Commerce Moves for Voluntary Remand to Reconsider Export Subsidy Finding in CVD Case

The Commerce Department wants a partial remand of its final determination in a countervailing duty investigation on utility scale wind towers from Indonesia, to reconsider whether it erroneously identified an upstream subsidy in the case as an export subsidy. In a July 9 motion for partial remand in the Court of International Trade, the government defense said that it wants the chance to review this determination to see if an error was committed and to potentially recalculate the resulting countervailing duty rate for the plaintiff in the case, PT. Kenertec Power System, which received the all-other respondents rate in the investigation (PT. Kenertec Power System v. United States, CIT #20-03687).

In the investigation, Commerce partially relied on the results from a separate CVD investigation into cut-to-length steel plate from Indonesia. The agency said it based its all-others rate in that investigation on one of the mandatory respondents, Krakatau Steel, by finding that it received countervailable subsidies amounting to 47.71%. Part of that number was derived from upstream subsidies of 5.7% through Krakatau's purchases of cut-to-length steel plate from Krakatau POSCO. Kenertec says that Commerce "impermissibly found the existence of upstream subsidies by incorporating into its analysis subsidy rates from the CTL Plate from Indonesia that were specific to Krakatau Steel and based on adverse facts available, including the Rediscount Loan Program that Commerce previously has found to be an export subsidy."

Commerce now wants a shot to internally review this determination. "Our request asks for a remand to allow Commerce to evaluate whether it made an error in its upstream subsidy determination and, if so, recalculate the countervailing duty rate for Kenertec and all other Indonesian wind tower producers and exporters," Commerce said. "Thus, the scope of the requested remand is appropriate because it is limited to the aspect of Commerce’s final determination that is potentially erroneous."