Slip Op. 23-98
UNITED STATES COURT OF INTERNATIONAL TRADE
KG DONGBU STEEL CO., LTD., DONGBU STEEL CO., LTD., AND DONGBU INCHEON STEEL CO., LTD.,
Plaintiffs,
v. Before: Jennifer Choe-Groves, Judge UNITED STATES, Court No. 22-00047 Defendant,
and
NUCOR CORPORATION AND STEEL DYNAMICS, INC.,
Defendant-Intervenors.
OPINION AND ORDER
[Remanding the final determination of the U.S. Department of Commerce in the countervailing duty review of certain corrosion-resistant steel products from the Republic of Korea.]
Dated: July 7, 2023
Brady W. Mills, Donald B. Cameron, Julie C. Mendoza, R. Will Planert, Mary S. Hodgins, Eugene Degnan, Edward J. Thomas, III, Jordan L. Fleischer, and Nicholas C. Duffey, Morris, Manning & Martin, LLP, of Washington, D.C., for Plaintiffs KG Dongbu Steel Co., Ltd., Dongbu Steel Co., Ltd., and Dongbu Incheon Steel Co., Ltd. Court No. 22-00047 Page 2
Claudia Burke, Assistant Director, Elizabeth Speck, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C. With them on the brief were Brian M. Boynton, Principal Deputy Assistant Attorney General, and Patricia M. McCarthy, Director. Of Counsel on the brief was Ayat Mujais, Attorney, Office of the Chief Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce, of Washington, D.C.
Alan H. Price, Christopher B. Weld, Tessa V. Capeloto, and Adam M. Teslik, Wiley Rein LLP, of Washington, D.C., for Defendant-Intervenor Nucor Corporation.
Jeffrey D. Gerrish, Roger B. Schagrin, and Saad Y. Chalchal, Schagrin Associates, of Washington, D.C., for Defendant-Intervenor Steel Dynamics, Inc.
Choe-Groves, Judge: Plaintiffs KG Dongbu Steel Co., Ltd., Dongbu Steel
Co., Ltd., and Dongbu Incheon Steel Co., Ltd. (collectively, “KG Dongbu” or
“Plaintiffs”) challenge the U.S. Department of Commerce’s (“Commerce”) Certain
Corrosion-Resistant Steel Products From the Republic of Korea: Final Results and
Partial Rescission of Countervailing Duty Administrative Review; 2019. Compl.,
ECF No. 12; Certain Corrosion-Resistant Steel Products From the Republic of
Korea (“Final Results”), 87 Fed. Reg. 2759 (Dep’t of Commerce Jan. 19, 2022)
(final results and partial rescission of countervailing duty administrative review;
2019); see also Issues and Decision Memorandum for the Final Results and Partial
Rescission of the 2019 Administrative Review of the Countervailing Duty Order Court No. 22-00047 Page 3
on Certain Corrosion-Resistant Steel Products from the Republic of Korea (“Final
IDM”), PR 213.1
KG Dongbu challenges: (1) Commerce’s determination that the first through
third debt-to-equity restructurings provided a countervailable subsidy;
(2) Commerce’s determination that the benefits from KG Dongbu’s debt-to-equity
restructurings that Commerce first found countervailable in Certain Corrosion-
Resistant Steel Products From the Republic of Korea (“Preliminary Results”), 86
Fed. Reg. 37,740 (Dep’t of Commerce July 16, 2021) (preliminary results of
countervailing duty administrative review, 2019) passed through to KG Dongbu
despite the change in ownership during the 2019 period of review; (3) Commerce’s
calculation of the uncreditworthiness benchmark for purposes of measuring the
benefit from KG Dongbu’s restructured long term loans and bonds; and
(4) Commerce’s calculation of the unequityworthy discount rate for purposes of
measuring the benefits from the equity infusions from government-controlled
creditors. Pls.’ Mot. J. Agency R. and Mem. Supp. (“Pls.’ Br.”), ECF Nos. 33, 34;
Pls.’ Reply Br. Supp. Mot. J. Agency R. (“Pls.’ Reply Br.”), ECF Nos. 40, 41.
Defendant United States (“Defendant”) and Defendant-Intervenor Nucor
Corporation (“Nucor”) argue that the Court should sustain the Final Results.
1 Citations to the administrative record reflect the public administrative record (“PR”) document numbers. ECF No. 44. Court No. 22-00047 Page 4
Def.’s Resp. Br. Pl.’s Mot. J. Agency R. (“Def.’s Resp. Br.”), ECF Nos. 35, 36;
Def.-Interv.’s Resp. Mot. J. Agency R. (“Def.-Interv.’s Resp. Br.”), ECF Nos. 37,
38, 39. For the reasons discussed below, the Court remands Commerce’s Final
Results.
ISSUES PRESENTED
The Court reviews the following issues:
1. Whether Commerce’s determination that the first through third
debt-to-equity restructurings provided a countervailable benefit to
KG Dongbu is supported by substantial evidence and in
accordance with the law;
2. Whether Commerce’s determination that the benefits from the
debt-to-equity restructurings passed through to KG Dongbu despite
the change in ownership is supported by substantial evidence;
3. Whether Commerce’s calculations of the uncreditworthy
benchmark rate are supported by substantial evidence; and
4. Whether Commerce’s calculations of the unequityworthy discount
rate are supported by substantial evidence.
PROCEDURAL HISTORY
Commerce published its countervailing duty order in the Federal Register.
Certain Corrosion-Resistant Steel Products From India, Italy, Republic of Korea Court No. 22-00047 Page 5
and the People’s Republic of China, 81 Fed. Reg. 48,387 (Dep’t of Commerce July
25, 2016) (countervailing duty order). Commerce initiated an administrative
review of the countervailing duty order on certain corrosion-resistant steel products
from Korea for the period of January 1, 2019, to December 31, 2019, selecting KG
Dongbu and Hyundai Steel Company (“Hyundai Steel”) as mandatory respondents.
Initiation of Antidumping and Countervailing Duty Administrative Reviews, 85
Fed. Reg. 54,983, 54,990–91 (Dep’t of Commerce Sept. 3, 2020).
Commerce issued the Preliminary Results of the administrative review.
Preliminary Results, 86 Fed. Reg. 37,740; Decision Memorandum for the
Preliminary Results of the Countervailing Duty Administrative Review; 2019:
Certain Corrosion-Resistant Steel Products from the Republic of Korea,” (June 12,
2021), PR 173. Commerce issued the Final Results of the administrative review.
Final Results, 87 Fed. Reg. 2759; Final IDM.
JURISDICTION AND STANDARD OF REVIEW
The U.S. Court of International Trade has jurisdiction pursuant to 19 U.S.C.
§ 1516a(a)(2)(B)(iii) and 28 U.S.C. § 1581(c), which grant the Court authority to
review actions contesting the final results of an administrative review of a
countervailing duty order. The Court shall hold unlawful any determination found
to be unsupported by substantial evidence on the record or otherwise not in
accordance with the law. 19 U.S.C. § 1516a(b)(1)(B)(i). Court No. 22-00047 Page 6
DISCUSSION
I. Countervailable Subsidy Overview
A countervailable subsidy exists when a foreign government provides a
financial contribution to a specific industry that confers a benefit upon a recipient
within the industry. 19 U.S.C. § 1677(5); see also Fine Furniture (Shanghai) Ltd.
v. United States, 748 F.3d 1365, 1369 (Fed. Cir. 2014). For equity infusions, a
benefit is conferred if “the investment decision is inconsistent with the usual
investment practice of private investors, including the practice regarding the
provision of risk capital, in the country in which the equity infusion is made.” 19
U.S.C. § 1677(5)(E)(i); see also 19 C.F.R. § 351.507(a)(1) (defining a benefit for
equity infusions).
Commerce considers an equity infusion to be inconsistent with usual
investment practice if the price paid by the government for newly issued shares is
greater than the price paid by private investors for the same (or similar form of)
newly issued shares. 19 C.F.R. § 351.507(a)(2)(i). Commerce does not consider
private sector investor prices if Commerce concludes that private investor
purchases of newly issued shares are not significant. Id. § 351.507(a)(2)(iii).
When significant private sector participation does not exist, Commerce determines
whether the firm funded by the government-provided equity is equityworthy or
unequityworthy at the time of the equity infusion. Id. § 351.507(a)(3). A Court No. 22-00047 Page 7
determination that the firm is unequityworthy constitutes a determination that the
equity infusion is inconsistent with the usual investment practice of private
investors, and therefore, that a benefit to the firm exists in the amount of the equity
infusion. Id.; see also id. § 351.507(a)(6).
Commerce considers a firm to be equityworthy if Commerce determines
that, from the perspective of a reasonable private investor examining the firm at the
time the government-provided equity infusion took place, the firm showed an
ability to generate a reasonable rate of return within a reasonable period of time.
Id. § 351.507(a)(4)(i). In making this determination, Commerce considers the
following factors: (A) an objective analysis of the future financial prospects of the
recipient firm, (B) current and past indicators of the recipient firm’s financial
health, (C) rates of return on equity in the three years prior to the government
equity infusion, and (D) private investor equity investment into the recipient firm.
Id. § 351.507(a)(4)(i)(A)–(D). Commerce may focus on the equityworthiness of a
specific project, in appropriate circumstances, rather than the company as a whole.
Id. § 305.507(a)(4)(i). Court No. 22-00047 Page 8
II. First Through Third Debt-to-Equity Restructurings
A. Whether Commerce’s Determination is in Accordance with the Law
Plaintiffs argue that Commerce’s determination that the first through third
debt-to-equity restructurings provided a countervailable subsidy to KG Dongbu is
not in accordance with the law because Commerce has an established practice for
determining whether debt-to-equity restructurings provide a countervailable
subsidy, but Commerce ignored that practice and failed to provide a reasonable
explanation for departing from its established practice. Pls.’ Br. at 15–20.
Defendant defends Commerce’s determination and argues that “the majority of
Commerce’s argument in [the case cited by Plaintiffs to establish Commerce’s
alleged established practice] turned on the fact that the plaintiff . . . failed to
exhaust its administrative remedies with respect to whether the private investors’
participation and share were significant.” Def.’s Resp. Br. at 16.
If Commerce has a routine practice for addressing similar situations, it must
either apply that practice or provide a reasonable explanation regarding why
Commerce has deviated from that practice. See SKF USA, Inc. v. United States,
263 F.3d 1369, 1382 (Fed. Cir. 2001) (“An agency action is arbitrary when the
agency offers insufficient reasons for treating similar situations differently.”); see
also M.M. & P. Mar. Advancement, Training, Educ. & Safety Program v. Dep’t of Court No. 22-00047 Page 9
Commerce, 729 F.2d 748, 755 (Fed. Cir. 1984) (“An agency is obligated to follow
precedent, and if it chooses to change, it must explain why.”); see also Cinsa, S.A.
de C.V. v. United States, 21 CIT 341, 349, 966 F. Supp. 1230, 1238 (1997)
(“Commerce can reach different determinations in separate administrative reviews
but it must employ the same methodology or give reasons for changing its
practice.”).
First, the Court finds that Commerce has a standard practice regarding not
reexamining the countervailability of Dongbu Steel’s equity infusions. There were
three separate debt-to-equity restructurings prior to the contested review, in
February 2015, May 2016, and April 2018. See Certain Corrosion-Resistant Steel
Products from the Republic of Korea, Case No. C-580-879: Dongbu’s Initial
Questionnaire Response (Dec. 3, 2020) (“KG Dongbu’s IQR”) at 40–46, PR 74–
78. Commerce determined previously that no countervailable subsidy existed in
each of the three previous debt-to-equity restructurings. Final IDM at 46–47. In
Certain Corrosion-Resistant Steel Products From the Republic of Korea (“CORE
2018 Final Results”), 86 Fed. Reg. 29,237 (Dep’t of Commerce June 1, 2021)
(final results and partial rescission of countervailing duty administrative review;
2018) and accompanying Issues and Decision Memorandum, Commerce
determined that the same debt-to-equity restructurings currently under review
provided no countervailable benefit. Id. at 29,238. As KG Dongbu highlights, Court No. 22-00047 Page 10
“the facts on the record regarding the first three [debt-to-equity restructurings]
were also on the record in the [CORE 2018 Final Results], except for documents
related to the third [debt-to-equity restructuring] that occurred in 2018, were also
on the record of the CORE 2015–2016 and 2017 Reviews.” Pls.’ Br. at 16.
The Court notes that Commerce reviewed the same debt-to-equity
restructurings as in previous reviews, though resulting in a different outcome here.
Compare Certain Corrosion-Resistant Steel Products From the Republic of Korea,
84 Fed. Reg. 11,749, 11,750 (Dep’t of Commerce Mar. 28, 2019) (final results and
partial rescission of countervailing duty administrative review; 2015–2016) and
accompanying Issues and Decision Memorandum, and Certain Corrosion-Resistant
Steel Products From the Republic of Korea, 85 Fed. Reg. 15,112, 15,113 (Dep’t of
Commerce Mar. 17, 2020) (final results of countervailing duty administrative
review; 2017) and accompanying Issues and Decision Memorandum, with Final
Results, 87 Fed. Reg. at 2760, and Final IDM at 54. Significantly, the Court
observes that Commerce’s standard countervailing duty questionnaire language
explicitly states that “[a]bsent new information warranting a program
reexamination, [Commerce] will not reevaluate prior determinations regarding the
countervailability of programs.” Administrative Review of Certain Corrosion-
Resistant Steel Products from the Republic of Korea: Countervailing Duty
Questionnaire (Oct. 6, 2020) at II-1, PR 22–23 (emphasis added). Based on these Court No. 22-00047 Page 11
facts and the prior three debt-to-equity restructurings in February 2015, May 2016,
and April 2018, the Court concludes that Commerce has a standard practice of not
reexamining the countervailability of Plaintiffs’ equity infusions absent new
information.
Second, in order to depart from Commerce’s routine practice, Commerce
must provide a reasonable explanation. SKF USA, Inc., 263 F.3d at 1382. The
Court observes that Commerce has neither provided a sufficient explanation nor
cited new information on the record that relates to whether the first three debt-to-
equity restructurings provided a countervailable benefit. Instead, as justification
for Commerce’s decision to evaluate the first three debt-to-equity restructurings
anew, Commerce cited evidence based on the fourth debt-to-equity restructuring,
treating each debt-to-equity restructuring as part of one ongoing transaction rather
than four separate, independent transactions. In the Final IDM, addressing KG
Dongbu’s argument that Commerce departed from its established practice by
reexamining its prior determinations with respect to the first three debt-to-equity
restructurings, Commerce reasoned that “Commerce’s benefit determinations in
each segment of a proceeding stand on their own and are made on a fact-specific
basis.” Final IDM at 46 (citing Hyundai Steel Co. v. United States, 42 CIT __, __,
319 F. Supp. 3d 1327, 1342 n.13 (2018)). Commerce explained that it reexamines
findings of financial contribution and specificity made in a prior segment of the Court No. 22-00047 Page 12
same proceeding when new evidence necessitates reexamination. Id. at 46. As
justification for Commerce’s decision to reevaluate its prior determinations,
Commerce noted that:
While the record evidence shows that private creditors accounted for the same debt-to-equity conversion amounts as in the prior reviews, we cannot rely on this fact alone to assess whether KG Dongbu was equityworthy between 2014 and 2018. This is because in the instant review, unlike in the prior reviews, there were private investors independent from the creditors’ committee involved in the fourth equity infusion during the 2019 [period of review]. This inclusion of private investors was a factual change from prior reviews that led us to reconsider the role [Korean Development Bank] played in its control of the creditors’ committee.
Id. at 47. KG Dongbu argues, however, that the record evidence is not new, and is
the same evidence considered by Commerce in the first three debt-to-equity
restructuring determinations. Pls.’ Br. at 15–20. The Court notes that the record
evidence cited by Commerce as justification for its deviation from its past practice
does not deal directly with the first through third debt-to-equity restructurings and
is not a sufficient explanation to justify departing from its standard practice. See
Final IDM at 47 (citing KG Dongbu’s IQR at 44); see also KG Dongbu’s IQR at
44 (discussing new private investors involved in the fourth debt-to-equity
restructuring as a factual distinction from the first three debt-to-equity
restructurings). Instead, Defendant justifies Commerce’s determination by arguing
that Plaintiff seeks to “decontextualize the various rounds of the restructuring Court No. 22-00047 Page 13
program[,]” Def.-Interv.’s Resp. Br. at 16, not by citing new evidence about the
first through third debt-to-equity restructurings that came to light after Commerce
had made prior determinations regarding the first through third debt-to-equity
restructurings.
Because Commerce failed to provide an adequate explanation for its
decision to deviate from its prior determinations, the Court concludes that
Commerce’s determination is arbitrary and not in accordance with the law. The
Court remands Commerce’s determination that the first through third debt-to-
equity restructurings provided a countervailable subsidy to KG Dongbu for
reconsideration or further explanation.
B. Whether Commerce’s Determination is Supported by Substantial Evidence
Plaintiffs argue that Commerce’s determination to treat the first through
third debt-to-equity restructurings as countervailable subsidies to KG Dongbu is
not supported by substantial evidence. Pls.’ Br. at 23–29. Because the Court is
remanding Commerce’s determination as not in accordance with the law, the Court
also remands the issue for consideration of whether Commerce’s determination is
supported by substantial evidence. Court No. 22-00047 Page 14
III. Whether Commerce’s Determination Regarding Debt-to-Equity Restructuring Benefits Pass Through is Supported by Substantial Evidence
Plaintiffs argue that Dongbu properly declined to submit a response to
Commerce’s Change-in-Ownership Appendix with its initial questionnaire
response because Commerce had not found that any non-recurring subsidies
provided benefits to Dongbu at that time. Id. at 29. Plaintiffs contend that “record
evidence demonstrates that Dongbu’s change in ownership occurred at arm’s
length and for fair market value such that any alleged subsidies from the first
through third [debt-to-equity restructurings] were extinguished[,]” therefore, “even
if the Court finds that Commerce’s disregard of its prior practice is lawful, the
record shows that any benefits associated with the [debt-to-equity restructurings]
did not pass through to KG Dongbu Steel[,]” but were instead “extinguished by the
arm’s-length purchase of Dongbu by the KG Consortium.” Id. Defendant asserts
that Commerce presumes that a non-recurring subsidy benefits a recipient “over
the average useful life of the relevant assets[.]” Def.’s Resp. Br. at 19. Defendant
argues that a respondent may rebut this presumption by proving that a change in
ownership occurred in which the previous owner sold all or substantially all of a
company or its assets in an arm’s length sale for fair market value. Id. at 19–20.
As noted above, the Court is remanding Commerce’s determination as not in
accordance with the law based on Commerce’s arbitrary departure from prior Court No. 22-00047 Page 15
practice without sufficient explanation. On remand, Commerce may reconsider the
record with respect to whether KG Dongbu received any countervailable subsidies;
therefore, the Court also remands this issue for Commerce to reconsider whether
substantial evidence supports a determination that any change in ownership
occurred at arm’s length and for fair market value that extinguished any alleged
subsidies from the first through third debt-to-equity restructurings to KG Dongbu.
IV. Whether Commerce’s Uncreditworthy Benchmark Rate Determination is Supported by Substantial Evidence
Plaintiffs contend that Commerce incorrectly applied the formula for
calculating the uncreditworthy benchmark rate. Pls.’ Br. at 36. Plaintiffs assert
that KG Dongbu’s outstanding long-term loans and bonds were restructured during
the period of review, thus creating “new” loans and bonds with a term of six years.
Id. Plaintiffs argue, however, that Commerce’s calculation of the benefit from the
“new” loans that were restructured during the period of review used an incorrect
three-year interest rate to measure the countervailable loans and bonds. Id. at 36–
37.
Defendant asserts that Commerce correctly applied its regulations regarding
the uncreditworthy discount rate and calculated the rate based upon evidence on
the record. Def.’s Resp. Br. at 23. Defendant argues that Commerce used a
correct three-year interest rate as the long-term interest rate paid because no other Court No. 22-00047 Page 16
interest rates were available. Id. at 24; see Final IDM at 58. Commerce
determined that it could not use the six-year interest rate paid by a credit-worthy
company because there was no information on the record regarding any six-year
interest rate paid by a credit-worthy company. Final IDM at 58. Plaintiffs contend
that Commerce had all the information necessary to calculate the benchmark rate
and that the term of the loan was six years, not three. Oral Arg. at 4:20–5:20, June
2, 2023, ECF No. 50 (citing KG Dongbu’s IQR at 45).
In the case of a loan, a benefit exists to the extent that the amount a firm
pays on the government-provided loan is less than the amount the firm would have
paid on a comparable commercial loan that the firm could obtain on the market.
19 C.F.R. § 351.505(a)(1). Under normal circumstances, Commerce will rely on
effective interest rates. Id. However, when a firm is deemed uncreditworthy,
Commerce calculates the interest rate pursuant to a specific formula:
ib=[(1-qn)(1+if)n/(1-pn)]1/n-1
where:
n = the term of the loan;
ib = the benchmark interest rate for uncreditworthy companies;
if = the long-term interest rate that would be paid by a creditworthy company;
pn = the probability of default by an uncreditworthy company within n years; and Court No. 22-00047 Page 17
qn = the probability of default by a creditworthy company within n years.
Id. The benefit conferred by an equity infusion shall be allocated over the same
period as a non-recurring subsidy. Id. § 351.507(c). Commerce determined that
KG Dongbu was uncreditworthy and thus used the uncreditworthy benchmark
formula in 19 C.F.R. § 351.505(a)(3)(iii). Final IDM at 58.
Despite Commerce’s assertion that there was no information on the record
regarding any six-year interest rate, id. at 58, Plaintiffs cite potentially contrary
record evidence indicating that the “[r]epayment date of outstanding loans was
extended from December 31, 2020 to December 31, 2025[.]” Oral Arg. at 4:20–
5:20, June 2, 2023, ECF No. 50 (citing KG Dongbu’s IQR at 45). Thus, the Court
observes that the record evidence seemingly indicates that the loan term might be
closer to six years and not three years, and Commerce should at least consider the
record evidence and further substantiate the loan term used in its redetermination.
The Court concludes that Commerce’s application of the relevant formula and
subsequent determination was not supported by substantial evidence because
Commerce should consider the potentially contrary evidence presented by
Plaintiffs. The Court remands this issue for Commerce to reconsider the
calculation of KG Dongbu’s interest rate. Court No. 22-00047 Page 18
V. Whether Commerce’s Unequityworthy Discount Rate Determination is Supported by Substantial Evidence
Plaintiffs argue that Commerce incorrectly calculated the discount rates in
determining the amount of the benefit in each year of the fifteen-year allocation
periods for the average useful life of the relevant assets. Pl.’s Br. at 40–41.
Defendant contends that Commerce could not use a six-year creditworthy interest
rate because there was no information regarding a six-year interest rate paid by a
creditworthy company on the record. Def.’s Br. at 24.
As noted above, the Court is remanding for Commerce to reconsider
whether the record evidence establishes a loan term of six years or three years.
The Court also remands Commerce’s calculation of discount rates in determining
the amount of the benefit in each year of the fifteen-year allocation periods for the
average useful life of the relevant assets based on Commerce’s reconsideration of
the record evidence.
CONCLUSION
For the foregoing reasons, it is hereby
ORDERED that the Final Results, 87 Fed. Reg. 2759, are remanded to
Commerce for reconsideration consistent with this opinion; and it is further
ORDERED that this case shall proceed according to the following schedule:
(1) Commerce shall file the remand determination on or before Court No. 22-00047 Page 19
October 5, 2023;
(2) Commerce shall file the administrative record on or before
October 18, 2023;
(3) Comments in opposition to the remand determination shall be
filed on or before November 20, 2023;
(4) Comments in support of the remand determination shall be filed
on or before December 20, 2023; and
(5) The joint appendix shall be filed on or before January 19, 2024.
/s/ Jennifer Choe-Groves Jennifer Choe-Groves, Judge
Dated: July 7, 2023 New York, New York