Exporter Challenges Commerce's Exclusion of Goods With Ultimate US Destination From AD Review

The Commerce Department was wrong to exclude sales made by an antidumping review respondent that were further assembled in a third country before being shipped to the U.S., in an AD duty review, plaintiff JA Solar said in its Sept. 15 complaint to the Court of International Trade. Commerce had "copious" amounts of evidence showing that the respondent knew that the final destination of the goods was the U.S., meaning the agency should have included them in the review, the complaint said (JA Solar International Limited, et al. v. United States, CIT #21-00514).

JA Solar is challenging an element of the fifth administrative review of the antidumping duty order on crystaline silicon photovoltaic cells and modules from Taiwan covering entries from 2019 to 2020. Commerce picked two mandatory respondents for the review, one of which was Inventec Solar Energy Corporation (ISEC). This respondent said that it had sales wherein it was told by its customer to send the solar cells to producers in a third country. But ISEC held that these sales constituted reportable U.S. sales since the respondent knew, based on email or other sales documentation, that the goods were headed for the U.S. after being assembled into solar modules.

Throughout the review, Commerce then asked for proof of this contention. So, ISEC gave the agency WeChat messages, affidavits and purchase orders affirming that the final destination was the U.S. and that both parties were aware of this. That's where JA Solar comes in, as the exporter and importer of the subject merchandise submitted comments to Commerce at this phase of the review to back ISEC's position.

JA Solar said that no party submitted any rebutting information and that Commerce couldn't find any deficiencies in ISEC's responses, nor did the agency give ISEC a chance to clarify the information it gave on the matter. Nevertheless, Commerce still excluded the sales from the review, ultimately applying a 21.87% dumping margin. The agency applied its "knowledge test" to find out whether ISEC knew of the U.S. destination. This test considers what the seller actually knew and what it should have known of the final destination. Using this test, Commerce still held that the facts don't back ISEC's position it knew or should have know that the U.S. was the ultimate destination.

"Commerce misapplied the statute, ignored copious record evidence demonstrating ISEC’s knowledge of the ultimate destination of its solar cells at the time of the sale and contradicted its own standard practice with respect to the knowledge test," the complaint said.