The opinion
Slip Op. 23-
UNITED STATES COURT OF INTERNATIONAL TRADE
HYUNDAI STEEL COMPANY,
Plaintiff,
v.
UNITED STATES,
Before: Mark A. Barnett, Chief Judge
Court No. 22-00170
Defendant,
and
NUCOR CORPORATION,
Defendant-Intervenor.
OPINION AND ORDER
[Remanding the U.S. Department of Commerce’s final results for the 2019
administrative review of the countervailing duty order on hot-rolled steel flat products
from the Republic of Korea.]
Dated: September 29, 2023
Brady W. Mills and Nicholas C. Duffey, Morris, Manning & Martin, LLP, of Washington,
DC, argued for Plaintiff. With them on the brief were Donald B. Cameron, Julie C.
Mendoza, R. Will Planert, Mary S. Hodgins, Eugene Degnan, Edward J. Thomas III, and
Jordan L. Fleischer.
Sosun Bae, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, DC, argued for Defendant. With her on the brief
were Brian M. Boynton, Principal Deputy Assistant Attorney General, Patricia M.
McCarthy, Director, and Tara K. Hogan, Assistant Director. Of counsel on the brief was
Hendricks Valenzuela, Attorney, Office of the Chief Counsel for Trade Enforcement and
Compliance, U.S. Department of Commerce, of Washington, DC.
Derick G. Holt, Wiley Rein LLP, of Washington, DC, argued for Defendant-Intervenor.
On the brief were Alan H. Price, Christopher B. Weld, and Theodore P. Brackemyre.
Court No. 22-00170 Page 2
Barnett, Chief Judge: This matter is before the court on a motion for judgment on
the agency record pursuant to U.S. Court of International Trade (“USCIT”) Rule 56.2.
Confid. Pl. Hyundai Steel Co.’s Mot. for J. on the Agency R., ECF No. 25, and
accompanying Confid. Br. in Supp. of its Mot. for J. on the Agency R. (“Hyundai’s
Mem.”), ECF No. 25-2; Confid. Pl. Hyundai Steel Co.’s Reply Br. in Supp. of its Mot. for
J. on the Agency R. (“Hyundai’s Reply”), ECF No. 42. Plaintiff Hyundai Steel Company
(“Hyundai Steel”) challenges the U.S. Department of Commerce’s (“Commerce” or “the
agency”) decision to countervail the Government of the Republic of Korea’s
(“Government of Korea” or “GOK”) emissions trading program in the final results of the
2019 administrative review of the countervailing duty order on hot-rolled steel flat
products from the Republic of Korea (“Korea”). Hyundai’s Mem. at 2; see also Certain
Hot-Rolled Steel Flat Prods. From the Republic of Korea, 87 Fed. Reg. 27,570 (Dep’t
Commerce May 9, 2022) (final results of countervailing duty admin. review; 2019)
(“Final Results”), ECF No. 20-4; and accompanying Issues and Decision Mem., C-580-
884 (May 3, 2022) (“I&D Mem.”), ECF No. 20-5. 1
Defendant United States (“the Government”) and Defendant-Intervenor Nucor
Corporation (“Nucor”) urge the court to sustain Commerce’s determination. Def.’s
1
The administrative record for the Final Results is contained in a Public Administrative
Record (“PR”), ECF No. 20-1, and a Confidential Administrative Record (“CR”), ECF
No. 20-2. Hyundai Steel submitted joint appendices containing record documents cited
in parties’ briefs. Confid. J.A. (“CJA”), ECF No. 44; Public J.A., ECF No. 45. The court
references the confidential record documents unless otherwise specified.
Court No. 22-00170 Page 3
Resp. to Pls.’ Mots. for J. on the Agency R. (“Def.’s Resp.”), ECF No. 34; 2 Confid. Nucor
Corp.’s Resp. to Hyundai Steel Co.’s Mot. for J. on the Agency R. (“Nucor’s Resp.”),
ECF No. 38. For the following reasons, the court remands Commerce’s Final Results.
BACKGROUND
In 2016, Commerce published the countervailing duty order covering hot-rolled
steel flat products from Korea. Certain Hot-Rolled Steel Flat Prods. From Brazil and the
Republic of Korea, 81 Fed. Reg. 67,960 (Dep’t Commerce Oct. 3, 2016) (am. final
affirmative countervailing duty determinations and countervailing duty orders). On
December 8, 2020, Commerce initiated an administrative review of the underlying order
for the 2019 period of review (“POR”). Initiation of Antidumping and Countervailing Duty
Admin. Reviews, 85 Fed. Reg. 78,990, 78,994 (Dep’t Commerce Dec. 8, 2020), PR 62,
CJA Tab 4. Commerce selected Hyundai Steel as the sole mandatory respondent for
the review. Resp’t Selection Mem. (Jan. 12, 2021), CR 6, PR 21, CJA Tab 1.
On May 17, 2021, Hyundai Steel and the Government of Korea each responded
to Commerce’s carbon emissions questionnaire. Hyundai Steel’s Carbon Emission
New Subsidy Allegation Questionnaire Resp. (May 17, 2021) (“Hyundai Steel’s NSA
Resp.”), CR 74–75, PR 75, CJA Tab 7; GOK’s Carbon Emissions New Subsidy
Allegation Questionnaire Resp. (May 17, 2021) (“GOK’s NSA Resp.”), CR 77, PR 76,
2
At the time of filing the Government’s response, this case was consolidated with
another case commenced by Nucor such that two motions for judgment on the agency
record were pending. The court subsequently granted Nucor’s motion to sever its case
to enable dismissal of that case. See Nucor Corp.’s Consent Mot. to Sever Ct. No. 22-
00171 From Consol. Ct. No. 22-00170 at 1, ECF No. 40; Order (June 12, 2023), ECF
No. 41.
Court No. 22-00170 Page 4
CJA Tab 8. 3 The questionnaire responses explained that, to reduce greenhouse gas
emissions, the Government of Korea established the Emissions Trading System of
Korea (“K-ETS”) in the Act on the Allocation and Trading of Greenhouse Gas Emissions
Permits (“AAGEP”), with rules governing K-ETS implementation set forth in the
AAGEP’s accompanying Enforcement Decree. GOK’s NSA Resp., Ex. SQA-1 at 1; see
also id., Ex. CEP-1 (reproducing the AAGEP and the Enforcement Decree). 4 The K-
ETS applies to business entities that emit 125,000 tons or more of carbon dioxide or
equivalents or have a single place of business that emits 25,000 tons or more of carbon
dioxide or equivalents. AAGEP, art. 8(1).
Relevant to this case, for each annual compliance year, the Government of
Korea uses emissions data from the 2014 to 2016 baseline period 5 to determine the
number of emissions permits 6 entities will be allocated, subject also to the phase of the
program, the number of permits available, and the number of K-ETS participants. See
GOK’s NSA Resp. at 3–4; Decision Mem. for the Prelim. Results of the Countervailing
Duty Admin. Review (Oct. 29, 2021) (“Prelim. Mem.”) at 17–18, PR 98, CJA Tab 15. 7
3
During the 2018 administrative review, Commerce determined to initiate an
investigation into the Government of Korea’s carbon emissions program but deferred
the investigation until the 2019 review. See GOK Carbon Emissions Program
Questionnaire (Apr. 26, 2021), Attach. 1 at 1, PR 63, CJA Tab 5.
4
For ease of reference, the court cites to the articles of the AAGEP and the
Enforcement Decree, respectively.
5
This method is called the “grandfathering method” and is the method the GOK applied
to Hyundai Steel. GOK’s NSA Resp. at 4.
6
Permits are also called Korean Allowance Units (“KAUs”). Id., Ex. SQA-1 at 5.
7
Compliance years correspond to calendar years, Prelim. Mem. at 17 n.121, and are
also referred to as “commitment periods,” GOK’s NSA Resp. at 7. Commerce explained
Court No. 22-00170 Page 5
The 2019 POR fell within phase two of the K-ETS program, 8 during which time all K-
ETS participants received a gratuitous allocation of 97 percent of their permits (referred
to herein as “the standard allocation”) with the remaining three percent held in reserve.
Enforcement Decree, art. 13(2). 9 However, the “types of businesses” that met certain
“international trade intensity” or “production cost” criteria received a gratuitous allocation
of 100 percent of their permits (referred to as “the full allocation”). Id., art. 14. 10
Hyundai Steel qualified for the full allocation. Hyundai Steel’s NSA Resp., Ex. NSA-1 at
2.
Following the end of each compliance year, K-ETS participants must surrender
permits in an amount equal to their emissions during that compliance year or incur
penalties for any shortfall. GOK’s NSA Resp. at 4, 7. Entities that require additional
permits to cover their emissions have several options to avoid a penalty: 1) carry
forward unused permits from prior years, 2) borrow permits from future years, 3) earn
credits by reducing greenhouse gas emissions through external projects (carbon offset
that permits corresponding to compliance year 2019 “are allocated in late 2018.”
Prelim. Mem. at 17.
8
Phase two ran from 2018 through 2020. Id. at 18.
9
The GOK uses the permits held in reserve for new entrants and for market
stabilization. AAGEP, art. 18.
10
The “types of businesses” eligible for the full allocation are those that have either “an
international trade intensity of at least 30 percent”; “production costs of at least 30
percent”; or “an international trade intensity of at least 10 percent and production costs
of at least 5 percent.” I&D Mem. at 23; see also Enforcement Decree, art. 14.
International trade intensity measures exports plus imports against sales plus imports
for the period of 2013 through 2015; production costs are measured as the cost of
compliance (emissions multiplied by the market price of permits) measured against the
value added during the period of 2013 through 2015. See GOK’s NSA Resp. at 2.
Court No. 22-00170 Page 6
programs), 4) purchase permits from nongovernmental parties either directly or through
a trading exchange, or 5) purchase permits through a government-run auction. Prelim.
Mem. at 19 & nn.130–31 (citing GOK’s NSA Resp. at 4–5, Ex. CEP-1, then citing GOK’s
First Suppl. Questionnaire Resp. (Sept. 17, 2021) at 2–3, 7, Ex. CEP-7.1, CR 95, PR
93, CJA Tab 14). Companies that receive the full allocation may not participate in a
government-run auction. GOK’s NSA Resp. at 6. For compliance year 2019, Hyundai
Steel purchased additional permits from private parties and borrowed against the
company’s compliance year 2020 allocation. Hyundai Steel’s NSA Resp. at 4; see also
GOK’s NSA Resp. at 7.
Commerce issued its preliminary results on October 29, 2021. Certain Hot-
Rolled Steel Flat Prods. From the Republic of Korea, 86 Fed. Reg. 60,797 (Dep’t
Commerce Nov. 4, 2021) (prelim. results of countervailing duty admin. review and
rescission in part; 2019) (“Prelim. Results”), PR 100, CJA Tab 17. For the Preliminary
Results, Commerce found that the additional three percent of permits provided to
recipients of the full allocation constituted a countervailable benefit. Prelim. Mem. at
17–20. Commerce preliminarily calculated a subsidy rate of 0.56 percent ad valorem
for Hyundai Steel, Prelim. Results, 86 Fed. Reg. at 60,798, inclusive of a 0.10 percent
ad valorem subsidy rate based on the K-ETS, Prelim. Mem. at 21.
On May 4, 2022, Commerce issued the Final Results. 87 Fed. Reg. at 27,570.
Commerce made no relevant changes to Hyundai Steel’s subsidy rate. I&D Mem. at
Court No. 22-00170 Page 7
17. This appeal followed, and the court heard oral argument on September 7, 2023.
Docket Entry, ECF No. 51. 11
JURISDICTION AND STANDARD OF REVIEW
The court has jurisdiction pursuant to section 516A(a)(2)(B)(iii) of the Tariff Act of
1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2018), 12 and 28 U.S.C. § 1581(c).
The court will uphold an agency determination that is supported by substantial evidence
and otherwise in accordance with law. 19 U.S.C. § 1516a(b)(1)(B)(i).
To resolve questions concerning statutory interpretation, the court is guided by
the two-part framework set forth in Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 842–45 (1984). Pursuant to Chevron, the court must first
determine “whether Congress has directly spoken to the precise question at issue.” 467
U.S. at 842. If Congress’s intent is clear, “that is the end of the matter,” and the court
“must give effect to the unambiguously expressed intent of Congress.” Id. at 842–43.
However, “if the statute is silent or ambiguous,” the court must determine whether the
agency’s action “is based on a permissible construction of the statute.” Id. at 843.
DISCUSSION
A countervailable subsidy “exists when . . . a foreign government provides a
financial contribution . . . to a specific industry” that confers “a benefit” on “a recipient
11
Subsequent citations to the Oral Argument include the time stamp from the recording,
which is available at https://www.cit.uscourts.gov/node/288/.
12
Further citations to the Tariff Act of 1930, as amended, are to Title 19 of the U.S.
Code. All references to the U.S. Code are to the 2018 edition unless otherwise
specified.
Court No. 22-00170 Page 8
within the industry.” Fine Furniture (Shanghai) Ltd. v. United States, 748 F.3d 1365,
1369 (Fed. Cir. 2014) (citing 19 U.S.C. § 1677(5)(B)). Hyundai Steel challenges
Commerce’s determination with respect to the financial contribution, benefit, and
specificity elements of a subsidy. Although a lay observer may consider it clear that the
GOK makes a financial contribution to Hyundai Steel by providing the additional KAUs,
confers a benefit by providing those KAUs at no cost, and, by limiting the additional
distribution to certain industries, does so with specificity, it is incumbent upon the
agency to ground its determinations in the statute and regulations, consistent with the
various requirements and limitations contained therein. It is with this in mind that the
court reviews and addresses each issue, in turn.
I. Financial Contribution
Section 1677(5) defines a financial contribution to include, inter alia, “foregoing or
not collecting revenue that is otherwise due, such as granting tax credits or deductions
from taxable income.” 19 U.S.C. § 1677(5)(D)(ii). Commerce determined that Hyundai
Steel received a financial contribution pursuant to this provision. I&D Mem. at 21–22.
Referencing the agency’s preliminary analysis, Commerce explained that
“because companies receiving the standard 97 percent allocation were able to purchase
KAUs via the GOK-run auction,” the additional three percent allocated to other
companies represented “something of value on which [the GOK] could collect revenue.”
Id. at 21–22 & n.113 (citing Prelim. Mem. at 20). Commerce rejected Hyundai Steel’s
argument that the Government of Korea did not forgo revenue that was otherwise due.
Id. at 22. The agency reasoned that “it is not a matter of what the GOK would have
Court No. 22-00170 Page 9
done with the KAUs had they not given them to qualifying entities like Hyundai Steel,”
but that “the key consideration is that, in lieu of giving these entities the additional KAUs
for free, the GOK would have retained the ability to collect the three percent allocation
from Hyundai Steel.” Id. Commerce explained that because K-ETS participants must
surrender the necessary permits at the end of each commitment period or incur a
penalty, “through various means, the GOK has forgone revenue otherwise due – in the
form of uncollected payments/fines, or through the non-collection of additional allocation
from K-ETS participants (whether from Hyundai Steel or otherwise) – by providing the
additional three percent allocation to certain industries.” Id. at 22.
A. Parties’ Contentions
Hyundai Steel contends that Commerce has misinterpreted the plain language of
the “revenue forgone” provision of the statute. Hyundai’s Mem. at 10. Focusing on the
phrase “otherwise due,” Hyundai Steel contends that the phrase plainly requires the
authority to forgo revenue it otherwise has a “‘right’ to collect.” Id. at 11. Hyundai Steel
asserts that the GOK’s provision of the full allocation to certain companies does not
result in the GOK forgoing revenue otherwise due because companies that receive the
standard allocation are not required to purchase additional permits from the GOK. Id. at
12–15.
The Government contends that, but for the provision of additional permits, “the
[GOK] would have otherwise retained the ability to collect the three percent allocation.”
Def.’s Resp. at 16; see also id. at 17 (arguing that the revenue forgone provision is met
when the relevant authority “provid[es] something of value for which it could otherwise
Court No. 22-00170 Page 10
potentially collect revenue”) (emphasis added). The Government relies on BGH
Edelstahl Siegen GmbH v. United States (“BGH I”), 46 CIT __, __, 600 F. Supp. 3d
1241, 1262–63 (2022), to support its position. See id. at 16–17.
Nucor contends that the statute does not require “the revenue [to] be due from
the respondent in question.” Nucor’s Resp. at 16. Nucor thus posits that the GOK
forgoes revenue because recipients of the full allocation are less likely to have to
purchase additional permits on the private market, which, in turn, reduces the need for
other companies to buy permits through the government-run auction. Id. Nucor also
identifies the penalty paid by companies with insufficient permits as “revenue the GOK
could potentially collect.” Id. 13
In its reply brief, Hyundai Steel counters that BGH I is not persuasive because
that opinion does not address arguments raised herein. Hyundai’s Reply at 6–8.
Hyundai Steel further asserts that Nucor’s argument regarding the indirect impact on the
number of permits purchased from the GOK is misplaced because “[t]here is no cap on
the number of permits that can be sold on the private market.” Id. at 9. Hyundai Steel
argues that the GOK’s authority to extract a penalty from companies with insufficient
13
Nucor also asserts that Hyundai Steel is wrong to focus “on the timing of when
Hyundai Steel would have owed any revenue to the GOK.” Nucor’s Resp. at 15.
Nucor’s argument is not well-developed, but it appears to be rooted in Nucor’s assertion
that the permits themselves have value and, thus, the full allocation “placed [Hyundai
Steel] in an initial advantageous position.” Id. (quoting Def.’s Resp. at 17). Given that
the initial permit allocation (whether full or standard) is gratuitous, AAGEP, art. 12(3)–
(4); Enforcement Decree, art. 13, Nucor fails to support the argument that the GOK
forgoes revenue that is otherwise due through the allocation process.
Court No. 22-00170 Page 11
permits does not mean that revenue “is otherwise due” because such payments are not
certain to occur. Id.
B. Commerce Must Reconsider the Legal Basis for its Financial
Contribution Determination
Hyundai Steel contests Commerce’s determination that the Government of Korea
is forgoing revenue that “is otherwise due” when the GOK provides eligible entities with
the full allocation of emissions permits. Hyundai’s Mem. at 9. Commerce’s financial
contribution determination thus turns on the meaning of the phrase “is otherwise due.” 14
Statutory interpretation requires the court to determine “whether Congress has directly
spoken to the precise question at issue.” Chevron, 467 U.S. at 842. 15 The court readily
concludes that the plain meaning of the phrase does not encompass revenue that
could, but not necessarily would, have otherwise been collected by the relevant
authority.
As set forth above, “[t]he term ‘financial contribution’ means-- . . . (ii) foregoing or
not collecting revenue that is otherwise due, such as granting tax credits or deductions
14
Commerce did not take the position that the statutory term “revenue” is ambiguous
and permissibly interpreted to cover the emissions permits as a type of monetary
equivalent. Rather, Commerce tied the value of the KAUs to their value on the
governmental or private markets. See I&D Mem. at 21 (“The record demonstrates that
KAUs are market instruments with prices established for the purpose of trading KAUs
both through the GOK-run auction and in private trading markets throughout the POR.”).
Thus, the revenue that is material to this case is the revenue associated with the sale of
permits. Accordingly, and consistent with Commerce’s further explanation on financial
contribution and its benefit calculation, see id. at 22, 25, the question before the court is
whether the additional three percent allocation resulted in the GOK forgoing revenue
from the sale of additional allocations that was otherwise due.
15
Commerce did not state whether the agency considered the statute plain or
ambiguous. See id. at 21–22.
Court No. 22-00170 Page 12
from taxable income.” 19 U.S.C. § 1677(5)(D)(ii). Congress’s use of the simple present
tense “is” denotes an existent obligation that is due presently or would be due at some
time in the future. See, e.g., Carr v. United States, 560 U.S. 438, 448 (2010) (stating
that, “[c]onsistent with normal usage, we have frequently looked to Congress’ choice of
verb tense to ascertain a statute’s temporal reach”); see also 1 U.S.C. § 1 (“In
determining the meaning of any Act of Congress, unless the context indicates
otherwise--. . . words used in the present tense include the future as well as the
present[.]”). As such, the revenue that is forgone must be due either presently or on
some future date, but it must, nevertheless, be “otherwise due.”
The parties do not dispute that the adverb “otherwise” means, in effect, “in
different circumstances,” see Hyundai’s Mem., Ex. B (appending a printout from an
online dictionary), or as is relevant here, “but for the subsidy program.”
Dispositive for purposes of this case, however, is the meaning of “due.” The
Oxford English Dictionary defines “due,” when used as an adjective as it is in the
statute, as something “[t]hat is owed or payable as an enforceable obligation or debt.”
Due, Oxford English Dictionary, https://www.oed.com/dictionary/due_adj (last visited
Sept. 29, 2023) (emphasis added). Other dictionary definitions are in accord. See Due,
Dictionary.com, https://www.dictionary.com/browse/due (last visited Sept. 29, 2023)
(defining “due” as “owed at present; having reached the date for payment” or, “owing or
owed, irrespective of whether the time of payment has arrived”); Hyundai’s Mem., Ex. A
(appending a printout from Merriam-Webster’s online dictionary defining “due” as “owed
or owing as a debt”). These definitions indicate that the statute requires the forgoing of
Court No. 22-00170 Page 13
revenue that the recipient of the financial contribution would—not merely could—
otherwise owe the authority.
The statutory text and legislative history are consistent with this view. See
Gazelle v. Shulkin, 868 F.3d 1006, 1010 (Fed. Cir. 2017) (directing the court to examine
“the statute’s text, structure, and legislative history,” applying, if necessary, “the relevant
canons of interpretation”). The statute and the Statement of Administrative Action
accompanying the Uruguay Round Agreements Act provide nonexhaustive examples in
the form of tax credits or deductions from taxable income that operate to reduce the
amount of tax revenue a recipient would owe the authority. See 19 U.S.C.
§ 1677(f)(D)(ii); Uruguay Round Agreements Act, Statement of Administrative Action
(“SAA”), H.R. Doc. No. 103–316, vol. 1, at 912 (1994), reprinted in 1994 U.S.C.C.A.N.
4040, 4229. 16
Neither Commerce nor the Government 17 offer a contrary interpretation of the
phrase “is otherwise due” or specifically explain why the potential collection of
revenue—either from permits or penalties—fulfills this statutory requirement.
16
The SAA is the authoritative interpretation of the statute. 19 U.S.C. § 3512(d).
17
Cases cited by the Government for the statutory framework also do not suggest a
different interpretation. See Def.’s Resp. at 15–16 (citing Gov’t of Québec v. United
States, 46 CIT __, __, 567 F. Supp. 3d 1273, 1278 (2022); Essar Steel, Ltd. v. United
States, 29 CIT 1311, 1313, 395 F. Supp. 2d 1275, 1277 (2005)). Such cases address
financial contribution determinations analogous to the statutory examples. See Gov’t of
Québec, 567 F. Supp. 3d at 1296 (revenue forgone when the authority provided
“additional depreciation [thereby reducing the tax burden] for buildings used in
manufacturing by comparison to the rate applicable if the additional depreciation were
not claimed”); Essar Steel, 29 CIT at 1313, 395 F. Supp. 2d at 1277 (revenue forgone
when the authority provided credits to be used “for the future payment of import duties”).
Court No. 22-00170 Page 14
Commerce’s brief discussion of its decision in FEBs From Germany involving the
European Union Emissions Trading System (“EU ETS”) does not illuminate
Commerce’s statutory interpretation. 18 See I&D Mem. at 22 & nn.114–17 (discussing
Issues and Decision Mem. for Fluid End Blocks from Germany, C-428-848 (Dec. 7,
2020), Cmt. 10). 19
At oral argument, the court asked the parties to provide examples of prior
Commerce decisions, if they exist, in which the agency relied on the revenue forgone
provision when the authority provided something of value to a recipient (i.e., something
other than a tax credit or similar fiscal incentive). See Letter to Counsel (Aug. 31,
2023), ECF No. 50. The Government identified Hyundai Steel Co. v. United States
(“Hyundai Steel II”), Slip Op. 23-121, 2023 WL 5352235, at *1 (CIT Aug. 1, 2023), as
such an example. Oral Arg. 26:00–27:30. Nucor identified a Commerce decision
concerning silicon metal from Australia. Id. 32:00–34:03. 20
18
Commerce quoted from a portion of its FEBs From Germany decision in which the
agency analogized the EU ETS to a tax rebate system. See I&D Mem. at 22 n.114.
However, beyond declaring that in each situation “the government has forgone revenue
that would otherwise have been due,” Commerce does not explain precisely why the EU
ETS is analogous to a tax rebate system. See id. While the BGH I court sustained
Commerce’s financial contribution determination with respect to the EU ETS, 600 F.
Supp. at 1262–63, Hyundai Steel raises different arguments grounded in statutory
interpretation that the BGH I court did not have occasion to address and, in any case,
CIT opinions are not binding, see Algoma Steel Corp. v. United States, 865 F.2d 240,
243 (Fed. Cir. 1989).
19
Commerce’s decision memoranda are publicly available at https://access.trade.gov/
public/FRNoticesListLayout.aspx, with separate links for pre- and post-June 2021
memoranda.
20
Nucor did not provide a specific citation, but the court understands Nucor to refer to
the agency’s preliminary determination in the countervailing duty investigation
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While the relevant determinations were not subject to judicial review, 21 it appears
that the revenue the respective authorities declined to collect in each case would
otherwise have been due (owed) to the authority. In Hyundai Steel II, Commerce relied
on the revenue forgone provision when, following Hyundai Steel’s construction of port
facilities and subsequent transfer of port ownership to the Government of Korea, the
GOK assigned its right to collect port fees to Hyundai Steel. 2023 WL 5352235, at *3
(explaining that the port fees “would otherwise have been collected by the [Government
of Korea] absent the agreement between the parties”) (alteration in original). In Silicon
Metal From Australia, Simcoa, an electricity retailer, obtained certificates exempting it
from certain renewable energy liabilities and provided those certificates to Synergy, an
electricity provider and “authority” pursuant to the statute, that functioned as a credit on
Simcoa’s electricity account. Silicon Metal Prelim. Mem. at 10–11. Commerce found a
financial contribution in the form of reduced electricity payments from Simcoa to
Synergy. Id. at 11 (unchallenged in the final decision memorandum). Commerce’s
determinations in these two instances are more clearly reconcilable with the above
concerning silicon metal from Australia. See Prelim. Decision Mem. for Silicon Metal
from Australia, C-602-811 (Aug. 7, 2017) (“Silicon Metal Prelim. Mem.”).
21
The court’s opinion ordering the remand determination reviewed in Hyundai Steel II
made clear that Hyundai Steel’s challenge was limited to the benefit determination and
did not include the financial contribution or specificity determinations. See Hyundai
Steel Co. v. United States, 47 CIT __, __, 615 F. Supp. 3d 1351, 1354 (2023). In
another recent case involving the countervailability of port-usage fees, Hyundai Steel
likewise challenged only Commerce’s benefit determination. See Hyundai Steel Co. v.
United States, Slip Op. 23-142, 2023 WL 6240149, at *3–4 (CIT Sept. 26, 2023)
(ordering remand for further consideration of the issue). A review of the court’s docket
does not disclose litigation concerning Silicon Metal From Australia, nor did Nucor
provide such a citation.
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definitions of the term “due” in connection with enforceable payment obligations or
debts.
Commerce’s construction of the statute in this case might fare better if the statute
provided for a financial contribution in the form of revenue forgone without further
qualification, but by adding the phrase “that is otherwise due,” Congress added a
constraint for which Commerce must account. See United States v. Nordic Vill. Inc.,
503 U.S. 30, 36 (1992) (stating that courts must construe statutes “in such a fashion
that every word has some operative effect”). Because Commerce did not do so here,
the agency’s financial contribution determination is not in accordance with law. 22
Additionally, as a factual matter, 23 the full allocation provided by the K-ETS as
compared to the standard allocation does not meet the plain language of the revenue
22
Commerce’s interpretive approach (pursuant to which the potential forgoing of
revenue suffices for purposes of section 1677(5)(D)(iii)) is problematic because it could
subsume other provisions of the financial contribution statute. Because Commerce
considers money to be fungible for purposes of administering the countervailing duty
statute, see, e.g., Kiswok Indus. Pvt. v. United States, 28 CIT 774, 787 (2004) (“A cash
subsidy, regardless of its intended or actual use, frees up revenue, which in turn may be
applied for other purposes, and thus entails general benefit.”), Commerce could, in
theory, find that a grant, which typically falls under a different statutory provision,
constitutes revenue forgone to the extent that the grant money may be used to offset a
recipient’s tax liability. In such a case, the authority is forgoing revenue in an amount
equal to the amount of the grant, and such amount is potentially due to the authority
even if the grant is provided without regard to when (or if) the tax may be due. Given
that Commerce considers the KAUs to be market instruments, see I&D Mem. at 21, the
possibility that Commerce’s determination conflates otherwise distinct statutory
provisions bolsters the need for the agency to reconsider its interpretive approach.
23
The overall thrust of Commerce’s decision appears to rest on the agency’s conclusion
that the potential for collecting revenue fulfills the revenue forgone provision. See id. at
18 (recognizing that “the assistance provided by the additional three percent KAU
allocation is intended to cover potential liability owed by, not to, the respondent under
Court No. 22-00170 Page 17
forgone provision. While “the three percent allocation represents a value that the GOK
will no longer collect” because companies that receive the additional permits will not
have to purchase those permits from the GOK to cover their annual emissions (or obtain
them elsewhere), I&D Mem. at 22, the value embodied by those permits does not
represent revenue that, but for the permits being given to Hyundai Steel gratis, “is
otherwise due” to the GOK. K-ETS participants that receive the standard allocation do
not automatically incur any enforceable debt or financial obligation that recipients of the
full allocation avoid by reason of the additional allocation, all other things being equal.
Companies that receive the standard allocation might not incur any permit shortfall and,
if they do, they have various options to remedy the shortfall besides sending payment to
the GOK. See, e.g., Prelim. Mem. at 19. That the GOK might obtain revenue from the
sale of additional KAUs does not mean that the GOK has, in the case of companies like
Hyundai Steel, forgone revenue that “is otherwise due.” 24
the K-ETS program”) (emphasis added; other emphasis omitted); id. at 22 (noting that
“the GOK is providing something of value on which it could collect revenue” and that
without the additional allocation “the GOK would have retained the ability to collect the
three percent allocation from Hyundai Steel”) (emphasis added). However, after
recounting these scenarios, Commerce concluded that “the GOK has forgone revenue
otherwise due.” Id. (emphasis added). As a result of this conclusory reasoning, and as
discussed herein, the court is unable to find that substantial evidence supports
Commerce’s finding that the full allocation fulfills the plain meaning of the revenue
forgone provision.
24
Nucor’s argument that the additional allocation indirectly reduces the number of
permits that need to be purchased from the GOK because it relieves pressure on the
private permit market, see Nucor’s Resp. at 16, is not persuasive. Nucor identifies no
record evidence demonstrating that, but for the full allocation, additional private
purchases by companies otherwise eligible for the full allocation would require other,
companies to purchase permits from the GOK to avoid a penalty or that other sources
of permits (including those earned through offset projects) would be exhausted.
Court No. 22-00170 Page 18
Accordingly, Commerce’s determination with respect to financial contribution is
not in accordance with the law to the extent that it rests on an incorrect interpretation of
the statute and lacks substantial evidence to the extent that the full allocation does not
result in revenue forgone that is otherwise due. Thus, Commerce’s determination will
be remanded for Commerce to reconsider whether the full allocation constitutes a
financial contribution.
II. Benefit
“A benefit shall normally be treated as conferred where there is a benefit to the
recipient.” 19 U.S.C. § 1677(5)(E). As a practical matter, the statute provides rules to
guide Commerce’s benefit determination in the case of an equity infusion, loan, loan
guarantee, or the provision of a good or service, but these examples are not exhaustive.
See id. § 1677(5)(E)(i)–(iv). Commerce’s regulations also guide the agency’s
identification and measurement of a benefit. See 19 C.F.R. §§ 351.503–351.520. For
subsidy programs not specifically covered by Commerce’s regulations, Commerce
“normally will consider a benefit to be conferred where a firm pays less for its inputs
(e.g., money, a good, or a service) than it otherwise would pay in the absence of the
government program . . . .” Id. § 351.503(b)(1). When subsection (b)(1) does not apply,
Commerce “will determine whether a benefit is conferred by examining whether the
alleged program or practice has common or similar elements to the four illustrative
examples in [19 U.S.C. § 1677(5)(E)(i)–(iv)].” Id. § 351.503(b)(2).
For the Preliminary Results, Commerce relied on 19 C.F.R. § 351.503(b)(2) to
find a benefit “to the extent that the recipient is relieved of the obligation to purchase
Court No. 22-00170 Page 19
additional allowances.” Prelim. Mem. at 20. Hyundai Steel did not challenge
Commerce’s reliance on subsection (b)(2) but instead focused solely on Commerce’s
claimed failure to consider the burdens imposed by the K-ETS. See Hyundai Steel’s
Case Br. (Jan. 11, 2022) at 3–9, CR 120, PR 122, CJA Tab 19.
For the Final Results, Commerce found that the full allocation constituted a
benefit despite the costs incurred by Hyundai Steel to comply with K-ETS requirements.
I&D Mem. at 20. Commerce explained that “[a] subsidy that reduces a firm’s cost of
compliance remains a subsidy . . . even though the overall effect of the two government
actions, taken together, may leave the firm with higher costs.” Id. at 18 & n.94 (quoting
Countervailing Duties, 63 Fed. Reg. 65,348, 65,361 (Dep’t Commerce Nov. 25, 1998)
(final rule) (“Preamble”) (alterations in original). According to Commerce, “[t]he
[Preamble] describes a relevant example” as when “a government implements new
environmental restrictions that require a firm to purchase new equipment” and “[t]he
government then provides that firm with subsidies to purchase the new equipment” but
the subsidy “does not fully offset the cost of the equipment.” Id. at 18 & n.96 (citing
Preamble, 63 Fed. Reg. at 65,361).
A. Parties’ Contentions
Hyundai Steel contends that Commerce’s benefit determination is unlawful
insofar as Commerce “ignore[d] the immense burden this program places on companies
like Hyundai Steel” as compared to companies that are not subject to the K-ETS.
Hyundai’s Mem. at 20–21. Hyundai Steel cites Gov’t of Sri Lanka v. United States, 42
CIT __, __, 308 F. Supp. 3d 1373, 1380 (2018) (“GOSL”), to support its position. Id. at
Court No. 22-00170 Page 20
24, 27. Hyundai Steel also contends that Commerce failed to conduct the examination
required by 19 C.F.R. § 351.503(b)(2). Id. at 22.
The Government contends that Commerce need not consider “any related
‘burdens’ imposed on a firm” in connection with the subsidy program, “such as those
pertaining to compliance with certain environmental obligations.” Def.’s Resp. at 18;
see also id. at 19 (discussing BGH I, 600 F. Supp. 3d at 1264). Nucor contends that
Commerce explained its benefit determination pursuant to 19 C.F.R. § 351.503(b)(2)
when it concluded that “the recipient is relieved of the obligation to purchase additional
allowances.” Nucor’s Resp. at 18 (quoting Prelim. Mem. at 20; I&D Mem. at 24).25
B. Commerce Must Reconsider Its Determination of Benefit Consistent
with the Agency’s Reconsideration of Financial Contribution
Because Commerce must reconsider the legal basis, if any, for its financial
contribution determination, the agency may, if necessary, reconsider the regulatory
basis for its benefit determination. 26 For the sake of completeness, however, and
insofar as it may remain relevant to the matters addressed on remand, the court
25
Nucor also argues that Hyundai Steel received the additional permits for less than
adequate remuneration, Nucor’s Resp. at 18, but Commerce did not make a benefit
determination pursuant to 19 U.S.C. § 1677(5)(E)(iv).
26
Commerce’s regulations contain specific rules for measuring the benefits conferred
through various types of subsidy programs in addition to the catchall provision
Commerce relied on here. See 19 C.F.R. § 351.503(a), (b)(2). Thus, any change in
Commerce’s basis for finding a financial contribution may alter Commerce’s benefit
analysis, requiring application of a different regulation. Accordingly, the court need not
address Hyundai Steel’s challenge to the adequacy of Commerce’s explanation of its
reliance on 19 C.F.R. § 351.503(b)(2) at this time. See Hyundai’s Mem. at 22;
Hyundai’s Reply at 15.
Court No. 22-00170 Page 21
considers—and rejects—Hyundai Steel’s primary claim that Commerce impermissibly
ignored the burdens imposed by the K-ETS program.
The statute addresses the circumstances in which environmental compliance is
non-countervailable, and those circumstances are not present here nor does Hyundai
Steel claim that they are present. See 19 U.S.C. § 1677(5B)(D)(i) (governing
nonrecurring subsidies provided for “the adaptation of existing facilities to new
environmental requirements” that “result in greater constraints and financial burdens on
the recipient”). 27 Further, as Commerce explained, the Preamble expressly
contemplates the countervailability of subsidies that are intended to offset a firm’s cost
of complying with environmental restrictions. See I&D Mem. at 18 & n.93 (citing
Preamble, 63 Fed. Reg. at 65,361). 28 Hyundai Steel identifies no legal requirement for
Commerce to compare Hyundai Steel’s experience to that of other companies, foreign
27
The statute also lists permissible offsets from Commerce’s calculation of the gross
countervailable subsidy, see 19 U.S.C. § 1677(6), though Hyundai Steel does not argue
that any such offsets apply here, see Hyundai’s Mem. at 27.
28
Hyundai Steel argues that the Preamble’s discussion is inapposite because it relates
to input cost reductions, which was not the basis for Commerce’s decision here, and
because the Preamble refers to the imposition and the subsidization of the requirements
as “two separate actions,” whereas the “emissions caps allocated in the form of permits
here are the environmental restriction.” Hyundai’s Reply at 12. Those distinctions are
immaterial. There is no indication in the Preamble that the agency intended to constrain
its ability to find a benefit when a company ultimately incurs higher costs to only those
situations involving input cost effects. In fact, the reference to “two separate actions”
occurs with respect to an example in which a firm is required to purchase new
equipment to adapt its facilities and receives a subsidy to purchase “that new
equipment.” Preamble, 63 Fed. Reg. at 65,361. Additionally, statutory treatment of an
imposition and corresponding subsidization of compliance with that imposition “as two
separate actions” does not mean that Commerce cannot consider one aspect of a larger
government action to confer a benefit when other aspects of that same action may
result in higher overall costs. Id.
Court No. 22-00170 Page 22
or domestic, that do not incur similar compliance costs, nor is the court aware of any.
Cf. BGH I, 600 F. Supp. 3d at 1255 (rejecting a similar argument with the observation
that “[n]either the statute nor the regulations allow for such a comparison”).
Hyundai Steel’s reliance on GOSL to persuade the court otherwise is also
misplaced. There, the court remanded Commerce’s benefit determination when the
agency countervailed payments made by the Government of Sri Lanka (“GSL”)
reimbursing tire manufacturers/rubber buyers for payments made to rubber
smallholders. GOSL, 308 F. Supp. 3d at 1379–84. The program being examined in
that case involved an above-market “guaranteed price” to smallholders that rubber
buyers were required to pay, subject to reimbursement by the GSL for any difference
between the “market price” and the “guaranteed price,” i.e., the value of the guarantee
to the smallholders. Id. at 1379–80. The court concluded that Commerce erred in
ignoring evidence that the rubber buyers had effectively extended “interest-free loans”
to the GSL such that the “reimbursement payments” at issue were not properly
considered a benefit. Id. at 1382.
GOSL is inapposite. There, the court faulted Commerce for disregarding
evidence demonstrating that the payments at issue did not meet the statutory or
regulatory criteria for finding a benefit; the court was not concerned with whether related
burdens from complying with a program that otherwise conferred a benefit undermined
any such finding. See id. at 1381–84. Hyundai Steel’s emphasis on contextualizing any
benefit within a governmental action’s overall burden stretches the GOSL court’s
holding too far and overlooks that Commerce routinely countervails benefits that reduce
Court No. 22-00170 Page 23
otherwise greater liabilities. See, e.g., 19 C.F.R. § 351.509(a) (in the case of tax
credits, stating that “a benefit exists to the extent that the tax paid by a firm as a result of
the program is less than the tax the firm would have paid in the absence of the
program”) (emphases added). The absence of any limiting principle to Hyundai Steel’s
characterization of GOSL is another reason to reject the argument. Accordingly, the
court will sustain this aspect of Commerce’s benefit determination and will defer
addressing any remaining benefit arguments pending the agency’s redetermination on
remand.
III. Specificity
Domestic subsidies 29 may be specific as a matter of law (de jure specific) or as a
matter of fact (de facto specific). 19 U.S.C. § 1677(5A)(D). Commerce concluded that
the distribution of the full allocation of emissions permits pursuant to the K-ETS is de
jure specific. I&D Mem. at 22.
The statute provides that a “subsidy is specific as a matter of law” when “the
authority providing the subsidy, or the legislation pursuant to which the authority
operates, expressly limits access to the subsidy to an enterprise or industry.” 19 U.S.C.
§ 1677(5A)(D)(i). 30 Pursuant to the statutory safe harbor provision, however, a subsidy
is not de jure specific when “the authority providing the subsidy, or the legislation
29
In addition to domestic subsidies, the statute defines import substitution subsidies and
export subsidies as per se specific, neither of which are relevant here. 19 U.S.C.
§ 1677(5A)(B),(C).
30
For purposes of subsection (5A), “any reference to an enterprise or industry is a
reference to a foreign enterprise or foreign industry and includes a group of such
enterprises or industries.” Id. § 1677(5A).
Court No. 22-00170 Page 24
pursuant to which the authority operates, establishes objective criteria or conditions
governing the eligibility for, and the amount of, a subsidy.” Id. § 1677(5A)(D)(ii). 31
“[T]he term ‘objective criteria or conditions’ means criteria or conditions that are neutral
and that do not favor one enterprise or industry over another.” Id. § 1677(5A)(D).
“Neutral in this context means economic in nature and horizontal in application, such as
the number of employees or the size of the enterprise.” BGH I, 600 F. Supp. 3d at 1255
(citing SAA at 930, 1994 U.S.C.C.A.N. at 4243).
Commerce found that the AAGEP and the Enforcement Decree “establish
criteria” that “result in an express statutory limitation on which industries qualify for the
additional allocation by setting thresholds that industries must meet.” I&D Mem. at 23.
While Commerce acknowledged that “the rules do not name specific industries,”
Commerce considered the governing documents sufficiently determinative for purposes
of section 1677(5A)(D)(i) because they “establish that some industries may benefit from
the additional assistance in the form of the allocation of additional KAUs, while others
do not.” Id. In addition to establishing “explicit limitations,” Commerce found that the
enumerated criteria are “not objective” for purposes of the safe harbor provision in
section 1677(5A)(D)(ii). Id.
31
For a subsidy to avoid a specificity finding, subsection (ii) further requires that “(I)
eligibility is automatic, (II) the criteria or conditions for eligibility are strictly followed, and
(III) the criteria or conditions are clearly set forth in the relevant statute, regulation, or
other official document so as to be capable of verification.” Id. § 1677(5A)(D)(ii). Such
requirements are not at issue here.
Court No. 22-00170 Page 25
A. Parties’ Contentions
Hyundai Steel contends that the relevant provisions of the AAGEP and the
Enforcement Decree are not de jure specific because they do not “explicitly limit” the full
allocation “to a specific enterprise or industry.” Hyundai’s Mem. at 29 (citing Asociación
de Exportadores e Industriales de Aceitunas de Mesa v. United States, 45 CIT __, __,
523 F. Supp. 3d 1393 (2021) (“Asemesa”)). Hyundai Steel further contends that
Commerce provided no explanation for its finding pursuant to section 1677(5A)(D)(ii).
Id. at 34.
The Government contends that Asemesa is factually distinguishable. Def.’s
Resp. at 21–22. For the Government, it is enough that the AAGEP and the
Enforcement Decree “establish that specific types of industries may benefit from the
additional assistance . . . while others do not.” Id. at 22–23. The Government further
contends that the safe harbor provision does not apply because the criteria “clearly
favor industries in trade-intensive or high production cost sectors.” Id. at 23. The
Government analogizes Commerce’s specificity finding to the agency’s determination
sustained in connection with the EU ETS in BGH I. See id. at 24. Nucor advances
similar arguments. See Nucor’s Resp. at 19. 32
32
Nucor raises additional arguments concerning the subsectors that qualified for the full
allocation in an effort to demonstrate specificity. Nucor’s Resp. at 20 (discussing GOK’s
NSA Resp., Exs. CEP-7, CEP-8). Commerce did not explicitly rely on, or otherwise
discuss, the facts contained in these exhibits and, therefore, the court need not further
discuss Nucor’s arguments. See Burlington Truck Lines, Inc. v. United States, 371 U.S.
156, 168–69 (1962) (explaining that the court may only sustain Commerce’s decision
“on the same basis articulated in the order by the agency itself” and not on the basis of
“counsel’s post hoc rationalizations”).
Court No. 22-00170 Page 26
Hyundai Steel replies that the Government’s attempt to distinguish the facts of
Asemesa is misplaced because the court’s holding nevertheless applies. Hyundai’s
Reply at 17. Hyundai Steel further asserts that the BGH I court’s specificity holding with
respect to the EU ETS program is distinguishable and that the court’s holding with
respect to a different subsidy program is more persuasive. Id. at 19–20. 33
B. Commerce Must Reconsider or Further Explain the Agency’s Specificity
Finding
For a subsidy to be specific pursuant to section1677(5A)(D)(i), the authority or
the implementing legislation must “expressly limit[] access to the subsidy to an
enterprise or industry,” 19 U.S.C. § 1677(5A)(D)(i), or a “a group of such enterprises or
industries.,” id. § 1677(5A). The court has interpreted the statute to mean “that a
subsidy is de jure specific when the authority providing the subsidy, or its operating
legislation, directly, firmly, or explicitly assigns limits to or restricts the bounds of a
particular subsidy to a given enterprise or industry,” Asemesa, 523 F. Supp. 3d at 1403
(stating that “[t]here is no ambiguity in this reading”), or in other words, when the
33
Hyundai Steel relies on the BGH I court’s discussion of the KAV program, pursuant to
which benefits were limited “to special contract customers whose average price per
[kilowatt hour (“kWh”)] in the calendar year is lower than the average revenue per kWh
from the supply of electricity to all special contract customers.” 600 F. Supp. 3d at
1269. The court remanded Commerce’s determination for further explanation or
reconsideration. Id. Commerce subsequently provided additional explanation to
support its specificity finding, and the court again remanded. BGH Edelstahl Siegen
GmbH v. United States (“BGH II”), 47 CIT __, __, 639 F. Supp. 3d 1237, 1244 (2023).
The BGH II court reasoned that the criteria governing the KAV program “do not
expressly limit the program’s application to specific enterprises or industries” and
Commerce had not “explain[ed] how the program’s criteria are neither economic in
nature nor horizontal in application.” Id.
Court No. 22-00170 Page 27
program is limited “to specifically named enterprises or industries or group of
enterprises or industries,” BGH II, 639 F. Supp. 3d at 1244. Nonuniform treatment
across the economy is not enough; instead, the authority or its implementation
legislation must “explicit[ly] restrict[]” the “benefits to a specific enterprise or industry.”
Asemesa, 523 F. Supp. 3d at 1403.
Commerce does not offer a convincing explanation for why the “international
trade intensity” or “production cost” criteria governing the full allocation establish de jure
specificity pursuant to section 1677(5A)(D)(i). See I&D Mem. at 23 (expressing
disagreement with Hyundai Steel’s reliance on Asemesa without directly addressing the
court’s opinion). 34 Commerce’s observation that “some industries may benefit from the
additional assistance in the form of the allocation of additional KAUs, while others do
not,” I&D Mem. at 23, merely reflects the truism that not all industries will “qualif[y] under
the criteria,” BGH II, 639 F. Supp. 3d at 1244. While the statute “does not attempt to
provide a precise mathematical formula for determining when the number of enterprises
or industries eligible for a subsidy is sufficiently small so as to properly be considered
specific,” SAA at 930, 1994 U.S.C.C.A.N. at 4243, Commerce did not make any findings
regarding the nature of the eligibility criteria that supported the de jure specificity finding.
Rather, Commerce relied on the existence of the criteria per se to establish specificity.
34
Commerce’s determination suggests that a subsidy would be de jure specific
pursuant to section 1677(5A)(D)(i) whenever an authority sets eligibility criteria that
operate to exclude certain industries from receiving a benefit. See I&D Mem. at 23.
Commerce does not explain why the statute plainly allows for such a broad
interpretation or why the agency’s interpretation represents a permissible construction
of ambiguous language. See id.
Court No. 22-00170 Page 28
See I&D Mem. at 23. But cf. Taizhou United Imp. & Exp. Co. v. United States, 44 CIT
__, __, 475 F. Supp. 3d 1305, 1315 (2020) (sustaining Commerce’s de jure specificity
finding when “eight specified industries” qualified for a subsidy that was “limited as a
matter of law to certain new and high technology companies”) (emphases added).
However, the existence of criteria alone, and absent any analysis of those criteria, is not
enough to demonstrate an explicit limitation to an enterprise or industry or group
thereof. See 19 U.S.C. § 1677(5A)(D)(i). 35
Commerce’s application of section 1677(5A)(D)(ii) does not save the agency’s
determination. Commerce merely declared that “the AAGEP and implementing rules . .
. are not objective criteria or conditions,” I&D Mem. at 23, but did not provide the
explanation necessary to support its decision. Commerce did not explain why the
criteria inherently favor a given enterprise or industry or address whether the criteria are
economic in nature or horizontal in application. See id.; SAA at 930, 1994 U.S.C.C.A.N.
at 4243; cf., e.g., NMB Sing. Ltd. v. United States, 557 F.3d 1316, 1319 (Fed. Cir. 2009)
(“Commerce must explain the basis for its decisions; while its explanations do not have
to be perfect, the path of Commerce's decision must be reasonably discernable to a
35
The BGH I court’s decision with respect to the EU ETS is factually distinguishable to
the extent that the court relied on Commerce’s finding that eligibility for the EU ETS is
“limited by law to the companies on the carbon leakage list.” 600 F. Supp. 3d at 1264.
Furthermore, Commerce did not analogize this aspect of its decision in FEBs From
Germany to the facts underlying this case.
Court No. 22-00170 Page 29
reviewing court.”). 36 Accordingly, Commerce must reconsider or further explain its
finding of de jure specificity.
CONCLUSION AND ORDER
In accordance with the foregoing, it is hereby
ORDERED that Commerce’s Final Results are remanded for further explanation
or reconsideration consistent with this opinion with respect to the agency’s
determination that the full allocation pursuant to the K-ETS constitutes a countervailable
subsidy; it is further
ORDERED that Commerce shall file its remand redetermination on or before
January 5, 2024; it is further
ORDERED that subsequent proceedings shall be governed by USCIT Rule
56.2(h); and it is further
36
During oral argument, Nucor averred that Commerce’s rationale for finding de jure
specificity is discernable through the agency’s citations to record documents in
footnotes 120 and 121 of the Issues and Decision Memorandum. Oral Arg. 2:07:00–
2:08:20. Those footnotes contain citations to the AAGEP and the Enforcement Decree
in their entirety and to specified pages of the GOK’s case brief to the agency. See I&D
Mem. at 23 nn.120–21 (citing GOK’s NSA Resp., Ex. CEP-1, and Case Br. of the [GOK]
(Jan. 11, 2022) at 8–9, CR 119, PR 121, CJA Tab 18). While these citations
substantiate the fact that not all industries qualify for the full allocation (and the GOK’s
view that Commerce reached an incorrect preliminary determination on specificity), the
court is unable to discern Commerce’s rationale for connecting these facts found to the
choice made. See, e.g., Burlington Truck Lines, 371 U.S. at 168.
Court No. 22-00170 Page 30
ORDERED that any comments or responsive comments must not exceed 4,000
words.
/s/ Mark A. Barnett
Mark A. Barnett, Chief Judge
Dated: September 29, 2023
New York, New York