Chinese Solar Cell Producers Challenge AD Calculation, Use of AFA

Commerce made errors in its calculations, choice of data, and use of adverse facts available during the eighth administrative review of the antidumping duty order on crystalline silicon photovoltaic cells from China, according to four separate motions for judgment filed at the Court of International Trade. The case combined several complaints all challenging aspects of Commerce’s final determination (see 2208300012) (Jinko Solar Import and Export Co. v. U.S., CIT # 22-00219).

Risen, one of the mandatory respondents in the administrative review, argued that Commerce erred in its application of adverse facts available to Risen's unreported factors of production data. Commerce cannot establish that it "failed to cooperate" as required for the use of AFA because Risen requested production information from unaffiliated cell and module suppliers and provided evidence of its efforts on the record. Risen said it "used its maximum market leverage" to secure cooperation and, though it failed, cannot be labeled as an uncooperative respondent.

Intervenor BYD (Shangluo) Industrial Co., Ltd. agreed with Risen in its own motion for judgment, arguing that Risen made multiple efforts to seek this information from the suppliers. In addition, BYD argued that Commerce changed its methodology in calculating a partial AFA rate by calculating average ratios using the highest consumption quantities for all solar module, cell and packing factors.

Another mandatory respondent, Jinko, argued that Commerce unlawfully valued anti-reflective coating on glass as surrogate data as well as input factors electricity and freight costs. The "linchpin" of Commerce’s valuation decision was that the anti-reflective coating on Jinko’s glass differed from the toughened safety glass excluded from Harmonized Tariff Schedule subheading 7007.19.80, Jinko said. Subheading 7007.1980 "expressly excludes tempered glass coated with an absorbent or AR layer." Because that subheading does not cover Jinko’s layered glass, it couldn't satisfy Commerce’s "paramount" criteria of specificity and should not have been selected for surrogate valuation.

Trina Solar, which was not chosen as a respondent, argued that the China-wide rate did not accurately reflect its own AD rate. The Trina companies were granted separate rates by Commerce "in all administrative reviews in which they participated" and have maintained separate rates since participating in the original investigation, Trina said. The China-wide rate of 238.95% is "an incalculable order of magnitude greater" than the rates assigned to separate rate respondents in this administrative review. "The only possible rationale for Commerce to apply the China-wide rate is to punish Trina and to maximize deterrence to future separate rate applicants from not requesting extensions of time to respond to supplemental questionnaires," Trina said.