Slip Op. 19-

               UNITED STATES COURT OF INTERNATIONAL TRADE


 SOLARWORLD AMERICAS, INC.,

        Plaintiff,

 SINO-AMERICAN SILICON
 PRODUCTS INC. and SOLARTECH
 ENERGY CORP.,

        Consolidated Plaintiffs,

 v.                                             Before: Jennifer Choe-Groves, Judge

 UNITED STATES,                                 Consol. Court No. 17-00208

        Defendant,

 and

 MOTECH INDUSTRIES, INC.,
 KYOCERA SOLAR, INC., and
 KYOCERA MEXICANA S.A. DE C.V.,

        Defendant-Intervenors.



                                         OPINION

[Sustaining the U.S. Department of Commerce’s remand results on the administrative review of
the antidumping duty order on certain crystalline silicon photovoltaic products from Taiwan.]

                                                                 Dated: May 22, 2019

Timothy C. Brightbill, Adam M. Teslik, Cynthia C. Galvez, Laura El-Sabaawi, Maureen E.
Thorson, Tessa V. Capeloto and Usha Neelakantan, Wiley Rein, LLP, of Washington, D.C., for
Plaintiff SolarWorld Americas, Inc.

Robert G. Gosselink, Jarrod M. Goldfeder, and Jonathan M. Freed, Trade Pacific, PLLC, of
Washington, D.C., for Consolidated Plaintiffs and Defendant-Intervenors Sino-American Silicon
Products Inc. and Solartech Energy Corp. and Defendant-Intervenor Motech Industries, Inc.
Consol. Court No. 17-00208                                                                    Page 2


Reginal T. Blades, Jr., Assistant Director, and Stephen C. Tosini, Senior Trial Counsel,
Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C.,
for Defendant United States. With them on the brief were Joseph H. Hunt, Assistant Attorney
General, and Jeanne E. Davidson, Director. Of counsel on the brief was Reza Karamloo, Office
of the Chief Counsel for Trade and Enforcement Compliance, U.S. Department of Commerce, of
Washington, D.C.

James K. Horgan, Alexandra H. Salzman, Gregory S. Menegaz, and John J. Kenkel, deKieffer &
Horgan, PLLC, of Washington, D.C., for Defendant-Intervenors Kyocera Solar, Inc. and
Kyocera Mexicana S.A. de C.V.


       Choe-Groves, Judge: This case involves crystalline silicon photovoltaic products

(typically, solar cells) from Taiwan. The Department of Commerce (“Commerce”) conducted an

administrative review of the antidumping duty order on crystalline silicon photovoltaic products,

in which Commerce concluded that two producers, Sino-American Silicon Products Inc.

(“SAS”) and its affiliated entity Solartech Energy Corp. (“Solartech”) (collectively, “SAS-

Solartech”), and Motech Industries, Inc. (“Motech”) sold the subject merchandise at prices below

the normal value during the period of review. See Certain Crystalline Silicon Photovoltaic

Products From Taiwan, 82 Fed. Reg. 31,555 (Dep’t Commerce July 7, 2017) (final results of

antidumping duty administrative review; 2014–2016) (“Final Results”).

       Before the court are the Final Results of Redetermination Pursuant to Court Order, Feb.

15, 2019, ECF No. 81 (“Remand Results”), filed by Commerce as directed in the court’s prior

opinion. See SolarWorld Americas, Inc. v. United States, 42 CIT __, 

(2018) (“SolarWorld I”). For the reasons that follow, the court sustains Commerce’s Remand

Results.

                                 PROCEDURAL HISTORY

       In SolarWorld I, SAS-Solartech filed a Rule 56.2 motion for judgment on the agency

record contesting Commerce’s decision to include in its margin calculation for the Final Results
Consol. Court No. 17-00208                                                                  Page 3


certain sales made via United States free trade zones (“FTZs”) to Mexico. SolarWorld I, 42 CIT

at __, 353 F. Supp. 3d at 1319. SAS-Solartech argued that Commerce unreasonably ignored

evidence establishing that SAS knew at the time of sale that its merchandise entered United

States FTZs in transit, but was destined for sale in Mexico. Id. at __, 353 F. Supp. 3d at 1322.

The court concluded in Solar World I that Commerce’s decision to include the sales at issue in

its margin calculation was not supported by substantial evidence because SAS-Solartech cited

four documents on the record that demonstrated that SAS knew at the time of sale that its

merchandise was ultimately shipped to Mexico, including: (1) verbal instruction from its

customers that the final destination of the merchandise was Mexico; (2) SAS’ knowledge that its

customers had manufacturing facilities in Mexico; (3) the sales documentation generated at the

time of sale listed “Mexico as the ultimate ‘ship to’ destination and a Mexican entity as the

‘notify’ party, meaning that a Mexican entity was the intended recipient of the merchandise;”

and (4) the United States addresses on the sales documentation were of “consignee freight

forwarders that operated within approved” United States FTZs. See id. at __, 353 F. Supp. 3d at

1322–23. The court remanded this matter for Commerce to reassess its inclusion of certain sales

made by SAS in its dumping calculation. Id. at __, 353 F. Supp. 3d at 1323.

          On remand, Commerce excluded the sales at issue from its dumping calculation for SAS-

Solartech. See Remand Results at 3. SAS-Solartech’s dumping margin changed from 3.56% to

1.52%. 

SAS-Solartech’s dumping margin served as part of the basis for the rate for

non-selected companies, and the rate for non-selected companies changed from 4.10% to 3.78%.

See 

Americas, Inc. (“Plaintiff”) and Defendant-Intervenors Motech

Industries, Inc., Kyocera Solar, Inc., and Kyocera Mexicana S.A. de C.V. (collectively,
Consol. Court No. 17-00208                                                                 Page 4


“Defendant-Intervenors”) did not file any comments in response to the Remand Results.

Consolidated Plaintiffs SAS-Solartech and Defendant United States request that the court sustain

the Remand Results. See Comments Consol. Pls., Sino-American Silicon Products Inc. and

Solartech Energy Corp., Commerce’s Remand Redetermination, Mar. 13, 2019, ECF No. 83;

Def.’s Resp. Comments Regarding Remand Redetermination, Apr. 3, 2019, ECF No. 84.

                      JURISDICTION AND STANDARD OF REVIEW

       The court has jurisdiction pursuant to 28 U.S.C. § 1581(c) (2012) and Sections

516A(a)(2)(A)(i)(I) and (B)(iii) of the Tariff Act of 1930, as amended, 19 U.S.C.

§§ 1516a(a)(2)(A)(i)(I) and (B)(iii). The court shall hold unlawful any determination, finding, or

conclusion found to be unsupported by substantial evidence on the record, or otherwise not in

accordance with the law. 19 U.S.C. § 1516a(b)(1)(B)(i).

                                           ANALYSIS

       The court found in SolarWorld I that substantial evidence did not support Commerce’s

decision to include certain SAS sales allegedly destined for Mexico via United States Free Trade

Zones in Commerce’s United States price calculations. See SolarWorld I, 42 CIT at __, 353 F.

Supp. 3d at 1323. Evidence on the record established sales to customers in Mexico and

demonstrated that the merchandise was shipped to addresses of United States FTZs, with no

actual United States customers identified and no evidence showing that merchandise entered the

United States customs territory for sale. 

Commerce excluded the sales at issue from its dumping calculation for SAS-

Solartech. See Remand Results at 3. The court must determine whether the evidence and

reasonable inferences from the record support Commerce’s findings. Daewoo Elecs. Co. v. Int’l

Union, 

, 1520 (Fed. Cir. 1993) (citing Matsushita Elec. Indus. Co. v. United States,
Consol. Court No. 17-00208                                                                     Page 5

, 933 (Fed. Cir. 1984)). Because evidence on the record established sales to

customers in Mexico via United States FTZ addresses, with no actual United States customers

identified and no evidence showing that merchandise entered the United States customs territory

for sale, the court concludes that Commerce’s exclusion of the sales at issue is reasonable.

       SAS-Solartech does not challenge the Remand Results. Plaintiff and Defendant-

Intervenors do not challenge the Remand Results and have waived any objections by declining to

submit comments on the Remand Results to the court. See United States v. Great Am. Ins. Co.

of N.Y., 

, 1328 (Fed. Cir. 2013) (“It is well established that arguments that are not

appropriately developed in a party’s briefing may be deemed waived.”). The court sustains

Commerce’s Remand Redetermination.

       Judgment will be entered accordingly.



                                                                 /s/ Jennifer Choe-Groves
                                                                  Jennifer Choe-Groves, Judge

Dated: May 22, 2019
      New York, New York