Commerce Switches Surrogate Countries After CIT, CAFC Rule Against 'Bookend Methodology'

The Commerce Department decided to value a key solar cell input using Bulgarian imports rather than Thai imports after the Court of International Trade said the agency's use of the Thai surrogate data was improper, it told the court in Sept. 27 remand results (Solarworld Americas, Inc. et al. v. United States, CIT Consol. #16-00134).

The remand results came in a challenge to the second administrative review of the antidumping duty order on crystalline 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 Federal Circuit eventually reversed the lower court's rulings and remand. 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 elected to do the latter, explaining 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 most recent decision, CIT said that this led to the unreasonable selection of the Thai surrogate data (see 2107280025).

Commerce subbed out the Thai surrogate data for the Bulgarian surrogate data. "Because the record lacks information that would permit Commerce to conduct the further analysis required by the Court, under respectful protest, in these final results of redetermination, we have not valued nitrogen using Thai imports under HTS subheading 2804.30, but valued nitrogen using Bulgarian imports under HTS subheading 2804.30," the remand results said. After making the change, the mandatory respondents received a zero percent dumping margin. None of the parties submitted comments on the draft remand results.