Commerce Should Use Just Xeneta Data to Value Ocean Freight, CVD Respondent Argues
The Commerce Department violated the law by simply averaging ocean freight data from Xeneta and Descartes to value ocean freight in a benchmark calculation in a countervailing duty review, respondent Risen Energy Co. argued in a Sept. 1 complaint at the Court of International Trade. Commerce should have used just the Xeneta data since it is the only source that fulfilled the agency's regulatory guidelines for the cost of ocean freight, Risen said. The respondent also railed against Commerce's use of total adverse facts available over Risen's U.S. customers' alleged use of China's Export Buyer's Credit Program -- a move repeatedly struck down by the trade court (Risen Energy Co. v. United States, CIT #22-00231).
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The case concerns the 2019 administrative review of the countervailing duty order on crystalline silicon photovoltaic cells from China in which Risen and JA Solar Technology Yangzhou Co. served as the two mandatory respondents. In the review, Risen, JA and the CVD petitioner submitted benchmark information for ocean freight data. Data submitted from Xeneta showed hundreds of data points per day per each international route, including various international routes to China, Risen said. Data also was submitted from Descartes, but it had limited data points for routes only from the U.S. to China, the respondent told the trade court.
Commerce took a simple average of the two data sets -- a move now contested by Risen at CIT. The respondent argued administratively that the Xeneta data should be relied upon solely since it is "the only source that fulfilled the regulatory guidelines for that cost." Alternatively, Risen said that the Descartes data only shows routes from the U.S. to China, so it should only be averaged as one route with the Xeneta data.
In the review, as it has done many times before, Commerce used total AFA over Risen's alleged use of the EBCP, finding that AFA was warranted since the Chinese government failed to provide two pieces of information over how the program works. The trade court has repeatedly found that this does not stand as proper grounds to use AFA. Risen pointed to many of these cases in the complaint, arguing that the use of total AFA in this way is illegal since there is no evidence showing that Risen or its U.S. customers used the EBCP.