US Fights Solar Cells Exporter's Motion to Add Claim in CVD Case at Trade Court

The U.S. challenged exporter Risen Energy Co.'s motion to amend its complaint to add a challenge to the Commerce Department's decision to treat Article 26(2) Tax Exemption Program as countervailable. Filing a brief at the Court of International Trade on Nov. 9, the government said the motion to amend "is futile, and thus lacks merit" since Risen "failed to exhaust its administrative remedies with respect to this claim and none of the limited exceptions to the exhaustion requirement apply" (Risen Energy Co. v. United States, CIT # 23-00153).

Risen filed its case in September to challenge the 2020 review of the CVD order on solar cells from China. In particular, the exporter argued that it didn't use China's Export Buyer's Credit Program. The company then moved to amend its complaint, arguing that Commerce illegally countervailed a Chinese tax program.

The government's opposition to the motion notes that Risen "concedes that it did not contest Commerce's countervailability finding with respect" to the tax program administratively and that, as a result, the company shouldn't be allowed to challenge "Commerce's specificity finding for the first time on appeal." The exporter didn't offer any explanation for why it couldn't raise this issue administratively and, in fact, was "fully aware of the issue."

Risen also argued that the "pure question of law exception to the exhaustion requirement applies in this case," but the U.S. pointed out in its reply that for this exception to apply, "the inquiry must not require further agency involvement, additional fact finding, or opening up of the record, and the inquiry must neither create undue delay nor cause expenditure of scarce party time and resources." The government said the count Risen looks to add doesn't meet those criteria.

For starters, the issue of specificity "is necessarily a question of mixed fact and law, which depends on the facts of a given subsidy program," the brief said. Additionally, "Commerce’s specificity determination is potentially subject to further fact-finding," the government argued. Lastly, while Risen said the primary considerations of accuracy weigh in favor of not requiring exhaustion, the U.S. said "the exhaustion requirement is not obviated just because a more 'accurate' result would have obtained had an argument been timely raised before the agency."