Changzhou Trina Solar Energy Co., Ltd. et al v. United States

Slip Op. 21-2
UNITED STATES COURT OF INTERNATIONAL TRADE
CHANGZHOU TRINA SOLAR ENERGY
CO., LTD. ET AL.,
Plaintiffs and Consolidated
Plaintiffs,
and
JA SOLAR TECHNOLOGY YANGZHOU
CO., LTD. ET AL.,
Plaintiff-Intervenors,
v.
UNITED STATES,
Defendant,
and
SOLARWORLD AMERICAS, INC. ET AL.,
Defendant-Intervenor and
Consolidated Defendant-
Intervenor.
Before: Claire R. Kelly, Judge
Consol. Court No. 18-00176
OPINION AND ORDER
[Sustaining in part and remanding in part the results of Commerce’s remand
redetermination in the fourth administrative review of the antidumping duty order
covering 	crystalline 	silicon 	photovoltaic 	cells, 	whether 	or 	not 	assembled 	into
modules.]
Dated: January 4, 2021
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Robert G. Gosselink and Jonathan M. Freed, Trade Pacific, PLLC, of Washington,
DC, for plaintiff.
Jeffrey S. Grimson, Sarah M. Wyss, and Bryan P. Cenko, Mowry & Grimson, PLLC,
of Washington, DC, for consolidated plaintiffs and plaintiff-intervenors JA Solar
Technology Yangzhou Co., Ltd., Shanghai JA Solar Technology Co., Ltd. and JingAo
Solar Co., Ltd.
Timothy C. Brightbill, Laura El-Sabaawi, and Usha Neelakantan, Wiley Rein, LLP,
of Washington, DC, for consolidated plaintiff and defendant-intervenor SolarWorld
Americas, Inc.
Tara K. Hogan, Assistant Director, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice, of Washington, DC, for defendant. Also on the brief was
Jeffrey Bossert Clark, Acting Assistant Attorney General, and Jeanne E. Davidson,
Director. 	Of Counsel on the brief was Ian McInerney, Office of Trade Enforcement
and Compliance, U.S. Department of Commerce, of Washington, DC.
Kelly, 	Judge: 	Before 	the 	court 	for 	review 	is 	the 	U.S. 	Department 	of
Commerce’s (“Commerce”) remand redetermination filed pursuant to the court’s
order in Changzhou Trina Solar Energy Co. v. United States, 44 CIT __, __, 450 F.
Supp. 3d 1301, 1317–18 (2020) (“Changzhou I”). 	See Final Results of Remand
Redetermination, Aug. 7, 2020, ECF No. 91-1 (“Remand Results”). In Changzhou I,
the court remanded Commerce’s decision to value international freight expenses
using Maersk Line (“Maersk”) rate quotes. 	See Changzhou I, 44 CIT at __, 450 F.
Supp. 3d at 1312–13. Moreover, the court remanded Commerce’s refusal to increase
Changzhou Trina Solar Energy Co., Ltd. et al.’s 1 (“Trina”) export price (or constructed
1 Changzhou Trina Solar Energy Co., Ltd., Trina Solar (Changzhou) Science &
Technology Co., Ltd., Yancheng Trina Solar Energy Technology Co., Ltd., Changzhou
Trina Solar Yabang Energy Co., Ltd., Turpan Trina Solar Energy Co., Ltd., Hubei
Trina Solar Energy Co., Ltd., and Trina Solar (Hefei) Science & Technology Co., Ltd
are referred to, collectively, as “Trina.”
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export price) (“U.S. Price”) by the amount of the countervailing duty (“CVD”) imposed
to 	offset 	the 	benefit 	conferred 	to 	manufacturers 	and 	exporters 	of 	the 	subject
merchandise by the Export Import Bank of China’s (“Ex-Im Bank”) Export Buyer’s
Credit Program (“Credit Program”) in the concurrent administrative review of the
companion CVD Order (“companion CVD review”). See id. at 1307–12.
On remand, Commerce continues to rely on Maersk data to value Trina’s
international freight expenses. 	See Remand Results at 4–17. 	Under respectful
protest, 2 Commerce applies the statutory adjustment to Trina’s U.S. Price. 	See
Remand Results at 17–19. 	For the following reasons, Commerce’s redetermination
is remanded in part and sustained in part.
BACKGROUND
The court presumes familiarity with the facts of this case, as set out in the
previous opinion ordering remand to Commerce, and now recounts the facts relevant
to the court’s review of the Remand Results. See Changzhou I, 44 CIT at __, 450 F.
Supp. 3d at 1304–07. On July 27, 2018, Commerce published its final determination
in the fourth administrative review of the antidumping duty (“ADD”) order covering
crystalline silicon photovoltaic cells, whether or not assembled into modules (“solar
cells” or “solar panels”), from the People’s Republic of China (“PRC” or “China”). See
Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From
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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the [PRC], 83 Fed. Reg. 35,616 (Dep’t Commerce July 27, 2018) (final results of [ADD]
admin. review and final determination of no shipments; 2015–2016) (“Final Results”)
and accompanying Issues and Decisions Memo. for the [Final Results], A-570-979,
(July 11, 2018), ECF No. 36-5 (“Final Decision Memo”).
Given that Commerce considers the PRC to be a nonmarket economy (“NME”),
when calculating Trina’s dumping margin, Commerce determined the normal value
of Trina’s entries of subject merchandise by using data from a surrogate market
economy country (“surrogate country”) at a comparable level of economic development
to 	value 	the 	factors 	utilized 	to 	produce 	the 	subject 	merchandise 	(“factors 	of
production” or “FOPs”). See Section 773(c)(4) of the Tariff Act of 1930, as amended,
19 U.S.C. § 1677b(c)(4) (2018). 3 Commerce chose Thailand as the primary surrogate
country. 	See SolarWorld Case Br. at 15, Feb. 28, 2018, PD 394, bar code 3678213-
01. 4 Commerce compared the normal value of the subject merchandise to Trina’s U.S.
Price, and its final determination yielded a weighted average dumping margin of
15.85 percent for Trina. See Final Results, 83 Fed. Reg. at 35,618.
3 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.
4 On November 9, 2018, Defendant submitted indices to the confidential and public
records underlying Commerce’s Final Results. 	These indices are located on the
docket at ECF Nos. 36-2 & -3 and 36-4, respectively. 	All further references in this
opinion to administrative record documents are identified by the numbers assigned
by Commerce in those indices and preceded by “PD” and “CD” to denote public or
confidential documents.
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Trina, as well as JA Solar Technology Yangzhou Co., Ltd., Shanghai JA Solar
Technology Co., Ltd. and JingAo Solar Co., Ltd. (collectively, “JA Solar”), and
SolarWorld Americas, Inc. (“SolarWorld”) appealed to this court and challenged
various aspects of Commerce’s final determination. 	See Pl. [Trina’s] 56.2 Mot. J.
Agency R., Feb. 15, 2019, ECF No. 41-1 (“Trina’s Moving Br.”); Consol. Pls.’ & Pl.-
Intervenors’ 56.2 Mot. J. Agency R., Feb. 15, 2019, ECF No. 43-1 (“JA Solar’s Moving
Br.”); Def.-Intervenor and Consol. Def.-Intervenors’ [SolarWorld’s] 56.2 Mot. J.
Agency. R., Feb. 15, 2019, ECF No. 44-2 (“SolarWorld’s Moving Br.”). Trina and JA
Solar challenged Commerce’s refusal to increase Trina’s U.S. Price to account for the
5.46 percent ad valorem CVD rate it imposed, based on facts available with an
adverse inference (“adverse facts available” or “AFA”), 5 on the subject merchandise
in the companion CVD review. See Trina’s Moving Br. at 4–9; JA Solar’s Moving Br.
at 5–6; Final Decision Memo at 17–20; Crystalline Silicon Photovoltaic Cells,
Whether or Not Assembled Into Modules, From the [PRC], 82 Fed. Reg. 32,678 (Dep’t
Commerce July 17, 2017) (final results of [CVD] admin. review, and partial rescission
of [CVD] admin. review; 2014) (“3rd CVD AR”) and accompanying Issues and
Decisions Memo. for [3rd CVD AR] at Cmts. 1–2, C-570-980, (July 10, 2017), available
5 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 19 U.S.C. § 1677e(a)–(b). 	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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at https://enforcement.trade.gov/frn/summary/prc/2017-14957-1.pdf (last visited Dec.
28, 2020) (“3rd CVD AR IDM”).
With respect to its calculation of normal value, Trina and JA Solar challenged
Commerce’s decision to use Maersk data to value Trina’s international freight
expenses and refusal to exclude Thai import data with zero quantities when
calculating surrogate values. See Trina’s Moving Br. at 10–21; JA Solar’s Moving Br.
at 5–6. 	SolarWorld challenged Commerce’s selection of unconsolidated financial
statements 	from 	KCE 	Electronics 	Public 	Company 	Limited 	(“KCE”) 	to 	derive
surrogate financial ratios and Commerce’s decision to value Trina’s nitrogen input
using Mexican import data. See SolarWorld’s Moving Br. at 7–18.
On May 13, 2020, the court issued Changzhou I, where it sustained in part
Commerce’s final determination. See Changzhou I, 44 CIT at __, 450 F. Supp. 3d at
1301–18. 	Namely, the court sustained: Commerce’s inclusion of zero quantity Thai
import data when calculating surrogate values; Commerce’s selection of KCE’s
statements to derive surrogate financial ratios; and Commerce’s decision to use
Mexican import data to value Trina’s nitrogen inputs when determining the normal
value of Trina’s entries of subject merchandise. See id. at 1313–17.
However the court remanded for further explanation or reconsideration,
Commerce’s refusal to increase Trina’s U.S. Price to account for the AFA CVD rate
imposed to offset the benefit conferred to producers and manufacturers of the subject
merchandise by the Credit Program in 3rd CVD AR. See Changzhou I, 44 CIT at __,
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450 F. Supp. 3d at 1307–13, 1317. The court held that Commerce did not support its
finding that the Credit Program was never determined to be an export subsidy in 3rd
CVD AR solely on the fact that its decision to countervail the Credit Program there
was based on AFA, because AFA still requires a record-based determination. See id.
at 1308–09. Moreover, the court noted that descriptions of the Credit Program in 3rd
CVD AR demonstrated that Commerce found the program to be export contingent.
See id. at 1310. With respect to Commerce’s selection of Maersk data to value Trina’s
international freight expenses, the court noted that Commerce’s justifications for
relying on the Maersk data were based on the mistaken observation that data from
Xeneta AS (“Xeneta”)—a source for freight rates Commerce weighed the Maersk data
against—included handling charges. See id. at 1312–13.
On August 7, 2020, Commerce issued its remand redetermination. 	See
generally Remand Results. 	Although Commerce conceded the Xeneta data was
submitted without handling charges, Commerce continued to rely on the Maersk data
to value international freight rates. See Remand Results at 4–17. Under respectful
protest, Commerce applied the statutory adjustment to Trina’s U.S. Price to account
for the AFA CVD rate imposed in the companion CVD review. See Remand Results
at 17–19.
JURISDICTION AND STANDARD OF REVIEW
The court has jurisdiction pursuant to 19 U.S.C. § 1516a(a)(2)(B)(iii) and 28
U.S.C. § 1581(c) (2018), which grant the Court authority to review actions contesting
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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).
DISCUSSION
I. 	International Freight Expenses
Although Commerce now concedes that both data sets properly exclude
brokerage and handling expenses, 6 Commerce maintains that the Maersk data is
more specific to Trina’s experience than the Xeneta data because it reflects the type
of product and shipping container that Trina used. See Remand Results at 4–8. Trina
contends that the record continues to contradict Commerce’s conclusion. See Remand
Results at 8–11. Commerce’s determination is remanded for further consideration.
When valuing a respondent’s FOPs and expenses, Commerce must use the
“best available information regarding the values of such factors in a market economy
country or countries considered to be appropriate by [Commerce].” 	19 U.S.C.
6 As a threshold matter, Commerce previously determined the Maersk data was
better 	than 	the 	Xeneta 	data 	because 	Maersk 	data 	was 	adjustable 	to 	exclude
brokerage and handling charges. See Final Decision Memo at 30. Commerce found
that the Xeneta data was not adjustable and would lead to double counting for these
charges. 	See id. 	The court held that Commerce’s conclusion was not supported by
the record, which showed that both sets of data excluded brokerage and handling
charges. 	See Changzhou I, 44 CIT at __, 450 F. Supp. 3d at 1312–13. 	On remand,
Commerce agrees that it was incorrect to state that the Xeneta data failed to account
for brokerage and handling charges. See Remand Results at 5. Nonetheless, on other
grounds, Commerce continues to find that the Maersk data is superior to the Xeneta
data. See id.
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§ 1677b(c)(1). 	Commerce has broad discretion to decide what constitutes “the best
available information,” as the phrase is not statutorily defined. See QVD Food Co. v.
United States, 658 F.3d 1318, 1323 (Fed. Cir. 2011) (“QVD Food Co.”). However, the
agency must ground its selection in the overall purpose of the statute, which is to
calculate accurate dumping margins. See Rhone Poulenc, Inc. v. United States, 899
F.2d 1185, 1191 (Fed. Cir. 1990); see also Parkdale Int’l. v. United States, 475 F.3d
1375, 1380 (Fed. Cir. 2007).
Commerce selects the best available information by evaluating data sources
based on their: (1) specificity to the input; (2) tax and import duty exclusivity; (3)
contemporaneity with the period of review; (4) representativeness of a broad market
average; and (5) public availability. See Import Admin., U.S. Dep’t Commerce, Non-
Market Econ. Surrogate Country Selection Process, Policy Bulletin 04.1 (Mar. 1,
2004), available at https://enforcement.trade.gov/policy/bull04-1.html (last visited
Dec. 28, 2020); see also Final Decision Memo at 35.
Commerce’s determination that the Maersk data is more specific than the
Xeneta data, and thus more accurate, see Remand Results at 4–8, 11–17, is
unsupported by substantial evidence. 	Commerce conflates two distinct rationales,
each unsupported, in an attempt to justify its determination. 	First, Commerce
concludes that the Maersk data is more specific because the rate is for the shipment
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of electronic goods. 	See Remand Results at 5. 7 	Commerce reasons that electronics
and solar panels are the same for purposes of shipping, and therefore Maersk data
are “more specific to Trina’s experience than the Xeneta rates[,]” which were “not
specific to any product.” 	See Remand Results at 4–5. 	Yet, Commerce does not
address the court’s concern that it does not cite any evidence that shipping electronics
or shipping solar panels is more or less expensive than shipping anything else. See
Changzhou I, 44 CIT at __, 450 F. Supp. 3d at 1313 (“Commerce does not cite record
evidence to support the assumption that shipping solar panels requires special
handling or containers, or incurs special charges, such that the Maersk rates for
electronics would be more specific than rates derived from the Xeneta data.”).
Nothing in the record supports Commerce’s implicit assumption that, for non-
hazardous or nonrefrigerated goods, the type of goods matters for specificity purposes.
Commerce assumes varying costs for shipping different types of goods (i.e., electronics
vs. non-electronics), by conflating its discussion of the costs of shipping particular
types of goods with the costs of shipping in different types of containers. See Remand
Results at 12–13 (noting that the product being shipped can affect the container used
and that different containers have different costs, but subsequently acknowledging
that the different containers are for hazardous and refrigerated goods). 	Different
types of containers may have varying costs, but nothing in the record suggests that
7 Commerce states that the Harmonized Tariff Schedule supports its position that
solar panels are comparable to “electronic goods.” See Remand Results at 5–6.
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solar panels or electronics are shipped in a container distinct from any other non-
hazardous and nonrefrigerated goods.
Commerce’s second basis to prefer the Maersk data focuses on the varying costs
for different types of containers. 	Commerce notes that Maersk requires parties to
identify whether goods are hazardous or require refrigeration. See Remand Results
at 6. Commerce reasons that the Maersk data must therefore reflect rates exclusive
of refrigerated or hazardous shipments. 	See id. 	Yet, Commerce’s rationale for
concluding that the Maersk data is exclusive of refrigerated and hazardous shipments
conflicts with its rationale for concluding the opposite regarding the Xeneta data.
Commerce states:
when 	requesting 	rate 	quotations 	Maersk 	requests 	that 	customers
identify whether a requested shipment contains hazardous goods or
requires refrigeration and there is no indication that the petitioner
identified 	such 	requirements 	in 	the 	Maersk 	rate 	quotations 	it
submitted. By contrast, there is no evidence that the Xeneta data
submitted 	by 	Trina 	distinguishes 	between 	regular 	shipments,
hazardous shipments, and shipments that require refrigeration.
Remand Results at 6. 	Thus, Commerce states that there is no indication that the
petitioners requested quotes for refrigerated or hazardous shipment and assumes
that the lack of information supports the conclusion that the Maersk data did not
include quotes for refrigerated or hazardous materials. See id. It then points to the
lack of information concerning whether the Xeneta quotes were for refrigerated or
hazardous 	materials 	and 	concludes 	that 	the 	Xeneta 	data 	includes 	quotes 	for
refrigerated or hazardous materials. See id. Although it may be reasonable to infer
that Maersk data can be sorted by shipping container while Xeneta data cannot, it is
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not reasonable to assume, without more, that the Maersk data supplied on this record
was exclusive of special charges for refrigerated or hazardous shipping containers. 8
For the first time in the remand redetermination, Commerce highlights that
the Maersk data states that it is for a 40-foot high cube dry container, while the
Xeneta data is for “shipping unknown goods that could be dissimilar to solar panels
and that could require special equipment or handling, unlike solar panels.” 	See
Remand Results at 6–7. 	It is unclear to the court if Commerce is arguing that the
absence of the word “dry” in the Xeneta data indicates either that there are distinct
types of 40-foot high cube containers, or that the Xeneta containers may either be for
refrigerated goods or for hazardous goods because they do not indicate “dry.” 	If the
former, neither the Maersk data nor the Xeneta data on the record indicates that 40-
foot containers are anything but dry. 	In fact, the Xeneta data indicates that there
are three type of containers: 20-foot, 40-foot and 40-foot high cube. 9 See Crystalline
8 As discussed further below, it seems reasonable that shipping containers for
refrigerated or hazardous goods would be more, not less, expensive. Yet, Commerce
assumes that the Xeneta data includes costs for shipping refrigerated or hazardous
goods even though Xeneta rates are less expensive than Maersk rates. See Remand
Results 	at 	6; 	compare 	Trina’s 	Surrogate 	Value 	Freight 	Submission 	at 	Ex. 	2
(summarizing the Xeneta freight rates), with Petitioner’s Submission of Surrogate
Values and New Factual Information at Ex. 1, CD 417-426, bar code 3636213-01 (Nov.
2, 2017) (summarizing the Maersk freight rates) (“SolarWorld’s Surrogate Value
Freight Submission”).
9 In contesting the final results Trina represented that the Xeneta data reflects 40-
foot high cube dry containers. See Trina’s Moving Br. at 12. Neither the Defendant
(footnote continued)
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Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules from the [PRC]:
Response to Request for International Freight Surrogate Values [for the 2015-2016
Admin. Review] at Ex. 1, 4, CD 186, bar code 3594073-01 (July 17, 2017) (“Trina’s
Surrogate Value Freight Submission”). If the latter, as explained above, neither the
Maersk data nor the Xeneta data makes clear whether the rates supplied are
inclusive of refrigerated or hazardous goods. 10
Given that Commerce cannot conclude that either data set excludes quotes for
hazardous or refrigerated goods, and that the record lacks support for distinct costs
for shipping electronics, Commerce’s determination is unreasonable in light of the
evidence that detracts from its determination. Commerce uses its unsupported
conclusion regarding container specificity to elide an analysis of route specificity as
well as representativeness, factors which detract from its determination. 	See
Remand Results at 8, 16 (“[T]here is no benefit to including more data in an average
if the data are not specific to Trina’s experience.”)
On 	remand 	Commerce 	must 	address 	evidence 	which 	detracts 	from 	its
determination. First, Commerce does not confront the lack of route specificity in the
nor the Defendant-Intervenor contested that representation. 	Trina continues to
represent in its submissions challenging the remand redetermination that the Xeneta
data reflects 40-foot high cube dry containers. 	See, e.g., Pl. Trina’s Comments on
Final Results of Remand Redetermination at 4, Sept. 8, 2020, ECF No. 93 (“Trina’s
Br.”).
10 For example, even though the Maersk data indicates that it is “dry”, it does not
indicate that it is not also for hazardous goods. There is no evidence on the record to
support a finding that these classifications are mutually exclusive, which is what
Commerce seems to suggest.
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Maersk data. 	See Final Decision Memo at 30; compare Trina’s Surrogate Value
Freight Submission at Exs. 2–3 (showing the routes covered by the Xeneta data), with
Petitioner’s Submission of Surrogate Values and New Factual Information at Ex. 1,
CD 417-426, bar code 3636213-01 (Nov. 2, 2017) (“SolarWorld’s Surrogate Value
Freight Submission”) (showing the routes covered by the Maersk data). Commerce’s
practice is to choose data that is specific to the input in question. The input here is
freight. 	Taken together, the two datasets seem to indicate that a freight rate is a
function of not only the container, but also the route. 	See generally SolarWorld’s
Surrogate Value Freight Submission; Trina’s Surrogate Value Freight Submission.
Commerce’s choice of the Maersk data over the Xeneta data ignores the lack of two
routes used by Trina in the Maersk data. 	See Final Decision Memo at 30; compare
Trina’s Surrogate Value Freight Submission at Exs. 2–3 (showing the routes covered
by the Xeneta data), 	with SolarWorld’s Surrogate Value Freight Submission at Ex.
1 (showing the routes covered by the Maersk data). 	It may be that Commerce can
extrapolate missing route information from the information it has, but if it can do so,
and is doing so, it should say so and say why doing so is reasonable. 11
11 In the Final Decision Memo, Commerce found that it was reasonable to rely on the
Maersk data despite the missing route information because of its concern that for the
Xeneta data, it could not itemize the handling charges, which would lead to double
counting of this charge when Commerce calculated Trina’s net U.S. price. See Final
Decision Memo at 31. Although Commerce now concedes that double counting is not
a concern with the Xeneta data because it does exclude handling charges, it does not
explain 	why 	it 	continues 	to 	be 	reasonable 	to 	extrapolate 	the 	missing 	route
information in the Maersk data even though Trina raised this issue again in its
comments. See generally Remand Results; Trina’s Br. at 12.
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Second, Commerce should also address the comparative representativeness of
the two data sets. Although it is reasonable for Commerce to choose price quotes over
broad data sets in some circumstances, it is not clear to the court why doing so here
is reasonable. 	According to Commerce, the Maersk data here comprises of 32 price
quotes for various port to port combinations “on a few days in the POR.” 	Final
Decision Memo at 31. There is no explanation of how the days were chosen and why
some days are relied on more heavily than others. See, e.g., SolarWorld’s Surrogate
Value Freight Submission at Ex. 1 (there are 15 price quotes from August 5, 2016
and there is one price quote from February 2, 2016). 	Nor is there any explanation
why some port to port combinations have 3 quotes, see, e.g., id. (3 price quotes for
Shanghai to Houston), while other port to port combinations have 1 quote. See, e.g.,
id. (1 price quote for Shanghai to Jacksonville). It may be that the days of the quotes
and 	the 	number 	of 	quotes 	for 	each 	port-to-port 	combination 	provides 	for 	a
representative selection, but Commerce has not explained that it does. 	Commerce
has acknowledged that the Xeneta data “cover the entire POR” and that “methodology
used in compiling the Xeneta data indicates that Xeneta gathers several hundred
thousand rates per month and that before releasing any market information, a
minimum of 4 rates, per route, per day, per equipment, is required.” Final Decision
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Memo at 31. Given the paucity, as well as the randomness of the selection, of quotes
for the Maersk data, some explanation of Commerce’s reasoning is warranted. 12
The differences in the representativeness of the data extend not just to the
selection of specific days and routes, but to the volume of the data supplied, and how
it compares to what Trina actually shipped. 	According to Trina, the Maersk price
quotes represent 32 percent of the quantity of shipments by Trina. 13 Conversely, the
Xeneta data reflects a broad market average for the entire POR of all the routes used
by Trina. See Trina’s Surrogate Value Freight Submission at Exs. 1–3. It covers all
of Trina’s shipments. 	See id. 	Of course, it is not the court’s role to choose the best
information available, it is only to ensure that Commerce’s choice was reasonable.
See Fujitsu Gen. v. United States, 88 F.3d 1034, 1043 (Fed. Cir. 1996) (“To survive
judicial 	scrutiny, 	an 	agency's 	construction 	need 	not 	be 	the 	only 	reasonable
interpretation or even the most reasonable interpretation.”). 	But without further
12 Commerce addresses this representativeness problem in the final results by
concluding 	that 	the 	inability 	to 	deduct 	handling 	charges 	in 	the 	Xeneta 	data
nonetheless renders the Maersk data preferable. 	See Final Decision Memo at 31.
Although it now concedes its error with respect to handling charges in its remand
redetermination it does not revisit this acknowledged representativeness flaw except
to say that the broadness of the Xeneta data is undermined by the conclusion that it
may include rates for refrigerated or hazardous goods. See Remand Results at 4–17.
13 Of the total quantity that Trina shipped, Trina calculated that there is no Maersk
data available for 68 percent of that total. See Crystalline Silicon Photovoltaic Cells,
Whether or Not Assembled Into Modules from the [PRC]: [Trina’s] Case Brief [for
2015-2016 Admin. Review] at Enclosure 3, CD 483, bar code 3672048-01 (Feb. 12,
2018). Commerce does not specifically address this assertion, but rather rests on the
broad proposition that breadth of information alone is not preferable when, according
to commerce, the Xeneta price quotes are not as specific as the Maersk. 	See, e.g.,
Remand Results at 8, 16.
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explanation, and in light of record evidence as to the quantity of Trina’s sales
represented by the two potential data sources, the court cannot say that Commerce’s
choice was reasonable.
Finally, Commerce bases its remand determination on its assumption that the
Xeneta data includes refrigerated or hazardous shipping rates. See Remand Results
at 6. 	Yet, nowhere does Commerce address an obvious implication of such an
assumption. 	One would expect that the inclusion of refrigerated or hazardous
shipping rates would render the Xeneta freight rates more expensive than shipping
rates that did not include refrigerated or hazardous containers. Indeed, Trina made
this argument to the agency. See Pl. Trina’s Comments on Final Results of Remand
Redetermination at 8–9, Sept. 8, 2020, ECF No. 93 (“Trina’s Br.”). 14 	Commerce
14 Trina states:
[T]hat the Xeneta freight rates are significantly lower than the Maersk
freight rates undermines Commerce conclusion that the Xeneta data
includes rates for shipping refrigerated and hazardous cargo and the
Maersk data does not. Considering the energy required to control the
temperature of a container and the special handling required to convey
hazardous cargo, it is reasonable to expect that a 40-foot [high cube]
refrigerated container or a 40-foot[] [high cube] container for shipping
hazardous cargo would be more expensive than a 40-foot [high cube] dry
container. Yet, the per-container Maersk rates, with port-to-port costs
ranging from $9,756 to $18,134 per container, are significantly higher
than the Xeneta rates ranging from $893 to $4458 per container. If
Commerce’s finding that the Xeneta dataset might include rates for
refrigerated and hazardous cargo and Maersk dataset does not include
such rates were true, then the opposite should be expected. That
Commerce ignores this fact further demonstrates the absence of any
evidentiary basis for its conclusion.
Trina’s Br. at 8 (citations omitted).
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further assumes that the Maersk data does not include rates for shipping refrigerated
or hazardous items. See Remand Results at 6. And yet, not only is the Maersk data
reflective of rates much higher than the Xeneta data, compare Trina’s Surrogate
Value Freight Submission at Ex. 2 (summarizing the Xeneta freight rates), with
SolarWorld’s Surrogate Value Freight Submission at Ex. 1 (summarizing the Maersk
freight rates), but Trina claims that the Maersk data is reflective of rates much higher
than Maersk data from the prior review. 15 See Remand Results at 11; Trina’s Br. at
6–7. 	It may be that the illogical implications of Commerce’s assumptions can be
perfectly explained by factors known to Commerce and not known to the court. 	If
15 Commerce purports to address this issue, stating that:
Trina 	contends 	that 	the 	average 	per-container 	Maersk 	rates 	are
significantly higher than the Xeneta rates, possibly because the rates
are for shipping hazardous, specialty, or refrigerated goods, and that the
Maersk rates are anomalous when compared to Maersk ocean freight
rates in prior segments of the proceeding. We disagree. First, the record
clearly demonstrates that the Maersk rates are for shipping electronic
goods, not hazardous, specialty, or refrigerated goods. Second, the Court
directed Commerce to explain why we find that the Maersk rates are
more specific to Trina’s experience than Xeneta rates and we have done
so above. Trina has cited to nothing on the record demonstrating that
the 	Maersk 	rates 	were 	miscalculated 	or 	otherwise 	inaccurate.
Commerce has a long history of relying on Maersk ocean freight rates
and as the Court has stated, ‘given Maersk’s prominent position in the
shipping market, Commerce properly considered the Maersk data to be
a reliable world market price.’ Thus, Commerce has no reason to doubt
the reliability or accuracy of the Maersk data.
Remand Results at 15 (citations omitted). 	This explanation falls short. 	Commerce
does not offer any reason for the price discrepancy between the Maersk data for this
review and the Maersk data from the prior review.
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that is the case Commerce should further explain, or it should reconsider its
determination.
II. 	Adjusting Trina’s Net U.S. Price
When calculating the dumping margin, Commerce is statutorily required to
increase 	the 	U.S. 	Price 	by 	the 	amount 	of 	any 	CVD 	imposed 	on 	the 	subject
merchandise to offset an export subsidy. See 19 U.S.C. § 1677a(c)(1)(C). On remand,
Commerce increases Trina’s U.S. price by the amount of the CVD imposed on the
Credit Program in accordance with the court’s instruction. 	See Remand Results at
19.
As explained by the Court of Appeals for the Federal Circuit, that Commerce
uses AFA to reach a decision to countervail a program “does not obviate Commerce’s
obligation to make the ‘applicable determination’” and to support its determination
with substantial evidence. 	Changzhou Trina Solar Energy Co. v. United States,
Appeals No. 20-1004 at 16–17 Fed. Cir. Sept. 3, 2020) (“Changzhou II”) (citations
omitted); see also 19 U.S.C. §§ 1677e(a), 1671, 1677(5), (5A), 1516a(b)(1)(B)(i). Based
on the fact that the Credit Program provides loan support through export buyer’s
credits, it is reasonable for Commerce to conclude in this proceeding that the Credit
Program 	was 	determined 	to 	be 	specific 	based 	on 	export 	contingency—in 	fact,
Commerce could only conclude that the Credit Program is an export subsidy.
Changzhou I, 44 CIT __, Slip Op. 20-64, at 13–14 (May 13, 2020). Commerce’s reliance
on AFA does not undermine a finding that the Credit Program was an export subsidy.
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See 	Changzhou 	II, 	Appeals 	No. 	20-1004 	at 	16–17. 	As 	such, 	Commerce’s
determination is sustained.
CONCLUSION
For the foregoing reasons, it is
ORDERED that Commerce’s decision to continue to rely on the Maersk data
as a surrogate value is remanded for further consideration; and it is further
ORDERED that Commerce’s decision to increase Trina’s net U.S. price is
sustained; and it is further
ORDERED that Commerce shall file its remand redetermination with the
court within 90 days of this date; and it is further
ORDERED that the parties shall have 30 days thereafter to file comments on
the remand redetermination; and it is further
ORDERED that the parties shall have 30 days to file their replies to
comments on the remand redetermination; 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 filing of its remand redetermination.
/s/ Claire R. Kelly
Claire R. Kelly, Judge
Dated: 	January 4, 2021
New York, New York
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