Chinese Solar Cell Importers, Exporters Say Commerce Failed to Follow Remand Order

After the Commerce Department made no changes to the results of a 2019-20 administrative review of the antidumping duty order on Chinese solar cells (see 2408300020) after a remand order (see 2405090045), importers and exporters said that the department had failed to follow the trade court’s instructions -- continuing to justify use of a second surrogate to value an input with the argument that it needed that input reported in something other than kilograms even though it itself ordered respondents to report that way (Jinko Solar Import and Export Co. v. United States, CIT # 22-00219).

In two replies to the remand results filed Oct. 30 with the Court of International Trade, importer Risen and exporters led by Jinko Solar Import and Export Co. both said Commerce should have used Malaysian surrogate values instead of Romanian ones in its valuation of reflective glass inputs.

The department used Malaysia as its primary surrogate, but it looked to Romanian Harmonized System heading 7007.19.80 for surrogate glass prices, saying that the Malaysian data was reported in the wrong unit and couldn’t be converted. Importers and exporters both took issue with the decision, and CIT, agreeing, remanded the review results so that Commerce could further explain it.

Both Jinko and Risen disagreed that the Malaysian data was unconvertible.

Risen said the department was appearing to criticize exporter Jinko for following Commerce’s own instructions. Jinko was ordered to provide its data in weight, not pieces -- the unit it uses in its books, it said. So, just as it had done in prior reviews, it reported its inputs in kilograms. It also provided its information in pieces and offered the department a conversion to square meters.

“All the record information is there,” Risen said.

It also noted that the department doesn’t normally look to units to determine the reliability of a country’s surrogate data, as it will use respondents’ conversion ratios if any transformations are needed. Plus, it said, the Malaysian data was actually more specific than the Romanian, as Malaysia’s included importation of glass for use in solar cells while Romania doesn’t have a solar cell manufacturing industry.

And it said that the partial adverse facts available rate the department calculated for Risen’s unreported factors of production due to uncooperative suppliers was still too high. Risen wasn’t at fault for the missing information, it said, noting that “in instances where it was possible to stop purchasing from certain uncooperative unaffiliated suppliers of cells and modules, Risen stopped purchasing from them.”

“The Department is already applying an adverse rate in its normal methodology,” it said. “The facts do not warrant a more adverse methodology given the suppliers are not incentivized to cooperate and it is Risen, a cooperative party, being penalized.”

Jinko also pushed back on the department’s refusal to reconsider its valuation of the exporter’s air freight in its own brief. It said Commerce ignored the fact that Jinko provided “fully contemporaneous and route-specific” International Air Transportation Association data, “regurgitating” the claim that the only public IATA information available was reported as monthly average, making the IATA data inadequate.

IATA actually “provides significantly greater detail than Freightos data,” the information Commerce chose to use instead, Jinko said.