CIT Sustains Commerce's Decision to Adjust Exporter's AD Rate by 3 Countervailed Subsidies
The Court of International Trade sustained the Commerce Department's decision on remand to adjust exporter Trina Solar Co.'s antidumping duty rate based on three programs the agency countervailed in a related countervailing duty review. Judge Claire Kelly said Commerce reasonably adjusted the rate for only three of the six countervailed subsidies after finding that only three are export contingent.
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
The result saw Commerce revise Trina's cash deposit rate from, 10.50% to 9.09%.
Kelly previously remanded the 2021-22 administrative review of the AD order on crystalline silicon photovoltaic products from China after Commerce refused to adjust Trina's export price by the six countervailed programs in the companion countervailing duty review (see 2408200034). Since Commerce used AFA to countervail the six programs, the agency didn't have separate specificity findings, prompting the remand from Kelly for the agency to see if the programs were export contingent, thus requiring an adjustment to the AD rate.
On remand, Commerce said it disagrees with the court that it even needs to make a specificity finding, since the use of AFA includes a specificity finding (see 2412190061). Nevertheless, the agency consulted the CVD review's Initiation Checklist to see if the six programs were export contingent.
For three of them -- the 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 programs -- Commerce said they were export contingent. As a result, the agency adjusted the prices of Trina's sales by the CVD imposed by the three programs, "offsetting the subsidies provided by the programs."
For two of the programs -- the income tax reductions for export-oriented enterprises and tax refunds for reinvestment of foreign invested enterprise profits in export-oriented enterprises -- Commerce said they were not export contingent. Regarding the last program, the awards for Jiangsu famous brand products, Commerce instead turned to the CVD review's preliminary results, which said the program "was not an export subsidy." The agency said no new evidence indicated Commerce revisited this specificity finding, prompting the agency to not adjust Trina's sales by the amount of the subsidy.
Kelly said Commerce's approach was "reasonable on this record and complied with the Court's remand order."
(Trina Solar Co. v. United States, Slip Op. 25-40, CIT # 23-00213, dated 04/14/25; Judge: Claire Kelly; Attorneys: Jonathan Freed of Trade Pacific PLLC for plaintiffs led by Trina Solar; Kristin Olson for defendant U.S. government; Timothy Brightbill of Wiley Rein for defendant-intervenor American Alliance for Solar Manufacturing)