Hitachi Energy USA, Inc. v. United States, No. 20-2114 (Fed. Cir. 2022)Annotate this Case
The second administrative review of an antidumping duty determination for large power transformers imported from the Republic of Korea, 19 U.S.C. 1675(a)(1)(b), was subject to four appeals to the Trade Court, with three remands to the Department of Commerce. The review concerned 19 U.S.C. 1677m(d), which requires Commerce to notify and permit a party to remedy or explain any deficiency in the information provided during an investigation. Commerce asserted that the statute did not apply and did not permit Hyundai to provide additional information relevant to Commerce’s change of methodology concerning normal value and sales price of service-related revenue. Commerce applied an adverse inference and partial facts available to increase the dumping margin.
The Federal Circuit remanded for redetermination of the antidumping duty, based on the calculation of service-related revenue. Hyundai has the statutory right to correct the deficiencies that led to the application of adverse inferences and partial facts available. Before making adverse inference, Commerce must examine a respondent’s actions and assess the extent of the respondent’s abilities, efforts, and cooperation in responding to Commerce requests for information. The government does not assert that Hyundai withheld information, or committed any of the transgressions in section 1677e(a)(1) or (2) and relied on incomplete data to determine antidumping duties.