Canadian Solar Int'l Ltd. v. United States

532 F.Supp.3d 1273

CANADIAN SOLAR INTERNATIONAL LIMITED et al., Plaintiffs and Consolidated Plaintiffs,andShanghai BYD Co., Ltd. et al., Plaintiff-Intervenors and Consolidated Plaintiff-Intervenors,

v. UNITED STATES, Defendant,andSolarworld Americas, Inc. et al., Defendant-Intervenor and Consolidated Defendant-Intervenors.

Slip Op. 21-92

Consol. Court No. 17-00173

United States Court of International Trade.

July 28, 2021

Craig A. Lewis, Jonathan T. Stoel, and Lindsay K. Brown, Hogan Lovells US LLP, of Washington, D.C., for plaintiffs and consolidated plaintiffs, Canadian Solar International Limited; Canadian Solar Manufacturing (Changshu), Inc.; Canadian Solar Manufacturing (Luoyang), Inc.; CSI Solar Power (China) Inc.; CSI-GCL Solar Manufacturing (YanCheng) Co., Ltd.; CSI Cells Co., Ltd.; Canadian Solar (USA), Inc.; and plaintiff-intervenor and consolidated plaintiff-intervenor Shanghai BYD Co., Ltd.

Tara K. Hogan, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., for defendant. With her on the brief were Brian M. Boynton, Acting Assistant Attorney General, and Jeanne E. Davidson, Director. Of counsel on the brief was Brendan S. Saslow, Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, D.C.

OPINION AND ORDER

Kelly, Judge:

Before the court is the U.S. Department of Commerce's ("Commerce") third remand redetermination filed pursuant to the court's order in Canadian Solar Int'l Ltd. v. United States, 44 CIT ––––, 471 F. Supp. 3d 1379 (Sept. 14, 2020) (" Canadian Solar IV"). See Final Results of Redetermination Pursuant to Ct.’s Remand in [ Canadian Solar IV ], Jan. 13, 2021, ECF No. 180-1 ("Third Remand Results"). In Canadian Solar IV, the court remanded Commerce's decision to use Thai import data published by the Global Trade Atlas ("Thai import data") to construct a surrogate value for Canadian Solar's¹ nitrogen input in Commerce's third administrative review of the antidumping duty ("ADD") order covering crystalline silicon photovoltaic cells, whether or not assembled into modules ("solar cells"), from the People's Republic of China ("PRC") covering the period December 1, 2014 through November 30, 2015 ("AR3"). See Canadian Solar IV, 44 CIT at ––––, 471 F. Supp. 3d at 1383–84 ; see also Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, from the [PRC], 82 Fed. Reg. 29,033 (Dep't Commerce June 27, 2017) (final results of [ADD] administrative review and final determination of no shipments; 2014-15) ("Final Results") and accompanying Issues and Decision Memo., A-570-979 (June 20, 2017), ECF No. 44-5 ("Final Decision Memo").

On June 24, 2020, the Court of Appeals for the Federal Circuit ("Court of Appeals") decided SolarWorld Americas, Inc. v. United States, 962 F.3d 1351 (Fed. Cir. 2020) (" SolarWorld"). In SolarWorld, the Court of Appeals held that Commerce failed to adequately justify its use of Thai import data to value Trina Solar Energy Co., Ltd.’s ("Trina") nitrogen input in Commerce's previous administrative review of the same ADD order and vacated in part this court's judgment sustaining Commerce's final determination. See id. at 1356–59.

In Canadian Solar IV, the court reconsidered its decision in Canadian Solar Int'l Ltd. v. United States, 44 CIT ––––, 448 F. Supp. 3d 1333 (June 15, 2020) (" Canadian Solar III") to sustain Commerce's Redetermination Pursuant to Ct.’s Second Remand Order in [ Canadian Solar III ], Feb. 11, 2020, ECF No. 147-1 ("Second Remand Results"), vacated the court's Judgment sustaining the Second Remand Results, and ordered Commerce to "either adequately explain why the Thai [Global Trade Atlas] data is not aberrational or adopt an alternative surrogate value for [Canadian Solar's] nitrogen input" in accordance with the Court of Appeals’ decision in SolarWorld. See Canadian Solar IV, 44 CIT at ––––, 471 F Supp. 3d at 1383 (internal quotation marks omitted).

In its Third Remand Results, Commerce continues to value Canadian Solar's nitrogen input using Thai import data, explaining that the use of Thai import data is not aberrational. See Third Remand Results at 2. Canadian Solar and plaintiff-intervenor Shanghai BYD Co., Ltd. ("Shanghai BYD") (collectively with Canadian Solar, "Plaintiff") object to the Third Remand Results. See Comments of [Plaintiff] in Opposition to the Final Results of Redetermination Pursuant to C. Remand, February 24, 2021, ECF No. 184 ("Pl.’s Br."). Defendant United States argues that Commerce complies with the court's remand order by sufficiently explaining why the Thai import data is reliable and not aberrational. See Defendant's Response to Comments on the Remand Determination, March 26, 2021, ECF No. 185 ("Def.’s Br."). For the following reasons, the court remands Commerce's decision to continue using Thai import data to value Canadian Solar's nitrogen input.

BACKGROUND

The court presumes familiarity with the facts of this case as set out in its previous opinions ordering remand to Commerce, and now recounts only those facts relevant to the court's review of the Third Remand Results. See Canadian Solar IV, 44 CIT at ––––, 471 F. Supp. 3d at 1381–82 ; see also Canadian Solar Int'l Ltd. v. United States, 43 CIT ––––, ––––, 378 F. Supp. 3d 1292, 1310–13 (Apr. 16, 2019) (" Canadian Solar I"); Canadian Solar Int'l Ltd. v. United States, 43 CIT ––––, 415 F. Supp. 3d 1326, 1328–31 (Dec. 3, 2019) (" Canadian Solar II"); Canadian Solar III, 44 CIT at ––––, 448 F. Supp. 3d at 1335–39.

Canadian Solar previously challenged the Final Results on the grounds that, inter alia, Commerce's decision to use Thai import data to value Canadian Solar's nitrogen input was unsupported by substantial evidence because the data was aberrational and unreliable. See Canadian Solar I, 43 CIT at ––––, ––––, 378 F. Supp. 3d at 1310. The court disagreed, sustaining Commerce's use of the Thai import data, but remanded the Final Results on other grounds. Id. at ––––, 378 F. Supp. 3d at 1325.

In Canadian Solar II, the court sustained Commerce's surrogate value methodology, but remanded for a second time on other unrelated grounds. See Canadian Solar II, 43 CIT at ––––, 415 F. Supp. 3d at 1334–35. Commerce issued its Second Remand Results, which the court then sustained and entered judgment accordingly. See Canadian Solar III, 44 CIT at ––––, 448 F. Supp. 3d at 1339–40.

However, on June 24, 2020, the Court of Appeals decided SolarWorld, holding that Commerce failed to adequately justify its use of Thai import data to value Trina's nitrogen input in Commerce's previous administrative review of the same ADD order at issue in this action, and vacated in part this court's judgment sustaining Commerce's final determination. See SolarWorld, 962 F.3d at 1356–59. In particular the Court of Appeals stated that relying on Thai data was "illogical" in light of the fact that the average price of imports into Bulgaria and Romania, which accounted for over 99% of the imports in the period of review, was significantly lower than imports into Thailand, and that Commerce appeared to deviate from past practice of disregarding small quantity import data where the per unit value were substantially different from large quantity data. Id. at 1357–58. Further, it concluded Commerce "failed to explain how the Thai data can be reconciled with data from the United States International Trade Commission's ("ITC") Data website." Id. at 1358.

In Canadian Solar IV, this court held that the Court of Appeals’ decision in SolarWorld, which instructed Commerce to "either adequately explain why the Thai [Global Trade Atlas] data is not aberrational" or "adopt an alternative surrogate value for [Trina's] nitrogen input," constituted an intervening change in controlling law that relates to whether Commerce's determination to rely on Thai import data to value Canadian Solar's nitrogen input was supported by substantial evidence. See Canadian Solar IV, 44 CIT ––––, 471 F. Supp. 3d at 1382–83.

On remand Commerce continues to use Thai import data to value Canadian Solar's nitrogen input. See Third Remand Results at 2. Defendant argues that Commerce provides a sufficient explanation of its choice of Thai data in compliance with SolarWorld and asks the court to sustain the Third Remand Results. See Def.’s Br. at 1–2. Plaintiff, on the other hand, asserts that Commerce's choice of Thai data is unreasonable in this case because the surrogate value is aberrational and Commerce's explanations for the difference between Thailand's import price versus the prices of the vast majority of imports which Commerce reviewed are speculative and unsupported by record evidence. See Pl.’s Br. at 1–2.

JURISDICTION AND STANDARD OF REVIEW

This court has jurisdiction pursuant to section 516A of the Tarriff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2012)² and 28 U.S.C. § 1581(c) (2012), which grant the court authority to review actions contesting the final determination in an administrative review of an antidumping order. 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

Defendant argues that Commerce sufficiently explains its reliance on Thai import data to value Canadian Solar's nitrogen input and asserts that Commerce's reliance is reasonable, in accordance with its established practice, and should be sustained. See Def.’s Br. at 8–24. Plaintiff asks the court to reject Commerce's use of Thai...