CHANGZHOU TRINA SOLAR ENERGY CO., LTD. ET AL., Plaintiffs and Consolidated Plaintiff, v. UNITED STATES, Defendant, and SOLARWORLD AMERICAS, INC. and CHANGZHOU TRINA SOLAR ENERGY CO., LTD., Defendant-Intervenors and Consolidated Defendant-Intervenor.
Consol. Court No. 17-00199
UNITED STATES COURT OF INTERNATIONAL TRADE
July 25, 2019
Slip Op. 19-92
Claire R. Kelly, Judge
OPINION
[Sustaining the U.S. Department of Commerce’s remand redetermination in the first administrative review of the antidumping duty order covering certain crystalline silicon photovoltaic products from the People’s Republic of China.]
Dated: July 25, 2019
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.
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
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,
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.
Where Commerce has difficulty accessing and verifying the information it needs to satisfy the statutory elements for imposing a CVD it may, subject to
However, and as explained in Changzhou Trina I, the AFA process does not relieve Commerce of its obligation to affirmatively find that the elements of a statute have been satisfied. See Changzhou Trina I, 43 CIT at __, 359 F. Supp. 3d 1338–41. To impose a CVD, Commerce must find that an exporter benefited from a specific subsidy. See
In the Remand Results, Commerce increased Trina’s U.S. selling prices by the amount countervailed to offset the Ex-Im Bank Export Buyer’s Credit Program “under protest[.]” See Remand Results at 1, 5. Commerce’s actions on remand comply with the court’s order in Changzhou Trina I that Commerce recalculate Trina’s U.S. selling prices to account for the amount countervailed. See Changzhou Trina I, 43 CIT at __, 359 F. Supp. 3d at 1332, 1337–42, 1344. Commerce’s Remand Results are also in accordance with law because it is reasonably discernible from Commerce’s description of the Ex-Im Bank Export Buyer’s Credit Program in the parallel CVD investigation that Commerce found that program to be an export subsidy because the benefits it provided were contingent upon export. See CVD Investigation Final Decision Memo at 30 (finding that through the Export Buyer’s Credit Program the “[Ex-Im Bank] provides loans at preferential rates for the purchase of exported goods from the PRC”). Commerce did not resort to facts available or adverse inferences when describing the Export Buyer’s Credit Program. Rather, Commerce explicitly stated that it relied on AFA to determine that respondents used the Export Buyer’s Credit Program, not that the program was specific. See id. at 91–94. Further, Commerce’s descriptions of the Ex-Im Bank Export Buyer’s Credit Program do not suggest that it considered the program to be anything other than an export subsidy. See Changzhou Trina I, 43 CIT at __, 359 F. Supp. 3d at 1339. Given that
In making its determination under protest, Commerce argues that the CVD investigation on solar products is not before the court and that determinations made in distinct proceedings are based on segment-specific information and thus do not necessarily inform determinations in other segments of the same proceedings. Remand Results at 5 n.24 (citing e.g., Hyundai Steel Co. v. United States, 41 CIT __, __, 279 F. Supp. 3d 1349, 1371–72 (2017)). Commerce’s protest is misplaced because the statutory directive that Commerce “shall” increase the price underlying the export price or constructed export price of the subject merchandise by the amount of any CVD imposed on that merchandise to offset an export subsidy,
SolarWorld argues that Commerce’s high-level description of the subsidy program as generally relating in some way to “exported goods” does not constitute a specific determination that the program in question was contingent on export performance. See SolarWorld’s Comments at 3–4. SolarWorld further argues Commerce lacked information necessary to find the Ex-Im Bank Export Buyer’s Credit Program to be an export subsidy
because the Government of China failed to provide relevant information during the CVD investigation. See SolarWorld’s Comments at 3–4. In the CVD Investigation Final Decision Memo, Commerce states “this program, the Export-Import Bank of China (Ex Im Bank) provides loans at preferential rates for the purchase of exported goods from the PRC[,]” but then adds that “the Department was not able to verify the reported non-use” of this program. See CVD Investigation Final Decision Memo at 30. Commerce implicitly found the program was an export subsidy; no party challenged its characterization as an export subsidy. The only challenge in the parallel investigation to Commerce’s determination about the program was whether Commerce could, as it did, rely on an adverse inference to select among the facts available to determine that respondents used the Ex-Im Bank Export Buyer’s Credit Program. See CVD Investigation Final Decision Memo at 30, 91–94. Commerce did not use AFA to conclude the Ex-Im Bank Export Buyer’s Credit Program was contingent on export performance.6
For the foregoing reasons, the Remand Results comply with the court’s order in Changzhou Trina I and are in accordance with law, and are therefore sustained. Judgment will be entered accordingly.
/s/ Claire R. Kelly
Claire R. Kelly, Judge
Dated: July 25, 2019
New York, New York