317 F. Supp. 3d 1314
Ct. Intl. Trade2018Background
- Commerce investigated antidumping duties for crystalline silicon photovoltaic products from China and used surrogate values to calculate normal value for nonmarket economy inputs.
- Trina was a mandatory respondent; it reported a by-product offset for scrapped solar modules (module scrap) that Commerce needed to value.
- In the final determination Commerce valued the scrapped modules using South African import data for HTS 8548.10 (waste/scrap of batteries/accumulators); the only other on-record surrogate was Thai import data for HTS 2804.69 (silicon <99.99% purity).
- SolarWorld challenged Commerce’s selection, arguing HTS 8548.10 is dissimilar to scrapped solar modules and that HTS 2804.69 (silicon/polysilicon) better reflects the primary reclaimed input.
- The Court remanded twice (Jinko Solar I and II), finding Commerce’s reliance on the “scrap” label and electrical-function similarity insufficient to show HTS 8548.10 reasonably represented the by-product’s value.
- On second remand, under protest Commerce abandoned HTS 8548.10 and selected Thai HTS 2804.69 to value Trina’s scrapped modules; the change did not affect margins because the quantity was negligible. The court sustained the Second Remand Results.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Commerce’s selection of HTS 8548.10 (South Africa) was a reasonable surrogate for Trina’s scrapped solar modules | HTS 8548.10 is unrelated to photovoltaic scrap; polysilicon (HTS 2804.69) is the primary reclaimed input and a better surrogate | Commerce initially argued HTS 8548.10 better captured the mixed-material nature of module scrap (metals, glass, chemicals) and similarity to engineered electrical products | Court found Commerce’s original reliance on “scrap” label and electricity-generation function inadequate and required further explanation; on second remand Commerce abandoned 8548.10 and chose HTS 2804.69, which the court sustained |
| Whether Commerce provided sufficient explanation on remand to justify its surrogate choice | SolarWorld maintained Commerce still had not shown 8548.10 reasonably represented module scrap value | Commerce argued only two imperfect options existed and, unable to justify 8548.10 without relying on the Court-rejected rationales, it selected the alternate HTS 2804.69 | Court held Commerce complied with remand by reconsidering and adopting HTS 2804.69; selection sustained |
| Whether the change in surrogate value affected dumping margins | SolarWorld implied surrogate choice could affect margins | Commerce reported the change did not alter margins due to the very small per-unit quantity of module scrap | Court accepted Commerce’s representation; margins unchanged |
| Whether Commerce’s second remand complied with the court’s prior order | SolarWorld contended prior deficiencies persisted | Commerce, under protest, replaced 8548.10 with 2804.69 and documented rationale | Court held Commerce complied with Jinko Solar II and sustained the Second Remand Results |
Key Cases Cited
- QVD Food Co. v. United States, 658 F.3d 1318 (Fed. Cir.) (Commerce has discretion to determine what constitutes the best available information)
- Nation Ford Chemical Co. v. United States, 166 F.3d 1373 (Fed. Cir.) (deference to Commerce’s surrogate selection within statutory framework)
- Viraj Group, Ltd. v. United States, 343 F.3d 1371 (Fed. Cir.) (agency may preserve issues for appeal by complying with court’s remand under protest)
- Xinjiamei Furniture (Zhangzhou) Co. v. United States, 968 F. Supp. 2d 1255 (Ct. Int’l Trade) (standard for reviewing redeterminations pursuant to remand)
- Nakornthai Strip Mill Pub. Co. v. United States, 587 F. Supp. 2d 1303 (Ct. Int’l Trade) (remand compliance review principles)