Korean Ports Rights Were Countervailable Without LTAR Analysis, DOJ and Intervenors Say

The Commerce Department correctly continued to find that usage rights at the Port of Incheon granted to Hyundai Steel by the Korean government were countervailable but did not require a less than adequate remuneration (LTAR) analysis, DOJ said alongside defendant-intervenors Nucor, SSAB and Steel Dynamics in separate remand comments submitted to the Court of International Trade on June 1 (Hyundai Steel Company v. U.S., CIT # 21-00536).

Commerce correctly determined that analysis of the adequacy of remuneration does not apply to revenue forage programs, DOJ said in its own comments. The governing statute, which defines the term financial contribution, defines contributions “'providing good or services' separately from” those “foregoing or not collecting revenue that is otherwise due.” Commerce determined that the provision of port usage rights were revenue forgone rather than LTAR and correctly performed its benefit analysis under the revenue forgone metric, DOJ said.

Commerce’s regulations say that an LTAR benefit analysis is separate and distinct from a revenue forgone benefit analysis. Calculation of benefits for programs related to the provision of goods or services is subject to a separate subsection of the statute than those concerning grants, DOJ said.

The intervenors also argued that Commerce correctly found that the port rights were "revenue forgone," in their own comments. It would have been inappropriate to treat the port rights program as an LTAR program because Hyundai's ability to collect port fees was clearly not a "provision of a good or service" as required by the statute, the intervenors said.

Commerce complied with the remand order and considered how “other conditions of purchase or sale” could have impacted its benefit determination, DOJ said. The department rightly concluded that neither the statute nor its regulations required it to consider the costs incurred by Hyundai Steel in constructing the port. Expenses like those incurred by Hyundai in constructing the port are not included in the list of factors Commerce was required to consider while calculating the net countervailable subsidy, DOJ said.