Solar Cell Exporter Says Commerce Can't Use 1 AFA Finding to Establish Countrywide Circumvention

The Commerce Department can't extend an antidumping and countervailing duty circumvention finding based on adverse facts available for one mandatory respondent on a "country-wide basis," exporter Trina Solar Co. argued June 25. Filing a motion for judgment at the Court of International Trade, Trina said Commerce made "no company-specific findings" on whether all the cooperative companies were circumventing the AD/CVD orders on Chinese solar cells and, as a matter of law, can't impose the circumvention finding on those companies (Trina Solar (Vietnam) Science & Technology Co. v. U.S., CIT # 23-00228).

Trina also claimed the circumvention finding wasn't backed by substantial evidence because the process of producing and assembling solar cells and modules isn't "minor or insignificant" and is in fact a "major, complex manufacturing process."

In 2022, Commerce opened a proceeding to look into whether solar cells from Cambodia, Malaysia, Thailand or Vietnam are circumventing the AD/CVD orders on solar cells and modules from China. For the Vietnam segment of the inquiries, the agency picked two mandatory respondents: Boviet Solar Technology Co. and Vina Solar Technology Co.

As part of the analysis, Commerce looked at whether the assembly process in Vietnam was "minor or significant," considering five statutory factors for the analysis. The agency ultimately said Boviet didn't circumvent the orders, but Vina did, resorting to AFA for the company due to its failure to cooperate during on-site verification. Commerce used the AFA decision on one of the respondents to cover all the cooperating respondents that submitted quantity and value questionnaire responses.

Trina filed suit to contest the finding, arguing the entire circumvention inquiry turns on whether the production or assembly process in the third country is minor or insignificant. The company said the very nature of the solar cell production process, which Commerce itself found to be complex, bars a circumvention finding in this case.

In making its decision, the agency likened the production of solar cells to the manufacture of ingots and wafers. Trina argued this comparison proves that the solar production process is complex. Commerce noted that solar cells use "over 100 different inputs," while wafer production only uses a handful. This finding goes "to the heart of Commerce's inquiry into whether the process of assembly or completion in Vietnam is ‘minor or insignificant,'" the brief said.

Commerce offered only a "conclusory statement" that its AFA finding renders the "minor and insignificant" analysis moot, Trina noted, arguing this conclusion is both "legally and factually incorrect." The agency didn't apply AFA to any part of its analysis, particularly its findings regarding the "nature of the production process." Commerce can't "hide behind the company-specific AFA applied elsewhere in its decision as a means to ignore arguments raised by interested parties," the brief said.

Trina attacked the circumvention finding from a second angle, claiming that the agency can't use the one AFA finding to establish countrywide circumvention of the orders. The AFA decision can't be extended to the eight companies that submitted timely quantity and volume information, Trina argued.

During the proceeding, Commerce broadly said that four of the five statutory factors weighed in favor of circumvention, but "Commerce did not actually address the statutory factors necessary for reaching the applicable determination." Instead, it said they were moot. This can't stand as the basis for hitting cooperating companies with a circumvention finding, the company argued.