Commerce Says It Will Reevaluate Land Benchmark Methodology in Future Solar Cell CVD Reviews

The Commerce Department reverted to a previously used land benchmark calculation for its 2017 administrative review of the countervailing duty order on solar cells from China. The court previously had sent back the land benchmark formula for violating the scope of an earlier remand order, telling Commerce to use the calculation from its first remand, in which the agency used a 2010 Coldwell Banker Richard Ellis (CBRE) land report to set the benchmark (see 2311170034) (Risen Energy Co. v. U.S., CIT # 20-03912).

Commerce made the change in its third remand results, noting it "appreciate[s] the Court's clarification in its remand order that it does not consider Commerce's new methodology to be an 'unreasonable method' for constructing its land for [less than adequate remuneration] benchmarks." The agency said that it intends to "re-evaluate its methodology for" calculating the benchmark "in future segments of its countervailing duty proceedings."

The result of the change, along with Commerce's decision to drop the subsidy rate related to China's Export Buyer's Credit Program, dropped the subsidy rate for CVD respondent Risen Energy Co. to 4.2%, from 9.69%. The changes also led to a lowered CVD rate for respondent JA Solar to 7.62%, from 7.68%, and a new rate of 5.26% for the non-selected companies subject to the litigation, a decline from 9.07%.

In the prior opinion, CIT ruled against Commerce's use of adverse facts available against Risen pertaining to the company's alleged use of the EBCP. In the court's second remand order, the judge told Commerce to attempt to verify Risen's non-use of the EBCP. The agency started the verification process but stopped when one of the exporter's customers declined to participate in on-site verification. Commerce said verification of non-use was impossible and left an insurmountable gap in the record.

The court said AFA shouldn't be used only to punish a non-cooperative party. It's expensive and time-consuming for a private entity with no legal obligation to comply to engage in verification, the court noted, finding that Commerce went too far in its demands of Risen's U.S. customers.

On remand, Commerce dropped the subsidy rate attributable to the EBCP for Risen under protest. The agency said it still considers there to be gaps in the record, but it will abide by the court's ruling.