Commerce Drops Partial AFA, Sticks by Certain Surrogate Values in AD Remand at Trade Court
The Commerce Department submitted its remand results July 5 in an antidumping duty review challenge originally brought by Risen Energy Co. at the Court of International Trade. Commerce switched its positions on applying adverse facts available over unreported factors of production data -- reverting to neutral facts available -- and on how to value silver paste using Malaysian surrogate data. The agency stuck by its positions, though, on how to value backsheets and ethyl vinyl acetate (EVA) using surrogate data. The latter two positions remain contested by the plaintiffs, but they consented to Commerce's switch on the FOP data and silver paste (Risen Energy Co., et al. v. United States, CIT Consol. #20-03743).
The case was brought by a total of 21 plaintiffs, consolidated plaintiffs and plaintiff-intervenors, led by Risen, one of the review's mandatory respondents, along with Trina Energy Co. to contest the 2017-2018 administrative review of the antidumping duty order on solar cells from China. In the court's first opinion on the matter, issued in April, Judge Claire Kelly remanded the surrogate values for silver paste, backsheet and EVA (see 2204120050).
Where the silver paste -- an input of solar cells -- is concerned, the judge found that the plaintiffs were correct in arguing that the surrogate data for this input is aberrant and doesn't reflect the commercial reality of solar cell and module production in China and that its Malaysian Harmonized Tariff Schedule classification is not specific to silver paste. On remand, Commerce valued silver paste using the plaintiffs' preferred HTS subheading 7106.92 since it is more specific to the paste used by the respondents.
As for backsheet and EVA, Kelly ruled that Commerce's decision to use the Malaysian data for these two inputs is arbitrary and departs from past agency practice without explanation. In the review, Commerce used Malaysian tariff schedule subheading 3920.62.1000, which covers "Poly(Ethylene Terephthalate): Plates and Sheets" to value the backsheet, while it has historically used subheading 3920.62.9000, which covers "Poly(Ethylene Terephthalate): Other Than Plates And Sheets."
Commerce came back to the court with a further defense of its use of subheading 3920.62.1000, telling the court that the "central issue" is whether to value backsheets using the Malaysian HTS category for PET plates and sheets or the one covering non-plates and sheets. The agency put ASTM abstracts on the record to define the terms "plate," "sheet," and "film," showing that Risen's backsheets fit under sheet rather than film. Risen argued that the ATSM abstracts are not meant for this purpose but are guidelines for finding the thickness of plastic film. Commerce disagreed, explaining that the ASTM abstracts are the only definition of film on the record and must be used.
Over the valuation of EVA, Commerce continued to use the average unit import value (AUV) of HTS subheading 3920.10.1900, which provides for "Polymers Of Ethylene: Plate And Sheets: Other Than Rigid," rather than the plaintiffs' preference of 3920.10.9000, which provides for "Polymers Of Ethylene - Other." Again, the agency relied on its ASTM abstracts to define the relevant terms, finding that they were the only definitions on the record and that they indicate that Commerce's subheading is the correct one.
Kelly also ruled that Commerce failed to show that the respondent didn't cooperate to the best of their ability and that the respondents had the leverage to induce the suppliers' cooperation over unreported FOP data. On remand, Commerce switched to using neutral facts available using average consumption rates reported by the respondents for each input as a substitute for the missing data. The agency said that as seasoned AD respondents, the companies should have secured the cooperation of unaffiliated suppliers before agreeing to do business with them, indicating the respondents' failure to cooperate to the best of their ability. The plaintiffs did not contest the switch to neutral facts available.
The result of the remand is a 19.20% dumping margin for Risen, a 25.18% dumping margin for Trina, and a 23.02% dumping margin for all other respondents.