United States Court of International Trade

Remanding in Part Final CVD and AD Determination

In Changzhou Trina Solar Energy Co., Ltd. et al. v. United States, Court No. 15-68, Slip Op. 16-121 (December 30, 2016), the Court of International Trade (“Court”) remanded in part the U.S. Department of Commerce’s (“Commerce” or “DOC”) final determination in its countervailing duty (“CVD”) investigation of certain solar panels from the People’s Republic of China (“PRC” or “China”).  See Certain Crystalline Silicon Photovoltaic Products from the [PRC], 79 Fed. Reg. 76,962 (Dep’t Commerce Dec. 23, 2014) (final affirmative countervailing duty determination) (“Final Determination”).   Plaintiffs Changzhou Trina Solar Energy Co., Ltd., Trina Solar (Changzhou) Science & Technology Co., Ltd., Yingli Green Energy Holding Co., Ltd., Yingli Green Energy Americas, Inc., and Canadian Solar Inc. (collectively “Trina Solar” or “the Respondents”) challenge Commerce’s determinations to include certain grants or programs of the Government of China (“GOC”) as countervailable subsidies in the calculation of Respondents’ CVD cash deposit rates, and its application of adverse facts available (“AFA”).  Plaintiff SolarWorld Americas, Inc. (“SolarWorld”), the domestic industry petitioner, challenges the reasonableness of Commerce’s use of certain benchmark prices, as well as Commerce’s decision not to investigate SolarWorld’s allegations regarding Respondents’ creditworthiness.

While the Court found that additional grants and programs of the GOC may be considered as countervailable subsidies, and that the AFA should be applied where the GOC withheld information regarding these programs and grants, the Court did not agree that Commerce indicated the necessary“facts” adverse or otherwise to find that such programs or grants were “specific” under section 1677(5A) to be countervailable.  Commerce had not indicated that it relied on any information, from any source, to find that all of the Solar I PRC programs and verification grants and tax deduction satisfy the elements for countervailability.  The Court held to be countervailable the subsidy must be specific. Thus, Commerce’s findings regarding the Solar I PRC programs, and verification grants and tax deductions, were not supported by substantial evidence, and thus must be remanded for further findings.

As for aluminum extrusions and solar glass, Commerce found that there were only a limited number of industries consuming aluminum extrusions and solar glass, and thus any provisions directed towards those items were specific. Likewise Commerce’s use of 1% and 12% import duty rates in section 351.511(a)(2)(ii) calculations of benchmark prices were reasonable.  Moreover, Commerce’s determination that the GOC’s provision of polysilicon aided in the production of subject merchandise and was supported by a reasonable reading of the record, as well as Commerce’s determination that Trina Solar benefitted from the Export Buyer’s Credit Program.  For these reasons, Commerce’s decisions in the Final Determination were only partially remanded.