Commerce Rightly Rejected Wind Tower Exporter's Bid to Replace Mandatory Respondent, DOJ Says

The Commerce Department properly decided not to individually investigate Siemens Energy's Spanish subsidiary Siemens Gamesa Renewable Energy (SGRE) in an antidumping duty investigation, DOJ and AD petitioner Wind Tower Trade Coalition argued in two reply briefs at the Court of International Trade. DOJ said that the law is silent over how Commerce must proceed when all the initially picked respondents withdraw from the investigation, while the WTTC argued that it's not uncommon for Commerce to replace a mandatory respondent late in an investigation (Siemens Gamesa Renewable Energy v. United States, CIT #21-00449).

In the AD investigation into utility scale wind towers from Spain, 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. This led SGRE to file suit at CIT over the decision (see 2108190068).

In its reply to SGRE's motion for judgment, DOJ said that where the law is silent on how Commerce picks respondents, the agency evaluates whether it can reasonably examine another respondent. "This interpretation is reasonable and entitled to deference," the brief said. "SGRE’s arguments to the contrary misapprehend the statutory framework and rely on inapposite precedent." Further, the agency said it was reasonable not to pick SGRE since it didn't seek to participate as a voluntary respondent and requested individual examination over three months into the investigation.

WTTC said that SGRE "appeared satisfied to sit this investigation out" given its failure to timely submit its bid for individual examination. "Indeed, even when Vestas notified Commerce that it would no longer participate, SGRE waited nearly three weeks to request that it be selected as a replacement mandatory respondent," the petitioner said. "At that point, there were only 40 days remaining until the scheduled date of the preliminary determination. With such little time available to effectively restart an investigation, and facing significant resource constraints, Commerce reasonably and consistent with the statute decided that it could not select SGRE as a new mandatory respondent."