Trina Solar Co. v. United States

767 F. Supp. 3d 1377, 2025 CIT 40

• Court: United States Court of International Trade
• Decided: April 14, 2025
• Docket: 23-00213
• Status: Published

Opinion

Slip Op. 25-40

UNITED STATES COURT OF INTERNATIONAL TRADE

TRINA SOLAR CO., LTD. ET AL,

Plaintiffs,

v. Before: Claire R. Kelly, Judge UNITED STATES, Court No. 23-00213 Defendant,

AMERICAN ALLIANCE FOR SOLAR MANUFACTURING,

Defendant-Intervenor.

OPINION

[Sustaining the Department of Commerce’s Remand Redetermination.]

Dated: April 14, 2025

Jonathan M. Freed, MacKensie R. Sugama, Kenneth N. Hammer, and Robert G. Gosselink, Trade Pacific PLLC, of Washington, D.C., for plaintiffs Trina Solar Co., Ltd., Trina Solar (Changzhou) Science & Technology Co., Ltd., Yancheng Trina Guoneng Photovoltaic Technology Co., Ltd. d/b/a Yangcheng Trina Solar Guoneng Science & Technology Co., Ltd., Trina Solar Yiwu Technology Co., Ltd., Trina Solar (Su Qian) Technology Co., Ltd., Trina Solar (Yancheng Dafeng) Co., Ltd., Changzhou Trina Hezhong Photoelectric Co., Ltd. d/b/a Changzhou Trina Hezhong PV Co., Ltd., Changzhou Trina Solar Yabang Energy Co., Ltd., Turpan Trina Solar Energy Co., Ltd.

Kristin E. Olson, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., for defendant United States. Also on the brief were Brett A. Shumate, Acting Assistant Attorney General, Patricia M. McCarthy, Director, and Reginald T. Blades, Jr., Assistant Director. Of counsel were Joseph Grossman-Trawick and Paul H. Thornton, III, Attorney, Office of the Chief Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce. Court No. 23-00213 Page 2

Timothy C. Brightbill, Elizabeth S. Lee, Kimberly A. Reynolds, Laura El-Sabaawi, Paul A. Devamithran, and Theodore P. Brackemyre, Wiley Rein, LLP, of Washington, D.C., for defendant-intervenor American Alliance for Solar Manufacturing.

Kelly, Judge: Before the Court is the U.S. Department of Commerce’s

(“Commerce”) Final Results of Redetermination Pursuant to Court Remand, Dec. 18,

2024, ECF No. 35 (“Remand Results”), in the 2021—2022 administrative review of

the antidumping duty (“ADD”) order on certain crystalline silicon photovoltaic

products, from the People’s Republic of China (“China”). Following this Court’s

remand order, see Trina Solar Co. v. United States, 721 F. Supp. 3d 1347 (Ct. Int'l

Trade 2024) (“Trina I”), Commerce revised Trina’s 1 cash deposit rate from 10.50

percent to 9.09 percent ad valorem. See Remand Results at 15. For the following

reasons, Commerce’s remand redetermination is sustained.

BACKGROUND

The Court presumes familiarity with the facts as set forth in Trina I and will

only recount those facts pertinent to the instant matter. See generally Trina I.

Commerce published, on April 12, 2022, the initiation notice of antidumping duty and

countervailing duty (“CVD”) administrative reviews of certain crystalline silicon

photovoltaic products from China concerning the period of review (“POR”) from

1 “Trina” refers to the following companies: Trina Solar (Changzhou) Science & Technology Co., Ltd.; Trina Solar Co., Ltd.; Yancheng Trina Guoneng Photovoltaic Technology Co., Ltd. (a.k.a. Yancheng Trina Solar Guoneng Science & Technology Co., Ltd.); Trina Solar Yiwu Technology Co., Ltd.; Trina Solar (Su Qian) Technology Co., Ltd.; Trina Solar Yancheng Dafeng) Co., Ltd.; Changzhou Trina Hezhong Photoelectric Co., Ltd. (a.k.a. Changzhou Trina Hezhong PV Co., Ltd.); Changzhou Trina Solar Yabang Energy Co., Ltd.; and Turpan Trina Solar Energy Co., Ltd. Court No. 23-00213 Page 3

February 1, 2021, through January 31, 2022. See generally Initiation of Antidumping

and Countervailing Duty Administrative Reviews, 87 Fed. Reg. 21,619 (Dep’t

Commerce Apr. 12, 2022). Commerce published its preliminary determination on

March 9, 2023. See Certain Crystalline Silicon Photovoltaic Products from the

People’s Republic of China; 2021–2022, 88 Fed. Reg. 14,602 (Dep’t of Commerce Mar.

9, 2023) (preliminary results, partial rescission, and preliminary determination of no

shipments) (“Preliminary Results”) and accompanying Prelim. Decision Memo.

(“Prelim. Decision Memo.”). Commerce preliminarily determined, in accordance with

Section 772(c)(1)(C) of the Tariff Act,1 as amended, 19 U.S.C. § 1677a(c)(1)(C), that

Trina’s U.S. sales price should be increased by the amount of any CVD imposed on

solar products as needed to offset an export subsidy. Prelim. Decision Memo. at 23.

In the final determination of the CVD review in 2017, Commerce found, in

accordance with 19 U.S.C. § 1677e(a)–(b), eleven programs to be countervailable by

applying an adverse inference while selecting from the facts otherwise available. See

Certain Crystalline Silicon Photovoltaic Products From the People’s Republic of

China; 2017, 84 Fed. Reg. 56,765, 56,766 (Dep’t Commerce Oct. 23, 2019) (final

results of CVD administrative review) (“CVD Final Results 2017”) and accompanying

Issues and Decision Memo. (“CVD Final Decision Memo. 2017”); see also Certain

Crystalline Silicon Photovoltaic Products from the People’s Republic of China; 2017,

84 Fed. Reg. 15,585 (Dep’t of Commerce April 16, 2019) (preliminary results) and Court No. 23-00213 Page 4

accompanying Prelim. Decision Memo. at App’x I (“CVD Prelim. Decision Memo.

2017”).

In the 2021—2022 ADD review, Commerce concluded that five of the programs

had previously been found to be export contingent. Certain Crystalline Silicon

Photovoltaic Products From the People’s Republic of China; 2021–2022, 88 Fed. Reg.

62,049 (Dep’t Commerce Sept. 8, 2023) (final results of ADD review and final

determination of no shipments) (“Final Results”) and accompanying Issues and

Decision Memo. at 9 (“Final Decision Memo.”) (collecting sources). However,

Commerce concluded that for the remaining six programs, “Commerce did not

indicate that it based the specificity determination on a finding that the programs

were export contingent.” Final Decision Memo. at 10. Thus, Commerce “adjusted

Trina’s U.S. prices by the export subsidy rates assigned to ‘non-selected’ companies”

for the five companies it found to be export contingent. Prelim. Decision Memo. at

23; see also CVD Prelim. Decision Memo. 2017 at App’x I.

Commerce issued its final determination on September 1, 2023. See generally

Final Results, 88 Fed. Reg. 62,049 (Dep’t Commerce Sept. 1, 2023). Pursuant to 19

U.S.C. § 1677a(c)(1)(C), Commerce continued to calculate the export subsidy

adjustment based on the five programs identified in the Preliminary Results,

rejecting Trina’s argument. Final Decision Memo. at 10. Commerce excluded the six

programs identified by Trina because the record evidence provided no indication the Court No. 23-00213 Page 5

six programs were export contingent and Commerce had not found the six programs

to be export contingent in earlier portions of the solar products CVD proceeding. Id.

On August 20, 2024, this Court remanded Commerce’s refusal to offset Trina’s

U.S. sales prices by the CVD imposed on the six programs in the CVD review, because

they were not export contingent, for further explanation. Trina I, 721 F. Supp. 3d at

1356. The Court explained that when Commerce selects facts otherwise available

using an adverse inference it does so in order to satisfy the elements of the statute.

Id. at 1352. The statute requires a specificity finding. See 19 U.S.C. § 1677(5A).

Therefore, here Commerce necessarily selected facts to determine that the subsidy

was specific. Trina I, 721 F. Supp. 3d at 1352.

Commerce released the Draft Remand Redetermination to interested parties

for comment on November 21, 2024. See Draft Results of Redetermination Pursuant

to Court Remand, PD 5, CD 3, bar code 4668016-01 (Nov. 21, 2024) (“Draft Remand

Results”). In the Draft Remand Results, Commerce adjusted the prices of Trina’s

sales of subject merchandise during the POR by the CVD imposed for three of the

subsidy programs, and lowered Trina’s cash deposit rate from 10.50 percent to 9.09

percent. Id. at 9—10. On November 26, 2024, Trina submitted comments on the

Draft Remand Results. See Antidumping Duty Administrative Review of Certain

Crystalline Silicon Photovoltaic Products from the People’s Republic of China:

Comments on Draft Results of Redetermination Pursuant to Court Remand, PD 7,

bar code 4671036-01 (Nov. 26, 2024) (“Trina Draft Cmts.”). On December 9, 2024, Court No. 23-00213 Page 6

Trina submitted a summary of its comments of the Draft Remand Results. See

Antidumping Duty Administrative Review of Certain Crystalline Silicon Photovoltaic

Products from the People’s Republic of China: Executive Summary to Comments on

Draft Results of Redetermination Pursuant to Court Remand, PD 9, bar code

4677279-01 (Dec. 9, 2024).

Commerce filed its Remand Results on December 18, 2024. See generally

Remand Results. Plaintiffs filed their comments on the remand results on January

17, 2025. See Pls.’ Cmts. on the Final Results of Redetermination Pursuant to Court

Remand, Jan. 17, 2025, ECF No. 38 (“Pls. Cmts.”). Defendant filed its response to

Plaintiffs’ comments on the Remand Results on February 18, 2025. See Def’s. Resp.

to Pls.’ Cmts. on Remand Results, Feb. 18, 2025, ECF No. 39 (“Def. Reply”).

Defendant-Intervenor did not file comments on the Remand Results.

JURISDICTION AND STANDARD OF REVIEW

The Court exercises 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. Commerce’s

determination will be sustained 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). “Substantial evidence is ‘such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.’” Huaiyin Foreign Trade

Corp. (30) v. United States, 322 F.3d 1369, 1374 (Fed. Cir. 2003) (quoting Consol. Court No. 23-00213 Page 7

Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). “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, 968 F. Supp. 2d 1255,

1259 (Ct. Int’l Trade 2014) (quoting Nakornthai Strip Mill Public Co. v. United States,

32 CIT 1272, 1274, 587 F. Supp. 2d 1303 (2008)).

DISCUSSION

In cases where merchandise is subject to both ADDs and CVDs, when

calculating a respondent’s ADD rate, Commerce shall increase the respondent’s

export price or constructed export price by the amount of any CVD imposed to offset

an export subsidy. 19 U.S.C. § 1677a(c)(1)(C). The dumping offset avoids “the double

application of duties.” Jinko Solar Co., Ltd. v. United States, 961 F.3d 1177, 1182

(Fed. Cir. 2020). Thus, for parallel ADD and CVD proceedings where Commerce

determines there are countervailable export subsidies, Commerce offsets the ADD

imposed in the ADD proceeding to account for the duty imposed in the CVD

proceeding. See 19 U.S.C. § 1677a(c)(1)(C).

On remand, Commerce, under respectful protest, examined information

related to its use of an adverse inference when selecting among the facts otherwise

available for the six subsidy programs from the CVD Final Results 2017. See Remand

Results at 3—10. Within the Remand Results, Commerce reconsidered whether to

adjust Trina’s sales of subject merchandise during the POR by the CVD imposed by

the six programs. Id. at 6—10. Commerce adjusted the prices of Trina’s sales of Court No. 23-00213 Page 8

subject merchandise during the POR to offset the subsidies provided by three of the

subsidy programs, but did not adjust the prices of Trina’s sales of subject merchandise

during the POR for the other three subsidy programs. Id. at 7—10. Further,

Commerce lowered Trina’s cash deposit rate from 10.50 percent to 9.09 percent. Id.

at 10. In their comments on the Remand Results, Plaintiffs do not oppose Commerce’s

Remand Results. Pls. Cmts. at 2. Defendant-Intervenor did not file comments on the

Remand Results.

Commerce’s Remand Results are reasonable, see Matsushita, 750 F.2d at 933,

and comply with the Court’s Remand Order, see Huaiyin Foreign Trade Corp. (30),

322 F.3d at 1374. In making its determination under protest Commerce explains

While Commerce may examine information in the CVD Checklist in making an AFA decision that a program is specific under section 771(5A) of the Act, in doing so Commerce does not necessarily indicate how the program actually operates or whether any alleged subsidies under the program are, in fact, contingent upon exports. For example, Commerce may initiate an investigation of a program based on one alleged type of specificity (e.g., export contingency) only to ultimately find, based upon information supplied by cooperating respondents, that the program is specific for a different reason (e.g., specificity on the basis of a de jure limitation or designated geographic limitation). In keeping with this practice, in the 2017 CVD administrative review of solar products from China, Commerce explained that, as AFA, it was finding the programs under consideration, among others, to be specific within the meaning of the Act (e.g., subsections 771(5A)(B) and (D) of the Act) but it did not make a separate specificity determination for each subsidy program whereby it identified the nature of the specificity. For these reasons, we respectfully disagree with the CIT that Commerce made “determinations” with regard to the nature of the specificity of the subsidy programs at issue. Nonetheless, in order to comply with the CIT’s holding, we are, under respectful protest, relying on information in the CVD Initiation Checklist to determine a possible basis for the AFA specificity determination in the AR 2017 CVD Final Results. Court No. 23-00213 Page 9

Remand Results at 5—6 (emphasis in original).

On remand, Commerce evaluated the six subsidy programs, finding that three

of the programs were specific under the statute because they were contingent upon

export activities. 2 Id. at 7. For these three programs, Commerce examined the

descriptions of the programs in the CVD Initiation Checklist and determined that the

investigation of these programs was based solely on allegations that the programs

were contingent upon export activity performance. Id. Thus, Commerce adjusted the

prices of Trina’s sales of subject merchandise during the POR by the CVDs imposed

by the three programs it found to be specific, offsetting the subsidies provided by the

programs. Id. For two of the remaining programs, the CVD Initiation Checklist

indicated that Commerce based its determination “to initiate an investigation of these

programs on multiple specificity allegations.” 3 Id. at 7—8. The final program was

not discussed in the CVD Initiation Checklist therefore Commerce consulted the AR

2017 CVD Preliminary Results. Id. at 9. Because the 2014—2015 administrative

review of the CVD order on solar products from China concluded that the final

program was not an export subsidy, and no new evidence indicated Commerce

2 The three subsidy programs Commerce concluded are specific are the: (1) Export

Product Research and Development Fund; (2) Subsidies for Development of “Famous Brands” and China World Top Brands; and (3) Funds for Outward Expansion of Industries in Guangdong Province programs. Remand Results at 7. 3 The two subsidy programs Commerce found to not be export contingent are the: (1)

Income Tax Reductions for Export-Oriented Enterprises and (2) Tax Refunds for Reinvestment of FIE Profits in Export-Oriented Enterprises programs. Remand Results at 7. Court No. 23-00213 Page 10

revisited this specificity determination, Commerce found no basis to adjust the prices

of Trina’s sales of subject merchandise during the POR by the CVDs imposed by the

final program.4 Id. at 9—10. Thus, Commerce determined there was insufficient

evidence to conclude that Commerce based its determination in the 2017 CVD

administrative review of solar products from China on a determination that these

three programs were export specific. Id. at 8. Commerce’s decision to adjust the

prices of Trina’s sales of subject merchandise during the POR by the CVDs imposed

by the three programs it found to be specific, while declining to adjust the prices with

regard to the other three subsidy programs is reasonable on this record and complied

with the Court’s remand order in Trina I. See Trina I, 721 F. Supp. 3d at 1356.

CONCLUSION

For the foregoing reasons, the Remand Results are supported by substantial

evidence, comply with the Court’s remand order, see ECF No. 31, and are therefore

sustained. Judgment will enter accordingly.

/s/ Claire R. Kelly Claire R. Kelly, Judge

Dated: April 14, 2025 New York, New York

4 The subsidy program discussed is the Awards for Jiangsu Famous Brand Products

program. Remand Results at 9—10.