Slip Op. 20-72

                UNITED STATES COURT OF INTERNATIONAL TRADE


    ABB INC.,

                     Plaintiff,

         v.

    UNITED STATES,
                                               Before: Mark A. Barnett, Judge
                                               Court No. 16-00054
                     Defendant,

        and

    HYUNDAI HEAVY INDUSTRIES CO., LTD.
    AND HYUNDAI CORPORATION USA,

                     Defendant-Intervenors.


                                      OPINION

[Sustaining the U.S. Department of Commerce’s third remand results.]

                                                            Dated: May 26, 2020

Melissa M. Brewer, R. Alan Luberda and David C. Smith, Kelley Drye & Warren LLP, of
Washington, DC, for Plaintiff ABB Inc.

John J. Todor, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, DC. Of counsel was David W. Richardson,
Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of
Commerce, of Washington, DC.

David E. Bond, Ron Kendler, Walter J. Spak, and William J. Moran, White & Case LLP,
of Washington, DC, for Defendant-Intervenors Hyundai Heavy Industries, Co., Ltd.1 and
Hyundai Corporation USA.




1
 Hyundai Electric & Energy Systems Co., Ltd. is the successor-in-interest to Hyundai
Heavy Industries, Co., Ltd. See Letter from David E. Bond, Attorney, White & Case
LLP, to the Court (Sept. 12, 2018), ECF No. 120.
Court No. 16-00054                                                               Page 2


      Barnett, Judge: This matter is before the court following the U.S. Department of

Commerce’s (“Commerce” or “the agency”) third redetermination upon remand. See

Final Results of Redetermination Pursuant to Court Remand (Apr. 26, 2019) (“Third

Remand Results”), ECF No. 182-1. Commerce conducted this second administrative

review of the antidumping duty order on large power transformers from the Republic of

Korea for the period of review August 1, 2013, to July 31, 2014. Large Power

Transformers From the Republic of Korea, 81 Fed. Reg. 14,087 (Dep’t Commerce Mar.

16, 2016) (final results of antidumping duty admin. review; 2013–2014) (“Final Results”),

ECF No. 27-2; and accompanying Issues and Decision Mem., A-580-867 (Mar. 8,

2016), ECF No. 27-2. The court assumes familiarity with its earlier opinions resolving

substantive issues this case. See ABB Inc. v. United States (“ABB I”), 41 CIT ___, 

(2017); ABB Inc. v. United States (“ABB II”), 42 CIT ___, 

1206 (2018), recons. denied, 43 CIT ___, 

(2019); ABB Inc. v.

United States (“ABB III”), Slip Op. 20-21, 

(CIT Feb. 19, 2020).

      Briefly, Defendant-Intervenor Hyosung Corporation (“Hyosung”) 2 and Plaintiff

ABB Inc. (“ABB”) filed separate motions for judgment on the agency record challenging

certain aspects of the Final Results, and Defendant United States (“the Government”)

responded by requesting a remand for Commerce to reconsider issues raised by ABB:

the agency’s treatment of certain U.S. commission expenses incurred by Hyosung and



2
  On August 29, 2019, the court granted Hyosung’s motion for partial final judgment and
to amend the statutory injunction, thereby granting final judgment with respect to all of
Hyosung’s counts and Count I of ABB’s Complaint as it relates to Hyosung. See Order
(Aug. 29, 2019), ECF No. 169.
Court No. 16-00054                                                                 Page 3


Defendant-Intervenors Hyundai Heavy Industries Co., and Hyundai Corporation USA

(together, “Hyundai”) and Hyundai’s sales-related revenue. See ABB 

–04. The court granted the Government’s request for remand and rejected

arguments raised by Hyosung.

1208–12.

       Commerce filed the first remand results on February 9, 2018. Confidential Final

Results of Redetermination Pursuant to Court Remand (Feb. 9, 2018) (“First Remand

Results”), ECF No. 96. Therein, for certain services that Hyundai provided to

unaffiliated customers, Commerce capped service-related revenue by the amount of

associated service-related expenses.

19–25. Commerce also applied partial

facts available with an adverse inference (or “partial AFA”) in connection with service-

related revenues.

       While the court sustained Commerce’s resort to facts available, the court

remanded the First Remand Results with respect to Commerce’s use of an adverse

inference and they agency’s application of a cap to so-called service revenue for those

transactions for which substantial evidence did not support a finding that the services at

issue were separately negotiable. See ABB II, 

at 1220–23.3

       In the second remand results, Commerce did not cap revenue for transactions for

which substantial evidence did not support a finding that the services were separately

negotiable with third parties consistent with the court’s instructions in ABB II. See




3
 In the First Remand Results, Commerce also revisited its methodology for making
home market commission offsets for U.S. commissions incurred in the United States,
which the court sustained. See ABB II, 

at 1211–15.
Court No. 16-00054                                                                 Page 4


Confidential Final Results of Redetermination Pursuant to Court Remand (Apr. 26,

2019) (“Second Remand Results”), at 17–28, 20–22, ECF No. 149. With respect to two

transactions, Commerce made circumstance of sale adjustments to normal value for

services identified as delayed delivery charges.

Commerce also further

explained its use of an adverse inference, noting that Hyundai “failed to cooperate to the

best of its ability with regard to the reporting of service-related revenue” because

Hyundai had the ability to report the information but failed to do so in response to

Commerce’s information requests.

       The court remanded Commerce’s circumstance of sale adjustments for the

delayed delivery charges but otherwise sustained the Second Remand Results. See

ABB III, 

at *3. The court explained that, pursuant to 19 C.F.R. §

351.410, a circumstance of sale adjustment involves “an actual or implied expenditure

by the respondent.”

(quoting Habaú Sinai Ve Tibbi Gazlar Istihsal Endüstrisi,

A.ù. v. United States, 43 CIT ___, ___, 

, 1211 (2019)). Because

the delayed delivery charges are revenue for Hyundai, Commerce’s use of a

circumstance of sale adjustment for them was not in accordance with the law. See

       In the Third Remand Results, Commerce removed the circumstance of sale

adjustments for the delayed delivery charges to determine Hyundai’s normal value. See

Third Remand Results at 9.
Court No. 16-00054                                                                Page 5


                        JURISDICTION AND STANDARD OF REVIEW

      The court has jurisdiction pursuant to subsection 516A(a)(2)(B)(i) of the Tariff Act

of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(i) (2012), 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 ___,

___, 

, 1317 (2017) (citation and internal quotation marks omitted).

                                      DISCUSSION

      Hyundai submitted comments during the remand proceedings agreeing that

Commerce’s removal of the circumstance of sale adjustments for the delayed delivery

charges is consistent with ABB III. Third Remand Results at 10. ABB also does not

object to the Third Remand Results. Ltr. from Melissa M. Brewer, Kelley Drye & Warren

LLP, to the Court (May 15, 2020), ECF No. 184. No other comments were received.

Thus, Commerce’s determination is uncontested.

      Upon review of the Third Remand Results, Commerce’s removal of circumstance

of sale adjustments for the delayed delivery charges complies with the court’s order in

ABB III and is otherwise consistent with the agency’s regulations governing

circumstance of sale adjustments.
Court No. 16-00054                                                               Page 6


                                       CONCLUSION

         There being no challenges to the Third Remand Results, and those results being

otherwise lawful and supported by substantial evidence, the court will sustain

Commerce’s Third Remand Results. Judgment will enter accordingly.



                                                /s/   Mark A. Barnett
                                                Mark A. Barnett, Judge


Dated:     May 26, 2020
         New York, New York