NUCOR CORPORATION, Plaintiff-Appellant v. ARCELORMITTAL USA LLC, AK STEEL CORPORATION, UNITED STATES STEEL CORPORATION, Plaintiffs v. UNITED STATES, GOVERNMENT OF KOREA, Defendants-Appellees DONGKUK STEEL MILL CO., LTD., Defendant
2018-1787
United States Court of Appeals for the Federal Circuit
June 21, 2019
Appeal from the United States Court of International Trade in No. 1:16-cv-00164-CRK, Judge Claire R. Kelly.
Decided: June 21, 2019
ROBERT E. DEFRANCESCO, III, Wiley Rein, LLP, Washington, DC, argued for plaintiff-appellant. Also represented by TIMOTHY C. BRIGHTBILL, TESSA V. CAPELOTO, LAURA EL-SABAAWI, ALAN H. PRICE, ADAM MILAN TESLIK, MAUREEN E. THORSON, CHRISTOPHER B. WELD.
LOREN MISHA PREHEIM, Commercial Litigation Branch, Civil Division, Department of Justice, Washington, DC, argued for defendant-appellee United States. Also represented by ELIZABETH ANNE SPECK, CLAUDIA BURKE, JEANNE DAVIDSON; CATHERINE D. MILLER, Office of Chief Counsel for Trade Enforcement and Compliance, Department of Commerce; CHAD A. READLER, Civil Division, U.S. Department of Justice.
JEFFREY M. WINTON, Law Office of Jeffrey M. Winton PLLC, Washington, DC, argued for defendant-appellee Government of Korea. Also represented by YOUNGJAE KIM, Economic Section, Embassy of the Republic of Korea.
Before LOURIE, REYNA, and TARANTO, Circuit Judges.
Opinion for the court filed by
Opinion dissenting filed by Circuit Judge REYNA.
TARANTO, Circuit Judge.
In 2016, the U.S. Department of Commerce issued its final determination in its investigation into whether the Government of Korea had provided, to Korean producers and exporters of certain corrosion-resistant steel products (CORE), subsidies warranting imposition of countervailing duties on the products when imported into the United States. Nucor Corporation and other U.S. producers of CORE, which had requested the investigation, alleged that the Korean government, during the period
I
In June 2015, acting on petitions from Nucor and other U.S. producers of CORE, Commerce initiated a countervailing-duty investigation under
Under the statutes governing Commerce‘s investigation, Congress is to impose a countervailing duty on merchandise imported into the United States if “a government is providing, directly or indirectly, a countervailable subsidy with respect to the manufacture, production, or export of that merchandise.” Delverde, SrL v. United States, 202 F.3d 1360, 1365 (Fed. Cir. 2000); see
Commerce focused on the Korea Electric Power Corporation (KEPCO) as the seller of electricity to users in Korea, including the CORE producers at issue. Commerce found that KEPCO is an “authority” of the Government of Korea, citing the Korean government‘s ownership of and control over KEPCO and the Korean government‘s regulation and approval of KEPCO‘s prices. Preliminary Determination Memo, J.A. 8906-07. Commerce also found that KEPCO is “the primary utility company in Korea providing electricity to Korean consumers” and that only “a minimal amount of electricity is supplied directly to consumers on a localized basis by independent power producers.” J.A. 8907.
In determining whether KEPCO sold electricity to the Korean CORE producers for “less than adequate remuneration,” Commerce applied a regulation,
The first two methods call for inquiry into how the sale prices at issue compare to either of two “market” prices: either (i) a “market-determined price” based on actual transactions in the country or (ii) a “world market price” that would be available to the purchasers in the country.
benchmark purposes,” J.A. 8907; the second because “there is no cross-border transmission
Commerce therefore turned to the regulation‘s residual provision, which applies when the specified market prices are not available for comparison and which requires assessment of “whether the government price is consistent with market principles.”
Commerce found that “KEPCO‘s standard pricing mechanism used to develop its tariff schedule was based upon its costs.” Id. It elaborated:
To develop the electricity tariff schedules that were applicable during the [period of investigation], KEPCO first calculated its overall cost, including an amount for investment return. This cost includes the operational cost for generating and supplying electricity to the consumers as well as taxes. The cost for each electricity classification was calculated by (1) distributing the overall cost according to the stages of providing electricity (generation, transmission, distribution, and sales); (2) dividing each cost into 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 for each classification of electricity. For the [period of investigation], KEPCO more than fully covered its cost for the industry tariff applicable to [the Korean producer] respondents.
Id. (footnotes omitted).
Commerce made one other point—that its analysis of costs did not include the costs of generating (as opposed to transmitting and distributing) electricity. Id. It explained:
[W]ith respect to the costs of the generators, including the nuclear generators, [Commerce] did not request these costs because the costs of electricity to KEPCO are determined by the KPX [Korean Power Exchange]. 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.
Id. (footnote omitted).
In the Court of International Trade, as relevant here, Nucor challenged Commerce‘s method of analyzing KEPCO‘s prices as contrary to the “less than adequate remuneration” statutory standard and the “consistent with market principles” regulatory standard. The Court of International Trade rejected the contention, Nucor, 286 F. Supp. 3d at 1369-75, 1377-80, relying in part on an earlier decision indicating that, where market prices are unavailable for comparison, the statutory and regulatory standard may be found satisfied simply by finding that the producer at issue was not receiving “a preferential rate“—meaning a nondiscriminatory rate—as long as the rate was “set by a consistent [and] discernible method,” Maverick Tube Corp. v. United States, 273 F. Supp. 3d 1293, 1306–07 (Ct. Int‘l Trade 2017). Nucor also challenged Commerce‘s focus only on KEPCO‘s prices in relation to its costs, when, Nucor argued, Commerce should also have considered KPX‘s prices in relation to KPX‘s own costs. The Court of International Trade declined to address that contention on its merits, concluding that Nucor was arguing that KPX should have been included in the “authority” whose prices were being analyzed and that Nucor had failed to exhaust that argument by properly presenting it in the proceeding before Commerce. Id. at 1375-77.
Nucor appeals. We have jurisdiction under
II
We review Commerce‘s decision using the same standard of review applied by the Court of International Trade. See Diamond Sawblades Mfrs. Coal. v. United States, 866 F.3d 1304, 1310 (Fed. Cir. 2017). We review Commerce‘s decision to determine if it is “unsupported by substantial evidence on the record[] or otherwise not in accordance with law.”
Our review of Commerce‘s interpretation of a statutory provision is governed by the two-part framework set forth in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). If Congress has unambiguously answered the question before the Court, the congressional answer controls. See id. at 842–43. But if Congress has not thus answered the question, the court must consider “whether the agency‘s answer is based on a permissible construction of the statute.” Id. at 843. As to consistency of the agency position with the statute, the Supreme Court has stated that, in applying Chevron, “the question a court faces when confronted with an agency‘s interpretation of a statute it administers is always, simply, whether the agency has stayed within
To the extent that Commerce‘s regulation is at issue here, Commerce does not invoke any principle of deference to govern our inquiry into whether its interpretation is not in accordance with law.
III
Nucor‘s principal argument takes Commerce‘s focus on only KEPCO‘s prices and costs as a given and challenges Commerce‘s decision that KEPCO‘s prices to the relevant Korean CORE producers were not for less than adequate remuneration. In this court, Commerce defends its decision on essentially two bases. First, Commerce suggests that it suffices for compliance with the statutory and regulatory standard, where market prices are not available for comparison, that the foreign government authority not be charging the producer at issue “a preferential rate.” This argument treats “preferential rate” as meaning that the rate is set by a “consistent and discernible method” and does not reflect “price discrimination.” U.S. Br. 25-28 (relying on Maverick formulation); Oral Arg. at 22:22–23:19. Second, more narrowly, Commerce defends its decision in this case as consistent with the statute and regulation because Commerce found not only that KEPCO‘s pricing was non-discriminatory but also that the pricing ensured cost recovery. U.S. Br. 42-52. We reject the first position, but we conclude that Nucor has not shown error in the second.
A
We consider Commerce‘s broad theory in the context presented—where a foreign government authority is selling a good or service to a relevant producer in a country where no competitive-market prices are available to use as comparisons to assess the authority‘s prices. We hereafter assume, without repeating, those premises. Under Commerce‘s broad theory, if the foreign government authority engaged in a uniform, non-discriminatory, tariffed practice of charging a price so low that the authority consistently lost large sums of money in a way no private seller could sustain, sales pursuant to that practice would not be properly viewed as for “less than adequate remuneration.” That position is beyond any reasonable interpretation of the statute, or of its implementing regulation.
1
We begin with the ordinary meaning of the language at issue. A general dictionary from 1992 defines “remuneration” as “[s]omething, such as a payment, that remunerates” and gives the primary definition of “remunerate” as “[t]o pay (a person) a suitable equivalent in return for goods provided, services rendered, or losses incurred; recompense.” American Heritage Dictionary 1527 (3d ed. 1992). A notion similar to “suitable equivalent” is evident in Black‘s Law Dictionary (6th ed. 1990). What we think is the most relevant definition of “remuneration” in that dictionary is “compensation,” id. at 1296 (also listing “[p]ayment,” “reimbursement,” “[r]eward,” “recompense,” “salary“), which is defined in terms, among others, of “giving an equivalent or substitute of equal value” and “remuneration,” id. at 283; and “adequate compensation” is defined with reference to eminent-domain and just-compensation standards as “[j]ust value of property taken” or “[m]arket value of property when taken,” id. at 39.
Commerce explained that “[p]referentiality is a measure of price discrimination,” which “cannot be said to measure adequate remuneration,” and under the 1994 statutory language, “[i]t is no longer sufficient to say that the government does not discriminate among buyers. Rather, . . . we must determine whether the government is receiving adequate remuneration, i.e., a market-based price.” Id.
This distinction has long been recognized outside the present context. For more than a hundred years, laws regulating the rates charged by utilities or common carriers have separately stated requirements that rates be nondiscriminatory and that rates be “just and reasonable,” Verizon Communications, Inc. v. FCC, 535 U.S. 467, 477-78 (2002), with the latter performing the role of “navigating the straits between gouging utility customers and confiscating utility property,” id. at 481.5 The “just and reasonable” rule prevented confiscation through a variety of methods involving value and cost, not by simply ensuring nondiscrimination. Id. at 477-89. And the prevention of confiscation by ensuring recovery of value or cost was described by the Supreme Court in several decisions using the language of guaranteeing adequate remuneration. Newton v. Consolidated Gas Co. of N.Y., 259 U.S. 101, 105 (1922); Minneapolis, St. P. & S.S.M. Ry. Co. v. Washburn Lignite Coal Co., 254 U.S. 370, 370, 372 (1920); Northern Pac. Ry. Co. v. North Dakota ex rel. McCue, 236 U.S. 585, 602, 605 (1915); Ill. Cent. R. Co. v. ICC, 206 U.S. 441, 446 (1907); Atlantic Coast Line R. Co. v. N.C. Corp., 206 U.S. 1,
19, 25 (1907); Chesapeake & Potomac Tel. Co. v. Manning, 186 U.S. 238, 249 (1902).
Thus, the words used in the statute, understood in their ordinary sense and against the background of general usage in the law, make it unreasonable to deem mere lack of discrimination sufficient to establish adequacy of remuneration, as Commerce‘s broad position does.
2
“[T]he words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” Roberts v. Sea-Land Servs., Inc., 566 U.S. 93, 101 (2012) (quoting Davis v. Mich. Dep‘t of Treasury, 489 U.S. 803, 809 (1989)). Here, the statutory context of “less than adequate remuneration” reinforces the conclusion that the words themselves support.
The adequacy-of-remuneration language gives meaning to a provision that asks whether a producer is receiving a “benefit” from a government authority (through sales of goods or services), as part of the definition of what counts as a “subsidy.”
No different conclusion is suggested by the command that adequacy be determined “in relation to prevailing market conditions.”
3
The origin of the statutory language at issue makes it especially clear that the government‘s position is contrary to the statute. The 1994 URAA specifically replaced the previous statutory standard, which focused the inquiry on whether a rate was nondiscriminatory, as opposed to simply too low by some measure, and which made being nondiscriminatory sufficient, largely if not always, to give a pass to sales prices not targeted at exports. The government‘s treatment of nondiscrimination as sufficient (if adopted pursuant to a consistent, discernible method) is
counter to the change Congress was making in altering the pre-1994 standard.
Before 1994, the statutory definition of “subsidy” included, as relevant here, “[t]he following domestic subsidies, if provided or required by government action to a specific enterprise or industry, or group of enterprises“: “[t]he provision of goods or services at preferential rates.”
Congress itself highlighted the significance of this change. Recognizing the need for interpretive guidance, Congress approved the Statement of Administrative Action in the URAA, § 101(a), 108 Stat. at 4814, and declared that it “shall be regarded as an authoritative expression by the United States concerning the interpretation and application of the [URAA],”
This authoritative interpretation confirms what the statutory language, in its ordinary and in-context meaning, entails. It makes clear that the new standard rests on a concept different from mere lack of preferentiality. This is not to deny that discrimination in the price-lowering direction might be some evidence that a rate fails to be adequately remunerative: that a price is discriminatorily low can be an indication that the seller is subsidizing the beneficiaries of that price and not receiving adequate compensation. See Maverick Tube, 273 F. Supp. 3d at 1307 (discussing Steel Wire Rod from Germany, 62 Fed. Reg. 54,990, 54,994 (Dep‘t of Commerce Oct. 22, 1997)). But the absence of discrimination (even in a rate set forth in a consistent and discernible manner) logically does not itself establish that the government authority is receiving an adequately remunerative price, as Commerce recognized in Certain Softwood Lumber Products from Canada, 66 Fed. Reg. at 43,196. That is not only the clear meaning of the language in the context of “benefit” and “subsidy,” but the essential message of the congressional declaration that the earlier preferentiality standard was being replaced.
4
This court has already recognized, in a related context, that the “adequate remuneration” standard is tied to the value of what is being sold. In Delverde, which involved sale of a subsidized business to Delverde, we considered whether Delverde was to be treated as the recipient of any part of the earlier subsidy, see
Had Commerce fully examined the facts, it might have found that Delverde paid full value for the assets and thus received no benefit from the prior owner‘s subsidies, or Commerce might have found that Delverde did not pay full value and thus did indirectly receive a “financial contribution” and a “benefit” from the government by purchasing its assets from a subsidized company “for less than adequate remuneration.”
5
Commerce‘s broad position in this court finds no sound support in the regulation Commerce adopted in 1998 to implement the 1994 statutory standard,
In fact, by the time Commerce adopted its regulation, Congress had codified the sensible recognition that “market principles” tie pricing to value. In the Omnibus Trade and Competitiveness Act of 1988, Pub. L. 100-418, 102 Stat. 1107 (1988 Act), Congress added a provision regarding “nonmarket economy countries” to
We see no sound basis for finding in
Commerce did not call for a contrary standard when it promulgated the regulation. Commerce stated:
[I]n situations where the government is clearly the only source available to consumers in the country, we normally will assess whether the government price was established in accordance with market principles. Where the government is the sole provider of a good or service, and there are no world market prices available or accessible to the purchaser, we will assess whether the government price was set in accordance with market principles through an analysis of such factors as the government‘s price-setting philosophy, costs (including rates of return sufficient to ensure future operations), or possible price discrimination. We are not putting these factors in any hierarchy, and we may rely on one or more of these factors in any particular case. In our experience, these types of analyses may be necessary for such goods or services as electricity, land leases, or water, and the circumstances of each case vary widely.
Countervailing Duties, 63 Fed. Reg. at 65,378 (citing Pure Magnesium & Alloy Magnesium from Canada, 57 Fed. Reg. 30,946 (Dep‘t Commerce July 13, 1992) (decided before 1994 Act, applying pre-1994 standard); Steel Wire Rod from Venezuela, 62 Fed. Reg. 55,014 (Dep‘t Commerce Oct.
22, 1997) (applying 1994 Act standard)). That commentary does not give price discrimination anything more than an evidentiary role, and it does not repudiate the meaning of “market principles” Congress had already adopted. Indeed, the commentary notes the special complexities of answering the question when the government is the sole seller, the very situation that rate-regulation law for utilities has long addressed, often by determining (to quote Commerce here) “costs (including rates of return sufficient to ensure future operations).” 63 Fed. Reg. at 65,378; see Verizon, 535 U.S. at 484.
For all the foregoing reasons, we reject, as outside the range of permissible meanings of the statute (and regulation), the government‘s broad position on what suffices to meet the standard of adequate remuneration.
B
We nevertheless uphold Commerce‘s decision about KEPCO‘s pricing in this case. Commerce did not find only the absence of preferential rates. It also found, and gave specific reasons for finding, that KEPCO‘s pricing met familiar standards of cost recovery. J.A. 9028. We have been shown no reversible error in Commerce‘s decision to rely on that combination of facts as sufficient to meet the “adequate remuneration” standard.
In our analysis rejecting the government‘s broad position, we have decided that nonpreferentiality of the sort the government stresses is insufficient to meet the statutory standard of adequate remuneration, which, along with its implementing regulation, requires ensuring that the government authority‘s price is not too low considering what the authority is selling. That ruling is significant but limited in constraining Commerce. We readily recognize that such a standard, while excluding the government‘s broad preferentiality position, leaves a large range of potential implementation choices. One need only look outside the present statutory context
Here, we limit ourselves to saying that Nucor has not supplied a persuasive reason to conclude that Commerce‘s finding of cost recovery in this case was either legally incorrect or factually unsupported. As to the former, we note that Nucor has not argued that there is a crucial difference, for purposes of this case, between assessing market value and ensuring cost recovery. (Commerce suggested in Certain Softwood Lumber Products from Canada, 66 Fed. Reg. at 43,193, that there is such a difference as a conceptual matter and that the recipient‘s perspective might demand a focus on market value, making cost recovery insufficient.) Nor has Nucor, when focusing on KEPCO‘s costs, shown that Commerce failed to consider any category of cost that would have to be found recovered in order to meet the adequate remuneration standard. We express no view on whether Commerce‘s analysis in this case might have been vulnerable to arguments, about cost recovery or other matters, that Nucor has not presented and adequately developed.8
Only one objection by Nucor about evidentiary support warrants mention. Nucor contends that Commerce crucially erred in not giving weight to a Korean National Assembly report from 2012 that analyzed the Korean electricity market. J.A. 9028. Commerce found the report not relevant, because it was not about the period of investigation in this investigation, i.e., calendar year 2014. J.A. 9029. Commerce also found that “[s]ince the date of the Report, 2012, KEPCO electricity industrial tariffs have been increased three different times.” Id. We conclude that Commerce had an adequate basis for not relying on the 2012 report.
IV
Nucor‘s final argument is that Commerce committed reversible error by not considering the adequacy of the prices that KPX charged in relation to its costs, instead limiting the analysis to the prices that KEPCO charged in relation to its costs (which included what it paid to KPX). We agree with the Court of International Trade that this argument is in substance a contention that KPX is part of KEPCO as the “authority” whose prices Commerce had to analyze. Nucor, 286 F. Supp. 3d at 1375-77. We also agree that Nucor failed to exhaust this argument at the agency level, making it inappropriate for review in the Court of International Trade. Id. at 1377; see, e.g., Boomerang Tube LLC v. United States, 856 F.3d 908, 912-13 (Fed. Cir. 2017); Corus Staal BV v. United States, 502 F.3d 1370, 1379 (Fed. Cir. 2007); Consol. Bearings Co. v. United States, 348 F.3d 997, 1003 (Fed. Cir. 2003).
Commerce‘s preliminary decision referred only to KEPCO‘s costs. See Preliminary Determination Memo, J.A. 8909.
V
For the reasons stated, although we reject a broad position asserted by Commerce and partly relied on by the Court of International Trade, we find no reversible error in Commerce‘s decision, and we therefore affirm the Court of International Trade‘s judgment affirming that decision.
No costs.
AFFIRMED
REYNA, Circuit Judge, dissenting.
This is an important case of first impression. I agree with the majority on the important issue of whether the United States Department of Commerce may apply the preferentiality legal standard that has been repealed by Congress. It cannot. I conclude that the use of the repealed standard incurably taints the entirety of the underlying countervailing duty investigation. Thus, I would vacate and remand on this basis.
The majority, however, affirms Commerce‘s final determination that the Korean government does not extend a countervailable subsidy in its provision of electric power to Korean CORE producers. I dissent from this part of the majority opinion. First, despite Commerce‘s use of a repealed standard, the majority theorizes that “adequate remuneration” exists because the Korean government purportedly recovers its costs to the extent it avoids bankruptcy. This novel theory is contrary to law and not supported by substantial evidence. Second, the majority affirms the U.S. Court of International Trade‘s judgment that Nucor failed to exhaust its argument concerning Commerce‘s decision not to include certain costs in its subsidy analysis, such as the costs of nuclear power generation. The administrative record, however, is replete with evidence that Nucor raised and argued those issues before Commerce. I would reverse the U.S. Court of International Trade and remand to Commerce for its consideration of those costs. For the reasons set out below, I dissent.
I.
Prior to passage of the Uruguay Round Administrative Act (“URAA“), U.S. trade law defined a countervailable subsidy as the provision of goods or services at “preferential rates.”
More than two decades after Congress repealed the preferentiality standard in countervailing duty law, Commerce resurrects it. At the outset and throughout Commerce‘s adequate remuneration analysis, Commerce examined whether some or all Korean CORE producers received a preferential price. See J.A. 9023-24, 9025, 9026. The Government argues that Commerce was justified in applying the preferentiality standard because it did so in part only, and because under the facts of this case, it had no other way to reach a decision on whether the Korean CORE producers benefited from countervailable subsidies.2 Appellee Br. 24-27. These arguments have no merit. Commerce acted “well beyond the bounds of its statutory authority,” i.e., contrary to law and the “clear unambiguously expressed intent of Congress,” by knowingly applying a repealed legal standard. Util. Air Regulatory Grp. v. EPA, 573 U.S. 302, 326 (2014); see also City of Arlington, Tex. v. FCC, 569 U.S. 290, 297 (2013) (stating that an agency‘s “power to act and how they are to act is authoritatively prescribed by Congress, so that when they act improperly, no less than when they act beyond their jurisdiction, what they do is ultra vires“).
I agree with the majority that Commerce improperly relied on the repealed preferentiality standard. For example, the majority rejects the Government‘s “broad position” that a “preferential rate” analysis is proper under the statute. Maj. Op. 11-12, 14, 18-19, 21, 24. This alone compels vacatur and remand with instructions that Commerce undertake a countervailing duty analysis in view of the entirety of the record before it, applying the less than adequate remuneration standard required by the statute.
Once preferentiality is discarded, all that remains of Commerce‘s analysis is a limited technical discussion of how KEPCO distributed costs for the purpose of tariff rate proposals. This cursory cost recovery analysis is insufficient to support the conclusion that the electricity prices paid by Korean CORE producers are consistent with prevailing market conditions and the full value of the assets received.
The majority recognizes that the relevant standard is the adequate remuneration standard, which is focused on whether the Korean CORE producers paid the “full value” of the assets. Maj. Op. 18 (citing Delverde, SrL v. United States, 202 F.3d 1360, 1368, 1370 (Fed. Cir. 2000) (vacating and remanding because “Commerce‘s methodology for determining whether Delverde received a countervail[able] subsidy [was] invalid as being inconsistent with
The countervailing duty statute provides that “the adequacy of remuneration shall be determined in relation to prevailing market conditions for the good or service being provided or the goods being purchased in the country which is subject to the investigation or review.”
The majority‘s conclusion that Commerce‘s analysis is reasonable and supported by substantial evidence lacks support both in law and the administrative record. For example, the majority holds that “KEPCO‘s pricing met familiar standards of cost recovery,” but conducts no analysis of Commerce‘s methodology. Id. at 21. The majority does not explain what “familiar standards of cost recovery” means or how they are consistent with the statutory requirement that price setting be in accordance with prevailing market conditions. The majority constructs a theory that a government‘s tariff rates necessarily reflect market conditions because tariff rates are intended to recoup costs such that a government authority manages to stay in business. This theory or understanding is inconsistent with the fundamental purpose of U.S. countervailing duty
The administrative record demonstrates that KEPCO is neither profitable nor that the Korean CORE producers paid the “full value” of the assets sold. As the Korean government explained, it controls the electricity market through majority ownership in KEPCO—solely a transmission and distribution entity—to implement national energy policy and further the public policy goals of the Korean government. J.A. 2543. The record shows that historically, electricity prices in Korea have “maintain[ed] the level lower than total cost“; electricity prices have been “excessively low,” including around the period of investigation; and electricity prices have “not offset cost increase factors such as high fuel prices for generation.” J.A. 3924. KEPCO‘s Form 20-F similarly highlights that the lengthy deliberative process required for approving increases in electricity tariffs in Korea may not adjust “to a level sufficient to ensure a fair rate of return” and may not offset “the adverse impact of... current or potential rises in fuel costs.” J.A. 8949. Commerce failed to analyze or even discuss why this evidence is not relevant or persuasive, and the majority similarly fails to do so.
The record also demonstrates that the cost of generating electricity is the most significant cost in the provision of electricity services. See J.A. 8316 (showing cost attributed to generation to be approximately 90% of KEPCO‘s total cost in its provision of industrial electricity). Yet, as the majority acknowledges, Commerce‘s “analysis of costs did not include the costs of generating” electricity. Maj. Op. 8. When generation costs are explicitly not analyzed, it is unreasonable to assume that Commerce‘s analysis adequately supports the determination that KEPCO‘s pricing is consistent with prevailing market conditions. Here, substantial evidence in the administrative record demonstrates the opposite. For this reason, I conclude that Commerce‘s final determination is not supported by substantial evidence.
III.
Relevant to the adequacy of Commerce‘s cost recovery analysis is its decision not to include in the analysis the cost to generate the electricity sold by KPX to KEPCO. The majority agrees with the Trade Court that Nucor has not exhausted its arguments concerning KPX. Maj. Op. 23. The majority asserts that Nucor mentions KPX only in passing, which was not enough to preserve its related arguments on appeal. Id. The majority faults Nucor for not adequately developing arguments related to KPX in Nucor‘s case brief, yet Commerce‘s cost recovery analysis explicitly ignored Nucor‘s arguments, finding KPX‘s costs not “relevant.” Id. at 9, 23.
Commerce, however, has an affirmative duty to investigate any appearance of a subsidy discovered during investigation. See
As the majority acknowledges, Commerce did not request costs of the Korean generators.4 Maj. Op. 8-9. These costs would have included costs of generation, such as variable fuel prices and fixed facility construction costs. Commerce determined that only the costs to KEPCO, not the costs of the generators themselves, were relevant to price because KEPCO purchases electricity through KPX, which purchases from the generators. See J.A. 9028.
Nucor argued at length before Commerce why generation costs to KPX were relevant. See J.A. 8953-57. Commerce itself acknowledged in the Final Determination Memo that Nucor argued that “KEPCO‘s electricity tariff prices are not set in accordance with market principles” because the prices set by KPX do not reflect the “actual costs incurred by the nuclear generators.” J.A. 9020. In explaining KPX‘s role, Nucor described how KEPCO‘s own Form 20-F explains that the Cost Evaluation Committee determines electricity prices in Korea through a cost-based pool system with fixed (capacity) and variable (marginal) cost components. J.A. 8953-54. The Cost Evaluation Committee is part of KPX. J.A. 911, 2546. Nucor then pointed out that KPX is 100% owned by KEPCO and its subsidiaries, and that KEPCO‘s Form 20-F also explains that KPX distributes purchase orders among generation units according to the “merit order system” that prioritizes generators with low variable costs, e.g., nuclear generators, irrespective of fixed costs. J.A. 8954.
Nucor also asserted before Commerce that the costs of energy, as determined by KPX‘s Cost Evaluation Committee, are “vitally important” to determining whether the CORE producers obtain their electricity according to market principles. J.A. 8954-55. Nucor argued that the prices set by KPX “grossly understate” the actual costs of generation for nuclear plants, which provide Korean CORE producers much of their electricity during off-peak hours when demand from other consumers is low, because the Cost Evaluation Committee assigned the same fixed price for “all generation units, regardless of fuel type used.” J.A. 8955-56 (quoting KEPCO‘s Form 20-F (J.A. 2548)). Nucor argued that KPX‘s price-setting approach shifted the price of electricity away from accurately reflecting the cost of nuclear power generation because it has cheap “fuel” but also has per unit capital expenditures (fixed costs) three times those of thermal generation units. Id. Nucor contended that this approach results in a “gross distortion of electricity prices” for Korean CORE producers, which are among the principal users of nuclear power. Id.
An entity that is a 100%-owned subsidiary of the government is an “authority” under our countervailing duty laws. See
The foregoing evidence, argued in detail by Nucor but not considered by Commerce, suggests that KPX and its Cost Evaluation Committee insulate KEPCO and the Korean CORE producers from the actual costs of generation, specifically for nuclear generators, by setting the identical capacity price for all generators, regardless of differing costs to generators of each fuel type. Additionally, KEPCO‘s Form 20-F states that KPX is a “statutory not-for-profit organization” responsible for setting the price of electricity in Korea. J.A. 2545. Thus, the electricity prices set by KPX in its not-for-profit role are highly relevant to the inquiry of whether the Korean government provides a direct or indirect countervailable subsidy to Korean CORE producers when the government provides the producers electricity. These circumstances undermine the argument or theory that tariff rate schedules necessarily reflect market conditions.
Yet, the majority and the Trade Court find a failure to exhaust on grounds that Nucor did not “meaningful[ly]” argue that KPX was part of the “authority” under
Under these circumstances, the majority imposes nothing more than a mere semantic formality—one that deprives Nucor of its day in court, fails to protect domestic industry from material injury, and constitutes an unreasonable and unjust application of the doctrine of exhaustion. Where “nothing in the record suggests that any additional material from [plaintiff] would have been significant to Commerce‘s consideration of the issue or to later judicial review,” we have held that dismissal for failure to exhaust is inappropriate. Itochu Bldg. Prods. v. United States, 733 F.3d 1140, 1146 (Fed. Cir. 2013) (reversing the Trade Court where Commerce referenced and rejected plaintiff‘s position in the final decision and “nothing... hint[ed] at something significant that [plaintiff] could have said but did not.“). Such is the case here.
Even if the doctrine of exhaustion reasonably applied, the circumstances here counsel against its application. When determining whether the exhaustion doctrine applies, the court must take into account not only agency interests but also “the interest of the individual in retaining prompt access to a federal judicial forum.” Itochu Bldg., 733 F.3d at 1145 (citing McCarthy v. Madigan, 503 U.S. 140, 145 (1992)). “Courts have recognized several recurring circumstances in which institutional interests are not sufficiently weighty or application of the doctrine would otherwise be unjust,” such as (1) if additional filings with the agency would be ineffectual, and (2) if the issue before the court involves a pure question of law that can be addressed without further factual development. Id. at 1146; see also Yangzhou Bestpak Gifts & Crafts Co., Ltd. v. United States, 716 F.3d 1370, 1381 (Fed. Cir. 2013) (“Certain exceptions to the exhaustion requirement apply, such as where exhaustion would be a useless formality, or where the party had no opportunity to raise the issue before the agency.” (internal quotation marks omitted)).
The majority demands a useless formality. Nucor does not assert new evidence or new facts on appeal. As discussed above, the record already contains evidence and argument that underlie the obvious conclusion that KPX is part of the relevant authority; no additional filings to establish that fact are needed. Nor can the Government feign surprise by asserting that KPX is an “authority,” given the prominence of this issue in the Maverick Tube case. See 273 F. Supp. 3d at 1304-05.
A countervailing duty investigation, like an antidumping duty investigation, is an administrative investigation by a government agency; it is not an adversarial proceeding as is a court action. See NEC Corp. v. United States, 151 F.3d 1361, 1367 (Fed. Cir. 1998) (noting the “investigatory (versus adjudicatory) nature of the antidumping investigation“). Commerce collects information from a number of sources, including the petitioner, respondents, and governments, and bases its determinations on the record before it. Commerce should not be permitted to ignore its own record on the basis that a party “mentioned... only in passing” what the record loudly proclaims. Maj. Op. 23.
Indeed,
IV.
For the foregoing reasons, I would vacate the judgment of the Trade Court and remand to Commerce for further proceedings.
Notes
(i) In general. The Secretary will normally seek to measure the adequacy of remuneration by comparing the government price to a market-determined price for the good or service resulting from actual transactions in the country in question. Such a price could include prices stemming from actual transactions between private parties, actual imports, or, in certain circumstances, actual sales from competitively run government auctions. In choosing such transactions or sales, the Secretary will consider product similarity; quantities sold, imported, or auctioned; and other factors affecting comparability.
(ii) Actual market-determined price unavailable. If there is no useable market-determined price with which to make the comparison under paragraph (a)(2)(i) of this section, the Secretary will seek to measure the adequacy of remuneration by comparing the government price to a world market price where it is reasonable to conclude that such price would be available to purchasers in the country in question. Where there is more than one commercially available world market price, the Secretary will average such prices to the extent practicable, making due allowance for factors affecting comparability.
(iii) World market price unavailable. If there is no world market price available to purchasers in the country in question, the Secretary will normally measure the adequacy of remuneration by assessing whether the government price is consistent with market principles.