Changzhou Trina Solar Energy Co. v. United States

Slip Op. 18-

UNITED STATES COURT OF INTERNATIONAL TRADE

CHANGZHOU TRINA SOLAR ENERGY
CO., LTD., ET AL., and SOLARWORLD
AMERICAS, INC.,

Plaintiffs, and
Consolidated Plaintiffs,

v.

UNITED STATES,
Before: Jane A. Restani, Judge
Defendant.

SOLARWORLD AMERICAS, INC., Court No. 17-00246
CHANGZHOU TRINA SOLAR ENERGY
CO., LTD., and CHANGZHOU TRINA
SOLAR ENERGY CO., LTD.,

Defendant-Intervenor and
Consolidated Defendant-
Intervenor.

OPINION AND ORDER

Dated: November 30, 2018

[Commerce’s Final Results in the Administrative Review of Commerce’s Countervailing Duty
Order pertaining to Crystalline Silicon Photovoltaic Products from the People’s Republic of
China are remanded for reconsideration consistent with this opinion.]

Robert Gosselink, Jonathan Freed, and Kenneth Hammer Trade Pacific, PLLC, of
Washington, D.C., for Plaintiffs/Defendant-Intervenors Changzhou Trina Solar Energy Co., Ltd.,
Trina Solar Limited, Trina Solar (Changzhou) Science & Technology Co., Ltd., Yancheng Trina
Solar Energy Technology Co., Ltd., Changzhou Trina Solar Yabang Energy Co., Ltd., Hubei
Trina Solar Energy Co., Ltd., Turpan Trina Solar Energy Co., Ltd., and Changzhou Trina PV
Ribbon Materials Co., Ltd. (collectively “Trina”).
Consol. Court No. 17-00246 Page 2

Chad A. Readler, Jeanne E. Davidson, Tara K. Hogan, and Justin R. Miller, International
Trade Field Office, U.S. Department of Justice, of New York, NY. Of counsel Lydia C. Pardini,
Office of Chief Counsel for Trade Enforcement and Compliance, U.S. Department of
Commerce, of Washington, D.C.

Timothy Brightbill, Laura El-Sabaawi, and Usha Neelakantan, Wiley Rein, LLP, of
Washington, D.C., for Consolidated Plaintiffs/Defendant-Intervenor SolarWorld Americas, Inc.
(“SolarWorld”). 1

Restani, Judge: This action is a challenge of a final determination issued by the United

States Department of Commerce (“Commerce”) in Commerce’s First Administrative Review of

the countervailing duty order on crystalline silicon photovoltaic products, (“solar products”)

from the People’s Republic of China (“PRC”), covering the period from June 10, 2014, through

December 31, 2015. See Crystalline Silicon Photovoltaic Products from the People’s Republic

of China: Final Results of Countervailing Duty Administrative Review, and Partial Rescission of

Countervailing Duty Administrative Review; 2014-2015, 82 Fed. Reg. 42,792 (Dep’t Commerce

Sept. 12, 2017) (“Final Results). Changzhou Trina Solar Energy Co., Ltd., Trina Solar Limited,

Trina Solar (Changzhou) Science & Technology Co., Ltd., Yancheng Trina Solar Energy

Technology Co., Ltd., Changzhou Trina Solar Yabang Energy Co., Ltd., Hubei Trina Solar

Energy Co., Ltd., Turpan Trina Solar Energy Co., Ltd., and Changzhou Trina PV Ribbon

Materials Co., Ltd. (collectively “Trina”) request the court hold aspects of Commerce’s final

determination to be unsupported by substantial evidence or otherwise not in accordance with

law.

The United States (“Defendant”) asks that the court sustain Commerce’s Final Results of

its first administrative review. SolarWorld Americas, Inc. (“SolarWorld”) requests the court to

1
SolarWorld and Trina are both consolidated plaintiffs as well as defendant-intervenors in this
case, depending on the issue before the court.
Consol. Court No. 17-00246 Page 3

uphold portions of Commerce’s Final Results as supported by substantial evidence and otherwise

consistent with law.

BACKGROUND

Commerce first published an antidumping and countervailing duty order on solar

products from the People’s Republic of China (“PRC”) on February 18, 2015. See Crystalline

Silicon Photovoltaic Products, from the People’s Republic of China: Antidumping Duty Order;

and Amended Final Affirmative Countervailing Duty Determination and Countervailing Duty

Order, 80 Fed. Reg. 8,592 (Dep’t Commerce Feb. 18, 2015). 2 In 2016, Commerce initiated an

administrative review of the countervailing duty order, covering the period from June 10, 2014 to

December 31, 2015. The Department selected Trina (including its cross-owned affiliate) and

BYD (Shangluo) Industrial Co., Ltd. (BYD) as mandatory respondents (“Respondents”) and

issued questionnaires to them and the Government of the PRC (“GOC”) on August 22, 2016, and

supplemental questionnaires on September 22, 2016. Decision Memorandum for the Preliminary

Results of the Administrative Review of the Countervailing Duty Order on Certain Crystalline

Silicon Photovoltaic Products from the People's Republic of China; 2014-2015, C-570-011,

POR: 6/10/2014-12/31/2015, at 1–3 (“Prelim I&D Memo”). On February 28, 2017, Commerce

published its preliminary results of the administrative review. Certain Crystalline Silicon

Photovoltaic Products from the People's Republic of China: Preliminary Results of

Countervailing Duty Administrative Review and Preliminary Intent To Rescind, in Part; 2014-

2015, 82 Fed. Reg. 12,562 (Dep’t Commerce Mar. 6, 2017) and accompanying issues and

2
Duties are imposed when a government or public entity is found to be providing a
countervailable subsidy to the manufacture, production, or exportation of merchandise then
imported into the United States if that importation in turn either materially injures or threatens to
materially injure an industry in the United States. See 19 U.S.C. § 1671(a).
Consol. Court No. 17-00246 Page 4

decision memorandum. After receiving submissions from interested parties, Commerce issued

its Final Results on September 12, 2017. 82 Fed. Reg. 42,792 (Dep’t Commerce Sept. 12, 2017)

and accompanying issues and decision memorandum Decision Memorandum for Final Results

and Partial Rescission of Countervailing Duty Administrative Review: Crystalline Silicon

Photovoltaic Products from the People's Republic of China; 2014-2015, C-570-011,

POR:6/10/2014-12/31/2015 (“I&D Memo”). Consolidated Plaintiffs challenge several aspects of

the Final Results, as amended.

JURISDICTION AND STANDARD OF REVIEW

The court has jurisdiction pursuant to 28 U.S.C. § 1581(c) and 19 U.S.C. § 1516a(a)(2)

(2012). Commerce’s results in a countervailing duty investigation are upheld unless

“unsupported by substantial evidence on the record, or otherwise not in accordance with law[.]”

19 U.S.C. § 1516a(b)(1)(B)(i).

DISCUSSION

Because the parties present a variety of fact-specific claims, the following opinion

addresses each in turn. Further, as these issues are also addressed in Changzhou Trina Solar

Energy Co., Ltd., et. al v. United States, Slip Op. 18-166 (Nov. 30, 2018), this opinion frequently

references that decision.

I. Export Buyer’s Credit Program Use

a. Background

The GOC’s Export Buyer’s Credit Program (EBCP) extends credits to qualifying

companies that purchase exported PRC goods. Prelim I&D Memo at 29, 41. Commerce

concluded the revised Administrative Measures in 2013 may have removed the previous

requirement that a contract must be worth over $2 million in order to qualify for credits through
Consol. Court No. 17-00246 Page 5

the program and may have also allowed unspecified third-party banks to distribute credits

through the program. Id. When Commerce requested information regarding these issues, the

GOC refused to answer, stating that the information was unnecessary to determine usage and

was “internal to the bank, non-public, and not available for release.” Id. at 29. Without this

information, Commerce found that its understanding of the program was incomplete and

unreliable such that the certifications of non-use provided by Trina were unverifiable and thus

insufficient to prevent the use adverse facts available (“AFA”). See id. at 29–31. Based on AFA,

Commerce determined that Trina had used the EBCP. I&D Memo at 31–34.

Trina contends that its submissions of non-use of the EBCP are verifiable for multiple

reasons. See Memorandum in Support of Trina for Judgment Upon the Agency Record at 8–14,

Doc. No. 27-3 (Mar. 23, 2018) (“Trina Br.”). First, they argue that Trina’s non-use of the

program was supported not only by certifications by TUS, Trina’s only U.S.-based customer, and

certifications of TUS’s customers, but by the GOC who stated that it confirmed with the China

Ex-Im Bank that none of Trina’s customers benefited from the program. See id. at 8–9. Second,

Trina argues that Commerce should have issued supplemental questionnaires to Trina or

attempted to verify the certifications of non-use in other ways after the GOC’s failure to

cooperate fully. Id. at 10. Third, they argue that denying these certifications of non-use is not in

accordance with Commerce’s previous practice of accepting such evidence as true when there is

no contradictory evidence on record, and Commerce did not adequately provide a reason for this

deviation. See id. at 11–14. Finally, Trina contends that Commerce should have checked the

records of its sole U.S. customer, TUS, for any evidence of loans from third-party banks before

determining that Trina benefited from the program. See id. at 14.

SolarWorld counters that Commerce’s application of AFA is reasonable and in fact
Consol. Court No. 17-00246 Page 6

required under the Tariff Act of 1930, in cases where a party like the GOC continually fails to

cooperate with Commerce’s requests for information. See SolarWorld Response to Trina’s

Motion for Judgment Upon the Agency Record, Doc. No. 44 at 14–16 (July 9, 2018)

(“SolarWorld Resp.”). Further, SolarWorld argues that without knowing how the EBCP

operates, any claims of non-use are unreliable. See id. at 16. Finally, SolarWorld states that the

2013 revisions to the program, and Commerce’s explanation of why these revisions make the

certifications of non-use unreliable, justify Commerce’s deviation from its previous practice of

accepting such certifications. See id. at 17–20.

In its brief, the Government reiterates points raised in Commerce’s issues and decisions

memorandum regarding the GOC’s failure to provide information on the 2013 revisions to the

EBCP and asserts that this missing information made certifications of non-use unverifiable. See

Defendant’s Response in Opposition to Plaintiff’s Motion for Judgment Upon the Agency

Record, Doc No. 39 at 9–11 (July 9, 2018) (“Def. Br.”). Commerce further claims that its

decision to impose AFA despite cooperation from Trina is not in conflict with its previous

decisions given the intervening 2013 revisions. See id. at 13–17. Finally, Commerce claims that

without knowing how the revisions changed the EBCP, eliciting additional information from

Trina would have been fruitless given its inability to “test the accuracy” of the claims of non-use.

Id. at 18.

In its reply, Trina continued to argue that Commerce failed to justify why a full

explanation of the potential involvement of third-party banks was necessary to verifying non-use

and that there were no facts on the record indicating that Trina or its sole U.S. customer even

qualified for EBCP credits. See Reply Brief of Trina to Defendant’s and Defendant-Intervenor’s

Response to Plaintiff’s Motion for Judgment on the Agency Record, Doc. No. 50 at 4–6 (Sept.
Consol. Court No. 17-00246 Page 7

10, 2018) (“Trina Reply Br.”). Trina contends that Commerce should have requested any

evidence of loans made in connection with Trina and evaluated whether such loans could have

been made through the EBCP. Id. at 11–12.

b. Discussion

This issue is nearly identical to the one before the court in Changzhou, Slip Op. 18-166.

For the sake of convenience, the main points are highlighted below. As stated in that opinion,

Commerce acted within its discretion under 19 U.S.C. § 1677e(a)(2)(A) to apply AFA to a

cooperating party given the GOC’s failure to provide information potentially relevant to Trina’s

claims of non-use. Changzhou, Slip Op. 18-166 at 8–9 (holding that when a foreign government

fails to supply requested information and other information on the record does not fill the gaps,

application of AFA to a cooperating party is within Commerce’s discretion). But, prior to

applying AFA, Commerce must first demonstrate that the GOC’s failure to provide information

left a gap in the record and subsequently explain how using facts available with an adverse

inference reasonably leads to a given conclusion.

Here, Commerce does not explain why it was necessary for it to fully understand the

EBCP in order to ascertain claims of non-use. Further, Commerce does not point to information

on the record that allows Commerce to reasonably conclude, even with appropriate adverse

inferences, that Trina used the EBCP. Even when using AFA, Commerce must still explain what

information is missing and what adverse inferences reasonably leads to its conclusion.

Conclusory statements about a program’s use cannot be sustained without an explanation.

Accordingly, the court remands this matter to Commerce in order to explain what

information the GOC specifically failed to provide that allows Commerce to properly resort to

facts otherwise available and how drawing an adverse inference to specific facts logically leads
Consol. Court No. 17-00246 Page 8

to the conclusion that Trina benefitted from the EBCP. Commerce should also clarify why the

certifications of non-use are unverifiable without a full understanding of the EBCP. Should

Commerce determine that the certifications are in fact verifiable by not unreasonably onerous

means, the court instructs it to do so.

II. Export Buyer’s Credit Program Rate

a. Background

If Commerce continues to find that respondents benefitted from the EBCP, and the court

sustains that finding, the court finds no issue with Commerce’s determination of the appropriate

rate based on its established AFA rate methodology.

After determining respondents benefitted from the EBCP, Commerce used its established

hierarchy to determine the appropriate AFA rate. 3 This hierarchy was developed to effectuate 19

U.S.C. § 1677e(d) which does not provide specific guidelines for selecting an AFA rate, but does

state that Commerce should “use a countervailable subsidy rate applied for the same or similar

program in a countervailing duty proceeding involving the same country.” 19 U.S.C. §

3
The I&D Memo details the hierarchy: “Under the first step of the Department’s CVD AFA
hierarchy for administrative reviews, the Department applies the highest non-de minimis rate
calculated for a cooperating respondent for the identical program in any segment of the same
proceeding. If there is no identical program match within the same proceeding, or if the rate is
de-minimis, under step two of the hierarchy, the Department applies the highest non-de minimis
rate calculated for a cooperating company for a similar program within any segment of the same
proceeding. If there is no non-de minimis rate calculated for a similar program within the same
proceeding, under step three of the hierarchy, the Department applies the highest non-de minimis
rate calculated for an identical or similar program in another CVD proceeding involving the
same country. Finally, if there is no non-de minimis rate calculated for an identical or same
program in another CVD proceeding involving the same country, under step four, the
Department applies the highest calculated rate for a cooperating company for any program from
the same country that the industry subject to the investigation could have used.” I&D Memo at
36; see also Solar Americas, Inc. v. United States, 229 F. Supp. 3d 1362, 1366 (CIT 2017)
(similarly describing this hierarchy).
Consol. Court No. 17-00246 Page 9

1677e(d)(1)(A)(i). Because there was no calculated rate for the EBCP in the proceeding at issue,

Commerce turned to step two in its hierarchy, in which Commerce uses a rate “for a

similar/comparable program (based on the treatment of the benefit) in the same proceeding,

excluding de minimis rates.” Commerce accordingly found a similar loan program in the same

proceeding and arrived at a rate of 0.58 percent. I&D Memo at 36.

The crux of SolarWorld’s argument is that in using its established methodology,

Commerce arrived at an AFA rate too low to induce compliance in future proceedings. See

SolarWorld’s Memorandum in Support of Its Rule 56.2 Motion for Judgment Upon the Agency

Record, Doc. No. 31 at 12–16 (Mar. 23, 2018) (“SolarWorld Br.”). SolarWorld argues that 19

U.S.C. § 1677e requires Commerce to set a rate high enough to encourage a party’s future

compliance in administrative reviews. Id. at 11. SolarWorld details several proceedings in which

a higher rate has failed to result in the GOC’s future full compliance with Commerce’s reviews.

See SolarWorld Br. at 13–14. Based on this history of GOC noncompliance, SolarWorld argues

that such a low rate of 0.58 percent will not encourage compliance. Id. at 16.

Both Trina and the Government disagree with SolarWorld, arguing that it is within

Commerce’s discretion to employ its established methodology in AFA rate determinations. See

Trina’s Response to Plaintiff SolarWorld’s Motion for Judgment on the Agency Record, Doc.

No. 42 at 7–11 (July 9, 2018) (“Trina Resp.”); Def. Br. at 20–23. At base, they argue that the

goal in setting an AFA rate is to strike a balance between relevancy and inducement. Def. Br. at

23; Trina Resp. at 11.

b. Discussion

As the United States Court of Appeals for the Federal Circuit has stated “the purpose of

section 1677e(b) is to provide respondents with an incentive to cooperate, not to impose punitive,
Consol. Court No. 17-00246 Page 10

aberrational, or uncorroborated margins.” F.lli De Cecco Di Filippo Fara S. Martino S.p.A. v.

U.S., 216 F.3d 1027, 1032 (Fed. Cir. 2000). What SolarWorld essentially argues is for

Commerce to deviate from an established practice because the rate assessed was not high enough

to be punitive. This argument fails.

First, the Court notes that even if Commerce, on remand, finds that the GOC refused to

comply with Commerce’s requests such that a resort to AFA is warranted, SolarWorld fails to

appreciate that Trina is a cooperating respondent. When selecting a rate for a cooperating party,

“the equities would suggest greater emphasis on accuracy” over deterrence. See Mueller

Comercial de Mexico, S. de R.L. De C.V. v. United States, 753 F.3d 1227, 1234 (Fed. Cir. 2014)

(discussing Commerce’s consideration of both deterring noncompliance and assessing an

accurate AFA rate under 19 U.S.C. 1677e(b)).

Second, although encouraging compliance is a valid consideration in determining an

AFA rate, it is not, as SolarWorld argues “inconsistent with the statute” for Commerce to weigh

other factors, such as relevancy, which ultimately result in a presumably low AFA rate.

SolarWorld Br. at 18. As the court in Mueller stated, “the primary objective [is] the calculation

of an accurate rate.” 753 F.3d at 1235. Here, Commerce did not act unreasonably in selecting a

rate from a program, which no party argues is dissimilar, in setting an AFA rate.

Finally, the court is simply not convinced that Commerce’s established hierarchy in

setting an AFA rate is an unreasonable way of effectuating the statute. See Chevron U.S.A., Inc.

v. Natural Resources Defense Council, Inc., 467 U.S. 837, 845 (1984). In fact, insisting that

Commerce deviate from this established practice because the rate is not seen to be a sufficient

deterrent or perhaps, in this circumstance, not sufficiently punitive strikes the court as arbitrary.

Commerce’s hierarchy establishes both some consistency and predictability in Commerce’s
Consol. Court No. 17-00246 Page 11

determinations and also attempts to guard against setting too low a rate by requiring the selected

program to have a non-de minimus rate. In this specific instance, Commerce applied the highest

non-de minimus rate for a similar program, further supporting its contention that Commerce

attempted to strike a balance between relevancy and inducement. I&D Memo at 36.

Accordingly, the court sustains Commerce’s use of its established hierarchy in assessing

a rate for the EBCP. If Commerce continues to find that respondents benefitted from the

program on remand, Commerce may continue to use this established methodology in arriving at

the appropriate rate.

III. Aluminum Extrusion Benchmark

a. Background

Commerce averaged two datasets in order to find the appropriate benchmark for

aluminum extrusions used in the production of photovoltaic products. Commerce found that

these data sets–from IHS technologies and UN Comtrade 4–both contained flaws, but that

“neither data set contains flaws or deficiencies so serious that either should be rejected in their

entirety for the purpose of creating a more robust global benchmark.” I&D Memo at 21.

Commerce found the IHS data problematic because it was based on an annual average, rather

than monthly averages, while the UN Comtrade data was monthly but included a broader swath

of merchandise not exclusive to aluminum used in solar products. See id. at 20–21. Commerce

justified the inclusion of the Comtrade data claiming that it was “familiar with the merchandise”

included in the Comtrade data and had used it in a previous case involving aluminum extrusions.

Id. at 20.

4
Comtrade included merchandise classified under the Harmonized Tariff Schedule of the United
States headings 7604.21, 7604.29, and 7610.10. I&D Memo at 20.
Consol. Court No. 17-00246 Page 12

Trina argues that only the IHS data should be used in computing a benchmark because

the Comtrade data is too broad. Trina Br. at 16–19. In contrast, Trina contends, the IHS data is

specific to solar frames, the specific product used in the production of solar modules. Id. at 15. It

contends that the price fluctuations noted in the Comtrade data could very well be due to

merchandise included in that data unrelated to solar modules. Id. at 18. In contrast, the IHS data

is a blended average that does take into account periodic changes. Id. at 15–16. Trina argues that

including the Comtrade data despite its flaws violated Commerce’s regulations requiring the

Department to assess factors of comparability under 19 C.F.R § 351.511(a)(2)(ii). Id. at 17.

Finally, Trina argues that despite Commerce’s assertions otherwise, Commerce failed to

“exclude values that lacked corresponding quantities from the data when it calculated the

monthly benchmark prices for aluminum extrusions.” Id at 20.

Citing Commerce’s preference for monthly over annual data points, SolarWorld argues

that, given potential fluctuations in the aluminum market, the Comtrade data was superior to the

IHS data. SolarWorld Resp. at 21–23. The Government requests a remand on this issue due to

its failure to include relevant documents on the record during the administrative proceeding. Def.

Br. at 36. Noting this omission, the Government seeks, on remand, to further explain its

calculation of the aluminum and solar benchmarks or else reconsider them. Id. at 37. In its reply

brief, Trina agrees that a remand is appropriate under these circumstances. Trina Reply Br. at

16–17.

b. Discussion

Because this issue is fully-explained in Changzhou, Slip Op. 18-166, the court will only

summarize here and directs parties to that opinion for a more thorough account. Although

Commerce properly applied a tier-two benchmark pursuant to C.F.R. § 351.511(a)(2), it is
Consol. Court No. 17-00246 Page 13

unclear whether it properly accounted for factors of comparability in averaging the Comtrade

and IHS data sets. Claiming previous familiarity with the data without more is insufficient.

The court accordingly remands for Commerce to act in accordance with this opinion and

Changzhou, Slip Op. 18-166 and either disregard the Comtrade data or else explain why the

Comtrade is not overinclusive such that its inclusion produces a fatally inaccurate aluminum

benchmark rate.

IV. Solar Glass Benchmark

a. Background

As with the aluminum data, Commerce calculated the solar glass benchmark rate by

averaging data sets from Comtrade and IHS. See I&D Memo at 17–18. The Comtrade data

covers an array of tempered glass products, but provides monthly data points, while the IHS data

is specific to solar glass but is an annual average. Id. During the review, SolarWorld challenged

the inclusion of the IHS data due to concerns about whether this data was tax-inclusive or tax-

exclusive. Based on proprietary information, Commerce determined it was tax-exclusive. Id. at

17.

As with the aluminum benchmark, Trina argues that the Comtrade data includes far too

many products unrelated to solar glass to be reasonably included in determining a benchmark

rate. Trina Br. at 25–26. For instance, Trina points to the limited potential thickness of solar

glass and how the Comtrade data has no limitation on the thickness of glass included. Id. at 26.

SolarWorld disagrees and argues that the Comtrade data may not be exclusive to solar

glass, but does include solar glass. SolarWorld Br. at 24–25. It argues that the IHS data should

not be included given that it is an annual data point and because it is unclear from the record

whether the figure is tax-exclusive. SolarWorld Br. at 21–25. Again, SolarWorld highlights
Consol. Court No. 17-00246 Page 14

Commerce’s preference for monthly data points and the appropriateness of averaging the two

sets given this preference. Id.

As with the aluminum calculations, the Government requests a remand on this matter

because Commerce failed to include relevant documents on the record during the administrative

proceeding. Def. Br. at 36–37. Specifically, with regards to the solar glass data, Commerce did

not include information regarding whether the IHS data was tax-exclusive. Id. at 37. Thus, the

Government asks for remand to further explain its calculation of the aluminum and solar

benchmarks or else reconsider them. Id. at 37. In its reply brief, Trina agrees that a remand is

appropriate under these circumstances. Trina Reply Br. at 16–17.

b. Discussion

Because this issue is fully-explained in Changzhou, Slip Op. 18-166, the court will only

summarize here and directs parties to that opinion for a more thorough account. Like with the

aluminum data, although Commerce properly applied a tier-two benchmark pursuant to 19 C.F.R

§ 351.511(a)(2)(ii), it is unclear whether it properly accounted for factors of comparability in

averaging the Comtrade and IHS data sets.

The court accordingly remands this matter to Commerce with instructions to act in

accordance with this opinion and Changzhou, Slip Op. 18-166. Accordingly, Commerce should

either disregard the Comtrade data or else provide a full explanation as to why the Comtrade data

is not fatally overinclusive of non-solar glass in Commerce’s calculation of the solar glass

benchmark.

V. Selective Sampling of Electricity Rates

a. Background

After the GOC failed to adequately respond to Commerce’s requests for information
Consol. Court No. 17-00246 Page 15

regarding electricity rates and schedules, Commerce applied AFA and selected the highest

electricity rates for each industry category spread across electricity schedules from different

provinces. I&D Memo at 28. Commerce asserted that this rate does not indicate that it found the

subsidy to be geographically specific, but was selected both to encourage the GOC to participate

in future proceedings and because without the requested information, Commerce cannot be sure

that respondents would not be subjected to the highest rate regardless of a given facility’s

location. Id. at 29.

Trina argues that selecting the highest rate on the record solely to encourage compliance

is not appropriate. Trina Br. at 29. It contends that given the breakdown of rates by province,

Commerce should have applied the highest rate for a given facility’s location. Id. at 30.

SolarWorld argues that without the requested information from the GOC, it is unclear whether

the prices are set based on region or some other basis. SolarWorld Resp. at 26. It further argues

that selecting the highest price has been used previously as a market proxy. Id. at 27. Finally,

SolarWorld argues that Commerce was justified in selecting the highest rate in order to

encourage the GOC’s future participation. Id. at 27–28.

The Government argues that Trina is trying to “to impose a restriction on Commerce’s

selection of a benchmark that is not required by statute.” Def. Br. at 30. Defendant contends that

the goal of rate selection is to best approximate what a respondent would have paid without

market interference. Id. at 30–31. The Government argues that, counter to Trina’s assertions, the

choice was supported by the record as the figure used was in the materials submitted by the

GOC. Id. at 32.

b. Discussion
Consol. Court No. 17-00246 Page 16

As discussed more fully in Changzhou, Slip Op. 18-166, 5 Commerce can apply an

adverse inference to GOC submissions when the submissions fail to fully answer Commerce’s

questions regarding whether a program is conducted in accordance with market principles. See

Fine Furniture (Shanghai) Ltd. v. United States, 865 F. Supp. 2d 1254, 1260–62 (CIT 2012).

Here, Commerce asked specific questions regarding the setting of provincial electricity rates and

the GOC did not provide satisfactory answers, only an unsupported statement that prices were set

in accordance with market principles. I&D Memo at 28. Without the information requested on

the record, Commerce determined that it is “plausible that a respondent in the PRC could have

been subject to the highest rates in the PRC, regardless of its location.” I&D Memo at 29.

Although Trina claims that Commerce should have applied the highest rate of the province in

which a given plant is located, Trina provides no evidence that this would better approximate the

market rate for electricity absent government interference, which is the ultimate goal in setting a

benchmark. See 19 U.S.C. § 1677(5)(E) (stating that the benefit conferred should reflect

“prevailing market conditions.”); see also 19 C.F.R. § 351.511(a)(2). Accordingly, Commerce’s

electricity benchmark is sustained.

CONCLUSION

For the foregoing reasons, the court sustains Commerce’s choice of electricity

benchmark, but remands Commerce’s determinations as regards to the Export Buyer’s Credit

Program and inclusion of Comtrade data in calculating the world market rate for aluminum

extrusions and solar glass. The court remands to Commerce for proceedings consistent with this

5
The court notes that in that opinion, the court remanded this matter because Commerce did not
adequately determine that the provision of electricity was a countervailable, specific subsidy.
Changzhou, Slip Op. 18-166. In this case, however, the specificity issue was not challenged by
the plaintiffs and so the court declines address that issue in this decision.
Consol. Court No. 17-00246 Page 17

opinion. The court remands for proceedings consistent with this opinion. Remand results should

be filed by January 29, 2019. Objections are due February 28, 2019 and Responses to Objections

are due March 15, 2019.

___/s/ Jane A. Restani____
Jane A. Restani, Judge

Dated: November 30, 2018
New York, New York