  United States Court of Appeals
      for the Federal Circuit
                ______________________

              NUCOR CORPORATION,
                 Plaintiff-Appellant

      ARCELORMITTAL USA LLC, AK STEEL
     CORPORATION, UNITED STATES STEEL
              CORPORATION,
                 Plaintiffs

                          v.

  UNITED STATES, GOVERNMENT OF KOREA,
            Defendants-Appellees

        DONGKUK STEEL MILL CO., LTD.,
                  Defendant
            ______________________

                      2018-1787
                ______________________

   Appeal from the United States Court of International
Trade in No. 1:16-cv-00164-CRK, Judge Claire R. Kelly.
                 ______________________

                Decided: June 21, 2019
                ______________________

    ROBERT E. DEFRANCESCO, III, Wiley Rein, LLP, Wash-
ington, DC, argued for plaintiff-appellant. Also repre-
sented by TIMOTHY C. BRIGHTBILL, TESSA V. CAPELOTO,
LAURA EL-SABAAWI, ALAN H. PRICE, ADAM MILAN TESLIK,
MAUREEN E. THORSON, CHRISTOPHER B. WELD.
2                       NUCOR CORPORATION v. UNITED STATES




    LOREN MISHA PREHEIM, Commercial Litigation Branch,
Civil Division, Department of Justice, Washington, DC, ar-
gued for defendant-appellee United States. Also repre-
sented by ELIZABETH ANNE SPECK, CLAUDIA BURKE,
JEANNE DAVIDSON; CATHERINE D. MILLER, Office of Chief
Counsel for Trade Enforcement and Compliance, Depart-
ment of Commerce; CHAD A. READLER, Civil Division, U.S.
Department of Justice.

   JEFFREY M. WINTON, Law Office of Jeffrey M. Winton
PLLC, Washington, DC, argued for defendant-appellee
Government of Korea. Also represented by YOUNGJAE KIM,
Economic Section, Embassy of the Republic of Korea.
                ______________________

    Before LOURIE, REYNA, and TARANTO, Circuit Judges.
    Opinion for the court filed by Circuit Judge TARANTO.
     Opinion dissenting filed by Circuit Judge REYNA.
TARANTO, Circuit Judge.
    In 2016, the U.S. Department of Commerce issued its
final determination in its investigation into whether the
Government of Korea had provided, to Korean producers
and exporters of certain corrosion-resistant steel products
(CORE), subsidies warranting imposition of countervailing
duties on the products when imported into the United
States. Nucor Corporation and other U.S. producers of
CORE, which had requested the investigation, alleged that
the Korean government, during the period of investigation
(Jan. 1, 2014–Dec. 31, 2014), had provided subsidies to
Korean CORE producers through its sale of electricity to
them. Commerce found no such electricity-sale subsidy,
while finding some other subsidies. The Court of
International Trade affirmed Commerce’s finding as to
electricity sales. Nucor Corp. v. United States, 286 F.
Supp. 3d 1364 (Ct. Int’l Trade 2018). In this appeal by
NUCOR CORPORATION v. UNITED STATES                         3



Nucor, we reject a broad legal position advanced by
Commerce in defending its decision, but we find no
reversible error in the Commerce decision. We therefore
affirm.
                              I
     In June 2015, acting on petitions from Nucor and other
U.S. producers of CORE, Commerce initiated a counter-
vailing-duty investigation under 19 U.S.C. § 1671 et seq.
into certain CORE products from Korea. See Certain Cor-
rosion-Resistant Steel Products from the People’s Republic
of China, India, Italy, the Republic of Korea, and Taiwan,
80 Fed. Reg. 37,223 (Dep’t of Commerce June 30, 2015) (In-
itiation Decision). 1 In November 2015, Commerce issued a
Preliminary Affirmative Determination supporting de
minimis or small subsidy rates, Countervailing Duty Inves-
tigation of Certain Corrosion-Resistant Steel Products
From the Republic of Korea: Preliminary Affirmative Deter-
mination, 80 Fed. Reg. 68,842 (Dep’t of Commerce Nov. 6,
2015), based on the analysis set forth in its Decision Mem-
orandum for the Preliminary Affirmative Determination,
J.A. 8889−917 (Preliminary Determination Memo). Com-
merce issued its final determination in June 2016, contin-
uing to assign de minimis or small subsidy rates.
Countervailing Duty Investigation of Certain Corrosion-Re-
sistant Steel Products from the Republic of Korea, 81 Fed.
Reg. 35,310 (Dep’t of Commerce June 2, 2016) (Final Deter-
mination). The Final Determination relies for its reasoning
on Commerce’s Issues and Decision Memorandum for the
Final Determination, J.A. 9006−45 (Final Determination
Memo).



    1   Nucor is the only appellant in this court. We here-
after omit reference to its co-petitioners even when describ-
ing stages of the proceeding at which they appeared
alongside Nucor.
4                      NUCOR CORPORATION v. UNITED STATES




    Under the statutes governing Commerce’s investiga-
tion, Congress is to impose a countervailing duty on mer-
chandise imported into the United States if “a government
is providing, directly or indirectly, a countervailable sub-
sidy with respect to the manufacture, production, or export
of that merchandise.” Delverde, SrL v. United States, 202
F.3d 1360, 1365 (Fed. Cir. 2000); see 19 U.S.C. § 1671(a)(1).
The key statutory language for present purposes is lan-
guage that originated in the Uruguay Round Agreements
Act [URAA], Pub. L. No. 103-465, 108 Stat. 4809 (1994).
The relevant provisions declare: first, one form of “counter-
vailable subsidy” exists when a government “authority”
sells “goods or services” on terms such that “a benefit is
thereby conferred”; second, a “benefit shall normally be
treated as conferred” when the goods or services sold “are
provided for less than adequate remuneration”; and third,
“the adequacy of remuneration shall be determined in re-
lation to prevailing market conditions for the good or ser-
vice being provided . . . in the country which is subject to
the investigation,” with “[p]revailing market conditions in-
clud[ing] price, quality, availability, marketability, trans-
portation, and other conditions of purchase or sale.” 19
U.S.C. § 1677(5)(A)–(B), (D)–(E); see Delverde, 202 F.3d at
1365−66. 2
   Commerce addressed several issues in the proceeding.
The issue in dispute here involves Nucor’s assertion that
an authority of the Korean government was selling



    2   An “authority” is “a government of a country or any
public entity within the territory of the country.” 19 U.S.C.
§ 1677(5)(B). A “countervailable subsidy” includes a sub-
sidy “in the case in which an authority” “provides a finan-
cial contribution” to a person “and a benefit is thereby
conferred.” § 1677(5)(A), (B). A “financial contribution” in-
cludes “providing goods or services, other than general in-
frastructure.” § 1677(5)(D)(iii).
NUCOR CORPORATION v. UNITED STATES                         5



electricity to Korean CORE producers for “less than ade-
quate remuneration,” the standard of 19 U.S.C.
§ 1677(5)(E)(iv). Commerce rejected that contention.
    Commerce focused on the Korea Electric Power Corpo-
ration (KEPCO) as the seller of electricity to users in Ko-
rea, including the CORE producers at issue. Commerce
found that KEPCO is an “authority” of the Government of
Korea, citing the Korean government’s ownership of and
control over KEPCO and the Korean government’s regula-
tion and approval of KEPCO’s prices. Preliminary Deter-
mination Memo, J.A. 8906−07. Commerce also found that
KEPCO is “the primary utility company in Korea providing
electricity to Korean consumers” and that only “a minimal
amount of electricity is supplied directly to consumers on a
localized basis by independent power producers.” J.A.
8907.
    In determining whether KEPCO sold electricity to the
Korean CORE producers for “less than adequate remuner-
ation,” Commerce applied a regulation, 19 C.F.R.
§ 351.511, that it had adopted in 1998 to guide application
of that statutory standard. See Countervailing Duties, 63
Fed. Reg. 65,348 (Nov. 25, 1998) (final rule). The regula-
tion states that “where goods or services are provided, a
benefit exists to the extent that such goods or services are
provided for less than adequate remuneration.” 19 C.F.R.
§ 351.511(a)(1) (citing 19 U.S.C. § 1677(5)(E)(iv)). It then
sets forth three methods of answering the question, in or-
der of preferred approach, under the heading “‘Adequate
Remuneration’ defined.” Id. § 351.511(a)(2).
    The first two methods call for inquiry into how the sale
prices at issue compare to either of two “market” prices: ei-
ther (i) a “market-determined price” based on actual trans-
actions in the country or (ii) a “world market price” that
would be available to the purchasers in the country. Id.,
6                       NUCOR CORPORATION v. UNITED STATES




§ 351.511(a)(2)(i)–(ii). 3 Commerce found that neither of
those potential bases of comparison was available here—
the first, which looks for competitive-market prices, be-
cause KEPCO’s dominant market role means that “prices
within the country are distorted and cannot be used for



    3   Subparagraphs (i) and (ii) read:
    (i) In general. The Secretary will normally seek to
    measure the adequacy of remuneration by compar-
    ing the government price to a market-determined
    price for the good or service resulting from actual
    transactions in the country in question. Such a
    price could include prices stemming from actual
    transactions between private parties, actual im-
    ports, or, in certain circumstances, actual sales
    from competitively run government auctions. In
    choosing such transactions or sales, the Secretary
    will consider product similarity; quantities sold,
    imported, or auctioned; and other factors affecting
    comparability.
    (ii) Actual market-determined price unavailable.
    If there is no useable market-determined price
    with which to make the comparison under para-
    graph (a)(2)(i) of this section, the Secretary will
    seek to measure the adequacy of remuneration by
    comparing the government price to a world market
    price where it is reasonable to conclude that such
    price would be available to purchasers in the coun-
    try in question. Where there is more than one com-
    mercially available world market price, the
    Secretary will average such prices to the extent
    practicable, making due allowance for factors af-
    fecting comparability.
19 C.F.R. § 351.511(a)(2)(i)–(ii).
NUCOR CORPORATION v. UNITED STATES                           7



benchmark purposes,” J.A. 8907; the second because “there
is no cross-border transmission or distribution of electricity
in Korea,” J.A. 8908. The absence of the two regulatory
market-price bases for comparison is not disputed in this
court.
     Commerce therefore turned to the regulation’s residual
provision, which applies when the specified market prices
are not available for comparison and which requires as-
sessment of “whether the government price is consistent
with market principles.” 19 C.F.R. § 351.511(a)(2)(iii) (em-
phasis added). 4 Both in the Preliminary Determination
Memo and in the Final Determination Memo, Commerce
found that KEPCO’s prices to the Korean CORE producers
met that standard. J.A. 8908−10,9023−31. In particular,
in the Final Determination Memo, Commerce found that
KEPCO uses a tariff schedule and that the CORE produc-
ers paid prices consistent with that tariff schedule, so they
were not the beneficiaries of preferential price treatment.
J.A. 9023–25. Significantly, Commerce then also ad-
dressed KEPCO’s costs, concluding that Nucor had “failed
to adequately support a claim that KEPCO’s costs of elec-
tricity used in developing its tariff schedule do not fully re-
flect its actual costs of the electricity that it transmits and
distributes to its customers in Korea.”              J.A. 9028.



    4   Subparagraph (iii) reads:
    (iii) World market price unavailable. If there is no
    world market price available to purchasers in the
    country in question, the Secretary will normally
    measure the adequacy of remuneration by as-
    sessing whether the government price is consistent
    with market principles.
19 C.F.R. § 351.511(a)(2)(iii). A fourth subparagraph pro-
vides for certain adjustments to comparison prices, but
that subparagraph has not been invoked in this appeal.
8                       NUCOR CORPORATION v. UNITED STATES




Commerce found that “KEPCO’s standard pricing mecha-
nism used to develop its tariff schedule was based upon its
costs.” Id. It elaborated:
    To develop the electricity tariff schedules that were
    applicable during the [period of investigation],
    KEPCO first calculated its overall cost, including
    an amount for investment return. This cost in-
    cludes the operational cost for generating and sup-
    plying electricity to the consumers as well as taxes.
    The cost for each electricity classification was cal-
    culated by (1) distributing the overall cost accord-
    ing to the stages of providing electricity
    (generation, transmission, distribution, and sales);
    (2) dividing each cost into fixed cost, variable cost,
    and the consumer management fee; and (3) then
    calculating the cost by applying the electricity load
    level, peak level, and the patterns of consuming
    electricity. Each cost was then distributed into the
    fixed charge and the variable charge. KEPCO then
    divided each cost taking into consideration the elec-
    tricity load level, the usage pattern of electricity,
    and the volume of the electricity consumed. Costs
    were then distributed according to the number of
    consumers for each classification of electricity. For
    the [period of investigation], KEPCO more than
    fully covered its cost for the industry tariff applica-
    ble to [the Korean producer] respondents.
Id. (footnotes omitted).
    Commerce made one other point—that its analysis of
costs did not include the costs of generating (as opposed to
transmitting and distributing) electricity. Id. It explained:
    [W]ith respect to the costs of the generators, includ-
    ing the nuclear generators, [Commerce] did not re-
    quest these costs because the costs of electricity to
    KEPCO are determined by the KPX [Korean Power
    Exchange]. Electricity generators sell electricity to
NUCOR CORPORATION v. UNITED STATES                         9



    the KPX, and KEPCO purchases the electricity it
    distributes to its customers through the KPX.
    Thus, the costs for electricity are based upon the
    purchase price of electricity from the KPX, and this
    is the cost that is relevant for KEPCO’s industrial
    tariff schedule.
Id. (footnote omitted).
     In the Court of International Trade, as relevant here,
Nucor challenged Commerce’s method of analyzing
KEPCO’s prices as contrary to the “less than adequate re-
muneration” statutory standard and the “consistent with
market principles” regulatory standard. The Court of In-
ternational Trade rejected the contention, Nucor, 286 F.
Supp. 3d at 1369−75, 1377−80, relying in part on an earlier
decision indicating that, where market prices are unavail-
able for comparison, the statutory and regulatory standard
may be found satisfied simply by finding that the producer
at issue was not receiving “a preferential rate”—meaning a
nondiscriminatory rate—as long as the rate was “set by a
consistent [and] discernible method,” Maverick Tube Corp.
v. United States, 273 F. Supp. 3d 1293, 1306−07 (Ct. Int’l
Trade 2017). Nucor also challenged Commerce’s focus only
on KEPCO’s prices in relation to its costs, when, Nucor ar-
gued, Commerce should also have considered KPX’s prices
in relation to KPX’s own costs. The Court of International
Trade declined to address that contention on its merits,
concluding that Nucor was arguing that KPX should have
been included in the “authority” whose prices were being
analyzed and that Nucor had failed to exhaust that argu-
ment by properly presenting it in the proceeding before
Commerce. Id. at 1375−77.
    Nucor appeals. We have jurisdiction under 28 U.S.C.
§§ 1295(a)(5), 2107, and 2645(c).
10                     NUCOR CORPORATION v. UNITED STATES




                             II
    We review Commerce’s decision using the same stand-
ard of review applied by the Court of International Trade.
See Diamond Sawblades Mfrs. Coal. v. United States, 866
F.3d 1304, 1310 (Fed. Cir. 2017). We review Commerce’s
decision to determine if 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); see Diamond Saw-
blades, 866 F.3d at 1310; Dupont Teijin Films USA, LP v.
United States, 407 F.3d 1211, 1215 (Fed. Cir. 2005).
     Our review of Commerce’s interpretation of a statutory
provision is governed by the two-part framework set forth
in Chevron U.S.A. Inc. v. Natural Resources Defense Coun-
cil, Inc., 467 U.S. 837 (1984). If Congress has unambigu-
ously answered the question before the Court, the
congressional answer controls. See id. at 842–43. But if
Congress has not thus answered the question, the court
must consider “whether the agency’s answer is based on a
permissible construction of the statute.” Id. at 843. As to
consistency of the agency position with the statute, the Su-
preme Court has stated that, in applying Chevron, “the
question a court faces when confronted with an agency’s
interpretation of a statute it administers is always, simply,
whether the agency has stayed within the bounds of its stat-
utory authority.” City of Arlington v. FCC, 569 U.S. 290,
297 (2013). It follows, as the Court has further explained,
that even when a statutory term is sufficiently ambiguous
or general so as not to resolve all questions about its mean-
ing, an agency interpretation must still be a reasonable
choice within the range permitted by the statutory words.
See Utility Air Regulatory Group v. EPA, 573 U.S. 302, 321
(2014); see also MCI Telecomms. Corp. v. AT&T Co., 512
U.S. 218, 229 (1994) (“[A]n agency’s interpretation of a
statute is not entitled to deference when it goes beyond the
meaning that the statute can bear . . . .”).
NUCOR CORPORATION v. UNITED STATES                       11



    To the extent that Commerce’s regulation is at issue
here, Commerce does not invoke any principle of deference
to govern our inquiry into whether its interpretation is not
in accordance with law.
                            III
    Nucor’s principal argument takes Commerce’s focus on
only KEPCO’s prices and costs as a given and challenges
Commerce’s decision that KEPCO’s prices to the relevant
Korean CORE producers were not for less than adequate
remuneration. In this court, Commerce defends its deci-
sion on essentially two bases. First, Commerce suggests
that it suffices for compliance with the statutory and regu-
latory standard, where market prices are not available for
comparison, that the foreign government authority not be
charging the producer at issue “a preferential rate.” This
argument treats “preferential rate” as meaning that the
rate is set by a “consistent and discernible method” and
does not reflect “price discrimination.” U.S. Br. 25−28 (re-
lying on Maverick formulation); Oral Arg. at 22:22−23:19.
Second, more narrowly, Commerce defends its decision in
this case as consistent with the statute and regulation be-
cause Commerce found not only that KEPCO’s pricing was
non-discriminatory but also that the pricing ensured cost
recovery. U.S. Br. 42−52. We reject the first position, but
we conclude that Nucor has not shown error in the second.
                             A
    We consider Commerce’s broad theory in the context
presented—where a foreign government authority is sell-
ing a good or service to a relevant producer in a country
where no competitive-market prices are available to use as
comparisons to assess the authority’s prices. We hereafter
assume, without repeating, those premises. Under Com-
merce’s broad theory, if the foreign government authority
engaged in a uniform, non-discriminatory, tariffed practice
of charging a price so low that the authority consistently
lost large sums of money in a way no private seller could
12                      NUCOR CORPORATION v. UNITED STATES




sustain, sales pursuant to that practice would not be
properly viewed as for “less than adequate remuneration.”
That position is beyond any reasonable interpretation of
the statute, or of its implementing regulation.
                              1
     We begin with the ordinary meaning of the language at
issue. A general dictionary from 1992 defines “remunera-
tion” as “[s]omething, such as a payment, that remuner-
ates” and gives the primary definition of “remunerate” as
“[t]o pay (a person) a suitable equivalent in return for goods
provided, services rendered, or losses incurred; recom-
pense.” American Heritage Dictionary 1527 (3d ed. 1992).
A notion similar to “suitable equivalent” is evident in
Black’s Law Dictionary (6th ed. 1990). What we think is
the most relevant definition of “remuneration” in that dic-
tionary is “compensation,” id. at 1296 (also listing “[p]ay-
ment,” “reimbursement,” “[r]eward,” “recompense,”
“salary”), which is defined in terms, among others, of “giv-
ing an equivalent or substitute of equal value” and “remu-
neration,” id. at 283; and “adequate compensation” is
defined with reference to eminent-domain and just-com-
pensation standards as “[j]ust value of property taken” or
“[m]arket value of property when taken,” id. at 39.
     Those definitions convey a familiar notion of payment
of an amount that reflects the value of what is being paid
for (e.g., what was received, lost, or taken). The definitions
do not invoke a notion of nondiscrimination as part of the
equivalence concept; more pointedly, they do not suggest
that nondiscrimination suffices for value equivalence. In a
decision (cited by the government here) that was issued not
long after the 1994 adoption of the statutory phrase at is-
sue, Commerce confirmed that nondiscrimination does not
itself constitute “adequate remuneration”—which Com-
merce said referred to “a market-based price.” Certain
Softwood Lumber Products from Canada, 66 Fed. Reg.
43,186, 43,196 (Dep’t of Commerce Aug. 17, 2001).
NUCOR CORPORATION v. UNITED STATES                        13



Commerce explained that “[p]referentiality is a measure of
price discrimination,” which “cannot be said to measure ad-
equate remuneration,” and under the 1994 statutory lan-
guage, “[i]t is no longer sufficient to say that the
government does not discriminate among buyers. Rather,
. . . we must determine whether the government is receiv-
ing adequate remuneration, i.e., a market-based price.” Id.
    This distinction has long been recognized outside the
present context. For more than a hundred years, laws reg-
ulating the rates charged by utilities or common carriers
have separately stated requirements that rates be nondis-
criminatory and that rates be “just and reasonable,” Veri-
zon Communications, Inc. v. FCC, 535 U.S. 467, 477−78
(2002), with the latter performing the role of “navigating
the straits between gouging utility customers and confis-
cating utility property,” id. at 481. 5 The “just and reason-
able” rule prevented confiscation through a variety of
methods involving value and cost, not by simply ensuring
nondiscrimination. Id. at 477−89. And the prevention of
confiscation by ensuring recovery of value or cost was de-
scribed by the Supreme Court in several decisions using
the language of guaranteeing adequate remuneration.
Newton v. Consolidated Gas Co. of N.Y., 259 U.S. 101, 105
(1922); Minneapolis, St. P. & S.S.M. Ry. Co. v. Washburn
Lignite Coal Co., 254 U.S. 370, 370, 372 (1920); Northern
Pac. Ry. Co. v. North Dakota ex rel. McCue, 236 U.S. 585,
602, 605 (1915); Ill. Cent. R. Co. v. ICC, 206 U.S. 441, 446
(1907); Atlantic Coast Line R. Co. v. N.C. Corp., 206 U.S. 1,



    5    A tariff was the “classic” method of implementing
rate regulation. Verizon, 535 U.S. at 478. A tariffed rate
was itself generally required to be nondiscriminatory, see
id.; L.T. Barringer & Co. v. United States, 319 U.S. 1, 5–10
(1943), but requiring that sales adhere to tariffs was the
primary way of protecting against discrimination, MCI Tel-
ecomms. Corp. v. AT&T Co., 512 U.S. 218, 229–30 (1994).
14                     NUCOR CORPORATION v. UNITED STATES




19, 25 (1907); Chesapeake & Potomac Tel. Co. v. Manning,
186 U.S. 238, 249 (1902).
    Thus, the words used in the statute, understood in
their ordinary sense and against the background of general
usage in the law, make it unreasonable to deem mere lack
of discrimination sufficient to establish adequacy of remu-
neration, as Commerce’s broad position does.
                             2
    “[T]he words of a statute must be read in their context
and with a view to their place in the overall statutory
scheme.” Roberts v. Sea-Land Servs., Inc., 566 U.S. 93, 101
(2012) (quoting Davis v. Mich. Dep’t of Treasury, 489 U.S.
803, 809 (1989)). Here, the statutory context of “less than
adequate remuneration” reinforces the conclusion that the
words themselves support.
    The adequacy-of-remuneration language gives mean-
ing to a provision that asks whether a producer is receiving
a “benefit” from a government authority (through sales of
goods or services), as part of the definition of what counts
as a “subsidy.” 19 U.S.C. § 1677(5)(A), (B). The express
point of the subsidy determination is to specify when U.S.
firms need the protection of a countervailing duty, which
Commerce is directed to impose if a defined subsidy exists.
19 U.S.C. § 1671. As a logical matter, when the statutory
purpose is borne in mind, the existence of a “benefit” of an
unjustifiably low price, creating a “subsidy” to the producer
or exporter, cannot depend on finding that the producer is
being discriminatorily favored compared to others in the
exporting country. The harm to U.S. firms does not depend
on such discrimination within the exporting country.
    No different conclusion is suggested by the command
that adequacy be determined “in relation to prevailing
market conditions.” 19 U.S.C. § 1677(5)(E)(iv). That lan-
guage does not endorse the charging of consistently low
prices that no market participant could sustain, i.e., prices
NUCOR CORPORATION v. UNITED STATES                        15



that would not constitute “adequate remuneration” under
the ordinary meaning of those words. At most it directs
attention to any competitive-market prices, as reflected in
Commerce’s regulation making market prices the primary
tool of analysis if available, and to the complex of “condi-
tions” relevant to assessing prices charged, as immediately
explained in the next textual phrase: “price, quality, avail-
ability, marketability, transportation and other conditions
of purchase or sale.” Id. 6
                             3
    The origin of the statutory language at issue makes it
especially clear that the government’s position is contrary
to the statute. The 1994 URAA specifically replaced the
previous statutory standard, which focused the inquiry on
whether a rate was nondiscriminatory, as opposed to
simply too low by some measure, and which made being
nondiscriminatory sufficient, largely if not always, to give
a pass to sales prices not targeted at exports. The govern-
ment’s treatment of nondiscrimination as sufficient (if
adopted pursuant to a consistent, discernible method) is




    6    In Certain Software Lumber Products from Can-
ada, 66 Fed. Reg. at 43,193, Commerce said that “the ade-
quacy of remuneration must be measured by reference to
the marketplace free of government interference.” Taken
out of context, that statement might suggest that a govern-
ment authority’s price is for less than adequate remunera-
tion—leading to a countervailing duty—whenever the price
was less than a supracompetitive, high price that a private
unregulated monopolist would likely charge. Commerce
may sensibly reject such a view. In the present matter,
Commerce treated the two comparison-price methods as re-
ferring to competitive market prices, not prices in unregu-
lated monopolist markets.
16                     NUCOR CORPORATION v. UNITED STATES




counter to the change Congress was making in altering the
pre-1994 standard.
     Before 1994, the statutory definition of “subsidy” in-
cluded, as relevant here, “[t]he following domestic subsi-
dies, if provided or required by government action to a
specific enterprise or industry, or group of enterprises”:
“[t]he provision of goods or services at preferential rates.”
19 U.S.C.A. § 1677(5)(A)(ii)(II) (1993); see 19 U.S.C.
§ 1677(A)(ii)(II) (1988); IPSCO, Inc. v. United States, 899
F.2d 1192, 1195 (Fed. Cir. 1990). Under that pre-1994 law,
“the provision of a good or service was a benefit if it was
provided at preferential rates.” Certain Softwood Lumber
Products from Canada, 66 Fed. Reg. at 43,196. It was pre-
cisely that language, with its preferential-rates require-
ment for triggering imposition of countervailing duties,
that the 1994 URAA eliminated from the statute and re-
placed with the new language of “less than adequate remu-
neration” in 19 U.S.C. § 1677(5)(E)(iv).
     Congress itself highlighted the significance of this
change. Recognizing the need for interpretive guidance,
Congress approved the Statement of Administrative Action
in the URAA, § 101(a), 108 Stat. at 4814, and declared that
it “shall be regarded as an authoritative expression by the
United States concerning the interpretation and applica-
tion of the [URAA],” 19 U.S.C. § 3512(d). The Statement of
Administrative Action states plainly: “[C]urrent law relies
on a standard of ‘preferentiality’ to determine the existence
and amount of a benefit. [Section 1677(5)(E)(iv] replaces
this standard with the standards from Article 14 of the
Subsidies Agreement—‘less than adequate remuneration.’”
Uruguay Round Agreements Act, Statement of Adminis-
trative Action, H.R. Doc. No. 103–316, vol. 1, at 927 (1994),
NUCOR CORPORATION v. UNITED STATES                        17



reprinted in 1994 U.S.C.C.A.N. 4040, 4240 (emphasis
added). 7
     This authoritative interpretation confirms what the
statutory language, in its ordinary and in-context meaning,
entails. It makes clear that the new standard rests on a
concept different from mere lack of preferentiality. This is
not to deny that discrimination in the price-lowering direc-
tion might be some evidence that a rate fails to be ade-
quately remunerative: that a price is discriminatorily low
can be an indication that the seller is subsidizing the ben-
eficiaries of that price and not receiving adequate compen-
sation. See Maverick Tube, 273 F. Supp. 3d at 1307
(discussing Steel Wire Rod from Germany, 62 Fed. Reg.
54,990, 54,994 (Dep’t of Commerce Oct. 22, 1997)). But the
absence of discrimination (even in a rate set forth in a con-
sistent and discernible manner) logically does not itself es-
tablish that the government authority is receiving an
adequately remunerative price, as Commerce recognized in
Certain Softwood Lumber Products from Canada, 66 Fed.
Reg. at 43,196. That is not only the clear meaning of the
language in the context of “benefit” and “subsidy,” but the
essential message of the congressional declaration that the
earlier preferentiality standard was being replaced.




    7    Under 19 U.S.C. § 1677(8), “Subsidies Agreement”
refers to the Agreement on Subsidies and Countervailing
Measures identified in 19 U.S.C. § 3511(d)(12) as “annexed
to” the “WTO Agreement,” which is the “Agreement Estab-
lishing the World Trade Organization entered into on April
15, 1994,” 19 U.S.C. § 3501(9), to which was annexed the
General Agreement on Tariffs and Trade [GATT], 19
U.S.C. § 3501(1)(B). The Subsidies Agreement was part of
the Uruguay Round Agreements, which, with the State-
ment of Administrative Action, was approved by Congress
in the URAA, § 101(a), 108 Stat. at 4814.
18                      NUCOR CORPORATION v. UNITED STATES




                              4
    This court has already recognized, in a related context,
that the “adequate remuneration” standard is tied to the
value of what is being sold. In Delverde, which involved
sale of a subsidized business to Delverde, we considered
whether Delverde was to be treated as the recipient of any
part of the earlier subsidy, see 19 U.S.C. § 1677(5)(F)
(change of ownership), in which case countervailing duties
might apply to it. See 202 F.3d at 1362–64. We rejected
Commerce’s conclusive presumption of a pass-through of
the seller’s received subsidies and instead required a fact-
specific inquiry into whether Delverde was, directly or in-
directly, receiving “both a financial contribution and a ben-
efit from a government.” Id. at 1364. We linked the
adequate-remuneration standard to payment of full value:
     Had Commerce fully examined the facts, it might
     have found that Delverde paid full value for the as-
     sets and thus received no benefit from the prior
     owner’s subsidies, or Commerce might have found
     that Delverde did not pay full value and thus did
     indirectly receive a “financial contribution” and a
     “benefit” from the government by purchasing its
     assets from a subsidized company “for less than ad-
     equate remuneration.”
Id. at 1368.
                              5
    Commerce’s broad position in this court finds no sound
support in the regulation Commerce adopted in 1998 to im-
plement the 1994 statutory standard, 19 C.F.R.
§ 351.511(a)(2). Under the regulation, when, as in the pre-
sent case, market prices under subparagraphs (i) and (ii)
are not available for a comparative analysis, Commerce
“will normally measure the adequacy of remuneration by
assessing whether the government price is consistent with
market principles.” 19 C.F.R. § 351.511(a)(2)(iii). Nothing
NUCOR CORPORATION v. UNITED STATES                        19



about that language conveys a non-preferentiality stand-
ard like the broad position Commerce presses in this court,
under which pricing need not be linked to value.
    In fact, by the time Commerce adopted its regulation,
Congress had codified the sensible recognition that “mar-
ket principles” tie pricing to value. In the Omnibus Trade
and Competitiveness Act of 1988, Pub. L. 100-418, 102
Stat. 1107 (1988 Act), Congress added a provision regard-
ing “nonmarket economy countries” to 19 U.S.C. § 1677.
The new provision defines a “nonmarket economy country”
to be “any foreign country that the administering authority
determines does not operate on market principles of cost or
pricing structures, so that sales of merchandise in such
country do not reflect the fair value of the merchandise.” 19
U.S.C. § 1677(18), added by 1988 Act, § 1316(b), 102 Stat.
at 1187 (emphasis added). Since 1988, this court has re-
peatedly recognized the linking of “market principles” to
“fair value.” See Magnesium Corp. of America v. United
States, 166 F.3d 1364, 1370 (Fed. Cir. 1999) (“By definition,
in a non-market economy, the price of merchandise does
not reflect its fair value because the market does not oper-
ate on market principles. See 19 U.S.C. § 1677(18) (defin-
ing non-market economy).”); see also Viet I-Mei Frozen
Foods Co. v. United States, 839 F.3d 1099, 1101 (Fed. Cir.
2016); Ad Hoc Shrimp Trade Action Comm. v. United
States, 618 F.3d 1316, 1319 (Fed. Cir. 2010); Dorbest Ltd.
v. United States., 604 F.3d 1363, 1367 (Fed. Cir. 2010).
     We see no sound basis for finding in 19 C.F.R.
§ 351.511(a)(2)(iii) a meaning different from the common-
sense one already written into the statute by Congress
when the regulation was adopted. Indeed, that meaning
fits the place of subparagraph (iii) in the regulatory provi-
sion as specifying the residual method of implementing the
statutory standard when the two primary methods are un-
available. The above-stated meaning of “market princi-
ples” sensibly treats the three methods as all of a piece,
because the two primary methods of implementing the
20                      NUCOR CORPORATION v. UNITED STATES




statutory standard rely on competitive-market prices,
which, as 19 U.S.C. § 1677(18) and our cases indicate, are
tied to “fair value.” See also Verizon, 535 U.S. at 505 (dis-
cussing role of costs in prices in competitive markets); id.
at 543–44 (Breyer, J., concurring in part and dissenting in
part) (“The traditional legal criteria of proper public utility
rates have always borne a strong resemblance to the crite-
ria of the competitive market in long-run equilibrium.”
(quoting 1 A. Kahn, Economics of Regulation: Principles
and Institutions 63 (1988))).
   Commerce did not call for a contrary standard when it
promulgated the regulation. Commerce stated:
     [I]n situations where the government is clearly the
     only source available to consumers in the country,
     we normally will assess whether the government
     price was established in accordance with market
     principles. Where the government is the sole pro-
     vider of a good or service, and there are no world
     market prices available or accessible to the pur-
     chaser, we will assess whether the government
     price was set in accordance with market principles
     through an analysis of such factors as the govern-
     ment’s price-setting philosophy, costs (including
     rates of return sufficient to ensure future opera-
     tions), or possible price discrimination. We are not
     putting these factors in any hierarchy, and we may
     rely on one or more of these factors in any particu-
     lar case. In our experience, these types of analyses
     may be necessary for such goods or services as elec-
     tricity, land leases, or water, and the circum-
     stances of each case vary widely.
Countervailing Duties, 63 Fed. Reg. at 65,378 (citing Pure
Magnesium & Alloy Magnesium from Canada, 57 Fed. Reg.
30,946 (Dep’t Commerce July 13, 1992) (decided before
1994 Act, applying pre-1994 standard); Steel Wire Rod
from Venezuela, 62 Fed. Reg. 55,014 (Dep’t Commerce Oct.
NUCOR CORPORATION v. UNITED STATES                         21



22, 1997) (applying 1994 Act standard)). That commentary
does not give price discrimination anything more than an
evidentiary role, and it does not repudiate the meaning of
“market principles” Congress had already adopted. In-
deed, the commentary notes the special complexities of an-
swering the question when the government is the sole
seller, the very situation that rate-regulation law for utili-
ties has long addressed, often by determining (to quote
Commerce here) “costs (including rates of return sufficient
to ensure future operations).” 63 Fed. Reg. at 65,378; see
Verizon, 535 U.S. at 484.
    For all the foregoing reasons, we reject, as outside the
range of permissible meanings of the statute (and regula-
tion), the government’s broad position on what suffices to
meet the standard of adequate remuneration.
                              B
    We nevertheless uphold Commerce’s decision about
KEPCO’s pricing in this case. Commerce did not find only
the absence of preferential rates. It also found, and gave
specific reasons for finding, that KEPCO’s pricing met fa-
miliar standards of cost recovery. J.A. 9028. We have been
shown no reversible error in Commerce’s decision to rely on
that combination of facts as sufficient to meet the “ade-
quate remuneration” standard.
    In our analysis rejecting the government’s broad posi-
tion, we have decided that nonpreferentiality of the sort the
government stresses is insufficient to meet the statutory
standard of adequate remuneration, which, along with its
implementing regulation, requires ensuring that the gov-
ernment authority’s price is not too low considering what
the authority is selling. That ruling is significant but lim-
ited in constraining Commerce. We readily recognize that
such a standard, while excluding the government’s broad
preferentiality position, leaves a large range of potential
implementation choices. One need only look outside the
present statutory context to the familiar rate-regulation
22                     NUCOR CORPORATION v. UNITED STATES




context to see the great variety of methodologies used over
time to ensure that rates of a monopoly provider are not too
low, some directly focused on value (such as “fair value”),
some on various measures of “cost” (which may reflect
value). Verizon, 535 U.S. at 484–86; see generally id. at
477–89. Commerce has considerable prima facie leeway to
make a reasonable choice within the permissible range,
and properly justify its choice, based on the language and
policies of the countervailing-duty statute as well as prac-
ticality and other relevant considerations.
    Here, we limit ourselves to saying that Nucor has not
supplied a persuasive reason to conclude that Commerce’s
finding of cost recovery in this case was either legally in-
correct or factually unsupported. As to the former, we note
that Nucor has not argued that there is a crucial difference,
for purposes of this case, between assessing market value
and ensuring cost recovery. (Commerce suggested in Cer-
tain Softwood Lumber Products from Canada, 66 Fed. Reg.
at 43,193, that there is such a difference as a conceptual
matter and that the recipient’s perspective might demand
a focus on market value, making cost recovery insufficient.)
Nor has Nucor, when focusing on KEPCO’s costs, shown
that Commerce failed to consider any category of cost that
would have to be found recovered in order to meet the ade-
quate remuneration standard. We express no view on
whether Commerce’s analysis in this case might have been
vulnerable to arguments, about cost recovery or other mat-
ters, that Nucor has not presented and adequately devel-
oped. 8
     Only one objection by Nucor about evidentiary support
warrants mention. Nucor contends that Commerce cru-
cially erred in not giving weight to a Korean National


     8  Our decision about the legal adequacy of Com-
merce’s ultimate analysis is thus narrower than the dis-
sent suggests.
NUCOR CORPORATION v. UNITED STATES                         23



Assembly report from 2012 that analyzed the Korean elec-
tricity market. J.A. 9028. Commerce found the report not
relevant, because it was not about the period of investiga-
tion in this investigation, i.e., calendar year 2014. J.A.
9029. Commerce also found that “[s]ince the date of the
Report, 2012, KEPCO electricity industrial tariffs have
been increased three different times.” Id. We conclude
that Commerce had an adequate basis for not relying on
the 2012 report.
                             IV
    Nucor’s final argument is that Commerce committed
reversible error by not considering the adequacy of the
prices that KPX charged in relation to its costs, instead lim-
iting the analysis to the prices that KEPCO charged in re-
lation to its costs (which included what it paid to KPX). We
agree with the Court of International Trade that this argu-
ment is in substance a contention that KPX is part of
KEPCO as the “authority” whose prices Commerce had to
analyze. Nucor, 286 F. Supp. 3d at 1375–77. We also agree
that Nucor failed to exhaust this argument at the agency
level, making it inappropriate for review in the Court of
International Trade. Id. at 1377; see, e.g., Boomerang Tube
LLC v. United States, 856 F.3d 908, 912–13 (Fed. Cir.
2017); Corus Staal BV v. United States, 502 F.3d 1370,
1379 (Fed. Cir. 2007); Consol. Bearings Co. v. United
States, 348 F.3d 997, 1003 (Fed. Cir. 2003).
    Commerce’s preliminary decision referred only to
KEPCO’s costs. See Preliminary Determination Memo,
J.A. 8909. Commerce explicitly analyzed who the relevant
“authority” was, and it again referred only to KEPCO,
never KPX. See J.A. 8907. Nucor was therefore sufficiently
on notice of Commerce’s limited focus. Yet it did not ade-
quately raise the issue to Commerce in its case brief filed
after the preliminary decision: Nucor mentioned KPX only
in passing, J.A. 8954–55, and presented no meaningful ar-
gument that KPX was part of the “authority” or that
24                     NUCOR CORPORATION v. UNITED STATES




information about KPX’s costs had to be requested and con-
sidered. That is hardly enough to preserve an issue of this
complexity. See, e.g., Boomerang Tube, 856 F.3d at 912–
13. In these circumstances, we see no error in finding fail-
ure to exhaust the issue.
                             V
     For the reasons stated, although we reject a broad po-
sition asserted by Commerce and partly relied on by the
Court of International Trade, we find no reversible error in
Commerce’s decision, and we therefore affirm the Court of
International Trade’s judgment affirming that decision.
     No costs.
                       AFFIRMED
  United States Court of Appeals
      for the Federal Circuit
                 ______________________

               NUCOR CORPORATION,
                  Plaintiff-Appellant

      ARCELORMITTAL USA LLC, AK STEEL
     CORPORATION, UNITED STATES STEEL
              CORPORATION,
                 Plaintiffs

                            v.

   UNITED STATES, GOVERNMENT OF KOREA,
             Defendants-Appellees

         DONGKUK STEEL MILL CO., LTD.,
                   Defendant
             ______________________

                       2018-1787
                 ______________________

   Appeal from the United States Court of International
Trade in No. 1:16-cv-00164-CRK, Judge Claire R. Kelly.
                 ______________________

REYNA, Circuit Judge, dissenting.
    This is an important case of first impression. I agree
with the majority on the important issue of whether the
United States Department of Commerce may apply the
preferentiality legal standard that has been repealed by
Congress. It cannot. I conclude that the use of the repealed
standard incurably taints the entirety of the underlying
2                      NUCOR CORPORATION v. UNITED STATES




countervailing duty investigation. Thus, I would vacate
and remand on this basis.
     The majority, however, affirms Commerce’s final deter-
mination that the Korean government does not extend a
countervailable subsidy in its provision of electric power to
Korean CORE producers. I dissent from this part of the
majority opinion. First, despite Commerce’s use of a re-
pealed standard, the majority theorizes that “adequate re-
muneration” exists because the Korean government
purportedly recovers its costs to the extent it avoids bank-
ruptcy. This novel theory is contrary to law and not sup-
ported by substantial evidence. Second, the majority
affirms the U.S. Court of International Trade’s judgment
that Nucor failed to exhaust its argument concerning Com-
merce’s decision not to include certain costs in its subsidy
analysis, such as the costs of nuclear power generation.
The administrative record, however, is replete with evi-
dence that Nucor raised and argued those issues before
Commerce. I would reverse the U.S. Court of International
Trade and remand to Commerce for its consideration of
those costs. For the reasons set out below, I dissent.
                             I.
     Prior to passage of the Uruguay Round Administrative
Act (“URAA”), U.S. trade law defined a countervailable
subsidy as the provision of goods or services at “preferen-
tial rates.” 19 U.S.C. § 1677(5)(A)(ii)(II) (1988). Loosely,
preferential rates meant treatment more favorable to some
than to others. At the start of the Uruguay Round negoti-
ations, the U.S. government adopted as principal negotiat-
ing objective the replacement of the “preferentiality”
standard with a standard more conducive to U.S. trade ob-
jectives. Consequently, as part of the Uruguay Round re-
sults package, the preferentiality standard was replaced
with a “less than adequate remuneration” standard.
URAA, Statement of Administrative Action, H.R. Doc. No.
103-316, vol.1, at 927 (1994) (“SAA”); see 19 U.S.C. §
NUCOR CORPORATION v. UNITED STATES                       3



1677(5)(E)(iv). Important to this case is that the SAA
makes clear that in the provision of goods or services, the
“less than adequate remuneration standard replaces the
preferentiality standard.” 1 SAA at 927. In Certain Soft-
wood Lumber Products from Canada, Commerce addressed
the then relatively new adequate remuneration standard,
noting that “the government price must be compared with
a market-determined price. It [was] no longer sufficient to
say that the government does not discriminate among buy-
ers[;] we must determine whether the government is re-
ceiving adequate remuneration, i.e. a market-based price.”
66 Fed. Reg. 43,186, 43,196 (Dep’t Commerce Aug. 17,
2001) (declaring that there are “important differences be-
tween the discarded preferentiality standard and the cur-
rent adequate remuneration standard” (emphases added)).
    More than two decades after Congress repealed the
preferentiality standard in countervailing duty law, Com-
merce resurrects it. At the outset and throughout Com-
merce’s adequate remuneration analysis, Commerce
examined whether some or all Korean CORE producers re-
ceived a preferential price. See J.A. 9023–24, 9025, 9026.
The Government argues that Commerce was justified in
applying the preferentiality standard because it did so in
part only, and because under the facts of this case, it had
no other way to reach a decision on whether the Korean
CORE producers benefited from countervailable subsi-
dies. 2 Appellee Br. 24–27. These arguments have no



   1    The SAA is more than mere guidance or explana-
tion. The SAA forms part of the trade agreements package
that Congress adopted as law in the passage of the URAA.
19 U.S.C. § 3512(d).
    2   This is not the first time that Commerce used the
preferentiality standard post-URAA.        Commerce, the
Trade Court, and the majority all rely to some extent on
Maverick Tube Corp. v. United States, 273 F. Supp. 3d
4                      NUCOR CORPORATION v. UNITED STATES




merit. Commerce acted “well beyond the bounds of its stat-
utory authority,” i.e., contrary to law and the “clear unam-
biguously expressed intent of Congress,” by knowingly
applying a repealed legal standard. Util. Air Regulatory
Grp. v. EPA, 573 U.S. 302, 326 (2014); see also City of Ar-
lington, Tex. v. FCC, 569 U.S. 290, 297 (2013) (stating that
an agency’s “power to act and how they are to act is author-
itatively prescribed by Congress, so that when they act im-
properly, no less than when they act beyond their
jurisdiction, what they do is ultra vires”).
    I agree with the majority that Commerce improperly
relied on the repealed preferentiality standard. For exam-
ple, the majority rejects the Government’s “broad position”
that a “preferential rate” analysis is proper under the stat-
ute. Maj. Op. 11–12, 14, 18–19, 21, 24. This alone compels
vacatur and remand with instructions that Commerce un-
dertake a countervailing duty analysis in view of the en-
tirety of the record before it, applying the less than
adequate remuneration standard required by the statute.




1293, 1307 (Ct. Int’l Trade 2017). See Maj Op. 17. Indeed,
Commerce’s final determination in this case mirrors the fi-
nal determination in Maverick Tube. But Maverick Tube
is not controlling precedent and was not reviewed by this
court. In Maverick Tube, the Trade Court affirmed Com-
merce’s interpretation of the countervailing duty statute,
holding that the statute permitted continued reliance on
the preferentiality standard. E.g., 273 F. Supp. 3d at 1307
(“Commerce’s past experience shows that, in certain situa-
tions, preferentiality-like tests may be useful when deter-
mining the adequacy of remuneration.”). The case was
appealed to this court and voluntarily dismissed prior to
oral argument. But as this court rules in this case, Com-
merce’s reliance on the preferentiality standard is contrary
to the statute. See Maj. Op. 11.
NUCOR CORPORATION v. UNITED STATES                         5



                             II.
    Once preferentiality is discarded, all that remains of
Commerce’s analysis is a limited technical discussion of
how KEPCO distributed costs for the purpose of tariff rate
proposals. This cursory cost recovery analysis is insuffi-
cient to support the conclusion that the electricity prices
paid by Korean CORE producers are consistent with pre-
vailing market conditions and the full value of the assets
received.
    The majority recognizes that the relevant standard is
the adequate remuneration standard, which is focused on
whether the Korean CORE producers paid the “full value”
of the assets. Maj. Op. 18 (citing Delverde, SrL v. United
States, 202 F.3d 1360, 1368, 1370 (Fed. Cir. 2000) (vacating
and remanding because “Commerce’s methodology for de-
termining whether Delverde received a countervail[able]
subsidy [was] invalid as being inconsistent with 19 U.S.C.
§ 1677(5)”)). I agree that is the correct focus, but Commerce
focused on something other than “full value” here.
     The countervailing duty statute provides that “the ad-
equacy of remuneration shall be determined in relation to
prevailing market conditions for the good or service being
provided or the goods being purchased in the country which
is subject to the investigation or review.” 19 U.S.C.
§ 1667(5)(E)(iv). “Prevailing market conditions include
price, quality, availability, marketability, transportation,
and other conditions of purchase or sale.” Id. Yet Com-
merce did not determine how KEPCO’s tariff schedule re-
flects prevailing market conditions. Commerce’s cost
recovery analysis in the Final Determination Memo is a
nearly verbatim reproduction of its analysis in the Prelim-
inary Determination Memo. 3 Compare J.A. 8909, with J.A.



    3   See also Maverick Tube, 273 F. Supp. 3d at 1302
(reviewing Welded Line Pipe From the Republic of Korea:
6                      NUCOR CORPORATION v. UNITED STATES




9028. This fact calls into question the extent to which Com-
merce actually considered or verified the evidence pro-
duced during the investigation. Cf. CS Wind Vietnam Co.
v. United States, 832 F.3d 1367, 1380 (Fed. Cir. 2016) (re-
manding to Commerce for failure to adequately explain its
determination “to ensure that the agency’s exercise of
power adheres to the authorizing law and respects the rec-
ord evidence.”) In the background section of the opinion,
the majority reproduces Commerce’s analysis of KEPCO’s
standard pricing mechanism for setting its tariff rate
schedule and simply affirms the negative countervailing
duty determination on the basis that Commerce’s analysis
was sufficient evidence of adequate remuneration. Maj.
Op. 7–8, 21.
    The majority’s conclusion that Commerce’s analysis is
reasonable and supported by substantial evidence lacks
support both in law and the administrative record. For ex-
ample, the majority holds that “KEPCO’s pricing met fa-
miliar standards of cost recovery,” but conducts no analysis
of Commerce’s methodology. Id. at 21. The majority does
not explain what “familiar standards of cost recovery”
means or how they are consistent with the statutory re-
quirement that price setting be in accordance with prevail-
ing market conditions. The majority constructs a theory
that a government’s tariff rates necessarily reflect market
conditions because tariff rates are intended to recoup costs
such that a government authority manages to stay in busi-
ness. This theory or understanding is inconsistent with the
fundamental purpose of U.S. countervailing duty law. It is
also contrary to the record evidence.




Final Negative Countervailing Duty Determination, 80
Fed. Reg. 61,365 (Dep’t Commerce Oct. 13, 2015)). Com-
merce’s analysis in Maverick Tube is also nearly verbatim
to its analysis in this case. See id. at 1309–10.
NUCOR CORPORATION v. UNITED STATES                           7



    The administrative record demonstrates that KEPCO
is neither profitable nor that the Korean CORE producers
paid the “full value” of the assets sold. As the Korean gov-
ernment explained, it controls the electricity market
through majority ownership in KEPCO—solely a transmis-
sion and distribution entity—to implement national energy
policy and further the public policy goals of the Korean gov-
ernment. J.A. 2543. The record shows that historically,
electricity prices in Korea have “maintain[ed] the level
lower than total cost”; electricity prices have been “exces-
sively low,” including around the period of investigation;
and electricity prices have “not offset cost increase factors
such as high fuel prices for generation.” J.A. 3924.
KEPCO’s Form 20-F similarly highlights that the lengthy
deliberative process required for approving increases in
electricity tariffs in Korea may not adjust “to a level suffi-
cient to ensure a fair rate of return” and may not offset “the
adverse impact of . . . current or potential rises in fuel
costs.” J.A. 8949. Commerce failed to analyze or even dis-
cuss why this evidence is not relevant or persuasive, and
the majority similarly fails to do so.
    The record also demonstrates that the cost of generat-
ing electricity is the most significant cost in the provision
of electricity services. See J.A. 8316 (showing cost at-
tributed to generation to be approximately 90% of
KEPCO’s total cost in its provision of industrial electricity).
Yet, as the majority acknowledges, Commerce’s “analysis
of costs did not include the costs of generating” electricity.
Maj. Op. 8. When generation costs are explicitly not ana-
lyzed, it is unreasonable to assume that Commerce’s anal-
ysis adequately supports the determination that KEPCO’s
pricing is consistent with prevailing market conditions.
Here, substantial evidence in the administrative record
demonstrates the opposite. For this reason, I conclude that
Commerce’s final determination is not supported by sub-
stantial evidence.
8                      NUCOR CORPORATION v. UNITED STATES




                            III.
    Relevant to the adequacy of Commerce’s cost recovery
analysis is its decision not to include in the analysis the
cost to generate the electricity sold by KPX to KEPCO. The
majority agrees with the Trade Court that Nucor has not
exhausted its arguments concerning KPX. Maj. Op. 23.
The majority asserts that Nucor mentions KPX only in
passing, which was not enough to preserve its related ar-
guments on appeal. Id. The majority faults Nucor for not
adequately developing arguments related to KPX in Nu-
cor’s case brief, yet Commerce’s cost recovery analysis ex-
plicitly ignored Nucor’s arguments, finding KPX’s costs not
“relevant.” Id. at 9, 23.
    Commerce, however, has an affirmative duty to inves-
tigate any appearance of a subsidy discovered during in-
vestigation. See 19 U.S.C. § 1677d; Allegheny Ludlum
Corp. v. United States, 112 F. Supp. 2d 1141, 1150 (Ct. Int’l
Trade 2000) (Wallach, J.). Additionally, the burden of pro-
duction of evidence related to KPX was not on Nucor, but
on the Korean Government as the party in possession of
the information. Ta Chen Stainless Steel Pipe, Inc. v.
United States, 298 F.3d 1330, 1336 (Fed. Cir. 2002). “[T]he
substantial evidence standard requires review of the entire
administrative record,” necessitating that “we consider
both the trade court’s prior decisions and [Commerce’s] de-
terminations, including ‘the evidence presented to and the
analysis by [Commerce].’” Nippon Steel Corp. v. United
States, 458 F.3d 1345, 1351 (Fed. Cir. 2006). The majority
ignores portions of the administrative record, including the
arguments Nucor made in its briefing to Commerce, and
abdicates our responsibility to review Commerce’s cost re-
covery analysis on the basis that the majority has “been
shown no reversible error.” Maj. Op. 21–22. The Govern-
ment has not alleged non-cooperation on the part of Nucor.
To the extent that Nucor has the burden to show the exist-
ence of a countervailable subsidy, Nucor pointed to the
NUCOR CORPORATION v. UNITED STATES                         9



documents it had and made those arguments. Commerce,
not Nucor, failed in its duty here.
    As the majority acknowledges, Commerce did not re-
quest costs of the Korean generators. 4 Maj. Op. 8–9. These
costs would have included costs of generation, such as var-
iable fuel prices and fixed facility construction costs. Com-
merce determined that only the costs to KEPCO, not the
costs of the generators themselves, were relevant to price
because KEPCO purchases electricity through KPX, which
purchases from the generators. See J.A. 9028.
    Nucor argued at length before Commerce why genera-
tion costs to KPX were relevant. See J.A. 8953–57. Com-
merce itself acknowledged in the Final Determination
Memo that Nucor argued that “KEPCO’s electricity tariff
prices are not set in accordance with market principles” be-
cause the prices set by KPX do not reflect the “actual costs
incurred by the nuclear generators.” J.A. 9020. In explain-
ing KPX’s role, Nucor described how KEPCO’s own Form
20-F explains that the Cost Evaluation Committee deter-
mines electricity prices in Korea through a cost-based pool
system with fixed (capacity) and variable (marginal) cost
components. J.A. 8953–54. The Cost Evaluation Commit-
tee is part of KPX. J.A. 911, 2546. Nucor then pointed out
that KPX is 100% owned by KEPCO and its subsidiaries,
and that KEPCO’s Form 20-F also explains that KPX dis-
tributes purchase orders among generation units according
to the “merit order system” that prioritizes generators with
low variable costs, e.g., nuclear generators, irrespective of
fixed costs. J.A. 8954.




    4    “Generators” refers to the generation units them-
selves, including nuclear generation units, which Nucor ar-
gued are the predominant source of electricity for Korean
CORE producers. J.A. 9028.
10                      NUCOR CORPORATION v. UNITED STATES




     Nucor also asserted before Commerce that the costs of
energy, as determined by KPX’s Cost Evaluation Commit-
tee, are “vitally important” to determining whether the
CORE producers obtain their electricity according to mar-
ket principles. J.A. 8954–55. Nucor argued that the prices
set by KPX “grossly understate” the actual costs of genera-
tion for nuclear plants, which provide Korean CORE pro-
ducers much of their electricity during off-peak hours when
demand from other consumers is low, because the Cost
Evaluation Committee assigned the same fixed price for
“all generation units, regardless of fuel type used.”
J.A. 8955–56 (quoting KEPCO’s Form 20-F (J.A. 2548)).
Nucor argued that KPX’s price-setting approach shifted
the price of electricity away from accurately reflecting the
cost of nuclear power generation because it has cheap “fuel”
but also has per unit capital expenditures (fixed costs)
three times those of thermal generation units. Id. Nucor
contended that this approach results in a “gross distortion
of electricity prices” for Korean CORE producers, which are
among the principal users of nuclear power. Id.
    An entity that is a 100%-owned subsidiary of the gov-
ernment is an “authority” under our countervailing duty
laws. See 19 U.S.C. § 1677(5)(B) (“[T]he term ‘authority’
means a government of a country or any public entity
within the territory of the country.” (emphasis added)); cf.,
Guangdong Wireking Housewares & Hardware Co. v.
United States, 900 F. Supp. 2d 1362, 1376–77 (Ct. Int’l
Trade 2013) (“Because the purpose of [countervailing duty]
law is to offset the harm to domestic industries caused by
foreign subsidies . . . it is reasonable for Commerce to at-
tempt to detect and counteract all forms of foreign subsi-
dies . . . . [including those] which are not provided directly
by the government but instead pass through private or
quasi-private channels.”). Nucor presented both evidence
and argument before Commerce that KPX was 100%-
owned by KEPCO and that KPX was a public entity with a
significant role in the supply of electric power.
NUCOR CORPORATION v. UNITED STATES                        11



    The foregoing evidence, argued in detail by Nucor but
not considered by Commerce, suggests that KPX and its
Cost Evaluation Committee insulate KEPCO and the Ko-
rean CORE producers from the actual costs of generation,
specifically for nuclear generators, by setting the identical
capacity price for all generators, regardless of differing
costs to generators of each fuel type. Additionally,
KEPCO’s Form 20-F states that KPX is a “statutory not-
for-profit organization” responsible for setting the price of
electricity in Korea. J.A. 2545. Thus, the electricity prices
set by KPX in its not-for-profit role are highly relevant to
the inquiry of whether the Korean government provides a
direct or indirect countervailable subsidy to Korean CORE
producers when the government provides the producers
electricity. These circumstances undermine the argument
or theory that tariff rate schedules necessarily reflect mar-
ket conditions.
    Yet, the majority and the Trade Court find a failure to
exhaust on grounds that Nucor did not “meaningful[ly]” ar-
gue that KPX was part of the “authority” under
§ 1677(5)(B) or that “KPX’s costs had to be requested and
considered.” Maj. Op. 23–24; see also Nucor Corp. v. United
States, 286 F. Supp. 3d 1364, 1375–77 (Ct. Int’l Trade
2018). To the contrary, Nucor’s arguments as to the rele-
vance of KPX’s costs and its role in providing a subsidy
could hardly have been more explicit. Absent expressly us-
ing the word “authority” in describing KPX, Nucor did more
than enough to raise these issues before Commerce; it
made persuasive arguments.
    Under these circumstances, the majority imposes noth-
ing more than a mere semantic formality—one that de-
prives Nucor of its day in court, fails to protect domestic
industry from material injury, and constitutes an unrea-
sonable and unjust application of the doctrine of exhaus-
tion. Where “nothing in the record suggests that any
additional material from [plaintiff] would have been signif-
icant to Commerce’s consideration of the issue or to later
12                     NUCOR CORPORATION v. UNITED STATES




judicial review,” we have held that dismissal for failure to
exhaust is inappropriate. Itochu Bldg. Prods. v. United
States, 733 F.3d 1140, 1146 (Fed. Cir. 2013) (reversing the
Trade Court where Commerce referenced and rejected
plaintiff’s position in the final decision and “nothing . . .
hint[ed] at something significant that [plaintiff] could have
said but did not.”). Such is the case here.
    Even if the doctrine of exhaustion reasonably applied,
the circumstances here counsel against its application.
When determining whether the exhaustion doctrine ap-
plies, the court must take into account not only agency in-
terests but also “the interest of the individual in retaining
prompt access to a federal judicial forum.” Itochu Bldg.,
733 F.3d at 1145 (citing McCarthy v. Madigan, 503 U.S.
140, 145 (1992)). “Courts have recognized several recur-
ring circumstances in which institutional interests are not
sufficiently weighty or application of the doctrine would
otherwise be unjust,” such as (1) if additional filings with
the agency would be ineffectual, and (2) if the issue before
the court involves a pure question of law that can be ad-
dressed without further factual development. Id. at 1146;
see also Yangzhou Bestpak Gifts & Crafts Co., Ltd. v.
United States, 716 F.3d 1370, 1381 (Fed. Cir. 2013) (“Cer-
tain exceptions to the exhaustion requirement apply, such
as where exhaustion would be a useless formality, or where
the party had no opportunity to raise the issue before the
agency.” (internal quotation marks omitted)).
    The majority demands a useless formality. Nucor does
not assert new evidence or new facts on appeal. As dis-
cussed above, the record already contains evidence and ar-
gument that underlie the obvious conclusion that KPX is
part of the relevant authority; no additional filings to es-
tablish that fact are needed. Nor can the Government feign
surprise by asserting that KPX is an “authority,” given the
prominence of this issue in the Maverick Tube case. See
273 F. Supp. 3d at 1304–05.
NUCOR CORPORATION v. UNITED STATES                       13



    A countervailing duty investigation, like an antidump-
ing duty investigation, is an administrative investigation
by a government agency; it is not an adversarial proceeding
as is a court action. See NEC Corp. v. United States, 151
F.3d 1361, 1367 (Fed. Cir. 1998) (noting the “investigatory
(versus adjudicatory) nature of the antidumping investiga-
tion”). Commerce collects information from a number of
sources, including the petitioner, respondents, and govern-
ments, and bases its determinations on the record before
it. Commerce should not be permitted to ignore its own
record on the basis that a party “mentioned . . . only in
passing” what the record loudly proclaims. Maj. Op. 23.
    Indeed, 19 U.S.C. § 1671(a) provides that Commerce
“shall” impose a countervailing duty if it determines that
“any public entity” in a country is providing a subsidy. Al-
lowing Commerce to hide behind the exhaustion doctrine
based on a mere formality in this case undermines this
statutory purpose of countervailing duty law. See Maj. Op.
14. The Government does not dispute that KPX is a public
entity, only whether Nucor referred to it as an “authority.”
Applying the exhaustion doctrine under these circum-
stances does not serve its purpose because Commerce “not
only has erred but has erred against objection made at the
time appropriate under its practice” by making its unrea-
sonable determination that Nucor’s arguments regarding
KPX were irrelevant. Sandvik Steel Co. v. United States,
164 F.3d 596, 599 (Fed. Cir. 1998). As such, judicial cor-
rection is appropriate. For these reasons, I conclude that
the Trade Court’s application of the exhaustion doctrine
was an abuse of discretion. See Itochu Bldg., 733 F.3d at
1145.
                            IV.
    For the foregoing reasons, I would vacate the judgment
of the Trade Court and remand to Commerce for further
proceedings.
