Canadian Solar Int'l Ltd. v. United States, Slip Op. 19-152

• Citation: 415 F.Supp.3d 1326
• Decision Date: 03 December 2019
• Docket Number: Consol. Court No. 17-00173,Slip Op. 19-152
• Parties: CANADIAN SOLAR INTERNATIONAL LIMITED et al., Plaintiffs and Consolidated Plaintiffs, and Shanghai BYD Co., Ltd. et al., Plaintiff-Intervenors and Consolidated Plaintiff-Intervenors, v. UNITED STATES, Defendant, and Solarworld Americas, Inc. et al., Defendant-Intervenor and Consolidated Defendant-Intervenors.
• Court: U.S. Court of International Trade

415 F.Supp.3d 1326

CANADIAN SOLAR INTERNATIONAL LIMITED et al., Plaintiffs and Consolidated Plaintiffs,

and

Shanghai BYD Co., Ltd. et al., Plaintiff-Intervenors and Consolidated Plaintiff-Intervenors,

v.UNITED STATES, Defendant,andSolarworld Americas, Inc. et al., Defendant-Intervenor and Consolidated Defendant-Intervenors.

Slip Op. 19-152

Consol. Court No. 17-00173

United States Court of International Trade.

December 3, 2019

Craig Anderson Lewis, Jonathan Thomas Stoel, and Michael G. Jacobson, Hogan Lovells US LLP, of Washington, DC, for Canadian Solar International Limited; Canadian Solar Manufacturing (Changshu), Inc.; Canadian Solar Manufacturing (Luoyang), Inc.; CSI Solar Power (China) Inc.; CSI-GCL Solar Manufacturing (YanCheng) Co., Ltd.; CSI Cells Co., Ltd.; and Canadian Solar (USA) Inc.

Adams Chi-Peng Lee, Harris Bricken McVay Sliwoski, LLP, of Seattle, Washington, for Ningbo Qixin Solar Electrical Appliance Co., Ltd.

Jonathan M. Freed, Robert George Gosselink, and Jarrod Mark Goldfeder, Trade Pacific, PLLC, of Washington, DC, for 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 (U.S.) Inc.

Timothy C. Brightbill, Laura El-Sabaawi and Usha Neelakantan, Wiley Rein, LLP, of Washington, DC, for SolarWorld Americas, Inc.

Neil R. Ellis, Richard L.A. Weiner, Rajib Pal, Shawn M. Higgins, and Justin R. Becker, Sidley Austin, LLP, of Washington, DC, for Yingli Green Energy Holding, Co., Ltd.; Baoding Tianwei Yingli New Energy Resources Co., Ltd.; Tianjin 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.; Yingli Green Energy Americas, Inc.; and Yingli Energy (China) Co., Ltd.

Joshua Ethan Kurland, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC. With him on the brief were Joseph H. Hunt, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Reginald T. Blades, Jr., Assistant Director. Of counsel on the brief was Mercedes C. Morno, Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, DC.

OPINION AND ORDER

Kelly, Judge:

Before the court for review is the U.S. Department of Commerce's ("Department" or "Commerce") remand redetermination filed pursuant to the court's order in Canadian Solar Int'l Ltd. v. United States, 43 CIT ––––, ––––, 378 F. Supp. 3d 1292, 1325 (2019) (" Canadian Solar I"). See also Results of Remand Redetermination Pursuant to Ct. Remand Order Confidential Version, July 15, 2019, ECF No. 110 ("Remand Results"). In Canadian Solar I, the court sustained in part and remanded in part Commerce's determination in the third administrative review of the antidumping duty ("ADD") order on crystalline silicon photovoltaic products, whether or not assembled into modules, from the People's Republic of China ("the PRC"). See Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the People's Republic of China, 82 Fed. Reg. 29,033 (Dep't Commerce June 27, 2017) (final results of [ADD] administrative review and final determination of no shipments; 2014–2015) ("Final Results") and accompanying Issues and Decision Memorandum for the Final Results of the 2014–2015 [ADD] Administrative Review of Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled into Modules, From [the PRC], A-570-979, (June 20, 2017), ECF No. 44-5 ("Final Decision Memo"). Specifically, the court ordered Commerce to further explain or reconsider its surrogate value selection for valuing respondents' module glass inputs. Canadian Solar I, 43 CIT at ––––, 378 F. Supp. 3d at 1325. The court also ordered Commerce to reconsider its application of an adverse inference in calculating Canadian Solar's¹ dumping rate. Id. Finally, the court ordered Commerce to reconsider its decision to reject Ningbo Qixin Solar Electrical Appliance Co., Ltd.'s ("Qixin") separate rate application. Id.

On remand, Commerce valued respondents' module glass inputs using the Bulgarian Harmonized Tariff Schedule ("HTS") subheading as opposed to the Thailand HTS subheading. Remand Results at 2, 11–13. Commerce further explained its "use of an adverse inference in selecting from the facts available to value factor of production [ ] information that was not provided by certain unaffiliated suppliers." Id. at 2; see also id. at 15–23. Finally, Commerce reopened the record and issued Qixin a supplemental questionnaire. Id. at 2, 29–33; see also Letter USDOC to Sandler, Travis Pertaining to Ningbo Qixin Questionnaire, RPD 3, bar code 3829214-01 (May 2, 2019). Commerce found Qixin ineligible due to Qixin's failure to "demonstrate that it made a shipment of [the] subject merchandise during the [period of review ("POR").]" Remand Results at 2, 29–33.

For the reasons that follow, the court sustains Commerce's selection of surrogate values for module glass. The court also sustains Commerce's rejection of Qixin's separate rate application. The court remands Commerce's application of an adverse inference in calculating Canadian Solar's dumping rate for further explanation or reconsideration.

BACKGROUND

This 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 Canadian Solar Int'l Ltd. v. United States, 43 CIT ––––, 378 F. Supp. 3d 1292. On June 27, 2017, Commerce published its final determination pursuant to its third administrative review of the ADD order of crystalline silicone photovoltaic products, whether or not assembled into modules, from the PRC. See generally Final Results. Commerce, inter alia, "selected Thailand as the primary surrogate country for valuing the mandatory respondents' factors of production[.]" Canadian Solar I, 43 CIT at ––––, 378 F. Supp. 3d at 1298–1300 ; see generally Final Decision Memo. Commerce applied partial adverse facts available ("AFA")² in calculating Canadian Solar's antidumping margin because a number of unaffiliated suppliers of Canadian Solar's solar cells and solar modules sold in the United States failed to provide sufficient factors of production ("FOP") information, and because Commerce found that Canadian Solar could have, but did not, induce cooperation. See Final Decision Memo at 15–18; Remand Results at 8. Finally, Commerce rejected Qixin's separate rate application. Canadian Solar I, 378 F. Supp. 3d at 1299.

Canadian Solar commenced an action pursuant to section 516A(a)(2)(B)(iii) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2012).³ Summons, July 7, 2017, ECF No. 1; Compl., July 7, 2017, ECF No. 8. This action was consolidated with actions brought by Qixin, Shanghai BYD Co., Ltd., Changzhou Trina Solar Energy Co., Ltd. et al. ("Trina"),⁴ SolarWorld Americas, Inc. ("SolarWorld"),⁵ and Sunpreme Inc. See Order, Sept. 26, 2017, ECF No. 41.⁶ Plaintiffs, Consolidated Plaintiffs, and Plaintiff-Intervenors brought several motions for judgment on the agency record before this court pursuant to USCIT 56.2, challenging various aspects of Commerce's determination.

This court sustained Commerce's surrogate value selections for valuing respondents' aluminum frames, nitrogen, polysilicon ingots and blocks, and financial ratios; Commerce's decision to include reported quantities of zero in the surrogate value calculations; and Commerce's denial of an offset for Trina U.S.'s debt restructuring income. Canadian Solar I, 43 CIT at ––––, 378 F. Supp. 3d at 1325. The court held that Commerce's reliance on the tempered glass subheading to value respondents' module glass was supported by substantial evidence, but that Commerce failed to reasonably explain why Thai import data for tempered glass "was not distorted by a small quantity of unusually costly imports from Hong Kong." See Canadian Solar I, 43 CIT at ––––, 378 F. Supp. 3d at 1303–07 ; see also Remand Results at 6. Further, this court held that Commerce's decision to apply partial AFA against Canadian Solar was unreasonable and contrary to law. See Canadian Solar I, 43 CIT at ––––, 378 F. Supp. 3d at 1320–22. This court remanded to Commerce to reconsider its denial of Qixin's separate rate application. See id. at 1325.

On remand, Commerce first, under respectful protest,⁷ valued respondents' module glass using Bulgarian import data.⁸ See Remand Results at 11. Commerce based this decision on the fact that Bulgarian data satisfied the breadth of its surrogate value criteria, as well as the holding in SolarWorld Americas, Inc. v. United States, 42 CIT ––––, 320 F. Supp. 3d 1341 (2018) that use of this import data was reasonable. See Remand Results 12–15.

These changes in Commerce's methodology on remand resulted in a revised rate for Trina and the separate rate respondents. Id. at 4. Second, Commerce further explained its reasoning in applying partial AFA against Canadian Solar. See Remand Results at 15–29. Third, pursuant to this court's order, Commerce also provided Qixin the opportunity to demonstrate that any of its entries during the POR qualified as a sale of subject merchandise. See Remand Results at 29–33. Qixin failed to provide any such information. See Remand Results at 32. Commerce thus found Qixin ineligible for a separate rate. Id. at 33. For reasons that follow, Commerce's decisions to use Bulgarian import data, and to find Qixin is ineligible for a separate rate, are sustained. Commerce's decision to impose partial AFA on Canadian Solar is remanded to Commerce for further...