CIT Grants US Request to Reconsider Use of Descartes Data in Setting Ocean Freight Benchmark

The Court of International Trade on Dec. 12 granted the government's request for a remand so the Commerce Department can reconsider its use of Descartes data in calculating an ocean freight benchmark. Sending back the 2021 countervailing duty review on solar products from China, Judge Jane Restani said that on remand Commerce should consider the court's ruling in a separate case that addresses the use of Descartes data in this context, "as well the court's other rulings on the ocean freight issue."

In addition, the agency should "consider the statutory preference for a broadly based ocean freight rate for an [less than adequate remuneration] benchmark," the judge said. If other factors outweigh that interest and compel the use of a single data set, the court ordered Commerce to explain why that is appropriate "with as much numerical evidence as possible."

If this explanation fails, "Commerce should use a multiple route data base with such adjustments as are necessary and possible," Restani said.

In a separate matter on the 2017 administrative review of the CVD order on solar cells, the court was concerned about whether the Descartes data was appropriate to use to set a world market price when data from Xeneta gave global routes as compared with Descartes' U.S. focus (see 2312080027). The court also was worried about the Descartes data since it "appeared to be sourced from limited samples based on the data's tariff and freight forwarder codes, was for less than a container load, and some of the routes were from inland American cities, which could incur additional fees."

Even though the present review concerns a different time period and CVD order, Commerce said its decision regarding the Descartes data didn't appropriately address the court's concerns raised in the separate action (see 2312120031).

(Trina Solar (Changzhou) Science & Technology Co. v. United States, Slip Op. 23-174, CIT # 23-00219, dated 12/12/23; Judge: Jane Restani; Attorneys: Kenneth Hammer of Trade Pacific for plaintiffs led by Trina Solar (Changzhou) Science & Technology Co.; Joshua Kurland for defendant U.S. government; Laura El-Sabaawi of Wiley Rein for defendant-intervenor American Alliance for Solar Manufacturing)