Jiangsu Jiasheng Photovoltaic Tech. Co. v. United States
| Citation | 28 F.Supp.3d 1317 |
| Decision Date | 20 November 2014 |
| Docket Number | Court No. 13–000121.,Slip Op. 14–134. |
| Parties | JIANGSU JIASHENG PHOTOVOLTAIC TECHNOLOGY CO., LTD., Plaintiff, v. UNITED STATES, Defendant. |
| Court | U.S. Court of International Trade |
Francis J. Sailer, Mark E. Pardo, Andrew T. Schutz, and Brandon M. Petelin, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP, of Washington, DC, for Plaintiff and Defendant–Intervenor Jiangsu Jiasheng Photovoltaic Technology, Co., Ltd. and Defendant–Intervenor Hanwha Solarone (Qidong) Co., Ltd.
Timothy C. Brightbill, Tessa V. Capeloto, and Laura El–Sabaawi, Wiley Rein LLP, of Washington, DC, for Plaintiff and Defendant–Intervenor SolarWorld Industries America, Inc.
L. Misha Preheim, Senior Trial Counsel, and Melissa M. Devine, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for the Defendant. Also on the brief were Stuart F. Delery, Assistant Attorney General, Jeanne E. Davidson, Director, and Reginald T. Blades, Jr., Assistant Director. Of counsel was Rebecca Cantu, Attorney, Office of the Chief Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce.
John M. Gurley, Diana Dimitriuc Quaia, and Tina Termei, Arent Fox LLP, of Washington, DC, for Defendant–Intervenors Changzhou Trina Solar Energy Co., Ltd., Trina Solar (U.S.), Inc., Wuxi Suntech Power Co., Ltd., Suntech America, Inc., Suntech Arizona, Inc., JA Solar Technology Yahngzhou Co., Ltd., Shanghai JA Solar Technology Co., Ltd., and JingAo Solar Co., Ltd.
Neil R. Ellis, Richard L.A. Weiner, Brenda A. Jacobs, Rajib Pal, and Raphaelle E. Monty, Sidley Austin LLP, of Washington, DC, for Defendant–Intervenors Yingli Green Energy Americas, Inc. and Yingli Green Energy Holding Co., Ltd.
Gregory S. Menegaz, J. Kevin Horgan, and John J. Kenkel, deKieffer & Horgan PLLC, of Washington, DC, for Defendant–Intervenors Ningbo Komaes Solar Technology Co., Ltd., Ningbo Etdz Holdings Ltd., Ningbo Qixin Solar Electrical Appliance Co., Ltd., LDK Solar Hi–Tech (Nanchang) Co., Ltd., and LDK Solar Hi–Tech (Suzhou) Co., Ltd.
This consolidated action arises from the United States Department of Commerce's (“Commerce”) antidumping investigation of crystalline silicon photovoltaic cells (“CSPC”) from the People's Republic of China (“PRC” or “China”).2 Plaintiff Jiangsu Jiasheng Photovoltaic Technology Company, Limited (“Jiasheng”) challenges Commerce's determination, in its investigation, to reject Jiasheng's application for “separate-rate status.”3 In addition, Plaintiff SolarWorld Industries America, Incorporated (“SolarWorld”) challenges 1) Commerce's decision, in constructing a home market or “normal value”,4 to calculate the cost of aluminum frames (a component used to make the subject merchandise) based on goods classified under Thai Harmonized Tariff Schedule (“HTS”) Heading 7604, rather than Thai HTS Heading 7616; and 2) Commerce's determination to grant separate-rate status to certain respondents.5
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),6 and 28 U.S.C. § 1581(c) (2012).
For the reasons presented below, Commerce's Final Results are sustained against the challenges presented here,7 except with regard to separate rate issues for which Commerce has requested a voluntary remand.8 Commerce's request for remand is granted. Following a statement of the standard of review, each challenge to the Final Results presented in this action is addressed in turn.
The court will sustain Commerce's antidumping determinations 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), and 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 and 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)).9
“It is not for [the courts] to reweigh the evidence before the [agency],” Henry v. Dep't of the Navy, 902 F.2d 949, 951 (Fed.Cir.1990), but there must be a rational connection between the facts found based on the record evidence and the choices made in the agency's determination. See Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962). Although the reviewing court “may not supply a reasoned basis for the agency's action that the agency itself has not given, [the court] will uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned.” Bowman Transp., Inc. v. Ark.–Best Freight Sys., Inc., 419 U.S. 281, 286, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974) (citations omitted).
In addition, where the agency is vested with discretion to set the procedures by which it administers its governing statute,10 the court reviews such decisions for abuse of discretion. See, e.g., Dongtai Peak Honey Indus. Co. v. United States, ––– CIT ––––, 971 F.Supp.2d 1234, 1239 (2014). “An abuse of discretion occurs where the decision is based on an erroneous interpretation of the law, on factual findings that are not supported by substantial evidence, or represent an unreasonable judgment in weighing relevant factors.” Id. (quoting WelCom Prods., Inc. v. United States, 36 CIT ––––, 865 F.Supp.2d 1340, 1344 (2012) (citing Star Fruits S.N.C. v. United States, 393 F.3d 1277, 1281 (Fed.Cir.2005) )). In abuse of discretion review, “an agency action is arbitrary when the agency offers insufficient reasons for treating similar situations differently.” See SKF USA Inc. v. United States, 263 F.3d 1369, 1382 (Fed.Cir.2001).
Because Commerce considers the PRC to be a non-market economy (“NME”),11 when investigating merchandise from China, the agency presumes that the export operations of all Chinese producers and exporters are controlled by the PRC government, unless respondents show otherwise.12 As a result, Commerce's practice is to assign to all exporters from the PRC a single “countrywide” antidumping duty rate unless they affirmatively demonstrate eligibility for a “separate rate.”13 Applying this practice, in announcing the initiation of this investigation, Commerce reminded respondents that to obtain “separate-rate status,” exporters and producers must submit a separate-rate application (“SRA”), and that a timely response to Commerce's questionnaire regarding the quantity and value of exported merchandise (“Q & V questionnaire”) is a pre-requisite to separate-rate eligibility.14
Commerce sent Q & V questionnaires to 75 PRC-based producers and exporters.15 The United Parcel Service (“UPS”) confirmed delivery of the Q & V questionnaire to Respondent–Plaintiff Jiasheng on November 12, 2011, seventeen days prior to the stated response deadline.16 This correspondence apprised Jiasheng of Commerce's investigation and requested information on the quantity and U.S. dollar value of Jiasheng's sales of subject merchandise to the United States during the POI.17 The cover letter sent with the questionnaire informed Jiasheng that its response was due no later than November 29, 2011,18 and the questionnaire warned that failure to timely respond would forfeit Jiasheng's opportunity to be considered for separate-rate status in this investigation.19
In addition, the cover letter notified Jiasheng that instructions for responding to the Q & V questionnaire were included in the package as Attachment III, and advised Jiasheng to utilize the included check list (Attachment V) “to make certain [that Jiasheng] fully complie[s] with all filing requirements.”20 Paragraph A.1 of the General Instructions included in Attachment III to the Q & V questionnaire received by Jiasheng states that “[a]ll submissions must be made electronically using [Commerce's] IA ACCESS website at http://iaaccess.trade.gov.”21 Paragraph A.3 explains that “[a]n electronically filed document must be received successfully in its entirety by IA ACCESS by 5 p.m. Eastern Time (ET) on the due date, unless an earlier time is specified.”22 The check list included in Attachment V warns respondents: 23
Commerce received timely-filed Q & V questionnaire responses from 80 exporters—who all filed their responses using Commerce's IA ACCESS website24 —but not from Jiasheng. Rather, on November 30, 2011, at 10:59 local time (i.e., after the November 29, 2011, deadline), Jiasheng sent an email message to one of the contact persons listed on the Q & V questionnaire.25 This email invited the official to “check the attachment” and apologized for the late submission, without providing any explanation.26
Nine days after receiving the questionnaire responses through IA ACCESS, on December 8, 2011, Commerce completed its analysis of the 80 submissions and selected two respondents for individual examination (the “mandatory respondents”), pursuant to 19 U.S.C. § 1677f–1(c)(2)(B).27 In doing so, Commerce made its selection without relying on data from a number...
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