Chinese Electricity Provision Was Not Specific Thus Not Countervailable, CVD Respondent Says

The Commerce Department's position that the provision of electricity for less than adequate remuneration is specific to solar cell producers is not backed by substantial evidence, countervailing duty review respondent Risen Energy Co. argued in a Dec. 1 reply brief at the Court of International Trade. The arguments that the government relies on misinterpret the evidence cited by Commerce and in fact affirm the minor role of China's National Development and Reform Commission -- the entity China used to establish the specificity of the alleged benefits, Risen argued (Risen Energy Co., Ltd., et al. v. United States, CIT Consol. #20-03912).

The case concerns the 2017 administrative review of the countervailing duty order on crystalline silicon photovoltaic cells, whether or not assembled into modules, from China. In the review, Commerce established that the respondents were receiving a countervailable electricity subsidy via the NDRC, hitting the respondents with adverse facts available in the process. To prove this, the government relied on two key pieces of evidence: the Chinese government's questionnaire responses and the Guangdong Price Catalog.

The former states that “[t]he provinces (autonomous regions and municipalities) price department develop and issue specific adjustment plan of electricity price and sales price in accordance with the average price adjustment standards of Annex 1, and reported to our Commission for the record.” The U.S. used this to assert that it needed Annex 1 to determine the role the Chinese government has in developing electricity prices. "However, this completely overlooks the critical part of what this article is saying," Risen responded. "The article clearly says the provincial government only reports the electricity sales price to NDRC for 'record,' not for 'approval.' The NDRC is not setting the prices."

In the U.S.'s second piece of evidence, the Guangdong Price Catalog says that it was "reviewed and approved" by the provincial government and the NDRC. However, "The United States’ reading of this statement (a statement made and signed by the provincial government) is overly narrow and overlooks the specific government notices that clarify the official role of the NDRC in electricity pricing," the brief said. "This statement does not necessarily entail that the NDRC both reviewed and approved, but that the provincial government and NDRC each played a role in reviewing and approving. And, as seen in the article above and other official articles, the role of the NDRC is only in reviewing."

Risen said its further explanation of these two pieces of evidence, coupled with the record as a whole, proves that the provincial government was in charge of setting electricity prices during the period of review and not the NDRC. "The Department’s claim that the NDRC continues to play a seminal role in setting electricity prices is totally unsubstantiated and the GOC did not withhold necessary information on the NDRC’s role in electricity price setting," Risen said. "As such, the Department cannot rely on AFA ... . As the Department’s specificity finding is not supported by the record, this program is not countervailable."