Canadian Solar Inc. v. United States

Slip Op. 22-49

CANADIAN SOLAR INC., ET AL., Plaintiffs, CHANGZHOU TRINA SOLAR ENERGY CO., LTD. ET AL., Consolidated Plaintiffs, JINKO SOLAR CO., LTD. ET AL., Intervenor Plaintiffs, v. UNITED STATES, Defendant.

No. 19-00178

Court of Appeals of International Trade

May 19, 2022

[Commerce's Remand Results in the Fifth Administrative Review of Commerce's Countervailing Duty Order on crystalline silicon photovoltaic cells from the People's Republic of China are sustained.]

Bryan P. Cenko and Sarah Wyss, Mowry & Grimson, PLLC, of Washington D.C., for Plaintiffs. With them on the brief was Jeffrey S. Grimson.

Robert G. Gosselink, Jonathan M. Freed, and Kenneth N. Hammer, Trade Pacific, PLLC, of Washington, D.C., for Consolidated Plaintiffs.

Jordan C. Kahn, Grunfeld Desiderio Lebowitz Silverman &amp Klestadt, LLP, of Washington, D.C., for Intervenor Plaintiffs Jinko Solar Co., Ltd., Jinko Solar Import & Export Co Ltd., Zhejang Jinko Solar Co., Ltd. With him on the brief were Andrew T. Schutz and Kavita Mohan.

Richard L.A. Weiner, Rajib Pal, Shawn M. Higgins, and Justin R. Becker, Sidley Austin, LLP, of Washington, D.C., for Intervenor Plaintiffs Yingli Green Energy Holding 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., Shenzhen Yingli New Energy Resources Co., Ltd., Yingli Green Energy International Trading Co., Ltd., Yingli Green Energy Americas, Inc., Yingli Energy (China) Co., Ltd. Craig A. Lewis, Hogan Lovells U.S. LLP, of Washington D.C., for Intervenor Plaintiff Shanghai BYD Co., Ltd.

Justin R. Miller, International Trade Field Office, U.S. Department of Justice, of New York, NY, for the Defendant. With him on the brief was Tara K. Hogan, Assistant Director. Of counsel on the brief was Paul K. Keith, Office of Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, D.C.

Before: Jane A. Restani, Judge

OPINION

Jane A. Restani Judge

This action concerns the remand redetermination made by the United States Department of Commerce ("Commerce") in the Fifth Administrative Review of the countervailing duty order on crystalline silicon photovoltaic cells, whether or not assembled into modules, from the People's Republic of China ("PRC"), covering the period from January 1, 2016 to December 31, 2016. See Final Results of Redetermination Pursuant to Court Order, ECF No. 130 (Dec. 13, 2021) ("Remand Results").

Plaintiffs Canadian Solar Inc., Canadian Solar International, Ltd., Canadian Solar Manufacturing (Luoyang) Inc., Canadian Solar Manufacturing (Changshu) Inc., Canadian Solar (USA) Inc., CSI Cells Co., Ltd., CSI Solar Power (China) Inc., CSI Solar Power Group Co. Ltd., CSI Solartronics (Changshu) Co., Ltd., CSI Solar Technologies Inc., CSI New Energy Holding Co., Ltd., CSI-GCL Solar Manufacturing (YanCheng) Co., Ltd., Changshu Tegu New Materials Technology Co., Ltd., Changshu Tlian Co., Ltd., Suzhou Sanysolar Materials Technology Co., Ltd. (collectively, "Canadian Solar"), Intervenor Plaintiffs Jinko Solar Co., Ltd., Jinko Solar Import & Export Co., Ltd., Zhejang Jinko Solar Co., Ltd. (collectively, "Jinko"), and Intervenor

Plaintiff Shanghai BYD Co., Ltd. (together, "Plaintiffs") challenge part of Commerce's Remand Results as unsupported by substantial evidence or otherwise not in accordance with law. See Objections to Remand Results of Plaintiffs Canadian Solar, ECF No. 132 (Jan. 12, 2022) ("Canadian Solar Br."); Plaintiff-Intervenor Shanghai BYD Co.'s Objections to Remand Results, ECF No. 134 (Jan. 12, 2022) ("Shanghai BYD Br."); Jinko Comments on Remand, ECF No. 131 (Jan. 12, 2022) ("Jinko Br.")

BACKGROUND

The court presumes familiarity with the facts of this case and recounts them only as necessary. Commerce published its final determination in the Fifth Administrative Review of the countervailing duty order on crystalline silicon photovoltaic cells, whether or not assembled into modules from the PRC on August 28, 2019. See Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the People's Republic of China: Final Results of Countervailing Duty Administrative Review and Recession of Review in Part; 2016, 84 Fed.Reg. 45, 125 (Dep't Commerce Aug. 28, 2019) ("Final Results"), as amended by Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the People's Republic of China: Amended Final Results of Countervailing Duty Administrative Review; 2016, 84 Fed.Reg. 68, 102 (Dep't Commerce Dec. 13, 2019) ("Amended Final Results"); see also Decision Memorandum for Final Results of Countervailing Duty Administrative Review: Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, from the People's Republic of China, C-570-980, POR: 01/01/2016-12/31/2016 (Dep't Commerce Aug. 19, 2019) ("I&D Memo").

In Canadian Solar, Inc. v. United States, the court sustained in part and remanded in part aspects of the Amended Final Results. 46 CIT, 537 F.Supp.3d 1380 (2021) ("Canadian Solar"). The court granted Commerce's request for remand on three issues: 1) Commerce's calculation of the benchmark for aluminum extrusions, 2) Commerce's determination of the benchmark for solar grade polysilicon, and 3) Commerce's use of adverse facts available ("AFA") in its specificity finding for the provision of electricity for less than adequate renumeration ("LTAR"). Id. at 1386-87. The court noted that the administrative records of the Third, Fourth, and Fifth Administrative Reviews and the Government's legal rationales are similar and instructed Commerce to consult prior opinions in these reviews in reevaluating its decisions. Id. The court also remanded for Commerce to reconsider its determination not to grant an entered value adjustment ("EVA") and its determination regarding the Export Buyer's Credit Program ("EBCP"). Id. at 1399, 1403.

JURISDICTION & STANDARD OF REVIEW

The court has jurisdiction pursuant to 28 U.S.C. § 1581(c) (2021) and 19 U.S.C. § 1516a(a)(2)(B)(iii) (2021). The court will uphold Commerce's determination unless it is "unsupported by substantial evidence on the record, or otherwise not in accordance with law[.]" Id. § 1516a(b)(1)(B)(i). Remand redeterminations are "also reviewed for compliance with the court's remand order." Xingjiamei Furniture (Zhangzhou) Co., v. United States, 38 CIT___, 968 F.Supp.2d 1255, 1259 (2014) (internal citation omitted).

DISCUSSION

I. Electricity Subsidy

In its original determination, Commerce found that the provision of electricity was a specific subsidy after applying AFA. I&D Memo at 50-53. As with other issues, the Government requested remand to reconsider its subsidy determination in the light of the Third and Fourth Administrative reviews. See Canadian Solar, 46 CIT at, 537 F.Supp.3d at 1386- 87. On remand, Commerce found the provision of electricity for LTAR to be regionally specific consistent with its remand redeterminations in the Third and Fourth Administrative Reviews. See Remand Results at 20; Canadian Solar Inc., v. United States, 2020 WL 6129754 at *4 (2020) ("Canadian Solar II"), aff'd 23 F.4th 1372, 1378 (Fed. Cir. 2022) ("Canadian Solar CAFC"); Changzhou Trina Solar Energy Co. v. United States, 44 CIT, 466 F.Supp.3d 1287, 1299- 1300 (2020) ("Changzhou Trina III"). Canadian Solar challenges this finding, arguing that (1) Commerce is required, per 19 U.S.C. § 1677(5A)(D)(iv), to identify a geographical region that received subsidized electricity prices and failed to do so; (2) Commerce's reliance on AFA was not supported by substantial evidence because no gap existed in the record; (3) Commerce's benchmark construction demonstrated that it failed to designate a subsidized geographical region; (4) Commerce should have designated a geographical region based on the information in the record; and (5) Commerce's benchmark construction was arbitrary and capricious because it "nonsensically treat[ed] a single factory as located in multiple locations." See generally Canadian Solar Br.; see also Jinko Br. at 3, Shanghai BYD Br. at 4-5. Commerce's electricity subsidy remand redetermination is supported by substantial evidence and is sustained.

Canadian Solar argues that Commerce's reliance on AFA was not supported by substantial evidence because no gap on the record existed to warrant the application of adverse facts. Canadian Solar Br. at 13-19. Canadian Solar acknowledges that the court has previously rejected this argument on "nearly identical facts" in the Third Administrative Review. Canadian Solar Br. at 19. So too did this court and the Federal Circuit reject this argument in the Fourth Administrative Review. Canadian Solar CAFC, 23 F.4th at 1378 (explaining that "[t]his court has specifically upheld the application of adverse facts available where 'the government of China refused to provide information as to how the electricity process and costs varied among the various provinces that supplied electricity to industries within their areas,' 'did not provide the data sufficient to establish the benchmark price for electricity' and noting that there were 'comparable informational gaps in this case'") (internal citations omitted).

Commerce's analysis and the record here is largely the same as in prior reviews. The GOC claimed in this review that provincial pricing authorities, not the NDRC, set electricity prices in the provinces in accordance with market principles since 2015. See GOC Initial Questionnaire Response, P.R 73-76, at 68-69 (June 19, 2018) ...