Slip Op. 24-96

UNITED STATES COURT OF INTERNATIONAL TRADE

TRINA SOLAR CO., LTD. ET AL, 

 Plaintiffs, 

v. 

UNITED STATES, 

 Defendant, 

AMERICAN ALLIANCE FOR 

SOLAR MANUFACTURING, 

Defendant-Intervenor. 

Before: Claire R. Kelly, Judge 

Court No. 23-00213 

OPINION AND ORDER 

[Remanding U.S. Department of Commerce’s final results and final determination.] 

 Dated: August 20, 2024 

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 Elaine 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 Brian M. Boynton, Principal Deputy Assistant Attorney General, 

Patricia M. McCarthy, Director, and Reginald T. Blades, Jr., Assistant Director. Of 

counsel was Joseph Grossman-Trawick, 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 a motion for judgment upon the agency record 

filed by Trina Solar Co., Ltd., Trina Solar (Changzhou) Science & Technology Co., 

Ltd., Yancheng Trina Guoneng Photovoltaic Technology Co., Ltd. d/b/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. d/b/a Changzhou Trina 

Hezhong PV Co., Ltd., Changzhou Trina Solar Yabang Energy Co., Ltd., and Turpan 

Trina Solar Energy Co., Ltd. (collectively “Trina”). See generally Pls.’ Mot. J. Agency 

Rec., Feb. 29, 2024, ECF No. 19 (“Pls. Mot.”). Specifically, Trina argues that the 

Department of Commerce (“Commerce”) should have adjusted Trina’s U.S. price to 

account for countervailing duty (“CVD”) rates for eleven, rather than only five, 

subsidy programs for which CVDs were imposed in the most recently completed 

companion CVD review. Pls. Mot. at 6–10. For the following reasons, Commerce’s 

determination is remanded for further consideration. 

BACKGROUND 

On April 12, 2022, Commerce published the initiation notice of antidumping 

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

photovoltaic products from the People’s Republic of China (“China”) concerning the 

period of review (“POR”) of February 1, 2021, through January 31, 2022. See 
Court No. 23-00213 Page 3 

generally Initiation of Antidumping and Countervailing Duty Administrative 

Reviews, 87 Fed. Reg. 21,619 (Dep’t Commerce Apr. 12, 2022). On July 22, 2022, 

Commerce issued its initial ADD and double remedies questionnaires to Trina for the 

administrative review. See generally Letter re: Administrative Review of the 

Antidumping Duty Order on Certain Crystalline Silicon Photovoltaic Products from 

the People’s Republic of China: Request for Information, PD 36, bar code 4266959-01 

(July 22, 2022); see also Letter re: Administrative Review of the Antidumping Duty 

Order on Certain Crystalline Silicon Photovoltaic Products from the People’s 

Republic of China: Double Remedies Questionnaire at 3–9, PD 40, bar code 4266977-

01 (July 22, 2022), (collectively “Questionnaires”). 

On March 9, 2023, Commerce published its preliminary determination. 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 that in accordance 

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

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. 

1 Further citations to the Tariff Act of 1930, as amended, are to the relevant 

provisions of Title 19 of the U.S. Code, 2018 edition. 
Court No. 23-00213 Page 4 

In the final determination of the CVD review in 2017, the most recently 

completed review, Commerce found eleven programs to be countervailable by 

applying an adverse inference while selecting from the facts otherwise available in 

accordance with 19 U.S.C. § 1677e(a)–(b). 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 Domestic and Export Subsidy 

Adjustments Analysis Memo. at 2, PD 153, bar code 4351986-01 (March 10, 2023) 

(“Subsidy Adjustment Memo.”); 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 accompanying Prelim. Decision 

Memo. at App’x I (“CVD Prelim. Decision Memo. 2017”). In the present ADD review, 

Commerce concluded that five of those 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 
Court No. 23-00213 Page 5 

programs (“Subject Programs”),2 “Commerce did not indicate that it based the 

specificity determination on a finding that the programs were export contingent.” 

Final Decision Memo. at 10. Commerce thus “adjusted Trina’s U.S. prices by the 

export subsidy rates assigned to ‘non-selected’ companies” for the five programs 

previously found to be export contingent. Prelim. Decision Memo. at 23; see also CVD 

Prelim. Decision Memo. 2017 at App’x I. 

Trina submitted its case brief commenting on Commerce’s preliminary 

determination in the ADD review on April 17, 2023. See generally [Trina’s] Case 

Brief, PD 163, CD 90, bar code 4366918-01 (Apr. 17, 2023) (“Trina Case Br.”). Trina 

argued that in addition to offsetting the U.S. sales price of the five programs 

identified by Commerce as export subsidies in the Preliminary Results, Commerce 

should have also offset its U.S. sales price for the Subject Programs. See id. at 9–11. 

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

Final Results, 88 Fed. Reg. 62,049. Commerce rejected Trina’s argument and 

continued to calculate the export subsidy adjustment based on only the five programs 

identified in the Preliminary Results pursuant to 19 U.S.C. § 1677a(c)(1)(C). Final 

Decision Memo. at 10. Commerce excluded the Subject Programs identified by Trina 

2 Those programs are: (1) Income Tax Reductions for Export-Oriented Enterprises; 

(2) Tax Refunds for Reinvestment of FIE Profits in Export-Oriented Enterprises; (3) 

Awards for Jiangsu Famous Brand Products; (4) Export Product Research and 

Development Fund; (5) Subsidies for Development of “Famous Brands” and China 

World Top Brands; and (6) Funds for Outward Expansion of Industries in Guangdong 

Province. Final Decision Memo. at 9 n.44 (citing Trina Case Br. at 10–11). 
Court No. 23-00213 Page 6 

because the evidence in the record provided no indication that the Subject Programs 

are export contingent and Commerce had not found the Subject Programs to be export 

contingent in earlier segments of the solar products CVD proceeding. Id. 

On February 29, 2024, Trina filed the instant motion before the Court, arguing 

that Commerce’s determination is unsupported by substantial evidence. See Pls. 

Mot. at 9. Defendant filed its corrected response to Trina’s motion on May 3, 2024, 

requesting that the Court deny Trina’s motion and sustain Commerce’s Final Results. 

See generally Def.’s Resp. [Pls. Mot.], May 3, 2024, ECF No. 23 (“Def. Resp.”). 

Defendant-Intervenor American Alliance for Solar Manufacturing similarly filed its 

response in opposition to Trina’s motion on May 13, 2024. See generally Def.-Int. Am. 

All. Solar Manufacturing Resp. [Pls. Mot.], May 13, 2024, ECF No. 24. Trina filed its 

reply on June 28, 2024. See generally Pls. Reply Br., June 28, 2024, ECF No. 29 (“Pls. 

Reply”). 

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 
Court No. 23-00213 Page 7 

Corp. (30) v. United States, 322 F.3d 1369, 1374 (Fed. Cir. 2003) (quoting Consol. 

Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). 

DISCUSSION 

Trina argues that Commerce’s determination is unsupported by substantial 

evidence because Commerce failed to offset the U.S. sales price by the CVD imposed 

on Subject Programs in the companion CVD review. Pls. Mot. at 9. Defendant rejects 

Trina’s argument, reasoning that Commerce never determined that the Subject 

Programs were export contingent and thus should not be offset pursuant to 19 U.S.C. 

§ 1677a(c)(1)(C). Def. Resp. at 10. Id. Based on the following considerations, 

Commerce’s refusal to offset the U.S. sales price by the duty imposed by reason of the 

Subject Programs is unsupported by substantial evidence. 

This case involves the intersection of ADD and CVD law. Commerce shall 

impose ADD on foreign merchandise that is sold or likely to be sold within the United 

States for “less than its fair value” (“LTFV”). 19 U.S.C. § 1673(1). Sales are LTFV 

where the normal value (the price a producer charges in its home market)3 exceeds 

3 Under the statute, normal value refers to: 

the price at which the foreign like product is first sold (or, in the absence 

of a sale, offered for sale) for consumption in the exporting country, in 

the usual commercial quantities and in the ordinary course of trade and, 

to the extent practicable, at the same level of trade as the export price 

or constructed export price[.] 

19 U.S.C. § 1677b(a)(1)(B)(i). 
Court No. 23-00213 Page 8 

the export price (the price of the product in the United States).4 19 U.S.C. 

§ 1677b(a)(1)(B)(i); 19 U.S.C. § 1677a(a); see also Changzhou Trina Solar Energy Co. 

v. United States, 975 F.3d 1318, 1322 (Fed. Cir. 2020) (“Trina II”). In an ADD case, 

Commerce determines whether merchandise is being sold at LTFV in the United 

States “by comparing the weighted average of the normal values to the weighted 

average of the export prices . . . for comparable merchandise.” 19 U.S.C. § 1677f1(d)(1).5 

In a CVD case, where Commerce “determines that the government of a country 

or any public entity within the territory of a country is providing, directly or 

indirectly, a countervailable subsidy” that causes injury to a U.S. industry, it imposes 

a CVD on such merchandise. 19 U.S.C. § 1671(a)(1). A “countervailable subsidy is a 

subsidy . . . which is specific.”6 19 U.S.C. § 1677(5)(A). A specific subsidy is (i) a 

4 Under the statute, export price means : 

the price at which the subject merchandise is first sold (or agreed to be 

sold) before the date of importation by the producer or exporter of the 

subject merchandise outside of the United States to an unaffiliated 

purchaser in the United States or to an unaffiliated purchaser for 

exportation to the United States, as adjusted under [19 U.S.C. 

§ 1677a(c)]. 

19 U.S.C. § 1677a(a). 

5 When determining normal value, Commerce need not consider sales made outside 

of the “ordinary course of trade.” 19 U.S.C. § 1677b(a)(1)(B)(i). Pursuant to the 

statute, “ordinary course of trade” specifically excludes sales made below the cost of 

production. 19 U.S.C. § 1677(15)(A). 

6 A subsidy exists where a government 

(footnote continued) 
Court No. 23-00213 Page 9 

subsidy “that is, in law or in fact, contingent upon export performance”; (ii) an import 

substitution subsidy which is “contingent upon the use of domestic goods over 

imported goods”; or (iii) a domestic subsidy which is limited, “in law or in fact, to an 

enterprise or industry within the jurisdiction of the authority providing the subsidy.” 

19 U.S.C. § 1677(5A)(B)–(D).

When merchandise under review is subject to both ADDs and CVDs, 

Commerce shall, when calculating a respondent’s ADD rate, 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); Trina II, 975 F.3d at 

1322. “The offset is designed to prevent the double application of duties when the 

subsidies and dumping are related.” Trina II, 975 F.3d at 1330 (quoting Dupont 

Teijin Films USA, LP v. United States, 273 F. Supp. 2d 1347, 1349 n.4 (Ct. Int’l Trade 

2003)); see also Jinko Solar Co., Ltd. v. United States, 961 F.3d 1177, 1182 (Fed. Cir. 

2020) (“Jinko II”) (reasoning that the purpose of the dumping offset is to “avoid the 

double application of duties”). The rationale behind Section 1677a(c)(1)(C) presumes 

(i) provides a financial contribution, 

(ii) provides any form of income or price support within the meaning of 

Article XVI of the GATT 1994, or 

(iii) makes a payment to a funding mechanism to provide a financial 

contribution, or entrusts or directs a private entity to make a financial 

contribution, if providing the contribution would normally be vested in 

the government and the practice does not differ in substance from 

practices normally followed by governments[.] 

19 U.S.C. § 1677(5)(B). 
Court No. 23-00213 Page 10 

that an export subsidy contributes to the antidumping violation. See Jinko II, 961 

F.3d at 1182. Thus, where there are companion ADD and CVD proceedings and 

Commerce determines that there are countervailable export contingent subsidies, 

Commerce will offset the duty imposed to countervail those export contingent 

subsidies in the companion ADD proceeding. See 19 U.S.C. 

§ 1677a(c)(1)(C). 

Where information necessary for Commerce to assess whether there is a 

countervailable subsidy is missing from the record, Commerce uses statutory tools to 

select facts otherwise available to fill in the missing information and make its 

determination. 19 U.S.C. § 1677e(a)–(b). As this Court has previously explained, 

During the course of an investigation or review, Commerce may 

have difficulty accessing and verifying the information it needs to satisfy 

the statutory elements for imposing a CVD. Subject to 19 U.S.C. 

§ 1677m(d), Commerce shall use facts otherwise available to reach its 

final determination when “necessary information is not available on the 

record,” a party “withholds information that has been requested by 

[Commerce],” fails to provide the information timely or in the manner 

requested, “significantly impedes a proceeding,” or provides information 

Commerce is unable to verify. 19 U.S.C. § 1677e(a). Further, under 

certain circumstances, such as a party’s failure to comply to the best of 

its ability with a request for information, Commerce may “use an 

inference that is adverse to the interests of that party in selecting from 

among the facts otherwise available.” 19 U.S.C. § 1677e(b). 

Changzhou Trina Solar Energy Co. v. United States, 359 F. Supp. 3d 1329, 1338 (Ct. 

Int'l Trade 2019) (“Trina I”). Where Commerce uses an adverse inference when 

selecting among facts available, it engages in a two-step process that requires 

Commerce to identify (i) information missing from the record so that it may select 
Court No. 23-00213 Page 11 

from facts otherwise available to replace that missing information, and, if 

appropriate, (ii) use an adverse inference when selecting among the facts otherwise 

available. 19 U.S.C. § 1677e(a)–(b). Thus, when information concerning the 

specificity of a subsidy is missing from the record, Commerce uses facts otherwise 

available, with or without an adverse inference, to determine whether a particular 

program is a countervailable subsidy, because it is either an export contingent 

subsidy, a domestic substitution subsidy or a domestic specific subsidy. See, e.g.,

Risen Energy Co., Ltd. v. United States, 477 F. Supp. 3d 1332, 1347–48 (Ct. Int’l 

Trade 2020). Commerce’s use of facts otherwise available with an adverse inference 

does not obviate the need for it to satisfy the elements of the statute, including a 

determination of what type of subsidy is involved. Trina I, 359 F. Supp. 3d at 1338–

39. 

 Thus, even where Commerce determines a subsidy is countervailable using 

facts otherwise available with an adverse inference, it necessarily determines the 

type of subsidy involved. The Court of Appeals has explained, 

[facts available with an adverse inference] allows Commerce to “reach[ 

]” a “determination” on an incomplete record. It does not obviate 

Commerce’s obligation to make “the applicable determination.” Nor 

does it obviate Commerce’s obligation to support any such 

determinations “[with] substantial evidence.” Before imposing a [CVD], 

Commerce must necessarily determine that a subsidy is “specific”—that 

it is an “export subsidy,” “import substitution subsidy,” or a “[d]omestic 

subsidy” meeting certain requirements—even if it must use [facts 

available with an adverse inference] to do so. Otherwise, Commerce 

cannot impose a [CVD] to offset that subsidy. 

Trina II, 975 F.3d at 1328–29 (internal citations omitted). 
Court No. 23-00213 Page 12 

Moreover, consistent with its statutory mandate, Commerce, as a matter of 

practice, offsets the export price in companion antidumping investigations or reviews 

even when it uses facts otherwise available with an adverse inference, when the facts 

otherwise available indicate the program was an export subsidy. See, e.g., Risen, 477 

F. Supp. 3d at 1347–48; Jinko Solar Co., Ltd. v. United States, 229 F. Supp. 3d 1333, 

1358 (Ct. Int’l Trade 2017) (“Jinko I”), aff’d, Jinko II, 961 F.3d 1177. In Risen, the 

Court concluded that Commerce reasonably offset subsidies which it previously 

determined were countervailable using facts otherwise available with an adverse 

inference. 477 F. Supp. 3d at 1347–48. In the companion ADD decision, Commerce 

determined that the preliminary CVD decision had concluded the subsidies were tied 

to exports, even though the final determination only indicated that the program was 

countervailable using facts otherwise available with an adverse inference. Risen, 477 

F. Supp. 3d at 1348 (citing Crystalline Silicon Photovoltaic Cells, Whether or Not 

Assembled Into Modules, from the People’s Republic of China; 2015, 83 Fed. Reg. 

34,828 (Dep’t Commerce July 23, 2018) (final results)).7

7 In Risen, Commerce had determined that the program at issue was export 

contingent in the preliminary determination. 477 F. Supp. 3d at 1347. Here, 

Commerce distinguishes between the five programs for which it provides an offset 

and the Subject Programs by noting that the former had “previously been found to be 

countervailable and specific because they were export contingent,” Final Decision 

Memo at 9, while this record lacks evidence as to whether the latter were export 

contingent. Id. at 10. By implication, Commerce seems to argue that there was never 

a determination made as to whether the Subject Programs were export contingent. 

(footnote continued) 
Court No. 23-00213 Page 13 

Likewise, in Jinko I, Commerce offset the cash deposit rate in a companion 

antidumping investigation by the export subsidy in the CVD case, which was 

calculated based on facts otherwise available using an adverse inference. See Jinko 

I, 229 F. Supp. 3d at 1358. In its determination in that case, Commerce stated that 

it offsets export subsidies and it “adheres to this practice regardless of whether the 

export subsidy rate is based on AFA.” Certain Crystalline Silicon Photovoltaic 

Products From the People’s Republic of China, 79 Fed. Reg. 76,970 (Dep’t Commerce 

Dec. 23, 2014) (final determination) and accompanying Issues and Decision Memo. at 

39 (first citing Pre-Stressed Concrete Steel Wire Strand From the People’s Republic 

of China, 75 Fed. Reg. 28,560, 28,563 (Dep’t Commerce May 21, 2010); then citing 

Pre-Stressed Concrete Steel Wire Strand From the People’s Republic of China, 75 

Fed. Reg. 28,557 (Dep’t Commerce May 21, 2010) (final determination) and 

accompanying Issues and Decision Memo. at “Grant Programs Treated as Export 

Subsidies Pursuant to [facts available with an adverse inference]”; then citing 

Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From 

the People’s Republic of China, 77 Fed. Reg. 63,791, 63,796 (Dep’t Commerce Oct. 17, 

2012) (final ADD determination); and then citing Crystalline Silicon Photovoltaic 

That argument fails. Commerce made a determination. It explained in the 

preliminary determination in the CVD case that it based its determination on the 

descriptions in the record. See CVD Prelim. Decision Memo. 2017 at 17, App’x I; 

Final Decision Memo. at 9–10. Commerce’s failure to state underlying basis of that 

determination as supported by the descriptions in the record only obscures, rather 

than negates, the determination that it made. 
Court No. 23-00213 Page 14 

Cells, Whether or Not Assembled Into Modules, From the People’s Republic of China, 

77 Fed. Reg. 63,788 (Dep’t Commerce Oct. 17, 2012) (final CVD determination) and 

accompanying Issues and Decision Memo. at Cmt. 18). The Court of Appeals affirmed 

the Court’s decision that the offset was reasonable, stating that Commerce’s practice 

to offset the cash deposit rates “reasonably implements” the purpose of the statute 

while avoiding an inequitable double application of duties. Jinko II, 961 F.3d at 1183. 

Therefore the statutory scheme, the Court of Appeals, and Commerce’s past 

practice make clear that where Commerce imposes a CVD, it necessarily determines, 

inter alia, that a subsidy is either (i) a subsidy “that is, in law or in fact, contingent 

upon export performance” (ii) an import substitution subsidies which are “contingent 

upon the use of domestic goods over imported goods” or (iii) a domestic subsidy which 

is limited, “in law or in fact, to an enterprise or industry within the jurisdiction of the 

authority providing the subsidy.” 19 U.S.C. § 1677(5A)(B)–(D); see also Trina II, 975 

F.3d at 1329. Commerce may resort to facts otherwise available to reach its 

conclusion, see 19 U.S.C. § 1677e(a), and it may even apply an adverse inference in 

choosing among the facts otherwise available to reach its conclusion, but it 

nonetheless necessarily determines why the subsidy is specific and thus 

countervailable. See Trina II, 975 F.3d at 1329. 

 Here, Commerce declined to adjust Trina’s reported export prices to offset 

subsidies for the Subject Programs, i.e.,: (1) Income Tax Reductions for ExportOriented Enterprises; (2) Tax Refunds for Reinvestment of FIE Profits in Export-
Court No. 23-00213 Page 15 

Oriented Enterprises; (3) Awards for Jiangsu Famous Brand Products; (4) Export 

Product Research and Development Fund; (5) Subsidies for Development of “Famous 

Brands” and China World Top Brands; and (6) Funds for Outward Expansion of 

Industries in Guangdong Province. Final Decision Memo. at 9–10. Commerce 

explains there is “no information on the record of this review indicating that these 

programs at issue are export contingent or that Commerce determined that these 

programs were export-contingent[.]”8 Final Decision Memo. at 10. Yet Commerce 

preliminarily determined in the CVD case that, when applying facts available with 

an adverse inference, it “look[ed] to the Initiation Checklist, which provides 

descriptions of these subsidy programs, including the basis on which we found that 

reasonably available information indicated that these programs constituted a 

financial contribution and were specific.” CVD Prelim. Decision Memo. 2017 at 17; 

see also Def. Resp. at 9 (noting that Commerce used the descriptions in the Initiation 

Checklist to determine whether programs were countervailable). 

Commerce’s decision not to offset the remaining subsidy programs is 

unsupported by substantial evidence because Commerce’s claim that it did not 

determine how the subsidy was specific for these remaining programs is unsupported 

8 Commerce’s statement is a bit perplexing. First, it identifies four out of the six 

programs using the word “export.” Final Decision Memo. at 9. Second, it states there 

is no indication on the record “of this review,” suggesting that there is information on 

the record of the CVD review. Id. Although the Court must review this case on the 

record before it, Commerce’s statement suggests that Commerce recognizes that it 

had the information before it in the CVD proceeding and used that information as 

facts otherwise available. See Final Decision Memo. at 10. 
Court No. 23-00213 Page 16 

by the record. Commerce referred to the “Initiation Checklist” in its 2017 preliminary 

CVD determination, and used “descriptions of these subsidy programs, including the 

basis on which we found that reasonably available information indicated that these 

programs constituted a financial contribution and were specific.” CVD Prelim. 

Decision Memo. 2017 at 17. The Initiation Checklist for the CVD proceeding may not 

be on the record of this case, but it was on the record of the CVD case and the record 

in this case suggests that Commerce relied upon the descriptions in that checklist to 

make the determination that it was required to make. See Final Decision Memo. at 

9–10. Commerce’s generic description of its determination fails to mask that a 

determination was made. Accordingly, Commerce must explain what determination 

it made in the CVD case. Commerce may point to evidence in the record or reopen 

the record to explain its determination. Commerce should then apply 19 U.S.C. 

§ 1677a(c)(1)(C), if appropriate. 

CONCLUSION 

In accordance with the foregoing, it is 

ORDERED that Commerce’s refusal to offset Trina’s U.S. sales price by the 

CVD imposed on Subject Programs in the CVD review because they were not export 

contingent is remanded for further explanation or consideration consistent with this 

opinion; and it is further 

ORDERED that Commerce shall file its remand redetermination with the 

court within 90 days of this date; and it is further 
Court No. 23-00213 Page 17 

ORDERED that the parties shall have 30 days after the filing the remand to 

file comments in opposition to the remand redetermination; and it is further 

ORDERED that the parties shall have 30 days after filing the comments in 

opposition to file replies in support of the remand redetermination; and it is further 

ORDERED that the parties shall file the joint appendix within 14 days after 

the filing of replies to the comments on the remand redetermination; and it is further 

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: August 20, 2024 

 New York, New York