US Offering Misleading Explanation of Commerce's Findings, Solar Cell Exporter Says

Raising many of the same arguments seen in similar cases (see 2407010059 and 2407030064), a Thai solar panel exporter said Nov. 15 that the U.S. was “misstating” findings and contradicting itself in its own analysis when it found that solar panel importers were circumventing antidumping and countervailing duties on solar panels from China based on only one factor in the usual country-of-origin analysis (Trina Solar Science & Technology v. U.S., CIT # 23-00227).

Exporter Trina Solar Science & Technology also said in its reply to U.S. opposition to its motion for judgment that DOJ failed to respond to its arguments.

First, the U.S. incorrectly stated that the Commerce Department found Trina’s value of processing in Thailand “to be minor,” the exporter said.

“This is false,” it said. “As for Trina, Commerce determined that its value of processing was significant and did not represent a small portion of its total value of exports to the United States.”

Instead, the only factor that Commerce found weighed in favor of a finding that China was the solar cells’ country of origin was research and development levels in Thailand.

The government also “provides a misleading oversimplification of Commerce’s findings on the nature of the CSPV cell and module production processes” by saying that “Commerce described the general production process for solar modules in four steps,” Trina argued.

Actually, it said, Commerce never “asserted, or even indicated in any way,” that this was true; the solar cell manufacturing process is a lot more complicated. For example, it said, one of the four steps Commerce described actually involves 11 steps “involving different chemical treatments, heating processes, and the formation of the p/n junction.”

The exporter also said that the U.S. failed to respond to its arguments that a finding that the nature of the production process is “significant” in a particular location compels a country-of-origin finding for that location. It said that Commerce determined and “reconfirmed” during the investigations that “crystalline photovoltaic ('CSPV') cell and module manufacturing (including the formation of the p/n junction) is a major, complex manufacturing process that does not amount to minor or insignificant processing.”

It said the government needed to provide a rationale reaching a circumvention finding when substantial processing occurs in Thailand. Because it hadn’t, any subsequent arguments on the point should be waived.

“Commerce’s findings regarding the nature of processing should have ended the inquiries and Defendant’s failure to address this issue should render moot the remaining issues,” it said.