Wilmar Trading Pte Ltd. v. United States

Slip Op. 20– 
UNITED STATES COURT OF INTERNATIONAL TRADE
__________________________________________
:
WILMAR TRADING PTE LTD., :
PT WILMAR BIOENERGI INDONESIA, and :
WILMAR OLEO NORTH AMERICA LLC, :
:
Plaintiffs, :
:
and :
:
GOVERNMENT OF THE REPUBLIC OF : Before: Richard K. Eaton, Judge
INDONESIA and P.T. MUSIM MAS, :
: Consol. Court No. 18-00006
Consolidated Plaintiffs, :
:
v. :
:
UNITED STATES, :
:
Defendant, :
:
and :
:
NATIONAL BIODIESEL BOARD FAIR :
TRADE COALITION, :
:
Defendant-Intervenor. :
__________________________________________:
OPINION and ORDER
[U.S. Department of Commerce’s final determination is remanded.]
         Dated: $XJXVW
Devin S. Sikes, Akin Gump Strauss Hauer & Feld LLP, of Washington, DC, argued for
Plaintiffs. With him on the brief was Bernd G. Janzen.
Lynn G. Kamarck, Hughes Hubbard & Reed LLP, of Washington, DC, argued for
Consolidated Plaintiff Government of the Republic of Indonesia. With her on the brief were
Matthew R. Nicely and Julia K. Eppard.
Kelly A. Slater, Appleton Luff Pte Ltd, of Washington, DC, argued for Consolidated
Plaintiff P.T. Musim Mas. With her on the brief were Edmund W. Sim, and Jay Y. Nee.
Consol. Court No. 18-00006 Page 2
Joshua E. Kurland, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, DC, argued for Defendant. With him on the brief were
Joseph H. Hunt, Assistant Attorney General, Jeanne E. Davidson, Director, and L. Misha Preheim,
Assistant Director. Of counsel on the brief was Catherine D. Miller, Attorney, Office of the Chief
Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce, of Washington,
DC.
Myles S. Getlan, Cassidy Levy Kent (USA) LLP, of Washington, DC, argued for
Defendant-Intervenor. With him on the brief were Jack A. Levy and Thomas M. Beline.
Eaton, Judge: This dispute arises from the imposition of countervailing duties on certain
shipments of biodiesel fuel 1 from the Republic of Indonesia following the United States
Department of Commerce’s (“Commerce” or the “Department”) determination that the
Government of the Republic of Indonesia (the “Government of Indonesia”) had provided subsidies
to the plaintiff biodiesel producer-exporters. According to Commerce, these subsidies took the
form of (1) monetary grants from Indonesia’s Biodiesel Subsidy Fund, and (2) goods supplied for
less than adequate remuneration resulting from the imposition of two export taxes on biodiesel’s
main input—crude palm oil. The period of investigation was January 1, 2016, through December
31, 2016. See Biodiesel From the Rep. of Indonesia, 82 Fed. Reg. 53,471 (Dep’t Commerce Nov.
16, 2017) (“Final Determination”) and accompanying Issues and Dec. Mem. (Nov. 6, 2017), P.R.
240 (“Final IDM”).
Plaintiffs Wilmar Trading Pte Ltd., PT Wilmar Bioenergi Indonesia, and Wilmar Oleo
North America LLC (collectively, “Wilmar”); and Consolidated Plaintiffs the Government of
Indonesia and P.T. Musim Mas (“Musim Mas”) challenge Commerce’s final countervailing duty
1
Generally, the subject biodiesel fuel is made primarily from crude palm oil and is
used for the same purposes as petrodiesel made from crude oil. See, e.g., Biodiesel From Argentina
and Indonesia, 82 Fed. Reg. 18,423, app. I (Dep’t Commerce Apr. 19, 2017) (notice of initiation
of countervailing duty investigations). For example, both products can be used as fuel for diesel
engines.
Consol. Court No. 18-00006 Page 3
determination. Defendant the United States on behalf of Commerce (“Defendant”), and Defendant-
Intervenor the National Biodiesel Board Fair Trade Coalition (“Petitioner” or “Defendant-
Intervenor”), ask the court to uphold Commerce’s Final Determination.
Jurisdiction is found under 19 U.S.C. § 1516a(a)(2)(B)(i) (2012) and 28 U.S.C. § 1581(c)
(2012).
For the reasons set forth below, the court holds that two of Commerce’s three
countervailability findings are supported by substantial evidence and otherwise in accordance with
law. First, Commerce did not err in finding that the Government of Indonesia provided
countervailable financial contributions in the form of monetary grants to Wilmar and Musim Mas
through the Biodiesel Subsidy Fund. Second, Commerce did not err in finding that the Government
of Indonesia’s 2015 export levy 2 on crude palm oil (the “2015 Export Levy”) provided
countervailable financial contributions in the form of the provision of goods for less than adequate
remuneration.
The court further finds, however, that Commerce’s determination that Indonesia’s 1994
differential export tariff 3 (the “1994 Export Tariff”) on crude palm oil resulted in a financial
contribution in the form of goods provided for less than adequate remuneration, is neither
supported by substantial evidence nor in accordance with law.
2
For purposes of this case, a levy is a flat tax applied to all export sales of crude
palm oil. See Government of Indonesia Initial Questionnaire Resp. (June 29, 2017), P.R. 120
(“GOI Initial Quest. Resp.”) at 67; GOI Initial Quest. Resp., Ex. Pt. 12 (June 29, 2017), P.R. 132,
at Ex. GOI-CPO-5 (Minister of Finance Regulation No. 133/PMK.05/2015).
3
For purposes of this case, a tariff is a changeable rate tax applied to certain export
sales of crude palm oil. See GOI Initial Quest. Resp., Ex. Pt. 13 (June 29, 2017), P.R. 133, at Ex.
GOI-CPO-15.
Consol. Court No. 18-00006 Page 4
BACKGROUND
Over more than two decades, the Government of Indonesia has taken both direct and
indirect measures to advance domestic biofuel production. At issue in this case are (1) direct
payments from the Government of Indonesia to Plaintiffs, and (2) two separate export taxes that,
for Commerce, restrained the export of crude palm oil, thus increasing the domestic supply of this
input and driving down its price so that it was more cheaply available to Plaintiffs.
Biodiesel costs more than petrodiesel in an open market. In order to market biodiesel at a
price competitive with petrodiesel, Indonesia set up a program to pay biodiesel producers an
amount roughly equal to the difference in price between the cheap petrodiesel and the expensive
biodiesel. Thus, Indonesia subsidized biodiesel so that it could be sold at a price competitive with
the price of petrodiesel. Plaintiffs took advantage of this program.
In addition, Indonesia, over the years, enacted export taxes that, according to Commerce,
had the effect of keeping crude palm oil in the country, thus increasing its supply and lowering its
domestic price. Commerce determined that the export taxes lowered the domestic price of crude
palm oil and consequently provided Plaintiffs with crude palm oil “for less than adequate
remuneration.” See 19 U.S.C. § 1677(5)(D), (E)(iv).
I. Direct Payments Through the Biodiesel Subsidy Fund
In 2015, the Government of Indonesia implemented a regulatory scheme intended to
support its biodiesel industry. One regulation created the “Biodiesel Subsidy Fund.” See
Government of Indonesia Initial Questionnaire Resp. (June 29, 2017), P.R. 120 (“GOI Initial
Quest. Resp.”) at 13; GOI Initial Quest. Resp., Ex. Pt. 8 (June 29, 2017), P.R. 128, at Ex. GOI-
BSF-1) (Presidential Regulation No. 61/2015). The Biodiesel Subsidy Fund (or the “Fund”)
Consol. Court No. 18-00006 Page 5
directly paid biodiesel producers amounts in addition to the sales price they received from their
customers. See GOI Initial Quest. Resp. at 15. The monies for these Fund payments were wholly
provided for by the proceeds of the Government of Indonesia’s 2015 Export Levy on crude palm
oil. See Government of Indonesia Suppl. Questionnaire Resp. (Aug. 7, 2017), P.R. 184 (“GOI
Suppl. Quest. Resp.”) at 1.
II. Export Restraints on Crude Palm Oil
A. 2015 Export Levy
At the same time the Biodiesel Subsidy Fund was created, the Government of Indonesia
enacted the 2015 Export Levy, at $50 per metric ton on all exports of crude palm oil. See GOI
Initial Quest. Resp. at 67; GOI Initial Quest. Resp., Ex. Pt. 12 (June 29, 2017), P.R. 132, at Ex.
GOI-CPO-5 (Minister of Finance Regulation No. 133/PMK.05/2015). This levy is collected from
producers on their export sales of crude palm oil. The levies paid are then deposited into the Fund.
Crude palm oil is a major input for biodiesel. See Preliminary Decision Mem. (Aug. 21, 2017),
P.R. 199 (“Prelim. Dec. Mem.”) at 10 (“[Crude palm oil] is the key feedstock from which biodiesel
is manufactured in the Indonesian biodiesel industry.”); GOI Initial Quest. Resp. at 65-66 (“[Crude
palm oil] can be used for . . . non-food industries (fatty acids, fatty alcohol, glycerin, biofuels).”).
The Government of Indonesia represented that “[p]roceeds from this export levy are specifically
earmarked for the Biodiesel Subsidy Fund . . . [and are] the Fund’s exclusive source of funding.”
GOI Initial Quest. Resp. at 67.
B. 1994 Differential Export Tariff
Prior to the 2015 Export Levy, the Government of Indonesia had implemented another tax
on crude palm oil: the 1994 Differential Export Tariff. See, e.g., GOI Initial Quest. Resp., Ex. Pt.
Consol. Court No. 18-00006 Page 6
11 (June 29, 2017), P.R. 131, at Ex. GOI-CPO-3 (Minister of Finance Regulation No.
136/PMK.010/2015); GOI Initial Quest. Resp., Ex. Pt. 14 (June 29, 2017), P.R. 134, at Ex. GOI-
CPO-23 (Minister of Finance Regulation No. 140/PMK.010/2016 app. I). Under the 1994 Export
Tariff’s schedules, a tariff is imposed on exports of crude palm oil when the export price of crude
palm oil exceeds $750 per metric ton. See GOI Initial Quest. Resp., Ex. Pt. 13 (June 29, 2017),
P.R. 133, at Ex. GOI-CPO-15. No tariff is collected unless the threshold of $750 per metric ton is
reached. See GOI Initial Quest. Resp. at 66; GOI Initial Quest. Resp., Ex. Pt. 13, at Ex. GOI-CPO-
15. The export price of crude palm oil changes from year to year, or even month to month.
III. Commerce’s Investigation
On March 23, 2017, Petitioner and Defendant-Intervenor National Biodiesel Board Fair
Trade Coalition, a U.S. trade association comprised of domestic producers of biodiesel, 4 filed a
countervailing duty petition with the Department and the United States International Trade
Commission (“ITC”), covering imports of biodiesel from Indonesia. See Prelim. Dec. Mem. at 1;
Biodiesel From Argentina and Indonesia, 82 Fed. Reg. 22,155 (Int’l Trade Comm’n May 12, 2017)
(“ITC Prelim. Determination”); Biodiesel from Argentina and Indonesia, Inv. Nos. 701-TA-571-
572, 731-TA-1347-1348, USITC Pub. 4690 (May 2017) (Preliminary). According to Petitioner,
some of the cheap, subsidized biodiesel entered the U.S. market, and injured the domestic U.S.
renewable fuel industry. See ITC Prelim. Determination, 82 Fed. Reg. at 22,155 (“[Before the ITC,
Petitioner alleged] that an industry in the United States [was] materially injured or threatened with
4
The majority of American biodiesel is ethanol (corn-based). See, e.g., U.S.
Bionergy Statistics, U.S. DEP’T AGRIC. (last updated Jul. 21, 2020),
https://www.ers.usda.gov/data-products/us-bioenergy-statistics/ (“Ethanol, made mostly from
corn starch from kernels, is by far the most significant biofuel in the United States.”).
Consol. Court No. 18-00006 Page 7
material injury by reason of [less than fair value] and subsidized imports of biodiesel from . . .
Indonesia.”).
On March 29, 2017, the ITC commenced its material injury investigation. See Biodiesel
From Argentina and Indonesia, 82 Fed. Reg. 15,541 (Int’l Trade Comm’n Mar. 29, 2017). 5
On April 19, 2017, Commerce published the notice of initiation of its countervailing duty
investigation. See Biodiesel From Argentina and Indonesia: Initiation of Countervailing Duty
Investigations, 82 Fed. Reg. 18,423 (Dep’t Commerce Apr. 19, 2017).
Wilmar and Musim Mas were selected as mandatory respondents 6 because they were the
“two largest publicly identifiable producers/exporters, by volume, of subject merchandise [i.e.,
biodiesel] exported to the United States from Indonesia during the [period of investigation].”
Prelim. Dec. Mem. at 2; see also 19 U.S.C. § 1677f-1(e)(2)(A)(ii).
5
On May 8, 2017, the ITC made its preliminary affirmative material injury
determination. See ITC Prelim. Determination, 82 Fed. Reg. at 22,155; see also Biodiesel from
Argentina and Indonesia, Inv. No. 701-TA-571-572, 731-TA-1347-1348, USITC Pub. 4690 (May
2017) (Preliminary) at 31 (footnotes omitted) (“Because the domestic industry, despite having the
ability to increase its production and shipments, was unable to increase its shipments
commensurately with growing demand, it lost revenues that it otherwise would have obtained.
These lost revenues were reflected in its poor and declining gross and operating income. We
accordingly find that the significant volume of cumulated subject imports, which gained market
share at the expense of the domestic industry through significant underselling, had a significant
impact on the domestic industry.”).
The ITC issued its final affirmative determination of material injury after Commerce’s
Final Determination in this case. See Biodiesel From Argentina And Indonesia, Inv. No. 701-TA-
571-572, USITC Pub. 4748 (Dec. 2017) (Final).
6
In general, Commerce determines “an individual countervailable subsidy rate for
each known exporter or producer of the subject merchandise.” 19 U.S.C. § 1677f-1(e)(1). Where,
however, the “large number of exporters or producers involved in the investigation” makes it
impracticable for Commerce to calculate an individual rate for each one, Commerce may limit
individual examination to mandatory respondents, e.g., “exporters and producers accounting for
the largest volume of the subject merchandise from the exporting country.” Id.
§ 1677f-1(e)(2)(A)(ii).
Consol. Court No. 18-00006 Page 8
On November 6, 2017, Commerce issued its Final Determination. There, Commerce found
that the Biodiesel Subsidy Fund payments provided Plaintiffs with countervailable subsidies
because they were financial contributions, by a government, that benefitted Wilmar and Musim
Mas in the amount of each Fund payment. See Final IDM at 7 (citation omitted). The Department
also found the payments to be specific to the biodiesel industry. 7 See Prelim. Dec. Mem. at 10.
Although the payments were only available in connection with domestic sales, the Department
also found that the subsidies stemming from the Fund payments were attributable to all of
Wilmar’s and Musim Mas’ biodiesel sales, including their exports. See Final IDM at 11.
Commerce further found that both the 2015 Export Levy and the 1994 Export Tariff
resulted in the provision of countervailable subsidies in the form of goods provided for less than
adequate remuneration, because they caused Indonesian crude palm oil (the primary biodiesel
input) to remain within the country, available at below-international market prices to Wilmar and
Musim Mas. See Final IDM at 16.
The Department calculated individual subsidy rates for Wilmar and Musim Mas of 34.45
percent and 64.73 percent, respectively. The All-Others rate was 38.95 percent. 8 See Final
Determination, 82 Fed. Reg. at 53,472. Of the individual rates, for Musim Mas, 51.97 percent ad
valorem was attributed to the Biodiesel Subsidy Fund; 12.74 percent ad valorem was attributed to
the “Provision of Palm Oil Feedstock for Less Than Adequate Remuneration,” which included
both the 2015 Export Levy and the 1994 Export Tariff; and 0.02 percent ad valorem was attributed
7
Plaintiffs do not challenge Commerce’s subsidy determination with respect to the
Fund payments on the issue of specificity.
8
When only mandatory respondents are examined, Commerce uses their rates to
determine an “all-others rate for all exporters and producers not individually investigated and for
new exporters and producers.” See 19 U.S.C. § 1671d(c)(1)(B)(i)(I).
Consol. Court No. 18-00006 Page 9
to another, uncontested subsidy. See Final IDM at 4-5. For Wilmar, the percentages were,
respectively: 24.92; 9.47; and 0.06. See Final IDM at 4-5.
STANDARD OF REVIEW
The court will sustain a determination by Commerce unless it is “unsupported by
substantial evidence on the record, or otherwise not in accordance with law.” 19
U.S.C. § 1516a(b)(1)(B)(i).
LEGAL FRAMEWORK
“The Tariff Act provides that before Commerce imposes a countervailing duty on
merchandise imported into the United States, it must determine that a government is providing,
directly or indirectly, a countervailable subsidy with respect to the manufacture, production, or
export of that merchandise.” Delverde, SrL v. United States, 202 F.3d 1360, 1365 (Fed. Cir. 2000)
(citing 19 U.S.C. § 1671(a)(1) (1994)).
A countervailable subsidy exists where “an authority [a government or governmental
actor] . . . provides a financial contribution . . . to a person and a benefit is thereby conferred.” 19
U.S.C. § 1677(5)(B). A financial contribution may consist of a “direct transfer of funds,” such as
a grant. Id. § 1677(5)(D)(i). It may also consist of goods and services, when they “are provided
for less than adequate remuneration.” Id. § 1677(5)(D), (E)(iv). Although normally the
government provides such a contribution directly, a contribution may exist where a government
authority “entrusts or directs a private entity to make [it],” so long as “providing the contribution
would normally be vested in the government and the practice does not differ in substance from
practices normally followed by governments.” Id. § 1677(5)(B)(iii).
Consol. Court No. 18-00006 Page 10
Commerce measures the benefit according to the type of financial contribution provided.
See id. § 1677(5)(E). When the subsidy takes the form of a grant, the benefit is measured “in the
amount of the grant.” See 19 C.F.R. § 351.504(a) (2019). When goods are provided for less than
adequate remuneration, Commerce measures the benefit using the three-tiered hierarchy of
“benchmark” prices against which to test the actual remuneration provided in exchange for the
goods. See 19 C.F.R. § 351.511(a)(2)(i)-(iii) (setting the benchmark preference for (i) “a market-
determined price for the good or service resulting from actual transactions in the country in
question,” then, if (i) is not available, (ii) “a world market price where it is reasonable to conclude
that such price would be available to purchasers in the country in question,” and finally (iii)
“measur[ing] the adequacy of remuneration by assessing whether the government price is
consistent with market principles.”).
Further, a countervailable subsidy—either direct or indirect—must meet the requirement
of specificity under the subpart of § 1677(5A) that corresponds with the subsidy’s type. See 19
U.S.C. § 1677(5)(A), (5A). Domestic subsidies are de jure specific “[w]here the authority
providing the subsidy, or the legislation pursuant to which the authority operates, expressly limits
access to the subsidy to an enterprise or industry.” Id. § 1677(5A)(D)(i) (emphasis added). Certain
domestic subsidies may be de facto specific if “[t]he actual recipients of the subsidy, whether
considered on an enterprise or industry basis, are limited in number.” Id. § 1677(5A)(D)(iii)(I)
(emphasis added).
Once Commerce determines that a countervailable subsidy exists, it imposes a
countervailing duty on the subject merchandise, “equal to the amount of the net countervailable
subsidy.” Id. § 1671(a). Pursuant to its regulations, Commerce calculates “an ad valorem subsidy
rate by dividing the amount of the benefit allocated to the period of investigation or review by the
Consol. Court No. 18-00006 Page 11
sales value during the same period of the product or products to which the [Department] attributes
the subsidy.” 19 C.F.R. § 351.525(a). The resulting rate (or percentage) is added with any other
ad valorem rate to constitute a respondent’s total individual subsidy rate. See 19 U.S.C. § 1671(a).
Finally, by finding attribution, Commerce determines which sales were affected by the
otherwise countervailable subsidies, and thus which sales will serve as the basis for the ad valorem
subsidy rate. Attribution means that, if the Department finds that a subsidy is “tied to a particular
market,” it will “attribute the subsidy only to products sold by the [respondent] to that market.”
19 C.F.R. § 351.525(b)(4) (emphasis added). On the other hand, if a subsidy is “tied to a particular
product,” it will be attributable to all sales of that product. See id. § 351.525(b)(5)(i) (“If a subsidy
is tied to the production or sale of a particular product, [Commerce] will attribute the subsidy only
to that product.”).
DISCUSSION
I. Commerce Reasonably Determined that the Biodiesel Subsidy Fund Payments to
Wilmar and Musim Mas Were Countervailable
By creating the Biodiesel Subsidy Fund, Indonesia hoped to encourage the development of
its biodiesel industry by establishing a program through which designated buyers (both state-
owned and privately owned) would purchase Plaintiffs’ biodiesel at the lower, petrodiesel price.
Eligibility for payments from the Fund resulted from the sale of biodiesel to designated domestic
purchasers such as Pertamina (Indonesia’s state-owned oil and gas company) and Corporindo (a
private Indonesian fuel blender). See GOI Initial Quest. Resp. at 13; Prelim. Dec. Mem. at 9.
Plaintiffs would first make a sale of biodiesel to Pertamina or Corporindo at the lower, petrodiesel
price. Then, Plaintiffs would apply for and receive a payment from the Fund, equal to the
difference between the international petrodiesel price and the higher, domestic biodiesel price
Consol. Court No. 18-00006 Page 12
(both as adjusted by the Government of Indonesia). 9 Plaintiffs would thus receive, in total, an
amount roughly equal to the domestic “market price” for biodiesel. See GOI Initial Quest. Resp.
at 13-15.
The stated purpose of the Fund is “to cover [that] difference” between the price of biodiesel
and petrodiesel in support of “provision and utilization of biodiesel.” See GOI Initial Quest. Resp.
at 15. Thus, Indonesia hoped to foster increased biodiesel production by allowing Wilmar and
Musim Mas to receive a competitive price for their biodiesel, even though their purchasers paid
the reduced petrodiesel price.
Whatever the Government of Indonesia’s claimed purpose, Commerce found the payments
from the Fund to be countervailable subsidies. Plaintiffs object to Commerce’s analysis of the
Biodiesel Subsidy Fund in three respects: first, they maintain that Commerce erred by finding that
the Fund payments were financial contributions in the form of grants to Wilmar and Musim Mas;
second, they argue that, even if Commerce’s grant determination is correct, the Department erred
in its benefit determination, both in measuring the benefit, and by refusing to allow an offset to
9
In its initial questionnaire response, the Government of Indonesia explained how
“market” prices for biodiesel and petrodiesel were calculated:
[Pursuant to regulation,] the Directorate General for Oil and Gas determines the market
price index for [petro]diesel oil, usually every three months. The Directorate General of
New Renewable Energy and Energy Conversion . . . determines the market price index for
biodiesel on a monthly basis. The reference price for [petro]diesel is determined by
referring to the price reported in the Means of Platts Singapore (MOPS) and the production
cost of [petro]diesel in Indonesia[,] while the reference price for biodiesel is determined
based on the price for [crude palm oil] plus the operation cost of biodiesel. MOPS is the
average of Singapore-based oil prices published by Platts, which is a global energy,
petrochemicals, metals, and agriculture information provider. Operation costs consist of
methanol, power, and labor, for example.
GOI Initial Quest. Resp. at 13-14. In other words, the Government of Indonesia’s energy agencies
calculate a “market price index” on a monthly or tri-monthly basis to determine the “market price”
for petrodiesel and biodiesel.
Consol. Court No. 18-00006 Page 13
any payment from the Fund equal to the amount they paid in. Finally, Plaintiffs contest
Commerce’s decision to attribute the Fund payments to all of Wilmar’s and Musim Mas’ biodiesel
sales during the period of investigation.
The first two issues concern distinct elements of Commerce’s countervailability analysis:
the existence of financial contributions from the Biodiesel Subsidy Fund to Plaintiffs, and the
amount of potential benefit conferred by payments from the Fund upon Wilmar and Musim Mas.
The attribution issue concerns Commerce’s calculation of countervailing subsidy rates for Wilmar
and Musim Mas.
A. Commerce Correctly Classified the Biodiesel Subsidy Fund Payments as
Financial Contributions in the Form of “Grants”
The statute provides that a financial contribution includes the making of grants. See 19
U.S.C. § 1677(5)(D)(i) (“The term ‘financial contribution’ means . . . the direct transfer of funds,
such as grants . . . .”). This Court has interpreted “grant” in accordance with the ordinary meaning
of the word: that is, a grant is a “gift-like transfer.” See Gov’t of Sri Lanka v. United States, 42 CIT
__, __, 308 F. Supp. 3d 1373, 1383 (2018). The payments to biodiesel producers Wilmar and
Musim Mas were made by the Government of Indonesia, through a program that required the
producers to submit applications for approval and payment following the sales of their biodiesel
at the petrodiesel price. See Final IDM at 7. As noted, these Fund payments were designed to bring
the total amount received by Plaintiffs up to the domestic market price for biodiesel. The payment
application would inform the Government of Indonesia of the sales price for their biodiesel. See
GOI Initial Quest. Resp. at 24. The Government, through the Fund, would then pay to Wilmar and
Musim Mas roughly the difference between the payment they had received and the domestic
market price for biodiesel. The Government of Indonesia received nothing in exchange for the
Consol. Court No. 18-00006 Page 14
payments from the Fund. See Final IDM at 7. Based on these facts, Commerce determined that the
payments from the Fund were grants.
During the investigation and before the court, Plaintiffs have argued that the Biodiesel
Subsidy Fund payments were not grants, but were instead part of the sales price for their biodiesel,
because the amount they received was the difference between the market price for biodiesel and
that for petrodiesel. See Pls.’ & Consol. Pls.’ Mot. J. Agency R., ECF No. 38 (“Pls.’ Br.”) 17-18
(“The record unequivocally shows that [Fund] payments constitute part of the full payment for
purchases of biodiesel. . . . [T]he [Government of Indonesia] makes the payments in return for
biodiesel sold [to Pertamina and Corporindo]. . . . Commerce explicitly found that Wilmar and
Musim Mas treat the payments as ‘revenue’ for their respective sales of biodiesel [to those two
companies] . . . , a finding that squarely contradicts Commerce’s assertion that the [Government
of Indonesia] received nothing in return for the payments.”).
This argument cannot be credited. While the amount of the grant may have been calculated
to bring the amount received up to the constructed market value of Plaintiffs’ product, the
Government of Indonesia bought nothing and received nothing for the Fund’s money other than
the possibility of achieving the governmental goal of fostering a domestic biodiesel industry in
Indonesia. 10 Wilmar’s and Musim Mas’ classification of Fund payments as revenue is not
10
Plaintiffs argued before the agency that, because one of the energy companies
(Pertamina) that purchased biodiesel is state-owned, the Government of Indonesia effectually
purchased biodiesel from Wilmar and Musim Mas. See Final IDM at 9. While it is true that
Pertamina is state-owned, Corporindo is not. Thus, the Department found that “[t]he [Fund]
payments are made regardless of the [Government of Indonesia’s] receipt of the goods in question,
and could – in theory – be made without any participation of Pertamina.” Final IDM at 9. In other
words, although Pertamina was a state-owned company, it was not the sole purchaser of the
biodiesel for which Wilmar and Musim Mas received Fund payments. See Final IDM at 9 (“[The
argument] that, because Pertamina is a state-owned company, it ‘might be . . . purchasing biodiesel
on the [Government of Indonesia’s] behalf’ . . . cannot be made with regard to Corporindo[, the
private company that also receive[d] Fund payments].”). Therefore, even if the court were to find
Consol. Court No. 18-00006 Page 15
dispositive, because, to obtain funding from the Biodiesel Subsidy Fund, they did not contract with
the Government of Indonesia to sell biodiesel or anything else. Therefore, Commerce was
reasonable in its finding that these Fund transfers, clearly distinct from the price paid by the actual
purchasers, were financial contributions in the form of grants.
In other words, the Fund’s payment system provided contributions to Wilmar and Musim
Mas. The Fund was created to provide a subsidy to biodiesel producers as a way of supporting the
biodiesel industry. The Government of Indonesia made payments from the Fund, but received
nothing in return. Therefore, Commerce’s finding that the Fund payments were countervailable
financial contributions to Wilmar and Musim Mas is supported by substantial evidence.
B. Commerce Reasonably Measured the Benefit of the Grants
1. Commerce Relied on the Appropriate Regulatory Standard for
Measuring Benefit
After finding that the Government of Indonesia had made financial contributions in the
form of grants to Wilmar and Musim Mas, Commerce measured the amount of benefit Wilmar
and Musim Mas received from those grants. See 19 U.S.C. § 1677(5)(E) (outlining the rules for
measuring benefit). Commerce’s regulations provide that, where the countervailable subsidy takes
the form of a grant, “a benefit exists in the amount of the grant.” 19 C.F.R. § 351.504(a).
Plaintiffs urge the court to find that Commerce should have measured the benefit, if any,
under “either the adequacy of remuneration standard in 19 C.F.R. § 351.511,[11] or the ‘receives
that Pertamina’s purchases counted as purchases by the Government of Indonesia, the Biodiesel
Subsidy Fund payments would still constitute grants because Pertamina’s involvement was not
required.
11
When a subsidy takes the form of the provision of goods, the benefit is generally
found to exist “to the extent that such goods or services are provided for less than adequate
remuneration.” 19 C.F.R. § 351.511(a)(1).
Consol. Court No. 18-00006 Page 16
more revenues than it otherwise would earn’ standard in 19 C.F.R. § 351.503.[12]” Pls.’ Br. 22, 24.
Once again, Plaintiffs try to make their case by claiming that the payments were part of the price
paid to Wilmar and Musim Mas in exchange for their biodiesel, and, therefore, a benefit analysis
should analyze the payments from the Fund as part of the total biodiesel price. 13 The gist of
Plaintiffs’ argument is that Commerce should have treated the Fund payments as part of the
payment for biodiesel sales, and then determined whether the total amount received from the
purchasers, and the Fund, was more or less than an “adequate” price to pay for biodiesel.
Despite Plaintiffs’ arguments, since the court has sustained Commerce’s finding that the
financial contributions here were in the form of grants, the standard for measuring the benefit from
those financial contributions is the standard in § 351.504(a). See 19 C.F.R. § 351.504(a) (“In the
case of a grant, a benefit exists in the amount of the grant.”). Commerce, therefore, reasonably
determined that the grants benefitted Wilmar and Musim Mas in an amount equal to the amount
of the grants, which is to say, in the amount of the Fund transfers.
12
For otherwise uncategorized subsidies, Commerce “normally will consider a
benefit to be conferred where a firm pays less for its inputs (e.g., money, a good, or a service) than
it otherwise would pay in the absence of the government program, or receives more revenues than
it otherwise would earn.” 19 C.F.R. § 351.503(b)(1).
13
As support for their position, Plaintiffs cite Government of Sri Lanka. Pls.’ Br. 19
(citing Gov’t of Sri Lanka, 42 CIT at __, 308 F. Supp. 3d at 1383) (“The Court’s recent decision
in Government of Sri Lanka confirms that the [Fund] payments do not meet the [gift-like transfer]
definition of a ‘grant,’ whether in the financial contribution statute or in Commerce’s
regulations.”). The Government of Sri Lanka Court, however, found that the alleged financial
contributions in that case were “interest-free repayment” of debts owed by the Sri Lankan
government to the respondents, that were “unlike a grant, loan, or equity infusion.” See Gov’t of
Sri Lanka, 42 CIT at __, 308 F. Supp. 3d at 1381. Here, the payments from the Government of
Indonesia were not loans or repayments of loans, because the amounts paid into the Fund and the
amounts paid out to Wilmar and Musim Mas bore no relation to each other.
Consol. Court No. 18-00006 Page 17
2. Plaintiffs Were Not Entitled to an Offset Based on Their Levy
Payments
Both Wilmar and Musim Mas exported crude palm oil, and consequently paid levies under
the 2015 Export Levy. These levies were then deposited into the Fund. See Final IDM at 13. Based
on these payments, Plaintiffs insist that they are entitled to an offset to the amount of the benefit
they received equal to their contributions to the Fund. In their view, Commerce should have
deducted their Fund contributions when measuring the benefit received by Wilmar and Musim
Mas. Thus, Plaintiffs would have the benefit reduced by an amount equal to the total amount each
contributed to the Fund under the 2015 Export Levy. See Pls.’ Br. 25.
The Department declined to make this offset because it found that Plaintiffs’ payments into
the Fund, collected under the 2015 Export Levy, were unrelated to the amount of the grants
subsequently paid from the Fund. See Final IDM at 13 (“[A] company does not need to make any
payments into the [Fund] in order to be eligible for [Fund] payments, and a company that makes
payments into the [Fund] through [crude palm oil] export levies is not automatically, by virtue of
such payments, eligible for [Fund] payments.”).
While both Wilmar and Musim Mas paid into the Fund, there is no necessary relationship
between the source or the amount of the levies collected and eligibility to receive payments from
the Fund or the amount of the payments. That is, a company need not pay into the Fund in order
to draw payments from it. In order to be eligible for payments from the Biodiesel Subsidy Fund,
Plaintiffs need only make domestic sales of biodiesel and complete the application process dictated
by Indonesian regulation. See Final IDM at 13; see also GOI Initial Quest. Resp. at 15 (outlining
application process). So, had Wilmar and Musim Mas made no payments into the Fund, they still
would have been entitled to receive grants from it because they sold their biodiesel at the
petrodiesel price to companies designated by the Government of Indonesia.
Consol. Court No. 18-00006 Page 18
Moreover, despite Plaintiffs’ claim to an offset, it is worth noting that there is no indication
in the record that the Government of Indonesia “specifically intended” to offset the levy payments
made by exporters of crude palm oil, by means of the Biodiesel Subsidy Fund or in any other
manner. See 19 U.S.C. § 1677(6)(C) (emphasis added) (“For the purpose of determining the net
countervailable subsidy, [Commerce] may subtract from the gross countervailable subsidy the
amount of . . . export taxes, duties, or other charges levied on the export of merchandise to the
United States specifically intended to offset the countervailable subsidy received.”). Therefore,
because there is no legal or factual connection between the amounts Plaintiffs paid into the Fund
and the amounts they received, Commerce reasonably declined to offset Wilmar’s and Musim
Mas’ payments into the Fund against the amounts received from the Fund.
C. Commerce Reasonably Attributed the Biodiesel Subsidy Fund Grants to All
of Plaintiffs’ Sales of Biodiesel
Commerce calculates “an ad valorem [per program] subsidy rate by dividing the amount
of the benefit . . . by the sales value . . . of the product or products to which the [Department]
attributes the subsidy.” 19 C.F.R. § 351.525(a). In other words, before calculating an ad valorem
subsidy rate, Commerce must address the issue of attribution by determining which, if any, of
respondents’ U.S. sales were targeted by the subsidies.
In its Final Determination, Commerce found that the Biodiesel Subsidy Fund provided
grants that were tied (i.e., attributed) to all sales of biodiesel by Wilmar and Musim Mas, not just
those made in the Indonesian market. See Final IDM at 11. Thus, Commerce found that the Fund
grants, though paid only in connection with domestic Indonesian sales of biodiesel, also subsidized
Wilmar’s and Musim Mas’ U.S. sales of biodiesel. See Final IDM at 11 (stating that the Fund “is
intended to promote the production of biodiesel” without any limitation on how its payments are
used). Thus, although the grants resulted from domestic sales, and the amount of the grant was
Consol. Court No. 18-00006 Page 19
determined by using domestic sales, the grant money served to subsidize all of Plaintiffs’ biodiesel
product. For Commerce, the Government of Indonesia “inten[ded] to ensure the existence of the
biodiesel industry as a whole,” including the U.S. sales segment. Final IDM at 11.
Plaintiffs’ U.S. sales were under investigation in this case, and, since Commerce found
them to be subsidized by the Fund grants, these sales formed the basis for an ad valorem subsidy
rate for the Biodiesel Subsidy Fund payments. See 19 C.F.R. § 351.525(a). Commerce calculated
Wilmar’s and Musim Mas’ ad valorem subsidy rates for the Fund grants by dividing the total
amount of the Fund payments the companies received by the sales value of all their sales of
biodiesel during the period of investigation. See id.; see also id. § 351.504(a) (“In the case of a
grant, a benefit exists in the amount of the grant.”).
Plaintiffs object that Commerce unlawfully attributed the grants “to all biodiesel sales,”
including exports to the United States, “rather than attribut[ing] those alleged subsidies only to
Wilmar’s and Musim Mas’s sales of biodiesel in Indonesia.” Pls.’ Br. 10, 13. In Plaintiffs’ view,
the ad valorem subsidy rate for the Fund payments should be zero, because neither Wilmar nor
Musim Mas received any Fund payments for sales of biodiesel in the U.S. market. According to
Plaintiffs, the Biodiesel Subsidy Fund payments were only tied to biodiesel transactions that
occurred in Indonesia. See Pls.’ Br. 11 (“Substantial record evidence demonstrates that the [Fund]
payments were tied only to one market—domestic biodiesel sales in Indonesia [because]
Commerce . . . confirmed that the payments are limited [in availability] to domestic biodiesel sales
in Indonesia.”).
Commerce’s determination is sustained, however, because it reasonably found that the
purpose of the Fund was to subsidize biodiesel as a product, whether sold domestically or
exported, and that there were no restrictions on how the grant money would be used. See Final
Consol. Court No. 18-00006 Page 20
IDM at 11 (citing 19 C.F.R. § 351.525(b)(5)) (“The [Government of Indonesia’s] application for
[companies to seek payments] demonstrates only a concern with the commitment, capacity, and
quality of the producers of biodiesel. [It does not favor] producers that target the domestic market
over the export market but, rather, the [Fund] is intended to promote the production of biodiesel.
Therefore, we are continuing to tie [Fund] payments to all biodiesel sales.”). This Court has
recognized that “Commerce, as a matter of practice, determines whether a subsidy is tied by
evaluating the purpose of the subsidy based on information available at the time of bestowal;
Commerce does not trace how the subsidy is actually used by recipients.” Jindal Poly Films Ltd.
of India v. United States, 44 CIT __, __, 439 F. Supp. 3d 1354, 1360 (2020) (citations omitted). In
accordance with its practice, Commerce thus concluded that the Government of Indonesia was
subsidizing the production of biodiesel whether or not it stayed in Indonesia or found its way into
the world market. The subsidy stayed with the product.
Commerce is right that the Fund subsidies should be attributed to all of Wilmar’s and
Musim Mas’ sales of biodiesel (i.e., in Indonesia and the United States) during the period of
investigation. See 19 C.F.R. § 351.525(b)(5)(i) (“If a subsidy is tied to the production or sale of a
particular product, [Commerce] will attribute the subsidy only to that product.”). Indeed, the
Indonesian regulation that created the Fund described the Fund’s purpose as “ensur[ing] the
sustainable development of oil palm plantation . . . [and] . . . provision and utilization of biodiesel
type of biofuel.” See GOI Initial Quest. Resp., Ex. Pt. 8, at Ex. GOI-BSF-1; see also Final IDM at
11 (“[T]he configuration of the [Fund] suggests part of [its] intent is to ensure the existence of the
biodiesel industry as a whole, not just the domestic sales segment.”). The regulation says nothing
about providing cheap domestic biodiesel. The provision of cheap domestic biodiesel, then, is just
a means to an end—sustaining Indonesia’s biodiesel industry. Thus, Commerce found that even
Consol. Court No. 18-00006 Page 21
though the Fund payments were made only upon domestic sales of the biodiesel, the purpose of
the payments was to subsidize biodiesel in both the domestic and U.S. markets.
The court agrees that “the [Fund] is intended to promote the production of biodiesel”
without regard to whether producers such as Wilmar and Musim Mas sold their biodiesel
domestically or internationally, and that it resulted in lowering the price of Indonesian biodiesel in
the U.S. market. See Final IDM at 11. Therefore, Commerce’s decision to attribute the benefit of
the Fund payments to all of Wilmar’s and Musim Mas’ exports of biodiesel is sustained.
II. Commerce’s Determination That Crude Palm Oil, a Biodiesel Input, Was Being
Provided to Wilmar and Musim Mas for Less than Adequate Remuneration Was
Reasonable Only with Respect to the 2015 Export Levy
In addition to its finding that the payments from the Biodiesel Subsidy Fund constituted
grants, Commerce also found that the Government of Indonesia made countervailable financial
contributions to Plaintiffs by providing them with goods for less than adequate remuneration.
Specifically, the Department found that the Government of Indonesia had used (1) the 2015
Export Levy and (2) the 1994 Export Tariff to artificially lower crude palm oil’s domestic price.
The court finds that, while Commerce’s determination is reasonable as to the 2015 Export Levy,
its finding as to the 1994 Export Tariff is not supported by substantial evidence or in accordance
with law.
Under the statute, a financial contribution may take the form of goods or services. See 19
U.S.C. § 1677(5)(D). In such cases, the additional requirement of benefit conferred is met “if
such goods or services are provided for less than adequate remuneration.” Id. § 1677(5)(E)(iv).
Further, a financial contribution of any kind may exist where a government authority “entrusts or
directs a private entity to make a financial contribution,” so long as “providing the contribution
Consol. Court No. 18-00006 Page 22
would normally be vested in the government and the practice does not differ in substance from
practices normally followed by governments.” 19 U.S.C. § 1677(5)(B)(iii).
Here, Commerce determined that, through the use of the 2015 Export Levy on crude palm
oil and the 1994 Export Tariff, the Government of Indonesia kept crude palm oil in Indonesia,
increasing the domestic supply, and thus lowering its price in the Indonesian market.
A. The 2015 Export Levy Resulted in Goods Provided to Wilmar and Musim
Mas for Less than Adequate Remuneration
Plaintiffs challenge Commerce’s subsidy determination on three grounds. First, Plaintiffs
challenge the Department’s finding that the Government of Indonesia entrusted and directed
private producers of crude palm oil to provide their product to Wilmar and Musim Mas for less
than adequate remuneration. Next, Plaintiffs challenge the Department’s measurement of the
benefit Plaintiffs allegedly received: that is, Plaintiffs disagree with the benchmark that Commerce
established for measuring the adequacy of remuneration received for crude palm oil. Finally,
Plaintiffs argue that the alleged subsidy was not sufficiently specific.
The court sustains all three of Commerce’s findings in support of its subsidy determination
with respect to the 2015 Export Levy.
1. The Government of Indonesia Entrusted and Directed Private
Producers to Provide Wilmar and Musim Mas with Cheap Crude Palm
Oil
Under the statute, a countervailable financial contribution may be made indirectly where
a government authority “entrusts or directs a private entity to make a financial contribution,” so
long as “providing the contribution would normally be vested in the government and the practice
does not differ in substance from practices normally followed by governments.” 19 U.S.C.
§ 1677(5)(B)(iii).
Consol. Court No. 18-00006 Page 23
The Statement of Administrative Action accompanying the Uruguay Round Agreements
Act (“SAA”) 14 provides additional guidance for this type of financial contribution:
Commerce has found a countervailable subsidy to exist where the government took or
imposed (through statutory, regulatory or administrative action) [1] a formal, enforceable
measure [2] which directly led to [3] a discernible benefit being provided to the industry
under investigation. In cases where the government acts through a private party . . . the
Administration intends that the law continue to be administered on a case-by-case
basis . . . .
Statement of Administrative Action accompanying the Uruguay Round Agreements Act, H.R.
Doc. No. 103–316 at 926 (1994), as reprinted in 1994 U.S.C.C.A.N. 4040, 4239 (emphasis
added). The SAA acknowledges that “[t]he specific manner in which the government act[s]
through the private party to [make a financial contribution resulting in a benefit] varie[s] widely.”
Id. (emphasis added).
i. Private Crude Palm Oil Producers Provided Cheap Crude
Palm Oil for Less than Adequate Remuneration to Wilmar and
Musim Mas
Commerce found that the 2015 Export Levy on the Indonesian crude palm oil market
resulted in indirect financial contributions to Wilmar and Musim Mas in the form of goods
provided for less than adequate remuneration. Specifically, the Department stated that “export
restraints can amount to government entrustment or direction of private entities to provide financial
contributions,” and that the 2015 Export Levy “encourage[d] . . . private producers to sell their
products to Indonesian biodiesel producers[, thus keeping] domestic prices of [crude palm oil]
below world prices.” Final IDM at 16.
14
The SAA is authoritative. See 19 U.S.C. § 3512(d) (“The statement of
administrative action approved by the Congress under section 3511(a) of this title shall be regarded
as an authoritative expression by the United States concerning the interpretation and application
of the Uruguay Round Agreements and this Act in any judicial proceeding in which a question
arises concerning such interpretation or application.”).
Consol. Court No. 18-00006 Page 24
Plaintiffs insist that, for the 2015 Export Levy to constitute a financial contribution
qualifying as a subsidy, Commerce was required to find that the 2015 Export Levy compelled
Indonesian crude palm oil producers to sell their product at low prices to Wilmar and Musim Mas.
See Pls.’ Br. 32 (emphasis added) (“The [levy] fail[s] to meet the [entrustment and direction] test.
The [levy does] not affirmatively obligate private parties to supply [crude palm oil] to Indonesian
biodiesel producers at all, and certainly do not require them to provide [crude palm oil] at any
particular price.”). Plaintiffs also cite the SAA’s statement that “Commerce has found a
countervailable subsidy to exist where the government took or imposed (through statutory,
regulatory or administrative action) a formal, enforceable measure which directly led to a
discernible benefit being provided to the industry under investigation.” See SAA at 926, as
reprinted in 1994 U.S.C.C.A.N. at 4239.
Finally, Plaintiffs argue that Commerce could not reasonably have made a subsidy
determination with respect to the 2015 Export Levy because “[p]rivate parties were free to export
[crude palm oil] from Indonesia and, in fact, more than half of the [crude palm oil] that they
produced during the [period of investigation was exported from] Indonesia [to] foreign markets.”
Pls.’ Br. 34 (citing GOI Initial Quest. Resp. at 62-63). For Plaintiffs, these foreign sales indicate
that the 2015 Export Levy did not deter crude palm oil exports, and that the 2015 Export Levy
did not keep crude palm oil in Indonesia, thus increasing the supply and lowering its domestic
price.
On behalf of Commerce, Defendant argues that Plaintiffs assert an overly stringent
standard by requiring Commerce to find evidence that the Government of Indonesia
“affirmatively obligate[d]” crude palm oil producers to sell their product at reduced prices. Pls.’
Br. 32; see Def.’s Resp. Pls.’ & Consol. Pls.’ Mot. J. Agency R., ECF No. 52 (“Def.’s Br.”) 38
Consol. Court No. 18-00006 Page 25
(“[T]he SAA makes clear that the ‘entrusts or directs’ standard should be interpreted broadly, so
that ‘indirect provision’ of a subsidy does not become a ‘loophole’ for unfairly traded imports to
injure a United States industry.”). Likewise, in its Final Determination, Commerce rejected
Plaintiffs’ notion that, in order to satisfy the statute and the SAA, the 2015 Export Levy must
compel the sale of crude palm oil in the domestic market at below-market rates. Rather, the
Department believes that it only needed to confirm that, following the imposition of the 2015
Export Levy, prices of crude palm oil fell and Wilmar and Musim Mas were able to buy cheap
crude palm oil. Based on more than two years of data comparing Indonesian prices for crude palm
oil to world prices, Commerce determined that the 2015 Export Levy “represented a [Government
of Indonesia] policy supporting the respondents in the ultimate and indirect form of cheaper
[crude palm oil] prices.” Final IDM at 17 (emphasis added) (“From October 2014 through June
2015, after deducting freight expenses, the price of [crude palm oil] was always higher in
Indonesia than it was on the world market. In July 2015, when the $50/MT export levy was
implemented, prices of [crude palm oil] in Indonesia dropped well below world market prices for
15 out of the next 18 months.”).
As additional evidence, the Department noted that Indonesia has conceded that its purpose
for imposing the 2015 Export Levy was to increase the domestic supply and lower domestic
prices. In an explanation to the World Trade Organization, the Government of Indonesia stated:
The Government is making further use of export taxes [including a levy on crude
palm oil]. . . . According to the authorities, export taxes on primary commodities
can be used to reduce the domestic price of primary products in order to guarantee
supply of intermediate inputs at below world market prices for domestic processing
industries. In this way, export taxes provide an incentive for the development of
domestic manufacturing or processing industries with higher value-added exports.
Petition Exs., Vol. V.15 (Mar. 23, 2017), P.R. 20, at Ex. CVD-IND-28 (WTO Trade Policy
Review of Indonesia) (emphasis added).
Consol. Court No. 18-00006 Page 26
Further, Commerce’s subsidy determination as to the 2015 Export Levy relied on
language in the Indonesian regulation which created the Fund and made the levy its source of
funding. See Final IDM at 18; see also GOI Initial Quest. Resp., Ex. Pt. 8, at Ex. GOI-BSF-1
(“[The Fund’s purpose is] to ensure the sustainable development of oil palm plantation . . . [for
among other things, the] [p]rovision and utilization of biodiesel type of biofuels.”); GOI Suppl.
Quest. Resp. at 2 (“The export levies are primarily used to fund the [Biodiesel Subsidy Fund].”).
All in all, Commerce was satisfied that the Government of Indonesia’s 2015 Export Levy fulfilled
the intentions declared to the WTO, and that the 2015 Export Levy “ensure[s] that . . . private
[crude palm oil] producers play [the] role [of government] instruments to guarantee supply of
[crude palm oil] to biodiesel producers.” Final IDM at 17.
With respect to Plaintiffs’ argument that the 2015 Export Levy failed to create the
necessary market conditions for an indirect subsidy because exports from Indonesia continued,
Commerce justified its finding as follows:
The fact that the [Government of Indonesia] attempts to balance [its objective of
providing cheaper crude palm oil to Wilmar and Musim Mas] with competing
objectives such as ensuring continued revenue from [crude palm oil] exports does
not negate the conclusion . . . that the policy has, in fact, succeeded in causing
domestic sales and lowering domestic prices. The [Government of Indonesia] has
simply struck a balance between different aspects of its economy and different
development objectives by choosing a “softer” restraint over a full-out embargo.
Final IDM at 19. In sum, for Commerce, the Government of Indonesia “use[d] private [crude
palm oil] producers as its instruments to guarantee supply of [crude palm oil] to biodiesel
producers.” Final IDM at 17. The levy “ensure[d] that the private [crude palm oil] producers play
[the] role” of providing product to Indonesian biodiesel producers. Final IDM at 17. Put another
way, the 2015 Export Levy was enacted, at least in part, to increase the amount of crude palm oil
in the domestic market and lower its price by increasing the price of Indonesian crude palm oil
Consol. Court No. 18-00006 Page 27
on the world market. Because the levy fulfilled its intended purpose, and crude palm oil prices
fell, domestic consumers, including biodiesel producers such as Wilmar and Musim Mas, were
subsidized.
In addition, Commerce satisfied the statute and the SAA by finding that the Government
of Indonesia had implemented a “formal, enforceable measure” in the form of the 2015 Export
Levy, which the Government of Indonesia had put in place as part of a plan to suppress the
domestic price, thereby providing a cheap input for downstream products (e.g., biodiesel). See
GOI Initial Quest. Resp., Ex. Pt. 8, at Ex. GOI-BSF-1 (linking the levy to biodiesel); see also
Petition Exs., Vol. V.15, at Ex. CVD-IND-28.
Moreover, Commerce showed that the 2015 Export Levy did directly lead to the intended
contribution: consistently lower prices for crude palm oil sold in the Indonesian market. See Final
IDM at 17; See Pet.’s Rebuttal Br. (Oct. 17, 2017), P.R. 237, at 23 tbl. 1 (showing, from a
summary of Plaintiffs’ submitted data, that the Indonesian prices for crude palm oil went down
after the implementation of the levy). 15 As noted, during the nine months prior to the
15
Below is a modified version of “Table 1” from Petitioner’s Rebuttal Brief,
illustrating the difference between Indonesian prices for crude palm oil and world prices for crude
palm oil. The italicized dollar amounts represent the amount by which Indonesian prices for crude
palm oil rose above world prices. The non-italicized dollar amounts, preceded by minus signs,
represent the amount by which Indonesian prices fell below world prices.
Consol. Court No. 18-00006 Page 28
implementation of the 2015 Export Levy, Indonesian prices were always higher than world prices
for crude palm oil. 16 Conversely, for the eighteen months following the implementation of the
2015 Export Levy, including the twelve-month period of investigation, Indonesian prices only
exceeded world prices on three occasions. See Final IDM at 17; Pet.’s Rebuttal Br. at 23 tbl. 1.
The court holds that Commerce reasonably relied on this evidence in making a finding that
Indonesian prices for crude palm oil were lowered by the 2015 Export Levy.
As for Plaintiffs’ argument relating to evidence of continuing exports of crude palm oil
after the implementation of the levy, Commerce rightly recognized that nothing in the statute or
the SAA required it to show that a majority of exports had ceased, or even that a complete
16
Indonesian prices were always higher than world prices for crude palm oil when
accounting for the deduction of freight. See Final IDM at 17.
Consol. Court No. 18-00006 Page 29
embargo on crude palm oil had occurred. 17 See Final IDM at 18-19 (“Our analysis is not whether
there is a complete embargo or whether the [Government of Indonesia] seeks to support the
respondents through the complete prohibition of [crude palm oil]. Rather, the analysis is whether
the [Government of Indonesia] seeks to support the respondents through a policy and a pattern of
practice that lowers [crude palm oil] prices paid domestically by altering the attractiveness of the
domestic market vis-à-vis the export market, thereby causing private [crude palm oil] producers
to sell more of their product domestically.”); see also, e.g., SAA at 926, as reprinted in 1994
U.S.C.C.A.N. at 4239 (“Commerce has found a countervailable subsidy to exist where the
government took or imposed (through statutory, regulatory or administrative action) a formal,
enforceable measure which directly led to a discernible benefit being provided to the industry
under investigation.”). In other words, substantial evidence of cheaper prices resulting from the
2015 Export Levy supports Commerce’s subsidy determination.
Finally, the law speaks of enforceable measures leading to a contribution that provides a
benefit. The law does not require that private actors be compelled to perform a government
function for entrustment and direction to be found. See SAA at 926, as reprinted in 1994
U.S.C.C.A.N. at 4239 (“The specific manner in which the government act[s] through the private
party to [make a financial contribution resulting in a benefit] varie[s] widely.”).
17
Plaintiffs also claim that Commerce was required to look at more than the thirty
months of price data that it analyzed, because it has examined longer periods of time in other
proceedings concerning “export restraints.” See Pls.’ Br. 36. As the Department points out,
however, this argument is not properly before the court because Plaintiffs failed to raise it before
the agency. See Def.’s Br. 40; compare Pls.’ & Consol. Pls.’ Joint Case Br. (Oct. 12, 2017), P.R.
230-234, at 15-24, with Pls.’ Br. 35-37; see also 28 U.S.C. § 2637(d) (“[T]he Court of
International Trade shall, where appropriate, require the exhaustion of administrative
remedies.”).
Consol. Court No. 18-00006 Page 30
Therefore, the Department’s financial contribution finding, based on the Government of
Indonesia’s entrustment and direction of private parties through the 2015 Export Levy, is
sustained.
ii. The Use of the Export Levy to Lower Prices Was a Practice
That Would Normally Be Vested in a Government
The court also finds that Commerce did not err in finding that providing crude palm oil
for below-market prices, by means of a governmentally enacted tax system, qualified as a practice
normally vested in a government. See 19 U.S.C. § 1677(5)(B)(iii) (emphasis added) (“A subsidy
[exists when] an authority . . . makes a payment to a funding mechanism to provide a financial
contribution, or entrusts or directs a private entity to make a financial contribution, if providing
the contribution would normally be vested in the government and the practice does not differ in
substance from practices normally followed by governments.”).
Plaintiffs maintain that “Commerce took the position that [the statute] requires . . . an
assessment of ‘whether the activity would constitute a financial contribution if performed by the
government directly, rather than by the private entity that was entrusted or directed.’” Pls.’ Br.
39-40 (quoting Final IDM at 19). In so doing, they claim, Commerce duplicated its financial
contribution analysis and “render[ed] portions of the statutory text superfluous.” See Pls.’ Br. 40.
Plaintiffs argue that more is required than a finding that a financial contribution exists. To satisfy
the “entrusts or directs” standard, they argue, Commerce must have shown that the type of
contribution was one that would be “normally vested in the government”—i.e., Commerce had
to do more than repeat its determination that a financial contribution existed. See Pls.’ Br. 39-40.
Commerce, relying on this Court’s holding in Hynix Semiconductor Inc. v. United States,
stated that “the question is whether the activity would constitute a financial contribution if
performed by the government directly, rather than by the private entity that was entrusted or
Consol. Court No. 18-00006 Page 31
directed.” Final IDM at 19 (citing Hynix Semiconductor Inc. v. United States, 30 CIT 288, 308,
425 F. Supp. 2d 1287, 1305 (2006)) (approving Commerce’s decision to countervail a financial
contribution that “could be characterized as fulfilling a ‘governmental subsidy function’”)).
Plaintiffs’ arguments are without merit. As has been established, the Government of
Indonesia created the 2015 Export Levy on crude palm oil, with the intention of supporting the
biodiesel industry by providing crude palm oil at below-market prices. By imposing the levy, the
Government of Indonesia increased the price of Indonesian crude palm oil on the world market
and lowered it on the domestic market. The upshot was that the Indonesian Government used the
domestic producers of crude palm oil as its instrument to supply buyers with inexpensive crude
palm oil. Therefore, the Government of Indonesia entrusted and directed Indonesian crude palm
oil producers to provide their product, a primary biodiesel input, to biodiesel producers such as
Wilmar and Musim Mas at lower prices.
Also, Commerce reasonably found that a government’s use of a tax regulation to drive
down prices within the domestic market was uniquely within that government’s powers.
Delegating the actual provision of goods to private producers of crude palm oil is exactly the sort
of action that the entrustment and direction statute is meant to govern. See 19 U.S.C.
§ 1677(5)(B)(iii). And, in fact, that is what happened. The crude palm oil producers provided
goods for less than adequate remuneration as a result of a tax program, put in place by the
Government of Indonesia, designed to have crude palm oil producers do just that.
Therefore, the court sustains Commerce’s entrustment and direction finding with respect
to the 2015 Export Levy.
Consol. Court No. 18-00006 Page 32
2. Commerce Reasonably Used a World Price Benchmark to Measure
the Benefit Resulting from the 2015 Export Levy
Commerce must make distinct findings as to the elements of financial contribution and
benefit. See 19 U.S.C. § 1677(5)(B)(i) (financial contribution); id. § 1677(5)(E) (benefit). The
benefit derived from a countervailable subsidy is measured according to the type of financial
contribution made. See id. § 1677(5)(E).
When a subsidy takes the form of goods or services provided for less than adequate
remuneration, it must have a comparison price by which to measure any benefit. By regulation,
Commerce finds this comparison price by establishing a “benchmark” price by means of “a three-
tiered, hierarchical approach” that “determin[es] the adequacy of remuneration of an investigated
good or service.” Maverick Tube Corp. v. United States, 41 CIT __, __, 273 F. Supp. 3d 1293,
1299 (2017) (citation omitted); see 19 C.F.R. § 351.511(a)(2)(i)-(iii). Commerce’s first
benchmark preference is for “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).
If, however, the “[a]ctual market-determined price [is] unavailable,” Commerce will
compare
the government price to a world market price where it is reasonable to conclude
that such price would be available to purchasers in the country in question. Where
there is more than one commercially available world market price, the [Department]
will average such prices to the extent practicable, making due allowance for factors
affecting comparability.
Id. § 351.511(a)(2)(ii).
Thus, the regulation provides for the establishment of a benchmark. Here, Commerce
determined that crude palm oil prices from Indonesia were too distorted by the effects of the 2015
Export Levy to be used as a benchmark for measuring “adequate remuneration.” See Final IDM
at 20-21 (“[T]he record empirically demonstrates that there are no market prices of [crude palm
Consol. Court No. 18-00006 Page 33
oil] due to market distortion. Comparing the respondents’ distorted domestic purchase prices to
similarly distorted domestic prices via a ‘tier one’ benchmark would not measure the extent of
the distortion and, thus, the extent of the benefit.”). That is, because Commerce found that the
2015 Export Levy had artificially lowered crude palm oil prices within Indonesia, it could not
depend on those same prices to stand in for “adequate remuneration” when evaluating the prices
of the subset of crude palm oil sales made to Wilmar and Musim Mas. Commerce then turned to
the world market price for crude palm oil.
Plaintiffs argue that “Commerce has no such evidence of market distortion on the record,
much less evidence of ‘significant’ market distortion. . . . Commerce simply assumed domestic
sales were distorted based on pricing differentials with no basis in the statute or regulations for
doing so.” Pls.’ Br. 44, 45. To bolster their arguments, Plaintiffs point to “substantial exports” of
crude palm oil, a “large number of domestic suppliers competing for business,” and claim that
“[crude palm oil] prices in Indonesia are set by open bids and auctions on a daily basis. . . . Market
participants in Indonesia are also free to sell their [crude palm oil] to domestic buyers, or export
it.” Pls.’ Br. 45. Plaintiffs, then, would have Commerce use Indonesian domestic prices for crude
palm oil as the benchmark for comparison with the allegedly cheaper prices at which Wilmar and
Musim Mas purchased crude palm oil.
Substantial evidence, however, supports the Department’s benchmark choice. After the
2015 Export Levy was enacted in July 2015, Indonesian crude palm oil prices frequently and
sharply fell below world market prices, though they had often surpassed world market prices
before July 2015. See Final IDM at 17; Pet.’s Rebuttal Br. at 23 tbl. 1 (summarizing Plaintiffs’
submitted data). During the period of investigation, therefore (January 2016 to December 2016),
the crude palm oil market in Indonesia experienced increased supply and lowered prices. See
Consol. Court No. 18-00006 Page 34
Final IDM at 17. Although Plaintiffs propose alternative reasons for these changes, Commerce
reasonably concluded that the timing of the imposition of the 2015 Export Levy and the supply
and price change was not merely a coincidence. See Final IDM at 20 (“Our conclusion [that prices
were distorted] was not a theoretical assertion based solely on the ‘alleged’ effects, but was
instead an analysis of how and whether the price data on the record, discussed above and in the
Preliminary Determination, demonstrated a significant price differential between Indonesian and
global [crude palm oil] prices occurring alongside the implementation of the export levy.”).
Therefore, the Department reasonably found that domestic prices were distorted, and turned to a
world price benchmark in accordance with the regulation.
3. The 2015 Export Levy Was Sufficiently Specific for Purposes of the
Statute
To constitute countervailable subsidies, both direct and indirect financial contributions
that benefit a recipient must also be “specific.” See 19 U.S.C. § 1677(5)(A). The statute provides:
Where there are reasons to believe that a [domestic] subsidy may be specific as a
matter of fact, the subsidy is specific if one or more of the following factors exist:
(I) The actual recipients of the subsidy, whether considered on an enterprise or
industry basis, are limited in number.
19 U.S.C. § 1677(5A)(D)(iii) (emphasis added). The SAA additionally states that the specificity
analysis is intended to “avoid the imposition of countervailing duties in situations where, because
of the widespread availability and use of a subsidy, the benefit of the subsidy is spread throughout
an economy.” SAA at 930, as reprinted in 1994 U.S.C.C.A.N. at 4242 (emphasis added).
The issue here is whether the indirect financial contribution, that is, the provision of goods
for less than adequate remuneration stemming from the 2015 Export Levy on crude palm oil, was
de facto specific. In its Final Determination, Commerce found that crude palm oil’s usage was
Consol. Court No. 18-00006 Page 35
limited to fourteen Indonesian industries, as identified by the Government of Indonesia. See Final
IDM at 19 (citing 19 U.S.C. § 1677(5A)(D)(iii)(I)).
Plaintiffs maintain that these fourteen industries are distinct and diverse from one
another, 18 and that Commerce “summarily decided that 14 industries is a ‘limited’ number,” and
failed to “reveal against what standard the agency measured whether 14 users reflects a
sufficiently large number for de facto specificity purposes.” Pls.’ Br. 43. In Plaintiffs’ view,
fourteen industries were too many to support a finding of specificity because the use of crude
palm oil was so widespread (from ice cream and margarine to fatty alcohol), and because the
relevant use—producing biodiesel—accounted for a relatively small percentage of crude palm oil
used in Indonesia. See Pls.’ Br. 42 (citing Petition Exs., Vol. V.16 (Mar. 23, 2017), P.R. 21, at
Ex. CVD-IND-28) (“The record also shows that a relatively small amount of [crude palm
oil] is used for the production of biodiesel, as opposed to the many other uses of [crude palm
oil]. According to the WTO Trade Policy Review of Indonesia, 19 the use of [crude palm oil] for
biofuels represents less than 10 percent of total [crude palm oil] usage.”). Plaintiffs thus argue
that the specificity standard was not met.
18
Supported by the Government of Indonesia’s questionnaire response, Plaintiffs list
the fourteen industries as follows:
(1) olein; (2) palm fatty acid distillates; (3) fatty acid; (4) monoglycerides,
diglycerides, and triglycerides; (5) ice cream and margarine; (6) soap chip;
(7) edible oil and salad oil; (8) biodiesel; (9) surfactant; (10) palmitate, stearate,
oleate/glycol, and propylene glycol; (11) fatty amines; (12) fatty alcohol;
(13) glycerol; and (14) food emulsifier.
Pls.’ Br. 43 (citing GOI Initial Quest. Resp. at 73-74).
19
The most recent WTO Trade Policy Review of Indonesia, cited by Plaintiffs in their
brief, was published in 2013. See Trade Policy Review Body, Report by the Secretariat: Indonesia,
WTO Doc. TPR/S/278/Rev.1 (July 16, 2013).
Consol. Court No. 18-00006 Page 36
Commerce justified its specificity determination, however, by finding that the number of
industries benefitting from crude palm oil being provided for less than adequate remuneration did
not “encompass all possible subsidy recipients within the economy of Indonesia.” Final IDM at
19. In other words, Commerce complied with both the statute’s requirement of de facto specificity,
and the SAA’s direction to avoid countervailing subsidies with a widespread benefit throughout
an economy. The Department “recognize[d] that the nature of the products’ uses as listed by the
[Government of Indonesia] (food additives, soap, and biodiesel) are clearly not uses that would be
beneficial to every industry within the Indonesian economy.” Final IDM at 19; see also Prelim.
Dec. Mem. at 16 (“Because only certain industries make use of [crude palm oil] . . . for the
production of further processed products such as biodiesel, a limited number of enterprises and
industries use this subsidy. . . . [The levy is therefore] de facto specific.”).
The court finds that Commerce’s specificity determination is both supported by
substantial evidence and in accordance with law. The statute permits the Department to rely on a
single factor, if need be, in finding that a subsidy is de facto specific. See 19 U.S.C.
§ 1677(5A)(D)(iii) (“[T]he subsidy is specific if one or more of the following factors exist . . .”).
Commerce used the first of four factors, the “limited number of industries” factor, which required
that “[t]he actual recipients of the subsidy, whether considered on an enterprise or industry basis,
are limited in number.” Id. § 1677(5A)(D)(iii)(I).
The law of specificity does not mandate that a subsidy be limited to the product under
investigation, here, biodiesel. Rather, the law requires that the subsidy not be spread throughout
the economy. See, e.g., SAA at 930, as reprinted in 1994 U.S.C.C.A.N. at 4242 (emphasis added)
(“The specificity test was intended to function as a rule of reason and to avoid the imposition of
Consol. Court No. 18-00006 Page 37
countervailing duties in situations where, because of the widespread availability and use of a
subsidy, the benefit of the subsidy is spread throughout an economy.”).
The evidence before Commerce supported its specificity finding because the industries
that used crude palm oil were sufficiently discrete and clearly defined subsets of the Indonesian
economy. All parties agreed that the identified industries encompassed all usage of crude palm
oil within the country. See Final IDM at 19; Pls.’ Br. 43. Industries such as biodiesel or soap chip
describe not widespread availability and use of a subsidized product, but rather, a finite list of
identifiable, actual users of crude palm oil in Indonesia.
In other words, Commerce reasonably determined that the identified industries were
sufficiently defined and limited for purposes of the statute, so as to escape a finding that the
subsidy was widespread throughout the economy, and generally available and used. Accordingly,
the court upholds the Department’s specificity determination with regard to the 2015 Export Levy
on crude palm oil.
B. Commerce’s Subsidy Determination as to the 1994 Export Tariff Was Not
Reasonable
In addition to its subsidy determination regarding the 2015 Export Levy on crude palm oil,
Commerce also found that the 1994 Export Tariff on crude palm oil resulted in the same type of
subsidy. Unlike the 2015 Export Levy, which is collected on all exports of crude palm oil, the 1994
Export Tariff was only collected if a threshold price per metric ton of crude palm oil was reached
in a sale for export. See GOI Initial Quest. Resp., Ex. Pt. 13, at Ex. GOI-CPO-15.
Prior to and during the first part of the period of investigation, from October 2014 to May
2016, no export tariff revenue was collected on crude palm oil exports because the threshold price
had not been reached. See GOI Initial Quest. Resp., Ex. Pt. 13, at Ex. GOI-CPO-15. From May
2016 to December 2016 (the end of the period of investigation), the threshold having been reached
Consol. Court No. 18-00006 Page 38
for three of those months, a tariff of three dollars per metric ton was imposed. See GOI Initial
Quest. Resp., Ex. Pt. 13, at Ex. GOI-CPO-15. While the period during which the tariff was
collected was limited and the amount of the tariff collected was small, Commerce nonetheless
found the 1994 Export Tariff to be countervailable.
The Department’s reasoning was that, since the tariff rate for crude palm oil increased
when export prices for crude palm oil increased, the Government of Indonesia intended to use the
tariff to keep crude palm oil in the country to increase the supply and lower the domestic sales
price. See Final IDM at 17-18 (“The fact that the [1994 Export Tariff] increases along with world
market prices further supports the conclusion that lowering domestic prices is an aim of the overall
regime.”).
Commerce’s subsidy determination is not supported by substantial evidence, nor is it in
accordance with law. Under the statute, Commerce must demonstrate, based on substantial
evidence, that the Government of Indonesia entrusted or directed crude palm oil sellers to make a
financial contribution that was otherwise countervailable. See 19 U.S.C. § 1677(5)(B)(iii). Here,
Commerce failed to make an independent financial contribution finding with respect to the 1994
Export Tariff. Rather, Commerce justified its subsidy determination using the same reasoning it
applied to the 2015 Export Levy, and relied on evidence related to the 2015 Export Levy rather
than the 1994 Export Tariff. See Final IDM at 17-18 (discussing how the Indonesian price for
crude palm oil dropped after the implementation of the 2015 Export Levy). Therefore, Commerce
cites no evidence tending to demonstrate that the 1994 Export Tariff, independently, resulted in
cheap crude palm oil.
Also, under the statute, it was not sufficient for Commerce to demonstrate with substantial
evidence that the underlying intention of the 1994 Export Tariff was to provide biodiesel producers
Consol. Court No. 18-00006 Page 39
with cheaper crude palm oil. Rather, Commerce was required to show that crude palm oil, a good,
was provided for less than adequate remuneration—i.e., that the Government of Indonesia used
the 1994 Export Tariff to make a financial contribution to Wilmar and Musim Mas. Therefore,
Commerce’s subsidy determination was not in accordance with law because the Department
applied the wrong legal standard. That is, intention is not enough; evidence of an actual financial
contribution is required.
Commerce failed to support a subsidy determination because it pointed to no compelling
evidence of lower crude palm oil prices in Indonesia, connected to the 1994 Export Tariff. Indeed,
it acknowledged that, during the period of investigation, the 1994 Export Tariff barely had an
effect. See Final IDM at 17 (“[T]he [export tariff] was very low during the [period of investigation]
($0 or $3 [per metric ton]).”). Yet, Commerce still made a subsidy determination with respect to the
1994 Export Tariff, claiming that it was part of Indonesia’s overall “aim” of supporting the biodiesel
industry, and relying on evidence related to the 2015 Export Levy. See Final IDM at 17, 18
(emphasis added) (“The export taxes and levies ensure that the private [crude palm oil] producers
[provide cheaper crude palm oil to biodiesel producers]. From October 2014 through June 2015,
after deducting freight expenses, the price of [crude palm oil] was always higher in Indonesia than
it was on the world market. In July 2015, when the [2015 Export Levy] was implemented, prices
of [crude palm oil] in Indonesia dropped well below world market prices for 15 out of the next 18
months.”). But evidence of the 2015 Export Levy is not relevant here, and Commerce cannot rely
on it without a reason for doing so. Commerce points to no evidence that the 1994 Export Tariff,
separate from the 2015 Export Levy, yielded financial contributions to Wilmar and Musim Mas in
the form of goods provided for less than adequate remuneration.
Consol. Court No. 18-00006 Page 40
Therefore, the court remands the Department’s subsidy determination with regard to the
1994 Export Tariff. To the extent that Commerce attributed the alleged effects of the 1994 Export
Tariff to Wilmar’s and Musim Mas’ sales during the period of investigation, the court directs the
Department to recalculate its ad valorem subsidy rates for this program.
CONCLUSION and ORDER
Commerce’s Final Determination that the Government of Indonesia’s 1994 Export Tariff
constituted a countervailable subsidy is neither supported by substantial evidence nor in
accordance with law. Therefore, it is hereby
ORDERED that the Final Determination is sustained in part and remanded; it is further
ORDERED that, on remand, Commerce issue a revised Final Determination that complies
in all respects with this Opinion and Order, is based on determinations that are supported by
substantial record evidence, and is in all respects in accordance with law; it is further
ORDERED that Commerce shall make a new subsidy determination as to the 1994 Export
Tariff that is supported by substantial evidence and in accordance with law; or, in the alternative,
recalculate its ad valorem subsidy rate for goods provided for less than adequate remuneration,
excluding any claimed effects of the 1994 Export Tariff; and it is further
ORDERED that the revised Final Determination shall be due ninety (90) days following
the date of this Opinion and Order; any comments to the revised Final Determination shall be due
thirty (30) days following the filing of the revised Final Determination; and any responses to those
comments shall be filed fifteen (15) days following the filing of the comments.
/s/ Richard K. Eaton
Richard K. Eaton, Judge
Dated: August 11, 2020
New York, New York