Jiangsu Jiasheng Photovoltaic Tech. Co. v. United States, Slip Op. 15–113

• Decision Date: 05 October 2015
• Docket Number: Consol. Court No. 13–000121,Slip Op. 15–113
• Parties: Jiangsu Jiasheng Photovoltaic Technology Co., Ltd., Plaintiff, v. United States, Defendant.
• Court: U.S. Court of International Trade

121 F.Supp.3d 1263

Jiangsu Jiasheng Photovoltaic Technology Co., Ltd., Plaintiff,

v.United States, Defendant.

Slip Op. 15–113

Consol. Court No. 13–000121

United States Court of International Trade.

October 5, 2015

Timothy C. Brightbill and Laura El–Sabaawi, Wiley Rein LLP, of Washington, DC, for SolarWorld Americas, Inc.L. Misha Preheim, Senior Trial Counsel, 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 Rebecca Cantu, Senior Attorney, Office of the Chief Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce.

OPINION

Pogue, Senior Judge:

This consolidated action arises from the United States Department of Commerce's ("Commerce") antidumping investigation of crystalline silicon photovoltaic cells from the People's Republic of China ("China").² Before the court is Commerce's redetermination, pursuant to remand, of the antidumping cash deposit rates for four specific producers/exporters of merchandise subject to the investigation.³ On remand, Commerce found that three of these four respondents have not shown that their production and export operations are free from government control, and so determined to assign to those respondents the China-wide rate.⁴ This portion of the Remand Results is not subject to challenge.⁵ With respect to the remaining respondent—Ningbo ETDZ Holdings Limited ("Ningbo ETDZ")—however, Commerce found that this company sufficiently demonstrated its eligibility for a rate separate from the China-wide entity.⁶ Defendant–Intervenor SolarWorld Americas, Inc. ("SolarWorld")—a petitioner in the underlying antidumping investigation—now challenges this latter determination.⁷

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),⁸ and 28 U.S.C. § 1581(c) (2012).

Because Commerce's redetermination is based on a reasonable reading of the record evidence, as explained below, the Remand Results are sustained.

BACKGROUND

When investigating merchandise from a country that Commerce considers to be a non-market economy ("NME"), including China,⁹ Commerce employs a rebuttable presumption that the export-related decision-making of all enterprises operating within the NME is controlled by the government (whether at the central, provincial, or local level).¹⁰ "Consistent with this presumption, it is [Commerce]'s policy to assign all exporters of the merchandise subject to review in an NME country a single [country-wide] rate unless an exporter can affirmatively demonstrate an absence of government control, both in law (de jure ) and in fact (de facto), with respect to exports,"¹¹ and thereby demonstrate its eligibility for a "separate rate."¹²

As this Court has previously explained,

Commerce's essential inquiry with regard to whether a particular respondent's circumstances warrant the grant of separate-rate status focuses on whether, "considering the totality of circumstances," the respondents in question "had sufficient independence in their export pricing decisions from government control to qualify for separate rates." To that end, the relevant de jure autonomy "can be demonstrated by reference to legislation and other governmental measures that decentralize control," and the relevant de facto autonomy "can be established by evidence that [the] exporter sets its prices independently of the government and of other exporters, and that [the] exporter keeps the proceeds of its sales." In both its de jure and de facto determinations, Commerce may make reasonable inferences from the record evidence.¹³

Here, recognizing that "within the NME entity, companies exist which are independent from government control to such an extent that they can independently conduct export activities,"¹⁴ Commerce granted a number of separate-rate applications during its investigation, finding that "the evidence placed on the record of this investigation by [these respondents] demonstrates both de jure and de facto absence of government control with respect to each company's respective exports of the merchandise under investigation."¹⁵

In the course of this litigation, however, Commerce requested and was granted a voluntary remand to reevaluate the evidence and reconsider the separate rate eligibility of four separate-rate recipients whose rates had been challenged by SolarWorld.¹⁶ Commerce's basis for the remand request was a concern for consistency with the agency's approach to similar issues in antidumping proceedings involving diamond sawblades from China.¹⁷ Specifically, as a result of litigation challenging Commerce's separate rate determinations in the diamond sawblades proceedings, Commerce has clarified its practice with regard to evaluating NME companies' de facto independence from government control.¹⁸ This revised practice, which was sustained by this Court and subsequently affirmed by the Court of Appeals,¹⁹ holds that "where a government entity holds a majority ownership share, either directly or indirectly, in the respondent exporter [or producer],"²⁰ such majority ownership holding "in and of itself" precludes a finding of de facto autonomy.²¹

Applying this clarified approach on remand, Commerce reconsidered the separate rate eligibility of the four respondents covered by the remand order.²² As a result, Commerce found that three of these respondents were no longer eligible for a separate rate, but that the remaining respondent—Ningbo ETDZ—continued to so qualify.²³ While none of the affected respondents filed comments with the court in response to Commerce's Remand Results,²⁴ SolarWorld challenges Commerce's determination that Ningbo ETDZ is eligible for a separate rate in this investigation.²⁵ Accordingly, the sole question before the court is whether Commerce reasonably determined that Ningbo ETDZ operated with sufficient autonomy during the period of investigation to qualify for a rate separate from the countrywide entity, notwithstanding the presumption of government control.²⁶ After a brief statement of the applicable standard of review, this matter is discussed in detail below.

STANDARD OF REVIEW

The court will sustain Commerce's antidumping determinations on remand if they are supported by substantial evidence and otherwise in accordance with law. See 19 U.S.C. § 1516a(b)(1)(B)(i). Substantial evidence refers to "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." SKF USA, Inc. v. United States, 537 F.3d 1373, 1378 (Fed.Cir.2008) (quoting Consol. Edison Co. v. NLRB , 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) ). Thus the substantial evidence standard of review can be roughly translated to mean "is the determination unreasonable?" Nippon Steel Corp. v. United States, 458 F.3d 1345, 1351 (Fed.Cir.2006) (quotation marks, alteration marks, and citation omitted). In this context, substantial evidence is "something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." Consolo v. Fed. Mar. Comm'n, 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966) (citations omitted).²⁷

DISCUSSION

SolarWorld's challenge relies on the record evidence concerning the extent to which a wholly state-owned company exercised its ownership stake in Ningbo ETDZ to affect the selection of certain high-level management personnel.²⁸ Specifically, SolarWorld argues that in light of this evidence, "Commerce has not provided adequate explanation or support" for its determination that Ningbo ETDZ is eligible for a separate rate in this investigation.²⁹

First, SolarWorld argues that, on the facts presented here, a twenty percent ownership interest in the respondent company held by a wholly state-owned enterprise should in itself constitute conclusive evidence of de facto government control, particularly where (as here) the next largest shareholder owned only twelve percent, and no other shareholder owned more than five percent.³⁰ SolarWorld argues that "a reasonable understanding of what constitutes ‘control’ in the corporate context" should be "instruct[ed]" by regulations promulgated by the Securities and Exchange Commission ("SEC")—"a U.S. government agency with significant experience in the regulation of corporations"—using twenty percent "as the ownership threshold for the point at which an investor is no longer considered a ‘passive investor,’ triggering various reporting requirements."³¹ But as Commerce points out,³² and as SolarWorld acknowledges,³³ these SEC regulations do not apply to Commerce's antidumping determinations. On the contrary, Commerce has developed its own, different test for the threshold ownership stake at which the ownership percentage in itself constitutes conclusive evidence of de facto control. For Commerce, such conclusive evidence is "where a government entity holds a majority ownership share, either directly or indirectly, in the respondent exporter."³⁴ Here, the state-owned entity did not hold a majority ownership share,³⁵ and it was not unreasonable for the agency to determine not to rely on regulations promulgated by an unrelated agency in an entirely different context.

Next, SolarWorld also argues that Commerce unreasonably found that Ningbo ETDZ rebutted the presumption of de facto government control because the wholly state-owned company holding the twenty percent share was involved in the selection of certain of Ningbo ETDZ's high-level management personnel.³⁶ Specifically, the state-owned shareholder recommended [[ ]] to serve as the Chairman of the Board of Ningbo ETDZ,³⁷ who was then elected by the board members.³⁸ In addition, the state-owned shareholder...