Commerce Stands by AFA Usage in EBCP Case

The Commerce Department stuck with its use of adverse facts available for countervailing duty respondent Risen Energy for its alleged use of China's Export Buyer's Credit Program, in spite of a second Court of International Trade remand requiring Commerce to reconsider the issue, among others. In the remand results, Commerce also reevaluated its use of Thai land prices when calculating benefits for respondents JA Solar and Risen and its benchmark data for ocean freight, dropping JA Solar's CVD rate from 7.75% to 7.68% and Risen's from 9.84% to 9.69% (Risen Energy v. U.S., CIT # 20-03912).

The case contests aspects of the 2017 administrative review of the countervailing duty order on crystalline silicon photovoltaic cells from China. In her April 11 remand order, Judge Jane Restani said that Commerce couldn't reasonably conclude that Risen failed to supply information that rendered the missing Chinese government data irrelevant. "Risen substantially complied with Commerce’s investigation efforts and provided near complete data for Commerce to review even after the long passage of time," she said.

Commerce justified its position by saying that because it was unable to verify non-use for all of Risen’s U.S. sales for the period of review, the department made no changes to Risen’s program rate for the EBCP. "Both respondents benefited from the EBCP as a result of the failure to cooperate by the Government of China, notwithstanding the submission of non-use declarations from the respondents’ customers," Commerce said. On remand, the department reopened the record and issued supplemental questionnaires to JA Solar and Risen. JA Solar responded for its only U.S. customer, which Commerce said it was able to verify. Risen provided the requested information for only six of its 12 customers, which left "evidentiary gaps" in the record, justifying the confined use of AFA, Commerce said.

Commerce said that it "continues to emphasize that it is not applying AFA to Risen as a result of the failure to cooperate by its customers/importers." Instead, that information could fill gaps in the record, stemming from the Chinese government's failure to cooperate. The Chinese government's cooperation "is necessary for a true understanding of the EBCP," and its failure is what warrants the use of AFA, Commerce said.

Commerce also explained that it continued to rely on Thai land prices from 2010 CBRE Report because "the appropriate methodology for calculating land benchmarks is to index land prices to the date of the purchase of the land-use rights rather than to the period of investigation. The land prices in the 2010 CBRE Report are not “stale” as the court said in its opinion and are suitable for purposes of establishing appropriate benchmarks, Commerce said.

Finally, Commerce recalculated the benchmark for ocean freight by removing prices sourced from the Descartes data. Commerce said that reevaluating the Descartes data in its entirety would not be feasible within the time constraints associated with the second remand order and so the department simply removed Descartes data from its analysis.