Plaintiffs Rail Against Commerce's Surrogate Values for Backsheet, EVA in Solar Cell AD Case

While plaintiffs in a solar cell antidumping review case were satisfied with the Commerce Department's switch from adverse facts available and how it values silver paste on remand, they still contest the agency's positions on how to value backsheets and ethyl vinyl acetate (EVA) using surrogate data. In comments to the Court of International Trade, the plaintiffs, led by Risen Energy, argued the Commerce's bid to further defend its valuation of backsheet and EVA inputs is unsupported by substantial evidence (Risen Energy v. U.S., CIT Consol. #20-03743).

The case was brought by 21 plaintiffs, consolidated plaintiffs and plaintiff-intervenors, led by Risen, one of the review's mandatory respondents, and Trina Energy, 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 the plaintiffs were correct in arguing the surrogate data for this input is aberrant and doesn't reflect the commercial reality of solar cell and module production in China. The judge also ruled Malaysian Harmonized Tariff Schedule classification isn't specific to silver paste. On remand, Commerce valued silver paste using the plaintiffs' preferred HTS subheading 7106.92, which is more specific to the paste used by the respondents. In their comments, the plaintiffs signed off on this move.

As for the valuation of backsheet, Kelly ruled 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, saying 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 the ATSM abstracts aren't meant for this purpose but are guidelines for finding the thickness of plastic film. Commerce disagreed, saying ASTM abstracts are the only definition of film on the record and must be used.

During the remand, Risen added other evidence to the record to overcome the reliance on the ASTM abstracts to support the idea that the backsheets are "film." Some of this evidence includes specification information from 3M, which operates in Malaysia, the primary surrogate country from the case. "The Department downplayed these additional industry materials, dismissing them as supposed mere marketing materials that do not correspond to the Malaysian HTS or authoritative sources on industry standards for sheet or film," Risen said. "However, the ASTM specifications themselves do not correspond to the Malaysian HTS and are not specific to the solar industry at all, unlike the industry materials submitted by Risen."

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' preferred 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.

The plaintiffs further defended their HTS subheading in their comments, echoing arguments made against Commerce's classifications of backsheet. Again, the ASTM specifications "do not actually define sheet and film" in the way used by the agency but rather "suggest that the term sheet may be used when over 0.25mm," the comments said. Risen also submitted materials from 3M to support the idea that the EVA is film rather than sheet. "If the Department truly finds ambiguity between the terms, then its determination to rely solely on an HTS for sheet is still not supported," the comments said. "Rather, reliance on both HTS (i.e. the HTS for film and for sheet) could be justified if the Department’s claim of ambiguity is credible."