Commerce Refused to Adjust Exporter’s US Price for Six Countervailed Subsidies, Exporter Says

A solar panel exporter again argued that the Commerce Department had instituted a double remedy by adjusting Trina Solar’s U.S. prices for the countervailing duties it paid for only five subsidy programs, and not the other six, in its review of antidumping and countervailing duty orders on solar panels from China (Trina Solar v. U.S., CIT # 23-00213).

The U.S. claimed that it had done so because those five subsidy programs were export-contingent, while the other six programs were found to be countervailable on the basis of adverse facts available, the exporter said.

But the other six programs are also export-contingent, exporter Trina Solar said in reply to U.S. opposition (see 2404300062) to its motion for judgment. Commerce, it said, wrongly counted as export subsidies only those programs it had previously found to be so.

“Defendant’s restatement that ‘Commerce found that there was no evidence indicating these six programs were export contingent on the record of this review' attempts to divert attention from the deficiency of its determination,” Trina said. “This statement stubbornly ignores that in CVD Prelim Results 2017 … Commerce based specificity on the Initiation Checklist rather than a prior finding by Commerce.”

Before imposing a countervailing duty, however, Commerce must determine whether the subsidy is specifically an export subsidy, an import substitution subsidy or a domestic subsidy, it said.

And though the record didn’t contain information about specificity of the six disputed subsidies, it also didn’t say anything about the five Commerce did find to be export-contingent, Trina said.

“The statute is clear,” Trina said. It gives instruction “that the 'price used to establish export price and constructed export price used to determine the antidumping duty amount shall be increased by … the amount of any countervailing duty imposed … to offset an export subsidy,'” the exporter said. Trina said that the “statute’s use of 'shall' imposes an obligation on Commerce impervious to any discretion or deference granted to agencies.” Therefore, it said, all 11 programs should have been considered in adjusting Trina’s U.S. prices.