Case: 18-2194 Document: 46 Page: 1 Filed: 06/15/2020
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`JINKO SOLAR CO., LTD., JINKO SOLAR IMPORT
`& EXPORT CO., LTD., JINKOSOLAR (U.S.) INC.,
`Plaintiffs
`
`YINGLI GREEN ENERGY AMERICAS, INC., YINGLI
`GREEN ENERGY HOLDING COMPANY LIMITED,
`CANADIAN SOLAR, INC.
`Intervenor-Plaintiffs
`
`v.
`
`UNITED STATES,
`Defendant
`
`SOLARWORLD AMERICAS, INC.,
`Intervenor-Defendant-Appellant
`
`- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
`
`SOLARWORLD AMERICAS, INC.,
`Plaintiff-Appellant
`
`v.
`
`UNITED STATES,
`Defendant-Appellee
`
`HANWHA SOLARONE (QIDONG) CO., LTD.,
`HANWHA SOLARONE HONG KONG LIMITED,
`YINGLI GREEN ENERGY AMERICAS, INC., YINGLI
`GREEN ENERGY HOLDING COMPANY LIMITED,
`
`

`

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`JINKO SOLAR CO., LTD. v. UNITED STATES
`
`CANADIAN SOLAR, INC.,
`Intervenor-Defendants
`______________________
`
`2018-2194
`______________________
`
`Appeal from the United States Court of International
`Trade in Nos. 1:15-cv-00080-CRK, 1:15-cv-00086-CRK,
`Judge Claire R. Kelly.
`______________________
`
`Decided: June 15, 2020
`______________________
`
`TIMOTHY C. BRIGHTBILL, Wiley Rein, LLP, Washington,
`DC, for appellant. Also represented by LAURA EL-SABAAWI,
`USHA NEELAKANTAN, MAUREEN E. THORSON.
`
` TARA K. HOGAN, Commercial Litigation Branch, Civil
`Division, United States Department of Justice, Washing-
`ton, DC, for appellee. Also represented by JOSEPH H.
`HUNT, JEANNE DAVIDSON; KRISTEN MCCANNON, JAMES
`HENRY AHRENS, II, Office of the Chief Counsel for Trade
`Enforcement & Compliance, United States Department of
`Commerce, Washington, DC.
` ______________________
`
`Before NEWMAN, TARANTO, and STOLL, Circuit Judges.
`NEWMAN, Circuit Judge.
`The antidumping duty petition culminating in this ap-
`peal was filed by SolarWorld Americas, Inc. (“SolarWorld”)
`concerning certain photovoltaic products imported from
`the People’s Republic of China (“PRC”). This case arises
`from a Department of Commerce (“Commerce”) antidump-
`ing duty investigation, reported at Certain Crystalline Sil-
`icon Photovoltaic Products From the People’s Republic of
`
`

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`JINKO SOLAR CO., LTD. v. UNITED STATES
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`China, 79 Fed. Reg. 44,399 (Dep’t Commerce July 31, 2014)
`(“Preliminary Determination”); 79 Fed. Reg. 76,970 (Dep’t
`Commerce Dec. 23, 2014) (“Final Determination”). Appeal
`from these determinations was taken to the Court of Inter-
`national Trade (“CIT”), and after two remands the CIT af-
`firmed the rulings of Commerce.1
`This appeal to the Federal Circuit is directed to two of
`the issues reviewed by the CIT: first, Commerce’s selection
`of Harmonized Tariff Schedule (“HTS”) Heading 7604 for
`valuation of the aluminum frame inputs to the photovoltaic
`modules; and second, Commerce’s method of offsetting the
`antidumping duty cash deposit rate to account for export
`subsidies.
`We review Commerce’s rulings on the same standards
`as applied by the CIT, and give “great weight to the in-
`formed opinion of the CIT.” Downhole Pipe & Equip., L.P.
`v. United States, 776 F.3d 1369, 1374 (Fed. Cir. 2015) (al-
`terations omitted). We now affirm the decisions on appeal.
`I
`Valuation of the Aluminum Frame Inputs
`On petition filed by domestic industry, Commerce de-
`termines whether an imported product is sold in the United
`States at less than fair value. Commerce must make “a fair
`comparison . . . between the export price or constructed ex-
`port price and normal value.” 19 U.S.C. § 1677b(a). When
`a product is imported into the United States from a non-
`market economy country, as China is designated, then in
`order to achieve a fair market price comparison, Commerce
`
`
`
`1 Jinko Solar Co. v. United States, 229 F. Supp. 3d
`1333 (Ct. Int’l Trade 2017) (“CIT Op.”); Jinko Solar Co. v.
`United States, 317 F. Supp. 3d 1314 (Ct. Int’l Trade 2018)
`(“CIT Dec.”).
`
`

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`JINKO SOLAR CO., LTD. v. UNITED STATES
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`determines the “normal value” of the subject merchandise
`in a comparable market economy. This value is determined
`by valuing the factors of production and other commercial
`factors, as set forth in 19 U.S.C. § 1677b(c)(1)(B):
`[T]he normal value of the subject merchandise [is
`determined] on the basis of the value of the factors
`of production utilized in producing the merchan-
`dise and to which shall be added an amount for
`general expenses and profit plus the cost of con-
`tainers, coverings, and other expenses. . . . [T]he
`valuation of the factors of production shall be based
`on the best available information regarding the
`values of such factors in a market economy country
`or countries considered to be appropriate by the ad-
`ministering authority.
`To value the aluminum frame inputs for the photovoltaic
`modules imported from China, Commerce selected market
`data for comparable imports under South African HTS sub-
`heading 7604. The CIT summarized Commerce’s findings
`as follows:
`Commerce found that the best available infor-
`mation by which to value respondents’ aluminum
`frames was the average value of South African im-
`ports under subheading 7604.29.65, HTS (“Alumi-
`num alloy bars, rods and profiles, other than hollow
`profiles of a maximum cross-sectional dimension
`not exceeding 370 mm”), rather than Thai imports
`under subheading 7616.99, HTS, (“Articles of alu-
`minum not otherwise specified or indicated: other”)
`covering a more diverse array of aluminum prod-
`ucts.
`CIT Op. at 1351 (citing Certain Crystalline Silicon Photo-
`voltaic Products From the People’s Republic of China, Is-
`sues & Dec. Mem., A-570-010, POI Apr. 1, 2013–Sept. 30,
`2013, at 48–50 (Dep’t of Commerce Dec. 15, 2014) (adopted
`
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`in 79 C.F.R. 78,036 (Dec. 29, 2014)) (“Final Decision
`Memo”).
`SolarWorld argues that Commerce selected the incor-
`rect HTS classification for these products, and that the CIT
`erred in sustaining Commerce’s classification on the
`ground of “reasonableness.” SolarWorld argues that
`HTS 7604 undervalues the aluminum frame input, and
`“did not accurately account for the additional processing
`that the input has undergone.” SolarWorld Br. 3.
`This question of valuation of aluminum frames as in-
`puts was before this court in a concurrent appeal, now re-
`ported at SolarWorld Americas, Inc. v. United States, 910
`F.3d 1216 (Fed. Cir. 2018) (“SolarWorld I”). These appeals
`arose on different administrative records in Commerce.
`The appeal leading to SolarWorld I was co-pending with
`this appeal, and the decision issued after completion of
`briefing in the present appeal. The Jinko Solar plaintiffs
`(Jinko Solar Co., Ltd.; Jinko Solar Import & Export Co.,
`Ltd.; and, Jinko Solar (U.S.) Inc.) and the Yingli plain-
`tiffs/defendants (Yingli Green Energy Americas, Inc.;
`Yingli Green Energy Holding Company Limited) that are
`parties to the present appeal were also parties to Solar-
`World I.2
`In SolarWorld I, this court reviewed the decision of the
`CIT reported at SolarWorld Americas, Inc., v. United
`States, 273 F. Supp. 3d 1314 (Ct. Int’l Trade Oct. 31, 2017).
`On the question of valuation of the aluminum frame
`
`
`2 The record states that the present proceeding was
`necessitated to “close a ‘loophole’ that resulted when pro-
`ducers subject to the Solar I investigations . . . increased
`imports of modules assembled in the PRC with non-PRC
`cells so as to avoid the reach of the Solar I orders.” Final
`Decision Memo at 17 (internal citation omitted).
`
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`JINKO SOLAR CO., LTD. v. UNITED STATES
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`inputs, this court reviewed Commerce’s decision and that
`of the CIT, and concluded that:
`Thai HTS Heading 7604 still constitutes the best
`available information under § 1677b(c)(1)(B), given
`the other similarities detailed above between
`Yingli’s inputs and the products covered by Thai
`HTS Heading 7604.
`SolarWorld I, 910 F.3d at 1223. The selection of HTS clas-
`sification under Heading 7604 is also the question of the
`present appeal.
`In SolarWorld I the court explored all of SolarWorld’s
`arguments regarding valuation of the aluminum frame in-
`puts. For example, SolarWorld argues that HTS 7604
`should not apply, compared with HTS 7616, because alu-
`minum frames that have corners do not meet the definition
`of “profiles” under HTS 7604. SolarWorld also argues that
`Commerce erred in finding that “the frames are not of uni-
`form cross section along their entire length as required in
`the Chapter Notes to Chapter 76.” CIT Op. at 1352; id. at
`1353 (explaining that Commerce found that “the frames’
`corners ‘are only a small part of the aluminum frames used
`to build solar modules,’” and that it “is discernible that
`Commerce considers the corners [] not significant to alter
`the article from those covered by [HTS 7604.29]” (quoting
`Final Decision Memo at 50)).
`The court in SolarWorld I had also reviewed the rela-
`tionship between a prior classification by Customs and
`Border Protection (“CBP”) that had selected HTS 7616 as
`applicable to the subject aluminum frames. The CIT again
`sustained Commerce’s position that it is not bound by Cus-
`toms’ rulings, but “is bound instead by its statutory re-
`quirement to value inputs using the best available
`information.” CIT Op. at 1352 (citing Final Decision Memo
`at 49). This court sustained Commerce’s position and af-
`firmed CIT’s decision. SolarWorld I, 910 F.3d at 1225. The
`
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`same argument is presented herein, arguing the same Cus-
`toms rulings for the same products.
`Thus SolarWorld again argues that the aluminum
`frames are incorrectly classified under HTS Heading 7604
`as factors of production, and that HTS Heading 7616 is the
`correct classification. SolarWorld states that although
`“based on different administrative records, both appeals in-
`volve the selection of a surrogate value for aluminum
`frames used in solar modules.” SolarWorld Br. 1. No dis-
`tinction is proposed between these frames as a factor of pro-
`duction of the solar modules.
`We affirm the CIT’s decision that “Commerce’s use of
`subheading 7604.29.65, HTS, to value respondents’ alumi-
`num frames is supported by substantial evidence.” CIT Op.
`at 1353. That ruling is affirmed.
`II
`Offset of Cash Deposit Rates
`SolarWorld criticizes Commerce’s methodology in im-
`plementing the statutes concerning the setting of anti-
`dumping duty cash deposit rates and offsetting these rates
`to account for countervailed export subsidies.
`After Commerce has determined that the imported
`merchandise is being, or is likely to be, sold in the United
`States at less than fair value, Commerce estimates the
`weighted average dumping margin3 for each exporter and
`producer, and orders the posting of a cash deposit or bond
`based on the estimated dumping margin. 19 U.S.C.
`§ 1673d(c)(1)(B). Relevant to the cash deposit, 19 U.S.C.
`
`
`3 The dumping margin is “the amount by which the
`normal value exceeds the export price (or the constructed
`export price) of the subject merchandise.” 19 U.S.C.
`§ 1677b(a)(2).
`
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`JINKO SOLAR CO., LTD. v. UNITED STATES
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`§ 1677a(c)(1)(C) requires adjustment of the export price by
`increasing “the amount of any countervailing duty imposed
`on the subject merchandise . . . to offset an export subsidy.”
`The purpose is to avoid the double application of duties.
`Commerce
`explains
`that
`the
`theory
`“underlying
`[§ 1677a(c)(1)(C)] is that in parallel AD and CVD investi-
`gations, if [Commerce] finds that a respondent received the
`benefits of an export subsidy program, [the statute] pre-
`sume[s that] the subsidy contributed to lower-priced sales
`of subject merchandise in the United States.” Final Deci-
`sion Memo at 38; see Galvanized Steel Wire From the Peo-
`ple’s Republic of China, Issues & Dec. Mem., A-570-975,
`POI July 1, 2010–Dec. 31, 2010, at 18 (Dep’t of Commerce
`Mar. 19, 2012) (adopted in 77 Fed. Reg. 17,430 (Mar. 26,
`2012) (explaining that the statute “requires a full adjust-
`ment of AD duties for CVDs based on export subsidies in
`all AD proceedings”).
`Here, Commerce offset the antidumping cash deposit
`rate by the cash deposit rate for certain subsidies in the
`parallel countervailing duty investigations. Certain Crys-
`talline Silicon Photovoltaic Products From the People’s Re-
`public of China, Memorandum to the File, A-570-010 (Dep’t
`Commerce Mar. 5, 2015) (adjusting dumping margin using
`rates in the companion countervailing duty investigation).
`The amount of export subsidies herein were determined by
`Commerce based on adverse facts available (“AFA”) in the
`companion CVD investigation. 19 U.S.C. § 1677e(b) pro-
`vides that when an “interested party has failed to cooper-
`ate” with requests for information, Commerce “may use an
`inference that is adverse to the interests of that party in
`selecting from among the facts otherwise available.” Mav-
`erick Tube Corp. v. United States, 857 F.3d 1353, 1360
`(Fed. Cir. 2017).
`SolarWorld states that this offset, which lowers the an-
`tidumping duty margin, has the unintended effect of neu-
`tralizing the effect of the adverse inference in the
`
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`countervailing duty investigation. SolarWorld argues that
`as a result, the respondents may “achieve a more favorable
`result from their failure to cooperate than they would have
`if they cooperated fully.” SolarWorld Br. 24. SolarWorld
`states that Commerce’s methodology is not reasonable, and
`is contrary to law. The government observes that the stat-
`ute is silent as to whether Commerce must offset cash de-
`posit rates, and states that “SolarWorld has not explained
`why it would be more reasonable for Commerce to apply
`the adverse inference to the respondents twice.” Gov’t Br.
`18.
`
`The CIT addressed SolarWorld’s argument that Com-
`merce’s offset practice negates the purpose of the adverse
`inference, that is, deterring non-compliance with Com-
`merce’s investigations. The CIT explained that an adverse-
`facts-available based export subsidy reflects the “amount
`of an export subsidy that actually benefited the subject
`merchandise,” and that in estimating a subsidy rate based
`on an adverse inference, Commerce is guided by both “cre-
`ating a proper deterrent to non-cooperation” and the stat-
`utory “corroboration requirement . . . which requires that
`the AFA rate ‘be a reasonably accurate estimate of the re-
`spondent’s actual rate.’” CIT Op. at 1360 (quoting F.lli De
`Cecco Di Filippo Fara S. Martino S.p.A. v. United States,
`216 F.3d 1027, 1032 (Fed. Cir. 2000)).
`The CIT held that Commerce’s offset practice is reason-
`able under the statutory plan, because it “fosters con-
`sistency in investigations and administrative reviews.”
`CIT Op. at 1359–60 (citing Final Decision Memo at 39).
`The CIT explained that 19 U.S.C. § 1677a(c)(1)(C) provides
`for “offset [of] an export subsidy” through an increase in the
`export price or calculated export price by “the amount of
`any countervailing duty imposed on the subject merchan-
`dise.” Id. at 1360. The CIT reasoned that in calculating an
`export subsidy rate based on adverse facts available, “Com-
`merce is guided not only by creating a proper deterrent to
`non-cooperation,” but
`“also by
`the
`corroboration
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`JINKO SOLAR CO., LTD. v. UNITED STATES
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`requirement in 19 U.S.C. § 1677e(c), which requires that
`the AFA rate ‘be a reasonably accurate estimate of the re-
`spondent’s actual rate.’” Id. (quoting De Cecco, 216 F.3d at
`1032). The CIT explained that Commerce, in balancing ac-
`curacy and deterrence, “cannot avoid double-counting the
`export subsidy (i.e., including the export subsidy in the
`CVD cash deposit rate while also including it in the AD
`cash deposit rate) without also undermining the deterrent
`effect of the adverse inference (i.e., reducing the combined
`cash deposit rate).” Id.
`The CIT concluded that “Commerce reasonably exer-
`cised its discretion to offset the AD margin by the AFA CVD
`rate to avoid estimating duties in the AD cash deposit rate
`that are reflected in the CVD cash deposit.” Id. The CIT
`held that Commerce’s practice is reasonable because it en-
`sures that the adverse inference is applied only once. Id.
`at 1359.
`We review administrative agency actions on the stand-
`ard of Chevron U.S.A., Inc. v. Natural Resources Defense
`Council, Inc., 467 U.S. 837 (1984), whereby if “the intent of
`Congress is clear, that is the end of the matter;” id. at 842,
`but if the statute is ambiguous or does not include the as-
`pect at issue, then the agency’s interpretation must be ac-
`cepted unless it is “procedurally defective, arbitrary or
`capricious in substance, or manifestly contrary to the stat-
`ute.” Ningbo Dafa Chem. Fiber Co. v. United States, 580
`F.3d 1247, 1253 (Fed. Cir. 2009) (applying Chevron to an-
`tidumping determinations).
`We have considered the concerns raised by SolarWorld,
`and conclude that Commerce’s practice with respect to off-
`set of cash deposit rates reasonably implements the stat-
`ute. This practice balances the dumping margin against
`deterrence, lowers the combined antidumping/countervail-
`ing cash deposit rate, and avoids the inequity of double ap-
`plication of duty. This practice was considered by the CIT
`in light of the statute, and the practice of Commerce was
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`deemed to be a reasonable implementation of the statutory
`purposes of balancing import value and facilitating inves-
`tigation. The CIT’s decision on this aspect is affirmed. See
`SKF USA, Inc. v. United States, 537 F.3d 1373, 1379 (Fed.
`Cir. 2008) (“Deference to an agency’s statutory interpreta-
`tion is at its peak in the case of a court’s review of Com-
`merce’s interpretation of the antidumping laws.” (brackets
`and internal quotation marks omitted) (quoting Koyo Seiko
`Co. v. United States, 36 F.3d 1565, 1570 (Fed. Cir. 1994))).
`CONCLUSION
`The decision of the Court of International Trade is af-
`firmed.
`
`AFFIRMED
`Each party shall bear its costs.
`
`