United States Court of International Trade

Slip Op. 21-92

Before the Court in Canadian Solar Int’l Ltd., et. al., v. United States, et. al., Consol. Court No. 17-00173, Slip Op. 21-92 (July 28, 2021) was Commerce’s third remand redetermination, in the third administrative review the antidumping duty order covering crystalline silicone photovoltaic cells from China. Id. at 2. In its Third Remand Results, Commerce continued to value Canadian Solar’s nitrogen input using Thai import data, and argued that the use of Thai import data was not aberrational. Id. at 4.

Plaintiff-Intervenor and Plaintiff objected to the Third Remand Results. Id. Plaintiff asked the Court to reject Commerce’s use of Thai data to calculate the surrogate value for Canadian Solar’s nitrogen input as unreasonable and unsupported by substantial evidence because Plaintiff alleged “the Thai data is aberrational and Commerce has offered only speculation in response to the court’s instruction to provide further explanation.” Id. at 8. Defendant argued that Commerce complied with the court’s remand order by sufficiently explaining why the Thai import data is reliable and not aberrational.” Id. Defendant contended that Commerce’s reliance on the Thai import data was reasonable, in accordance with its established practice, and should be sustained. Id. at 7. For the following reasons, the Court remanded Commerce’s Commerce’s decision to continue using Thai import data to value Canadian Solar’s nitrogen input. Id. at 4.

The court will uphold Commerce’s determination unless it is “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i). Id. at 7.

“The results of a redetermination pursuant to court remand are also reviewed ‘for compliance with the court’s remand order.’” Id. “When subject merchandise is exported from a nonmarket economy country, Commerce calculates normal value based on factors of production (“FOPs”). 19 U.S.C. § 1677b(c)(1).”

Id. at 8. Commerce uses “the best available information” to value the FOPs, Id., and has discretion to determine what constitutes the best available information. Id. “Commerce generally selects surrogate values that are publicly available, product specific, reflect a broad market average, and are contemporaneous with the POR.” Id. “Commerce’s practice is to avoid using aberrational values as surrogate values.” Id. Commerce further defines “aberrational” to mean an extreme outlier, distorted or misrepresentative, or somehow incorrect.” Id. at 8-9. In this case, the Court found that “Commerce’s additional explanations in the Third Remand Results for its continued reliance on Thailand for the surrogate value of Canadian Solar’s nitrogen input are unsupported by substantial evidence and unreasonable in light of the Court of Appeals’ decision in SolarWorld. Id. at 10. “Commerce’s explanation that the Thai AUV is within the ranges of the individual countries’ imports is insufficient in light of SolarWorld.” Id. “The Court of Appeals made clear that it is not reasonable to select a price that is consistent with a fraction of a percent of imports and thousands of percent higher than 99% of imports solely because at least one importer in similarly situated countries, under unknown circumstances, paid a higher price.” Id. at 11. Here, “Commerce did not sufficiently explain why the detracting evidence cited by the Court of Appeals does not render Thailand’s AUV aberrational.” Id. at 15. As such, the Court remanded Commerce’s Third Remand Results for further consideration. Id.