CIT Upholds Decision Not to Investigate Sale of Off-Peak Electricity in Korea on 3rd Remand
The Court of International Trade on March 21 sustained the Commerce Department's decision not to investigate the provision of off-peak electricity for less than adequate remuneration in South Korea after three remands before the trade court. Judge Mark Barnett said Commerce reasonably laid out the evidence petitioner Nucor Corp. should have provided to "justify a new subsidy investigation of this subset of the broader electricity pricing scheme."
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Commerce has continuously refused to investigate the provision of off-peak electricity in South Korea on the grounds that Nucor didn't provide information that was "reasonably available" to it to back its subsidy allegation. The agency said in its third remand that even if Nucor had submitted the information, the agency had no obligation to consider it, since the deadline for submitting supplemental information or a new subsidy allegation had already passed (see 2408160038).
The court previously centered its discussion on whether the off-peak electricity pricing of Korean Electricity Power Corp. (KEPCO), Korea's electricity generator, could be investigated in isolation from its "overarching tariff schedule and time of usage system." Commerce said that for Nucor to properly allege that the off-peak pricing is "inconsistent with market principles," the petitioner first had to address the "overall time of usage system" and the agency's previous finding that the "overall system is consistent with market principles."
The agency's previous finding was that the ordinary pricing scheme, which is based on "aggregated costs and revenue," sees KEPCO fully recover its costs plus a profit.
Commerce said that to justify a new subsidy investigation, Nucor needed to provide information concerning three criteria: (1) KEPCO's "aggregated cost and revenue methodology used to set its tariff schedule is inconsistent with market principles"; (2) "KEPCO’s aggregated costs and revenue methodology is not an acceptable or recognized methodology for the pricing of electricity"; and (3) "the only recognized tariff-setting methodology is one where the electricity company establishes tariffs which ensure that at every point during the 24 hours in a day, and for every day of the year, the company is providing electricity at a price which collects revenue to fully cover all of its costs."
Barnett said substantial evidence backs Commerce's consideration of all three criteria.
On the first, Nucor didn't submit evidence showing that KEPCO's aggregated cost and revenue methodology was "inconsistent with market principles." The electricity provider's tariff schedule has been found to generate enough funds to cover its costs plus a profit and doesn't show any price discrimination, the court noted.
On the second criterion, the court said "Nucor did not provide evidence demonstrating that KEPCO’s aggregated cost and revenue methodology, as a whole, was not considered a recognized system of cost recovery." On the third, Barnett said the petition similarly failed to submit evidence showing that the only tariff-setting methodology that is in line with market principles is one in which the utility is providing electricity at a price that covers all costs at "every point during the day and for every day of the year."
(Nucor Corp. v. United States, Slip Op. 25-27, CIT # 21-00182, dated 03/21/25; Judge: Mark Barnett; Attorneys: Alan Price of Wiley Rein for plaintiff Nucor Corp.; Emma Bond for defendant U.S. government; Brady Mills of Morris Manning for defendant-intervenor POSCO)