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Commerce Issues Final Determination in AD/CVD Investigation on Utility Scale Wind Towers from India


Commerce Issues Final Determination in AD/CVD Investigation on Utility Scale Wind Towers from India

The Department of Commerce published its Final Determination in the antidumping (“AD”) and countervailing duty (“CVD”) investigation of Utility Scale Wind Towers from India on October 13, 2021, which investigation was initiated in November 2020. The AD/CVD petition was filed by Wind Tower Trade Coalition (“Petitioner”). The mandatory respondent selected by Commerce in both the antidumping and countervailing duty investigation was Vestas Wind Technology India Private Limited (“Vestas”).

The additional producers/exporters Commerce included in the antidumping investigation were: Anand Engineering Products Private Limited, Windar Renewable Energy Private Limited, and GRI Towers India Private Limited.

The additional producers/exporters included in the countervailing duty investigation were: Naiks Brass & Iron Works, Nordex India Pvt. Ltd., Prommada Hindustan Pvt. Ltd., Suzlon Energy Ltd., Vinayaka Energy Tek, Wish Energy Solutions Pvt. Ltd., and Zeeco India Pvt. Ltd.

In its final determination, Commerce found that (1) imports of wind towers from India are being, or are likely to be, sold in the United States, at less than fair value and (2) that countervailable subsidies are being provided to producers and exporters of wind towers from India. As a result of these findings, Commerce instituted:

-A 54.03 percent weighted-average dumping margin on exports by Vestas and the five other producer/exporters from India;

-A 2.25 percent countervailable subsidy rate for Vestas and all others that were not specifically investigated; and

-A 397.70 percent countervailable subsidy rate for the seven other producer/exporters.

The factsheet detailing these amounts can be found here.

In the anti-dumping investigation concerning whether Vestas and the other producers/exporters were selling or likely to be selling at less than fair value (“LTFV”), Commerce based its calculation of the dumping margin “entirely on the basis of facts available with the application of adverse inferences (“AFA”).” This decision was mainly due to a lack of documentation and cooperation from Vestas and the five other producers/exporters. Despite many briefs filed by parties opposing the use of AFA, Commerce upheld its Preliminary Determination and adopted it in full.

Notably, Commerce did not receive the necessary information from Vestas or the five other producer/exporters by the agreed-upon deadline. While Vestas did eventually submit the information requested, Commerce stated that it would only accept untimely filed information in extraordinary circumstances. Vestas argued that the COVID-19 pandemic had hindered it from timely filing its responses. However, Commerce noted that Vestas was using a U.S. based law-firm and that the filings were made by the law firm from the law firm’s U.S. office location. Therefore, the extraordinary COVID-19 impact in India was not affecting Vestas’ ability to timely file.

In the countervailable subsidy rate calculation, Commerce reversed its Preliminary Determination to use AFA to calculate the subsidy rate for Vestas. Commerce stated that for the Final Determination, based on the information it received in lieu of its onsite investigation, Commerce was able to investigate and verify all of the information provided by Vestas and “[agreed] with Vestas that use of facts otherwise available is no longer necessary because all necessary information is on the record.” However, Commerce maintained that AFA was the correct calculation for the other producers/exporters to calculate the countervailable subsidy rate due to a lack of cooperation. Specifically, none of the seven other producers/exporters responded to Commerce’s quantity & value questionnaire; therefore, Commerce held that AFA was the correct calculation because the companies “failed to cooperate to the best of their ability….”

The next step in this process will be for the International Trade Commission (“ITC”) to complete its investigation and make a determination “as to whether the domestic industry in the United States is materially injured, or threatened with material injury.” If the ITC decides that the domestic industry is being harmed, then Commerce will issue AD/CVD Orders and instruct Customs and Border Protection (“CBP”) to implement the duties described above. If the AD/CVD orders are issued, they will remain in force for a period of five years after which there will be a mandatory sunset review to determine the continuation of dumping and/or subsidization. Also, for the next five years, Commerce will continue to conduct annual reviews of the AD/CVD rates on an ongoing basis, which might be an avenue to providing relief for certain manufacturers and exporters.


Nithya Nagarajan is a Washington-based partner with the law firm Husch Blackwell LLP. She practices in the International Trade & Supply Chain group of the firm’s Technology, Manufacturing & Transportation industry team.

section 232

U.S. Court of International Trade Stays Department of Commerce’s Motion for Voluntary Remand Setting Course for Court-Annexed Mediation in Section 232 Exclusions Dispute

On September 30, 2021, the Department of Commerce (“Commerce”) filed a motion requesting a voluntary remand to review 502 Section 232 exclusion request denials it issued to Voestalpine High Performance Metals Corporation and Ergo Specialty Steels, Incorporated (collectively “Voestalpine, et al.”) beginning in 2018. Specifically, Commerce in its motion acknowledges that it lacks documentation explaining why it rejected all 502 requests. This motion for voluntary remand comes only a couple months after Commerce requested the same type of voluntary remand in six separate Section 232 appeals.

In its September 15, 2021, order, the court rejected Commerce’s motions for voluntary remand and instead consolidated the six separate cases concerning similar denials of Section 232 exclusion requests and collectively referred the cases to court-annexed mediation. Specifically, the court ordered that (1) all cases are stayed for a maximum of 90 days beginning September 15th in which time mediation should be conducted and concluded, and (2) all cases be returned to the active calendar unless settlement is reached during the mediation process.

The court seems set to follow the same course in Voestalpine et al.’s appeal. On October 1, 2021, the CIT issued an order (1) staying Plaintiffs time to respond to Commerce’s September 30th motion until further notice and (2) requiring both parties to file statements on whether this case should be referred to court-annexed mediation.

Commerce in its statement filed on October 6, 2021, opposes the court-annexed mediation. In its statement, Commerce argues that the differences in the products that are the subject of the exclusion requests do not allow for a speedy resolution through mediation. Commerce also points out that in Voestalpine et al.’s initial complaint, the relief sought was a remand to Commerce.

Voestalpine et al., in its statement filed on October 8, 2021, rebuts both of Commerce’s arguments and supports court-annexed mediation. In its statement, Voestalpine et al. points out that the issue is not that Commerce denied the exclusion requests, but rather that it did not include the reasoning behind any denials at issue. Voestalpine et al. also argues that it did not seek relief through remand to Commerce merely for reconsideration of the exclusion requests. Rather, it sought a remand to Commerce with a requirement “to refund the Section 232 tariffs previously paid by Plaintiffs.”

It appears there may be a trend developing. The court seems reluctant to allow these actions to fully go back to Commerce while, at the same time, it is reluctant to provide plaintiffs the relief sought: a declaration that Commerce’s denials were unlawful.

It may also be that the court is waiting to see whether global politics will impact the status of Section 232 tariffs in the near future. Either way, it seems likely that this case will be referred to the same mediation process as the cases earlier this year and that a trend of court-annexed mediation is developing where Section 232 exclusion request denials are concerned.

As a reminder, the Trump Administration instituted Section 232 national security tariffs on steel and aluminum in 2018 and also set up an exclusion process for importers if they met certain qualifications and were able to demonstrate that the product was not available from any other source and did not harm national security interests. The exclusions were granted on a product-specific and importer-specific basis.


Nithya Nagarajan is a Washington-based partner with the law firm Husch Blackwell LLP. She practices in the International Trade & Supply Chain group of the firm’s Technology, Manufacturing & Transportation industry team.

mobile cranes

Commerce Announces New Section 232 Investigation on Imports of Mobile Cranes

On May 6, 2020, U.S. Secretary of Commerce Wilbur Ross announced that the Commerce will initiate an investigation to examine whether imports of mobile cranes were threatening to impair the national security. Commerce will conduct an examination into both the quantities or circumstances of mobile crane imports.

Section 232 investigations are conducted under Section 232 of the Trade Expansion Act of 1962 and authorizes the President of the United States, through tariffs or other means, to adjust the imports of goods or materials from other countries if it deems the quantity or circumstances surrounding these imports threaten national security.

This new investigation was initiated after the filing of a petition by domestic producer, The Manitowoc Company, Inc. (Manitowoc), on December 19, 2019, requesting that the Department of Commerce launch an investigation into mobile crane imports under Section 232 of the Trade Expansion Act of 1962, as amended. Similar to all other 232 investigations, this one will also be conducted by Commerce’s Bureau of Industry and Security. Commerce in its announcement stated that it will be providing an opportunity for public comment once the initiation is published in the Federal Register.

Manitowoc’s petition alleges that increased imports of low-priced mobile cranes, particularly from Germany, Austria, and Japan, and intellectual property (IP) infringement by foreign competition, have harmed the domestic mobile crane manufacturing industry. The Department of Homeland Security has identified mobile cranes as a critical industry because of their extensive use in national defense applications, as well as in critical infrastructure sectors.

While the text of the petition has yet to be made available to the public for review, according to Commerce’s press release the “petitioner claims the low-priced imports and IP infringement resulted in the closure of one of its two production facilities in the United States and eliminated hundreds of skilled manufacturing jobs in Wisconsin.” In addition, Manitowoc alleges that imports have increased “152% between 2014 and 2019.” This increase in imports coupled with an earlier 2015 finding that a Chinese crane manufacturer “misappropriated six trade secrets and infringed on a patent” which resulted in the ITC banning the sale of a Chinese crane in the United States led to the filing of the case.


Nithya Nagarajan is a Washington-based partner with the law firm Husch Blackwell LLP. She practices in the International Trade & Supply Chain group of the firm’s Technology, Manufacturing & Transportation industry team.

countervailing duty

Commerce Modifies Countervailing Duty Regulations to Address Currency Undervaluation

The Commerce Department issued its final rule amending the countervailing duty regulations to address potential currency undervaluation. This revision to Commerce’s regulations will take effect in 60 days and will apply to all new investigations and administrative reviews that begin on or after April 6, 2020. The new rules would effectively clear the way for the U.S. to start applying punitive tariffs on goods from countries accused of having undervalued currencies.

Under the revised regulations, Commerce in the conduct of its countervailing duty proceedings will now have the authority to take into consideration the real effective exchange rates to determine the extent to which a currency is undervalued. They will also be able to seek the Treasury Department’s formal, non-binding evaluation on whether the foreign government’s actions were responsible for the undervaluation. If Commerce determines that there is undervaluation of the currency and that the undervaluation resulted from government action, Commerce will then potentially consider currency exchanges by the exporters and/or traders to be a subsidy given that the exporter or trader would effectively receive more domestic currency in return for their exchanges of U.S. dollars than they otherwise would have been able to receive under the old rules.

In the conduct of its countervailing duty investigations and reviews, Commerce will now look at each individual exporter’s currency exchanges, and specifically, the amount of additional domestic currency received in exchanges due to undervaluation. It will then potentially add the currency subsidy amount to the exporter’s overall countervailing duty rate. The move would give new muscle to U.S. complaints about currency manipulation that have in the past targeted economies like China and Japan and thus turn the more than $6 trillion-a-day global currency market into a new battlefield in the Trump administration’s trade wars. The new rule was opposed by the Treasury Department when it was first proposed in May 2019 as it would allow U.S. companies to file trade complaints with the Commerce Department over specific imported products by treating undervalued currencies as a form of an unfair subsidy.

The new regulations have far-reaching effects as it would allow the U.S. to impose countervailing duties on goods from countries accused of manipulating their currencies, even in cases where they were not officially found to be a currency manipulator by the U.S. Department of Treasury. Previous administrations have examined this issue but have delayed or resisted efforts to take such actions as it could potentially lead to currency wars amongst trading partners.

Commerce’s announcement is the result of campaign promises from the 2016 election. “This Currency Rule is an important step in ensuring that unfair trade practices are properly remedied,” said Secretary of Commerce Wilbur Ross in a statement. “While successive administrations have balked at countervailing foreign currency subsidies, the Trump Administration is taking action to level the playing field for American businesses and workers.”

In a question and answer section attached to Monday’s announcement, the Commerce Department said it would preserve the final power to make any determination about whether a currency’s value presented an unfair subsidy for that country’s exporters. The statutes governing Treasury’s mandate to monitor currencies and Commerce’s power to impose anti-subsidy duties had different criteria, Commerce said.

“Hence, the two processes may result in different outcomes as to a particular country, theoretically including the possibility of applying countervailing duties to a country that does not meet the criteria for designation under the laws Treasury administers,” the statement said.

Commerce also said the new rule would allow it to specifically impose currency-related tariffs against China even if the Treasury did not label it a currency manipulator. The Treasury last month lifted a designation of China as a manipulator just days before Trump signed a “Phase One” trade deal with China that included language on currencies, though the new rule appears to give the U.S. powers to act that go beyond what was included in last month’s deal.

The Commerce Department put some purported caveats on its powers, saying it would “not normally include monetary and related credit policy of an independent central bank or monetary authority” in determining whether foreign governments had acted inappropriately to weaken currencies. “Commerce will seek and generally defer to Treasury’s expertise in currency matters,” it said.  This statement, however, leaves a lot of room open for potential unilateral action by Commerce, as Commerce has reserved for itself the authority to find that undervaluation exists, even if Treasury in its bi-annual report makes a determination that a particular currency is artificially weak but not undervalued. This type of broad authority is similar to Commerce’s authority to conduct Particular Market Situation (“PMS”) investigations resulting in contested decisions and appeals to the Court of International Trade.