Solar Cell Exporter Blasts Commerce's 'Internally Contradictory' AD/CVD Circ. Finding

The Commerce Department cannot make the contradictory finding that the process of assembly or completion of solar cells in Cambodia was insignificant, while simultaneously saying these processes, involving the formation of a positive-negative junction on a polysilicon wafer, give the solar cells their essential character, exporter BYD HK Co. said in a Nov. 16 complaint at the Court of International Trade (BYD (H.K.) Co. v. U.S., CIT # 23-00221).

Railing against Commerce's affirmative finding that BYD HK circumvented the antidumping and countervailing duty orders on solar cells from China, the exporter said Commerce's finding contradicts the agency's consistent prior holdings regarding the production of solar cells. Commerce has routinely found the formation of the positive-negative junction on a polyscilicon wafer is the "critical process" that gives the cell its essential character, adding the cell's country of origin is where this process takes place.

BYD HK said it offered evidence, confirmed at verification, that this process takes place in Cambodia, not China, by three toll processors with which the exporter works. As a result, the agency's finding that this process was also "minor and insignificant" is "internally contradictory, unsupported by substantial evidence, and otherwise not in accordance with law," BYD HK said.

The seven-count complaint laid a host of other charges against Commerce, including the allegation that the agency failed to consider the tollers' activities in making its findings on the levels of investment and of research and development in Cambodia, as well as the extent of production facilities in Cambodia. The statute requires these factors be considered in any circumvention inquiries. In the present proceeding, the agency looked to only BYD HK's level of investment, R&D and production facilities in Cambodia, finding them all wanting.

In response, BYD HK said this conclusion failed to account for the tollers' levels of investment, R&D, and production facilities. "In doing so, Commerce’s Final Determination unreasonably and unlawfully ignored entirely material evidence on the record addressing these two statutory prongs," the complaint said.

Other claims from the exporter say Commerce illegally used surrogate values to calculate the value added in Cambodia, analyzed investment data on an absolute basis and expanded the scope of the AD/CVD orders to "disregard its and other government agencies' consistent and established findings that the formation of the P/N junction is the critical step in the manufacture of solar cells." The complaint also said Commerce failed to show an affirmative circumvention finding is "appropriate" within the meaning of the statute "causing its analysis to be incomplete."