Commerce Verifies Non-Use of China's EBCP for CVD Respondent on Remand at Trade Court

The Commerce Department in Oct. 7 remand results submitted to the Court of International Trade dropped its use of adverse facts available pertaining to the use of China's Export Buyer's Credit Program for one respondent in a countervailing duty review but not the other mandatory respondent. Commerce found that JA Solar Co., provided enough data to fill gaps left by the Chinese government's failure to provide certain information to prove that its U.S. customers did not benefit from the EBCP while Risen Energy Co. did not (Risen Energy Co. v. United States, CIT #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 so that it could verify that the respondents' U.S. customers did not use the program -- a position the trade court has repeatedly struck down but just recently upheld (see 2209140029). The plaintiffs, led by Risen, contested Commerce's use of AFA in considering the EBCP. This led to Commerce requesting a voluntary remand in the case to reconsider this position.

In the opinion, Judge Jane Restani granted the request, but with a twist. Declaring the situation "untenable and inequitable," the judge gave Commerce specific orders: if Commerce decides to drop the EBCP from the subsidy calculation but does not intend to appeal, it must explain why the court should not provide some form of equitable relief such as the immediate return of deposits or injunction on the continued inclusion of the program with no attempt at verification (see 2209140029).

On remand, Commerce made a stab at verification of non-use, largely disregarding the Chinese government's failure to provide information on how the EBCP works. For JA Solar, Commerce said it was able to corroborate the respondent's claims that its sole importer did not receive EBCP loans since the lone importer did not receive any loans or other forms of financing during the period of review (POR). "Thus, while Commerce continues to maintain that the GOC’s cooperation is necessary for a true understanding of the EBCP, the record on remand regarding usage of the EBCP does not contradict JA Solar’s claimed non-use of the program," the brief said.

Commerce, though, continued to hit Risen with AFA since it only provided the loan and financing information for six of its 12 U.S. customers. The respondent argued, though, that it is not affiliated with the customers who failed to comply, the relationships were several years in the past, and the responses the customers did give should be deemed representative of Risen's overall customer base, meaning Risen should be seen to have complied to the best of its ability. Despite this, the agency found that there are still gaps on the record given Risen's failure to get full information from all its importers.

"Commerce cannot verify non-usage of the program by only a portion of Risen’s importers/customers because doing so would provide Risen an opportunity to evade Commerce’s scrutiny by providing responses only from importers/customers that have not used the EBCP," the brief said. The agency would have to assume the six customers did not get EBCP money -- a prospect it does not find reasonable. "[W]hether Risen was cooperative in its attempts at procuring this information from its importers/customers is irrelevant; rather, what is relevant is that the information that it did provide was insufficient to establish that none of its customers used the EBCP during the POR," the brief said.

Elsewhere in the remand results, Commerce reconsidered its reliance on 2010 data from Thailand in finding a tier-three benchmark for the provision of land for less than adequate remuneration and recalculated it to rely on an average of Thai and Malaysian data. The agency also recalculated the benchmark for ocean freight involving the provision of raw materials for LTAR to adjust for an overreliance on data related to the U.S.-China trade route.