Commerce Can Find Country-Wide Circumvention Based on Mandatory Respondent's AFA, US Says
The Commerce Department was right to make a Vietnam-wide determination that exporters were circumventing antidumping and countervailing duty orders on solar panels from China on the basis of an affirmative finding for 10 respondents, the U.S. argued Oct. 21 (Trina Solar (Vietnam) Science & Technology Co. v. U.S., CIT # 23-00228).
Exporter Trina Solar brought its case to court arguing that Commerce reached an unrepresentative country-wide circumvention determination after applying adverse facts available to a mandatory respondent and nine other nonselected respondents (see 2406260032).
But the department’s determination was neither illegal nor unrepresentative, the government said in its Oct. 21 brief.
It explained Commerce applied AFA to mandatory respondent Vina after it refused verification following a preliminary, non-AFA based circumvention determination. The other nine respondents hit with an adverse inference, it said, hadn’t answered initial quantity and value surveys.
These 10 total respondents make up a “significant volume of Vietnamese solar cell exports,” it said.
The other mandatory respondent, Boviet, was not held to have circumvented the orders, it said. As a result, it said, Commerce established a process to allow Boviet to be excluded from the country-wide finding.
It would place a serious “administrative burden” on Commerce if the department was forced to reach circumvention determinations on a per-company basis when the country and merchandise were the same, the government argued. Further, based on petitioner Auxin’s “unrebutted” documentation, multiple Vietnamese solar cell exporters “had the facilities necessary to carry out circumventing behavior in Vietnam,” it said.
Trina and its supporters pointed to the 2021 case Shelter Forest International Acquisition v. U.S., but this case deals with a different situation, it said -- Shelter Forest’s issue “was not Commerce’s country-wide determination, but the resultant China-wide rate applied to the company.”
Shelter Forest’s rule has also been called into question by a recent U.S. Court of Appeals for the Federal Circuit decision, PrimeSource Bldg. Prod. Inc. v. U.S., in which CAFC sustained an all-others AFA antidumping duty rate after both mandatory respondents to a review were hit with an adverse inference even though the nonselected respondents had cooperated, the government said.
In PrimeSource, CAFC held that the “mere fact that all mandatory respondents received an AFA rate cannot, in and of itself, undermine the presumption of representativeness,” it said. The appellate court also appreciated the fact that the mandatory respondents in PrimeSource also sold a significant volume of their country’s exported merchandise, it said.