SolarWorld Americas, Inc. v. United States

Slip Op. 21-91
UNITED STATES COURT OF INTERNATIONAL TRADE
OPINION AND ORDER
[Remanding the U.S. Department of Commerce’s third remand redetermination in
the second administrative review of the antidumping duty order covering crystalline
silicon photovoltaic cells, whether or not assembled into modules, from the People’s
Republic of China.]
Dated: July 28, 2021
SOLARWORLD AMERICAS, INC. ET AL.,
Plaintiff and Consolidated
Plaintiffs,
and
CANADIAN SOLAR INC. ET AL.,
Plaintiff-Intervenors and
Consolidated Plaintiff-Intervenors,
v.
UNITED STATES,
Defendant,
and
CHANGZHOU 	TRINA 	SOLAR 	ENERGY
CO., LTD. ET AL.,
Defendant-Intervenors and
Consolidated Defendant-
Intervenors.
Before: Claire R. Kelly, Judge
Consol. Court No. 16-00134
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Robert G. Gosselink and Jonathan M. Freed, Trade Pacific PLLC, of Washington DC,
for consolidated plaintiffs, Changzhou Trina Solar Energy Co., Ltd.; Trina Solar
(Changzhou) Science and Technology Co., Ltd.; Trina Solar (U.S.) Inc.; Yancheng
Trina Solar Energy Technology Co., Ltd.; Changzhou Trina Solar Yabang Energy Co.,
Ltd.; Tupan Trina Solar Energy Co., Ltd.; and Hubei Trina Solar Energy Co., Ltd.
Craig A. Lewis, Jonathan T. Stoel, and Lindsay K. Brown, Hogan Lovells US LLP, of
Washington, D.C., for plaintiff-intervenors, Canadian Solar International Limited;
Canadian Solar Manufacturing (Changshu), Inc.; Canadian Solar Manufacturing
(Luoyang), Inc.; Canadian Solar (USA), Inc.; Canadian Solar Inc.; BYD (Shangluo)
Industrial Co., Ltd. and Shanghai BYD Co., Ltd.
Tara K. Hogan, Assistant Director, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice, of Washington, D.C., for defendant. With her on the brief
were Brian M. Boynton, Acting Assistant Attorney General, and Jeanne E. Davidson,
Director. Of counsel on the brief was Brendan S. Saslow, Attorney, Office of the Chief
Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of
Washington, D.C.
Kelly, 	Judge: 	Before 	the 	court 	is 	the 	U.S. 	Department 	of Commerce’s
(“Commerce”) third remand determination pursuant to the court’s remand order, see
Order, Sept. 2, 2020, ECF No. 176 (“Remand Order”), issued following the Court of
Appeals 	for 	the 	Federal 	Circuit’s 	(“Court 	of 	Appeals”) 	decision 	in 	SolarWorld
Americas, Inc. v. United States, 962 F.3d 1351 (Fed. Cir. 2020) (“SolarWorld IV”).
See Final Results of Redetermination Pursuant to Court Order, Jan. 14, 2021, ECF
No. 187-1 (“Third Remand Results”). 	In SolarWorld IV, the Court of Appeals, inter
alia, vacated this court’s judgment entered pursuant to SolarWorld Americas, Inc. v.
United States, 42 CIT __, 355 F. Supp. 3d 1306 (2018) (“SolarWorld III”), and
remanded Commerce’s decision to use Thai import data published by the Global
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Trade Atlas (“Thai import data”) to construct a surrogate value for Trina’s 1 nitrogen
input in Commerce’s second administrative review of the antidumping duty (“ADD”)
order covering crystalline silicon photovoltaic cells, whether or not assembled into
modules, from the People’s Republic of China (“China”) covering the period December
1, 2013 through November 30, 2014. 	See SolarWorld IV, 962 F.3d at 1358–59; see
also Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules,
From [China], 81 Fed. Reg. 39,905 (Dep’t Commerce June 20, 2016) (final results of
[ADD] administrative review and final determination of no shipments; 2013-14)
(“Final Results”) and accompanying Issues and Decision Memo., A-570-979, (June 13,
2016), ECF No. 21-5 (“Final Decision Memo”). 2
In SolarWorld Americas, Inc. v. United States, 41 CIT __, 273 F. Supp. 3d 1254
(2017) (“SolarWorld I”), the court sustained Commerce’s use of the average unit value
(“AUV”) of nitrogen imports into Thailand as a surrogate value for Trina’s nitrogen
input, while remanding on other grounds. SolarWorld I, 273 F. Supp. at 1271–73.
This 	court 	ultimately 	fully 	sustained 	Commerce’s 	Results 	of 	Second 	Remand
Redetermination Pursuant to Court Order, July 31, 2018, ECF No. 144-1 (“Second
Remand Results”). SolarWorld III, 355 F. Supp. 3d at 1310. However, that decision
1 Consolidated Plaintiffs Changzhou Trina Solar Energy Co., Ltd.; Trina Solar
(Changzhou) 	Science 	and 	Technology 	Co., 	Ltd.; 	Yancheng 	Trina 	Solar 	Energy
Technology Co., Ltd.; Changzhou Trina Solar Yabang Energy Co., Ltd.; Turpan Trina
Solar Energy Co., Ltd.; and Hubei Trina Solar Energy Co., Ltd. are referred to,
collectively, as “Trina.”
2 The Final Decision Memo is also referred to as the “final determination.”
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was vacated and remanded pursuant to SolarWorld IV. SolarWorld IV, 962 F.3d at
1358–59.
In the Third Remand Results, Commerce continues to value Trina’s nitrogen
input using Thai import data. 	Third Remand Results at 2. 	Trina and Plaintiff-
Intervenors Canadian Solar 3 and BYD 4 object to the Third Remand Results on the
grounds that the Thai surrogate value is aberrational, Commerce does not adequately
justify its use of Thai import data to value Plaintiff’s nitrogen inputs because
Commerce’s explanation is speculative, and Commerce does not adequately explain
the discrepancies between Thai import data and U.S. export data. See Consol. Plt.
Trina’s Comment on the Final Results of Third Redetermination Pursuant to
Remand, Feb. 24, 2021, ECF No. 190 (“Trina Br.”); Comments of [Canadian Solar]
and BYD in Opp’n to the Results of Redetermination Pursuant to C. Remand, Feb.
24, 2021, ECF No. 192 (“CS-BYD Br.”). 	Defendant United States argues that
Commerce complies with the court’s remand order by sufficiently explaining why the
Thai import data is reliable and not aberrational. See Defendant’s Response to
Comments on the Remand Determination, March 26, 2021, ECF No. 193 (“Def.’s Br.”).
3 Plaintiff-Intervenors Canadian Solar Inc.; Canadian Solar (USA) Inc.; Canadian
Solar Manufacturing (Changshu), Inc.; Canadian Solar Manufacturing (Luoyang),
Inc.; and Canadian Solar International Limited are referred to, collectively, as
“Canadian Solar.”
4 Plaintiff-Intervenors BYD (Shangluo) Industrial Co., Ltd. and Shanghai BYD Co.,
Ltd. are referred to collectively as “BYD,” and collectively, Trina, Canadian Solar,
and BYD are referred to as “Plaintiff.”
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For the following reasons, the court remands Commerce’s decision to continue using
Thai import data to value Trina’s nitrogen input.
BACKGROUND
The court presumes familiarity with the facts of this case as set out in its and
the Court of Appeals’ previous opinions ordering remand to Commerce, and now
recounts only those facts relevant to the court’s review of the Third Remand Results.
See SolarWorld IV, 962 F.3d at 1355–56; SolarWorld I, 273 F. Supp. 3d at 1259–60;
see also SolarWorld Americas, Inc. v. United States, 42 CIT __, 320 F. Supp. 3d 1341,
1344–48 (2018) (“SolarWorld II”); SolarWorld III, 355 F. Supp. 3d at 1309–14.
Trina challenged the Final Results on the grounds that, inter alia, Commerce’s
decision to use Thai import data to value Trina’s nitrogen input was unsupported by
substantial 	evidence 	because 	the 	data 	was 	aberrational 	and 	unreliable. 	See
SolarWorld I, 273 F. Supp. 3d at 1271–73. 	The court disagreed and sustained
Commerce’s use of the Thai import data as a surrogate value for Trina’s nitrogen
input but remanded the Final Results on other grounds. Id. at 1278–79.
After an additional remand on unrelated grounds, see SolarWorld II, 320 F.
Supp. 3d at 1358, Commerce issued its Second Remand Results, which the court then
sustained and entered judgment accordingly. See SolarWorld III, 355 F. Supp. 3d at
1310; Judgement Order, Dec. 13, 2018, ECF No. 161. Trina and Plaintiff SolarWorld
Americas, Inc. (“SolarWorld”) both appealed the court’s judgment entered pursuant
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to SolarWorld III. See Notice of Appeal, Feb. 11, 2019, ECF No. 163; Notice of Appeal,
Feb. 11, 2019, ECF No. 164.
On June 24, 2020, the Court of Appeals held, inter alia, that Commerce failed
to adequately justify its use of Thai import data to value Trina’s nitrogen input in
Commerce’s Final Results and vacated in part this court’s judgment sustaining
Commerce’s final determination. See SolarWorld IV, 962 F.3d at 1356–59. 	The Court
of Appeals instructed Commerce to “either adequately explain why the Thai [Global
Trade Atlas] data is not aberrational” or “adopt an alternative surrogate value for
[Trina’s] nitrogen input.” Id. at 1358–59. Pursuant to the Court of Appeals’ decision
in SolarWorld IV and the Court of Appeals’ mandate pursuant to that order (see
CAFC Mandate in Appeal, Aug. 17, 2020, ECF No. 175), the court remanded the case
back to Commerce. See Remand Order.
On remand, Commerce continues to use Thai import data to value Trina’s
nitrogen input. 	Third Remand Results at 2. 	Defendant argues that Commerce
complied with the Court of Appeals’ instructions and provides a sufficient explanation
of its choice of Thai data and asks the court to sustain the Third Remand Results.
See Def.’s Br. at 2. Trina, Canadian Solar, and BYD, on the other hand, assert that
Commerce’s choice of Thai data is unreasonable in this case because the surrogate
value is aberrational and Commerce’s explanations for the difference between the
AUV of imports into Thailand and the AUV of over 99% of the imports Commerce
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reviewed are speculative and unsupported by record evidence. See Trina’s Br. at 2–
3; CS-BYD Br. at 1–2.
JURISDICTION AND STANDARD OF REVIEW
This court has jurisdiction pursuant to section 516A of the Tarriff Act of 1930,
as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2012) and 28 U.S.C. § 1581(c) (2012),
which grant the court authority to review actions contesting the final determination
in 	an 	administrative 	review 	of 	an 	antidumping 	order. 	The 	court 	will 	uphold
Commerce’s determination unless it is “unsupported by substantial evidence on the
record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i). “The
results of a redetermination pursuant to court remand are also reviewed ‘for
compliance with the court’s remand order.’” Xinjiamei Furniture (Zhangzhou) Co. v.
United States, 38 CIT __, __, 968 F. Supp. 2d 1255, 1259 (2014) (quoting Nakornthai
Strip Mill Public Co. v. United States, 32 CIT 1272, 1274 (2008).
DISCUSSION
Defendant argues that Commerce’s Third Remand Results comply with the
court’s order in SolarWorld IV and sufficiently explain Commerce’s choice of using
Thailand’s AUV data as the surrogate value for Trina’s nitrogen input. See Def.’s Br.
at 8–24. 	Plaintiff asks the court to reject Commerce’s use of Thai data to calculate
the surrogate value for Trina’s nitrogen input as unreasonable and unsupported by
substantial evidence because Plaintiff alleges that the Thai data is aberrational and
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Commerce has offered only speculation in response to the court’s instruction to
provide further explanation. See Trina Br. at 3–19; CS-BYD Br. at 8–19.
When subject merchandise is exported from a nonmarket economy country,
Commerce calculates normal value based on factors of production (“FOPs”). 19 U.S.C.
§ 1677b(c)(1). Commerce uses “the best available information” to value the FOPs, id.,
and has discretion to determine what constitutes the best available information.
QVD Food Co. v. United States, 658 F.3d 1318, 1323 (Fed. Cir. 2011). 	Commerce
generally selects surrogate values that are publicly available, product specific, reflect
a broad market average, and are contemporaneous with the POR. Qingdao Sea-Line
Trading Co. v. United States, 766 F.3d 1378, 1386 (Fed. Cir. 2014); see also Import
Admin., U.S. Dep’t Commerce, Non-Market Economy Surrogate Country Selection
Process, 	Policy 	Bulletin 	04.1 	(2004), 	available 	at
https://enforcement.trade.gov/policy/bull04-1.html (last visited July 22, 2021) (“Policy
Bulletin 04.1”). 	Commerce’s practice is to avoid using aberrational values as
surrogate values. See generally Antidumping Duties; Countervailing Duties, 62 Fed.
Reg. 27,296, 27,366 (Dep’t Commerce May 19, 1997). 	Commerce further defines
“aberrational” 	to 	mean 	an 	extreme 	outlier, 	distorted 	or 	misrepresentative, 	or
somehow incorrect. Tri Union Frozen Prods. v. United States, 41 CIT __, __, 227 F.
Supp. 3d 1387, 1394-95 (2017).
In SolarWorld IV, the Court of Appeals addressed Commerce’s use of a
“bookend 	methodology” 	where 	Commerce 	accepted 	data 	as 	reliable 	and 	not
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aberrational because it fell within the range of average import prices of the potential
surrogate countries. 	962 F.3d at 1357. 	The Court of Appeals rejected Commerce’s
bookend methodology in those cases where specific evidence detracts from its use. Id.
at 1357–58. Specifically, the Court of Appeals noted that over 99% of the imports into
potential surrogate countries were for $0.13 or less/kg, while Thailand’s imports,
which made up less than 1% of the imports reviewed, averaged over $11.00/kg. Id. at
1357-58. 	The Court of Appeals further found that Commerce had not sufficiently
explained the discrepancy between the Thai data and the ITC data. Id. at 1358–59.
Thus, on remand Commerce was required to provide an additional explanation for its
choice of Thai AUV data for the surrogate value for Plaintiff’s nitrogen input beyond
its prior explanations rejected by the Court of Appeals.
Commerce’s additional explanations in the Third Remand Results for its
continued reliance on Thailand for the surrogate value of Trina’s nitrogen input are
unsupported by substantial evidence and unreasonable in light of the Court of
Appeals’ decision in SolarWorld IV. First, Commerce states that not only is the Thai
AUV within the range of potential surrogate countries, but also that the Thai AUV is
within the ranges of import prices in Bulgaria and Romania. 	See Third Remand
Results at 6. 	However, this reasoning suffers from the same defect as the Court of
Appeals found in Commerce’s use of the “bookend” methodology. Although Commerce
looks at the range of individual prices for imports into certain potential surrogate
countries rather than only the range of average prices paid, it once again fails to
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account for the discrepancy in the volume of imports at the low end of the spectrum
versus the high end. 	Just as Bulgaria and Romania account for over 99% of the
imports into potential surrogate countries and Thailand, Ecuador, and Ukraine
account for less than 1%, so too do the low-priced imports into Bulgaria and Romania
account for over 99% of the imports into those individual countries while the high-
priced imports account for less than 1%. 	See Petitioner’s Letter, “Submission of
Publicly Available Factual Information to Rebut, Clarify or Correct,” Oct. 29, 2015,
Ex. 5B, Ex. 3, PDs 497–99, bar codes 3411020-01–03 (“Petitioner’s SV Rebuttal
Letter”). 	The Court of Appeals expressly found Commerce’s failure to address this
discrepancy to be unreasonable, yet on remand Commerce uses the same bookend
methodology to justify its determination. Commerce’s explanation that the Thai AUV
is within the ranges of the individual countries’ imports is insufficient in light of
SolarWorld IV. 	The court cannot sustain Commerce’s determination as reasonable
on this record. The Court of Appeals made clear that it is not reasonable to select a
price that is consistent with a fraction of a percent of imports and thousands of
percent higher than 99% of imports solely because at least one importer in similarly
situated countries, under unknown circumstances, paid a higher price. 	SolarWorld
IV, 962 F.3d 1357-58; see also Zhejiang DunAn Hetian Metal Co. v. United States,
652 F.3d 1333, 1341 (Fed. Cir. 2011) (stating that the court’s duty is to “evaluate . . .
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whether a reasonable mind could conclude that Commerce chose the best available
information.”). 5
Next, Commerce attempts to differentiate the import data from Romania and
Bulgaria from that of Thailand and argues that the Thai import data is actually more
reliable. Third Remand Results at 7–8, 21–22. In support of this theory, Commerce
notes that approximately 99% of the imports into Bulgaria and Romania come from
neighboring countries, and concludes that there must be unique conditions that
permit neighboring countries to import nitrogen at unusually low prices. 	Id. at 21.
Specifically, Commerce states, “Hence, the overall AUV of imports of nitrogen into
these countries may be more reflective of prices between certain suppliers (the
suppliers in one or two exporting countries) and certain customers (the customers of
those suppliers) and may not reflect the prices experienced by other customers in
those markets.” 	Id. at 7–8. 	Commerce further states that those lower prices are
“[u]ndoubtedly due to lower transportation costs.” Id. at 21.
5 Defendant argues that requiring Commerce to implement a new practice to consider
relative quantities of imports when determining whether an AUV is aberrational
would impose an unbearable administrative burden on Commerce and lead to endless
litigation and “cherry picking” of data. See Def.’s Br. at 14; Third Remand Results at
13. However, the Court of Appeals found that it is unreasonable to employ a bookend
methodology and ignore a vast discrepancy in import quantity without explaining
why that discrepancy coupled with an enormous difference in AUV does not render a
primary surrogate country’s data aberrational. SolarWorld IV, 962 F.3d at 1357–58.
Therefore, Commerce was required to provide an additional explanation in this case.
That Commerce found the imports into Thailand constitute a “commercial quantity”
does not sufficiently explain why the AUV is not aberrational. 	See Third Remand
Results at 27.
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Commerce does not cite any record evidence that would permit it to make an
inference 	that 	importers 	in 	Bulgaria 	and Romania 	receive 	special 	deals 	from
suppliers in neighboring countries that are somehow unrepresentative of the nitrogen
import market as a whole. 	See id. at 7–8, 21–22. 	Although Commerce cites to the
record in support of its explanation, the document to which Commerce cites provides
the volume and pricing of imports into the potential surrogate countries sorted by
country of export, and does not contain any information about suppliers, consumers,
or the contractual arrangements between them. See id. at 7; Petitioner’s SV Rebuttal
Letter, Ex. 5B, PDs 497–99. Commerce’s conclusion that the lower prices of imports
into Bulgaria and Romania from neighboring countries are due to special prices
between buyers and sellers in those countries that are not reflective of the overall
market is speculative, as is Commerce’s explanation that the lower prices are
“undoubtedly due to lower transportation costs.”
Although it may be reasonable to infer transportation over shorter distances
may cost less, there is no record evidence to support any conclusion that lower
transportation costs account for the entirety of the lower cost or even that lower
transportation costs account for a significant difference in the price of nitrogen. 	In
fact, the nitrogen imported into Thailand from the neighboring country of Malaysia
does not support Commerce’s explanation. 	Petitioner’s SV Rebuttal Letter, Ex. 5B,
PDs 497–99. 	Imports of nitrogen into Thailand from Malaysia were twice as
expensive as those from Italy, for example. Id. The prices of imports into Thailand
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vary substantially and the differences cannot be explained by transportation costs
based on distance. 	Id. 	Thus, Commerce’s explanation that the vast majority of
imports into Bulgaria and Romania are not reliable approximations of the market for
nitrogen because those imports enjoy special pricing and lower transportation costs
from neighboring countries is not supported by substantial evidence.
Commerce also suggests that the discrepancy between the price of the nitrogen
imported into Thailand and the price of the nitrogen imported into Bulgaria and
Romania can be explained by the fact that the nitrogen imported into Thailand was
of unique “purity” necessary to construct solar cells. Third Remand Results at 23, 29.
Commerce reasons that because there is evidence of Thai businesses engaged in the
manufacture of solar cells (and no such evidence for Bulgaria or Romania), the price
of nitrogen imports into Thailand is a more reliable indicator of the market price
applicable to Canadian Solar. 	Id. at 23. 	However, Commerce itself admits that
“There is no record evidence that Thailand imported an anomalous type, form, or
purity of nitrogen during the POR.” 	Id. at 20. 	Commerce does not cite any record
evidence in support of the explanation that Thai data is more accurate because the
nitrogen imported into Thailand is of the proper “purity” for solar cell production. See
Id. 23, 29. 	Commerce’s explanation that Thai data is not aberrational because
nitrogen imported into Thailand is of the type and purity for use in the manufacture
of solar cells is speculative and not supported by substantial evidence.
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Lastly, Commerce’s explanation for the discrepancy between Thai import data
and ITC export data is speculative and unsupported by substantial evidence. See id.
at 13–15, 27–29. 	The Court of Appeals found that Commerce’s decision to rely on
Thai import data instead of U.S. export data compiled by the ITC required further
explanation because the two datasets “cannot both be correct.” 	SolarWorld IV, 962
F.3d at 1358. On remand, Commerce asserts that the discrepancy could be due to a
number of factors, including that transportation and insurance costs might be
included in one set but not the other, time lags for when exports are shipped and
imports enter the receiving country, delays at customs warehouses, and differences
in reporting data from free trade zones. 	Third Remand Results at 28. 	However,
although these discrepancies may explain minor differences, it is unreasonable to
conclude that they reconcile the “admitted inconsistencies” noted by the Court of
Appeals. 	SolarWorld 	IV, 	962 	F.3d 	at 	1358. 	Moreover, 	none 	of 	Commerce’s
explanations is supported by record evidence, and Commerce does not cite to the
record in support of its explanations. Third Remand Results at 28.
Commerce fails to satisfactorily explain its continued reliance on Thailand’s
AUV for use as the surrogate value for Trina’s nitrogen input. 	Commerce did not
sufficiently explain why the detracting evidence cited by the Court of Appeals does
not render Thailand’s AUV aberrational.
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CONCLUSION
For the foregoing reasons, it is
ORDERED that Commerce’s redetermination of its surrogate value selection
for valuing Trina’s nitrogen input is remanded to the agency for reconsideration or
further explanation consistent with this opinion; and it is further
ORDERED that Commerce shall file its remand determination with the court
within 60 days of this date; and it is further
ORDERED that the parties shall have 30 days thereafter to file comments on
the remand determination; and it is further
ORDERED that the parties shall have 30 days thereafter to file a reply to
comments on the remand determination; and it is further
ORDERED that the parties shall have 14 days thereafter to file the Joint
Appendix; and it is further
ORDERED that Commerce shall file the administrative record within 14 days
of the date of the filing of its remand determination.
/s/ Claire R. Kelly
Claire R. Kelly, Judge
Dated: 	July 28, 2021
New York, New York
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