CIT Grants Voluntary Partial Remand Request in CVD Case Over Exporter's Objections

The Court of International Trade in a July 20 order granted the Commerce Department's request for a partial voluntary remand despite the mandatory respondent's objections. Judge Jane Restani allowed Commerce to take another look at its final results in the countervailing duty investigation into utility scale wind towers from Indonesia to reconsider whether it “improperly included an export subsidy in its upstream subsidy calculation.” The issue was broached with the court “some time ago,” so a simple decision on the matter appears likely, the judge said (PT. Kenertec Power System v. U.S., CIT #20-03687). The government's remand results are due Aug. 19, and the parties have until Aug. 23 to notify the court if a supplemental briefing is required, the order said.

Commerce wanted the partial remand to potentially recalculate PT. Kenertec Power System's CVD rate since the respondent received the all-other respondents rate in the case (see 2107140034). During 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 the all-others rate in that investigation on one of the mandatory respondents, Krakatau Steel, by finding that it received countervailable subsidies.

Part of Krakatau's CVD margin was derived from upstream subsidies of 5.7% through Krakatau's purchases of cut-to-length steel plate from Krakatau POSCO. Kenertec says Commerce found upstream subsidies by identifying subsidy rates from the CTL plate from Indonesia that were specific to Krakatau Steel and based on adverse facts available, including a loan program that Commerce previously ruled was an export subsidy. Commerce cannot rule in Kenertec's case that a previously determined export subsidy is an upstream subsidy.

Kenertec opposed Commerce's motion in its own filing, arguing that the court “should deny the Government’s vague request for a voluntary remand” and instead find that Commerce's “delayed request constitutes waiver of its opportunity to defend Commerce’s upstream subsidy calculation, and proceed to rule on the merits.” The remand request should not have been allowed to proceed since it was filed so late in the case, the respondent said. Further, “a request for a 'do-over' to 'reconsider' its determination without clearly stating its intentions, and without the Court first ruling on the merits, is particularly unnecessary in light of the clear legal deficiencies in Commerce’s calculations [and] the delay in requesting the remand,” Kenertec argued.