CIT Upholds CVD Rate Over Commerce's Failure to Verify EBCP Non-Use Based on US Buyer's Lack of Info

The Court of International Trade in a Jan. 10 order upheld the Commerce Department's remand results in a case involving the 2018 administrative review of the countervailing duty order on solar cells from China. On remand, Commerce said that because one of respondent Wuxi Tianran Photovoltaic's U.S. customers did not participate in the review's virtual verification, the agency didn't have enough information to verify Wuxi Tianran did not benefit from China's Export Buyer's Credit Program. The respondent conceded that Commerce complied with the trade court's remand orders. Given the lack of any challenge, Judge Jane Restani upheld the case.

In prior cases on the EBCP, the agency has used adverse facts available over the Chinese government's failure to provide information on how the program works -- a position that was routinely struck down but only recently sustained by the trade court (see 2212160035). Commerce initially did the same in the review at issue in this case, though the agency requested a voluntary remand at CIT over the use of AFA in this way. On remand, Commerce reexamed Wuxi Tianran's alleged use of the EBCP by issuing a questionnaire to the respondent and to its U.S. customers.

One customer refused to participate in this virtual verification of the alleged EBCP use, leaving the agency to say it was unable to verify non-use of the program. "Commerce requires information regarding all of a respondent’s U.S. importers/customers in order to ensure that none of those importers/customers have received benefits under the EBCP," the agency said in its remand results. "Commerce cannot attempt to verify non-usage of the program by reviewing only a portion of Wuxi Tianran’s importers/customers because doing so would provide Wuxi Tianran an opportunity to evade Commerce’s scrutiny by providing responses only from importers/customers that have not used the EBCP."

The agency clarified it was not applying AFA based on the respondent's or its customers' failure to cooperate, but rather it found that the partial information on the record was not enough to establish that none of the company's customers used the EBCP "in light of the non-cooperation of" the Chinese government. The result was an unchanged CVD rate for Wuxi Tianran.

(Wuxi Tianran Photovoltaic v. U.S. , Slip Op. 23-2, CIT Consol. # 21-00538, dated 01/10/23, Judge Jane Restani. Attorneys: Robert Gosselink of Trade Pacific for plaintiff Wuxi Tianran; Jeffrey Grimson of Mowry & Grimson for plaintiff-intervenor JA Solar Technology Yangzhou, Shanghai JA Solar Technology and JingAo Solar; Joshua Kurland for defendant U.S. government)