Solarworld Ams., Inc. v. United States

Decision Date28 June 2017
Docket NumberSlip Op. 17–75,Consol. Court No. 15–00231
Citation234 F.Supp.3d 1286
Parties SOLARWORLD AMERICAS, INC. and Goal Zero, LLC, Plaintiff and Consolidated Plaintiff, v. UNITED STATES, Defendant, and Yingli Green Energy Holding Co., Ltd. et al., Defendant–Intervenors and Consolidated Defendant–Intervenor.
CourtU.S. Court of International Trade

Timothy C. Brightbill , Wiley Rein, LLP, of Washington, DC, argued for Plaintiff and Consolidated DefendantIntervenor SolarWorld Americas, Inc. With him on the brief was Laura El–Sabaawi .

Diana Dimitriuc–Quaia , Arent Fox LLP, of Washington, DC, argued for Consolidated Plaintiff Goal Zero, LLC. With her on the brief were John Marshall Gurley and Aman Kakar.

Tara Kathleen Hogan , Senior Trial Counsel, U.S. Department of Justice, Commercial Litigation Branch—Civil Division, of Washington, DC, argued for defendant. With her 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 on the brief were Amanda T. Lee and Mercedes C. Morno , U.S. Department of Commerce, Office of the Chief Counsel for Trade Enforcement & Compliance.

Neil R. Ellis , Sidley Austin, LLP, of Washington, DC, argued for DefendantIntervenors Yingli Green Energy Holding Co., Ltd., Yingli Green Energy Americas, Inc., Yingli Energy (China) Co., Ltd., Baoding Tianwei Yingli New Energy Resources Co., Ltd., Tianjin Yingli New Energy Resources Co., Ltd., Hengshui Yingli New Energy Resources Co., Ltd., Lixian Yingli New Energy Resources Co., Ltd., Baoding Jiasheng Photovoltaic Technology Co., Ltd., Beijing Tianneng Yingli New Energy Resources Co., Ltd., Hainan Yingli New Energy Resources Co., Ltd., Jinko Solar Import & Export Co., Ltd., and JinkoSolar International Limited, and Jinko Solar Co., Ltd. With him on the brief were Richard L.A. Weiner , Rajib Pal , Shawn Michael Higgins , and Justin Ross Becker .

Robert George Gosselink , Jarrod Mark Goldfeder , and Jonathan Michael Freed , Trade Pacific, PLLC, of Washington, DC, for DefendantIntervenors Changzhou Trina Solar Energy Co., Ltd. and Trina Solar (Changzhou) Science & Technology Co., Ltd.

OPINION AND ORDER

Kelly, Judge:

This action is before the court on USCIT Rule 56.2 motions for judgment on the agency record challenging the U.S. Department of Commerce's ("Department" or "Commerce") determination in the first administrative review of the antidumping duty ("ADD") order covering crystalline silicon photovoltaic cells, whether or not assembled into modules, from the People's Republic of China ("China" or "the PRC"). See SolarWorld's Mot. J. Agency R., Apr. 15, 2016, ECF No. 62; Consolidated Pl. Goal Zero LLC's Rule 56.2 Mot. J. Agency R., Apr. 15, 2016, ECF No. 60–1; Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the [PRC] , 80 Fed. Reg. 40,998 (Dep't Commerce July 14, 2015) (final results of ADD administrative review and final determination of no shipments; 20122013) ("Final Results ") and accompanying Decision Memorandum for the Final Results of the 20122013 [ADD] Administrative Review of Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled into Modules, From the [PRC], Sept. 16, 2015, ECF No. 20–5 ("Final Decision Memo").

Plaintiff, SolarWorld Americas, Inc. ("SolarWorld"), commenced this action pursuant to section 516A of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2012).1 See Summons, Aug. 12, 2015, ECF No. 1. The action was consolidated with an action filed by Goal Zero, LLC ("Goal Zero"), which challenges aspects of the same determination.2 See Order, Nov. 3, 2015, ECF No. 39.

Goal Zero challenges on several grounds Commerce's application of the China-wide rate of 249.96 percent to ERA Solar Co., Ltd. ("ERA Solar"), the exporter of subject merchandise imported by Goal Zero. See Consolidated Pl. Goal Zero LLC's Br. Supp. Rule 56.2 Mot. J. Agency R. Final Confidential Version, Apr. 15, 2016, ECF No. 59 ("Goal Zero Br."). First, Goal Zero argues that Commerce's presumption that Chinese companies are subject to government control is contrary to law. See id. at 10–19. Second, Goal Zero challenges the assignment of an ADD rate based on adverse facts available ("AFA")3 to ERA Solar, arguing that Commerce improperly imputes non-cooperation to ERA Solar without record evidence. See id. at 19–25. Third, Goal Zero challenges as uncorroborated the AFA rate assigned to the China-wide entity. See id. at 26–38.

SolarWorld challenges four aspects of Commerce's final determination. See SolarWorld Americas Inc.'s Mem. Supp. Rule 56.2 Mot. J. Agency R. Revised Confidential Version, Apr. 15, 2016, ECF No. 61 ("SolarWorld Br."). First, SolarWorld challenges Commerce's selection of surrogate value import data for two inputs (steel frames and semi-finished polysilicon ingots and blocks) used in the production of subject merchandise. See id. at 14–24. Second, SolarWorld questions Commerce's decision to include a line item identified as "other income" in its surrogate financial ratio calculation. See id. at 42–44. Third, SolarWorld challenges Commerce's inclusion of sales made by mandatory respondent Wuxi Suntech Power Co., Ltd. ("Suntech") to an affiliated company in the United States as constructed export price ("CEP") sales when calculating Suntech's dumping margin. See id. at 29–33. In relation to this challenge, SolarWorld also claims that Commerce should have determined the date of sale for Suntech's reported sales to its affiliate based on the date the contract was initially executed. See id. at 33–39. Fourth, SolarWorld contests Commerce's use of factors of production ("FOP") usage data from Suntech and certain tollers. See id. at 39–42.

For the reasons that follow, the court sustains Commerce's application of the China-wide AFA rate of 249.96 percent to ERA Solar as supported by substantial evidence and in accordance with law, Commerce's surrogate value data selections to value solar frames and semi-finished silicon ingots and blocks, Commerce's inclusion of the "other income" line item in its surrogate financial profit calculation, the inclusion of sales to Suntech as CEP sales, and Commerce's acceptance of FOP usage data from Suntech and certain tollers as facts available. However, the court remands for further explanation or reconsideration consistent with this opinion Commerce's determination to use the date of shipment rather than the date of contract for Suntech's sales to its affiliate.

BACKGROUND

On February 3, 2014, Commerce initiated the first administrative review of the ADD order on crystalline silicon photovoltaic cells, whether or not assembled into modules, from China. See Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the [PRC] , 79 Fed. Reg. 6,147 (Dep't Commerce Feb. 3, 2014) (initiation of antidumping and countervailing duty administrative reviews and request for revocation in part). Commerce selected Yingli Energy (China) Company Limited ("Yingli") and Suntech as mandatory respondents in this review. See Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the [PRC] , 80 Fed. Reg. 1,021 (Dep't Commerce Jan. 8, 2015) (preliminary results of ADD administrative review and preliminary determination of no shipments; 20122013) ("Prelim. Results "). To calculate a surrogate value ("SV") for Yingli's aluminum frames, Commerce preliminarily used import data corresponding to Thai Harmonized Tariff System ("HTS") heading 7604. Decision Memorandum for the Preliminary Results of the 20122013 [ADD] Administrative Review of Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the [PRC] at 1, PD 513, bar code 3250265–01 (Dec. 31, 2014) ("Prelim. Decision Memo"). Commerce used the world price for polysilicon to calculate a SV for semi-finished ingots and blocks purchased by Yingli in the production of subject merchandise. Id. at 2–3. Commerce also preliminarily excluded a line item labeled "other income" from the surrogate profit ratio calculation. See [ADD] Administrative Review of Crystalline Silicon Photovoltaic Cells from the [PRC]: Factor Valuation Memo, A–570–979, 9, Attach. V, PD 530, bar code 3252163–01 (Dec. 31, 2014). Commerce preliminarily assigned Yingli Energy (China) Company Limited a rate of 1.82 percent. See Prelim. Results , 80 Fed. Reg. at 1,023. Commerce preliminarily assigned Suntech the China-wide rate of 238.56 percent, id. at 1,023 n.11, because Commerce determined Suntech and entities with which it was collapsed had not demonstrated an absence of de facto government control over export activities. Prelim. Decision Memo at 14.

Commerce preliminarily determined that ERA Solar did not establish eligibility for a separate rate because ERA Solar did not submit a separate rate application. See Prelim. Decision Memo at 15. Further, because certain entities did not respond to Commerce's request for quantity and value ("Q & V") information, Commerce determined that the China-wide entity failed to cooperate to the best of its ability. Prelim. Results , 80 Fed. Reg. at 1,022, 1,023 n.11. Accordingly, Commerce preliminarily assigned ERA Solar the AFA rate of 238.56 percent assigned to the China-wide entity, id. , which is a dumping margin from the petition.4 See Prelim. Decision Memo at 36.

In its final results, Commerce continued to use import data under Thai HTS heading 7604 to value Yingli's aluminum frames inputs. Final Decision Memo at 76, 81–84. Commerce also continued to use the world price for polysilicon to obtain a SV for semi-finished ingots and blocks. See id. at 76. Commerce determined that the "other income" line item that had been preliminarily excluded from its surrogate financial profit ratio calculation should be included in surrogate financial profit for the final results. See id. at 60. To calculate the amount of certain FOPs consumed in the production...

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3 cases
  • Solarworld Americas, Inc. v. United States, Yingli Green Energy Holding Co.
    • United States
    • U.S. Court of Appeals — Federal Circuit
    • December 12, 2018
    ...for Commerce to reconsider an issue not implicated in this appeal, see SolarWorld Ams., Inc. v. United States (SolarWorld I ), 234 F.Supp.3d 1286, 1292 (Ct. Int’l Trade 2017), the CIT ultimately sustained Commerce’s final results of remand redetermination, see SolarWorld Ams., Inc. v. Unite......
  • Solarworld Ams., Inc. v. United States, Slip Op. 17–148
    • United States
    • U.S. Court of International Trade
    • October 31, 2017
    ...the People's Republic of China ("China" or "the PRC"), filed pursuant to the court's order in SolarWorld Americas, Inc. v. United States, 41 CIT ––––, ––––, 234 F.Supp.3d 1286, 1314 (2017). See Final Results of Remand Redetermination, Sept. 11, 2017, ECF No. 143–1 ("Remand Results"). For th......
  • Solarworld Americas, Inc. v. United States
    • United States
    • U.S. Court of International Trade
    • October 31, 2017
    ...the People's Republic of China ("China" or "the PRC"), filed pursuant to the court's order in SolarWorld Americas, Inc. v. United States, 41 CIT ___, ___, 234 F. Supp. 3d 1286, 1314 (2017). See Final Results of Remand Redetermination, Sept. 11, 2017, ECF No. 143-1 ("Remand Results"). For th......

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