This action is before the court on a United States Court of International Trade Rule 56.2 motion for judgment on
The court sustains Commerce's determinations that the GOK's standard pricing
BACKGROUND
On June 23, 2015, Commerce initiated a CVD investigation of certain corrosion-resistant steel products from Korea. See Certain Corrosion-Resistant Steel Products From the People's Republic of China, India, Italy, the Republic of Korea, and Taiwan,
calculated by (1) distributing the overall cost according to the stages of providing electricity (generation, transmission, distribution, and sales); (2) dividing each cost into a fixed cost, variable cost, and the consumer management fee; and (3) then calculating the cost by applying the electricity load level, peak level, and the patterns of consuming electricity. Each cost was then distributed into the fixed charge and the variable charge. KEPCO then divided each cost taking into consideration the electricity load level, the usage pattern of electricity, and the volume of the electricity consumed. Costs were then distributed according to the number of consumers of each classification of electricity.
Prelim. Decision Memo at 21 (citing Questionnaire for the [GOK], Section II at 13-14, CD 110, bar code 3304996-02 (Sept. 14, 2015) ("GOK Questionnaire Section II"); 2nd Suppl. Questionnaire for the [GOK] at 6-9, CD 498, bar code 3406269-02 (Oct. 15, 2015) ("GOK Second Suppl. Questionnaire") ). Commerce preliminarily determined that KEPCO applied the same price-setting mechanism throughout the POI, and that the prices charged to the respondents pursuant to the tariff schedule
Commerce preliminarily assigned Dongbu a CVD cash deposit rate of 1.37 percent and did not assign Union a CVD cash deposit rate, as only a de minimis rate had been calculated for that respondent. See [CVD] Investigation of Certain Corrosion-Resistant Steel Products From Korea,
In its final determination, Commerce continued to find that KEPCO did not provide electricity to CORE manufacturers in Korea for LTAR. See Final Decision Memo at 18-19, 23; Prelim. Decision Memo at 19, 21-22. Commerce also further analyzed the standard pricing mechanism based upon information placed on the record by the GOK, and determined that KEPCO covered its costs for the industry tariff in effect during the POI. See Final Decision Memo at 23. Commerce also declined to apply adverse facts available ("AFA") to conclude that the GOK's provision of electricity does not conform to market principles. See
As a result of changes not at issue here between Commerce's preliminary and final determinations, Commerce calculated a CVD rate for Dongbu of 1.19 percent and continued to calculate a de minimis CVD rate for Union. Final Results,
JURISDICTION AND STANDARD OF REVIEW
The court has jurisdiction pursuant to 19 U.S.C. § 1516a(a)(2)(B)(i) and
DISCUSSION
I. Commerce's Determination that the Korean Government Does Not Provide Electricity for LTAR
Nucor and Plaintiff-Intervenors assert three challenges to Commerce's determination that the GOK's provision of electricity did not provide a benefit to CORE manufacturers. See Pl. & Pl.-Intervenors' Br. at 2-3. First, they argue that Commerce's analysis of whether KEPCO's standard pricing mechanism measures the adequacy of remuneration is contrary to law because it fails to give effect to the adequacy of remuneration standard contained in the statute. See
A. Commerce's Methodology
Nucor and Plaintiff-Intervenors argue that Commerce's methodology for determining the adequacy of remuneration is contrary to law. See Pl. & Pl.-Intervenors' Br. at 15-24. Defendant responds that Commerce applied the tier three benchmark to measure the adequacy of remuneration, as dictated by
For a subsidy to be countervailable, Commerce must determine that an authority provides a subsidy that is specific and constitutes a financial contribution, by which a benefit is conferred. See
Commerce has discretion to establish what constitutes "adequate remuneration" for the purpose of determining whether a benefit was conferred to the recipient of a subsidy. The statute does not define the phrase "adequate remuneration," nor does it provide a methodology for measuring the adequacy of remuneration. Congress granted Commerce considerable discretion to construct a methodology "to identify and measure the benefit of a subsidy." Uruguay Round Agreements Act, Statement of Administrative Action, H.R. Doc. No. 103-316, vol. 1, at 927 (1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4241 ("SAA"). Furthermore, the court affords Commerce significant deference in "[a]ntidumping and [CVD] determinations involv[ing] complex economic and accounting decisions of a technical nature[.]" Fujitsu General Ltd. v. United States,
Commerce's regulations provide that the agency shall measure the adequacy of remuneration by comparing the government price to a multi-tiered series of benchmark prices. See
Here, Commerce chose to examine the government's price-setting philosophy by looking at whether KEPCO had a standard pricing mechanism and whether the prices it charged were consistent with that mechanism. Final Decision Memo at 18-23. The court cannot say that Commerce's reliance on a price-setting mechanism, which is a government price-setting philosophy, is unreasonable. As recently explained in Maverick Tube Corp. v. United States,
the statute directs Commerce to determine if a benefit is present by determining whether a good or service is provided "for less than adequate remuneration." Adequate remuneration is to be measured by "prevailing market conditions ... in the country which is subject to the investigation or review."19 U.S.C. § 1677 (5)(E). The statute does not direct Commerce to create a fictional model market .... The statute directs Commerce to judge the adequacy of remuneration based on market conditions that actually exist in Korea. That the Korean electricity market is controlled by a state run monopoly does not change the statute.
Nucor and Plaintiff-Intervenors argue that Commerce's approach contradicts the statutory framework. See Petitioners' Response to Defendant's Notice of Supplemental Authority at 8-9, Nov. 29, 2017, ECF No. 84 ("Pl. & Pl.-Intervenors' Resp. Suppl. Auth."); see also
Nucor and Plaintiff-Intervenors also argue that Commerce may not, in evaluating whether the government price provides "adequate remuneration," rely on a market where government control is "so pervasive and complete that 'market principles' have ceased to exist entirely." Pl. & Pl.-Intervenors' Resp. Suppl. Auth. at 9. In
Nucor and Plaintiff-Intervenors argue that Commerce's use of the standard pricing mechanism is contrary to law because it reflects the earlier preferentiality standard and fails to give effect to the current LTAR standard.
Further, Nucor and Plaintiff-Intervenors argue that Commerce's methodology does not meaningfully evaluate whether a benefit is conferred because it compares KEPCO's electricity rates to themselves rather than to benchmark, market-determined electricity rates. See Pl. & Pl.-Intervenors' Br. at 20-21. Therefore, they argue that Commerce's methodology of evaluating whether KEPCO's prices are set in accordance with a standard pricing mechanism is contrary to law because Commerce cannot reasonably "base its benefit determination on a methodology that simply compares one market-distorted price to another to determine whether mandatory respondents are receiving disparate treatment."
Nucor and Plaintiff-Intervenors also argue that Commerce's methodology is inconsistent with the statute because Commerce's analysis fails to consider whether a seller covers its costs. Pl. & Pl.-Intervenors' Br. at 22-24. Consequently, they claim that Commerce failed to incorporate cost recovery into its analysis of the adequacy of remuneration for respondents' electricity costs. See ibr.US_Case_Law.Schema.Case_Body:v1">id
B. Commerce's LTAR Determination Is Not Arbitrary and Capricious
Nucor and Plaintiff-Intervenors argue that Commerce's determination that electricity was not provided by the GOK at LTAR is arbitrary and capricious because Commerce failed to consider the manner in which the pricing system fails to accurately reflect the underlying costs of energy generated by certain types of electricity producers. See Pl. & Pl.-Intervenors' Br. at 24-29.
In the final determination, when addressing cost recovery, Commerce explained that it chose to focus on the prices KEPCO paid for electricity on the KPX, rather than on the costs of the electricity generators, because KEPCO develops its industrial tariff schedule based upon the purchase price of electricity on the KPX.
Commerce justified its decision not to request information on the costs of the generators, including the nuclear generators,
because the costs of electricity to KEPCO [ (i.e., the relevant authority) ] are determined by the KPX. Electricity generators sell electricity to the KPX, and KEPCO purchases the electricity it distributes to its customers through the KPX. Thus, the costs for electricity are based upon the purchase price of electricity from the KPX, and this is the cost that is relevant for KEPCO's industrial tariff schedule.
Final Decision Memo at 23 (citation omitted). Where, as here, Nucor and Plaintiff-Intervenors' allegation is that electricity is provided by KEPCO to respondent CORE producers at LTAR, see Pl. & Pl.-Intervenors' Br. at 24-25, it is reasonable for Commerce to focus its inquiry on the price charged by KEPCO to the respondent producers, and not on the price KEPCO pays the KPX.
C. Commerce's Determination is Supported by Substantial Evidence
Nucor and Plaintiff-Intervenors claim that "Commerce's final determination that KEPCO's electricity prices are
Here, to determine that KEPCO's price-setting mechanism is consistent with market principles, Commerce reviewed the parameters used by KEPCO to determine electricity prices for consumers in the Korean market and the extent to which those pricing parameters allowed KEPCO to recoup its costs through electricity sales. See Final Decision Memo at 18-21, 23. In analyzing KEPCO under the tier three benchmark, Commerce examined KEPCO's price setting mechanism as a government price-setting philosophy. Id. at 19-23. Commerce relied upon "GOK's report[ing] that a single tariff rate table applied throughout the POI ... and was applicable to the respondents in this investigation." Id. at 18 (citing GOK [Response to Questionnaire] Exhibit E-13 (Electricity Tariff Table (ENG) ) at Ex. E-13, PD 210, bar code 3305223-17 (Sept. 14, 2015); GOK Questionnaire Section II at 10; GOK Second Suppl. Questionnaire at 10). Commerce further found that there "is no information on the record that [respondents] are treated differently from other industrial users of electricity that purchase comparable amounts of electricity" from KEPCO. Id. at 19. Commerce found that the tariff schedule placed on the record does not support the proposition that utility companies in Korea have separate tariff rates that reflect different pricing based upon the manner in which the electricity is generated. Id. at 23. In addition, Commerce analyzed electricity costs and explained that KEPCO purchases electricity from the KPX, which it later distributes to its customers, including the respondents. Id. at 18-19, 23. Commerce compared KEPCO's calculated costs (i.e., the prices paid on the KPX according to the methodology provided by the GOK) to the industry tariff applicable to respondents, and determined that "KEPCO more than fully covered its cost for the industry tariff applicable to [the] respondents." Final Decision Memo at 23 (citing GOK Second Suppl. Questionnaire at 11). Nucor and Plaintiff-Intervenors do not point to any problems with KEPCO's calculations of its costs, nor do they argue that KEPCO's costs, based upon what KEPCO paid to the KPX during the POI, were higher than the prices placed on the record in KEPCO's tariff schedule. Therefore, Commerce's determination that KEPCO's electricity prices are consistent with market principles is supported by substantial evidence.
Nucor and Plaintiff-Intervenors allege that documents and statements from third parties, including those from the United States government and the GOK, all support the conclusion "that KEPCO uses subsidized electricity prices to support industrial competitiveness." Pl. & Pl.-Intervenors' Br. at 30; see also Petitioners' Petition Part 5 at Ex. V-9, PD 3, bar code 3280986-05 (June 3, 2015) (reproducing a copy of a paper titled "Electricity in Korea," presented to a Symposium on APEC's New Strategy for Structural Reform); Petitioners' Petition Part 6 at Exs. V-11, V-15, PD 9, bar code 3280986-06 (June 3, 2015) (reproducing copies of two news articles);
Nucor and Plaintiff-Intervenors also argue that record evidence, demonstrating that the GOK intervened to suppress tariff increases for political reasons, undermines Commerce's conclusion that electricity prices are set consistently with market principles. Pl. & Pl.-Intervenors' Br. at 31-33. However, it is reasonably discernible that Commerce believes its methodology accounts for the political dynamic within Korea. Commerce's methodology for assessing the extent to which a government authority prices a good or service consistently with market-principles (i.e., a tiered benchmark analysis) includes assessing the government's price-setting philosophy, costs, or price discrimination. See CVD Preamble,
Nucor and Plaintiff-Intervenors also argue that Commerce's determination that KEPCO's price-setting mechanism permitted KEPCO to recover its costs is unsupported by substantial evidence. Pl. & Pl.-Intervenors' Br. at 29-30, 33-34. Nucor and Plaintiff-Intervenors present alternative calculations that they purport undermine the agency's reliance on data from the GOK.
II. Commerce's Determination Not to Apply AFA
Nucor and Plaintiff-Intervenors challenge, as an abuse of discretion, arbitrary, and unsupported by the record, Commerce's decision not to apply AFA to infer that state intervention by the GOK resulted in electricity prices that are inconsistent with market principles. Pl. & Pl.-Intervenors' Br. at 34-39. Defendant argues that Commerce's determination was reasonable because the GOK did not withhold information requested of it, provide unverifiable information, or fail to meet deadlines or impede the proceeding. Def.'s Resp. Br. at 28-33. For the reasons that follow, Commerce's decision not to apply AFA is reasonable in light of the record.
As already discussed, a benefit may be conferred "in the case where goods or services are provided, if such goods or services are provided for [LTAR] [.]"
Here, Commerce determined that applying AFA is unwarranted because the GOK submitted timely and complete responses to all of Commerce's questionnaires. See Final Decision Memo at 12-13. Specifically,
Nucor and Plaintiff-Intervenors argue that Commerce's decision not to apply AFA is arbitrary because Commerce regularly applies adverse inferences in similar circumstances. Pl. & Pl.-Intervenors' Br. at 36 (citing Issues and Decision Memorandum for the Final Determination in the [CVD] Investigation of High Pressure Steel Cylinders from the People's Republic of China [ ("PRC") ] at 9, C-570-978, (Apr. 30, 2012), available at http://ia.ita.doc.gov/frn/summary/prc/2012-10954-1.pdf (last visited Feb. 1, 2018) ("High Pressure Steel Cylinders IDM"); Issues and Decision Memorandum for the Final Determination in the [CVD] Investigation of Narrow Woven Ribbons with Woven Selvedge from the [PRC] at 17, C-570-953, (July 12, 2010), available at http://ia.ita.doc.gov/frn/summary/prc/2010-17541-1.pdf (last visited Feb. 1, 2018) ("Narrow Ribbons with Woven Selvedge IDM"); Issues and Decision Memorandum for the Final Affirmative [CVD] Determination: Laminated Woven Sacks from the [PRC] at 81-82, C-570-917, (June 16, 2008), available at http://ia.ita.doc.gov/frn/summary/prc/E8-14256-1.pdf (last visited Feb. 1, 2018) ("Laminated Woven Sacks IDM") ); see id. at 36-39. However, unlike in the determinations cited by Nucor and Plaintiff-Intervenors, here, Commerce determined that the GOK complied with Commerce's requests for information and that all the information provided was verifiable.
CONCLUSION
For the reasons discussed, Commerce's Final Results are in accordance with law and supported by substantial evidence. Therefore, the Final Results are sustained. Judgment will enter accordingly.
Notes
Further citations to the Tariff Act of 1930, as amended, are to the relevant provisions of Title 19 of the U.S. Code, 2012 edition.
Although 19 U.S.C. § 1677e(a) -(b) and
On November 6, 2017, Defendant filed on the docket, as supplemental authority, the recent decision in Maverick Tube Corp. v. United States, 41 CIT ----, Slip Op. 17-146,
There is an insignificant discrepancy in the names of the mandatory respondents identified in the preliminary determination and the final determination. Compare Prelim. Decision Memo at 2 with Final Decision Memo at 2. In the preliminary determination, the Department identifies Union Steel Manufacturing Co. Ltd. and Dongbu Steel Co., Ltd. as the mandatory respondents, see Prelim. Decision Memo at 2 (citation omitted), but notes that Dongkuk Steel Mill Co., Ltd. is Union Steel Manufacturing Co. Ltd.'s former parent company and successor-in-interest after a 2015 merger,
On October 18, 2016, Defendant submitted indices to the public and confidential administrative records for this CVD investigation, which identify the documents that comprise the records to Commerce's final determination. These indices are located on the docket at ECF Nos. 31-2 and 31-3, respectively. See Administrative Record Index, Oct. 18, 2016, ECF No. 31-2-3. All further references to the documents from the administrative record are identified by the numbers assigned by Commerce in these indices.
Further citations to Title 19 of the Code of Federal Regulations are to the 2015 edition.
Commerce found that "KEPCO is an integrated electric utility company engaged in the transmission and distribution of substantially all of the electricity in Korea." Prelim. Decision Memo at 18 (citations omitted). Commerce also preliminarily found that the GOK is an "authority" for purposes of
Under
The petitioners below were United States Steel Corporation, Nucor Corporation, Steel Dynamics, Inc., ArcelorMittal USA, LLC, AK Steel Corporation, and California Steel Industries. Prelim. Decision Memo at 1.
The CVD Preamble explains the purpose of the CVD regulations that Commerce promulgated to conform to the Uruguay Round Agreements Act. See CVD Preamble,
Nucor and Plaintiff-Intervenors do not challenge Commerce's decision to apply a tier three benchmark analysis to determine whether the provision of electricity was for adequate remuneration.
Nucor and Plaintiff-Intervenors challenge the Maverick court's statement that "under the tier three benchmark analysis Commerce takes the market as it finds it, even if it is, for all practical purposes, a monopoly." Pl. & Pl.-Intervenors' Resp. Suppl. Auth. at 6 (quoting Maverick, 41 CIT at ----, Slip Op. 17-146 at
Nucor and Plaintiff-Intervenors' invocation of Laminated Woven Sacks IDM is also unavailing. See Pl. & Pl. Intervenors' Resp. Suppl. Auth. at 13; see generally Issues and Decision Memorandum for the Final Affirmative [CVD] Determination: Laminated Woven Sacks from the [PRC] at 15-16, C-570-917, (June 16, 2008), available at http://ia.ita.doc.gov/frn/summary/prc/E8-14256-1.pdf (last visited Feb. 1, 2018) ("Laminated Woven Sacks IDM"). In Laminated Woven Sacks IDM, under a tier three benchmark analysis, Commerce found that "the purchase of land-use rights in China is not conducted in accordance with market principles" because of "widespread and documented deviation from the authorized methods of pricing and allocating land." Id. at 16. The other determinations cited by Nucor and Plaintiff-Intervenors are distinguishable for the same reason. See Pl. & Pl.-Intervenors' Resp. Suppl. Auth. at 12-13; see generally Issues and Decision Memorandum for the Final Determination in the [CVD] Investigation of Citric Acid and Certain Citrate Salts from the People's Republic of China [ ("PRC") ] at 23-24, 96, C-570-938, (Apr. 6, 2009), available at http://ia.ita.doc.gov/frn/summary/prc/E9-8358-1.pdf (last visited Feb. 1, 2018) (finding, under a tier three benchmark analysis, that the prices in the land-use rights market are not set "in accordance with market principles," as previously determined in Laminated Woven Sacks IDM); [CVD] of Certain Uncoated Paper from Indonesia: Issues and Decision Memorandum for the Final Affirmative Determination at 13-16, 31-32, C-560-829 (Jan. 8, 2016), available at https://enforcement.trade.gov/frn/summary/indonesia/2016-01026-1.pdf (last visited Feb. 1, 2018) (finding, under a tier three benchmark analysis, that prices were not set in accordance with the market principles operating in the given home market).
Nucor and Plaintiff-Intervenors note that Commerce described the preferentiality standard as "a measure of price discrimination, i.e., whether a government is favoring some buyers over others with lower prices," and not a measure of adequate remuneration. Pl. & Pl-Intervenors' Br. at 19 (emphasis omitted) (quoting Certain Softwood Lumber Products from Canada,
Nucor and Plaintiff-Intervenors claim that Commerce erroneously relied on Magnesium from Canada Final Results as support for the standard pricing mechanism, as that determination preceded the codification of
Specifically, Commerce found that "[t]he GOK reported that a single tariff rate table applied [to the respondents] throughout the POI [.]" Final Decision Memo at 18 (citations omitted). Further, Commerce found that there was no information to undermine the GOK's statement that KEPCO applied the same price-setting method to determine electricity tariffs.
In any event, Commerce did not base its determination that electricity was not provided to respondents for LTAR exclusively on the uniformity of KEPCO's standard pricing mechanism. Commerce also determined that the standard pricing mechanism KEPCO used to develop the tariff schedule applicable to sales of electricity to respondents was based on KEPCO's costs. Final Decision Memo at 23. Commerce looked at cost recovery as a measure of KEPCO's ability of being adequately remunerated.
Specifically, Nucor and Plaintiff-Intervenors contend that the KPX pricing mechanism inadequately compensates electricity generators with higher fixed costs. Pl. & Pl.-Intervenors' Br. at 25-27. They argue that the component of the pricing mechanism that compensates producers for fixed costs of generating electricity provides a uniform fixed compensation that systematically undercompensates higher fixed-cost generators, like KEPCO's nuclear generation subsidiaries.
Commerce may find that a benefit was conferred when an authority provides goods or services at less than adequate remuneration. See
Commerce recounts that
Petitioners also argue that electricity tariffs do not include the full cost of generation, including electricity from nuclear generators, because steel producers purchase electricity predominantly during off-hours where electricity is primarily generated from nuclear generation units. However, Petitioners have failed to provide any evidence that the prevailing market conditions for the provision of electricity in Korea are that utility companies have separate tariff rates that are differentiated based upon the manner in which the electricity is generated. The tariff schedule on the record of our investigation does not support this proposition. Petitioners have also failed to adequately support a claim that KEPCO's costs of electricity used in developing its tariff schedule do not fully reflect its actual costs of the electricity that it transmits and distributes to its customers in Korea.
Final Decision Memo at 23.
Similarly, Nucor and Plaintiff-Intervenors object to Commerce's finding that petitioners below failed to demonstrate that the costs KEPCO uses to develop its tariff schedule fully reflect KEPCO's costs for electricity. Pl. & Pl.-Intervenors' Br. at 28-29; Final Decision Memo at 23. Nucor and Plaintiff-Intervenors argue that in their brief to the agency below, they provided sufficient evidence to demonstrate,
(i) KPX pays the same "capacity price" [ (i.e., the fixed cost of generating electricity, as in the costs of building and maintaining the generators) ] to all generators to compensate for fixed costs, regardless of actual fixed costs, (ii) the fixed costs of nuclear generators are substantially higher than the fixed costs of other generators, and (iii) the GOK justifies lower industrial electricity prices because nuclear generators supply more electricity during the hours when industrial users consume larger amounts of electricity.
Pl. & Pl.-Intervenors' Br. at 28 (citing Case Brief of the Nucor Corporation at 26-30, PD 502, bar code 3459696-01 (Apr. 14, 2016) ("Nucor Agency Br."); see also GOK [Response to Questionnaire] Exhibit E-3 (KEPCO Form 20-F SEC April 30, 2015 (ENG) ) at 31, PD 203, bar code 3305223-07 (Sept. 14, 2015) (providing KEPCO's explanation of the pricing factors in the pricing of electricity in the Korean market). Nucor and Plaintiff-Intervenors' argument focuses on the electricity generators' costs and whether the generators' costs are recouped, instead of addressing whether KEPCO's costs (i.e., the price KEPCO pays for electricity on the KPX) are recouped through electricity sales. See Pl. & Pl.-Intervenors' Br. at 25-29; see also Nucor Agency Br. at 25-30. Nucor and Plaintiff-Intervenors' arguments address the sufficiency of the prices paid by KEPCO to electricity generators on the KPX, and not whether the prices paid by the respondents represent adequate remuneration to KEPCO. It is the latter, and not the former that Commerce reasonably determined is the relevant "authority" for purposes of the LTAR inquiry. Prelim. Decision Memo at 18-19.
Although the full content of Ex. V-11 appears in the citation provided, the cover page identifying the exhibit as "Exhibit V-11" appears in Petitioners' Petition Part 5, PD 3, bar code 328-0986-05 (June 3, 2015).
In addressing the National Assembly Report which does specifically speak to KEPCO's ability to recover its costs, Commerce explained that the methodology used to produce the data in the National Assembly report, (i.e., comparing company-specific revenue to aggregated cost) was flawed, predated the POI, and was therefore unpersuasive. See Final Decision Memo at 23-24; see also Petitioners' Petition Part 7 at Ex. E-4, CD 10, bar code 3280961-07 (June 3, 2015) (reproducing a copy of the 2013 National Assembly Report (English and Korean translations) ).
Specifically, Nucor and Plaintiff-Intervenors state that Commerce, in Korean Welded Line Pipe IDM, "acknowledged 'cross-subsidization' in the Korean electricity market and found that 'cheap power significantly helped the export-led growth of the Korean economy, while nurturing an industry structure which consumes too much power and which cannot survive with a price that would recover costs.' " Pl. & Pl.-Intervenors' Br. at 30 (quoting [CVD] Investigation of Welded Line Pipe from the Republic of Korea: Issues and Decision Memorandum for the Final Negative Determination at 14, C-580-877, (Oct. 5, 2015), available at http://ia.ita.doc.gov/frn/summary/korea-south/2015-25967-1.pdf (last visited Feb. 1, 2018) ("Korean Welded Line Pipe IDM") ). However, the language Nucor and Plaintiff-Intervenors quote is not specific to whether KEPCO recovered its costs. In fact, in Korean Welded Line Pipe IDM, Commerce was able to "verif[y] that the electricity tariff for KEPCO is developed based upon the utility company's [own] annual cost data" because KEPCO uses "an independent accounting firm to audit its cost and calculate the annual cost of electricity."
Specifically, Nucor and Plaintiff-Intervenors claim that their calculation taking [ [ ] ], Pl. & Pl.-Intervenors' Br. at 34 (citing Nucor Agency Br. at 31), demonstrates that [ [ ] ].
All the determinations cited by Nucor and Plaintiff-Intervenors can be distinguished. In High Pressure Steel Cylinders IDM, Commerce applied AFA because the Chinese government failed to respond to Commerce's request for particular records that were necessary to verify information provided by other Chinese government agencies. See High Pressure Steel Cylinders IDM at 9-10. Commerce declined to entertain the Chinese government's proffered explanation that the records could not be produced because they were maintained by a separate government agency.
In Narrow Ribbons with Woven Selvedge IDM, Commerce identified specific documents and requested the Chinese government produce them. See Narrow Ribbons with Woven Selvedge IDM at 17. The Chinese government refused to provide the identified documents, claiming they did not "routinely maintain such information."
In Laminated Woven Sacks IDM, Commerce applied AFA because although some documents were produced, verification of the documents would have been futile, as other information necessary for verification was within the control of the Chinese government and was not provided. See Laminated Woven Sacks IDM at 81. Commerce determined that the information withheld was highly relevant for Commerce to conduct its investigation, and that by withholding the information, the Chinese government was impeding Commerce's investigation. See