Solarworld Ams., Inc. v. United States, Slip Op. 17–67

Decision Date07 June 2017
Docket NumberSlip Op. 17–67,Court No. 15–00232
Citation229 F.Supp.3d 1362
Parties SOLARWORLD AMERICAS, INC., Plaintiff, v. UNITED STATES, Defendant, and Jinko Solar Import & Export Co., Ltd. et al., Defendant–Intervenors.
CourtU.S. Court of International Trade

Timothy C. Brightbill and Laura El–Sabaawi , Wiley Rein, LLP, of Washington, DC, for plaintiff.

Justin Reinhart Miller , Senior Trial Counsel, Civil Division, U.S. Department of Justice, of New York, NY, for defendant. With him on the brief were Chad A. Readler , Acting Assistant Attorney General, Jeanne E. Davidson , Director, and Reginald T. Blades, Jr. , Assistant Director. Of Counsel on the brief was Lydia Caprice Pardini , Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, DC.

Neil R. Ellis , Richard L.A. Weiner , Rajib Pal , Shawn Michael Higgins , and Justin Ross Becker , Sidley Austin, LLP, of Washington, DC, for defendant-intervenors.

OPINION

Kelly, Judge:

Before the court for review is the U.S. Department of Commerce's ("Commerce" or "Department") remand redetermination in the first administrative review of the countervailing duty order covering crystalline silicon photovoltaic cells, whether or not assembled into modules, from the People's Republic of China ("China"), filed pursuant to the court's order in SolarWorld Americas, Inc. v. United States , 40 CIT ––––, 182 F.Supp.3d 1372 (2016) ("SolarWorld I "). Final Results of Redetermination Pursuant to Remand, Jan. 18, 2017, ECF No. 49–1 ("Remand Results"); see Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the People's Republic of China , 80 Fed. Reg. 41,003 (Dep't Commerce July 14, 2015) (final results of countervailing duty administrative review; 2012) and accompanying Issues and Decision Memorandum for the Final Results of the Countervailing Duty Administrative Review: Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, from the People's Republic of China, C–570–980, (July 7, 2015), ECF No. 21–2 ("Final Decision Memo"); see also Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the People's Republic of China , 77 Fed. Reg. 73,017 (Dep't Commerce Dec. 7, 2012) (countervailing duty order). For the reasons that follow, Commerce's Remand Results adequately address the concerns raised in the court's prior opinion, are supported by substantial evidence, and are in accordance with law. The Remand Results are therefore sustained.

BACKGROUND

The court assumes familiarity with the facts of this case as set out in full in the previous opinion ordering remand to Commerce, see SolarWorld I , 40 CIT at ––––, 182 F.Supp.3d at 1374–75, and here recounts the facts relevant to the court's review of the Remand Results.

In the underlying countervailing duty ("CVD") investigation covering crystalline silicon photovoltaic cells, whether or not assembled into modules, from China, Commerce determined that the Government of China provided a countervailable subsidy through its Export–Import Bank in the form of loans at preferential rates for buyers of goods used in certain energy projects, including solar cells, for export from China ("Export Buyer's Credit Program"). See Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the People's Republic of China , 77 Fed. Reg. 63,788, 63,789 (Dep't Commerce Oct. 17, 2012) (final affirmative CVD determination); see Final Decision Memo at 33. In the investigation, Commerce applied adverse facts available ("AFA")1 to select a rate of 10.54 percent for this program, corresponding to the highest rate calculated for the identical program in another CVD proceeding for the same country, as no rate was calculated for a cooperating respondent for the identical program within this proceeding.2 Issues and Decision Memorandum for the Final Determination in the Countervailing Duty Investigation of Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, from the People's Republic of China at 64, C–570–980, (Oct. 9, 2012), available at http://ia.ita.doc.gov/frn/summary/prc/2012-25564-1.pdf (last visited June 2, 2017).

On February 3, 2014, Commerce initiated the first administrative review of the CVD order covering subject merchandise entered during the period of March 26, 2012 through December 31, 2012. Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part , 79 Fed. Reg. 6,147, 6,149 –57 (Dep't Commerce Feb. 3, 2014). In the final determination of the first administrative review, Commerce again applied AFA to the Export Buyer's Credit Program.3 Final Decision Memo at 14, 33, 43–44. Commerce applied an AFA rate of 5.46 percent to the Export Buyer's Credit Program,4 a rate which corresponds to the highest rate calculated for a similar program in this proceeding.5 Id. at 44.

Plaintiff, SolarWorld Americas, Inc. ("SolarWorld"), moved for judgment on the agency record, challenging Commerce's determination in the first administrative review.6 See SolarWorld's Mot. J. Agency R., Feb. 12, 2016, ECF No. 24. Specifically, SolarWorld challenged as unsupported by substantial evidence and otherwise contrary to law Commerce's determination to countervail the Export Buyer's Credit Program at an AFA rate of 5.46 percent in the review, contending that Commerce selected the rate using an AFA methodology that unreasonably differs from the methodology the agency uses in investigations. Br. Supp. Pl. SolarWorld Americas, Inc.'s Rule 56.2 Mot. J. Agency R. 9–20, Feb. 12, 2016, ECF No. 24. Defendant responded that Commerce followed its practice of selecting an AFA rate to apply in administrative reviews. Def.'s Opp.'n Pls.' Mot. J. Admin. R. 8–18, May 10, 2016, ECF No. 26. The court remanded to Commerce to clarify or reconsider, as appropriate, its AFA rate selection hierarchy as applied in this administrative review. SolarWorld I , 40 CIT at ––––, 182 F.Supp.3d at 1375, 1381. Commerce published the Remand Results on January 18, 2017. See generally Remand Results.

SolarWorld argues that on remand Commerce has failed to explain why its different AFA rate source selection methodology in investigations and reviews is reasonable, and has not supported its determination to countervail the Export Buyer's Credit Program at an AFA rate of 5.46 percent in this review. Pl. SolarWorld Americas Inc.'s Resp. to Final Results of Redetermination Pursuant to Remand 4–9, Feb. 24, 2017, ECF No. 53 ("SolarWorld Remand Comments"). Defendant responds that the Remand Results provide a reasonable explanation for Commerce's different AFA rate source selection methodologies in investigations and reviews. Def.'s Resp. to Comments the Remand Redetermination 9–12, Apr. 24, 2017, ECF No. 56.7

STANDARD OF REVIEW

The court has jurisdiction pursuant to Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) and 28 U.S.C. § 1581(c) (2012),8 which grant the court authority to review actions contesting the final determination in an administrative review of a countervailing duty order. "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 law." 19 U.S.C. § 1516a(b)(1)(B)(i). "The results of a redetermination pursuant to court remand are also reviewed ‘for compliance with the court's remand order.’ " Xinjiamei Furniture (Zhangzhou) Co. v. United States , 38 CIT ––––, 968 F.Supp.2d 1255, 1259 (2014) (quoting Nakornthai Strip Mill Public Co. v. United States , 32 CIT 1272, 1274, 587 F.Supp.2d 1303, 1306 (2008) ).

DISCUSSION

The court remanded to Commerce for further explanation or reconsideration of the agency's different AFA rate selection practices in investigations and reviews, in the context of the selection of an AFA rate for the countervailable Export Buyer's Credit Program in this first administrative review. SolarWorld I , 40 CIT at ––––, 182 F.Supp.3d at 1375, 1381. On remand Commerce provided further explanation of its AFA rate selection hierarchy practices, in general and as applied in this review, stating that the methodologies differ because less information is generally on the record in an investigation than in a review, requiring the agency to shift its methodology in order to achieve a rate with appropriate accuracy and inducement in investigations. See Remand Results 4–9. For the reasons that follow, Commerce's explanation is reasonable and complies with the court's order.

During a CVD proceeding, Commerce may select a rate with which to countervail a subsidy program by applying an adverse inference from among the facts otherwise available where it "finds that an interested party has failed to cooperate by not acting to the best of its ability to comply with [its] request for information." 19 U.S.C. § 1677e(b). When applying an adverse inference, Commerce may rely on information derived from any stage of the proceeding, including the petition, a final determination in the investigation, any previous review, or any other information placed on the record. Id. §§ 1677e(b)(1)(4) ; 19 C.F.R. §§ 351.308(c)(1)(i)(iii) (2012).9

Commerce has considerable discretion to develop a methodology for calculating an AFA rate derived from one of the sources listed in the statute to countervail a subsidy program, as neither the statute nor the regulations dictate how Commerce is to determine the AFA rate. See 19 U.S.C. §§ 1677e(b)(1)(4) ; 19 C.F.R. § 351.308(c)(1). The statute does not require Commerce to favor any single source from among the list of possible sources on which it could base its adverse inference. See 19 U.S.C. §§ 1677e(b)(1)(4). An AFA rate selected by Commerce must reasonably balance the objectives of inducing compliance and determining an accurate rate. See F.lli De Cecco di Filippo Fara S. Martino S.p.A. v. United States , 216 F.3d 1027, 1032 (Fed. Cir. 2...

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