Slip Op. 06-39
UNITED STATES COURT OF INTERNATIONAL TRADE
HYNIX SEMICONDUCTOR INC.,
HYNIX SEMICONDUCTOR AMERICA INC.,
Before: Richard W. Goldberg,
Plaintiffs, Senior Judge
v. Court No. 03-00651
UNITED STATES,
Defendant,
and
INFINEON TECHNOLOGIES, NORTH
AMERICA CORP. and MICRON
TECHNOLOGY, INC.,
Defendant-
Intervenors.
OPINION
[Commerce’s remand determination sustained. Previously deferred
portions of final affirmative countervailing duty determination
sustained.]
Date: March 23, 2006
Willkie, Farr & Gallagher, LLP (Daniel Lewis Porter, James
Philip Durling and Matthew Paul McCullough) for Plaintiffs Hynix
Semiconductor Inc. and Hynix Semiconductor America Inc.
Peter D. Keisler, Assistant Attorney General; David M. Cohen,
Director; Jeanne Davidson, Deputy Director, Commercial
Litigation Branch, Civil Division, U.S. Department of Justice
(David F. D’Alessandris) and Matthew Dennis Walden, Office of
the Chief Counsel for the Import Administration, U.S. Department
of Commerce for Defendant United States.
Court No. 03-00651 Page 2
King & Spalding, LLP (Gilbert Bruce Kaplan and Cris R. Revaz)
for Defendant-Intervenor Micron Technology, Inc.
Collier, Shannon, Scott, PLLC (Kathleen W. Cannon) for
Defendant-Intervenor Infineon Technologies North America Corp.
Goldberg, Senior Judge: In Hynix Semiconductor Inc. v.
United States, 29 CIT __, 391 F. Supp. 2d 1337 (2005) (“Hynix
I”), familiarity with which is presumed, the Court sustained in
part, remanded in part, and deferred reviewing in part the final
affirmative countervailing duty determination made by the United
States Department of Commerce (“Commerce”) regarding dynamic
random access memory semiconductors (“DRAMS”) from the Republic
of Korea (“Korea”). See Dynamic Random Access Memory
Semiconductors from the Republic of Korea, 68 Fed. Reg. 37122
(Dep’t Commerce June 23, 2003) (final determination), amended by
68 Fed. Reg. 44290 (Dep’t Commerce July 28, 2003) (amended final
determination) (together, the “Final Determination”). Duly
complying with the Court’s remand order in Hynix I, Commerce
issued draft redetermination results on November 3, 2005 and
then, after receiving comments from Plaintiffs Hynix
Semiconductor Inc. and Hynix Semiconductor America Inc.
(together, “Hynix”) and Defendant-Intervenor Micron Technology,
Inc. (“Micron”), Commerce issued final redetermination results.
See Final Results of Redetermination Pursuant to Remand, Inv.
No. C-580-851 (Nov. 23, 2005), available at
http://ia.ita.doc.gov/remands/05-106.pdf (the “Remand Results”).
Court No. 03-00651 Page 3
This case is now properly before the Court following remand
and the Court has jurisdiction pursuant to 28 U.S.C. § 1581(c).
For the reasons that follow, the Court sustains the Remand
Results and, proceeding to an analysis of the issues previously
deferred by the Court, also sustains the remainder of the Final
Determination.
I. BACKGROUND
A. The Court’s Decision in Hynix I
In Hynix I, the Court recognized the novelty of Commerce’s
invocation of authority under 19 U.S.C. § 1677(5)(B)(iii) 1 for
purposes of the Final Determination. Hynix I, 29 CIT at ___,
391 F. Supp. 2d at 1343. This section of the countervailing
duty statute permits Commerce to countervail certain benefit-
conferring financial contributions made by private parties
1
This section provides, in pertinent part:
A subsidy is described in this paragraph in the case
in which an authority . . .
(iii) makes a payment to a funding mechanism to
provide a financial contribution, or entrusts or
directs a private entity to make a financial
contribution, if providing the contribution would
normally be vested in the government and the
practice does not differ in substance from
practices normally followed by governments,
to a person and a benefit is thereby conferred.
19 U.S.C. § 1677(5)(B) (1999) (emphasis added).
Court No. 03-00651 Page 4
pursuant to government entrustment or direction. 2 Invoking this
section in the Final Determination, Commerce determined that
Hynix had received substantial indirect subsidies from the
Korean government through a clandestine program of coercing
Hynix’s creditors to give preferential loans and debt-to-equity
swaps during Hynix’s ten-month restructuring. Id. at ___, 391
F. Supp. 2d at 1340 (citing Issues and Decision Memorandum for
the Final Determination in the Countervailing Duty Investigation
of Dynamic Random Access Memory Semiconductors from the Republic
of Korea, Inv. No. C-580-851, (Dep’t Commerce June 16, 2003),
available at http://ia.ita.doc.gov/frn/summary/korea-south/03-
15793-1.pdf (“Decision Memo”) at 20-21).
The Court focused its initial review of the Final
Determination on Commerce’s interpretation and application of
the first part of the three-prong statutory test required to
prove the existence of these so-called ‘entrusted or directed’
subsidies: “the making of a financial contribution by a private
entity to another private entity pursuant to government
entrustment or direction.” Id. at ___, 391 F. Supp. 2d at 1343
(citing 19 U.S.C. § 1677(5)(B)(iii)). The Court held that
Commerce’s decision to interpret the ‘entrusts or directs’
2
References to the countervailing duty statute are to the Tariff
Act of 1930, as amended by, inter alia, the Uruguay Round
Agreements Act, 19 U.S.C. §§ 1671 et seq.
Court No. 03-00651 Page 5
language of this prong to include “a single program of financial
contributions involving multiple financial institutions directed
by a foreign government” was in accordance with law. Id.
Further, the Court upheld Commerce’s methodology for proving
such a program of financial contributions, recognizing that the
substantial evidence standard “does not require Commerce to
produce conclusive evidence of entrustment or direction of each
entity involved in each transaction making up an alleged
program” under 19 U.S.C. § 1677(5)(B)(iii), so long as “the
cumulated evidence and the reasonable inferences drawn therefrom
sufficiently connect all the implicated parties and transactions
to the alleged program of government entrustment or direction.”
Id.
Nonetheless, the Court remanded the Final Determination.
Although Commerce provided an extensive explanation of the
record evidence which, in the agency’s view, demonstrated that
the Korean government had both a “governmental policy to support
Hynix” and “a pattern of practices . . . to act upon that policy
to entrust or direct” Hynix’s creditors, Decision Memo at 49
(emphasis added), the Court found that Commerce had neglected to
adequately consider “counterevidence indicating that the
transactions making up [the alleged program in this case] were
formulated by an independent commercial actor (not a government)
and motivated by commercial considerations.” Hynix I at ___,
Court No. 03-00651 Page 6
391 F. Supp. 2d at 1343. In the Court’s view, the unusual role
played by Citibank and its affiliate Solomon Smith Barney
(“SSB”) in Hynix’s restructuring, as well as the apparent
presence of commercial options and contingencies in the
restructuring, required additional explanation before the Court
could proceed with its substantial evidence review of Commerce’s
financial contribution analysis. Id. at ___, 391 F. Supp. 2d at
1344.
Because the Court remanded to Commerce for further
consideration of its threshold financial contribution analysis,
the Court deferred review of Commerce’s interpretation and
application of the other two prongs of the statutory test
required to prove the existence of ‘entrusted or directed’
subsidies: the exercise of a government subsidy function 3 in the
provision of the investigated financial contribution and the
existence of a benefit from that financial contribution to its
recipient. Id.
B. Commerce’s Remand Results
In the Remand Results, Commerce affirmed its original
determination that the Korean government entrusted or directed
3
The Court has adopted this term as a matter of convenience. It
is intended to refer to the portion of the statute which states:
“if providing the contribution would normally be vested in the
government and the practice does not differ in substance from
practices normally followed by governments[.]” 19 U.S.C. §
1677(5)(B)(iii).
Court No. 03-00651 Page 7
Hynix’s creditors to provide financial contributions within the
meaning of 19 U.S.C. § 1677(5)(B)(iii). Remand Results at 1.
Considering first whether Hynix’s restructuring was in fact
orchestrated by a commercial actor rather than the Korean
government, Commerce found that Citibank/SSB’s role was “quite
limited[,]” id. at 6, and more akin to that of a “consultant”
than orchestrator. Id. at 7. While acknowledging that
“Citibank/SSB certainly did much of the technical work behind
the mechanics of Hynix’s financial restructuring[,]” Commerce
concluded that “it was the actions taken by the [Korean
government] . . . that effectuated the restructuring and brought
about the financial contributions.” Id. at 9. In Commerce’s
view, Citibank/SSB provided necessary expertise in arranging the
complicated financial transactions which comprised Hynix’s
restructuring, but was able to do so only because the Korean
government used its authority to coerce the participation of
Korean financial institutions in those highly risky
transactions. Id. at 7-8. At most, Commerce found that
Citibank/SSB’s involvement could be seen as “working to assist
the creditors make the best out of a bad situation” and not as
orchestrating commercially-motivated lending and investment
opportunities for Hynix’s creditors. Id. at 11.
Next considering whether Hynix’s restructuring featured
commercially-based contingencies and options which belied an
Court No. 03-00651 Page 8
inference of government control, Commerce found that no such
contingencies or options existed in Hynix’s restructuring. Id.
With regard to the international offering of Hynix’s equity (the
“GDS offering”) made in conjunction with Hynix’s May 2001
restructuring, Commerce concluded that the May 2001
restructuring was not “truly contingent upon the GDS
offering[.]” Id. (quotation marks omitted). Commerce noted
that, before completion of the GDS offering, Hynix’s creditors
approved the new loans and debt restructuring included in that
transaction, id., and they also entered into a related
underwriting agreement. Id. at 13. Because Hynix’s creditors
agreed to important details of the May 2001 restructuring even
before the GDS offering closed, Commerce found it “unlikely that
the [creditors] were truly waiting until the successful
conclusion of the GDS to decide whether to proceed with the May
restructuring.” Id. To further support this view, Commerce
noted that the May 2001 restructuring was used as an important
selling point in the GDS Offering Memorandum. Id. Commerce
observed that this memorandum characterized the May 2001 loans
and debt restructuring as closing “substantially concurrently”
with the closing of the GDS offering period, “highlighting the
automaticity of the assistance agreed to in May” by Hynix’s
creditors. Id. at 12. Commerce also noted that the GDS
Offering Memorandum underscored the Korean government’s support
Court No. 03-00651 Page 9
for Hynix. Id. Commerce concluded its analysis of the GDS
offering by characterizing it as simply an attempt to share at
least some of the financial burden of saving Hynix which had
been imposed on Hynix’s creditors by the Korean government. Id.
at 14.
With regard to whether the options provided to creditors
participating in Hynix’s October 2001 debt restructuring belied
an inference of government control, Commerce concluded that the
“true nature of the options was to benefit Hynix at the
creditors’ expense.” Id. at 15 (quotation marks omitted).
Commerce noted that, with regard to this transaction, Hynix’s
creditors were required to select from among three options
developed by Hynix’s creditors council. Id. These options
were: (1) extend new loans to Hynix and convert/renegotiate
existing secured and unsecured debt in a manner more
advantageous to Hynix; (2) not extend new loans, but convert all
secured debt and 28 percent of unsecured debt in a manner more
advantageous to Hynix, and forgive the remaining unsecured debt;
or (3) exercise appraisal rights for all secured debt and 25
percent of unsecured debt based on Hynix’s liquidation value,
and forgive the remaining unsecured debt. Id. Commerce
observed that the third option did not provide for an immediate
refund of liquidated loans, but instead called for these
liquidated funds to be converted into five-year, interest-free
Court No. 03-00651 Page 10
loans to Hynix. Id. In Commerce’s view, the result to Hynix
under any of the options was either complete debt extinguishment
or partial debt extinguishment coupled with sufficient new loans
to service the remaining debt load – all at the expense of the
creditors’ balance sheets. Id. at 16. Commerce further
observed that Hynix’s creditors were unhappy with these options,
as reported in several contemporaneous news accounts. Id.
Commerce concluded its analysis of the options featured in the
October 2001 restructuring by characterizing them as an attempt
to provide Hynix’s creditors with some limited flexibility in
the manner in which they participated in the government-mandated
bailout of the struggling company. Id. at 17. In Commerce’s
view, this flexibility was simply intended to better accommodate
the varying levels of investment and financial health of Hynix’s
beleaguered creditors. Id.
Having thus found that Hynix’s restructuring “was not the
product of market forces,” Commerce concluded the Remand Results
by reaffirming its determination that, based on the record
evidence, 4 Hynix had been the recipient of government-entrusted
or directed financial contributions. Id.
4
The record evidence adduced by Commerce in support of its
finding of government entrustment or direction is discussed in
detail infra, at Part III.B.1.
Court No. 03-00651 Page 11
C. The Deferred Portions of the Final Determination
Commerce appropriately limited the Remand Results to the
questions concerning its financial contribution analysis raised
by the Court in Hynix I, relying on its original analysis in the
portions of the Final Determination deferred by the Court.
In the Final Determination, once Commerce found that Hynix
had received financial contributions entrusted or directed by
the Korean government, Commerce proceeded to the next step in
the statutory test to prove their countervailability.
Considering the portion of 19 U.S.C. § 1677(5)(B)(iii) that
specifies that a financial contribution is only countervailable
“if providing the contribution would normally be vested in the
government and the practice does not differ in substance from
practices normally followed by governments,” Commerce
interpreted this requirement to mean that a “governmental
subsidy function” must be performed for an investigated
financial contribution to be countervailable. Decision Memo at
47. Applying this statutory interpretation and in light of the
evidence before it, Commerce concluded that this requirement had
been met. Id. at 61.
Commerce then proceeded to the third and final prong of the
statutory test for countervailability under 19 U.S.C. §
1677(5)(B)(iii). To countervail an entrusted or directed
financial contribution given pursuant to a government subsidy
Court No. 03-00651 Page 12
function, Commerce determined that it was statutorily required
to establish that the financial contribution conferred a benefit
on its recipient. Id. at 21. To identify the benefit, if any,
received by Hynix during its restructuring, Commerce attempted
to compare the investigated financial contributions to
commercial benchmarks (i.e., similar loans or equity infusions
made by independent actors to Hynix under market conditions).
Id. at 6-7.
First analyzing the financial contributions received in the
form of credit (i.e., preferential loans), Commerce was unable
to find any appropriate commercial benchmarks for use in
establishing Hynix’s creditworthiness. 5 Id. at 19-25. To reach
this conclusion, Commerce eliminated from consideration
Citibank’s loans to Hynix. Id. at 11. Although concluding that
Citibank was independent of government control, id. at 8,
Commerce disqualified Citibank’s loans because (1) Citibank’s
involvement was relatively small compared to the overall
restructuring; (2) Citibank took into consideration the behavior
of the government-entrusted or directed financial institutions
in order to hedge its lending risk; and (3) Citibank/SSB stood
5
Creditworthiness is a term of art which refers to the “attempt
to determine if the company in question could obtain long-term
financing from conventional commercial sources” at the time of
the government-entrusted or directed loan. Decision Memo at 6;
see also 19 C.F.R. § 351.505(a)(4) (2005).
Court No. 03-00651 Page 13
to earn greater fees as Hynix’s financial advisor than what
other financial institutions could expect from their return on
investment in Hynix, thus skewing Citibank’s risk calculus. Id.
at 9-11. Commerce also disregarded the loans made by Hynix’s
other creditors, based on their entrustment or direction by the
Korean government. Id. at 11. Lacking an actual commercial
benchmark, Commerce attempted to determine if Hynix was
otherwise creditworthy during its restructuring. Id. Commerce
determined that Hynix was not and constructed a benchmark to
calculate the benefit conferred to Hynix by the credit-based
financial contributions. Id. at 11, 105. Commerce developed
this constructed benchmark using Moody’s U.S. average cumulative
default rates for corporate bonds, instead of default rates
specific to Korea which were supplied to Commerce by Hynix
during the course of the investigation. Id. at 5.
Next analyzing the financial contributions received in the
form of equity (i.e., investments), Commerce was similarly
unable to identify any commercial benchmarks for use in
establishing Hynix’s equityworthiness. 6 Id. at 91. To reach
6
Equityworthiness is a term of art which refers to the attempt
to determine if the company in question could, “from the
perspective of a reasonable private investor” at the time of the
government-entrusted or directed equity infusion, show “an
ability to generate a reasonable rate of return within a
reasonable time.” Decision Memo at 6; see also 19 CFR §
351.507(a)(4) (2005).
Court No. 03-00651 Page 14
this conclusion, Commerce again eliminated from consideration
Citibank’s involvement because, when compared to the size of the
investment made by the government-entrusted and directed
financial institutions during Hynix’s restructuring, Commerce
found that Citibank’s equity investment in Hynix was not
“significant” as required by the countervailing duty
regulations. 7 Id. at 90 (citing 19 C.F.R. § 351.507(a)(2)(iii)).
Commerce also disregarded the equity infusions made by Hynix’s
other creditors, based on their entrustment or direction by the
Korean government. Id. at 91.
Lacking an actual commercial benchmark, Commerce attempted
to determine if Hynix was otherwise equityworthy during its
restructuring. Id. at 91. As part of that analysis, Commerce
considered third party studies of Hynix commissioned by its
creditors which discussed Hynix’s investment potential at the
time of its restructuring. Id. Commerce ultimately disregarded
these studies, finding that their focus on creditor concerns
meant that they did not properly discuss Hynix’s future
financial prospects or other factors denoting equityworthiness.
Id. Commerce also questioned the credibility of the methodology
and analysis used in some of these reports. Id. Further,
Commerce found that Hynix’s financial indicators for the years
7
References to the countervailing duty regulations are to 19
C.F.R. § 351.101 et seq.
Court No. 03-00651 Page 15
1997 through 2001 were too weak to support a commercially
reasonable investment decision at that time. Id. at 92. To
reach this conclusion, Commerce applied an economic theory known
as the Expected Utility Model, which posits that a rational
investor focuses on future profitability and does not let the
value of past investments in a company affect future investment
decisions in that same company. Id. Ultimately finding that
Hynix was unequityworthy during its restructuring, Commerce
calculated the benefit conferred to Hynix by the equity-based
financial contributions. Id.
Based on the foregoing findings and analysis, Commerce
determined that the three-prong statutory test had been met and
made a final affirmative countervailing duty determination.
Final Determination, 68 Fed. Reg. 37122, 37122.
II. STANDARD OF REVIEW
The Court must sustain any determination, finding, or
conclusion made by Commerce in the Final Determination and the
Remand Results unless it is “unsupported by substantial evidence
on the record, or otherwise not in accordance with law.” 19
U.S.C. § 1516a(b)(1)(B)(i) (1999). The Court must also defer to
an agency’s reasonable construction of an ambiguous statute.
Allegheny Ludlum Corp. v. United States, 367 F.3d 1339, 1343
(Fed. Cir. 2004) (citing Chevron, U.S.A., Inc. v. NRDC, 467 U.S.
837 (1984)). Further, “[t]he deference granted to the agency’s
Court No. 03-00651 Page 16
interpretation of the statutes it administers extends to the
methodology it applies to fulfill its statutory mandate.” GMN
Georg Muller Nurnberg AG v. United States, 15 CIT 174, 178, 763
F. Supp. 607, 611 (1991) (citing, inter alia, Chevron, 467 U.S.
at 844-45; Amer. Lamb Co. v. United States, 785 F.2d 994, 1001
(Fed. Cir. 1986)). “Likewise, the [C]ourt may defer to an
agency’s interpretation of an ambiguous regulation, so long as
that interpretation is not plainly erroneous or inconsistent
with the regulation, does not fail to reflect the ‘agency’s fair
and considered judgment on the matter in question,’ or, if
adopted, does not render the regulation unreasonable or
otherwise not in accordance with law.” Decca Hospitality
Furnishings, LLC v. United States, 29 CIT ___, ___, 391 F. Supp.
2d 1298, 1304 (2005) (quoting Auer v. Robbins, 519 U.S. 452, 462
(1997) (citations omitted)).
III. DISCUSSION
A. Summary of Analysis
This case is before the Court for review of Commerce’s
determination that Hynix received a countervailable benefit from
the Korean government through a program of indirect subsidies of
the type described in 19 U.S.C. § 1677(5)(B)(iii). For the
reasons that follow, the Court concludes that Commerce has
satisfied the requirements of the applicable three-prong
statutory test in reaching this determination.
Court No. 03-00651 Page 17
First, Commerce adduced substantial evidence in support of
its finding that the Korean government entrusted or directed
certain financial institutions to provide preferential loans and
equity infusions to Hynix during its restructuring. Although
Commerce did not provide conclusive evidence for each party or
each transaction involved in the program, the agency’s
circumstantial and direct evidence (and the reasonable
inferences drawn therefrom) adequately connected the various
financial institutions involved in Hynix’s multi-phase
restructuring to the Korean government’s anticompetitive
involvement. Counterevidence offered by Hynix does not
undermine the agency’s substantiated factual finding.
Second, Commerce’s interpretation of the second prong of
the statutory test, concerning the performance of a government
subsidy function in connection with the entrusted or directed
financial contributions, is in accordance with law. Commerce’s
interpretation appropriately narrows the reach of the
countervailing duty statute to only those government actions
which involve the delegation of a subsidy function to a private
entity. Applying this interpretation, Commerce adduced
substantial evidence demonstrating that the Korean government
delegated its subsidy function to Hynix’s creditors.
Finally, Commerce met the third prong of the statutory test
by demonstrating that Hynix received a benefit from the credit
Court No. 03-00651 Page 18
and equity-based financial contributions provided by its
creditors at the behest of the Korean government. In making
this assessment, Commerce appropriately considered the
suitability of commercial benchmarks provided by Citibank’s
loans and equity infusions in Hynix and reasonably concluded
that Hynix was neither creditworthy nor equityworthy at the time
of its restructuring. Commerce also acted within its authority
when establishing an uncreditworthy benchmark for Hynix.
As a result, the Court sustains both the Remand Results and
the remainder of the Final Determination. The Court’s
conclusions are discussed more fully below.
B. Commerce’s Financial Contribution Analysis Is Supported by
Substantial Evidence
Hynix argues that the record evidence in this case does not
support Commerce’s conclusion that Hynix received entrusted or
directed financial contributions during its restructuring.
First, Hynix claims that the various pieces of evidence in
support of Commerce’s conclusion were seriously flawed and
insufficient to establish a program of entrustment or direction
under the substantial evidence standard. Plaintiffs’ Memorandum
in Support of Its Rule 56.2 Motion for Judgment on the Agency
Record (“Pls.’ Br.”) at 17-25, 29-33. Second, Hynix contends
that Commerce’s proffered evidence was in fact rebutted by
counterevidence firmly establishing that an independent third
Court No. 03-00651 Page 19
party (not the Korean government) orchestrated Hynix’s
restructuring and included commercial options and contingencies
in that restructuring. Id. at 11-16, 25-29.
For the reasons that follow, the Court upholds Commerce’s
conclusion that Hynix received government-entrusted or directed
financial contributions as supported by substantial evidence.
1. Record Evidence Supports Commerce’s Conclusion That
Hynix Received Entrusted or Directed Financial
Contributions
Notwithstanding Hynix’s specific evidentiary arguments
(discussed below), the Court finds that the record supports
Commerce’s conclusion that Hynix received financial
contributions from private entities entrusted or directed by the
Korean government.
To support its factual finding of government entrustment or
direction, Commerce adduced circumstantial and direct evidence
of the Korean government’s motive, proclivity, opportunity, and
capacity to support Hynix through private entities. For
example, Commerce cited persuasive evidence indicating that the
Korean government had a policy of supporting Hynix and,
therefore, a motive to entrust or direct private entities to
participate in Hynix’s restructuring. Commerce noted that, in a
2001 statement, a member of the Korean president’s staff stated
that Hynix was part of a strategically important domestic
industry which “should not be sold off just to follow market
Court No. 03-00651 Page 20
principles.” Decision Memo at 49; see also Appendix to
Defendant’s Memorandum in Opposition to Plaintiffs’ Motion for
Judgment on the Administrative Record (“Def.’s App.”), App. 5
(Ex. C-20 of Petitioner’s Comments to Commerce dated Mar. 14,
2003) at 17. Commerce further noted that, in a 2002 exchange
between the Korean president and a member of Korea’s National
Assembly, the assembly member criticized Korea’s president for
compelling financial institutions to provide Hynix “astronomical
sums of special support . . . by mobilizing the resources of
financial and government-run institutions.” Id. at 50; see also
Def.’s App., App. 5 (Ex. C-20 of Petitioner’s Comments to
Commerce dated Mar. 14, 2003) at 17. The official presidential
response to this statement was: “[w]e are doing what is deemed
necessary to save companies leading the countries [sic]
strategic industries.” Decision Memo at 50. Even if this
exchange was political banter as asserted by Hynix, see Pls.’
Br. at 17-18, Commerce reasonably found it telling that the
presidential response did not deny the allegation of an official
policy of supporting Hynix. Cf. United States v. Hale, 422 U.S.
171, 176 (1975) (in criminal context, “[s]ilence gains more
probative weight where it persists in the face of accusation,
since it is assumed in such circumstances that the accused would
be more likely than not to dispute an untrue accusation”).
Here, “it would have been natural under the circumstances” for
Court No. 03-00651 Page 21
the Korean executive branch to object to an unfounded public
accusation of large-scale government waste. Hale, 422 U.S. at
176. This exchange, particularly when read together with the
2001 presidential statement, 8 gave rise to a reasonable inference
by Commerce that the Korean government maintained a policy to
financially support Hynix. 9
Commerce’s evidence also demonstrated a strong proclivity
on the part of the Korean government to support Hynix through
private entities. During the early stages of Hynix’s
restructuring, record evidence showed that the Korean
government’s Economic Ministers met to discuss possible measures
to alleviate Hynix’s liquidity problems. Decision Memo at 50.
8
Hynix contends that the 2001 presidential statement is
suggestive only of a possible motive for the Korean government
to intervene and does not indicate the formulation of an
affirmative government support policy toward Hynix. Pls.’ Br.
at 17. This is one possible reading of that statement.
However, “the evidence on which the agency relies does not exist
in a vacuum.” Former Employees of Int’l Bus. Mach. v. United
States Sec’y of Labor, 29 CIT ___, ___, 403 F. Supp. 2d 1311,
1324 (2005). Commerce was entitled to consider the statement in
conjunction with other evidence and draw reasonable inferences
therefrom.
9
The Court shares Hynix’s concerns about Commerce’s third piece
of governmental policy evidence, concerning the existence of a
more general Korean government policy to support the
restructuring process of major Korean companies. See Pls.’ Br.
at 18. In the Decision Memo, Commerce failed to cite to any
record evidence to support this specific contention. See
Decision Memo at 50. Without record support, this observation
smacks of bootstrapping by the agency. Nonetheless, the other
evidence cited by Commerce supports the inference of the
existence of a governmental policy to support Hynix.
Court No. 03-00651 Page 22
The execution of the Ministers’ decisions was delegated to
government agencies, including the Korea Export Insurance
Corporation (“KEIC”), which was advised by the Economic
Ministers that the decisions should be “carried out perfectly.”
Id. at 51; see also Def.’s App., App. 5 (Ex. C-20 of
Petitioner’s Comments to Commerce dated Mar. 14, 2003) at 17.
The agencies then took two measures: (1) they waived certain
regulatory requirements to enable Hynix’s creditors to increase
the credit extended to Hynix and (2) they resumed providing
insurance for certain financing transactions undertaken by Hynix
and its creditors. Decision Memo at 51-52. Commerce reasonably
found that these measures enabled Hynix’s creditors to
participate in the company’s restructuring. Id. at 50-51. In
other words, early in Hynix’s restructuring, the Korean
government demonstrated an inclination for using private
entities to achieve its policy of supporting Hynix. This early
demonstration was followed by the creation of a government-run
bond placement program used by Hynix’s creditors to
extend/refinance credit at a time in which the maturation of
existing bonds threatened Hynix’s default. Id. at 52. Although
this so-called KDB Fast Track program was non-compulsory and
open to firms other than Hynix, see Pls.’ Br. at 21, it was used
predominantly by Hynix’s creditors. Decision Memo at 52. This
“more than coincidental” participation reasonably led Commerce
Court No. 03-00651 Page 23
to characterize the program as a further demonstration of the
Korean government’s encouragement of private entity involvement
in Hynix’s restructuring. 10 Id.
Further, evidence concerning Hynix’s creditors council
demonstrated that the Korean government had ample opportunity to
entrust or direct private entities during the later phases of
Hynix’s restructuring. 11 Hynix’s creditors council was comprised
of the same financial institutions which participated in each
phase of Hynix’s restructuring. Decision Memo at 53-54. A
10
Hynix correctly notes that evidence concerning regulatory
waivers, a government-backed insurance program, and a
government-backed bond conversion program did not demonstrate an
inclination by the Korean government to involve private entities
in Hynix’s restructuring in a manner at odds with the
countervailing duty law. See Pls.’ Br. at 19-20. Similarly,
this evidence did not establish that the Korean government
affirmatively caused any of Hynix’s creditors to participate in
the multiple facets of Hynix’s restructuring. See id. What
Hynix fails to recognize is that this evidence did demonstrate
the willingness of the Korean government to take action to
involve private entities in Hynix’s restructuring. Commerce
could reasonably consider this evidence for that purpose. See
Decision Memo at 52 (noting that the Korean government took
measures “that would facilitate the new loans from the company’s
key creditors”).
11
The formation of the creditors council was predated by the
first major phase in Hynix’s restructuring, a December 2000
syndicated loan. Pls.’ Br. at 32. Hynix correctly notes that,
as a result, any opportunity presented by the creditors council
could not have applied to this early stage of Hynix’s
restructuring. Id. However, as Hynix also notes, “[t]he
October 2001 restructuring . . . alone account[ed] for about
two-thirds of the total alleged subsidy[.]” Id. at 13. In
other words, it was reasonable for Commerce to find the evidence
related to the creditors council highly probative even if the
temporal reach of this evidence was somewhat limited.
Court No. 03-00651 Page 24
majority of Hynix’s outstanding debt was held by financial
institutions with varying degrees of government ownership. Id.
These debt levels translated to voting interests on the
creditors council in an amount sufficient to influence the plans
approved by the council and to veto any undesirable proposals.
Id. at 54-55. Commerce found that, by virtue of its ownership
interests in voting members of the creditors council, the Korean
government could have had a unique vantage point from which to
orchestrate Hynix’s restructuring using the private entities on
Hynix’s creditors council. Id. This inference is reasonable.
If the Korean government’s ownership interests in certain Hynix
creditors gave the government the ability to influence or direct
decisions taken by those financial institutions, 12 then the
dominant presence of financial institutions with government
ownership could have given the Korean government the opportunity
12
It is noteworthy that evidence concerning government ownership
interests in certain of Hynix’s creditors cannot be considered
conclusive proof of Korean government entrustment or direction
of these entities. Rather, as argued by Hynix, these financial
institutions are subject to the same inquiry as all other
private entities under investigation. See Pls.’ Br. at 24.
Contrary to Hynix’s contention, Commerce recognized this fact in
its Decision Memo, noting that financial institutions were not
presumed to be under government entrustment or direction simply
by virtue of government ownership interests. Decision Memo at
17. The evidence which led Commerce to find that these entities
were in fact subject to government entrustment or direction is
discussed by the Court later in this section.
Court No. 03-00651 Page 25
to have a pervasive influence on the decision-making of Hynix’s
creditors on the creditors council.
Commerce also adduced evidence indicating that the Korean
government recognized the opportunity to exert influence or
control over private entities which was presented by the
creditors council. Commerce learned during verification that a
government official attended a March 2001 creditors council
meeting “to urge creditor banks to execute the resolutions made
by creditors.” Decision Memo at 59; see also Def.’s App., App.
30 (Korean Government Verification Report dated May 15, 2003) at
19. In addition, the Korean government later enacted a new law
requiring all creditor financial institutions to attend
creditors council meetings for any major corporate
restructuring, such as Hynix’s. Id. A government official
quoted in a July 2001 Korea Times article cited by Commerce
explained that the purpose of the new law was “to prevent some
of [the creditors] from refusing to attend [meetings] and
pursuing their own interests by taking advantage of bailout
programs[.]” Id. at 59. From this evidence, Commerce could
reasonably find that the Korean government recognized that the
creditors council was a possible forum to both communicate and
effectuate its Hynix support policy through private entities.
Moreover, Commerce’s evidence demonstrated that the Korean
government had the capacity to act on the opportunity for
Court No. 03-00651 Page 26
entrustment or direction of private entities which was presented
by its ownership interests in financial institutions on Hynix’s
creditors council. For example, Commerce cited various
contemporaneous Korean newspapers and international financial
publications which reported that the Korean government
influenced at least three of Hynix’s creditors with substantial
government ownership. Decision Memo at 56. Specifically,
Commerce cited a January 2002 Business Week article which
reported that the Korean government forced Woori Bank, the
Korean Exchange Bank (“KEB”), and ChoHung Bank to provide
significant funding to Hynix. Id. An October 2001 Korea Times
article reported that a KEB official had confirmed that the
Korean government was “working out a series of powerful measures
to ensure the survival of [Hynix.]” Id. Commerce also cited a
September 2001 Asiamoney article which discussed general
suspicions that banks with substantial government shareholdings
were being pressured by the Korean government to support Hynix.
Id.
Additional reports cited by Commerce indicated that the
Korean government had the capacity to influence even those
members of Hynix’s creditors council without significant
government ownership. For example, Commerce cited to a Dow
Jones International article which reported that KorAm Bank
reversed its decision not to participate in a portion of Hynix’s
Court No. 03-00651 Page 27
May 2001 restructuring after the Korean government’s Financial
Supervisory Service (the “FSS”) warned of possible sanctions if
it did not participate. Decision Memo at 59. Commerce also
cited to a Korea Herald article which reported that the FSS had
threatened to fine Hana Bank if it did not provide emergency
liquidity to HPC, a Hynix affiliate. Id. at 60. Taken
together, Commerce reasonably viewed these news reports as
circumstantial evidence suggesting that the Korean government
was able to influence or coerce private entities – with and
without government ownership – to support Hynix’s restructuring.
Commerce was able to further support the inference of
Korean government capacity to influence private entities with
additional evidence drawn from the opinions of the independent
Korean financial experts interviewed during verification.
Commerce noted that “the clear consensus that emerged from the
independent financial sector experts . . . was that the [Korean
government] can and does influence” financial institutions owned
whole or in part by the government. Decision Memo at 53-54
n.20. With regard to financial institutions free of government
ownership, Commerce also observed that while “many experts
interviewed suggest[ed] that the [Korean government] no longer
had control over the private banks the way it had in the past[,]
. . . at least one expert did comment that government influence
over the private banks has continued.” Id. at 57. Upon a
Court No. 03-00651 Page 28
review of the entire summary of the financial expert interviews
as urged by Hynix, see Pls.’ Br. at 25, the Court finds that
this evidence supports Commerce’s inference that the Korean
government could have exercised a degree of influence over the
financial institutions involved in Hynix’s restructuring. See
Appendix to Plaintiffs’ Motion for Judgment on the
Administrative Record (“Pls.’ App.”), App. 6 (Private Financial
Experts Verification Report dated May 15, 2003). Although the
opinions of the independent Korean financial experts were far
from unanimous or conclusive on the question of the Korean
government’s ability to effectuate its Hynix support policy
through private financial institutions, see id. at 3, 12; Pls.’
Br. at 22, this evidence lent some additional support for
Commerce’s inference that the Korean government had the capacity
to entrust or direct the private financial institutions that
participated in Hynix’s restructuring.
Commerce built on its evidence of the Korean government’s
capacity to influence financial institutions with government
ownership by specifically examining actions taken with respect
to the KEB. Formerly a fully government-owned bank, the KEB was
Hynix’s principal creditor. Decision Memo at 56. Because the
Korean government remained the KEB’s largest shareholder with
about 43% of the bank’s shares, certain of the financial experts
interviewed by Commerce contended that the KEB was still subject
Court No. 03-00651 Page 29
to government influence over lending decisions. Id. at 55-56.
Indeed, official correspondence sent to the KEB from the Korean
government’s Economic Ministers advised the bank to “carr[y] out
perfectly” their decisions to support Hynix. Id. at 50.
Commerce could reasonably find it telling that, as discussed
above, these were the same instructions sent by the Economic
Ministers to a Korean government agency. Further, confidential
internal loan documentation obtained by Commerce at verification
also indicated that the KEB took into account non-commercial,
economic and social policy considerations when it chose to
participate in various stages of Hynix’s restructuring. Id. at
55-56; Pls.’ App., App. 7 (Hynix Verification Report dated May
15, 2003) at 15, 17. This evidence also indicated that the KEB
shared these considerations with Hynix’s creditors council. Id.
In the Court’s view, Commerce reasonably found this evidence to
be a demonstration of the Korean government’s influence on the
KEB’s decision to provide credit and equity to Hynix. It is
indeed suspect for an allegedly independent financial
institution to consider the ramifications of isolated lending
and investment decisions on the economic and social health of a
country, rather than that institution’s bottom line. Commerce
reasonably found that this was not normal behavior for a profit-
maximizing market actor. Cf. Nelson v. Pilkington PLC, 385 F.3d
350, 360-61 (3d Cir. 2004) (in antitrust context, noting that
Court No. 03-00651 Page 30
“[e]vidence that the defendant acted contrary to its interests
means evidence of conduct that would be irrational assuming that
the defendant operated in a competitive market. Put differently
. . . a court looks to evidence that the market behaved in a
noncompetitive manner.”) (quotation marks omitted). Based on
this evidence, Commerce was justified in finding that “the very
commercial nature which Hynix states motivated the KEB is
fundamentally called into question.” Decision Memo at 57.
Commerce also found evidence of Korean government
entrustment or direction with respect to Kookmin Bank
(“Kookmin”), a Korean commercial financial institution without
substantial government ownership. Commerce initially cited a
September 2001 certified filing made by Kookmin to the U.S.
Securities and Exchange Commission (“SEC”). Id. at 57. In that
filing, Kookmin warned its investors that:
The [Korean government] has promoted, and, as a matter
of policy may continue to attempt to promote certain
lending to certain types of borrowers. It generally
has done this by requesting banks to participate in
remedial programs for troubled corporate borrowers . .
. . The government has in this manner promoted low-
mortgage lending and lending to technology companies.
We expect that all loans made pursuant to government
policies will be reviewed in accordance with
[Kookmin’s] credit review policies. However, we
cannot assure you that government policy will not
influence [Kookmin] to lend to certain sectors or in a
manner in which [Kookmin] otherwise would not in the
absence of government policy.
Court No. 03-00651 Page 31
Id. at 57-58 (emphasis added); see also Def.’s App., App. 12
(Attach. 1 of Petitioner’s Comments to Commerce dated Mar. 28,
2003) at 22. 13 In the Court’s view, Commerce reasonably found
that this filing served as an admission by a Hynix creditor of
the tendency of the Korean government to direct private banks to
provide financial contributions to technology companies, such as
Hynix. 14 To tie this tendency specifically to Hynix’s
restructuring, Commerce then cited confidential internal loan
documentation obtained from Kookmin at verification which
indicated that, as warned in its SEC filing, Kookmin took into
account Korean government policy goals when weighing its
participation in Hynix’s December 2000 syndicated loan.
Decision Memo at 59; see also Def.’s App., App. 11 (Ex. 11 of
13
Kookmin also filed a similar prospectus in June 2002.
Decision Memo at 58. Because Kookmin was the sole Korean bank
listed on a U.S. stock exchange during the period of
investigation, no other such SEC filings were made by Hynix’s
creditors. Id.
14
Hynix argues that Commerce failed to consider “a detailed
statement by the specific lawyers who drafted the prospectus,
which made clear that the language was in no way meant to imply
[Korean government] control over Kookmin lending decisions.”
Pls.’ Br. at 32 (citing Pls.’ App., App. 16 (Hynix’s Supporting
Documentation dated Apr. 14, 2003)). However, “absent a showing
to the contrary, [the agency] is presumed to have considered all
of the evidence in the record.” Nat’l Ass’n of Mirror Mfrs. v.
United States, 12 CIT 771, 779, 696 F. Supp. 642, 648 (1988).
Hynix has failed to rebut this presumption here; Commerce is not
required to expressly distinguish every post hoc, self-serving
declaration offered by a party which is facially at odds with
the plain meaning of non-technical record evidence.
Court No. 03-00651 Page 32
Hynix Verification Report dated May 15, 2003) at 12. Taken
together, Commerce reasonably found that this evidence
demonstrated that the Korean government was successful in
enlisting Kookmin, a financial institution without substantial
government ownership, to support Hynix during its restructuring.
In sum, the Court concludes that record evidence supports
Commerce’s determination that Hynix received financial
contributions from private entities entrusted or directed by the
Korean government. As the foregoing discussion demonstrates,
Commerce did not rely on “past findings” from earlier
countervailing duty investigations involving the Korean
government to support its finding of government entrustment or
direction. Pls.’ Br. at 10. Rather, Commerce appropriately
“point[ed] to evidence from which it [was] reasonable to infer
that the government’s control continued into the period of
investigation.” AK Steel Corp. v. United States, 192 F.3d 1367,
1376 (Fed. Cir. 1999).
2. Counterevidence Adduced by Hynix Does Not Undermine
Commerce’s Conclusion That Hynix Received Entrusted or
Directed Financial Contributions
Of course, the Court’s substantial evidence review does not
end with an examination of the evidence supporting Commerce’s
finding. The Court must also consider whatever “fairly detracts
from the substantiality of [that] evidence.” Huaiyin Foreign
Trade Corp. v. United States, 322 F.3d 1369, 1374 (Fed. Cir.
Court No. 03-00651 Page 33
2003) (quotation marks omitted). Hynix argues that
counterevidence on the record soundly refutes Commerce’s finding
of Korean government entrustment or direction of the financial
institutions involved in Hynix’s restructuring.
First, Hynix argues that Citibank/SSB, not the Korean
government, was responsible for orchestrating Hynix’s
restructuring. Pls.’ Br. at 11-16, 25-29. Hynix contends that
Citibank/SSB initiated and was at the center of Hynix’s
multifaceted restructuring, both as an advisor and participant.
Plaintiffs’ Comments on the Final Results of Redetermination
(“Pls.’ Remand Comments”) at 7. In these roles, Hynix notes
that Citibank/SSB was found not to be under Korean government
control. Id. at 9 (citing Decision Memo at 5). Further, Hynix
observes that SSB’s engagement letter and restructuring
proposals recognized that the Korean government might not
provide the regulatory flexibility needed to make Hynix’s
restructuring successful. Id. at 10-11. Hynix additionally
notes that Citibank committed its own funds to Hynix’s
restructuring. Id. at 12-13. Taken together, Hynix argues that
the evidence concerning Citibank/SSB’s commercial involvement
demonstrated the independence of Hynix’s restructuring from the
Korean government. Id. at 12-13.
The Court finds that the evidence of Citibank/SSB’s
involvement in Hynix’s restructuring is insufficient to
Court No. 03-00651 Page 34
undermine Commerce’s finding of government entrustment or
direction. The parties agree that, while important to the
restructuring from a technical perspective, SSB did not have the
ability to ensure the participation of Hynix’s creditors in the
various phases of Hynix’s restructuring. See Remand Results at
7; Pls.’ Remand Comments at 8. In other words, for SSB’s
restructuring blueprint to work, Hynix’s creditors had to
participate – either voluntarily or through government coercion.
Hynix places great emphasis on the fact that Citibank/SSB, as
demonstrated by its proposals to Hynix’s creditors and
affidavits to Commerce, believed that commercial persuasion (not
government coercion) was the motivating force behind creditor
participation. Indeed, this rightfully is circumstantial
evidence that weighs against Commerce’s determination. However,
even the documents cited by Hynix acknowledge that the
restructuring devised by SSB was subject to some form of Korean
government approval. See Remand Results at 8. Regardless,
Citibank/SSB’s view of the nature of the Korean government’s
involvement in Hynix’s restructuring or the reasons for creditor
involvement is but one of the opinions collected by Commerce
during its investigation. Considering the totality of the
evidence before the agency, which included reports of behind-
the-scenes Korean government coercion by numerous independent
Court No. 03-00651 Page 35
sources, 15 Commerce reasonably chose to disbelieve the minority
view of Citibank/SSB.
Further, this choice by the agency was not significantly
undercut by evidence of Citibank’s own financial participation
in Hynix’s restructuring. As discussed in greater detail infra
at Part III.D.1.a, Commerce found that Citibank purposefully
waited until the involvement of the other creditors was assured
before committing resources to Hynix’s restructuring. The
important point for Citibank was the participation of the other
creditors – not their rationale (or provocation) for doing so.
Citibank’s “symbolic gesture” of support for Hynix (and, by
extension, the potentially marketable Korean corporate
restructuring blueprint represented by Hynix), Decision Memo at
9-10, was therefore minimally probative on the question of the
15
As noted by Commerce, when investigating an alleged
clandestine program of subsidization, “secondary sources can be
particularly credible as these observers are independent and
without a vested interest in the outcome.” Decision Memo at 50
n.13. Of course, secondary information is not necessarily
reliable in all circumstances, which is why the countervailing
duty statute requires Commerce to corroborate such information
to the extent practicable. See 19 U.S.C. § 1677e(c) (1999).
Commerce duly carried out its duty to corroborate during the
underlying investigation; however, even more telling, Hynix
itself has urged both Commerce and the Court to look to
“reliable outside commentary” when analyzing the role played by
the Korean government in Hynix’s restructuring. Pls.’ Br. at
31. While the commentary collected by Commerce during its
investigation was hardly unanimous, see id., much (if not the
majority) lends support to Commerce’s finding of government
entrustment or direction.
Court No. 03-00651 Page 36
true nature of the Korean government’s role in the
restructuring. As such, it was reasonable for Commerce to find
that Citibank/SSB’s involvement did not negate the existence of
government entrustment or direction in Hynix’s restructuring.
Second, Hynix contends that Hynix’s restructuring included
commercial options and contingencies which belie a finding of
government entrustment or direction. Pls.’ Remand Comments at
13-20. With regard to the May 2001 phase of Hynix’s
restructuring, which featured an international GDS offering,
Hynix argues that the provisions of this offering demonstrate
that the success of Hynix’s restructuring depended on the
support of international investors – not the Korean government.
Id. at 13. Hynix contends that, because the record evidence
demonstrates that the May 2001 restructuring was contingent on
commercial action, Hynix’s restructuring had to have been
independent from the Korean government. Id. at 16.
The Court finds that the inclusion of the GDS offering in
the May 2001 restructuring is also insufficient to undermine
Commerce’s finding of government entrustment or direction.
Record evidence shows that Hynix’s creditors voted to provide
the new loan and debt restructuring package featured in the May
2001 restructuring before the GDS offering even began. Remand
Results at 12. While the GDS offering was underway, an offering
memorandum was circulated to potential investors, characterizing
Court No. 03-00651 Page 37
the May 2001 package as one of the “Concurrent Financing
Transactions” central to Hynix’s overall restructuring. Id.;
see also Pls.’ App., App. 1C (Ex. 5 of Hynix Questionnaire Resp.
dated Jan. 27, 2004). Then, before the GDS offering closed,
Hynix’s creditors met again to work out important details of the
restructuring package. Remand Results at 13. Based on the
timing of the creditors’ agreements and the characterization of
the restructuring package in the offering memorandum, Commerce
found it “unlikely that the banks were truly waiting until the
successful conclusion of the GDS to decide whether to proceed
with the May restructuring.” Id. Hynix looks to the same
evidence and finds that it supports the opposite inference –
that the May 2001 restructuring package was contingent on
approval by international investors and not the Korean
government. Pls.’ Remand Comments at 13-16. Upon a careful
review of the record evidence, the Court is forced to conclude
that both interpretations of the documents related to the May
2001 restructuring are equally plausible. Faced with this
equipoise, the Court must defer to the interpretation made by
Commerce as the agency expert. See Burlington Truck Lines, Inc.
v. United States, 371 U.S. 156, 167 (1962) (noting that
“[e]xpert discretion is the lifeblood of the administrative
process”). As such, it was reasonable for Commerce to find that
Court No. 03-00651 Page 38
the GDS offering featured in Hynix’s May 2001 restructuring did
not negate the existence of government entrustment or direction.
Hynix next argues that, with regard to the October 2001
phase of Hynix’s restructuring, the existence of multiple
options available to creditors (including debt liquidation)
negates government control. Pls.’ Remand Comments at 17. Hynix
notes that these options were adopted by a vote of Hynix’s
creditors council – a vote which required the support of the
holders of at least seventy-five percent of Hynix’s outstanding
debt. Id. Hynix contends that Commerce failed to demonstrate
that the Korean government had control over creditors holding
this amount of Hynix’s debt. Id. According to Hynix, at best
Commerce showed that the Korean government had ownership
interests in certain Hynix creditors, but that even these
creditors did not hold the requisite seventy-five percent of
Hynix’s outstanding debt. Id. at 18. Hynix contends that, as a
result, the Korean government was simply not in a position to
force Hynix’s creditors to follow any course of action - as
reflected in the availability of multiple options during the
October 2001 restructuring. Id. at 19. 16
16
Hynix also argues that Commerce ignored the fact that Hynix’s
creditors had a statutory right to seek outside mediation
concerning the terms for Hynix’s October 2001 restructuring set
by the creditors council. Pls.’ Remand Comments at 17. In
Hynix’s view, recourse to mediation contradicts a finding of any
(footnote continued)
Court No. 03-00651 Page 39
The Court finds that the inclusion of multiple options in
the October 2001 restructuring is insufficient to undermine
Commerce’s finding of government entrustment or direction. In
the Remand Results, Commerce provided a more detailed
explanation of the options made available to creditors during
the last stage of Hynix’s restructuring. Although these options
offered varying degrees of continued involvement in Hynix, none
of the options provided an immediate refund of liquidated loans
to creditors. Remand Results at 15. Instead, even under the
option most favorable to a creditor seeking to extricate itself
from the restructuring, funds from the liquidated loans were
converted back into five-year, interest free loans to Hynix.
Id. Under any scenario, Hynix stood to benefit from either
complete debt extinguishment or partial debt extinguishment
coupled with sufficient new loans to service the remaining debt.
Id. at 16. These were the options presented to Hynix’s
creditors, notwithstanding the fact that the October 2001
sort of Korean government control over these financial
institutions. Id. This is an interesting argument;
unfortunately, it does not appear that it was made by Hynix
during the administrative proceedings below. See Micron’s
Rebuttal Comments on the Final Results of Redetermination at 12-
13. It is well established that “[a] reviewing court usurps the
agency’s function when it sets aside the administrative
determination upon a ground not theretofore presented . . . .”
Unemployment Comp. Comm’n of Alaska v. Aragon, 329 U.S. 143, 155
(1946); see also 28 U.S.C. § 2637(d) (1999) (requiring
exhaustion of administrative remedies where appropriate).
Court No. 03-00651 Page 40
restructuring was an “unforeseen event, made necessary by an
unexpected slump in the DRAM market” – in other words, made
necessary by Hynix’s still worsening financial position. Pls.’
Br. at 12. While it is hard to imagine what a good set of
options might have been for Hynix’s creditors in this situation,
see Pls.’ Remand Comments at 19, it is suspect that “under any
scenario, Hynix would be saved to the detriment of its
creditors.” Remand Results at 16. Viewed in this light,
Commerce reasonably found that the October 2001 restructuring
options were not commercial in nature and, therefore, did not
contradict a finding of government entrustment or direction.
In reaching this conclusion, the Court rejects Hynix’s
chief rejoinder - that Commerce failed to demonstrate that the
Korean government had control over a sufficient percentage of
the creditors council in order to vote into place any sort of
non-commercial options. See Pls.’ Remand Comments at 17. As
the Court found above in Part III.B.1, Commerce did in fact
adduce evidence supporting its conclusion that the Korean
government was able to influence or coerce multiple members of
Hynix’s creditors council, both with and without government
ownership. Further, the very existence of the highly suspect
options featured in the last restructuring phase actually
reinforces Commerce’s determination that government entrustment
Court No. 03-00651 Page 41
or direction persisted for the duration of the alleged ten-month
program.
The Court recognizes that this last piece of circumstantial
evidence - like each set of evidence related to the Korean
government’s motive, proclivity, opportunity, and capacity to
support Hynix in a manner at odds with the countervailing duty
statute - would fall short of meeting the substantial evidence
standard if viewed in isolation. Hynix has ably demonstrated as
much throughout its briefing. Unfortunately for Hynix, this
observation is of no moment. Commerce need not exclusively rely
on any one piece or set of evidence to prove entrustment or
direction. Rather, Commerce must show through the totality of
its evidence that entrustment or direction has taken place. See
Hynix I at ___, 391 F. Supp. 2d at 1349. Commerce has done so
here. Through its substantial direct and circumstantial
evidence, Commerce has “connect[ed] ostensibly disparate parties
and transactions to a single, interrelated program of government
entrustment or direction.” Id. at ___, 391 F. Supp. 2d at 1350.
Admittedly, Commerce’s finding of government entrustment or
direction here is not without some doubt. This is a close case.
In such circumstances, however, “the Court may not substitute
its judgment for that of the [agency] when the choice is between
two fairly conflicting views[.]” S.F. Candle Co. v. United
States, 27 CIT ___, ___, 265 F. Supp. 2d 1374, 1381 (2003)
Court No. 03-00651 Page 42
(quotation marks omitted). Accordingly, the Court upholds
Commerce’s conclusion that Hynix’s creditors were entrusted or
directed by the Korean government to provide financial
contributions to Hynix as supported by substantial evidence.
C. Commerce’s Government Subsidy Function Analysis Is In
Accordance with Law and Supported by Substantial Evidence
Hynix next argues that Commerce wrongly concluded that the
prong of 19 U.S.C. § 1677(5)(B)(iii) pertaining to the
performance of a government subsidy function was satisfied in
connection with the investigated financial contributions. Pls.’
Br. at 33 (citing Decision Memo at 47). Hynix asserts that, as
a matter of law, actions taken by a wholly independent actor
cannot possibly be actions or practices normally vested in or
followed by governments – the standard established by the
relevant portion of 19 U.S.C. § 1677(5)(B)(iii). Id. at 33-34.
Hynix contends that Commerce erred by ignoring the close
parallels between the actions of Citibank, a concededly
independent commercial actor, and other creditors deemed to be
under government control. Id. Since Hynix’s creditors
generally acted like Citibank during the restructuring, Hynix
argues that a government subsidy function simply could not have
been performed. Id. Commerce’s conclusion to the contrary was,
in Hynix’s view, not in accordance with law and unsupported by
substantial evidence. Id.
Court No. 03-00651 Page 43
The Court upholds both Commerce’s interpretation and
application of the portion of 19 U.S.C. § 1677(5)(B)(iii)
pertaining to the performance of a government subsidy function.
First, under two-step Chevron analysis, Commerce’s
interpretation of the relevant statutory language is in
accordance with law. 19 U.S.C. § 1677(5)(B)(iii) provides that,
to be actionable, the provision of a financial contribution must
be done by a function or practice normally vested in or followed
by government; however, the statute does not define or provide
examples of such functions or practices. The relevant
legislative history is likewise silent. In light of this
statutory ambiguity, Commerce is given deference under Chevron
step one to make a reasonable interpretation. See Floral Trade
Council v. United States, 23 CIT 20, 24, 41 F. Supp. 2d 319, 324
(1999) (noting that courts will defer to Commerce’s reasonable
interpretation under Chevron where Congress’s intended
definition of a term is not ascertainable through statutory
construction).
Turning to Chevron step two, Commerce determined that this
portion of 19 U.S.C. § 1677(5)(B)(iii) was best understood as
making actionable under the countervailing duty law only those
financial contributions which could be characterized as
fulfilling a “governmental subsidy function[.]” Decision Memo
at 47. In the Court’s view, an example best demonstrates the
Court No. 03-00651 Page 44
soundness of this interpretation: in the context of an ordinary
civil trial, a government, through its courts, could order a
losing party to pay the prevailing party punitive damages. Such
a court order would direct a private entity to transfer funds to
another private entity without any consideration, resulting in a
windfall to the second party. This order would contain the
familiar elements of government direction, financial
contribution, and benefit – but should such an order reasonably
be considered a countervailable subsidy? 19 U.S.C. §
1677(5)(B)(iii), as interpreted by Commerce, clearly provides
the answer: no, because under normal circumstances court-ordered
punitive damages do not fulfill a government subsidy function. 17
Commerce’s interpretation of 19 U.S.C. § 1677(5)(B)(iii) avoids
the nonsensical result of bringing many more government actions
within the ambit of the countervailing duty law than could have
been plausibly intended by Congress.
Further, the Court is not persuaded by Hynix’s criticism of
Commerce’s interpretation. In essence, Hynix argues for a more
limited reading of the government subsidy function requirement
of 19 U.S.C. § 1677(5)(B)(iii) – namely that a government
17
Rather, court-ordered punitive damages are generally
considered to implicate a government’s police power. See United
States v. Morrison, 529 U.S. 598 (2000) (characterizing use of
punitive damages to suppress crime as example of state police
power).
Court No. 03-00651 Page 45
subsidy function cannot be performed if the practice in question
is commercially rational. What Hynix fails to recognize is that
the countervailing duty statute already requires Commerce to
consider the relative commerciality of a financial contribution
– to determine if a benefit has been conferred. See 19 U.S.C. §
1677(5)(B)(iii) (1999); id. § 1677(5)(E). Hynix’s
interpretation seeks to unnecessarily conflate two statutorily
distinct inquiries and is therefore unpersuasive. As such, the
Court finds Commerce’s reasonable statutory interpretation of
the portion of 19 U.S.C. § 1677(5)(B)(iii) pertaining to the
government subsidy function requirement to be in accordance with
law.
In addition, the Court finds substantial evidence in
support of Commerce’s conclusion that the government subsidy
function requirement was satisfied by the investigated financial
contributions. 18 As discussed above at Part III.B, Hynix’s
creditors transferred funds, in the form of preferential loans
and equity infusions, pursuant to the entrustment or direction
18
Hynix asserts that Commerce “completely ignored the second
independent prong of 19 U.S.C. § 1677(5)(B)(iii)” (i.e., the
government subsidy function requirement) in reaching its
determination. Pls.’ Br. at 33. The Court disagrees with this
characterization. While Commerce’s analysis certainly could
have been more rigorously demarcated, the Court must “uphold a
decision of less than ideal clarity if the agency’s path may
reasonably be discerned.” Bowman Transp., Inc. v. Arkansas-Best
Freight System, Inc., 419 U.S. 281, 286 (1974).
Court No. 03-00651 Page 46
of the Korean government. If the Korean government had
undertaken these transfers directly, there can be no question
that it would have thereby provided countervailable subsidies to
Hynix. See 19 U.S.C. § 1677(5)(B)(i) (1999) (describing
countervailable subsidy to include benefit-conferring financial
contribution provided directly by a government). In effect, the
Korean government delegated its subsidy function to Hynix’s
creditors, which then performed officially sanctioned “financial
support activities[.]” Decision Memo at 61. As such,
substantial evidence supports the conclusion that the government
subsidy function requirement of 19 U.S.C. § 1677(5)(B)(iii)
was met.
Accordingly, the Court upholds Commerce’s conclusion that
Hynix’s creditors performed a government subsidy function for
purposes of 19 U.S.C. § 1677(5)(B)(iii) as in accordance with
law and supported by substantial evidence.
D. Commerce’s Benefit Analysis Is In Accordance with Law and
Supported by Substantial Evidence
Turning to the final prong of 19 U.S.C. § 1677(5)(B)(iii),
Hynix alleges error with the two principal analyses underlying
Commerce’s conclusion that a countervailable benefit was
conferred to Hynix during its restructuring. First, Hynix
claims that Commerce’s creditworthiness analysis, which
determined that Hynix would not have been able to attract loans
Court No. 03-00651 Page 47
from commercial sources during its restructuring, was flawed.
Pls.’ Br. at 36-40, 42-45, 49-50. Second, Hynix argues that
Commerce’s equityworthiness analysis, which determined that
Hynix would not have been able to attract equity from commercial
sources during its restructuring, was also flawed. Id. at 40-
42, 46-49. Hynix’s specific arguments concerning Commerce’s
creditworthiness analysis and equityworthiness analysis are
addressed separately below. 19
For the reasons that follow, the Court upholds Commerce’s
conclusion that a benefit was conferred to Hynix by its receipt
of government-entrusted or directed financial contributions as
in accordance with law and supported by substantial evidence.
1. Creditworthiness Analysis
a. Commerce’s Rejection of Loans Made by Citibank as
Commercial Benchmarks in Hynix’s Creditworthiness
Analysis Is Reasonable
Hynix contends that Commerce erroneously rejected as
commercial benchmarks the loans made by Citibank to Hynix during
its restructuring, ultimately leading to an inaccurate
19
Concerning both of these analyses, Hynix argues that Commerce
erred by refusing to use as commercial benchmarks the loans and
equity infusions made by Hynix’s creditors (other than Citibank)
during Hynix’s restructuring. Pls.’ Br. at 45-46. Because the
Court concludes that Commerce reasonably found these loans and
equity infusions to have been made pursuant to government-
entrustment or direction, see supra Part III.B, the Court also
upholds Commerce’s decision to disqualify them as commercial
benchmarks.
Court No. 03-00651 Page 48
creditworthiness analysis. Pls.’ Br. at 36. Hynix argues that
Commerce should have considered these loans, made by a
concededly independent commercial actor, as evidence that Hynix
was creditworthy. Id. at 37. In support of this position,
Hynix points to the countervailing duty regulations, which state
that “the receipt [by an investigated company] of comparable
long-term commercial loans, unaccompanied by a government-
guarantee, will normally constitute dispositive evidence that
[the investigated company] is not uncreditworthy.” Id. at 35
(quoting 19 C.F.R. § 351.505(a)(4)(ii) (2005)). Hynix also
contends that Commerce ignored affidavits by Citibank officials
indicating that the bank’s involvement in Hynix’s restructuring
stemmed from purely commercial motivations, rather than the
influence of the Korean government. Id. at 42-44. Finally,
Hynix argues that Citibank’s dual role as lender and financial
advisor to Hynix should not have led Commerce to the conclusion
that Citibank was different from the average lender. Id. at
44-45.
The Court finds that Commerce reasonably determined that
the loans made by Citibank were not suitable commercial
benchmarks for use in Hynix’s creditworthiness analysis. First,
Commerce acted in accordance with law when it considered the
influence of governmental actions on a private entity whose
loans were proffered as commercial benchmarks of
Court No. 03-00651 Page 49
creditworthiness for an investigated company. The preamble to
the countervailing duty regulations explains that Commerce will
carefully examine any loan made by a private entity which is
part of a package including government loans to determine if the
loan is truly “commercial” in nature. Countervailing Duties, 63
Fed. Reg. 65348, 65364 (Dep’t Commerce Nov. 25, 1998) (final
rule). This examination is necessary because, as Commerce has
noted, “special features” in such a loan package may influence
an otherwise independent, commercial lender to “offer lower,
more favorable terms than would be offered absent the
government/commercial bank package.” Id. For purposes of this
examination, Commerce need not find that a private entity has
been entrusted or directed by a government for that entity to
nonetheless be influenced by the government’s actions when
making investment decisions. For example, it would be fully
rational for an independent private entity seeking to make sound
business decisions based on market factors to take into
consideration a government’s pervasive involvement in the
restructuring of a company. Although rightly a factor in the
commercial decision-making process, such government influence
would render that entity’s loans inappropriate for use as
commercial benchmarks in creditworthiness analysis. 20
20
Consideration of the distortive, if non-countervailable, role
(footnote continued)
Court No. 03-00651 Page 50
Further, Commerce’s finding that Citibank’s lending
decisions were influenced by the Korean government’s involvement
in Hynix’s restructuring is supported by substantial evidence.
Commerce appropriately took great care in examining the nature
of Citibank’s lending to Hynix during a restructuring which
involved significant participation by government-entrusted and
directed financial institutions. Commerce found that Citibank
waited until the involvement of these financial institutions was
assured before it committed resources to Hynix’s restructuring.
Decision Memo at 9-10; see also Def.’s App., App. 8 (Hynix
Verification Report dated May 15, 2003) at 20 (“Citibank decided
to participate in the [bond] issuance that was part of the May
restructuring to provide a ‘symbolic gesture of support’ to show
that Citibank willing [sic] to stand behind Hynix.”); id. at 21
(“Citibank felt that it was best to provide a small additional
amount of funding and ‘ride’ with the [Korean] banks to see if
a government may play in the marketplace is not limited to this
section of the countervailing duty statute. For example, with
regard to the privatization of government-owned companies, the
presumption of subsidy extinguishment which accompanies the sale
of such a company for fair market value “may be rebutted upon a
showing that the sale process was distorted through government
intervention” in the broader market. Allegheny Ludlum Corp. v.
United States, 29 CIT ___, ___, 358 F. Supp. 2d 1334, 1346
(2005) (citing Notice of Final Modification of Agency Practice
Under Section 123 of the Uruguay Round Agreements Act, 68 Fed.
Reg. 37125, 37127 (Dep’t Commerce June 23, 2003) (notice of
modification of agency practice regarding privatizations)).
Court No. 03-00651 Page 51
Hynix could make it as an ongoing concern. The officials
explained that Citibank was making a bet that the [Korean] banks
would protect their exposure.”). Only then did Citibank seek
internal credit approval for its portion of the first loan to
Hynix. Def.’s App., App. 8 (Hynix Verification Report, dated
May 15, 2003) at 20 (“According to Citibank officials, it did
not seek internal credit approval for its portion of the
syndicated bank loan until after the [Korean] banks committed to
the syndicated bank loan.”). In addition, the level of
Citibank’s lending to Hynix – only 12.5 percent of the December
2000 syndicated loan and a small percentage of the May 2001
restructuring package – further supports Commerce’s conclusion
that Citibank was able to alter its lending risk calculus by
relying on the dominant participation of government-entrusted or
directed financial institutions. 21 See Def.’s App., App. 7
21
Indeed, as indicated in the preamble to the countervailing
duty regulations, the “relatively small amount” of a long-term
commercial loan may rebut the presumption of creditworthiness
which accompanies its receipt by a company. Countervailing
Duties, 63 Fed. Reg. 65348, 65367. Accordingly, Commerce’s
substantiated finding that Citibank’s lending was “relatively
small in absolute and percentage terms compared to the
involvement” of the government-entrusted or directed financial
institutions during Hynix’s restructuring, Decision Memo at 9,
provides independent justification for Commerce’s rejection of
Citibank’s loans as commercial benchmarks. Hynix’s attempt to
undermine this finding by comparing Citibank’s lending with that
of individual government-entrusted or directed financial
institutions (rather than the group as a whole), see Pls.’ Br.
at 38-40, is unavailing.
Court No. 03-00651 Page 52
(Commerce Mem. on Bus. Proprietary Info. for Final Determination
dated June 16, 2003) at Attach. 1 (detailing Citibank’s share of
new debt extended to Hynix); id., App. 24 (Hynix Supplemental
Resp. dated Mar. 4, 2003) at Ex. 8 (detailing Hynix’s various
loans). Based on this evidence, it was reasonable for Commerce
to conclude that the involvement of government-entrusted or
directed financial institutions affected the terms by which
Citibank agreed to lend to Hynix. Hynix counters that Commerce
failed to take into consideration two affidavits by Citibank
officials which indicated that Citibank acted in a purely
commercial manner independent of government influence. Pls.’
Br. at 42-44; see Pls.’ App., App. 17 (Citibank Aff. dated Mar.
20, 2003); id., App. 18 (Citibank Aff. dated May 22, 2003).
However, Commerce specifically addressed these affidavits in its
Decision Memo and in fact altered certain aspects of its
preliminary analysis as a result of this evidence. See Decision
Memo at 8 (“Since our preliminary analysis, relevant evidence
has been added to the record which warrants a reconsideration .
. . . This includes information provided by Citibank officials
in an interview at verification, which Citibank further
clarified in a second affidavit . . . .”). Commerce nonetheless
concluded that these affidavits supported its finding that
Court No. 03-00651 Page 53
Citibank considered factors, like the participation of
government-entrusted or directed financial institutions, 22 when
lending to Hynix. Upon a careful review of these largely
confidential affidavits as urged by Hynix, the Court cannot
disagree with this conclusion.
As such, the Court concludes that Commerce’s rejection of
Citibank’s loans as commercial benchmarks in Hynix’s
creditworthiness analysis is reasonable.
b. Commerce’s Rejection of the Korean Default Rates
Supplied by Hynix Is Reasonable
Hynix next contends that, once Commerce erroneously
determined that Hynix was uncreditworthy, Commerce further erred
by using Moody’s U.S. average cumulative default rates to
construct an uncreditworthy benchmark for use in calculating the
benefit received by Hynix from government-entrusted or directed
loans. Pls.’ Br. at 49. Hynix argues that Commerce should have
22
In addition, Commerce reasonably found that Citibank likely
took into consideration its dual role (through SSB) as Hynix’s
financial advisor when making lending decisions. As Commerce
noted in the preamble to the countervailing duty regulations,
“many characteristics could factor into a decision of whether a
loan should be considered comparable to the government-provided
loan.” Countervailing Duties, 63 Fed. Reg. 65348, 65363. One
such characteristic could be the existence of an alternative
revenue stream which directly affects the relative risk of
entering into a commercial relationship. As a result, even if
Commerce had found Citibank’s loans to be otherwise suitable
commercial benchmarks, the agency still would have been
justified in taking this aspect of Citibank’s loans into
consideration.
Court No. 03-00651 Page 54
instead used Korean default rates for corporate bonds published
by Korean bond rating agencies and provided to Commerce by
Hynix. Id. at 49. Hynix argues that, while Commerce’s
regulations generally require the agency to use Moody’s U.S.
data, they also allow Commerce to consider country-specific data
when available. Id. (citing Countervailing Duties, 63 Fed. Reg.
65348, 65365). Hynix contends that Commerce should have
recognized that the available Korean default data was much more
accurate than Moody’s U.S. default data for this investigation.
Id. Further, Hynix argues that Commerce inappropriately
rejected the Korean default data simply because it was “not
sufficiently clear” that the data was comparable to Moody’s U.S.
data. Id. (quoting Decision Memo at 105). Hynix argues that
Commerce was legally required to seek the needed clarification
from Hynix before drawing such an unjustified, adverse inference
about the data. Pls.’ Br. at 49 (citing Helmerich & Payne, Inc.
v. United States, 22 CIT 928, 24 F. Supp. 2d 304 (1998) (holding
that Commerce must provide opportunity for
clarification/correction before drawing adverse inferences)).
The Court finds that Commerce reasonably rejected the
Korean default data provided by Hynix for calculating the
uncreditworthy benchmark. First, Commerce appropriately found
the data provided by Hynix to be unclear and incomplete. The
countervailing duty regulations state that Commerce normally
Court No. 03-00651 Page 55
uses the average “cumulative” default rates developed by Moody’s
to construct uncreditworthy benchmarks. 19 C.F.R. §
351.505(a)(3)(iii) (2005). The preamble to Commerce’s
countervailing duty regulations reiterates this requirement and
makes clear that Commerce will only consider using non-Moody’s
data that is “detailed and comprehensive[.]” Countervailing
Duties, 63 Fed. Reg. 65348, 65365. Notwithstanding this, Hynix
provided default data without any indication that it was
cumulative. Decision Memo at 105. Further, the minimal data
offered by Hynix provided none of the detail or discussion of
methodology which would have allowed Commerce to compare the
quality of that data to Moody’s U.S. data. Id. Instead, a
portion of the Korean default data was anomalous on its face.
See Pls.’ App., App. 10 (Supplemental Questionnaire Resp. of
Hynix dated Mar. 4, 2003) at Ex. 18 (report of one Korean bond
rating agency indicating a default rate of 2.47 percent for “CCC
and below” bonds and a default rate of 4.98 percent for “A”
bonds). Hynix did not provide any explanation for these
aberrational default rates with its submission. Given these
omissions, Commerce had reasonable grounds to question the
reliability of the Korean default data provided by Hynix and
ultimately disregard it.
Second, Commerce did not err by declining to request
clarification of the Korean default data from Hynix.
Court No. 03-00651 Page 56
Commerce was not required by the countervailing duty statute or
regulations to offer Hynix an opportunity to better explain or
correct its proffered data. Rather, the countervailing duty
regulations place the onus on the parties to an investigation to
convince Commerce that more accurate, country-specific default
information is available. 23 To that end, Plaintiffs’ reliance on
Helmerich is misplaced. Helmerich stands for the principle that
Commerce must “fairly request” information from a party before
drawing an “adverse inference” that the party has failed to
cooperate. Helmerich, 22 CIT at 931, 24 F. Supp. 2d at 308.
This principle is not applicable to Commerce’s rejection of the
Korean default data because Commerce did not apply adverse
inferences. Rather, Commerce’s standard methodology is to use
23
Compare Countervailing Duties, 63 Fed. Reg. 65348, 65365
(“[I]f [detailed and comprehensive country-specific default
data] do exist and are brought to our attention in the course of
an investigation . . . we would consider using the default rate
from the country under investigation.”) (emphasis added) with 19
U.S.C. § 1677m(d) (1999) (if “a response to a request for
information under this title does not comply with the request,
[Commerce] shall promptly inform the person submitting the
response of the nature of the deficiency and shall, to the
extent practicable, provide that person with an opportunity to
remedy or explain the deficiency”) (emphasis added). Absent an
affirmative due process, statutory, or regulatory obligation on
the part of Commerce to request clarification of unsolicited
default data, the Court will not here impose one. However, the
Court notes that Commerce’s selection of default data must
nonetheless be adequately explained and supported by substantial
evidence, thereby potentially limiting Commerce’s discretion in
future investigations involving country-specific default data
which does not feature the serious infirmities present here.
Court No. 03-00651 Page 57
Moody’s U.S. default data. This court has held that Commerce
does not make an adverse inference by “simply following its
standard practice[.]” Rhodia, Inc. v. United States, 26 CIT
1107, 1111, 240 F. Supp. 2d 1247, 1251 (2002).
As such, the Court concludes that Commerce’s rejection of
the Korean default rates for purposes of Hynix’s
creditworthiness analysis is reasonable.
2. Equityworthiness Analysis
a. Commerce’s Rejection of Equity Investments Made
by Citibank as Commercial Benchmarks in Hynix’s
Equityworthiness Analysis Is Reasonable
Hynix next argues that Commerce erred in finding Citibank’s
equity investment in Hynix to be too small for use as a
commercial benchmark of the price of Hynix’s equity, ultimately
resulting in a flawed equityworthiness analysis. Pls.’ Br. at
40. Hynix notes that, following the October 2001 debt-to-equity
conversion, Citibank became Hynix’s fifth largest shareholder. 24
Id. Hynix contends that Citibank’s investment, representing
only a small percentage of the total debt-to-equity conversion
but valued at tens of millions of dollars, should have been
considered “significant” and thus qualified for use as a
commercial benchmark. Id. at 41 (citing 19 C.F.R. §
351.507(a)(2)(iii) (2005)). Hynix argues that Commerce should
24
The actual portion of Citibank’s equity purchase which
occurred during Hynix’s restructuring is confidential.
Court No. 03-00651 Page 58
have reached this conclusion in order to be consistent with its
past determinations. Id. (citing Small Diameter Circular
Seamless Carbon and Alloy Steel Standard, Line and Pressure Pipe
from Italy, 60 Fed. Reg. 31992 (Dep’t Commerce June 19, 1995)
(final determination) (finding investment valued at
approximately $15 million and resulting in 18.3 percent
ownership interest in an investigated company to be significant)
(“Seamless Pipe from Italy”)). Hynix argues that an appropriate
comparison of Citibank’s investment in Hynix and that in
Seamless Pipe from Italy should have compared the amount of the
investment and not the percent ownership interest involved.
Pls.’ Br. at 41. According to Hynix’s calculations, had
Commerce compared the amounts invested in the two investigated
companies, Commerce would have found that the value of
Citibank’s investment was far greater than the investment at
issue in Seamless Pipe from Italy, which Commerce had determined
to be significant under 19 C.F.R. § 351.507(a)(2)(iii). Id.
The Court concludes that Commerce appropriately found the
equity investment made by Citibank was not a suitable commercial
benchmark for use in Hynix’s equityworthiness analysis. First,
Commerce’s interpretation of the significant investment
requirement of 19 C.F.R. § 351.507(a)(2)(iii) is reasonable.
Commerce included the significant investment standard in its
regulations based on the observation that “the volume of a
Court No. 03-00651 Page 59
firm’s traded shares [may] be so low as to preclude the use of
those shares as a benchmark.” Countervailing Duties, 62 Fed.
Reg. 8818, 8832 (Dep’t Commerce Feb. 26, 1997) (notice of
proposed rulemaking and request for public comments). However,
neither this language nor the text of the regulation makes clear
how the significance of an investment should be evaluated by
Commerce. Commerce argues that it should, and here as in
Seamless Pipe from Italy properly did, focus its inquiry on the
percent involvement by private investors - rather than the
dollar value of private investment. The Court agrees. In this
case as well as Seamless Pipe from Italy, Commerce largely
rested its significance determination on the percent interest
held by private investors, even though the dollar amount of
private investment could be roughly deduced from the facts
presented. See Decision Memo at 90; Seamless Pipe from Italy,
60 Fed. Reg. at 31994. While this construction of the term
“significant” is not necessarily compelled by the language of
Commerce’s regulation, it is far from being at odds with the
regulation. Analysis of percent interest appears to provide a
controlled and predictable way for Commerce to evaluate the
significance of equity investments across different industries
and investigations. Comparisons of dollar amounts across
investigations, as suggested by Hynix, would require Commerce to
control for the effects of inflation, exchange rate
Court No. 03-00651 Page 60
fluctuations, and, most challenging, the variability in the
intrinsic value of companies in order to apply the regulation in
an evenhanded manner. The difficulties inherent in Hynix’s
approach demonstrate the reasonableness of Commerce’s
construction of its own regulation, already entitled to
significant deference under this Court’s standard of review.
Second, applying Commerce’s construction of 19 C.F.R. §
351.507(a)(2)(iii) to this case, substantial evidence supports
the finding that Citibank’s equity stake in Hynix was not
significant. Citibank’s equity purchase during Hynix’s
restructuring was well below the 18.3 percent equity stake found
to be significant in Seamless Pipe from Italy. Although the
exact “significant” threshold is not clear from Commerce’s
construction, it was reasonable for Commerce to conclude that an
investment the size of Citibank’s was not significant.
As such, Commerce’s rejection of Citibank as a commercial
benchmark in Hynix’s equityworthiness analysis is reasonable.
b. Commerce’s Use of the Expected Utility Model to
Reject the October 2001 Debt-to-Equity Conversion
as Evidence of Hynix’s Equityworthiness Is
Reasonable
Hynix next contends that, despite the absence of commercial
benchmarks, Commerce erroneously disregarded the October 2001
debt-to-equity conversion as evidence that Hynix was otherwise
equityworthy. Pls.’ Br. at 48. In rejecting this transaction,
Court No. 03-00651 Page 61
Hynix argues that Commerce impermissibly grafted an economic
theory – the Expected Utility Model – into the countervailing
duty statute and regulations. Id. Contrary to this model,
which states that the existence and status of previous
investments in a company are extraneous considerations when
weighing new investment in the same company, Hynix argues that
it is natural for an existing creditor to consider the likely
effect of a new investment on an existing investment in the same
company. Id. According to Hynix, an investor already deeply
committed to a company might make an additional capital infusion
in the hopes that more resources will help the company to
improve. Id. If Commerce had instead applied this principle,
Hynix argues that it would have found the October 2001 debt-to-
equity conversion to be consistent with the “usual investment
practice” of at least some “private investors” – the standard by
which Commerce must evaluate the benefit conferred by an equity
infusion. Id. (citing 19 U.S.C. § 1677(5)(E)(i) (1999)).
The Court finds that Commerce’s rejection of the October
2001 debt-to-equity conversion as evidence of Hynix’s
equityworthiness is reasonable. First, Commerce’s use of the
Expected Utility Model is in accordance with law. Commerce has
repeatedly used the Expected Utility Model as a methodological
tool to help analyze the equityworthiness of investigated
companies. See, e.g., Certain Steel Products from Austria, 58
Court No. 03-00651 Page 62
Fed. Reg. 37217, 37249-50 (Dep’t Commerce July 9, 1993) (final
determination); Certain Hot Rolled Lead and Bismuth Carbon Steel
Products from the United Kingdom, 58 Fed. Reg. 6237, 6245 (Dep’t
Commerce Jan. 27, 1993) (final determination); Steel Wheels from
Brazil, 54 Fed. Reg. 15523, 15530 (Dep’t Commerce Apr. 18, 1989)
(final determination). Although not identifying the model by
name, this court has upheld the logical underpinnings of this
methodology in past reviews of Commerce’s countervailing duty
determinations. See British Steel Corp. v. United States, 10
CIT 224, 231, 632 F. Supp. 59, 65 (1986); Companhia Siderurgica
Paulista, S.A. v. United States, 12 CIT 1098, 1101-03, 700 F.
Supp. 38, 42-43 (1988). In British Steel, an analogous case
involving a previous version of the countervailing duty statute,
the court reviewed Commerce’s finding that the British
government’s equity investments in the investigated company were
inconsistent with commercial considerations. British Steel, 10
CIT at 224-25, 632 F. Supp. at 60. British Steel argued that
such equity investments should be considered commercially
reasonable where the funds are used to help cover the operating
losses of an investigated company which is able to cover its
variable costs; the additional equity would be used to pay down
fixed costs. Id. at 228-29, 632 F. Supp. at 62-63. British
Steel maintained that it would be economically rational for an
investor to support continued operations by such a company so
Court No. 03-00651 Page 63
that the company’s overall loss would be minimized by the
additional investment funds. Id. This court upheld Commerce’s
rejection of British Steel’s arguments, stating:
[I]t would be unrealistic to expect a private sector
investor to supply operating funds to a loss-
incurring firm merely to permit the firm to continue
operations to minimize its losses. Thus, while it may
be perfectly rational for an owner to sustain loss-
minimizing operations, it would not be commercially
reasonable for an investor to provide funds for that
purpose without adequate assurance of the future
profitability of the enterprise and a return on . . .
investment within a reasonable time.
Id. at 231, 632 F. Supp. at 65. The poor financial prospects of
the investigated company, based on a trend of consistently bad
returns, were critical to this court’s implicit support of the
Expected Utility Model used by Commerce in British Steel. See
also Companhia Siderurgica Paulista, 12 CIT at 1103, 700 F.
Supp. at 43 (approving of Commerce’s “comprehensive analysis”
which focused on company’s current health, past performance,
independent studies, and industry forecasts).
Like British Steel, substantial evidence in this case
demonstrates that Hynix was a company whose consistently bleak
financial results could provide a reasonable investor with
little assurance of future profitability. See Decision Memo at
92; Def.’s App., App. 4 (Creditworthiness Analysis of Hynix
Semiconductor, Inc. dated Mar. 31, 2003) at 3-5 (analyzing
Hynix’s financial records from 1997 to 2002). Hynix’s arguments
Court No. 03-00651 Page 64
against application of the Expected Utility Model would perhaps
warrant greater consideration in a case where investors in a
generally sound company faced only short-term financial
troubles. See British Steel, 10 CIT at 231, 632 F. Supp. at 65
(noting that “equity infusions in loss-incurring companies do
not per se confer a subsidy”). Such is not the case here.
Under these circumstances, application of the Expected Utility
Model as a methodological tool for assessing equityworthiness is
reasonable. Commerce therefore properly found that the purchase
of an additional equity stake in Hynix in October 2001 was
inconsistent with the usual investment practice of private
investors.
As such, Commerce’s rejection of the October 2001 debt-to-
equity conversion as a commercial benchmark for use in Hynix’s
equityworthy analysis is reasonable.
c. Commerce’s Rejection of Third Party Studies
Commissioned by Hynix’s Creditors During the
Restructuring as Evidence of Hynix’s
Equityworthiness Is Reasonable
Finally, Hynix contends that Commerce improperly rejected
studies by third parties which discussed the financial merits of
investment in Hynix and proved that Hynix was otherwise
equityworthy during its restructuring. Pls.’ Br. at 47. Hynix
argues that these studies, relied upon by Hynix’s creditors in
making their investment decisions, provided important insight
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into the perceived commercial rationality of transactions like
the October 2001 debt-to-equity conversion. Id. at 46-47.
Hynix argues that Commerce should not have disregarded these
studies simply because they focused on investment in Hynix from
a creditor (rather than new investor) perspective. Id. at 47
(citing Decision Memo at 91 (noting that studies focused on
“financial mechanisms available to save Hynix from collapse”)).
The Court upholds Commerce’s rejection of the third party
studies commissioned by Hynix’s creditors as evidence of Hynix’s
equityworthiness. Hynix advances these studies as its principal
evidence of why an already committed investor would continue to
finance the struggling Hynix in order to minimize losses. To
the extent that this argument largely relies on acceptance of
Hynix’s criticism of the Expected Utility Model, it is rejected
by the Court. See supra Part III.D.2.b. In addition, the Court
notes that Commerce questioned the credibility and/or
reliability of several of these studies for reasons related to
soundness of methodology and independence of analysis. See
Decision Memo at 91-92. This finding, uncontested here by
Hynix, provides an alternative ground for rejecting these
studies because they were not “[o]bjective analyses” as required
by the countervailing duty regulations. 19 C.F.R. §
351.507(a)(4)(i)(A) (2005).
As such, Commerce’s rejection of the third party studies
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for use in Hynix’s equityworthy analysis is reasonable and,
accordingly, the Court upholds as in accordance with law and
supported by substantial evidence Commerce’s conclusion that the
government-entrusted or directed financial contributions
received by Hynix during its restructuring conferred a
countervailable benefit.
IV. CONCLUSION
For the foregoing reasons, the Court sustains the Remand
Results and the remainder of the previously deferred Final
Determination. Judgment shall be entered accordingly.
/s/ Richard W. Goldberg
Richard W. Goldberg
Senior Judge
Date: March 23, 2006
New York, New York