Changzhou Trina Solar Energy Co. v. United States , 2019 CIT 92 ( 2019 )

Slip Op. 19-92
UNITED STATES COURT OF INTERNATIONAL TRADE
CHANGZHOU TRINA SOLAR ENERGY CO., LTD.
ET AL.,
Plaintiffs and Consolidated
Plaintiff,
v.
UNITED STATES, Before: Claire R. Kelly, Judge
Defendant, Consol. Court No. 17-00199
and
SOLARWORLD AMERICAS, INC. and
CHANGZHOU TRINA SOLAR ENERGY CO.,
LTD.,
Defendant-Intervenors and
Consolidated Defendant-Intervenor.
OPINION
[Sustaining the U.S. Department of Commerce’s remand redetermination in the first
administrative review of the antidumping duty order covering certain crystalline silicon
photovoltaic products from the People’s Republic of China.]
Dated: July 25, 2019
Jonathan Michael Freed, Robert George Gosselink, and Jarrod Mark Goldfeder, Trade
Pacific, PLLC, of Washington, DC, for plaintiff, defendant-intervenor, and consolidated
defendant-intervenor Changzhou Trina Solar Energy Co., Ltd., and plaintiffs Trina Solar
(Changzhou) Science & Technology Co., Ltd. and Trina Solar (U.S.) Inc.
Timothy C. Brightbill and Laura El-Sabaawi, Wiley Rein, LLP, of Washington, DC, for
consolidated plaintiff and defendant-intervenor SolarWorld Americas, Inc.
Joshua E. Kurland, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, DC, for defendant. With him on the brief were
Reginald T. Blades, Jr., Assistant Director, Jeanne E. Davidson, Director, and Joseph H.
Hunt, Assistant Attorney General.
Consol. Court No. 17-00199 Page 2
Kelly, Judge: Before the court is the U.S. Department of Commerce’s
(“Commerce”) remand redetermination filed pursuant to the court’s order in Changzhou
Trina Solar Energy Co. v. United States, 43 CIT __, 359 F. Supp. 3d 1329 (2019)
(“Changzhou Trina I”). See Final Results of Remand Redetermination, Apr. 25, 2019,
ECF No. 78-1 (“Remand Results”).
In Changzhou Trina I, the court determined that Commerce’s decision not to offset
the Ex-Im Bank Export Buyer’s Credit Program in the first administrative review of the
antidumping duty (“ADD”) order covering certain crystalline silicon photovoltaic products
from the People’s Republic of China (“PRC” or “China”) was contrary to law and ordered
Commerce to recalculate Trina’s U.S. selling prices on remand. 1 Changzhou Trina I, 43
CIT at __, 359 F. Supp. 3d at 1337–42, 1344; see also Certain Crystalline Silicon
Photovoltaic Prods. from the [PRC], 82 Fed. Reg. 32,170 (Dep’t Commerce July 12, 2017)
(final results of ADD admin. review and final determination of no shipments; 2014–2016)
(“Final Results”) and accompanying Issues & Decision Mem. for the Final Results of ADD
Admin. [Review]: Certain Crystalline Silicon Photovoltaic Prods. from the [PRC]; 2014–
2016, A-570-010, (July 5, 2017), ECF No. 19-3 (“Final Decision Memo”); Certain
Crystalline Silicon Photovoltaic Prods. from the [PRC], 80 Fed. Reg. 8,592, 8,593–95
(Dep’t Commerce Feb. 18, 2015) (ADD order).
1
The collective entity Commerce refers to as “Trina” encompasses Changzhou Trina Solar
Energy Co., Ltd., Trina Solar (Changzhou) Science and Technology Co., Ltd., Yangcheng Trina
Solar Energy Co., Ltd., Turpan Trina Solar Energy Co., Ltd., and Hubei Trina Solar Energy Co.,
Ltd. Remand Results at 1 n.2. The court adopts the shorthand in this opinion.
Consol. Court No. 17-00199 Page 3
On remand and “under respectful protest,” Commerce increased Trina’s U.S.
selling prices by the amount countervailed to offset the Ex-Im Bank Export Buyer’s Credit
Program. See Remand Results at 1, 5. As a result, Trina’s weighted-average dumping
margin decreased from 9.61 percent to 3.42 percent. See id. at 6–7. The separate rate
respondents’ rate similarly changed. Id. at 7. For the following reasons, the court sustains
the Remand Results.
BACKGROUND
The court assumes familiarity with the facts of this case as discussed in the prior
opinion, see Changzhou Trina I, 43 CIT at __, 359 F. Supp. 3d at 1332–33, and here
recounts the facts relevant to the court’s review of the Remand Results. The first
administrative review covered subject imports entered during the period of July 31, 2014,
through January 31, 2016. See Initiation of [ADD] and Countervailing Duty Admin.
Reviews, 81 Fed. Reg. 20,324, 20,335 (Dep’t Commerce Apr. 7, 2016). Commerce
selected Changzhou Trina Solar Energy Co., Ltd./Trina Solar (Changzhou) Science &
Technology Co., Ltd. as the sole mandatory respondent for individual review. See Resp’t
Selection Mem. [for 2014–2016 ADD Admin. Review] at 5, PD 94, bar code 3472551-01
(May 24, 2016). 2 Pertinent here, in the parallel countervailing duty (“CVD”) investigation,
Commerce imposed CVDs against the mandatory respondents 3 to countervail the Ex-Im
2
The court’s citations to administrative record documents are to numbers Commerce assigns to
such documents in its public and confidential administrative record indices; here, located on the
docket at ECF Nos. 19-4–5 and 79-2–3.
3
One of the mandatory respondents in the parallel CVD investigation was Changzhou Trina Solar
Energy Co., Ltd. and its cross-owned affiliate Trina Solar (Changzhou) Science & Technology
Co., Ltd. CVD Investigation Final Decision Memo at 2.
Consol. Court No. 17-00199 Page 4
Bank Export Buyer’s Credit Program. See [CVD] Investigation of Certain Crystalline
Silicon Photovoltaic Prods. From the [PRC], 79 Fed. Reg. 76,962 (Dep’t Commerce Dec.
23, 2014) (final affirmative [CVD] determination) and accompanying Issues & Decision
Mem. for the Final Determination in the [CVD] Investigation of Certain Crystalline Silicon
Photovoltaic Prods. from the [PRC] at 30, C-570-011, (Dec. 15, 2014) (“CVD Investigation
Final Decision Memo”) available at http://ia.ita.doc.gov/frn/summary/prc/2014-30071-
1.pdf (last visited July 22, 2019). In the final determination, Commerce declined to
increase Trina’s U.S. selling prices (which would reduce Trina’s antidumping duty) by the
amount countervailed to offset the Ex-Im Bank Export Buyer’s Credit Program. See Final
Decision Memo at 9–10. Specifically, Commerce stated that it was not required to adjust
Trina’s U.S. selling prices because it had not found the Ex-Im Bank Export Buyer’s Credit
Program to be contingent on export performance and thus had not determined the
program to be an export subsidy. Id. For the Final Results, Commerce calculated a
weighted-average dumping margin of 9.61 percent for the mandatory respondent and
assigned the same margin to the separate rate respondents. Final Results, 82 Fed. Reg.
at 32,171.
In Changzhou Trina I, the court sustained in part and remanded in part
Commerce’s Final Results. 4 See Changzhou Trina I, 43 CIT at __, 359 F. Supp. 3d at
1344. The court determined that Commerce’s refusal to increase Trina’s U.S. selling
4
Specifically, in Changzhou Trina I, the court sustained Commerce’s selection of surrogate values
for aluminum frames, module glass, and financial ratios. Changzhou Trina I, 43 CIT at __, 359
F. Supp. 3d at 1334–37, 1344. The court also sustained Commerce’s decisions to include import
data with reported quantities of zero in the surrogate value calculations and to deny offsetting
respondent’s U.S. indirect selling expenses by the debt restructuring income reported by its U.S.
sales affiliate. Id. at __, 359 F. Supp. 3d at 1342–44.
Consol. Court No. 17-00199 Page 5
prices for the amount countervailed to offset the Ex-Im Bank Export Buyer’s Credit
Program was contrary to law. See id. at __, 359 F. Supp. 3d at 1337–42, 1344. The
court directed the agency to recalculate Trina’s U.S. selling price. See id. at __, 359 F.
Supp. 3d at 1342, 1344.
JURISDICTION AND STANDARD OF REVIEW
The Court has jurisdiction pursuant to section 516A(a)(2)(B)(iii) of the Tariff Act of
1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2012) 5 and 28 U.S.C. § 1581(c)
(2012). The court will uphold Commerce’s determination unless it is “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
In the Remand Results, Commerce, “under protest,” increased Trina’s U.S. selling
prices by the amount countervailed in the parallel CVD investigation for the Ex-Im Bank
Export Buyer’s Credit Program. See Remand Results at 1, 5. SolarWorld Americas, Inc.
(“SolarWorld”) argues that Commerce’s decision, on remand, to offset Trina’s U.S. selling
prices by the countervailed subsidy program is contrary to law and unsupported by
5
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.
Consol. Court No. 17-00199 Page 6
substantial evidence. See [SolarWorld’s] Comments [Remand Results] Pursuant Ct.
Order at 2–4, May 28, 2019, ECF No. 84 (“SolarWorld’s Comments”). Plaintiffs and
Defendant request the court to sustain the Remand Results. See [Pls.’] Comments
[Remand Results] at 2, May 28, 2019, ECF No. 83; Def.’s Resp. Comments [Remand
Results] at 3, June 27, 2019, ECF No. 87. For the reasons that follow, Commerce’s
decision to increase Trina’s U.S. selling prices to account for the CVD amount imposed
for the Ex-Im Bank Export Buyer’s Credit Program complies with the court’s remand order
and is in accordance with law.
To impose a CVD, Commerce must find that an exporter both benefited from a
subsidy and that the subsidy was specific. 19 U.S.C. § 1677(5). A “countervailable
subsidy” is a financial contribution, price support, or funding mechanism, provided by an
“authority,” that confers a benefit to its recipient. 19 U.S.C. § 1677(5)(B). A
countervailable subsidy must be specific, meaning it is an (i) import substitution subsidy,
(ii) export subsidy, or (iii) domestic subsidy that is specific, in law or fact, to an enterprise
or industry within the jurisdiction of the authority providing it. 19 U.S.C. § 1677(5)(A); 19
U.S.C. § 1677(5A)(A)–(D). An export subsidy is defined as “a subsidy that is, in law or in
fact, contingent upon export performance, alone or as 1 of 2 or more conditions.” 19
U.S.C. § 1677(5A)(B). Where goods are subject to both antidumping and countervailing
duties, “[t]he price used to establish export price and constructed export price shall be—
(1) increased by . . . (C) the amount of any countervailing duty imposed on the subject
merchandise under part I of this subtitle to offset an export subsidy[.]” 19 U.S.C. §
Consol. Court No. 17-00199 Page 7
1677a(c)(1)(C). In the final determination, Commerce refers to the export price and
constructed export price as the “U.S. selling price.” Final Decision Memo at 9.
Where Commerce has difficulty accessing and verifying the information it needs to
satisfy the statutory elements for imposing a CVD it may, subject to 19 U.S.C. § 1677m(d),
use facts otherwise available to reach its final determination. Specifically, Commerce may
use facts available when “necessary information is not available on the record,” a party
“withholds information that has been requested by [Commerce],” fails to provide the
information timely or in the manner requested, “significantly impedes a proceeding,” or
provides information Commerce is unable to verify. 19 U.S.C. § 1677e(a). Further, under
certain circumstances, such as a party’s failure to comply to the best of its ability with a
request for information, Commerce may “use an inference that is adverse to the interests
of that party in selecting from among the facts otherwise available.” 19 U.S.C. § 1677e(b).
This two-step process is generally referred to by the shorthand “adverse facts available”
or “AFA.”
However, and as explained in Changzhou Trina I, the AFA process does not
relieve Commerce of its obligation to affirmatively find that the elements of a statute have
been satisfied. See Changzhou Trina I, 43 CIT at __, 359 F. Supp. 3d 1338–41. To
impose a CVD, Commerce must find that an exporter benefited from a specific subsidy.
See 19 U.S.C. § 1671; 19 U.S.C. § 1677(5), (5A). That Commerce resorts to AFA in
determining an exporter benefited from a specific subsidy does not mean that Commerce
did not make the statutorily required findings.
Consol. Court No. 17-00199 Page 8
In the Remand Results, Commerce increased Trina’s U.S. selling prices by the
amount countervailed to offset the Ex-Im Bank Export Buyer’s Credit Program “under
protest[.]” See Remand Results at 1, 5. Commerce’s actions on remand comply with the
court’s order in Changzhou Trina I that Commerce recalculate Trina’s U.S. selling prices
to account for the amount countervailed. See Changzhou Trina I, 43 CIT at __, 359 F.
Supp. 3d at 1332, 1337–42, 1344. Commerce’s Remand Results are also in accordance
with law because it is reasonably discernible from Commerce’s description of the Ex-Im
Bank Export Buyer’s Credit Program in the parallel CVD investigation that Commerce
found that program to be an export subsidy because the benefits it provided were
contingent upon export. See CVD Investigation Final Decision Memo at 30 (finding that
through the Export Buyer’s Credit Program the “[Ex-Im Bank] provides loans at
preferential rates for the purchase of exported goods from the PRC”). Commerce did not
resort to facts available or adverse inferences when describing the Export Buyer’s Credit
Program. Rather, Commerce explicitly stated that it relied on AFA to determine that
respondents used the Export Buyer’s Credit Program, not that the program was specific.
See id. at 91–94. Further, Commerce’s descriptions of the Ex-Im Bank Export Buyer’s
Credit Program do not suggest that it considered the program to be anything other than
an export subsidy. See Changzhou Trina I, 43 CIT at __, 359 F. Supp. 3d at 1339. Given
that 19 U.S.C. § 1677a(c)(1)(C) uses the mandatory “shall” to direct Commerce’s actions
as to offsets when Commerce imposes a countervailing duty and here Commerce
imposed such a duty, the increase to Trina’s U.S. selling prices by the amount
countervailed to offset the export subsidy is in accordance with law.
Consol. Court No. 17-00199 Page 9
In making its determination under protest, Commerce argues that the CVD
investigation on solar products is not before the court and that determinations made in
distinct proceedings are based on segment-specific information and thus do not
necessarily inform determinations in other segments of the same proceedings. Remand
Results at 5 n.24 (citing e.g., Hyundai Steel Co. v. United States, 41 CIT __, __, 279 F.
Supp. 3d 1349, 1371–72 (2017)). Commerce’s protest is misplaced because the
statutory directive that Commerce “shall” increase the price underlying the export price or
constructed export price of the subject merchandise by the amount of any CVD imposed
on that merchandise to offset an export subsidy, 19 U.S.C. § 1677a(c)(1)(C), necessarily
requires it to look back at a CVD imposed in a countervailing duty proceeding separate
from the antidumping proceeding in which that CVD amount is being offset. In Changzhou
Trina I, the court explained that it was reasonably discernible from Commerce’s
descriptions of the export buyer’s credit program in relevant CVD proceedings that the
program was specific because the benefits it provided were contingent upon export.
Changzhou Trina I, 43 CIT at __, 359 F. Supp. 3d at 1337–42; see also CVD Investigation
Final Decision Memo at 30, 91–94. Such a finding is necessarily within the court’s scope
of review under 19 U.S.C. § 1516a(b)(1)(B)(i).
SolarWorld argues that Commerce’s high-level description of the subsidy program
as generally relating in some way to “exported goods” does not constitute a specific
determination that the program in question was contingent on export performance. See
SolarWorld’s Comments at 3–4. SolarWorld further argues Commerce lacked information
necessary to find the Ex-Im Bank Export Buyer’s Credit Program to be an export subsidy
Consol. Court No. 17-00199 Page 10
because the Government of China failed to provide relevant information during the CVD
investigation. See SolarWorld’s Comments at 3–4. In the CVD Investigation Final
Decision Memo, Commerce states “this program, the Export-Import Bank of China (Ex-
Im Bank) provides loans at preferential rates for the purchase of exported goods from the
PRC[,]” but then adds that “the Department was not able to verify the reported non-use”
of this program. See CVD Investigation Final Decision Memo at 30. Commerce implicitly
found the program was an export subsidy; no party challenged its characterization as an
export subsidy. The only challenge in the parallel investigation to Commerce’s
determination about the program was whether Commerce could, as it did, rely on an
adverse inference to select among the facts available to determine that respondents used
the Ex-Im Bank Export Buyer’s Credit Program. See CVD Investigation Final Decision
Memo at 30, 91–94. Commerce did not use AFA to conclude the Ex-Im Bank Export
Buyer’s Credit Program was contingent on export performance. 6
6
Commerce challenges Changzhou Trina I’s citation to and reliance on the results of a first
administrative review of a CVD order on crystalline silicon photovoltaic cells, whether or not
assembled into modules from the PRC. See Remand Results at 5 n.24; Changzhou Trina I, 43
CIT at __, 359 F. Supp. 3d at 1339 (citing Issues & Decision Mem. for the Final Results of the
[CVD] Admin. Review: Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into
Modules, from the [PRC] at 33, C-570-980, (July 7, 2015) available at
http://ia.ita.doc.gov/frn/summary/prc/2015-17241-1.pdf (last visited July 22, 2019) (“CVD
Review”)). The cited review does cover a different product; however, it also demonstrates
Commerce’s determination regarding the same program at issue here. In that review, Commerce
similarly relied on AFA to determine respondents’ use of the Ex-Im Bank Export Buyer’s Credit
Program, but not whether the program was specific because it was contingent on export
performance. CVD Review at 33 (“program is specific because it is contingent upon export
performance, within the meaning of section 771(5A)(A)–(B) of the [Tariff] Act [of 1930, as
amended, 19 U.S.C. § 1677(5A)(A)–(B)].”). Similarly, here, Commerce relied on AFA to
determine use and nowhere in its final determination or parallel CVD investigation does
Commerce indicate that this program is anything other than an export subsidy or that it resorted
to AFA to determine specificity.
Consol. Court No. 17-00199 Page 11
CONCLUSION
For the foregoing reasons, the Remand Results comply with the court’s order in
Changzhou Trina I and are in accordance with law, and are therefore sustained.
Judgment will be entered accordingly.
/s/ Claire R. Kelly
Claire R. Kelly, Judge
Dated: July 25, 2019
New York, New York