320 F. Supp. 3d 1341
Ct. Intl. Trade2018Background
- This case reviews Commerce’s remand determination in the second administrative review of the antidumping duty order on crystalline silicon photovoltaic cells from the PRC; SolarWorld and consolidated respondent-intervenors challenged Commerce’s surrogate value selections and methodology.
- Commerce selected Yingli and Trina as mandatory respondents and used Thai import data to value Yingli’s tempered glass (HTS 7007.19.9000) and Trina’s scrapped-cell/module byproduct (HTS 8548.10); Commerce included import data records reporting zero quantity when computing average unit values (AUVs).
- The Court previously sustained several surrogate-value selections but remanded three issues: (1) Commerce’s inclusion of zero-quantity import data in surrogate-value calculations, (2) valuation of Yingli’s tempered glass using Thai data (where Hong Kong entries disproportionately skewed the Thai AUV), and (3) valuation of Trina’s scrapped-cell/module byproduct using Thai HTS 8548.10 (battery scrap category) which produced a byproduct value higher than the input.
- On remand Commerce: (a) defended including zero-quantity records after new data analyses showing those values comport with other low-quantity imports; (b) reaffirmed Thai tempered-glass data as non-aberrational based on its practice of assessing AUVs in the aggregate across surrogate countries; and (c) reaffirmed using HTS 8548.10 for Trina’s scrap byproduct based on asserted process similarities to battery scrap.
- In this opinion the Court: (a) sustains Commerce’s inclusion of zero-quantity import records; and (b) remands Commerce’s surrogate selections for Yingli’s tempered glass and Trina’s scrapped-cell/module byproduct for further explanation or reconsideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Inclusion of zero-quantity import records in surrogate-value calculations | Trina: zero-quantity values are unreliable/outliers and distort surrogate values | Commerce: zero-quantity values result from rounding small quantities to zero and, per remand analyses, correlate with low AUVs and are not random errors | Sustained — Court finds Commerce’s remand analyses reasonable and concludes inclusion was supported |
| Tempered-glass surrogate selection (Thai data) | Yingli: Thai AUV is distorted by Hong Kong imports that are 1.6% of volume but >>75% of value; Commerce must address disproportionality and alleged aberration | Commerce: current practice is to assess aberration in the aggregate across surrogate countries and the Thai AUV is within ranges of comparable countries; disaggregating component entries is administratively burdensome and invites cherry-picking | Remanded — Commerce must better explain and reconcile its practice with the record, and address the disproportionate impact of Hong Kong data |
| Scrapped solar-cell/module byproduct surrogate (HTS 8548.10) | SolarWorld: HTS 8548.10 covers battery scrap (not solar scrap) and yields an implausibly high byproduct value; Commerce failed to show comparability/specificity | Commerce: scrapped cells/modules are assembled electrical scrap more like battery scrap than raw/low-purity silicon; thus HTS 8548.10 is a better surrogate than silicon HTS | Remanded — Court finds Commerce’s comparability rationale inadequate and requires further explanation or reconsideration |
| Standard for aberrationality of surrogate data | Plaintiffs: Commerce should identify and exclude aberrational component entries (when specific entries disproportionately skew aggregate AUV) | Commerce: its current practice evaluates whether a country’s aggregate AUV is aberrational vis-à-vis other surrogate countries or historical AUVs, not each component entry | Remanded in part — Court requires Commerce to clarify and justify its changed practice and explain how it aligns with the statutory aim of accurate margins given the record’s skewing entries |
Key Cases Cited
- QVD Food Co. v. United States, 658 F.3d 1318 (Fed. Cir. 2011) (Commerce has broad discretion to select "best available information" for surrogate values)
- Rhone Poulenc, Inc. v. United States, 899 F.2d 1185 (Fed. Cir. 1990) (ADD determinations must aim to calculate accurate dumping margins)
- Parkdale Int’l v. United States, 475 F.3d 1375 (Fed. Cir. 2007) (agency must ground surrogate-value choices in statutory purpose of accurate margins)
- Nation Ford Chem. Co. v. United States, 166 F.3d 1373 (Fed. Cir. 1999) (surrogate selection should aim to produce accurate valuation for inputs/byproducts)