Changzhou Trina Solar Energy Co. v. United States

• Decision Date: 03 September 2020
• Docket Number: 2020-1004
• Citation: 975 F.3d 1318
• Parties: CHANGZHOU TRINA SOLAR ENERGY CO., LTD., Trina Solar (Changzhou) Science & Technology Co., Ltd., Trina Solar (U.S.) Inc., Plaintiffs-Appellees v. UNITED STATES, Defendant-Appellee v. SolarWorld Americas, Inc., Defendant-Appellant
• Court: U.S. Court of Appeals — Federal Circuit

975 F.3d 1318

CHANGZHOU TRINA SOLAR ENERGY CO., LTD., Trina Solar (Changzhou) Science & Technology Co., Ltd., Trina Solar (U.S.) Inc., Plaintiffs-Appellees

v.UNITED STATES, Defendant-Appellee

v.SolarWorld Americas, Inc., Defendant-Appellant

2020-1004

United States Court of Appeals, Federal Circuit.

Decided: September 3, 2020

Jonathan Freed, Trade Pacific PLLC, Washington, DC, argued for plaintiffs-appellees. Also represented by Robert Gosselink.

Joshua E. Kurland, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by Ethan P. Davis, Jeanne Davidson, Reginald Thomas Blades, Jr.; Ian Andrew McInerney, Office of the Chief Counsel for Trade Enforcement and Compliance, United States Department of Commerce, Washington, DC.

Timothy C. Brightbill, Wiley Rein, LLP, Washington, DC, argued for defendant-appellant. Also represented by Laura El-Sabaawi, Douglas C. Dreier, Stephen Joseph Obermeier, John Allen Riggins, Enbar Toledano.

Before Dyk, Wallach, and Chen, Circuit Judges.

Wallach, Circuit Judge.

Appellees Changzhou Trina Solar Energy Co., Ltd., Trina Solar (Changzhou) Science & Technology Co., Ltd., and Trina Solar (U.S.), Inc. (collectively, "Trina") filed suit against Appellee the United States ("Government") in the U.S. Court of International Trade ("CIT"), challenging the U.S. Department of Commerce's ("Commerce") final results in the first administrative review of the antidumping ("antidumping" or "AD") duty order covering certain crystalline silicon photovoltaic products from the People's Republic of China ("PRC"). See Certain Crystalline Silicon Photovoltaic Products From the People's Republic of China , 82 Fed. Reg. 32,170, 32,172 (Dep't of Commerce July 12, 2017) (final results) ("Final Results "). Appellant SolarWorld Americas, Inc. ("SolarWorld"), a domestic producer of like products, participated as petitioner and defendant-intervenor. The CIT remanded "Commerce's decision not to offset" Trina's export price by a countervailed export subsidy as "contrary to law," instructing Commerce "to recalculate Trina's [export] price[ ]" with the offset, while sustaining, inter alia, "Commerce's surrogate value selection[ ] for valuing ... module glass." Changzhou Trina Solar Energy Co. v. United States (Trina I ), 359 F. Supp. 3d 1329, 1344 (Ct. Int'l Trade 2019). Commerce issued its remand redetermination, recalculating Trina's export price in accordance with Trina I, under protest. J.A. 6764–65; see J.A. 6764–70 (Remand Redetermination). The CIT sustained Commerce's Remand Redetermination. See Changzhou Trina Solar Energy Co. v. United States (Trina II ), 393 F. Supp. 3d 1245, 1251 (Ct. Int'l Trade 2019) ; J.A. 16–17 (Judgment).

SolarWorld appeals. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5). We affirm.

BACKGROUND

I. Legal Framework

Antidumping duties may be imposed on "foreign merchandise [that] is being, or is likely to be, sold in the United States at less than its fair value." 19 U.S.C. § 1673(1). Domestic industries may seek "relief from [such] imports," Allegheny Ludlum Corp. v. United States , 287 F.3d 1365, 1368 (Fed. Cir. 2002), by filing a petition with Commerce and the U.S. International Trade Commission ("ITC") to initiate an antidumping duty investigation, see 19 U.S.C. §§ 1673a(b), 1677(9)(C). Following investigation, if Commerce determines that imported merchandise "is being, or is likely to be, sold in the United States at less than its fair value," id. § 1673(1), and the ITC determines that the importation or sale of that merchandise has "materially injured" or "threaten[s]" to "materially injur[e]" "an industry in the United States," id. § 1673(2), then Commerce will "publish an antidumping duty order ... direct[ing] [U.S. Customs and Border Protection] to assess ... antidumping dut[ies]" on subject merchandise, id. § 1673e(a)(1). Each year after the order is published, "if [Commerce receives] a request for ... review" of that order from an interested party, Commerce will "review[ ] and determine ... the amount of any antidumping duty" under the order. Id. § 1675(a)(1)(B) (providing for the "[p]eriodic review of [the] amount of duty"); see 19 C.F.R. § 351.213(b) (providing for the "[a]dministrative review of orders" on the request of "an interested party").¹

In the course an investigation or review, Commerce "determine[s] the estimated weighted average dumping margin for each exporter and producer individually investigated" or reviewed and "the estimated all-others rate for all exporters and producers not individually investigated" or reviewed. 19 U.S.C. § 1673d(c)(1)(B)(i) ; see id. § 1677f-1(c) (providing for the "[d]etermination of dumping margin[s]" in investigations and reviews for "a reasonable number of exporters or producers"). A dumping margin reflects the amount by which the " ‘normal value’ (the price a producer charges in its home market) exceeds the ‘export price’ (the price of the product in the United States) or ‘constructed export price.’ " U.S. Steel Corp. v. United States , 621 F.3d 1351, 1353 (Fed. Cir. 2010) (footnote omitted) (citing 19 U.S.C. § 1677(35)(A) ); see 19 U.S.C. §§ 1677b(a)(1) (defining "normal value" as "the price at which the [merchandise] is first sold ... for consumption" in the home country or a third country), 1677a(b) (defining "constructed export price" as "the price at which the subject merchandise is first sold ... in the United States" to "a purchaser not affiliated with the producer or exporter"). Where merchandise is subject to both antidumping and countervailing duties ("countervailing duties" or "CVD"), Commerce will increase the export price or constructed export price by "the amount of any countervailing duty imposed on the subject merchandise ... to offset an export subsidy[.]" 19 U.S.C.§ 1677a(c)(1)(C) ; see id. § 1671(a)(1) (providing that countervailing duties may be imposed on imported merchandise to countervail subsidies provided by, e.g., the government of the exporting country, for "the manufacture, production, or export of" that merchandise). If Commerce finds that the exporting country is a "nonmarket economy" ("NME") country² and "that available information does not permit the normal value of the subject merchandise to be determined under [ § 1677b(a) ]," then Commerce calculates the normal value using surrogate values for the "factors of production" in a comparable "market economy country." Id. § 1677b(c)(1).

II. Procedural History

A. The AD and CVD Orders

In December 2013, SolarWorld, "a domestic producer of solar cells and panels," filed "antidumping [and countervailing] duty ... petition[s] concerning imports of certain crystalline silicon photovoltaic products" from the PRC, then Commerce initiated antidumping and countervailing duty investigations in response. Certain Crystalline Silicon Photovoltaic Products From the People's Republic of China and Taiwan , 79 Fed. Reg. 4,661, 4,661 (Dep't of Commerce Jan. 29, 2014) (initiation of antidumping duty investigations); see Certain Crystalline Silicon Photovoltaic Products From the People's Republic of China , 79 Fed. Reg. 4,667, 4,668 (Dep't of Commerce Jan. 29, 2014) (initiation of countervailing duty investigation) (similar). Trina was a mandatory respondent in the CVD investigation proceedings. See Countervailing Duty Investigation of Certain Crystalline Silicon Photovoltaic Products From the People's Republic of China , 79 Fed. Reg. 76,962, 76,963 (Dep't of Commerce Dec. 23, 2014) (final affirmative countervailing duty determination) ("Final CVD Determination ").

In calculating Trina's countervailing duty rate, Commerce found various "[p]rograms ... to be countervailable," Issues & Decisions Mem., Certain Crystalline Silicon Photovoltaic Products From the People's Republic of China , C-570-011, Investigation at 16 (Dec. 15, 2014), https://enforcement.trade.gov/frn/summary/prc/2014-30071-1.pdf (adopted in Final CVD Determination , 79 Fed. Reg. 76,962) ("Final CVD I&D Mem."), among them, "Export Buyer's Credits," as "[e]xport [c]redit [s]ubsidies" ("Ex-Im Bank Buyer's Credit Program") provided by the Export-Import Bank of China ("Ex-Im Bank"), id. at 30. Commerce explained that, "through this program, the [Ex-Im Bank] provides loans at preferential rates for the purchase of exported goods from the PRC." Id. ; see id. at 94 ("[W]here we have found that such export buyer's credits have been used [by buyers], we have consistently found such financing to be countervailable as a subsidy benefitting the exporter"). While Trina had reported that it had not used the Ex-Im Bank Buyer's Credit Program, see id. at 94, Commerce "was not able to verify [Trina's] reported non-use ... during verification with the [Government of China]," id. at 30. Commerce, accordingly, "rel[ied] upon [adverse facts available (‘AFA’) ]" to determine that "Trina ... used [the] program during the [period of investigation]." Id. ; see 19 U.S.C. §§ 1677e(a)(2)(A) (providing for "[d]eterminations [made] on [the] basis of facts available" where an "interested party ... withholds [requested] information"), 1677e(b)(1) (providing for the use of "[a]dverse inferences" "in selecting from among the facts otherwise available" where Commerce "finds that an interested party has failed to cooperate ... to the best of its ability"). Commerce concluded that Trina had "benefited from this program at [a] rate of 10.54 percent ad valorem , the highest rate determined for a similar program in a prior PRC proceeding." Final CVD I&D Mem. 16.

In February 2015, Commerce issued antidumping and countervailing duty orders covering "certain crystalline silicon photovoltaic products," specifically, "modules, laminates and/or panels consisting of crystalline silicon photovoltaic cells, whether or not partially or fully assembled into other products, including building integrated materials." Certain Crystalline Silicon Photovoltaic Products...