663 F.Supp.3d 1356
Ct. Int'l Trade2023Background
- Saha Thai (Thai exporter) was a mandatory respondent in Commerce’s 2019–2020 administrative review of the 1986 antidumping order on circular welded carbon steel pipe from Thailand; Commerce asked respondents to identify potential affiliates and sales to them.
- Saha Thai’s questionnaire responses omitted seven home‑market customers that later were alleged to be affiliated; Saha Thai later asserted the omissions were not material and, for six of the seven, conceded at oral argument the omissions were likely mistakes.
- Petitioner Wheatland Tube filed publicly available documents (rebuttal information) shortly before the preliminary results alleging ownership and board overlaps tying six customers to families that own Saha Thai; Wheatland also identified a single shared HR manager linking a seventh customer (BNK).
- Commerce found gaps in the record, invoked facts otherwise available and, drawing adverse inferences, treated all seven customers as affiliated; Commerce originally applied a particular‑market‑situation (PMS) cost adjustment but removed it on voluntary remand following Hyundai Steel.
- Saha Thai challenged (1) Commerce’s use of adverse inferences to find affiliation, (2) acceptance/use of Wheatland’s rebuttal evidence and Commerce’s notice/deficiency procedures, and (3) inclusion of dual‑stenciled (dual‑certified) pipe in the margin calculation.
- The Court: (a) granted a voluntary remand on the scope/scope‑exhaustion issue to await the Federal Circuit mandate; (b) sustained Commerce’s AFA/adverse‑inference finding as to six omitted customers; and (c) remanded Commerce’s finding that BNK was affiliated (adverse inference unsupported), directing Commerce to apply the statutory affiliation test and explain its reasoning.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether administrative exhaustion bars Saha Thai’s challenge to inclusion of dual‑stenciled pipe (scope) | Saha Thai: pure question of law exception applies because statutory margin calc must be limited to covered merchandise and later judicial decisions show dual‑stenciled pipe is out of scope | U.S.: agency should reconsider scope after Federal Circuit; argued exhaustion might bar but acknowledged it could be a question of law | Court granted voluntary remand on scope issue and delayed remand redetermination until Federal Circuit mandate (Commerce will reconsider scope) |
| Whether Commerce properly used facts otherwise available and adverse inferences for six omitted customers | Saha Thai: it cooperated; Commerce failed to give notice of deficiencies; information was not necessary | Commerce/Wheatland: Saha Thai repeatedly was asked about potential affiliates, failed to disclose the six companies, leaving a record gap; Wheatland’s public evidence filled that gap | Court sustained Commerce’s use of facts otherwise available with adverse inference for six companies — omissions were errors and justified AFA under statutory standards |
| Whether substantial evidence supports Commerce’s adverse‑inference finding that BNK is affiliated (single shared HR manager) | Saha Thai: record contains only a single shared HR manager and no ownership/director ties; that is insufficient to show affiliation | Commerce: public record showed shared HR manager and the agency could not assume there were no other undisclosed ties | Court remanded: the single shared HR manager plus speculation is not substantial evidence; Commerce must apply §1677(33) and explain any affiliation finding regarding BNK |
| Whether Wheatland Tube’s late rebuttal submission and form (summary/translations) was permitted and prejudicial | Saha Thai: Wheatland’s rebuttal violated submission rules (summary, translations) and Commerce abused discretion in accepting it | Wheatland/Commerce: rebuttal complied with 351.301(b)(2) (identified what it rebutted); documents were public; any translation shortcoming was harmless | Court held Wheatland’s rebuttal complied with requirements and the failure to translate was harmless (no prejudicial error) |
Key Cases Cited
- Hyundai Steel Co. v. United States, 19 F.4th 1346 (Fed. Cir. 2021) (holding PMS cost adjustments unlawful under §1677b(b))
- SKF USA Inc. v. United States, 254 F.3d 1022 (Fed. Cir. 2001) (agency remand appropriate when intervening legal decision may affect validity of agency action)
- Nippon Steel Corp. v. United States, 337 F.3d 1373 (Fed. Cir. 2003) (standard for establishing failure to cooperate / not acting to best of ability)
- Zhejiang DunAn Hetian Metal Co. v. United States, 652 F.3d 1333 (Fed. Cir. 2011) (distinguishing facts available and adverse inferences analyses)
- Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951) (substantial‑evidence review requires accounting for record evidence that detracts)
- Hyundai Heavy Indus. Co. v. United States, 393 F. Supp. 3d 1293 (Ct. Int’l Trade 2019) (Commerce’s reliance on a single shared employee was insufficient to support affiliation by adverse inference)
- DuPont Teijin Films USA v. United States, 407 F.3d 1211 (Fed. Cir. 2005) (definition of substantial evidence)