US Says CAFC Decision in Mosaic Applicable to Challenge of KEPCO Specificity Finding
In a Jan. 8 notice of supplemental authority, the government said that the U.S. Court of Appeals for the Federal Circuit decision in Mosaic Co. v. United States (see 2512050026) was applicable to a current case challenging the Commerce Department's finding that a Korean electricity program was de facto specific to one of its three largest users (Hyundai Steel v. United States, CIT Consol. # 24-00190).
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In Mosaic, CAFC decided that Commerce could limit its comparison of a natural gas subsidy to industrial users rather than looking at all users.
Several parts of that decision supported the government's arguments in the Korean electricity case, Hyundai, the U.S. said. For example, CAFC observed that the specificity determinations statute was meant to provide Commerce "reasonable flexibility" and stated that the specificity test "was intended to function as a rule of reason."
Commerce made an equally reasonable decision here, the government said.
"Here, the record evidence showed that the Republic of Korea had a widely diversified economy with 78 industry sub-groupings, but three industries -- each of which only represented a sub-part of a subgrouping -- consumed a disproportionately larger amount of energy than any other industries," it said.
In a footnote, it said it acknowledged that Mosaic dealt with predominant use under a predominant use specificity finding under 19 19 U.S.C. § 1677(5A)(D)(iii)(II), not a disproportionality specificity finding under 19 U.S.C. § 1677(5A)(D)(iii)(III). But the statute didn't define "disproportionate, either, just as it hadn't defined "predominant use," it said. CAFC also cited sections of the Uruguay Round Agreements Act's Statement of Administrative Action that applied to both specificity provisions, it said, and other cases that considered disproportionality findings.