CS Wind Malaysia Sdn. Bhd. et al v. United States

Slip Op. 25-149
UNITED STATES
COURT OF INTERNATIONAL TRADE
Court No. 24-00079
CS WIND MALAYSIA SDN. BHD. and
CS WIND CORPORATION,
Plaintiffs,
v.
UNITED STATES,
Defendant,
and
WIND TOWER TRADE COALITION,
Defendant-Intervenor.
Before: M. Miller Baker, Judge
OPINION
[Sustaining Commerce in part and remanding in part.]
Dated: December 5, 2025
Jarrod M. Goldfeder, Kenneth N. Hammer, and Sezi
Erdin, Trade Pacific PLLC, Washington, DC, on the
briefs for Plaintiffs.
Isabelle Aubrun, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, U.S. Department of Jus-
tice, Washington, DC, on the brief for Defendant. Of
counsel 	for 	Defendant 	was 	Brien 	Stonebreaker,
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Attorney, Office of the Chief Counsel for Trade En-
forcement & Compliance, U.S. Department of Com-
merce, Washington, DC.
Alan H. Price, Robert E. DeFrancesco III, Laura El-
Sabaawi, Derick G. Holt, and Kimberly A. Reynolds,
Wiley Rein LLP, Washington, DC, on the brief for De-
fendant-Intervenor.
Baker, Judge: A Malaysian producer and its South
Korean parent challenge certain aspects of the Depart-
ment of Commerce’s final determination in an admin-
istrative review of a countervailing duty order on wind
towers from the former nation. The court sustains the
agency in part and remands in part.
I
A country may bankroll key manufacturers, which
allows them in turn to sell products abroad at lower
prices and undercut—if not demolish—their overseas
competitors. To combat this practice, U.S. trade law
provides a remedy. When Commerce determines that
a foreign government subsidizes exported goods and
the International Trade Commission finds that such
imports injure domestic industry, the former agency
will impose a countervailing duty “equal to the amount
of 	the 	net 	countervailable 	subsidy.” 	19 	U.S.C.
§ 1671(a). To do so, it must find that “(1) [the foreign]
government provided a financial contribution (2) to a
specific industry and (3) a recipient within the indus-
try received a benefit as a result of that contribution.”
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Hyundai Steel Co. v. United States, 753 F. Supp. 3d
1355, 1356 (CIT 2025) (cleaned up) (quoting Fine Fur-
niture (Shanghai) Ltd. v. United States, 748 F.3d 1365,
1369 (Fed. Cir. 2014)). This case presents questions
about when a countervailable benefit exists and how it
is calculated.
II
In 2021, Commerce imposed countervailing duties
on utility-scale wind towers from Malaysia. 86 Fed.
Reg. 41,950. In the first administrative review of that
decree—covering most of 2021—the Department se-
lected producer CS Wind Malaysia Sdn. Bhd. as a
mandatory respondent. Appx1001.
After receiving certain information, the agency pre-
liminarily found that the company “received counter-
vailable 	subsidies 	during 	the” 	period 	of 	review.
Appx1000. Commerce reaffirmed that conclusion in its
final determination and imposed corresponding du-
ties. Appx1021–1022.
Invoking 	jurisdiction 	conferred 	by 	28 	U.S.C.
§ 1581(c), the Malaysian company and its South Ko-
rean parent (collectively CS Wind) filed this suit under
19 U.S.C. § 1516a(a)(2)(B)(i) to challenge its counter-
vailing duty rate. The Wind Tower Trade Coalition, a
group of domestic producers, intervened to defend
Commerce’s decision. The parties have fully briefed CS
Wind’s motion for judgment on the agency record,
which is ripe for decision.
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In § 1516a(a)(2) actions, “[t]he court shall hold un-
lawful any determination, finding, or conclusion found
. . . to be unsupported by substantial evidence on the
record, 	or 	otherwise 	not 	in 	accordance 	with 	law.”
19 	U.S.C. 	§ 	1516a(b)(1)(B)(i). 	The 	question 	is 	not
whether the court would have reached the same deci-
sion on the same record. Rather, it is whether the ad-
ministrative record as a whole permits Commerce’s
conclusion:
Substantial evidence has been defined as more
than a mere scintilla, as such relevant evidence
as a reasonable mind might accept as adequate
to support a conclusion. To determine if substan-
tial evidence exists, we review the record as a
whole, including evidence that supports as well
as evidence that fairly detracts from the sub-
stantiality of the evidence.
Nippon Steel Corp. v. United States, 337 F.3d 1373,
1379 (Fed. Cir. 2003) (cleaned up); see also SSIH
Equip. S.A. v. U.S. Int’l Trade Comm’n, 718 F.2d 365,
382 (Fed. Cir. 1983) (if Commerce makes a choice be-
tween “two fairly conflicting views,” the court may not
substitute its judgment even if its view would have
been different “had the matter been before it de novo”)
(quoting Universal Camera Corp. v. NLRB, 340 U.S.
474, 488 (1951)).
The court also reviews to ensure the agency en-
gaged in “reasoned decisionmaking,” meaning its re-
sult must be “within the scope” of its authority and
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“the process” it uses to reach that outcome “must be
logical and rational.” Michigan v. EPA, 576 U.S. 743,
750 (2015). The agency must “examine the relevant
data and articulate a satisfactory explanation . . . in-
cluding a rational connection between the facts found
and the choice made.” Motor Vehicle Mfrs. Ass’n of
U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S.
29, 43 (1983) (cleaned up). But courts will “uphold a
decision of less than ideal clarity if the agency’s path
may reasonably be discerned.” Id.
III
A
1
One way that foreign governments may provide a
countervailable benefit is to forgo collecting customs
duties on imports used by favored industries. Com-
merce 	has 	addressed 	this 	practice. 	See 	generally
19 C.F.R. § 351.519 (referring to such forgone customs
duties as “import charges”). As relevant here, a benefit
exists to the extent that the exemption covers imports
not consumed in making a beneficiary’s final exported
product. Id. § 351.519(a)(1)(ii). “If the Secretary deter-
mines” that an “exemption of import charges upon ex-
port confers a benefit,” the amount of the benefit is
“normally” the value of “import charges that otherwise
would have been paid on the inputs not consumed in
the production of the exported product . . . .” Id.
§ 351.519(a)(3)(ii).
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But 	the 	regulation 	prescribes 	an 	“exception” 	to
“paragraph (a)(3).” Id. § 351.519(a)(4). The Depart-
ment considers the entire amount of the refund—that
is, all import charges the company did not have to
pay—to confer a benefit unless either of two circum-
stances exists. Id. The first is where the foreign gov-
ernment uses a system to track what inputs are con-
sumed, and in what quantities, in making the exported
goods, and the system is reasonable, effective, and
based on generally accepted commercial practices in
the foreign country. Id. § 351.519(a)(4)(i). The second
applies when the foreign government uses no such sys-
tem—or has one that is unreasonable or ineffective—
but nonetheless does monitor inputs to confirm what
is used and in what amounts. Id. § 351.519(a)(4)(ii).
2
Commerce preliminarily found that CS Wind re-
ceived a countervailable benefit in the form of an ex-
emption from import charges for inputs not used in
making 	wind 	towers 	exported 	to 	this 	country.
Appx1011–1014. As relevant here, the Department
made 	two 	key 	findings 	for 	purposes 	of 	19 	C.F.R.
§ 351.519(a)(4). First, the Malaysian government did
not have a “system or procedure to confirm which in-
puts are consumed in the production of the exported
products and in what amounts.” Appx1013. Second,
neither did it conduct “an examination of actual inputs
involved” for the same end. Appx1014.
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The company did not dispute those findings. It in-
stead argued that because its records showed that it
made limited, if any, home-country sales, it could not
have received any benefit for countervailing duty pur-
poses. Appx1052. In effect, it contended that its own
records rendered the lack of monitoring by the Malay-
sian government beside the point.
In its final decision, the Department rejected that
argument, explaining that under § 351.519(a)(4) an
exporter’s records are irrelevant to whether the for-
eign government satisfies the regulation. Appx1052.
Here, it was undisputed that Malaysian authorities
neither “ha[d] an independent mechanism in place to
confirm the quantity of raw material inputs” nor “con-
ducted an examination of actual inputs involved to
confirm which [ones] are consumed in the production
of the exported product.” Id. Therefore, Commerce
found 	the 	exemption’s 	full 	value 	countervailable.
Appx1053.
CS Wind now argues that the Department unlaw-
fully applied § 351.519(a)(4)(i) without first making
the “threshold determination of whether a benefit is
conferred under . . . § 351.519(a)(1)(ii).” ECF 49, at 25.
The crux of its argument is its characterization of
§ 351.519(a)(4) as an exception merely to “the method-
ology prescribed by paragraph (a)(3) for calculating the
amount of [the] benefit.” Id. at 26 (emphasis added).
Absent any finding of a benefit, so the argument goes,
there’s nothing to calculate.
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The company misapprehends § 351.519(a)(4). In
relevant part, it provides that “[n]otwithstanding par-
agraph (a)(3) of this section, the Secretary will con-
sider the entire amount of an exemption . . . to confer
a benefit, unless” the agency determines that either
criterion 	discussed 	above 	is 	satisfied. 	19 	C.F.R.
§ 351.519(a)(4). Critically, the superordinating word—
“notwithstanding”—applies 	to 	all 	parts 	of
§ 351.519(a)(3), not merely—as the company would
have it—to “the methodology prescribed by paragraph
(a)(3) for calculating the 	amount 	of [the] benefit.”
ECF 49, at 26 (emphasis in original). As a result, the
language in § 351.519(a)(3)(ii) on which CS Wind im-
plicitly relies—“[i]f the Secretary determines that the
exemption of import charges upon export confers a
benefit” (emphasis added)—does not apply when nei-
ther of the criteria of § 351.519(a)(4) is satisfied.
Thus, 	contrary 	to 	the 	company’s 	argument, 	it
doesn’t matter that according to its records, it received
no “benefit” because its receipt of duty exemptions was
limited to inputs for export sales. As the government
correctly puts it, the regulation “presum[es]” that all
such exemptions are a benefit unless the export coun-
try government “demonstrate[s] that it has met the
criteria found in 19 C.F.R. § 351.519(a)(4).” ECF 47,
at 25. As it’s undisputed that the Malaysian govern-
ment failed to do that here, the court sustains Com-
merce’s determination that the full value of duty ex-
emptions that CS Wind received conferred a counter-
vailable benefit.
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B
1
Another way that a foreign government can provide
a countervailable benefit to an exporter is to supply
“goods or services . . . for less than adequate remuner-
ation.” 19 U.S.C. § 1677(5)(E)(iv). A regulation ex-
plains that Commerce normally measures the suffi-
ciency of payment for these purposes “by comparing
the government price to a market-determined price for
the good or service resulting from actual transactions
in 	the 	country 	in 	question.” 	19 	C.F.R.
§ 351.511(a)(2)(i). 1 The Department and litigants call
this procedure a “tier-one” benchmark.
But sometimes there is no usable “market-deter-
mined price” for comparison. In such cases, the agency
turns to “tier two” and compares the foreign govern-
ment’s price “to a world market price where it is rea-
sonable to conclude that [the latter] would be available
to 	purchasers 	in 	the 	country 	in 	question.” 	Id.
§ 351.511(a)(2)(ii). If there is more than one such world
market price, Commerce averages them “to the extent
practicable, making due allowance for factors affecting
comparability.” Id.
If, in turn, no such world market price is available,
“tier three” applies, and the Department examines
1 Commerce amended this regulation in 2024. The pre-2024
version applies here.
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“whether the government price is consistent with mar-
ket principles.” Id. § 351.511(a)(2)(iii). If the agency
finds no such consistency, “it will look to construct an
external benchmark.” Canadian Solar Inc. v. United
States, 537 F. Supp. 3d 1380, 1389 n.6 (CIT 2021) (cit-
ing +DEDü 6LQDL 9H 7LEEL *D]ODU ,VWLKVDO (QGVWULVL
$û v. United States, 459 F. Supp. 3d 1341, 1348 n.13
(CIT 2020)).
2
The Department preliminarily found that CS Wind
received a countervailable benefit because the Malay-
sian government leased land to the company for less-
than-adequate remuneration. Appx1005; Appx1007–
1008. Applying a tier-one benchmark to gauge what a
market-based rental rate would have been, the agency
looked to a publication (the Ellis report) that listed
such rates for industrial land in Malaysia during the
relevant 	period. 	Appx1005. 	The 	agency 	selected 	a
lease of a manufacturing property in the state of Pe-
nang as a proxy. Id.; Appx1008.
CS Wind had proposed that Commerce instead use
rental prices reported by the Malaysia Investment De-
velopment Authority. The Department rejected those
figures because the source did not explain either their
provenance or whether they were government or pri-
vate transactions. Appx1005.
The company disagreed and continued to urge the
agency to use the Authority’s data. Appx5592–5596. It
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noted that this information reflected a range of rates,
whereas the Department used only a single transac-
tion 	from 	the 	Ellis 	Report. 	Appx5592, 	Appx5595.
Moreover, the Authority’s data came from the same
Malaysian jurisdiction, Pahang, where CS Wind’s fa-
cility is located. The Ellis report information, on the
other 	hand, 	came 	from 	a 	different 	state, 	Penang,
where 	real 	estate 	costs 	are 	considerably 	higher.
Appx5595. Finally, the company argued in the alter-
native that “if the Department determines that the
rental pricing data from Penang . . . is comparable to
that of industrial facility pricing in Pahang,” it “should
average the . . . rental prices on the record in order to
derive a benchmark . . . .” Appx5596.
In its final decision, the Department again used the
Penang transaction price from the Ellis report. It ex-
plained that this choice “was appropriate because the
rental land was . . . roughly comparable in size to CS
Wind’s . . . , was . . . of a similar nature (i.e., industrial),
and also reflected a transaction between private par-
ties.” Appx1038.
Even so, the agency “agree[d] with CS Wind that
reliance on a second benchmark source would also be
appropriate.” Id. Although Commerce had reserva-
tions about the Authority’s data as previously ex-
pressed, it was “based on multiple transaction prices
for the particular locales in question.” Id. The Depart-
ment had also previously used that source in other pro-
ceedings. Id. The agency therefore found it appropriate
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to average that benchmark with the Ellis report infor-
mation, as doing so was “consistent with [its] general
practice with multiple usable sources.” Appx1038–
1039. This revised approach reduced the company’s
countervailing duty rate based on the land rental.
3
CS Wind now challenges the Department’s calcula-
tion of the adequacy of remuneration for the property
lease from the Malaysian government. The company
points to the regulation’s tier-one requirement that
the agency consider “product similarity . . . and other
factors 	affecting 	comparability.” 	19 	C.F.R.
§ 351.511(a)(2)(i) (emphasis added). It then argues
that 	Commerce 	ignored 	record 	evidence 	that 	land
rental rates for a factory in Penang (according to Ellis)
were about three times higher than in Pahang (as re-
ported by the Authority) during the same period. See
ECF 49, at 55 (citing Appx5868–5873, Appx10080).
The Department “failed to explain why it was reason-
able to include the Penang land transaction” despite
the pricing disparity. Id. CS Wind also contends that
Commerce 	ignored 	the 	size 	difference 	between 	its
(larger) lot in Pahang and the parcel cited in the Ellis
data. Id. at 56. The company maintains that these fail-
ures rendered the agency’s use of the Ellis figures ar-
bitrary.
The government does not defend the price compa-
rability of the Ellis data. Instead, it asserts that “Com-
merce determined that both sources offered usable,
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Ct. No. 24-00079 	Page 13
albeit imperfect, benchmark prices.” ECF 47, at 49.
But the Department made no such finding. It simply—
and impermissibly—elided CS Wind’s argument that
the Ellis rental price in Penang is not comparable to
its lease rate in Pahang due to the disparity in real
estate costs between the two Malaysian jurisdictions.
Cf. Özdemir Boru San. ve Tic. Ltd. Sti. v. United
States, 273 F. Supp. 3d 1225, 1252 (CIT 2017) (“Com-
merce must consider relevant record evidence in deter-
mining the comparability of land parcels it uses in cre-
ating a reasonable benchmark that lacks distortive
pricing.”) (citing 19 C.F.R. § 351.511(a)(2)(i)). A re-
mand is thus necessary for the agency to tackle that
question.
Commerce 	must 	also 	address 	the 	company’s
argument that the size of its property in Pahang is not
comparable to the land in the Ellis report transaction.
Although the government argues that CS Wind waived
this argument by failing to exhaust it, see ECF 47,
at 53, recall that the agency did not consider this topic
in its preliminary determination. Instead, it only did
so in its final decision. Exhaustion therefore does not
apply here. See PAO TMK v. United States, Slip Op.
23-150, at 8–9, 2023 WL 6939242, at *3 (CIT 2023)
(finding exhaustion doctrine inapplicable when agency
changed 	course 	in 	final 	decision). 	As 	neither 	the
government 	nor 	the 	Coalition 	defends 	Commerce’s
finding that the size of the company’s property is
comparable to the land in the Ellis transaction, the
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agency must explain this determination on remand in
light of CS Wind’s contrary evidence.
Finally, CS Wind argues that even if the Depart-
ment otherwise properly used the Ellis transaction in
determining the adequacy of remuneration for the
company’s lease from the Malaysian government, the
agency’s calculation of “a land benchmark based on a
simple average of the single land transaction from Pe-
nang with the multiple land transactions [in Pahang]
reflected” in the Authority’s data was unreasonable
and “distortive.” ECF 49, at 60–61 (emphasis in origi-
nal). The government objects, pointing out that “CS
Wind suggested averaging the data in the first place.”
ECF 47, at 53.
The court agrees with the government. The com-
pany’s lead argument before Commerce was that the
agency “should use the average industrial land rental
prices in Pahang state [from the Authority] to calcu-
late the benchmark.” Appx5592 (emphasis added). In
the alternative, it argued that if the agency were to
find 	the 	Ellis 	and 	Authority 	data 	comparable, 	it
“should average the . . . rental prices on the record in
order to derive a benchmark.” Appx5596. Given CS
Wind’s primary argument, there were two prices on
the record to choose from—the average of the Author-
ity data (from multiple transactions) proffered by the
company and the Ellis information (from a single
transaction). The Department then did what the com-
pany asked it to.
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Under the invited error doctrine (as applied in this
administrative law context), “a party may not com-
plain on appeal of errors that he himself invited or pro-
voked or caused the [agency] . . . to commit.” 9C Wright
& Miller, Federal Practice and Procedure § 2558 (3d
ed. 2025 update) (quoting Harvis v. Roadway Express,
Inc., 923 F.2d 59, 60 (6th Cir. 1991)). Because CS Wind
solicited the asserted error that it now bemoans, the
court sustains the Department’s decision to calculate
a land benchmark based on a simple average of the El-
lis price—assuming that this transaction was other-
wise comparable with the company’s, a question to be
reconsidered on remand—with the Authority’s cost in-
formation.
C
1
In addition to providing land, the Malaysian gov-
ernment also supplied electricity to CS Wind. In its
preliminary decision, the Department found it lacked
sufficient information to use either a tier-one or tier-
two benchmark under 19 C.F.R. § 351.511(a)(2) to
value the company’s electricity purchases, so it resor-
ted to tier three. Appx1010; Appx1006–1007. 2 Citing
confidentiality concerns, the Malaysian government
refused to provide Commerce with information to al-
low an examination of whether its pricing was based
2 Recall that tier three requires the Department to look to
“market principles.” 19 C.F.R. § 351.511(a)(2)(iii).
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on market principles. Appx1007. In its preliminary de-
termination, the agency resorted to facts otherwise
available under 19 U.S.C. §§ 1677e(a)(1) and (a)(2)(A),
(C), and (D) 3 and used Singaporean rates. Appx1006–
1007, Appx1010–1011. It found that country’s data ap-
propriate because they represented costs for a compa-
rable class or type of electricity customer and were
market-based. Appx1006.
CS Wind objected to the selection of Singaporean
rates as a benchmark and argued that Commerce
should have used Turkish data instead. The company
said the latter “reflect[ed] contemporaneous electricity
pricing for industrial customers for a country at a com-
parable level of economic development to Malaysia.”
Appx1053. Singapore, on the other hand, “is at such a
grossly disparate level of economic development rela-
tive to Malaysia that its electricity pricing cannot pos-
sibly be comparable to prices available to industrial
consumers in Malaysia.” Id. CS Wind asserted that the
Department must compare a country’s level of eco-
nomic development to that of the country at issue
3 The cited provisions refer to necessary information being
missing from the record ((a)(1)) and to withholding re-
quested information ((a)(2)(A)), significantly impeding the
proceeding 	((a)(2)(C)), 	and 	providing 	information 	that
could not be verified ((a)(2)(D)). For background on facts
otherwise 	available, 	see 	Hung 	Vuong 	Corp. 	v. 	United
States, 483 F. Supp. 3d 1321, 1336–38 (CIT 2020).
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Ct. No. 24-00079 	Page 17
when evidence of such is available on the record.
Appx1054.
The agency disagreed and continued to use Singa-
porean data in its final determination. In addition to
the reasons cited in the preliminary decision, it noted
that all the cases CS Wind cited involved “the selection
of a tier-three benchmark for land” and stated that the
company “provided insufficient evidence demonstrat-
ing why the level of economic development would be a
similarly relevant consideration when examining elec-
tricity.” Appx1057–1058 (emphasis added). It observed
that the question in a tier-three analysis is how the
foreign government sets its prices and whether they
adhere to market principles, and it explained that CS
Wind made no effort to show that the Malaysian and
Singaporean electricity frameworks are not compara-
ble or that the latter’s is not market-based. Appx1058.
Finally, the agency cited a previous proceeding in
which it found geographic proximity relevant in a tier-
three analysis, especially when two countries are part
of the same utility market. Id. It noted that Malaysia’s
electric grid is interconnected with Singapore and
Thailand, which it found suggestive of “regional avail-
ability of electricity” between those countries. Id.
2
CS Wind challenges how Commerce applied the
tier-three benchmark for electricity. It relies on a 2021
agency decision, Corrosion Inhibitors from China, that
it characterizes as requiring the Department to con-
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Ct. No. 24-00079 	Page 18
sider whether an external benchmark source is from a
country at “an economically comparable level of devel-
opment” if such information is on the record. ECF 49,
at 63 (citing Corrosion Inhibitors I&D Memo at 35–36,
accompanying 86 Fed. Reg. 7,537). There, the agency
stated that it relied on “two important factors in deter-
mining whether a country’s land prices were suitable
benchmarks”—geographic proximity to the country at
issue and comparable level of economic development.
Corrosion 	Inhibitors 	I&D 	Memo 	at 	35 	(emphasis
added).
Commerce addressed this contention and explained
that CS Wind did not show why the level of economic
development 	is 	relevant 	to 	electricity 	pricing.
Appx1057–1058. The agency emphasized that con-
sistency with market principles is the touchstone in a
tier-three analysis and observed that CS Wind did not
dispute that Singapore’s electricity rates satisfy that
requirement. Appx1058. Moreover, in other proceed-
ings the Department had “determined that countries
that are a part of the same utility market are appro-
priate as tier-three benchmarks.” Id.
Although CS Wind contends that Commerce failed
to account for “evidence that detracts from the reason-
ableness of its determination,” ECF 49, at 62–63—
namely, the asserted “gross economic disparity be-
tween Malaysia and Singapore,” id. at 65—the rele-
vance of this gap to the reasonableness of choosing a
benchmark for electricity prices is not self-evident.
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Ct. No. 24-00079 	Page 19
The Department adequately responded to this concern
by explaining that the company did not show why it
mattered.
In this court, CS Wind appears to contend that the
level of economic development is essential to analyzing
price comparability. See ECF 49, at 72–73. But the reg-
ulation only requires the Department to consider price
comparability for tiers one and two. See 19 C.F.R.
§ 351.511(a)(2)(i) (tier one, referring to “comparing”
prices); id. § 351.511(a)(2)(ii) (tier two, referring to
“comparing” government and world-market pricing);
cf. id. § 351.511(a)(2)(iii) (tier three, referring to “as-
sessing whether the government price is consistent
with market principles”); VHHDOVR+DEDü6LQDLYH7LEEL
*D]ODU ,VWLKVDO (QGVWULVL $û Y 8QLWHG 6WDWHV, 536
F. Supp. 3d 1333, 1345 (CIT 2021) (noting that tier
three does not require consideration of price compara-
bility). Here, Commerce used tier three for electricity,
so the company’s “economic development” argument
fails on its own terms.
As the Coalition points out (see ECF 53, at 36) the
Department recently again reiterated that while the
level of economic development is not relevant to choos-
ing a benchmark for electricity rates, geographical
proximity is. See Crystalline Silicon Photovoltaic Cells
from Malaysia I&D Memo at 41–43 (Apr. 18, 2025),
accompanying 90 Fed. Reg. 17,384. The agency found
proximity 	“appropriate” 	in 	“selecting 	a 	tier-three
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Ct. No. 24-00079 	Page 20
benchmark for a utility that is transmitted and con-
sumed on a grid.” Id. at 43.
CS Wind argues, however, that the interconnection
between the two countries’ power grids “does not sup-
port that Singaporean electricity is available to . . .
consumers in Malaysia or that [they] consider geo-
graphic proximity in deciding whether to purchase”
from Singapore or Malaysia. ECF 49, at 65–66. But the
Department noted that its use of “a facts available tier-
three benchmark” meant it “need not consider whether
Singaporean prices are available to users in Malay-
sia.” Appx1057 n.213 (emphasis in original); see also
Appx1010 (noting agency practice of assuming that
foreign electricity prices “are normally not available to
purchasers in the country in question”) (citing 63 Fed.
Reg. 65,348, 65,377). And if the company is serious
about “availability,” it cannot seriously argue that
Commerce should have used data from far-more-dis-
tant Turkey.
In 	short, 	Commerce’s 	selection 	of 	Singaporean
rates as a tier-three benchmark to value what CS
Wind paid for electrical power supplied by the Malay-
sian government is supported by substantial evidence.
The court therefore sustains it.
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Ct. No. 24-00079 	Page 21
D
1
As relevant here, a Commerce regulation directs
the agency to calculate a countervailable subsidy rate
by dividing the amount of the benefit allocated to the
period of review (the numerator) by the sales value
during that same period of the product(s) to which the
agency attributes the subsidy (the denominator). 19
C.F.R. § 351.525(a). The Department normally deter-
mines the sales value “on an f.o.b. (port) basis (if the
product is exported) or on an f.o.b. (factory) basis (if . . .
sold for domestic consumption).” Id.4 The agency “will
normally attribute an export subsidy only to products
exported by a firm,” 19 C.F.R. § 351.525(b)(2), and a
“domestic subsidy to all products sold by a firm, includ-
ing products that are exported,” id. § 351.525(b)(3).
Sometimes, however, the sales value that would
normally 	be 	the 	denominator 	does 	not 	match 	the
goods’ value at U.S. import—for example, when the ex-
porter has an affiliate that sells in the U.S. at a
markup. This “can result in an overcollection of duties,
because the mark-up in price already offsets some of
4 FOB, or “free on board,” means that “the invoice price in-
cludes delivery at seller’s expense to that location.” FOB,
Black’s Law Dictionary 578 (4th ed. 1979). “Title to goods
usually passes from seller to buyer at the FOB location.”
Id. (citing U.C.C. § 2-319(1)).
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Ct. No. 24-00079 	Page 22
the benefit afforded by the countervailable subsidy.”
Canadian Solar, 537 F. Supp. 3d at 1395.
To prevent such an overcollection, an exporter may
apply for an “entered-value adjustment,” which in-
creases the calculation’s denominator. At least in pre-
vious years, Commerce did this “by calculating the
mark-up ratio on U.S. sales and then multiplying that
ratio by the original subsidy rate.” Id.
For purposes of this previously used methodology,
“Commerce established six criteria that respondents
must demonstrate to qualify for an” entered-value ad-
justment. Id. The Department stated them as follows:
(1) the price on which the alleged subsidy is
based differs from the U.S. invoiced price,
(2) the exporters and the party that invoices the
customer are affiliated,
(3) 	the 	U.S. 	invoice 	establishes 	the 	customs
value to which the CVD duties are applied,
(4) there is a one-to-one correlation between the
invoice that reflects the price on which subsidies
are received and the invoice with the mark-up
that accompanies the shipment,
(5) the merchandise is shipped directly to the
United States, and
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Ct. No. 24-00079 	Page 23
(6) the invoices can be tracked as back-to-back
invoices that are identical except for price.
Id. (quoting Jiangsu Zhongji Lamination Materials
Co. v. United States, 405 F. Supp. 3d 1317, 1327 (CIT
2019)).
But in more recent years, Commerce appears to
have adopted a different methodology for calculating
an entered-value adjustment. The Department “seem-
ingly now adjusts a subsidy rate by changing the de-
nominator of the original subsidy rate from the re-
spondent’s total worldwide export sales to the affili-
ate’s marked-up total worldwide export sales.” Id. at
1396 (emphasis added) (citing Crystalline Silicon Pho-
tovoltaic Cells from China I&D Memo at 72–75 (Aug.
19, 2019), accompanying 84 Fed. Reg. 45,125, and
Jiangsu Zhongji, 405 F. Supp. 3d at 1327–28). “This
calculation method does not specifically account for a
U.S. mark-up and does not require U.S.-specific sales
data.” Id.
2
The agency preliminarily calculated a countervail-
ing duty rate using CS Wind Malaysia’s sales tied to
domestic and export subsidies as the denominator.
Appx1004–1005. The company then applied for an en-
tered-value adjustment, asking the Department to use
its 	Korean 	parent’s 	U.S. 	sales 	pricing 	instead.
Appx1022.
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Ct. No. 24-00079 	Page 24
Commerce declined this request. Without articulat-
ing which methodology it uses to calculate the denom-
inator, it asserted that the company must prove that
it satisfied the six-part test for the U.S. sales–based
methodology. Appx1027. It explained that after CS
Wind Malaysia asked for the adjustment, the Depart-
ment issued a supplemental questionnaire seeking, for
each of four transactions, the invoice from that com-
pany to its Korean parent, the invoice from the latter
company to the U.S. customer, the bills of lading and
packing 	lists, 	and 	copies 	of 	Customs 	Form 	7501. 5
Appx1027.
For two of the relevant sales, the Malaysian com-
pany responded that it could not provide the Customs
forms. Id. It provided no alternative documentation
showing declared value upon entry. Appx1028. As
these forms were “critical to demonstrate that the U.S.
invoice establishes the customs value to which CVD
duties are applied,” Appx1027, the Department could
not determine whether the third criterion had been
met for these two sales. Appx1028.
For the other two, the company did provide all the
requested documentation. Id. Even so, “there was a
discrepancy 	between 	the 	. 	. 	. 	value 	listed 	on 	the
5 Form 7501 is an “entry summary” Customs uses to collect
various information about imported goods to make a record
of the importation and to collect the proper duties and
taxes. 	See 	https://www.cbp.gov/sites/default/files/2025-11/
cbp_form_7501.pdf .
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Ct. No. 24-00079 	Page 25
invoices and the total entered value on the . . . 7501
forms.” 	Id. 	“Given 	these 	deficiencies,” 	Commerce
“lack[ed] sufficient information to determine what the
customs value is for certain sales, much less that the
U.S. invoice establishes the customs value to which
the [countervailing] duties are applied”—i.e., the third
criterion for the adjustment. Id. (internal quotation
marks omitted).
3
Citing Canadian Solar, CS Wind argues that the
Department’s rationale for denying an entered-value
adjustment—that the company did not satisfy the
third criterion of the six-part test—is unreasonable.
“Commerce’s 	current 	methodology 	for 	calculating”
such an adjustment—“by replacing the denominator of
the subsidy rate with the total worldwide marked-up
sales value—does not require it to” look to U.S. sales
data. ECF 49, at 44 (emphasis added). As Canadian
Solar explained, the agency’s current worldwide-based
“methodology does not match up with the information
it asserts is needed.” 537 F. Supp. 3d at 1399; see also
id. at 1396 (“Despite not needing U.S. sales data for
its” calculation, the Department “has not appeared to
adjust its evidentiary requirements to reflect this new
methodology.”). In short, there is a disconnect between
the agency’s six-part test and what seems to be its cur-
rent methodology.
The government responds that “Commerce con-
tinue to require” that applicants satisfy the agency’s
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Ct. No. 24-00079 	Page 26
six-part test for an entered-value adjustment. ECF 47,
at 39. That begs the question, however, whether con-
tinued use of this test is reasonable in view of the ap-
parently changed methodology.
The court uses the term “apparently” because the
Department here neglected to articulate what method-
ology it uses to calculate the denominator. A remand
is thus necessary for the agency to undertake this
basic exercise. And insofar as it explains that it now
looks to the affiliate’s total marked-up worldwide sales
or 	some 	other 	metric 	rather 	than 	the 	affiliate’s
marked-up U.S. sales, Commerce must explain the rel-
evance of the third criterion 6 on which it relied to deny
CS Wind’s requested adjustment. Cf. Canadian Solar,
537 F. Supp. 3d at 1399 (remanding for the agency to
“clarify 	its 	calculation 	methodology” 	and 	“explain
[why] the evidence it requires . . . is reasonable given”
that methodology). 7 The six criteria used by the De-
partment in this case are merely a means to the end of
6 That “the U.S. invoice establishes the customs value to
which the CVD duties are applied.” Appx1026.
7 The rest of the story is that on remand the agency ran up
the white flag and granted the adjustment. See Canadian
Solar Inc. v. United States, Slip Op. 22-49, at 13, 2022 WL
1583428, at *5 (CIT May 19, 2022). In so doing, it stated its
intent “to re-evaluate its . . . methodology and the circum-
stances under which” an adjustment might be granted. Id.
Today’s remand offers an opportunity for that promised
reevaluation.
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Ct. No. 24-00079 	Page 27
applying a particular methodology, not ends in them-
selves that exist in a vacuum.
* 	* 	*
The court grants CS Wind’s motion for judgment on
the agency record (ECF 49) in part, sustains Com-
merce’s decision in part, and remands for further pro-
ceedings consistent with this opinion.
Dated: December 5, 2025 	/s/ M. Miller Baker
New York, NY 	Judge
Case 1:24-cv-00079-MMB Document 60 Filed 12/05/25 Page 27 of 27