ICYMI: The International Trade Court asked the Commerce Department to verify

In a recent ruling, the Court of International Trade (CIT) held that it was unreasonable for the Department of Commerce not to attempt to verify exporters’ certifications that they did not use China’s Export Buyer’s Credit Program (EBCP) when the exporters did not submit certifications to all of their customers.

The ruling stems from an administrative review of the 2012 China Anti-Subsidy Duty Order on Solar Cells. In February 2022, the Ministry of Commerce initiated the ninth administrative review of the order. In March 2022, the International Trade Administration (ITA) selected Risen Energy Co, a developer, manufacturer and distributor of solar photovoltaic application products, as a mandatory respondent.

Lisheng reported that none of its customers used the EBCP during the review period and submitted non-use certificates for all but one of its U.S. customers. However, in the final decision, the Department of Commerce included the Chinese government’s EBCP in the calculation of Lisheng’s countervailing duty rate. The Department of Commerce stated that the Chinese government did not provide all of the information originally requested, namely, a non-use certificate was missing. Therefore, the Department of Commerce concluded that Lisheng failed to provide sufficient documentary evidence to establish non-use. Lisheng appealed to the CIT, arguing that the decision was not substantive.

Judge Jane Restany heard the case and remanded the review of the countervailing duty order so that the Department of Commerce could attempt to verify Risen’s non-use certificates. Judge Restany said it was unreasonable to conclude that Risen had failed to provide sufficient evidence simply because it could not explain a small portion of its non-use certificates.

She also addressed the CVD rate, noting that Risen accounted for 98% of the unused certificates, and said that “even if EBCP funded 100% of the sales to non-partners, 100% of 2% of sales would not support applying the CVD rate that includes EBCP to all of Risen’s product sales…it doesn’t make sense.”

The court ordered the Department to attempt a verification to more accurately calculate the percentage of sales that Risen was able to account for, or it would have to remove the EBCP rate attributed to unused customers from the overall CVD rate.

Diaz Trade Law will continue to monitor this case and report developments. If you need assistance with your AD/CVD matter, please contact us today.