Slip Op. 20-109

                UNITED STATES COURT OF INTERNATIONAL TRADE

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

                        Plaintiffs, and
                        Consolidated Plaintiffs,
                                                          Before: Jane A. Restani, Judge
                 v.

  UNITED STATES,                                          Consol. Court No. 17-00246

                        Defendant,

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

                        Defendant-Intervenor and
                        Consolidated Defendant-
                        Intervenor.


                                           OPINION

                                                                   Dated: August 4, 2020

[Commerce’s Second Remand Redetermination in the Administrative Review of Commerce’s
Countervailing Duty Order pertaining to Crystalline Silicon Photovoltaic Products from the
People’s Republic of China is sustained].

       Robert G. Gosselink, Jonathan M. Freed, and Kenneth N. Hammer, Trade Pacific, PLLC,
of Washington, D.C., for Plaintiffs 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”).

        Tara K. Hogan, Assistant Director and Justin R. Miller, Attorney-in-Charge, International
Trade Field Office, Civil Division, U.S. Department of Justice, of New York, N.Y. With them on
the brief were Joseph H. Hunt, Assistant Attorney General, and Jeanne E. Davidson, Director. Of
Consol. Court No. 17-00246                                                                   Page 2


counsel on the brief was Paul Keith, Office of the Chief Counsel for Trade Enforcement and
Compliance, U.S. Department of Commerce, of Washington, D.C.

      Timothy C. Brightbill, and Laura El-Sabaawi, Wiley Rein, LLP, of Washington, D.C., for
Defendant-Intervenor SolarWorld Americas, Inc.

       Restani, Judge: This action concerns the U.S. Department of Commerce’s (“Commerce”)

second remand redetermination filed pursuant to the court’s order in Changzhou Trina Solar

Energy Co. v. United States, Slip Op. 19-143, 

(CIT Nov. 18, 2019)

(“Changzhou Trina II”); see Final Results of Redetermination Pursuant to Court Remand, ECF

No. 93-1 (Dep’t Commerce Mar. 2, 2020) (“Second Remand Results”).

       In Changzhou Trina II, the court determined that remand was necessary for Commerce to

further explain some of its decisions in the underlying review and subsequent remand. Specifically,

the court remanded for Commerce to explain and/or reconsider: (1) whether respondent benefitted

from the People Republic of China’s (“PRC”) Export Buyer’s Credit Program (“EBCP”), (2)

whether Commerce should continue to use the United Nations’ Comtrade data in arriving at a

benchmark for aluminum extrusions, and (3) whether Commerce should use the IHS data alone in

arriving at the benchmark for solar glass or whether it should reopen the record.

                                        BACKGROUND

       The court presumes familiarity with the facts of this case as discussed in its prior opinions,

Changzhou Trina Solar Energy Co. v. United States, Slip Op. 18-167, 

(CIT

Nov. 30, 2018) (“Changzhou Trina I”) and Changzhou Trina II, and thus recounts relevant facts

only as necessary. This matter concerns Commerce’s second remand redetermination in the first

administrative review of Commerce’s countervailing duty order pertaining to certain crystalline

silicon photovoltaic products from the PRC. See Second Remand Results. Changzhou Trina Solar

Energy Co., Ltd., Trina Solar Limited, Trina Solar (Changzhou) Science & Technology Co., Ltd.,
Consol. Court No. 17-00246                                                                      Page 3


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”) are plaintiffs and SolarWorld

Americas, Inc. (“SolarWorld”) is a defendant-intervenor.

                           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). The court will uphold Commerce’s second remand redetermination 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). “The results of a redetermination pursuant to court remand are also

reviewed for compliance with the court's remand order.” Xinjiamei Furniture (Zhangzhou) Co.,

Ltd. v. United States, 

(CIT 2014) (citation and quotation marks omitted).

                                              DISCUSSION

    I.      Export Buyer’s Credit Program

         Commerce initially determined that it was unable to verify respondent’s certifications of non-

use Changzhou I, at *2. Commerce initially concluded, through the application of AFA, 1 that the

cooperating respondent benefited from the program.

this issue concluding

that Commerce did not demonstrate that respondent’s certifications were unverifiable.

On remand, Commerce continued to “find the certifications unverifiable” and continued to find,

through an application of AFA, that respondent benefitted from the EBCP. Changzhou Trina II, at

*2. Commerce reasoned that it could not verify the certifications because of the “uncertainties

about the EBCP’s potential use of third-party banks to distribute EBCP funds” and without the



1
  When a party fails to cooperate to the best of its ability, Commerce may “use an inference that
is adverse to the interest of that party in selecting from among the facts otherwise available.” See
19 U.S.C. § 1677e(b). Commerce refers to this as relying on “AFA” or “adverse facts available.”
Consol. Court No. 17-00246                                                                   Page 4


Government of the People’s Republic of China’s (“GOC”) “disclosure of the 2013 internal

guidelines and other information.”
 Id. at *2 
(citing Final Results of Redetermination Pursuant to

Court Remand, ECF No. 65-1 (Apr. 25, 2019) (“First Remand Results”)).

        In Changzhou II, the court again remanded Commerce’s determination that verification

of EBCP use was impossible.
 Id. at *3–4. 
The court acknowledged the GOC’s failure to respond

to certain questions regarding the EBCP’s operations, but “to avoid unnecessarily impacting

cooperating parties,” the court held that Commerce must “at least attempt to verify the

certifications of non-use in this case.”
 

The court suggested ways for Commerce to

attempt verification on remand.
 Id. Although these suggestions 
may have required Commerce to

“deviate from its standard verification procedures,” the court stated that “the parties should

discuss potential ways forward” and Commerce should “detail its process in its remand

redetermination.”
 Id. The court concluded 
that if Commerce continued to find that respondent

benefited from the EBCP, Commerce must explain what evidence in its investigation supported

its finding.
 Id. at *4.
        On second remand, Commerce reiterates its prior stance that without cooperation from

the GOC, further attempts to verify non-use of the program would be futile. Second Remand

Results at 7–8. Commerce maintains that it “lacks a comprehensive understanding of how the

EBCP functions,” and that it is thus unable to determine whether respondent benefitted from the

program.
 

Under protest, however, Commerce has accepted respondent’s claims of non-

use and removed the AFA rate from its calculation.
 Id.

        Trina agrees with 
Commerce’s decision to remove the AFA rate, but contends that

Commerce did not comply with the court’s remand order as it did not request additional

information from Trina or its sole U.S. affiliate and customer, Trina Solar U.S., Inc. (“TUS”),
Consol. Court No. 17-00246                                                                 Page 5


regarding its borrowing during the period of review. See Comments of Trina on Second Remand

Redetermination at 2–6, ECF No. 95 (Apr. 2, 2020) (“Trina Br.”). Regardless, Trina contends

that Commerce’s decision to remove the AFA rate renders moot Commerce’s noncompliance.
 Id.

at 7–8. 
SolarWorld disagrees with Commerce’s decision to find non-use of the EBCP and

remove the AFA rate, arguing that Commerce was correct that the GOC’s noncompliance

rendered respondent’s claim of non-use unverifiable. SolarWorld’s Cmts. on the Results of

Second Remand Redetermination at 5–6, ECF No. 96 (Apr. 2, 2020) (“SolarWorld Br.”). The

government responds that it complied with the court’s remand and argues that Trina had the

opportunity to submit additional documentation, but agrees with Trina that the issue is

nevertheless moot. Def.’s Resp. to Cmts. on Remand Redetermination at 6–8, ECF No. 99 (May

7, 2020) (“Gov. Br.”).

       As in Changzhou Trina Solar Energy Co. v. United States, at 6, Slip Op. 20-108 (CIT

Aug. 4, 2020), the government “overstates the opportunity,” Commerce afforded to Trina to add

additional documentation on its usage or non-usage of the EBCP. See Gov. Br. at 7–8.

Commerce allowed interested parties the opportunity to respond to documents it placed on the

record, but only to “comment and submit new factual information regarding the [documents

Commerce placed on the record].” Placing Documents on the Record, Sec. Rem. P.R. 5–7 (Dep’t

Commerce Jan 3, 2020). Accordingly, it appears that respondent was limited as to the documents

it could submit without violating regulatory limits on the submission of new facts. See 19 C.F.R.

§ 351.302(d)(1)(i)-(ii). The removal of the AFA rate, however, has mooted any issues that would

have otherwise resulted from Commerce’s failure to allow respondent to submit additional

documentation supporting its claims of non-use. See NEC Corp. v. United States, 
151 F.3d 1361
,

1369 (Fed. Cir. 1998) (noting that mootness occurs when “parties lack a legally cognizable
Consol. Court No. 17-00246                                                                      Page 6


interest in the outcome.”) (citing Powell v. McCormack, 
395 U.S. 486
, 496 (1969)); see also

Calderon v. Moore, 
518 U.S. 149
, 150 (1996) (“[F]ederal courts may not give opinions upon

moot questions or abstract propositions.”) (citation and quotation marks omitted).

       As in Changzhou Trina Solar Energy Co. v. United States, Slip Op. 20-108 (CIT Aug. 4,

2020) and Jiangsu Zhongji Lamination Materials Co. v. United States, Slip Op. 20-39, 
2020 WL

1456531 
(CIT March 24, 2020), rather than request records and attempt to answer the EBCP

usage question, Commerce has altered course and chosen to accept Trina’s claims of non-use,

insisting that verification is impossible without the GOC’s explanation of the EBCP’s operation.

Second Remand Results at 7–8. Commerce has not persuaded the court that verification is

impossible, in particular given Commerce’s refusal to ask “even the most basic questions

regarding the borrowing practices,” of respondent. Changzhou Trina Solar Energy Co. v. United

States, at 7, Slip Op. 20-108 (CIT Aug. 4, 2020).

       The court does not find, however, that accepting Trina’s claims of non-use and removing

the AFA rate is impermissible or amounts to noncompliance with the court’s order in Changzhou

Trina II. Trina argues, and Commerce concedes, that Trina submitted certifications of non-use

from all of its U.S. customers in this period of review, see Changzhou I, at *2; First Remand

Results at 15–16. Commerce has previously accepted similar certifications of non-use and the

court has upheld that decision. See Changzhou Trina Solar Energy Co. v. United States, 255 F.

Supp. 3d 1312, 1318–19 (CIT 2017). Although the court acknowledges Commerce’s concerns

given the potential intervening changes to the EBCP, Commerce’s decision to accept these

claims of non-use on remand in this instance is supported by substantial evidence. The court did

not order this result, but given the circumstances, there is no reason to order an additional

remand for further development of the facts.
Consol. Court No. 17-00246                                                                    Page 7


 II.   Use of IHS data in Computing a Benchmark for Aluminum Extrusions

       The court found unsupported by substantial evidence Commerce’s averaging of the UN

Comtrade (“Comtrade”) and IHS Technology (“IHS") datasets to compute a benchmark for

aluminum extrusions in both Changzhou Trina I and Changzhou Trina II. In Changzhou Trina I,

the court remanded the issue to Commerce and ordered it to consider whether the Comtrade data

was overinclusive of irrelevant aluminum products and therefore, too flawed to be probative of the

world market price for aluminum extrusions. Changzhou Trina I, at *6; see also Changzhou Trina

Solar Energy Co. v. United States, 
352 F. Supp. 3d 1316
, 1331–33 (CIT 2018) (detailing the

concerns with the Comtrade data). Following the first remand, Commerce continued to average

both the IHS and Comtrade data, justifying the inclusion of Comtrade data because it “assesses

monthly-price fluctuations.” Changzhou Trina II, at *4 (citing First Remand Results at 19–24).

The court in Changzhou Trina II, however, found the result unsupported by substantial evidence

as Commerce’s did not “adequately account[] for ‘factors affecting comparability.’”
 Id. at *5
(citing 19 C.F.R. § 351.511(a)(2)(ii)). The court held that Commerce’s decision to continue to use

the Comtrade data was unreasonable stressing that “[a] preference for monthly values cannot

overcome data that does not reasonably relate to the product at issue.”
 Id. The court again
remanded the issue to Commerce and instructed it to either use the IHS data alone to develop a

benchmark or demonstrate that the HTS subheadings in the Comtrade data are “sufficiently

comparable to solar frames.”
 Id.

       In its second 
redetermination, Commerce argues that the record does not contain

sufficient information to address the potential over inclusiveness of the Comtrade data. Second

Remand Results at 9. While reiterating its preference for data that “captures monthly price

fluctuations,” on second remand, Commerce concludes that it is “not possible to demonstrate that
Consol. Court No. 17-00246                                                                   Page 8


the monthly price fluctuations reflected in the Comtrade data are driven by variations in solar

frame prices.”
 Id. To comply with 
the court’s order in Changzhou Trina II, Commerce now relies

exclusively on IHS data to set a benchmark for aluminum extrusions and has revised its

calculations accordingly.
 

object to Commerce’s exclusive reliance on IHS data and accordingly, its

modified calculation of the benchmark for aluminum extrusions. Trina Br. at 2. SolarWorld

objects to Commerce’s exclusive reliance on the IHS data, arguing that it is inappropriate

because the Comtrade data are “sufficiently reflective of solar frames for purposes of the

benchmark calculation.” SolarWorld Br. at 6–7. SolarWorld, however, does not put forward

anything new to demonstrate that the Comtrade data is not “grossly overinclusive.” 2 See

Changzhou Trina II, at *5; see also Changzhou Trina I, at *6.

       Commerce’s decision is consistent with the court’s order in Changzhou Trina II and

supported by substantial evidence as outlined in the court’s previous opinions. See Changzhou

Trina I, at *6; Changzhou Trina II, at *4–5. Because the IHS data is specific to the merchandise

at issue here, relying on it alone meets the comparability requirements of 19 C.F.R.

§ 351.511(a)(2)(ii) and is in accordance with Commerce’s obligations under the regulations. See

Changzhou Trina II, at *5; see also 19 C.F.R. § 351.511(a)(2)(ii). Accordingly, the court sustains

Commerce’s determination to use IHS data as a benchmark for aluminum extrusions.

III.   Use of PV Insights/GTM Research data in Computing a Benchmark for Solar Glass

       As with the data used for setting the benchmark for aluminum extrusions, in Changzhou




2
  The basis of SolarWorld’s argument rests on a Federal Circuit decision previously
distinguished by the court in Changzhou Trina II. See Changzhou Trina II, at *5, n.7 (discussing
the irrelevance of SolarWorld Americas, Inc. v. United States, 
910 F.3d 1216 
(Fed. Cir. 2018) to
this case).
Consol. Court No. 17-00246                                                                       Page 9


Trina I and Changzhou Trina II, the court held that Commerce’s decision to average Comtrade and

IHS data for solar glass was unsupported by substantial evidence because the court found the

Comtrade dataset was potentially overinclusive of non-subject merchandise. See Changzhou Trina

I, at *7. In Changzhou Trina I, the court remanded the issue to Commerce with instructions to

consider whether the Comtrade data was “fatally overinclusive of non-solar glass.”
 Id.

        On remand, Commerce 
continued to average the Comtrade and IHS datasets, arguing that

its use of the Comtrade data was necessary because it was the only data on the record that shows

monthly fluctuations. Changzhou Trina II, at *6 (citing First Remand Results at 24–28). In

Changzhou Trina II, the court found that Commerce still had “not adequately addressed the court’s

concern that the Comtrade data’s monthly fluctuations may be caused by non-solar glass

merchandise.” Changzhou Trina II, at *6. The court concluded that because Commerce “failed to

explain whether the inclusion of non-solar glass in the Comtrade data set made it unusable” it did

not “take into account the factors of comparability required of its regulations.” Changzhou Trina

II, at *6; see also 19 C.F.R. § 351.511(a)(2)(ii). The court held that the Comtrade data was “fatally

overinclusive of non-solar glass such that its usage in deriving a benchmark [wa]s unsupported by

substantial evidence.” Changzhou Trina II, at *6.

        The court again remanded the case, instructing Commerce to either use the IHS dataset

alone or if it chooses to, reopen the record to identify “a dataset that is both specific to solar glass

and computed on a monthly basis” and then use that dataset to calculate a solar glass benchmark.

Changzhou Trina II, at *6. On second remand, Commerce reopened the record and sought data

from the parties that was “specific to the type of glass used in solar cells and recorded on a

monthly basis.” Second Remand Results at 9. Trina submitted two datasets that fulfilled these

and other criteria: (1) 2014 global solar glass pricing data from PV Insights and (2) 2015 solar
Consol. Court No. 17-00246                                                                   Page 10


glass pricing data from Greentech Media Research (“GTM Research”).
 Id. at 9–10. 
According to

the record, PV Insights is “a solar photovoltaic research firm” and GTM Research is “an energy

analysis and consulting company.”
 Id. at 10. 
Commerce compared the two new datasets with the

datasets already on the record and found them to be superior because they are “specific to solar

glass” and record “monthly price fluctuations.”
 Id. Commerce now relies 
on PV Insights and

GTM Research to set a benchmark for solar glass and has revised its calculations accordingly.
 

dispute Commerce’s reliance on this data to calculate a revised benchmark for

solar glass. See
 id. at 17; 
see also Trina’s Response to Cmts. on Second Remand

Redetermination at 7, ECF No. 100 (May 7, 2020) (“Trina Reply”). 3

       SolarWorld objects and contends that Commerce’s reliance on PV Insights and GTM

Research data is incorrect. SolarWorld Br. at 8–9. It argues that PV Insights is unreliable because

its methodology lacks transparency.
 Id. SolarWorld further objects 
to Commerce’s use of GTM

Research data because “it is not fully contemporaneous with the underlying period of review”

because it includes pricing data from January through December 2015.
 Id. at 9. 
SolarWorld

maintains that the Comtrade data should be used and that it was “unreasonable for Commerce to

disregard” it altogether.
 Id. In the alternative, 
SolarWorld argues that Commerce should have

averaged the Comtrade data with the new PV Insights and GTM Research data in developing a

benchmark.
 Id.




3
 In its initial brief, Trina appears to treat the remand results as exclusively relying on PV Insights
data for benchmarking solar glass, despite Commerce’s use of both PV Insights and GTM
Research data. See Trina Br. at 2. Trina’s reply brief addresses this discrepancy. See Trina Reply
at 7; see also Gov. Br. at 10, n.1 (noting the government’s belief that “Trina’s failure to mention
the Greentech Media Research data was inadvertent”).
Consol. Court No. 17-00246                                                                 Page 11


         Commerce considered SolarWorld’s concerns regarding PV Insights, but concluded the

data was reliable. See Second Remand Results at 19–20; Gov. Br. at 10–12. 4 In response to

SolarWorld’s concern that GTM Research was not “fully contemporaneous with the underlying

period of review,” Commerce stated that this was inaccurate because the two datasets contain

“the necessary information to measure the adequacy of renumeration for each month of the

[period of review].” Gov. Br. at 11; see also Second Remand Results at 20. The government

claims, and the record supports, that “Commerce used the 2014 PV Insights data to calculate the

benchmark for the months of the period of review in 2014, and the 2015 Greentech Media

Research data to calculate the benchmark for the months of the period of review in 2015.” Gov.

Br. at 11; see also Data from Letter from Trade Pacific LLC to Sec’y Commerce re: Crystalline

Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, from the People’s Republic

of China: Additional Solar Glass Benchmark Submission, Sec. Rem. C.R. 2, Sec. Rem. P. R. 4

(Dec. 30, 2019); Draft Calculations for Trina Solar, Sec. Rem. C.R. 3, Sec. Rem. P.R. 10 (Dep’t

Commerce Feb. 10, 2020). Commerce concluded that together, the PV Insights and GTM

Research datasets are both reliable and “represent the best available information on the record to

measure the adequacy of renumeration for the provision of solar glass.” Second Remand Results

at 19.

         Commerce also considered SolarWorld’s argument in the alternative that it average the

Comtrade data with the PV Insights and GTM Research datasets in calculating a benchmark for

solar glass. Commerce concluded, however, that the inclusion of Comtrade data would be



4
  See also Second Remand Results at 19 (The PV Insights data “appears to be the result of
market research intended to provide accurate, for-purchase, benchmarking information to
participants in the solar market so they can effectively conduct business.”). Commerce further
found that PV Insights data “appears to be treated as reliable information by the relevant industry
for the POR.” Second Remand Results at 20. SolarWorld does not dispute either of these points.
Consol. Court No. 17-00246                                                                   Page 12


contrary to the court’s order in Changzhou Trina II, which directed Commerce not to use the

Comtrade data unless it could demonstrate that the data was not “fatally overinclusive of non-

solar glass.” See Gov. Br. at 10.

       In support of the government, Trina argues that SolarWorld lacks any evidence for its

assertion that PV Insights data is unreliable and that the record clearly shows that PV Insights

data is both reliable and an accurate reflection of solar glass prices. Trina Reply at 4–6. Trina

further argues that contrary to SolarWorld’s contention, there is no information on the record to

suggest that “the fact that the GTM data covers only 2015 renders it unreliable as a benchmark

source for months in 2015” and states that there is no regulatory or statutory requirement that a

tier two benchmark be “fully contemporaneous” with the entire underlying period of review.
 Id.

at 7. 
Trina concludes that Commerce’s decision to use the PV Insights and GTM Research data

to calculate a benchmark for solar glass is supported by substantial evidence.
 

       The court agrees. SolarWorld has not put forward anything on the record that contradicts

Commerce’s determination that PV Insights and GTM Research are reliable and their use is

consistent with the requirements for comparability under 19 C.F.R. § 351.511(a)(2)(ii). Although

the court understands SolarWorld’s concerns regarding the transparency of PV Insights

collection of data, the court is also mindful that it may not substitute its own judgment for that of

Commerce where Commerce “examine[s] the relevant data and articulate[s] a satisfactory

explanation for its action including a ‘rational connection between the facts found and the choice

made.’” Motor Vehicle Mfrs. Ass’n of United States, Inc. v. State Farm Mutual Automobile, 
463

U.S. 29
, 43 (1983) (citing Burlington Truck Lines v. United States, 
371 U.S. 156
, 168 (1962)).

       Commerce has done so here in its calculation of a benchmark using two sets of data that

are specific to the product at issue and when combined cover the underlying period of review.
Consol. Court No. 17-00246                                                               Page 13


SolarWorld’s conclusory statements concerning PV Insights collection methodology and GTM

Research’s data only including pricing in 2015 is not enough to demonstrate a fatal flaw in

Commerce’s reasoning. Commerce may use two datasets to cover the entire underlying period of

review and average them under the regulations where reasonable. See 19 C.F.R.§

351.511(a)(2)(ii). Furthermore, the PV Insights data collection methodology is not so suspect

that Commerce’s reliance on it is unsupported by substantial evidence. Commerce considered the

relevant factors and addressed SolarWorld’s concerns. See Second Remand Results at 19–20.

The court concludes that Commerce’s determination was a reasonable one and thus sustains its

determination to use the PV Insights and GTM Research data to set a benchmark for solar glass.

                                        CONCLUSION

       For the foregoing reasons, Commerce’s Second Remand Results are sustained. Judgment

will enter accordingly.



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

Dated: August 4, 2020
       New York, New York