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,
Case: 18-2194 Document: 46 Page: 2 Filed: 06/15/2020
2 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 3
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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4 JINKO SOLAR CO., LTD. v. UNITED STATES
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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JINKO SOLAR CO., LTD. v. UNITED STATES 5
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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6 JINKO SOLAR CO., LTD. v. UNITED STATES
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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JINKO SOLAR CO., LTD. v. UNITED STATES 7
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 margin 3 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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8 JINKO SOLAR CO., LTD. v. UNITED STATES
§ 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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JINKO SOLAR CO., LTD. v. UNITED STATES 9
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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10 JINKO SOLAR CO., LTD. v. UNITED STATES
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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JINKO SOLAR CO., LTD. v. UNITED STATES 11
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.