Abb, Inc. v. U.S.

920 F.3d 811

ABB, INC., Plaintiff-Appellee

v.UNITED STATES, Defendant-Appellee

Hyosung Corporation, HICO America Sales and Technology, Inc., Defendants

v.Hyundai Heavy Industries Co., LTD., Hyundai Corporation, USA, Defendants-Appellants

2018-1300

United States Court of Appeals, Federal Circuit.

Decided: April 5, 2019

Robert Alan Luberda, Kelley Drye & Warren, LLP, Washington, DC, argued for plaintiff-appellee. Also represented by Melissa M. Brewer, David C. Smith, Jr.

John Jacob Todor, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by Jeanne Davidson, Franklin E. White, Jr., Joseph H. Hunt ; Christopher Hyner, United States Department of Commerce, Washington, DC.

David Edward Bond, White & Case LLP, Washington, DC, argued for defendants-appellants. Also represented by Ron Kendler.

Before Moore, Schall, and Stoll, Circuit Judges.

Schall, Circuit Judge.

Hyundai Heavy Industries, Co., Ltd. and Hyundai Corporation, USA (collectively, "Hyundai"), appeal the decision of the United States Court of International Trade in ABB, Inc. v. United States , 273 F.Supp.3d 1186 (2017) (" ABB II "). In that decision, the Court of International Trade sustained the remand determination of the Department of Commerce ("Commerce") in the first administrative review of the antidumping duty order on large power transformers from the Republic of Korea ("Korea").

The issue before us is a narrow one. It is whether the Court of International Trade erred in affirming Commerce's determination to not make a circumstances of sale adjustment to normal value under 19 U.S.C. § 1677b(a)(6)(C)(iii) in the form of a commission offset, where Hyundai, the party seeking the adjustment, incurred no commission expenses on home market sales and no commission expenses outside the United States on U.S. sales, but did incur commission expenses inside the United States on constructed export price sales in the United States. Finding no error in the decision of the court, we affirm.

BACKGROUND

I.

The antidumping statute provides for the assessment of duties on foreign merchandise being, or likely to be, sold in the United States "at less than its fair value." 19 U.S.C. § 1673.¹ An antidumping investigation is initiated when a domestic industry petitions Commerce to investigate allegations of such sales. Sango Int'l, L.P. v. United States , 484 F.3d 1371, 1373 (Fed. Cir. 2007). At the end of the investigation, if Commerce and the U.S. International Trade Commission ("ITC") have made the requisite determinations, Commerce publishes an order that directs customs officers to assess antidumping duties on imports of goods covered by the investigation. 19 U.S.C. § 1673e(a) ; SolarWorld Ams., Inc. v. United States , 910 F.3d 1216, 1220 (Fed. Cir. 2018). Each year after the order is published, if Commerce receives a request for an administrative review of the order, it reviews and determines the amount of any antidumping duty. 19 U.S.C. § 1675(a)(1).

For every administrative review, Commerce typically must "determine the individual weighted average dumping margin for each known exporter and producer of the subject merchandise." 19 U.S.C. § 1677f-1(c)(1). The weighted average dumping margin reflects the amount by which " ‘normal value’ (the price a producer charges in its home market) exceeds ... ‘export price’ (the price of the product in the United States) or ‘constructed export price.’ " See U.S. Steel Corp. v. United States , 621 F.3d 1351, 1353 (Fed. Cir. 2010) (citing 19 U.S.C. § 1677(35)(A) ). "Commerce uses a constructed export price [ (‘CEP’) ] if ‘before or after the time of importation, the first sale to an unaffiliated person is made by (or for the account of) the producer or exporter or by a seller in the United States who is affiliated with the producer or exporter.’ " Id. at 1353 n.1 (citing Uruguay Round Agreements Act, Statement of Administrative Action, H.R. Doc. No. 103-316, at 822 (1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4163 ("SAA")); see 19 U.S.C. § 1677a(b).

This case arises out of an antidumping duty order on large power transformers from Korea. Large Power Transformers from the Republic of Korea , 77 Fed. Reg. 53,177 (Dep't of Commerce Aug. 31, 2012) (antidumping duty order) ("Antidumping Duty Order "). The Antidumping Duty Order resulted from an antidumping duty investigation initiated by Commerce on August 10, 2011 in response to a request by various petitioners, including ABB Inc. ("ABB"). See Large Power Transformers from the Republic of Korea , 77 Fed. Reg. 9204 (Dep't of Commerce Feb. 16, 2012) (prelim. determination). The period of investigation was July 1, 2010, to June 30, 2011. Id. at 9205. Commerce selected Hyundai as a mandatory respondent in the investigation. Id.

On July 11, 2012, Commerce issued a final determination that imports of large power transformers from Korea were being, or were likely to be, sold in the United States at less than fair value.

Large Power Transformers from the Republic of Korea , 77 Fed. Reg. 40,857 (Dep't of Commerce July 11, 2012) (final determination). On August 24, 2012, the ITC notified Commerce that a domestic industry in the United States was materially injured by reason of less-than-fair-value imports of large power transformers from Korea. Antidumping Duty Order , 77 Fed. Reg. at 53,177. One week later, Commerce issued the Antidumping Duty Order .

II.

A.

On October 2, 2013, Commerce initiated the first administrative review of the Antidumping Duty Order . The review covered the period February 16, 2012, through July 31, 2013. Initiation of Antidumping and Countervailing Duty Admin. Reviews and Req. for Revocation in Part , 78 Fed. Reg. 60,834, 60,836 (Dep't of Commerce Oct. 2, 2013). The purpose of the review was to determine whether Hyundai had sold large power transformers in the United States at less than fair value during the period of review.² Consistent with its standard antidumping questionnaire, Commerce asked Hyundai to report whether it had incurred commissions for sales of the subject merchandise in the United States or in its home market. J.A. 169, 171–72. In response, Hyundai reported that it had incurred commissions on U.S. sales but not on sales in the Korean market. Id.

On September 24, 2014, Commerce published the preliminary results of its 2012–2013 review. Large Power Transformers from the Republic of Korea , 79 Fed. Reg. 57,046 (Dep't of Commerce Sept. 24, 2014) (prelim. admin. review) ("Preliminary Results "); see Mem. from David Cordell, Int'l Trade Analyst, to the File, Analysis of Data Submitted by [Hyundai] in the Prelim. Results of the 2012 –2013 Admin. Review of the Antidumping Duty Order on Large Power Transformers from the Republic of Korea , (Dep't of Commerce Sept. 18, 2014) ("Preliminary Analysis Memorandum "). J.A. 173–74. In the Preliminary Analysis Memorandum , Commerce stated that Hyundai had reported no commissions in the home market, and that the only commissions paid were "incurred in the United States." J.A. 182, 185.³ Commerce made no explicit reference in the Preliminary Analysis Memorandum to granting or denying a commission offset under 19 C.F.R. § 351.410(e).⁴ Commerce stated, however, that it was including "COMMU" under the programming field "USCOMM" for "U.S. Commission Expenses." J.A. 182.⁵ This programming language evidently effected such an offset. See ABB Br. 21, 24.

Commerce issued the final results of its 2012–2013 review on March 31, 2015. Large Power Transformers from the Republic of Korea , 80 Fed. Reg. 17,034 (Dep't of Commerce Mar. 31, 2015) (final admin. review) ("Final Results "). In the Final Results , Commerce determined that Hyundai's weighted-average dumping margin for the 2012–2013 period of review was 9.53 percent. Id. at 17,035.

In response, ABB filed an allegation of ministerial error in the Final Results , requesting that Commerce take Hyundai's U.S. commissions and other expenses into account in the calculation of constructed export price profit, as required by 19 U.S.C. § 1677a(d)(3).⁶ J.A. 216–20. Commerce agreed that this was indeed a ministerial error and stated that it intended to correct it. Amended Final Results Memorandum , at 1–2, J.A. 230–31. Commerce also indicated that it had erred in including commissions that Hyundai had incurred in the United States in the programming field USCOMM. "Instead, these expenses should have been captured in field CEPOTHER," which "is meant to capture any other CEP expenses (incurred in the U.S.) commissions, direct selling, further manufacturing, etc ." Id. at 3, J.A. 232; see Large Power Transformers from the Republic of Korea , 80 Fed. Reg. 26,001 (Dep't of Commerce May 6, 2015) (am. final admin. review) ("Amended Final Results "). In its Amended Final Results , Commerce determined Hyundai's dumping margin to be 13.82 percent. Amended Final Results at 26,002.

Hyundai then filed its own allegation of ministerial error, noting that under Commerce's analysis in the Amended Final Results , Hyundai was no longer receiving a home market commission offset because Commerce considers field USCOMM in calculating such an offset, but not field CEPOTHER. J.A. 235–38. Responding, Commerce agreed with Hyundai that "by including commissions in the CEPOTHER field we inadvertently failed to account for the commission offset as we originally intended (and did) in the preliminary and final results." Large Power Transformers from the Republic of Korea , 80 Fed. Reg. 35,628, 35,629 (Dep't of Commerce June 22, 2015) (second am. final admin. review) ("Second Amended Final Results "). In a memorandum to the file, Commerce explained that it had made the following corrections in response to Hyundai's claim of ministerial error:

We first moved U.S. commission expenses (field COMMU) from field "CEPOTHR" [sic] back to field "USCOMM" in the U.S. Margin Program. ...

We next added field USCOMM to the constructed export price (CEP

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