Hyundai Steel Company v. United States

Slip Op. 26-52
UNITED STATES COURT OF INTERNATIONAL TRADE
HYUNDAI STEEL COMPANY,
Plaintiff,
and
GOVERNMENT OF THE REPUBLIC
OF KOREA,
Plaintiff-Intervenor,
v.
UNITED STATES,
Defendant,
and
NUCOR CORPORATION,
Defendant-Intervenor.
Before: Claire R. Kelly, Judge
Court No. 23-00211
PUBLIC VERSION
OPINION AND ORDER
[Remanding 	Commerce’s 	specificity 	redetermination 	under 	19 	U.S.C. 	§ 	1677
(5A)(D)(iii)(III).]
Dated: May 18, 2026
Brady Warfield Mills, Lead Attorney, Donald B. Cameron, Jr., Edward J. Thomas,
III, Eugene Degnan, Jordan L. Fleisher, Jr., Julie Clark Mendoza, Mary Shannon
Hodgins, Nicholas C. Duffey, Jr., and Rudi Will Planert, Taft Stettinius & Hollister
LLP, of Washington, DC for Plaintiff Hyundai Steel Company.
Yujin Kim McNamara, Lead Attorney, Daniel Martin Witkowski, Devin Scott Sikes,
and Sung Un K. Kim, Akin, Gump, Strauss, Hauer & Feld, LLP, of Washington, D.C.
for Plaintiff-Intervenor Government of the Republic of Korea.
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Tara Kathleen Hogan, Lead Attorney, of the U.S. Department of Justice, Commercial
Litigation Branch – Civil Division, Charlie Chung, Jesus Nieves Saenz, and Karl
John Mueller, Of Counsel, U.S. Department of Commerce, Office of Chief Counsel for
Trade Enforcement and Compliance, of Washington, D.C. for Defendant United
States.
Alan Hayden Price, Lead Attorney, Adam Milan Teslik, Christopher Bright Weld,
Derick G. Holt, Enbar Toledano, Maureen Elizabeth Thorson, Paul A. Devamithran,
and Theodore Paul Brackemyre, Wiley Rein, LLP, of Washington D.C. for Defendant-
Intervenor Nucor Corporation.
Kelly, Judge: Before the Court is the Department of Commerce’s (“Commerce”)
redetermination pursuant to this Court’s remand order. 	See Hyundai Steel Co. v.
United States, 798 F. Supp. 3d 1283 (Ct. Int’l Trade 2025) (“Hyundai II”); see also
Final Results of Redetermination Pursuant to Court Remand, Dec. 23, 2025, ECF No.
93 (“Second Remand Results”). 	Commerce continues to find the electricity subsidy
provided by the Government of the Republic of Korea’s (“Gov’t of Korea” or “Plaintiff-
Intervenor”) Provision of Electricity for Less Than Adequate Remuneration (“LTAR”)
(the “Electricity Program”) de facto specific because during the 2021 period of review
(“POR”), 	Hyundai 	Steel 	Company 	(“Hyundai” 	or 	“Plaintiff”) 	received 	a
disproportionately 	large 	amount 	of 	the 	industrial-class 	electricity 	subsidy 	in
comparison to its share of the Republic of Korea’s (“Korea”) gross domestic product
(“GDP”). 	See Second Remand Results at 2–15. 	Plaintiff and Plaintiff-Intervenor
argue 	that 	Commerce’s 	industrial-class 	electricity-to-GDP 	comparison 	does 	not
demonstrate Hyundai’s receipt of a disproportionately large subsidy because (1) the
provision of electricity, which is broadly available and widely used pursuant to a
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standard 	pricing 	mechanism, 	is 	not 	specific; 	(2) 	GDP 	is 	not 	an 	appropriate
comparator; and (3) Commerce’s comparison of Hyundai’s share of industrial-class
electricity use to its contribution to total GDP is illogical. 	See Pl. Hyundai Steel
Company's Cmts. on Remand Results at 3–10, Jan. 29, 2026, ECF Nos. 99–100 (“Pl.
Cmts.”); Pl. Int. Gov’t of the Republic of Korea’s Cmts. on Remand Results at 3–15,
Jan. 29, 2026, ECF Nos. 101–02 (“Pl. Int. Cmts.”). 	Defendant-Intervenor argues
Commerce’s 	industrial-class 	electricity-to-GDP 	comparison 	is 	reasonable 	and
demonstrates disproportionate receipt of the subsidy. 	See Def. Int. Nucor’s Revised
Cmts. on Remand Results at 4–21, Feb. 5, 2026, ECF Nos. 110–11 (“Def. Int. Cmts.”).
BACKGROUND
Commerce initiated an administrative review of the Countervailing Duty
(“CVD”) order on Certain Cut-to-Length Carbon-Quality Steel Plate for the 2021 POR
on 	April 	12, 	2022. 	See 	Initiation 	of 	Antidumping 	and 	Countervailing 	Duty
Administrative Reviews, 87 Fed. Reg. 21,619 (Dep’t Commerce Apr. 12, 2022).
Commerce evaluated various subsidy programs, including the Electricity Program.
Certain Cut-to-Length Carbon-Quality Steel Plate From the Republic of Korea:
Preliminary Results and Preliminary Intent To Rescind, in Part, the Countervailing
Duty Administrative Review; 2021, 88 Fed. Reg. 13,433 (Dep’t Commerce, March 3,
2023), PD 186, bar code 4347830-03 (Mar. 6, 2023) (“Preliminary Results”) and
accompanying Prelim. Issues & Decision Mem. at 24–30, PD 183, bar code 4347830-
02 (Feb. 27, 2023) (“Prelim. Decision Memo.”). 	Specifically, Commerce determined
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that Hyundai received a countervailable subsidy rate of 0.51 percent ad valorem for
the Electricity Program. Prelim. Decision Memo. at 30.
On September 7, 2023, Commerce published its final determination. 	Certain
Cut-to-Length Carbon-Quality Steel Plate from the Republic of Korea; 2021, 88 Fed.
Reg. 61,509 (Dep’t Commerce Sept. 7, 2023) (final results of CVD review), PD 225,
bar code 4424955-03 (Sept. 7, 2023) (“Final Results”), and accompanying Issues and
Decision Memo., PD 222, bar code 4425793-01 (Aug. 31, 2023) (“Final Decision
Memo.”). 	Commerce found, based on facts otherwise available, that the Electricity
Program conferred a benefit because KEPCO’s 2021 electricity pricing was not based
on market principles and did not cover its costs plus a reasonable rate of return. See
Final Decision Memo. at 14, cmt. 2. Commerce also found the Electricity Program to
be de facto specific under 19 U.S.C. § 1677(5A)(D)(iii)(III). 	See id. at 15–16. 	On
December 12, 2024, this Court sustained Commerce’s decision to decline to issue a
fourth questionnaire to the Government of Korea and apply facts otherwise available
to 	determine 	whether 	Hyundai 	benefited 	from 	the 	Electricity 	Program, 	and
remanded for Commerce to explain (1) how the identified industries, as grouped,
received a disproportionately large amount of the subsidy relative to what their
electricity consumption would predict, and (2) why Commerce grouped certain
industries for its specificity analysis. 	Hyundai Steel Co. v. United States, 745 F.
Supp. 3d 1345, 1356 (Ct. Int’l Trade 2024) (“Hyundai I”).
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Commerce filed its Remand Results on April 11, 2025. 	See generally Final
Results of Redetermination Pursuant to Court Remand, Apr. 11, 2025, ECF No. 62-1
(“Remand Results”). 	On August 12, 2025, the Court remanded Commerce’s first
remand determination, holding that Commerce’s disproportionality determination
was contrary to law, because receipt of a greater amount of a benefit alone does not
equate with disproportionality. Hyundai II, 798 F. Supp. 3d at 1291. The Court also
held that Commerce failed to support its grouping of the top three industries for the
specificity analysis and directed Commerce to further explain the grouping or to
reconsider its determination consistent with the Court’s opinion. 1 	See id. at 1291–
92.
On September 26, 2025, Commerce placed Korean GDP data on the record and
provided an opportunity for interested parties to comment, but no party commented
on the data. 	See generally Second Remand in the Administrative Review of the
Countervailing Duty Order on Certain Cut-to-Length Carbon-Quality Steel Plate
from the Republic of Korea; 2021: Placing Factual Information on the Record, 2RPD
1-2, bar code 4831682-01 (Sept. 26, 2025) (“GDP Memo”); see also Second Remand
Results at 5. 	On December 23, 2025, Commerce filed its Second Remand Results
pursuant to the Court’s order. 	See generally Second Remand Results. 	On January
1 On second remand, Commerce reconsiders the basis of its determination, abandons
its 	prior 	grouping 	of 	certain 	industries, 	and 	instead 	applies 	a 	comparator 	to
demonstrate disproportionate receipt. See Second Remand Results at 10.
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29, 2026, Plaintiff, Plaintiff-Intervenor, and Defendant-Intervenor filed comments on
the Second Remand Results. See generally Pl. Cmts.; Pl. Int. Cmts.; Def. Int. Cmts.
On March 16, 2026, Defendant filed its comments on the Second Remand Results.
Defendant’s Cmts. on Remand Redetermination, Mar. 16, 2026, ECF Nos. 116, 123.
(“Def. Cmts.”).
JURISDICTION AND STANDARD OF REVIEW
The Court has jurisdiction under 28 U.S.C. § 1581(c) to review Commerce’s
final results in the administrative review of a countervailing duty order. 	See 19
U.S.C. 	§§ 	1516a(a)(2)(B)(iii); 	1581(c). 	The 	Court 	must 	set 	aside 	Commerce’s
determination where 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). 	Substantial
evidence is “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Huaiyin Foreign Trade Corp. (30) v. United States, 322 F.3d
1369, 1374 (Fed. Cir. 2003) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229
(1938)). Substantial evidence review requires Commerce “to examine the record and
articulate a satisfactory explanation for its action.” Yangzhou Bestpak Gifts & Crafts
Co. v. United States, 716 F.3d 1370, 1378 (Fed. Cir. 2013) (citation omitted).
Commerce’s explanation must reasonably tie the determination under review to the
governing statutory standard and to record evidence. CS Wind Vietnam Co. v. United
States, 832 F.3d 1367, 1376 (Fed. Cir. 2016). The Court reviews Commerce’s remand
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determinations for compliance with the Court’s remand order. Nakornthai Strip Mill
Public Co. Ltd. v. United States, 587 F. Supp. 2d 1303, 1306 (Ct. Int’l Trade 2008).
DISCUSSION
On remand, Commerce determines the Electricity Program provides a de facto
specific subsidy to Hyundai because Hyundai’s share of industrial-class electricity
consumption, relative to total industrial-class electricity consumption, exceeded its
contribution to Korea’s 2021 total GDP relative to Korea’s 2021 total GDP. 	Second
Remand Results at 6–7. As a threshold matter, Defendant and Defendant-Intervenor
argue Plaintiff and Plaintiff-Intervenor failed to exhaust administrative remedies by
not commenting on the GDP data provided on the record and by not raising the
argument before the agency that Hyundai’s share of total industrial-class electricity
consumption cannot be “large.” 	Def. Cmts. at 17–19; Def. Int. Reply at 8. 	Plaintiff
and Plaintiff-Intervenor argue they had no obligation to rebut the GDP factual data
to preserve substantive arguments about GDP as a comparator, Pl. Cmts. at 7, n.2;
Pl. Int. Cmts. at 7–9; Pl. Int. Reply at 4, and Plaintiff-Intervenor “requests that the
Court reject” Defendant-Intervenor’s arguments. See Pl. Int. Reply at 4–6. Plaintiff
and Plaintiff-Intervenor also argue that because electricity is broadly available,
widely used, and priced according to a standard pricing mechanism, Commerce fails
to show that Hyundai’s electricity purchases reflect an enterprise- or industry-
specific subsidy, and therefore it cannot find the subsidy to be de facto specific. See
Pl. Cmts. at 6–10; Pl. Int. Cmts. at 4–11. 	Further, they argue that Commerce does
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not support its use of Hyundai’s contribution to Korea’s GDP as a suitable comparator
to assess disproportionality. Pl. Cmts. at 4; Pl. Int. Cmts. at 10–11, 13. Lastly, they
argue Commerce does not support its method comparing Hyundai’s consumption of
industrial-class electricity to its contribution to Korea’s GDP because it relies on
mismatched measures. 	Pl. Cmts. at 4–10; Pl. Int. Cmts. at 3–11. 	Defendant and
Defendant-Intervenor maintain Commerce reasonably finds disproportionality based
on the GDP share comparison. 	See Def. Cmts. at 5, 10–13; Def.-Int. Cmts. at 2–5. 2
For the following reasons, Commerce’s finding that the subsidy Hyundai received is
de facto specific based on disproportionate receipt is unsupported by substantial
evidence and is remanded for further consideration.
I. 	Exhaustion of Administrative Remedies
As a threshold matter, Defendant and Defendant-Intervenor contend that
Hyundai and the Gov’t of Korea failed to exhaust administrative remedies and
therefore waived certain arguments. 	Def. Cmts. at 17–19; Def. Int. Reply at 8.
2 	Defendant-Intervenor proposes, in the alternative, to show de facto specificity
Commerce could further explain its grouping method and either (1) compare the
grouping’s relative use of industrial-class electricity to other users of industrial
electricity, Def. Int. Cmts. at 6–15, or (2) show that the group is a predominant user
of the subsidy. 	Id. at 17–18. 	Plaintiff and Plaintiff-Intervenor reply to Defendant-
Intervenor’s 	arguments, 	but 	the 	merits 	of 	Defendant-Intervenor’s 	alternative
arguments are not before the Court. Pl. Reply to Cmts. on Second Remand Results,
Mar. 16, 2026, ECF No. 114 at 4–12; Pl. Int. Reply to Cmts. on Second Remand
Results, Mar. 16, 2026, ECF No. 118 at 6. The Court will “review only the bases on
which Commerce made its determination.” See NEXTEEL Co., Ltd. v. United States,
28 F.4th 1226, 1237 (Fed. Cir. 2022) (quoting Thai I-Mei Frozen Foods Co. v. United
States, 616 F.3d 1300, 1307 (Fed. Cir. 2010)).
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Specifically, Defendant argues that the Gov’t of Korea failed to raise its contention
that the percentage of Hyundai Steel’s share of total industrial-class electricity
consumption cannot be “large,” and Defendant-Intervenor argues that because
Hyundai and the Gov’t of Korea did not comment on the Korean GDP data Commerce
placed on the record, 3 they cannot argue the appropriateness of a GDP comparator
here. Def. Cmts. at 17–19; Def. Int. Reply at 8. For the following reasons, Hyundai
and the Gov’t of Korea did not waive either argument.
Plaintiffs must exhaust available administrative remedies before challenging
an agency’s action before the Court of International Trade. 28 U.S.C. § 2637(d); see
also Woodford v. Ngo, 548 U.S. 81, 89 (2006) (requiring exhaustion acknowledges
agency expertise, allows agencies to correct mistakes, and promotes efficiency);
Consol. Bearings Co. v. United States, 348 F.3d 997, 1003 (Fed. Cir. 2003) (citing 28
U.S.C. § 2637(d)) (A plaintiff must show that it exhausted its administrative
remedies, or that it qualifies for an exception to the exhaustion doctrine.).
Here, the Gov’t of Korea commented on the Draft Remand Results noting that
a subsidy is “specific” if “an enterprise or industry receives a disproportionately large
amount of the subsidy.” Pl. Int. Cmts. on Draft Remand Results at 6, 2CRR #3, 2PRR
#7, barcode 4851252-01 (Dec. 5, 2025) (emphasis in original). 	It argued that
Hyundai’s 	“very 	small 	percentage[]” 	share 	of 	total 	industrial-class 	electricity
3 The GDP Memo contains “Gross Domestic Product (GDP) data for the Republic of
Korea, sourced from International Financial Statistics (IFS).” GDP Memo at 1.
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consumption could not demonstrate de facto specificity because the statute requires
receipt of the subsidy be disproportionately large. 	See id. 	By these arguments, the
Gov’t of Korea put before Commerce its challenge that Hyundai’s use of subsidy was
not sufficiently large to warrant a specificity finding as envisioned by 19 U.S.C.
§ 1677(5A)(D)(iii)(III). 4
Defendant-Intervenor’s exhaustion argument fares no better. It contends that
Hyundai and the Gov’t of Korea waived any arguments about the sufficiency of GDP
as a comparator because they did not comment or object to the Korean GDP data
Commerce placed on the record. See Def. Int. Cmts. at 8; see generally GDP Memo.
However, Hyundai and the Gov’t of Korea are not challenging the accuracy or
reliability of the GDP data, but rather its use by Commerce. 	Pl. Int. Cmts. at 8–9;
see also Pl. Cmts. at 7, n.2 (“Hyundai Steel had no issue with the veracity or reliability
of the raw GDP data that Commerce put on the record and thus had no reason to
submit comments on that data.”). 	Given the context in this case, Hyundai and the
Gov’t of Korea were not required to comment on the GDP data on the record to
preserve the arguments that Commerce’s use of the data must be reasonable.
4 Nonetheless, whether the amount of industrial-class electricity Hyundai consumed
during the POR by itself is sufficiently “large” is not relevant here. 	Commerce
measures whether Hyundai received a “disproportionately large amount of the
subsidy” in relation to a comparator. 19 U.S.C. § 1677(5A)(D)(iii)(III). The inquiry is
whether 	the 	relative 	difference 	between 	Hyundai’s 	industrial-class 	electricity
consumption 	and 	the 	comparator 	is 	disproportionately 	large, 	not 	whether 	its
underlying usage amount is large.
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II. 	Countervailability of the Electricity Program
Hyundai and the Gov’t of Korea argue that Commerce’s conclusion that
Hyundai received a subsidy that was specific as a matter of fact is unsupported by
substantial evidence and otherwise not in accordance with law because electricity is
broadly available and provided pursuant to a “standard pricing mechanism,” under
which Hyundai was not singled out for favorable treatment. 	See Pl. Cmts. at 8–10
(“[the Electricity Program] is tied to usage, pricing is based on a standard pricing
mechanism where no preferences are provided . . . and the input at issue, electricity,
is broadly available and widely used by virtually all enterprises and industries in
Korea . . .”) (citation omitted); Pl. Int. Cmts. at 14 (“The provision of electricity in
Korea is a ‘broad-based, nationwide program,” and it therefore is not specific or
countervailable.’”). Defendant responds that “a subsidy of a broadly available product
such as [the Electricity Program] that includes a ‘standard pricing mechanism’ and
involves services to the public can therefore be countervailed where the facts on the
record indicate the subsidy is de facto specific to an enterprise or industry.” 	Def.
Cmts. at 9–10. For the following reasons, Commerce may find specificity as a matter
of fact even if the subsidy is widely available or set according to a standard pricing
mechanism, if an enterprise or industry receives a disproportionately large amount
of the subsidy pursuant to 19 U.S.C. § 1677(5A)(D)(iii)(III).
A subsidy exists where an authority provides a financial contribution, provides
income or price support, or makes or entrusts a payment mechanism to provide a
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financial contribution, and a benefit is conferred. 	See 19 U.S.C. §§ 1677(5)(B),
1677(5A). 	“Financial contribution” includes, among other things, direct transfers of
funds, foregoing revenue otherwise due, and the provision of goods or services. 	See
§ 1677(5)(D). A specific subsidy is countervailable. See §§ 1677(5)(A), 1677(5A). An
export subsidy, an import-substitution subsidy, or a domestic subsidy may be specific
in law (de jure) or in fact (de facto). See § 1677(5A)(A)–(D). A domestic subsidy may
be 	de 	facto 	specific 	where, 	inter 	alia, 	an 	enterprise 	or 	industry 	receives 	a
disproportionately large amount of the subsidy. 	See § 1677(5A)(D)(iii)(III). 	Section
1677(5A)(D)(iii) provides:
Where there are reasons to believe that a subsidy may be specific as a
matter of fact, the subsidy is specific if one or more of the following
factors exist:
(I) The actual recipients of the subsidy, whether considered on an
enterprise or industry basis, are limited in number.
(II) An enterprise or industry is a predominant user of the subsidy.
(III) An enterprise or industry receives a disproportionately large
amount of the subsidy.
(IV) The manner in which the authority providing the subsidy has
exercised discretion in the decision to grant the subsidy indicates
that an enterprise or industry is favored over others.
In evaluating the factors set forth in subclauses (I), (II), (III), and (IV),
the 	administering authority 	shall take into account 	the 	extent 	of
diversification of economic activities within the jurisdiction of the
authority providing the subsidy, and the length of time during which the
subsidy program has been in operation.
19 U.S.C. § 1677(5A)(D)(iii)(I)–(IV).
When applying § 1677(5A)(D)(iii)(III), Commerce must measure the amount
conferred by a subsidy program against an appropriate comparator in the specific
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context of the case. Hyundai I, 745 F. Supp. 3d 1345 at 1352–53; see also AK Steel
Corp. v. United States, 192 F.3d 1367, 1384–85 (Fed. Cir. 1999); id. at 1385 (quoting
Proposed Regulations, 54 Fed. Reg. 23,366, 23,368 (May 31, 1989) (“[T]he specificity
test cannot be reduced to a precise mathematical formula. Instead, the Department
must exercise judgment and balance various factors in analyzing the facts of a
particular case.”). Commerce may compare relative percentages rather than absolute
amounts, but it must provide a reasonable explanation as to why the respondent or
group received more than its fair share in light of the selected comparator. See Royal
Thai Gov’t v. United States, 436 F.3d 1330, 1336 (Fed. Cir. 2006) (discussing AK
Steel, 192 F.3d at 1385) (The AK Steel court “determined Commerce had properly
exercised the latitude afforded it in determining the appropriate method by which to
determine the specificity of benefits conferred by subsidies. Of course, that latitude
does not excuse Commerce from choosing a reasonable method for determining the
specificity of benefits.”)).
According 	to 	the 	Statement 	of 	Administrative 	Action 	accompanying 	the
Uruguay Round Agreements Act, “the specificity test functions as a screening
mechanism to winnow out only those foreign subsidies which truly are broadly
available and widely used throughout an economy.” Uruguay Round Agreements Act
Statement of Administrative Action (“SAA”), H.R. Doc. No. 103-316, vol. 1, at 929–30
(1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4242–43. The statute identifies whether
a subsidy is effectively limited to certain enterprises or industries, even if it is not
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expressly restricted on its face, by examining how it is actually distributed and used
in practice. 	See SAA at 929–30, 1994 U.S.C.C.A.N. at 4242–43; see also 19 U.S.C.
§ 1677(5A)(D)(iii). 	Therefore, a general claim that a subsidy is broadly available is
insufficient.
Further, the Gov’t of Korea’s reliance on Bethlehem Steel’s discussion of price-
setting overstates the reach of that decision and improperly elevates a “standard
pricing mechanism” to a dispositive factor in the de facto specificity analysis. 	The
Gov’t of Korea argues that Commerce and the Court should reject, as they did in
Bethlehem Steel, a de facto specificity finding “if the rate charged is consistent with
the standard pricing mechanism and the company under investigation is, in all other
respects, essentially treated no differently than similarly situated consumers.” 	See
Pl. Int. Cmts. at 15 (quoting Bethlehem Steel Corp. v. United States, 140 F. Supp. 2d
1354, 1369–70). Although Bethlehem Steel upheld a finding of non-specificity where
rates were consistent with a standard pricing mechanism and no discretion or
preferential treatment was exercised, that holding was grounded in the particular
facts before the Court. See Bethlehem Steel, 140 F. Supp. 2d at 1369–70 (pointing to
the absence of substantial evidence on that particular administrative record to
support a finding of disproportionality). Nothing in the statute directs Commerce to
treat the existence of a uniform tariff schedule as sufficient to render a subsidy non-
specific. 	See 19 U.S.C. § 1677(5A)(D)(iii). 	Rather, the statute requires a fact-based
inquiry into how a program operates in practice. See id. Thus, Commerce is required
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to look beyond the structure of the pricing mechanism and assess the factual
circumstances of the subsidy’s distribution.
III. 	GDP as a Comparator to Demonstrate Disproportionality
The Gov’t of Korea argues Commerce’s GDP comparator cannot demonstrate
disproportionality because given the nature of the Electricity Program and its users,
Commerce does not explain why one would expect benefit amounts to “closely
correlate with each user’s contribution to GDP.” 	Pl. Int. Cmts. at 10–13. 	Hyundai
argues 	“[t]here 	is 	no 	logical 	correlation 	between 	an 	enterprise 	or 	industry’s
consumption of industrial electricity and its contribution to GDP.” 	Pl. Cmts. at 4.
Defendant argues that a GDP comparator incorporates consideration of the overall
economy in the disproportionality analysis as the statute requires. Def. Cmts. at 10.
For the following reasons, Commerce does not explain how a GDP comparator
demonstrates disproportionate receipt of the subsidy under these circumstances.
The 	statute 	provides 	a 	means 	for 	Commerce 	to 	determine 	whether 	an
enterprise or industry receives a disproportionately large amount of a subsidy. 	See
19 U.S.C. § 1677(5A)(D)(iii)(III). 	In Hyundai II, the Court held that receipt of a
greater amount of a benefit alone does not establish disproportionality and directed
Commerce 	either 	to 	apply 	the 	statutory 	disproportionality 	standard 	with 	an
adequately explained grouping rationale or to reconsider its determination consistent
with the Court’s opinion. 	See Hyundai II, 798 F. Supp. 3d at 1291–92. 	The Court
also explained, in both Hyundai I and Hyundai II, that a disproportionality finding
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requires “a case-by-case analysis which assesses benefits, not in relation to the
benefits of others, but in relation to some other comparator depending on the
circumstances.” 	Id. at 1288–90 (quoting Hyundai I, 745 F. Supp. 3d at 1351–52
(citing AK Steel, 192 F.3d at 1385; Royal Thai Gov’t, 436 F.3d at 1336)); see also id.
at 1290 n.11 (“it is also possible that depending upon the subsidy at issue Commerce
might measure disproportionality by other comparators, such as size, number of
employees, or value of production, as the [SAA] directs that “Commerce can only
make this determination on a case-by-case basis” (citing SAA at 929–30, 1994
U.S.C.C.A.N. at 4242–43)).
The statute does not restrict Commerce’s choice of comparator to demonstrate
disproportionality. See 19 U.S.C. § 1677(5A)(D)(iii)(III). In general, Commerce may
use an economy-wide comparator in assessing de facto specificity because the inquiry
turns on whether a subsidy is “broadly available and widely used throughout the
economy.” See, e.g., Gov’t of Quebec v. United States, 105 F.4th 1359, 1375 (Fed. Cir.
2024) (quoting SAA at 929, 1994 U.S.C.C.A.N. at 4242). 	However, Commerce must
explain why GDP is an appropriate comparator in the context of these factual
circumstances. See Hyundai II, 798 F. Supp. 3d at 1289–90; Hyundai I, 745 F. Supp.
3d at 1351–52 (citing AK Steel, 192 F.3d at 1385; Royal Thai Gov’t, 436 F.3d at 1336)).
Here, Commerce contends that a GDP comparator demonstrates whether
Hyundai received a disproportionately large amount of the subsidy under the
Electricity Program because “[g]iven the nature of steel production, it is not illogical
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to expect that a steel company’s consumption of industrial electricity would track its
contribution to the economy,” and the Electricity Program is designed to “benefit
heavy users of the subsidized input, such as steel companies.” 5 	Second Remand
Results at 12. 	Defendant adds that as a comparator, “GDP [is] an attribute of how
much Hyundai Steel contributes to the Korean economy,” and in using GDP,
Commerce fulfills the statutory requirement to consider broader economic activities
when analyzing disproportionality. 	See Def. Cmts. at 10 (citing Second Remand
Results at 6; 19 U.S.C. § 1677(5A)(D)(iii)). 	Total GDP is the measure of overall
national economic output. 	See Second Remand Results at 17 (Attachment 1).
However, Commerce assumes without explanation that Hyundai’s proportional share
of the industrial-class electricity subsidy should track its contribution to Korea’s
overall national economic output. 6
5 	Commerce asserts, without support, that the Electricity Program is designed to
benefit heavy users of electricity like the steel industry. Second Remand Results at
14.
6 	Defendant points to Hyundai II’s suggestion that Commerce might consider the
“value of production” as a comparator to support its selection of GDP, concluding
“GDP was identified by this Court as a potentially appropriate comparator.” See Def.
Cmts. at 16 (citing Hyundai II, 798 F. Supp. 3d at 1290, n.11). However, the Court
emphasized 	in 	Hyundai 	I 	and 	Hyundai 	II 	that 	a 	comparator 	is 	appropriate
“depending on the circumstances.” 	See Hyundai II, 798 F. Supp. 3d at 1289–90;
Hyundai I, 745 F. Supp. 3d at 1351–52 (citing AK Steel, 192 F.3d at 1385; Royal Thai
Gov’t, 436 F.3d at 1336). 	Commerce offers no explanation as to why GDP would be
an appropriate comparator in these circumstances.
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Defendant’s reliance on the final clause of Section 1677(5A)(D)(iii) to support
its argument that GDP incorporates broader economic factors is unpersuasive. 	See
Def. Cmts. at 10. The clause states:
In evaluating the factors set forth in subclauses (I), (II), (III), and (IV),
the 	administering authority 	shall take into account 	the 	extent 	of
diversification of economic activities within the jurisdiction of the
authority providing the subsidy, and the length of time during which the
subsidy program has been in operation.
19 U.S.C. § 1677(5A)(D)(iii). 	Although the statute indicates “diversification of
economic activities” is relevant to the de facto inquiry, without further explanation it
is unclear how this clause supports the use of GDP as an appropriate comparator.
See CS Wind Vietnam Co., 832 F.3d at 1376 (Commerce must reasonably connect its
methodology and record facts to its ultimate determination); Vicentin S.A.I.C. v.
United States, 404 F. Supp. 3d 1323, 1342–43 (Ct. Int’l Trade 2019) (Commerce is
bound by reasonableness in choosing its methodology), aff’d, 42 F.4th 1372, 1382 (Fed.
Cir. 2022).
IV. 	Industrial-Class 	Electricity Consumption compared 	to Total 	GDP
Contribution
Even if Commerce had explained why GDP was an appropriate comparator for
Hyundai’s industrial electricity usage, Hyundai and the Gov’t of Korea argue that
Commerce’s 	comparison 	of 	Hyundai’s 	percentage 	of 	industrial-class 	electricity
consumption to its contribution to total GDP is illogical and therefore cannot support
Commerce’s de facto specificity determination. See Pl. Cmts. at 6–10; Pl. Int. Cmts.
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at 3–7. 	Defendant argues Commerce’s comparison of industrial-class electricity
consumption to Korea’s total GDP is reasonable. Def. Cmts. 10–13. The comparison
between Hyundai’s industrial-class electricity consumption and its share of the total
GDP is unreasonable.
As explained above, where Commerce finds a subsidy is de facto specific based
on disproportionality, it must conduct a case-specific inquiry to ascertain whether
respondents received more than their fair share in light of the selected comparator.
See Royal Thai Gov’t, 436 F.3d 1330, 1336 (Fed. Cir. 2006) (discussing AK Steel, 192
F.3d at 1385); see also Hyundai II, 798 F. Supp. 3d at 1288, 1289 n.5; Hyundai I, 745
F. Supp. 3d at 1351–53. 	Commerce finds that Hyundai’s share of total industrial-
class electricity consumed during the 2021 POR was meaningfully larger in relation
to its share of GDP, 7 and therefore, disproportionality exists. Second Remand Results
at 6. 	Commerce reasons that the usage side of the comparison analysis must be
limited to industrial-class electricity because under the Electricity Program, “the type
of electricity being examined is industrial-class electricity” and so it must consider
only Hyundai’s industrial-class electricity consumption. Id. at 13–14.
7 	Commerce finds that Hyundai’s total industrial-class electricity consumption
relative to the total amount of industrial-class electricity consumed in Korea was
[[ 	]]. 	See Second Remand Results at 17 (Attachment 1). 	Commerce finds that
Hyundai’s contribution to Korea’s total GDP relative to Korea’s total GDP was
[[ 	]]. 	See id. 	Commerce then compares the two ratios and characterizes
Hyundai’s electricity consumption as [[ 	]] its contribution to GDP
for the POR. See Second Remand Results at 6.
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By limiting the electricity usage side of the comparison to industrial-class
consumption and leaving the output side at economy-wide GDP, Commerce compares
Hyundai’s position in one universe to its position in another. See id. at 6, 11. 	GDP
measures economy-wide output, not output generated by only the relevant class of
industrial-class electricity consumers. 	See id. at 6. 	If the “industrial-class” limit
defines the relevant universe on the electricity side, the comparator on the output
side must likewise be tied to that universe. The comparison must align logically. See
CS Wind Vietnam Co., 832 F.3d at 1376; Vicentin, 404 F. Supp. 3d at 1342–43, aff’d,
42 F.4th at 1382. Here, the comparison is not logical and therefore the determination
is not supported by substantial evidence.
CONCLUSION
Commerce’s determination that Hyundai’s industrial-class electricity usage,
compared to its contribution to total Korean GDP, demonstrates that Hyundai
received a disproportionately large amount of the subsidy conferred by the Electricity
Program, is unsupported by substantial evidence. 	Commerce fails to explain why
GDP 	is 	an 	appropriate 	comparator 	to 	assess 	disproportionality 	in 	these
circumstances, 	and 	its 	comparison 	of 	Hyundai’s 	percentage 	of 	industrial-class
electricity consumption to Hyundai’s contribution to total GDP is illogical. Therefore,
Commerce’s de facto specificity determination is remanded for further consideration.
For the foregoing reasons Commerce’s Second Remand Results are remanded
for reconsideration consistent with this opinion. In light of the foregoing, it is
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ORDERED that 	Commerce’s 	specificity 	redetermination 	under 19 	U.S.C.
§ 1677(5A)(D)(iii) is remanded for reconsideration consistent with this opinion; and
it is further
ORDERED that Commerce shall file its redetermination with the Court
within 90 days of this date; and it is further
ORDERED that the parties shall have 30 days to file their comments on the
redetermination; and it is further
ORDERED that the parties shall have 30 days to file their replies to the
comments on the redetermination; and it is further
ORDERED that the parties shall file the joint appendix, including the entire
confidential record, within 14 days after the filing of replies to the comments on the
redetermination; and it is further
ORDERED that Commerce shall file the administrative record within 14 days
of the date of filing its redetermination.
/s/ Claire R. Kelly
Claire R. Kelly, Judge
Dated: 	May 18, 2026
New York, New York
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