Commerce Flips Affiliation Finding on Saha Thai Under Protest at CIT
The Commerce Department under protest on Oct. 10 reversed its finding that exporter Saha Thai Steel Pipe Public Co. and one of its customers, BNK Steel Co., are affiliated, on remand at the Court of International Trade. The decision lowered Saha Thai's antidumping duty rate in the 2020-21 review of the AD order on circular welded carbon steel pipes and tubes from Thailand, from 14.74% to 1.65% (Saha Thai Steel Pipe Public Co. v. United States, CIT # 21-00627).
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
In the review, Commerce said Saha Thai failed to disclose that it had a shared manager with BNK "as prompted by Commerce in its questionnaires." The agency said at the time it didn't have the chance to look further into the relationship and couldn't presume there weren't other ties between the companies, using adverse facts available in its affiliation analysis.
The trade court remanded the issue for Commerce to perform a "proper statutory test for affiliation" (see 2311140036).
On remand, the agency said "the sharing of a single human resources manager without further record evidence showing affiliation would be insufficient to determine that Saha Thai and BNK are affiliated" under the statute. Commerce clarified that its original affiliation finding wasn't based on the sharing of a single manager, as suggested by CIT, but rather based on AFA. The petitioner, Wheatland Tube Co., put information on the shared manager on the record after the preliminary results, leading to the use of AFA.
Since Saha Thai failed to report that it shared a manager with BNK, the agency didn't know a potential relationship existed between the two firms. Information was missing on the record, leading to the finding that the exporter impeded the investigation, Commerce clarified. The agency said it continues to find Saha Thai didn't act to the best of its ability in responding to the agency's requests, only changing its affiliation determination under respectful protest.
The case also was remanded for Commerce to reconsider the scope of the AD order in light of the U.S. Court of Appeals for the Federal Circuit's decision in Saha Thai Steel Pipe Public Co. v. U.S., in which the appellate court included dual-stenciled pipe within the scope of the order. Commerce said that, due to this decision, "it was proper for us to include such sales in our margin calculations."