Hyundai Heavy Indus. Co. v. United States

Slip Op. 19

UNITED STATES COURT OF INTERNATIONAL TRADE

HYUNDAI HEAVY INDUSTRIES, CO.
LTD.,

Plaintiff,

v.
Before: Mark A. Barnett, Judge
UNITED STATES, Court No. 17-00054

Defendant,

and

ABB INC.,

Defendant-Intervenor.

OPINION

[Sustaining the U.S. Department of Commerce’s redetermination upon remand in the
third administrative review of the antidumping duty order on large power transformers
from the Republic of Korea.]

Dated: August 2, 2019

Ron Kendler, White & Case LLP, of Washington, DC, argued for Plaintiff. With him on
the brief were David E. Bond and William J. Moran.

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 Joseph H. Hunt, Acting Assistant Attorney General, Jeanne E. Davidson, Director,
and Franklin E. White, Jr., Assistant Director. Of counsel on the brief was David W.
Richardson, Senior Counsel, Office of the Chief Counsel for Trade Enforcement and
Compliance, U.S. Department of Commerce, of Washington, DC.

Melissa M. Brewer, Kelley Drye & Warren LLP, of Washington, DC, argued for
Defendant Intervenor. With her on the brief were David C. Smith and R. Alan Luberda.
Court No. 17-00054 Page 2

Barnett, Judge: This matter comes before the court following the U.S.

Department of Commerce’s (“Commerce” or “the agency”) redetermination upon

remand in this case. See Confidential Final Results of Redetermination Pursuant to

Court Remand (“Remand Results”), ECF No. 65-1. 1 Plaintiff, Hyundai Heavy Industries,

Co., Ltd. (“HHI”) 2 initiated this action contesting certain aspects of Commerce’s final

results in the third administrative review of the antidumping duty order on large power

transformers (“LPT”) from the Republic of Korea for the period of review August 1, 2014,

through July 31, 2015. See Compl., ECF No. 5; Large Power Transformers From the

Republic of Korea, 82 Fed. Reg. 13,432 (Mar. 13, 2017) (final results of antidumping

duty administrative review; 2014-2015), ECF No. 17-2, and accompanying Issues and

Decision Mem., A-580-867 (Mar. 6, 2017) (“I&D Mem.”), ECF No. 17-3. Specifically,

HHI challenged Commerce’s decision to assign HHI a final weighted-average dumping

margin of 60.81 percent based on the use of total facts available with an adverse

1 The administrative record for this case is divided into a Public Administrative Record
(“PR”), ECF No. 17-4, a Public Remand Record (“PRR”), ECF No. 68-1, a Confidential
Administrative Record (“CR”), ECF No. 17-5, and a Confidential Remand Record
(“CRR”), ECF No. 68-2. Parties submitted joint appendices containing record
documents cited in their Rule 56.2 briefs. See Public J.A., ECF No. 44 (Vols. I-III);
Confidential J.A. (“CJA”), ECF Nos. 40-1 (Vol. I), 41-1 (Vol. II), 42-1 (Vol. III), 43-1 (Vol.
IV), 45-1 (Vol. V), 46-1 (Vol. VI), 46-2 (Vol. VII). Parties also filed joint appendices
containing record documents cited in their remand briefs. See Confidential Remand
J.A. (“CRJA”), ECF No. 84-1; Public Remand J.A., ECF No. 85-1; see also Public Resp.
to Court’s May 24, 2019 Order (May 28, 2019), ECF No. 89; Confidential Resp. to
Court’s May 24, 2019 Order (May 28, 2019), ECF No. 88. References are to the
confidential versions of the relevant record documents, unless stated otherwise.
2 Hyundai Electric & Energy Systems Co., Ltd. is the successor-in-interest to HHI.

Letter from David E. Bond, Attorney, White & Case LLP, to the Court (Sept. 12, 2018),
ECF No. 59.
Court No. 17-00054 Page 3

inference (referred to as total “adverse facts available” or total “AFA”). See generally

Confidential Rule 56.2 Mot. for J. Upon the Agency R. on Behalf of Pl. Hyundai Heavy

Industries Co. Ltd. and Mem. of P. & A. in Supp., ECF No. 26; I&D Mem. at 4-6.

Commerce based that decision on the following findings: (1) HHI failed to report service-

related revenues separately from the gross unit price despite repeated requests from

Commerce; (2) HHI failed to include the price of a subject “part” in the price for certain

home market sales despite repeated opportunities to do so; (3) HHI failed to report

separately the prices and costs for LPT accessories; and (4) HHI was systematically

selective in providing documents to Commerce and reported data that contained

discrepancies. I&D Mem. at 17-28.

The court remanded this matter to the agency for Commerce to reconsider or

further explain its decision to use total AFA because substantial evidence did not

support all of the bases underlying that decision. Hyundai Heavy Indus., Co. v. United

States (“HHI I”), 42 CIT __, __, 332 F. Supp. 3d 1331, 1350 (2018). 3 In particular,

substantial evidence did not support Commerce’s finding that HHI withheld requested

information with respect to accessories. Id. at 1346-48. Moreover, Commerce failed to

explain the basis for its finding that HHI provided selective documentation and data that

contained discrepancies; accordingly, this finding lacked substantial evidence. 4 Id. at

1348-49.

3HHI I contains additional background in this case, familiarity with which is presumed.
4Substantial evidence supported Commerce’s findings that HHI failed to report
separately service-related revenues, failed to report properly its home market sales
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On remand, Commerce reconsidered its finding that HHI misreported costs and

prices for accessories, its finding that HHI selectively reported information, and the legal

and factual basis for the use of total AFA. Remand Results at 1-2. Commerce

determined that HHI had properly reported accessories, consistent with the scope of the

antidumping duty order. Id. at 11, 19. Commerce “clarif[ied]” that accessories are

“components attached to the active part of the LPT and included within the subject

merchandise.” Id. at 19. As such, the use of AFA for HHI’s reporting of accessories

was unwarranted. Id. at 11. However, Commerce continued to find that HHI selectively

reported certain sales information and provided unreliable data. Id. at 12. Based on

this finding and those sustained by the court in HHI I, 332 F. Supp. 3d at 1340-42, 1345,

Commerce again determined that total AFA was appropriate. See id. at 16, 25.

HHI supports Commerce’s redetermination with respect to accessories but

opposes the Remand Results in all other respects. See Pl.’s Comments in Supp. of the

Final Results of Redetermination Pursuant to Court Remand (“HHI’s Supp. Cmts”), ECF

No. 79; Confidential Pl.’s Comments in Opp’n to the Final Results of Redetermination

Pursuant to Court Remand (“HHI’s Opp’n Cmts”), ECF No. 72. Defendant, United

States (“the Government”), and Defendant-Intervenor, ABB Inc. (“ABB”) support the

Remand Results in their entirety. 5 See Confidential Def.’s Resp. to Comments on the

inclusive of the price of a particular within-scope part, and failed to act to the best of its
ability in providing this information. HHI I, 332 F. Supp. 3d at 1340-43, 1345.
5 While ABB does not challenge Commerce’s findings on accessories, it avers that this

issue is moot since it had no bearing on the agency’s use of total AFA. Confidential
Def.-Int.’s Comments in Supp. of the Final Results of Redetermination Pursuant to
Court No. 17-00054 Page 5

Dep’t of Commerce’s Remand Results (“Gov.’s Supp. Cmts”), ECF No. 76; ABB’s Supp.

Cmts. The court heard oral argument on June 11, 2019. Docket Entry, ECF No. 91.

For the reasons that follow, the court sustains the Remand Results.

JURISDICTION AND STANDARD OF REVIEW

The court has jurisdiction pursuant to § 516A(a)(2)(B)(iii) of the Tariff Act of 1930,

as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2012), 6 and 28 U.S.C. § 1581(c). 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). “The results of a

redetermination pursuant to court remand are also reviewed for compliance with the

court’s remand order.” SolarWorld Ams., Inc. v. United States, 41 CIT __, __, 273 F.

Supp. 3d 1314, 1317 (2017) (citation and internal quotation marks omitted).

DISCUSSION

I. Selective Reporting and Total AFA

a. Commerce’s Redetermination

On remand, Commerce continued to find that HHI was selective in its reporting

and provided data with various discrepancies. Remand Results at 12-13. Commerce

identified the following documentation that HHI failed to provide: “(1) accounting entries

to record [HHI’s] U.S. sales and payments; (2) U.S. commission documents for certain

U.S. sales; (3) test reports for all [U.S. sales transactions (referred to as SEQUs)]; (4)

Court Remand (“ABB’s Supp. Cmts”) at 14-15, ECF No. 78. Accordingly, ABB
contends, the court need not rule on this issue. Id. at 15.
6 Citations to the Tariff Act of 1930, as amended, are to Title 19 of the U.S. Code, and

references to the United States Code are to the 2012 edition.
Court No. 17-00054 Page 6

Korean trucking expense invoices for several U.S. sales; and (5) [certain] . . . requests

for quote[s] (or “RFQs”), bids, and packing lists.” Id. at 13 (footnotes omitted).

Additionally, Commerce identified inconsistencies with reported transportation and

brokerage expenses for certain U.S. sales. Id.; see also id. at 21.

Commerce found that HHI “failed to cooperate to the best of its ability in

complying with requests for information” because, “despite a specific and

comprehensive request for sales and expense documentation, [HHI] selectively

reported what it considered ‘necessary’ and ‘sufficient.’” Id. at 17. Commerce

recognized that respondents sometimes make mistakes in their submissions, id. at 25,

but attributed HHI’s reporting discrepancies and omission of documents to carelessness

and inferred that HHI either “was unduly delaying the [administrative review] to its

benefit by not submitting the requested documentation or [] failed to put forth the

maximum effort to obtain these records,” id. at 21. Commerce further found that HHI’s

failure to report service-related revenues, failure to report properly the price of a subject

part, and selective and unreliable reporting “render[ed] [HHI’s] reporting as a whole []

unreliable”; accordingly, Commerce determined that the use of total AFA was

warranted. Id. at 16.

b. Parties’ Arguments

HHI argues that “substantial evidence confirms the accuracy of HHI’s gross unit

prices” because HHI submitted documents that “overwhelmingly supported its data.”

HHI’s Opp’n Cmts. at 3 (internal quotation marks and capitalization omitted). HHI

further argues that Commerce treated HHI inconsistently with Hyosung, the other
Court No. 17-00054 Page 7

mandatory respondent in this review, because it requested more extensive information

from HHI. See id. at 11-13. Additionally, HHI challenges Commerce’s decision to use

an adverse inference with respect to the missing documents, arguing that Commerce

failed to comply with 19 U.S.C. § 1677m(d) and Commerce’s finding that HHI failed to

cooperate to the best of its ability is unsupported by substantial evidence. Id. at 10, 15.

HHI argues that the three issues Commerce identified, whether individually or in

combination, do not support the use of total AFA. Id. at 16.

The Government argues that Commerce reasonably concluded that HHI failed to

provide complete sales documentation and had other reporting discrepancies. Gov.’s

Supp. Cmts at 5-12. The Government contends that the combined effect of HHI’s

reporting failures supports Commerce’s use of total AFA. Id. at 15-18. ABB agrees that

substantial evidence supports Commerce’s factual findings. See ABB’s Supp. Cmts at

4-9. According to ABB, Commerce was justified in using total AFA based solely on the

two issues that the court upheld in HHI I and HHI’s failure to provide the requested

information adds support for using total AFA. Id. at 3.

c. Analysis

i. Missing documents; Commerce’s section 1677m(d) obligation

Substantial evidence supports Commerce’s finding that HHI failed to provide

certain requested documents. 7 See Remand Results at 13, 21. Commerce asked HHI

7HHI admits that it failed to provide test reports, accounting screen prints, and payment
and commission documentation for one sale. See HHI’s Opp’n Cmts at 5, 6, 14. As
discussed herein, however, its reporting omissions were not limited to this one sale.
Court No. 17-00054 Page 8

to supply, for all U.S. sales, “clear documentation demonstrating that payment was

received . . . (including each recording in [HHI’s] accounting system regarding the sale

and payment of the subject merchandise for both HHI and Hyundai [Corporation] USA

. . .).” 8 Suppl. Questionnaire (Oct. 7, 2016) (“Oct. 7, 2016 Suppl. Questionnaire”) at 5-

6, CR 346, PR 213, CRJA 3. Commerce found, and HHI does not dispute, that HHI did

not provide any internal accounting screen prints to document any sales. Remand

Results at 13, 22; HHI’s Opp’n Cmts at 5, 14.

With respect to commission documents, Commerce requested “complete . . .

expenses documentation,” including “documents relating to any commissions or other

fees that may be paid” for “all U.S. [sales].” Oct. 7, 2016 Suppl. Questionnaire at 5-6.

Commerce determined that HHI failed to provide documents supporting its commission

expenses for fourteen sales. See Remand Results at 13 & n.61 (citations omitted).

While HHI admits that it did not provide commission documents for one sale—claiming

that the omission was inadvertent—it argues that it provided commission agreements

for all other U.S. sales for which it paid a commission. HHI’s Opp’n Cmts at 6. HHI

states that, on remand, it provided to Commerce a “detailed chart tracking the

commission expenses reported . . . to the documentation submitted in response to the

[October 7, 2016 supplemental questionnaire].” Id. (citing Comments on the Draft

Results of Redetermination Pursuant to Court Remand (Nov. 26, 2018) (“HHI’s Draft

8 Hyundai Corporation USA is HHI’s U.S. sales affiliate. See Resp. of Hyundai Heavy
Indus. Co., Ltd. to Section C of the Questionnaire (Jan. 27, 2016) at C-1, CR 152-156,
PR 91-94, CJA Vol. I, Tab 9.
Court No. 17-00054 Page 9

Cmts”), Ex. 1, CRR 3, PRR 7, CRJA 7). HHI’s chart demonstrates, however, that, for

seven of the sales, HHI provided the commission agreement but omitted any supporting

documentation. See HHI’s Draft Cmts, Ex. 1 (SEQUs 11, 15-18, 23-24); see also

Remand Results at 13 n.61 (citations omitted).

With respect to trucking invoices, HHI admits that it did not provide the invoices

in question but avers that Commerce’s statement is misleading. See HHI Supp. Cmts

at 7. HHI explains that “it did not receive trucking invoices showing shipment-specific

expenses for all” U.S. sales. Id. For sales for which it did receive an invoice, HHI

provided it. Id. For sales for which HHI did not receive an invoice, it provided screen

prints of its internal accounting system. Id. at 7-8. HHI did not, however, provide any

source documents supporting the allocation of trucking expenses shown in the screen

prints. Commerce explained that “[w]ithout complete documentation,” it cannot “confirm

the accuracy of [HHI’s] reported data.” Remand Results at 13.

Commerce identified inconsistencies in HHI’s reporting of transportation and

brokerage expenses as providing additional support for its finding. Specifically,

Commerce identified nine sales—SEQUs 3, 5, 12-16, 21, and 22—as containing such

inconsistencies and referenced ABB’s administrative case brief identifying the

inconsistencies. Remand Results at 13 & n.65 (citing, inter alia, Pet’r’s Case Br.

Regarding Hyundai Issues (Jan. 5, 2017) (“Pet’r’s Case Br.”), Attach. 4, CR 463-65, PR

280-81, CRJA 6). HHI does not identify contrary record evidence to call into question
Court No. 17-00054 Page 10

Commerce’s acceptance of these claims 9 but argues that ABB’s statements were

wrong. See HHI’s Opp’n. Br. at 10-11.

HHI argues that the agency failed to give HHI an opportunity to cure the

deficiencies in its submissions as required by 19 U.S.C. § 1677m(d). HHI’s Opp’n Cmts

at 15. However, Commerce’s “request for all of the U.S. sales documentation was a

direct result of the deficiencies in Hyundai’s original questionnaire responses.” Gov.’s

Supp. Cmts at 14-15; see also HHI I, 332 F. Supp. 3d at 1336-38, 1343-44 (noting that

the Oct. 7, 2016 Suppl. Questionnaire was Commerce’s second supplemental

questionnaire aimed at addressing Commerce’s concerns that HHI was misreporting its

gross unit prices for the U.S. and home markets). In HHI I, the court considered

whether Commerce met its obligations pursuant to 19 U.S.C. § 1677m(d) to notify HHI

of deficiencies in its questionnaire responses and found that it did. See HHI I, 332 F.

Supp. 3d at 1341-42. Section 1677m(d) does not entitle HHI to endless opportunities to

cure deficiencies in its reporting.

9 HHI disputes ABB’s claims with respect to four of the nine sales, contending that
ABB’s statements were wrong and HHI’s reporting was accurate. See HHI’s Opp’n
Cmts at 10-11. HHI’s arguments fail. For example, HHI “reported wharfage and the
untranslated item expenses inconsistently in that [it] sometimes reported wharfage and
untranslated expenses listed on the invoices in ‘other U.S. transportation expense’ and
sometimes [it] did not.” Gov.’s Supp. Cmts. at 11 & n.2 (comparing SEQUs 14 and 22
with SEQUs 23 and 24) (citing Resp. to Questions 13 and 17 of the Third Suppl.
Sections A, B, C and D Questionnaire (Nov. 10, 2016) (“Nov. 10, 2016 Suppl. Resp.”),
Attach. 3S-35 at JA101303-04, JA103113-19, JA103131-33, JA103145-4, CR 440-449,
PR 241-250, CJA Vols. II-IV, CRJA 5). HHI also avers that ABB’s administrative case
brief “is not substantial evidence upon which [Commerce] should have relied.” HHI’s
Opp’n Cmts at 10. While true, what Commerce did was accept ABB’s arguments about
the record evidence, and identification of inconsistencies therein, including the record
citations in support of those arguments. See Pet’r’s Case Br., Attach. 4.
Court No. 17-00054 Page 11

ii. Commerce’s differential treatment of HHI and Hyosung

HHI argues that Commerce treated HHI and Hyosung inconsistently because it

requested the same information from both respondents but penalized only HHI when

both companies provided incomplete responses. HHI’s Opp’n Cmts at 11-13. The

Government and ABB argue that Commerce requested more information from HHI

because it considered HHI’s worksheets to be unverifiable and unreliable. Gov.’s Supp.

Cmts at 12; ABB’s Cmts at 9-10.

To the extent that Commerce treated HHI and Hyosung differently, it was justified

in so doing. In response to this argument in the remand proceeding, Commerce

explained:

The [c]ourt has already affirmed Commerce’s decision to not rely on
[HHI’s] worksheet information because it was unreliable and unverifiable
at a late stage in the review. Because [HHI’s] worksheet information was
problematic, we asked for additional sales documentation to aid us in our
analysis[.] We did not request additional documentation from Hyosung
because we found its worksheets sufficient.

Remand Results at 21. 10 As the court discussed in HHI I, Commerce requested

documentation to determine whether HHI was overstating U.S. gross unit prices by

misreporting service-related revenues and understating home market prices by

misreporting home market sales of an LPT part. 332 F. Supp. 3d at 1338, 1342.

Commerce’s concerns were legitimate because HHI failed to report separately service-

10The court discerns that the “worksheets” to which Commerce was referring were
those that HHI submitted along with all the other documents in its November 10, 2016
response to the October 7, 2016 supplemental questionnaire. See HHI I, 332 F. Supp.
3d at 1338.
Court No. 17-00054 Page 12

related revenues even though it had such revenues to report and failed to report

properly its home market sales of the LPT part. Id. at 1340-42, 1345. It is sufficiently

clear to the court that HHI was differently situated than Hyosung, justifying Commerce’s

different supplemental information requests.

iii. Adverse inference and Total AFA

HHI argues that Commerce was not justified in using an adverse inference and,

even if it was, that it was not justified in using total AFA. See HHI’s Opp’n Cmts at 13-

17. With respect to the adverse inference, HHI argues that it provided 3,300 pages of

documents, reflecting that HHI “met or exceeded the level of participation that could be

expected from a ‘reasonable and responsible’ respondent” under the circumstances. Id.

at 13-14. According to HHI, Commerce failed to account for the difficult circumstances

Commerce created when it requested documentation for all U.S. sales at a late stage in

the review (i.e., after the preliminary results). Id. at 14-15. Moreover, HHI argues, there

is no evidence that HHI was selective in its reporting. Id. at 13-14. The court finds that

the record adequately supports Commerce’s decision to make an adverse inference.

The mere production of a substantial volume of documents does not, ipso facto,

demonstrate that a respondent acted to the best of its ability. The inquiry is “whether a

respondent has put forth its maximum effort to provide Commerce with full and

complete answers to all inquiries in an investigation.” Nippon Steel Corp. v. United

States, 337 F.3d 1373, 1382 (Fed. Cir. 2003). The court has previously determined that

HHI failed to satisfy this standard when it reported service-related revenues and home

market sales of an LPT part. HHI I, 332 F. Supp. 3d at 1343, 1345. The court now
Court No. 17-00054 Page 13

concludes that Commerce reasonably determined that “despite a specific and

comprehensive request for sales and expense documentation, [HHI] selectively

reported what it considered ‘necessary’ and ‘sufficient.’” Remand Results at 17.

At a minimum, HHI’s failure to document its accounting entries provides

substantial evidence for Commerce’s finding. There was no ambiguity in Commerce’s

request for “recording[s] in your accounting system regarding the sale[s] and payment[s]

of the subject merchandise for both HHI and Hyundai USA (for U.S. sales)).” Oct. 7,

2016 Suppl. Questionnaire at 6. Nevertheless, HHI failed to provide those documents

and failed to explain why it was not providing the documents. HHI now argues that the

documents it did provide were sufficient to substantiate the gross unit prices it reported,

HHI’s Opp’n Cmts. at 3, 11 suggesting that HHI reported only information that it deemed

necessary and sufficient. Moreover, HHI’s ability to provide supporting documentation

for some commission expenses indicates that additional documents existed but HHI

11 HHI avers that the “‘critical question . . . is whether’ a respondent, through the
submission of requested documents, has ‘adequately substantiated the data’ that it
reports.” HHI’s Opp’n Cmts at 3 (quoting ABB Inc. v. United States, 40 CIT __, __, 190
F. Supp. 3d 1159, 1168-69 (2016)). The quoted language from ABB Inc. related to
whether substantial evidence supported Commerce’s conclusion that actual cost data,
submitted during an administrative review, was reliable when it differed from estimated
costs submitted during the investigation phase. See 190 F. Supp. 3d at 1168-69. ABB
Inc. does not stand for the proposition that a respondent may selectively report the
information that it deems sufficient to substantiate its reported data. It is Commerce, not
the respondents, that decides what information must be provided. See, e.g., POSCO v.
United States, 42 CIT __, __, 296 F. Supp. 3d 1320, 1341 n.31 (2018).
Court No. 17-00054 Page 14

failed to provide them. Under these circumstances, 12 “it is reasonable to conclude that”

HHI demonstrated “less than full cooperation.” Nippon Steel Corp., 337 F.3d at 1382.

Turning to HHI’s argument that Commerce was not justified in using total AFA,

HHI contends that its failure to report properly service-related revenues does not

support the use of total AFA because, in the preceding review, Commerce determined

that such a reporting failure only justified the use of partial AFA. HHI’s Opp’n Cmts at

16 (citing ABB Inc. v. United States, 42 CIT __, __, 355 F. Supp. 3d 1206, 1215-16

(2018)). With respect to the reporting of home market sales of an LPT part, HHI argues

that the reporting error “affects a single part for four sales observations,” and is not

enough to render the entirety of the home market prices unreliable. 13 Id. Regarding the

missing documents, HHI argues that the omissions were “minor,” and “not pervasive.”

Id. at 17 (internal quotation marks omitted). The court concludes that Commerce’s

decision to use total AFA based on its collective findings is supported by substantial

evidence and in accordance with law.

“In general, use of partial facts available is not appropriate when the missing

information is core to the antidumping analysis and leaves little room for the substitution

of partial facts without undue difficulty.” Mukand, Ltd. v. United States, 767 F.3d 1300 ,

12 With respect to the timing of Commerce’s request, Commerce requested the
documents when it did because of deficiencies in HHI’s initial and supplemental
questionnaire responses. HHI did not request additional time to respond to the
supplemental questionnaire nor does HHI claim that it could not comply with the request
in a timely manner.
13 HHI claimed that this reporting issue concerned less than five percent of sales, and its

effect on gross unit price for those sales was 0.89 to 2.69 percent. Oral Arg. 26:52-
27:17, 27:46-28:02 (reflecting time stamp from the recording).
Court No. 17-00054 Page 15

1308 (Fed. Cir. 2014). Commerce uses “total AFA” when it concludes “that all of a

party’s reported information is unreliable or unusable and that as a result of a party’s

failure to cooperate to the best of its ability, it must use an adverse inference in

selecting among the facts otherwise available.” Deacero S.A.P.I. de C.V. v. United

States, 42 CIT __, __, 353 F. Supp. 3d 1303, 1305 n.2 (2018). The U.S. and home

market prices are central to the dumping calculation. Commerce explained that the

consequence of a failure to report properly service-related revenues and the price of a

subject LPT part 14 caused the reported U.S. prices to be overstated and home market

prices to be understated. Remand Results at 16. Commerce also explained that HHI’s

selective provision of sales documentation undermined the reliability of its reporting of

expenses associated with U.S. sales. 15 Id. at 16. Commerce reasonably found that the

14 Regarding the LPT part, HHI avers that the agency may not “extrapolate from a single
error, which may well have been an isolated oversight, a conclusion that the entirety of
the respondent’s submissions concerning other classes of subject merchandise are
unreliable.” HHI’s Opp’n Cmts at 16 (quoting Fujian Mach. & Equip. Imp. & Exp. Corp.
v. United States, 27 CIT 1059, 1061, 276 F. Supp. 2d 1371, 1374 (2003)) (emphasis
added). “On the other hand,” however, “numerous ‘oversights’ would likely suggest a
‘pattern of unresponsiveness’ justifying not only the application of facts available [], but
of AFA.” Fujian, 276 F. Supp. 2d at 1374 n.2 (citation omitted). Despite HHI’s effort to
disaggregate its reporting omissions and errors, Commerce identified several such
“oversights,” Remand Results at 16, detracting from HHI’s argument. Additionally,
regarding the home market sales of the LPT part, Commerce explained that its
discovery of this misreporting in sales for which it had requested full documentation
gave it reason to question the reliability of the other home market sales for which
Commerce did not request full documentation. I&D Mem. at 25.
15 HHI contends that it is unclear how its failure to provide commission expense or

transportation documents support the use of total AFA because those expenses were
reported in fields separate from the gross unit prices. HHI’s Opp’n Cmts at 7, 8.
Commerce explained, however, that the missing information was “important . . . to have
[an] accurate starting point from which to calculate [constructed export price] and
Court No. 17-00054 Page 16

reporting failures “cut across and affect all of [HHI’s] reported data” and, thus, prevented

the agency from relying on HHI’s reporting “because the basic elements of a dumping

calculation (i.e. the reported gross prices of the [U.S.] and home market) are deficient.”

Id. at 26. The deficiencies in HHI’s questionnaire responses were not limited to discrete

categories of information but included service-related revenues, the LPT part, and sales

related documentation. These gaps were sufficiently prevalent that Commerce

reasonably determined that the use of partial AFA was not practicable.

II. Accessories

HHI requests that the court affirm the agency’s determination concerning

accessories. HHI’s Supp. Cmts at 1. ABB argues that the court need not rule on this

issue because Commerce’s discussion of accessories is moot since it had no bearing

on the agency’s use of total AFA. ABB’s Supp. Cmts at 15. The Government does not

express a view, simply requesting that the court sustain the Remand Results. 16 See

Gov.’s Supp. Cmts at 18. No party challenged the Remand Results with respect to

accessories by the deadline for submission of comments in opposition to the Remand

normal value, or, at a minimum, calculate adjustments to those starting prices.”
Remand Results at 22 (internal quotation marks omitted).
16 In the underlying proceeding, Commerce responded to ABB’s argument as follows:

Considering the [c]ourt’s finding that there is a need for guidance on the
term “accessories,” we further examined the record. After analyzing the
factual information regarding “accessories” and assessing [HHI’s]
business practices regarding the term, we find it necessary to clarify our
treatment of “accessories” in this case. For this reason, we disagree with
ABB that we should not include our discussion of “accessories” and have
included our discussion.
Id. at 19.
Court No. 17-00054 Page 17

Results, therefore, any such arguments are waived. Upon review of the Remand

Results, Commerce properly reevaluated its treatment of accessories; therefore, the

Remand Results are sustained with respect to the treatment of accessories.

CONCLUSION

For the foregoing reasons, the court finds that the Remand Results comply with

the court’s remand order, are supported by substantial evidence and otherwise in

accordance with law. Judgment will enter accordingly.

/s/ Mark A. Barnett
Judge
Dated: August 2, 2019
New York, New York