[00:00:00] Speaker 02:
Our next case for argument is 24-1100, Hyundai Steele versus United States.

[00:00:07] Speaker 02:
Mr. Mills, please proceed.

[00:00:10] Speaker 01:
Good morning.

[00:00:10] Speaker 01:
May it please the court, Brady Mills on behalf of plaintiff, appellant, Hyundai Steele.

[00:00:14] Speaker 01:
This case involves a so-called port usage rights program.

[00:00:18] Speaker 01:
Under this program, Hyundai SEAL entered into a contractual agreement with the government of Korea to construct a wharf at the port in Incheon Harbor, Korea.

[00:00:27] Speaker 01:
Hyundai SEAL was required under the agreement to substantially pay for the construction of the wharf.

[00:00:35] Speaker 01:
Upon completion of construction, Hyundai SEAL was then

[00:00:38] Speaker 01:
contractually obligated pursuant to Korean law as well to provide ownership of that wharf to the government of Korea.

[00:00:45] Speaker 01:
And so in exchange for this constructing the wharf and providing it to the government of Korea, Hyundai's deal was provided certain rights under this agreement to collect fees from certain users of this wharf.

[00:00:57] Speaker 01:
The period of time that the parties calculated it would take them to recover their construction costs was approximately 42 years.

[00:01:04] Speaker 01:
And so Hyundai Steel was given the right to collect these port fees from you.

[00:01:11] Speaker 02:
I think one of the challenges that I perceive that I'd like to have you address is why is this case not governed by a case deal?

[00:01:20] Speaker 02:
And you cite some non-binding CIT decisions that seem to have not analyzed or really followed AK Steel.

[00:01:30] Speaker 02:
But I'm thinking AK Steel is still good law.

[00:01:34] Speaker 02:
And so why isn't this case governed by it?

[00:01:38] Speaker 02:
So I guess it's a two-part question.

[00:01:39] Speaker 02:
One, is it governed by it?

[00:01:41] Speaker 02:
And the second would be, if it is governed by it, is it distinguishable?

[00:01:44] Speaker 02:
How about that?

[00:01:45] Speaker 01:
Yeah, I mean, I would say that there's several distinguishing factors about why we feel that AK SEAL should not be followed by this court.

[00:01:53] Speaker 01:
First of all, that case was reviewing a 1993 case from the Commerce Department, certain SEAL products, from Korea, which was decided under the pre-Ura Grey Round Agreement law.

[00:02:04] Speaker 01:
And so the statute and regulations that existed at that time are different than what exists currently and what was before Commerce in this case.

[00:02:11] Speaker 01:
And so we think that in that case, the court, by definition, was not addressing whether this was a countervailable benefit under 19 U.S.C.

[00:02:19] Speaker 01:
1677-5E or the regulations 19-24.

[00:02:22] Speaker 04:
So let's just start there.

[00:02:23] Speaker 04:
If the URAA had never been passed, then would you agree that AK Steel controls?

[00:02:30] Speaker 01:
No, I would not.

[00:02:31] Speaker 04:
Oh, there'd still be something.

[00:02:32] Speaker 04:
Yeah.

[00:02:33] Speaker 04:
Okay.

[00:02:33] Speaker 04:
So can we just explore that before you get to your statutory or regulatory architecture?

[00:02:39] Speaker 01:
Sure.

[00:02:40] Speaker 01:
So we think that there's one very important factual distinction between what was the facts that were before the court in AKCL and what's involved in our case.

[00:02:48] Speaker 01:
In that case, the issue was whether Pasco, who had also built a port berth, it wasn't a wharf, it was a berth, and had paid for the construction and given ownership to the government, whether they were given free usage of the port berths.

[00:03:03] Speaker 01:
And so part of the facts involved in that case was building a port, giving ownership to the government, and then being able to use it for free.

[00:03:10] Speaker 01:
And so here in this case, the record is

[00:03:12] Speaker 01:
you know, undisputed that Hyundai Steel actually paid for usage of this war.

[00:03:17] Speaker 01:
And so there wasn't the same factual situation where they were given for a usage.

[00:03:21] Speaker 04:
And here's the problem I have with that distinction.

[00:03:25] Speaker 04:
It's clear from both the facts in AK Steel and the facts here that whether Pasco or you are

[00:03:37] Speaker 04:
exempted from paying usage fees or collecting third-party usage fees, the point of it is to reimburse you or POSCO for the cost of building out that port or that section of the port.

[00:03:53] Speaker 04:
And in that way, nevertheless, in AK Steel, we agreed with Commerce that a benefit was being provided, because it was very much akin to the provision of a specific infrastructure benefit.

[00:04:10] Speaker 04:
So if that's the only distinction, then I think AK Steel would control here, again, assuming that there isn't something about the statute that changes everything.

[00:04:22] Speaker 01:
Yeah, I mean, I guess additional distinctions that we would draw is that it's clear in the AK Seale case that the decision was based on substantial evidence.

[00:04:31] Speaker 01:
The conclusion of the court's decision is we find that commerce's decision is supported by substantial evidence.

[00:04:36] Speaker 01:
Our argument is grounded in the statute and exactly what the term benefit means under the new post-URA law.

[00:04:44] Speaker 01:
And so we've relied on a dictionary definition of what constitutes a benefit.

[00:04:48] Speaker 01:
Ours is more of a legal question about can commerce interpret the new statute and what constitutes account available benefit in a way that they can ignore the fact that the right that was given to Hyundai Seal here was not just to give them the right to collect money that the government would have otherwise collect, but it was actually to compensate them for building a wharf that is owned by the government of Korea.

[00:05:10] Speaker 04:
So what is it in the statute that

[00:05:14] Speaker 04:
is evidence that Congress and the URAA departed from the understanding of benefit as that question was evaluated in the AK Steel.

[00:05:28] Speaker 01:
Well, Your Honor, I would submit that in the AK Steel decision, there's not one reference to any statute or regulation.

[00:05:34] Speaker 04:
But it was talking about conferring a benefit, and there it was talking about conferring

[00:05:42] Speaker 04:
Uh, infrastructure benefit that was specific and here, you know, one could read and understand the facts here in the same way as when it comes to a benefit, unless you're telling me there's something in the statute as amended that, um, I don't know, it was something of a game changer in terms of re-understanding the term benefit.

[00:06:07] Speaker 04:
away from the way it was obviously understood and discussed in AK Steel.

[00:06:12] Speaker 01:
Yeah, I guess I would say that pre-URAA commerce, the statute didn't have a specific provision that said what a benefit was.

[00:06:20] Speaker 01:
It talked about bounties or grants.

[00:06:21] Speaker 01:
And so commerce had sort of an ad hoc practice of how they decided whether something was provided a bounty or grant.

[00:06:28] Speaker 01:
And part of that was the concept of a benefit.

[00:06:31] Speaker 01:
But they weren't constrained by any sort of statutory structure where Congress actually laid out.

[00:06:36] Speaker 01:
The statute now has four examples of what constitutes a benefit.

[00:06:41] Speaker 04:
Those are just examples though.

[00:06:45] Speaker 04:
Congress, commerce,

[00:06:47] Speaker 04:
we are not limited to those four examples in terms of trying to understand the meaning of benefit.

[00:06:53] Speaker 01:
Right.

[00:06:53] Speaker 01:
And commerce has filled that additional gap in their regulations at 351.503b, where they provide sort of a catch-all provision that if something is not specifically an enumerated benefit, how they look to see whether it provides a counter-available benefit.

[00:07:07] Speaker 01:
And that language is whether a company is getting an input for less than what they would otherwise pay because of the government program, or is getting more revenue than they would otherwise earn.

[00:07:17] Speaker 01:
And so, again, our point is that the statutory framework and the regulation now make clear that with these examples and these descriptions of what constitutes account available benefit, that the benefit actually has to provide some type of advantage or profit to the recipient.

[00:07:31] Speaker 01:
It can't just be Hyundai Steel

[00:07:33] Speaker 01:
And part of our issue is that commerce is just sort of myopically looking at this to see, okay, government provides money to Hyundai Steel, that's a kind of available benefit.

[00:07:44] Speaker 01:
And they're not taking into account the entire context.

[00:07:46] Speaker 01:
And we agree that in the AK Steel decision,

[00:07:49] Speaker 01:
You know, the issue was, you know, the court's rationale did seem to, on the substantial evidence basis, you know, didn't seem to have a problem with the fact that, you know, that Pasco in that case had built the court and given it to the government, and that they considered commerce's treatment of that as being a counter-available benefit.

[00:08:07] Speaker 01:
They affirmed that on substantial evidence grounds.

[00:08:10] Speaker 01:
Again, I strongly believe that that case, because it was decided when there was more of an ad hoc framework about what constituted a benefit, and now, in this case, there's actually a statutory structure that has examples.

[00:08:22] Speaker 01:
Commerce has regulations that sort of expound further on what actually constitutes the counter-available benefit, that this case should be analyzed under that framework and not a case that was decided 26 years ago.

[00:08:34] Speaker 01:
And frankly, I do think the factual distinction about-

[00:08:40] Speaker 03:
If we decided to include the 18th seal, covered the same issue before us today, do you agree that the right outcome would be an affirm?

[00:08:50] Speaker 01:
now i mean again i i just i don't i don't think uh... i'm not trying to be to disagree with your promise completely but i but i just think that a case you was decided under it the court did not address under nineteen u.s.c.

[00:09:02] Speaker 01:
sixteen seventy seven five e and three oh five uh... five oh three d of commerce's regulations whether there was a counter available benefit and so the idea that that case is somehow controlling twenty six layers on a case with different facts uh... you know i i i strongly

[00:09:17] Speaker 01:
resist that.

[00:09:18] Speaker 03:
And I think- I think what you're saying, but just take what my question was at face value.

[00:09:23] Speaker 03:
I basically suppose there's a hypothetical to you.

[00:09:26] Speaker 03:
I said, if we conclude, i.e.

[00:09:29] Speaker 03:
we be in the court, that it can still address the same issue before us here today, do you agree under those circumstances that a crime would be the right outcome?

[00:09:40] Speaker 01:
Again, yes.

[00:09:42] Speaker 01:
I think obviously, if you conclude that a prior federal circuit case is identical in law and fact to the issue presented that we're presenting to the court, then I guess AKCL would be controlling.

[00:09:56] Speaker 01:
But my point is that there's

[00:09:58] Speaker 01:
There's so many distinctions between what was before the court in AK Steel and what's present in this case.

[00:10:04] Speaker 01:
And again, I know the CIT's decision that we cite in Hyundai Steel is only a CIT decision, but the court addressed this, our exact argument under the exact statutory framework dealing with the exact facts.

[00:10:16] Speaker 04:
And summarily- It did not address AK Steel though, is that right?

[00:10:21] Speaker 01:
No, the court did not address AK Steel.

[00:10:23] Speaker 01:
The government didn't argue AK Steel in that case.

[00:10:26] Speaker 01:
But again, that case dealt four square with what our argument is here, which is like we're looking at the actual statutory language, the regulatory language, we're saying counter-available benefit has to, there's a meaning of what is a counter-available benefit.

[00:10:42] Speaker 01:
It's not enough to just show that a company received a benefit in the sense that they were able to collect fees.

[00:10:47] Speaker 01:
Commerce has to look at the totality of the program to determine whether what's going on here actually results in the company receiving some type of advantage or profit or count available benefit.

[00:10:57] Speaker 01:
And so, again, we think that the Hyundai Steel case is directly on point for what we're arguing here.

[00:11:05] Speaker 02:
Do you want to save time for rebuttal?

[00:11:07] Speaker 02:
You're into your rebuttal time?

[00:11:08] Speaker 01:
Yes.

[00:11:08] Speaker 01:
Yes.

[00:11:09] Speaker 01:
If there's no more questions, I'll reserve for rebuttal.

[00:11:11] Speaker 01:
Thank you.

[00:11:33] Speaker 00:
Good morning.

[00:11:34] Speaker 00:
Good morning, Your Honors.

[00:11:35] Speaker 00:
May it please the court, Christopher Barrett on behalf of the United States.

[00:11:39] Speaker 00:
AK Steel is still good law, and it does control in this case.

[00:11:43] Speaker 00:
So the, Hyundai Steel is saying that this is somehow different or distinguishable from what Costco, sorry, Costco and the government of Korea did in the case, in AK Steel.

[00:11:57] Speaker 00:
But what happened in that case is exactly the same thing that happened here.

[00:12:01] Speaker 00:
The only difference is that Hyundai Steel built the North port of Incheon, South Korea, and has exclusive access over this port.

[00:12:10] Speaker 00:
They're the only ones who operated and use it for this very long period of time.

[00:12:14] Speaker 00:
And they're allowed to collect birthing fees and harbor usage fees from the government of Korea.

[00:12:21] Speaker 00:
This is exactly what POSCO was allowed to do.

[00:12:23] Speaker 00:
when they constructed their birthing ports at a different port in Korea.

[00:12:29] Speaker 04:
Just so I understand, you said they are the exclusive user of this port, but then they're also collecting fees on this port from third parties.

[00:12:38] Speaker 04:
I don't see how those two fit together.

[00:12:40] Speaker 00:
So they are the exclusive user of the port, the North port of Incheon.

[00:12:45] Speaker 00:
They are exempted from fees.

[00:12:47] Speaker 00:
So the government of Korea is forgoing revenue here because the government of Korea otherwise would be

[00:12:53] Speaker 00:
entitled to collect fees from Hyundai Steel.

[00:12:56] Speaker 00:
Right.

[00:12:56] Speaker 04:
Now, I heard them disputing that, that they do pay fees.

[00:13:01] Speaker 00:
They don't pay birthing fees or harbor usage fees.

[00:13:06] Speaker 04:
OK, maybe they pay some other fees.

[00:13:07] Speaker 00:
There are other construction costs.

[00:13:09] Speaker 00:
I think, and I don't want to speak for Hyundai Steel, but I think what they're talking about is the construction costs that they incurred in actually building the port itself.

[00:13:17] Speaker 00:
But there is no dispute that they are exempted from these harbor usage fees

[00:13:22] Speaker 00:
and the birthing fees for the period of 41 years that they control this port.

[00:13:28] Speaker 00:
Even though the government of Korea technically owns it, Hyundai Steel controls it and operates it.

[00:13:33] Speaker 00:
So they're exempted from those fees.

[00:13:35] Speaker 00:
They also do charge some fees to third-party shipping companies that come in.

[00:13:40] Speaker 00:
And so what commerce ended up doing in this case is they applied a 0.01% ad valorem countervailing duty rate

[00:13:49] Speaker 00:
fees that they took in for the period of review, the 2018 period of review, and divided that by the total sales of Hyundai Steel.

[00:13:56] Speaker 00:
And so they got a pretty small percentage, but a percentage nonetheless, that they applied in this case.

[00:14:01] Speaker 00:
But back to the issue of AK Steel, it's the same basic facts and the same basic law.

[00:14:07] Speaker 00:
Now, Hyundai Steel is saying that this came into place before the URAA, and that's true.

[00:14:12] Speaker 00:
AK Steel was decided, well, it was actually decided after the URAA, but the law at issue was pre-URAA.

[00:14:19] Speaker 00:
But the URA doesn't do anything to change what is a countervailing duty, sorry, what is a countervailing, counter-available subsidy.

[00:14:29] Speaker 00:
So the issue of whether a counter-available subsidy exists is the same analysis.

[00:14:35] Speaker 00:
So the actual statute, it's all about financial contribution.

[00:14:41] Speaker 00:
And Commerce looked at that.

[00:14:42] Speaker 00:
And in subsection, so it's 19 U.S.T., 1677,

[00:14:46] Speaker 00:
And in 5D2, it's foregoing or not collecting revenue that is otherwise due, such as granting tax credits or deductions with tax-paying income, but foregoing or not collecting revenue that is otherwise due.

[00:14:59] Speaker 00:
So that's a financial contribution.

[00:15:01] Speaker 00:
And then next, the benefit conferred is a benefit, is a subsection E. A benefit shall normally be treated as conferred where there is a benefit to the recipient.

[00:15:09] Speaker 00:
Whether there's a benefit to the recipient, there are a list there, one through four,

[00:15:14] Speaker 00:
that talk about in situations that don't actually apply to this case.

[00:15:19] Speaker 00:
So this case does not have equity infusion, doesn't have a loan, doesn't have a loan guarantee, or a good or service provided for less than adequate remuneration.

[00:15:30] Speaker 00:
Again, as the court said during Hyundai Steel's argument, it's not an exhaustive list.

[00:15:35] Speaker 00:
It's just a question of whether there's actually a benefit conferred to Hyundai Steel.

[00:15:39] Speaker 00:
And it's a really narrow issue here.

[00:15:41] Speaker 00:
The reality is that the government of Korea is saying, look, we won't collect fees, birthing fees or harbor usage fees, for you for this period of time.

[00:15:51] Speaker 00:
And that is the benefit that's conferred.

[00:15:54] Speaker 00:
Commerce is following that statute.

[00:15:55] Speaker 00:
Now, there is a lot to be made in the Hyundai Steel brief about, well, it's not offsetting the construction costs.

[00:16:02] Speaker 00:
But offsetting is not contemplated for revenue foregone.

[00:16:06] Speaker 00:
That's not contemplated in the statute, and it's not contemplated in the regulations.

[00:16:11] Speaker 00:
So there are offsets in the statute.

[00:16:14] Speaker 00:
So it's not as if the commerce never contemplates whether something could be offset by things, other costs that an exporter would incur.

[00:16:24] Speaker 04:
But those are limited.

[00:16:25] Speaker 04:
Is there a question as to whether the fact pattern of a case deal fits within the new statutory regime?

[00:16:34] Speaker 04:
I ask that because,

[00:16:38] Speaker 04:
One way of reading the statutory regime, which is, I think, the way the CIT read it, was all I need to look at is to figure out whether this party, Hyundai, is collecting fees from third parties that the government of Korea otherwise wouldn't have been collecting, but gave that to Hyundai.

[00:17:02] Speaker 04:
I don't need to look any deeper than that.

[00:17:05] Speaker 04:
It can be that I'll just use the term superficial.

[00:17:08] Speaker 04:
That's right.

[00:17:09] Speaker 04:
Now let's look at AK Steel.

[00:17:10] Speaker 04:
AK Steel didn't quite look at it that simply.

[00:17:13] Speaker 04:
It didn't just say, well, all we need to think about was the fact that Costco there didn't need to pay dockyard fees.

[00:17:25] Speaker 04:
They went further.

[00:17:27] Speaker 04:
They said, well, we have to look at the context of why they didn't pay dockyard fees.

[00:17:31] Speaker 04:
And they weren't paying dockyard fees as a form of allowing POSCO to get reimbursed for all the costs POSCO had to bear for building those 15 port ports.

[00:17:44] Speaker 04:
And so in that way, we had some kind of version or something akin to a specific infrastructure benefit.

[00:17:53] Speaker 04:
So that kind of analysis at a minimum seems more subtle or nuanced than the simple, you know, are you collecting fees that CREO otherwise would have been collecting?

[00:18:07] Speaker 00:
It may be more subtle.

[00:18:12] Speaker 00:
Though I don't think that, you know, I don't think that the court in AK Steel looked

[00:18:17] Speaker 00:
did a really expansive analysis of the birthing fees and the construction offset.

[00:18:27] Speaker 00:
It just said that the construction

[00:18:29] Speaker 00:
costs that were, which is exactly what Hyundai Steel is saying here, that the government of Korea is reimbursing us for the construction costs that we incurred when we built this port.

[00:18:39] Speaker 00:
This is exactly the same thing in AK Steel.

[00:18:41] Speaker 00:
And the court in AK Steel said, well, that is not, even though it's being framed as a reimbursement for

[00:18:49] Speaker 00:
those construction costs, it's still a counter-available subsidy, because the government of Korea is foregoing fees that it otherwise could collect.

[00:18:56] Speaker 00:
So I guess the court could do that in this case, and it would be the exact same result.

[00:19:02] Speaker 00:
But I think that just looking at the statute itself post-URAA, you can look at it, and if you read the statute, this is a counter-available subsidy.

[00:19:13] Speaker 00:
And then there are subsection C of 1977 says,

[00:19:19] Speaker 00:
Additionally, that commerce is not required to consider the effects of the subsidy in determining whether a subsidy exists.

[00:19:28] Speaker 00:
So again, whether it exists, they're not required to look at the effects of it.

[00:19:33] Speaker 00:
So whether Hyundai is made whole or not of their construction costs, that's not part of whether the subsidy exists.

[00:19:39] Speaker 00:
There is a narrow subset

[00:19:41] Speaker 04:
of cases where the government of Korea struck a different bargain with Hyundai here.

[00:19:48] Speaker 04:
And it was something more like, hey Hyundai, you can collect all these other usage fees from third parties for this port in Incheon.

[00:20:01] Speaker 04:
But at the same time, in order to get that, to get those monies, we want you to do something for us.

[00:20:08] Speaker 04:
You know, we want like, I don't know, a thousand free cars for our police force from you, Hyundai.

[00:20:19] Speaker 04:
Would commerce under those circumstances say, hey, Hyundai, you're getting to collect all these harbor usage fees that otherwise would have gone to Korea.

[00:20:31] Speaker 04:
that's all i'd commerce need to look at i don't have to worry about some other side story about you providing free cars to the government this is the only thing i have to look at under the statute you were conferred a benefit and that's countervailable end of story so i'm not entirely sure if that if they would be as i don't think that they would be limited to with a turn a blind eye to that thousand free cars given to the korean

[00:20:59] Speaker 00:
No, I don't think that they would turn a blind eye to it.

[00:21:02] Speaker 00:
But they might.

[00:21:05] Speaker 00:
No, I don't think that they would turn a blind eye to it.

[00:21:07] Speaker 00:
I think it would be analyzed under a different provision of the countervailing duty statute, potentially.

[00:21:13] Speaker 04:
Well, what do you think?

[00:21:14] Speaker 04:
Do you think there should be a countervailing duty under those facts?

[00:21:20] Speaker 00:
I guess it would depend.

[00:21:25] Speaker 00:
It would depend on the, yes, I think so.

[00:21:28] Speaker 00:
I mean, if there was.

[00:21:29] Speaker 00:
Oh.

[00:21:30] Speaker 00:
So then, yeah.

[00:21:31] Speaker 04:
Say no.

[00:21:31] Speaker 00:
Say no.

[00:21:34] Speaker 00:
Say no.

[00:21:34] Speaker 00:
Say no.

[00:21:34] Speaker 00:
No, sorry.

[00:21:35] Speaker 04:
Maybe you don't want to bind commerce.

[00:21:36] Speaker 00:
I think I got lost a little bit with the court's question.

[00:21:39] Speaker 00:
I apologize.

[00:21:40] Speaker 00:
Yeah, I think you did.

[00:21:42] Speaker 00:
Sorry about that.

[00:21:45] Speaker 00:
I haven't answered any more of the court's questions since the court asked me a question.

[00:21:47] Speaker 02:
Do you have any further questions?

[00:21:52] Speaker 03:
I just had one little housekeeping question.

[00:21:55] Speaker 03:
Yes, Your Honor.

[00:21:56] Speaker 03:
Following up on, I think, a conversation that you were having with Judge Chin, my understanding was that Hyundai had received birthing income from third parties during the period of review.

[00:22:08] Speaker 03:
Is that after an understanding?

[00:22:10] Speaker 00:
That's correct.

[00:22:11] Speaker 03:
OK.

[00:22:12] Speaker 03:
Very good.

[00:22:13] Speaker 00:
Yes.

[00:22:15] Speaker 02:
All right.

[00:22:15] Speaker 02:
Thank you, Counsel.

[00:22:16] Speaker 00:
Thank you, Your Honor.

[00:22:28] Speaker 01:
give us another shot here.

[00:22:31] Speaker 01:
So the first point that I wanted to make is there was a discussion about the government suggesting that Hyundai Steel had exclusive rights to use this wharf, and that's absolutely not true.

[00:22:43] Speaker 01:
Part of the compensation that was to play in the agreement was that Hyundai Steel could collect birthing income from shipping companies, and they could also collect unloading charges from third parties.

[00:22:53] Speaker 01:
And so the agreement itself contemplated that there could potentially be use by third parties.

[00:22:57] Speaker 01:
And so there was no exclusivity in the agreement about Hyundai Steel being the only one that could use this wharf.

[00:23:05] Speaker 01:
The other point I'd like to make is in response to Judge Cunningham's question about AK Steel.

[00:23:14] Speaker 01:
There's another point that I didn't get to before about a distinguishing factor of AK Steel, and that's following that Certain Steel Products 1993 case.

[00:23:22] Speaker 01:
Commerce started developing a different way of looking at these port usage programs, and it's what we refer to in our brief as an excessive benefit standard.

[00:23:30] Speaker 01:
where they looked to see how long was the free use period that a company was given.

[00:23:36] Speaker 01:
For example, in the cold rolled case, Dongbu was given a 70-year period of free usage.

[00:23:42] Speaker 01:
Commerce looked at that and said, that's 10 amounts of giving ownership

[00:23:46] Speaker 01:
to Dongbu.

[00:23:48] Speaker 01:
And so therefore, they seem to focus more on the period of time that they were provided for usage of the court.

[00:23:56] Speaker 01:
And so we think this is another reason why that practice of excessive benefit did not exist at the time of the AK Steel decision.

[00:24:04] Speaker 01:
And so we think that's an additional distinguishing factor about why the court should not follow AK Steel.

[00:24:10] Speaker 01:
Two other quick points that I'd like to hit on.

[00:24:14] Speaker 01:
The government argued about offsets, that the statute provides certain situations where commerce can provide an offset to a counter-available subsidy.

[00:24:23] Speaker 01:
And those offsets are very narrowly construed.

[00:24:27] Speaker 01:
Our argument is not asking for any type of offset.

[00:24:30] Speaker 01:
This is really like a practical question of can commerce find a counter-available benefit, like an advantage or profit to a company,

[00:24:38] Speaker 01:
who incurred significant cost to build something for the government that the government owns.

[00:24:42] Speaker 01:
The government can collect fees from that war from users in perpetuity.

[00:24:46] Speaker 01:
And the government's tailoring their reimbursement, letting them collect fees for a finite period of time.

[00:24:52] Speaker 01:
And the record here shows that Hyundai's deal

[00:24:55] Speaker 01:
is never going to even come close to recovering the cost that it incurred in constructing this wharf.

[00:25:01] Speaker 01:
We provided a schedule in Appendix 03-803.

[00:25:05] Speaker 01:
It lists the actual birthing income, which is really the main income that we've received.

[00:25:09] Speaker 01:
And it shows it for each year of the average useful life period from 2007 to 2018.

[00:25:14] Speaker 01:
And if you compare that to the actual schedule, Appendix 8 of the agreement,

[00:25:20] Speaker 01:
It has estimates of how much birthing income they were supposed to receive.

[00:25:24] Speaker 01:
And the actual amount they received is less than half of what is contemplated in this schedule.

[00:25:29] Speaker 01:
And so if that continues, then Hyundai Steel is never going to even recover the cost.

[00:25:33] Speaker 01:
So again, we're just saying that a counter-available benefit has to mean something under the new law, and that commerce can't just myopically look and say, oh, company A received money from the government.

[00:25:44] Speaker 01:
That's the end of the story.

[00:25:46] Speaker 01:
they have to take a holistic view and consider contrary evidence, which is an established principle that the agency has to take into account contrary evidence.

[00:25:54] Speaker 01:
And the contrary evidence in this case is that the only reason Hyundai Steel got the right to collect these fees is because they incurred tremendous cost in building this wharf that was then given to the government.

[00:26:03] Speaker 01:
I mean, building infrastructure is a governmental function, right?

[00:26:06] Speaker 01:
This is a wharf that the government has to own.

[00:26:09] Speaker 01:
Because the government doesn't have enough money to pay for this, they contract out to private parties to do this.

[00:26:15] Speaker 01:
This is merely a contractual agreement between Honey and the government to build a wharf, and then they're given some limited reimbursement for their costs.

[00:26:22] Speaker 01:
And we submit that that is not a countable available benefit under the statute.

[00:26:26] Speaker 01:
And we don't think AK Steel got into the minutia of this issue.

[00:26:30] Speaker 01:
And frankly, the discussion in AK Steel is two paragraphs

[00:26:33] Speaker 01:
It basically recites what commerce said and then says we're convinced that commerce is right based on substantial evidence.

[00:26:39] Speaker 01:
There was no weighing of all these, of the different arguments that I'm making here and the distinctions that have occurred post-URA.

[00:26:45] Speaker 03:
So.

[00:26:46] Speaker 03:
Council, do you agree that the length of Hyundai CL's court usage rights is more than 41 years?

[00:26:52] Speaker 01:
No, it's absolutely not.

[00:26:55] Speaker 01:
The agreement provides the period of where they have that right to operate and manage the wharf, and that's 41 years and eight months is the exact amount.

[00:27:04] Speaker 01:
And so once that date comes and goes, if Hyundai Seal has not recovered their costs, then that's it.

[00:27:09] Speaker 01:
They're never going to recover them because their rights expire after 41 years and eight months.

[00:27:17] Speaker 01:
So anyway, in conclusion, we strongly urge the court.

[00:27:20] Speaker 01:
I mean, I understand that AK Steel is the decision from this court and that it does have factual similarities.

[00:27:26] Speaker 01:
But I urge the court to look closely at the facts of this case and the changes in the law before deciding that AK Steel should control the outcome of this case.

[00:27:36] Speaker 02:
Thank you, counsel.

[00:27:37] Speaker 02:
We thank both counsels.

[00:27:38] Speaker 02:
This case is taken under submission.