CIT Backs Commerce's Electricity Specificity Finding in Sustaining Remand in Solar Cell CVD Case

The Commerce Department sufficiently backed its position that electricity subsidies in China were regionally specific, the Court of International Trade said in a May 19 opinion in a countervailing duty review challenge. Addressing the four other previously remanded elements of the review, Judge Jane Restani ultimately upheld Commerce's remand.

Elsewhere in the opinion, Restani upheld Commerce's new benchmark for aluminum extrusions, the position that the Chinese solar-grade polysilicon market is distorted, Commerce's decision to grant an entered value adjustment (EVA) to respondent Canadian Solar and the agency's decision to find that the respondents' U.S. customers did not use the Export Buyer's Credit Program (EBCP).

The case concerns Commerce's final results in the fifth administrative review of the countervailing duty order on crystalline silicon photovoltaic cells from China. In September, the trade court sustained parts and remanded parts of the final results (see 2109030045). Restani sustained Commerce's specificity finding for the aluminum extrusions sold for less than adequate remuneration (LTAR) program, the agency's chosen benchmark for the land value sold for LTAR program, and respondent Canadian Solar's lack of creditworthiness in 2016. The judge remanded five elements of the review.

One such issue was the agency's specificity finding for the electricity for LTAR program that Commerce established using adverse facts available. Canadian Solar argued AFA couldn't be used because there was no gap in the record and Commerce failed to identify a specific geographic region that received the subsidized electricity prices. The Chinese government claimed in the review that provincial pricing authorities and not the National Development and Reform Commission set electricity prices, though Commerce found the Chinese government failed to submit information backing this claim.

As such, the agency had the proper grounds to use AFA to make a specificity finding -- something the court has repeatedly upheld, Restani said. As for Canadian Solar's geographic specificity argument, the judge cited the U.S. Court of Appeals for the Federal Circuit when finding that "Commerce may find a countervailable regionally specific subsidy 'where documents support the inference that the central government of China was involved in provincial electricity pricing that results in regional price variability.'" Since Commerce reasonably used AFA here to find that the NDRC was involved, the specificity finding is upheld, the judge said.

Turning to the benchmark for aluminum extrusions, Restani discussed how the agency originally averaged IHS Technology and U.N. Comtrade data sets to set the benchmark. In the last opinion, the court called the Comtrade data into question, so on remand Commerce used only the IHS data. No party opposed this, so it was sustained.

As for the polysilicon benchmark, the court previously remanded the issue so that Commerce could further explain how China's participation in the solar-grade polysilicon industry led to the price distortion of solar-grade polysilicon. Restani was satisfied with the agency's explanation on remand, which included evidence from China's largest solar-grade polysilicon producer's annual report showing that "polysilicon pricing remained stable in 2016 due to an 'Import Duty Levy' on foreign imports, 'especially those from the United States.'"

In the review, Commerce originally denied Canadian Solar's request for an EVA on sales made through an affiliated company, declaring the respondent didn't submit sufficient information to meet the adjustment's requirements. The court remanded this, and in response, the EVA was granted. No parties opposed the switch. Lastly, Commerce, under protest, dropped its position that it couldn't verify whether the respondents used China's EBCP -- a position repeatedly struck down by the court but one that Commerce refuses to appeal.

(Canadian Solar v. U.S., Slip Op. 22-49, CIT Consol. #19-00178, dated 05/19/22, Judge Jane Restani. Attorneys: Bryan Cenko of Mowry & Grimson for plaintiffs, led by Canadian Solar; Robert Gosselink of Trade Pacific for consolidated plaintiffs, led by Changzhou Trina Solar Energy; Jordan Kahn of Grunfeld Desiderio for intervenor plaintiffs, led by Jinko Solar Import & Export Co.; Richard Weiner of Sidley Austin for intervenor plaintiffs, led by Yingli Green Energy Holding Co.; Craig Lewis of Hogan Lovells for intervenor plaintiff Shanghai BYD Co.; Justin Miller for defendant U.S. government)