Solarworld Americas, Inc. v. United States

• Decision Date: 14 October 2016
• Docket Number: Court No. 15-00232,Slip Op. 16-99
• Citation: 182 F.Supp.3d 1372
• Parties: Solarworld Americas, Inc., Plaintiff, v. United States, Defendant, and Jinko Solar Import & Export Co., Ltd. et al., Defendant-Intervenors.
• Court: U.S. Court of International Trade

182 F.Supp.3d 1372

Solarworld Americas, Inc., Plaintiff,

v. United States, Defendant,andJinko Solar Import & Export Co., Ltd. et al., Defendant-Intervenors.

Slip Op. 16-99

Court No. 15-00232

United States Court of International Trade.

October 14, 2016

Timothy C. Brightbill , Laura El-Sabaawi , and Usha Neelakantan , Wiley Rein, LLP, of Washington, DC, for plaintiff.

Justin Reinhart Miller , Senior Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for defendant. With him on the brief were Melissa Marion Devine , Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Commercial Litigation Branch—Civil Division, of Washington, DC, Benjamin C. Mizer , Principal Deputy Assistant Attorney General, Jeanne E. Davidson , Director, and Reginald T. Blades, Jr. , Assistant Director. Of Counsel on the brief was Lisa W. Wang , Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, DC.

Neil R. Ellis , Richard L.A. Weiner , Rajib Pal , Shawn Michael Higgins , and Justin Ross Becker, Sidley Austin, LLP, of Washington, DC, for defendant-intervenors.

OPINION AND ORDER

Kelly, Judge:

This action comes before the court on a USCIT Rule 56.2 motion 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 countervailing duty order covering crystalline silicon photovoltaic cells, whether or not assembled into modules, from the People's Republic of China ("China"). See SolarWorld's Mot. J. Agency R., Feb. 12, 2016, ECF No. 24; Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the People's Republic of China, 80 Fed. Reg. 41,003 (Dep't Commerce July 14, 2015) (final results of countervailing duty administrative review; 2012) and accompanying Issues and Decision Memorandum for the Final Results of the Countervailing Duty Administrative Review: Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, from the People's Republic of China, Oct. 13, 2015, ECF No. 21-2 ("Final Decision Memo"); see alsoCrystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the People's Republic of China, 77 Fed. Reg. 73,017 (Dep't Commerce Dec. 7, 2012) (countervailing duty order).

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 (2012).¹ See Summons, Aug. 12, 2015, ECF No. 1. The court granted a consent motion to intervene made by Jinko Solar Import & Export Co., Ltd., JinkoSolar International Limited, and Jinko Solar Co. Ltd. (collectively "Jinko Solar"). See Order, Sept. 25, 2015, ECF No. 19; see also Consent Mot. Intervene Jinko Solar Import and Export Co., Ltd., JinkoSolar International Ltd., and Jinko Solar Co., Ltd., Sept. 24, 2015, ECF No. 14. Defendant filed a response, and Jinko Solar filed a response as defendant-intervenors supporting Defendant's arguments. See Def.'s Opp'n Pl.'s Mot. J. Upon Administrative R., May 10, 2016, ECF No. 26 ("Def.'s Resp. Br."); Resp. Def.-Intervenors Jinko Solar Co., Ltd., et al. to SolarWorld Americas, Inc.'s Mot. J. Agency R., May 20, 2016, ECF No. 30. After SolarWorld filed a reply brief, see Pl. SolarWorld Americas, Inc.'s Reply Br., June 22, 2016, ECF No. 31, the court filed a letter with additional questions for the parties. See Letter filed by the Court, July 20, 2016, ECF No. 33 ("Court's Supplemental Questions"). Briefing in the matter concluded when the parties filed supplemental briefs responding to the court's questions on September 2, 2016. See Pl. SolarWorld Americas, Inc.'s Suppl. Br., Sept. 2, 2016, ECF No. 41 ("Pl.'s Suppl. Br."); Def.'s Suppl. Br. Regarding Hierarchy for Selecting Adverse Facts Available Rates, Sept. 2, 2016 ("Def.'s Suppl. Br."), ECF No. 40; Suppl. Br. Def.-Intervenors Jinko Solar Co., Ltd., et al. Resp. Questions Presented by Judge Kelly, Sept. 2, 2016, ECF No. 42.

BACKGROUND

On February 3, 2014, Commerce initiated its administrative review covering subject imports entered during the period of review March 26, 2012 through December 31, 2012. SeeInitiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 79 Fed. Reg. 6,147, 6,149 –57 (Dep't Commerce Feb. 3, 2014). Commerce selected Lightway Green New Energy Co., Ltd. ("Lightway") and Shanghai BYD Co., Ltd. as mandatory respondents, initially assigning them countervailable subsidy rates of 22.73 percent and 8.63 percent, respectively. Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the People's Republic of China, 80 Fed. Reg. 1,019, 1,019 –20 (Dep't Commerce Jan. 8, 2015) (preliminary results of countervailing duty administrative review; 2012; and partial rescission of countervailing duty administrative review).

During the countervailing duty investigation, SolarWorld alleged in its petition that the Government of China ("GOC"), through its Export-Import Bank ("China Ex-Im Bank"), provided credits to export buyers in the form of medium and long-term loans with preferential, low interest rates to buyers of goods used in certain energy projects, including solar cells ("Export Buyer's Credit Program"). SeeCrystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the People's Republic of China, 77 Fed. Reg. 63,788, 63,789 (Dep't Commerce Oct. 17, 2012) (final affirmative countervailing duty determination and final affirmative critical circumstances determination); see also Issues and Decision Memorandum for the Final Determination in the Countervailing Duty Investigation of Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, from the People's Republic of China at 59, C-570-980, (Oct. 9, 2012), available at http://ia.ita.doc.gov/frn/summary/prc/2012-25564-1.pdf (last visited October 11, 2016) ("Original Investigation Final Determination"). Commerce determined that the Export Buyer's Credit Program is countervailable, and Commerce applied adverse facts available ("AFA")² to select a rate of 10.54 percent to this program. Original Investigation Final Determination at 64.

In its final determination in this administrative review, Commerce applied AFA to the Export Buyer's Credit Program because it could not verify that respondents had not used export buyer's credits, as the GOC claimed in its questionnaire responses. Final Decision Memo at 33 (citing Memorandum re: Verification of the Questionnaire Responses Submitted by the Government of the People's Republic of China at 4–7, PD 255, bar code 3269089-01 (Apr. 6, 2015)).³ Commerce applied an AFA rate of 5.46 percent to the same Export Buyer's Credit Program.⁴ Final Decision Memo at 44. Commerce selected this rate because it corresponds to the highest rate calculated for Lightway for the Preferential Policy Lending to the Renewable Energy Industry program, which Commerce considered similar and comparable to the China Ex-Im Bank Export Buyer's Credit Program. Id.

SolarWorld challenges Commerce's determination to countervail the China Ex-Im Bank's Export Buyer's Credit Program at an AFA rate of 5.46 percent as unsupported by substantial evidence and otherwise contrary to law. Br. Supp. Pl. SolarWorld Americas, Inc.'s Rule 56.2 Mot. J. Agency R. 9–20, Feb. 12, 2016, ECF No. 24 ("SolarWorld Br."). Defendant responds that Commerce followed its practice of selecting an AFA rate to apply in administrative reviews. Def.'s Resp. Br. 8–18. For the reasons that follow, the court remands Commerce's selection of an AFA rate of 5.46 percent for the Export Buyer's Credit Program for further explanation or reconsideration.

JURISDICTION AND STANDARD OF REVIEW

The court has jurisdiction pursuant to 19 U.S.C. § 1516a(a)(2)(B)(iii) and 28 U.S.C. § 1581(c) (2012), which grant the court authority to review actions contesting the final determination in an administrative review of a countervailing duty order. "The court shall hold unlawful any determination, finding, or conclusion found ... to be unsupported by substantial evidence on the record, or otherwise not in accordance with law." 19 U.S.C. § 1516a(b)(1)(B)(i).

DISCUSSION

SolarWorld argues that Commerce's application of an AFA rate of 5.46 percent to the China Ex-Im Bank's Export Buyer's Credit Program is unreasonable, inconsistent with prior agency practice, and otherwise contrary to law. SolarWorld Br. 9–20. Specifically, SolarWorld argues that Commerce unreasonably selected an AFA rate of 5.46 percent in this review when it applied an AFA rate of 10.45 percent to the same program in the original investigation. Id. at 5–6. Defendant responds that Commerce followed its established practice in administrative reviews of selecting the highest non-de minimis calculated rate for a similar program from the same proceeding where there is no calculated rate for any respondent in the review benefiting from the identical program. Def.'s Resp. Br. 8–18. Although Commerce has considerable discretion in developing a methodology to select an AFA rate, its rate selection methodology in administrative reviews differs materially from that applied in investigations. See Final Decision Memo at 44; Original Investigation Final Determination at 64. In this administrative review, that difference in methodologies resulted in Commerce applying a lower AFA rate to the same program in this administrative review than it did in the initial investigation. See Final Decision Memo at 44; Original Investigation Final Determination at 64. Commerce may have a reasonable rationale for its differing methodologies, but it failed to explain its logic in this review. On remand, Commerce must do so or reconsider its determination.

If, in the course of a countervailing duty proceeding, an interested party or any other...