Risen Energy Co., Ltd. v. United States

Slip Op. 20-152
UNITED STATES COURT OF INTERNATIONAL TRADE
RISEN ENERGY CO., LTD.,
Plaintiff,
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
PUBLIC VERSION
OPINION AND ORDER
[Sustaining in part and remanding in part the U.S. Department of Commerce’s final
determination 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.]
Dated: October 30, 2020
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Gregory S. Menegaz, deKieffer & Horgan, PLLC, of Washington, DC, for plaintiff and
consolidated defendant-intervenor Risen Energy Co. Ltd. 	Also on the briefs were
Alexandra H. Salzman and J. Kevin Horgan.
Timothy C. Brightbill, Wiley Rein, LLP, of Washington, DC, for consolidated plaintiff
and defendant-intervenor SunPower Manufacturing Oregon, LLC. Also on the briefs
were Laura El-Sabaawi and Enbar Toledano.
Craig A. Lewis, 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. 	Also on the briefs were Jonathan T. Stoel
and Michael G. Jacobson.
Neil R. Ellis, Richard L.A. Weiner, Justin R. Becker, Rajib Pal, and Shawn M.
Higgins, 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, argued for defendant. Also on the brief was Ethan P.
Davis, 	Acting 	Assistant 	Attorney 	General, 	Jeanne 	E. 	Davidson, 	Director, 	and
Reginald T. Blades, Jr., Assistant Director. 	Of counsel was Ayat Mujais, Attorney,
Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department
of Commerce, of Washington, DC.
Ned H. Marshak, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP, of New
York, New York, for consolidated defendant-intervenors Chint Solar (Zhejiang) Co.,
Ltd., Chint Energy (Haining) Co., Ltd., Chint Solar (Jiuquan) Co., Ltd., Chint Solar
(Hong Kong) Company Limited. 	Also on the brief was Dharmendra N. Choudhary
and Jordan C. Kahn.
Kelly, Judge: 	This consolidated action is before the court on motions for
judgment on the agency record. See Pl. [Risen Energy Co., Ltd.]’s Mot. J. Agency R.,
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Mar. 26, 2020, ECF No. 40; [Pl.-Intervenors Canadian Solar, Inc. et al. & Shanghai
BYD Co., Ltd.’s] Mot. J. Agency R., Mar. 26, 2020, ECF No. 42; Pl.-Intervenors Yingli
Green Energy Holding Co., Ltd. et al.’s Mot. J. Agency R., Mar. 26, 2020, ECF No. 41
(“Yingli’s Mot.”); SunPower Manufacturing Oregon LLC’s Mot. J. Agency R., Mar. 26,
2020, ECF No. 43. 	Plaintiff Risen Energy Co., Ltd. (“Risen”), Plaintiff-Intervenors
Canadian 	Solar, 	Inc. 	et 	al.1 	(“Canadian 	Solar”) 	and 	Shanghai 	BYD 	Co., 	Ltd.
(“Shanghai”), and Yingli Green Energy Holding Co., Ltd. et al.2 (“Yingli”), as well as
Consolidated 	Plaintiff 	SunPower 	Manufacturing 	Oregon, 	LLC 	(“SunPower”)
challenge various aspects of the U.S. Department of Commerce’s (“Commerce”) fifth
administrative review of the antidumping duty (“ADD”) order on crystalline silicon
1 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. are referred to, collectively, as “Canadian Solar.”
Canadian Solar and Shanghai request the court remand this case to Commerce with
instructions to recalculate its dumping margin to reflect any changes made to Risen’s
dumping margin.
2 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. are
referred to, collectively, as “Yingli”. 	Yingli expresses support for arguments raised
in Risen’s brief, and requests that the court remand this proceeding to Commerce
“with instructions to revise its final results and recalculate the dumping margin
applicable 	to 	Risen, 	and 	also 	recalculate 	the 	weighted 	average 	separate 	rate
applicable to Yingli.” See Yingli’s Mot. at 1–2.
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photovoltaic cells, whether or not assembled into modules (“solar cells”), from the
People’s Republic of China (“PRC” or “China”). 3 	See [Pl. Risen’s] Memo. Supp. Mot.
J. Agency R. at 1–2, 14–34, Mar. 26, 2020, ECF No. 40-2 (“Risen’s Br.”); [Pl.-
Intervenors Canadian Solar’s & Shanghai’s] Memo. Supp. Mot. J. Agency R. at 1, 9–
18, Mar. 26, 2020, ECF No. 42-1 (“Pl.-Intervenors’ Br.”); [SunPower’s] Memo. Supp.
56.2 Mot. J. Agency R. Confidential Version at 1–3, 10–32, Mar. 26, 2020, ECF No.
44 (“SunPower’s Br.”); see also 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”); Initiation of [ADD] & Countervailing Duty Admin. Reviews, 83 Fed.
Reg. 8,058 (Dep't Commerce Feb. 23, 2018) (“Initiation of Reviews”); 	Crystalline
Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the [PRC],
77 Fed. Reg. 73,018 (Dep’t of Commerce Dec. 7, 2012) (amended final determination
of sales at less than fair value, and [ADD] order) (“ADD Order”).
3 Risen and SunPower also appear as Defendant-Intervenors in this consolidated
action. 	See Order, Oct. 30, 2019, ECF No. 25 (granting SunPower’s consent motion
to intervene as defendant-intervenor); Order, Oct. 21, 2019, ECF No. 11 (Member
Docket No. 19-155) (granting Risen’s consent motion to intervene as defendant-
intervenor).
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Namely, 	Plaintiff 	Risen 	and 	Plaintiff-Intervenors 	challenge 	Commerce’s
decision to apply partial facts available with an adverse inference (“adverse facts
available” or “AFA”) 4 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 Risen’s Br. at 14–34; Pl.-
Intervenors’ Br. at 9–18. 	Consolidated Plaintiff SunPower challenges Commerce’s
refusal to apply partial AFA to Risen’s cooperative unaffiliated suppliers. 	See
SunPower’s Br. at 14–20. Moreover, SunPower challenges Commerce’s valuation of
the nitrogen input, see id. at 20–28, Commerce’s selection of Descartes freight rates
to value ocean freight expenses, see id. at 29–32, and Commerce’s decision to adjust
the export price (or constructed export price) (“U.S. Price”) by the amount of the
countervailing duty (“CVD”) imposed to offset the benefit conferred to manufacturers
and producers 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 10–14.
4 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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For the following reasons, the court sustains Commerce’s refusal to apply
partial AFA to Risen’s cooperative unaffiliated suppliers; Commerce’s decision to
value Risen’s nitrogen FOP using Bulgarian import data; Commerce’s decision to use
Descartes data to value ocean freight expenses; and Commerce’s decision to adjust
the U.S. Price by the amount of the CVD imposed to offset the benefit conferred to
manufacturers and producers by the Credit Program in the companion CVD review.
However, the court remands, for further explanation or reconsideration, Commerce’s
application of partial AFA to Risen’s uncooperative unaffiliated suppliers.
BACKGROUND
In 2012, Commerce published the ADD order covering solar cells from China.
See generally 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 Reviews. 	Commerce chose Risen and Chint Solar Zhejiang Co., Ltd.
(“Chint”)5 as mandatory respondents.6 See Second Resp’t Selection Memo. [for 2016-
5 For purposes of this review, Commerce treated Chint Solar, Chint Energy (Haining)
Co., Ltd., Chint Solar (Jiuquan) Co., Ltd., and Chint Solar (Hong Kong) Company
Limited as a single “collapsed” entity. 	See Prelim. Decision Memo at 7–8; Final
Decision Memo at 1 n.2. 	If affiliated producers and exporters are collapsed, those
companies may be considered a single entity. Collapsing entities allows sales of one
collapsed entity to be considered sales of the other for purposes of Commerce's
dumping 	margin 	calculation. 	See 	19 	C.F.R. 	§ 	351.401(f)(1) 	(2018); 	19 	U.S.C.
§§ 1675(a)(2)(A)(ii), 1677b(a).
6 Commerce initially selected Risen and the collapsed entity Changzhou Trina Solar
(footnote continued)
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2017 Admin. Review], PD 147, bar code 3696673-01 (Apr. 19, 2018) (“Second Resp’t
Selection Memo”);7 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 Issues and Decisions Memo. for
the [Prelim. Results] at 2–3, 7–8, A-570-979, PD 497, bar code 3785207-01 (Dec. 20,
2018) (“Prelim. Decision Memo”).
On December 28, 2018, Commerce published its preliminary determination.
See generally Prelim. Results; Prelim. Decision Memo. 	Given that Commerce
considers the PRC to be a nonmarket economy (“NME”), when calculating Risen’s and
Chint’s dumping margin,8 Commerce determined the normal value of Risen’s and
Energy Co., Ltd. (“Trina”) as mandatory respondents. 	See Resp’t Selection Memo.
[for 2016-2017 Administrative Review] at 5–7, PD 79, bar code 3682915-01 (Mar. 15,
2018). 	Upon requests from both Trina and petitioners, Commerce rescinded its
review of Trina and instead selected Chint as a mandatory respondent. See Prelim.
Decision Memo at 3; Second Resp’t Selection Memo at 2–3.
7 On August 31, 2020, Defendant submitted indices to the public and confidential
administrative records underlying Commerce's final determination. These indices are
located on the docket at ECF Nos. 68 and 67, 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.
8 The term “nonmarket economy country” denotes any foreign country that Commerce
determines “does not operate on market principles of cost or pricing structures, so
that sales of merchandise in such country do not reflect the fair value of the
merchandise.” 	Section 771(18)(A) of the Tariff Act of 1930, as amended, 19 U.S.C.
(footnote continued)
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Chint’s entries of subject merchandise by using data from a surrogate market
economy country (“surrogate country”) 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). 9 	Commerce chose
Thailand as the primary surrogate country for purposes of valuing all FOPs. 	See
Prelim. Decision Memo at 16–19. Commerce resorted to partial AFA to calculate the
value of certain FOPs because several of Risen’s unaffiliated solar cell and module
suppliers refused to cooperate with Commerce’s requests for information. See Prelim.
Decision 	Memo 	at 	15–16. 	Namely, 	Commerce 	applied 	the 	highest 	reported
consumption rates in place of missing consumption figures for certain inputs used by
Risen to produce subject merchandise sold in the U.S. during the period of review
(“POR”), but only to the extent that the information on those inputs was missing due
to the refusal of Risen’s unaffiliated suppliers to cooperate. 	See Risen Unreported
FOPs Memo. at 9–10, PD 508, CD 898, bar codes 3785421-01, 3785419-01 (Dec. 20,
2018) (“Unreported FOPs Memo”). 	Finally, Commerce used data on ocean freight
rates from the Maersk Line and Descartes websites (“Maersk data” and “Descartes
§ 1677(18)(A) (2018). In such cases, Commerce must “determine the normal value of
the subject merchandise on the basis of the value of the factors of production utilized
in producing the merchandise . . . [together with other costs and expenses].” Id.
§ 1677b(c)(1).
9 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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data”) to value ocean freight expenses. 	Prelim. Decision Memo at 28. 	With respect
to its calculation of U.S. Price, Commerce declined to increase the U.S. Price by the
amount of any CVD imposed to offset the Ex-Im Bank’s Credit Program in the
companion CVD review. 	See Prelim. Decision Memo at 32–33; see also Crystalline
Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the [PRC],
83 Fed. Reg. 34,828 (Dep't Commerce July 23, 2018) (final results of CVD admin.
review; 2015) (“CVD AR”) and accompanying Issues and Decisions Memo. for [CVD
AR] 	Cmts. 	at 	1–2, 	C-570-980, 	(July 	12, 	2018), 	available 	at
https://enforcement.trade.gov/frn/summary/prc/2018-15692-1.pdf 	(last 	visited 	Oct.
26, 2020) (“CVD AR IDM”). 	Commerce calculated preliminary weighted-average
dumping margins of 15.74 and 98.41 percent for Risen and Chint, respectively.
Prelim. Results, 83 Fed. Reg. at 67,224.
For the Final Results, although continuing to rely on Thailand as the primary
surrogate country, Commerce decided that Thai data on nitrogen prices were
unreliable and determined instead to use Bulgaria’s Global Trade Atlas (“GTA”)
import data (“Bulgarian import data”) to derive a surrogate value for the nitrogen
input. See Final Decision Memo at 37–43. Moreover, instead of using both Maersk
and Descartes data to calculate ocean freight rates, Commerce relied solely on
Descartes data because its freight rates “are contemporaneous with the POR, for a
container size used by the respondents, and, where possible, product specific[.]” Final
Decision Memo at 59. Finally, upon reconsideration of its initial position, Commerce
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determined 	that 	it 	was 	necessary 	to 	increase 	the 	U.S. 	Price 	to 	account 	for
countervailing duties it imposed to offset the Ex-Im Bank’s Credit Program in the
companion CVD review. 	See Final Decision Memo at 15–17. 	Commerce calculated
final dumping margins of 4.79 and 2.67 percent for Risen and Chint, respectively.
Final Results, 84 Fed. Reg. at 36,888.
JURISDICTION AND STANDARD OF REVIEW
This court has jurisdiction pursuant to 19 U.S.C. § 1516a(a)(2)(B)(iii) and 28
U.S.C. § 1581(c), 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).
DISCUSSION
I. 	Use of Bulgarian Import Data
SunPower argues that Commerce’s determination that the Thai data was
unreliable is not supported by substantial evidence because Commerce failed to point
to evidence that the data was aberrant. 	See SunPower’s Br. at 20–28. 	Defendant,
Chint and Risen counter that Commerce reasonably determined that the Thai data
was unreliable due to inconsistencies in the reported value of the nitrogen input
between sources of Thai pricing data on the record. See Def.’s Resp. to Pls.’ Mots. J.
Agency R. at 30–34, July 10, 2020, ECF No. 52 (“Def.’s Br.”); Consol. Def.-Intervenor
[Chint’s] Resp. to [SunPower’s] 56.2 Mot. J. Agency R. at 18–32, July 10, 2020, ECF
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No. 51 (“Chint’s Resp. Br.”); Def.-Intervenor [Risen’s] Resp. Opp’n Consol. Pl.’s Mot.
J. Agency R. at 14–18, July 10, ECF No. 49 (“Risen’s Resp. Br.”). 	For the following
reasons, Commerce’s decision to rely on Bulgarian import data is sustained.
When conducting an administrative review of an ADD order, Commerce
determines whether the subject merchandise is sold into the U.S. at less than fair
value by comparing the normal value of the merchandise with its U.S. Price during
the POR. 	19 U.S.C. §§ 1673d, 10 1677(35)(A). 	Commerce calculates antidumping
duties owed on entries of merchandise to reflect the amount by which the normal
value exceeds the U.S. Price (i.e., the dumping margin). 	See id; see also 19 U.S.C.
§§ 1677b, 1677a.
Commerce usually determines normal value based on sales of the subject
merchandise in the foreign market or in a third country comparator market. See 19
U.S.C. § 1677b(a)(1)(A)–(C). However, when conducting an administrative review of
an ADD order covering merchandise from a country that Commerce has designated
a non-market economy (“NME”), “sales of merchandise in [that NME] country do not
reflect the fair value of the merchandise.” 19 U.S.C. § 1677(18)(A). As such, in NME
proceedings, Commerce calculates normal value based on the FOPs for the subject
merchandise, with an added amount for general expenses and profits plus the cost of
10 The U.S. Court of Appeals for the Federal Circuit (“Court of Appeals”) has clarified
that the methods under 19 U.S.C. § 1673d apply to administrative reviews as well as
investigations. See Albemarle Corp. v. United States, 821 F.3d 1345, 1352–53 (Fed.
Cir. 2016).
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containers, coverings, and other expenses. 	See 19 U.S.C. § 1677b(c); see also 19
C.F.R. 	§ 	351.408 	(2018). 11 	In 	so 	doing, 	Commerce 	relies 	on 	“best 	available
information” about the value of the FOPs used to produce the merchandise derived
from one or more surrogate market economy countries (“surrogate values”) that are
at a comparable level of economic development to the NME country and where there
are 	significant 	producers 	of 	the 	subject 	merchandise. 	19 	U.S.C.
§ 1677b(c)(4). To the extent possible, Commerce’s regulatory preference is to “value
all factors in a single surrogate country.” 19 C.F.R. § 351.408(c)(2).
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). 	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 normally 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 POR; (4) representativeness of a broad market average;
and (5) public availability. 	See Import Admin., U.S. Dep’t Commerce, Non-Market
Economy Surrogate Country Selection Process, Policy Bulletin 04.1 (2004), available
11 Further citations to Title 19 of the Code of Federal Regulations are to the 2018
edition.
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at 	https://enforcement.trade.gov/policy/bull04-1.html 	(last 	visited 	Oct. 	26, 	2020)
(“Policy Bulletin 04.1”).
Although it prefers to value all FOPs using data from a single surrogate
country, Commerce decides not to use data from Thailand and uses Bulgarian import
data to value nitrogen. 	See Final Decision Memo at 40–43. Commerce observes that
the AUV of imports of nitrogen into Thailand derived from the GTA data (“Thai
import data”) is $10.05 per kilogram, while GasWorld data on domestic prices for
nitrogen in Thailand provide values of $0.13 per kilogram for liquid nitrogen and
$0.05 per kilogram for nitrogen gas. 	See id. at 40–41. 	Noting similar disparities
between prices for nitrogen imports and domestic prices for nitrogen in Mexico and
South Africa, and citing “concerns regarding the actual broad market price of nitrogen
in those countries[,]” Commerce considers several alternative surrogate countries.
See id. at 41–43. 	Commerce selects import data from Bulgaria because, among the
sources that satisfy its selection criteria, Bulgaria has the highest volume of imports
of nitrogen. See Final Decision Memo at 41–42.
Commerce’s decision to rely on the Bulgarian import data is supported by
substantial evidence. 	According to Commerce, not only does the Bulgarian import
data satisfy its selection criteria, Bulgaria is also the surrogate country with the
largest volume of nitrogen imports amongst the alternative sources on the record.
See Final Decision Memo at 41–42. It is reasonable for Commerce to infer that using
a larger sample size would result in a more representative and less distortive
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surrogate value. See id. Contrary to SunPower’s argument, it is also reasonable for
Commerce to infer—from significant disparities between the nitrogen GTA import
data and GasWorld domestic pricing data for Thailand, Mexico, and South Africa—
that one, or both, are unreliable sources of nitrogen AUV data. See id. at 43. A wide
divergence in the reported value of nitrogen between the sources suggests that either
the import prices or the domestic prices, or both, are inaccurate and untrustworthy
for purposes of valuing the nitrogen input. 	Without record evidence as to which
source is the reliable one, it stands to reason that Commerce would depart from its
practice of valuing all FOPs based on a single surrogate country, and instead rely on
Bulgarian import data in order to avoid using distorted data.
Moreover, SunPower’s argument that Commerce fails to demonstrate that the
GasWorld data on domestic prices is an appropriate benchmark against which to
determine whether the GTA import data is aberrant misses the point. As it explains,
Commerce finds the Thai import data to be unreliable, not aberrant. 	See Final
Decision Memo at 42–43. 	SunPower might prefer that Commerce ignore the
GasWorld data when determining whether the GTA 	data is reliable, but the court
cannot say that it is unreasonable for Commerce to consider the disparities between
the two datasets. As such, Commerce’s determination is sustained.
II. 	Commerce’s Application of Partial AFA
Risen and Plaintiff-Intervenor’s submit that Commerce’s decision to apply
partial AFA against Risen’s suppliers to fill the gaps in record evidence caused by its
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uncooperative unaffiliated suppliers is an impermissible application of 19 U.S.C.
§ 1677e in this instance. 	See Risen’s Br. at 14–33; Pl.-Intervenors’ Br. at 9–18.
Defendant counters that Commerce’s decision to apply partial AFA with respect to
those unaffiliated suppliers who refused to cooperate with Commerce’s inquiry
reasonably balances its statutory obligation to calculate accurate margins with its
policy of using adverse inferences to induce cooperation. See Def.’s Br. at 11–25. For
the following reasons, Commerce’s decision to apply partial AFA against Risen’s
suppliers is remanded for further explanation or reconsideration.
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,
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). 12 If Commerce further “finds that
12 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
(footnote continued)
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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 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
of an adverse inference as a part of a § 1677e(a) analysis, the predominant concern
must be accuracy. See id. at 1233.
Stating that it is operating “primarily under” 19 U.S.C. § 1677e(a), Commerce
explains that, in furtherance of the policy objectives of promoting cooperation and
thwarting duty evasion as cited in Mueller, it selects the highest FOP consumption
rates reported by Risen and Chint to fill the gap in the record caused by Risen’s and
Chint’s unaffiliated suppliers failure to comply with its request for information. See
Final Decision Memo at 9–14; see also Mueller, 753 F.3d at 1232–36. 	Commerce
explains that using the highest FOP consumption rates as plugs for missing cost data
(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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caused by Risen’s and Chint’s uncooperative unaffiliated suppliers prevents the “real
possibility” that suppliers will avoid duties by exporting through the mandatory
respondents, and that doing so also deters non-cooperation. Final Decision Memo at
12. 	Although Risen and Chint each cooperated with its investigation, Commerce
observes that incorporating adverse inferences furthers its policy objectives because
Risen and Chint are “significant producers in the solar market” and “could potentially
induce the cooperation of the [non-cooperative] suppliers.” 	Id. 	Commerce then
concludes that its application of the highest FOP consumption rates solely where FOP
information is missing due to the refusal of Risen’s and Chint’s suppliers to cooperate
promotes 	accuracy 	by 	ensuring 	that 	any 	increase 	to 	the 	dumping 	margin 	is
commensurate with the amount of non-cooperation by the suppliers. See id. at 13.
Commerce’s determination is unsupported by substantial evidence. 	The
evidence that Commerce cites does not support its claim that using partial AFA
furthers its policy objectives. 	Regarding the threat of duty evasion, unlike the
supplier at issue in Mueller, the unaffiliated suppliers in this case are not mandatory
respondents refusing to participate in the review, see Mueller, 753 F.3d at 1229–30,
1235, and Commerce does not point to substantial evidence to otherwise support its
concern that the unaffiliated suppliers intend to evade their own potential duties by
exporting subject merchandise into the U.S. through Risen.13 	See id. 	Moreover,
13 The court discusses Commerce’s determination with respect to Risen since Chint
does not challenge Commerce’s application of partial AFA.
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regarding Commerce’s aim of deterring non-cooperation, Commerce cites no evidence
of a mechanism or relationship that Risen could use to induce the cooperation of their
unaffiliated 	suppliers. 	Compare 	id., 	753 	F.3d 	at 	1234–35 	(explaining 	how
Commerce’s policy objective of inducing cooperation may be advanced where there is
an existing relationship between the mandatory respondent and uncooperative
supplier) with Final Decision Memo at 13 (determining that a plausible threat that
the mandatory respondent may refuse to purchase subject merchandise from the
suppliers is sufficient to induce cooperation).14 	Commerce observes that Risen is a
large producer that may refuse to purchase subject merchandise from the non-
cooperating, unaffiliated suppliers, see id. at 12, but such observations do not
14 Defendant claims that “Commerce went beyond highlighting Risen’s size and
market presence by also considering the nature of Risen’s supplier partnership” to
determine that Risen had sufficient leverage over its unaffiliated suppliers, Def.’s Br.
at 22 (quoting Unreported FOPs Memo at 7–8), but any consideration of Risen’s
supplier partnerships appears cursory. 	As support for its claim that Commerce
considered the existence of “‘back-to-back’ agreements and existing relationships”,
Defendant quotes Commerce’s conclusion in the Unreported FOPs Memo that “Risen
is an important customer to its Chinese solar cell suppliers.” Id. Neither Defendant
nor Commerce explain how the importance of Risen’s relationship to its customers is
such that Risen “is in a position to induce cooperation from those suppliers.”
Unreported FOPs Memo at 8. On the other hand, Risen submits that it has no control
over the business and production records of its unaffiliated suppliers. Pl. [Risen’s]
Reply Br. at 12, Aug. 17, 2020, ECF No. 64 (“Risen’s Reply Br.”). Risen explains that
it purchases inputs from a large number of unaffiliated suppliers at relatively small
quantities, and that no supplier was exclusively dependent on Risen as a purchaser.
See id. at 11–12 (citations omitted). On remand, should Commerce continue to apply
partial AFA, it should explain why its determination is reasonable in light of any
detracting record evidence raised with respect to this issue.
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demonstrate that Risen had leverage over its unaffiliated suppliers under a more
searching § 1677e(a) analysis. 15
Commerce also fails to adhere to Mueller’s emphasis on accuracy above all else.
See Mueller, 753 F.3d at 1233. Commerce states that it properly takes into account
the predominant interest in calculating accurate dumping margins by only applying
adverse inferences “precisely to and commensurate with the amount of uncooperation
by the suppliers[.]” Final Decision Memo at 13. Yet, Commerce does not cite record
evidence that using the highest FOP consumption rates on the record result in
accurate dumping margins for Risen. See Mueller, 753 F.3d at 1232–33. 16 As such,
15 Commerce and Defendant cite dicta from KYD, Inc. v. United States as support for
Commerce’s 	reasoning 	that 	Risen’s 	exposure 	to 	enhanced 	ADD 	duties 	could
potentially induce the cooperation of its unaffiliated suppliers. 	See e.g., Final
Decision Memo at 12 (citing 607 F.3d 760, 768 (Fed. Cir. 2010) (“KYD”)); Def.’s Br. at
16–17. 	Irrespective of the applicability of KYD’s dicta, the Court of Appeals in
Mueller stressed the importance of there being an existing relationship between the
cooperating and the non-cooperating suppliers where Commerce seeks to use partial
AFA to induce cooperation. See Mueller, 753 F.3d at 1234–35 (citing, inter alia, KYD,
607 F.3d at 768). 	Here, as explained above, Commerce cites no evidence of such a
relationship between Risen and its unaffiliated suppliers.
16 Defendant invokes Nan Ya to argue that Commerce need only demonstrate that
the partial AFA rate is a reasonably accurate estimate of the respondent’s actual rate.
See Def.’s Br. at 21–22 (citing Nan Ya Plastics Corp. v. United States, 810 F.3d 1333,
1344 (Fed. Cir. 2016); F.lli De Cecco Di Filippo Fara S. Martino S.p.A. v. United
States, 216 F.3d 1027 (Fed. Cir. 2000); Papierfabrik Aug. Koehler SE v. United
States, 843 F.3d 1373 (Fed. Cir. 2016)). 	Nan Ya, however, involved adverse
inferences against uncooperative respondents under 19 U.S.C. § 1677e(b), while here,
Commerce states that it is operating “primarily under” § 1677e(a) to apply partial
AFA against cooperative respondents. 	Moreover, Commerce cites no evidence that
using the highest consumption rates results in a “reasonably accurate estimate of
[Risen’s] actual rate[.]” Def.’s Br. at 22.
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the court must remand to Commerce for further explanation or reconsideration.17 On
remand, should Commerce continue to rely on partial AFA on the basis of the same
policy objectives, it should point to evidence of an existing relationship or mechanism
that Risen could have used to induce the cooperation of its unaffiliated suppliers, and
should furthermore explain why the highest FOP consumption rates on the record
further the predominant interest in calculating accurate dumping margins.
17 Risen and Plaintiff-Intervenors also argue that Commerce’s determination that
FOP information missing from the record was significant is arbitrary and capricious.
See Risen’s Br. at 26–33; Pl.-Intervenors’ Br. at 17 (expressing support for Risen’s
argument). Commerce, however, explains that 	percent and 	percent
of solar cells and solar modules, respectively, came from uncooperative unaffiliated
suppliers, and that these amounts constitute a material quantity that distinguishes
its decision from other situations where Commerce has excused respondents from
reporting 	FOPs. 	Unreported 	FOPs 	Memo 	at 	10. 	Thus, 	contrary 	to 	Risen’s
submission, see Risen’s Br. at 31, Commerce does provide a reasoned explanation for
its determination. 	Risen does not explain how Commerce’s decision is arbitrary
capricious, but rather, takes issue with how Commerce weighed the evidence, and
argues that Commerce should have found the FOP information on the record was a
reasonable and representative sample of Risen’s costs. 	See id. at 31 (arguing that
Commerce did not consider the quantity of unaffiliated suppliers, the average amount
of FOP data from each uncooperative supplier, Risen’s business model, and the solar
panel industry in China). Regardless of whether the remaining FOP information on
the record was sufficient to constitute a reasonable and representative sample of
Risen’s costs based on its preferred considerations, Risen points to no authority
limiting Commerce’s discretion to request FOP information from all of Risen’s
suppliers and fails to persuade that Commerce’s decision to do so is arbitrary and
capricious in light of its evidence-based determination and reasoned explanation. See
Final Decision Memo at 24.
[[ 	]] 	[[ 	]]
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III. 	Commerce’s Refusal to Apply Facts Available to Risen’s Cooperative
Unaffiliated Suppliers
SunPower challenges Commerce’s refusal to apply partial AFA to Risen’s
cooperative unaffiliated suppliers. See SunPower’s Br. at 14–20. Namely, SunPower
argues 	that 	Commerce’s 	determination 	that 	the 	suppliers 	Commerce 	deemed
cooperative acted to the best of their ability is unreasonable due to “glaring”
deficiencies in their responses to Commerce’s inquiry.18 See id. Defendant counters
that Commerce’s determination is reasonable because the cooperative suppliers
explained the deficiencies in their submissions, and their responses were sufficient to
enable Commerce to calculate a dumping margin. 	See Def.’s Br. at 25–30. 	For the
following reasons, Commerce’s refusal to apply partial AFA to Risen’s cooperative
suppliers are sustained.
As 	explained, 	where 	information 	necessary 	to 	calculate 	a 	respondent’s
dumping margin is not available on the record, or where information has been
withheld, is untimely, cannot be verified, or a party impedes the proceeding,
Commerce applies “facts otherwise available” in place of the missing information. See
19 U.S.C. § 1677e(a). 	If Commerce “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
18 SunPower thus challenges Commerce’s determination that these suppliers are
“cooperative.” See SunPower’s Br. at 14–20.
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that party in selecting from among the facts otherwise available.” Id. § 1677e(b)(1).
A respondent cooperates to the “best of its ability” when it “has put forth its maximum
effort to provide Commerce with full and complete answers to all inquiries in an
investigation.” 	Nippon Steel Corp. v. United States, 337 F.3d 1373, 1382 (Fed. Cir.
2003).
Here, Commerce finds that the supplemental responses it received from the six
cooperative unaffiliated suppliers adequately address the deficiencies that SunPower
complains of, eliminating a need to employ facts available under 19 U.S.C. § 1677e(a).
See Final Decision Memo at 23–24; see also SunPower’s Br. at 16–17. Implicit in its
conclusion that “the information provided by [the unaffiliated suppliers] is sufficient
to calculate an accurate margin for Risen” is Commerce’s finding that necessary
information is not missing from the record pursuant to 19 U.S.C. § 1677e(a)(1). See
Final Decision Memo at 23–24. 	Moreover, Commerce “do[es] not find that the
suppliers withheld information that had been requested or significantly impeded the
proceeding under [19 U.S.C. § 1677e(a)(2)(C)], because they responded to Commerce’s
requests 	for 	information 	by 	providing 	the 	requested 	information.” 	Id. 	at 	24.
SunPower, 	pointing 	to 	various 	purported 	deficiencies 	in 	the 	suppliers’ 	factual
submissions, 	contests 	Commerce’s 	determination 	that 	the 	suppliers 	provided
sufficient information, and claims that the deficiencies themselves demonstrate that
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the suppliers failed to act to the best of their ability.19 	Commerce addresses the
discrepancies identified by SunPower,20 and concludes that the information provided
19 Commerce, Defendant, and SunPower occasionally conflate the two distinct
analytical steps of 19 U.S.C. § 1677e(a) and (b). 	Commerce concludes that the
suppliers provided sufficient information to calculate accurate rates. 	See Final
Decision 	Memo 	at 	22–24. 	Its 	conclusions 	with 	respect 	to 	whether 	necessary
information was missing from the record and whether the suppliers had sufficiently
responded to Commerce's inquiries would seem to obviate the need for an analysis of
whether those suppliers had acted to the best of their ability. 	Yet, in the Final
Decision Memo, Commerce continues to analyze whether the suppliers acted to the
best of their ability. See id. at 24. 	However, as stated above, AFA is a short-hand
term employed by many parties before Commerce and before this Court that actually
refers to two distinct statutory provisions. Using the shorthand masks the statutory
basis upon which Commerce relies, specifically § 1677e(a).
20 First, with respect to SunPower’s contention that certain suppliers failed to support
or reconcile their reported labor, electricity, and water consumption amounts, see
SunPower’s Br. at 15–18, Commerce preliminarily notes that it did not ask for
supporting documentation and that it is not required to request such documentation,
since Commerce usually reviews such documents at verification. See Final Decision
Memo 	at 	23. 	Moreover, 	Commerce 	explains 	that 	the 	cooperating 	companies
“described the steps used in their cost reconciliations in their Section D responses[,]”
“performed the basic steps of reconciling profit and loss statements to cost of goods
sold, cost of production, and POR raw material consumption” and, where certain
suppliers were asked, they complied with Commerce’s request to “reconcile [their]
audited financial statements to their cost reconciliations[.]” As such, Commerce did
not find it necessary to issue additional questions regarding these reconciliations.
See id. at 23. Second, in response to SunPower's concerns about missing audited
financial statements, see SunPower’s Br. at 15, Commerce explains that, where a
supplier maintained audited financial statements, the supplier submitted such
statements to Commerce. See id. at 23. Third, with respect to SunPower’s concerns
about 	reconciliations 	with
Commerce notes that all but one supplier explained that these negative
quantities relate to “returns into inventory of items that were not consumed in
production[,]” 	and 	that 	the 	suppliers 	submitted 	credit 	notes 	and 	return-slips
(footnote continued)
[[
]]
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by the six cooperative suppliers is sufficient to calculate an accurate dumping margin
for Risen. 	See Final Decision Memo at 23–24. 	SunPower does not explain why
Commerce’s determination was unreasonable, but rather, requests the court reweigh
the evidence, which the court will not do. 	See SunPower’s Br. at 18–20; but see
Downhole Pipe & Equipment, L.P. v. United States, 776 F.3d 1369, 1376 (Fed. Cir.
2015). As such, Commerce’s determination is sustained.
IV. 	Reliance on Descartes Freight Rates to Value Ocean Freight
SunPower argues that Commerce contravenes agency practice by refusing to
use Maersk data on ocean freight rates, and further submits that Commerce’s
reliance 	on 	Descartes 	data 	was 	unsupported 	by 	substantial 	evidence 	because
supporting their explanation. 	See id. at 23; see also SunPower’s Br. at 18. 	The
remaining company, Commerce explained, demonstrated “through tracing the steps
in the cost reconciliation, that the negative withdrawals pertained to transferring
expenses from production to research and development[,] but, nonetheless, the
corresponding quantities were included in the reported POR consumption.” 	Final
Decision Memo at 23. 	Commerce found this explanation to be sufficient. 	See id.
Fourth, Commerce “sought clarification from three suppliers as to why certain
materials identified in their inventory-out details, and submitted as part of their cost-
reconciliations, 	were 	excluded 	from 	their 	reported 	consumption.” 	Id. 	at 	24.
Commerce found, that in some instances, the materials are the same inputs used by
Risen and the supplier to produce the subject merchandise, and in others, that—
although the materials had a different name—they appeared to be the same or
similar to inputs used to produce the merchandise other consideration. See id. at 24.
Commerce found satisfactory the companies’ responses that these materials were
either not used to produce merchandise supplied to Risen, or that they were used for
purposes other than production. 	Commerce’s response demonstrates that it has
considered detracting evidence raised in SunPower’s submissions and reasonably
determines that the information provided by the cooperative suppliers was sufficient
to calculate an accurate dumping margin. See id.
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Descartes data is specific to chemical products. 	See SunPower’s Br. at 29–32.
Defendant, Chint and Risen argue that Commerce reasonably chose Descartes data
because, in addition to being contemporaneous and representing a broad market
average, it is also publicly available unlike Maersk data. 	See Def.’s Br. at 34–37;
Chint’s Resp. Br. at 32–37; Risen’s Resp. Br. at 18–23. 	For the following reasons,
Commerce’s decision to rely on Descartes data is sustained.
As explained, when determining the “best available information” on freight
rates to value ocean freight expenses, Commerce normally evaluates data sources
based on their: (1) specificity to the input; (2) tax and import duty exclusivity; (3)
contemporaneity with the POR; (4) representativeness of a broad market average;
and (5) public availability. See Policy Bulletin 04.1. Commerce’s determination must
be supported by substantial evidence, meaning the evidence is sufficient such that a
reasonable mind might accept the evidence as adequate to support Commerce’s
conclusion while considering contradictory evidence. Consol. Edison Co. of New York
v. NLRB, 305 U.S. 197, 229 (1938).
Commerce’s 	determination 	that 	Descartes 	data, 	without 	Maersk 	data
submitted by petitioners, better satisfies its selection criteria is supported by
substantial evidence. 	See Final Decision Memo at 59–60. 	In addition to being
contemporaneous with the POR and relating to the container size that respondents
use, Commerce observes that Descartes freight rates are product-specific to the
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extent that they relate to shipments of solar panels and other solar products.21 	See
id.
Moreover, Commerce explains that, unlike Maersk data rates submitted by the
petitioners, Descartes data freight rates are publicly available. 	See Final Decision
Memo at 59–60. 	It is thus reasonable for Commerce to disregard Maersk data and
rely exclusively on Descartes data to value ocean freight expenses.
SunPower maintains that Maersk data relating to electronics are more specific
than Descartes data. 	See SunPower’s Br. at 29–32. 	However, it is reasonably
discernible from Commerce’s reliance on Descartes freight rates for solar panels and
other solar products that it views those rates to be product-specific, and that it does
not consider Maersk data rates on electronics to be as specific to the subject
merchandise. 	See Final Decision Memo at 59. 	Further, it is undisputed that
SunPower submitted to Commerce business proprietary Maersk data. See id. at 59–
60. 22 It is reasonable for Commerce to conclude that publicly available data that is,
where possible, product-specific, better satisfies its selection criteria than business
21 Although SunPower argues Descartes data “are specific to the shipment of chemical
products,” Commerce explains that it only uses Descartes freight rates for shipments
of chemical products where rates for shipments of solar products to certain U.S.
regions are unavailable. See SunPower’s Br. at 31–32; but see Final Decision Memo
at 59.
22 It is reasonably discernible from Commerce’s statements regarding the treatment
of Maersk data in this review that it assesses public availability based on how the
information is submitted. 	See id. at 59 (“We disregarded the petitioner’s Maersk
rates, because they were treated as proprietary information on the record of this
review.”).
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proprietary data that is, as a whole, not as specific to the subject merchandise. That
SunPower comes to a different conclusion is, on its own, insufficient to invalidate
Commerce’s determination. 	See Zhaoqing New Zhongya Aluminum Co., Ltd. v.
United States, 36 CIT 1390, 1392, 887 F. Supp. 2d 1301, 1305 (2012) (citing Universal
Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)); 23 see also Final Decision Memo at
59–60. 	As 	such, 	Commerce’s 	decision 	to 	value 	ocean 	freight 	expenses 	using
Descartes data is sustained.
V. 	Adjustment to the U.S. Price to Offset Export Buyer’s Credit Program
SunPower argues that Commerce’s decision to increase U.S. Price by the
amount of the CVD imposed to offset China’s Credit Program in the companion CVD
review 	is 	unsupported 	by 	substantial 	evidence 	because 	Commerce 	made 	that
determination based on AFA and thus made no finding that the Credit Program was
export contingent. See SunPower’s Br. at 10–14. Defendant, Chint and Risen counter
that Commerce found the Credit Program to be export contingent, even if the
23 That Commerce has previously used Maersk data to calculate ocean freight costs
is immaterial. SunPower calls Commerce’s reliance on Maersk data a “longstanding
practice”, see SunPower’s Br. at 30, but, in reality, the practice is relying on the
methodology set out in the Policy Bulletin 04.1. 	Within that framework, each case
stands on its own record, so the fact that Commerce relied on a particular FOP source
in one case does not bind it to rely on the same source in subsequent cases.
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determination was based on AFA. See Def.’s Br. at 7–11; Chint’s Resp. Br. at 12–18;
Risen’s Resp. Br. at 5–10.24 Commerce’s determination is sustained.
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. 19 U.S.C. § 1677a(c)(1)(C). Here, Commerce
increases the U.S. Price by the amount of the CVD imposed in the companion CVD
review to offset the Credit Program because it finds that the Credit Program was
determined to be an export subsidy. See Final Decision Memo at 16–17. Specifically,
Commerce points to its determination, in the preliminary results of the companion
CVD review, that the benefit conferred by the Credit Program “is tied to export
performance[.]” 	See Final Decision Memo at 17 (citations omitted). 	Although, for
the final results of the companion CVD review, Commerce resorted to AFA to
countervail the Credit Program, see CVD AR IDM at Cmt. 2, 	Commerce observes
“there is no indication . . . that [it] changed its finding that the program is tied to
export performance.” Final Decision Memo at 17.
The U.S. Court of Appeals for the Federal Circuit (“Court of Appeals”) decision
in Changzhou affirms Commerce’s position and precludes SunPower’s submission
24 On September 9, 2020, Risen filed with the court a Notice of Supplemental
Authority, apprising the court of the Court of Appeals’ decision in Changzhou Trina
Solar Energy Co. v. United States, Appeals No. 20-1004 (Fed. Cir. Sept. 3, 2020), and
noting the direct relevance of the decision to SunPower’s challenge. 	See Notice of
Supplemental Authority at 1–2, Sept. 9, 2020, ECF No. 69.
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with respect to this issue. See SunPower’s Br. at 10–14; [SunPower’s] Reply Br. at
4–5 & n.1, Aug. 17, 2020, ECF No. 66 (“SunPower’s Reply Br.”); but see Changzhou
Trina Solar Energy Co. v. United States, Appeals No. 20-1004 at 16–20 (Fed. Cir.
Sept. 3, 2020) (“Changzhou”). As explained by the Court of Appeals in Changzhou,
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, Appeals No. 20-1004 at 16–
17 	(citations 	omitted); 	see 	also 	19 	U.S.C. 	§§ 	1677e(a), 	1671, 	1677(5), 	(5A),
1516a(b)(1)(B)(i). 	Based 	on 	the 	available 	descriptions 	of 	the 	program 	in 	the
companion review, it is reasonable for Commerce to conclude in this proceeding that
the Credit Program was determined to be specific based on export contingency.
Under Changzhou, SunPower’s argument that Commerce’s reliance on AFA means
that it “did not determine the [Credit Program] was export contingent” fails.
SunPower’s Br. at 11; but see Changzhou, Appeals No. 20-1004 at 16–17. 25 As such,
Commerce’s determination is sustained.
25 SunPower also argues that Commerce’s decision to offset respondents’ cash deposit
in this proceeding negates the adverse effect of its application of AFA in the
companion CVD review. 	See SunPower’s Br. at 12–14. 	Risen notes, however, that
Commerce did not offset its cash deposit rate. Risen’s Resp. Br. at 9. As SunPower
later acknowledges, 	see SunPower’s Reply Br. at 4 n. 1, irrespective of whether
Commerce did offset respondents’ cash deposit rate, the Court of Appeals’ holding in
Jinko Solar Co. v. United States, precludes this argument. See 961 F.3d 1177, 1181–
84 (Fed. Cir. 2020).
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CONCLUSION
For foregoing reasons, it is
ORDERED 	that 	Commerce’s 	refusal 	to 	apply 	partial 	AFA 	to 	Risen’s
cooperative unaffiliated suppliers is sustained; and it is further
ORDERED that Commerce’s decision to value Risen’s nitrogen input using
Bulgarian import data is sustained; and it is further
ORDERED that Commerce’s decision to use Descartes data to value ocean
freight expenses is sustained; and it is further
ORDERED that Commerce’s decision to adjust U.S. Price by the amount of
the CVD imposed to offset the benefit conferred to manufacturers and producers by
the Credit Program in the companion CVD review is sustained; and it is further
ORDERED that Commerce’s application of partial AFA to Risen is remanded
for further explanation or reconsideration; and it is further
ORDERED that Commerce shall incorporate, to the extent required by law,
any 	adjustments 	to 	Risen’s 	dumping 	margin 	resulting 	from 	the 	remand
redetermination into its calculation of the separate rate or separate rates applicable
to individual respondents; 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
Case 1:19-cv-00153-CRK Document 79 Filed 11/10/20 Page 30 of 31

Consol. Court No. 19-00153 	Page 31
PUBLIC VERSION
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: 	October 30, 2020
New York, New York
Case 1:19-cv-00153-CRK Document 79 Filed 11/10/20 Page 31 of 31