Jinko Solar Co., Ltd. v. United States, Slip Op. 17–165

• Decision Date: 13 December 2017
• Docket Number: Slip Op. 17–165,Consol. Court No. 15–00080
• Citation: 279 F.Supp.3d 1253
• Parties: JINKO SOLAR CO., LTD. et al., Plaintiffs and Consolidated Plaintiff, and Yingli Green Energy Americas, Inc. et al., Plaintiff–Intervenors, v. UNITED STATES, Defendant, and Solarworld Americas, Inc. et al., Defendant–Intervenors and Consolidated Defendant–Intervenors.
• Court: U.S. Court of International Trade

279 F.Supp.3d 1253

JINKO SOLAR CO., LTD. et al., Plaintiffs and Consolidated Plaintiff,andYingli Green Energy Americas, Inc. et al., Plaintiff–Intervenors,

v. UNITED STATES, Defendant,andSolarworld Americas, Inc. et al., Defendant–Intervenors and Consolidated Defendant–Intervenors.

Slip Op. 17–165

Consol. Court No. 15–00080

United States Court of International Trade.

Dated: December 13, 2017

Alexander Hume Schaefer, Crowell & Moring, LLP, of Washington, DC, for Jinko Solar Co., Ltd., Jinko Solar Import & Export Co., Ltd., and JinkoSolar (U.S.) Inc.

Timothy C. Brightbill and Usha Neelakantan, Wiley Rein, LLP, of Washington, DC, for SolarWorld Americas, Inc.

Neil R. Ellis, Brenda Ann Jacobs, Rajib Pal, and Richard L.A. Weiner, Sidley Austin, LLP, of Washington, DC, for Yingli Green Energy Americas, Inc., Yingli Green Energy Holding Co., Ltd., and Canadian Solar Inc.

Tara Kathleen Hogan, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for Defendant. With her 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 James Henry Ahrens, II, Attorney, Office of Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce.

Francis J. Sailer, Andrew Thomas Schutz, and Brandon Michael Petelin, Grunfeld Desiderio Lebowitz Silverman & Klestadt, LLP, of Washington, DC, for Hanwha Solarone (Qidong) Co., Ltd. and Hanwha Solarone Hong Kong Limited.

OPINION AND ORDER

Kelly, Judge:

Before the court for review is the U.S. Department of Commerce's ("Commerce" or "Department") remand determination in the antidumping investigation of certain crystalline silicon photovoltaic products from the People's Republic of China ("PRC" or "China"), filed pursuant to the court's order in Jinko Solar Co., Ltd. v. United States, 41 CIT ––––, ––––, 229 F.Supp.3d 1333, 1361 (2017). See Final Results of Redetermination Pursuant to Court Remand, Aug. 2, 2017, ECF No. 105–1 ("Remand Results"); see also Certain Crystalline Silicon Photovoltaic Products from the [PRC], 79 Fed. Reg. 76,970 (Dep't Commerce Dec. 23, 2014) (final determination of sales at less than fair value) ("Final Results") and accompanying Issues and Decision Memorandum for the Final Determination of Sales at Less Than Fair Value, A–570–010, (Dec. 15, 2014), ECF No. 34–5 ("Final Decision Memo").

On remand, Commerce provided further explanation of its determination to collapse Renesola Jiangsu Ltd. and Renesola Zhejiang Ltd. (collectively "ReneSola group") with Jinko Solar Co., Ltd. and Jinko Solar Import & Export Co., Ltd. (collectively "Jinko group"), treating the ReneSola group and the Jinko group as a single entity for purposes of the antidumping investigation. See Remand Results 8–14, 18–25. Commerce also provided further explanation of its determination to use South African import data for subheading 8548.10, Harmonized Tariff Schedule ("HTS"), to value respondents' by-product offsets for scrapped solar modules when calculating normal value.¹ See id. at 15–18, 25–29. For the reasons that follow, the court sustains Commerce's determination to collapse the ReneSola and Jinko groups and remands for reconsideration or further explanation, consistent with this opinion, Commerce's selection of South African import data for subheading 8548.10, HTS, for valuing the by-product offset for scrapped solar modules.

BACKGROUND

The court assumes familiarity with the facts of this case as discussed in the previous opinion, see Jinko Solar Co., Ltd., 41 CIT at ––––, 229 F.Supp.3d at 1338–39, and here recounts the facts relevant to the court's review of the Remand Results. In this investigation, Commerce selected Changzhou Trina Solar Energy Co. Ltd. and Renesola Jiangsu Ltd. as mandatory respondents for individual examination in this investigation. See Decision Memorandum for the Preliminary Determination in the Antidumping Duty Investigation of Certain Crystalline Photovoltaic Products from the [PRC] at 3, PD 698, bar code 3217803–01 (July 24, 2014);² Section 777A of the Tariff Act of 1930, as amended, 19 U.S.C. § 1677f–1(c)(2)(B) (2012).³ Commerce determined that mandatory respondent Renesola Jiangsu Ltd. is affiliated with Renesola Zhejiang, Jinko Solar Co. Ltd., and Jinko Solar Import & Export Co., Ltd., pursuant to 19 U.S.C. § 1677(33)(F), and that these entities should be collapsed and treated as a single entity for the antidumping investigation, pursuant to 19 C.F.R. § 351.401(f) (2014).⁴ See Final Results, 79 Fed. Reg. at 76,971 n.2 ; Final Decision Memo at 60–67; Mem. Pertaining to Renesola and Jinko Solar Affiliation and Single Entity Status at 7, PD 542, bar code 3207993–01 (June 6, 2014); see 19 C.F.R. § 351.401(f). Commerce selected South Africa as the primary surrogate country and calculated mandatory respondents' dumping margins using South African import data to value factors of production and offsets for calculating respondents' normal value. See Final Decision Memo at 29–37. Pertinent here, Commerce used South African import data for subheading 8548.10, HTS ("Waste and scrap of primary cells, primary batteries and electric storage batteries; spent primary cells, spent primary and electric storage batteries"), to value respondents' by-product offsets for scrap solar modules. See id. at 50–51.

In the prior decision, the court sustained in part and remanded in part Commerce's determination in this investigation.⁵ Jinko Solar Co., Ltd., 41 CIT at ––––, 229 F.Supp.3d at 1361. The court determined that Commerce's conclusion that the Jinko entities are affiliated with the ReneSola entities through common control by the Li family grouping⁶ was supported by substantial evidence, see id., 41 CIT at ––––, 229 F.Supp.3d at 1339–43, but that the agency did not sufficiently support its decision to collapse the affiliated entities. See id., 41 CIT at ––––, 229 F.Supp.3d at 1343–47. The court noted that, while the enumerated provisions of Commerce's collapsing regulation require the agency to consider the extent of overlap of individual members on the boards of entities, "the evidence relied upon by Commerce only demonstrates that members of the Li family grouping sat on the boards of both entities." Id., 41 CIT at ––––, 229 F.Supp.3d at 1344. Nonetheless the court emphasized that, because the enumerated provisions of the regulation are non-exhaustive, Commerce is not precluded from considering the fact that members of the Li family sat on the boards of the ReneSola and Jinko groups' entities as suggestive of a potential for manipulation. Id., 41 CIT at ––––, 229 F.Supp.3d at 1344–45. However the court noted that, if Commerce intends to rely on the fact that members of the Li family grouping sat on boards of both groups, Commerce must "explain how this factor creates a significant potential for the manipulation of price or production." Id., 41 CIT at ––––, 229 F.Supp.3d at 1345. Additionally, the court determined that Commerce had not explained how the transactions between the ReneSola and Jinko groups were significant to a degree evidencing "intertwined operations" during the period of investigation ("POI"), in light of Commerce's finding that the two groups completed [[ ]] in mutual transactions in 2013 than in 2012 and that Renesola Ltd.'s reported transactions with Jinko group entities comprised a de minimis part of the ReneSola group's overall transactions. Id., 41 CIT at ––––, 229 F.Supp.3d at 1345–47. On the basis of these concerns, the court remanded the agency's decision to collapse the ReneSola and Jinko groups. See id., 41 CIT at ––––, 229 F.Supp.3d at 1345, 1347.

The court also remanded the agency's selection of South African import data for subheading 8548.10, HTS, to value the by-product offset for scrapped solar modules when calculating normal value. See Jinko Solar Co., Ltd., 41 CIT at ––––, 229 F.Supp.3d at 1353–55. The court determined that the selection was unsupported by substantial evidence because Commerce had not considered the fact that the language of the subheading "evidences that the products imported under that heading are specific to electrical batteries" which, according to SolarWorld, " ‘are produced using a significantly different manufacturing process with completely different raw material inputs than are solar cells.’ " Id., 41 CIT at ––––, 229 F.Supp.3d at 1354–55 (quoting SolarWorld Br. Supp. Rule 56.2 Mot. J. Agency R. 23, Mar. 21, 2016, ECF No. 42 ("SolarWorld Br.")). The court also determined that Defendant had provided two post hoc rationalizations for Commerce's selection of subheading 8548.10, HTS, and stated that, should Commerce continue to select the subheading on remand and if either reason in fact underlies that selection, "Commerce must make these rationalizations explicit and identify the record evidence that supports them."⁷

Id., 41 CIT at ––––, 229 F.Supp.3d at 1355. The court remanded the issue to Commerce to reconsider or further explain its determination that subheading 8548.10, HTS, is the appropriate category with which to value respondent's scrapped solar modules by-product, in light of the arguments to the contrary and the record evidence. Id.

Commerce published the Remand Results on August 2, 2017. Jinko Solar argues that, on remand, Commerce has continued to insufficiently explain its finding that the Li family relationship creates the potential for price or production manipulation between the ReneSola and Jinko groups and its finding of a significant level of intertwined operations between the groups' entities. Comments on Final Results of Redetermination Pursuant to Court Remand Conf. Version 2–5, Sept. 5, 2017, ECF No. 110 ("Jinko Remand Comments"). SolarWorld supports the agency's decision to continue to collapse the ReneSola and Jinko entities, contending that the agency has supported its decision with evidence and explanation of...