CVD Respondent Rails Against 'Grossly Outdated' Data in Land Benefit Calculation
The Commerce Department erred by including "grossly outdated" data to calculate the benefits derived from the provision of land for less than adequate remuneration in a countervailing duty review, plaintiffs led by JA Solar Technology Yangzhou Co. said in a Sept. 6 complaint at the Court of International Trade. Further, the plaintiffs railed against Commerce's use of adverse facts available over the alleged use of China's Export Buyer's Credit Program and its decision to use certain lease rates to calculate the benefits for JA Solar's reported leases, among other things (JA Solar Technology Yangzhou Co. v. United States, CIT #22-00232).
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The case concerns the 2019 administrative review of the countervailing duty order on crystalline silicon photovoltaic cells from China in which JA Solar and Risen Energy Co. served as mandatory respondents. When calculating its benchmark to measure the benefit received under the land for LTAR program, Commerce averaged prices from the 2010 "Asian Marketview" report by CB Richard Ellis and the prices from the Malaysian Investment Development Authority (MIDA) Report. The trade court had previously remanded the use of the 2010 CBRE report as it was "grossly outdated." In its seven-count complaint, JA Solar said Commerce violated the law by using this data.
JA Solar then argued against Commerce's decision to use the lease rates from the 2010 CBRE report to find the benefits for JA Solar's reported leases, "instead of the 1/50th of the land benchmark proposed by JA Solar to account for a one-year lease period out of the 50 years of the land-use right." The respondent said Commerce agreed with it that benefits from land leases are recurring benefits, using the lease rate from factories in Bangkok from the 2010 CBRE Report to measure JA Solar's benefits from its reported land leases. Commerce declined to use JA Solar's proposal to use 1/50th of the land benchmark price or to expense the benefits of the 2017 land leases laid out in the 2017 CVD review, "even though Commerce treated benefits from land leases as a recurring program," the complaint said.
"Commerce’s decision not to re-calculate the land benefits allocable to 2019 from the allocation streams calculated in the 2017 review to reflect Commerce’s newly selected benchmark source in the current review, was not supported by substantial evidence and was otherwise not in accordance with law," the brief said. The respondent also railed against the agency's decision to treat the Article 26(2) Tax Exemption Program as countervailable, seeing as the program is not specific.
In the review, as it has done many times before, Commerce used total AFA over Risen's alleged use of the EBCP, finding that AFA was warranted since the Chinese government failed to provide two pieces of information over how the program works. The trade court has repeatedly found that this does not stand as proper grounds to use AFA. Risen pointed to many of these cases in the complaint, arguing that the use of total AFA in this way is illegal since there is no evidence showing that Risen or its U.S. customers used the EBCP.