Hyundai Challenges Commerce's de Facto Specificity Analysis on Korean Electricity in CVD Review Suit

Exporter Hyundai Steel Co. argued against the Commerce Department's finding that the South Korean government's provision of electricity for less than adequate remuneration is de facto specific in the 2021 countervailing duty review on cut-to-length carbon-quality steel plate from South Korea. Filing a motion for judgment on March 12, Hyundai claimed that the record doesn't show that the steel industry "received a disproportionately large amount of this subsidy" as required by a de facto specificity analysis (Hyundai Steel Co. v. United States, CIT # 23-00211).

In the review, Commerce just "aggregated the total electricity use of unrelated industries in order to conclude that the steel industry consumed a disproportionately large amount of electricity in Korea during the" review period, Hyundai alleged. However, this "random grouping of unrelated industries" doesn't show that the steel industry disproportionately used the program and "leads to the absurd result that a good that is used broadly by everyone in Korea is being found to be de facto specific," the brief said.

Hyundai also challenged Commerce's decision to reject 2021 cost data from the Korea Electric Power Corporation, arguing that the agency didn't give Hyundai a "true opportunity to remedy the fact that it was unable to provide KEPCO's 2021 cost data in its response to the Initial Questionnaire." As Commerce made an additional request for this data, it was "in the process of being collected and audited," precluding the Korean government from providing it at the time requested.

The motion alleged that Commerce "abused its discretion" in not using the data. While the agency isn't required to give parties a chance to submit data more than 30 days before the review's preliminary results are issued, Commerce does have an obligation to calculate CVD rates "as accurately as possible," Hyundai argued. This obligation required Commerce to accept the 2021 KEPCO data, which was ready for review five and half months before the review's preliminary results, Hyundai said.

"Five and a half months was more than enough time for Commerce to review the data, allow parties to comment on the agency’s analysis of the data, and respond to those comments," the company said. "In other words, the burden of soliciting the 2021 cost data at that stage of the review did not outweigh the interests of fairness and accuracy in calculating Hyundai Steel’s margin."