AD Petitioner Backs Commerce's AFA, PMS Positions in Thai Antidumping Case
The Commerce Department's "practice" cited by an antidumping duty respondent that says that Commerce will not consider new issues after an undefined point in a proceeding "does not actually exist," AD petitioner Wheatland Tube Co. argued in a July 29 reply brief at the Court of International Trade. Wheatland said that Commerce properly used adverse facts available in the contested antidumping duty review to find that respondent Saha Thai Steel Pipe Public Co. was affiliated with various home market customers and that there is no merit to Saha Thai's claims that information submitted by Wheatland to clarify this affiliation information did not comply with Commerce's regulations (Saha Thai Steel Pipe Public Co. Ltd. v. United States, CIT #21-00627).
The case concerns the 2019-2020 administrative review of the AD order on welded carbon steel pipes and tubes from Thailand. In the review, Commerce said that by not reporting its ties with home-market customers, Saha Thai withheld information and significantly impeded the review process. The result was a 7.23% dumping margin for the respondent. Saha Thai then took its case to the trade court to argue against this use of AFA.
In its reply brief, Wheatland argued that Saha Thai misrepresented the regulations concerning the submission of factual information to Commerce, inventing "purported deficiencies" that required Commerce to reject Wheatland's submitted information over the misreported affiliations. "There is no obligation for a petitioner to provide a respondent with a detailed chart or narrative explaining exactly which of the respondent’s claims appear to be untrue and why in a rebuttal factual submission," the respondent said.
Saha Thai also argued that a Commerce practice does not consider new issues raised after an unspecified point in the proceeding, citing a single proceeding as evidence of this practice. Wheatland said that "considerably more than a single citation is required" to show that Commerce consistently follows this practice in similar situations and that regardless, Commerce declined to consider an issue raised for the first time in an administrative rebuttal brief in the cited proceeding.
The petitioner went on to argue for Commerce's finding of a particular market situation that distorted the cost of making circular welded pipe during the review. The agency based its PMS finding on two factors: global overcapacity in the production of hot-rolled coil, a key input of the subject merchandise, and government subsidies to Thai HRC producers. Commerce has repeatedly tried to argue that global overcapacity creates a PMS, with the Court of Appeals for the Federal Circuit previously weighing in, holding that global overcapacity could form the basis of a PMS finding as long as the impact of the imports on the market in question were sufficiently explained by Commerce.
"That is precisely what Commerce did in this case," the brief said. "... While Chinese overcapacity has declined somewhat in recent years, China still had over 155 million metric tons of excess capacity during the POR, a third of the world’s total excess capacity. Commerce appropriately rejected Saha Thai’s claims that recent declines in global overcapacity eliminated the distortions previously found to exist. ... Second, Thailand remained highly dependent on imported steel in 2019, with imports accounting for 86.1 percent of consumption in the first half of 2019.
"Third, in response to this persistently high level of low-priced, dumped, and injurious HRC imports, the GOT has imposed a number of antidumping and safeguard measures on imported HRC over the years, many of which remained in effect during the POR. ... Fourth, despite the existence of these measures 'intended to impact the acquisition cost of HRC,' Thai CWP producers did not in fact bear any of these expenses on the imported HRC they used to produce CWP for export during the POR."