Commerce 'Selectively Accepted' Respondent Information in Wind Tower AD Case

The Commerce Department shouldn't have rejected a questionnaire response in an antidumping duty investigation on utility scale wind towers from Spain, considering that the agency relied on responses from the relevant company on remand, Siemens Gemesa Renewable Energy argued in its July 17 remand comments at the Court of International Trade (Siemens Gamesa Renewable Energy v. U.S., CIT # 21-00449).

On remand, Commerce explained its failure to adjust Siemens Gemesa's 73% antidumping margin by selecting an additional respondent, Windar, concluding that Windar was an associate of Siemens Gemesa, and using Windar's 73% AFA-based margin from the original investigation (see 2306160021). Siemens argued that Commerce's acknowledgment that Windar was an associate of Siemens Gemesa meant that the department incorrectly rejected a response from Siemens Gemesa that included Windar data as "unsolicited" despite asking for information on the company's associates.

That language, Siemens Gemesa argued, meant that the Windar data was required in Siemens Gemesa's questionnaire response. "The Windar data included in [Siemens Gemesa's] questionnaire responses was clearly solicited by Commerce" and not including that information would have directly conflicted with the questionnaire instructions, Siemens Gemesa said. "It is simply nonsensical to suggest that a response to a questionnaire that requests information from affiliates can become an unsolicited questionnaire response when the specifically requested affiliate data is provided," it said.

Commerce’s "selective acceptance" of Windar information was arbitrary, Siemens Gemesa argued. Commerce even relied upon the Windar information in its analysis. "In fact, Commerce cites the SGRE/Windar Section A response 13 times in its remand determination," Siemens Gemesa said.

In its own remand comments, the Wind Tower Trade Coalition argued that Siemens Gemesa had failed to exhaust its remedies and had forfeited its argument regarding Windar's AFA because it never challenged that rate during the investigation. The Coalition also argued that Windar's failure to provide information created a gap in the record, which Commerce lawfully filled using an adverse inference.