Petitioner Says Commerce Failed to Pick More Than 1 Respondent in Thai Solar Cell AD/CVD Cases
The Commerce Department failed to select more than one respondent in both the antidumping duty and countervailing duty investigations on solar cells from Thailand, the American Alliance for Solar Manufacturing Trade Committee argued last week in a pair of complaints. The alliance, which served as the petitioner for both investigations, said that Commerce failed to abide by U.S. Court of Appeals for the Federal Circuit precedent by not selecting more than one respondent where multiple companies are subject to the investigations (American Alliance for Solar Manufacturing Trade Committee v. United States, CIT #s 25-00165, -00167).
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In both the AD and CVD investigations, the agency selected Trina Solar Science & Technology (Thailand) as the sole mandatory respondent. For both cases, the petitioner said the decision not to pick a second mandatory respondent isn't supported by substantial evidence and not otherwise legal.
The alliance's case on the AD investigation included a host of additional claims against Commerce's conclusions, including the agency's conclusion related to a cost-based particular market situation.
In the investigation, the petitioner said a cost-based PMS existed in regard to the price of wafers and solar glass in Thailand. To investigate the claim, Commerce solicited world market prices for the inputs that were adjusted for sales terms like ocean freight, import duties and brokerage expenses. The agency ultimately found that a PMS existed for the two inputs, relying on data that didn't include Chinese production and sales of silicon wafers and solar glass in its calculation of the cost of production.
Where the alliance disagreed with the agency's approach concerns Commerce's alleged failure to "adjust the world market prices it used to account for movement and import expenses, including brokerage and handling, inland freight costs, ocean freight costs, insurance rates, and Thai import duty rates."
The petitioner also challenged Commerce's pick of constructed value profit ratio sources. In the investigation, the agency relied on information from three Thai companies supplied by Trina: Gintech (Thailand), M.L.T. Solar Energy Product and Talesun Technologies (Thailand). Before the agency, and now before CIT, the alliance said these statements weren't publicly available and "reflected countervailable subsidies received from the Government of Thailand."
The alliance also made four claims against Commerce's major input analysis. In the investigation, the agency adjusted Trina's cost of manufacturing in line with the "transactions disregarded rule and major input rule" to account for transactions made between Trina and its affiliates.
In doing so, the agency erred in three ways, the complaint said. First, the agency "inappropriately extrapolated a market value for tin ribbon based on" the respondent's "purchases of other inputs from the same affiliated party and from unaffiliated parties for purposes of its transactions disregarded analysis," the alliance said. Commerce should have relied on publicly available import data to value tin ribbon under Harmonized Tariff Schedule subheading 8311.30.99, the brief said. However, the agency said it wasn't required to use import data where an affiliated party gave the respondent multiple inputs and the respondent had no unaffiliated purchases.
In implementing the transactions disregarded and major input rules, Commerce also erred in calculating the adjustments to the cost of production. The agency preliminarily adjusted Trina's cost of production for major inputs by using the "reported transfer prices" at which Trina bought the inputs from its affiliated supplier. But since Trina reported its costs based on its affiliates' cost of production and not the transfer price for making adjustments to the cost of production, the alliance said Commerce should have treated Trina's affiliates' cost of production as the baseline number to be measured against the benchmark price and not the transfer price.
The petitioner said "Commerce failed to address the substance" of this claim.
Commerce also erred in "using a price from a non-market economy producer as a benchmark for market price," the brief said. Preliminarily, for aluminum frames, solar glass and junction boxes inputs, Commerce compared Trina's reported transfer price with the weight-averaged market price and adjusted the reported cost of manufacturing for the "differences between the transfer prices and weight-averaged market prices where the weight-averaged market price exceeded the transfer prices." The petitioner said "Commerce erred in looking to purchases from unaffiliated suppliers from non-market economies because such suppliers could not offer prices that fairly reflected market value," urging the agency to instead use Thai import data.
Lastly, the alliance said Commerce was wrong to use Malaysian and Mexican import wafer data to calculate the surrogate value for silicon wafers. The petitioner said the Malaysian import data the agency used was "unreliable," telling Commerce it instead should have used Global Trade Atlas import data for Mexico, since "GTA is Commerce's preferred import data source."