Commerce Drops Facts Otherwise Available on Port Usage Rights Program in CVD Review

The Commerce Department dropped its reliance on facts otherwise available in a countervailing duty review related to a South Korean port usage rights program, in Oct. 20 remand results submitted to the Court of International Trade. Having filed for a voluntary remand at CIT to tackle what it identified as its own mistakes in relying on facts otherwise available, Commerce found it no longer needed to apply facts available after receiving additional information from the relvant exporter (Hyundai Steel Company v. United States, CIT #20-03799).

"We are pleased with the result and think Commerce properly recognized that there was no lawful basis to apply facts available," said Brady Mills of Morris Manning, counsel for plaintiff and respondent Hyundai Steel Co. "The remand is consistent with the Court’s remand instructions."

In the 2017 administrative review of the CVD order 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 along with "other" income from Hyundai itself and third parties. Commerce found that Hyundai received a countervailable benefit relating to this "other" income -- namely, certain fees it received -- and subsequently 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 filed a CIT challenge, arguing that since Commerce did not actually find deficiencies in the company's submissions, it can't use facts otherwise 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, yet Judge Jennifer Choe-Groves ultimately granted it, giving deference to the agency to fix its own mistakes (see 2108270037).

After the remand was granted, Commerce then issued a follow-up questionnaire to Hyundai. The agency said that it was missing information needed to determine the amount of benefit conferred from the provision of port usage rights as they relate to harbor exclusive fees, so it fielded this information from Hyundai. The respondent provided it, and so "there no longer is a need to apply facts otherwise available in determining the benefit received by Hyundai Steel from this program," Commerce said. After recalculation, this left Hyundai with a 0.01% CVD rate for the port usage program and a total CVD rate of 0.46%.