Solarworld Ams., Inc. v. United States, Slip Op. 17–148

• Decision Date: 31 October 2017
• Docket Number: Consol. Court No. 15–00231,Slip Op. 17–148
• Citation: 273 F.Supp.3d 1314
• Parties: SOLARWORLD AMERICAS, INC. and Goal Zero, LLC, Plaintiff and Consolidated Plaintiff, v. UNITED STATES, Defendant, and Yingli Green Energy Holding Co., Ltd. et al., Defendant–Intervenors and Consolidated Defendant–Intervenor.
• Court: U.S. Court of International Trade

273 F.Supp.3d 1314

SOLARWORLD AMERICAS, INC. and Goal Zero, LLC, Plaintiff and Consolidated Plaintiff,

v.UNITED STATES, Defendant,andYingli Green Energy Holding Co., Ltd. et al., Defendant–Intervenors and Consolidated Defendant–Intervenor.

Slip Op. 17–148

Consol. Court No. 15–00231

United States Court of International Trade.

Dated: October 31, 2017

Timothy C. Brightbill, Laura El–Sabaawi, Maureen Elizabeth Thorson, Tessa Victoria Capeloto, Usha Neelakantan, and Adam Milan Teslik, Wiley Rein, LLP, of Washington, DC, for SolarWorld Americas, Inc.

John Marshall Gurley, Nancy Aileen Noonan, Aman Kakar, and Diana Dimitriuc–Quaia, Arent Fox LLP, of Washington, DC, for Goal Zero, LLC.

Tara Kathleen Hogan, Assistant Director, U.S. Department of Justice, Commercial Litigation Branch, Civil Division, 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 Mercedes C. Morno, Attorney, U.S. Department of Commerce, Office of the Chief Counsel for Trade Enforcement & Compliance.

Neil R. Ellis, Richard L.A. Weiner, Rajib Pal, Shawn Michael Higgins, and Justin Ross Becker, Sidley Austin, LLP, of Washington, DC, for Yingli Green Energy Holding Co., Ltd., Yingli Green Energy Americas, Inc., Yingli Energy (China) Co., Ltd., Baoding Tianwei Yingli New Energy Resources Co., Ltd., Tianjin Yingli New Energy Resources Co., Ltd., Hengshui Yingli New Energy Resources Co., Ltd., Lixian Yingli New Energy Resources Co., Ltd., Baoding Jiasheng Photovoltaic Technology Co., Ltd., Beijing Tianneng Yingli New Energy Resources Co., Ltd., Hainan Yingli New Energy Resources Co., Ltd., Jinko Solar Import & Export Co., Ltd., JinkoSolar International Limited, and Jinko Solar Co., Ltd.

Robert George Gosselink, Jarrod Mark Goldfeder, and Jonathan Michael Freed, Trade Pacific, PLLC, of Washington, DC, for Changzhou Trina Solar Energy Co., Ltd. and Trina Solar (Changzhou) Science & Technology Co., Ltd.

OPINION AND ORDER

Kelly, Judge:

Before the court for review is the U.S. Department of Commerce's ("Commerce") remand determination in the first administrative review of the antidumping duty ("ADD") order covering crystalline silicon photovoltaic cells, whether or not assembled into modules, from the People's Republic of China ("China" or "the PRC"), filed pursuant to the court's order in SolarWorld Americas, Inc. v. United States, 41 CIT ––––, ––––, 234 F.Supp.3d 1286, 1314 (2017). See Final Results of Remand Redetermination, Sept. 11, 2017, ECF No. 143–1 ("Remand Results"). For the reasons that follow, Commerce has complied with the court's order in SolarWorld Americas, Inc., 41 CIT at ––––, 234 F.Supp.3d at 1314, and the Remand Results are sustained.

BACKGROUND

The court assumes familiarity with the facts of this case as discussed in the previous opinion, see SolarWorld Americas, Inc., 41 CIT at ––––, 234 F.Supp.3d at 1292–94, and here recounts the facts relevant to the court's review of the Remand Results.

Commerce selected Yingli Energy (China) Company Limited and Wuxi Suntech Power Co., Ltd. ("Suntech") as mandatory respondents in this review. See Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the [PRC], 80 Fed. Reg. 40,998, 40,998 (Dep't Commerce July 14, 2015) (final results of ADD administrative review and final determination of no shipments; 2012–2013) and accompanying Decision Memorandum for the Final Results of the 2012–2013 [ADD] Administrative Review of Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled into Modules, From the [PRC], A–570–979, at 1, (July 7, 2015), ECF No. 20–5 ("Final Decision Memo"). For purposes of calculating Suntech's dumping margin, Commerce included, as constructed export price ("CEP") sales, sales of subject merchandise between Suntech's U.S. affiliate Suntech America and an unaffiliated purchaser, using the shipment date as the date of sale. See Final Decision Memo at 91–94. Acknowledging that "invoice date is normally the presumptive date of sale," Commerce justified using the date of shipment here by reference to Suntech America's contracts for the sale of solar modules that are subject to change and to its findings in past proceedings that contracts within the solar industry are regularly subject to change. Id. at 93–94.

SolarWorld Americas, Inc. ("SolarWorld") commenced this action,¹ see Summons, Aug. 12, 2015, ECF No. 1, challenging several aspects of the final determination.² See [SolarWorld] Mem. Supp. Rule 56.2 Mot. J. Agency R. 13–45, Apr. 15, 2016, ECF No. 62. SolarWorld challenged, inter alia, Commerce's decision to use the shipment date as the date of sale for Suntech's U.S. sales, contending that Commerce should have instead used the date of contract as the date of sale. See id. at 33–39. SolarWorld also contended that Commerce incorrectly based its determination that Suntech America's sales contracts were subject to change up to the date of shipment on terms in contracts not included as CEP sales. Id. at 35–36. Defendant responded that Commerce's determination was supported by record evidence showing that the material terms of Suntech America's sales contracts were subject to change up to the date of shipment, consistent with the contract pricing practices of the solar industry and of Suntech. See Def.'s Mem. Opp'n Pls.' Rule 56.2 Mots. J. Agency R. 45–47, Dec. 16, 2016, ECF No. 81.

Sustaining the final determination in all other respects, the court remanded to Commerce for further explanation or reconsideration of the agency's determination to use the date of shipment as the date of sale for Suntech America's CEP sales.³ SolarWorld Americas, Inc., 41 CIT at ––––, 234 F.Supp.3d at 1314. The court determined that Commerce's use of the shipment date as date of sale was unsupported by substantial evidence because Commerce based its conclusion that key terms of sale were subject to change on contracts for the sale of solar modules not related to the Suntech America sales included as CEP sales. See id., 41 CIT at ––––, 234 F.Supp.3d at 1310–11. The court ordered that, on remand, Commerce must explain what record evidence supports a determination that the key terms of the sales between Suntech's affiliated U.S. seller Suntech America and the unaffiliated purchaser were subject to change after the contract date, or must reconsider its determination. See id., 41 CIT at ––––, ––––, 234 F.Supp.3d at 1310, 1314.

Commerce published the remand determination on September 11, 2017. No parties commented on the Remand Results, and Defendant requested that the court sustain the Remand Results and enter judgment on its behalf. Def.'s Req. Entry J., Oct. 16, 2017, ECF No. 147.

JURISDICTION AND STANDARD OF REVIEW

The court has jurisdiction pursuant to section 516A of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2012)⁴ 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 an antidumping 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). "The results of a redetermination pursuant to court remand are also reviewed ‘for compliance with the court's remand order.’ " Xinjiamei Furniture (Zhangzhou) Co. v. United States, 38 CIT ––––, ––––, 968 F.Supp.2d 1255, 1259 (2014) (quoting Nakornthai Strip Mill Public Co. v. United States, 32 CIT 1272, 1274, 587 F.Supp.2d 1303, 1306 (2008) ).

DISCUSSION

The court ordered that, on remand, Commerce must explain what record evidence supports a determination that the key terms of the sales between Suntech's affiliated U.S. seller and the unaffiliated purchaser were subject to change after the contract date, or must reconsider its determination. SolarWorld Americas, Inc., 41 CIT at ––––, ––––, 234 F.Supp.3d at 1310, 1314. On remand, Commerce adequately explained its determination that the key terms of sale in the relevant contracts were subject to change, and has therefore complied with the court's order.

Commerce determines a respondent's dumping margin by calculating "the amount by which the normal value exceeds the export price or constructed export price of the subject merchandise." 19 U.S.C. § 1677(35)(A). The statute provides that constructed export price is "the price at which the subject merchandise is first sold (or agreed to be sold) before or after the date of importation by or for the account of the producer or exporter ... or by a seller affiliated with the producer or exporter, to [an unaffiliated] purchaser ..." Id. § 1677a(b). The statute does not define when a product is deemed sold, nor does it define how Commerce determines date of sale for purposes of determining which sales should be included in calculating constructed export price. Commerce's regulations provide that the agency "normally will use the date of invoice, as recorded in the exporter or producer's records kept in the ordinary course of business" as the date of sale of subject merchandise. 19 C.F.R. § 351.401(i) (2014).⁵ However, Commerce has discretion to use an alternative date if it determines that "a different date better reflects the date on which the exporter or producer establishes the material terms of sale." Id.

Here, Commerce determined that a date other than the date of invoice better reflects the date that the material terms of sale were established. Remand Results 10. On remand, Commerce further explained its decision to use the shipment date as the date of sale for Suntech America's CEP sales of solar modules to the unaffiliated purchaser. See id. at 6–10. On remand, Commerce relied upon the actual contract at issue between Suntech Americas and the unaffiliated purchaser, which appears to relate to the subject...