Slip Op. No. 23- 18 UNITED STATES COURT OF INTERNATIONAL TRADE SIEMENS GAMESA RENEWABLE ENERGY, Plaintiff,

v. UNITED STATES, Defendant,
and WIND TOWER TRADE COALITION,
Defendant-Intervenor. Before: Timothy C. Stanceu, Judge
Court No. 21-00449

OPINION AND ORDER [Remanding an agency deci sion concluding an antidu mping duty investigation of wind towers from Spain] Dated: February 16, 2023 Daniel J. Cannistra , Crowell & Moring LLP, of Washi ngton, D.C., for plaintiff. With him on the briefs were Simeon Yerokun and Michael K. Bowen

. Sara E. Kramer, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., fo r 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: Plaintiff contests a de cision that the International Trade Administration, U.S. Department of Comm erce (“Commerce” or the “Department”) issued in an antidumping duty (“AD”) investigation of certain wind towers from Spain. Concluding that Commerce did not conduct the investigation according to law, the
court issues an order for corrective action.
I. B ACKGROUND A. The Contested Decision Commerce published the contested decisi on (the “Final Determination”) as Utility Scale Wind Towers From Spain: Final Dete rmination of Sales at Less Than Fair Value , 86 Fed. Reg. 33,656 (Int’l Trade Admin. June 25, 2021) (“ Final Determination ”). Commerce 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 .”). 1 The Final Determination pertains to imports of utility scale wind towers from Spain (the “subject merchandise”) that were made during a period (the “period of investigation” or “POI”) of July 1, 2019, through June 30, 2020. In the Final

1 Documents in the Join t Appendix (May 26, 2022) , ECF Nos. 41 (public), 42 (conf.) are cited as “P.R. __” (for public docu ments). All informatio n disclosed in this Opinion and Order is information for which ther e is no claim for conf idential treatment. Page numbers are references to the pub lic Joint Appendix (“J.A.”), ECF No. 41.Court No. 21-00449 Page 3 Determination, Commerce assigned an estimated dumping margin of 73.00% ad valorem to all imports of the subject merchandise. After receiving, on Au gust 9, 2021, notice of
an affirmative determination of material injury by the U.S. International Trade Commission (“ITC”), Commerce published an antidumping duty orde r (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 Orde r, Commerce directed U.S. Customs and
Border Protection to collect 73.00% cash deposits on all impo rts of subject merchandise, “effective on the date of publication in the Fe deral Register of the ITC’s final affirmative injury determination.” Id ., 86 Fed. Reg. at 45,708. The ITC had published its final injury determination on August 13, 2021. Utility Scale Wind Towers From Spain; Determination , 86 Fed. Reg. 44,748.
B. The Parties
Plaintiff Siemens Gamesa Renewable Ener gy (“Siemens Gamesa” or “SGRE”) is a Spanish exporter of utility scale wind to wers. Defendant is the United States.
Defendant-intervenor Wind Tower Trade Coalit ion is an associatio n of U.S. producers of utility scale wind towers that was the petitioner in the antidumping duty investigation. 2

2 “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 ”).Court No. 21-00449 Page 4

C. Proceedings Before the Court
Plaintiff commenced this action on August 18, 2021. Summons, ECF No. 1; Compl., ECF No. 8. On January 14, 2022, plaint iff moved for judgme nt on the agency
record under USCIT Rule 56.2. Pl.’s Mot. for J. on the Agency R., ECF No. 27; Br. of Pl. Siemens Gamesa Renewable Energy in Supp. of its Mot. for J. on the Agency R., ECF No. 28 (“Pl.’s Br.”). Defendant and defendan t-intervenor opposed plaintiff’s motion. Def.’s Resp. to Pl.’s Mot. for J. upon th e Agency R. (Apr. 14, 2022), ECF No. 36 (“Def.’s Br.”); Wind Tower Trade Coa lition’s Resp. Br. (Apr. 14, 2022) , ECF Nos. 37 (conf.), 38 (public) (“Def.-Int.’s Br.”). Plaintiff replied on May 12, 2022. Reply Br. of Pl. Siemens Gamesa Renewable Energy in Supp. of its Mot. for J. on the Agency R., ECF No. 40. Plaintiff also requested an oral argument , Pl.’s Unopposed Mot. for Oral Argument (June 2, 2022), ECF No. 43, and submitted a “Not ice of Supplemental Authority,” Notice of Suppl. Authority (Sept. 23, 2022), ECF No. 44. Defendant filed a response to this notice. Def.’s Resp. to Pl.’s Notice of Suppl. Authority (Sept. 29, 2022), ECF No. 45.
II. D ISCUSSION A. Jurisdiction and Standard of Review The court exercises jurisdic tion under section 201 of th e Customs Courts Act of 1980, 28 U.S.C. § 1581(c), 3 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,

3 All citations to the United States Code herein are to the 2018 edition.Court No. 21-00449 Page 5 including an action contesting a final dete rmination that Commerce issues to conclude an antidumping duty investigation. In reviewing a final determination, the court “shall hold unlawful any determination, finding, or conclusion foun d . . . to be unsuppo rted by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i). Substantial evidence re fers to “such relevant evidence as a reasonable mind might accept as ad equate 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 Department’s Respondent Selection Decision In response to petitions from the Wi nd Tower Trade Coa lition, Commerce initiated antidumping duty in vestigations of utility scale wind towers from India, Malaysia, and Spain (the “Initiation Notice”). Utility Scale Wind Towers From India, Malaysia, and Spain: In itiation of Less-Than-F air-Value Investigations , 85 Fed. Reg. 73,023 (Int’l Trade Admin. Nov. 16, 2020). Commerce published a preliminary a ffirmative less-than-fair-value determination for the Spain investig ation in April 2021 (the “Preliminary Determination”). Utility Scale Wind Towers From Spain: Preliminary Affirmative Determination of Sales at Less Than Fair Value , 86 Fed. Reg. 17,354 (Int’l Trade Admin. Apr. 2, 2021) (“ Prelim. Determination ”). Commerce incorpor ated by reference anCourt No. 21-00449 Page 6 explanatory document, the “Prelim inary Decision Memorandum.” Decision Memorandum for the Preliminary Determination in the Less-Than -Fair-Value Investigation of Utility Scale Wind Towers from Spain (Int’l Trade Admin. Mar. 29, 2021), P.R. 134 (“ Prelim.
Decision Mem. ”). Commerce describ ed its methodology in these documents. Commerce explained that in preparing to limit the resp ondents it would select for individual examination, it sent “Quantity and Value” (“Q&V”) questionnaires to nineteen known exporters and producers of the subject merc handise, thirteen of which filed responses. Id. at 2, J.A. at 188. On December 23, 2020, five weeks after publication of the Initiation Notice, Commerce announced that, due to its reso urce constraints and the complexity of the investigation, it woul d examine individually only one respondent (i.e., a “mandatory respondent”) in the inve stigation. Commerce informed interested parties of this decision in a “R espondent Selection Memorandum.” Less-Than-Fair-Value Investigation of Utility Scale Wind Tow ers from Spain: Respondent Selection (Int’l Trade Admin. Dec. 23, 2020), P.R. 106 (“ Respondent Selection Mem .”). In the Respondent Selection Memorandum, Comm erce stated as follows: Commerce reviewed the Q&V ques tionnaire responses for each exporter or producer. After carefully considering these Q&V questionnaire data, our resource constr aints, as well as the complexity of the issues involved in the investigation, we find that the office responsible for this investigation has the reso urces to examine individually one mandatory respondent. Id . at 6, J.A. at 144. Commerce announced, further, that the mandatory respondent
would be Vestas Eolica S.A.U. (“Vestas Eolica” or “Vestas”). Id . (“Based on our analysisCourt No. 21-00449 Page 7 of the Q&V questionnaire data submi tted by exporters an d producers, the exporter/producer with the la rgest value of entries of su bject merchandise is Vestas Eolica.” (footnote omitted)); id . at 7, J.A. at 145 (approving the choice of the single mandatory respondent).
After several communications with Comme rce, Vestas Eolica and its affiliates informed Commerce on January 28, 2021 that “Vestas Eolica will not continue to participate in the antidump ing duty investigation.” Utility Scale Wind Towers from Spain: Notice of Decision to Not Participate in the Investigation at 1, P.R. 124. C. The Department’s Rejection of Siem ens Gamesa’s Request to Be a Mandatory Respondent Siemens Gamesa filed a request to be a mandatory respondent on February 17,
2021. Less-Than-Fair-Value Investigat ion of Utility Scale Wind Towers from Spain: Request for Mandatory Respondent Selection , P.R. 128. In its letter, Siemen s Gamesa stated : (1) that it was timely in responding to the Department’s Quantity and Value questionnaire, (2) that Commerce had stated in its “Respondent Selectio n Memorandum” that it had the resources to examine individually one mandatory respondent, and (3) that 40 days remained before the deadline for issuance of a preliminary determination, a deadline
Commerce has discret ion to extend. Id . at 1–3, J.A. at 164–66. Noting that Commerce already had found it had reso urces to examine one mandator y respondent and that the selected mandatory respondent was no long er participating, Siemens Gamesa added that “as with the ques tion of time, there should be no concern as to DepartmentCourt No. 21-00449 Page 8
resources.” Id . at 3, J.A. at 166. Siemens Gamesa requested that Commerce promptly issue it an antidumpin g duty questionnaire. Id . at 2, J.A. at 165. The petitioner, the Wind Tower Trade Coalition, opposed Siemens Gamesa’s request. Utility Scale Wind Towers From Spain: Response to SGRE’s Request for Additional Mandatory Respondent Selection (Feb. 19, 2021), P.R. 129. The Wind Tower Trade Coalition argued, inter alia , that granting Siemens Game sa’s request would unfairly prejudice it by unduly impeding the invest igation, the request ha ving been submitted “56 days after the original respondent sele ction memorandum in this case, and only 40 days before the prelim inary determination.” Id . at 1, J.A. at 173. Maintaining that
there was insufficient time to conduct a co mplete investigation wi th a new respondent, and pointing to possible delay in the requ irement to post cash deposits, the Wind
Tower Trade Coalition ar gued that “[s]electing a new re spondent at this late stage would deprive Petitioner of this expedient relief.” Id . at 2–3, J.A. 174–75. The Wind Tower Trade Coalition argu ed, further, that Siemens Gamesa “waited nearly three weeks
after Vestas’ notification of no n-participation to submit its re quest” and also that it “had the opportunity to request voluntary resp ondent status and su bmit questionnaire responses, but it chose to waive this status.” Id . at 7, J.A. at 179 (citing 19 U.S.C. § 1677m(a)(1)). Commerce rejected Siemens Gamesa’s mandatory respondent request on March 5, 2021. Utility Scale Wind Towers from Spain: Request to Select ReplacementCourt No. 21-00449 Page 9 Mandatory Respondent , P.R. 132. Commerce gave as re asons for the rejection that “SGRE’s request has come late in the procee ding, only six weeks before the scheduled date for issuing the preliminary determination,” that “SGRE did not make its request until several weeks had passed after Vestas withdrew from participation in this investigation on January 28, 2021,” and that “SGRE did not s eek to participate as a voluntary respondent; had it done so, it would have provided Commerce with a questionnaire response for SGRE at a far earlier date.” Id . at 1, J.A. at 184. D. The Department’s Assignment of 73.00% Preliminary Dumping Margins to Seven Respondents and its Selection of a Preliminary 73.00% “All-Others” Rate In the Preliminary Determination, Commerce preliminarily assigned a rate of
73.00% ad valorem to Vestas Eolica based on “facts otherwise available” determined under 19 U.S.C. § 1677e(a) and an “adverse inference” determined under 19 U.S.C. § 1677e(b), based on its finding that Vestas Eo lica failed to cooperate by not acting to the best of its ability when it did not respon d to the Department’s antidumping duty questionnaire. 4 Prelim. Determination , 86 Fed. Reg. at 17,355. Commerce determined that six other companies failed to cooperate by not acting to the best of their abilities, based on findings that these six companie s failed to respond to the Department’s

4 When applying “facts ot herwise available” under 19 U.S.C. § 1677e(a) together with an adverse inference under id. § 1677e(b), Commerce refers to “adverse facts available,” or “AFA.” When the entire marg in is determined in this way, Commerce refers to “total AFA.”Court No. 21-00449 Page 10 Quantity and Value questionnaire. 5 Commerce assigned each of these six companies a preliminary estimated antidump ing duty margin of 73.00%. Id . Commerce proceeded to assign the rate of 73.00% as a preliminary estimated “all-ot hers” rate to the exporters and producers of the subject merchandise th at it did not individually examine. Id

. Commerce explained the derivation of its pr eliminary estimated all-others rate as
follows: In the Petition, the Wind Tower Trade Coalition (the petitioner)provided only one dumping margin, which was based on a price-toconstructed-value compar ison. Therefore, in the absence of another weighted-average dumping margin on th e record of this investigation, as the all-others rate, we are preliminarily assigning the sole dumping margin in the Initiation Notice , which is 73.00 percent. Id . (footnotes omitted). E. The Department’s Assignment of 73.00% Estimated Dumping Margins to Six Respondents and its Selection of a 73.00% Estimated “All-Others” Rate For the Final Determination, Commerce adop ted essentially the same analysis it had used for the Preliminary Determinat ion and assigned 73.00% final estimated dumping margins applicable to all exporters and producers. Final Determination , 86 Fed. Reg. at 33,657. Based on “total AF A,” Commerce assigned a final estimated dumping margin of 73.00% to the sole mandatory respondent, Vestas Eolica.

5 The six companies Commerce preliminarily found not to have responded to the Quantity and Value questionnaire were A cciona Windpower S.A., Gamesa Energy Transmission, Haizea Wind Group, Kuzar Systems, S.L., Proyectos Integrales y Logisticos S.A.A., and Windar Renovables (an affiliate of Siemens Gamesa Renewable Energy (“Siemens Gamesa”)). Prelim. Determination , 86 Fed. Reg. at 17,355 n.5.Court No. 21-00449 Page 11 Commerce used total AFA to assign this same estimated margin to five of the six companies it preliminarily had determined no t to have cooperated by failing to respond to the Quantity and Value questionnaire. 6 The Final Determination made no change to the Department’s preliminary determination or analysis for the “all-others” rate of 73.00%. Id. (“As discussed in the Preliminary Determination , Commerce based the estimated weighted-average dumping margin for all other producers and exporters on the only dumping margin alleged in the Petition, pursuant to section 735(c)(5)(B) of the Act [19 U.S.C. §1673d(c)(5)(B)]. We made no changes to this rate for this final determination.”). F. Plaintiff’s Claim and Supporting Grounds Stated in summary, plaintiff’s claim is th at Commerce unlawfully assigned it the rate of 73.00% in the investigation. It assert s, in effect, two grou nds in support of its
claim.

6 Commerce concluded that one of the six companies it preliminarily found to have failed to cooperate by not responding to the Quantity and Value questionnaire, Proyectos Integrales y Logisticos S.A.A. (“Proinlosa”), “attempted to contact Commerce in a timely manner regarding the Q&V questio nnaire in an effort to timely submit its Q&V questionnaire response. Accordingly . . . we no longer find that application of total AFA is appropriate wi th respect to Proinlosa.” Utility Scale Wind Towers From Spain: Final Determination of Sales at Less Than Fair Value , 86 Fed. Reg. 33,656, 33,657 (Int’l Trade Admin. June 25, 2021). Because Comm erce assigned a final estimated “allothers” margin of 73.00%, the redetermination as to Proi nlosa was of no practical significance.Court No. 21-00449 Page 12 First, Siemens Gamesa argues that Comme rce unlawfully refused to examine it individually during the investig ation. Plaintiff submits that following notification that Vestas Eolica would no longer participate in the investigation, Siemens Gamesa, “which was initially identified by Commerce as the second largest exporter, thus became the largest and only remaining fully participatin g exporter of subject merchandise in this investigation.” Pl.’s Br. 6. Plaintiff characterizes the Department’s reasoning for denying its request, based on “time and reso urces,” as “excuses” that are not supported by the record facts. Id. at 8–9. It argues that Commerc e, freed of the obligation to investigate Vestas, had the resources to investigate Siemens Gamesa individually and had sufficient time to do so, in particul ar because it had authority to extend the deadlines for the preliminary and final determinations. Id . at 9 (“Commerce had both the authority and obligation to extend one or both of the determination deadlines.”). Quoting 19 U.S.C. §§ 1677f-1(c)(1)–(2), plaint iff argues, further, th at Commerce, which was under a general obligation to determine individual dumping margins for each known exporter, was required at least to investigate indivi dually a “reasonable number of exporters,” Pl.’s Br. 9, which Commerce, by refusing to investigate Siemens Gamesa individually, failed to do. According to plaintiff, “Commerce is not permitted to impose an AD order where th ere was no examination of a single exporter, given that another participating exporter remained re ady and willing for such an examination.” Id. at 18.Court No. 21-00449 Page 13 Second, plaintiff points to the statutory provisions governing the setting of an
“all-others” rate in an anti dumping duty investigation. Siemens Gamesa argues that
“Commerce’s decision in this in vestigation to assign a rate to all parties based solely on AFA, and not a single exporter ’s data, was directly contrary to the text” of 19 U.S.C. § 1673d(c)(5). Id . at 29. According to plaintiff, the Department’s use of “a single, untested margin alleged in the Petition as total AFA,” id. at 30, “in the absence of an individual examination of a sing le exporter, is not representa tive of all other exporters,” id. at 31.

G. The Statutory Requirement to Select More Than One Respondent for Individual Investigation In its Notice of Supplemental Authority, Siemens Gamesa directed the court’s attention to the precedential decision of the Court of Appeals for the Federal Circuit (“Court of Appeals” or “CAFC”) in YC Rubber Co. (North America) LLC v. United States , No. 21-1489, 2022 WL 3711377 (Fed. Cir. Aug. 29, 2022) (“ YC Rubber ”), which was decided after the briefing in this case was comp leted. Plaintiff states in its notice that “[s]pecifically, the CAFC vacated and remanded the CIT’s decision, concluding that the U.S. Department of Commerce erred in restricting examination to only one exporter/producer.” Noti ce of Suppl. Authority (Sept. 23, 2022), ECF No. 44. YC Rubber interpreted a statutory provision, 19 U.S.C. § 1677f-1(c)(2), in a way that was contrary to the statutory interpretation Commerce applied in this case to limit its individual examination to a single resp ondent. The Court of Appeals held thatCourt No. 21-00449 Page 14 § 1677f-1(c)(2), in providing that Commerce “may determine the weighted average dumping margins for a reasonable number of exporters or producers” (emphasis added),
is not satisfied when Commerce decides to examine individually only one exporter or producer: “We conclude that a ‘reasonable number’ is generally more than one.” YC Rubber , 2022 WL 3711377, at *4. The Court of A ppeals did not accord deference to the Department’s contrary interp retation of § 1677f-1(c)(2) under Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc. , 467 U.S. 837 (1984). After mentioning the government’s argument that “Commerce’s position that it suffices to review only one respondent

warrants Chevron deference,” the Court of Appe als concluded “that Commerce’s position is contrary to the statute’s unambiguous language.” YC Rubber , 2022 WL 3711377, at *3.
While there are some factua l differences between the ad ministrative review of the antidumping duty order that was at issue in YC Rubber and the antidumping duty investigation at issue in this case, those diff erences do not support an argument that the holding in YC Rubber , which turned on a question of statutory interpretation, is inapplicable here. To the contrary, duri ng this investigation Commerce interpreted § 1677f-1(c)(2)—the same statutor y provision interpreted in YC Rubber —to allow it to investigate individually only one exporter or producer. See Respondent Selection Mem

. at 5, J.A. at 143 (“Further, se ction 777A(c)(2) of the Act [19 U.S.C. § 1677f-1(c)(2)] does not require Commerce to meet a minimum threshold in determining the number ofCourt No. 21-00449 Page 15 mandatory respondents.”). That is the ve ry interpretation the Court of Appeals considered and rejected in YC Rubber , based on the unambiguous language of § 1677f-1(c)(2). In this case, Commerce announced its deci sion 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 Department’s assigning the 73.00% rate to Siemens Gamesa was a result of that unlawful decision, which, when viewed a ccording to the holding YC Rubber , was not based on a permissible interpretation of 19 U.S.C. § 1677f-1(c)(2). Therefore, the court finds merit in plaintiff’s challenge to the Depart ment’s respondent selection method. In its response to plaintiff’s Notice of Supplemental Authority, defendant did not argue that the holding in YC Rubber is inapplicable to this case. Defendant responded only by informing the court that the mandate in the case “has not yet issued and the time to seek further review has not expired. The Government has not yet determined
whether it will seek further review.” Def.’s Resp. to Pl.’s Notice of Suppl. Authority (Sept. 29, 2022), ECF No. 45. The mandate in YC Rubber has now issued. CAFC Mandate in Appeal # 21-1489 (Jan. 18, 2023). H. The Obligation to Determine the All -Others Rate by a “Reasonable Method” The court also agr ees with plaintiff’s argume nt that Commerce failed to determine the all-others rate by a “reasona ble method” as is expressly required byCourt No. 21-00449 Page 16 19 U.S.C. § 1673d(c)(5)(B). The all-others rate Commerce chose becaus e it was “the sole dumping margin alleged in the Petition,” Final Determination , 86 Fed. Reg. at 33,657, was calculated solely by the petitioner, was not determined by Commerce according to the sales of any individually-investigated re spondent, and was not demonstrated by Commerce to be representative of any rate that could have been attributed to the respondents that were not selected for individu al examination. In th e guise of an actual antidumping duty investigation, Commerce merely took a rate advocated by the petitioner and applied it to all exporters and producers of the subject merchandise. The Tariff Act applies a “general rule” unde r which “the estimated all-others rate shall be an amount equal to the weighted average of the estima ted weighted average dumping margins established for exporters and producers individually investigated, excluding any zero and de minimis margin s, and any margins determined entirely
under section 1677e of this title.” 19 U.S. C. § 1673d(c)(5)(A). In the investigation, Commerce put itself in a position under which it could not apply this general rule. Having relied upon “total AFA” under 19 U.S.C. § 1677e to determine a margin for Vestas Eolica, the only exporter or producer it selected for indivi dual investigation,
Commerce had no estimated we ighted average dumping marg ins that it could average according to § 1673d(c)(5)(A). Therefore, the ag ency left itself only with the “exception” to the general rule, which the Tariff Act sets forth as follows: If the estimated weighted averag e dumping margins established for all exporters and producer s individually investig ated are zero or deCourt No. 21-00449 Page 17 minimis margins, or are determined en tirely under section 1677e of this title, the administering authority may use any reasonable method to establish the estimated all-others rate for exporters and producers not individually investigated, includin g averaging the estimated weighted average dumping margins determined for the exporter s and producers individually investigated. 19 U.S.C. § 1673d(c)(5)(B) (emphasis added). The method Commerce chose was not
reasonable. The Court of Appeals addressed a highly similar situation in Yangzhou Bestpak Gifts & Crafts Co., Ltd. v. United States , 716 F.3d 1370 (Fed. Cir. 2013) (“ Yangzhou Bestpak ”). The case held that Commerce must us e a method that is reasonable based on substantial record evidence in determining an all-others rate under 19 U.S.C. § 1673d(c)(5)(B), even when following th e “averaging” methodology expressly permitted by that provision. In Yangzhou Bestpak , Commerce calculated an all-others rate in an antidumping du ty investigation by taking a simple average of a 247.65% “AFA China-wide rate,” which Commerce assigned to one of two mandatory respondents that failed to cooperate in th e investigation, with a de minimis rate assigned to the other, cooperating mandat ory respondent, resulting in a 123.83% “allothers” estimated dumping margin that Commerce applied to the unexamined respondents, including plaintiff Yangzhou Bestpak Gifts & Crafts Co., Ltd. Id ., 716 F.3d at 1375. The Court of Appeals held that the record lacked evidence to demonstrate the
reasonableness of the 123.83% all- others rate. “This case is peculiar in that Commerce identified only two significant exporter/producers, yet one was assigned a de minimisCourt No. 21-00449 Page 18 dumping margin while the other was assigned the highest possible AFA China-wide margin.” Id. , 716 F.3d at 1380. “The result is not only limited and fr ustrating, as the
Court of International Trade described it, but is also unreasonable.” Id . In this case,
Commerce created for itself a situation th at was even more limited and peculiar.
Defendant and defendant-inte rvenor argue that the cour t should deny relief on plaintiff’s argument be cause, they assert, plaintiff faile d to exhaust its administrative remedies by not raising its objection to its being assigned the all-others rate in the case brief it submitted to Commerce during the inve stigation. According to defendant, “the only mention of the all-others rate in SG RE’s case brief is a statement that the ‘representativeness of investigated exporters is the essential characteristic that justifies
an “all-others” rate.’” Def.’s Br . 31 (citing SGRE’s “Case Brief,” Antidumping Duty Investigation of Utility Scale Wind To wers from Spain: SGRE’s Case Brief at 6 (May 3, 2021), P.R. 141 (“ Case Brief ”)). Defendant-intervenor mainta ins that plaintiff “never argued that the agency’s calculation of the all others rate was contrary to 19 U.S.C. § 1673d, as it now argues at length in its brief to the Cour t.” Def.-Int.’s Br. 25. The court does not agree that plaintiff failed to exhaust its administrative remedies for its argument th at Commerce unlawfully assign ed it the 73.00% all-others rate. In quoting a sentence from the Case Brief, defendant omitted an introductory
citation to Albemarle Corp. v. United States , 821 F.3d 1345, 1353 (Fed. Cir. 2016), which rejected a separate rate determined by Commerce under 19 U.S.C. § 1673d(c)(5)(B)—theCourt No. 21-00449 Page 19 statutory provision at issu e here—as unreasonable on the record evidence. See Albemarle , 821 F.3d at 1355–56. Further, in identify ing what defendant considered to be the “only mention” of the argument addressed to the all-others rate, defendant
overlooked another reference to the all-others ra te that appeared later in the Case Brief. Identifying the result of the Department’s rejecting the request to be a mandatory respondent, the Case Brief specifically obje cted that “the Depa rtment has concluded that it would be preferable to irreversibly issue an order and base the dumping rate for all exporters of wind towers from Spain on ad verse facts available instead.” Case Brief at 7 (emphasis added). Thus, the Case Brie f not only objected to the unreasonableness of the Department’s all-others rate but did so on the specific grounds that it was unrepresentative and based entirely on “adverse facts available.” Defendant also argues that , the exhaustion issue asid e, “SGRE’s arguments are unpersuasive” because “SGRE is incorrect th at Commerce applied AFA to calculate the
all-others rate.” Def.’s Br. 32. Defend ant-intervenor makes the same argument.
Def.-Int.’s Br. 26. This argument is also unconvincing. Defendant quotes the Preliminary Deci sion Memorandum, which stated that “there are no additional dumping margins av ailable to include in the all-others rate”
and that “Commerce is usin g the dumping margin allege d in the Petition of 73.00 percent as the all-others ra te,” Def.’s Br. 32 (quoting Prelim. Decision Mem . at 9–10), but undeniably, this was the same rate Commerc e applied as “total AFA” to the onlyCourt No. 21-00449 Page 20 individually investigated respondent. And whether labeled an “AFA” rate or not, the 73.00% all-others rate was not shown by Commerce to be a reasonable rate for cooperative respondents that were not individually examined. See Yangzhou Bestpak , 716 F.3d at 1380. Commerce obtained it fr om the petition ra ther than from a “reasonableness” analysis Commerce itself conducted based on its own review of record evidence. Congress entrusted Commerce with the responsibility to conduct an antidumping duty investigation, and to assign individual and, if necessary, all-others rates, according to the detailed requirements set forth in the Tariff Act. Here, it was not
lawful for Commerce to evade that invest igative responsibility by outsourcing the critical determination to the petitioner.
I. Siemens Gamesa’s Decision Not to Seek Voluntary Respondent Status Defendant also attempts to cast the bl ame upon Siemens Gamesa for the “paucity
of information” with which Commerce co uld determine an all-others rate: The paucity of information on th e record due to Vestas’s noncooperation, and SGRE’s decision not to seek voluntary respondent status and to timely submit an antidumpin g questionnaire response, ultimately led to the AFA and the all-others rate being the same, but that does not mean that Commerce applied AFA to SGRE and other exporters who responded to Q&V questionnaires. Id . at 32–33 (footnote omitted). Th is argument is meritless. Siemens Gamesa was under no obligation to request to be a voluntary respondent (or, for that matter, to request to be a substitute mandatory respondent) in order to exhaust its administrative remedies and thereby preserve its right to contest theCourt No. 21-00449 Page 21 Department’s assigning it the 73.00% rate as an all-others rate , as any respondent adversely affected by that rate potentially could have done. The inadequacy of the 73.00% all-others rate, like the “paucity” of su bstantial evidence to support it, resulted from the Department’s unlawful conduct of the investigation, not from any failure of Siemens Gamesa to participate in that in vestigation as it wa s required to do. The court concludes, further, that Siemens Gamesa’s decision not to seek voluntary respondent status during the invest igation, even if characterized as a failure to exhaust administrative remedies, does not preclude plaintiff’s arguing before the court that the Department’s respondent selection method was unlawful. Siemens Gamesa contested that method during the investigation, and its position later was sustained by the holding in YC Rubber . Courts long have recognized “intervening legal authority” as an exception to the exhaustion requirement. See Hormel v. Helvering , 312 U.S. 552 (1941). Here, there has been an intervening judicial interpretation of existing law “which if applied might have materially altered the result.” Id. , 312 U.S. at 558–59 (footnote omitted). As discusse d above, the CAFC’s opinion in YC Rubber interpreted a statutory provision, 19 U.S.C. § 1677f-1(c)(2), in a way that was directly contrary to the statutory interpretation Commerce applied in this case to limit its
individual examination to a single respondent. Thus, ev en if it were presumed, arguendo , that seeking volunt ary respondent status would not have been futile despite the Department’s prior statement in the Re spondent Selection Memorandum that onlyCourt No. 21-00449 Page 22 one respondent would be examined individu ally, another exception to the exhaustion requirement applies to allow Siemens Gamesa to assert the “respondent selection” argument it raises before the court. 7 III. C ONCLUSION AND O RDER The assignment of the 73.00% rate to Si emens Gamesa was unlawful because it resulted from an unlawful respondent se lection method, Commerce having limited its
individual examination to a single respondent, contrary to 19 U.S.C. § 1677f-1(c)(2) as interpreted in YC Rubber . The 73.00% rate also was unlawful as an “all-others” rate because it was not determined according to a reasonable method as required by 19 U.S.C. § 1673d(c)(5)(B). On remand, Commerce must correct the error it made when it decided, contrary to 19 U.S.C. § 1677f-1(c)(2), to examine indivi dually only one respondent and, having also decided to proceed according to largest export volume under 19 U.S.C. § 1677f-1(c)(2)(B), not to examine Siemens Game sa in particular. By the time Commerce decided, on March 5, 2021, not to investigat e Siemens Gamesa individually, Commerce already had reached the decision, on De cember 23, 2020, to proceed under 19 U.S.C.

7 In YC Rubber Co. (North America) LLC v. United States , No. 21-1489, 2022 WL 3711377 (Fed. Cir. Aug. 29, 2022) at *2 (“ YC Rubber ”), the Court of Appeals for the Federal Circuit (“Court of Appe als” or “CAFC”) noted that the agency stated after the withdrawal of one of the mandatory responde nts that no exporter or producer subject to the administrative review requested vo luntary respondent status. The CAFC’s opinion does not address the qu estion of exhaustion of admi nistrative remedies as to this issue.Court No. 21-00449 Page 23 § 1677f-1(c)(2)(B), which is directed to larges t export volume, in co nducting respondent
selection. See Respondent Selection Mem . The agency decision to proceed by largest export volume under § 1677f-1(c )(2)(B) is not challenged in this litigation and is, therefore, final. Plaintiff challenges inst ead the Department’s subsequent decision not to examine Siemens Gamesa individually as the largest remainin g exporter, and that unlawful decision must be remedied by an individual investigation of Siemens Gamesa during the remand proceeding the court is or dering. The court is allowing 90 days for this investigation but will consider a motion for a longer time period upon a showing of good cause. Therefore, upon considerat ion of plaintiff’s Rule 56.2 motion and all papers and proceedings had herein, and upon due diligence, it is hereby
ORDERED that Plaintiff’s Motion for Judgment on the Agency Record (Jan. 14, 2022), ECF No. 27, be, and hereby is, granted; it is further
ORDERED that Commerce shall submit a re determination in compliance with this Opinion and Order (a “Remand Redeterm ination”) within 90 days of the date of issuance of this Opinion and Order; it is further
ORDERED that plaintiff and defendant-interv enor may submit comments on the Remand Redetermination within 30 days of the date of submission of the Remand Redetermination to the court; it is further
ORDERED that defendant may submit a resp onse to the comments of plaintiff and defendant-intervenor with in 14 days of the date of the last comment submission; and it is furtherCourt No. 21-00449 Page 24
ORDERED that Plaintiff’s Unopposed Motion for Oral Argument (June 2, 2022), ECF No. 43, be, and hereby is, denied. /s/ Timothy C. Stanceu Timothy C. Stanceu Judge Dated: February 16, 2023 New York, New York