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

Slip Op. 21-98
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-
Intervenors.
Before: Claire R. Kelly, Judge
Consol. Court No. 18-00176
OPINION AND ORDER
[Sustaining the U.S. Department of Commerce’s second remand redetermination in
the fourth administrative review of the antidumping duty order covering crystalline
silicon photovoltaic cells, whether or not assembled into modules.]
Dated: August 10, 2021
Robert G. Gosselink and Jonathan M. Freed, Trade Pacific, PLLC, of Washington,
DC, for plaintiffs.
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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.
Tara 	K. 	Hogan, 	Assistant 	Director, 	and 	Joshua 	E. 	Kurland, 	Trial 	Attorney,
Commercial 	Litigation 	Branch, 	Civil 	Division, 	U.S. 	Department 	of Justice, 	of
Washington, DC, for defendant. 	Also on the brief was Brian M. Boynton, Acting
Assistant Attorney General, and Jeanne E. Davidson, Director. 	Of Counsel on the
brief 	was 	Leslie 	M. 	Lewis, 	Attorney, 	Office 	of 	the 	Chief 	Counsel 	for 	Trade
Enforcement and Compliance, U.S. Department of Commerce, of Washington, DC.
Kelly, 	Judge: 	Before 	the 	court 	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, 45 CIT __, __, 492 F. Supp. 3d
1322 (Jan. 4, 2021) (“Changzhou II”). See Final Results of Remand Redetermination
Pursuant to Court Remand, Apr. 5, 2021, ECF No. 105-1 (“Second Remand Results”).
In 	Changzhou 	II, 	the 	court 	remanded 	Commerce’s 	decision 	to 	value 	Trina’s1
international freight expenses using Maersk Line (“Maersk”) rate quotes. Chanzhou
II, 45 CIT at __, 492 F. Supp. 3d at 1332; see also Changzhou Trina Solar Energy Co.
v. United States, 44 CIT __, __, 450 F. Supp. 3d 1301, 1312–13 (May 13, 2020)
(“Changzhou I”).
On remand, Commerce abandons its reliance on Maersk data to value Trina’s
international freight expenses, and instead uses data from Xenata XS (“Xenata”). See
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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Second Remand Results at 6. 	Both Trina and consolidated plaintiffs and plaintiff-
intervenors JA Solar Technology Yangzhou Co., Ltd., Shanghai JA Solar Technology
Co., Ltd., and JingAo Solar Co., Ltd. (collectively, “JA Solar”) (Trina and JA Solar are
collectively referred to as “Plaintiff”) submit comments agreeing with the Second
Remand 	Results. 	See 	Plt. 	Trina’s 	Cmts. 	on 	Final 	Results 	of 	Remand
Redetermination, May 5, 2021, ECF No. 108 (“Trina Br.”); Cmts. On Final Results of
Remand Redetermination of [JA Solar], May 5, 2021, ECF No. 107 (“JA Solar Br.”).
Defendant United States requests that the court sustain the Second Remand Results.
See Def.’s Request to Sustain Remand Redetermination, June 3, 2021, ECF No. 110
(“Def. Br.”). 	For the following reasons, the court sustains Commerce’s Second
Remand Results.
BACKGROUND
The court presumes familiarity with the facts of this case as set out in its
previous opinions ordering remand to Commerce, and recounts only those facts
relevant to the court’s review of the Second Remand Results. 	See Changzhou II, 45
CIT at __, 492 F. Supp. 3d at 1325–32; see also Changzhou I, 44 CIT at __, 450 F.
Supp. 3d at 1304–07, 1312–13.
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 (“China”). See Crystalline Silicon
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Photovoltaic Cells, Whether or Not Assembled Into Modules, From [China], 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., A-570-979, (July 11, 2018), ECF No. 36-
5 (“Final Decision Memo”). In Changzhou I, the court held that Commerce’s decision
to 	use 	Maersk 	data 	in 	calculating 	Trina’s 	international 	freight 	expenses 	was
unsupported 	by 	substantial 	evidence 	because 	record 	evidence 	contradicted
Commerce’s finding that handling charges could be removed from the Maersk data
but not the Xeneta data and remanded for Commerce to further explain or reconsider
its determination that the Maersk data is more specific than the Xeneta data.2
Changzhou I, 44 CIT at __, 450 F. Supp. 3d at 1313. On remand, Commerce continued
to use Maersk data to calculate Trina’s international freight expenses. 	See Final
Results of Remand Redetermination, p. 4–8, Aug. 7, 2020, ECF No. 91-1 (“First
Remand Results”). 	Commerce explained that it continued to use Maersk data
because although both the Maersk and Xeneta data properly excluded brokerage and
handling charges, Maersk specifically offered containers for shipping electronics,
while Xeneta’s rates did not distinguish “between regular shipments, hazardous
shipments, and shipments that require refrigeration.” Id. at 5–6.
2 Commerce initially determined the Maersk data was better than the Xeneta data
because Maersk data was adjustable to exclude brokerage and handling charges.
Final Decision Memo at 30. Commerce found that the Xeneta data was not adjustable
and, if used, would lead to double counting for these charges. Id.
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In Changzhou II, the court again held that Commerce’s decision to calculate
Trina’s 	international 	freight 	expense 	using 	Maersk 	data 	was 	unsupported 	by
substantial evidence because the record lacked evidence to support the assumption
that electronic goods are shipped in different types of containers than any other non-
hazardous and non-refrigerated goods. Changzhou II, 45 CIT at __, 492 F. Supp. 3d
at 1328. 	The court further held that Commerce’s conclusion that the Maersk data,
but not the Xeneta data, excluded hazardous and refrigerated goods from the price
was unsupported by record evidence. Id. at 1329. The court remanded to Commerce
for further explanation, specifically identifying several factors that detracted from
Commerce’s determination that the Maersk data was the best available information
to calculate Trina’s international freight costs. Id. at 1329–32. The court noted that
Commerce did not include route specificity in its analysis even though the record
indicated that the cost of freight depended not only on the type of container but also
the route. 	Id. at 1329–30. 	The court also remanded for further explanation of the
comparative representativeness of the Maersk and Xeneta data sets, observing that
the Maersk data was comprised of only 32 price quotes from a few days during the
period of review (“POR”), with nearly half of those quotes on one day, while the Xeneta
data covered the entire POR and was based on several hundred thousand rates per
month. Id. at 1330. Finally, the court remanded to Commerce for further explanation
of its assumption that Xeneta’s rates included prices for hazardous and refrigerated
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goods while Maersk’s rates did not, as one would expect such shipments to be more
expensive and Xeneta’s prices were far lower than Maersk’s. Id. at 1331–32.
On remand, Commerce determines that Xeneta’s data is the best available
information to value Trina’s international freight costs. 	Second Remand Results at
6–8. 	All parties request that the court sustain Commerce’s findings. 	See Trina Br.
at 2; JA Solar Br. at 1–3; Def. Br. at 1–2.
JURISDICTION AND STANDARD OF REVIEW
The 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) 3 and 28 U.S.C. § 1581(c) (2018),
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).
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.
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DISCUSSION
All parties ask the court to sustain Commerce’s Second Remand Results. See
Trina Br. at 2; JA Solar Br. at 1–3; Def. Br. at 1–2. 	For the following reasons, the
court sustains the Second Remand Results as supported by substantial evidence and
otherwise in accordance with the law.
When subject merchandise is exported from a nonmarket economy (“NME”)
country, Commerce calculates normal value of entries 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 “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 	Aug. 	4, 	2021).
Because China has an NME, when calculating Trina’s dumping margin, Commerce
determined the normal value of Trina’s entries of subject merchandise by using data
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from a surrogate country to value Trina’s FOPs, including international freight costs.
See Final Decision Memo at 27–32.
In the Second Remand Results, Commerce notes that the record does not
contain 	any 	documentation 	supporting 	the 	conclusion 	that 	rates 	for 	shipping
electronic goods and other nonhazardous and nonrefrigerated goods differ. 	Second
Remand Results at 6. Commerce further states that it has no additional evidence to
support the conclusion that the Maersk data exclude rates for shipping hazardous
and refrigerated goods while the Xeneta data do not. 	Id. Commerce concludes that
“the 	Maersk 	and 	Xeneta 	datasets 	equally 	satisfy 	Commerce’s 	criteria 	of 	tax
exclusivity, contemporaneity, and public availability.” Id. However, Commerce finds
that the Xeneta data is more specific to the shipping routes used by Trina and
represents a broader market average than the Maesk data. 	Id. 	In support of these
findings, Commerce notes that the Xeneta rates cover all the freight routes used by
Trina, while the Maersk rates only cover approximately 30% of the routes. 	Id.
Commerce 	further 	states 	that 	the 	Xeneta 	data 	“includes 	thousands 	of actual
shipments covering every day of the POR while the Maersk data comprise 32 price
quotes, with 15 of the quotes from only one day of the POR.” Id. Therefore, Commerce
concludes that the Xeneta data is the best available information with which to value
Trina’s international freight costs. Id. at 6–7.
Commerce’s analysis and decision to use the Xeneta data are reasonable,
supported by substantial evidence, and in accordance with law. The record supports
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Commerce’s findings that the Xeneta data is more representative than the Maersk
data and covered all of Trina’s routes. 	See also Changzhou II, 45 CIT at __, 492 F.
Supp. 3d at 1329–31. Likewise, Commerce’s decision to stop relying on any purported
differences in the rates for shipping electronic goods and other nonhazardous and
nonrefrigerated goods is reasonable because there is no record evidence that shows
any such differences in prices.
All parties agree with Commerce’s determinations in the Second Remand
Results and request that the Second Remand Results be sustained. See Trina Br. at
2; JA Solar Br. at 1–3; Def. Br. at 1–2. 	Commerce’s Second Remand Results are
supported by substantial evidence and in accordance with law and are sustained.
CONCLUSION
For the foregoing reasons, Commerce’s Second Remand Results are supported
by substantial evidence and comply with the court’s order in Changzhou II and are
therefore sustained. Judgment will enter accordingly.
/s/ Claire R. Kelly
Claire R. Kelly, Judge
Dated: 	August 10, 2021
New York, New York
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