CIT Sustains CVD Suit After Commerce Revises Ocean Freight Data

The Court of International Trade on March 21 sustained the Commerce Department's remand results in a countervailing duty case in which it "changed the way it calculated ocean freight." Since no party objected to the new calculation, Judge Jane Restani sustained the remand.

The remand results were filed as part of the 2021 countervailing duty review on crystalline silicon photovoltaic products from China and saw Commerce reverse its use of Descartes ocean freight data in various subsidy calculations (see 2402230031). Instead of using an average of Descartes and Xeneta data, the agency said it went solely with Xeneta data in response to to concerns from the trade court.

In a December decision, Restani granted the government's voluntary remand request to reconsider the Descartes data in light of a separate CIT decision addressing the use of the data in the same context. The court said Commerce didn't consider the potential impact that a small sample size from the Descartes data could have when affecting the comparability of the Descartes and Xeneta datasets (see 2312130022).

Commerce decided to drop its reliance on the Descartes data, while also noting that the Xeneta data "do[es] not contain surcharges for congestion, fuel, and peak season surcharges," based on Xeneta's own statements showing it didn't make these surcharges available until after the review period. The review result was a lowered CVD rate for exporter Trina Solar (Changzhou) Science & Technology Co. of 9.02%, down from 13.21%.

(Trina Solar (Changzhou) Science & Technology Co. v. United States, Slip Op. 24-36, CIT # 23-00219, dated 03/21/24; Judge: Jane Restani; Attorneys: Jonathan Freed of Trade Pacific for plaintiffs led by Trina Solar; Ravi Soopramanien for defendant U.S. government; Timothy Brightbill of Wiley Rein for defendant-intervenor American Alliance for Solar Manufacturing)