Hyundai Elec. & Energy Sys. Co. v. United States

2020 CIT 160

• Court: United States Court of International Trade
• Decided: November 9, 2020
• Docket: 20-00108
• Status: Published

Opinion

Slip Op. 20-

UNITED STATES COURT OF INTERNATIONAL TRADE

HYUNDAI ELECTRIC & ENERGY SYSTEMS CO., LTD.,

Plaintiff,

v. Before: Mark A. Barnett, Judge UNITED STATES, Court No. 20-00108 Defendant,

and

ABB ENTERPRISE SOFTWARE INC. AND SPX TRANSFORMER SOLUTIONS, INC.,

Defendant-Intervenors.

OPINION AND ORDER

[Granting Defendant’s request to remand the U.S. Department of Commerce’s final results in the sixth administrative review of the antidumping duty order on large power transformers from the Republic of Korea.]

Dated: November 9, 2020

David E. Bond, William J. Moran, and Ron Kendler, White & Case LLP, of Washington, DC, for Plaintiff Hyundai Electric & Energy Systems Co., Ltd.

Kelly A. Krystyniak, Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for Defendant United States. With her on the brief were Jeffery Bossert Clark, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and L. Misha Preheim, Assistant Director. Of counsel on the brief was David W. Richardson, Senior Counsel, Office of Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, DC.

R. Alan Luberda, David C. Smith, and Melissa M. Brewer, Kelley Drye & Warren LLP, of Washington, DC, for Defendant-Intervenors ABB Enterprise Software Inc. and SPX Transformer Solutions, Inc. Court No. 20-00108 Page 2

Barnett, Judge: This matter is before the court on Defendant United States’ (“the

Government”) request for a remand of the U.S. Department of Commerce’s

(“Commerce” or “the agency”) final results of the sixth administrative review of the

antidumping duty order on large power transformers (or “LPTs”) from the Republic of

Korea. See Docket Entry (Nov. 6, 2020), ECF No. 50; see generally Large Power

Transformers From the Republic of Korea, 85 Fed. Reg. 21,827 (Dep’t Commerce Apr.

20, 2020) (final results of antidumping duty admin. review; 2017–2018) (“Final Results”),

ECF No. 24-4, and accompanying Issues and Decision Mem., A-580-867 (Apr. 14,

2020), ECF No. 24-5.

On October 30, 2020, the court granted Plaintiff Hyundai Electric & Energy

Systems Co., Ltd.’s (“Hyundai”) motion to supplement the record with two documents.

See Hyundai Elec. & Energy Sys. Co. v. United States, Slip Op. 20-153, 2020 Ct. Int’l

Trade LEXIS 166 (CIT Oct. 30, 2020); see generally Confidential Pl.’s Mot. to Supp. the

Record (“Hyundai’s Mot.”), ECF No. 28. The court accepted as part of the records two

documents presented at verification. See Hyundai Elec. & Energy, 2020 Ct. Int’l Trade

LEXIS 166, at *12; see generally Hyundai’s Mot., Attachs. 1 & 2. These documents are

alleged to speak to the place of production of one of Hyundai’s LPTs. Questions about

that place of production had led Commerce to rely on total adverse facts available (or

“total AFA”) to determine Hyundai’s margin. See Hyundai’s Mot. Because Commerce

had declined to accept these documents at verification, they had not been included in

the administrative record and were not addressed in the Issues and Decision

Memorandum. Court No. 20-00108 Page 3

Following the issuance of Hyundai Electric & Energy, the court held a telephonic

conference during which the Government requested a remand for Commerce to

address the documents in the first instance and, if necessary, reconsider its reliance on

total AFA. Docket Entry (Nov. 6, 2020), ECF No. 50. None of the other Parties

objected to the Government’s remand request. Id.

When an agency determination is challenged in the courts, the agency may

“request a remand (without confessing error) in order to reconsider its previous position”

and “the reviewing court has discretion over whether to remand.” SKF USA Inc. v.

United States, 254 F.3d 1022, 1029 (Fed. Cir. 2001). Remand is appropriate “if the

agency’s concern is substantial and legitimate,” but “may be refused if the agency’s

request is frivolous or in bad faith.” Id. “A concern is substantial and legitimate when

(1) Commerce has a compelling justification, (2) the need for finality does not outweigh

that justification, and (3) the scope of the request is appropriate.” Hyundai Heavy Indus.

v. United States, 43 CIT ___, ___, 393 F. Supp. 3d 1293, 1300 (2019) (quoting

Changzhou Hawd Flooring Co. v. United States, 38 CIT ___, ___, 6 F. Supp. 3d 1358,

1361 (2014)).

Here, the Government’s remand request satisfies the three criteria, and thus, is

supported by substantial and legitimate concerns. First, the Government espouses a

compelling reason for the remand request: to address two documents which could

impact Hyundai’s margin. Cf. Tri Union Frozen Prods., Inc. v. United States, 40 CIT

___, ___, 163 F. Supp. 3d 1255, 1312 (2016) (finding that a compelling justification “to

correct a potentially erroneous calculation of a dumping margin”). Second, the need to Court No. 20-00108 Page 4

accurately calculate Hyundai’s margin is not outweighed by the interest in finality

because the Government promptly requested the remand following the court’s ruling,

recognizing that Commerce did not address the documents in the Final Results. Third,

the scope of the remand is appropriate. The Government requests a remand to

address the documents that could affect the agency’s reliance on total AFA. Thus, it is

appropriate to remand the Final Results with respect to Hyundai to allow Commerce to

consider the documents and modify its determination as necessary.

CONCLUSION AND ORDER

In accordance with the foregoing, it is hereby

ORDERED that Commerce’s Final Results are remanded to the agency to

consider the documents subject to the court’s opinion in Hyundai Electric & Energy and,

as necessary, reconsider the agency’s reliance on total AFA to determine Hyundai’s

margin; and it is further

ORDERED that Commerce shall file its remand results on or before February 12,

2021; and it is further

ORDERED that subsequent proceedings shall be governed by USCIT Rule

56.2(h).

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

Dated: November 9, 2020 New York, New York