Goal Zero, LLC v. United States

Slip Op. 17-148
UNITED STATES COURT OF INTERNATIONAL TRADE
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.
Before: Claire R. Kelly, Judge
Consol. Court No. 15-00231
PUBLIC VERSION
OPINION AND ORDER
[Sustaining the U.S. Department of Commerce’s remand determination in the first
administrative 	review 	of 	the 	antidumping 	duty 	order 	covering 	crystalline 	silicon
photovoltaic cells, whether or not assembled into modules, from the People’s Republic of
China.]
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.
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PUBLIC VERSION
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.
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.
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PUBLIC VERSION
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.
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PUBLIC VERSION
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
1 This action is consolidated with an action filed by Goal Zero, LLC, challenging different aspects
of the same determination. 	See Order, Nov. 3, 2015, ECF No. 39. 	All aspects of the final
determination challenged by Goal Zero, LLC were sustained in the prior opinion. See SolarWorld
Americas, Inc., 41 CIT at __, 234 F. Supp. 3d at 1294–1303, 1314.
2 Specifically, SolarWorld challenged three other aspects of Commerce’s final determination,
namely Commerce’s: 1) selection of surrogate value import data for two inputs (steel frames and
semi-finished polysilicon ingots and blocks) used in the production of subject merchandise, see
[SolarWorld] Mem. Supp. Rule 56.2 Mot. J. Agency R. 14–24, Apr. 15, 2016, ECF No. 62; 2)
decision to include a line item identified as “other income” in its surrogate financial ratio
calculation, see id. at 42–44; and 3) use of factors of production usage data from Suntech and
certain tollers. See id. at 39–42.
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PUBLIC VERSION
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.
3 Specifically, the court sustained Commerce’s application of the China-wide AFA rate of 249.96
percent to ERA Solar as supported by substantial evidence and in accordance with law;
Commerce’s surrogate value data selections to value solar frames and semi-finished silicon
ingots and blocks; Commerce’s inclusion of the “other income” line item in its surrogate financial
profit calculation; the inclusion of sales to Suntech as CEP sales; and Commerce’s acceptance
of FOP usage data from Suntech and certain tollers as facts available. See SolarWorld Americas,
Inc., 41 CIT at __, 234 F. Supp. 3d at 1314.
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PUBLIC VERSION
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.
4 Further citations to the Tariff Act of 1930, as amended, are to the relevant provisions of Title 19
of the U.S. Code, 2012 edition.
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PUBLIC VERSION
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
5 Further citation to Title 19 of the Code of Federal Regulations is to the 2014 edition.
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issue between Suntech Americas and the unaffiliated purchaser, which appears to relate
to the subject merchandise. See id. at 7. Commerce compared the original contract and
revised contract, original and revised delivery schedules, and the ultimate U.S. sales data,
and 	found 	that 	“meaningful 	differences” 	existed 	between 	the 	ultimate 	delivered
merchandise and certain terms in the contracts and delivery schedules. See id. at 7–9.
Commerce found that these differences “provide a basis to conclude that the material
terms of sale were subject to ongoing revision,” id. at 9, and that these documents indicate
that key terms 6 in Suntech America’s sales contracts were subject to change,
after the contracts were executed. 7 	Id. at 7–10. 	Finding that this record
evidence demonstrates that the terms of sale changed several times between contract
and delivery, Commerce determined that using the date of shipment as the date of sale
would most accurately reflect the date on which the material terms of sale were
established. See id.
This determination is supported by substantial evidence. By comparing the original
contract, revised contract, original delivery schedule, revised delivery schedule, and the
ultimate sales data, Commerce confirmed that the terms of the sales were modified until
delivery. Remand Results 7–10. Commerce cited specific documents in the record that
it compared to reach this determination, see id., and these documents support a finding
6 Namely, Commerce found evidence in the record that the 	and 	terms
changed from the date of initial contract several times until the merchandise was delivered. See
Remand Results 7–10.
7 Commerce stated that “record evidence indicates that the key terms of the 	contract
that covered the CEP sales at issue were subject to change, 	after the date
of the contract.” Remand Results 2.
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that key terms 8 of the contract changed prior to delivery. It was reasonable for Commerce
to determine from the changes in these documents that the terms of sale were not final
until the merchandise was shipped, and to subsequently determine, in keeping with its
regulations, that a date other than the invoice date “better reflects the date on which the
exporter or producer establishes the material terms of sale.” 19 C.F.R. § 351.401(i). The
determination is supported by substantial evidence and is a reasonable exercise of
Commerce’s discretion pursuant to the agency’s regulations. See id.
Commerce has complied with the court’s order. No party challenges Commerce’s
Remand Results, and the Remand Results are sustained.
CONCLUSION
In accordance with the foregoing, the Remand Results comply with the court’s
order in SolarWorld Americas, Inc., 41 CIT at __, 234 F. Supp. 3d at 1314, and are
therefore sustained. Judgment will enter accordingly.
/s/ Claire R. Kelly
Claire R. Kelly, Judge
Dated:October 31, 2017
New York, New York
8 Again, Commerce notes that the terms that changed included the 	and date of
of the goods. See Remand Results 7–10.
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