ABB Inc. v. United States
38 I.T.R.D. (BNA) 1820
Ct. Intl. Trade2016Background
- ABB challenged Commerce’s final results of the first administrative review (Feb. 16, 2012–July 31, 2013) of the antidumping duty order on large power transformers from Korea, contesting margins assigned to Hyundai and Hyosung.
- Hyundai and Hyosung were mandatory respondents in both the original LTFV investigation and the challenged administrative review; some sales reported in the investigation shipped during the review (so‑called "overlapping sales").
- Commerce collected updated/actual cost and price data in the review, issued questionnaires and supplemental questionnaires, and examined source documents (contracts, invoices, payment records).
- Commerce issued preliminary, final, and two amended final results (to correct ministerial errors); the second amended results assigned margins of 8.23% (Hyosung) and 12.36% (Hyundai).
- ABB argued that respondents’ reported prices/expenses were unreliable (pointing to discrepancies with earlier investigation filings and to data submitted to another agency), that Commerce should have applied facts available or adverse facts available (AFA), and that Commerce improperly granted home‑market commission offsets.
- The Court sustained most of Commerce’s determinations but remanded two discrete issues for further explanation/investigation: (1) sequencing discrepancies in certain Hyundai documents, and (2) Commerce’s treatment of U.S. commissions / the basis for granting or denying home‑market commission offsets.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Reliability of Hyosung’s reported U.S. prices/expenses (including "overlapping sales") | Hyosung’s data conflicted with investigation records; discrepancies undermine reliability and warrant use of facts available/AFA. | Commerce probed discrepancies, obtained source documents and found Hyosung’s updated (actual) data supported; differences stemmed from estimated vs. actual reporting and amended orders. | Commerce’s acceptance of Hyosung’s data and refusal to apply facts available/AFA sustained — substantial evidence supports reliability. |
| Specific expense issues for Hyosung (freight, commissions, installation) | Freight markups and commission/expense inconsistencies inflated gross unit price; installation should be treated as direct expense. | Respondent provided documentation; freight and commission treatment are supported by transactional terms and business records; accounting differences reflect normal business practices. | Commerce’s treatment of freight, commissions, and installation expenses for Hyosung was supported by substantial evidence and lawful; Commerce advised consistent future reporting. |
| Reliability of Hyundai’s reporting; discrepancies with filings to another agency | Differences between Hyundai’s Commerce filing and filings to another agency indicate unreliable data; AFA warranted. | Hyundai responded to many questionnaires, provided documentation and credible explanations; Commerce need not police filings to other agencies when record to Commerce is substantiated. | Court sustained Commerce’s finding that Hyundai’s data (as reported to Commerce) was sufficiently substantiated; no AFA based solely on differences with other‑agency filings. |
| Sequencing discrepancies in Hyundai’s documents (dates/ordering of contract, invoice, entry) | Sequencing anomalies call into question reliability of certain U.S. sales records. | Commerce found overall record reliable and declined AFA; but acknowledged the issue could be resolved via supplemental questionnaires. | Court found Commerce did not adequately investigate/explain sequencing discrepancies and remanded that discrete issue for further inquiry/explanation. |
| Application of facts available / AFA (general) | Where respondents’ records are unreliable or inconsistently reported, Commerce should apply facts available or AFA to protect accuracy and integrity. | Commerce reasonably exercised discretion: respondents cooperated, produced documentation, and explained discrepancies; statutory criteria for AFA not met. | Court sustained Commerce’s broader refusals to apply facts available/AFA where record evidence supported reliability; defers AFA analysis regarding Hyundai sequencing pending remand. |
| Home‑market commission offset treatment | ABB: commissions were incurred inside U.S.; they should reduce CEP and not produce a home‑market offset. | Commerce treated commissions in a manner inconsistent across its memos and margin programs; agency argues commissions were incurred outside the U.S. or otherwise warrant offset. | Court remanded for Commerce to explain record basis and legal/factual justification for its treatment of U.S. commissions and whether home‑market offsets are appropriate. |
Key Cases Cited
- Huaiyin Foreign Trade Corp. v. United States, 322 F.3d 1369 (Fed. Cir.) (substantial‑evidence standard explained)
- Nippon Steel Corp. v. United States, 337 F.3d 1373 (Fed. Cir.) (court must consider whole record, including detracting evidence)
- Matsushita Elec. Indus. Co. v. United States, 750 F.2d 927 (Fed. Cir.) (agency findings may be supported despite conflicting inferences)
- Downhole Pipe & Equip., L.P. v. United States, 776 F.3d 1369 (Fed. Cir.) (court may not reweigh evidence)
- Chevron U.S.A. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (U.S.) (two‑step framework for reviewing agency statutory interpretation)
- Consol. Edison Co. v. NLRB, 305 U.S. 197 (U.S.) (definition of substantial evidence standard)