Siemens Gamesa Renewable Energy v. United States

2023 CIT 149

Opinion

Slip Op. No. 23-ŗŚş

UNITED STATES COURT OF INTERNATIONAL TRADE

SIEMENS GAMESA RENEWABLE ENERGY,

Plaintiff,

v.

UNITED STATES, Before: Timothy C. Stanceu, Judge

Defendant, Court No. 21-00449

and

WIND TOWER TRADE COALITION,

Defendant-Intervenor.

OPINION AND ORDER

[Ordering a second remand in litigation contesting an agency determination concluding an antidumping duty investigation of wind towers from Spain]

Dated: October 11, 2023

Daniel J. Cannistra, Crowell & Moring LLP, of Washington, D.C., for plaintiff. With him on the briefs were Pierce Lee and Simeon Yerokun.

Sara E. Kramer, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., for defendant. With her on the brief were Brian M. Boynton, Principal Deputy Assistant Attorney General, Patricia M. McCarthy, Director, and Reginald T. Blades, Jr., Assistant Director. Of counsel on the brief was Shelby M. Anderson, Senior Attorney, Office of the Chief Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce.

Alan H. Price, Wiley Rein LLP, of Washington, D.C., for defendant-intervenor. With him on the brief were Robert E. DeFrancesco, III and Laura El-Sabaawi. Court No. 21-00449 Page 2

Stanceu, Judge: In this litigation, plaintiff contested a “less-than-fair-value”

(“LTFV”) determination by the International Trade Administration, U.S. Department of

Commerce (“Commerce” or the “Department”) concluding an antidumping duty

(“AD”) investigation of certain wind towers from Spain. The court previously ordered

Commerce to reconsider its final LTFV determination. Siemens Gamesa Renewable Energy

v. United States, 47 CIT __, 621 F. Supp. 3d 1337 (2023) (“Siemens Gamesa I”).

Before the court is a decision (the “First Remand Redetermination”), which

Commerce issued in response to the court’s opinion and order in Siemens Gamesa I.

Final Results of Redetermination Pursuant to Court Remand (Int’l Trade Admin.

June 16, 2023), ECF No. 53 (“First Remand Redetermination”). Concluding that the First

Remand Redetermination does not comply with the court’s order in Siemens Gamesa I

and is contrary to law, the court directs Commerce to issue a new decision in

conformity with the instructions set forth herein.

I. BACKGROUND

Background for this case is presented in the court’s prior opinion and is

supplemented herein. Siemens Gamesa I, 47 CIT at __, 621 F. Supp. 3d at 1339–40.

A. The Parties

Plaintiff Siemens Gamesa Renewable Energy (“Siemens Gamesa” or “SGRE”) is a

Spanish exporter of utility scale wind towers (the “subject merchandise”). Defendant is

the United States. Defendant-intervenor Wind Tower Trade Coalition is an association Court No. 21-00449 Page 3

of U.S. producers of utility scale wind towers that was the petitioner in the underlying

antidumping duty investigation.1

B. The Department’s Final Less-Than-Fair-Value Determination

The agency decision contested in this litigation (the “Final LTFV Determination”)

was published as Utility Scale Wind Towers From Spain: Final Determination of Sales at Less

Than Fair Value, 86 Fed. Reg. 33,656 (Int’l Trade Admin. June 25, 2021) (“Final LTFV

Determination”). The period of investigation (“POI”) was July 1, 2019, through June 30,

2020. Id. The Final LTFV Determination incorporated by reference an explanatory

“Issues and Decision Memorandum.” Issues and Decision Memorandum for the Final

Affirmative Determination in the Less-Than-Fair-Value Investigation of Utility Scale Wind

Towers from Spain (Int’l Trade Admin. June 14, 2021), P.R. 149 (“Final I&D Mem.”).2

The Final LTFV Determination concluded the Department’s antidumping duty

investigation of utility scale wind towers from Spain. In the course of its investigation,

Commerce sent “Quantity and Value” (“Q&V”) questionnaires to nineteen known

1 “The members of the Wind Tower Trade Coalition are Arcosa Wind Towers Inc. and Broadwind Towers, Inc.” Utility Scale Wind Towers From Spain: Preliminary Affirmative Determination of Sales at Less Than Fair Value, 86 Fed. Reg. 17,354, 17355 n.6. (Int’l Trade Admin. Apr. 2, 2021) (“Prelim. Determination”).

2 Documents in the Joint Appendix (May 26, 2022), ECF Nos. 41 (public), 42 (conf.) are cited as “P.R. __” (for public documents). Documents from the first remand proceeding, Remand Joint Appendix (Sept. 8, 2023), ECF Nos. 65 (public), 66 (conf.), are cited as “P.R.R. __” (for public documents). All information disclosed in this Opinion and Order is information for which there is no claim for confidential treatment. Court No. 21-00449 Page 4

exporters and producers of the subject merchandise, thirteen of which filed responses.

Decision Memorandum for the Preliminary Determination in the Less-Than-Fair-Value

Investigation of Utility Scale Wind Towers from Spain at 2 (Int’l Trade Admin. Mar. 29,

2021), P.R. 134. From among those thirteen companies, Commerce decided that it

would “examine individually only one respondent (i.e., a ‘mandatory respondent’),” for

which Commerce selected the company with the largest export volume, Vestas Eolica

S.A.U. (“Vestas Eolica”). Siemens Gamesa I, 47 CIT at __, 621 F. Supp. 3d at 1341 (citing

Less-Than-Fair-Value Investigation of Utility Scale Wind Towers from Spain: Respondent

Selection at 6 (Int’l Trade Admin. Dec. 23, 2020), P.R. 106 (“Respondent Selection Mem.”)

(“Based on our analysis of the Q&V questionnaire data submitted by exporters and

producers, the exporter/producer with the largest value of entries of subject

merchandise is Vestas Eolica.”)).

When Vestas Eolica notified Commerce that it would not participate in the

investigation, Utility Scale Wind Towers from Spain: Notice of Decision to Not Participate in

the Investigation at 1 (Jan. 28, 2021), P.R. 124, Siemens Gamesa filed a request with

Commerce to be investigated individually, along with its affiliated supplier Windar

Renovables (“Windar”), as a mandatory respondent. Less-Than-Fair-Value Investigation

of Utility Scale Wind Towers from Spain: Request for Mandatory Respondent Selection at 1

(Feb. 17, 2021), P.R. 128 (“SGRE Request for Mandatory Respondent Selection”). Despite the

absence of any mandatory respondents other than Vestas Eolica, Commerce rejected Court No. 21-00449 Page 5

this request. Siemens Gamesa I, 47 CIT at __, 621 F. Supp. 3d at 1342 (citing Utility Scale

Wind Towers from Spain: Request to Select Replacement Mandatory Respondent (Int’l Trade

Admin. Mar. 5, 2021), P.R. 132).

Commerce concluded that Vestas had “failed to cooperate by not acting to the

best of its ability when it did not respond to the Department’s antidumping duty

questionnaire.” Siemens Gamesa I, 47 CIT at __, 621 F. Supp. 3d at 1342 (citing Utility

Scale Wind Towers From Spain: Preliminary Affirmative Determination of Sales at Less Than

Fair Value, 86 Fed. Reg. 17,354, 17,355 (Int’l Trade Admin. Apr. 2, 2021)). Relying on

“facts otherwise available” under 19 U.S.C. § 1677e(a) and an “adverse inference” under

19 U.S.C. § 1677e(b) (collectively, “adverse facts available” or “AFA”), Commerce

assigned Vestas Eolica a preliminary dumping margin of 73.00 percent ad valorem, a rate

drawn from the petition. For the six companies, including Windar,3 that failed to

respond to the Department’s initial Q&V questionnaire, Commerce also assigned a

preliminary antidumping duty margin of 73.00 percent based on “total AFA.” Siemens

Gamesa I, 47 CIT at __, 621 F. Supp. 3d at 1343. Commerce, further, preliminarily

assigned the 73.00 percent rate as an “all-others” rate to the exporters and producers of

3 These six companies were Acciona Windpower S.A., Gamesa Energy Transmission, Haizea Wind Group, Kuzar Systems S.L., Proyectos Integrales y Logisticos S.A.A. (“Proinlosa”), and Windar Renovables. Prelim. Determination, 86 Fed. Reg. at 17,355 n.5. Court No. 21-00449 Page 6

the subject merchandise that Commerce did not individually examine, including

Siemens Gamesa. Id.

Commerce did not alter its analysis in issuing the Final LTFV Determination,

which applied “total AFA” to assign the 73.00 percent dumping margin to the sole

mandatory respondent, Vestas Eolica, and assigned that same rate to five of the six

companies the Department preliminarily had determined not to have cooperated with

the investigation by failing to respond to the Q&V questionnaires. Id. (citing Final LTFV

Determination, 86 Fed. Reg. at 33,657 (explaining that one of those six companies

attempted to cooperate with the investigation, and so “we no longer find that

application of total AFA is appropriate with respect to Proinlosa.”)). Commerce also

made no change to its preliminary determination of an “all-others” rate of 73.00 percent.

Id. Thus, Commerce assigned the 73.00 percent rate to every respondent in the

investigation.

After receiving notice of an affirmative final determination of material injury by

the U.S. International Trade Commission (“ITC”), Utility Scale Wind Towers From Spain;

Determination (Int’l Trade Comm’n Aug. 13, 2021), 86 Fed. Reg. 44,748, Commerce

published the antidumping duty order (the “Order”), Utility Scale Wind Towers From

Spain: Antidumping Duty Order, 86 Fed. Reg. 45,707 (Int’l Trade Admin. Aug. 16, 2021).

In the Order, Commerce directed U.S. Customs and Border Protection to collect 73.00

percent cash deposits on all imports of subject merchandise, “effective on the date of Court No. 21-00449 Page 7

publication in the Federal Register of the ITC’s final affirmative injury determination.”

Id., 86 Fed. Reg. at 45,708.

C. Submission of the First Remand Redetermination and Comments

In response to the court’s opinion and order in Siemens Gamesa I, Commerce

submitted the First Remand Redetermination to the court on June 16, 2023. Plaintiff and

defendant-intervenor filed comments on July 17, 2023. Plaintiff Siemens Gamesa

Renewable Energy’s Comments on Draft Remand Redetermination, ECF Nos. 55 (conf.),

56 (public) (“SGRE’s Comments”); Defendant-Intervenor Wind Tower Trade Coalition’s

Comments on Remand Redetermination, ECF Nos. 58 (conf.), 59 (public) (“Def.-Int.’s

Comments”). The government responded to those comments on July 31, 2023.

Defendant’s Response to Plaintiff’s and Defendant-Intervenor’s Comments on

Commerce’s Remand Redetermination, ECF No. 61 (“Def.’s Resp.”).

II. DISCUSSION

A. Jurisdiction and Standard of Review

The court exercises jurisdiction under section 201 of the Customs Courts Act of

1980, 28 U.S.C. § 1581(c),4 pursuant to which the court reviews actions commenced

under section 516A of the Tariff Act of 1930, as amended (“Tariff Act”), 19 U.S.C. § 1516a,

4 All citations to the United States Code herein are to the 2018 edition. All citations to the Code of Federal Regulations are to the 2023 edition. Court No. 21-00449 Page 8

including an action contesting a final determination that Commerce issues to conclude

an antidumping duty investigation.

In reviewing an agency determination, including one made upon remand to the

agency, the court “shall hold unlawful any determination, finding, or conclusion found

. . . to be unsupported by substantial evidence on the record, or otherwise not in

accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i). Substantial evidence refers to

“such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” SKF USA, Inc. v. United States, 537 F.3d 1373, 1378 (Fed. Cir. 2008) (quoting

Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).

B. The Court’s Prior Opinion and Order

In Siemens Gamesa I, the court held that “[t]he assignment of the 73.00 percent

rate to Siemens Gamesa was unlawful because it resulted from an unlawful respondent

selection method, Commerce having limited its individual examination to a single

respondent.” 47 CIT at __, 621 F. Supp. 3d at 1348. The court ruled that the statute, in

19 U.S.C. § 1677f-1(c)(2), as interpreted by the Court of Appeals for the Federal Circuit

(“Court of Appeals”) in YC Rubber Co. (North America) LLC v. United States, No. 21-1489,

2022 WL 3711377 (Fed. Cir. Aug. 29, 2022) (“YC Rubber”), requires Commerce to

“determine the weighted average dumping margins for a reasonable number of exporters

or producers,” where “a ‘reasonable number’ is generally more than one.” Siemens

Gamesa I, 47 CIT at __, 621 F. Supp. 3d at 1345 (quoting YC Rubber, 2022 WL 3711377, Court No. 21-00449 Page 9

at *4). Noting that “Commerce announced its decision to examine individually only

one respondent in the Respondent Selection Memorandum and never departed from

that decision throughout the conduct of the entire investigation,” the court held that

“[t]he Department’s assigning the 73.00 percent rate to Siemens Gamesa was a result of

that unlawful decision, which, when viewed according to the holding YC Rubber, was

not based on a permissible interpretation of 19 U.S.C. § 1677f-1(c)(2).” Id. The court

ruled, additionally, that the Department’s assignment of the 73.00 percent rate to

Siemens Gamesa as an “all others” rate did not satisfy the “reasonable method”

requirement of the Tariff Act. Id., 47 CIT at __, 621 F. Supp. 3d at 1345–47.

Commerce earlier had determined that it would select its mandatory respondent

based on “largest export volume under 19 U.S.C. § 1677f-1(c)(2)(B),” id., 47 CIT at __,

621 F. Supp. 3d at 1348 (citing Respondent Selection Mem. at 6), a decision not challenged

in this litigation and therefore final. Accordingly, the court held that the Department’s

unlawful decision “not to examine Siemens Gamesa individually as the largest

remaining exporter . . . must be remedied by an individual investigation of Siemens

Gamesa during the remand proceeding the court is ordering.” Id., 47 CIT at __, 621

F. Supp. 3d at 1349.

C. The First Remand Redetermination

In the First Remand Redetermination, Commerce reported to the court that it

“has now individually investigated SGRE.” First Remand Redetermination at 1. Court No. 21-00449 Page 10

Commerce further informed the court that it conducted a “collapsing” analysis under

19 C.F.R. § 351.401(f), under which it decided to treat Siemens Gamesa and six other

companies as a single entity for purposes of the remand proceeding. Id. at 1–2, 6 (citing

Remand for the Less-Than-Fair-Value Investigation of Utility Scale Wind Towers: Preliminary

Affiliation and Collapsing Memorandum for Siemens Gamesa Renewable Energy S.A. and

Windar Renovables S.A. (Int’l Trade Admin. Apr. 25, 2023), P.R.R. 69 (“Collapsing

Mem.”)). The six companies were Windar and five other companies Commerce

described as wholly-owned subsidiaries of Windar: Tadarsa Eolica SL, Windar Offshore

SL, Windar Wind Services SL, Aemsa Santana SA, and Apoyos Metalicos SA. Id.

at 2 n.4. Commerce found that the seven companies were “affiliated” within the

meaning of section 771(33) of the Tariff Act, 19 U.S.C. § 1677(33), and that “it is

appropriate to treat SGRE and Windar (and certain Windar subsidiaries) as a single

entity, because their operations with respect to the sale and production of subject

merchandise are intertwined.” Id. at 1–2 (citing Collapsing Mem.).

In the First Remand Redetermination, Commerce assigned the seven-company

entity an estimated weighted average dumping margin of 73.00 percent. Commerce

gave as its rationale: (1) that, following its finding that Windar failed to respond to the

Q&V questionnaire in the underlying investigation, it had determined in the Final LTFV

Determination to assign to one of the seven companies in the collapsed entity, Windar,

a 73.00 percent rate as an adverse inference, id. at 22; (2) that Windar’s 73.00 percent rate Court No. 21-00449 Page 11

was “final” because Windar did not challenge it in the Final LTFV Determination, id.;

(3) that in Siemens Gamesa I “the Court did not require (or even permit) the agency to

revisit its final/unchallenged decision applying AFA to Windar,” id. at 26; and (4) that

the assignment of the 73.00 rate to the entire seven-company entity “is consistent with

extensive agency practice,” id. at 22.

Because the decision Commerce reached in the First Remand Redetermination

was unlawful, the court sets it aside and orders Commerce to conduct additional

proceedings. The court concludes that the First Remand Redetermination was contrary

to law in three major respects.

First, Commerce relied on a conclusion that the 73.00 percent adverse inference

rate Commerce assigned Windar in the original investigation is final and controlling

with respect to its decision. This was incorrect. Any decision the court might sustain

that involves collapsing of the seven companies necessarily would render null and void

the original assignment of the 73.00 percent rate to Windar and would supplant it on

remand with a newly-determined rate for the combined entity.

Second, in using an inference adverse to Siemens Gamesa, the First Remand

Redetermination does not comply with section 776 of the Tariff Act, 19 U.S.C. § 1677e.

The record evidence does not support, and instead refutes, a finding that Commerce

could resort to “facts otherwise available” under section 776(a) of the Tariff Act,

19 U.S.C. § 1677e(a). Substantial evidence on the record fails to support the Court No. 21-00449 Page 12

Department’s finding that the absence of a response by Windar to the Q&V

questionnaire in the underlying investigation impaired the Department’s ability to

investigate Siemens Gamesa individually and assign it an estimated dumping margin in

the remand proceeding, as the court directed it to do. To the contrary, Commerce

reopened the record during that remand proceeding, conducted a questionnaire

process, and did not find that Siemens Gamesa failed to provide the information it

requested or otherwise failed to cooperate.

Third, Commerce repeated the error it made in the Final LTFV Determination

with respect to an all-others rate. Noting that “we have assigned the SGRE/Windar

entity a single dumping margin, i.e., 73.00 percent,” Commerce decided that “[b]ecause

there are no other rates on the record of this proceeding from which to select a different

‘all-others rate,’ the ‘all others’ rate remains unchanged.” Id. at 37–38.

1. Effect of the “Finality” that Attached to the Rate Commerce Assigned to Windar in the Final LTFV Determination

Commerce noted that Windar did not contest its assignment in the Final LTFV

Determination of the 73.00 percent rate. First Remand Redetermination at 8. Defendant

and defendant-intervenor also point out that Windar’s 73.00 percent adverse inference

rate, as assigned in the Final LTFV Determination, was final and unchallenged.

Def.-Int.’s Comments 8; Def.’s Resp. 7. These conclusions are correct, as Windar is not a

plaintiff in this case and did not otherwise contest the Final LTFV Determination before

this Court. Court No. 21-00449 Page 13

Commerce misinterpreted the consequence of the finality that attached to

Windar’s adverse inference rate as a result of the Final LTFV Determination. The

consequence of that finality is that any exports of subject merchandise by Windar that

are occurring or may occur in the future will be subject to a 73.00 percent deposit rate,

but only for so long as that rate is in effect.5 The First Remand Redetermination would

collapse Windar with six other companies and assign the combined entity a newly

determined rate (which the First Remand Redetermination would set at 73.00 percent).

Were the court to sustain a future determination by Commerce upon remand that

assigns a rate to a collapsed entity that includes Windar, the court’s sustaining of that

remand redetermination necessarily would vacate the existing 73.00 percent rate for

Windar, as determined by Commerce in the Final LTFV Determination, and supplant it

with a newly determined rate. In its reasoning, Commerce overlooked that subject

merchandise exports by Windar (were any to occur) could not be subject to the old rate

and the newly determined rate at the same time. The First Remand Redetermination

reasoned that the “finality” of Windar’s rate supports the decision it reached in the First

5 Plaintiff states that, according to all record evidence, Windar provided wind tower components to Siemens Gamesa but did not itself export subject merchandise to the United States during the period of investigation. See Plaintiff Siemens Gamesa Renewable Energy’s Comments on Draft Remand Redetermination 2, ECF Nos. 55 (conf.), 56 (public). As discussed later in this Opinion and Order, record evidence supports plaintiff’s statement. Court No. 21-00449 Page 14

Remand Redetermination to subject Siemens Gamesa to a 73.00 percent rate. See First

Remand Redetermination at 26. It does not.

Siemens Gamesa I, while directing Commerce to investigate plaintiff Siemens

Gamesa individually, did not address the issue of whether on remand Commerce could

collapse Siemens Gamesa with any other companies. The court neither requires nor

prohibits Commerce, in going forward, from using a collapsing analysis. In the Second

Remand Redetermination the court is ordering, Commerce has a choice between two

options. Commerce may submit a new determination that would apply to Siemens

Gamesa alone and allow to stand as “final” the uncontested, 73.00 percent rate it

assigned to Windar in the Final LTFV Determination. This option necessarily would

foreclose any collapsing of Siemens Gamesa with Windar. The other option open to

Commerce is to substitute for Windar’s existing rate a new rate that it would apply to a

collapsed entity. But Commerce cannot repeat the internally inconsistent approach it

took in the First Remand Redetermination, which in effect attempted to do both.

Defendant points out that plaintiff did not object to the decision in the First

Remand Redetermination to collapse it with Windar and the Windar subsidiaries.

Def.’s Resp. 4–7 (quoting SGRE’s Letter Regarding Collapsing (May 1, 2023), P.R.R. 74

(“SGRE concurs with the Department’s preliminary determination regarding collapsing

in the instant investigation.”)). That is true, but Siemens Gamesa did object to the

outcome of the Department’s collapsing analysis, which was to assign the 73.00 percent Court No. 21-00449 Page 15

rate to all seven companies in the collapsed entity. SGRE’s Comments 2. Because the

determination to assign that rate was unlawful, the court must set it aside (along with

its reasoning), and as a result it is up to Commerce to decide whether or not it will use a

collapsing methodology in the second remand proceeding.

Defendant argues that “[n]either SGRE nor Windar challenged Windar’s rate

before Commerce during the investigation, and thus failed to exhaust their

administrative remedies.” Def.’s Resp. 7. Defendant-intervenor argues, similarly, that

Siemens Gamesa “failed to exhaust its administrative remedies regarding Windar’s

AFA rate,” Def.-Int.’s Comments 8, on the premise that Siemens Gamesa “did not raise

the issue of Windar’s rate until Commerce’s remand proceeding,” id. at 9. These

arguments are meritless. Commerce decided to apply a 73.00 percent adverse inference

rate to Siemens Gamesa (as a member of the collapsed entity) for the first time on

remand, not in the Final LTFV Determination, and plaintiff has a right to contest that

decision upon judicial review. The Final LTFV Determination had applied a 73.00

percent rate to Siemens Gamesa as an all-others rate (which Siemens Gamesa

successfully contested before the court), not as an adverse inference rate. In this way,

the First Remand Redetermination would adopt an approach different than the one

Commerce took in the Final LTFV Determination. In its comments on the Department’s

draft version of the First Remand Redetermination, Siemens Gamesa exhausted its

administrative remedies when it contested the assignment of Windar’s adverse Court No. 21-00449 Page 16

inference rate to the collapsed entity. See Antidumping Duty Investigation of Utility Scale

Wind Towers from Spain: Comments on Draft Remand Determination at 4–5, 7 (May 24,

2023), P.R.R. 80.

2. The Department’s Use of an Adverse Inference Rate in the First Remand Redetermination

Section 776(b)(1) of the Tariff Act authorizes Commerce to use an inference

“adverse to the interests” of an “interested party” that “has failed to cooperate by not

acting to the best of its ability to comply with a request for information.” 19 U.S.C.

§ 1677e(b)(1). Although they are affiliated, and despite a “collapsing” determination by

Commerce, Siemens Gamesa, Windar, and Windar’s subsidiaries remained separate

entities. Commerce itself acknowledged this point. First Remand Redetermination at 31

(“[B]oth SGRE and Windar remain separate legal entities, even though collapsed for AD

purposes.”).

Courts have recognized limited situations in which an interested party’s failure

to cooperate can have an adverse collateral effect on a fully cooperative party. This case

does not present one of them. The collapsing procedure is a creation of the

Department’s regulation, 19 C.F.R. § 351.401(f), that is not contained in any provision of

the Tariff Act. From the perspective of 19 U.S.C. § 1677e(b)(1), which contains no

exception broadening its scope in the situation presented by this case, Siemens Gamesa,

Windar, and Windar’s subsidiaries remained separate “interested parties.”

Nevertheless, Commerce applied an adverse inference to the prejudice of Siemens Court No. 21-00449 Page 17

Gamesa (the sole plaintiff in this case) in the remand proceeding, based entirely on

Windar’s failure to submit a response to the Q&V questionnaire in the original

investigation. Rather than allow Commerce to act punitively, § 1677e is intended to

induce cooperation on the part of an interested party to a proceeding. According to the

Department’s own findings, Siemens Gamesa, the party Commerce was charged with

investigating individually on remand, did not fail to cooperate, either in the

investigation culminating in the Final LTFV Determination or in the remand

proceeding. When an agency’s regulation (in this case, 19 C.F.R. § 351.401(f)) conflicts

with the intent and purpose of a statute (here, 19 U.S.C. § 1677e), the statute must

prevail.

Applying an adverse inference rate to Siemens Gamesa in the remand

proceeding also was unlawful because it was unsupported by valid factual findings as

required by 19 U.S.C. § 1677e(a). Referring to subsection (a), subsection (b) of section

776 of the Tariff Act provides for the use of an adverse inference “in selecting from

among the facts otherwise available.” 19 U.S.C. § 1677e(b). With respect to the “facts

otherwise available,” the First Remand Redetermination relied on its findings that, due

to Windar’s failure to provide a response to the Q&V questionnaire, “relevant

information remains missing from the record,” that “the time to supply that

information has long passed,” and that “incomplete” information provided by SGRE in

the remand proceeding did “not overcome Windar’s failure to provide a timely Q&V Court No. 21-00449 Page 18

questionnaire response.” First Remand Redetermination at 34. These findings are

contrary to the record evidence, which: (1) refutes the finding that the lack of a response

to the Q&V questionnaire deprived Commerce of information it needed to examine

Siemens Gamesa individually in the remand proceeding (as the court ordered it to do);

and (2) shows that Commerce reopened the record during the remand proceeding to

collect additional information, obtained the information it sought, and did not find that

Siemens Gamesa withheld any information or was untimely in responding to the

Department’s requests. The Department’s use of an adverse inference against Siemens

Gamesa was not supported by valid findings for the use of facts otherwise available, as

the court explains in further detail below.

Addressing the lack of a response from Windar to the Q&V questionnaire,

Commerce found as follows in the First Remand Redetermination:

Given Windar’s failure to provide a response to the Q&V questionnaire, Windar effectively prevented itself from consideration as an individually examined respondent in the LTFV investigation. Nothing on the record remedies this deficiency. SGRE’s section A response, in turn, only confirms that Windar was the source of SGRE’s exports; it neither constitutes a timely Q&V response from Windar nor necessarily identifies the full extent of Windar’s exports to the United States (through SGRE, or otherwise).

First Remand Redetermination at 33–34 (footnote omitted). The record evidence does not

support, and instead refutes, the findings that “nothing on the record remedies this

deficiency,” that SGRE’s Section A response does no more than “confirm that Windar

was the source of SGRE’s exports,” and that this response did not identify “the full Court No. 21-00449 Page 19

extent of Windar’s exports to the United States (through SGRE, or otherwise).”

Commerce overlooked the point that questionnaire responses Siemens Gamesa

submitted during the remand proceeding remedied any deficiency that could have

arisen from Windar’s earlier failure to provide the Q&V response. They also provided

information in addition to the fact that Windar was the source of SGRE’s exports,

including the information that Windar had no exports to the United States during the

POI, either directly or through a third country.

The Q&V questionnaire Commerce used in the underlying antidumping duty

investigation contained the following instruction:

Please include only sales exported by your company directly to the United States. However, if your company made sales to third countries for which you have knowledge that the merchandise was ultimately destined for the United States, please separately identify these sales quantities and the location (i.e., countries) to which you made the sales.

Antidumping Duty Investigation of Utility Scale Wind Towers from Spain: Issuance of

Quantity and Value Questionnaires at Attachment I (Int’l Trade Admin. Nov. 25, 2020),

P.R. 49 (“Q&V Questionnaire”). In its Section A questionnaire response, SGRE identified

the “distribution channels” through which Windar sold subject merchandise.

Antidumping Duty Investigation of Utility Scale Wind Towers from Spain: Siemens Gamesa

Renewable Energy Section A Questionnaire Response at 16–17 (Mar. 10, 2023), P.R.R. 8–40

(“Section A Response”). These channels were home market sales to its affiliate SGRE,

sales to an unaffiliated home market customer, and sales to an unaffiliated company in Court No. 21-00449 Page 20

a third country, for which the ultimate destinations of the subject merchandise did not

include the United States. Id.; see also id. at 2–5 (explaining that “Windar has two

methods of selling wind towers and wind tower sections to entities other than SGRE”:

sales to unaffiliated “non-SGRE customers in the Spanish market” and sales to one

unaffiliated “third party customer” in a third country for final delivery in countries

other than the United States). According to SGRE’s Section A questionnaire response,

Windar made no sales “exported . . . directly to the United States,” nor did Windar

make any “sales to third countries . . . ultimately destined for the United States.” Q&V

Questionnaire at Attachment I. The Q&V instructions and SGRE’s Section A

questionnaire response, read together, informed Commerce that no export sales of

Windar were reportable in response to the Q&V questionnaire.

Despite the record evidence, Commerce reached the unsupported finding that

the Section A response did not identify “the full extent of Windar’s exports to the

United States (through SGRE, or otherwise).” First Remand Redetermination at 33–34.

Commerce further erred in finding that “where Windar was the first company in the

chain of distribution with knowledge that the wind towers were destined for the United

States, Windar should have reported these transactions in its Q&V response, consistent

with Commerce’s practice.” Id. at 34 n.144 (citation omitted). This finding is

invalidated by the Department’s instructions for the Q&V questionnaire, which

expressly told respondents to report only direct sales to the United States except for Court No. 21-00449 Page 21

sales in third countries for which the respondent has knowledge that the merchandise

was ultimately destined for the United States. Q&V Questionnaire at Attachment I.

In summary, the Department’s use in the First Remand Redetermination of facts

otherwise available and an adverse inference under 19 U.S.C. § 1677e did not comply

with the purpose and intent of that statutory provision and lacked an evidentiary basis.

The various findings Commerce put forth in support of its use of facts otherwise

available were refuted by the record information Commerce obtained during the

remand proceeding.

3. The Department’s Finding that the Record Did Not Allow It to Perform a Margin Calculation

In the context of discussing why “corroboration” for its adverse inference rate is

not necessary or feasible, Commerce stated as follows in the First Remand

Redetermination:

While the record now contains additional information with respect to SGRE’s U.S. prices and Windar’s costs of production, none of this information is useable as the basis for a margin calculation. Of note, SGRE’s U.S. prices are transfer prices from Windar (i.e., an affiliated party), which are generally not used under section 772 of the Act [19 U.S.C. § 1677a] as the basis for a calculated dumping margin; Windar’s costs consist of a single, aggregate figure, not differentiated by product or broken into its component elements. Further, Commerce did not analyze the reported prices or costs for accuracy or attempt to identify any deficiencies in them that needed correction. Finally, Commerce did not collect pricing information related to home market or third country sales (although Windar had viable third country markets), and Commerce did not establish a deadline for the petitioner to allege that the multinational corporation provision applied to those foreign market sales (although the petitioner requested that Commerce permit such an allegation). Thus, the Court No. 21-00449 Page 22

information on the record with respect to SGRE/Windar’s U.S. prices and normal values are potentially inaccurate, unusable, and/or incomplete.

First Remand Redetermination at 35–36. In this quoted passage from the First Remand

Redetermination, Commerce indicates that it cannot determine an estimated weighted

average dumping margin that would apply to Siemens Gamesa (either individually or

as part of collapsed entity). This rationale is unsatisfactory, in three respects.

First, the state of the record resulted in part from the inadequate “investigation”

Commerce performed prior to the issuance of the Final LTFV Determination, during

which Commerce, by its own choice, did not examine individually the export sales of

any respondent and thereby failed to conduct what could be described as a valid

antidumping duty investigation. Instead, Commerce assigned to every respondent in

the investigation a 73.00 percent rate, which was derived from an adverse inference rate

based solely on information in the petition. As the court concluded previously:

Congress entrusted Commerce with the responsibility to conduct an antidumping duty investigation, and to assign individual and, if necessary, all-others rates, according to detailed requirements set forth in the Tariff Act. Here, it was not lawful for Commerce to evade that investigative responsibility by outsourcing the critical determination to the petitioner.

Siemens Gamesa I, 47 CIT at __, 621 F. Supp. 3d at 1347. In the original investigation, the

absence of record information from which to calculate an individual estimated

dumping margin for Siemens Gamesa (whether or not as part of a collapsed entity) also

resulted from the Department’s own rejection of the request of Siemens Gamesa, on Court No. 21-00449 Page 23

behalf of itself and Windar, to be a mandatory respondent. After Vestas Eolica declined

to participate in the investigation, Siemens Gamesa sent a letter to Commerce “[o]n

behalf of Siemens Gamesa Renewable Energy (SGRE), an exporter of subject

merchandise . . . and SGRE’s affiliated supplier, Windar Renovables” requesting to be

selected as “a mandatory respondent for individual investigation.” SGRE Request for

Mandatory Respondent Selection at 1. The reasons upon which Commerce unlawfully

rejected that request had nothing to do with Windar’s failure to respond to the Quantity

and Value questionnaire. Siemens Gamesa I, 47 CIT at __, 621 F. Supp. 3d at 1342. That

unlawful rejection left the court with no alternative but to remand the Final LTFV

Determination to Commerce for correction of the Department’s investigative error

through an individual investigation of Siemens Gamesa—the only plaintiff in this

litigation—that will satisfy the agency’s statutory obligation.

Second, the state of the record also is the result of the information collection

process Commerce employed in the remand proceeding. It appears that Commerce is

now informing the court that it considers the record inadequate to allow it to determine

an estimated weighted average dumping margin for Siemens Gamesa. If such is the

case, the problem is one of the Department’s own making. In the remand proceeding,

Commerce reopened the record, designed a questionnaire procedure for the purpose of

obtaining the information it needed, and acknowledged that it had obtained the

information it requested. Court No. 21-00449 Page 24

Third, Commerce included in its rationale a finding that is unsupported by the

record evidence. Further to the Department’s conclusion that record evidence did not

allow it to calculate a dumping margin was the finding that “SGRE’s U.S. prices are

transfer prices from Windar (i.e., an affiliated party), which are generally not used

under section 772 of the Act [19 U.S.C. § 1677a] as the basis for a calculated dumping

margin.” First Remand Redetermination at 35. The record does not establish that SGRE’s

U.S. prices are transfer prices from Windar. See Section A Response at 16. Section 772 of

the Tariff Act requires Commerce to determine U.S. price by one of various methods

and to do so reasonably. See 19 U.S.C. § 1677a; see also 19 C.F.R. § 351.402. SGRE

provided information pertinent to a determination of U.S. price. Section A Response at

16–17; Antidumping Duty Investigation of Utility Scale Wind Towers from Spain: Siemens

Gamesa Renewable Energy Section C Questionnaire Response at 1–4 (Apr. 14, 2023), P.R.R.

58–66. It was impermissible for Commerce to ignore and misstate record evidence in an

attempt to justify its use of AFA.

With respect to the current state of the record, Commerce rejected as

“unsolicited,” and thus excluded from the record, the “data sourced from Windar.”

First Remand Redetermination at 24–25. Commerce stated that it sent SGRE its standard

antidumping duty questionnaire, that SGRE responded and also indicated that it would

file a consolidated response on behalf of itself, Windar, and Windar’s subsidiaries, and

that Commerce requested additional information on March 28, 2023, which SGRE Court No. 21-00449 Page 25

provided on March 30 and April 3, 2023. Id. at 4. Commerce added that “[o]n

March 30, 2023, Commerce directed SGRE not to provide information sourced from

Windar, and instructed SGRE to limit its reporting to the company’s own information.”

Id. (citing Utility Scale Wind Towers from Spain: Submission of Questionnaire Response (Int’l

Trade Admin. Mar. 30, 2023), P.R.R. 45 (“Questionnaire Resp. Submission Mem.”)).

“SGRE, nonetheless, filed a joint response to the remaining sections of Commerce’s

questionnaire.” Id. (footnote omitted). Commerce stated, further, that “[b]ecause SGRE

submitted an unsolicited questionnaire response containing extensive data sourced

from Windar, we rejected SGRE’s response and afforded SGRE an opportunity to

resubmit it in the form and manner requested in our March 30, 2023, instruction.” Id.

(footnote omitted). Commerce added that “SGRE resubmitted this information on

April 14, 2023.” Id. (footnote omitted).

The First Remand Redetermination reasoned that “[g]iven that SGRE’s responses

to these questionnaires revealed that SGRE was functioning as a single entity with

Windar—a company that received a margin based on AFA in the LTFV investigation—

Commerce immediately instructed SGRE not to provide data sourced from Windar.”

Id. at 24. Siemens Gamesa objected to the exclusion of the Windar data, arguing that it

was not “unsolicited” because Commerce actually did request it. SGRE’s Comments 3

(quoting Antidumping Duty Investigation Initial Questionnaire at G-10 (Int’l Trade Admin.

Feb. 17, 2023), P.R.R. 1 (directing Siemens Gamesa to “[p]repare only a single response Court No. 21-00449 Page 26

for you and your affiliates involved with the production or sale of the products under

investigation . . . .”)). The First Remand Redetermination acknowledged that

Commerce initially requested the Windar-related information but insisted that

“SGRE/Windar misconstrues Commerce’s practice, as well as the purpose behind what

is, at best, a generic instruction given to all questionnaire respondents” that is “intended

to cover routine, non-controversial situations.” First Remand Redetermination at 25. The

First Remand Redetermination further explained that “Commerce (as is its prerogative)

instructed SGRE to exclude data sourced from Windar—an affiliate that received an

AFA rate for failing to cooperate in the underlying LTFV investigation.” Id.

From the statements in the First Remand Redetermination, it appears that the

underlying reason for the rejection of the Windar-related data, which SGRE provided,

stemmed from the Department’s erroneous conclusion that “finality” attaching to the

73.00 percent rate Commerce assigned to Windar in the Final LTFV Determination

would affect the rate to be assigned to the collapsed entity comprised of the seven

companies. But any “finality” attaching to Windar’s 73.00 percent rate, as assigned in

the Final LTFV Determination, fails as a justification to support the rejection of the

Windar-related data. As the court explained earlier in this Opinion and Order, the 73.00

percent Windar rate is “final” for only so long as it remains in effect, and if replaced by

a rate determined for a collapsed entity, it no longer can be in effect. Further, it is

reasonable to presume that an actual examination of the collapsed entity would require Court No. 21-00449 Page 27

consideration of data of the members of that entity, including Windar. Accordingly, it

is not apparent how the Department’s decision to remove the Windar data from the

record can be reconciled with an objective of calculating an estimated dumping margin

for the entity Commerce identified when it collapsed Siemens Gamesa with Windar and

the Windar subsidiaries.

The record does not give the court confidence that Commerce had the objective

of investigating and giving Siemens Gamesa an estimated dumping margin, as the

court directed it to do. The decision Commerce made on March 30, 2023, to instruct

SGRE to exclude the Windar data from subsequent questionnaire responses,

Questionnaire Resp. Submission Mem. at 1, in conjunction with the decision on April 25,

2023, to collapse Windar and its subsidiaries with SGRE, Collapsing Mem. at 1,

reasonably indicates to the court that Commerce already had reached a tentative

decision not to calculate an actual dumping margin for the collapsed entity, a decision

Commerce never reversed during the remand proceeding, and to assign it the 73.00

percent rate instead. Nevertheless, defendant requested an extension of time for

Commerce to submit the First Remand Redetermination. Motion For an Extension of

Time for Department of Commerce to File its Remand Redetermination (May 11, 2023),

ECF No. 48. Defendant explained in its request that:

Good cause exists for granting this extension. Commerce has made progress in preparing its remand redetermination. Commerce issued its Section A questionnaire to Siemens Gamesa Renewable Energy (SGRE) the day after receiving the Court’s order. Commerce received multiple Court No. 21-00449 Page 28

requests for extensions from SGRE to file its questionnaire responses, observing in one request the “extremely time consuming” process an investigation requires. Commerce granted the requested extensions.

Id. at 1–2. Reasonably presuming Commerce was conducting the individual

investigation of Siemens Gamesa that it had ordered Commerce to perform, the court

granted defendant’s request, enlarging the time for submission of a remand

redetermination from 90 to 120 days, despite plaintiff’s objection that the extension

would unduly delay the proceeding. See Order 2–3 (May 17, 2023), ECF No. 52. The

Department’s decision to assign the collapsed entity the 73.00 percent adverse inference

rate, based essentially on nothing more than its collapsing decision and what it

described as its “practice,” unfortunately has delayed this litigation even further.

Having itself designed its questionnaires and having chosen to pursue a

collapsing analysis, it was implausible for Commerce to maintain that the lack of

Windar’s response to Commerce’s Q&V questionnaire in the original investigation

prevented it from determining an actual estimated dumping margin that would apply

to Siemens Gamesa, which the court’s order required it to do. If the Department’s

exercising its “prerogative” to reject the Windar-related information contributed to the

Department’s perceived inability to calculate an estimated dumping margin for SGRE,

Commerce will have the opportunity to address this problem by taking steps to

supplement the record during the next remand proceeding. Court No. 21-00449 Page 29

4. The Reliance on a “Practice” of Assigning an Adverse Inference Rate of a Single Company to an Entire Collapsed Entity

The First Remand Redetermination puts forth its own administrative practice as

a justification for subjecting Siemens Gamesa to a 73.00 percent adverse inference

margin. First Remand Redetermination at 6, 31 (“Commerce’s practice, when collapsing

two companies, one of which has an existing AFA rate, into a single entity, is to assign

the existing rate to the collapsed entity.”) (footnote omitted). This justification is

unavailing.

Whatever it may consider its practice to be, Commerce is not permitted to apply

it contrary to a statute. With respect to 19 U.S.C. § 1677e, it has sought to do just that in

the circumstance presented here. Citing Zhaoqing New Zhongya Aluminum Co. v. United

States, 36 CIT 1390, 1399, 887 F. Supp. 2d 1301, 1310 (2012) (“Zhaoqing New Zhongya

Aluminum”), Commerce also asserted that “CIT precedent” supports this practice. Id.

at 31. This case is inapposite, for two reasons. First, Commerce determined in that case

that “each of the three companies that makes up the collapsed entity failed to

cooperate.” Zhaoqing New Zhongya Aluminum, 36 CIT at 1394, 887 F. Supp. 2d at 1306.

Therefore, the case did not present the issue of whether Commerce could apply an

adverse inference rate to a fully cooperative interested party. Second, although the

opinion in Zhaoqing New Zhongya Aluminum mentions the Department’s practice “to

apply AFA to the entire entity when one producer within it fails to cooperate,” it did Court No. 21-00449 Page 30

not hold that the practice was lawful, having also stated that the plaintiffs in the case

did not challenge that practice. Id., 36 CIT at 1399, 887 F. Supp. 2d at 1310–11.

In this litigation, defendant argues that Siemens Gamesa “does not challenge

Commerce’s practice of assigning the adverse facts available rate of one company in an

entity to the entity as a whole,” Def.’s Resp. 10, but acknowledges that Siemens Gamesa

“disagrees with Commerce’s application of its long-standing practice that resulted in

Commerce [sic] applying Windar’s adverse facts available rate to the entire collapsed

entity,” id. at 5. It is sufficient that plaintiff opposed the Department’s applying its

practice so as to assign it a 73.00 percent rate. The court need not, and does not, hold

that Commerce will never face a circumstance allowing it to apply a company’s adverse

inference rate to an entire collapsed entity but holds that doing so was unlawful in the

circumstance of this remand proceeding.

Defendant-intervenor argues that it was proper for Commerce to apply Windar’s

adverse inference rate to SGRE, “which forecloses Windar’s ability to obtain a more

favorable dumping rate by shipping towers to the United States through SGRE.”

Def.-Int.’s Comments 8. This argument is unconvincing. The record refutes any

inference that Windar’s failure to submit a response to the Q&V questionnaire was an

attempt to obtain a more favorable dumping rate. To the contrary, the record shows

that Windar joined Siemens Gamesa in the mandatory respondent request that

Commerce unlawfully rejected in the original investigation. SGRE Request for Court No. 21-00449 Page 31

Mandatory Respondent Selection at 1. The request is record evidence refuting any finding

that Windar declined to participate in the investigation in order to obtain an advantage

for itself or for any affiliate.

5. The First Remand Redetermination Unlawfully Determined an “All Others” Rate of 73.00 Percent

Siemens Gamesa I held that Commerce erred in selecting as an all-others rate the

rate of 73.00 percent. One of the reasons the court gave was that assignment of the 73.00

percent “all others” rate did not satisfy the “reasonable method” requirement of the

Tariff Act. Siemens Gamesa I, 47 CIT at __, 621 F. Supp. 3d at 1345–47 (citing 19 U.S.C.

§ 1673d(c)(5)(B)). Regardless, the First Remand Redetermination concluded that

“[b]ecause there are no other rates on the record of this proceeding from which to select

a different ‘all-others rate,’ the ‘all-others’ rate remains unchanged.” First Remand

Redetermination at 38. The court rejected this same rationale in Siemens Gamesa I. 47 CIT

at __, 621 F. Supp. 3d at 1347. The court recognizes that Siemens Gamesa, although

assigned an all-others rate in the Final LTFV Determination, was not assigned one in the

First Remand Redetermination and therefore, at this stage of the proceedings, no longer

has standing to object to the all-others rate. At the same time, the court also recognizes

that the First Remand Redetermination, which unreasonably would adopt the 73.00

percent rate as an all-others rate, does not comply with the holding in Siemens Gamesa I. Court No. 21-00449 Page 32

III. CONCLUSION AND ORDER

The assignment of the 73.00 percent adverse inference rate to plaintiff Siemens

Gamesa in the First Remand Redetermination was unlawful for the multiple reasons the

court discussed above and has caused an unwarranted and unnecessary delay in the

conduct of this judicial proceeding. Whether or not Commerce chooses to employ a

collapsing analysis going forward, Commerce must prepare, as expeditiously as

possible, a Second Remand Redetermination in accordance with this Opinion and

Order.

Therefore, upon consideration of the First Remand Redetermination, the

comments submitted thereon, and all other papers and proceedings had herein, and

upon due diligence, it is hereby

ORDERED that Commerce shall submit a redetermination in accordance with this Opinion and Order (a “Second Remand Redetermination”) within 90 days of the date of issuance of this Opinion and Order; it is further

ORDERED that plaintiff and defendant-intervenor may submit comments on the Second Remand Redetermination within 30 days of the date of submission of the Remand Redetermination to the court; and it is further

ORDERED that defendant may submit a response to the comments of plaintiff and defendant-intervenor within 15 days of the date of the last comment submission.

/s/ Timothy C. Stanceu Timothy C. Stanceu Judge

Dated: October 11, 2023 New York, New York