Solar Cell Exporters Push Back on Remand Results Sustaining Use of Romanian Solar Glass Surrogate

The petitioner, American Alliance for Solar Manufacturing, again supported the decision.

The case has been sent back twice already. In her most recent decision, Court of International Trade Judge Claire Kelly said Commerce hadn’t adequately explained why it couldn’t have used Malaysian HTS subheading 7007.19.90 to value the glass instead (see 2506090057). Commerce had argued that the Malaysian data was reported in square meters while the Chinese respondents reported their consumption in kilograms, but she said that the department needed to explain why it couldn’t convert the respondents’ data.

In its draft remand results, Commerce switched positions and used the Malaysian data, but it reverted back in its final results after the petitioners argued that the conversion would be “inherently distortive.”

But the trade court has already rejected the argument that converting the data would distort it, the exporters said in their three briefs.

Further, said Risen Energy and exporter Byd (Shangluo) Industrial, Commerce apparently attempted to convert on per-CONNUM basis, as “the Department claimed in the final remand that it was complex” to do so. However, it wasn’t clear if Commerce actually took that step, the exporters said, and it didn’t extend any opportunities to the parties to the review to assist.

Then, in the final remand, Commerce “rejected its own average conversion ratio, finding that relying on it rather than a CONNUM-specific conversion created a distortion and was not reliable,” Risen said. As a result, “the Department gave up the effort to follow the Court’s instructions and rejected relying on a conversion at all,” it said.

But that wouldn’t be complex, Risen argued, as it itself reported its purchases per-piece. Further, using an average conversion ratio wouldn’t be distortive, either, as the department “regularly” does so and the margin wouldn’t be impacted, it said.

Exporter Jinko Solar also argued that Commerce still hasn’t addressed concerns about the suitability of the Romanian subheading, even though it was directed to do so by the court.

The department had previously argued that all products falling under that subheading were “light limiting,” Jinko said, and under the principle of noscitur a sociis -- which says the meaning of an unclear or ambiguous word should be determined by considering the words with which it is associated in the context -- that all “glass with an absorbent layer” was light limiting. That was why the subheading was applicable to solar glass, the department claimed.

But Jinko said that Commerce’s remand results made a “key concession” that certain exemplars described by the chosen Romanian HTS subheading fell under the subheading due to their functionality “rather than the light limiting characteristics of the glass.”

“Reliance on noscitur a sociis requires that all exemplars share the same critical characteristic,” Jinko said. “When only a subset of exemplars share a characteristic, this principle does not apply.”

American Alliance for Solar Manufacturing supported Commerce’s remand results. The department addressed both of the court’s issues, it said.

It said conversion of respondents’ solar glass import data to square meters would be “inherently problematic and highly distortive” because each piece of solar glass purchased by the respondents could be of a different thickness. As a result, two pieces with the same reported measurements in square meters could have different actual values.

“Thus, there can be no single universal conversion to accurately represent the value of a square meter of solar glass,” it said.

And the respondents' solar glass did fit into the Romanian HTS subheading as “glass that is enameled, colored throughout the mass, opacified, flashed or that has a reflecting layer,” it said. That would be covered by the subheading regardless of the exemplars, it argued.