After Third Round With CIT, Commerce Still Won't Look Into Alleged Korean Electricity Subsidy
After three remands by Court of International Trade Judge Mark Barnett, the Commerce Department on Aug. 15 yet again found that a petitioner’s evidence wasn’t enough for the department to investigate an allegation that the Korean government was providing subsidized electricity to South Korean steel exporters during off-peak hours (Nucor v. U.S., CIT # 21-00182).
Sign up for a free preview to unlock the rest of this article
Export Compliance Daily combines U.S. export control news, foreign border import regulation and policy developments into a single daily information service that reliably informs its trade professional readers about important current issues affecting their operations.
The department used its 56-page fourth draft of the results to further explain why it had decided against launching the investigation, though it agreed with Barnett’s point that the evidentiary standard for doing so is purposely low.
Petitioner Nucor alleged that Korean government-owned electricity provider KEPCO’s prices during off-peak hours were “significantly lower than the cost of supply,” Commerce said. However, it said that the steel producer never provided any proof that these prices were “inconsistent with market principles.”
“Nucor’s allegation that certain subsets of KEPCO’s pricing indicate that it did not recover its costs through its off-peak electricity prices completely ignores the broader context and prevailing market conditions in the country at issue, the Federal Circuit’s prior decision on those prevailing market conditions, and the overarching methodology relied on by KEPCO to set those prices,” it said.
Other evidence on the record showed that KEPCO was operating in line with market principles, the department said; so too, it said, did the U.S. Court of Appeals for the Federal Circuit’s decisions regarding the same and similar allegations (see 2306050030) and 2310230013).
Nucor filed other evidence after the submission deadline to allege power trading, but “Commerce has no obligation” to “create a new benefit allegation for the petitioner that it would find sufficient based on the information it provided in support of a different variation of potential benefit,” the department said.
And the petitioner also had available to it “numerous” prior analyses by Commerce in which it decided the program wasn’t countervailable, though Nucor hadn’t mentioned that in its allegation, the department said.
“Nucor, having been a participant in the litigation, was also aware that the Federal Circuit had upheld Commerce’s determination that such a methodology was consistent with market principles, as well as the Federal Circuit’s discussion of how the Korean electricity system is consistent with other utility pricing methodologies and satisfies the standards for adequate remuneration expressed by the Supreme Court in Verizon,” it said.