CIT Probes Commerce Practice of Determining if Surrogate Data Is Aberrational in AD Case

Judge Claire Kelly at the Court of International Trade probed the Commerce Department's process of determining whether surrogate country data is aberrational in antidumping cases, during May 19 oral arguments. In a case where she granted a motion for reconsideration following a U.S. Court of Appeals for the Federal Circuit ruling on a nearly identical issue, Kelly questioned Commerce's lack of clear criteria and "know it when I see it" approach.

The original case, filed in 2017, challenged aspects of the final results of the third administrative review of the antidumping duty order on crystaline silicon photovoltaic cells from China. After Kelly initially sustained the use of Thai surrogate data to calculate Canadian Solar's AD rate, CAFC subsequently issued a decision against the use of Thai surrogate data for another exporter during the previous review.

The Federal Circuit opinion compared Commerce's use of the Thai import data to a "bookend methodology," which it rejected as "illogical." Commerce originally backed the use of Thailand's average unit value (AUV) since it fell within a range of the AUVs for countries of similar economic development. However, the Federal Circuit said the extremes of the range were out of whack -- the countries on the low AUV side represented over 99% of the imports of nitrogen gas while the other side represented only 0.4%.

Kelly's questioning centered around a prior opinion of hers involving a company named Tri Union, also on a question of how Commerce determines if data is aberrational. "What [Tri Union] talks about was the fact that Commerce never says what is aberrational, it's kind of 'I know it when I see it,'" Kelly said. "And that's kind of a problem for Commerce in cases like this when what you're looking and saying, 'I know it when I see it,' it's a problem because we don't know what your argument is. Tri Union aside, what we're saying is, 'I know aberrational when I see it, and this is not it.' And the Court of Appeals has said, 'It seems like you have some explaining to do because you have some very low volume imports, and judging that those might be distorted from the price that you're picking.'"

Kelly also explored questions in the case over whether the Federal Circuit opinion is relevant to current Commerce practice, if agency practice was actually violated or in violation of the law, and if the same bookend methodology was truly employed in this instance.