US Says Commerce Right to Refuse, for Third Time, to Investigate Off-Peak Korean Energy Pricing

For the third time, the U.S. supported the Commerce Department’s redetermination on remand in which it refused to look into South Korea’s provision of off-peak electricity at lower prices (see 2304260018) (Nucor Corp. v. U.S., CIT # 21-00182).

Court of International Trade Judge Mark Barnett has now thrice remanded the department’s refusal to investigate the alleged subsidy (see 2404290036), 2309050074 and 2210130077). Barnett has pointed out that the evidentiary threshold a petition must meet is purposefully low. Commerce continued to show reluctance in its third remand redetermination, pointing out that the U.S. Court of Appeals for the Federal Circuit has found that the state-owned power company, Korea Electric Power Corporation, or KEPCO, operates its off-peak power program in line with market principles (see 2408160038).

The department is right to do so, the U.S. said in its brief.

It said that, despite the arguments raised by petitioner Nucor, the department correctly found that KEPCO received adequate remuneration for its provision of off-peak energy at reduced prices.

To do so, it said, Commerce conducted a “tier III” analysis of the program to determine whether it operates in line with market principles, considering prevailing market conditions.

Nucor is wrong to claim that Commerce’s requirement to consider prevailing market conditions is “merely” a guideline (see 2410010046), the government said. And the petitioner wrongly draws a distinction between “market principles” and “prevailing market conditions,” it said.

“Nucor’s argument that these two concepts are distinct, and therefore, that Commerce should have ignored the overarching context of the Korean electricity system’s design when reviewing its allegation, is illogical,” it said.

It denied that Commerce refuses to examine time of use electricity systems. Rather, petitions must show how such systems aren’t consistent with market principles, it said.

The government also agreed with Commerce that the “only other basis for alleging a benefit” that was raised by Nucor had been untimely. The petitioner sought a completely different benefit analysis based on evidence submitted after the deadline, the U.S. said, and only claimed it to be timely based on “a single footnote citation to Nucor’s Form 20-F in its supplemental questionnaire response.”