Chinese Solar Cell Producers Challenge Process and Results of AD Calculation

Three separate lawsuits at the Court of International Trade are challenging the results of the Commerce Department's eighth administrative review of the antidumping duty order on crystalline silicon photovoltaic cells from China. All three suits allege Commerce made errors in its calculations and choice of data, particularly its surrogate values, during the review.

The first complaint, by Jinko Solar, a mandatory respondent in the review, contests Commerce's final rate determination of 15.71%, later amended to 20.99%. Commerce chose Malaysia as the primary surrogate market economy country for China. Jinko says it submitted surrogate value information on the record for the department’s use in valuing factors of production and calculating surrogate financial ratios that Commerce declined to use.

Jinko had requested that Commerce use "particular surrogate values" in its calculations and challenges Commerce's decision to calculate surrogate financial ratios using statements from only JA Solar (Malaysia) and SDN. Several of Commerce's valuation decisions during the investigation, which used proxies or averages, were incorrect, Jinko says (Jinko Solar v. U.S., CIT # 22-00219).

The second complaint by Risen, another mandatory respondent, challenges Commerce's use of adverse facts available on the basis that unaffiliated suppliers of solar cells and modules didn't report their factors of production. Since Risen used its "maximum efforts to persuade and induce its suppliers to cooperate," the agency was wrong to use AFA and find that Risen had the power to get the suppliers to cooperate, Risen says.

The five-count complaint also contests Commerce's surrogate values for glass, ethyl vinyl acetate (EVA) and backsheet, and the agency's freight data. The agency did not use the best available information in its calculations, which led to an amended 12.24% AD margin for Risen. The company says the move went against Commerce's "long-standing practice of preferring to rely on all surrogate values in the primary surrogate country." Risen also argues that Commerce used the incorrect Harmonized Tariff Schedule subheadings as a surrogate value for its EVA and backsheet inputs. The respondent further took issue with Commerce's ocean freight data, arguing that the agency used less specific data from Maersk and that data was used that failed to properly consider contemporaneity (Risen Energy Co. v. U.S., CIT #22-00221).

The third complaint, by JA Solar, also challenges Commerce's application of partial adverse facts available to calculate Risen’s dumping margin, which Commerce applied on the basis that unaffiliated suppliers of solar cells and modules didn't report their factors of production. JA Solar's AD rate was based on the average margins of the two mandatory respondents. The company also challenges Commerce's value calculations and choice of substitutes (JA Solar Technology v. U.S., CIT # 22-00223).