ABB Inc. v. United States

190 F.Supp.3d 1159

ABB INC., Plaintiff,

v.UNITED STATES, Defendant,Hyundai Heavy Industries Co. Ltd., Hyundai Corporation USA, Hyosung Corporation, and HICO America Sales and Technology, Inc., Defendant–Intervenors.

Slip Op. 16–95

Court No. 15–00108

United States Court of International Trade.

October 7, 2016

R. Alan Luberda, Kelley Drye & Warren LLP, of Washington, DC, argued for plaintiff. With him on the brief were David C. Smith, Jr. and Joshua R. Morey.

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 Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Jeanne E. Davidson, Director, and Franklin E. White, Jr., Assistant Director. Of Counsel on the brief was James H. Ahrens, II, Attorney, U.S. Department of Commerce, Office of Chief Counsel for Trade Enforcement and Compliance, of Washington, DC.

David E. Bond, White & Case, LLP, of Washington, D.C., argued for defendant-intervenor Hyundai Heavy Industries, Co., Ltd. and Hyundai Corporation USA. With him on the brief were Walter J. Spak, William J. Moran and Ron Kendler.

Henry D. Almond, Arnold & Porter LLP, of Washington, D.C., argued for defendant-intervenors Hyosung Corporation and HICO America Sales and Technology, Inc. With him on the brief were J. David Park, Andrew M. Treaster and Yujin K. McNamara.

OPINION AND ORDER

Barnett, Judge:

In this action ABB, Inc. ("Plaintiff" or "ABB") challenges the final results of the U.S. Department of Commerce ("Commerce") in its first administrative review of the antidumping duty order on large power transformers ("LPTs") from the Republic of Korea for the February 16, 2012 to July 31, 2013 period of review ("POR"). Large Power Transformers from the Republic of Korea , 80 Fed. Reg. 17,034 (Dep't Commerce Mar. 31, 2015) (final results of antidumping duty administrative review; 2012–2013) (" Final Results "), Public Joint App. ("PJA"), Doc. 1, ECF No. 72; Confidential Joint App. ("CJA"), Doc. 1; Public Admin. R. ("P.R.") 276, ECF No. 26–9;¹ and accompanying Issues and Decision Mem. , A–580–867 (Mar. 23, 2015) ("I & D Mem. "), CJA, Doc. 2; PJA, Doc. 2; P.R. 261;² Large Power Transformers from the Republic of Korea , 80 Fed. Reg. 26,001 (Dep't Commerce May 6, 2015) (amended final results of antidumping duty admin. review; 2012–2013) ("First Am. Final Results "), CJA, Doc. 3; PJA, Doc. 3; P.R. 291, and accompanying Am. Final Results of the Antidumping Duty Admin. Review of Large Power Transformers from the Republic of Korea; 2012–2013: Allegations of Ministerial Errors (Dep't Commerce Apr. 28, 2015) ("First Am. Final Results Mem. "), CJA, Doc. 42; PJA, Doc. 42; P.R. 284; Large Power Transformers from the Republic of Korea , 80 Fed. Reg. 35,628 (Dep't Commerce June 22, 2015) (second amended final results of antidumping duty administrative review; 2012–2013) ("Sec. Am. Final Results "), CJA, Doc. 4; PJA, Doc. 4; P.R. 304, and accompanying Second Am. Final Results of the Antidumping Duty Admin. Review of Large Power Transformers from the Republic of Korea; 2012–2013: Allegations of Ministerial Error (Dep't Commerce June 15, 2015) ("Sec. Am. Final Results Mem. "), CJA, Doc. 44; PJA, Doc. 44; P.R. 294. Plaintiff argues that the final dumping margins assigned to Defendant–Intervenors, Hyundai Heavy Industries Co., Ltd. ("HHI") and Hyundai Corp., USA (collectively, "Hyundai"), and Hyosung Corp. and HICO America Sales and Technology, Inc. (collectively, "Hyosung") are based on data that were unreliable and are therefore unsupported by substantial evidence and not in accordance with law. See generally Conf. Pl.'s Mem. of Law in Supp. of Mot. for J. on the Agency R. ("Pl.'s MJAR."), ECF No. 45–1. Plaintiff further argues that Commerce should have used facts available or "adverse facts available" to arrive at more accurate dumping margins for Hyosung and Hyundai. See id. at 33, 39–42. Finally, Plaintiff argues that Commerce should not have granted home market commission offsets to Hyosung and Hyundai and that its decision to do so is unsupported by substantial evidence and not in accordance with law. Id. at 47–52; see also Conf. Pl.'s Reply Br. ("Pl.'s Reply") at 18–22, ECF No. 69. For the reasons detailed below, the Court will sustain, in part, and remand, in part, Commerce's Final Results.

BACKGROUND

The present case challenges the final results of Commerce's first administrative review of the antidumping duty order on large power transformers from the Republic of Korea. See generally Final Results ; see also Large Power Transformers from the Republic of Korea , 77 Fed. Reg. 53,177 (Dep't Commerce Aug. 31, 2012) (antidumping duty order) ("AD Order "). The Court begins with a brief discussion of the original investigation to the extent that it is relevant to the issues raised by Plaintiff in this case.

I. Original Investigation

On August 10, 2011, Commerce initiated an antidumping duty investigation on large power transformers from Korea. Large Power Transformers from the Republic of Korea , 77 Fed. Reg. 9,204 (Dep't Commerce Feb. 16, 2012) (prelim. determination of sales at less than fair value and postponement of final determination) ("LTFV Prelim. Notice "). The period of investigation ("POI") was from July 1, 2010, through June 30, 2011. Large Power Transformers from the Republic of Korea , 77 Fed. Reg. 40,857 (Dep't Commerce July 11, 2012) (final determination of sales at less than fair value) ("LTFV Final Results "), CJA, Doc. 5; PJA, Doc. 5 and accompanying Issues and Decision Mem. , A–580–867 (July 2, 2012) ("LTFV I & D Mem. ") at 2, CJA, Doc. 6; PJA, Doc. 6. Commerce selected Hyundai and Hyosung as mandatory respondents and issued its final determination on July 11, 2012. LTFV Prelim. Notice, 77 Fed. Reg. at 9,205 ; see generally LTFV Final Results .

In the final determination for the less than fair value ("LTFV") investigation and accompanying Issues and Decision Memo, Commerce addressed the issue of "unshipped sales," explaining that when "the merchandise under consideration are large, complex, capital intensive custom made products that take many months to produce and install, the Department is often faced with the decision to balance the use of actual costs in their entirety with maximizing the population of sales to use to calculate a dumping margin." LTFV I & D Mem. at 43–44, 61–62. In the investigation, Commerce extended the period for reporting actual costs incurred to six months beyond the end of the POI. Id. at 43. However, in calculating the dumping margins, Commerce used only POI sales that had been completed and shipped as of December 31, 2011, and excluded from consideration those sales that were incomplete or unshipped as of that date. Id. Commerce reasoned that, because the unfinished sales continued to be produced, the relevant sales and cost data would continue to change. Id. ; see also id. at 59 (Hyosung explained that customers may request additional services or cancel previously requested services up until the time of delivery).

II. First Administrative Review

On October 2, 2013, Commerce initiated the first administrative review for the period February 16, 2012 through July 31, 2013. Initiation of Antidumping and Countervailing Duty Admin. Reviews and Request for Revocation in Part , 78 Fed. Reg. 60,834 (Dep't Commerce Oct. 2, 2013), CJA, Doc. 7; PJA, Doc. 7; P.R. 6. ABB requested the review, and Hyosung and Hyundai were again selected as mandatory respondents. I & D Mem. at 3.

As part of the review, Commerce requested that both Hyosung and Hyundai report actual and/or updated data for all transactions that were shipped, sold and entered the United States during the POR, including "overlapping sales" that were reported based on estimated data during the investigation, but had shipped during the POR. Id. at 14–16 (explaining the issue of "overlapping sales" with respect to Hyosung and noting Commerce's request for updated information for all "overlapping sales" shipping during POR); see also id. at 47 (explaining the issue of "overlapping sales" with respect to Hyundai); see also LTFV I & D Mem. at 42–44, 61–62.

On September 24, 2014, Commerce published the preliminary results of its review. Large Power Transformers from the Republic of Korea , 79 Fed. Reg. 57,046 (Dep't Commerce Sept. 24, 2014) (prelim. results of antidumping duty admin. review; 2012–2013) ("Prelim. Results "), CJA, Doc. 27; PJA, Doc. 27; P.R. 217 and accompanying Issues and Decision Mem. , A–580–867 (Sept. 18, 2014) ("Prelim. I & D Mem. "), CJA, Doc. 62; PJA, Doc. 62; P.R. 208.³ On March 31, 2015, Commerce issued the Final Results . Final Results, 80 Fed. Reg. at 17,034. ABB timely filed the present case on April 10, 2015. See generally Summons, ECF No. 1; Compl., ECF No. 6. Subsequently (and with leave from this Court), on May 6, 2015, Commerce issued the First Amended Final Results and then, on June 22, 2015, the Second Amended Final Results, both in response to allegations of ministerial error. See First Am. Final Results , 80 Fed. Reg. 26,001 ; Sec. Am. Final Results, 80 Fed. Reg. at 35,628 ; Order, ECF No. 24 (June 3, 2015).⁴ The second amended final results assigned weighted average dumping margins of 8.23 percent and 12.36 percent to Hyosung and Hyundai respectively. See Sec. Am. Final Results , 80 Fed. Reg. at 35,629.

JURISDICTION AND STANDARD OF REVIEW

The court has jurisdiction pursuant to § 516A(a)(2)(B)(i) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(i) (2012),⁵ and 28 U.S.C. § 1581(c) (2012).

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). "Substantial evidence is ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ " Huaiyin Foreign Trade Corp. (30) v. United States , 322 F.3d 1369, 1374 (Fed. Cir. 2003) (quoting Consol....