Risen Energy Co., Ltd. v. United States

Slip Op. 21-55
UNITED STATES COURT OF INTERNATIONAL TRADE
RISEN ENERGY CO., LTD.,
Plaintiff,
and
SUNPOWER MANUFACTURING
OREGON, LLC,
Consolidated Plaintiff,
and
SHANGHAI BYD CO., LTD. ET AL.,
Plaintiff-Intervenors,
v.
UNITED STATES,
Defendant,
and
SUNPOWER MANUFACTURING
OREGON, LLC ET AL.,
Defendant-Intervenor and
Consolidated Defendant-
Intervenors.
Before: Claire R. Kelly, Judge
Consol. Court No. 19-00153
OPINION
[Sustaining the U.S. Department of Commerce’s remand redetermination in the fifth
administrative 	review 	of 	the 	antidumping 	duty 	order 	on 	crystalline 	silicon
photovoltaic cells, whether or not assembled into modules from the People’s Republic
of China.]
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Dated: May 5, 2021
Gregory S. Menegaz, Alexandra H. Salzmanm, and J. Kevin Horgan, deKieffer &
Horgan, PLLC, of Washington, DC, for plaintiff.
Timothy C. Brightbill, Laura El-Sabaawi, and Enbar Toledano, Wiley Rein, LLP, of
Washington, DC, for consolidated plaintiff and defendant-intervenor SunPower
Manufacturing Oregon, LLC.
Craig A. Lewis, Jonathan T. Stoel, Nicholas A. Sparks, 	Michael G. Jacobson, and
Lindsay 	K. 	Brown, 	Hogan 	Lovells 	US 	LLP, 	of 	Washington, 	DC, 	for 	plaintiff-
intervenors Canadian Solar, Inc., Canadian Solar International Limited, Canadian
Solar Manufacturing (Changshu), Inc., Canadian Solar Manufacturing (Luoyang),
Inc., CSI Cells Co., Ltd., CSI-GCL Solar Manufacturing (YanCheng) Co., Ltd.,
Canadian Solar (USA), Inc. and Shanghai BYD Co., Ltd.
Neil R. Ellis, Richard L.A. Weiner, Rajib Pal, Shawn M. Higgins, and Justin R.
Becker, Sidley Austin, LLP, of Washington, DC, for plaintiff-intervenors Yingli Green
Energy Holding Co., Ltd., Baoding Tianwei Yingli New Energy Resources Co., Ltd.,
Tianjin Yingli New Energy Resources Co., Ltd., Hengshui Yingli New Energy
Resources Co., Ltd., Lixian Yingli New Energy Resources Co., Ltd., Baoding Jiasheng
Photovoltaic Technology Co., Ltd., Beijing Tianneng Yingli New Energy Resources
Co., Ltd., Hainan Yingli New Energy Resources Co., Ltd., Shenzhen Yingli New
Energy Resources Co., Ltd., Yingli Green Energy International Trading Co., Ltd., and
Yingli Energy (China) Co., Ltd.
Joshua E. Kurland, Trial Attorney, Commercial Litigation Branch, U.S. Department
of Justice, of Washington, DC, for defendant. Also on the briefs were Ethan P. Davis
and Brian M. Boynton, Acting Assistant Attorneys General, Jeanne E. Davidson,
Director, and Reginald T. Blades, Jr., Assistant Director. 	Of counsels were Ayat
Mujais and Leslie M. Lewis, Attorney, Office of the Chief Counsel for Trade
Enforcement & Compliance, U.S. Department of Commerce, of Washington, DC.
Ned H. Marshak, Dharmendra N. Choudhary, and Jordan C. Kahn, Grunfeld,
Desiderio, Lebowitz, Silverman & Klestadt LLP, of New York, NY, and Washington,
DC, for consolidated defendant-intervenors Chint Solar (Zhejiang) Co., Ltd., Chint
Energy (Haining) Co., Ltd., Chint Solar (Jiuquan) Co., Ltd., and Chint Solar (Hong
Kong) Company Limited.
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Kelly, 	Judge: 	Before 	the 	court 	is 	the 	U.S. 	Department 	of 	Commerce’s
(“Commerce”) remand redetermination filed pursuant to the court’s order in Risen
Energy Co. v. United States, 44 CIT __, 477 F. Supp. 3d 1332 (2020) (“Risen I”). See
also Final Results of Redetermination Pursuant to Ct. Order, Jan. 27, 2021, ECF No.
86-1 (“Remand Results”). 	In Risen I, the court sustained in part and remanded in
part Commerce’s final determination in the fifth administrative review of the
antidumping duty (“ADD”) order on crystalline silicon photovoltaic cells, whether or
not assembled into modules (“solar cells”) from the People’s Republic of China (“PRC”
or “China”). 	See Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled
Into Modules, From the [PRC], 84 Fed. Reg. 36,886 (Dep’t Commerce July 30, 2019)
(final results of [ADD] admin. review and final determination of no shipments; 2016–
2017) (“Final Results”) and accompanying Issues and Decisions Memo for the [Final
Results], A-570-979, (July 24, 2019), ECF No. 33-2 (“Final Decision Memo”).
The court ordered Commerce to 1) reconsider or explain application of partial
facts otherwise available with an adverse inference (“AFA”) 1 to Risen, and 2)
incorporate, to the extent required by law, any adjustments to Risen’s dumping
1 Parties and Commerce sometimes use the shorthand “AFA” or “adverse facts
available” to refer to Commerce's reliance on facts otherwise available with an
adverse inference to reach a final determination. AFA, however, encompasses a two-
part inquiry established by statute. 	See Section 776 of the Tariff Act of 1930, as
amended, 19 U.S.C. § 1677e(a)–(b) (2018). 	It first requires Commerce to identify
information missing from the record, and second, to explain how a party failed to
cooperate to the best of its ability as to warrant the use of an adverse inference when
“selecting among the facts otherwise available.” Id.
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margin resulting from the remand redetermination into its calculation of the separate
rate or separate rates applicable to individual respondents. 	See Risen I, 44 CIT at
__, 477 F. Supp. 3d at 1348. 	In its Remand Results, Commerce, under respectful
protest, 2 decides not to apply an adverse inference in selecting from among the facts
otherwise available in calculating Risen’s dumping margin. See Remand Results at
1–2. 	Commerce instead “average[s] consumption rates reported by Risen for the
relevant control numbers in place of the unreported [factors of production (“FOP”)]
consumption rates.” Id. at 4. No party filed comments on the Remand Results with
the court. 	Defendant requests that this court sustain Commerce’s remand results.
See Defendant’s Request to Sustain [Remand Results] at 1–2, Mar. 26, 2021, ECF No.
88 (“Def.’s Br.”). For the reasons that follow, the court sustains Commerce’s Remand
Results.
BACKGROUND
The court presumes familiarity with the facts of this case as set out in its
previous opinion ordering remand to Commerce, and now recounts those relevant to
the court’s review of the Remand Results. See Risen I, 44 CIT at __, 477 F. Supp. 3d
at 1337–39. 	In 2012, Commerce published the ADD order covering solar cells from
China. 	See 	generally 	Crystalline 	Silicon 	Photovoltaic 	Cells, 	Whether 	or 	Not
Assembled Into Modules, From the [PRC], 77 Fed. Reg. 73,018 (Dep’t Commerce Dec.
2 By adopting a position forced upon it by the Court “under protest,” Commerce
preserves its right to appeal. 	See Viraj Grp., Ltd. v. United States, 343 F.3d 1371,
1376 (Fed. Cir. 2003).
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7, 2012) (amended final determination of sales at less than fair value, and [ADD]
order). On February 23, 2018, in response to timely requests, Commerce initiated its
fifth administrative review of the ADD Order. 	See generally Initiation of [ADD] &
Countervailing Duty Admin. Reviews, 83 Fed. Reg. 8,058 (Dep't Commerce Feb. 23,
2018). Commerce chose Risen and Chint Solar Zhejiang Co., Ltd. (“Chint Solar”) as
mandatory respondents. See Resp’t Selection Memo [for 2016-2017 Admin. Review]
at 6, A-570-979, PD 79, bar code 3682915-01 (Mar. 15, 2018) (selection of Risen as
mandatory respondent); 3 Second Resp’t Selection Memo [for 2016-2017 Admin.
Review] at 1, A-570-979, PD 147, bar code 3696673-01 (Apr. 19, 2018) (selection of
Chint Solar as additional mandatory respondent); Crystalline Silicon Photovoltaic
Cells, Whether or Not Assembled Into Modules, From the [PRC], 83 Fed. Reg. 67,222
(Dep’t Commerce Dec. 28, 2018) (prelim. results of [ADD] admin. review and prelim.
determination of no shipments; 2016–2017) (“Prelim. Results”) and accompanying
3 On November 12, 2019, Defendant submitted indices to the confidential and public
administrative records underlying Commerce's final determination. 	These indices
are located on the docket at ECF No. 33-3–4, respectively. Subsequently, on February
1, 2021, Defendant submitted indices to the confidential and public administrative
record underlying Commerce’s remand redetermination. 	These indices are located
on the docket at ECF No. 87-2–3, respectively. All further references in this opinion
to documents from the initial administrative record are identified by the numbers
assigned by Commerce in those indices and preceded by “PD” and “CD” to denote
public or confidential documents. All references to documents in the administrative
record 	underlying 	the 	remand 	redetermination 	are 	similarly 	identified 	by 	the
numbers assigned by Commerce in those indices and preceded by “PRR” and “CRR”
to denote public or confidential documents.
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Decision Memo for the [Prelim. Results] at 2–3, 7–9, A-570-979, PD 497, bar code
3785207-01 (Dec. 20, 2018) (“Prelim. Decision Memo”).
Plaintiff Risen and Plaintiff-Intervenors challenged Commerce’s decision to
apply partial AFA when calculating the normal value of Risen’s entries of subject
merchandise to fill gaps in the record caused by the refusal of certain unaffiliated
suppliers to cooperate with Commerce’s investigation. 	See, e.g., Pl. [Risen’s] Memo
Supp. Mot. J. Agency R. at 1–2, 14–34, Mar. 26, 2020, ECF No. 40-2; Pl.-Intervenors’
[Canadian Solar & Shanghai] Memo Supp. Mot. J. Agency R. at 2–3, 9–18, Mar. 26,
2020, ECF No. 42-1. In Risen I, the court remanded on the issue of applying partial
AFA to Risen. See Risen I, 44 CIT at __, 477 F. Supp. 3d at 1348.
In its Remand Results, Commerce reconsiders its application of partial AFA to
Risen, and under respectful protest, Commerce declines to apply partial AFA, and
instead relies on consumption rates provided by Risen to fill in the missing FOP
consumption rates. 	See Remand Results at 1–2, 4. 	No party filed comments to the
Remand Results. 	Defendant requests that this court sustain the Remand Results.
See Def.’s Br. at 1–2.
JURISDICTION AND STANDARD OF REVIEW
This court has jurisdiction pursuant to Section 516A of the Tariff Act of 1930,
as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2018) 4 and 28 U.S.C. § 1581(c) (2018), 5
4 Further citations to the Tariff Act of 1930, as amended, are to the relevant
provisions of Title 19 of the U.S. Code, 2018 edition.
5 Further citations to Title 28 of the U.S. Code are to the 2018 edition.
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which grant the court authority to review actions contesting the final determination
in an administrative review of an ADD 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
On remand, Commerce reconsiders its decision and, under respectful protest,
decides not to apply partial AFA to Risen when calculating the normal value of
Risen’s entries of subject merchandise to fill gaps in the record (missing FOP
consumption rates) that exist because of uncooperative, unaffiliated suppliers. 	See
Remand Results at 1–2. 	Rather, Commerce averages the consumption rates that
Risen 	provided 	and 	uses 	the 	calculated 	average 	to 	fill 	in 	the 	missing 	FOP
consumption rates. 	See id. at 4. 	No party filed comments on the Remand Results,
and Defendant requested that the court affirm the remand redetermination. 	See
Def.’s Br. at 1–2.
To determine the normal value of the subject merchandise in NME countries
Commerce solicits input data and surrogate values for those inputs from the parties.
See e.g., Globe Metallurgical, Inc. v. United States, 32 CIT 1070, 1075 (2008). Where,
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despite its solicitations, information necessary to calculate normal value is not
available on the record, Commerce uses “facts otherwise available” in place of the
missing information. See 19 U.S.C. § 1677e(a)(1). 6 If Commerce further “finds that
an interested party has failed to cooperate by not acting to the best of its ability to
comply with a request for information,” Commerce may apply “an inference that is
adverse to the interests of that party in selecting from among the facts otherwise
available[.]” 	Id. § 1677e(b)(1). 	However, under certain circumstances, Commerce
may incorporate an adverse inference under § 1677e(a) in calculating a cooperative
respondent’s margin, if doing so will yield an accurate rate, promote cooperation, and
thwart duty evasion. See Mueller Comercial de Mexico S. De R.L. de C.V. v. United
States, 753 F.3d 1227, 1232–36 (Fed. Cir. 2014) (“Mueller”). When analyzing the use
6 19 U.S.C. § 1677e(a) also applies where an interested party or any other person—
(A) withholds information that has been requested by the administering
authority or the Commission under this title,
(B) fails to provide such information by the deadlines for submission of the
information or in the form and manner requested, subject to subsections (c)(1)
and (e) of section 782 [19 USCS § 1677m(c)(1) and (e)],
(C) significantly impedes a proceeding under this title, or
(D) provides such information but the information cannot be verified as
provided in section 782(i) [19 USCS § 1677m(i)], the administering authority
and the Commission shall, subject to section 782(d) [19 USCS § 1677m(d)], use
the facts otherwise available in reaching the applicable determination under
this title.
19 U.S.C. § 1677e(a)(2).
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of an adverse inference as a part of a § 1677e(a) analysis, the predominant concern
must be accuracy. See id. at 1233.
Commerce’s decision is supported by substantial evidence and complies with
the court’s remand order. Commerce’s use of facts otherwise available—namely, the
consumption rates provided by Risen—comports with the relevant statute that
instructs Commerce to refer to such facts to fill in missing information. See 19 U.S.C.
§ 1677e(a)(1). 	Moreover, Commerce’s decision not to use partial AFA to calculate
Risen’s dumping margin is consistent with the directive from Mueller that accuracy
must be the driving force behind a decision to draw an adverse inference. 	See
Mueller, 753 F.3d at 1233. 	As the court noted in its opinion ordering remand,
Commerce, in its final results, did not point to any evidence that applying an adverse
inference to Risen, and thus applying the highest FOP consumption rates on the
record, would thwart duty evasion, promote cooperation or lead to calculation of an
accurate dumping margin. 	See Risen I, 44 CIT at __, 477 F. Supp. 3d at 1343–44. 7
Commerce now explains the method it uses on remand and no party challenges
Commerce’s results or its chosen methodology.
7 The court also questioned whether application of the highest FOP on the record
furthered 	Commerce’s 	policy 	objectives 	of 	encouraging 	cooperation 	in 	its
investigations by interested parties. 	See Risen I, 44 CIT at __, 477 F. Supp. 3d at
1342–43.
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CONCLUSION
For the foregoing reasons, Commerce’s Remand Results are supported by
substantial evidence and comply with the court’s order in Risen I, and are therefore
sustained. Judgment will enter accordingly.
/s/ Claire R. Kelly
Claire R. Kelly, Judge
Dated: 	May 5, 2021
New York, New York
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