Saha Thai Steel Pipe Pub. Co. v. United StatesSaha Thai Steel Pipe Pub. Co. v. United States
[Commerce’s Third Remand Results are sustained.]
Dated: July 17, 2026
Daniel L. Porter argued for Pillsbury Winthrop Shaw Pittman LLP, of Washington, D.C., for Plaintiff Saha Thai Steel Pipe Pub. Co. Ltd. With him on the briefs was Gina M. Colarusso.
Aqmar Rahman and Robert G. Gosselink, Trade Pacific PLLC, of Washington, D.C., for Plaintiff-Intervenor Thai Premium Pipe Co. Ltd.
Collin T. Mathias, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., argued for Defendant the United States. With him on the briefs were Brett A. Shumate, Assistant Attorney General, Patricia M. McCarthy, Director, and Franklin E. White, Jr., Assistant Director. Of counsel on the brief was JonZachary Forbes, Senior Attorney, Office of Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, D.C.
Katzmann, Judge: This case arises from a challenge to the U.S. Department of Commerce’s (“Commerce”) final determination in the 2019–2020 administrative review of the antidumping duty order on circular welded carbon steel pipes and tubes from Thailand. See Welded Carbon Steel Pipes and Tubes From Thailand: Final Results of Antidumping Duty Administrative Review and Final Determination of No Shipments; 2019-2020, 86 Fed. Reg. 69620 (Dep’t Com. Dec. 8, 2021) (“Final Determination”). The dispute returns to the court following three remand orders. See Order at 2, Oct. 11, 2022, ECF No. 60 (“First Remand Order”) (granting voluntary remand); Saha Steel Pipe Pub. Co. Ltd. v. United States, 47 CIT __, __, 663 F. Supp. 3d 1356 (2023) (“Second Remand Order”); Saha Thai Steel Pipe Pub. Co. Ltd. v. United States, 49 CIT __, 789 F. Supp. 3d 1293 (2025) (“Third Remand Order”).
At this stage in the proceeding, the case turns on one question: whether Commerce erred in applying an adverse inference to the affiliation determination between Plaintiff Saha Thai Steel Pipe Company Limited (“Saha Thai”) and one of Saha Thai’s home-market customers, BNK Steel Co. Ltd. (“BNK”). See Final Results of Redetermination Pursuant to Court Remand at 1–2, (Dep’t Com. Aug. 11, 2025), ECF No. 112 (“Third Remand Results”). For the reasons set forth below, the court holds that Commerce’s application of an adverse inference is supported by substantial evidence and in accordance with law.
BACKGROUND
The legal framework and administrative history of this case have been set forth in the previous remand orders and are recounted here to extent they are relevant. See Second Remand Order, 663 F.Supp.3d at 1360; Third Remand Order, 789 F.Supp.3d at 1296.
A. Antidumping Duties
“Dumping” occurs when a foreign producer sells goods in the United States at a lower price than the producer charges for the same product in its home market. See Sioux Honey Ass‘n v. Hartford Fire Ins. Co., 672 F.3d 1041, 1046 (Fed. Cir. 2012). This practice constitutes unfair competition because it permits foreign producers to undercut domestic producers by selling products below “fair value.” Apex Frozen Foods v. United States, 862 F.3d 1322, 1325 (Fed. Cir. 2017) (citation omitted). “Sales at less than fair value are those sales for which the ‘normal value’ (the price a producer charges in the home market) exceeds the ‘export price’ (the price of the product in the United States).” See id. at 1326; see also
Upon a party‘s request, Commerce must “review[] and determine . . . the amount of any antidumping duty” each year after the publication of an antidumping duty order.
B. Adverse Facts Available
In an administrative review of antidumping duty orders, Commerce “obtains most of its factual information . . . from submissions made by interested parties during the course of the proceeding.”
If Commerce also determines that an interested party has “failed to cooperate by not acting to the best of its ability to comply with a request for information,” Commerce “may use an inference that is adverse to the interests of that party in selecting from among the facts otherwise available.”
Before Commerce applies an adverse inference, if Commerce determines that a party did not comply with a request for information, Commerce “shall promptly inform the person submitting the response of the nature of the deficiency and shall, to the extent practicable, provide that person with an opportunity to remedy or explain the deficiency in light of the time limits established for the completion of investigations or reviews . . . .”
C. Affiliation
“[I]nformation about affiliation is fundamental for Commerce to calculate the dumping margin.” Kumar Indus. v. United States, 49 CIT __, __, 779 F. Supp. 3d 1329, 1340–41 (2025) (internal quotation marks and citation omitted); see also Crawfish Processors All. v. United States, 477 F.3d 1375, 1378 (Fed. Cir. 2007). In calculating normal value, Commerce disregards sales made to home market affiliates outside “the ordinary course of trade.”
(A) Members of a family . . . . (B) Any officer or director of an organization and such organization. (C) Partners. (D) Employer and employee. (E) Any person directly or indirectly owning, controlling, or holding with power to vote, 5 percent or more of the outstanding voting stock or shares of any organization and such organization. (F) Two or more persons directly or indirectly controlling, controlled by, or under common control with, any person. (G) Any person who controls any other person and such other person.
II. Factual History
A. Antidumping Administrative Review
In 1986, Commerce issued an antidumping order on welded carbon steel pipes and tubes1
In response, Saha Thai reported “home market sales of subject merchandise to [several] affiliated customers” and “sales to potentially affiliated entities for consumption.” See Letter from D. L. Porter to W. Ross, Sec’y of Com., re: Saha Thai’s Sec. A Questionnaire Resp. at 3 (Nov. 10, 2020), P.R. 69–72, C.R. 45–62 (“Sec. A Q Resp.”); Letter from D. L. Porter to W. Ross, Sec’y of Com., re: Saha Thai’s Sec. B Questionnaire Resp. at 4 (Dec. 10, 2020), P.R. 133, C.R. 121–22 (“Sec. B Q Resp.”).
Commerce issued three supplemental questionnaires, each of which probed Saha Thai’s relationship with domestic affiliates. See Second Remand Order, 663 F. Supp. 3d at 1362; Letter from N. Decker to D. Porter, re: Suppl. Questionnaire for Saha Thai at 1 (Dep’t Com. Feb. 3,
In response to the Shared Employee Question, Saha Thai stated that “none of its or its affiliates’ employees, stockholders, managers, directors, officers, or department heads currently is employed with any other company that develops, produces, sells and/or distributes the merchandise under review other than those affiliations already described in Saha Thai’s Section A response.” Letter from D. Porter to G. Raimondo, Sec’y of Com., re: Saha Thai’s Supp. Questionnaire Resp. Part 2 at 2–3 (May 6, 2021), P.R. 229–30, C.R. 258–59 (“Third Suppl. Q Resp.”). In none of its submissions did Saha Thai identify BNK as a potential affiliate. See Sec. A Q Resp. at 3, 10–14; Sec. B Q Resp at 4; Letter from D. Porter to W. Coggins, re: Saha Thai’s First Suppl. Questionnaire Resp. (Feb. 24, 2021), C.R. 175–76; Letter from D. Porter to G. Raimondo, re: Saha Thai’s Second Suppl. Questionnaire Resp. (Mar. 18, 2021), C.R. 237–38; Third Suppl. Q Resp. at 2–3.
In its Final Determination, Commerce determined that Saha Thai did not report home market customers flagged by Wheatland as being potentially affiliated with Saha Thai. See Mem. From J. Maeder to R. Majerus, re: Circular Welded Carbon Steel Pipes and Tubes from Thailand:
B. Remand Proceedings
Saha Thai filed the underlying case against the Defendant the United States (“the Government”) on December 20, 2021, seeking judicial review of Commerce’s Final Determination. See Compl. Dec. 20, 2021, ECF No. 6. Thai Premium Pipe Company Ltd. (“Thai Premium”), a voluntary respondent in the administrative review, intervened as Plaintiff-Intervenor. See Consent Mot. to Intervene as a Matter of Right, Jan. 18, 2022, ECF No. 13; Order, Jan. 18, 2022, ECF No. 18. Wheatland Tube Company (“Wheatland”) and Nucor Tubular Products Inc. (“Nucor”)—domestic producers of welded steel pipes and tubes that participated as domestic interested parties in the administrative review—intervened as Defendant-Intervenors. Wheatland’s Consent Mot. to Intervene as Def.-Inter. at 1, Jan. 19, 2022, ECF No. 24; Nucor’s Consent Mot. to Intervene as a Matter of Right at 1–2, Jan. 19, 2022, ECF No. 25; Order, Jan. 19, 2022, ECF No. 31.
As relevant to the instant proceeding, Saha Thai originally challenged Commerce’s determination that Saha Thai was affiliated with seven home market customers and its application
Commerce issued the results of its second remand redetermination on October 10, 2024, in which Commerce determined under protest that Saha Thai and BNK were not affiliated and recalculated the dumping margin for Saha Thai to be 1.65 percent Final Results of
All parties asked the court to sustain the Second Remand Results. See Pl.-Inter.’s Cmts. in Supp. of Commerce’s Second Remand Redetermination, Nov. 11, 2024, ECF No. 89; Pl.’s Cmts. on Commerce’s Second Redetermination on Remand at 5, Nov. 11, 2024, ECF No. 90; Def.’s Resp. to Cmts. on Commerce’s Remand Redetermination at 1, Dec. 11, 2024, ECF No. 93; Wheatland’s Reply to Cmts. on the Remand Redetermination at 4, Dec. 16, 2024, ECF No. 94.
After holding oral argument, the court remanded Commerce’s Second Remand Results, holding that Commerce had changed its position without acknowledging the change in its rationale. See Third Remand Order, 789 F. Supp. 3d at 1308. Specifically, the court found that Commerce cited the Shared Debt or Equity Question in the Final Determination and the Shared Employee Question of the Third Supplemental Questionnaire in the Second Remand Results. See id. at 1304–05.
Commerce issued its Third Remand Results on August 11, 2025, in which Commerce again applied an adverse inference to determine that Saha Thai and BNK are affiliated and recalculated the dumping margin to be 14.74 percent. See Third Remand Results at 2, 19. Commerce stated that in the Final Determination it “inadvertently cited [the Shared Equity or Debt Question],” and that Commerce was “changing [its] position on remand . . . including [by] correcting Commerce’s
III. Procedural History
On September 17, 2025, Saha Thai and Thai Premium filed comments in opposition to the Third Remand Results, challenging Commerce’s determination as “unsupported by substantial evidence, not in accordance with law, and inconsistent with the [c]ourt’s Third Remand Order.” Pl.’s Cmts. on Third Remand Redetermination at 4, Sept. 17, 2025, ECF No. 118 (“Pl.’s Br.”); see also Pl.-Inter.’s Cmts. on Third Remand Redetermination at 1, Sept. 17, 2025, ECF No. 117 (“Pl.-Inter.’s Br.”) (incorporating by reference Saha Thai’s arguments). The Government and Wheatland each filed responses asking the court to sustain the Third Remand Results. See Def.’s Resp. to Saha Thai’s Cmts. on Commerce’s Remand Redetermination at 1, Nov. 24, 2025, ECF No. 131 (“Gov’t Br.”); Def.-Inter.’s Reply to Cmts. on the Third Remand Redetermination at 1, Dec. 8, 2025, ECF No. 132 (“Def.-Inter.’s Br.”).7
The court issued written questions, to which the parties responded. See Ct.’s Qs for Oral Arg., Jan. 29, 2026, ECF No. 139; Pl.’s Resps. to the Ct.’s Qs for Oral Arg., Feb. 19, 2026, ECF No. 142 (“Pl.’s OAQ Resp.”); Def.-Inter.’s Resp. to the Ct.’s Qs, Feb. 19, 2026, ECF No. 143 (“Def.-Inter.’s OAQ Resp.”); Def.’s Resp. to Ct.’s Qs for Oral Arg., Feb. 19, 2026, ECF No. 144 (“Gov’t OAQ Resp.”).
The court held oral argument on April 16, 2026. ECF No. 148. Following oral argument,
JURISDICTION AND STANDARD OF REVIEW
The court has jurisdiction under
“Substantial evidence is defined as ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Zhejiang, 652 F.3d at 1340 (quoting Nippon Steel, 337 F.3d at 1379). “[The] court reviews the record as a whole, including evidence that supports as well as evidence that ‘fairly detracts from the substantiality of the evidence.’ ” Id. (quoting Nippon Steel, 337 F.3d at 1379). The court may find that Commerce’s determination is “supported by substantial evidence even if two inconsistent conclusions can be drawn from the evidence.” Ad Hoc Shrimp, 802 F.3d at 1348 (citing Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 5620 (1966)).
DISCUSSION
Saha Thai challenges the Third Remand Results on several grounds. First, Saha Thai asserts that Commerce failed to comply with the court’s previous remand order in changing its
The Government and Wheatland ask the court to sustain the Third Remand Results, arguing that Commerce complied with the court’s previous remand order and permissibly changed its reason for applying an adverse inference to Saha Thai. Gov’t Br. at 7; see also Def.-Inter.’s Br. at 6. They also argue that Commerce’s application of an adverse inference is supported by substantial evidence because necessary information was missing from the record, Saha Thai failed to cooperate to the best of its ability in reporting its connections to BNK, and “Commerce complied with the notice requirements of
The court sustains the Third Remand Results, holding that Commerce complied with the prior remand order and principles of administrative law and that Commerce’s application of an adverse inference to the affiliation determination between Saha Thai and BNK is supported by substantial evidence and in accordance with law. The court also concludes that Saha Thai’s challenge to the Third Remand Order based on the party presentation principle is waived.
In issuing a redetermination on remand, Commerce has two options. “First, the agency can offer a fuller explanation of the agency’s reasoning at the time of the agency action,” Biden v. Texas, 597 U.S. 785, 808 (2022) (quoting Dep’t of Homeland Sec. v. Regents of Univ. of Cal., 591 U.S. 1, 20 (2020)), in which case “ ‘the agency may elaborate’ on its initial reasons for taking the action, ‘but may not provide new ones.’ ” id. (quoting Regents, 591 U.S. at 21). “Alternatively, ‘the agency can deal with the problem afresh by taking new agency action.’ ” Id. (quoting Regents, 591 U.S. at 21). If Commerce changes its position on remand, it “is not limited to its prior reasons but must comply with the procedural requirements for new agency action,” see Regents, 591 U.S. at 21, meaning it must “examine the relevant data and articulate a satisfactory explanation for its action,” Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 43 (1983). In changing its position, “the requirement that an agency provide reasoned explanation for its action would ordinarily demand that it display awareness that it is changing position.” F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009).
In the Third Remand Results, Commerce took the second option: “changing [its] position on remand and applying partial [adverse facts available] to Saha Thai with respect to its home market sales to BNK.” Third Remand Results at 4. Commerce explained that, although its position on remand was “consistent with Commerce’s original intention in the [Final Determination]” to apply an adverse inference to the affiliation determination between Saha Thai and BNK, it was “correcting Commerce’s citation to supporting documentation to accurately reflect Commerce’s analysis.” Id. Commerce also changed its position from the prior remand redetermination, in which Commerce, under protest, did not apply an adverse inference to Saha Thai with respect to
Saha Thai argues that “[i]n failing to acknowledge that it has changed its position nor explaining the reason for the change, Commerce has defied the [c]ourt’s Third Remand Order and basic principles of administrative law.” Pl.’s Br. at 11. This argument is unavailing.
First, Commerce acknowledged that it was changing its position as to the portion of the record that supports its determination to apply an adverse inference by stating that “[t]his redetermination is a new agency action wherein we are changing the question on which our analysis is based.” Third Remand Results at 5; see also Fox, 556 U.S. at 515. Commerce also acknowledged it was “changing [its] position” from to the Second Remand Results by “applying partial [adverse facts available] to Saha Thai with respect to its home market sales to BNK.” Third Remand Results at 4.
Second, Commerce explained that it changed its position in order to correct its prior inadvertent citation to the Shared Debt and Equity Question. Third Remand Results at 3–4. Commerce articulated that it intended to cite the Shared Employee Question, not the Shared Debt or Equity Question in the Final Determination, and that this was evident because its analysis “did
Third, Commerce’s redetermination on remand is consistent with the court’s Third Remand Order, which explained that “Commerce is always free to change its position and explain its reasoning for doing so on remand.” Third Remand Order, 789 F. Supp. 3d at 1306. The court specified that, on remand, Commerce could either “maintain its original position that [the Shared Debt or Equity Question] is the question on which it wishes to base its analysis” or “pick a different question” to support its determination. Id. at 1308. If Commerce changed its position and relied on the Shared Employee Question, the court instructed that “[Commerce] would need to forthrightly acknowledge that it is changing the question on which it bases its analysis.” Id. Commerce did just that. In contrast to the prior remand redetermination in which “Commerce claim[ed] not to have changed its position,” see id. at 1304, Commerce now has acknowledged that it previously cited the Shared Debt and Equity Question, stated that it is changing its position to cite the Shared Employee Question, and explained the reason for the change in its position, see Third Remand Results at 3–5. The court therefore holds that Commerce complied with administrative law and the Third Remand Order in changing its analysis to cite the Shared Employee Question as the basis for applying an adverse inference.
II. Commerce’s Application of Adverse Facts Available to the Challenged Affiliation Determination Is Supported by Substantial Evidence and in Accordance with Law
Commerce may apply adverse facts available where necessary information to make an
In the Third Remand Results, Commerce determined that necessary information to make an affiliation determination for Saha Thai and BNK was missing from the record, Third Remand Results at 8, and that “Saha Thai, by not reporting [its shared human resources manager] with BNK, withheld information that was requested by Commerce, failed to provide such information in a timely manner or in the form or manner requested, and significantly impeded this review,” id. at 11. Commerce also determined that, “by withholding this information, Saha Thai had not acted to the best of its ability” to cooperate to Commerce’s requests for information. Id. Finally, Commerce determined that it had complied with the requirements of
Saha Thai challenges Commerce’s application of an adverse inference as unsupported by substantial evidence and not in accordance with law. See Pl.’s Br. at 15. First, Saha Thai argues that the determination that necessary information was missing from the record is based on a “subsidiary conclusion” that Saha Thai and BNK were affiliated. Id. at 21. Second, Saha Thai
For the reasons that follow, the court holds that Commerce’s application of an adverse inference to the determination of affiliation between Saha Thai and BNK is supported by substantial evidence and in accordance with law.
A. Commerce’s Determination that Saha Thai Failed to Report Necessary Information Is Supported by Substantial Evidence
Saha Thai argues that Commerce’s determination that necessary information was missing from the record was improperly and “directly premised upon Commerce’s subsidiary conclusion that Saha Thai and BNK were affiliated.” Pl.’s Br. at 21. In other words, Saha Thai contends that Commerce assumed that Saha Thai and BNK were affiliated without substantial evidence, and—based on that assumption—determined that the information about the shared human resources manager and other potential connections was necessary. See id. This argument mischaracterizes Commerce’s determination. Commerce did not, as Saha Thai contends, determine that Saha Thai and BNK are affiliated under
As explained by Commerce, record information submitted by Wheatland indicated that Saha Thai and BNK shared a human resources manager and that this individual listed a Saha Thai email address in BNK corporate documents. See Third Remand Results at 4 (citing BNK Information at Ex. 3). In light of evidence that Saha Thai did not disclose that it shared a human resources manager with BNK, Commerce determined that necessary information was missing from the record, specifically: “complete details on the ties between Saha Thai and BNK to make an affiliation determination under [
Commerce was prevented the opportunity to further inquire about and make a determination on: (1) the circumstance in which both Saha Thai and BNK hired the same individual as a human resources manager at the same time, e.g., who was behind hiring this person for both companies; (2) whether this human resources manager was just an administrative employee maintaining personnel files and records or a someone with more elevated managerial authority involved in and influencing and handling appointments, promotions, demotions, and firing of high-ranking managers within both companies; (3) whether there are additional unreported managers working for both Saha Thai and BNK with a similar level of managerial authority and influence in both companies and, if so, who was behind hiring these managers in both companies; (4) whether the circumstances behind his appointment as the human resources manager in both companies and his role as the human resources manager lead to additional evidence for us to find Saha Thai and BNK affiliated or not; and (5), most importantly, what other links may exist between Saha Thai and BNK which Saha Thai failed to report in its questionnaire response.
Third Remand Results at 8-9. Commerce stated that it “was further unable to determine whether Saha Thai‘s home market sales to BNK are sales to an affiliate that requires additional analysis.”
The information that Commerce says it would have requested could be used to determine “whether control over another person [or company] exists.”
Saha Thai‘s remaining arguments are unpersuasive. Saha Thai cites Hyundai Heavy Indus. Co. v. United States, a case in which the court remanded a determination of affiliation pursuant to
Keeping in mind that “information about affiliation is fundamental for Commerce to calculate the dumping margin,” Kumar, 779 F. Supp. 3d at 1340-41 (internal quotation marks and citation omitted); see also Crawfish Processors, 477 F.3d at 1378, the court finds that Commerce‘s determination that it lacked sufficient information to determine whether Saha Thai and BNK are affiliated is supported by substantial evidence and in accordance with law.
B. Commerce‘s Determination that Saha Thai Failed to Cooperate to the Best of Its Ability Is Supported by Substantial Evidence
Commerce may apply an adverse inference in its selection of facts otherwise available if
Saha Thai contends that it “cooperated to the best of its ability” because as pertains to BNK it “provided complete responses to Commerce‘s affiliation inquiries in the original questionnaires” and its response to the Shared Employee Question in the Third Supplemental Questionnaire “was also accurate and truthful.” Pl.‘s Br.at 16-17; see also Pl.‘s OAQ Resp. at 5. Saha Thai argues that “[t]he suggestion that a human resources staff member—whose duties relate to internal personnel management—must be disclosed in response to a question targeting operational or commercial overlap goes beyond both the plain language of the question and the statutory framework for analyzing affiliation,” and that “[t]here is no evidence this was an intentional omission,12 nor was it unreasonable for Saha Thai to interpret [the Shared Employee Question] as inapplicable to this individual.” Id. at 18.
Saha Thai‘s arguments are unpersuasive. In Question 2.h of Section A of the Initial Questionnaire, Commerce instructed Saha Thai to report affiliated companies involved in the development, production, sale and distribution of the merchandise under review, and to
In the Third Supplemental Questionnaire, Commerce directed Saha Thai in the Shared Employee Question to “state whether Saha Thai‘s . . . employees, stockholders, managers, directors, officers, or department heads currently are or previously were employed by any other company involved in the development, production, sales and/or distribution of the merchandise under review.” Third Suppl. Questionnaire at 3. Record evidence demonstrates that BNK is a company involved in the sale and distribution of the subject merchandise, and the shared human resources was employed by both Saha Thai and BNK. See BNK Information at Ex. 3. It was therefore reasonable for Commerce to determine that Saha Thai failed to cooperate to the best of its ability by not disclosing the shared human resources manager in response to the Shared Employee Question. See Third Remand Results at 10.
Saha Thai argues that, although BNK is a company involved in the sale and distribution of
In light of the wording of Commerce‘s initial and supplemental questionnaires, it was “reasonable for Commerce to expect that more forthcoming responses should have been made” regarding Saha Thai‘s relationship with BNK in response to the Initial and Third Supplemental Questionnaire. Nippon Steel, 337 F.3d at 1383.
In addition, Saha Thai‘s failure to report its potential affiliation with six other home market customers lends further support to Commerce‘s determination that Saha Thai failed to cooperate to the best of its ability in disclosing information about potential affiliates. See Third Remand Results at 15 (“Saha Thai‘s failure to identify the shared [human resources] manager with BNK in
C. Commerce‘s Determination Is in Accordance with 19 U.S.C. § 1677m(d)
Recall that, before applying an adverse inference, Commerce must “promptly inform the person submitting the response of the nature of the deficiency and shall, to the extent practicable, provide that person with an opportunity to remedy or explain the deficiency.”
Contrary to Saha Thai‘s position, Commerce was not required to issue an additional supplemental questionnaire under
Commerce provided Saha Thai with multiple opportunities to report its shared human resources manager with BNK by issuing a “series of questionnaires in which the agency repeatedly asked for information about Saha Thai‘s potential affiliates.” Second Remand Order, 663 F. Supp. 3d at 1373. Commerce “clearly requested” the relevant information, Shandong, 355 F. Supp. 3d
The fact that Commerce later learned of the deficiency in Saha Thai‘s response does not require it to notify Saha Thai or inquire further. See ABB, 355 F. Supp. 3d at 1222; Shandong, 355 F. Supp. 3d at 1374. The burden was on Saha Thai to create an adequate record. See QVD Food, 658 F.3d at 1324. Saha Thai should have known of the shared human resources manager from the start but “did not alert Commerce to the deficiency and at no time attempted to remedy this deficiency.” Shandong, 355 F. Supp. 3d at 1375. While Commerce could have asked Saha Thai to provide further information about the shared human resources manager after learning of
III. Saha Thai‘s Challenge to the Third Remand Order Does Not Provide Grounds for Remand
Finally, Saha Thai argues that “[the Third Remand Order] was unlawful” because it “order[ed] additional remand relief that no party has requested.” Pl.‘s OAQ Resp. at 9 (citing United States v. Sineneng-Smith, 590 U.S. 371 (2020) and Risen Energy Co. v. United States, 122 F.4th 1348 (Fed. Cir. 2024)); see also Pl.‘s Suppl. Br. at 2-3. In Sineneng-Smith, the Supreme Court explained that under “the principle of party presentation” courts “normally decide only questions presented by the parties.” 590 at 375-76 (internal quotation marks and citation omitted). In this case, all parties asked the court to sustain the Second Remand Results, and Saha Thai contends that the Third Remand Order violated the principle of party presentation by “imposing a remand sought by neither party.” Pl.‘s OAQ Resp. at 9 (quoting Risen Energy, 122 F.4th at 1360 (Stark, J. dissenting in part)). The Government responds that the court should not consider the argument because Saha Thai first invoked the principle of party presentation in response to the court‘s questions for oral argument, and “[a]rguments not raised in [the] opening brief are waived.” Tr. at 39:18-19; see also id. at 39:5-13.
An argument is waived if it is omitted in a party‘s opening brief; inclusion in supplemental briefs or oral argument does not suffice. See Novosteel SA v. U. S., Bethlehem Steel Corp., 284 F.3d 1261, at 1273-74 (Fed. Cir. 2002); United States v. Ford Motor Co., 463 F.3d 1267, 1276-77 (Fed. Cir. 2006) (argument raised for the first time in a reply brief deemed waived); Shell Oil Co. v. United States, 35 CIT 673, 699-700, 781 F. Supp. 2d 1313, 1335-36 (2011), aff‘d, 688 F.3d 1376 (Fed. Cir. 2012) (argument raised for the first time at oral argument deemed waived). Making “passing reference” to an issue does not suffice to preserve an argument. ArcelorMittal France v. AK Steel Corp., 700 F.3d 1314, 1325 n.6 (Fed. Cir. 2012). To avoid waiver, a party must articulate its argument; “[i]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.” See Home Prods. Int‘l, Inc. v. United States, 36 CIT 33, 37, 810 F. Supp. 2d 1373, 1379 (2012) (quoting United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)).
In its opening brief, Saha Thai states that the court issued the Third Remand Order “[d]espite all parties agreeing that the [c]ourt should affirm the Second Remand Results,” Pl.‘s Br. at 1, but nowhere in its brief does Saha Thai invoke the party presentation principle or develop an argument challenging the Third Remand Order on that basis, see generally id. In making “passing reference” to the parties’ agreement that the Second Remand Results should be sustained, Saha Thai “has not briefed those issues sufficiently to preserve them.” ArcelorMittal, 700 F.3d at 1325 n.6.
Saha Thai contends that it did not waive this argument because “the substance of the party presentation argument was raised” at oral argument prior to the issuance of the Third Remand Order. Pl.‘s Suppl. Br. at 2; see also id. at 3 (Saha Thai “objected immediately when the remand issue arose, then later identified the doctrinal label that best captures the same objection“). As relevant, Saha Thai stated that “the results should be to affirm the [Second Remand Results], recognizing that all . . . parties in the case have stated that they agree the remand results should be
For the reasons set forth above, the court finds that Saha Thai waived its argument that the Third Remand Order unlawfully ordered relief that no party sought by omitting this argument from its opening brief, and that Saha Thai‘s general references to the party‘s agreement that the parties agreed the Second Remand Results should be sustained were insufficient to preserve the argument.16
The court concludes that Commerce‘s application of an adverse inference to determine that Saha Thai and BNK are affiliated is supported by substantial evidence and in accordance with law because it was reasonable for Commerce to expect Saha Thai to disclose that it shared a human resources manager with BNK in response to questions that asked about “manager relationships” and shared employees. See Initial Questionnaire at A-6; Third Suppl. Questionnaire at 3; Third Remand Results at 10-11. The court further finds that Commerce complied with the Third Remand Order and principles of administrative law in changing its position to rely on the Shared Employee Question of the Third Supplemental Questionnaire, and that Saha Thai‘s challenge to the Third Remand Order itself is waived. The court therefore holds that Commerce‘s remand redetermination is supported by substantial evidence and in accordance with law. Commerce‘s Third Remand Results are sustained.
SO ORDERED.
/s/ Gary S. Katzmann
Gary S. Katzmann, Judge
Dated: July 17, 2026
New York, New York