Wind Tower Exporter Challenges Commerce's Respondent Selection Practices in AD Case

The Commerce Department effectively locked out Siemens Energy's Spanish subsidiary, Siemens Gamesa Renewable Energy, from an antidumping duty investigation on utility scale wind towers from Spain, the exporter argued in an Aug. 18 complaint at the Court of International Trade. Having applied adverse facts available and denied all exporters the right to be individually examined, Commerce failed to live up to its statutory obligations, SGRE said (Siemens Gamesa Renewable Energy v. United States, CIT #21-00449).

In the investigation, Commerce picked Vestas Eolica S.A.U., the only other exporter of the subject merchandise to the U.S. during the period of review, as the sole mandatory respondent. SGRE was the second largest exporter of the wind towers to the U.S. behind Vestas. Vestas then gave Commerce notice that it would withdraw from the investigation, not having submitted any factual information. The agency did not tap SGRE as its replacement, despite its requests to have Commerce do so.

"The Department’s failure to select SGRE, the next largest and only other known exporter, as a replacement mandatory respondent after Vestas stated its intent to no longer participate -- which precluded the Department from fulfilling its statutory obligation to conduct an individual examination -- resulting in a final determination based entirely on AFA, as implemented in the Order, is not in accordance with law," the complaint said. "... The Department’s failure to select SGRE as a replacement mandatory respondent precluded the Department from fulfilling its statutory obligation to conduct an examination of at least a single exporter."

Commerce's decision led to a 73% dumping margin on SGRE.