Commerce Adjusts Solar Panel Exporter's AD by Three Countervailed Programs
The Commerce Department adjusted exporter Trina Solar’s U.S. price in an antidumping duty review for subsidies from three programs it had countervailed in an accompanying countervailing duty review, finding, after remand, that the programs were export-contingent. It again declined to adjust Trina’s U.S. price by three other programs (Trina Solar v. U.S., CIT # 23-00213).
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Court of International Trade Judge Claire Kelly remanded the AD review’s results after Commerce refused to adjust Trina’s export price by six programs countervailed in the companion review based on adverse facts available (see 2408200034). Kelly said that the department must have made determinations as to whether the programs were export subsidies when it first made the decisions that each was specific enough to be countervailed.
Looking back to the record, Commerce said that it determined initially, based on the CVD review’s Initiation Checklist, that three of the six programs were specific to Trina as export-contingent subsidies. These programs were “Export Product Research and Development Fund,” “Subsidies for Development of ‘Famous Brands’ and China World Top Brands” and “Funds for Outward Expansion of Industries in Guangdong Province,” it said.
It said it launched investigations on these programs solely on the basis that they were export-contingent subsidies, it said. Its inquiry into two other programs was based on “multiple specificity allegations,” and its investigation into the final was based on a different finding altogether, it said, which meant there was “insufficient evidence” to find that the programs were export-contingent based on prior determinations by Commerce.
But, while it complied with the holding, the department “respectfully" disagreed with the court.
That CVD Initiation Checklist “provides descriptions of these subsidy programs, including the basis on which we found that reasonably available information indicated that these programs constituted a financial contribution and were specific,” the department explained. It said that when applying AFA, Commerce may look to the checklist to make a specificity decision regarding the subsidy, but that “in doing so Commerce does not necessarily indicate how the program actually operates” -- such as determining whether those alleged subsidies were actually export-contingent.
“For example, Commerce may initiate an investigation of a program based on one alleged type of specificity (e.g., export contingency) only to ultimately find, based upon information supplied by cooperating respondents, that the program is specific for a different reason (e.g., specificity on the basis of a de jure limitation or designated geographic limitation),” it said.
As a result, Commerce calculated a new AD rate for Trina of 9.09%, down from 10.5%. To go into effect, the rate must be sustained by the court.