Trade Group Calls for Commerce to End Solar Circumvention Case Due to Questionable Analysis

A renewable energy trade group called on the Commerce Department to end its anti-circumvention inquiry on solar cells from Cambodia, Malaysia, Thailand and Vietnam, citing a recent news article that quoted energy industry analysts saying Auxin Solar misapplied their research to justify its allegations of circumvention.

In a May 20 filing, the American Council on Renewable Energy (ACORE) said an article published two days earlier by Canary Media calls into question the basis of Auxin’s requests for the anti-circumvnetion inquiries. Commerce “relied heavily” on “characterizations” included in Auxin’s request of research from BloombergNEF when it initiated the inquiries. But in the article, the BloombergNEF analyst said Auxin’s use of the data did not accurately reflect the research.

“Now that Commerce is aware that Auxin’s petition mischaracterized and misused BloombergNEF research, it is crucial that Commerce immediately rescind the circumvention inquiry to protect its administrative process,” the rescission request said. “Otherwise, the agency is essentially inviting parties to misuse its process with impunity.”

The day earlier, parties to the anti-circumvention inquiry submitted their comments on potential importer certification requirements should Commerce find circumvention in the upcoming preliminary results of the inquiry. In the comments, importers and foreign exporters called on Commerce to find no circumvention in its preliminary determination or end the inquiry, with one also citing the Canary Media report on the purported unreliability of Auxin’s inquiry request.

“It should be evident to Commerce that the only reasonable outcome in these inquiries is negative circumvention determinations,” NextEra and Florida Power & Light said. “Auxin has failed to rebut the substantial evidence on the record that the processing steps that occur in the targeted third countries involve converting wafers (an inert input) into a functioning [crystalline silicon photovoltaic] CPSV cell, capable of converting sunlight to electricity. These critical, complex, and capital-intensive steps are substantially more than minor or insignificant,” they said.

“Indeed, the factual premise for many of Auxin’s allegations (and, in turn, Commerce’s initiation notice) are in serious doubt, given recent revelations that Auxin misrepresented -- in its certified inquiry request -- the data contained in a BloombergNEF report that formed the basis for much [of] Auxin’s request,” NextEra and FP&L said.

Nonetheless, if Commerce does reach a preliminary circumvention finding, it should put in place a certification process to allow “importers to certify that the p/n junction is formed outside of China to qualify the goods to enter free” of solar cells duties, NextEra and FP&L said. And company-specific rates should be tied to the company that exports the wafer, not the company that made it, they said.

“Commerce should clarify that the exporter of the wafer determines whether an importer can claim a company-specific rate, without regard to any other inputs,” NextEra and FP&L said. “… There is limited vertical integration throughout the CSPV supply chain. Not all wafer manufacturers produce cells; and cell producers obtain wafers from a variety of suppliers,” they said. “If Commerce’s intent is to broadly permit use of company-specific rates that are lower than the combined China-wide AD and all-others CVD rates of over 250 percent, limiting the application of company-specific rates to wafer producers with such rates would not achieve that goal.”

NextEra and Florida Power & Light also called for cells and modules to be excluded unless all production up to the wafer stage took place in China. LONGi mirrored those comments in its brief. The antidumping and countervailing duty orders on solar cells from China explicitly exclude Chinese modules made from non-Chinese cells, so they can’t cover Cambodian, Malaysian, Thai and Vietnamese modules made from non-Chinese cells either, LONGi said.

And should Commerce find that turning wafers into cells qualifies as circumvention, the Chinese wafers should be entirely produced in China, from only Chinese inputs, to qualify, the company said.

In its own brief, Auxin Solar, the requestor of the inquiries, said it agrees that a certification process should be established. Certification should be grounded on the origin of the polysilicon wafers used in cell and module production, it said. And the default for importers should be the China-wide AD duty rate and the all-others CV duty rate, Auxin said, “unless an exporter/importer can certify that the Chinese-origin inputs were sourced from a company with company-specific AD and/or CVD rates.”