Changzhou Trina Solar Energy Co. Ltd. v. United States, 255 F. Supp. 3d 1312

Background

This case challenges Commerce’s final results in the 2013 countervailing-duty administrative review for crystalline silicon photovoltaic cells from the PRC (POR: Jan 1–Dec 31, 2013); Commerce assigned a 19.20% ad valorem net subsidy rate.
Commerce found inputs (polysilicon, solar glass, electricity) were provided for less than adequate remuneration (LTAR); it used tier‑two benchmarks for polysilicon and solar glass and tier‑one for electricity.
Commerce included ocean freight and an amount for VAT in benchmark calculations (except it did not exclude VAT from electricity), and it averaged two datasets (IHS and GTA) to set the solar glass world‑market benchmark.
Commerce concluded that JA Solar’s U.S. customers did not use the PRC Ex‑Im Bank Export Buyer’s Credit program based on customer declarations and therefore did not apply adverse facts available (AFA) despite limited GOC verification cooperation.
Plaintiffs (SolarWorld and Trina) challenged: (1) Commerce’s non‑use/AFA decision for the Ex‑Im program; (2) averaging IHS and GTA for solar glass; (3) refusal to average ocean freight data; and (4) inclusion of VAT in benchmarks. The court sustained most determinations but remanded the solar glass data averaging issue.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Ex‑Im Bank Export Buyer’s Credit — non‑use and AFA	SolarWorld: Commerce should have applied AFA because the GOC refused full verification and some customers with U.S. addresses did not submit declarations; reliance on JA Solar’s declarations departs from prior practice.	Gov't: JA Solar submitted declarations from all its U.S. customers; no record evidence contradicts non‑use; AFA unnecessary where record contains probative evidence.	Court upheld Commerce: substantial evidence supports reliance on customer declarations; refusal to apply AFA was reasonable given record evidence.
Solar glass benchmark — averaging IHS and GTA datasets	SolarWorld: IHS is flawed (single annual price, unclear tax inclusion) and GTA (monthly, more contemporaneous) is preferable — Commerce should have used GTA only.	Gov't: Both datasets have strengths and flaws; IHS is slightly more product‑specific so averaging is justified.	Court remanded: averaging not supported by substantial evidence without Commerce explicitly addressing IHS tax‑inclusivity and single‑price contemporaneity; Commerce must reconsider and explain or reopen the record.
Ocean freight benchmark — dataset selection	SolarWorld: Commerce should have averaged SolarWorld’s (2012) Maersk data adjusted to POR with inflator and JA Solar’s data; SolarWorld’s data is usable and specific.	Gov't: JA Solar’s data is contemporaneous to POR and shows matching overlap; inflating non‑POR data is disfavored where contemporaneous data exists; SolarWorld’s data specificity is doubtful.	Court upheld Commerce: selecting JA Solar’s contemporaneous freight data (and not averaging) was supported by substantial evidence.
Inclusion of VAT in benchmark calculations	Trina: 19 C.F.R. § 351.511(a)(2)(iv) limits adjustments to delivery charges and import duties; VAT is often recouped and should be excluded.	Gov't & SolarWorld: Regulation permits other adjustments necessary to reflect the price an importer would pay at time of purchase; VAT is an initial outlay and should be included when a hypothetical importer would pay it.	Court upheld Commerce: deference to Commerce’s reasonable interpretation that VAT may be included; VAT inclusion supported by record evidence of PRC VAT on inputs.

Key Cases Cited

Bethlehem Steel Corp. v. United States, 223 F. Supp. 2d 1372 (2002) (elements of subsidy and specificity framework cited).
Archer Daniels Midland Co. v. United States, 917 F. Supp. 2d 1331 (2013) (discussing AFA and avoiding adverse impact on cooperating parties when record evidence exists).
Husteel Co. v. United States, 98 F. Supp. 3d 1315 (2015) (Commerce’s discretion in applying AFA).
Sichuan Changhong Elec. Co. v. United States, 460 F. Supp. 2d 1338 (2006) (addressing treatment of tax inclusivity in benchmark data).
Decker v. N.W. Envtl. Def. Ctr., 568 U.S. 597 (2013) (deference to agency interpretation of its regulation unless plainly erroneous).
Christensen v. Harris Cty., 529 U.S. 576 (2000) (Chevron/Skidmore deference principles).
Mass. Mut. Life Ins. Co. v. United States, 782 F.3d 1354 (Fed. Cir. 2015) (avoid treating regulatory language as surplusage).
Telecare Corp. v. Leavitt, 409 F.3d 1345 (2005) (principles against surplusage in statutory/regulatory construction).
Beijing Tianhai Indus. Co. v. United States, 52 F. Supp. 3d 1351 (2015) (upholding Commerce’s prior inclusion of VAT in PRC benchmarks).