DOJ Defends Commerce Processes in Solar Cell Investigation

The Commerce Department lawfully selected surrogate values, calculated rates, applied adverse facts, and correctly decided to deny a separate rate to Trina during its eighth administrative review of the antidumping duty order on crystalline silicon photovoltaic cells from China, DOJ told the Court of International Trade in a Sept. 18 reply (Jinko Solar Import and Export Co. v. U.S., CIT # 22-00219).

DOJ said that Commerce lawfully selected Romanian data instead of Malaysian data to value the respondents’ solar glass because the department reasonably found that the Romanian data was the best information available on the record. The Malaysian data lacked thickness information and was measured in square meters instead of kilograms and was thus unreliable. The plaintiffs "merely disagree with Commerce’s weighing of the record, which is not a valid basis to overturn Commerce’s determination," DOJ said. Commerce also correctly valued Risen’s backsheet and ethyl vinyl acetate inputs using Malaysian data because it reasonably determined that Risen’s inputs met the American Society for Testing and Materials definition of polyethylene plastic “sheet” as opposed to “film," DOJ said in its reply.

In addition, Commerce correctly valued ocean freight expenses using both Maersk and Descartes data because it reasonably found that the data was similar to the ocean freight costs provided by the respondents and that, when taken together, they best met Commerce’s criteria for selecting surrogate values. Similarly, the department also reasonably determined that Freightos provided the best available air transport data because it met several of Commerce’s surrogate value criteria while being specific to the inputs valued. Parts of the proposed alternative data from the International Air Transport Association were not publicly available and were reasonably excluded.

Commerce also correctly valued electricity using the Malaysian Investment Development Authority’s data and correctly excluded rates from Malaysia’s Sabah and Sarawak regions and for off-peak hours, DOJ said. Because the Sabah and Sarawak regions are remote and lack solar cell manufacturing, Commerce reasonably excluded them as unrepresentative. Although Commerce prefers surrogate values that represent "a broad-market average," DOJ said, "the overriding purpose is to calculate dumping margins as accurately as possible."

The surrogate financial ratios calculated using the financial statements of JA Solar Malaysia and excluding those from Flextronics also were reasonable, DOJ said, because the Flextronics statements were not as specific to solar cell and module production.

On the adverse facts issue, DOJ said that Commerce lawfully applied partial AFA in calculating Risen’s factor of production consumption rates because Risen failed to cooperate to the best of its ability. Though Risen argued that it could not compel its suppliers to cooperate with Commerce, DOJ said that the company failed to cooperate by continuing to work with suppliers that it knew were unlikely to provide information and by failing to make efforts other than those that had previously failed to produce results.

Finally, DOJ said that Commerce correctly declined to assign the collapsed Trina entity a separate rate because it reasonably found that Trina’s untimely extension of time request for the questionnaire response did not meet the “extraordinary circumstances” standard.

The reply came in response to four separate motions for judgment filed in March by Risen and Jinko, two mandatory respondents, and intervenors Trina Solar and BYD (see 2303270050).