Thai Pipe Exporter Decries 'Egregious' Commerce Practice in Motion for Judgment

A Commerce Department determination to apply adverse facts available to Thai pipe exporter Saha Thai Steel Pipe Public Company in an antidumping administrative review and spurn the company's sales and cost databases based on a notice of investigation in an evasion case is "egregious," Saha Thai said in a June 15 motion for judgment in the Court of International Trade. Saha Thai expressed particular concern over Commerce's decision to include the company's U.S. sales of dual-certified pipe in its calculation of the antidumping duty margin since it had already been determined that a scope ruling on dual-certified pipe did not apply to entries covered by the 2018-19 administrative review (Saha Thai Steel Pipe Public Company Limited v. U.S., CIT #21-00049).

Saha Thai has served as a mandatory respondent 13 times for antidumping administrative reviews on circular welded carbon steel pipes from Thailand, the company said. In that time, it has received low or nonexistent antidumping duty margins and has always been cooperative. However, in the 2018-19 administrative review, Commerce opted to reject the company's cost and sales data and apply total AFA, Saha Thai said. Instead, the agency used U.S. sales data for dual-certified pipe in calculating the antidumping duty margin and relied on an Enforce and Protect Act notice of investigation initiation for a different company in the review. Saha Thai was assigned a 37.5% antidumping duty rate.

Commerce's decision to include the U.S. sales data of dual-certified pipe was wrong since the scope ruling including the dual-certified pipe under the antidumping duty order is only active from the "date of initiation of the scope inquiry." Since this date was in 2019, the dual-certified pipe entries are out of scope for the administrative review, Saha Thai said. "This legal conclusion is evident from multiple sources," the brief said. "First and foremost, Commerce has a specific regulation that makes explicit that the effective date of Commerce scope decision is 'the date of initiation of the scope inquiry.' ... Since the scope inquiry here was initiated in November 2019, the conclusion from that scope inquiry cannot go back in time." Saha Thai is also "vigorously" disputing the legality of this very scope decision in a separate case, it said in a footnote.

Even if the inclusion of the dual-certified pipe sales was necessary, Commerce never provided adequate notice of this decision -- a violation of the law in its own right, Saha Thai said. "Commerce has a statutory obligation to inform respondents if there are any deficiencies in the data and information provided," the brief said. "The underlying administrative record makes clear that Commerce never informed Saha Thai that Commerce wanted Saha Thai to submit its U.S. sales of dual-certified line pipe despite the fact that Saha Thai made clear that it was not providing data related to sales of dual-certified line pipe."

Saha Thai took particular issue with Commerce's decision to rely on a CBP EAPA report as justification for dropping the company's cost and sales data. "Of critical importance is that the CBP EAPA Report is effectively only a notice of initiation, not any official findings," the brief said. "Specifically, the report at issue here was a notice of initiation by U.S. Customs and Border Protection (“CBP”)’s Trade Remedy Law Enforcement Directorate to investigate whether Blue Pipe -- a U.S. importer completely unaffiliated to Saha Thai -- imported standard pipe that was incorrectly marked as line pipe to avoid the AD order."