US Backs Decision to Collapse Wind Tower Exporter, Suppliers in AD Investigation

The U.S. on Aug. 21 defended its decision on remand to collapse respondent Siemens Gamesa Renewable Energy with its affiliated wind tower supplier Windar and Windar's manufacturing subsidies. The government also defended its finding that Siemens Gamesa is a foreign producer and the ultimate 28.55% dumping rate assigned to the company, which was lowered on remand from 73% (see 2406250029) (Siemens Gamesa Renewable Energy v. United States, CIT # 21-00449).

The Court of International Trade in October 2023 sent back the case, which contests the antidumping duty investigation on wind towers from Spain, finding that Commerce can't assign an individual company's adverse facts available rate to an entire collapsed entity (see 2310120031). In the investigation, Commerce used Windar's AFA rate for its failure to respond to a quantity and value (Q&V) questionnaire for the collapsed entity. On remand, Commerce used partial AFA for the entity's misreported control numbers and unreported factoring expenses.

AD petitioner Wind Tower Trade Coalition contested Commerce's remand on various fronts, including the decision to collapse Siemens Gamesa and Windar. The U.S. said in response the coalition waived this claim by advocating for collapsing in response to the case's first remand and now opposing the move.

The coalition also challenged Commerce's finding that Siemens Gamesa is a "foreign producer." The petitioner cited the Supreme Court's decision in Loper Bright Enterprises v. Raimondo, which rejected the Chevron principle of deferring to agencies' interpretations of ambiguous statutes, to claim that the statute limits investigation to exporters and producers and that Commerce incorrectly interpreted this statute (see 2407290045). The U.S. said Loper Bright is irrelevant, since determining whether a company is an exporter or producer is a factual matter.

Even if the decision were relevant, "that the Court must construe the statute without deference to Commerce would not follow," the brief said. "To the contrary, because the statute delegates authority to Commerce, 'courts must respect the delegation.'" At minimum, a finding that a company is a producer without looking to any facts of an individual record "could lead to absurd results that are contrary to the intention of Congress," the brief said.

The government also defended its factual finding that Siemens Gamesa is a producer and its decision to allocate price per section for wind tower sections.