Risen Energy Co. v. United States

570 F.Supp.3d 1369

RISEN ENERGY CO., LTD., Plaintiff,

Jingao Solar Co., Ltd., et al., Consolidated Plaintiffs,

Shanghai BYD Co., Ltd., Trina Solar Co., Ltd., et al., Intervenor Plaintiffs,

v.UNITED STATES, Defendant.

Slip Op. 22-44

Consol. Court No. 20-03912

United States Court of International Trade.

May 12, 2022

Gregory S. Menegaz and Alexandra H. Salzman, deKieffer & Horgan, PLLC, of Washington, D.C., argued for Plaintiffs. With them on the brief was James K. Horgan.

Sarah M. Wyss and Wenhui (Flora) Ji, Mowry & Grimson, PLLC, of Washington, D.C., argued for Consolidated Plaintiffs. With them on brief were Jeffrey S. Grimson, Bryant P. Cenko, Jill A. Cramer, and Kristin H. Mowry.

Craig A. Lewis, Jonathan T. Stoel, and Lindsay K. Brown, Hogan Lovells US LLP, of Washington, D.C., for Intervenor Plaintiffs Shanghai BYD Co., Ltd.

Jonathan M. Freed, Kenneth N. Hammer, MacKensie R. Sugama, and Robert G. Gosselink, Trade Pacific PLLC, of Washington, D.C., for Intervenor Plaintiffs Trina Solar Co., Ltd.

Ann C. Motto, Commercial Litigation Branch, U.S. Department of Justice, of Washington, D.C., argued for the Defendant. Of counsel on the brief was Spencer Neff, Office of Chief Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce, of Washington, D.C.

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 Sixth 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 ("GOC") covering the period from January 1, 2017, to December 31, 2017.

Plaintiffs, Consolidated Plaintiffs, and Plaintiff-Intervenors ("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 sustains Commerce's Final Results of its Sixth Administrative Review.

BACKGROUND

Commerce published a countervailing duty order on crystalline silicon photovoltaic cells, whether or not assembled into modules ("solar cells") from the GOC 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 March 2019, Commerce began its Sixth Administrative Review of this countervailing duty order, covering the period from January 1, 2017, to December 31, 2017. Initiation of Antidumping and Countervailing Duty Administrative Reviews, 84 Fed. Reg. 9,297 (Dep't Commerce Mar. 14, 2019). On November 5, 2019, the U.S. International Trade Administration selected JA Solar Co., Ltd. and Risen Energy Co., Ltd. as mandatory respondents ("Mandatory Respondents") in this review. See Dep't Commerce, Respondent Selection Memorandum, P.R. at 1-2 (Nov. 5, 2019).

Commerce published its preliminary results on February 11, 2020, 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; 2017, 85 Fed. Reg. 7727 (Dep't Commerce Feb. 11, 2020), along with the accompanying Preliminary Issues and Decision Memorandum, Decision Memorandum for the Preliminary Results of the Countervailing Duty Administrative Review, Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, from the People's Republic of China, C, POR: 01/01/2017-12/31/2017 (Dep't Commerce) ("PDM").

Commerce published its final determination on December 9, 2020. 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; 2017, 85 Fed. Reg. 79,163 (Dep't Commerce Dec. 9, 2020) ("Final Results"); 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 01/01/2017-12/31/2017 (Dep't Commerce Nov. 27, 2020) ("I&D Memo").

JURISDICTION & STANDARD OF REVIEW

The court has jurisdiction pursuant to 28 U.S.C. § 1581(c) (2021) and 19 U.S.C. § 1516a(a)(2)(B)(i) (2021). The court will uphold Commerce's determinations in a countervailing duty proceeding unless they are "unsupported by substantial evidence on the record, or otherwise not in accordance with law[.]" 19 U.S.C. § 1516a(b)(1)(B)(i).

DISCUSSION

I. Export Buyer's Credit Program

As in prior reviews, Mandatory Respondents here reported that none of their customers received assistance under the GOC's Export Buyer's Credit Program ("EBCP"), and that they did not assist any customers in using the program. See Risen Energy Section III Questionnaire Response, P.R. 144–162, C.R. 109–276 at 27–28, Ex. 19 (Dec. 30, 2019); see Questionnaire Response of JA Solar and Affiliates, Volume 1, P.R. 132–38, C.R. 31–103 at III 38–40 (Dec. 30, 2019). Both also provided customer declarations certifying non-use of the EBCP. Risen Unaffiliated Supplier II, Section III Questionnaire Response, P.R. 164, C.R. 277 at 23, Ex. 15 (Jan. 6, 2020); Questionnaire Response of JA Solar and Affiliates at Ex. 25. Commerce claimed, as it has previously, that it cannot verify the certifications of non-use because it lacks necessary information regarding the operation of the EBCP and applied adverse facts available ("AFA") to determine that Mandatory Respondents used the EBCP. I&D Memo at 34–35. After arguing in favor of Commerce's position in briefing and oral argument, the Government, without explanation, now requests remand on the issue of EBCP "to reconsider its application of adverse facts available for its program." See Def.’s Motion For Voluntary Remand, (March 28, 2022), ECF No. 83, at 5.

Repeatedly, the Government has included the EBCP in its subsidy calculations. See, e.g., Clearon Corp. v. United States, 44 CIT ––––, ––––, 474 F. Supp. 3d 1339, 1353 (2020) ; Guizhou Tyre Co. v. United States, 43 CIT ––––, ––––, 415 F. Supp. 3d 1335, 1344 (2019) ; Both-Well Steel Fittings, Co., Ltd. v. United States, 557 F. Supp. 3d 1327, 1338 (2022). Repeatedly, the court has ordered Commerce on remand to conduct verification before rejecting respondent's proof of non-use. See, e.g. Clearon Corp., 474 F. Supp. 3d at 1354 ; Guizhou Tyre, 415 F. Supp 3d at 1344 ; Both-Well, 557 F. Supp. 3d at 1337. Repeatedly, the Government has removed the EBCP from the calculation under protest without attempting verification. See, e.g., Clearon Corp. v. United States, Slip Op. 21-56, 2021 WL 1821448, at *2–3 (CIT 2021) ; Changzhou Trina Solar Energy Co. v. United States, 44 CIT ––––, ––––, 466 F. Supp. 3d 1287, 1291–93 (2020). Repeatedly, the Government has also not appealed the court's decisions on the issue. The result is the continual collection of deposits which are not owed. This situation is untenable and inequitable.

The court grants the request for remand but with restrictions appropriate to this history. On remand, the Government may attempt to verify the customer certifications of non-use. If the Government decides to remove the EBCP from its subsidy calculation under protest but does not intend to appeal, it must explain on remand why the Court should not provide some form of equitable relief, such as the immediate return of deposits, or an injunction of the continued inclusion of the program with no attempt at verification that results in the temporary collection of funds that ultimately are not owed.

II. Land Value Benchmark

Prior to finding a countervailable subsidy, Commerce must establish that an authority provided a financial contribution, and a benefit was thereby conferred. 19 U.S.C. § 1677(5)(B). A foreign government's provision of goods to a respondent for less than adequate remuneration constitutes a benefit. Id. § 1677(5)(E)(iv). In such circumstances, Commerce determines the amount of the subsidy by comparing remuneration actually paid with adequate renumeration with a market-determined price for the goods or services, under "a three-tiered hierarchy" employed by Commerce "to determine the appropriate remuneration benchmark." Changzhou Trina Solar Energy Co. v. United States, 42 CIT ––––, ––––, 352 F. Supp 3d 1316, 1332 (2018) (" Changzhou Trina I"); see 19 C.F.R. § 351.511(a)(2)(i)–(iii) (2021). Commerce derives a tier-one benchmark "by comparing the government price to a market-determined price for the good or service resulting from actual transactions in the country in question." 19 C.F.R. § 351.511(a)(2)(i).

In the absence of such a benchmark, Commerce turns to a tier-two benchmark "by comparing the government price to a world market price where it is reasonable to conclude that such price would be available to purchasers in the country in question." Id. § 351.511(a)(2)(ii). "If there is no world market price available to purchasers in the country in question," however, Commerce moves on to a tier-three analysis and "measures[s] the adequacy of remuneration by assessing whether the government price is consistent with market principles." Id. § 351.511(a)(2)(iii). If Commerce determines that the government price is not consistent with market principles it will look to construct an external benchmark. Canadian Solar Inc. v. United States, 45 CIT ––––, ––––, 537 F. Supp. 3d 1380, 1389 n.6 (2021) (" Canadian Solar III").

At issue here is Commerce's decision to utilize its chosen tier-three benchmark, the 2010 Coldwell Banker Richard Ellis Asian Marketview Report for Thailand Industrial Land Report to assess the value of land-use rights. See Dep't Commerce, Asian Marketview Report, P.R. 202 (Jan. 31, 2020) ("2010 CBRE Report"). Plaintiffs claim that: (1) Commerce erred by rejecting JA Solar's proffered tier-two benchmark, JA Solar Br. at 22-24; Risen ...