Risen Energy Co. v. United States

658 F.Supp.3d 1364

RISEN ENERGY CO., LTD., Plaintiff,JA Solar Technology Yanghou Co. Ltd., et al., Consolidated Plaintiffs, v. UNITED STATES, Defendant.

Slip Op. 23-148 Consol. Court No. 22-00231

United States Court of International Trade

October 11, 2023

Gregory Stephen Menegaz and Alexandra H. Salzman, deKieffer & Horgan, PLLC, of Washington, DC, argued for Plaintiffs. With them on the brief were James Kevin Horgan, and Vivien Jinghui Wang.

Bryan Patrick Cenko and Yixin (Cleo) Li, Mowry & Grimson, PLLC, of Washington, DC, argued for Consolidated Plaintiffs. With them on the brief were Sarah Marie Wyss, Ronalda G. Smith, Jacob Max Reiskin, Jacob E. Spegal, Jeffrey Sheldon Grimson, Jill A. Cramer, and Kristin Heim Mowry.

Joshua Ethan Kurland, Commercial Litigation Branch, U.S. Department of Justice, of Washington, DC, argued for Defendant. With him on the brief were Brian M. Boynton, Patricia M. McCarthy, and Reginald T. Blades, Jr. Of counsel on the brief was Spencer Neff, Office of Chief Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce, of Washington, DC.

OPINION AND ORDER

Restani, Judge:

This action is a challenge to the final determination made by the United States Department of Commerce ("Commerce") in the Eighth Administrative Review of the countervailing duty order on crystalline silicon photovoltaic cells, whether or not assembled into modules ("solar cells"), from the People's Republic of China ("China") covering the period from January 1, 2019, to December 31, 2019. Plaintiffs and Consolidated Plaintiffs request that the court hold aspects of Commerce's final determination unsupported by substantial evidence or otherwise not in accordance with law. The United States ("Government") asks that the court sustain Commerce's final determination.

BACKGROUND

Commerce published a countervailing duty order on solar cells from China on December 7, 2012. See Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the People's Republic of China: Countervailing Duty Order, 77 Fed. Reg. 73,017 (Dep't Commerce Dec. 7, 2012). In February 2021, Commerce began its Eighth Administrative Review of the order for this countervailing duty order, covering the period from January 1, 2019, to December 31, 2019. Initiation of Antidumping and Countervailing Duty Administrative Reviews, 86 Fed. Reg. 8,166 (Dep't Commerce Feb. 4, 2021). In March 2021, Commerce selected Risen Energy Co., Ltd. ("Risen") and JA Solar Co., Ltd. ("JA Solar") as mandatory respondents in this review. See Respondent Selection Memorandum, P.R. 46 (Mar. 29, 2021).

Commerce published its preliminary results on January 6, 2022, see Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the People's Republic of China: Preliminary Results of Countervailing Duty Administrative Review and Rescission of Review, in Part; 2019, 87 Fed. Reg. 748 (Dep't Commerce Jan. 6, 2022), along with the accompanying Preliminary Issues and Decision Memorandum, Decision Memorandum for the Preliminary Results of the Countervailing Duty Order on Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, from the People's Republic of China, C-570-980, POR 01/01/2019-12/31/2019 (Dep't Commerce Dec. 30, 2021) ("PDM").

Commerce published its amended final determination on September 12, 2022. See Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the People's Republic of China: Final Results of Countervailing Duty Administrative Review; 2019, 87 Fed. Reg. 55,782 (Dep't Commerce Sept. 12, 2022); see also Issues and Decision Memorandum for Final Results of the Administrative Review of the Countervailing Duty Order on Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, from the People's Republic of China, C-570-980, POR 01/01/2019-12/31/2019 (Dep't Commerce June 29, 2022) ("IDM").

JURISDICTION & STANDARD OF REVIEW

The court's jurisdiction continues pursuant to 19 U.S.C. § 1516a(a)(2)(B)(iii) and 28 U.S.C. § 1581(c). The court sustains Commerce's final redetermination results unless they are "unsupported by substantial evidence on the record, or otherwise not in accordance with law[.]" 19 U.S.C. § 1516a(a)(2)(B)(i).

DISCUSSION

I. Export Buyer's Credit Program

The Government of China's ("GOC") Export Buyer's Credit Program ("EBCP") promotes exports by providing credit at preferential interest rates to qualifying foreign purchasers of GOC goods. See Clearon Corp. v. United States, 43 CIT —, —, 359 F. Supp. 3d 1344, 1347 (2019). As in prior reviews, in response to Commerce's requests, Risen and JA Solar reported that none of their customers used the EBCP during the period of review ("POR") and confirmed that they had never been involved in assisting customers in obtaining loans under the program. See Risen Initial Questionnaire Response at 40-41, Exs. 19-20, P.R. 187-190, C.R. 211-216 (June 21, 2021); JA Solar Initial Questionnaire Response at 47-49, Ex. 22, P.R. 213-216, C.R. 330-362 (June 29, 2021). Commerce's questionnaire asked Risen and JA Solar what steps each "took to determine that no customer used" the EBCP. See Risen Initial Questionnaire Response at 40-41; JA Solar Initial Questionnaire Response at 47-49. In response, JA Solar provided customer declarations certifying non-use of the EBCP from its sole U.S. importer customer as well as multiple, but not all, of the importer's downstream unaffiliated customers. JA Solar Initial Questionnaire Response at 47-49, Ex. 22. At the same time, Risen provided non-use certifications for three of its four non-affiliated customers. See Risen Initial Questionnaire Response at 41, Ex. 20. Later, on December 13, 2021, Risen submitted the non-use certification for the fourth customer. Commerce Rejection Memorandum at 1, P.R. 342 (Dec. 20, 2021). Commerce rejected the submission as untimely filed because it was unsolicited, did not comply with 19 C.F.R. § 351.301(c)(5), and was not submitted at least thirty days before the scheduled preliminary results. Commerce Rejection Memorandum at 1.

In its own response, the GOC deemed that some of Commerce's questions about the EBCP were inapplicable because "the GOC believes that none of the respondents under review applied for, used, or benefitted from the alleged program." GOC Initial Questionnaire Response at 135, P.R. 192-204, C.R. 235-255 (June 22, 2021). Consistent with the provided certifications, the GOC, by searching the China Ex-Im Bank's loan database, corroborated that Risen, JA Solar, and their customers did not use the EBCP during the POR. Id. at 136. The GOC also noted that normally "the Chinese exporter is aware of the buyer's receipt of the loans and is involved in the loan evaluation proceeding . . . ." Id. at 136; see also id. at Ex. F-2. Because of this, the GOC concluded that Risen and JA Solar would be "in a position to verify and confirm the existence, if any, of sales contracts that were supported by the export buyer's credits of the EX-IM Bank." Id. at 136, 138. Further, the provided Administrative Measures of Export Buyer's Credit indicated that the EBCP "is mainly used for supporting the export of capital goods, (such as Chinese electromechanical products, complete sets of large-scale equipment) and High-tech products and services." Id. at Ex. F-2. Although Commerce asked the GOC to provide a list of "all partner/correspondent banks involved in disbursement of funds under the" EBCP, the GOC declined to provide it because, as stated by the GOC, none of the respondents benefited from the program. Id. at 136.

In its final determination, Commerce applied an adverse factual inference to find that Risen and JA Solar used the EBCP. IDM at 29-32. Specifically, Commerce found that the GOC failed to adequately respond to Commerce's request for a list of all partner banks involved in the disbursement of funds under the EBCP. Id. at 30-31. Without this information, Commerce reasoned that it could not fully verify the non-use certifications because Commerce would not know the names of banks that might appear in customers' books that disbursed the EBCP. IDM at 31. Further, Commerce also found that Risen and JA Solar failed to provide non-use certifications from all of their U.S. customers. Id. at 23. Accordingly, Commerce applied adverse facts available ("AFA") because the GOC was the only party able to provide the requested information, the GOC did not cooperate to the best of its ability, and the information was necessary to verify non-use. Id. at 31-32.

If "necessary information is not available on the record" or if a responding party "withholds information" requested by Commerce, Commerce shall "use the facts otherwise available in reaching the applicable determination[.]" 19 U.S.C. § 1677e(a). Commerce "may use an inference that is adverse to the interests of that party in selecting from among the facts otherwise available" when information is missing from the record because a party "has failed to cooperate by not acting to the best of its ability to comply with a request for information" from Commerce. 19 U.S.C. § 1677e(b). This is described as "AFA."

The application of adverse facts that collaterally impact a cooperating party is disfavored. Fine Furniture (Shanghai) Ltd. v. United States, 36 C.I.T. 1206, 1212 n.10, 865 F. Supp. 2d 1254, 1262 n.10 (2012), aff'd, 748 F.3d 1365 (Fed. Cir. 2014). "When Commerce has access to information on the record to fill in the gaps created by the lack of cooperation by the government, as opposed to the exporter/producer, however, it is expected to consider such evidence." GPX Int'l Tire Corp. v. United States, 37 C.I.T. 19, 58-59, 893 F. Supp. 2d 1296, 1332 (2013), aff'd, 780 F.3d 1136 (Fed. Cir. 2015); see also Guizhou Tyre Co., Ltd. v. United States, 42 CIT —, —, 348 F. Supp. 3d 1261, 1270 (2018) ("To apply AFA in circumstances where relevant information exists elsewhere on the record — that is, solely...