Commerce to Relook at 'Facts Available' in CVD Review Following Voluntary Remand Request at CIT

The Commerce Department will reconsider its application of facts available in a countervailing duty review pursuant to its own voluntary remand request, the Court of International Trade ordered in an Aug. 27 decision. Judge Jennifer Choe-Groves said the remand was warranted since it will allow Commerce the opportunity to "cure its own mistakes and reconsider the substantive issues," raised by plaintiff and respondent Hyundai Steel Company.

In the 2017 administrative review of the countervailing duty review on certain hot-rolled steel flat products from South Korea, it was alleged that Hyundai received a subsidy from a program involving port usage rights at the Port of Incheon. The company was scheduled to receive berthing income from shipping operators and "other" income from Hyundai itself and third parties, the court said. Commerce found that Hyundai received a countervailable benefit relating to this "other" income -- namely, certain fees it received -- and slapped a 0.51% final subsidy rate on Hyundai. Commerce based this rate on facts available, citing a lack of necessary information for the fees.

Hyundai contested this use of facts available, arguing that since Commerce did not find deficiencies in the company's submissions, the agency had no right to use facts available. So, Commerce requested a voluntary remand to rethink its use of facts available. Petitioner Nucor Corporation was the only party to oppose the request. Choe-Groves ultimately granted it, giving deference to the agency to fix its own mistakes.

(Hyundai Steel Company v. United States, Slip Op. 21-112, CIT # 20-03799, dated 08/27/21, Judge Choe-Groves. Attorneys: Brady W. Mills of Morris Manning for plaintiff Hyundai; Kelly Krystyniak for defendant U.S. government)