CHANGZHOU TRINA SOLAR ENERGY CO., LTD., TRINA SOLAR (CHANGZHOU) SCIENCE & TECHNOLOGY CO., LTD., TRINA SOLAR (U.S.) INC., Plaintiffs-Appellees v. UNITED STATES, Defendant-Appellee v. SOLARWORLD AMERICAS, INC., Defendant-Appellant
20-1004
United States Court of Appeals for the Federal Circuit
September 3, 2020
Appeal from the United States Court of International Trade in Nos. 1:17-cv-00199-CRK, 1:17-cv-00217-CRK, Judge Claire R. Kelly.
JONATHAN FREED, Trade Pacific PLLC, Washington, DC, argued for plaintiffs-appellees. Also represented by ROBERT GOSSELINK.
JOSHUA E. KURLAND, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by ETHAN P. DAVIS, JEANNE DAVIDSON, REGINALD THOMAS BLADES, JR.; IAN ANDREW MCINERNEY, Office of the Chief Counsel for Trade Enforcement and Compliance, United States Department of Commerce, Washington, DC.
TIMOTHY C. BRIGHTBILL, Wiley Rein, LLP, Washington, DC, argued for defendant-appellant. Also represented by LAURA EL-SABAAWI, DOUGLAS C. DREIER, STEPHEN JOSEPH OBERMEIER, JOHN ALLEN RIGGINS, ENBAR TOLEDANO.
Before DYK, WALLACH, and CHEN, Circuit Judges.
Appellees Changzhou Trina Solar Energy Co., Ltd., Trina Solar (Changzhou) Science & Technology Co., Ltd., and Trina Solar (U.S.), Inc. (collectively, “Trina“) filed suit against Appellee the United States (“Government“) in the U.S. Court of International Trade (“CIT“), challenging the U.S. Department of Commerce‘s (“Commerce“) final results in the first administrative review of the antidumping (“antidumping” or “AD“) duty order covering certain crystalline silicon photovoltaic products from the People‘s Republic of China (“PRC“). See Certain Crystalline Silicon Photovoltaic Products From the People‘s Republic of China,
SolarWorld appeals. We have jurisdiction pursuant to
BACKGROUND
I. Legal Framework
Antidumping duties may be imposed on “foreign merchandise [that] is being, or is likely to be, sold in the United States at less than its fair value.”
II. Procedural History
A. The AD and CVD Orders
In December 2013, SolarWorld, “a domestic producer of solar cells and panels,” filed “antidumping [and countervailing] duty . . . petition[s] concerning imports of certain crystalline silicon photovoltaic products” from the PRC, then Commerce initiated antidumping and countervailing duty investigations in response. Certain Crystalline Silicon Photovoltaic Products From the People‘s Republic of China and Taiwan,
In calculating Trina‘s countervailing duty rate, Commerce found various “[p]rograms... to be countervailable,” Issues & Decisions Mem., Certain Crystalline Silicon Photovoltaic Products From the People‘s Republic of China, C-570-011, Investigation at 16 (Dec. 15, 2014), https://enforcement.trade.gov/frn/summary/prc/2014-30071-1.pdf (adopted in Final CVD Determination,
In February 2015, Commerce issued antidumping and countervailing duty orders covering “certain crystalline silicon photovoltaic products,” specifically, “modules, laminates and/or panels consisting of crystalline silicon photovoltaic cells, whether or not partially or fully assembled into other products, including building integrated materials.” Certain Crystalline Silicon Photovoltaic Products From the People‘s Republic of China,
B. The First Administrative Review
In February 2016, Commerce filed notice of the opportunity to request administrative review of the AD and CVD Orders.
In March 2017, Commerce issued its preliminary results. See Preliminary Results,
In July 2017, Commerce issued its Final Results.
Both SolarWorld and Trina filed suit against the Government in the CIT, challenging Commerce‘s Final Results as unsupported by substantial evidence and contrary to law. Trina I, 359 F. Supp. 3d at 1331. On the offset issue, the CIT remanded to Commerce, concluding that “Commerce‘s
“In accordance with [Trina I],” Commerce, “under respectful protest, increased Trina‘s [export] price[] by the amount countervailed” based on the Ex-Im Bank Buyer‘s Credit Program subsidy “in the most recently completed segment of the corresponding [CVD] proceeding.” J.A. 6764–65 (citing Final CVD Determination,
DISCUSSION
SolarWorld argues that: (1) the CIT “erred in sustaining Commerce‘s [Remand Redetermination]—made under protest—to offset Trina‘s [export] price to account for the countervailed” Ex-Im Bank Buyer‘s Credit Program, Appellant‘s Br. 19 (capitalization normalized); and (2) the CIT “improperly deferred” to Commerce when it “sustain[ed] Commerce‘s decision to apply Thai HTS [Subheading] 7007.19.90000 to Trina‘s solar [module] glass,” id. at 31. We address each argument in turn.
I. Standard of Review
We “apply . . . the same standard” of review as the CIT, Downhole Pipe & Equip., L.P. v. United States, 776 F.3d 1369, 1373 (Fed. Cir. 2015) (internal quotation marks and citation omitted), upholding Commerce‘s determinations if they are supported “by substantial evidence on the record” and otherwise “in accordance with law,”
We review Commerce‘s findings of fact for substantial evidence. See SolarWorld Ams., Inc. v. United States, 910 F.3d 1216, 1222 (Fed. Cir. 2018). Substantial evidence is “more than a mere scintilla“; rather it is such “evidence that a reasonable mind might accept as adequate to support a conclusion.” Downhole Pipe, 776 F.3d at 1374 (internal quotation marks and citations omitted). “We look to the record as a whole, including evidence that supports as well as evidence that fairly detracts from the substantiality of the evidence.” SolarWorld, 910 F.3d at 1222 (internal quotation marks and citation omitted).
II. Export Subsidy Offset
A. Legal Standard
If imported merchandise is subject to both antidumping and countervailing duties, Commerce “shall,” when calculating a respondent‘s antidumping duty rate, “increase[]” the respondent‘s “export price” or “constructed export price” by “the amount of any countervailing duty imposed . . . to offset an export subsidy[.]”
B. Commerce‘s Decision to Not Offset Trina‘s Export Price Is Contrary to Law
In its Final Results, Commerce declined to increase Trina‘s export price by the amount countervailed to offset the Ex-Im Bank Buyer Credit Program. J.A. 121. Commerce explained that such an increase was improper because Commerce “did not make a determination in the [companion] CVD investigation . . . that the [Ex-Im Bank] Buyer‘s Credit Program was an export subsidy” because it had relied on AFA to countervail the program. J.A. 121. The CIT remanded to Commerce, concluding that “Commerce‘s refusal to offset the CVDs imposed is contrary to law because Commerce necessarily determined that the [Ex-Im Bank] [B]uyer‘s [C]redit [P]rogram was an export subsidy in the [companion] CVD investigation.” Trina I, 359 F. Supp. 3d at 1337. The CIT “directed [Commerce] to recalculate Trina‘s [export] prices to account for the offset[.]” Id. at 1332. On remand, Commerce, “under respectful protest, increased Trina‘s [export] price[] by the amount countervailed” as a result of the Ex-Im Bank Buyer‘s Credit Program. J.A. 6764–65. The CIT sustained Commerce‘s Remand Redetermination. Trina II, 393 F. Supp. 3d at 1251. SolarWorld asserts that “the CIT erred in ordering Commerce to offset Trina‘s [export] price to account for the countervailed Ex-Im [Bank] Buyer‘s Credit Program,” Appellant‘s Br. 17, and in “sustaining Commerce‘s decision [as] made under protest,” id. at 19.4 We disagree with SolarWorld.
Here, Commerce failed to increase Trina‘s export price by a countervailing duty imposed to offset an export subsidy. In the companion CVD investigation, Commerce first determined that the Ex-Im Bank Buyer‘s Credit Program was countervailable as an export subsidy. Commerce described the program as providing “[e]xport [c]redit [s]ubsidies,” explaining that “through th[e] program, the [Ex-Im Bank] provides loans at preferential rates for the purchase of exported goods from the PRC.” Final CVD I&D Mem. 30; see
Commerce‘s reasoning that, because its “determination to countervail the [Ex-Im Bank Buyer‘s Credit Program] was based on [AFA],” it “[had] not” actually “ma[d]e a determination that the program . . . was [an export subsidy]” and, therefore, was not required to offset it, J.A. 121–22, is incorrect. AFA allows Commerce to “reach[]” a “determination” on an incomplete record.
SolarWorld‘s counterarguments are unpersuasive. First, SolarWorld argues that, because the term “export subsidy” in
Second, SolarWorld argues that we should give Auer deference to Commerce‘s interpretation of the Final CVD I&D Mem.—erroneously calling it the “CVD Order“—as “apply[ing] AFA in finding the Ex-Im [Bank] Buyer‘s Credit Program was an export subsidy.” Appellant‘s Br. 20 (citing Auer v. Robbins, 519 U.S. 452, 461 (1997); Diamond Sawblades Mfrs. Coal. v. Hyosung D&P Co., 809 F.3d 626, 630 (Fed Cir. 2015)). This argument is irrelevant. Here, as SolarWorld concedes, Commerce has determined that the Ex-Im Bank Buyer‘s Credit Program was an “[e]xport[] . . . [s]ubsid[y],” because it “provides loans at preferential rates for the purchase of exported goods from the PRC.” Final CVD I&D Mem. 30; see Appellant‘s Br. 20 (arguing that Commerce “f[ound] the Ex-Im [Bank] Buyer‘s Credit Program was an export subsidy” (capitalization normalized)). As discussed above, whether Commerce used AFA to reach that determination is immaterial. See
Third, SolarWorld argues that “providing . . . an offset would inappropriately reward noncompliance with Commerce‘s request for information[]” from the Government of China in the CVD investigation, “eliminating any incentive for the [Government of China] to cooperate in future CVD investigations of this key subsidy program.” Appellant‘s Br. 18. SolarWorld neglects the fact that AFA was already applied to increase Trina‘s countervailing duty rate. See Final CVD I&D Mem. 16, 94; see also Dupont Teijin Films USA, LP v. United States, 273 F. Supp. 2d 1347, 1349 n.4 (2003) (explaining that “[the] basic economic theory behind [
III. Surrogate Value Selection
A. Legal Standard
Where, as here, the exporting country has a nonmarket economy, see Preliminary Results,
Commerce‘s surrogate value determinations must “be based on the best
B. Commerce‘s Surrogate Value Selection for Trina‘s Module Glass Is Supported by Substantial Evidence
In its Final Results, Commerce “value[d] Trina‘s module glass using Thai imports of tempered glass classified under HTS [Subheading] 7007.19.90000,” J.A. 141; see J.A. 140 (providing that Thai HTS Subheading 7007.19.90000 “Toughened (Tempered) Safety Glass, Not Suitable For Incorporation In Vehicles, Aircraft, Spacecraft Or Vessels; Other“). Specifically, Commerce found, based on “an examination of record information and Trina‘s [submissions]” in the course of administrative review, that “Trina‘s module glass” was “tempered.” J.A. 141. Presented with Thai import data for HTS Subheading 7007.19.90000 (“tempered/safety glass“), HTS Subheading 7007.19.90001 (“float glass“), and HTS Subheading 7007.29.90 (“laminated safety glass“), Commerce concluded that “Trina‘s module glass [wa]s appropriately valued using Thai HTS [Subheading] 7007.19.90000.” J.A. 141. The CIT sustained this determination as supported by substantial evidence. See Trina I, 359 F. Supp. 3d at 1336. SolarWorld argues that “Commerce‘s determination to use Thai HTS [Subheading] 7007.19.90000 to value Trina‘s solar glass was not supported by substantial evidence.” Appellant‘s Br. 31 (capitalization normalized). SolarWorld asserts that “[r]ecord evidence . . . makes clear that[,] in addition to being tempered, Trina‘s solar module glass also undergoes additional processing” that “impart[s] extreme durability to the glass,” leaving “Thai HTS [Subheading] 7007.29.90 . . . the only HTS number that reflects” that processing. Id. at 34–35; see J.A. 141 (providing that HTS Subheading 7007.29.90 covers “Laminated safety glass: Other; Other“). We disagree with SolarWorld.
Substantial evidence supports Commerce‘s decision to value Trina‘s module glass using Thai imports of tempered glass classified under HTS Subheading 7007.19.90000. In its submissions to Commerce, Trina described its module glass as “tempered.” J.A. 46–47 (Trina‘s Third Supplemental Questionnaire Response) (providing that “both [its] coated glass and tempered glass” are “tempered“); see J.A. 5550 (Trina‘s Section A Questionnaire Response) (providing Trina advertising material describing Trina‘s module glass as “[anti-reflective] coated tempered glass“), 5713 (Trina‘s First Supplemental Questionnaire Response) (explaining that Trina‘s “tempered glass” is “float glass” rather than “rolled glass“). Further, Commerce, examining Trina‘s publicly available data, found that the “only glass referred to there [was] tempered glass.” J.A. 46. Examination of other producers’ publicly available data indicated use of “tempered glass” with “antireflection surface treatment” and “extremely durable” “front glazing,” in some cases “us[ing] a polymer film (plastic) as the front sheet.” J.A. 46–47. Trina confirmed that there was no
SolarWorld‘s counterarguments are unpersuasive. First, SolarWorld argues that “Commerce failed to use the ‘best available information’ to value Trina‘s solar glass,” because “Commerce valued Trina‘s coated, tempered glass using Thai imports of standard tempered glass[.]” Appellant‘s Br. 31 (emphasis omitted). This argument misapprehends the “best available evidence” standard. “The data on which Commerce relies to value inputs must be the ‘best available information,’ but there is no requirement that the data be perfect.” Home Meridian Int‘l, Inc. v. United States, 772 F.3d 1289, 1296 (Fed. Cir. 2014). The fact that Trina‘s tempered glass has a coating does not preclude the conclusion that Thai import data for tempered glass is the best available information on the record to value it. See Nation Ford Chem. Co. v. United States, 166 F.3d 1373, 1377 (Fed. Cir. 1999) (“‘The best available information’ . . . may constitute information from the surrogate country that is directly analogous to the production experience of the NME producer . . . or it may not.“); see also SolarWorld, 910 F.3d at 1223 (explaining that, in selecting surrogate values, “Commerce is not required to engage in a classification analysis but instead is required to determine which of the competing subheadings constituted the best available information” (internal quotation marks and citation omitted)).
Second, SolarWorld argues that, “[b]ecause Commerce did not consider evidence that detracts from its conclusion,” specifically, “[record] evidence indicating that Trina‘s glass [is laminated glass],” Commerce‘s decision is “not supported by substantial evidence.” Appellant‘s Br. 35. This argument is premised on a misreading of Commerce‘s determination. Commerce “disagree[d] with [SolarWorld‘s] suggestion that Trina‘s module glass should be valued” as “[l]aminated safety glass” using Thai “HTS [Subheading] 7007.29.90[.]” J.A. 141. Commerce explained that, while “laminated glass is ‘made in sandwich form, with one or more interlayers of plastics between two or more sheets of glass,‘” J.A. 141 (quoting WCO EN 7007.29.90), SolarWorld could only point to evidence that “Trina‘s module glass” had potentially “undergone additional working such as surface treatments and glazing,” not “additional working that would result in . . . laminated glass . . . made of multiple layers of plastic and glass.” J.A. 142. On appeal, SolarWorld does not challenge Commerce‘s definition of laminated glass or point to missed evidence; rather, SolarWorld proffers the same rejected evidence, compare Appellant‘s Br. 33–34 (arguing that a “datasheet for glass on Trina‘s website refers to . . . [c]oated [t]empered [g]ass” with “a polymer film (plastic) as the front sheet . . . for arrays in high-impact environments” and “information
CONCLUSION
We have considered the parties’ remaining arguments and find them unpersuasive. For the foregoing reasons, the Judgment of the U.S. Court of International Trade is
AFFIRMED