2020 CIT 72
Ct. Int'l Trade2020Background
- Administrative review of antidumping duty order on large power transformers from South Korea covering Aug. 1, 2013–July 31, 2014; ABB Inc. (plaintiff) challenged Commerce's Final Results.
- Key respondents/intervenors: Hyundai (Hyundai Heavy Industries/Hyundai Corporation USA) and Hyosung; disputes involved treatment of service-related revenue and U.S. commission/home-market commission offsets.
- Commerce initially capped certain service-related revenues, applied partial facts available with an adverse inference (AFA) for service-related revenue reporting, and made circumstance-of-sale (COS) adjustments for delayed-delivery charges.
- The court remanded multiple times: it sustained Commerce’s use of facts available but remanded the use of an adverse inference and the revenue cap where not supported; it also ruled COS adjustments for delayed-delivery charges were impermissible because those charges are revenue, not expenditures.
- On third remand, Commerce removed the COS adjustments for delayed-delivery charges; the Third Remand Results were uncontested by the parties.
- The Court sustained Commerce’s Third Remand Results as lawful and supported by substantial evidence, entering judgment accordingly.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Commerce may apply circumstance-of-sale adjustments for delayed-delivery charges (revenue) | ABB argued COS adjustments for revenue are improper because COS adjustments require an actual or implied respondent expenditure | Commerce initially treated delayed-delivery charges as warranting COS adjustments; on remand removed those adjustments consistent with court guidance | Court held COS adjustments for delayed-delivery charges were improper and sustained Commerce’s removal of those adjustments |
| Use of adverse inference/partial AFA for service-related revenue reporting | ABB contended Commerce improperly relied on adverse inferences/partial AFA where evidence did not support it | Commerce argued Hyundai failed to report service-related revenue despite ability to do so, justifying an adverse inference | Court previously sustained use of facts available; remanded certain uses of adverse inference; overall Commerce’s application of AFA was addressed in remands and explanation upheld where supported |
| Imposition of a cap on service-related revenue when services are not separately negotiable | ABB challenged Commerce’s capping of service revenue by associated expenses where services weren’t separately negotiable | Commerce capped service revenue by related expenses in some instances; court required substantial evidence of separate negotiability before capping | Court remanded cap application where substantial evidence of separate negotiability was lacking and directed Commerce to reconsider; Commerce complied on remand by not applying the cap where unsupported |
| Home-market commission offsets for U.S. commissions | ABB contested Commerce’s methodology for home-market commission offsets related to U.S. commissions incurred in the U.S. | Commerce adjusted its methodology on remand for home-market commission offsets | Court previously sustained Commerce’s revised methodology for these commission offsets |
Key Cases Cited
- ABB Inc. v. United States, 273 F. Supp. 3d 1200 (Ct. Int'l Trade 2017) (resolving initial challenges to Commerce’s Final Results)
- ABB Inc. v. United States, 355 F. Supp. 3d 1206 (Ct. Int'l Trade 2018) (addressing remand issues including AFA and revenue capping)
- SolarWorld Ams., Inc. v. United States, 273 F. Supp. 3d 1314 (Ct. Int'l Trade 2017) (standard for reviewing remand redeterminations)
- Habaş Sinai Ve Tibbi Gazlar Istihsal Endüstrisi, A.Ş. v. United States, 415 F. Supp. 3d 1195 (Ct. Int'l Trade 2019) (discussing that COS adjustments involve an actual or implied respondent expenditure)