Jinko Solar Co. v. United States

• Decision Date: 18 May 2017
• Docket Number: Slip Op. 17–62,Consol. Court No. 15–00080
• Citation: 229 F.Supp.3d 1333
• 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

229 F.Supp.3d 1333

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. 17–62

Consol. Court No. 15–00080

United States Court of International Trade.

May 18, 2017

Alexander Hume Schaefer and Hea Jin Koh , Crowell & Moring, LLP, of Washington, DC, for Plaintiffs Jinko Solar Co., Ltd., Jinko Solar Import and Export Co., Ltd., and JinkoSolar (U.S.) Inc. Timothy C. Brightbill and Laura El–Sabaawi , Wiley Rein, LLP, of Washington, DC, for Consolidated Plaintiff and Defendant–Intervenor SolarWorld Americas, Inc.

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

Justin Reinhart Miller , Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of New York, NY, and Tara Kathleen Hogan , Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for Defendant. With them on the brief were Benjamin C. Mizer , Principal Deputy Assistant Attorney General, Robert E. Kirschman, Jr. , Director, and Reginald T. Blades, Jr. , Assistant Director. Of counsel on the brief was Rebecca Cantu , Senior Attorney, Office of the Chief Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce.

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

OPINION AND ORDER

Kelly, Judge:

Before the court in this consolidated action are motions for judgment on the agency record arising from the final affirmative determination of the U.S. Department of Commerce ("Commerce") in its antidumping investigation of certain solar panels from the People's Republic of China ("PRC" or "China"). See 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, Dec. 15, 2014, ECF No. 34–5 ("Final Decision Memo").

Plaintiffs Jinko Solar Co., Ltd., Jinko Solar Import and Export Co., Ltd., and JinkoSolar (U.S.) Inc. (collectively "Jinko Solar"), mandatory respondents in this investigation, challenge Commerce's determination to treat Jinko Solar and certain additional companies as a single entity. See Mem. of Points & Auths. in Supp. of Jinko's Mot. for J. on the Agency R., Mar. 18, 2016, ECF No. 39 ("Jinko Br."); see also Mot. of Consol. Pl.–Intervenor Canadian Solar Inc. for J. on the Agency R. 2, Mar. 18, 2016, ECF No. 37 (adopting the arguments presented by Jinko Solar); Mot. of Pl.–Intervenors Yingli Green Energy Holding Co., Ltd. and Yingli Green Energy Americas, Inc. for J. on the Agency R. 2, ECF No. 38 (adopting the arguments presented by Jinko Solar).¹ In addition, Consolidated Plaintiff SolarWorld Americas, Inc. ("SolarWorld"), the domestic industry petitioner, challenges Commerce's choices of certain surrogate input and offset values, the agency's determination to accept a respondent's evidence of quality insurance expenses, and the agency's decision to offset the respondents' antidumping (or "AD") cash deposit rate by the amount of estimated countervailing duties assessed for the subject merchandise in the parallel countervailing duty ("CVD") investigation. SolarWorld Br. in Supp. of its Rule 56.2 Mot. for J. on the Agency R., Mar. 21, 2016, ECF No. 41 ("SolarWorld Br.").

For the reasons that follow, the court sustains: 1) Commerce's decision to value respondents' general expenses and profit using Mustek's financial statements; 2) Commerce's determination that import data for articles covered under subheading 7604, Harmonized Tariff Schedule ("HTS"), constitutes the best available information for valuing respondents' aluminum frames; 3) Commerce's determination to accept, for purposes of adjusting Trina Solar's U.S. prices, the information provided by Trina Solar during verification related to quality insurance expenses covering the entire period of investigation ("POI"); and 4) Commerce's determination to offset respondents' antidumping duty cash deposit rate by the full amount of an export subsidy calculated based on adverse facts available ("AFA") in the companion countervailing duty investigation. The court remands to Commerce for reconsideration or further explanation of: 1) the decision to collapse the ReneSola entities with the Jinko entities and treat these companies as a single entity, and 2) the decision to value respondent Changzhou Trina Solar Energy Co., Ltd.'s solar modules by-products using South African import data within subheading 8548.10, HTS.

BACKGROUND

On January 22, 2014, in response to a petition filed by domestic producer SolarWorld, Commerce initiated an antidumping duty investigation on imports of crystalline silicon photovoltaic cells, whether or not assembled into modules, from China for the period of April 1, 2013 through September 30, 2013. See Certain Crystalline Silicon Photovoltaic Products From China and Taiwan , 79 Fed. Reg. 4,661 (Jan. 29, 2014) (notice of initiation of AD duty investigation); see Petition for the Imposition of Antidumping and Countervailing Duties Pursuant to Sections 701 and 731 of the Tariff Act of 1930, As Amended, PD 1–10, bar codes 3171232–01–10 (Dec. 31, 2013).

Commerce published the preliminary affirmative determination on July 24, 2014, finding that subject imports were, or were likely to be, sold in the United States at less than fair value. See Certain Crystalline Silicon Photovoltaic Products From the [PRC]: Affirmative Preliminary Determination of Sales at Less Than Fair Value , 79 Fed. Reg. 44,399 (July 31, 2014) ("Prelim. Results "), and corresponding Decision Memorandum for the Preliminary Determination in the Antidumping Duty Investigation of Certain Crystalline Photovoltaic Products from the [PRC] at 1, PD 698, bar code 3217803–01 (July 24, 2014) ("Prelim. Decision Memo"). Commerce selected Changzhou Trina Solar Energy Co., Ltd. ("Trina Solar") and Renesola Jiangsu Ltd. as mandatory respondents for individual examination in this investigation. Prelim. Results ; see Section 777A of the Tariff Act of 1930, as amended, 19 U.S.C. § 1677f–1(c)(2)(B) (2012).² Commerce preliminarily selected South Africa as the primary surrogate country, and calculated mandatory respondents' dumping margins using South African data to value factors of production and offsets for calculating respondents' normal value. Prelim. Decision Memo at 22; [AD] Duty Investigation of Certain Crystalline Silicon Photovoltaic Products from the [PRC]: Factor Valuation Memorandum, PD 704, bar code 3218533–01 (Jul. 24, 2014) ("Prelim. Surrogate Value Memo"). Commerce used financial statements of South African computer assembly company Mustek for valuing respondents' financial ratios, Prelim. Surrogate Value Memo at 8–9; import data corresponding to South African subheading 7604.29.65, HTS, to value respondents' aluminum frames input, id. at 3–4; and import data corresponding to South African subheading 8548.10, HTS, to value respondent Trina Solar's by-product offset for scrap solar modules. See [AD] Duty Investigation of Certain Crystalline Silicon Photovoltaic Products from the [PRC]: Preliminary Analysis Memorandum for Changzhou Trina Solar Energy Co., Ltd., Attach. II, All Input Prices, July 24, 2014, ECF No. 97–14. Commerce also preliminarily determined that mandatory respondent Renesola Jiangsu Ltd. is affiliated with Renesola Zhejiang, Jinko Solar, and Jinko Solar I & E pursuant to 19 U.S.C. § 1677(33)(F), and that these entities should be treated as a single entity for the AD investigation, pursuant to 19 C.F.R. § 351.401(f). Memorandum Pertaining to ReneSola and Jinko Solar Affiliation and Single Entity Status at 7, PD 542, bar code 3207993–01 (June 6, 2014) ("Affiliation and Collapsing Memo"); see 19 C.F.R. § 351.401(f) (2014).³

On December 15, 2014, Commerce published the final affirmative determination. Final Results , 79 Fed. Reg. at 76,970. Commerce continued to use the same data sources to calculate surrogate values for respondents' general expenses and profit, see Certain Crystalline Silicon Photovoltaic Products from the [PRC]: Factor Valuation Memorandum at 1, PD 827, bar code 3249189–01 (Dec. 15, 2014) ("Final Surrogate Value Memo"), aluminum frames, Final Decision Memo at 48–50, and the by-product value of Trina Solar's scrap solar modules. Id. at 50–51. Commerce also continued to find the Renesola entities to be affiliated with the Jinko Solar entities, and continued to treat these companies as a single entity. Id. at 62–67. In the final determination, based on findings at verification related to Trina Solar U.S.'s quality insurance expenses covering the POI, Commerce made adjustments to the U.S. export price for indirect selling expenses. Id. at 52–54. Commerce also offset the antidumping cash deposit rate by the export subsidy rate calculated in the concurrent countervailing duty investigation, as is the agency's general practice. Id. at 38–39.

JURISDICTION AND STANDARD OF REVIEW

The court has jurisdiction pursuant to 19 U.S.C. § 1516a(a)(2)(B)(i) (2012), and 28 U.S.C. § 1581(c) (2012). Commerce's antidumping determinations must be in accordance with law and supported by substantial evidence. 19 U.S.C. § 1516a(b)(1)(B)(i) (2012).

DISCUSSION

I. Affiliation & Collapsing

A. Commerce's Affiliation Determination

Jinko Solar challenges Commerce's threshold determination that ...