[00:00:00] Speaker 03: We'll hear argument now in number 20-1004, Shanzhou Trina Solar Energy versus United States, Mr. Brightbill. [00:00:12] Speaker 07: Good morning, Your Honors. [00:00:13] Speaker 07: May it please the Court? [00:00:14] Speaker 07: I hope you, your colleagues, and your families are all well. [00:00:18] Speaker 07: Our appeal covers two issues, the offset for the Export Buyers Credit Subsidy Program and the valuation of Trina's solar glass. [00:00:26] Speaker 00: So I will address those concerns. [00:00:27] Speaker 00: Mr. Brightbill? [00:00:28] Speaker 00: Yes. [00:00:28] Speaker 00: This is Judge Wallach. [00:00:30] Speaker 00: On page 26 of the blue brief, you say that because the term export subsidy in 19 USC 1677 AC1C is ambiguous, we should defer to commerce's reasonable interpretation of that term. [00:00:54] Speaker 00: That is export subsidy excludes AFA determinations. [00:00:59] Speaker 00: Yes, sir. [00:01:00] Speaker 00: Commerce itself, anywhere that the term export subsidy is ambiguous? [00:01:08] Speaker 07: I believe that commerce has, by ruling the way that it did, that an export subsidy does not cover situations where adverse facts available are involved. [00:01:22] Speaker 07: I believe its ruling does do that. [00:01:24] Speaker 07: I don't know if it states it exactly in that way. [00:01:28] Speaker 00: Did it offer any definition of export subsidy other than the statutory definition? [00:01:35] Speaker 07: No, not to my knowledge, Your Honor. [00:01:36] Speaker 07: I believe the whole issue was what to do in a situation where the Chinese government fails to respond and therefore it's impossible to determine whether the program is an export subsidy, a situation that they've dealt with many times. [00:01:53] Speaker 00: I know they have, Mr. Breitbaum. [00:01:57] Speaker 00: What exactly then are you asking us to, to what are you asking us to defer the opinion? [00:02:06] Speaker 07: So what we're saying is that what the Court of International Trade did was to improperly direct commerce what to do here by directing commerce to offset the dumping margin for this subsidy program. [00:02:26] Speaker 00: Let me be clear. [00:02:27] Speaker 00: I didn't mean the CIT opinion. [00:02:29] Speaker 00: I meant Congress's determination. [00:02:32] Speaker 00: Are you asking us to just simply defer because they made a determination? [00:02:39] Speaker 07: Well, if that determination is reasonable, consistent with the statute, and based on substantial evidence, yes. [00:02:47] Speaker 00: Well, OK. [00:02:49] Speaker 00: That's a circular argument from my viewpoint. [00:02:52] Speaker 00: On page 20 of the blue brief, [00:02:55] Speaker 00: If you argue that this court applies our deference to commerce's reasonable interpretation of its own orders, and that as such we should defer to commerce's reasonable interpretation of its own unpublished IND memo, can you cite any legal support for the conclusion that we give our deference to commerce's interpretation of an unpublished IND memo? [00:03:25] Speaker 07: Your Honor, the case that we cited in our brief is the Diamond Sawblades case where there was... Interpretation of its own regulation. [00:03:35] Speaker 07: Well, Your Honor, actually... Yes, Your Honor, I'm sorry to interrupt. [00:03:41] Speaker 07: In Diamond Sawblades, it was not a regulation that was being interpreted. [00:03:47] Speaker 07: It was a final modification, which was published in the Federal Register, but was not a regulation [00:03:55] Speaker 07: And so that final modification is something that Commerce authored and therefore this court decided that it was appropriate to defer to Commerce as the author of that modification. [00:04:12] Speaker 00: So how does that report unpublished IND memo? [00:04:17] Speaker 07: Well again Commerce is the author of that decision memo which forms the basis for the final determination [00:04:23] Speaker 07: And therefore, it's entitled to deference on its interpretation of that and of the law as to whether or not it can apply adverse facts available to determine that the program is a subsidy and can't be available. [00:04:43] Speaker 03: But did commerce rely on adverse facts available to make the, [00:04:50] Speaker 03: determination that this was not an export subsidy. [00:04:53] Speaker 07: I thought it used adverse facts available to determine that the Chinese companies took advantage of the export subsidy or of the... Your Honor, Commerce made clear that it was prevented on both findings from making that determination and it was prevented from determining whether the program was an export subsidy. [00:05:15] Speaker 03: Where does the decision say that? [00:05:19] Speaker 07: So we mentioned that in our opening brief on page 22, and that cites to the decision memo at pages 91 to 94, where the government of China failed to respond to even basic questions about how the program is operated, and therefore [00:05:43] Speaker 07: because it lacked those answers, it was impossible to determine whether this was an export subsidy with respect to the Chinese solar industry. [00:05:51] Speaker 03: I'm sorry, where does it say that? [00:05:55] Speaker 07: This is in the countervailing duty investigation issue and decision memo at page 91. [00:06:03] Speaker 07: It's discussed at pages 9 to 11 of our briefs. [00:06:07] Speaker 02: 91, this is appendix 91. [00:06:22] Speaker 07: I'm sorry, Your Honor, it's not appendix 91. [00:06:25] Speaker 07: It's... What page of the appendix? [00:06:34] Speaker 07: Okay, so that's appendix pages 91. [00:06:48] Speaker 07: 113 to 156, it's a... That does not help me. [00:06:53] Speaker 03: That does not help me. [00:06:53] Speaker 03: 113 to 156, what page discusses this? [00:07:14] Speaker 06: Sorry, I'm not able to hear you. [00:07:18] Speaker 06: Let me... Okay. [00:07:34] Speaker 06: Sorry, Your Honor. [00:07:36] Speaker 06: It's page... Appendix 150. [00:07:53] Speaker 03: Well, I don't recall that there is any such finding or use of adverse facts available to determine that this is an export subsidy as opposed to the question of whether the individual, the individual company used the XM bank. [00:08:17] Speaker 07: So. [00:08:18] Speaker 07: Well, the department states that it did not make a determination [00:08:22] Speaker 07: that the program was an export subsidy and it states that instead its decision to countervail the program was based on facts otherwise available with an adverse inference as a result of non-cooperation by the government of China. [00:08:38] Speaker 07: So they did not make a determination that the program in question was contingent on export performance. [00:08:45] Speaker 07: At the time it was actually commerce's practice not to do this and they cited several other [00:08:51] Speaker 07: of commerce determinations where they made a similar finding. [00:08:56] Speaker 03: So... You're saying that in the countervailing duty proceeding, they didn't make a determination that this was an export subsidy? [00:09:05] Speaker 07: That's correct, Your Honor. [00:09:07] Speaker 07: So, and again, this is in the dumping decision memo at page 9 of that... This is directly contrary to what you told me three minutes ago, right? [00:09:23] Speaker 03: You said they used AFA to determine. [00:09:29] Speaker 07: Well, they did not make a determination that it was an export subsidy. [00:09:32] Speaker 07: And therefore, without determination, they in the CVD investigation that the program provides subsidy contingent on export performance. [00:09:42] Speaker 04: This is Judge Jen. [00:09:44] Speaker 04: I'm getting a little lost. [00:09:45] Speaker 04: How was Commerce able to impose a countervailing duty without [00:09:51] Speaker 04: making a finding that there was an export subsidy program that was in fact used by these Chinese importers? [00:10:02] Speaker 07: What the department found was that they had to apply adverse facts available in finding that the program was used by the respondents and that because of the lack of information from the government of China, [00:10:21] Speaker 07: They determined that acts available were warranted and that respondents used and benefited from the program. [00:10:27] Speaker 07: So they made that determination in the countervailing duty case, but they never made a finding that it was an export subsidy per se. [00:10:35] Speaker 04: I'm lost. [00:10:37] Speaker 04: They imposed a countervailing duty here, right? [00:10:39] Speaker 04: They calculated a countervailing duty. [00:10:42] Speaker 04: They did, yes. [00:10:45] Speaker 04: And they can, they have the authority to do that without finding that there was an export subsidy program? [00:10:52] Speaker 07: They have to find a subsidy. [00:10:54] Speaker 07: They have to find that there's a benefit and a financial contribution. [00:10:58] Speaker 04: Okay, so they did find an export subsidy then. [00:11:02] Speaker 04: They necessarily had to. [00:11:04] Speaker 04: It's a core element before they calculate a countervailing duty, isn't it? [00:11:09] Speaker 07: Now, if the government of China does, this is the whole point of our appeal, is that if [00:11:17] Speaker 07: if they don't receive the information to make a determination of whether it's an export subsidy or not, they can apply adverse facts available and still apply a countervailing duty. [00:11:29] Speaker 04: They apply adverse facts available to conclude that, in fact, it is an export subsidy program and that these Chinese companies took advantage of that program. [00:11:42] Speaker 07: Commerce was, well, Your Honor, Commerce was quite clear that [00:11:47] Speaker 07: It did not make a determination as to whether it was an export subsidy program or not. [00:11:53] Speaker 04: And how would they have the authority? [00:11:55] Speaker 04: How would they have the statutory authority to impose a countervailing duty? [00:12:00] Speaker 07: Well, it can be either an export subsidy or a domestic subsidy. [00:12:04] Speaker 07: But in either event, they're able to impose a countervailing duty. [00:12:09] Speaker 04: They found this was a domestic subsidy? [00:12:14] Speaker 07: No, Your Honor. [00:12:17] Speaker 03: How could the Ex-Im Bank subsidies be a domestic subsidy? [00:12:25] Speaker 03: It had to be an export subsidy, right? [00:12:27] Speaker 03: That's the whole purpose of an export import bank. [00:12:33] Speaker 07: Your Honor, Commerce was prevented from determining whether it was an export subsidy because of the lack of cooperation. [00:12:40] Speaker 03: How could it be anything except an export subsidy? [00:12:45] Speaker 03: Well, they don't know. [00:12:47] Speaker 03: How could it be a domestic subsidy? [00:12:51] Speaker 07: Your Honor, again, the burden is on respondents to provide some basic information about how the program works. [00:12:59] Speaker 07: And they did not do so here. [00:13:01] Speaker 07: So the Commerce Department properly decided that it would base a determination on adverse facts available [00:13:10] Speaker 07: They lacked the information. [00:13:12] Speaker 04: And what was that determination they made when you say they based that determination on adverse facts available? [00:13:18] Speaker 04: What was that determination? [00:13:19] Speaker 04: That it was an export subsidy program used by these Chinese importers? [00:13:26] Speaker 07: Yeah, they determined whether they should apply adverse facts available to the Ex-Im Bank buyer's credit program. [00:13:35] Speaker 07: They interpreted the order as applying adverse tax available and then they determined whether it constitutes an export subsidy and whether that is reasonable. [00:13:44] Speaker 03: Yes. [00:13:45] Speaker 03: Was there an issue in the countervailing duty proceeding as to whether this was the Ex-Im Bank provided export subsidies? [00:13:52] Speaker 03: Was that an issue? [00:13:58] Speaker 07: Well, Your Honor, it was certainly an issue in that it was one of the main subsidy programs analyzed. [00:14:05] Speaker 03: Was there any issue that the Chinese Export-Import Bank provided export subsidy? [00:14:14] Speaker 03: That wasn't an issue, was it? [00:14:17] Speaker 07: Well, the department did not determine that they were export subsidies per se. [00:14:24] Speaker 07: They determined. [00:14:26] Speaker 03: I'm asking you whether there was any contention that in that proceeding that those [00:14:32] Speaker 03: subsidies provided by the bank were domestic subsidies or whether they were export subsidies. [00:14:38] Speaker 03: Is it not true that everybody assumed that the bank provided export subsidies? [00:14:45] Speaker 07: I think it was an assumption that everyone made. [00:14:49] Speaker 07: Yes, it was just not supported by any fact. [00:14:52] Speaker 07: And that's why the Commerce Department decided not to offset the dumping margin with [00:15:01] Speaker 07: the CVD margin in this case. [00:15:06] Speaker 07: So I just also wanted to highlight that there's an important policy issue here because this issue comes up in just about every investigation. [00:15:21] Speaker 07: And the lower courts ruling here would force the Commerce Department to negate the subsidy filing by subtracting [00:15:31] Speaker 07: most of that margin from the dumping margin. [00:15:34] Speaker 07: The department has the ability to use facts available. [00:15:38] Speaker 07: It's an essential one that we need to do. [00:15:38] Speaker 03: Well, they have to do that. [00:15:39] Speaker 03: If it's an export subsidy, right? [00:15:40] Speaker 03: I don't have any discretion about it. [00:15:42] Speaker 03: If it's an export subsidy, they have to, to avoid double counting, they have to add it to the U.S. [00:15:48] Speaker 03: price, right? [00:15:50] Speaker 07: But again, Your Honor, if they don't... Is that not correct? [00:15:53] Speaker 03: That is my statement correct? [00:15:56] Speaker 07: The law states that if it is an export subsidy, it will be deducted. [00:16:00] Speaker 07: So the question though is commerce stated quite clearly that it was not able to make that determination and therefore because it wasn't able to make the determination, it would not offset the dumping duty with the countervailing duty. [00:16:15] Speaker 07: And that's the proper position because if there's an offset, then that removes any incentive for the Chinese government ever to provide information regarding this program and the entire purpose [00:16:28] Speaker 07: of facts available to induce cooperation is undermined by that decision. [00:16:32] Speaker 07: We'll never find out what this Chinese subsidy program is or how it works because the offset exists. [00:16:43] Speaker 03: Nobody had any doubt about what the program was. [00:16:47] Speaker 07: Well, Your Honor, it was an assumption based on the information available. [00:16:51] Speaker 07: But again, because the government of China failed to respond, [00:16:56] Speaker 07: The Commerce clearly did not make a finding that it was an export subsidy for purposes of this matter. [00:17:05] Speaker 03: All right. [00:17:06] Speaker 03: Any further questions from my colleague? [00:17:08] Speaker 00: Yes. [00:17:09] Speaker 00: This is Judge Wallach. [00:17:11] Speaker 00: Let me just take you to your factual question, your sandwich glass question, Mr. Brightbill. [00:17:21] Speaker 00: Commerce defines laminated glass as [00:17:24] Speaker 00: quote, made in sandwich form with one or more inner layers of plastic between two or more sheets of glass. [00:17:31] Speaker 00: On page 42 of the Blue Brief, you say that commerce erred when it said there was no record evidence that Trina's glass was laminated, because it failed to consider that some of Trina's module glass uses a plastic front sheet. [00:17:47] Speaker 00: Now, it's a plastic front sheet evidence of multiple interlayers of plastic. [00:17:53] Speaker 00: And did you challenge Congress's definition of laminated glass somewhere in the record? [00:18:00] Speaker 07: Your Honor, I think the fact that there is anti-reflective coating in the punch sheet, as you mentioned, suggests that there are layers of plastic and glass. [00:18:14] Speaker 07: We don't know if there are multiple layers or not. [00:18:16] Speaker 07: Where's the sandwich? [00:18:18] Speaker 00: Yeah, inter-layers. [00:18:20] Speaker 00: Inter-layers. [00:18:23] Speaker 07: No, Your Honor, I think the point we were making is that Commerce determined that there was no record evidence of additional working. [00:18:34] Speaker 07: So, regardless of the multiple layers point, there was additional working that would result in glass comparable to laminated glass, and there was evidence of that additional working on the record, and therefore, Commerce's conclusion was incorrect. [00:18:52] Speaker 03: All right, unless there are any further questions, let's hear from Mr. Kerland. [00:18:57] Speaker 03: We'll give you two minutes for a bottle of Mr. Brightfield. [00:19:00] Speaker 03: Thank you, Your Honor. [00:19:07] Speaker 01: This is Mr. Kerland. [00:19:09] Speaker 01: Good morning, Your Honors, and may it please the Court. [00:19:12] Speaker 01: Our remarks are addressed solely towards the module glass issue. [00:19:16] Speaker 01: And in that regard, [00:19:18] Speaker 01: commerce's determination that the appropriate surrogate value for Trina's module glass was the tempered glass surrogate value rather than the module glass, I'm sorry, the laminated glass surrogate value. [00:19:31] Speaker 01: It should be affirmed by this court because it is supported by substantial evidence and otherwise lawful. [00:19:36] Speaker 01: As an initial matter, there is no party that disputes the record fact [00:19:42] Speaker 01: that Trina's glass is tempered glass. [00:19:45] Speaker 01: Commerce cited that evidence at appendix page 141, looking in turn to appendix pages 46, 47 and 55, 49 to 55, 68, in particular 55, 50 uses the term tempered glass. [00:20:00] Speaker 01: So that's not an issue. [00:20:02] Speaker 01: But it's equally the case [00:20:03] Speaker 01: that Commerce reasonably determined that the record did not support this idea that Trina's glass was most akin to laminated glass, which, as your honors have already noted, the record indicates has additional characteristics. [00:20:19] Speaker 01: In particular, the World Customs Organization explanatory note indicates that it's made in sandwich form with one or more interlayers of plastic between two or more sheets of glass. [00:20:31] Speaker 01: That is not what the evidence indicated. [00:20:33] Speaker 01: And in particular, we would note that at appendix page 6757, 6757 of the record, that's Solar World's reply brief in the trial court proceedings. [00:20:46] Speaker 01: And Solar World indicated there that it said, well, Trina's glass may not be layered. [00:20:53] Speaker 01: So that should be the beginning of it and the end of it. [00:20:56] Speaker 01: They've acknowledged that the glass involved is not layered. [00:21:01] Speaker 01: No one had to answer your honor's question to Appellants Council. [00:21:05] Speaker 01: No one had made the challenge that this World Customs Organization explanatory note was inaccurate or wrong. [00:21:13] Speaker 01: That's a given in the record and as far as I know is uncontroverted. [00:21:20] Speaker 01: I think we have one additional thing to say or one or two additional things to say about this idea of [00:21:28] Speaker 01: This statement in one record document, which I will note is not Trina's record document, but is a data sheet from another company that in turn Trina said that its product is not dramatically different from that other company's data sheet. [00:21:46] Speaker 01: When it refers to plastic, this one reference, and it specifically says that thin film modules may have plastic as a front sheet. [00:21:57] Speaker 01: And so there are several flaws there, the most direct of which is that it's referring to thin film modules. [00:22:05] Speaker 01: And as the interveners, Trina, have pointed out, not only are thin film modules excluded from the order here, but their products aren't thin film modules. [00:22:20] Speaker 01: They confirm that. [00:22:21] Speaker 01: And then, of course, it's May and it's the front sheet. [00:22:26] Speaker 01: consistent with what Commerce said in its issues and decision memorandum does not provide any evidence that this glass is a sandwich form interlayered glass with plastic between two or more sheets of glass. [00:22:43] Speaker 01: Hence, what Commerce said there is reasonable. [00:22:48] Speaker 01: I would further note that Commerce at appendix page 140 [00:22:56] Speaker 01: cited specifically not this information about plastic, but this piece of evidence. [00:23:03] Speaker 01: Essentially, it summarized SolarWorld's arguments and made clear that it considered the arguments and evidence that SolarWorld was putting forward. [00:23:15] Speaker 01: But importantly, this particular statement about the thin film modules containing plastic was not a statement [00:23:25] Speaker 01: that Solar World has pointed to at any time in the proceedings, either before commerce or the trial court, before coming before this court. [00:23:35] Speaker 01: And I think now they've seized on the word plastic to say, to try to kind of shoehorn it into this idea of interlayers of plastic and glass. [00:23:46] Speaker 01: We noted there's an exhaustion issue there, but I think even at a more common sense... This is Judge Chan, just a quick question. [00:23:55] Speaker 04: Impellance argument, I'm sorry, I'm going to the offsetting question. [00:24:00] Speaker 04: I just want to know what commerce's position is. [00:24:02] Speaker 04: Seems to be at least premised on the idea that you don't always have to find that there's an export subsidy in order to impose a countervailing duty rate. [00:24:16] Speaker 04: Does that, does commerce believe that? [00:24:22] Speaker 01: Well, Your Honor, unfortunately, I cannot speak substantively to the export buyer's credit program issue because we haven't appealed that issue and I have no authorization for the Attorney General, from the Attorney General to speak on that issue. [00:24:40] Speaker 01: I guess I can, what I can say as a point of clarification is that countervailing duties are imposed on different manners of subsidies [00:24:51] Speaker 01: of which export subsidy is just one. [00:24:53] Speaker 01: And I think that that seemed to be the confusion between in the discussion with Appellant's Council. [00:24:59] Speaker 01: But I think I would be overstepping my bounds if I said more than that. [00:25:08] Speaker 01: The last point we were going to make on the module issue is simply that leaving aside kind of exhaustion and waiver concerns, [00:25:18] Speaker 01: If your argument before this court is that commerce erred because it failed to consider evidence before it, it seems logical and appropriate for the court to demand that the evidence you're pointing to be evidence that you as a party have at least raised before commerce and the trial court. [00:25:40] Speaker 01: And so that's the issue here. [00:25:43] Speaker 01: Commerce certainly cited that data sheet and the other parts of it [00:25:47] Speaker 01: that Solar World was quoting, but it seems inappropriate given that they specifically point to this reference to plastic now. [00:25:57] Speaker 01: It seems inappropriate to then claim that Commerce didn't address that specific language when they themselves didn't raise it. [00:26:05] Speaker 01: Unless the court has further questions, we respectfully urge that the court affirm Commerce's decision as to the module glass surrogate value. [00:26:15] Speaker 03: Okay. [00:26:15] Speaker 03: Thank you, Mr. Kerlin. [00:26:17] Speaker 03: Mr. Freed. [00:26:19] Speaker 05: Good morning, Your Honors. [00:26:20] Speaker 05: May it please the Court? [00:26:24] Speaker 05: First, I would like to speak briefly on the hour deference issue. [00:26:29] Speaker 05: Our position is that it does not apply because there's no rule or regulation that Congress is interpreting here. [00:26:34] Speaker 05: And appellants are citing diamond saw blades and attempt to characterize the final modification [00:26:43] Speaker 05: as analogous to a commerce determination. [00:26:45] Speaker 05: The final modification announced an agency-wide modification to the methodology for determining dumping following a WQ dispute settlement body determination. [00:26:56] Speaker 05: So the final modification was issued after notice and comment and applied to all current and future anti-dumping investigations as of the effective date of the modification. [00:27:09] Speaker 05: agency determination based on administrative record. [00:27:12] Speaker 05: And I think that's a clear distinction explaining why it doesn't apply here. [00:27:23] Speaker 05: This case arises out of the first review of the anti-dumping orders and products from China. [00:27:29] Speaker 05: In the original investigation, Commerce considered whether to offset anti-dumping duty deposits for export subsidies and specifically the export buyer's credit program [00:27:39] Speaker 05: And in that case, the petitioners argued that they should not offset for the export buyer credit program because... Let me just ask you this question. [00:27:48] Speaker 03: Has anybody ever suggested that XM Bank support is a domestic subsidy as opposed to an export subsidy? [00:27:58] Speaker 05: I'm not aware of any such reference, Your Honor. [00:28:02] Speaker 03: How could it be anything other than an export subsidy if it exists? [00:28:08] Speaker 05: I do not know. [00:28:11] Speaker 05: The attempt to, one distinction I want to make is that the question's been asked, you know, is it necessary that commerce find it to be an export subsidy in order to impose a countervailing duty? [00:28:27] Speaker 05: It's necessary that commerce find the program to be specific, and export contingency is one basis for determining specificity of a program. [00:28:36] Speaker 05: It wouldn't be necessary, like as you, [00:28:39] Speaker 05: Your honors have noted it could be a domestic subsidy. [00:28:42] Speaker 05: You could countervail domestic subsidies. [00:28:44] Speaker 05: And you would have a different basis for determining their specificity because they would not be contingent on export. [00:28:53] Speaker 05: If commerce were, they need not make a determination that the basis for specificity is export contingency in order to impose the countervailing duty. [00:29:08] Speaker 05: The argument by Appellant is that they've made an export, they've determined it to be an export subsidy based on facts available. [00:29:22] Speaker 05: But if that were the case, if there really weren't facts available to determine that it was export contingent, then why call it an export subsidy in any event? [00:29:33] Speaker 05: They could just say that there's, [00:29:37] Speaker 05: deficient information to determine a basis for specificity, and we are relying on some fact. [00:29:43] Speaker 05: Another point to consider is that when commerce applies AFA, there's a two-step process. [00:29:54] Speaker 05: AFA is not licensed to just not consider all of the statutory requirements. [00:30:01] Speaker 05: So there's nothing in the CVD decision memo that says, [00:30:07] Speaker 05: They were making a decision based on specificity based on advertising. [00:30:10] Speaker 03: The government has told us that everybody in the countervailing duty proceedings simply assumed that Ex-Im Bank subsidies are export subsidies. [00:30:18] Speaker 03: Is that correct? [00:30:21] Speaker 03: I think that that is the assumption. [00:30:23] Speaker 03: They're not explicit. [00:30:25] Speaker 03: So they weren't even had to make any determination about whether it's an export subsidy because everybody assumed it was. [00:30:31] Speaker 03: And we cite in our brief, [00:30:35] Speaker 05: In the original investigation, Commerce explicitly said in the AD case, they said we have to make this offset because it's an export subsidy. [00:30:50] Speaker 05: And Solar World argued that they shouldn't because it was based on AFA and Commerce, the Solar World appealed to the CIT. [00:30:57] Speaker 05: Commerce defended its position that this was an export subsidy for which the statute required an adjustment. [00:31:06] Speaker 05: and the CIT sustained the commerce decision. [00:31:09] Speaker 05: Then fast forward to the first review, commerce changes its mind and says, wait a second, we don't want to give this offset where we're applying AFA to the XM Buyers Credit Program. [00:31:24] Speaker 05: But what's important here is understanding that the rate [00:31:31] Speaker 05: that commerce would use as the offset. [00:31:34] Speaker 05: In the first review, is the exact same rate commerce already determined in the individual investigation was an export subsidy requiring adjustment? [00:31:43] Speaker 05: Because in reviews, commerce, when they look to determine what is the rate we need to incorporate into our US selling price calculation, they look back to the most recently completed segment of the proceeding. [00:31:58] Speaker 05: In contrast, in investigations, [00:31:59] Speaker 05: Commerce uses the companion coincident CBD investigation for making the adjustment. [00:32:07] Speaker 05: So, you know, we're not even citing to other cases where Commerce has found this to be an export subsidy and trying to extend to. [00:32:16] Speaker 05: Commerce already found that this exact determination of the countervailing duty imposed for the export bias credit program [00:32:25] Speaker 05: is the basis for making the adjustment in the first review. [00:32:30] Speaker 05: I want to make a few more points. [00:32:36] Speaker 05: One, there was no change in practice. [00:32:40] Speaker 05: We explained in our brief that the commerce and citations and then now solo world citations to changes in practice were too preliminary. [00:32:52] Speaker 05: determinations and investigations for which the respondents did not respond, which is not the case here. [00:32:59] Speaker 05: Here the government of China responded, but there was some deficiency with regard to use of the program, at least perceived by commerce. [00:33:12] Speaker 05: The other point is that this does not, by applying the adjustment, it does not wash out the deterrent [00:33:19] Speaker 05: intended by applying AFA for non-cooperative parties. [00:33:23] Speaker 05: We explain in our brief that due to several factors in the anti-dumping calculation, it is not a wash. [00:33:30] Speaker 05: Like when it's applied here, [00:33:33] Speaker 05: We do not get a full 10.54% adjustment to the dumping rate due to several factors. [00:33:43] Speaker 05: I mean, it could be that you're not dumping. [00:33:45] Speaker 05: And so increasing the rate another 10% or increasing the price by another 10% doesn't result in any change or benefit to the responding party. [00:33:55] Speaker 05: I think the government addressed our issues on solar glass, so on that issue I will, [00:34:03] Speaker 05: That's on the brief. [00:34:04] Speaker 05: And if your honors have questions, I'll stop. [00:34:10] Speaker 03: OK. [00:34:10] Speaker 03: Thank you, Mr. Freed. [00:34:12] Speaker 03: Mr. Brightbell, you have two minutes. [00:34:15] Speaker 07: Thank you, your honor. [00:34:16] Speaker 07: Just in response to the EXIM point and the questions, but I think the clearest place that states what the department's finding was in the countervailing duty case is that Appendix 121, the public version appendix, where [00:34:32] Speaker 07: The department states that the department did not, I'm quoting, the department did not make a determination in the CVD investigation of certain solar products from the PRC that the export buyers credit program was an export subsidy. [00:34:46] Speaker 07: Rather, the department's determination to countervail the program was based on facts otherwise available with an adverse inference as a result of non-cooperation by the government of China. [00:34:58] Speaker 07: and the department did not make a determination that the program in question was contingent on export performance. [00:35:04] Speaker 04: Mr. Brighto, this is Judge Chen. [00:35:08] Speaker 04: You block quoted in your brief, your blue brief, pages 24 and 25, the actual findings that were made by Commerce in the first Administrator Review memo. [00:35:24] Speaker 04: And it says, it leads us [00:35:26] Speaker 04: As explained in the Use of Facts Otherwise Available and Adverse Inferences section above, we are determining, relying upon AFA, that both companies use this program during the period of review. [00:35:40] Speaker 04: We find that financing from the EXIM Bank under this program constitutes a financial contribution with the meaning of the Act. [00:35:48] Speaker 04: We further find that this program is specific because it is contingent upon export performance within the meaning of the Act. [00:35:56] Speaker 04: So when it says it found financial contribution and that the program was specific, aren't those the elements of finding that something is an export subsidy? [00:36:12] Speaker 07: Yes, Your Honor, but this was a finding made in the solar cells case, not the solar products case, which is the case that we're talking about. [00:36:19] Speaker 07: So in an unrelated proceeding, different proceeding, [00:36:23] Speaker 07: They did make this finding of specificity, but in this proceeding on that anti-dumping and countervailing duty records, they did not. [00:36:31] Speaker 07: So, and this is what the lower court partially quoted was, again, from the different case, the solar cells case, rather than these cases, which are the solar module or solar products case. [00:36:46] Speaker 03: So, again, the whole point here is... And what you quote from 121, [00:36:51] Speaker 03: is not the countervailing duty case, right? [00:36:55] Speaker 07: That's right. [00:36:56] Speaker 07: Your Honor, it's a summary of what the department stated its position was in the CBD case. [00:37:04] Speaker 07: Yes. [00:37:05] Speaker 07: So it's from the anti-dumping decision memo in this case. [00:37:10] Speaker 07: So with that, we think that Commerce is entitled to deference based on its ruling and based on its order. [00:37:18] Speaker 06: And the court mistakenly [00:37:20] Speaker 07: reinterpreted that order in this case. [00:37:27] Speaker 03: Thank you very much. [00:37:28] Speaker 03: Thank you, Mr. Brightville. [00:37:29] Speaker 03: Thank all counsel. [00:37:30] Speaker 03: The case is submitted. [00:37:31] Speaker 03: That concludes our session for this morning. [00:37:35] Speaker 05: The Honorable Court is adjourned until tomorrow morning at 10 a.m.