Hyundai Steel Company v. United States

Slip Op. 26-90
UNITED STATES COURT OF INTERNATIONAL TRADE
HYUNDAI STEEL COMPANY,
Plaintiff,
and
DONGKUK STEEL MILL CO., LTD.,
Consolidated Plaintiff,
and
GOVERNMENT OF THE REPUBLIC
OF KOREA,
Plaintiff-Intervenor,
v.
UNITED STATES,
Defendant,
and
NUCOR CORPORATION,
Defendant-Intervenor.
Before: Claire R. Kelly, Judge
Consol. Court No. 24-00190
PUBLIC VERSION
OPINION AND ORDER
[Granting Plaintiffs’ motions for judgment on the agency record and remanding
Commerce’s determination.]
Dated: August 11, 2026
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Brady Warfield Mills, Donald B. Cameron, Jr., Edward J. Thomas, III, Eugene
Degnan, Jordan L. Fleischer, Julie Clark Mendoza, Mary Shannon Hodgins, Nicholas
C. Duffey, Jr., and Rudi Will Planert, Morris, Manning & Martin, LLP, of Washington
D.C., for Plaintiff Hyundai Steel Company.
Jarrod 	Mark 	Goldfeder 	and 	Kenneth 	Neal 	Hammer, 	Trade 	Pacific 	PLLC, 	of
Washington D.C., for Consolidated Plaintiff Dongkuk Steel Mill Co., Ltd.
Yujin Kim McNamara, 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.
Augustus J. Golden, National Courts Section, Commercial Litigation Branch, Civil
Division, U.S. Department of Justice, of Washington D.C., for Defendant United
States. Also on the brief were Brett A. Shumate, Assistant Attorney General, Patricia
M. McCarthy, Director, and Tara K. Hogan, Assistant Director. Of counsel was Jack
Dunkelman, Attorney, U.S. Department of Commerce.
Alan Hayden Price, 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 are motions for judgment on the agency record
pursuant to United States Court of International Trade Rule (“USCIT R.”) 56.2, filed
by Plaintiff Hyundai Steel Company (“Hyundai”), Consolidated Plaintiff Dongkuk
Steel Mill Co., Ltd. (“DSM”) 	(collectively, “Plaintiffs”), and Plaintiff-Intervenor
Government of the Republic of Korea (“Gov’t of Korea” or “Plaintiff-Intervenor”). See
generally [Hyundai] Mot. J. Agency Rec., Apr. 24, 2025, ECF Nos. 31, 32 (“Hyundai
Mot.”); [DSM] Mot. J. Agency Rec., Apr. 24, 2025, ECF No. 33 (“DSM Mot.”); [Gov’t of
Korea] Mot. J. Agency Rec., May 29, 2025, ECF Nos. 38, 39 (“Gov’t of Korea Mot.”);
see also USCIT R. 56.2; see also Certain Cut-to-Length Carbon-Quality Steel Plate
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From the Republic of Korea: Final Results of Countervailing Duty Administrative
Review; 2022, 89 Fed. Reg. 15,825 (Sept. 6, 2024) (“Final Results”), PD 318, bar code
4626807-03 and accompanying Issues & Decision Mem. (“Final Decision Memo.”), PD
319, bar code 4626807-02 (Sept. 6, 2024). 	Plaintiffs and Plaintiff-Intervenor argue
that the U.S. Department of Commerce’s (“Commerce”) determination that KEPCO’s
provision 	of 	electricity 	(the 	“Electricity 	Program”) 	for 	less 	than 	adequate
remuneration (“LTAR”) is de facto specific under Section 771(5A)(D)(iii) of the Tariff
Act of 1930,1 as amended, 19 U.S.C. § 1677(5A)(D)(iii), is unsupported by substantial
evidence and otherwise not in accordance with law. 	Hyundai Mot. at 11–19; DSM
Mot. at 7–11; Gov’t of Korea Mot. at 4–14. 	Hyundai and the Gov’t of Korea argue
Commerce’s decision not to rely on the 2022 Korea Electric Power Corporation
(“KEPCO”) cost data submitted by the Gov’t of Korea in response to a supplemental
questionnaire—rather than the 2021 KEPCO data originally submitted by the Gov’t
of Korea in its initial questionnaire response—is unsupported by substantial evidence
and is otherwise not in accordance with law. Hyundai Mot. at 19–22; Gov’t of Korea
Mot. 	at 	14–16. 	DSM 	argues 	that 	Commerce’s 	determination 	that 	KEPCO’s
Electricity Program was provided at LTAR is not supported by substantial evidence
and is contrary to law. 	DSM Mot. at 7–8, 11–14. 	Hyundai and the Gov’t of Korea
argue that Commerce’s calculation of the benefit from the provision of electricity for
1 	Further citations to the Tariff Act of 1930, as amended, are to the relevant
provisions of Title 19 of the U.S. Code, 2024 edition.
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LTAR under 19 U.S.C. § 1677(5)(E), using KEPCO’s cost data carried forward from,
and already used in, the countervailing duty analysis for the prior period of review
(“POR”) is unsupported by substantial evidence and not in accordance with law.
Hyundai Mot. at 22–26; Gov’t of Korea Mot. at 16–19. 	For the following reasons,
Plaintiffs’ and Plaintiff-Intervenor’s motions for judgment on the agency record are
granted, and Commerce’s determination is remanded for further explanation or
reconsideration.
BACKGROUND
On April 11, 2023, Commerce initiated its administrative review of the
countervailing duty (“CVD”) order on Certain Cut-to-Length Carbon-Quality Steel
Plate for the 2022 POR. 	See Initiation of Antidumping and Countervailing Duty
Administrative Reviews, 88 Fed. Reg. 21,609 (Dep’t Commerce Apr. 11, 2023).
Commerce evaluated many subsidy programs, including the Electricity Program. See
generally Certain Cut-to-Length Carbon-Quality Steel Plate From the Republic of
Korea: 	Preliminary 	Results 	and 	Partial 	Rescission 	of 	Countervailing 	Duty
Administrative Review; 2022, 89 Fed. Reg. 15,825 (Mar. 5, 2024) (“Preliminary
Results”), PD 248, bar code 4517008-03 and accompanying Prelim. Issues & Decision
Mem. (“Prelim. Decision Memo.”), PD 243, bar code 4517008-02 (Mar. 5, 2024). 	On
June 14, 2023, Commerce selected DSM and Hyundai as mandatory respondents and
issued an initial questionnaire to the Gov’t of Korea. See Letter from [Commerce] to
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[Gov’t of Korea] Pertaining to Initial Questionnaire, CD 28, bar code 4389302-01
(June 14, 2023) (“Initial Questionnaire”).
In its initial questionnaire for this review, Commerce requested that the Gov’t
of Korea “provide the amount of electricity provided to the steel industry during the
POR and the largest 10 industries consuming electricity during the POR” as well as
the “percentage for the steel industry and largest 10 industries consuming electricity
for the POR based on total electricity consumed and the total industrial classification
consumed.” 	Initial Questionnaire at 20. 	The Gov’t of Korea submitted its initial
questionnaire response on August 11, 2023, which included usage data for the steel
industry and ten largest electricity-consuming industries. 	See Gov’t of Korea
Response to Initial Questionnaire, CD 105–142, PD 104–125, bar codes 4416305-01–
38; 4416377-01–22 (Aug. 11, 2023) (“Gov’t of Korea IQR”); Hyundai Mot. at 4. After
the Gov’t of Korea had submitted its initial questionnaire response, and although
Commerce did not request it, the Gov’t of Korea submitted a second, revised version
of usage data for the steel industry and ten largest electricity-consuming industries.
Hyundai Mot. at 4. 	The Gov’t of Korea explained that the first dataset was
“inaccurate in the sense that each category covers industries that do not match their
names; for example, the ‘Steel’ category covers not only steel but also copper and non-
ferrous metal, aluminum, etc.” 	Gov’t of Korea Second Supplemental Questionnaire
Response at 2, PD 207, CD 285, bar code 445588601 (Nov. 1, 2023) (“Gov’t of Korea
2SQR”). 	The Gov’t of Korea also explained that the revised data complied with the
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official industry classification scheme in Korea. 	Id. at 2. 	Commerce accepted this
revised data, discussed it in the Preliminary Results, and then verified it at the Gov’t
of Korea’s verification, but it did not verify the original dataset. Final Decision Memo.
at 22; Hyundai Mot. at 14–15; Gov’t of Korea Mot. at 6–8. 	Despite accepting and
verifying the revised dataset provided in the supplemental questionnaire response,
Commerce 	continued 	to 	rely 	on 	the 	initial 	dataset 	in 	making 	its 	specificity
determination. Def. Resp. at 21 (citing Final Decision Memo. at 21–22).
On March 5, 2024, Commerce published its preliminary results of the review,
in which it determined the Electricity Program provided a financial contribution and
benefit to Hyundai and DSM, and that the provision of electricity was de facto specific
because the steel industry 	“received a disproportionately large amount of the
subsidy.” 	Prelim. Decision Memo. at 36. 	Thus, Commerce assigned Hyundai a
countervailing duty rate of 1.47 percent ad valorem and DSM a rate of 1.61 percent
ad valorem. Id. at 35–36.
The interested parties submitted comments on the Electricity Program that
Commerce deemed countervailable. See Final Decision Memo. at 8, cmts. 1–4. The
Electricity Program includes a cost pass-through tariff system for electricity which
isolates fuel and environmental cost elements in KEPCO’s tariffs. 	Final Decision
Memo. at 23 (citing Gov’t of Korea IQR at Exhibit E-1). Under this system, KEPCO
applies a “fuel cost adjustment charge” (“FCAC”) that is revised quarterly to reflect
changes in fuel prices, subject to certain regulatory limits. Final Decision Memo. at
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22–23 (citing Hyundai Case Br. at 33–34). The FCAC appears as a distinct line item
on customers’ electricity bills and is part of the total tariff that industrial users pay.
Id. at 24. When fuel costs rise and government regulations do not permit full recovery
through the quarterly FCAC, KEPCO does not immediately write off the unrecovered
portion. 	Id. at 24–25 (citing Gov’t of Korea IQR at Exhibit E-2). 	Instead, KEPCO
explains that it accumulates unrecovered fuel costs and rolls them into its “Total
Comprehensive Cost” for the following term. Id. at 24–25 (citing Gov’t of Korea IQR
at Exhibit E-2). 	The Total Comprehensive Cost figure is then used to set the base
and usage charges for future tariffs, with the stated objective of allowing KEPCO to
recover its operating costs and a reasonable return over time. 	Id. at 24–25 (citing
Gov’t of Korea IQR at Exhibit E-2).
On July 18, 2024, Hyundai and the Gov’t of Korea submitted administrative
case briefs. See Letter from Yoon & Yang LLC to Sec’y Commerce, “Case Brief of the
Gov’t of the Republic of Korea,” CD 374, PD 307, bar code 4598797-01 (July 18, 2024)
(“Gov’t of Korea Case Br.”); Letter from Morris, Manning & Martin LLP to Sec’y of
Commerce, “Certain Cut-to-Length Carbon-Quality Steel Plate From the Republic of
Korea,” CD 375, PD 308, bar code 4598797-01 (July 18, 2024) (“Hyundai Case Br.”).
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On September 11, 2024, Commerce published the Final Results. See generally
Final Results; Final Decision Memo.2 	In the Final Results, Commerce relies upon
the dataset submitted in the Gov’t of Korea’s initial questionnaire response and does
not 	consider 	the 	second, 	revised 	dataset 	submitted 	in 	the 	Gov’t 	of 	Korea’s
supplemental 	questionnaire 	response. 	See 	Final 	Decision 	Memo. 	at 	21–22.
Commerce verified the revised electricity consumption data, but it determined that
the initial questionnaire response data was “more appropriate” to rely upon for the
review. See id. at 22.
On April 24, 2025, Hyundai and DSM filed motions for judgment on the agency
record, 	arguing 	that 	Commerce’s 	final 	determinations 	are 	unsupported 	by
substantial evidence and otherwise not in accordance with law. See Hyundai Mot. at
1; DSM Mot. at 1. 	On May 29, 2025, the Gov’t of Korea filed a brief in support of
Hyundai’s motion for judgment on the agency record, arguing the same. See Gov’t of
Korea Mot. at 1. On October 1, 2025, Defendant filed its response to the motions for
judgment on the agency record, arguing Commerce’s determination is supported by
substantial evidence and should be sustained. 	See generally Def. Resp. [Hyundai],
[DSM] and [Gov’t of Korea] Mot., Oct. 1, 2025, ECF Nos. 43, 44 (“Def. Resp.”). 	On
October 	24, 	2025, 	Defendant-Intervenor 	Nucor 	Corporation 	filed 	a 	response
2 	On December 20, 2024, Defendant filed indices to the public and confidential
administrative records underlying Commerce’s final determination. 	See ECF Nos.
25, 26.
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supporting Commerce’s determination. 	See generally [Nucor’s] Resp. [Hyundai],
[DSM] and [Gov’t of Korea] Mot., Oct. 24, 2025, ECF Nos. 45, 46 (“Nucor Resp.”). On
November 20, 2025, Hyundai filed its reply, see generally [Hyundai] Reply Br. Supp’n
[Hyundai Mot.], Nov. 20, 2025, ECF Nos. 48, 49 (“Hyundai Reply”), DSM filed its
reply, see generally [DSM’s] Reply Br. Supp’n [DSM Mot.], Nov. 20, 2025, ECF No.
50 (“DSM Reply”), and Gov’t of Korea filed its reply, see generally [Gov’t of Korea]
Reply Br. Supp’n [Gov’t of Korea Mot.], Dec. 19, 2025, ECF Nos. 53, 54 (“Gov’t of
Korea Reply”).
JURISDICTION AND STANDARD OF REVIEW
This Court has jurisdiction over this action, which contests Commerce’s final
results in an administrative review of an antidumping duty order, under 19 U.S.C.
§ 1516a(a)(2)(B)(iii) and 28 U.S.C. § 1581(c). 	The Court will sustain Commerce’s
determination unless it is unsupported by substantial evidence on the administrative
record or is 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)). 	An abuse of discretion occurs when Commerce bases its
determination on an erroneous interpretation of the law, on factual findings that are
not supported by substantial evidence, or on an unreasonable judgment in weighing
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relevant factors. 	Consol. Bearings Co. v. United States, 412 F.3d 1266, 1269 (Fed.
Cir. 2005).
DISCUSSION
Plaintiffs and Plaintiff-Intervenor challenge Commerce’s specificity analysis
as contrary to law and unsupported by substantial evidence. 	Specifically, Plaintiffs
and Plaintiff-Intervenor argue that the Electricity Program is not specific because it
is broadly available throughout the economy, Commerce’s grouping of industries it
uses to demonstrate that some industries receive a disproportionate amount of a
subsidy 	is 	arbitrary, 	and 	Commerce’s 	interpretation 	and 	understanding 	of
“disproportionate” is contrary to law. Hyundai Mot. at 11–19; Gov’t of Korea Mot. at
4–12. 	Plaintiff Hyundai and Plaintiff-Intervenor also argue Commerce abused its
discretion by failing to use accurate and verified data. Hyundai Mot. at 19–22; Gov’t
of Korea Mot. at 14–15. Plaintiff DSM argues that Commerce acted contrary to law
in conducting its Tier III analysis and determining that electricity was provided for
LTAR. 	DSM Mot. at 11–16. 	Finally, Plaintiff Hyundai and Plaintiff-Intervenor
challenge 	Commerce’s 	calculation 	of 	benefit, 	arguing 	that 	Commerce 	included
amounts irrelevant to the cost of supplying electricity in the POR. Hyundai Mot. at
22; Gov’t of Korea Mot. at 16. For the following reasons, Commerce’s determinations
are remanded for reconsideration or further explanation.
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I. 	Specificity
Plaintiffs and Plaintiff-Intervenor argue that Commerce’s determination is
unsupported by substantial evidence and not in accordance with law because (1) the
steel industry did not receive a disproportionately large amount of the subsidy alone,
or when grouped together with two other industries; and (2) Commerce’s decision to
group 	the 	steel 	industry 	with 	two 	other 	large 	industries 	for 	its 	specificity
determination is not reasonable. 	Hyundai Mot. at 2–3, 16–17. Defendant contends
that Commerce’s final determination is supported by substantial evidence and in
accordance with law because Commerce reasonably determined that a group of three
industries, including the steel industry, received a disproportionately large amount
of the Electricity Program subsidy, and accordingly, Plaintiff received a de facto
specific countervailable subsidy. Def. Resp. at 8; Final Decision Memo. at 17–18, 19.
For the following reasons, Commerce’s determination is remanded for further
explanation or reconsideration.
A “countervailable subsidy” is a financial contribution by a government
authority that confers a benefit on a recipient. 	19 U.S.C. § 1677(5)(B). 	To be
countervailable, the subsidy must be “specific;” i.e., the subsidy must be (i) an import
substitution subsidy; (ii) an export subsidy; or (iii) a domestic subsidy that is specific
to an enterprise or industry within the jurisdiction of the authority providing the
subsidy. 	Id. § 1677(5A)(A)–(D). 	A domestic subsidy may be specific as a matter of
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law (“de jure”) or as a matter of fact (“de facto”). 3 	Id. § 1677(5A)(D). 	A domestic
subsidy is de facto specific where:
(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.
Id. § 1677(5A)(D)(iii). Thus, even where the number of industries receiving a subsidy
is not limited, and the authority does not exercise discretion in administering the
program, a subsidy may still be de facto specific if an industry is a predominant user
or 	receives 	a 	disproportionately 	large 	amount 	of 	the 	subsidy. 	See 	id.
§ 1677(5A)(D)(iii)(II)–(III).
Commerce determines whether an entity receives a disproportionately large
amount of a subsidy on a case-by-case basis by assessing the amount received “not in
3 	A subsidy may be de jure specific under 19 U.S.C. § 1677(5A)(D)(i) where an
authority or legislation expressly limits access to a subsidy to a sufficiently small
number of enterprises, industries, or groups. Id.
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relation to the benefits of others, but in relation to some other comparator depending
on the circumstances.” Hyundai Steel Co. v. United States, 745 F. Supp. 3d 1345 at
1352–53 (Ct. Int’l Trade 2024) (“Hyundai I”) (citing AK Steel Corp. v. United States,
192 F.3d 1367, 1385 (Fed. Cir. 1999); Royal Thai Gov’t v. United States, 436 F.3d
1330, 1336 (Fed. Cir. 2006)). 	The phrase “disproportionately large” requires “an
enterprise or industry [be] favored in some way (i.e., it receives more than its fair
share [of the subsidy]).” Hyundai I, 745 F. Supp. 3d at 1352–53. 	Thus, the fact that
an industry or group of industries receives more—even much more—of an absolute
dollar amount from the program than others receive does not, by itself, establish
disproportionality. 	See Hyundai Steel Co. v. United States, 798 F. Supp. 3d 1283,
1288 	(Ct. 	Int’l 	Trade 	2025) 	(“Hyundai 	II”) 	(interpreting 	19 	U.S.C.
§ 1677(5A)(D)(iii)(III)). 	Therefore, Commerce must explain “how the combined
industries it identifies benefit more than would be expected, based on their usage
given that the subsidy in question is designed to confer benefits on usage levels, or in
relation to some other comparator.” Hyundai I, 745 F. Supp. 3d at 1352–53; see also
Samsung Electronics Co. Ltd. v. United States, 973 F. Supp. 2d 1321, 1326 (Ct. Int’l
Trade 2014) (“[i]n focusing solely on Samsung’s relative share of the total benefit,
Commerce failed to consider . . . that [the Gov’t of Korea] confers [] tax credits based
on usage . . . ”).
Commerce may identify “a group of . . . enterprises or industries” to evaluate
whether those enterprises or industries receives a disproportionately large amount
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of the subsidy. 	19 U.S.C. § 1677(5A)(D)(iii)(III); see, e.g., POSCO v. United States,
794 F. Supp. 3d 1402, 1408 (Ct. Int’l Trade 2025). 	Commerce has “reasonable
flexibility” in grouping enterprises or industries. 	See Mosaic Company v. United
States, 160 F.4th 1340, 1347–48 (Fed. Cir. 2025) (applying Commerce’s “reasonable
flexibility in carrying out the de facto specificity inquiry” to its determinations of
comparator groups for purposes of 19 U.S.C. § 1677(5A)(D)(iii)(II)) (citing AK Steel
Corp. v. United States, 192 F.3d 1367, 1385 (Fed. Cir. 1999)); 19 C.F.R. § 351.502(b)
(Commerce need not consider “whether there are shared characteristics among the
enterprises 	or 	industries” 	when 	grouping); 	POSCO, 	794 	F. 	Supp. 	3d 	at 	1408
(Commerce must reasonably exercise the discretion it is granted under 19 U.S.C.
§ 1677(5A)(D)(iii)(III) to make grouping determinations). 	Commerce’s flexibility is
“not unbounded.” Mosaic, 160 F.4th at 1348.
Here, Commerce determines that the steel industry and two other industries
received a disproportionately large amount of the Electricity Program subsidy
because 	the 	group of 	industries 	“consumed a 	majority 	of 	the 	industrial 	class
electricity during the POR.” Final Decision Memo. at 19. Commerce’s determination
identifies the raw amount of electricity consumed and the commensurate amount of
Electricity Program contribution received as a result of that consumption. Id. at 19.
Commerce explains the Gov’t of Korea has a “wide diversification of economic
activities . . . including 19 industry groupings with a broad range of distinctly
different types of economic activities within the groupings,” yet the steel industry and
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two other industries, 4 received a large amount of the subsidy. 	Id. at 18–19 (citing
Placement of Korea Economic Diversification Memo., PD 30, barcode 438930801
(June 	14, 	2023)). 	Commerce 	also 	quantifies 	the 	steel 	industry’s 	particular
consumption of electricity among industrial consumers. 5 Id. at 19. However, contrary
to Defendant’s and Defendant-Intervenor’s arguments, 6 the use of a larger amount of
electricity compared to other consumers does not indicate that the steel industry
receives a disproportionately large amount of the subsidy. See Def. Resp. at 19; Def-
Int. Resp. at 20 (citing AK Steel Corp. v. United States, 192 F.3d 1367, 1384 (Fed.
4 The other two industries are [[ 	]], and [[ 	]] and together,
the three industries used [[ 	]] percent of industrial class electricity. Def. Resp.
at 13 (citing Gov’t of Korea IQR at 42–43).
5 	Steel consumed [[ 	]] percent of the total electricity consumed by industrial
consumers in Korea during the POR. Def. Resp. at 13 (citing Gov’t of Korea IQR at
42–43).
6 	Defendant’s and Defendant-Intervenor’s reliance upon AK Steel is misplaced. 	In
AK Steel, Commerce determined that the steel industry, which received revaluation
of assets under a Korean revaluation program, did not receive a disproportionately
large amount of the benefit. 	AK Steel Corp. v. United States, 192 F.3d 1367, 1383
(Fed. Cir. 1999). Commerce found that the program was available to a large number
of companies across a wide variety of industries, and the company’s assets were
revalued upwards at the same average rate of increase as all other companies that
revalued assets under the program. 	Id. at 1384–85. 	Domestic producers argued
Commerce unreasonably analyzed disproportionality because it should have looked
at the “percentage of the total benefit of a subsidy program” the industry is receiving.
Id. at 1385. 	The Court of Appeals held that Commerce’s determination was
reasonable because it considered the relative percentage benefit rather than the
absolute benefit conferred. 	Id. at 1385. 	Unlike Commerce’s determination in AK
Steel, in which Commerce reasonably compared the proportion of benefit each
industry received, here, Commerce compares only the nominal amount of the subsidy
each industry received, without taking into account whether that nominal amount is
proportionate to the industries’ respective use of electricity. See id. at 1384–85; Final
Decision Memo. at 19.
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Cir. 1999)); Hyundai I, 745 F. Supp. 3d at 1352–53; Hyundai II, 798 F. Supp. 3d at
1289. 	Commerce’s interpretation suggests that each industry should receive the
same portion of the subsidy regardless of the amount of electricity use. 	Such an
interpretation of “disproportionately large” under 19 U.S.C. § 1677(5A)(D)(iii)(III)
renders 	the 	“predominant 	user” 	factor 	under 	19 	U.S.C. 	§ 	1677(5A)(D)(iii)(II)
meaningless.
Defendants cannot rely on Mosaic to support Commerce’s finding here. 	See
Def. Notice of Supp. Authority at 2–3, Jan. 8, 2026, ECF No. 58 (citing Mosaic, 160
F.4th at 1346–47). 	In Mosaic, the Court of Appeals rejected the argument that
Commerce was limited in its choice of comparator groups for assessing whether a
recipient of a subsidy was a predominant user of the subsidy. See Mosaic, 160 F.4th
at 1346–47 (Fed. Cir. 2025). 	Commerce compared the agrochemical industry’s
subsidy use to other industrial users rather than to all subsidy users. 	Id. at 1346–
47. 	The Court of Appeals held that Commerce has “flexibility” to identify a
comparator group. Id. at 1346–47. Here, the question is not whether Commerce has
discretion in identifying a comparator for measuring disproportionality, but whether
Commerce has identified a comparator at all. 	See Hyundai II, 798 F. Supp. 3d at
1289 (“Rather, here Commerce fails to identify a comparator that would measure
disproportionality.”); Mosaic, 160 F.4th at 1346 (Commerce’s discretion is “not
unbounded, [and does not] provide Commerce with a loophole for rendering all
subsidies de facto specific. 	Rather, Commerce must engage in reasoned decision
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making”) 	(internal 	citations 	omitted). 	Thus, 	absent 	additional explanation 	or
evidence that the steel industry received “more than its fair share” of the subsidy,
Commerce’s 	determination 	that 	the 	subsidy 	is 	de 	facto 	specific 	based 	on
disproportionality is not in accordance with law or supported by substantial evidence.
Commerce fails to point to record evidence that indicates the steel industry receives
a larger percentage of its subsidized electricity costs than other consumers receive
and therefore its determination is remanded for reconsideration.
Separately, Plaintiffs and Plaintiff-Intervenor also argue that Commerce’s
decision to group the steel industry with two other large industries was arbitrary and
capricious because Commerce did so without basis or explanation. Hyundai Mot. at
16–17; DSM Mot. at 8; Gov’t of Korea Mot. at 10. 	In the 2021 review, this Court
remanded Commerce’s decision to use the four “top industrial users of electricity in
Korea” as a group because Commerce failed to provide a rational explanation for the
grouping. 7 	Hyundai I, 745 F. Supp. 3d at 1353. 	Here, Commerce again finds that
“the steel industry and two other industries” consumed a majority of the industrial
class electricity during the POR. 	Final Decision Memo. at 19. 	Commerce explains
that the remaining seven industries in the top ten users of industrial class electricity
7 On remand, Commerce “offer[ed] the same basis for its decision” to group the four
industries, and the Court remanded again. Hyundai II, 798 F. Supp. 3d at 1291. On
second remand, Commerce abandoned its prior grouping and instead, reconsidered
the basis of its determination and abandoned its prior grouping of certain industries.
Hyundai Steel Co. v. United States, No. 23-00211, 2026 WL 1558544, at *1 n.1 (Ct.
Int’l Trade May 18, 2026).
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“accounted for a significantly smaller share” of electricity consumed. Final Decision
Memo. at 19 (citing Certain Cut-To-Length Carbon-Quality Steel Plate from the
Republic of Korea; 2022: Final Specificity Analysis PR 320, CD 378–379 barcode
4626810-02 (Sept. 5, 2024)). 	As Commerce notes, under 19 C.F.R. § 351.502(b),
Commerce is not required to determine whether there are shared characteristics
among the grouped enterprises or industries. 19 C.F.R. § 351.502(b); Final Decision
Memo. at 19–20. 	Defendant and Defendant-Intervenor argue that because the
statute and regulations do not require Commerce’s grouping determinations to
“depend on ‘whether there are shared characteristics among the enterprises or
industries,’” Commerce’s decision to group the three largest users of electricity is
reasonable. 	Def. Int. Resp. at 12 (citing 19 C.F.R. § 351.502(b)); Def. Resp. at 14
(citing 19 C.F.R. § 351.502(b)). Though the regulations do not require Commerce to
determine grouping based on shared characteristics, Commerce is required to support
its formulation of a “group” with reasonably discernable explanation for its decision.
See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43
(1983). 	Commerce 	provides 	no 	explanation 	for 	its 	grouping 	decision 	beyond
emphasizing its discretion to define groups under 19 U.S.C. § 1677(5A)(D)(iii). 8
8 Commerce reasons that because three industries consume such a large percentage
of the electricity, Commerce is not required to “compare those unique industries
within the group to others and their individual energy consumption or relative size.”
Final Decision Memo. at 20. 	At oral argument, Defendant again argued that
(footnote continued)
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Without reasoned explanation, Commerce’s grouping determination is unsupported
by 	substantial 	evidence 	and 	therefore 	remanded 	for 	further 	explanation 	or
reconsideration.9
II. 	Commerce’s Decision Not to Rely Upon Revised Dataset
Plaintiff and Plaintiff-Intervenor challenge Commerce’s reliance on the Gov’t
of Korea’s first industrial electricity consumption dataset submission, rather than on
the second, revised submission, as unsupported by substantial evidence, contrary to
law, and arbitrary. 	See Hyundai Mot. at 19–22; Gov’t of Korea Mot. at 14–16.
Defendant argues that data verification is not mandatory, and Commerce has
discretion to choose the data upon which it relies to make its determinations. 	Def.
Commerce need not use an “external metric” to find disproportionality because of the
substantially large use of the three industries and explained that the respondent
could rebut that conclusion by pointing to an external metric. 	Oral Argument at
23:20–24:00. 	Defendant’s 	argument 	again 	conflates 	predominance 	with
disproportionality. 	To find that an industry received a disproportionately large
amount of a subsidy, Commerce must explain to what the receipt of the benefit is
disproportionate 	and 	explain 	why 	the 	industry’s 	receipt 	of 	the 	benefit 	was
disproportionate to that comparator; a raw comparison of energy consumption alone
is insufficient. See Hyundai I, 745 F. Supp. 3d at 1352–53 (citing AK Steel, 192 F.3d
at 1385); Hyundai II, 798 F. Supp. 3d at 1288. Further, Defendant cites no authority
for the proposition that, just because an industry or group of industries consumes a
large amount of an underlying resource, the respondent bears the burden of proving
that its use is proportionate. Rather, Commerce must consider the record as a whole,
including information that detracts from a finding that the industry received a
disproportionate amount of the subsidy. See Timken U.S. Corp. v. United States, 421
F.3d 1350, 1355–56 (Fed. Cir. 2005).
9 	Should Commerce, on remand, find that the Electricity Program is not de facto
specific, the remaining issues regarding Commerce’s selection of data, determination
of LTAR and calculation of benefits are moot. 	However, in the interest of judicial
economy, the Court addresses each issue.
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Resp. at 23–24. For the following reasons, Commerce’s determination regarding the
choice of dataset is remanded for further explanation.
Commerce must make its determinations as “accurate as possible” when
administering the trade remedies laws. 	Rhone Poulenc, Inc. v. United States, 899
F.2d 1185, 1191 (Fed. Cir. 1990). To meet that obligation, Commerce must consider
“the entire record,” including evidence that detracts from its final conclusion.
Siemens Energy, Inc. v. United States, 806 F.3d 1367, 1369 (Fed. Cir. 2015) (citing
Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)). 	Consistent with the
goal of accuracy, parties may submit factual information “to rebut, clarify or correct”
previously submitted information within fourteen days after the initial questionnaire
response. 19 C.F.R. § 351.301(b)(2), (c)(1)(v). However, Commerce may reject factual
information as untimely.10 	Id. 	Nevertheless, acceptance incorporates information
into the administrative record, and Commerce must address that information in its
analysis. 	See Siemens, 806 F.3d at 1369. 	Although Commerce has discretion to
10 Even where Commerce’s rejects information as untimely, the Court of Appeals has
explained that Commerce must, in some instances, accept untimely submissions
where a party seeks to correct an error. Timken U.S. Corp. v. United States, 434 F.3d
1345, 1353–54 (Fed. Cir. 1993) (finding Commerce’s refusal to consider corrective
data submitted before the final results an abuse of discretion); see also NTN Bearing
Corp. v. United States, 74 F.3d 1204, 1208 (Fed. Cir. 1995) (holding that Commerce
abused 	its 	discretion 	by 	failing 	to 	consider 	“untimely” 	corrective 	information
submitted before the final determination); Fine Furniture (Shanghai) Ltd. v. United
States, 865 F. Supp. 2d 1254, 1267 (Ct. Int’l Trade 2012) (finding an abuse of
discretion where Commerce refused to correct an error with accurate, though
untimely, information).
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choose among sets of information on the record, its discretion is not unlimited, and
its choice must be reasonable and adequately explained. 	The Mosaic Co. v. United
States, 589 F. Supp. 3d 1298, 1314 (Ct. Int’l Trade 2022) (citing Timken, 16 C.I.T. at
147).
Here, 	though 	Commerce 	did 	not 	request 	the 	Gov’t 	of 	Korea’s 	revised
submission and the Gov’t of Korea submitted the dataset beyond the regulation’s
fourteen-day window for correction, it was submitted on November 1, 2023, before
Commerce published the Preliminary Results in February 2024, before Commerce
began verification in June 2024, and ten months before Commerce issued the Final
Results. 	See Preliminary Results; Final Decision Memo. at 21; Hyundai Mot. at 7.
Commerce may reject untimely corrective submissions, but here, it chose to accept
and verify the second corrective submission. 	See Final Decision Memo. at 22; 19
C.F.R. § 351.301(c)(1)(v). 	Therefore, when Commerce accepted the revised dataset,
it was obligated to consider the data in its analysis. See Siemens, 806 F.3d at 1369.
Defendant 	argues 	that 	by 	submitting 	revised 	data 	in 	its 	supplemental
questionnaire response, the Gov’t of Korea was “non-responsive” to the questionnaire,
which asked the Gov’t of Korea to “provide KEPCO’s unconsolidated financial
statements for 2022 . . . .” Oral Argument at 41:30–42:30, July 9, 2026, ECF No. 77
(“Oral Argument”); Gov’t of Korea 2SQR at 1. 	The Gov’t of Korea responded by
pointing 	Commerce 	to 	an 	attached 	exhibit 	providing 	the 	requested 	financial
statements and stating “[t]he [Gov’t of Korea] would like to use this opportunity to
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provide the Department with a more detailed and accurate response regarding the
amount of electricity consumed by the 10 largest industries during the POR.” Gov’t
of Korea 2SQR at 1. 	Commerce explains that the first dataset is responsive and
therefore “more appropriate,” than the revised dataset, however, Commerce fails to
explain why it is “more appropriate” or why it relied on a “more appropriate” dataset
that appears to be less accurate. See Final Decision Memo. at 22.
Commerce likewise fails to explain why the second, revised dataset, which it
accepted as part of the record, is “not usable.” See id. The Gov’t of Korea, in its second
questionnaire response, reasoned that the revised dataset is more “specific” and thus
more accurately represented electricity usage as categorized by industry. 11 See Gov’t
of Korea 2SQR at 2. 	Commerce concludes that the data is unusable but fails to
explain why more “specific” data would not be usable to calculate accurately. 	Final
Decision Memo. at 22. Although Commerce asserts that the revised dataset reports
electricity consumption at “a lower level of industrial classification” than requested, 12
11 Indeed, one of the corrections identified in the Gov’t of Korea’s revised dataset is a
revision of the steel industry’s usage category, as previously represented, corrected
to reflect usage by exclusively the “steel industry.” 	See Gov’t of Korea 2SQR at 2.
Specifically, the Gov’t of Korea indicated that the initial dataset had erroneously
included usage from the steel, copper, non-ferrous metal and aluminum industries
under steel, see Gov’t of Korea 2SQR at 1–3, which led to an overinflated calculation
of the electricity consumed by the steel industry. Hyundai Mot. at 21–22. Hyundai
explains that the second, revised dataset provided more detailed and therefore more
accurate representation of industry use to determine whether the steel industry
received a greater benefit from KEPCO. Id. at 21–22.
12 	The initial questionnaire requested the Gov’t of Korea “provide the amount of
electricity provided to the steel industry during the POR and to the largest 10
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and uses a different format from the initial dataset, 13 it does not explain why the
revised 	dataset 	lacks 	sufficient 	detail, 	why 	its 	alternative 	format 	renders 	it
unsuitable for consideration, or why the initial dataset is both “usable” and more
accurate than the revised data. 	Id. at 21–22. 	Commerce also argues that the
Plaintiffs submitted the revised dataset, claiming it is more accurate, but failed to
provide “supporting documentation” for that claim. 	Id. at 21–22. However, neither
the 	regulations 	nor 	the 	questionnaire 	requires 	parties 	to 	submit 	supporting
documentation for submissions of factual information. See Gov’t of Korea IQR. The
regulations define “factual information” as “[e]vidence, including statements of fact,
documents and data submitted either in response to initial and supplemental
questionnaires . . . .” 	19 C.F.R. § 351.102(b)(21)(i). 	Just as the initial dataset
constitutes factual information submitted without supporting documentation, the
revised dataset is also factual information, which Commerce accepted into the record
and is therefore required to provide reasonable explanation as to why it was not
industries consuming electricity during the POR.” Initial Questionnaire at 20. It did
not request that data be provided in accordance with specific standards or “levels of
industrial classification.” See id. at 20.
13 Specifically, Defendant explains that the revised dataset conflicts with Commerce’s
requirements because it provides data for “manufacture of basic iron and steel”,
which was not an industry listed in the Gov’t of Korea’s initial questionnaire
response, and because the Gov’t of Korea did not explain why the steel category
named in the first data submission also encompassed “copper and non-ferrous metal,
aluminum, etc.” Def. Resp. at 22 (citing Gov’t of Korea 2SQR), 23.
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“usable.” 	Commerce’s decision not to rely on the corrective dataset provided by the
Gov’t of Korea is therefore remanded for further consideration or explanation.
III. 	Determination of LTAR
Plaintiff DSM argues that Commerce’s finding of LTAR is unsupported by
substantial evidence and contrary to law. DSM Mot. at 7–8. DSM argues where an
entity 	sets 	prices 	in 	accordance 	with 	market 	principles, 	neither 	Commerce’s
regulation nor practice requires the entity earn a profit every year. 	Id. at 7–8.
Further, DSM argues Commerce’s practice is to ensure that an entity’s cost recovery
is sufficient to ensure future operations, not to require a specific rate of return. 	Id.
at 11–14.14 	Defendant explains that Commerce examined both whether KEPCO’s
tariff system was set with market principles, and whether it is applied using market
principles. Def. Resp. at 28 (citing Final Decision Memo. at 13–14). Defendant also
explains that despite KEPCO’s price setting methodology being based upon market
principles, including “processes to fully recover costs and a rate of return,” the data
showed the “implementation of this pricing methodology ‘conferred a benefit to the
purchasers of industrial categories of electricity.’” 	Id. 	As a result, in analyzing
KEPCO’s tariff system, Commerce determined that KEPCO did not recover its costs
14 Plaintiff-Intervenor Gov’t of Korea makes a related argument when it argues that
Commerce (1) failed to properly consider KEPCO’s FCAC and pass-through system
when determining that KEPCO did not recover costs within the POR and therefore,
that the system is not based on market principles, and at the same time; (2) included
KEPCO’s FCAC in its calculation of benefits. See Gov’t of Korea Mot. at 16–19.
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(inclusive of return) from industrial users during the POR, and therefore, KEPCO
provided electricity at LTAR when the tariff system was applied. 	Final Decision
Memo. at 14. For the following reasons, Commerce’s determination is remanded for
further consideration or explanation.
Commerce determines whether a financial contribution confers a benefit on a
recipient by evaluating whether goods and services are provided for less than
adequate remuneration. 	19 U.S.C. § 1677(5)(E)(iv); see also Nucor Corp. v. United
States, 927 F.3d 1243, 1251 (Fed. Cir. 2019). 	Commerce assesses adequacy of
remuneration in relation to prevailing market conditions in the country under
investigation or review. 	19 U.S.C. § 1677(5)(E)(iv). 	It evaluates “price, quality,
availability, marketability, transportation, and other conditions of purchase or sale.”
Id. 	Commerce 	implements 	this 	standard 	through 	a 	three-tier 	framework 	to
determine whether a recipient is receiving a good or service below fair-market value.
See 19 C.F.R. § 351.511(a)(2); Nucor Corp., 927 F.3d at 1246.
Relevant here, the regulation provides:
(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 assessing whether
the government price is consistent with market principles. 	In making
an assessment of whether a government price is consistent with market
principles under this provision, the Secretary may assess such factors
as costs (including rates of return sufficient to ensure future operations),
the 	government's 	price 	setting 	methodology, 	possible 	price
discrimination, or a government price derived from actual sales from
competitively run government auctions . . .
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19 C.F.R. § 351.511(a)(2)(iii). 15 	If neither a market-determined nor a world market
price is available, Commerce evaluates whether the government price was set in
accordance with “market principles.” 	19 C.F.R. § 351.511(a)(2)(iii); see Nucor Corp.
v. United States, 927 F.3d 1243, 1254 (Fed. Cir. 2019) (citing Countervailing Duties,
63 Fed. Reg. 65,348, 65,378 (Nov. 25, 1998)).
At Tier III, the regulations allow Commerce to assess whether a company
benefits 	from 	a 	subsidy 	by 	looking 	at 	long 	term 	cost 	recovery. 	19 	C.F.R.
§ 351.511(a)(2)(iii). 	Thus, Commerce examines whether the government price is
15 Tiers I and II provide:
(i) In general. 	The Secretary will normally seek to measure the
adequacy of remuneration by comparing 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 or
actual imports. 	In choosing such transactions or sales, the Secretary
will consider product similarity; quantities sold or imported; 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
paragraph (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 country in question. Where there is more
than one commercially available world market price, the Secretary will
average such prices to the extent practicable, making due allowance for
factors affecting comparability.
19 C.F.R. § 351.511(a)(2)(i)–(ii).
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consistent with market principles by considering “such factors as” the government
supplier’s price-setting philosophy, its costs (including rates of return sufficient to
ensure future operations), and possible price discrimination. 	See Countervailing
Duties, 63 Fed. Reg. 65,348, 65,378 (Nov. 25, 1998) (final rule adopting Commerce’s
countervailing 	duty 	regulations 	under 	the 	Uruguay 	Round 	Agreements 	Act,
including the adequacy of remuneration benchmark regulation codified at 19 C.F.R.
§ 351.511). 	The rule further explains that the factors are non-hierarchical, and
Commerce may consider one or more of the factors as “circumstances of each case
vary widely.” Id.
Here, Commerce appears to conclude that KEPCO operates within a long-term
cost recovery framework. When Commerce examined whether KEPCO’s prices were
set in accordance with market principles, it analyzed both “KEPCO’s price-setting
philosophy 	and 	costs 	(including 	rates 	of 	return 	sufficient 	to 	ensure 	future
operations).” Final Decision Memo. at 12; Prelim. Decision Memo. at 34 (examining
KEPCO’s pricing mechanism that recovers costs and separately examining individual
tariff rate cost recovery). Commerce reviewed the 2021 updates to the Gov’t of Korea’s
electricity tariff system and found that the 2021 revisions were adopted through the
same process and methodology used for the 2013 tariff revisions, which Commerce
had previously determined were consistent with market principles. 	Final Decision
Memo. at 12 (citing Gov’t of Korea IQR at 14–18, 43–47, Exs. E-7, E-8, E-8.1, E-8.2,
E-8.3, E-10, E-15). Commerce also examined the FCAC added in 2021 and concludes
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that—by design and under its price-setting methodology—the charge itself is likewise
consistent with market principles. Final Decision Memo. at 12–13.
Nonetheless, Commerce examined KEPCO’s cost recovery rates during the
POR and explains:
Finally, 	we 	examined 	KEPCO’s 	cost 	recovery 	rates 	by 	tariff
classification during the POR, which are submitted to the MOTIE each
year. As noted in the Preliminary Results, these data demonstrate that
no industrial class tariff rate recovered costs (inclusive of a rate of
return) during the POR. 	This finding did not negate our analysis that
KEPCO’s pricing methodology is based upon “laws, regulations, and
processes to fully recover costs and a rate of return;” it merely highlights
the complexity of evaluating KEPCO’s electricity pricing and reflects the
fact that an examination of the actual application of the aforementioned
laws and regulations, particularly with regard to cost recovery, is
necessary to confirm that the Korean electricity market was based on
market principles in both law and application of the law. 	Commerce
must consider not only the mechanism, but also its implementation, and
in this regard, we find that KEPCO conferred a benefit to the purchasers
of industrial categories of electricity.
Id. at 13.16 Thus, although Commerce finds that KEPCO’s pricing methodology was
in accordance with market principles, it concludes that the cost-recovery analysis
16 In the Final Results, Commerce either misconstrues the regulatory requirements
under 19 C.F.R. § 351.511(a)(2)(iii) or attempts to create a hybrid methodology not
provided by the regulations to conform the facts to its conclusion. The regulations do
not instruct Commerce to first analyze the “mechanism” to find prices were set in
accordance 	with 	market 	principles 	and 	then 	separately, 	analyze 	the
“implementation,” as Commerce did here. See Final Decision Memo. at 13. Rather,
the regulations instruct Commerce to consider cost recovery, both in the mechanism
(footnote continued)
and in the implementation of government prices, as a part of its determination of
whether the government price was set in accordance with market principles, and
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showed that no industrial electricity tariff rate recovered costs during the POR, and
therefore, the system, as applied, is not in accordance with market principles. Final
Decision Memo. at 13. Despite its design based on “laws, regulations, and processes
to fully recover costs and a rate of return,” the tariff system, in operation, failed to
produce cost recovery during the POR; therefore, Commerce concludes that KEPCO
nevertheless conferred a benefit on Plaintiffs. Id. at 13.
Thus, Commerce appears to either modify the Tier III framework it purports
to apply, or it unartfully explains its analysis and application of the Tier III
framework. 	Commerce finds KEPCO’s price-setting methodology to be “consistent
with market principles.” Id. at 13. If KEPCO’s price setting is consistent with market
principles, then Commerce has no basis to find that the program provided a good or
service for LTAR under 19 C.F.R. § 351.511(a)(2)(iii). 	Alternatively, it may be that
Commerce does not conclude that the system is consistent with market principles,
because at the same time Commerce finds the price-setting methodology suitable to
recover costs, and therefore consistent with market principles, it appears to also
doubt whether there will in fact be long-term costs recovery. 	Final Decision Memo.
at 13. The doubt appears to stem from KEPCO’s failure to recover costs during this
POR. Id. at 14; Oral Argument at 1:18–1:24. Yet, Commerce has explicitly rejected
using a single year of charges to customers to undermine the Tier III cost recovery
thus, whether a benefit was conferred. 	See Countervailing Duties, 63 Fed. Reg.
65,348, 65,378 (Nov. 25, 1998) (interpreting 19 C.F.R. § 351.511(a)(2)(iii)).
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analysis. See Large Diameter Welded Pipe from the Republic of Korea: Final Results
of Countervailing Duty Administrative Review; 2018-2019, 87 Fed. Reg. 5780 (Feb.
2, 2022) and accompanying Issues & Decisions Memo. at cmt. 1 (Feb. 2, 2022)
(explaining that Commerce’s Tier III analysis consistently evaluates an entity’s
overall “financial performance . . . rather than the prices actually paid by the
respondent” during the POR.) Thus, while Commerce says that KEPCO’s prices are
consistent with market principles, it seems to ultimately conclude that they are not.
See Final Decision Memo. at 13. On remand, Commerce must reconsider its Tier III
analysis or further explain how the regulations provide for a finding that prices set
in accordance with market principles can also fail to recover costs and therefore confer
a benefit.
IV. 	Benefit Calculation
Once Commerce determined that KEPCO provided electricity conferring a
countervailable benefit under Tier III, Commerce calculated the extent to which a
benefit was conferred. 	See Final Decision Memo. at 13; 19 U.S.C. § 1677(5)(E)(iv).
Plaintiffs contend that Commerce improperly included the FCAC and carried-forward
2021 costs in its benefit calculation, arguing the inclusion of those costs is an
irrelevant and unreasonable representation of KEPCO’s actual 2022 tariff and cost-
recovery methodology and results in “double counting.” Hyundai Mot. at 24–26; Gov’t
of Korea Mot. at 16–18. 	Defendant argues that if the FCAC is built into the tariff
customers actually pay, then Commerce properly determined the FCAC is part of the
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revenue stream that the Gov’t of Korea uses to determine whether KEPCO recovered
electricity costs, and therefore, it is necessarily included in the benefit calculation.
Def. Resp. at 30–31; Final Decision Memo. at 23–24. 	For the following reasons,
Commerce’s calculation of benefit is remanded.
Where Commerce applies the tier-three benchmark criteria and finds that the
government-charged price is inconsistent with market principles, it may treat a
benefit as conferred and calculate the amount of that benefit using the benchmark it
has selected. See 19 U.S.C. § 1677(5)(E)(iv); 19 C.F.R. § 351.511(a)(2)(iii); POSCO v.
United States, 977 F.3d 1369, 1372 (Fed. Cir. 2020). 	In applying the criteria,
Commerce must reasonably explain its selected benchmark and inputs it uses to
make the benefit calculation. See, e.g., ArcelorMittal USA LLC v. United States, 337
F. Supp. 3d 1285, 1291 (Ct. Int’l Trade 2018).
Whether Commerce employs a yearly cost of goods sold analysis or a long-term
cost recovery analysis, it cannot remedy the same benefit twice and record evidence
suggests that Commerce may have done so. 	In 2022, the 2021 fuel costs that were
not charged to customers, by way of the FCAC, were included as a line item that
KEPCO used to calculate its base charge. 	Hyundai Mot. at 23–24 (citing Gov’t of
Korea IQR at Exhibit E-9). Commerce included KEPCO’s carried-forward 2021 fuel
costs in its 2022 POR adequacy of remuneration analysis because KEPCO treated the
unrecovered fuel costs as part of its 2022 Total Comprehensive Cost and used that
figure to set the tariff rates in effect during the POR. 	Final Decision Memo. at 23–
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24. Commerce reasons that because the carried-forward amounts were built into the
tariff framework governing 2022 electricity prices, those amounts were relevant to
determining whether KEPCO’s 2022 rates allowed recovery of costs plus a reasonable
return. 17 	Id. at 14. 	Commerce determined that excluding those amounts would
distort the Tier III benchmark inquiry by severing the analysis from KEPCO’s real-
world tariff-setting methodology. Id. at 14, 15. Further, Commerce determined that
the carried-through amounts should be included in the benefit calculation because
they were paid by consumers as a part of the tariff schedule. Id. at 24.
Yet, KEPCO’s financial statement submissions indicate that fuel costs were
countervailed in 2021. 18 Hyundai Mot. at 23 (citing Gov’t of Korea IQR at Exhibit E-
9). Commerce fails to explain why it was reasonable to calculate the benefit incurred
in 2022 by including costs that were reported in KEPCO’s 2021 financial statements
and appeared to have been countervailed. 	Commerce, on remand, must provide
sufficient explanation and evidence to show that the same pass-through charges were
not countervailed twice, or reconsider its calculation of benefit to ensure any benefit
is not remedied twice.
CONCLUSION
17 The carried-forward fuel costs from 2021 were not included in the [[
]] for 2022, but as a [[ 	]] amount in the Total Comprehensive Cost.
Hyundai Mot. at 23–24 (citing Gov’t of Korea IQR at Ex. E-9).
18 	KEPCO’s fuel costs were reflected in its [[ 	]] in 2021. 	Gov’t of
Korea IQR at Ex. E-9.
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Commerce’s 	determinations 	that: 	(1) 	the 	steel 	industry 	and 	two 	other
industries received a disproportionately large amount of the electricity subsidy and
therefore the program is specific; (2) the revised dataset provided by Gov’t of Korea
is unusable; (3) electricity was provided at LTAR; and (4) the fuel cost pass-through
charges should be included in the calculation of benefit are remanded for further
explanation or reconsideration consistent with this opinion. In light of the foregoing,
it is
ORDERED that the final results, see ECF No. 25-5, are remanded for further
explanation or reconsideration consistent with this opinion; and it is
ORDERED that Commerce shall file its remand redetermination with the
Court within 90 days of this date; and it is further
ORDERED that the parties shall have 30 days to file comments on the remand
redetermination; and it is further
ORDERED that the parties shall have 30 days to file their replies to the
comments on the remand 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
remand redetermination; and it is further
ORDERED that Commerce shall file the administrative record within 14 days
of the date of filing its remand redetermination.
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Consol. Court No. 24-00190 	Page 34
PUBLIC VERSION
/s/ Claire R. Kelly
Claire R. Kelly, Judge
Dated: 	August 11, 2026
New York, New York
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