US Asks Trade Court for Remand in CVD Case to Reconsider Land, Ocean Freight Benchmarks

The U.S. asked the Court of International Trade for a voluntary remand in a countervailing duty case to reconsider the calculation of benchmark prices for land and ocean freight. The government said its practice regarding the calculation of these figures has evolved since the present case was brought by Risen Energy Co. and JA Solar on the 2019 review of the CVD order on solar cells from China (Risen Energy Co. v. United States, CIT Consol. # 22-00231).

Part of JA Solar's case said that Commerce's use of an average of data from a 2010 Coldwell Banker Richard Ellis report on land value information for Thailand and a report from the Malaysian Investment Development Authority violated the law. The U.S. noted that since its use of this data, the agency used a "different approach" in a different review with similar facts.

In particular, Commerce said the proper methodology for calculating land benchmarks is to "index land prices to the date of the purchase of the land-use rights" instead of to the review period, thus calculating a benchmark for each land-use rights purchase based on the data source most "contemporaneous" to the purchase. For a land-use rights purchase made in 2010, Commerce would use the Thai CBRE data, but for a 2019 purchase, it would use the MIDA data, the government clarified.

As a result of the updated practice, the U.S. asked for a remand so the agency can "reconsider whether the approach used in this case is appropriate in light of the developments in" Commerce's practice.

A remand was also requested for ocean freight to reflect another change in Commerce's practice. In the most recent review of the current CVD order, Commerce said that use of the Descartes data is not appropriate for a world market price -- the data that was used in the present review. The remand is needed since the Descartes data used here and the data used in the most recent review show "no material distinctions," the brief said.