ABB, Inc. v. United States, 2017 CIT 137

Background

This is a challenge to Commerce’s remand redetermination in the first administrative review of the antidumping duty order on large power transformers from Korea (POR: Feb 16, 2012–Jul 31, 2013). Plaintiff: ABB; Defendant: United States; Defendant-intervenors: Hyundai and Hyosung.
The court previously remanded two discrete items: (1) sequencing discrepancies in certain Hyundai sales documents, and (2) Commerce’s treatment of U.S. commissions and whether home‑market commission offsets should be granted. See ABB I, 40 CIT _, 190 F. Supp. 3d 1159 (2016).
On remand Commerce issued a supplemental questionnaire; Hyundai explained its “back‑to‑back” sales process and provided documentary support. Commerce concluded sequencing issues were resolved and declined to apply facts‑available or AFA. No party now contests sequencing.
Commerce also concluded that Hyundai and Hyosung’s commissions on U.S. sales were incurred in the United States, treated those commissions as CEP selling expenses (deducted from CEP), and declined to grant home‑market commission offsets.
Hyundai and Hyosung challenged the commissions determination (arguing the geographic distinction and new three‑factor test were unlawful or inconsistent); the government and ABB defended Commerce’s legal and factual approach.
The Court sustained Commerce’s remand redetermination on both issues: sequencing and the treatment of U.S. commissions.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Commerce properly resolved sequencing/date discrepancies in Hyundai’s sales documents and whether facts‑available/AFA should apply	ABB argued discrepancies warranted further scrutiny and possibly facts‑available/AFA	Commerce obtained supplemental responses, Hyundai explained the back‑to‑back process and provided docs; no further challenge	Court sustained Commerce: sequencing sufficiently explained; no facts‑available/AFA applied
Whether commissions on U.S. sales must be treated as CEP selling expenses (deducted from CEP) or instead can give rise to a home‑market commission offset	ABB argued Commerce must show record/legal basis for treatment and that U.S. commissions incurred in U.S. should be CEP deductions, not NV offsets	Respondents argued the statute/regulations allow a commission offset where commissions are paid in one market but not the other and location should not control; they contended Commerce exceeded remand scope and introduced a new, results‑oriented test	Court held Commerce’s geographic distinction is a permissible interpretation of the statute/regulations/SAA: commissions incurred in the U.S. are CEP selling expenses and do not justify a home‑market commission offset
Whether Commerce’s three‑factor methodology to determine where commissions were incurred is lawful	Respondents claimed the test is new, overbroad, and will always favor finding commissions incurred in the U.S.	Government argued Commerce may reasonably develop criteria to determine where commissions are incurred and the three non‑exhaustive factors are consistent with statutory/regulatory scheme	Court held Commerce acted within its discretion: the factors are reasonable and consistent with law; respondents failed to show the test unreasonable
Whether Commerce exceeded scope of remand by revising its treatment of commissions	Respondents argued remand was narrow and Commerce impermissibly revised factual findings/methodology	Government: remand permitted Commerce to further explain and, if warranted, reconsider treatment; Commerce did so within discretion	Court found Commerce did not exceed remand and fully complied with instructions; remand redetermination sustained

Key Cases Cited

American Lamb Co. v. United States, 785 F.2d 994 (Fed. Cir.) (agency interpretations of administered statute entitled to deference)
ICC Indus., Inc. v. United States, 812 F.2d 694 (Fed. Cir.) (agency interpretations need not be the single best)
Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (Sup. Ct.) (permissible construction test for ambiguous statutes)
U.S. Steel Corp. v. United States, 712 F. Supp. 2d 1330 (Ct. Int’l Trade) (Commerce’s discretion to develop reasonable implementation methodology)
Dominion Res., Inc. v. United States, 681 F.3d 1313 (Fed. Cir.) (review limited to whether agency’s construction is permissible)
NMB Singapore Ltd. v. United States, 557 F.3d 1316 (Fed. Cir.) (Court requires agency path be reasonably discernable)