Steel Exporters Denied AFA Challenge Due to Deficient and Untimely Responses, CIT Rules

The Court of International Trade on May 5 upheld the Commerce Department's rejection of Vietnamese steel exporter Vnsteel-Phu My Flat Steel Co.'s (PMF) quantity and value questionnaire in an antidumping duty circumvention case. In the opinion, Judge Timothy Reif sided with Commerce, ruling that the agency's decision to instead apply adverse facts available was in accordance with the law, given PMF's incomplete, then untimely resubmission of, the Q&V questionnaire form.

The decision stemmed from an anti-circumvention inquiry on whether imports from Vietnam were circumventing the antidumping and countervailing duty orders on cold-rolled steel flat products from South Korea. Commerce sent PMF a Q&V questionnaire, asking about the exporter's total quantity of cold-rolled coil purchased from 2016 to 2018 from all sources, including South Korea. The questionnaire did not ask, however, about substrate used in the exporter's production lines.

Determining that the original Q&V questionnaire was deficient, Commerce requested a resubmission from PMF, which did so nine days after the filing deadline. Commerce subsequently hit PMF with AFA in the anti-circumvention preliminary determination, which found circumvention after selecting different Vietnamese producers as mandatory respondents. Only after this preliminary determination, eight months after PMF's late submission, did the exporter attempt to explain itself.

PMF argued that Commerce's rejection of its Q&V responses was illegal. Reif disagreed, finding that the exporter did not act to the best of its ability to provide key business proprietary information. The judge also struck down another argument from PMF, ruling that Commerce did not abuse its discretion in rejecting the Q&V response. PMF never requested an extension for its late filing nor explained its late submission until after the publication of the preliminary determination, making Commerce justified in excluding its submissions. "PMF failed to comply with Commerce regulations -- not once, but twice," Reif said. "Accordingly, Commerce was reasonable in not accepting PMF’s original and revised Q&V responses."

The exporter also attempted to challenge Commerce's AFA determination by claiming, among other things, that there was a gap in the record since the agency never requested information from PMF on its ability to source its substrate. In response, Commerce argued that this gap actually stems from the exporter's failure to file a revised Q&V by the deadline, preventing the agency from picking PMF as a mandatory respondent in the anti-circumvention inquiry. Reif agreed, ruling that "Commerce acted reasonably to apply AFA to PMF, bar PMF from participating in the certification program and determine that PMF was circumventing the Orders."