537 F.Supp.3d 1380
Ct. Int'l Trade2021Background
- This case challenges Commerce’s Amended Final Results in the 5th administrative review of countervailing duties on crystalline silicon photovoltaic cells from the PRC for the 2016 POR.
- Commerce selected Canadian Solar and Jinko as mandatory respondents and set subsidy rates (Canadian Solar 9.7%; Jinko 12.7%).
- Plaintiffs (Canadian Solar, Changzhou Trina, Jinko, Yingli, Shanghai BYD, others) raised multiple challenges: LTAR specificity for aluminum extrusions, land-use benchmark, creditworthiness, entered value adjustment (EVA), and Commerce’s application of adverse facts available (AFA) for the Export Buyer’s Credit Program (EBCP).
- The Government requested (and plaintiffs did not oppose) remand on three issues related to prior reviews (aluminum extrusion benchmark, polysilicon benchmark, and LTAR specificity for electricity).
- The Court sustained Commerce’s findings on (1) LTAR specificity for aluminum extrusions, (2) the land-use benchmark (tier-three Thailand 2010 indexed data), and (3) Canadian Solar’s 2016 uncreditworthiness; it remanded other issues (notably EVA and EBCP/AFA) for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Specificity of GOC provision of aluminum extrusions for LTAR | Aluminum extrusions are widely used across sectors, so the subsidy is not specific | Commerce: recorded users are limited; compared users to overall Chinese economy and found specificity | Sustained — substantial evidence supports Commerce’s de facto specificity finding |
| Land-use rights benchmark (tier selection) | Use tier-two world-price CBRE data (2016–2017) because more contemporaneous | Commerce: land is in situ; tier-two world price inappropriate; used tier-three Thai 2010 industrial land survey indexed by CPI | Sustained — Commerce reasonably rejected tier-two, properly applied tier-three benchmark and indexed data |
| Canadian Solar creditworthiness (2016) | Existence of commercial loans to non-cross-owned affiliates shows creditworthiness | Commerce: loans were not to cross-owned entities; financial ratios and cash-flow indicators show uncreditworthy status | Sustained — Commerce reasonably relied on financial indicators and regulations to find uncreditworthy |
| Entered Value Adjustment (EVA) eligibility | Canadian Solar submitted aggregate marked-up sales and a sample U.S. invoice showing a U.S. mark-up; EVA should be granted or Commerce must request supplementation | Commerce found inconsistency between sample U.S. invoice and worldwide aggregate markup; required clearer evidence that U.S. sales were marked up and denied EVA | Remanded — Commerce must either grant EVA based on submitted record or clarify its evidentiary requirements, allow supplementation, and reassess |
| Export Buyer’s Credit Program (EBCP) — use of AFA | Customers provided notarized certifications of non-use; Commerce could verify via respondent/customer records; AFA was unjustified | Commerce: GOC withheld program docs (partner banks, sample paperwork), so customer certifications unverifiable; applied AFA | Remanded — Court found Commerce failed to show certifications were unverifiable; must attempt verification or accept non-use evidence |
Key Cases Cited
- Bethlehem Steel Corp. v. United States, 223 F. Supp. 2d 1372 (2002) (outlining the elements required for a countervailable subsidy)
- Changzhou Trina Solar Energy Co. v. United States, 352 F. Supp. 3d 1316 (2018) (prior CIT remand decisions on photovoltaic LTAR and specificity analyses)
- Chaparral Steel Co. v. United States, 901 F.2d 1097 (1990) (countervailing duties are remedial, not punitive)
- Jiangsu Zhongji Lamination Materials Co. v. United States, 405 F. Supp. 3d 1317 (2019) (discussion of entered value adjustments and denominator adjustments)
- Nucor Corp. v. United States, 927 F.3d 1243 (2019) (benchmarks and market-principles analysis in subsidy valuation)
- Torrington Co. v. United States, 68 F.3d 1347 (1995) (agency may consider verification burden)
- Archer-Daniels-Midland Co. v. United States, 917 F. Supp. 2d 1331 (2013) (Commerce's discretion in AFA and cautions about collateral impact)