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.