ITC Erred in Finding No Injury From Thai, Cambodian Solar Cells, Petitioner Says

The ITC ultimately found that solar cell imports from Malaysia and Vietnam materially injured the U.S. industry and that "the solar industry was threatened with material injury by" imports from Cambodia and Thailand. The commission said imports from Cambodia and Thailand were "negligible for purposes of present material injury" but were "likely to imminently exceed the applicable negligilbiity thresholds for purposes of determining threat of mateiral injury" in the antidumping duty and countervailing duty investigations.

Central to the dispute and complicating the injury proceeding was former President Joe Biden's decision to pause AD/CVD on solar cells from Thailand, Cambodia, Malaysia and Vietnam. During the duty holiday, the Commerce Department said it wouldn't require cash deposits under an AD/CVD anti-circumvention proceeding covering the four Southeast Asian nations, establishing a certification mechanism for subject goods.

Commerce set up three possible certifications. One included "importer and exporter certifications that meet the definition of 'Applicable Entries,'" dubbed "Appendix IV Certifications." Another included "importer and exporter certifications for the exporters with a negative circumvention determinations 'in combination with certain wafer exporters.'" The third included "importer and exporter certifications based on the inputs used to manufacture the cells and modules (the 'Appendix VI' Certification)."

During the injury proceeding, the alliance argued that the ITC should base its negligibility finding on official import statistics, since there were "significant omissions and discrepancies in the U.S. importer questionnaire responses." Should the commission rely on questionnaire data, it should use the data "reported as originally instructed by the Commission, i.e., prior to revisions to account for merchandise imported under an Appendix IV Certification as non-subject merchandise."

The petitioner told the ITC that "certain Appendix IV imports were subject to the" current AD/CVD investigations on Southeast Asian solar cells, "and that certain importers claiming that their reported Appendix IV imports were otherwise had failed to prove such imports were subject to the antidumping and countervailing duty orders" on Chinese goods and thus not subject to the Southeast Asian AD/CVD orders.

The alliance argued that to treat the Appendix IV imports as subject to the Chinese AD/CVD orders "would be contrary to the facts surrounding the Presidential Proclamation, the Moratorium, and Commerce’s certification process prescribed in its final circumvention determination, and the overall purpose of the statute."

Ultimately, the ITC found that goods from Cambodia and Thailand were negligible but were likely to "imminently exceed the applicable negligibility thresholds." In so finding, the ITC used the "alternate importer questionnaire data it collected excluding all reported Appendix IV imports as non-subject, and supplemented by data from proprietary, Census-edited U.S. Customs and Border Protection data."

In its two-count complaint, the petitioner challenged the ITC's conclusions that solar cells from Cambodia and Thailand didn't exceed the negligibility threshold and that the U.S. industry wasn't materially injured by goods from these two countries