Slip Op. 23-142

UNITED STATES 

COURT OF INTERNATIONAL TRADE 

Court No. 21-00304 

HYUNDAI STEEL CO., 

Plaintiff, 

v. 

UNITED STATES, 

Defendant, 

and 

NUCOR CORPORATION, 

Defendant-Intervenor.

Before: M. Miller Baker, Judge 

OPINION 

[The court grants judgment on the agency record to 

Plaintiff as to port-usage fees and sustains Commerce’s uncontested remand determination about 

sewerage fees.] 

Dated: September 26, 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, DC, on the briefs for Plaintiff. 
Ct. No. 21-00304 Page 2 

Brian M. Boynton, Principal Deputy Assistant Attorney General; Patricia M. McCarthy, Director; Claudia 

Burke, Assistant Director; and Elizabeth Anne Speck, 

Senior Trial Counsel, Commercial Litigation Branch, 

Civil Division, U.S. Department of Justice of Washington, DC, on the brief for Defendant. Of counsel on the 

brief for Defendant was Ayat Mujais, Attorney, Office 

of the Chief Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce of Washington, 

DC. 

Alan H. Price, Christopher B. Weld, Maureen E. Thorson, Tessa V. Capeloto, and Adam M. Teslik, Wiley 

Rein LLP of Washington, DC, on the brief for Defendant-Intervenor. 

Baker, Judge: In this case, Hyundai Steel Company 

challenges the Department of Commerce’s determination that the company’s receipt of port-usage rights 

from the South Korean government was a countervailable benefit. The court remands because Commerce’s 

decision is contrary to law.1

I 

The Tariff Act of 1930, as amended, provides that 

when Commerce determines that a foreign 

1 The court previously granted the government’s request 

for a voluntary remand as to a sewerage-fees program. ECF 

26. The Department then determined that the program is 

not countervailable and reduced Hyundai’s overall subsidy 

rate by 0.01 percent to reflect that decision. See generally

ECF 27-1 (remand results). No party challenges that finding, which the court accordingly sustains. 
Ct. No. 21-00304 Page 3 

government is providing a “countervailable subsidy” to 

imported goods, and the International Trade Commission further determines that such imports materially 

injure U.S. domestic industry, the former will impose 

a “countervailing duty” on the relevant merchandise 

“equal to the amount of the net countervailable subsidy.” 19 U.S.C. § 1671(a). 

A countervailable “subsidy exists when (1) a foreign 

government provides a financial contribution (2) to a 

specific industry and (3) a recipient within the industry receives a benefit [from] that contribution.” Fine 

Furniture (Shanghai) Ltd. v. United States, 748 F.3d 

1365, 1369 (Fed. Cir. 2014) (citing 19 U.S.C. 

§ 1677(5)(B)). As relevant here, the statute defines “financial contribution” as including the foreign government “foregoing or not collecting revenue that is otherwise due, such as granting tax credits or deductions 

from taxable income.” 19 U.S.C. § 1677(5)(D)(ii). It defines “benefit” as “including” the provision of “goods or 

services . . . for less than adequate remuneration . . . .” 

id. § 1677(5)(E)(iv).2

2 Section 1677(5)(E), titled “Benefit conferred,” provides: 

A benefit shall normally be treated as conferred when 

there is a benefit to the recipient, including— 

(i) in the case of an equity infusion, 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, 
Ct. No. 21-00304 Page 4 

II 

This case arises from a countervailing duty order 

on certain steel products from four countries including, as relevant here, South Korea. See Certain Corrosion-Resistant Steel Products from India, Italy, Republic of Korea and the People’s Republic of China: Countervailing Duty Order, 81 Fed. Reg. 48,387 (Dep’t Commerce July 25, 2016). In 2019, several domestic steel 

producers requested an administrative review of that 

(ii) in the case of a loan, if there is a difference between 

the amount the recipient of the loan pays on the loan 

and the amount the recipient would pay on a comparable commercial loan that the recipient could actually 

obtain on the market, 

(iii) in the case of a loan guarantee, if there is a difference, after adjusting for any difference in guarantee 

fees, between the amount the recipient of the guarantee pays on the guaranteed loan and the amount the 

recipient would pay for a comparable commercial loan 

if there were no guarantee by the authority, and 

(iv) in the case where goods or services are provided, if 

such goods or services are provided for less than adequate remuneration, and in the case where goods are 

purchased, if such goods are purchased for more than 

adequate remuneration. 

For purposes of clause (iv), 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. Prevailing market 

conditions include price, availability, marketability, 

transportation, and other conditions of purchase or 

sale. 

19 U.S.C. § 1677(5)(E). 
Ct. No. 21-00304 Page 5 

order for calendar year 2018. Appx01000–01001, 

Appx01004. Commerce obliged and selected Hyundai, 

a South Korean producer, as a mandatory respondent. 

Appx01002. 

In its review, the Department examined a program 

under which the South Korean government grants 

port-usage rights to private-sector entities. To summarize, South Korean law requires that certain infrastructure—including, as relevant here, port facilities—be government-owned. To encourage the private 

sector to develop such facilities, the program authorizes participating entities to construct governmentowned infrastructure at their expense. In return for 

their investment, such entities may collect certain usage fees from third-party users. Appx01022–01023. 

Under that program, Hyundai built a wharf at 

North Incheon Harbor between 2003 and 2006. 

Appx01023. Commerce found that the company and 

the South Korean government agreed that the former 

would pay the bulk of the construction costs and then 

transfer ownership to the latter in 2007. Id. Under the 

agreement, “Hyundai Steel was granted the right to 

operate and use the port for its own operations freely, 

as well as collect fees from third-party users, for a 

specified time period.” Id. The Department found that 

the “specified time period” was “about 41 years.” 

Appx01058. 

Additionally, “Hyundai Steel reported it collected 

berth occupancy charges (or berthing income) from 

shipping companies and reported those amounts for 

each of the years from 2007 through 2018.” 
Ct. No. 21-00304 Page 6 

Appx01023. The company further disclosed that “it 

had a service contract with an unaffiliated private terminal operating company. . . . While Hyundai Steel 

paid the terminal operating company for its services, 

Hyundai Steel was entitled to harbor facility usage 

fees from the terminal operating company.” Id.

The Department preliminarily determined the 

port-usage program represented a financial contribution to Hyundai by the South Korean government. Absent their agreement, the latter would have collected 

the fees in question, which “represent revenue foregone by the [government] within the meaning of section 771(5)(D)(ii) of the Act.[3] The berthing income and 

the harbor facility usage fees are revenue foregone by 

the [South Korean government] as [the company] did 

not pay [the government] the fees it collected.” 

Appx01023–01024. 

Commerce also found that the program provided 

Hyundai a benefit under 19 U.S.C. § 1677(5)(E) “in the 

amount of the fees exempted reported by Hyundai 

Steel.” Appx01024. “To calculate the benefit, [the Department] summed up the berthing income and the 

harbor facility usage fees that Hyundai Steel reported 

and divided this amount by [the company]’s total sales 

which resulted in a rate of 0.01 percent ad valorem.” 

Appx01031.4

3 19 U.S.C. § 1677(5)(D)(ii). 

4 Commerce also determined the program was specific “because the actual recipients are limited in number.” 

Appx01024. 
Ct. No. 21-00304 Page 7 

Commerce preliminarily assigned Hyundai an 

overall countervailable subsidy rate of 0.51 percent ad 

valorem that included other matters not at issue here. 

Appx01033; Appx01035. The final determination reaffirmed that finding. See Appx01057–01061 (conclusions); Appx01081 (rate). 

III 

Hyundai brought this action under 19 U.S.C. 

§§ 1516a(a)(2)(A)(i)(I) and (a)(2)(B)(iii) to contest Commerce’s final determination. See ECF 9 (complaint).5

The Court has subject-matter jurisdiction under 

28 U.S.C. § 1581(c). 

Nucor Corporation intervened as of right to support 

the government. See ECF 20. The court then granted 

the government’s request for a voluntary remand to allow Commerce to reconsider or clarify its decision on 

the sewerage-fees program. ECF 26. 

The Department’s remand results found the sewerage-fees program not countervailable and reduced 

Hyundai’s subsidy margin by 0.01 percent to 0.50 percent. ECF 27; see also above note 1. The company now 

moves for judgment on the agency record except as to 

that issue. ECF 34 (confidential); ECF 35 (public); see 

also USCIT R. 56.2. The government and Nucor oppose. ECF 37 (government, confidential); ECF 38 

5 In actions such as this brought under 19 U.S.C. 

§ 1516a(a)(2), “[t]he court shall hold unlawful any determination, finding, or conclusion found . . . to be unsupported 

by substantial evidence on the record, or otherwise not in 

accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i). 
Ct. No. 21-00304 Page 8 

(government, public); ECF 41 (Nucor, confidential); 

ECF 42 (Nucor, public). The court decides the motion 

on the papers. 

IV 

Hyundai’s motion raises one question: Whether the 

Department’s determination that the port-usage program provided the company with a “benefit” under 

19 U.S.C. § 1677(5)(E) is unsupported by substantial 

evidence or otherwise contrary to law.6 The company’s 

central contention is that the South Korean government provided port-usage rights “as repayment of a 

debt” rather than as “a gift-like transfer of funds,” 

ECF 35-2, at 11, and as a result, Commerce has not 

identified any countervailable “benefit.” 

The court agrees with Hyundai. The plain and obvious import of the statute is that a countervailable 

“benefit” “normally” requires, well, “a benefit to the recipient.” 19 U.S.C. § 1677(5)(E) (emphasis added). A 

benefit is an “[a]dvantage, profit, good.” Oxford 

6 Although only 0.01 percent of the company’s overall rate 

stems from the port-usage program, it is the trade law version of the straw that broke the camel’s back. Following removal on voluntary remand of the 0.01 percent previously 

assigned to the sewerage-fees program, see above note 1, 

Hyundai’s total subsidy rate is 0.50 percent. Commerce 

treats any countervailable subsidy rate of less than 0.50 

percent as de minimis and disregards it in imposing countervailing duties. 19 C.F.R. § 351.106(c)(1). That means if 

the Department were to reverse its position on remand as 

to port-usage rights, the company would receive a refund 

of all its countervailing duty deposits under the applicable 

order, not just 0.01 percent. 
Ct. No. 21-00304 Page 9 

English Dictionary (online edition). If there’s no advantage, profit, or good to the recipient from the government program at issue, then there’s no countervailable benefit for purposes of the statute, unless an applicable exception applies (and the government makes 

no such contention here).7

The statutory context confirms the plain meaning 

of “benefit.” Section 1677(5)(E)’s four examples of 

countervailable benefits all involve the provision of 

some advantage, profit, or good. See 19 U.S.C. 

§ 1677(5)(E)(i)–(iv); see also Gov’t of Sri Lanka, 308 

F. Supp. 3d at 1381–82 (examining each example). 

Thus, making “interest-free loans” to a government is 

not a countervailable “benefit” because such loans are 

to the lender’s “detriment.” Gov’t of Sri Lanka, 308 

F. Supp. 3d at 1382 (emphasis in original). 

Similarly, Commerce’s “regulatory catch-all provision” defining “benefit” states that “the Secretary normally will consider a benefit to be conferred where a 

firm pays less for its inputs . . . than it otherwise would 

pay in the absence of the government program, or receives more revenues than it otherwise would earn.” 

Id. at 1383 (quoting 19 C.F.R. § 351.503(b)(1)). “The 

7 See Gov’t of Sri Lanka v. United States, 308 F. Supp. 3d 

1373, 1381 n.7 (CIT 2018) (explaining that the statute’s use 

of “normally” merely “indicate[s] that in the case of certain 

types of subsidy programs, such as export insurance 

schemes, the use of the benefit-to-the-recipient standard 

may not be appropriate”) (quoting Uruguay Round Agreements Act, Statement of Administrative Action, H.R. Rep. 

No. 103–316, vol. 1, at 927 (1994), reprinted in 1994 

U.S.C.C.A.N. 4040, 4240); see also id. at 1380 n.4. 
Ct. No. 21-00304 Page 10 

touchstone of [§ 1677(5)(E)], from which this regulation is derived, is that what the company received 

somehow exceeded what [it] paid or should have paid,” 

which is often “tested by reference to what would otherwise be available under normal market conditions.” 

Id. 

In normal market conditions, private companies 

don’t gratuitously build government-owned infrastructure; they demand something in return—“consideration,” in contract law terms.8 Hyundai argues that under its contract with the South Korean government, 

the value of its port-usage rights for 41 years, eight 

months, reflects its costs in building the port. 

ECF 35-2, at 25–26. Indeed, the company points to a 

detailed equation in the contract that is the basis for 

that cost calculation. See id. (citing Appx14766–14769; 

Appx14774–14778). 

Commerce determined that it was not required to 

consider Hyundai’s costs in constructing the port facilities to determine whether the company received a 

benefit and refused to consider whether the company’s 

8 In contract law, consideration does not have to involve either party receiving a benefit, and courts do not typically 

consider the adequacy of consideration. See, e.g., Hamer v. 

Sidway, 27 N.E. 256, 257 (N.Y. 1891) (rejecting the argument that “unless the promisor was benefited, the contract 

was without consideration”). In contrast, § 1677(5)(E) demands that the court consider the value of the consideration that the South Korean government received under the 

contract. So long as that consideration equaled or exceeded 

the value that Hyundai received, the company obtained no 

countervailable “benefit.” 
Ct. No. 21-00304 Page 11 

port-usage rights accurately reflected the costs of constructing the facility. See Appx01058–01060. In so doing, the Department erred as a matter of law. If, as 

Hyundai contends, the value of its port-usage rights 

did not exceed its construction costs, then the company 

received no “[a]dvantage, profit, [or] good,” and thus 

no countervailable benefit. The court accordingly remands for the Department to make that determination. 

* * * 

For the foregoing reasons, the court GRANTS judgment on the agency record to Hyundai on whether the 

provision of port-usage rights at North Incheon Harbor conferred a countervailable benefit and REMANDS that issue to Commerce for further consideration. The court further SUSTAINS the Department’s 

remand redetermination (ECF 27) as to the seweragefees program. A separate remand order will issue. 

Dated: September 26, 2023 /s/ M. Miller Baker

 New York, NY Judge