Canadian Solar International Limited et al v. United States

Slip Op. 21-92
UNITED STATES COURT OF INTERNATIONAL TRADE
CANADIAN SOLAR
INTERNATIONAL LIMITED ET
AL.,
Plaintiffs and Consolidated
Plaintiffs,
and
SHANGHAI BYD CO., LTD. ET AL.,
Plaintiff-Intervenors and
Consolidated Plaintiff-
Intervenors,
v.
UNITED STATES,
Defendant,
and
SOLARWORLD AMERICAS, INC. ET
AL.,
Defendant-Intervenor and
Consolidated Defendant-
Intervenors.
Before: Claire R. Kelly, Judge
Consol. Court No. 17-00173
OPINION AND ORDER
[Remanding the U.S. Department of Commerce’s third remand redetermination in
the third 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
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Craig A. Lewis, Jonathan T. Stoel, and Lindsay K. Brown, Hogan Lovells US LLP, of
Washington, 	D.C., 	for 	plaintiffs 	and 	consolidated 	plaintiffs, 	Canadian 	Solar
International Limited; Canadian Solar Manufacturing (Changshu), Inc.; Canadian
Solar Manufacturing (Luoyang), Inc.; CSI Solar Power (China) Inc.; CSI-GCL Solar
Manufacturing (YanCheng) Co., Ltd.; CSI Cells Co., Ltd.; Canadian Solar (USA), Inc.;
and plaintiff-intervenor and consolidated plaintiff-intervenor 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 redetermination filed pursuant to the court’s order in
Canadian Solar Int’l Ltd. v. United States, 44 CIT __, 471 F. Supp. 3d 1379 (Sept. 14,
2020) (“Canadian Solar IV”). See Final Results of Redetermination Pursuant to Ct.’s
Remand in [Canadian Solar IV], Jan. 13, 2021, ECF No. 180-1 (“Third Remand
Results”). 	In Canadian Solar IV, the court remanded Commerce’s decision to use
Thai import data published by the Global Trade Atlas (“Thai import data”) to
construct a surrogate value for Canadian Solar’s 1 nitrogen input in Commerce’s third
administrative review of the antidumping duty (“ADD”) order covering crystalline
silicon photovoltaic cells, whether or not assembled into modules (“solar cells”), from
1 Plaintiffs Canadian Solar International Limited; Canadian Solar (USA), Inc.;
Canadian Solar Manufacturing (Changshu), Inc.; Canadian Solar Manufacturing
(Luoyang), Inc.; CSI Cells Co., Ltd.; CSI-GCL Solar Manufacturing (Yancheng) Co.,
Ltd.; and CSI Solar Power (China) Inc. are referred to, collectively, as “Canadian
Solar.”
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the People’s Republic of China (“PRC”) covering the period December 1, 2014 through
November 30, 2015 (“AR3”). See Canadian Solar IV, 44 CIT at __, 471 F. Supp. 3d at
1383–84; see also Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled
Into Modules, from the [PRC], 82 Fed. Reg. 29,033 (Dep’t Commerce June 27, 2017)
(final 	results 	of 	[ADD] 	administrative 	review 	and 	final 	determination 	of 	no
shipments; 2014-15) (“Final Results”) and accompanying Issues and Decision Memo.,
A-570-979 (June 20, 2017), ECF No. 44-5 (“Final Decision Memo”).
On June 24, 2020, the Court of Appeals for the Federal Circuit (“Court of
Appeals”) decided SolarWorld Americas, Inc. v. United States, 962 F.3d 1351 (Fed.
Cir. 2020) (“SolarWorld”). In SolarWorld, the Court of Appeals held that Commerce
failed to adequately justify its use of Thai import data to value Trina Solar Energy
Co., Ltd.’s (“Trina”) nitrogen input in Commerce’s previous administrative review of
the 	same 	ADD 	order 	and 	vacated 	in 	part 	this 	court’s 	judgment 	sustaining
Commerce’s final determination. See id. at 1356–59.
In Canadian Solar IV, the court reconsidered its decision in Canadian Solar
Int’l Ltd. v. United States, 44 CIT __, 448 F. Supp. 3d 1333 (June 15, 2020) (“Canadian
Solar III”) to sustain Commerce’s Redetermination Pursuant to Ct.’s Second Remand
Order in [Canadian Solar III], Feb. 11, 2020, ECF No. 147-1 (“Second Remand
Results”), vacated the court’s Judgment sustaining the Second Remand Results, and
ordered Commerce to “either adequately explain why the Thai [Global Trade Atlas]
data is not aberrational or adopt an alternative surrogate value for [Canadian Solar’s]
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nitrogen input” in accordance with the Court of Appeals’ decision in SolarWorld. See
Canadian Solar IV, 44 CIT at __, 471 F, Supp. 3d at 1383 (internal quotation marks
omitted).
In its Third Remand Results, Commerce continues to value Canadian Solar’s
nitrogen input using Thai import data, explaining that the use of Thai import data is
not aberrational. 	See Third Remand Results at 2. 	Canadian Solar and plaintiff-
intervenor Shanghai BYD Co., Ltd. (“Shanghai BYD”) (collectively with Canadian
Solar, “Plaintiff”) object to the Third Remand Results. See Comments of [Plaintiff] in
Opposition to the Final Results of Redetermination Pursuant to C. Remand, February
24, 2021, ECF No. 184 (“Pl.’s 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. 185 (“Def.’s Br.”). For the following
reasons, the court remands Commerce’s decision to continue using Thai import data
to value Canadian Solar’s nitrogen input.
BACKGROUND
The court presumes familiarity with the facts of this case as set out in its
previous opinions ordering remand to Commerce, and now recounts only those facts
relevant to the court’s review of the Third Remand Results. See Canadian Solar IV,
44 CIT at __, 471 F. Supp. 3d at 1381–82; see also Canadian Solar Int’l Ltd. v. United
States, 43 CIT __, __, 378 F. Supp. 3d 1292, 1310–13 (Apr. 16, 2019) (“Canadian Solar
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I”); Canadian Solar Int’l Ltd. v. United States, 43 CIT __, 415 F. Supp. 3d 1326, 1328–
31 (Dec. 3, 2019) (“Canadian Solar II”); Canadian Solar III, 44 CIT at __, 448 F. Supp.
3d at 1335–39.
Canadian Solar previously challenged the Final Results on the grounds that,
inter alia, Commerce’s decision to use Thai import data to value Canadian Solar’s
nitrogen input was unsupported by substantial evidence because the data was
aberrational and unreliable. See Canadian Solar I, 43 CIT at __, __, 378 F. Supp. 3d
at 1310. 	The court disagreed, sustaining Commerce’s use of the Thai import data,
but remanded the Final Results on other grounds. Id. at __, 378 F. Supp. 3d at 1325.
In 	Canadian 	Solar 	II, 	the 	court 	sustained 	Commerce’s 	surrogate 	value
methodology, but remanded for a second time on other unrelated grounds. See
Canadian Solar II, 43 CIT at __, 415 F. Supp. 3d at 1334–35. Commerce issued its
Second Remand Results, which the court then sustained and entered judgment
accordingly. See Canadian Solar III, 44 CIT at __, 448 F. Supp. 3d at 1339–40.
However, on June 24, 2020, the Court of Appeals decided SolarWorld, holding
that Commerce failed to adequately justify its use of Thai import data to value Trina’s
nitrogen input in Commerce’s previous administrative review of the same ADD order
at issue 	in this action, and vacated in part 	this court’s 	judgment 	sustaining
Commerce’s final determination. See SolarWorld, 962 F.3d at 1356–59. In particular
the Court of Appeals stated that relying on Thai data was “illogical” in light of the
fact that the average price of imports into Bulgaria and Romania, which accounted
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for over 99% of the imports in the period of review, was significantly lower than
imports into Thailand, and that Commerce appeared to deviate from past practice of
disregarding small quantity import data where the per unit value were substantially
different from large quantity data. Id. at 1357–58. Further, it concluded Commerce
“failed to explain how the Thai data can be reconciled with data from the United
States International Trade Commission’s (“ITC”) Data website.” Id. at 1358.
In Canadian Solar IV, this court held that the Court of Appeals’ decision in
SolarWorld, which 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,” constituted an intervening change in controlling
law that relates to whether Commerce’s determination to rely on Thai import data to
value Canadian Solar’s nitrogen input was supported by substantial evidence. See
Canadian Solar IV, 44 CIT __, 471 F. Supp. 3d at 1382–83.
On remand Commerce continues to use Thai import data to value Canadian
Solar’s nitrogen input. See Third Remand Results at 2. Defendant argues that
Commerce provides a sufficient explanation of its choice of Thai data in compliance
with SolarWorld and asks the court to sustain the Third Remand Results. See Def.’s
Br. at 1–2. Plaintiff, on the other hand, asserts 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 Thailand’s import price versus
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the prices of the vast majority of imports which Commerce reviewed are speculative
and unsupported by record evidence. See Pl.’s 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) 2 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, 587 F. Supp. 2d 1303, 1306
(2008).
DISCUSSION
Defendant argues that Commerce sufficiently explains its reliance on Thai
import data to value Canadian Solar’s nitrogen input and asserts that Commerce’s
reliance is reasonable, in accordance with its established practice, and should be
sustained. See Def.’s Br. at 8–24. Plaintiff asks the court to reject Commerce’s use of
2 Further citations to the Tariff Act of 1930, as amended, are to the relevant
provisions of Title 19 of the U.S. Code, 2012 edition.
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Thai data to calculate the surrogate value for Canadian Solar’s nitrogen input as
unreasonable and unsupported by substantial evidence because Plaintiff alleges the
Thai data is aberrational and Commerce has offered only speculation in response to
the court’s instruction to provide further explanation. See Pl.’s Br. at 9–21. For the
following reasons, the court remands Commerce’s Third Remand Results for further
consideration in accordance with this opinion.
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
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somehow incorrect. See Tri Union Frozen Prods. v. United States, 41 CIT __, __, 227
F. Supp. 3d 1387, 1394-95 (2017).
In SolarWorld, the Court of Appeals addressed Commerce’s use of a “bookend
methodology” where Commerce accepted data as reliable and not 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.
Those 	same 	concerns 	regarding 	the 	use 	of 	the 	bookend 	methodology 	and 	a
discrepancy between the Thai data and the ITC data are present here. 	See Final
Decision Memo. at 53–55; Petitioner’s Submission of Information to Rebut, Clarify or
Correct Information Pertaining to Surrogate Values, Exhibit 3, PD 397–98, CD 482–
84, bar codes 3490795-01–02, 3490786-01–03 (July 26, 2016) (“Petitioner’s SV
Rebuttal Letter”). 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.
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Commerce’s additional explanations in the Third Remand Results for its
continued reliance on Thailand for the surrogate value of Canadian Solar’s nitrogen
input are unsupported by substantial evidence and unreasonable in light of the Court
of Appeals’ decision in SolarWorld. 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, Romania, and Mexico. 	See Third
Remand Results at 7, 22. 	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 account for the discrepancy in the volume of imports at the low end
of the spectrum versus the high end. Just as Bulgaria, Romania, and Mexico account
for over 99% of the imports into potential surrogate countries and Thailand, Ecuador,
and South Africa account for less than 1%, so too do the low-priced imports into
Bulgaria, Romania, and Mexico account for over 99% of the imports into those
individual countries while the high-priced imports account for less than 1%. 	See
Petitioner’s SV Rebuttal Letter, Ex. 3, PDs 397–98, CDs 482–84. 	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. The
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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, 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 . . . whether a reasonable mind
could conclude that Commerce chose the best available information.”). 3
Next, Commerce attempts to differentiate the import data from Romania,
Bulgaria, and Mexico from that of Thailand and argues that the Thai import data is
actually more reliable. Third Remand Results at 7, 21–22. In support of this theory,
Commerce notes that more than 99% of the imports into Bulgaria, Romania, and
Mexico come from neighboring countries, and concludes that there must be unique
conditions that permit neighboring countries to import nitrogen at unusually low
3 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 14–15; Third Remand Results
at 25–26. 	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, 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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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. 	Commerce further states that those lower
prices are “[u]ndoubtedly due to lower transportation costs.” Id. at 21.
Commerce does not cite any record evidence that would permit it to make an
inference that importers in Bulgaria, Romania, and Mexico receive special deals from
suppliers in neighboring countries that are somehow unrepresentative of the nitrogen
import market as a whole. See id. at 7, 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. 3, PDs 397–98, CDs 482–84. Commerce’s conclusion that the lower prices
of imports into Bulgaria, Romania, and Mexico 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
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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
contradicts Commerce’s explanation. 	Petitioner’s SV Rebuttal Letter, Ex. 3, PDs
397–98, CDs 482–84. 	Imports of nitrogen into Thailand from Malaysia were four
times as expensive as those from Austria, for example, and were approximately the
same price as imports from the United Kingdom and Spain. 	Id. 	Thus, Commerce’s
explanation that the vast majority of imports into Bulgaria, Romania, and Mexico 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,
Romania, and Mexico 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 22–23. 	Commerce reasons that because there is evidence of Thai
businesses engaged in the manufacture of solar cells (and no such evidence for
Bulgaria, Romania, or Mexico), 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.” 	Third
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Remand Results at 20. 	The only evidence Commerce cites 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 is a Wikipedia article
discussing different uses for nitrogen. See Third Remand Results at 22–23; Canadian
Solar’s Surrogate Value Information, Exhibit SV-10 PD362, CD421, bar codes
348871-01, 348824-16 (July 16, 2016). Setting the reliability of the Wikipedia article
aside, nowhere does the article state that solar cell production requires a different
type or purity of nitrogen or that there is any difference in the price of nitrogen
depending on its use. Canadian Solar’s Surrogate Value Information, Exhibit SV-10
PD362, CD421, bar codes 348871-01, 348824-16 	(July 16, 2016). 	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.
Lastly, Commerce’s explanation for the discrepancy between Thai import data
and ITC export data is speculative and unsupported by substantial evidence. 	See
Third Remand Results at 13–15, 27–30. 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, 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
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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, 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 Canadian Solar’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.
CONCLUSION
For the foregoing reasons, it is
ORDERED that Commerce’s redetermination of its surrogate value selection
for 	valuing 	Canadian 	Solar’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
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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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