CVD Results in South Korean Cut-to-Length Steel Plate Review Upheld at CIT

The South Korean government doesn't provide a countervailable subsidy to the South Korean steel industry through the provision of electricity for less than adequate remuneration, the Court of International Trade ruled April 28. Judge Mark Barnett sustained the results of the Commerce Department's 2019 administrative review of the countervailing duty order on carbon and alloy steel cut-to-length plate from South Korea. Barnett said Commerce has considerable leeway to make reasonable methodological choices like it did in the review.

Commerce legally analyzed whether the Korean Electric Power Corporation's (KEPCO's) tariff rates were set in line with market principles via its evaluation of whether KEPCO's income from its prices charged for each consumption category covers its costs plus profits for each category, the court ruled.

Nucor argued that Commerce’s analysis failed to measure the existence of a benefit to POSCO and suggested the South Korean government was engaging in cross-subsidization. However, the court noted that respondent POSCO paid the same tariff rates as other industrial users that purchased electricity during off-peak, mid-peak and peak hours.

Nucor’s argument turned on its interpretation of the phrase “government price” in the applicable regulatory provision, said Barnett ruled. Nucor argued that Commerce impermissibly based its benefit analysis on KEPCO’s annual average unit sales price, arguing the sales price was not a "government price" at all. Nucor failed to persuade the court that Commerce was required to use KEPCO's tariff rates when it investigated whether the "government price" was consistent with market principles. Commerce was within its discretion to determine whether KEPCO’s rates were set in accordance with market principles, the court ruled.

Nucor's citations involving benchmark comparisons were unconvincing, the court said, because those examples cited analyses done after Commerce had found that government prices were not set in accordance with market principles. "While Nucor might prefer Commerce to have used a different approach, Nucor’s disagreement is not a basis to remand Commerce’s determination," Barnett ruled.

(Nucor Corp. v. United States, Slip Op. 23-64, CIT # 22-00070, dated 4/28/23; Judge: Mark Barnett; Attorneys: Adam Teslik of Wiley for plaintiff Nucor Corp.; Augustus Golden for defendant U.S. government; Sarah Sprinkle of Akin Gump for defendant-intervenor government of South Korea)