DOJ Asks CIT to Uphold Remand in Solar Cell EBCP Case

The Commerce Department's continued use of adverse facts against Risen Energy for its alleged use of China's Export Buyer's Credit Program (EBCP) and its benchmark calculations for land use and ocean freight were lawful and supported by substantial evidence on remand, DOJ said in a Sept. 29 response at the Court of International Trade (Risen Energy v. U.S., CIT # 20-03912).

DOJ said that Commerce complied with the Court’s order to attempt verification of Risen. The remand order directed Commerce to "attempt to verify Risen's submissions ...," which the department did, DOJ said. The attempts at verification were unfeasible given gaps in the record caused by non-compliance with verification of another of Risen's customers, DOJ said. Another six had already failed to respond to previous information requests. Those failures to comply left the department with a gap in the record and those that did comply amounted to a percentage of Risen's sales that was "insufficient to plug the gap created by the GOC’s non-cooperation," DOJ said.

In its August remand comments, Risen said it was unable to verify non-use of the EBCP with all of its former customers, some of whom haven't had business with the company for six years by now. Risen accused Commerce of "delay tactics" and engaging in a "cyclical" remand process (see 2308110024).

"Commerce is not holding Risen to the standard of 'perfection' the Court described in its remand decision," DOJ said. The fact that Risen has been cooperative with Commerce’s requests for information did not change the fact that the record lacks verified non-use information, DOJ said.

On the land benchmark issue, DOJ said that Commerce complied with the court's order to "provide a compelling reason for its continued use of the stale 2010 Coldwell Banker Richard Ellis report ..." by explaining that it chose the land benchmark data closest in time to the year that the land-use rights were purchased.

Finally, CIT should sustain Commerce’s determination not to use Descartes data to value ocean freight because no party contests the use and the department complied with the remand order.