CIT Sustains Commerce's Reversal on CVD for EBCP, Article 26 of Tax Program
The Court of International Trade on Feb. 29 sustained the Commerce Department's remand results in a case on the 2019 administrative review of the countervailing duty order on crystalline silicon photovoltaic cells from China. On remand, Commerce reversed its decision to apply subsidy rates to China's Export Buyer's Credit Program (EBCP) and a Chinese tax program for the CVD rate for exporters Risen Energy Co. and JA Solar Technology Yangzhou Co.
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Judge Jane Restani sustained the remand results after no party contested the findings. The judge noted that while Commerce voluntarily chose not to attempt verification of the exporters' use of the EBCP, the court didn't require the agency to forgo verification. Instead, the court "merely cautioned Commerce against any verification efforts that would 'overly burden voluntary participants.'"
The U.S. asked for a remand in the suit to reconsider Commerce's benchmark price calculations for land and ocean freight for Risen and JA Solar, given that its methods had changed since 2019. The court granted the remand, also instructing the agency to reconsider its positions on the EBCP and one Chinese tax program, Article 26 of China's Enterprise Income Tax Law (see 2310110036).
Commerce removed the Article 26 Tax Program from its subsidy rate for Risen under protest, disagreeing with the court's holding that the program was not de jure specific enough to the exporters under consideration (see 2401100058).
(Risen Energy Co. v. U.S., Slip Op. 24-25, CIT Consol. # 22-00231, dated 02/29/24; Judge: Jane Restani; Attorneys: Gregory Menegaz of deKieffer & Horgan for plaintiff Risen Energy Co.; Jeffrey Grimson of Mowry & Grimson for consolidated plaintiffs led by JA Solar Technology Yangzhou Co.; Kelly Geddes for defendant U.S. government)