No AFA for China's EBCP Since CVD Respondent Verified Non-Use of the Program, Exporter Tells CIT

The Commerce Department cannot hit a countervailing duty respondent with adverse facts available relating to its alleged use of China's Export Buyer's Credit Program since there's no gap on the record over the respondent's EBCP usage, respondent Wuxi Tianran Photovoltaic Co. said in a March 9 brief at the Court of International Trade. Tianran's U.S. customers properly verified that they did not use the EBCP, the brief said (Wuxi Tianran Photovoltaic Co. v. United States, CIT Consol. #21-00538).

The case concerns the 2018 administrative review of the countervailing duty order on crystaline silicon photovoltaic cells from China in which Tianran served as a mandatory respondent. Commerce said that since the Chinese government did not provide the agency with information about the EBCP program, AFA was warranted.

In its brief, Tianran acknowledged that Commerce is not barred from using AFA if a foreign government fails to cooperate. "Nonetheless, Commerce has an obligation when drawing an adverse inference against a respondent party based on lack of cooperation by a foreign government to avoid collaterally impacting a respondent to the extent practicable by examining the record for information that may replace the missing information, including as to the benefit to a particular respondent under a given subsidy program," the brief said. In this vein, the trade court has previously ruled that there's no gap in the record over EBCP usage since evidence of non-use exists in the form of customer certifications, Tianran argued.

"Commerce lacks authority to apply AFA unless its related finding that customer certifications of non-use are unverifiable is supported by substantial evidence," the brief said. The respondent went on to say that Commerce's position that the certificates of non-use are not verifiable is not supported by record evidence.

"Particularly given that Tianran sold to only two U.S. customers, and the customers' descriptions of their outstanding loans during the [period of review], Commerce cannot reasonably claim that verification is unfeasible or unduly burdensome where it failed to inquire further or attempt verification," the brief said. Tianran fully cooperated throughout the review, providing clear evidence of non-use, the respondent argued.