Spanish Wind Tower Investigation Respondent Only a Holding Company, Petitioner Claims

Opposing the Commerce Department’s second remand redetermination regarding Spanish utility-scale wind towers (see 2406250029), a wind tower trade coalition argued July 23 that part of an investigation’s collapsed mandatory respondent is only a holding company, and so shouldn’t be allowed to participate in the review (Siemens Gamesa Renewable Energy v. U.S., CIT # 21-00449).

In its most recent redetermination on remand, published in June, the department switched from using total adverse facts available for collapsed respondent Siemens Gamesa Renewable Energy and its associate, Windar, to only partial AFA (see 307310018). As a result, both the respondent’s rate and the investigation’s all-others rate dropped from 73% to 28.55%.

But Siemens wasn’t actually a producer of wind towers, Wind Towers Trade Coalition said in its comments on the remand; “Siemens Gamesa Renewable Energy,” it said, doesn’t exist.

“The plaintiff routinely states that it is submitting documents on behalf of ‘Siemens Gamesa Renewable Energy,’ but there is no such entity,” it said. “Any ‘SGRE’ entity necessarily includes some type of corporate designation (e.g., Ltd., Inc., GmbH, S.A., AIS),” it said.

But Siemens has used the initials “SGRE” in multiple ways during this proceeding, it said. Sometimes it simply uses “SGRE,” the coalition said. Other times, it said, the exporter refers to “‘Siemens Gamesa Renewable Energy, Inc.,” or “‘Siemens Gamesa Renewable Energy, S.A.” At one point, it called the latter the holding company of Siemens Gamesa Group, which includes a U.S. branch, Siemens Gamesa Renewable Energy, Inc., and a Spanish branch, Siemens Gamesa Renewable Energy Eolica, S.L.U., the petitioner said.

“Throughout this proceeding, SGRE S.A. has misleadingly treated these legally distinct entities as a single whole under the ambiguous reference ‘SGRE,’” it said. “However, only SGRE S.A. is being investigated. SGRE S.A. filed this appeal and is the only company listed as plaintiff.”

As only a holding company, Siemens can’t be a respondent, it argued.

The trade coalition noted that court’s second remand order told Commerce to either “submit a new determination that would apply” only to Siemens or to “substitute for Windar's existing rate a new rate that it would apply to a collapsed entity,” it said. But, it said, Stanceu didn’t say that the “new determination” for Siemens “was required to be a calculated dumping margin.”

It also argued that the record showed Windar, not Siemens, was the “the producer and exporter of the subject merchandise during the period of investigation,” and it claimed that Commerce used the wrong revenue figure to estimate the wind towers’ gross unit prices.

Siemens’ case has already seen its share of ups and downs.

In his first remand order (see 2302170028), Court of International Trade Judge Timothy Stanceu found that Commerce had erroneously chosen only a single mandatory respondent for its Spanish wind tower investigation -- a different exporter that refused to participate. In other words, rather than actually investigate, Commerce had simply chosen to use the total AFA rate petitioner Wind Tower Trade Coalition was advocating "in the guise of an actual antidumping duty investigation,” Stanceu said, ordering Commerce to investigate Siemens as well.

In response, the department collapsed Siemens with its associate, Windar, and added them to the investigation. Then, claiming it was acting in line with past practice, it assigned the AFA rate it calculated for Windar to the collapsed respondent (see 2306160021). But Commerce can’t rely on past practice contrary to statute, Stanceu said in a somewhat heated second remand order in October 2023 (see 2310120031); because Siemens had been fully cooperative, he said, it couldn’t be assigned total AFA.

The department also argued it didn’t have enough record evidence to calculate an individual margin for Siemens -- but that was its own fault for failing to investigate it, the judge continued.

On remand, Commerce said it reluctantly individually examined Siemens to reach the new, lower dumping margin. It explained Siemens and Windar received a partial AFA rate of 40.96% because the latter refused to respond to a quantity and value questionnaire issued before the department had chosen its first mandatory respondent (see 2307180066).