CIT Judge Baker Remands Parts of CVD Investigation on Malaysian Wind Towers, Sustains Others
Court of International Trade Judge M. Miller Baker partly remanded and partly sustained Dec. 5 the Commerce Department’s countervailing duty investigation on wind towers from Malaysia, saying Commerce failed to answer the “basic” question of how it now calculates the denominator in an entered value adjustment decision and didn’t address concerns about the use of land prices from one Malaysian state as a benchmark for another's.
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On the other hand, Baker sustained the use of Singapore as a Tier III benchmark for electricity. He said countries selected for Tier III benchmarks don’t need to be economically comparable to the country under review.
Baker explained that mandatory respondent CS Wind was challenging Commerce’s refusal to grant it an entered value adjustment, which would increase its entries’ U.S. sales value in the CVD calculation when its U.S. prices were marked up by an affiliate reseller.
“At least in previous years, Commerce did this ‘by calculating the mark-up ratio on U.S. sales and then multiplying that ratio by the original subsidy rate,’” Baker said. “But in more recent years, Commerce appears to have adopted a different methodology for calculating an entered-value adjustment.”
This new method, he said, was apparently to change the denominator in a CVD calculation “from the respondent’s total worldwide export sales to the affiliate’s marked-up total worldwide export sales.” That method “does not specifically account for a U.S. mark-up and does not require U.S.-specific sales data,” he said, quoting Commerce’s decision in its Chinese solar cells investigation.
In the past, Commerce has required an exporter seeking an entered value adjustment to meet six requirements. One, the third, is that the exporter’s “U.S. invoice establishes the customs value to which the CVD duties are applied.” When CS Wind didn’t provide that information for all of its entries, the department denied its request for an entered value adjustment, Baker said.
He agreed with CS Wind that, if Commerce didn’t need U.S.-specific sales data to make the adjustment anymore, it shouldn’t have rejected CS Wind’s request for failing to provide that data.
The change “begs the question ... whether continued use of this test is reasonable in view of the apparently changed methodology,” he said.
“The court uses the term ‘apparently’ because the Department here neglected to articulate what methodology it uses to calculate the denominator,” he continued. “A remand is thus necessary for the agency to undertake this basic exercise.”
Baker also addressed CS Wind’s argument that it didn’t receive a benefit from a Malaysian import fee exemption program. The exporter argued that, although Malaysia doesn’t track inputs, its own records demonstrated that it didn’t use any inputs it imported during the review period in wind towers sold in Malaysia -- as it made “limited, if any, home-country sales.”
The judge said that didn’t matter. The relevant regulation, 19 CFR 351.519(a)(4), only bars Commerce from countervailing import fee exemptions when the country under review either has a formal process of tracking imported inputs or can show it did so in a particular circumstance, he said. Otherwise, the regulation “presumes” that a financial benefit has been conferred, he said.
Baker agreed, however, with CS Wind’s argument that Commerce should have considered the difference in land prices between two Malaysian states when using one’s prices as a benchmark to countervail land rights provided for less-than-adequate remuneration.
As a Tier I benchmark, Commerce used the lease of a property located in Penang, Baker said. But the department didn’t consider evidence provided by CS Wind that Penang’s land prices are “about three times higher” than Pahang’s, the jurisdiction in which CS Wind’s production facility is located, the judge said. It also didn’t consider evidence that CS Wind’s Pahang lot wasn’t the same size as the Penang lot, he said. He remanded for both reasons.
And the judge sustained the Singaporean Tier III electricity benchmark Commerce selected to countervail Malaysia’s provision of electricity to CS Wind for less-than-adequate remuneration.
The exporter argued that the benchmark was inadequate because Singapore and Malaysia weren’t economically comparable, but geographic proximity matters more to Tier III benchmark selection decisions, Baker said. Further, Malaysia’s and Singapore’s electricity grids are interconnected, he observed, making the use of Singapore even more appropriate.
(CS Wind Malaysia v. United States, Slip Op. 25-149, CIT # 24-00079, dated 12/05/2025; Judge: M. Miller Baker; Attorneys: Jarrod Goldfeder of Trade Pacific for plaintiffs CS Wind Malaysia and CS Wind Corporation; Isabelle Aubrun for defendant U.S. government; Alan Price of Wiley Rein for defendant-intervenor Wind Tower Trade Coalition)