Trade Court Upholds Commerce's Land Benchmark Calculation, Removal of EBCP From CVD Rate

The Court of International Trade on Dec. 19 upheld the Commerce Department's decision to revert to the calculation of a previously used land benchmark as part of a countervailing duty review. Judge Jane Restani said that since no parties contest the move, the court will sustain the agency's third remand results.

The court previously sent back Commerce's land benchmark formula for violating the scope of an earlier remand order in a case on the 2017 CVD review on solar cells from China, telling the agency to use the calculation from its first remand. In that proceeding, Commerce used a 2010 Coldwell Banker Richard Ellis (CBRE) land report to set the benchmark (see 2311170034).

In its third remand results, Commerce said it intends to "re-evaulate its methodology for" calculating the benchmark "in future segments of its countervailing duty proceedings" (see 2312080027). The result of the change, along with the decision to drop the subsidy finding related to China's Export Buyer's Credit Program, lowered the subsidy rate for CVD respondent Risen Energy Co. to 4.2%, from 9.69%. The rate for respondent JA Solar also dropped, to 7.62% from 7.68%, and the non-selected companies got a new rate of 5.26%.

Commerce also dropped the EBCP subsidy due to Restani's prior ruling, which told the agency to try to verify Risen's non-use of the EBCP. Commerce started the verification process but stopped when one of the exporter's customers declined to participate. The agency said verification was impossible and gave Risen an adverse facts available rate, but Restani said Commerce went too far in using AFA solely to punish Risen because its U.S. customers didn't cooperate.

(Risen Energy Co. v. United States, Slip Op. 23-185, CIT Consol. # 20-03912, dated 12/19/23; Judge: Jane Restani; Attorneys: Gregory Menegaz of deKieffer & Horgan for plaintiff Risen Energy Co.; Jeffrey Grimson of Mowry & Grimson for consolidated plaintiff JingAo Solar Co.; Craig Lewis of Hogan Lovells for plaintiff-intervenor Shanghai BYD Co.; Jonathan Freed of Trade Pacific for plaintiff-intervenor Trina Solar Co.; and Joshua Kurland for defendant U.S. government)