Changzhou Trina Solar Energy Co. v. United States, 264 F. Supp. 3d 1325

Background

Commerce, in a CVD investigation of crystalline silicon photovoltaic products from the PRC, discovered 40 Solar I PRC programs (previously identified in a related case) and 27 additional grants plus a tax deduction discovered at verification for mandatory respondent Trina Solar.
The GOC refused to provide information about the programs; Trina Solar provided incomplete information and did not report the verification programs.
Commerce treated these programs as "discovered" subsidies, applied facts available with an adverse inference (AFA), found them countervailable, and assigned AFA-based subsidy rates.
Trina Solar challenged Commerce’s findings; the court in Changzhou Trina remanded because Commerce had not identified the record facts on which it relied when applying AFA to find the programs countervailable.
On remand Commerce (under protest) identified record facts supporting specificity, contribution, and benefit for two Solar I infrastructure grants and for 27 verification grants, removed the tax-deduction program (no factual basis for specificity), explained its AFA rate-selection hierarchy and applied a comparable grant rate, and reopened/ran creditworthiness investigations for certain years and found the respondents uncreditworthy for those years.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Commerce identified record facts supporting countervailability of Solar I programs	Trina: Commerce still failed to point to factual record support for specificity and other elements	Commerce: Identified facts in Trina’s questionnaire responses and permissibly applied adverse inferences where GOC did not cooperate	Court: Sustains Commerce for two Solar I infrastructure grants; facts identified plus AFA application were reasonable
Whether Commerce identified record facts supporting countervailability of 27 verification grants and tax deduction	Trina: No record facts show specificity or benefit for the verification programs; tax deduction lacks support	Commerce: Account entries showing government-assistance accounts and positive balances support financial contribution/benefit; GOC noncooperation justified AFA; tax deduction lacked necessary factual support so removed under protest	Court: Sustains Commerce for 27 grants (facts + AFA adequate); sustains Commerce’s decision not to countervail the tax deduction program
Adequacy of Commerce’s selection of AFA subsidy rates for verification programs	Trina: Commerce did not explain how it selected AFA rates consistent with its practice	Commerce: Explained its hierarchical AFA-rate selection (identical program → identical in other China cases → comparable program → highest non-company-specific rate) and applied a grant rate from another China case	Court: Sustains Commerce — remand explanation and choice of comparable program rate supported by substantial evidence
Whether Commerce should have initiated creditworthiness investigations (and related findings)	Trina: Commerce erred in initiating investigations on remand; SolarWorld: Commerce should have initiated for additional year (2012) for Trina	Commerce: Reassessed allegations, found prior uncreditworthiness findings provided reasonable basis to initiate investigations for specified years; did not initiate for Trina 2012 because of intervening creditworthy finding and insufficient new info	Court: Sustains Commerce’s initiation decisions and its uncreditworthy findings for the investigated years; decline to initiate for Trina 2012 was reasonable

Key Cases Cited

Changzhou Trina Solar Energy Co. v. United States, 195 F. Supp. 3d 1334 (CIT 2016) (court remanded for Commerce to identify record facts supporting AFA-based countervailability findings)
Xinjiamei Furniture (Zhangzhou) Co. v. United States, 968 F. Supp. 2d 1255 (CIT 2014) (standard for reviewing remand compliance)
Nakornthai Strip Mill Public Co. v. United States, 587 F. Supp. 2d 1303 (CIT 2008) (remand determinations reviewed for compliance with court order)