Commerce Clarifies Basis for AFA on Remand in AD Review on Steel Pipes
The Commerce Department on Aug. 11 clarified the basis it used for applying adverse facts available against respondent Saha Thai Steel Pipe in the 2020-21 administrative review of the antidumping duty order on circular welded carbon and steel pipes and tubes from Thailand. Submitting its remand results to the Court of International Trade, Commerce said it reconsidered Saha Thai and BNK Steel Co.'s affiliation status and found that the two are affiliated based on AFA (Saha Thai Steel Pipe Public Co. v. U.S., CIT # 21-00627).
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In June, Judge Stephen Vaden sent back the review for a third time for Commerce's failure to follow the "procedural prerequisites" for changing its position on remand when using AFA (see 2506090017). During the review, the agency initially said Saha Thai failed to respond to the best of its ability by not reporting that it and BNK shared a human resources manager.
The agency said Saha Thai should have disclosed this employee in response to "Question Six of the Third Supplemental Questionnaire." Vaden noted that question six, however, asks if Saha Thai and another company "share not just any employee but one that also 'has an equity or a debt position in any other company' that sells related merchandise." Question five of the questionnaire, meanwhile, only asks for "current or previous shared employees."
The court said the distinction between these two questions is crucial, since the agency based its original adverse inference analysis solely on Saha Thai's failure to disclose the employee in response to question six, not question five.
On remand, Commerce said it "inadvertently cited Question Six" and meant to cite question five. The fact that it meant to cite question five "can be ascertained from the fact that it did not cite to any debt or equity positions with respect to BNK in its analysis in the Final Analysis Memorandum," the remand results said. Instead, the evidence on the record that Commerce referenced in its analysis shows that this individual was the human resources manager for Saha Thai and BNK, the brief said.
As a result, the agency said there's a "gap in the record with respect to Question Five wherein Saha Thai withheld requested information from Commerce, specifically information on certain of Saha Thai’s managers being employed by BNK."