Respondent Failed to Act to Best of Its Ability Over Home Market Sales, Petitioner Says

Since antidumping duty respondent Hyundai Heavy Industries served as a mandatory respondent in five consecutive ADD reviews, the Commerce Department reasonably found that the company did not act to the best of its ability by not being entirely forthcoming in its reporting of the gross unit prices for its home market sales, ADD review petitioner ABB Enterprise said. Responding to Hyundai's arguments in its case at the U.S. Court of Appeals for the Federal Circuit in a Jan. 24 brief, ABB said that Hyundai's reporting error was the result of "carelessness and inattentiveness" while preparing its data. For this reason, the imposition of total adverse facts available is appropriate, ABB said (Hyundai Electric & Energy Systems v. United States, Fed Cir. #21-2312).

The case concerns the fourth administrative review of the AD duty order on large power transformers from South Korea, in which Hyundai and Hyosung Heavy Industries served as mandatory respondents. Commerce hit both respondents with total AFA, finding, in particular, that Hyundai's reporting of its home market prices warranted the label. Following two court opinions, Commerce eventually dropped the AFA finding, prompting CIT to uphold the case's second remand results.

Commerce said that Hyundai still understated the gross unit price for a home market sale in which it treated a certain part as a non-foreign like product, but treated the same part as a foreign like product in another home market sale. In attacking the use of AFA at the Federal Circuit, Hyundai said that Commerce didn't support the position that the respondent failed to act to the best of its ability with evidence.

ABB replied, arguing that since Hyundai is experienced in AD proceedings, it knew how best to present its data to comply with Commerce's laws and regulations. "Commerce explained that Hyundai failed to meet its burden to provide accurate and complete responses to the questionnaires, failed to explain and document the changes to home market gross unit pricing, and failed to satisfy its obligation to be forthcoming about the potential (and, in fact, real) discrepancies in its reporting," the brief said. "Thus, based on record evidence, Commerce found that an adverse inference was warranted."

Hyundai said its participation in past reviews is irrelevant in the matter at hand. However, ABB argued that this is incorrect since both CIT and the Federal Circuit have said that past participation in another AD proceeding can inform the respondents' level of cooperation in a current review. "In particular, an experienced respondent is expected to be forthcoming in its questionnaire responses," the brief said.