Changzhou Trina Solar Energy Co. v. United States, Slip Op. 19-92

393 F.Supp.3d 1245

CHANGZHOU TRINA SOLAR ENERGY CO., LTD. et al., Plaintiffs and Consolidated Plaintiff,

v. UNITED STATES, Defendant,andSolarWorld Americas, Inc. and Changzhou Trina Solar Energy Co., Ltd., Defendant-Intervenors and Consolidated Defendant-Intervenor.

Slip Op. 19-92

Consol. Court No. 17-00199

United States Court of International Trade.

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.

OPINION

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).

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 respondents³ to countervail the Ex-Im 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 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 C.I.T. 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 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. § 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...