CIT Remands Decision Not to Adjust Exporter's US Price by 6 CVD Programs in AD Review

The Court of International Trade on Aug. 20 sent back the Commerce Department's decision in an antidumping duty review not to adjust exporter Trina Solar Co.'s U.S. price by six programs countervailed in the companion countervailing duty review. Judge Claire Kelly said Commerce failed to explain its finding that the six programs weren't export contingent.

In the 2017 CVD review on solar products from China, "the most recently completed review" at the time Commerce completed its 2021-22 AD review of the same products, Commerce used adverse facts available to countervail 11 programs. Then, in that 2021-22 AD review, Commerce said six of the programs aren't export contingent, refusing to adjust Trina's U.S. price for the six programs.

Kelly said the case "involves the intersection of ADD and CVD law," specifically where Commerce lowers a company's U.S. price by the amount of CV duties at issue to not double-count the CV duties. The law mandating this adjustment is Section 1677a(c)(1)(C), which "presumes that an export subsidy contributes to the antidumping violation," Kelly said.

The court noted U.S. Court of Appeals for the Federal Circuit precedent, which said that even where a subsidy is countervailed using AFA, Commerce "necessarily determines the type of subsidy involved." Kelly also pointed to Commerce's past practice, which says that "where Commerce imposes a CVD, it necessarily determines, inter alia, that a subsidy is either" export contingent, an import substitution subsidy which is contingent on the use of domestic goods over imported goods or a domestic subsidy.

Commerce said there's no information on the record of the AD review showing that the six programs at issue "are export contingent or that Commerce determined that these programs were export-contingent." However, Kelly noted that Commerce, when using AFA in the CVD review, looked to the "Initiation Checklist, which provides descriptions of these subsidy programs, including the basis on which" the agency "found that reasonably available information indicated that these programs constituted a financial contribution and were specific.”

Kelly said the decision not to offset the six subsidy programs is unsupported "because Commerce’s claim that it did not determine how the subsidy was specific for these remaining programs is unsupported by the record." The "Initiation Checklist" isn't on the record of the AD review, but it was on the record in the CVD case "and the record in this case suggests that Commerce relied upon the descriptions in that checklist to make the determination that it was required to make," the judge said.

The agency's "generic description of its determination fails to mask that a determination was made," the decision said. "Accordingly, Commerce must explain what determination it made in the CVD case. Commerce may point to evidence in the record or reopen the record to explain its determination."

(Trina Solar Co. v. United States, Slip Op. 24-96, CIT # 23-00213, dated 08/20/24; Judge: Claire Kelly; Attorneys: Jonathan Freed of Trade Pacific for plaintiffs led by Trina Solar; Kristin E. Olson for defendant U.S. government; Timothy Brightbill of Wiley Rein for defendant-intervenor American Alliance for Solar Manufacturing)