Trade Updates for Week of October 25, 2017

United States Court of International Trade

 

Commerce Decision Sustained

In Weishan Hongda Aquatic Food Co., Ltd. et al. v. United States and Crawfish Processors Alliance, Court No. 16-73, Slip Op. 17-45 (October 25, 2017), Plaintiffs Weishan Hongda Aquatic Food Co., Ltd (“Weishan”), China Kingdom (Beijing) Import & Export Co., Ltd. (“China Kingdom”), Shanghai Ocean Flavor International Trading Co., Ltd. (“Ocean Flavor”), and Deyan Aquatic Products and Food Co., Ltd. (“Deyan”) (collectively, “Plaintiffs”) initiated this case challenging Commerce’s Final Results in the 2013-2014 administrative review (“AR”) and new shipper review (“NSR”) of the antidumping duty order covering freshwater crawfish tail meat from the People’s Republic of China (“PRC” or “China”).1 See Freshwater Crawfish Tail Meat from the People’s Republic of China, 81 Fed. Reg. 21,840 (Dep’t Commerce Apr. 13, 2016) (final results of antidumping duty admin. review and new shipper review).

Plaintiffs challenged Commerce’s rejection of Thai financial statements in favor of a 2014 Annual Report from a South African seafood processor, Oceana Group (the “Oceana Report”), to value factory overhead, selling, general and administrative expenses, and profit (hereinafter referred to as “financial ratios”).  Specifically, plaintiffs argued that Commerce did not adequately support or explain its determination that the Oceana Report provided the necessary information to accurately calculate financial ratios or compare the Thai and South African financial statements to determine which was more reliable and representative of Plaintiffs’ production experience.  Moreover, plaintiffs argued that South Africa is not a significant producer of comparable merchandise.

However, because plaintiff Weishan only contested the cost of sales data and insufficient disaggregation of line items for labor and raw materials in the Oceana Report administratively, it may not raise other issues regarding overhead, general and administrative expenditures. These cost of sales data and disaggregation issues were addressed in Commerce’s discussion of its preferred methodology in the Final Results. Moreover, Commerce’s decision regarding its choice of the Oceana Report was supported by evidence where Commerce explained that the Thai financial statements were not sufficient because they benefitted from countervailable subsidies and that the South Africa data was comparable to the PRC as well as contemporaneous, and that South Africa was a significant producer.

For all these reasons, the Court sustained Commerce’s decision.

 

Commerce’s Decision Regarding Crystalline Silicon Photovoltaic Cells Remanded in Part

In SolarWorld Americas, Inc. et al. v. United States and Changzhou Trina Solar Energy Co., Ltd. et al., Consol. Court No. 16-00134, Slip Op.17-134 (Public Version published October 25, 2017), plaintiff, SolarWorld Americas, Inc. (“SolarWorld”), commenced this action pursuant to 19 U.S.C. § 1516a(a)(2)(B)(iii) to review the second administrative review of the antidumping duty (“ADD”) order covering crystalline silicon photovoltaic cells, whether or not assembled into modules, from the People’s Republic of China (“China” or “the PRC”). See Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the [PRC], 81 Fed. Reg. 39,905 (Dep’t Commerce Jun. 20, 2016).  SolarWorld moved for judgment on the agency record, challenging five aspects of the final determination.  The Court sustained Commerce’s selection of financial statements for calculating financial ratios for respondents’ overhead, selling, general, and administrative (“SG&A”) expenses, and profit, and Commerce’s application of adverse facts available (“AFA”) to respondent’s unreported, purchased solar cells. 

However, the Court remanded for further explanation Commerce’s surrogate value selection for valuing respondents’ tempered glass.  Specifically in regards to the use of inputs of tempered glass, Commerce must explain the use of disproportionate Hong Kong values, and why the benchmark valued from Ecuador and Ukraine are not reliable. 

The Court also remanded Commerce’s valuation of broken and scrapped polysilicon cells and modules using Harmonized Tariff Schedule category 8548.10.  Commerce failed to address SolarWorld’s argument that the language of heading 8548, HTS, evidences that the products imported under that heading are specific to electrical batteries and “are produced using a significantly different manufacturing process with completely different raw material inputs than are solar cells.”

Finally, the Court remanded Commerce’s determination to include import data with quantities of zero in the surrogate value calculations.  Trina argued that the inclusion of these reported quantities of zero in the surrogate value calculations, distorted surrogate values.  However, it is uncontested that the majority of the values with zero quantities were not within range of other low-quantity values, and that there is a lack of an alternate reasonable explanation as to why these values are reliable.  Commerce is therefore required to explain why such import data with reported quantities of zero should be included in the surrogate value calculations.