CIT Upholds Commerce's Switch to Bulgarian, Mexican Surrogate Data in 2 Solar Cell AD Reviews
The Court of International Trade upheld the Commerce Department's switch from Thai to Bulgarian surrogate data and Thai to Mexican surrogate data for a key solar cell input in two nearly identical Dec. 8 opinions on two separate antidumping duty reviews. After previously finding that Commerce's reliance on the Thai data was improper, the court had directed Commerce to either switch to another option or further explain its position. The agency reversed course in both cases, finding no objection by any party, including any of the plaintiffs, led by Solarworld Americas, Inc. and Canadian Solar International, respectively.
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The opinion in Solarworld's case came in an action over the second administrative review of the antidumping duty order on crystaline silicon photovoltaic cells from China, covering entries in 2013-14. Following two initial CIT decisions in which the trade court sustained Commerce's findings, the U.S. Court of Appeals for the Federal Circuit eventually reversed the lower court's rulings and remanded. Declaring that Commerce's "bookend methodology" for picking the Thai surrogate data for the respondents' nitrogen inputs was not backed by proper evidence, the appellate court sent the case back to Commerce to either change the surrogate nation or further explain.
Commerce came back with an explanation of how the Thai data was not aberrational since it fell within the range of average import prices of the potential surrogate countries. The Federal Circuit disagreed because the Thai import data represented only 1% of the imports considered. In essence, Commerce failed to account for the volume of the imports at each end of the spectrum of prices to be considered, CAFC said. In the case's fifth decision, CIT said that this led to the unreasonable selection of the Thai surrogate data (see 2107280025).
In its fourth remand results, Commerce finally subbed out the Thai surrogate data for the Bulgarian surrogate data. The agency said that the record lacks information that would allow it to conduct the further analysis required by the court to maintain its position. This led Commerce to value nitrogen using the Bulgarian imports, which led to a zero percent dumping margin for the mandatory respondents. None of the parties submitted comments on the draft remand results.
In the Dec. 8 opinion, CIT upheld this position. "Commerce explains that the record does not contain sufficient evidence to undertake the analysis to support the use of the Thai import data required in SolarWorld V," the judge said. "Therefore, Commerce examined the Global Trade Atlas data on record for nitrogen imports into five other possible surrogate countries. ... The record indicates that Bulgaria had the highest import volume for the period of review; therefore, Commerce’s decision to use Bulgarian import data is supported by substantial evidence."
The opinion in Canadian Solar's case concerns the third administrative review of the antidumping duty order on crystaline silicon photovoltaic cells, whether or not assembled into modules from China, covering entries in 2014-15. Following a nearly identical timeline as Solarworld's case, Canadian Solar saw Commerce switch from using Thai to Mexican import data to value nitrogen after the fifth opinion in the case, with no party providing comment. The court then upheld this switch. "The record indicates that Mexico had the highest import volume for the period of review; therefore, Commerce’s decision to use Mexican import data is supported by substantial evidence," Kelly said.
(Solarworld Americas, Inc. et al. v. United States, Slip Op. 21-165, CIT Consol. #16-00134, dated 12/8/21, Judge Kelly. Attorneys: John Magnus of Tradewins for plaintiff SolarWorld; Jonathan Freed of Trade Pacific for consolidated plaintiffs; Richard Weiner of Sidley Austin for consolidated plaintiffs; Craig Lewis of Hogan Lovells for plaintiff-intervenors; Tara Hogan for defendant U.S. government)
(Canadian Solar International Limited et al. v. United States, Slip Op. 21-166, CIT Consol. #17-00173, dated 12/8/21, Judge Kelly. Attorneys: Craig Lewis of Hogan Lovells for plaintiffs; Richard Weiner of Sidley Austin for plaintiff-intervenors; Adams Lee of Harris Bricken for plaintiff-intervenor; Joshua Kurland for defendant U.S. government)