TRINA SOLAR CO., LTD. ET AL, v. UNITED STATES,
Court No. 23-00213
UNITED STATES COURT OF INTERNATIONAL TRADE
April 14, 2025
Before: Claire R. Kelly, Judge
Slip Op. 25-40; [Sustaining the Department of Commerce‘s Remand Redetermination.]
Kristin E. Olson, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., for defendant United States. Also on the brief were Brett A. Shumate, Acting Assistant Attorney General, Patricia M. McCarthy, Director, and Reginald T. Blades, Jr., Assistant Director. Of counsel were Joseph Grossman-Trawick and Paul H. Thornton, III, Attorney, Office of the Chief Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce.
Kelly, Judge: Before the Court is the U.S. Department of Commerce‘s (“Commerce“) Final Results of Redetermination Pursuant to Court Remand, Dec. 18, 2024, ECF No. 35 (“Remand Results“), in the 2021-2022 administrative review of the antidumping duty (“ADD“) order on certain crystalline silicon photovoltaic products, from the People‘s Republic of China (“China“). Following this Court‘s remand order, see Trina Solar Co. v. United States, 721 F. Supp. 3d 1347 (Ct. Int‘l Trade 2024) (”Trina I“), Commerce revised Trina‘s1 cash deposit rate from 10.50 percent to 9.09 percent ad valorem. See Remand Results at 15. For the following reasons, Commerce‘s remand redetermination is sustained.
BACKGROUND
The Court presumes familiarity with the facts as set forth in Trina I and will only recount those facts pertinent to the instant matter. See generally Trina I. Commerce published, on April 12, 2022, the initiation notice of antidumping duty and countervailing duty (“CVD“) administrative reviews of certain crystalline silicon photovoltaic products from China concerning the period of review (“POR“) from
In the final determination of the CVD review in 2017, Commerce found, in accordance with
In the 2021-2022 ADD review, Commerce concluded that five of the programs had previously been found to be export contingent. Certain Crystalline Silicon Photovoltaic Products From the People‘s Republic of China; 2021-2022, 88 Fed. Reg. 62,049 (Dep‘t Commerce Sept. 8, 2023) (final results of ADD review and final determination of no shipments) (“Final Results“) and accompanying Issues and Decision Memo. at 9 (“Final Decision Memo.“) (collecting sources). However, Commerce concluded that for the remaining six programs, “Commerce did not indicate that it based the specificity determination on a finding that the programs were export contingent.” Final Decision Memo. at 10. Thus, Commerce “adjusted Trina‘s U.S. prices by the export subsidy rates assigned to ‘non-selected’ companies” for the five companies it found to be export contingent. Prelim. Decision Memo. at 23; see also CVD Prelim. Decision Memo. 2017 at App‘x I.
Commerce issued its final determination on September 1, 2023. See generally Final Results, 88 Fed. Reg. 62,049 (Dep‘t Commerce Sept. 1, 2023). Pursuant to
On August 20, 2024, this Court remanded Commerce‘s refusal to offset Trina‘s U.S. sales prices by the CVD imposed on the six programs in the CVD review, because they were not export contingent, for further explanation. Trina I, 721 F. Supp. 3d at 1356. The Court explained that when Commerce selects facts otherwise available using an adverse inference it does so in order to satisfy the elements of the statute. Id. at 1352. The statute requires a specificity finding. See
Commerce released the Draft Remand Redetermination to interested parties for comment on November 21, 2024. See Draft Results of Redetermination Pursuant to Court Remand, PD 5, CD 3, bar code 4668016-01 (Nov. 21, 2024) (“Draft Remand Results“). In the Draft Remand Results, Commerce adjusted the prices of Trina‘s sales of subject merchandise during the POR by the CVD imposed for three of the subsidy programs, and lowered Trina‘s cash deposit rate from 10.50 percent to 9.09 percent. Id. at 9-10. On November 26, 2024, Trina submitted comments on the Draft Remand Results. See Antidumping Duty Administrative Review of Certain Crystalline Silicon Photovoltaic Products from the People‘s Republic of China: Comments on Draft Results of Redetermination Pursuant to Court Remand, PD 7, bar code 4671036-01 (Nov. 26, 2024) (“Trina Draft Cmts.“). On December 9, 2024,
Commerce filed its Remand Results on December 18, 2024. See generally Remand Results. Plaintiffs filed their comments on the remand results on January 17, 2025. See Pls.’ Cmts. on the Final Results of Redetermination Pursuant to Court Remand, Jan. 17, 2025, ECF No. 38 (“Pls. Cmts.“). Defendant filed its response to Plaintiffs’ comments on the Remand Results on February 18, 2025. See Def‘s. Resp. to Pls.’ Cmts. on Remand Results, Feb. 18, 2025, ECF No. 39 (“Def. Reply“). Defendant-Intervenor did not file comments on the Remand Results.
JURISDICTION AND STANDARD OF REVIEW
The Court exercises jurisdiction pursuant to
DISCUSSION
In cases where merchandise is subject to both ADDs and CVDs, when calculating a respondent‘s ADD rate, Commerce shall increase the respondent‘s export price or constructed export price by the amount of any CVD imposed to offset an export subsidy.
On remand, Commerce, under respectful protest, examined information related to its use of an adverse inference when selecting among the facts otherwise available for the six subsidy programs from the CVD Final Results 2017. See Remand Results at 3-10. Within the Remand Results, Commerce reconsidered whether to adjust Trina‘s sales of subject merchandise during the POR by the CVD imposed by the six programs. Id. at 6-10. Commerce adjusted the prices of Trina‘s sales of
Commerce‘s Remand Results are reasonable, see Matsushita, 750 F.2d at 933, and comply with the Court‘s Remand Order, see Huaiyin Foreign Trade Corp. (30), 322 F.3d at 1374. In making its determination under protest Commerce explains
While Commerce may examine information in the CVD Checklist in making an AFA decision that a program is specific under section 771(5A) of the Act, in doing so Commerce does not necessarily indicate how the program actually operates or whether any alleged subsidies under the program are, in fact, contingent upon exports. For example, Commerce may initiate an investigation of a program based on one alleged type of specificity (e.g., export contingency) only to ultimately find, based upon information supplied by cooperating respondents, that the program is specific for a different reason (e.g., specificity on the basis of a de jure limitation or designated geographic limitation). In keeping with this practice, in the 2017 CVD administrative review of solar products from China, Commerce explained that, as AFA, it was finding the programs under consideration, among others, to be specific within the meaning of the Act (e.g., subsections 771(5A)(B) and (D) of the Act) but it did not make a separate specificity determination for each subsidy program whereby it identified the nature of the specificity. For these reasons, we respectfully disagree with the CIT that Commerce made “determinations” with regard to the nature of the specificity of the subsidy programs at issue. Nonetheless, in order to comply with the CIT‘s holding, we are, under respectful protest, relying on information in the CVD Initiation Checklist to determine a possible basis for the AFA specificity determination in the AR 2017 CVD Final Results.
On remand, Commerce evaluated the six subsidy programs, finding that three of the programs were specific under the statute because they were contingent upon export activities.2 Id. at 7. For these three programs, Commerce examined the descriptions of the programs in the CVD Initiation Checklist and determined that the investigation of these programs was based solely on allegations that the programs were contingent upon export activity performance. Id. Thus, Commerce adjusted the prices of Trina‘s sales of subject merchandise during the POR by the CVDs imposed by the three programs it found to be specific, offsetting the subsidies provided by the programs. Id. For two of the remaining programs, the CVD Initiation Checklist indicated that Commerce based its determination “to initiate an investigation of these programs on multiple specificity allegations.”3 Id. at 7-8. The final program was not discussed in the CVD Initiation Checklist therefore Commerce consulted the AR 2017 CVD Preliminary Results. Id. at 9. Because the 2014-2015 administrative review of the CVD order on solar products from China concluded that the final program was not an export subsidy, and no new evidence indicated Commerce
CONCLUSION
For the foregoing reasons, the Remand Results are supported by substantial evidence, comply with the Court‘s remand order, see ECF No. 31, and are therefore sustained. Judgment will enter accordingly.
/s/ Claire R. Kelly
Claire R. Kelly, Judge
Dated: April 14, 2025
New York, New York