Intervenor in Vietnamese Solar Panels Case Says Commerce Illegally Applied AFA Countrywide

In litigation brought by a Vietnamese solar panel exporter, an importer said July 9 that the Commerce Department couldn’t find that all of a country’s exporters had circumvented antidumping and countervailing duty orders based on finding that one mandatory respondent did (Trina Solar (Vietnam) Science & Technology Co. v. U.S., CIT # 23-00228).

Importer Florida Power and Light's brief supported the exporter Trina Solar’s June 25 motion for judgment. In its motion, Trina argued that the Commerce Department had illegally used its reliance on adverse facts available for one mandatory respondent in an EAPA investigation to reach a countrywide evasion finding (see 2406260032). It also described processing of crystalline silicon photovoltaic cells in Vietnam as “major” and “complex,” using more than “100 different inputs.”

FPL added that Trina’s situation was not the one the circumvention statute had been intended to address; the statute is meant to prevent “screwdriver assembly operations,” whereas Commerce wrongly was using it to reach a determination “on a deterrence-based rationale.”

“No reasonable mind could conclude that the process of assembly or completion of CSPV cells and modules in Vietnam was minor,” it said.

It said several of the department’s factual determinations, noted in its decision memo, actually demonstrated the complexity of solar panel processing. For example, Commerce found that solar cell and solar module facilities “require one to three years to build.” The department also said that the production steps in Vietnamese facilities require “precise and sophisticated equipment at multiple stages compared to producing ingots and wafers in China” while “it requires fewer steps to produce ingots and wafers in China, than to produce solar cells and solar modules in the inquiry country,” FPL pointed out.

These factors fall in line with those Commerce must consider by law -- level of investment, level of research and development, extent of production facilities, value added and nature of the production process -- and weigh against a finding that production in Vietnam was “minor or insignificant,” it said. As a result, Commerce had acted arbitrarily and abused its discretion, the importer claimed.

It also argued, just like Trina had, that the department had erred in reaching a countrywide affirmative circumvention determination due to the investigation’s result for one mandatory respondent out of two. Respondent Vina Solar Technology Company Ltd. “and a handful of companies” that hadn’t responded to questionnaires were found to be circumventing the orders on solar panels from China, but they weren’t representative of all of Vietnam's exporters, it said.

In essence, the department was illegally applying AFA to all of the exporters, even those that had been fully cooperative, FPL said. Because “Commerce cannot point to any specific facts that it found with respect to the production process undertaken by Vina or the other non-cooperative companies to suggest that other companies are likely circumventing the orders,” the department must only be basing its determination on deterrence -- the rationale for applying AFA, it said.