Changzhou Trina Solar Energy Co. v. United States

352 F.Supp.3d 1316

CHANGZHOU TRINA SOLAR ENERGY CO., LTD., and Trina Solar (Changzhou) Science & Technology Co., Ltd., Plaintiffs,

Canadian Solar Inc., Canadian Solar International, Ltd., Canadian Solar Manufacturing (Changshu), Inc., Canadian Solar Manufacturing (Luoyang), Inc., Canadian Solar (USA) Inc., CSI Cells Co., Ltd., CSI Solar Power (China) Inc., CSI Solartronics (Changshu) Co., Ltd., CSI Solar Technologies Inc., and CSI Solar Manufacture Inc., Plaintiff-Intervenors,

v.UNITED STATES, Defendant.

SolarWorld Americas, Inc., Changzhou Trina Solar Energy Co., Ltd., and Trina Solar (Changzhou) Science & Technology Co., Ltd., Defendant-Intervenors.

Slip Op. 18-166

Consol. Court No. 17-00198

United States Court of International Trade.

November 30, 2018

Robert Gosselink, and Jonathan Freed, Trade Pacific, PLLC, of Washington, D.C., for Plaintiffs and Defendants-Intervenors Changzhou Trina Solar Energy Co., Ltd. and Trina Solar (Changzhou) Science & Technology Co., Ltd.

Craig Lewis, Hogan Lovells US LLP, of Washington, D.C., for Consolidated Plaintiffs Shanghai BYD Co., Ltd. and BYD (Shangluo) Industrial Co., Ltd.

Jeffrey S. Grimson, Kristin H. Mowry, Jill A. Cramer, Sara M. Wyss, James C. Beaty, and Bryan P. Cenko, Mowry & Grimson, PLLC, of Washington, D.C., for Plaintiffs-Intervenors Canadian Solar Inc., Canadian Solar International, Ltd., Canadian Solar Manufacturing (Changshu), Inc., Canadian Solar Manufacturing (Luoyang), Inc., Canadian Solar (USA) Inc., CSI Cells Co., Ltd., CSI Solar Power (China) Inc., CSI Solartronics (Changshu) Co., Ltd., CSI Solar Technologies Inc., and CSI Solar Manufacture Inc.

Chad A. Readler, Jeanne E. Davidson, Tara K. Hogan, and Justin R. Miller, International Trade Field Office, U.S. Department of Justice, of New York, NY. Of counsel on the brief was Paul Keith, Office of Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, D.C.

Timothy Brightbill, Laura El-Sabaawi, and Usha Neelakantan, Wiley Rein, LLP, of Washington, D.C., for Defendant-Intervenor SolarWorld Americas, Inc.

OPINION AND ORDER

Restani, Judge:

In this action challenging a final determination issued by the United States Department of Commerce ("Commerce") in Commerce's Third Administrative Review of the countervailing duty order on crystalline silicon photovoltaic cells, whether or not assembled into modules ("solar cells") from the People's Republic of China ("PRC"), covering the period from January 1, 2014, through December 31, 2014. 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 Partial Rescission of Countervailing Duty Administrative Review; 2014, 82 Fed. Reg. 32,678 (Dep't Commerce July 17, 2017) ("Final Results"), amended by 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 Partial Rescission of Countervailing Duty Administrative Review; 2014, 82 Fed. Reg. 46,760 (Dep't Commerce Oct. 6, 2017) ("Amended Final Results"), Changzhou Trina Solar Energy Co., Ltd., Trina Solar (Changzhou) Science & Technology Co., Ltd. (collectively, "Trina"), Consolidated Plaintiffs BYD (Shangluo) Industrial Co., Ltd. ("Shangluo BYD") and Shanghai BYD Co., Ltd. ("Shanghai BYD") (collectively, "BYD"); and Canadian Solar Inc., Canadian Solar International, Ltd., Canadian Solar Manufacturing (Changshu), Inc., Canadian Solar Manufacturing (Luoyang), Inc., Canadian Solar (USA) Inc., CSI Cells Co., Ltd., CSI Solar Power (China) Inc., CSI Solartronics (Changshu) Co., Ltd., CSI Solar Technologies Inc., and CSI Solar Manufacture Inc. (collectively, "Canadian Solar") request the court hold aspects of Commerce's final determination to be unsupported by substantial evidence or otherwise not in accordance with law.

The United States ("Defendant") asks that the court sustain Commerce's Final Results of its third administrative review. SolarWorld Americas, Inc. ("SolarWorld") requests the court to uphold other portions of Commerce's Final Results as supported by substantial evidence and otherwise consistent with law and asserts that other portions are not.

BACKGROUND

Commerce first published a countervailing duty order on solar cells from the People's Republic of China ("PRC") on December 7, 2012. See Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the People's Republic of China: Countervailing Duty Order, 77 Fed. Reg. 73,017 (Dep't Commerce Dec. 7, 2012). In 2016, Commerce initiated its third administrative review of this countervailing duty, covering the period from January 1, 2014 to December 31, 2014. Canadian Solar and Trina were selected as mandatory respondents ("Respondents") and issued questionnaires along with the Government of the PRC ("GOC"). See Decision Memorandum for Final Results and Partial Rescission of Countervailing Duty Administrative Review: Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, from the People's Republic of China; 2014, 1 (Dep't Commerce July 10, 2017) ("I & D Memo"). On January 9, 2017, Commerce published its preliminary results of the administrative review. Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the People's Republic of China, 82 Fed. Reg. 2,317 (Dep't Commerce Jan. 9, 2017) (Prelim. Results) and accompanying issues and decision memorandum (Prelim. I & D Memo ). After receiving submissions from interested parties, Commerce issued its Final Results on July 17, 2017, later amended on October 6, 2017. 82 Fed. Reg. 32,678¹ ; Amended Final Results, 82 Fed. Reg. 46,760. The Amended Final Results calculated a subsidy rate of 18.16 ad valorem for Canadian Solar, 17.14 percent ad valorem for Trina, and 17.49 ad valorem for non-selected companies under review. 82 Fed. Reg. at 46,761. Plaintiff and Plaintiff-Intervenors challenge several aspects of the Final Results, as amended.²

JURISDICTION AND STANDARD OF REVIEW

The court has jurisdiction pursuant to 28 U.S.C. § 1581(c) and 19 U.S.C. § 1516a(a)(2) (2012). Commerce's results in a countervailing duty proceeding are upheld unless "unsupported by substantial evidence on the record, or otherwise not in accordance with law[.]" 19 U.S.C. § 1516a(b)(1)(B)(i).

DISCUSSION

Because the parties present a variety of fact-specific claims, the following opinion addresses the factual background for each in turn. Each section notes which parties are bringing a given claim.

I. Export Buyer's Credit Program

a. Commerce's decision to apply adverse facts available to cooperating parties

i. Background

In the course of the third administrative review, Commerce requested information about the Exports Buyer's Credit Program ("EBCP’) from the GOC. Canadian Solar, and Trina. See Prelim I & D at 2–3.³ The latter two submitted affiliate and customer certifications of non-use applicable to the period of review stating that U.S.-based customers had not benefitted from the EBCP. See Trina Section III Questionnaire Response at 75, P.D. 81–98 (May 3, 2016); Trina Benchmark Submission (BPI Version) at Ex. 10., C.D. 105–107 (Nov. 30, 2016); Canadian Solar Section III Questionnaire Response at Vol. II, Ex. 20, P.D. 116–22, C.D. 31–37 (June 10, 2016). The GOC, however, refused to provide information on potential third-party bank involvement in the EBCP,⁴ arguing that such information was irrelevant to Commerce's determination regarding whether the program had been used by the relevant parties. I & D Memo at 13.

Unlike in the second administrative review,⁵ in which Commerce declined to apply an adverse inference with regard to facts otherwise available ("AFA") against otherwise cooperating respondents based on the GOC's refusal to provide requested EBCP information, Commerce here concluded that the intervening 2013 revisions⁶ to the EBCP made Respondents' certifications of non-use insufficient to establish non-use. See I & D Memo at 13; Prelim. I & D Memo at 30–31. The 2013 change to the program allowed for the involvement of third party banks in the EBCP and Commerce reasoned that, given the GOC's refusal to answer questions regarding whether and how these banks extended credit, it was impossible to verify Respondents' certifications of non-use. See I & D Memo at 13. Commerce found that "[a]bsent the requested information, the GOC's claims that the respondent companies did not use this program [were] not reliable" and therefore applied AFA to all parties in calculating the amount of subsidization based on the EBCP. Id.

Trina and Canadian Solar argue that Commerce disregarded record evidence showing that they did not receive support from the EBCP. Trina Compl. at ¶ 10; Trina Br. at 7–9; Canadian Solar Br. at 8–14. Canadian Solar further argued that it was improper to use AFA against a cooperating party and that Commerce's decision is arbitrary as it contradicts Commerce's previous rulings in similar situations. Canadian Solar Br. at 9, 12–13. Trina disputes Commerce's assertion that the non-use of third party banks was unverifiable and contends that Commerce could have requested further documentation on Trina's loans in order to verify non-use. Trina Br. at 14; Reply Brief of Plaintiffs Changzhou Trina Solar Energy Co., and Trina Solar (Changzhou) Science and Technology Co., Doc No. 79 ("Trina Reply Br.") at 11–13 (Sept. 21, 2018). Canadian Solar argues that the affidavits of non-use were sufficient and no other documentation was necessary. Canadian Solar Br. at 10–12. Defendant claims that Commerce was correct in finding that respondents used the EBCP based on an adverse inference given the GOC's failure to cooperate fully, and that Commerce was under no obligation to attempt to verify Canadian Solar or Trina's submissions. Def. Br. at 10–20.

ii. Discussion

When an interested party "withholds information that...