CIT Finds Korean Company Didn't Get Countervailable Benefit From Electricity Pricing

During the investigation, Commerce had found South Korean steel producers hadn't been treated differently by KEPCO from other electricity users and did not benefit from the provision of electricity (see 2106140051). After the final determination was sustained by CIT, Nucor appealed to the U.S. Court of Appeals for the Federal Circuit. The appellate court held that the use of a preferential-rate standard isn't sufficient to establish the adequacy of remuneration and that Commerce failed to address the role of KPX, a KEPCO-owned entity, in the South Korean electricity market. CIT ultimately remanded the case to Commerce, but the agency again found KEPCO didn't provide electricity for LTAR.

Nucor challenged multiple aspects of Commerce's remand, including whether Commerce found that the actual price that South Korean electricity customers paid recouped costs plus profit. Nucor said Commerce used a preferential rate analysis rather than an LTAR analysis. Commerce countered by saying that it examined whether the tariff charged to the respondent covers the cost of production plus a profit and whether the tariff actually charged is in accordance with the tariff established. Nucor ignored these two elements in its critique, the U.S. responded during litigation (see 2109090036).

Judge Gary Katzmann agreed, holding that Nucor mischaracterized Commerce's analysis. The agency looked at both the relationship between KEPCO's standard pricing mechanisms and its cost of production along with the presence of preferential pricing. If Commerce had based its analysis solely on the consistent application of KEPCO's standard pricing mechanism, the court said, it would have agreed with Nucor, but Commerce didn't do this. "Accordingly, Commerce’s analysis did not violate the requirements of Nucor and POSCO IV by failing to incorporate an analysis of 'fair-market principles' and thus of the adequacy of remuneration," the opinion said.

The trade court also backed Commerce's cost recovery analysis. Nucor argued that the agency's analysis uses data from outside the period of investigation and that Commerce failed to comply with the Federal Circuit's mandate to consider KPX's impact on the South Korean electricity market and not just KEPCO's costs. But, Katzmann said, KPX's role was properly considered.

On remand, Commerce said it requested information, particularly on pricing and generation costs, on KPX in its initial questionnaire to the South Korean government. Nucor said that Commerce's remand results didn't include any additional information or analysis confirming whether the KPX pricing mechanism requests the actual costs of generating and supplying electricity, amounting to a failure to consider KPX's role in the price-setting process. However, KPX's own revenue more than covers its operating expenses, revealing that no new information was needed, the court said.

"The court concludes that Commerce was not obligated to investigate KPX’s underlying generation costs beyond the analysis set out in the Second Remand Results because the information it received in response to its initial questions reasonably indicated that KPX’s pricing of generated electricity could not have constituted a subsidy under the statute," the opinion said. " As Commerce notes, 'Nucor did not include KPX as part of its LTAR allegation,' and therefore 'cannot circumvent the statutory requirement to properly allege a countervailable subsidy' by requesting that Commerce further investigate a program which it has determined, after review of the record, does not constitute a countervailable subsidy."

(POSCO v. U.S., Slip Op. 22-3, CIT Consol. #17-00137, dated 01/13/22, Judge Gary Katzmann. Attorneys: Brady Mills of Morris Manning for plaintiff and defendant-intervenor POSCO; Adam Price of Wiley Rein for consolidated plaintiff and defendant-intervenor Nucor Corporation; Kelly Krystyniak for defendant U.S. government)