Solar Panel Exporter Says Commerce Misunderstands CIT Precedent on Use of AFA in Spat on China's EBCP

The Commerce Department's use of adverse facts available on countervailing duty respondent Risen Energy Co. for the Chinese government's failure to cooperate regarding the Export Buyer's Credit Program "fails to properly understand the Court precedent on this matter," Risen argued. Submitting a reply brief on July 26 at the Court of International Trade, the exporter said that while the U.S. "may be correct" that using AFA on a cooperative respondent due to the Chinese government's failure to cooperate may be legal, the court has cautioned Commerce "to mitigate the impact on the cooperating party" (Risen Energy Co. v. U.S. CIT # 22-00231).

For instance, in Changzhou Trina Solar Energy Co. v. U.S., the court said that Commerce "should seek to avoid such impact if relevant information exists elsewhere on the record." In this opinion, the trade court overturned the use of AFA on the EBCP and told Commerce to explain what information was actually missing from the record and reasonably show that this data is actually unverifiable.

The EBCP is a program whereby China's Export-Import Bank pays U.S. customers to buy Chinese goods. While it was alleged in the present case on the 2019 review of the CVD order on solar cells from China that Risen benefited from this program, there was no proof of the exporter benefiting from the program. Commerce, as it has done many times before, hit Risen with AFA over the Chinese government's failure to provide two pieces of information on the program. The respondent filed suit at CIT to contest the move, which has been both upheld and remanded by the trade court.

In its brief, Risen said that the use of AFA for the EBCP in this review "misunderstands" that Commerce never requested information from Risen's U.S. customers about the program and that the exporter did provide certifications of non-use for most of its customers. The U.S. said Risen failed to fill the gap left by the Chinese government, but the agency's initial questionnaire does not ask that a respondent wishing to show non-use must submit certifications from its customers, the brief said. The questionnaire only requests that Risen give a list of its customers to the Chinese government, the role Risen played in helping the customers get credits and how the exporter confirmed its customers didn't use the program.

Commerce's position that Risen "was obligated to provide information that it was never requested to provide ... runs afoul of the AFA statute," the brief said. While the U.S. says Risen should have known it was required to submit certifications from all its customers, the exporter said "this fails to understand how new the Department's developing approach to this program is." The record in this review has no evidence Risen benefited from the program, and instead of "confronting the information" from Risen or its customers, Commerce "unreasonbly determined on its own that the Customers would not provide this information and thus Risen could not cure the [Government of China (GOC)] deficiency," the brief said.