Initial CVD Petition”), at 39-42 (alleging governmental
provision of “primary aluminum” for less than adequate
remuneration); Initiation Notice, 76 Fed. Reg. at 70,969
(initiating investigation into “Government Provision of Aluminum
for [Less Than Adequate Remuneration]”).
7 Commerce determined that resource constraint enabled the agency
to individually examine no more than two producers/exporters,
[Solar Cells], Whether or Not Assembled into Modules, from
[China], 77 Fed. Reg. 17,439, 17,439 (Dep’t Commerce Mar. 26,
2012) (preliminary affirmative countervailing duty
determination) (“Prelim. Determination”), and selected Changzhou
Trina Solar Energy Co., Ltd. (“Trina Solar”) and Wuxi Suntech
Power Co., Ltd. (“Wuxi Suntech”) – the “two largest producers/
exporters of subject merchandise, based on aggregate value, to
the United States” – as the two “mandatory respondents.” Id.
(citation omitted).
8 CVD Questionnaire Resp. of [Trina Solar], Vol. 1, [Solar
Cells], Whether or Not Assembled into Modules, from [China],
C-570-980, Investigation (Jan. 31, 2012), reproduced in Def.’s
App., ECF No. 44-5 at Tab 11, at III-49 (“Trina Solar only
purchased aluminum frames, a kind of aluminum extrusion. It did
not purchase primary aluminum. Moreover, Trina Solar did not
(footnote continued)
Court No. 13-00007 Page 5
2012 (Commerce’s extended deadline for new subsidy allegations9),
submitted a new subsidy allegation, claiming that the Chinese
government was providing aluminum extrusions to respondents for
less than adequate remuneration during the POI.10 Finding no
support on the record for an alleged price differential or other
information indicating that aluminum extrusions were being sold
to respondents at less than adequate prices, however,11 Commerce
purchase such frames from producers of primary aluminum.”);
Countervailing Duty Questionnaire Resp. of [Wuxi Suntech],
[Solar Cells], Whether or Not Assembled into Modules, from
[China], C-570-980, Investigation (Jan. 31, 2012),
reproduced in Def.’s App., ECF No. 44-5 at Tab 10, at 35 (“Wuxi
Suntech did not purchase virgin aluminum during the POI, it just
purchased aluminum extrusion[s] during the POI.”).
9 New subsidy allegations were initially due no later than
40 days before the scheduled date of the agency’s preliminary
determination. 19 C.F.R. § 351.301(d)(4)(i)(A) (2011). In this
case, the scheduled date for the preliminary determination was
originally January 12, 2012, see Prelim. Results, 77 Fed. Reg.
at 17,440, although that date was ultimately extended to
March 26, 2012, id. at 17,439 (effective date). Upon
SolarWorld’s request, Commerce extended the deadline for
submission of additional subsidy allegations until February 14,
2012. Id. at 17,440.
10[SolarWorld’s] New Subsidy Allegations, [Solar Cells], Whether
or Not Assembled into Modules, from [China], C-570-980,
Investigation (Feb. 15, 2012) (public version),
reproduced in Def.’s App., ECF No. 44-5 at Tab 13, at 32-44
(“SolarWorld’s 2d Aluminum Allegation”); see Prelim.
Determination, 77 Fed Reg. at 17,440 (noting that SolarWorld
initially submitted these new subsidy allegations on February
14, 2012).
11Analysis of Feb. 14, 2012 New Subsidy Allegations, [Solar
Cells], Whether or Not Assembled into Modules, from [China],
C-570-980, Investigation (May 11, 2012), reproduced in Def.’s
App., ECF No. 44-6 at Tab 21 (“Determ. Not To Initiate Aluminum
(footnote continued)
Court No. 13-00007 Page 6
determined that SolarWorld’s allegation failed to satisfy the
statutory requirements for initiation of a petition-based
investigation pursuant to 19 U.S.C. § 1671a(b).12 Accordingly,
Commerce determined not to initiate an investigation of this
alleged subsidy.13
In response, on May 15, 2012, SolarWorld submitted new
Extrusions”), at 9; see also id. (“[T]here is no other
information on the record regarding possible benchmark prices
for aluminum extrusions that could possibly be used to
demonstrate a potential benefit.”); see 19 U.S.C. § 1671(a)
(providing for the imposition of CVD duties “equal to the amount
of the net countervailable subsidy”); id. at § 1677(5)(B)
(defining “countervailable subsidy” as requiring, inter alia,
that “a benefit is thereby conferred”); id. at § 1677(5)(E)(iv)
(defining “benefit conferred,” “in the case where goods or
services are provided,” as where “such goods or services are
provided for less than adequate remuneration,” and providing
that “the adequacy of remuneration shall be determined in
relation to prevailing market conditions for the good or service
being provided,” where the prevailing market conditions are
defined to “include price, quality, availability, marketability,
transportation, and other conditions of purchase or sale”).
12See Determ. Not To Initiate Aluminum Extrusions, ECF No. 44-6
at Tab 21, at 9; 19 U.S.C. § 1671a(b)(1) (requiring petitions
for initiating CVD investigations to allege all “elements
necessary for the imposition of the duty imposed by [19 U.S.C.
§] 1671(a)” and to be “accompanied by information reasonably
available to the petitioner supporting those allegations”).
13Determ. Not To Initiate Aluminum Extrusions, ECF No. 44-6
at Tab 21, at 9; see also Post-Prelim. Analysis, [Solar Cells],
Whether or Not Assembled into Modules, from [China], C-570-980,
Investigation (June 22, 2012), reproduced in Def.’s App.,
ECF No. 44-6 at Tab 23 (“Post-Prelim. Determination”), at 15
(explaining that Commerce “rejected [SolarWorld’s 2d Aluminum
Allegation] because it did not document prices Petitioner
claimed were being paid inside and outside the PRC for aluminum
extrusions”) (citation omitted).
Court No. 13-00007 Page 7
factual information regarding aluminum extrusion prices, to
support its February 14, 2012, allegation.14 Commerce, however,
determined that, at this point in the proceeding, insufficient
time remained to complete the investigation of aluminum
extrusions, and as such declined to initiate this additional
investigation,15 noting that the decision not to initiate was “in
no way a comment on the merits of [the] allegation[], which
[SolarWorld] may resubmit at the outset of any administrative
review, if an order is issued in this proceeding.”16 SolarWorld
now challenges Commerce’s decision not to initiate an
investigation into SolarWorld’s aluminum extrusions subsidy
allegation, and instead to defer consideration of this
allegation until the next administrative review.17
II. Glass
Meanwhile, on December 5, 2011, SolarWorld also
submitted an additional subsidy allegation claiming that the
14[SolarWorld’s] Comments on the Dep’t’s Analysis of Provision
of Aluminum Extrusions for Less than Adequate Remuneration
Allegation, [Solar Cells], Whether or Not Assembled into
Modules, from [China], C-570-980, Investigation (May 15, 2012),
reproduced in Def.’s App., ECF No. 44-6 at Tab 22 (“SolarWorld’s
3d Aluminum Allegation”), at 4 & Ex. 1.
15 Post-Prelim. Determination, ECF No. 44-6 at Tab 23, at 15-16.
16 Id. at 16.
17Pl.’s Br., Consol. Ct. No. 13-00009, ECF Nos. 78 & 79,
at 13-29.
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Chinese government provided glass to Chinese solar cell
producers for less than adequate remuneration during the POI.18
Commerce, however, determined not to initiate an investigation
of this additional allegation, finding the allegation deficient
because (1) it did not provide any information regarding the
specific type of glass used in the production of subject
merchandise, or explain why such information was not available;
(2) it was not accompanied by documentation necessary to support
the claim that several Chinese glass producers are state-owned
enterprises; (3) it was not accompanied by actual source
documentation supporting the allegation of benefit; and (4) the
allegation of specificity19 was unsupported and unexplained.20
SolarWorld then re-submitted its subsidy allegation
regarding the governmental provision of glass for less than
18[SolarWorld’s] Additional Subsidy Allegation, [Solar Cells],
Whether or Not Assembled into Modules, from [China], C-570-980,
Investigation (Dec. 5, 2011), reproduced in Def.’s App.,
ECF No. 44-1 at Tab 2 (“SolarWorld’s 1st Glass Allegation”).
19See 19 U.S.C. § 1677(5)(A) (providing that a countervailable
subsidy must be “specific as described in [19 U.S.C.
§ 1677](5A)”); id. at § 1677(5A) (defining relevant
specificity).
20Initiation Analysis of Dec. 5, 2011 New Subsidy Allegation,
[Solar Cells], Whether or Not Assembled into Modules, from
[China], C-570-980, Investigation (Dec. 22, 2011), reproduced in
Def.’s App., ECF No. 44-1 at Tab 3 (“Rejection of SolarWorld’s
1st Glass Allegation”), at 2-3.
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adequate remuneration.21 In this new submission, SolarWorld
alleged that the type of glass used in the production of subject
merchandise “is a type of flat glass called ‘float glass,’”22
which is “made through the ‘float process,’ in which glass is
formed on a bath of molten tin.”23 To support its allegation
that respondents received a benefit24 from the governmental
provision of glass, SolarWorld argued that “Chinese [solar cell]
producers purchase float glass from [state-owned enterprises] at
below-market prices,”25 and supported its claim with pricing data
exclusively specific to float glass.26
Based on this re-submitted glass subsidy allegation,
21[SolarWorld’s] Re-Submission of Additional Subsidy Allegation,
[Solar Cells], Whether or Not Assembled into Modules, from
[China], C-570-980, Investigation (Jan. 23, 2012),
reproduced in [Conf. & Pub.] App. to SolarWorld’s Mot. for J. on
the Agency R., Ct. No. 13-00009, ECF Nos. 80-3 (conf. version)
& 81-3 (pub. version) (“Pl.’s App.”) at Tab 22 (“SolarWorld’s 2d
Glass Allegation”).
22 Id. at 2 (emphasis added).
23 Id. (citation omitted).
24See 19 U.S.C. § 1677(5)(B) (providing that a “countervailable
subsidy” requires that “a benefit” is conferred); id.
at § 1677(5)(E)(iv) (providing that a benefit is conferred,
inter alia, when “goods or services are provided for less than
adequate remuneration”).
25SolarWorld’s 2d Glass Allegation, ECF Nos. 80-3 & 81-3
at Tab 22, at 6.
26Id. (relying on id. at Ex. 2 (U.S. Exports of Float Glass:
2010 Monthly Prices) & Ex. 3 (Float Glass in China: 2010 Monthly
Prices)).
Court No. 13-00007 Page 10
Commerce determined to initiate “an investigation of the
allegation with respect to the [Government of China]’s provision
of float glass for [less than adequate remuneration].”27
Responding to the agency’s questionnaires, however, both
mandatory respondents reported that “rolled glass,” as distinct
from float glass, was the major input used in their solar
modules.28 In reply, SolarWorld then sought to amend the scope
of the investigation, “to cover all glass used by Chinese
respondents in their production of subject merchandise,”29
arguing that Commerce’s limitation of the investigation to float
glass was “not fully reflective of Petitioner’s allegation,”30
27Initiation of New Subsidy Allegation on the Provision of Glass
for Less Than Adequate Remuneration, [Solar Cells], Whether or
Not Assembled into Modules, from [China], C-570-980,
Investigation (Mar. 8, 2012), reproduced in Def.’s App.,
ECF No. 44-5 at Tab 14 (“Float Glass Initiation”), at 3
(emphasis added).
28See Post-Prelim. Determination, ECF No. 44-6 at Tab 23, at 12
(“While Suntech and Trina Solar each reported small purchases of
‘float glass,’ both respondents reported that ‘rolled glass’ is
the major glass input used in their solar modules, not float
glass.”) (emphasis added).
29[SolarWorld’s] Comments on the Provision of Glass for Less
than Adequate Remuneration Subsidy Allegation & Initiation,
[Solar Cells], Whether or Not Assembled into Modules, from
[China], C-570-980, Investigation (May 2, 2012), reproduced in
Def.’s App., ECF No. 44-5 at Tab 19 (“SolarWorld’s 3d Glass
Allegation”), at 3 (emphasis added); see also id. at 4
(requesting that Commerce “amend its notice of initiation to
include the provision of all glass used in the production of
subject merchandise”).
30 Id. at 4.
Court No. 13-00007 Page 11
or, in the alternative, requesting permission to submit an
additional allegation specific to rolled glass.31
Commerce rejected SolarWorld’s contention that the
subsidy allegation on which Commerce based its initiation was
sufficient to cover types of glass beyond float glass,
emphasizing that the “initiation memorandum stated clearly that
the investigation was limited to float glass”32 because “[t]he
information provided by [SolarWorld] pertained solely to float
glass, which is clearly distinct from rolled glass,”33 and as
such “there was no basis to expand the allegation to cover
rolled glass.”34
31 See id. at 5.
32 Post-Prelim. Determination, ECF No. 44-6 at Tab 23, at 15.
33I&D Mem. cmt. 10 at 38; see [Suppl. Resp. of Wuxi Suntech],
[Solar Cells], Whether or Not Assembled into Modules, from
[China], C-570-980, Investigation (Apr. 10, 2012), reproduced in
Def.’s App., ECF No. 44-5 at Tab 18, at 2-3 (“During the POI,
Wuxi Suntech used both float glass and rolled glass in its
module operations. Rolled glass is fundamentally different from
float [g]lass . . . . Specifically, the molding process is
entirely different for the two types of glasses. Rolled glass
is produced by pouring molten glass onto two rollers to achieve
an even thickness, which process also makes polishing easier.
The end-product is used to produce patterned and wired glass.
In contrast, float glass is produced by pouring molten glass
onto a bed of molten tin and drawing off in continuous ribbon,
which process gives high quality flat glass a fire polish finish
besides even thickness. As such, rolled glass and float glass
are two entirely different products, and thus cannot be treated
as one of the same.”).
34 I&D Mem. cmt. 10 at 38.
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In addition, Commerce also denied SolarWorld
permission to submit additional glass subsidy allegations,
explaining that investigations into whether an input is being
provided for less than adequate remuneration “require gathering
detailed information concerning the ownership and management of
numerous producers supplying the input, evaluating extensive
purchase information, and conducting extensive analysis of the
input market and research into possible benchmarks,”35 and as
such “are particularly time consuming and would be difficult to
complete at such a late stage in an investigation.”36
Acknowledging that the agency may examine practices
that appear to be countervailable subsidies discovered at any
time during the course of an investigation, Commerce explained
that it has the authority in such circumstances to “defer
examination of any such practice if there is insufficient time
remaining before the final determination,”37 and noted that the
agency’s “rejection of [SolarWorld]’s arguments is in no way a
comment on the merits of those allegations, which [SolarWorld]
may resubmit at the outset of any administrative review, if an
35 Post-Prelim. Determination, ECF No. 44-6 at Tab 23, at 16.
36 Id.
37 Id. (citing 19 C.F.R. § 351.311(c)).
Court No. 13-00007 Page 13
order is issued in this proceeding.”38
Because the value of each respondent’s total purchases
of float glass during the POI was less than 0.005 percent of
their respective total sales, Commerce found that “any benefit
from this program would have no impact on the overall subsidy
rate.”39 Commerce therefore determined not to include the
governmental provision of float glass within the agency’s net
subsidy calculations in this investigation.40
SolarWorld now claims that “Commerce’s interpretation
of SolarWorld’s allegation as solely pertaining to float glass,
which respondents largely did not use, was unreasonable, and its
failure to investigate the Chinese government’s provision for
[less than adequate remuneration] of the glass used by
respondents . . . was unlawful.”41
Following a brief statement of the relevant standards
of review, SolarWorld’s claims are addressed below.
STANDARD OF REVIEW
The court will sustain Commerce’s countervailing duty
38 Id.
39Post-Prelim. Determination, ECF No. 44-6 at Tab 23, at 12
(citations omitted).
40 Id. at 13.
41 Pl.’s Br., Consol. Ct. No. 13-00009, ECF Nos. 78 & 79, at 32.
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determinations if they are supported by substantial evidence and
are otherwise in accordance with law.42 Substantial evidence is
“such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion,”43 and the substantial evidence
standard of review “can be translated roughly to mean ‘is [the
determination] unreasonable?’”44
Where the statute and regulations leave the agency
with some freedom to use its judgment, the court reviews such
decisions for abuse of discretion.45 “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.”46
DISCUSSION
When an interested party like SolarWorld47 files a
42 See 19 U.S.C. § 1516a(b)(1)(B)(i).
43 Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229 (1938).
44Nippon Steel Corp. v. United States, 458 F.3d 1345, 1351
(Fed. Cir. 2006) (citation omitted, alteration in the original).
45See, e.g., Wuhu Fenglian Co. v. United States, 36 CIT __,
836 F. Supp. 2d 1398, 1403 (2012).
46WelCom 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)).
47 See 19 U.S.C. § 1677(9)(C) (defining “interested party” as,
(footnote continued)
Court No. 13-00007 Page 15
timely48 petition that (1) alleges all elements necessary for the
imposition of a countervailing duty pursuant to 19 U.S.C.
§ 1671(a); and (2) “is accompanied by information reasonably
available to the petitioner supporting those allegations,”49
Commerce must initiate an investigation into “whether the
elements necessary for the imposition of a duty under [19 U.S.C.
§ 1671(a)] exist.”50 Where this is not the case, but Commerce
nevertheless “discovers [in the course of a CVD proceeding] a
practice which appears to be a countervailable subsidy [with
respect to the merchandise which is the subject of the
proceeding],”51 then Commerce “shall include the practice,
subsidy, or subsidy program in the proceeding,”52 as long as
Commerce “concludes that sufficient time remains before the
inter alia, “a manufacturer, producer, or wholesaler in the
United States of a domestic like product”); Compl., ECF No. 8,
at ¶ 3 (stating that SolarWorld “is a manufacturer of the
domestic like product in the United States”).
48See 19 U.S.C. § 1671a(b)(1) (providing that “[t]he petition
may be amended at such time, and upon such conditions, as
[Commerce] may permit”).
49 Id.
50Id. at §§ 1671a(a)-(b)(1) (providing that “[a] countervailing
duty proceeding shall be initiated” under such circumstances)
(emphasis added).
51 19 U.S.C. § 1677d.
52 Id. at § 1677d(1).
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scheduled date for the final determination.”53 If Commerce
concludes that insufficient time remains, however, then the
agency may defer its examination until a subsequent
administrative review, if any.54
Here, SolarWorld argues that Commerce unreasonably
decided to defer until the next administrative review its
investigations into the Chinese government’s alleged provision
of aluminum extrusions and rolled glass to producers of subject
merchandise for less than adequate remuneration.55 Specifically,
SolarWorld argues, first, that its latest timely aluminum
extrusions and glass allegations both satisfied the requirements
of 19 U.S.C. §§ 1671a(b)(1) and 1671(a), such that Commerce was
required to initiate investigations into these allegations
5319 C.F.R. § 351.311(b). The validity of this regulation is
uncontested here. See Pl.’s Br., Consol. Ct. No. 13-00009,
ECF Nos. 78 & 79, at 24 (relying on this regulation);
cf., e.g., Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def.
Council, Inc., 435 U.S. 519, 543 (1978) (“Absent constitutional
constraints or extremely compelling circumstances the
administrative agencies should be free to fashion their own
rules of procedure and to pursue methods of inquiry capable of
permitting them to discharge their multitudinous duties.”)
(quotation marks and citation omitted).
54 19 C.F.R. § 351.311(c).
55See Pl.’s Br., Consol. Ct. No. 13-00009, ECF Nos. 78 & 79,
at 13-39; cf. Post-Prelim. Determination, ECF No. 44-6
at Tab 23, at 15-16 (unchanged in the Final Determination,
77 Fed. Reg. 63,788; I&D Mem. cmt. 10 at 36-38).
Court No. 13-00007 Page 17
during this CVD proceeding;56 or, in the alternative, that even
if these allegations were deficient under 19 U.S.C.
§ 1671a(b)(1), Commerce unreasonably determined that
insufficient time remained to permit SolarWorld to file
additional allegations, or to examine these allegations as
discovered practices that appear to be countervailable
subsidies, pursuant to 19 U.S.C. § 1677d.57 Each argument is
addressed in turn below.
I. Petition-Based Initiation Under 19 U.S.C. § 1671a(b):
Deficiencies in SolarWorld’s Timely Glass and Aluminum
Extrusions Allegations
First, SolarWorld challenges Commerce’s determinations
that SolarWorld’s latest timely subsidy allegations regarding
56See Pl.’s Br., Consol. Ct. No. 13-00009, ECF Nos. 78 & 79,
at 15-17 (arguing that Commerce improperly determined that
SolarWorld’s timely aluminum extrusions allegation was
deficient); id. at 29-32 (arguing that Commerce improperly
determined that SolarWorld’s timely glass allegation was limited
to float glass, which the respondents purchased only in
negligible quantities, rather than all glass used by the
respondents).
57See id. at 17-23 (arguing that Commerce unreasonably denied
SolarWorld permission to file additional information regarding
its aluminum extrusions allegation); id. at 23-29 (arguing that
Commerce improperly failed to initiate an examination of
apparent aluminum extrusions subsidies pursuant to 19 U.S.C.
§ 1677d); id. at 32-34 (arguing that Commerce unreasonably
denied SolarWorld permission to file additional information
regarding its glass allegation); id. at 34-39 (arguing that
Commerce improperly failed to initiate an examination of
apparent rolled/patterned glass subsidies pursuant to 19 U.S.C.
§ 1677d).
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aluminum extrusions and non-float glass did not sufficiently
allege and document all elements necessary for the imposition of
countervailing duties.58 Specifically, with regard to
SolarWorld’s latest timely aluminum extrusions allegation,
Commerce found that the element of ‘benefit conferred’ was
improperly alleged because it lacked supporting documentation.59
With regard to glass, Commerce found that the type of glass with
respect to which SolarWorld alleged and documented sufficient
information to initiate an investigation was purchased in such
negligible quantities by the mandatory respondents that any
benefit therefrom would not affect the overall subsidy rate, and
the allegation did not sufficiently allege and document all
necessary elements with respect to any other type of glass.60
SolarWorld challenges each of these determinations.
58See Pl.’s Br., Consol. Ct. No. 13-00009, ECF Nos. 78 & 79,
at 15-17, 29-32.
59Determ. Not To Initiate Aluminum Extrusions, ECF No. 44-6
at Tab 21, at 9; Post-Prelim. Determination, ECF No. 44-6
at Tab 23, at 15 (explaining that Commerce “rejected
[SolarWorld’s Feb. 14, 2012 aluminum extrusions] allegation
because it did not document prices Petitioner claimed were being
paid inside and outside the PRC for aluminum extrusions”)
(citation omitted) (unchanged in the Final Determination,
77 Fed. Reg. 63,788; I&D Mem. cmt. 10 at 36-38); see supra
Background Section I.
60Post-Prelim. Determination, ECF No. 44-6 at Tab 23, at 12-13;
I&D Mem. cmt. 10 at 38; see supra Background Section II.
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A. Aluminum Extrusions
SolarWorld claims that Commerce improperly declined to
initiate a petition-based investigation under 19 U.S.C.
§ 1671a(b) into whether aluminum extrusions were being provided
to respondents for less than adequate remuneration during the
POI.61 But as Commerce explained, SolarWorld’s timely allegation
regarding the provision of aluminum extrusions failed to satisfy
the requirements for initiation under 19 U.S.C. § 1671a(b),
because it did not provide any support for its pricing
assertions.62 Section 1671a(b)(1) requires Commerce to initiate
CVD investigations when an interested party alleges all of “the
elements necessary for the imposition of the duty” pursuant to
19 U.S.C. § 1671(a), and provides evidentiary support for each
of those allegations.63 One of these necessary elements requires
an allegation, supported with evidence, that “a benefit is . . .
conferred” by the governmental provision of aluminum
extrusions.64 Such a benefit may be demonstrated by price
61Pl.’s Br., Consol. Ct. No. 13-00009, ECF Nos. 78 & 79,
at 13-17.
62See Determ. Not To Initiate Aluminum Extrusions, ECF No. 44-6
at Tab 21, at 9; Post-Prelim. Determination, ECF No. 44-6 at Tab
23, at 15.
63 19 U.S.C. § 1671a(b)(1).
64See 19 U.S.C. § 1677(5)(B) (defining “countervailable subsidy”
as requiring that, inter alia, “a benefit is thereby
conferred”).
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comparisons showing that the prices paid by respondents to the
Chinese government constitute “less than adequate
remuneration.”65
Here, Commerce determined that SolarWorld failed to
satisfy the requirements for initiation pursuant to 19 U.S.C.
§ 1671a(b)(1) because there was no “supporting documentation on
the record for the alleged price differential,”66 nor any other
record evidence “which indicates that aluminum extrusions are
being sold at low prices in the PRC.”67 SolarWorld argues that
this determination was unreasonable because SolarWorld alleged
actual prices in the narrative portion of its allegation,
“demonstrating the significant benefit received by Chinese solar
producers during the POI.”68 But accepting this argument would
undermine the statutory requirement that not only must the
Petitioner allege all of the necessary elements, but the
allegations must also be accompanied with reasonably available
65Id. at § 1677(5)(E)(iv) (defining “benefit conferred,” “in the
case where goods or services are provided,” as where “such goods
or services are provided for less than adequate remuneration”).
66Determ. Not To Initiate Aluminum Extrusions, ECF No. 44-6
at Tab 21, at 9.
67 Id.
68See Pl.’s Br., Consol. Ct. No. 13-00009, ECF Nos. 78 & 79,
at 16 (citing SolarWorld’s 2d Aluminum Allegation, ECF No. 44-5
at Tab 13, at 42).
Court No. 13-00007 Page 21
evidentiary support.69 SolarWorld’s allegation provided no
sources for either the average U.S. export price or the average
Chinese import price alleged.70 As such, SolarWorld did not
“support[] those allegations.”71
Next, SolarWorld argues that Commerce unreasonably
found no support for the benefit element in SolarWorld’s timely
aluminum extrusions allegation, because the allegation “included
significant, documented information on the Chinese government’s
ownership of China’s aluminum industry and on the policies
69 19 U.S.C. § 1671a(b)(1).
70SolarWorld’s 2d Aluminum Allegation, ECF No. 44-5 at Tab 13,
at 42 & nn. 106-107 (providing no source for the Chinese import
prices which SolarWorld claimed to be using “as a proxy for
domestic Chinese prices,” and citing to “ITC Report” for the
U.S. export prices that SolarWorld claimed to be using “as a
proxy for world price”); Ex. 19 to SolarWorld’s 2d Aluminum
Allegation, ECF No. 44-5 at Tab 13 (the sole report from the
International Trade Commission (“ITC”) that was appended to
SolarWorld’s submission, making no mention of prices for
aluminum extrusions); see Determ. Not To Initiate Aluminum
Extrusions, ECF No. 44-6 at Tab 21, at 9 & n.13 (“[SolarWorld]
cites to an ITC report attached to its allegation to support its
world export price[;] however, this report does not address
aluminum, and contains no price data. We were unable to locate
this price anywhere else in the submission or in previous
submissions . . ., and there is no other information on the
record regarding possible benchmark prices for aluminum
extrusions that could possibly be used to demonstrate a
potential benefit.”) (noting that although SolarWorld also “did
not provide a citation for the figure it relied on for the PRC
domestic price,” Commerce “was able to locate this figure as the
POI average unit value of imported aluminum extrusions reported
by the [Government of China] in [a prior submission]”).
71 19 U.S.C. § 1671a(b)(1).
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instituted by the Chinese government to manage aluminum
prices,”72 which SolarWorld argues “provided further support for
the pricing data included in the allegation.”73 But the sources
provided in this portion of the allegation give no specific
information regarding aluminum extrusion pricing during the
POI.74 And while the allegation asserts that the Chinese
government “manages basic supply and demand in electrolytic
aluminum (i.e., primary aluminum),”75 and that “low prices are
passed on from the primary aluminum producers through the
aluminum extrusion producers to other downstream users,”76 the
allegation provides no evidence of actual pricing during the
72Pl.’s Br., Consol. Ct. No. 13-00009, ECF Nos. 78 & 79, at 16
(citing SolarWorld’s 2d Aluminum Allegation, ECF No. 44-5
at Tab 13, at 34-42).
73 Id.
74See SolarWorld’s 2d Aluminum Allegation, ECF No. 44-5
at Tab 13, at 34-35 (relying on Ex. III-69 (“Notice of
Guidelines on Accelerating the Adjustment of Aluminum Industry
Structure,” Fa Gai Yun Xing No. 589 (2006)) to SolarWorld’s
Initial CVD Petition, ECF No. 44-1 at Tab 1 Ex. III-69 (“Notice
of Guidelines”) (omitted from Pl.’s App., Consol. Ct.
No. 13-00009, ECF Nos. 80 & 81 at Tab 3) (providing no
information regarding aluminum extrusion prices during the
POI)); id. at 36-42 (providing no additional sources for
aluminum extrusion prices during the POI).
75Id. at 34 (citing Notice of Guidelines, ECF No. 44-1 at Tab 1
Ex. III-69, without providing a pinpoint citation).
76Id. (providing no citation for this proposition, but citing
Notice of Guidelines, ECF No. 44-1 at Tab 1 Ex. III-69, without
providing a pinpoint citation, for the assertion that “[t]he
plan specifically addresses aluminum extrusions,” id. at 34-35).
Court No. 13-00007 Page 23
relevant time period.77
Finally, SolarWorld argues that Commerce itself should
have filled in the evidentiary gap, either by extrapolating from
the agency’s findings in an entirely separate proceeding (where
Commerce found that the Chinese aluminum extrusions industry was
benefitting from certain countervailable subsidies during the
year prior to the POI here),78 or by “obtain[ing] the pricing
data from the International Trade Commission’s publicly
available and easily accessible DataWeb service.”79 But
Commerce’s previous finding, on the record of a separate
77 See id. at 34-43.
78Pl.’s Br., Consol. Ct. No. 13-00009, ECF Nos. 78 & 79, at 16
(citing Aluminum Extrusions from the [PRC], 76 Fed. Reg. 30,653
(Dep’t Commerce May 26, 2011) (countervailing duty order));
see SolarWorld’s 2d Aluminum Allegation, ECF No. 44-5 at Tab 13,
at 35-36 (arguing that because Commerce “has recently found the
provision of primary aluminum for less than adequate
remuneration to be a countervailable subsidy in Aluminum
Extrusions from China,” Commerce “should find the provision of
aluminum extrusions for less than adequate remuneration to
provide a countervailable subsidy in this investigation”)
(citing Issues & Decision Mem., Aluminum Extrusions from the
[PRC], C-570-968, Investigation (Mar. 28, 2011) (adopted in
76 Fed. Reg. 18,521 (Dep’t Commerce Apr. 4, 2011) (final
affirmative countervailing duty determination) (“Aluminum
Extrusions from China Final CVD Determination”)) at 32-36;
compare Aluminum Extrusions from China Final CVD Determination,
76 Fed. Reg. at 18,521 (providing the POI in the aluminum
extrusions case to have been January 1, 2009, through December
31, 2009), with Notice of Initiation, 76 Fed. Reg. at 70,966
(providing the POI in the CVD proceeding here to have been
January 1, 2010, through December 31, 2010).
79See Pl.’s Br., Consol. Ct. No. 13-00009, ECF Nos. 78 & 79,
at 17 (citation omitted).
Court No. 13-00007 Page 24
proceeding, that some Chinese aluminum extrusions producers were
benefitting from certain governmental subsidies does not in
itself constitute evidence that the Chinese solar panel industry
is therefore benefitting from the governmental provision of
aluminum extrusions for less than adequate remuneration. In
addition, accepting SolarWorld’s argument that Commerce should
have independently researched the publicly available pricing
data would distort the burden of production placed on
SolarWorld, as the interested party petitioning Commerce to
investigate its subsidy allegation, to allege all necessary
elements for the imposition of a countervailing duty, including
the element of benefit conferred, and to support each element
with reasonably available evidence.80 Under Section 1671a(b)(1),
it is not for Commerce to seek out evidence supporting the
interested party’s petition; rather, it is the interested
party’s burden to state and provide reasonably available
evidentiary support for each legal element of the alleged
countervailable subsidy to be investigated.81 Requiring that
Commerce itself should have researched the International Trade
Commission’s available price data to establish the evidentiary
support for SolarWorld’s allegation has the untenable effect of
80 See 19 U.S.C. §§ 1671a(b)(1), 1677(5)(B).
81 See 19 U.S.C. § 1671a(b)(1).
Court No. 13-00007 Page 25
negating the statutory requirement that petitioners themselves
supply the reasonably available evidence when petitioning for
the initiation of specific subsidy investigations pursuant to
Section 1671a(b)(1).82
Accordingly, because the record here supports
Commerce’s conclusion that SolarWorld’s Section 1671a(b)(1)
petition to investigate the alleged governmental provision of
aluminum extrusions to respondents for less than adequate
remuneration did not satisfy the requirements for initiation
(because the allegation of benefit conferred was devoid of any
evidentiary support), Commerce’s determination not to initiate
the investigation pursuant to 19 U.S.C. § 1671a(b)(1), on the
basis of SolarWorld’s incomplete allegation, is not
unreasonable, and is therefore sustained.
B. Glass
SolarWorld also claims that Commerce improperly
construed its latest timely glass subsidy allegation to cover
solely float glass, rather than rolled or patterned glass.83 But
this argument is belied by the facts. SolarWorld’s latest
timely glass subsidy allegation was a renewed allegation that
82 See id.
83Pl.’s Br., Consol. Ct. No. 13-00009, ECF Nos. 78 & 79,
at 29-32.
Court No. 13-00007 Page 26
specifically addressed the deficiencies identified by Commerce
in SolarWorld’s initial glass allegation, among which was
Commerce’s concern that SolarWorld had failed to specify “the
type of glass used” in the production of subject merchandise
that was allegedly being subsidized by the Chinese government.84
Responding to this specific concern, SolarWorld’s renewed
allegation unambiguously stated that “[t]he glass used in the
production of [subject merchandise] is a type of flat glass
called ‘float glass.’”85 Moreover, this allegation explicitly
distinguished float glass from rolled glass, asserting that the
type of glass used to produce the subject merchandise is
specifically float glass.86 Finally, all of the pricing
information with which SolarWorld supported its allegation that
respondents were receiving a benefit from the alleged subsidy
was specific to float glass.87 Accordingly, Commerce found that
84Rejection of SolarWorld’s 1st Glass Allegation, ECF No. 44-1
at Tab 3, at 2 (emphasis added).
85SolarWorld’s 2d Glass Allegation, Consol. Ct. No. 13-00009,
ECF Nos. 80-3 & 81-3 at Tab 22, at 2 (emphasis added).
86Id. (“Depending on the manufacturing process used, flat glass
comes either as float glass, sheet glass or rolled glass. The
glass typically used in [the subject merchandise] is float
glass, made through the ‘float process,’ in which glass is
formed on a bath of molten tin.”) (emphasis added, quotation
marks and citations omitted).
87Id. at 6 (relying on id. at Exs. 2 & 3 to support pricing
allegations); id. at Ex. 2 (providing 2010 monthly prices for
“U.S. exports of float glass” (emphasis added)); id. at Ex. 3
(footnote continued)
Court No. 13-00007 Page 27
SolarWorld had adequately alleged the elements necessary for the
imposition of a countervailing duty pursuant to 19 U.S.C.
§ 1671(a) solely with respect to float glass.88 On this record,
Commerce’s determination that SolarWorld’s allegations satisfied
the requirements for initiation pursuant to 19 U.S.C. § 1671a(b)
solely with respect to float glass was not unreasonable.
Because this determination comports with a reasonable reading of
the record evidence, and is therefore supported by substantial
evidence,89 it is sustained.
II. Commerce Did Not Abuse Its Discretion in Determining to
Defer the Investigations.
In the alternative, SolarWorld argues that even if
Commerce correctly concluded that its timely aluminum extrusions
and glass subsidy allegations did not meet the requirements for
initiation pursuant to 19 U.S.C. § 1671a(b), Commerce should
have either permitted SolarWorld to correct and re-submit its
deficient allegations, or else self-initiated the investigations
(providing 2010 monthly prices for “float glass in China,”
sourced from the “China Glass Network, average of prices for
4mm thickness float glass” (emphasis added)).
88Float Glass Initiation, ECF No. 44-5 at Tab 14, at 3
(“[SolarWorld] has provided information that indicates that
float glass is provided through [state-owned enterprises] for
[less than adequate remuneration].”) (emphasis added).
89 See Nippon Steel, 458 F.3d at 1351.
Court No. 13-00007 Page 28
pursuant to 19 U.S.C. § 1677d.90
A. Commerce Did Not Abuse Its Discretion in Determining
That Insufficient Time Remained to Permit SolarWorld
to Re-Submit Its Deficient Allegations.
The statute vests Commerce with the discretion to
determine when and upon which conditions petitioners may amend
their subsidy allegations in CVD proceedings.91 Here, by the
time that Commerce’s extended deadline for new subsidy
allegations expired,92 SolarWorld had presented Commerce with at
least thirty-four separate subsidy allegations, including five
new allegations submitted on the day of the deadline,93 with less
90Pl.’s Br., Consol. Ct. No. 13-00009, ECF Nos. 78 & 79,
at 17-29, 32-39.
9119 U.S.C. § 1671a(b)(1) (providing that petitions to initiate
investigations of specific subsidy allegations “may be amended
at such time, and upon such conditions, as [Commerce] may
permit”).
92See supra note 9 (providing relevant background and
citations); Def.’s Resp. in Opp’n to Pl.’s Mot. for J. Upon the
Admin. R., ECF No. 43 (“Def.’s Br.”) at 4 (providing more
detailed information in this regard, with relevant citations to
the record).
93See Initiation Notice, 76 Fed. Reg. at 70,968-69 (listing
twenty-seven separate subsidy allegations at initiation on
November 16, 2011); SolarWorld’s 1st Glass Allegation,
ECF No. 44-1 at Tab 2 (additional allegation submitted on
December 5, 2011; SolarWorld’s 2d Glass Allegation, Consol. Ct.
No. 13-00009, ECF Nos. 80-3 & 81-3 at Tab 22 (additional
allegation submitted on January 23, 2012); Prelim.
Determination, 77 Fed. Reg. at 17,440 (“Based on [a] request
from [SolarWorld], [Commerce] extended the deadline until
February 14, 2012, for submitting additional subsidy
allegations. . . . On February 14, 2012, [SolarWorld]
(footnote continued)
Court No. 13-00007 Page 29
than a month remaining until the agency was then scheduled to
present its preliminary results for the parties’ review,94 and
therefore approximately three months remaining until the
submitted five additional new subsidy allegations.”). The
twenty-seven initial allegations, plus the December 5, 2011,
glass allegation, plus the January 31, 2012, additional glass
allegation, plus the five additional February 14, 2012,
allegations add up to a total of thirty-four.
94See Prelim. Determination, 77 Fed. Reg. at 17,440 (noting that
the extended the deadline for submission of additional subsidy
allegations was February 14, 2012); [Solar Cells], Whether or
Not Assembled into Modules, from [China], 77 Fed. Reg. 4764,
4765 (Dep’t Commerce Jan. 31, 2012) (second postponement of
preliminary determination in the countervailing duty
investigation) (“2d Postponement”) (announcing the latest
postponement as of the February 14, 2012, new subsidy deadline;
postponing the preliminary determination, at SolarWorld’s second
request, until March 2, 2012). Subsequently, the preliminary
determination was postponed again because, “[d]ue to the number
of companies and the complexity of the alleged countervailable
subsidy practices being investigated,” this CVD investigation
was deemed “extraordinarily complicated.” [Solar Cells], Whether
or Not Assembled into Modules, from [China], 77 Fed. Reg.
10,478, 10,478 (Dep’t Commerce Feb. 22, 2012) (postponement of
preliminary determination in the countervailing duty
investigation) (“3d Postponement”) (postponing the preliminary
determination until March 19, 2012); but see Prelim.
Determination, 77 Fed. Reg. at 17,439 (providing an effective
date of March 26, 2012). When Commerce issued its preliminary
determination, the agency had not yet reached a determination as
to the five new subsidy allegations submitted by SolarWorld on
the day of the final extended new subsidy deadline, Prelim.
Determination, 77 Fed. Reg. at 17,440, but had already
determined that, even without these timely new allegations, “the
investigation [was] extraordinarily complicated.” 3d
Postponement, 77 Fed. Reg. at 10,478 (citing 19 U.S.C.
§ 1671b(c)(1)(B)(i) (permitting postponement of preliminary
determination if Commerce determines, inter alia, that “the case
is extraordinarily complicated”)).
Court No. 13-00007 Page 30
then-scheduled final determination.95 By the time that
SolarWorld sought to amend its deficient aluminum extrusions and
rolled glass allegations – May 15, 2012, and May 2, 2012,
respectively96 – the re-scheduled deadline for the final
determination was less than three months away.97 And although
the deadline for the final determination (newly aligned with the
95See 19 U.S.C. § 1671d(a)(1) (requiring Commerce to issue its
final determination within 75 days of the preliminary
determination); 2d Postponement, 77 Fed. Reg. at 4765 (setting
the date for the preliminary determination, effective at the
time of the latest extended deadline for new subsidy
submissions, as March 2, 2012); cf. 19 C.F.R. § 351.311(c)
(permitting deferral of self-initiated examination under
19 U.S.C. § 1677d if “insufficient time remains before the
scheduled date for the final determination”) (emphasis added).
On April 30, 2012, however, Commerce granted SolarWorld’s timely
request to align the deadline for the final CVD determination
with the deadline for the final determination in the companion
antidumping investigation of the subject merchandise. [Solar
Cells], Whether or Not Assembled into Modules, from [China],
77 Fed. Reg. 25,400, 25,400 (Dep’t Commerce Apr. 30, 2012)
(alignment of final countervailing duty determination with final
antidumping duty determination) (“Notice of Alignment”) (“The
final CVD determination will be issued on the same date as the
final [antidumping] determination, which is currently scheduled
to be issued no later than July 30, 2012, unless postponed.”)
(relying on 19 U.S.C. § 1671d(a)(1) (“[W]hen [a CVD]
investigation . . . is initiated simultaneously with an
[antidumping] investigation . . ., which involves imports of the
same class or kind of merchandise from the same or other
countries, [Commerce], if requested by the petitioner, shall
extend the date of the final [CVD] determination . . . to the
date of the final [antidumping] determination . . . .”) and
19 C.F.R. § 351.210(b)(4)(i) (providing for same)).
96SolarWorld’s 3d Aluminum Allegation, ECF No. 44-6 at Tab 22,
at 4 & Ex. 1; SolarWorld’s 3d Glass Initiation, ECF No. 44-5
at Tab 19, at 5.
97 Notice of Alignment, 77 Fed. Reg. at 25,400.
Court No. 13-00007 Page 31
deadline for the final determination in the companion
antidumping investigation) was subsequently postponed, only
three and a half months remained by the time of Commerce’s
decision that insufficient time remained to permit SolarWorld to
re-file or to self-initiate pursuant to 19 U.S.C. § 1677d.98
Having found SolarWorld’s latest timely aluminum extrusions and
non-float glass subsidy allegations to fall short of the
requirements for initiation under 19 U.S.C. § 1671a(b),99
Commerce determined that “there was simply not enough time to
allow [SolarWorld] to re-file its allegations and collect and
analyze the information necessary,”100 which typically “amounts
to several hundred pages of documents that must be analyzed once
all questionnaires have been answered,”101 in a proceeding that,
even without these additional allegations, was already
98Post-Prelim. Determination, ECF No. 44-6 at Tab 23, at 15-16
(issuing the decision that insufficient time remained on
June 22, 2012); see [Solar Cells], Whether or Not Assembled into
Modules, from [China], 77 Fed. Reg. 31,309, 31,324 (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)
(postponing the final determination “until no later than
135 days after the publication of this notice in the Federal
Register”).
99See supra Discussion Section I (affirming Commerce’s
determinations in this regard).
100 I&D Mem. cmt. 10 at 37 (footnote omitted).
101 Id. at 38.
Court No. 13-00007 Page 32
“extraordinarily complicated.”102
SolarWorld argues that Commerce unreasonably
determined that insufficient time remained to initiate the
investigations after finding SolarWorld’s latest timely aluminum
extrusions and glass allegations to be deficient.103 But
“agencies with statutory enforcement responsibilities enjoy
broad discretion in allocating investigative and enforcement
resources,”104 and here Commerce was already occupied with
investigating, within strict statutory deadlines,105 dozens of
SolarWorld’s additional subsidy allegations.106 Because
Commerce’s conclusion that insufficient time remained to permit
102 See 3d Postponement, 77 Fed. Reg. at 10,478.
103Pl.’s Br., Consol. Ct. No. 13-00009, ECF Nos. 78 & 79,
at 21-23; 33-34.
104Torrington Co. v. United States, 68 F.3d 1347, 1351
(Fed. Cir. 1995) (citing Heckler v. Chaney, 470 U.S. 821, 831
(1985)); see also Longkou Haimeng Mach. Co. v. United States,
32 CIT 1142, 1151, 581 F. Supp. 2d 1344, 1353 (2008) (“[A]ny
assessment of Commerce’s operational capabilities or deadline
rendering must be made by the agency itself.”) (relying on
Torrington, 68 F.3d at 1351).
105Cf., e.g., Maui Pineapple Co. v. United States, 27 CIT 580,
595, 264 F. Supp. 2d 1244, 1257 (2003) (“[D]ue to deadlines and
limited resources, it is vital that accurate information be
provided promptly to allow the agency sufficient time for
review[,] [and] Commerce . . . has broad discretion to fashion
its own rules of administrative procedure, including the
authority to establish and enforce time limits concerning the
submission of written information and data.”) (quotation marks
and citations omitted).
106 See supra note 93 (providing relevant citations).
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SolarWorld to re-file its subsidy allegations after the latter
were found to be deficient was not demonstrably “an unreasonable
judgment in weighing [the] relevant factors,”107 Commerce did not
abuse its discretion in so concluding.108 And while SolarWorld
argues that Commerce acted arbitrarily, because the agency
permitted certain respondents to cure deficiencies in their
questionnaire responses,109 Commerce did not “treat[] similar
107See WelCom Prods., 36 CIT at __, 865 F. Supp. 2d at 1344 (“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.”) (citing
Star Fruits, 393 F.3d at 1281). Here, Commerce properly
interpreted the law to grant the agency discretion,
see 19 U.S.C. § 1671a(b)(1) (providing that new subsidy
allegations “may be amended at such time, and upon such
conditions, as [Commerce] may permit”), and the agency’s factual
findings regarding the deficiencies in SolarWorld’s latest
timely Section 1671a(b)(1) petitions for investigation of its
aluminum extrusions and glass allegations were supported by
substantial evidence. See supra Discussion Section I (affirming
Commerce’s determinations in this regard).
108See Vt. Yankee Nuclear Power Corp., 435 U.S. at 543 (“Absent
constitutional constraints or extremely compelling circumstances
the administrative agencies should be free to fashion their own
rules of procedure and to pursue methods of inquiry capable of
permitting them to discharge their multitudinous duties.”)
(quotation marks and citation omitted).
109Pl.’s Br., Consol. Ct. No. 13-00009, ECF Nos. 78 & 79,
at 18-20; 32-33 (arguing that Commerce acted arbitrarily in
deciding that insufficient time remained for SolarWorld to
re-file its deficient allegations, because the agency had
provided respondents with opportunities to correct deficiencies
in their questionnaire responses) (quoting SKF USA, Inc.
v. United States, 263 F.3d 1369, 1382 (Fed. Cir. 2001) (quoting
Transactive Corp. v. United States, 91 F.3d 232, 237 (D.C. Cir.
(footnote continued)
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situations differently,”110 because the agency had in fact also
permitted SolarWorld to cure the deficiencies in both its
initial aluminum and glass allegations, and had extended the
deadlines to permit SolarWorld to do so.111
B. Commerce Did Not Abuse Its Discretion in Determining
That Insufficient Time Remained to Self-Initiate
Under 19 U.S.C. § 1677d.
Next, SolarWorld argues that Commerce should have
nevertheless initiated investigations into whether the Chinese
government provided aluminum extrusions and rolled glass to
respondents for less than adequate remuneration, pursuant to the
1996) (“[A]n agency action is arbitrary when the agency offer[s]
insufficient reasons for treating similar situations
differently.”))).
110See SKF USA, 263 F.3d at 1382 (quotation marks and citation
omitted).
111See supra Background Section I & nn.6, 8-10 (providing
background and relevant citations regarding permitted amendments
to SolarWorld’s initial aluminum allegation); supra Background
Section II & nn. 18, 20-21 (providing background and relevant
citations regarding permitted amendments to SolarWorld’s initial
glass allegation); supra note 93 (detailing the relevant time
extensions granted at SolarWorld’s request); see also Def.’s
Br., ECF No. 43, at 20 (“[T]hroughout the proceeding, and in
recognition of the extraordinary complexity of the
investigation, Commerce granted several extensions of time to
both SolarWorld and the respondents.”) (emphasis in original);
cf. Royal Thai Gov’t v. United States, 28 CIT 1218, 1226,
341 F. Supp. 2d 1315, 1323 (2004) (“[Petitioner] overlooks the
fact that there should not have been any ‘evidentiary
deficiencies’ to correct.”) (citation omitted), aff’d in part
& rev’d in part on other grounds, 436 F.3d 1330 (Fed. Cir.
2006).
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agency’s authority under 19 U.S.C. § 1677d, arguing that
Commerce had more than enough time in which to self-initiate and
complete these additional investigations in this proceeding.112
Commerce acknowledged its “authority to examine
practices that appear to be countervailable subsidies discovered
at any time during the course of an investigation,”113 but
referenced the agency’s regulations in explaining that Commerce
may “defer examination of any such practice if there is
insufficient time remaining before the final determination.”114
Finding that insufficient time remained in this proceeding to
initiate these investigations, notwithstanding the evidentiary
deficiencies in SolarWorld’s allegations, Commerce specifically
112Pl.’s Br., Consol. Ct. No. 13-00009, ECF Nos. 78 & 79,
at 23-27; 34-38.
113Post-Prelim. Determination, ECF No. 44-6 at Tab 23, at 16;
see 19 U.S.C. § 1677d. While SolarWorld argues that Commerce
failed to undertake the inquiry as to whether self-initiation
was warranted pursuant to 19 U.S.C. § 1677d, see Pl.’s Br.,
Consol. Ct. No. 13-00009, ECF Nos. 78 & 79, at 28 (quoting
Allegheny Ludlum Corp. v. United States, 25 CIT 816, 821 (2001)
(not reported in the Federal Supplement) (“Since the plain
language of [19 U.S.C. § 1677d] and [19 C.F.R. § 351.311] only
require Commerce to investigate where there is a practice that
‘appears to be’ or ‘appears to provide’ a countervailable
subsidy, it follows that Commerce must first determine whether
that threshold is met.”) (SolarWorld’s alteration omitted)),
Commerce in fact acknowledged this possibility, Post-Prelim.
Determination, ECF No. 44-6 at Tab 23, at 16, but found that
insufficient time remained in this complex proceeding to act on
it, see id.
114Post-Prelim. Determination, ECF No. 44-6 at Tab 23, at 16
(citing 19 C.F.R. § 351.311(c)).
Court No. 13-00007 Page 36
stated that the agency’s “rejection of [SolarWorld]’s arguments
is in no way a comment on the merits of those allegations, which
[SolarWorld] may resubmit at the outset of any administrative
review.”115 And in fact Commerce went on to investigate (and
ultimately countervail for) both of these subsidy allegations in
the subsequent first administrative review.116
115Id.; see 19 C.F.R. § 351.311(c)(2) (“If [Commerce] concludes
that insufficient time remains before the scheduled date for the
final determination . . . to examine the practice, subsidy, or
subsidy program [described by 19 U.S.C. § 1677d and 19 C.F.R.
§ 351.311(b)], [Commerce] will . . . defer consideration of the
newly discovered practice, subsidy, or subsidy program until a
subsequent administrative review, if any.”).
116See Def.’s Br., ECF No. 43, at 22, 39 (citing Issues
& Decision Mem., [Solar Cells], Whether or Not Assembled into
Modules, from [China], C-570-980, ARP 3/12-12/12 (July 7, 2015)
(adopted in 80 Fed. Reg. 41,003, 41,004 (Dep’t Commerce July 14,
2015) (final results of countervailing duty administrative
review; 2012)) at 21-23 (determining the provision of aluminum
extrusions for less than adequate remuneration to be
countervailable), 23-25 (determining the provision of “solar
glass” for less than adequate remuneration to be
countervailable)). Responding to the court’s inquiry as to
whether, given retroactive duty assessment, Commerce’s
determinations to investigate and countervail for these
subsidies in the subsequent administrative review mooted the
issues presented here, see Order, Sept. 25, 2015, ECF No. 45,
the parties explained that the controversy presented is not
mooted because, “in the first administrative review, in which
review requests for various companies were rescinded, the
rescinded companies were assessed the rate calculated in the
investigation.” Def.’s Suppl. Br., ECF No. 51, at 2 (citing
[Solar Cells], Whether or Not Assembled into Modules, from
[China], 80 Fed. Reg. 8597 (Dep’t Commerce Feb. 18, 2015)
(notice of correction to preliminary results of countervailing
duty administrative review; 2012 and partial rescission of
countervailing duty administrative review));
see also Pl. [SolarWorld]’s Suppl. Br., ECF No. 52, at 2
(footnote continued)
Court No. 13-00007 Page 37
As discussed above, Commerce’s determinations that
SolarWorld’s latest timely aluminum extrusions and rolled glass
allegations failed to satisfy the requirements for petition-
based initiation are supported by substantial evidence, and the
agency did not abuse its discretion in concluding that
insufficient time remained in this proceeding to permit
SolarWorld to re-file the allegations.117 The agency is not
mandated to unreasonably over-extend itself when faced with
limited resources. It follows that Commerce also did not abuse
its discretion in concluding that insufficient time remained in
this proceeding to self-initiate the investigations.118 As this
Court has previously explained, “a petitioner who does not
timely make a [legally complete and sufficient] subsidy
allegation, even though it could, risks having Commerce defer
its investigation to a subsequent administrative review.”119
(listing specific respondents for whom this is the case).
117 Supra Discussion Sections I & II.A.
118See Post-Prelim. Determination, ECF No. 44-6 at Tab 23, at 16
(relying on 19 C.F.R. § 351.311(c)) (unchanged in the Final
Determination, 77 Fed. Reg. 63,788; I&D Mem. cmt. 10 at 36-38).
119Allegheny Ludlum Corp. v. United States, 24 CIT 452, 461
n. 12, 112 F. Supp. 2d 1141, 1151 n. 12 (2000) (explaining that
19 C.F.R. § 251.311(c)(2) “allow[s] Commerce to ‘defer
consideration of the newly discovered practice, subsidy, or
subsidy program until a subsequent administrative review’ if
Commerce ‘concludes that insufficient time remains before the
scheduled date for the final determination’” (quoting 19 C.F.R.
§ 251.311(c)(2))); see also Bethlehem Steel Corp. v. United
(footnote continued)
Court No. 13-00007 Page 38
That is exactly what happened here.
Accordingly, because Commerce’s decisions to defer
consideration of SolarWorld’s untimely aluminum extrusions and
rolled glass subsidy allegations until the next administrative
review were based on factual findings that are supported by
substantial evidence, were not an abuse of the agency’s
discretion, and were otherwise free of any legal error, these
determinations are sustained.
CONCLUSION
For all of the foregoing reasons, Commerce’s Final
Determination is affirmed. Judgment will issue accordingly.
/s/ Donald C. Pogue______
Donald C. Pogue, Senior Judge
Dated: December 11, 2015
New York, NY
States, 25 CIT 307, 313, 140 F. Supp. 2d 1354, 1361 (2001)
(recognizing that “when Commerce is faced with . . .
extraordinarily complex subsidy allegations it may lack the
resources or the time necessary to investigate the new
allegations”) (quotation marks omitted); 3d Postponement,
77 Fed. Reg. at 10,478 (determining that “the investigation
[was] extraordinarily complicated,” even without taking into
account the five new subsidy allegations SolarWorld submitted on
the day of the last extended deadline for new subsidy
submissions, or its subsequent attempts to re-file the aluminum
extrusions and glass allegations).