Commerce Failed to Justify Specificity Finding on Korean Electricity Provision, CIT Says
The Commerce Department failed to justify its de facto specificity finding regarding the South Korean government's provision of electricity below cost in the 2021 review of the countervailing duty order on cut-to-length carbon-quality steel plate from South Korea, the Court of International Trade held in a decision made public Dec. 17. Judge Claire Kelly said Commerce didn't lay out a "rational basis" for grouping certain industries together and declaring that the selected industries received a disproportionate benefit from the program.
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However, Kelly sustained the agency's rejection of 2021 cost information from the state electricity company, KEPCO, as being untimely filed.
To find that the provision of electricity was specific, Commerce said that the steel industry and three other industries consumed a disproportionate amount of electricity compared with the other 15 industries in the Korean economy and thus derived a greater benefit from the provision of cheap electricity (see 2408130046).
Kelly held that Commerce failed to both explain its finding that the benefit received by the four industries is "disproportionate" and justify its grouping of the four industries in the first place.
Regarding its disproportionality finding, Commerce said data from the Korean government shows that the four industries consume a "disproportionately large amount of electricity." On this point, the court noted that "Commerce elides the reality that programs designed to confer benefits on usage levels will necessarily result in larger users receiving a proportionally larger percentage of the subsidy."
Instead, disproportionality "requires that an enterprise or industry is favored in some way," Kelly held. As a result, the agency must explain how the four industries "benefit more than would be expected" based on their usage or "some other comparator."
Regarding the initial selection of the four industries for the specificity analysis, Kelly said the move bucks Commerce's own regulations. While "at first glance" it can seem like the agency's regulations allow it to pick various industries without sharing an explanation about their shared characteristics, Commerce's preamble establishes that the regulation "obviates the need for explanation only when the subsidies are not widely available." Given this backdrop, Commerce can only find specificity among disparate industries without any explanation as to what binds them "where the number of recipients is limited."
Since the number of recipients isn't limited here, Commerce must provide a "rational basis for the grouping," the court said.
Where the court sided with Commerce was on the issue of KEPCO's 2021 data. In the review, the agency repeatedly requested cost information from the Korean government, which it didn't supply or give a date on which the data would be available. After the review's preliminary decision came out, the Korean government offered the "substantially complete" 2021 cost data, though it noted that the data was "compiled but was not complete.'
Commerce rejected the data and used facts otherwise available, explaining that there would have been "insufficient time to review the information" and ensure a chance for the parties to comment on it before the final results. In addition, the agency would have had to evaluate the data, which might have called for supplemental questionnaires and even more comment periods. The data also may have led Commerce to conduct a "post-preliminary analysis of the program," which would have queued up another comment period.
As a result, the court said the agency reasonably rejected the untimely cost data. Kelly said Commerce gave the Korean government "multiple opportunities to submit the information before issuing its preliminary results." The judge said the law doesn't compel the agency to give a party that has "intentionally submitted incomplete information a further opportunity to remedy and explain."
(Hyundai Steel Co. v. United States, Slip Op. 24-135, CIT # 23-00211, dated 12/12/24; Judge: Claire Kelly; Attorneys: Brady Mills of Morris Manning for plaintiff Hyundai Steel Co.; Yujin McNamara of Akin Gump for plaintiff-intervenor Government of the Republic of Korea; Emma Bond for defendant U.S. government; Alan Price of Wiley Rein for defendant-intervenor Nucor Corp.)