Risen Energy Asks Court to Stop 'Cyclical' Remand Process in EBCP Case

The Commerce Department acted contrary to law and remand instructions by the Court of International Trade when it continued to use adverse facts against Risen Energy for its alleged use of China's Export Buyer's Credit Program (EBCP), Risen argued in Aug. 11 remand comments. The exporter accused Commerce of using "delay tactics" by continuously refusing to verify the non-use of the EBCP by Risen's customers after multiple remands and the vast majority of Risen's customers complying with Commerce despite burdensome verifications (Risen Energy v. U.S., CIT # 20-03912).

Commerce again stuck by its use of AFA in its July remand results, saying that it was unable to verify non-use of the EBCP for all of Risen’s U.S. sales for the period of review despite only one former customer failing to verify non-use of the program (see 2307130040).

Risen asked the court to order Commerce either to find non-use of the EBCP as a whole or to assign a proportional rate based on the record, which would end the "cyclical" process of remands where the department is never convinced by EBCP non-use despite the evidence. Risen said that its customers have "already demonstrated substantial cooperation in providing highly confidential information on their loans and financials to the record." The company also said "everything on the record" has corroborated non-use of the EBCP, but Commerce's actions have shown no attempt to verify that non-use.

Risen told the court that by now its former customers haven't had business with the company for six years and have "no practical interests in the outcome," making cooperation less likely by the day. With each day, another customer may decide that the "extraordinary request" by Commerce is too much and give the department another "excuse" to apply AFA, Risen said.

The company has expended "substantial effort" to convince former customers to spend their time and open highly confidential records out of goodwill with Risen. Each remand cycle the process of convincing those customers to cooperate becomes "more and more difficult" for the company to "persuade the customers that this is still a serious effort by the Department to investigate, and not just harassment to dissuade their cooperation."

In its own comments, plaintiff-intervenor Shanghai BYD said the court should remand Commerce's reliance on AFA as Risen cooperated to "the maximum extent" and provided information consistent with a finding of non-use of the EBCP. Shanghai echoed Risen's argument that the alleged non-cooperation of a single customer does not support Commerce’s decision not to proceed with verification.