US Backs Use of Total AFA Over Lack of SRR Docs, Omission of 1 US Sale
The Commerce Department properly applied to antidumping duty respondent Hyundai Electric & Energy Systems total adverse facts available, the U.S. said in response to Hyundai over Commerce's remand results at the Court of International Trade. The agency should not have hit the respondent with partial AFA, as Hyundai argued, since the missing service-related revenues (SRRs) on the record are not a limited and discrete category of information and since Hyundai's omission of one U.S. sale is significant, given the limited number of sales, the U.S. said (Hyundai Electric & Energy System Co. v. United States, CIT #20-00108).
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The case concerns the final results in the 2017-2018 administrative review of the antidumping duty order on large power transformers (LPTs) from South Korea in which Commerce initially assigned Hyundai a final dumping margin of 60.81% based on total AFA. During the ensuing lawsuit, CIT granted Hyundai’s motion to supplement the record with two documents that Hyundai presented at verification. At Commerce’s request, the court remanded the final results of the review for Hyundai to allow Commerce to consider the two documents.
The remand results were not sufficient for the trade court, with CIT again sending the issue back to the agency, this time based on Commerce's use of AFA related to the reporting of certain unnamed parts as being not in scope (see 2205180064). In its second remand results, Commerce said it didn't have a sufficient basis to find that Hyundai misclassified the parts in question, but total AFA was still warranted, given the reporting of SRR documents and sale of an LPT to the U.S. that the agency believed to be made in South Korea (see 2208160047).
In response, Hyundai said that the SRR documents relate only to a limited and discrete category of information and warrant only partial AFA. The respondent cited the U.S. Court of Appeals for the Federal Circuit's Mukland v. U.S. case, which said that total AFA is appropriate where there are pervasive deficiencies in the record and partial AFA is appropriate where the deficiencies are in a discrete category of information. Also looking to Mukland, the U.S. said that partial AFA is not appropriate where the missing information is central to the antidumping analysis, as it is here.
"The facts on the record demonstrate that total facts available with an adverse inference is warranted because Hyundai failed to provide information for Commerce to determine the exact amount of service-related revenue and whether the unreported service-related revenue is included or excluded from gross unit price or corresponding service-related expenses," the brief said. "Without this information on the record, Commerce cannot determine an accurate export price or apply its capping methodology, and without an accurate export price, Commerce cannot calculate an accurate dumping margin."
Hyundai also argued that total AFA was not justified given that it only omitted one U.S. sale from its database. The U.S. said this was not a compelling argument since a limited number of sales were made. Total AFA in this matter was also not decided solely on the omission of one sale, the government argued.
"Instead, Hyundai’s failure to demonstrate that it provided a complete U.S. sales database, and therefore a complete reporting of U.S. sales of subject merchandise during the period of review, was one of multiple failures by Hyundai which gave rise to Commerce’s determination not to rely on any of Hyundai’s information," the U.S. said.