CAFC Affirms Commerce Decision to Countervail Hyundai's Collection of Berthing Fees
The U.S. Court of Appeals for the Federal Circuit on May 12 affirmed the Court of International Trade's decision to uphold the Commerce Department's move to countervail respondent Hyundai Steel Co.'s collection of berthing fees from third parties on a port it built for the South Korean government. Judges Raymond Chen, Kimberly Moore and Tiffany Cunningham affirmed the trade court's ruling without an opinion under CAFC Rule 36 (Hyundai Steel Co. v. United States, Fed. Cir. # 24-1100).
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The court heard oral argument in the case last week and repeatedly pressed counsel for Hyundai on whether the issue is settled in the court's 1999 ruling in AK Steel v. U.S. In AK Steel, the court said exporter POSCO's exemptions from dockyard fees and collection of third-party fees at the Kwangyang Bay Industrial Estate port facility, which it built then transferred the ownership of to the Korean government, was a countervailable benefit (see 2404080057).
In this case, Hyundai contracted with the South Korean government to build the Incheon North Harbor port, reverting ownership back to the government after construction was complete but receiving the right to collect fees from third-party users of the port as payment (see 2308220031). The exporter argued at CAFC that its case is distinguishable from AK Steel, urging the court to consider the costs Hyundai incurred in building the port, while the U.S. said AK Steel is directly on point.