Slip Op. 20-134
UNITED STATES COURT OF INTERNATIONAL TRADE
CANADIAN SOLAR
INTERNATIONAL LIMITED ET
AL.,
Plaintiffs and Consolidated
Plaintiffs,
and
SHANGHAI BYD CO., LTD. ET AL., Before: Claire R. Kelly, Judge
Plaintiff-Intervenors and Consol. Court No. 17-00173
Consolidated Plaintiff-
Intervenors,
v.
UNITED STATES,
Defendant,
and
SOLARWORLD AMERICAS, INC. ET
AL.,
Defendant-Intervenor and
Consolidated Defendant-
Intervenors.
OPINION AND ORDER
[Granting Plaintiffs’ motion for reconsideration.]
Dated: September 14, 2020
Consol. Court No. 17-00173 Page 2
Craig A. Lewis, Jonathan T. Stoel, and Lindsay K. Brown, 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.; Canadian Solar (USA), Inc.; and Shanghai BYD Co., Ltd.
Adams Chi-Peng Lee, Harris Bricken McVay Sliwoski, LLP, of Washington, DC, for
Ningbo Qixin Solar Electrical Appliance Co., Ltd.
Robert George Gosselink, Jarrod Mark Goldfeder, and Jonathan M. Freed, 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.
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.; 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.; Yingli Green Energy Americas, Inc.;
and Yingli Energy (China) Co., Ltd.
Timothy C. Brightbill Cynthia Cristina Galvez, Laura El-Sabaawi, Maureen
Elizabeth Thorson, Stephanie Manaker Bell, and Tessa Victoria Capeloto, Wiley Rein
LLP, of Washington, DC, for SolarWorld Americas, Inc.
Joshua E. Kurland, Trial Attorney, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice, of Washington, DC, for defendant. Also on the brief were
Ethan P. Davis, Acting Assistant Attorney General, Jeanne E. Davidson, Director,
and Reginald T. Blades, Jr., Assistant Director. Of counsel on the brief was Ian
McInerney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S.
Department of Commerce, of Washington, DC.
Kelly, Judge: Plaintiffs Canadian Solar International Limited; Canadian Solar
(USA), Inc.; Canadian Solar Manufacturing (Changshu), Inc.; Canadian Solar
Manufacturing (Luoyang), Inc.; CSI Cells Co., Ltd.; CSI-GCL Solar Manufacturing
Consol. Court No. 17-00173 Page 3
(YanCheng) Co., Ltd.; and CSI Solar Power (China) Inc. (collectively, “Plaintiffs” or
“Canadian Solar”) move for reconsideration of Canadian Solar Int’l Ltd. v. United
States, 44 CIT __, Slip Op. 20-83 (June 15, 2020) (“Canadian Solar III”) in light of the
Court of Appeals for the Federal Circuit’s (“Court of Appeals”) intervening decision
in SolarWorld Americas, Inc. v. United States, 962 F.3d 1351 (Fed. Cir. 2020)
(“SolarWorld”). See [Pls.’] Mot. for Reconsideration & Memo. Supp. 59(e) Mot. for
Reconsideration or 60(b) Mot. for Relief from Judgment, July 14, 2020, ECF No. 160
(“Pls.’ Mot.” and “Pls.’ Br.”, respectively). Defendant does not object to the motion.
See Def.’s Resp. [Pls.’ Mot.] at 1, Aug. 14, 2020, ECF No. 166 (“Def.’s Resp. Br.”). For
the following reasons, the court grants Canadian Solar’s motion for reconsideration.
BACKGROUND
The court presumes familiarity with the facts of this case as set out in its
previous opinions ordering remand to the U.S. Department of Commerce
(“Commerce”), and recounts those relevant to disposition of this motion. See
Canadian Solar Int’l Ltd. v. United States, 43 CIT __, __, 378 F. Supp. 3d 1292, 1298–
1300 (2019) (“Canadian Solar I”); see also Canadian Solar Int’l Ltd. v. United States,
43 CIT __, 415 F. Supp. 3d 1326, 1329–31 (2019). On June 27, 2017, Commerce
published its final determination in its 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 (“China” or “the
PRC”). See Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into
Consol. Court No. 17-00173 Page 4
Modules, From the People’s Republic of China, 82 Fed. Reg. 29,033 (Dep't Commerce
June 27, 2017) (final results of [ADD] admin. 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”).
Plaintiffs challenged the Final Results, submitting, inter alia, that Commerce’s
decision to use Thai import data published by the Global Trade Atlas (“Thai import
data”) to value Canadian Solar’s nitrogen input was unsupported by substantial
evidence because the data was aberrational and unreliable. See Canadian Solar I, 43
CIT at __, 378 F. Supp. 3d at 1310. The court disagreed, sustaining Commerce’s use
of the Thai import data, but remanding the Final Results on separate grounds. Id.
at __, 378 F. Supp. 3d at 1325. On June 15, 2020, the court sustained Commerce’s
second remand redetermination, and judgment entered accordingly. See generally
Canadian Solar III, 44 CIT __, Slip Op. 20-83; Judgment, June 15, 2020 ECF No. 158.
On June 24, 2020, the Court of Appeals issued SolarWorld, where it held that
Commerce failed to sufficiently justify its reliance on Thai import data to value
Changzhou Trina Solar Energy Co., Ltd.’s (“Trina”) nitrogen input in the previous
administrative review of the same ADD order, and vacated in part this Court’s
judgment sustaining Commerce’s final determination. See SolarWorld, 962 F.3d at
1356–59. Plaintiffs’ motion for reconsideration ensued.
Consol. Court No. 17-00173 Page 5
JURISDICTION AND STANDARD OF REVIEW
This court has jurisdiction pursuant to Section 516 of the Tariff Act of 1930, as
amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2012) 1 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.
Under U.S. Court of International Trade Rule 1 and Rule 59, the decision to
grant a motion for reconsideration rests within the sound discretion of the court. See
Yuba Natural Res., Inc. v. United States, 904 F.2d 1577, 1583 (Fed. Cir. 1990).
Grounds for granting such a motion include “an intervening change in the controlling
law, the availability of new evidence, the need to correct a clear factual or legal error,
or the need to prevent manifest injustice.” Ford Motor Co. v. United States, 30 CIT
1587, 1588 (2006); see also Nan Ya Plastics Corp., Am. v. U.S., 37 CIT, 670, 671, 916
F. Supp. 2d 1376, 1378 (2013) (“Nan Ya Plastics”).
DISCUSSION
Canadian Solar submits that the Court of Appeals’ decision in SolarWorld
constitutes binding, intervening authority that clarifies legal principles directly
relevant to this court’s decision to sustain Commerce’s reliance on Thai import data
to value its nitrogen inputs as supported by substantial evidence in this review. See
Pls.’ Br. at 7–14; see also SolarWorld, 962 F.3d at 1356–59; Canadian Solar I, 43 CIT
1 Further citations to the Tariff Act of 1930, as amended, are to the relevant
provisions of Title 19 of the U.S. Code, 2012 edition.
Consol. Court No. 17-00173 Page 6
at __, 378 F. Supp. 3d at 1310–13. Defendant does not object to Plaintiffs’ motion,
see Def.’s Resp. Br. at 1, albeit with two qualifications. First, Defendant urges that
any remand to Commerce be consistent with the Court of Appeals’ instruction that
Commerce “either adequately explain why the Thai {Global Trade Atlas} data is not
aberrational” or “adopt an alternative surrogate value for Trina’s nitrogen input.”
Def.’s Resp. Br. at 2 (quoting SolarWorld, 962 F.3d at 1358–59). Second, Defendant
submits that the court “should not require recalculation of rates for parties other than
those challenging their rates in this litigation.” Id. (citations omitted). Canadian
Solar concurs with Defendant’s requests. See Pls.’ Reply to [Def.’s Resp. Br.] at 2,
Aug. 24, 2020, ECF No. 169.
A party may move the court “‘to correct a significant flaw in the original
judgment’ by directing the court to review material points of law or fact previously
overlooked[.]” RHI Refractories Liaoning Co. v. United States, 35 CIT __, __, 752 F.
Supp. 2d 1377, 1380 (2011) (quoting United States v. UPS Customhouse Brokerage,
Inc., 34 CIT 745, 748, 714 F. Supp. 2d 1296, 1301 (2010)). “An intervening change in
the controlling law is one of the recognized grounds upon which motions for rehearing
have been granted.” Nan Ya Plastics, 37 CIT at 671, 916 F. Supp. 2d at 1378.
Reconsideration is necessary in this instance because SolarWorld constitutes
an intervening change in controlling law that relates to whether Commerce’s
determination was supported by substantial evidence. Although the court in
Canadian Solar I held that Commerce reasonably explained why the Thai import data
Consol. Court No. 17-00173 Page 7
was reliable for purposes of valuing Canadian Solar’s nitrogen input, see 43 CIT at
__, 378 F. Supp. 3d at 1310–13, the Court of Appeals in SolarWorld held that
Commerce’s reliance on Thai import data in the previous administrative review was
insufficiently justified, and that it appeared to be contrary to agency practice. See
962 F.3d at 1357–59. The Court of Appeals’ holding implicates this court’s holding in
Canadian Solar I, and although it may not necessarily require Canadian Solar’s
success on the merits, further hearing on the matter is necessary to avoid manifest
error. See, e.g., Nan Ya Plastics, 37 CIT at 671–73, F. Supp. 2d at 1378–80 (“In
deciding to vacate the judgment . . . we do not decide that there necessarily is merit
in plaintiff’s statutory claims.”). Namely, the Court of Appeals questioned
Commerce’s practice of determining whether the Thai import data was aberrational,
likening it to a bookend methodology that unreasonably fails to account for
considerable differences in import volume between surrogate countries. See
SolarWorld, 962 F.3d at 1357–59 Moreover, the Court of Appeals questioned
Commerce’s refusal to consider the U.S. International Trade Commission’s export
data relating to the same imports reported in the Global Trade Atlas data, noting
significant disparities between the two sources, and holding that Commerce’s cited
regulatory preference not to rely on export data does not sufficiently address the fact
that both sources cannot be correct. See id. As such, the court reconsiders its holding
that Commerce’s reliance on Thai import data is reasonable in light of the law as
Consol. Court No. 17-00173 Page 8
clarified by the Court of Appeals and remands the determination for further
explanation or reconsideration of Commerce’s selection of the Thai import data.
Regarding calculation of the separate rates, 19 U.S.C. § 1675(a)(2)(C) provides
that the determination resulting from administrative review of an ADD order “shall
be the basis for the assessment . . . of antidumping duties on entries of merchandise
covered by the determination and for deposits of estimated duties.” Notwithstanding
Defendant and Canadian Solar’s agreement that the court need not instruct
Commerce to recalculate the rates of parties not subject to this litigation, Commerce
shall conduct its remand redetermination in accordance with § 1675(a)(2)(C), and
shall explain the lawfulness of the separate rates resulting from any changes to its
methodology on remand.
CONCLUSION
For the foregoing reasons, it is
ORDERED that Plaintiffs’ motion is granted; and it is further
ORDERED that the court’s Judgment, see ECF No. 158, sustaining
Commerce’s second remand redetermination with respect to its third administrative
review of the antidumping duty order covering crystalline silicon photovoltaic cells,
whether or not assembled into modules, from the people's republic of china, see 82
Fed. Reg. 29,033 (Dep't Commerce June 27, 2017) (final results of [ADD] review and
final determination of no shipments; 2014-2015) is vacated; and it is further
Consol. Court No. 17-00173 Page 9
ORDERED that, consistent with the Court of Appeals’ instruction in
SolarWorld Americas, Inc. v. United States, 962 F.3d 1351 (Fed. Cir. 2020), the case
is remanded for Commerce to “either adequately explain why the Thai {Global Trade
Atlas} data is not aberrational” or “adopt an alternative surrogate value for
[Canadian Solar’s] nitrogen input”; and it is further
ORDERED that Commerce shall recalculate Canadian Solar’s dumping
margin to reflect any changes to its selection of a surrogate value for Canadian Solar’s
nitrogen factor of production and make any other recalculations as required by law;
and it is further
ORDERED that Commerce shall recalculate the separate rates to the extent
required by law and explain its determination; and it is further
ORDERED that Commerce shall file its third remand redetermination with
the court within 60 days of this date; and it is further
ORDERED that the parties shall have 30 days thereafter to file comments;
and it is further
ORDERED that the parties shall have 30 days thereafter to file 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
Consol. Court No. 17-00173 Page 10
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: September 14, 2020
New York, New York