Commerce Requests Remand in CVD Case Over 'Evolving Practice' Involving China's EBCP

The Commerce Department requested a voluntary remand in a March 28 filing at the Court of International Trade so it can reconsider its use of adverse facts available relating to China's Export Buyer's Credit Program. The remand is appropriate given Commerce's "evolving practice" on the topic, the brief said. In a separate countervailing duty investigation, Commerce found that it was able to verify that a respondent's U.S. customers did not use the program without certain information requested from the Chinese government (Risen Energy Co. v. United States, CIT Consol. #20-03912).

The case concerns the 2017 administrative review of the CVD order on crystalline silicon photovoltaic cells from China. In the review, as it has done many times, Commerce hit the respondents with AFA over the Chinese government's failure to provide information about the EBCP -- a position the trade court has repeatedly struck down as unsustainable. The plaintiffs, led by Risen Energy Co., contested Commerce's use of AFA in considering the EBCP.

However, in a separate CVD investigation on mobile access equipment from China, Commerce was able to verify non-use of the program without this information (see 2110140053). In its remand motion, Commerce cited this investigation, along with many CIT decisions striking down the use of AFA for the EBCP, as evidence of the agency's "evolving practice" on the issue. As a result of these past court decisions, Commerce said it has issued additional questionnaires to each mandatory respondent to find out if it can verify non-use of the program in other ways.

The language hints that this may be a step Commerce takes if a remand is granted. "Commerce, as the decisionmaker, will decide on remand what actions to take, but remand in this case is appropriate because 'the record may well be enlarged' and 'even if it is not, new findings and explanations by the Commission can be expected' with respect to its evolving practices involving the Export Buyer’s Credit Program," the motion said.