Hyundai Heavy Industries, Co. Ltd. v. United States, 080219 USCIT, 17-00054

Docket Nº:17-00054, Slip Op. 19-104
Opinion Judge:Mark A. Barnett Judge.
Party Name:HYUNDAI HEAVY INDUSTRIES, CO. LTD., Plaintiff, v. UNITED STATES, Defendant, and ABB INC., Defendant-Intervenor.
Attorney:Ron Kendler, White & Case LLP, of Washington, DC, argued for Plaintiff. With him on the brief were David E. Bond and William J. Moran. John J. Todor, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, argued for Defendant. With him o...
Judge Panel:Before: Mark A. Barnett, Judge.
Case Date:August 02, 2019
Court:Court of International Trade
 
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HYUNDAI HEAVY INDUSTRIES, CO. LTD., Plaintiff,

v.

UNITED STATES, Defendant,

and

ABB INC., Defendant-Intervenor.

No. 17-00054

Slip Op. 19-104

Court of Appeals of International Trade

August 2, 2019

[Sustaining the U.S. Department of Commerce's redetermination upon remand in the third administrative review of the antidumping duty order on large power transformers from the Republic of Korea.]

Ron Kendler, White & Case LLP, of Washington, DC, argued for Plaintiff. With him on the brief were David E. Bond and William J. Moran.

John J. Todor, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, argued for Defendant. With him on the brief were Joseph H. Hunt, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Franklin E. White, Jr., Assistant Director. Of counsel on the brief was David W. Richardson, Senior Counsel, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, DC.

Melissa M. Brewer, Kelley Drye & Warren LLP, of Washington, DC, argued for Defendant Intervenor. With her on the brief were David C. Smith and R. Alan Luberda.

Before: Mark A. Barnett, Judge.

OPINION

Mark A. Barnett Judge.

Barnett, Judge: This matter comes before the court following the U.S. Department of Commerce's ("Commerce" or "the agency") redetermination upon remand in this case. See Confidential Final Results of Redetermination Pursuant to Court Remand ("Remand Results"), ECF No. 65-1.1 Plaintiff, Hyundai Heavy Industries, Co., Ltd. ("HHI")[2] initiated this action contesting certain aspects of Commerce's final results in the third administrative review of the antidumping duty order on large power transformers ("LPT") from the Republic of Korea for the period of review August 1, 2014, through July 31, 2015. See Compl., ECF No. 5; Large Power Transformers From the Republic of Korea, 82 Fed. Reg. 13, 432 (Mar. 13, 2017) (final results of antidumping duty administrative review; 2014-2015), ECF No. 17-2, and accompanying Issues and Decision Mem., A-580-867 (Mar. 6, 2017) ("I&D Mem."), ECF No. 17-3. Specifically, HHI challenged Commerce's decision to assign HHI a final weighted-average dumping margin of 60.81 percent based on the use of total facts available with an adverse inference (referred to as total "adverse facts available" or total "AFA"). See generally Confidential Rule 56.2 Mot. for J. Upon the Agency R. on Behalf of Pl. Hyundai Heavy Industries Co. Ltd. and Mem. of P. & A. in Supp., ECF No. 26; I&D Mem. at 4-6. Commerce based that decision on the following findings: (1) HHI failed to report service-related revenues separately from the gross unit price despite repeated requests from Commerce; (2) HHI failed to include the price of a subject "part" in the price for certain home market sales despite repeated opportunities to do so; (3) HHI failed to report separately the prices and costs for LPT accessories; and (4) HHI was systematically selective in providing documents to Commerce and reported data that contained discrepancies. I&D Mem. at 17-28.

The court remanded this matter to the agency for Commerce to reconsider or further explain its decision to use total AFA because substantial evidence did not support all of the bases underlying that decision. Hyundai Heavy Indus., Co. v. United States ("HHI I"), 42 CIT___, ___, 332 F.Supp.3d 1331, 1350 (2018).3 In particular, substantial evidence did not support Commerce's finding that HHI withheld requested information with respect to accessories. Id. at 1346-48. Moreover, Commerce failed to explain the basis for its finding that HHI provided selective documentation and data that contained discrepancies; accordingly, this finding lacked substantial evidence.4 Id. at 1348-49.

On remand, Commerce reconsidered its finding that HHI misreported costs and prices for accessories, its finding that HHI selectively reported information, and the legal and factual basis for the use of total AFA. Remand Results at 1-2. Commerce determined that HHI had properly reported accessories, consistent with the scope of the antidumping duty order. Id. at 11, 19. Commerce "clarif[ied]" that accessories are "components attached to the active part of the LPT and included within the subject merchandise." Id. at 19. As such, the use of AFA for HHI's reporting of accessories was unwarranted. Id. at 11. However, Commerce continued to find that HHI selectively reported certain sales information and provided unreliable data. Id. at 12. Based on this finding and those sustained by the court in HHI I, 332 F.Supp.3d at 1340-42, 1345, Commerce again determined that total AFA was appropriate. See id. at 16, 25.

HHI supports Commerce's redetermination with respect to accessories but opposes the Remand Results in all other respects. See Pl.'s Comments in Supp. of the Final Results of Redetermination Pursuant to Court Remand ("HHI's Supp. Cmts"), ECF No. 79; Confidential Pl.'s Comments in Opp'n to the Final Results of Redetermination Pursuant to Court Remand ("HHI's Opp'n Cmts"), ECF No. 72. Defendant, United States ("the Government"), and Defendant-Intervenor, ABB Inc. ("ABB") support the Remand Results in their entirety.5 See Confidential Def.'s Resp. to Comments on the Dep't of Commerce's Remand Results ("Gov.'s Supp. Cmts"), ECF No. 76; ABB's Supp. Cmts. The court heard oral argument on June 11, 2019. Docket Entry, ECF No. 91. For the reasons that follow, the court sustains the Remand Results.

Jurisdiction and Standard of Review

The court has jurisdiction pursuant to § 516A(a)(2)(B)(iii) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2012), 6 and 28 U.S.C. § 1581(c). The court will uphold an agency determination that is supported by substantial evidence and otherwise in accordance with law. 19 U.S.C. § 1516a(b)(1)(B)(i). "The results of a redetermination pursuant to court remand are also reviewed for compliance with the court's remand order." SolarWorld Ams., Inc. v. United States, 41 CIT___, ___, 273 F.Supp.3d 1314, 1317 (2017) (citation and internal quotation marks omitted).

Discussion

I. Selective Reporting and Total AFA

a. Commerce's Redetermination

On remand, Commerce continued to find that HHI was selective in its reporting and provided data with various discrepancies. Remand Results at 12-13. Commerce identified the following documentation that HHI failed to provide: "(1) accounting entries to record [HHI's] U.S. sales and payments; (2) U.S. commission documents for certain U.S. sales; (3) test reports for all [U.S. sales transactions (referred to as SEQUs)]; (4) Korean trucking expense invoices for several U.S. sales; and (5) [certain] . . . requests for quote[s] (or "RFQs"), bids, and packing lists." Id. at 13 (footnotes omitted). Additionally, Commerce identified inconsistencies with reported transportation and brokerage expenses for certain U.S. sales. Id.; see also id. at 21.

Commerce found that HHI "failed to cooperate to the best of its ability in complying with requests for information" because, "despite a specific and comprehensive request for sales and expense documentation, [HHI] selectively reported what it considered 'necessary' and 'sufficient.'" Id. at 17. Commerce recognized that respondents sometimes make mistakes in their submissions, id. at 25, but attributed HHI's reporting discrepancies and omission of documents to carelessness and inferred that HHI either...

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