Commerce Properly Decided Not to Look Into Off-Peak Electricity for LTAR in CVD Case, US Argues

The Commerce Department properly decided not to consider off-peak electricity sold for less than adequate remuneration in a countervailing duty administrative review, DOJ said in a March 7 brief at the Court of International Trade. Responding to a motion for judgment from petitioner Nucor Corporation, DOJ said that Nucor's arguments merely dispute how Commerce weighed the evidence alleging that the provision of off-peak electricity for LTAR was a countervailable subsidy (Nucor Corporation v. United States, CIT #21-00182).

The case concerns an administrative review of the countervailing duty order on carbon and alloy steel cut-to-length plate from South Korea. In the review, Nucor submitted a subsidy allegation on the South Korean government's provision of off-peak electricity for LTAR. Commerce found Nucor failed to provide sufficient evidence to back its claim.

Nucor filed suit at CIT. DOJ pointed out, however, that one of the ways in which Commerce looks at whether goods or services are provided for LTAR involves assessing whether the government sets prices according to market principles. This analysis looks at the government's price-setting philosophy, costs or possible price discrimination. "Nucor’s arguments amount to nothing more than disagreement with how Commerce weighed the record evidence," DOJ said. "And it is not this Court’s role to reweigh that evidence."

Nucor said that Commerce applied an "unreasonably high burden" that exceeded the standard for initiating a countervailing duty investigation. "Thus, Nucor suggests that the threshold for initiation is satisfied with the mere assertion of a non-frivolous allegation that a countervailable subsidy exists, thereby obliging Commerce to conduct an investigation," the brief said. "Nucor is wrong. Having a low standard for initiation is not the same as having no standard at all. Commerce has clarified that 'the mere provision of any documentation is not necessarily sufficient' to meet the threshold for initiation."