Changzhou Trina Solar Energy Co. v. United States

492 F.Supp.3d 1322

CHANGZHOU TRINA SOLAR ENERGY CO., LTD. et al., Plaintiffs and Consolidated Plaintiffs,andJA Solar Technology Yangzhou Co., Ltd. et al., Plaintiff-Intervenors,

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

Slip Op. 21-2

Consol. Court No. 18-00176

United States Court of International Trade.

January 4, 2021

Robert G. Gosselink and Jonathan M. Freed, Trade Pacific, PLLC, of Washington, DC, for plaintiff.

Jeffrey S. Grimson, Sarah M. Wyss, and Bryan P. Cenko, Mowry & Grimson, PLLC, of Washington, DC, for consolidated plaintiffs and plaintiff-intervenors JA Solar Technology Yangzhou Co., Ltd., Shanghai JA Solar Technology Co., Ltd. and JingAo Solar Co., Ltd.

Timothy C. Brightbill, Laura El-Sabaawi, and Usha Neelakantan, Wiley Rein, LLP, of Washington, DC, for consolidated plaintiff and defendant-intervenor SolarWorld Americas, Inc.

Tara K. Hogan, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for defendant. Also on the brief was Jeffrey Bossert Clark, Acting Assistant Attorney General, and Jeanne E. Davidson, Director. Of Counsel on the brief was Ian McInerney, Office of Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, DC.

OPINION AND ORDER

Kelly, Judge:

Before the court for review 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, 44 CIT ––––, –––– – ––––, 450 F. Supp. 3d 1301, 1317–18 (2020) (" Changzhou I"). See Final Results of Remand Redetermination, Aug. 7, 2020, ECF No. 91-1 ("Remand Results"). In Changzhou I, the court remanded Commerce's decision to value international freight expenses using Maersk Line ("Maersk") rate quotes. See Changzhou I, 44 CIT at ––––, 450 F. Supp. 3d at 1312–13. Moreover, the court remanded Commerce's refusal to increase Changzhou Trina Solar Energy Co., Ltd. et al.’s¹ ("Trina") export price (or constructed export price) ("U.S. Price") by the amount of the countervailing duty ("CVD") imposed to offset the benefit conferred to manufacturers and exporters of the subject merchandise by the Export Import Bank of China's ("Ex-Im Bank") Export Buyer's Credit Program ("Credit Program") in the concurrent administrative review of the companion CVD Order ("companion CVD review"). See id. at 1307–12.

On remand, Commerce continues to rely on Maersk data to value Trina's international freight expenses. See Remand Results at 4–17. Under respectful protest,² Commerce applies the statutory adjustment to Trina's U.S. Price. See Remand Results at 17–19. For the following reasons, Commerce's redetermination is remanded in part and sustained in part.

BACKGROUND

The court presumes familiarity with the facts of this case, as set out in the previous opinion ordering remand to Commerce, and now recounts the facts relevant to the court's review of the Remand Results. See Changzhou I, 44 CIT at –––– – ––––, 450 F. Supp. 3d at 1304–07. On July 27, 2018, Commerce published its final determination in the fourth administrative review of the antidumping duty ("ADD") order covering crystalline silicon photovoltaic cells, whether or not assembled into modules ("solar cells" or "solar panels"), from the People's Republic of China ("PRC" or "China"). See Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the [PRC], 83 Fed. Reg. 35,616 (Dep't Commerce July 27, 2018) (final results of [ADD] admin. review and final determination of no shipments; 2015–2016) ("Final Results") and accompanying Issues and Decisions Memo. for the [Final Results ], A-570-979, (July 11, 2018), ECF No. 36-5 ("Final Decision Memo").

Given that Commerce considers the PRC to be a nonmarket economy ("NME"), when calculating Trina's dumping margin, Commerce determined the normal value of Trina's entries of subject merchandise by using data from a surrogate market economy country ("surrogate country") at a comparable level of economic development to value the factors utilized to produce the subject merchandise ("factors of production" or "FOPs"). See Section 773(c)(4) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1677b(c)(4) (2018).³ Commerce chose Thailand as the primary surrogate country. See SolarWorld Case Br. at 15, Feb. 28, 2018, PD 394, bar code 3678213-01.⁴ Commerce compared the normal value of the subject merchandise to Trina's U.S. Price, and its final determination yielded a weighted average dumping margin of 15.85 percent for Trina. See Final Results, 83 Fed. Reg. at 35,618.

Trina, as well as JA Solar Technology Yangzhou Co., Ltd., Shanghai JA Solar Technology Co., Ltd. and JingAo Solar Co., Ltd. (collectively, "JA Solar"), and SolarWorld Americas, Inc. ("SolarWorld") appealed to this court and challenged various aspects of Commerce's final determination. See Pl. [Trina's] 56.2 Mot. J. Agency R., Feb. 15, 2019, ECF No. 41-1 ("Trina's Moving Br."); Consol. Pls.’ & Pl.-Intervenors’ 56.2 Mot. J. Agency R., Feb. 15, 2019, ECF No. 43-1 ("JA Solar's Moving Br."); Def.-Intervenor and Consol. Def.-Intervenors’ [SolarWorld's] 56.2 Mot. J. Agency. R., Feb. 15, 2019, ECF No. 44-2 ("SolarWorld's Moving Br."). Trina and JA Solar challenged Commerce's refusal to increase Trina's U.S. Price to account for the 5.46 percent ad valorem CVD rate it imposed, based on facts available with an adverse inference ("adverse facts available" or "AFA"),⁵ on the subject merchandise in the companion CVD review. See Trina's Moving Br. at 4–9; JA Solar's Moving Br. at 5–6; Final Decision Memo at 17–20; Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the [PRC], 82 Fed. Reg. 32,678 (Dep't Commerce July 17, 2017) (final results of [CVD] admin. review, and partial rescission of [CVD] admin. review; 2014) ("3rd CVD AR") and accompanying Issues and Decisions Memo. for [3rd CVD AR] at Cmts. 1–2, C-570-980, (July 10, 2017), available at https://enforcement.trade.gov/frn/summary/prc/2017-14957-1.pdf (last visited Dec. 28, 2020) ("3rd CVD AR IDM").

With respect to its calculation of normal value, Trina and JA Solar challenged Commerce's decision to use Maersk data to value Trina's international freight expenses and refusal to exclude Thai import data with zero quantities when calculating surrogate values. See Trina's Moving Br. at 10–21; JA Solar's Moving Br. at 5–6. SolarWorld challenged Commerce's selection of unconsolidated financial statements from KCE Electronics Public Company Limited ("KCE") to derive surrogate financial ratios and Commerce's decision to value Trina's nitrogen input using Mexican import data. See SolarWorld's Moving Br. at 7–18.

On May 13, 2020, the court issued Changzhou I, where it sustained in part Commerce's final determination. See Changzhou I, 44 CIT at –––– – ––––, 450 F. Supp. 3d at 1301–18. Namely, the court sustained: Commerce's inclusion of zero quantity Thai import data when calculating surrogate values; Commerce's selection of KCE's statements to derive surrogate financial ratios; and Commerce's decision to use Mexican import data to value Trina's nitrogen inputs when determining the normal value of Trina's entries of subject merchandise. See id. at 1313–17.

However the court remanded for further explanation or reconsideration, Commerce's refusal to increase Trina's U.S. Price to account for the AFA CVD rate imposed to offset the benefit conferred to producers and manufacturers of the subject merchandise by the Credit Program in 3^rd CVD AR. See Changzhou I, 44 CIT at –––– – ––––, ––––, 450 F. Supp. 3d at 1307–13, 1317. The court held that Commerce did not support its finding that the Credit Program was never determined to be an export subsidy in 3^rd CVD AR solely on the fact that its decision to countervail the Credit Program there was based on AFA, because AFA still requires a record-based determination. See id. at 1308–09. Moreover, the court noted that descriptions of the Credit Program in 3^rd CVD AR demonstrated that Commerce found the program to be export contingent. See id. at 1310. With respect to Commerce's selection of Maersk data to value Trina's international freight expenses, the court noted that Commerce's justifications for relying on the Maersk data were based on the mistaken observation that data from Xeneta AS ("Xeneta")—a source for freight rates Commerce weighed the Maersk data against—included handling charges. See id. at 1312–13.

On August 7, 2020, Commerce issued its remand redetermination. See generally Remand Results. Although Commerce conceded the Xeneta data was submitted without handling charges, Commerce continued to rely on the Maersk data to value international freight rates. See Remand Results at 4–17. Under respectful protest, Commerce applied the statutory adjustment to Trina's U.S. Price to account for the AFA CVD rate imposed in the companion CVD review. See Remand Results at 17–19.

JURISDICTION AND STANDARD OF REVIEW

The court has jurisdiction pursuant to 19 U.S.C. § 1516a(a)(2)(B)(iii) and 28 U.S.C. § 1581(c) (2018), which grant the Court authority to review actions contesting the final determination in an administrative review of an ADD 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).

DISCUSSION

I. International Freight Expenses

Although Commerce now concedes that both data sets properly exclude brokerage and handling expenses,⁶ Commerce maintains that the Maersk data is more specific to Trina's experience than the Xeneta data because it reflects the type of product and shipping container that Trina used. See Remand Results at 4–8. Trina contends that the record continues to contradict Commerce's conclusion. See Remand Results at 8–11. Commerce's determination is remanded for further consideration.

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