Commerce Correctly Used AFA in CVD Investigation on Korean OCTR, Intervenors Argue

The Commerce Department correctly determined that Korean exporter SeAH Steel failed to cooperate fully in a countervailing duty investigation on oil country tubular goods from Korea because SeAH waited until verification to provide information that should have been submitted in response to an initial questionnaire, a group of defendant-intervenors led by Borusan Mannesmann Pipe said in their May 30 response brief. Because SeAH failed to act to the best of its ability, Commerce's application of adverse facts available was warranted, Borusan said (SeAH Steel v. U.S., CIT # 22-00338).

Borusan said it largely agrees with DOJ's May 16 brief (see 2305170038), but focused specifically on SeAH's failure to respond fully to Commerce's in the initial questionnaire. The department requested that SeAH provide its "complete audited financial statements for the last three fiscal years,” but SeAH provided the complete information only at the last minute and in response to a separate Commerce request for evidence of non-use of the Export-Import Bank of Korea's Performance Guarantee program, Borusan said.

SeAH was "not fully responsive" when it provided only two sets of unconsolidated financial statements in response to the initial questionnaire, omitting a third statement, Borusan said. Commerce was led to believe SeAH had provided what the department requested, when in reality, SeAH did not provide “complete audited financial statements for the last three fiscal years," Borusan said. The third set of unconsolidated financial statements, which covered the fiscal years ending in 2018 and 2019, contained important information on payment guarantees "that would have warranted further investigation by Commerce" had it been timely provided, Borusan said.

When that statement was finally added to the record, Commerce correctly found it was untimely filed and rejected it. The information was not presented to “corroborate, support, and clarify factual information already on the record" as SeAH argued, but was instead an attempt to fill gaps in the record caused by SeAH's own failure to respond, Borusan said.