Exporter Raises More Arguments Against Commerce’s NME Government Control Presumption
Chinese exporter Yingli Energy on June 3 supported its argument that the Court of International Trade should strike down the Commerce Department’s usual presumption that exporters in non-market economies are under government control (Yingli Energy (China) Co. v. United States, CIT # 24-00131).
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Yingli leaned on Loper Bright in its January motion for judgment, arguing that Commerce’s presumption has meant that “a respondent’s chances of rebutting majority [Chinese government] ownership is practically nil." This goes against the statutory requirement to offer respondents a means of proving independence, it said (see 2501170076). Yingli itself was hit with the China-wide rate of 238.95% in the review.
The U.S. public response to Yingli’s motion isn’t currently available, although defendant-intervenor American Alliance for Solar Manufacturing’s response is. Yingli said that the government argued in it that, first, the exporter couldn’t rebut the presumption because a majority of its ownership is held by a state-controlled entity, and, second, Commerce had properly weighed all the available evidence on the record to reach its conclusion.
It also denied that it had failed to exhaust its claims.
The government didn’t deny that Yingli had “established” its sales were controlled by its importer, Yingli Green Energy Americas, which resold the solar cells it purchased to unaffiliated customers, Yingli said. Yingli Green Energy Americas and Yingli China have different owners, it said. But DOJ instead only repeated Commerce’s “circular argument” that Yingli China’s prices and contract negotiations could have been influenced by the Chinese government, it claimed.
Responding to the second point, Yingli also said it disagreed that Commerce had adequately considered all the evidence before denying the exporter a separate rate. The department “made a premature decision” to end its inquiry into Yingli’s sales and choose another mandatory respondent during its 10th antidumping duty review of Chinese-origin solar cells, the exporter said.
“Thus, Commerce failed to take advantage of the entire time allowed during the fact-finding phase of its administrative review to fully consider Yingli’s evidence demonstrating that its export activities were independent from all Chinese Government control,” Yingli said.
Though the U.S. cited the U.S. Court of Appeals for the Federal Circuit decision in Sigma Corp. v. U.S., that case only held that exporters have the burden to show their export activities were conducted independently of their domestic government. It also “assumed that a respondent exporter would actually have the possibility to rebut the presumption of Government control over export activities,” Yingli said.
The exporter also pushed back against the government’s claim that it failed to exhaust its administrative remedies. It said its argument is solely a legal issue -- “that there is no basis in law for a per se presumption for Chinese Government control of its export activities that leaves no room for rebuttal.” This means that “[t]here is no evidence” that Commerce could have weighed during administrative proceedings.
The U.S. argued that the presumption “somehow” allows Commerce to calculate more accurate dumping margins for non-market economes, but it didn’t explain how, Yingli said.
This question was considered in the case Guizhou Tyre v. U.S., it acknowledged. In that case, CIT “came to the questionable conclusion” that individual respondents from nonmarket economies can’t be considered a “known exporter or producer” under statute without rebutting the government control presumption.
The trade court called this result the “necessary implication” of CAFC cases CMA and Diamond Sawblades. But, based on its language, “it seems as if the Court in Guizhou Tyre is well aware of the absurdity of the conclusion that the ‘actual known exporter or producer” is not actually the “actual known exporter or producer,’” Yingli argued.
“Yingli China submits that no legitimate reason exists for Commerce’s assignment of the adverse PRC-entity rate of 238.95 percent ad valorem rather than the statutory mandated individually calculated rate, and this Court should reverse Commerce’s application of its NME Presumption in Yingli China’s case,” it said.