Korean Government Weighs In on Commerce Decision Not to Countervail Provision of Electricity

The Court of International Trade should deny a stay motion in a case involving the provision of electricity at less than adequate remuneration in a countervailing duty case, the South Korean government said in a brief filed July 1.

The case, filed by Nucor (Nucor Corporation v. U.S., CIT #22-00070), contests the 2019 administrative review of the countervailing duty order on carbon and alloy steel cut-to-length plate from South Korea. The manufacturer challenged a decision by Commerce, which found that the South Korean government provided electricity below cost for certain tariff classes while also finding that the electricity conferred a non-measurable benefit (see 2203250064).

Nucor raised the issue of electricity provision in a previous case and has indicated that it will do so in future cases. The South Korean government's brief argues that staying this and future actions until the original case is resolved, which could take several years, "based solely on the fact that Commerce considered this same issue in the underlying proceedings" would "neither conserve the resources of this Court or the parties nor promote judicial economy... ." The brief said that it is likely that interested parties will request consolidation and that a stay of all cases involving electricity provision would prevent such consolidation, further forcing an inefficient use of court resources.

The brief also said that despite the electricity issue being raised in several cases, it has never resulted in a decision from the U.S. Court of Appeals for the Federal Circuit "that would require Commerce to treat the [electricity provision] in a particular matter." There is no guarantee that the first Nucor case will ever be appealed to the Federal Circuit or that any resulting decision would mandate a particular outcome in the appeal at issue, it said.

An indefinite stay would be harmful to the South Korean government because of the turnover in personnel and burden on government recordkeeping, the brief said. The stay, if granted, "would create, rather than eliminate, additional burdens on time and resources for the Court and all parties involved, contrary to court rules and precedent," it said.