Commerce Can't Penalize Respondents for 'Withholding' Info Never Requested, CVD Respondent Argues

The Commerce Department should have applied adverse facts to a Korean oil country tubular goods respondent for "failing" to provide information that the department did not request and the government's claim that it so is "demonstrably false," SeAH Steel said in a June 27 response brief at the Court of International Trade (SeAH Steel v. U.S., CIT # 22-00338).

DOJ and intervenor Borusan Mannesmann Pipe argued that Commerce's initial questionnaire asked for benefits received from the Export-Import Bank of Korea's (KEXIM's) Performance Guarantee (see 2305310033). SeAH said that the questionnaire explicitly asked about guarantees received during the period of investigation. The company had received a guarantee under the program in 2019, which remained outstanding during 2020, but it said that guarantee was not tied to any loans.

"At no time during the investigation did Commerce request that SeAH provide information on KEXIM Performance Guarantees that were received in 2019 but remained outstanding during the 2020 investigation period," SeAH said. "Commerce explicitly limited the information requested for the KEXIM-Performance-Guarantee program to guarantees 'received … during the POI.'"

SeAH eventually disclosed that it had received a guarantee at verification, which Commerce rejected as "untimely new information" and applied AFA, landing SeAH with a 1.33% CVD rate. SeAH argued that Commerce never asked for guarantees received in previous years (see 2303200052).

Only Commerce knew what information it needed to make a determination SeAH, said. The company was not required to seek clarification from Commerce because it believed it provided the information requested. In similar cases, SeAH said that the CIT has "consistently refused to find that a respondent withheld 'requested' information and has rejected Commerce’s application of AFA." The department may not apply AFA to punish a respondent for failing to provide information that it did not actually request," SeAH said.