Thai AD Respondent Challenges Commerce's Finding of Affiliation Between It, Home Market Customers

The Commerce Department's decision to find affiliation between antidumping duty respondent Saha Thai Steel Pipe Company and some of its Thai customers was not backed by enough evidence, the respondent argued in a Dec. 20 complaint at the Court of International Trade. Relying on information from the petitioner that is "vague and confusing" and not always connected to the merchandise under review, Commerce made an errant call, the complaint said. Further, the agency's decision to hit Saha Thai with partial adverse facts available based on its non-cooperation in the review was not supported by law, the company said (Saha Thai Steel Pipe Public Company Limited v. U.S., CIT #21-00627).

The case concerns the final results of the administrative review of the antidumping duty order on certain welded carbon steel pipes and tubes from Thailand -- an order that has been in place for over three decades. Saha Thai served as a mandatory respondent in the review, as it has done for many before it. In the preliminary results, Saha Thai was assigned a 7.23% duty rate. In the final results, though, that rate was bumped up to 36.97% after Commerce changed its tune on the question of affiliation -- eventually holding that enough evidence backed the prospect that Saha Thai was affiliated with some of its U.S. customers.

Saha Thai went after this decision in its complaint, arguing that Commerce's position didn't clear the requisite legal standard and was based on shoddy evidence. "Commerce’s finding on affiliation, however, did not meet the high statutory bar for finding affiliation on the basis of 'control' under 19 U.S.C. §1677(33)," the complaint said. "Specifically, Commerce['s] finding was not supported in substantial evidence showing that Saha Thai or its home market customers would be 'legally or operationally in a position to exercise restraint or direction' over one another." Commerce also did not prove how the relationship between the respondent and its home market customers would be one that influences the prices of goods sold to U.S. customers, the complaint said.

Commerce also hit Saha Thai with partial AFA for concealing these affiliations during the review. "The Department’s assertion, however, is highly speculative and fails to comply with the statutory requirements of 19 U.S.C. §1677e(a)," the respondent said. "In particular, the Department failed to show (1) which necessary information was not available on the record and (2) how Saha Thai withheld that information; failed to provide information within the applicable deadlines; impeded the proceeding or provided information that could not be verified."

The last part of the complaint dealt with Commerce's decision to make a particular market situation adjustment to Saha Thai's cost of production in the sales-below-cost test. CIT has repeatedly struck down this move, and now the U.S. Court of Appeals for the Federal Circuit has even stepped in and found the practice to run contrary to the law (see 2112100039). The Federal Circuit ruling is inherently more likely to get Commerce to change the practice going forward than a series of CIT rulings.