Full opinion text
OPINION RIDGWAY, Judge. [Determination of U.S. Department of Commerce’s International Trade Administration on countervailing duty suspension agreement remanded for action consistent with this opinion.] This action challenges a July 1999 agreement between the U.S. Department of Commerce (“Commerce”) and the Government of Brazil, suspending at the eleventh hour the investigation into alleged eountervailable subsidies received by three Brazilian steel exporters (“Brazilian Exporters”) from the Brazilian Government. See Certain Hot-Rolled Flat-Rolled Carbon-Quality Steel Products From Brazil, 64 Fed. Reg. 38,797 (Dept. Commerce 1999) (suspension of countervailing duty investigation and entry of suspension agreement) (Public Administrative Record Document (“P.R. Doc.”) No. 173) (“Suspension Determination” or “Suspension Agreement” or “Agreement”). That investigation was initiated at the behest of, among others, the plaintiff domestic steel producers here (“Domestic Producers”). See Certain Hot-Rolled Flat-Rolled Carbon-Quality Steel Products From Brazil, 63 Fed. Reg. 56,623 (Dep’t Commerce 1998) (initiation of countervailing duty investigation) (P.R. Doc. No. 33). As the Domestic Producers have observed, a suspension agreement is essentially a unique form of settlement agreement: a settlement agreement to which the complainant — that is, the domestic industry — is not a signatory. Tr. at 5; see also 125 Cong. Rec. 20,168 (1979). While Congress has authorized Commerce to enter into suspension agreements, Congress has emphasized the limited circumstances in which such agreements are appropriate, and has established rigorous procedural safeguards to ensure that they are not abused to the detriment of domestic interests. The law on suspension agreements requires, among other things, that Commerce afford the domestic industry the opportunity to review and comment on any proposed agreement. 19 U.S.C. § 1671c(e) (1994). The Domestic Producers here argue that “there is no indication that anyone at the Department read [their comments]. Indeed, there is substantial evidence that they did not.” See Plaintiffs’ Reply Brief in Support of Motion for Judgment Under Rule 56.2 (“Reply Memo”) at 35. The Domestic Producers further assert that, .under the facts of this case, Commerce cannot make the substantive determinations required to justify the Suspension Agreement. Id. passim. Pending before the Court is Plaintiffs’ Motion for Judgment Upon the Agency Record (filed under USCIT Rule 56.2), in which the Domestic Producers seek an order directing Commerce to terminate the Suspension Agreement and to issue a countervailing duty order on the subject merchandise. Plaintiffs’ motion is opposed by Defendant, the United States (“the Government”), as well as the Brazilian Exporters, who argue that Commerce’s determination to suspend the countervailing duty investigation should be sustained in all respects. Plaintiffs’ motion is granted in part. Whether or not Commerce read the comments filed by the Domestic Producers and other petitioners, the record indicates that those comments were not given adequate consideration. Accordingly, for the reasons discussed more fully below, this case is remanded to the Department of Commerce to enable it to comply with the applicable notice, comment and consultation requirements of the statute, and to reconsider its determination in light of all comments and consultation. I. Background, A. The Suspension Agreement Statute The statutory provisions authorizing suspension agreements in countervailing duty cases were added to the Tariff Act of 1930 as part of the Trade Agreements Act of 1979 (the “Act”). Prior to the Act, the Secretary of the Treasury — who was then responsible for implementing the anti-dumping and countervailing duty laws— had the authority to waive the imposition of countervailing duties after an investigation was concluded, where the Secretary found that “adequate steps” had been taken to reduce substantially or eliminate the adverse effect of a “bounty or grant.” S. Rep. No. 96-249 at 50-51 (1979), reprinted in 1979 U.S.C.C.A.N. 381 at 436-37. Domestic industries generally were highly critical of the Secretary’s exercise of waiver authority. See, e.g., 125 Cong. Rec. 20,161-62 (1979) (Memorandum of Ad Hoc Subsidies Coalition asserting, in relevant part, “5. Treasury Has Stretched the Authority of the Trade Act of 1974 With Regard to the Granting of Waivers”). The suspension agreement provisions of the Act were adopted to impose “strict limits on discontinuing or suspending investigations pursuant to deals with foreign governments or producers.” 125 Cong. Rec. 20,163 (1979). The provisions on suspension of countervailing duty investigations effected “a major change in ... [the then-existing] law,” eliminating waiver authority and instead “authorizing the suspension of investigations based on agreements with the exporters or the government of the country in which the subsidy practice is alleged to occur.” H. Rep. No. 96-317 (1979) at 53. In authorizing the use of suspension agreements in appropriate countervailing duty cases, Congress recognized their “importance ... to both importers and domestic industry as a means of achieving the remedial purposes of the law in as short a time as possible and with a minimum expenditure of resources by all parties involved.” H. Rep. No. 96-317 at 53. Accord, S. Rep. No. 96-249 at 54, 1979 U.S.C.C.A.N. at 440 (suspension agreements “permit rapid and pragmatic resolutions of countervailing duty cases”). But Congress was equally mindful of the potential for abuse of suspension agreements. To ensure that such agreements are not entered into to the disadvantage of a petitioning domestic industry (for foreign policy or other political reasons), the statute is replete with stringent requirements that must be met before an agreement can be concluded. Congress emphasized that “the authority to suspend investigations [is to] be exercised within the carefully circumscribed limits” set forth in the law. H. Rep. No. 96-317 at 53-54; see also S. Rep. No. 96-249 at 54, 1979 U.S.C.C.A.N. at 440 (to ensure that suspension agreements are used only in those cases where they “serve[ ] the interest of the public and the domestic industry affected,” agency authority to suspend investigations is “narrowly circumscribed”); 125 Cong. Rec. 20,168-69 (1979) (Senator Heinz’s understanding that suspension agreements permitted only “under certain narrowly constrained circumstances” confirmed by bill managers Senators Ribicoff and Roth). Congress further cautioned that “suspension is an unusual action which should not become the normal means of disposing of [countervailing duty] cases.” S. Rep. No. 96-249 at 54, 1979 U.S.C.C.A.N. at 440. There are essentially two distinct types of suspension agreements in countervailing duty cases — so-called “subsection (b) agreements” and “subsection (c) agreements.” Subsection (b) agreements eliminate or offset completely a countervailable subsidy, or cease exports of the subject merchandise. 19 U.S.C. § 1671c(b). In contrast, subsection (c) agreements do not cease exports; nor do they completely eliminate or offset countervailable subsidies. Rather, they eliminate only the exports’ injurious effect. 19 U.S.C. § 1671c(c). Prior to accepting either a subsection (b) or (c) agreement, Commerce must find both that “suspension of the investigation is in the public interest,” and that “effective monitoring of the agreement by the United States is practicable.” 19 U.S.C. § 1671c(d). Commerce also is required to notify petitioners of, and consult with them concerning, its intention to suspend the investigation. In addition, Commerce must provide petitioners with a copy of the proposed agreement, and accord them an opportunity to comment. 19 U.S.C. § 1671c(e). But there are additional requirements for subsection (c) agreements. Because such agreements, by definition, allow some subsidy practices to continue, Congress restricted subsection (c) agreements to cases involving “extraordinary circumstances”— cases where the suspension of the investigation is more beneficial to the domestic industry than its continuation, and where the investigation is “complex.” See S.Rep. No. 96-249 at 51 (discussing the extraordinary circumstances requirement set out in 19 U.S.C. § 1671c(c)(4)). Moreover, while all subsection (c) agreements require findings of “extraordinary circumstances” and “complexity” (as discussed above), there are unique requirements for those subsection (c) agreements which are — like the Agreement at issue here — quantitative restriction agreements. Specifically, the statute mandates that, in evaluating the public interest vis-a-vis such an agreement, Commerce must both (i) consult with potentially affected consuming industries, as well as potentially affected producers and workers in the domestic industry, and (ii) take into account the impact of such an agreement on U.S. consumers, the international economic interests of the United States, and the competitiveness of the domestic industry (in addition to any other necessary or appropriate factors). 19 U.S.C. § 1671c(d)(1). As Congress intended, Commerce has invoked the suspension provisions of the trade laws only infrequently in both countervailing duty and antidumping investigations — at least until recently. Notably, prior to the suspensions of both the countervailing duty investigation at issue and the parallel antidumping investigation, Commerce had accepted only four other subsection (c) agreements, including both antidumping and countervailing duty cases. In each of those cases, Commerce sought — and obtained — the consent of the petitioners. See Reply Memo at 8 n. 27 and authorities cited there. B. The Facts of This Case On September 30, 1998, the Domestic Producers who are plaintiffs here — among others — petitioned Commerce and the International Trade Commission (“ITC”), seeking the imposition of countervailing duties on certain steel products from Brazil. See Letter from Skadden/Schag-rin/Dewey to Commerce and ITC, and enclosed Petition (Sept. 30, 1998) (P.R. Doc. No. 3). Specifically, the petition alleged that CSN, COSIPA and USIMINAS — Defendant-Intervenors here — received billions of-dollars in equity infusions from the Government of Brazil, at a time when those companies were neither equity-worthy nor credit-worthy. Id. The petition was accepted, and the requested investigation was initiated on October 15, 1998. See 63 Fed. Reg. 56,623. One month later, the ITC notified Commerce of its preliminary determination, finding that “there [was] a reasonable indication that an industry in the United States [was] threatened with material injury by reason of imports” of the Brazilian steel. See Certain Hot-Rolled Steel Products From Brazil, Japan, and Russia, 63 Fed. Reg. 65,221 (ITC 1998) (preliminary injury determination in both countervailing duty investigation and parallel antidump-ing investigation). On February 12, 1999, Commerce made its preliminary determination, finding that countervailable subsidies indeed were being provided to the Brazilian Exporters. See Certain Hot-Rolled Flat-Rolled Carbon-Quality Steel Products From Brazil, 64 Fed. Reg. 8313 (Dep’t Commerce 1999) (preliminary affirmative countervailing duty determination) (P.R. Doc. No. 120). On June 6, 1999 — literally one month to the day before the statutory deadline for its final determination — Commerce sent the Domestic Producers (among others) an initialed proposed agreement to suspend the countervailing duty investigation, requesting comments by June 28, 1999. See Letters from Commerce to Interested Parties (June 6, 1999) (requesting comments on enclosed Proposed Agreement) (Second Supp. P.R. Doc. No. 1) (“Letters from Commerce to Interested Parties” and “Proposed Agreement”). The following day — June 7 — Commerce issued a news release announcing the Proposed Agreement' (as well as a proposed suspension agreement in the parallel anti-dumping case). In that release, Secretary of Commerce William M. Daley stated that, under the agreement at issue here, “imports [would] not resume until after October 1.” See Commerce Secretary William M. Daley Announces Tentative Agreements to End Dumping of Brazilian Steel in the U.S., at http://www.ita. doc.gov/media/brazilsteel2. htm (June 7, 1999) (“Commerce June 7, 1999 News Release”) (cited in Letter from Skadden/Dewey/Schagrin to Commerce at 26 n. 53 (June 28, 1999) (P.R. Doc. No. 161) (“Petitioners’ Comments”)). The Domestic Producers (jointly with other petitioners) filed timely comments on the Proposed Agreement. See Petitioners’ Comments (June 28, 1999) (P.R. Doc. No. 161). Their lengthy submission detailed numerous substantive objections, in support of their argument that the Proposed Agreement failed to meet the requirements of the suspension agreement statute. Id. at 1-26. In addition, the petitioners’ comments identified a number of drafting errors and inaccuracies in the Proposed Agreement. Id. at 26-51. For example, the comments pointed out that the Proposed Agreement invoked both subsection (b) and subsection (c) of the statute (see id. at 2), even though the Proposed Agreement was plainly a subsection (c) agreement. In addition, the comments noted that the Proposed Agreement failed to include the ban on imports through September 30, 1999, which the Secretary of Commerce had referred to in his June 7 statement. Id. at 23 n. 49, 26-27 n. 53. A few days later, on July 6, 1999 — the deadline for its final determination in the countervailing duty investigation — Commerce entered into a final agreement suspending that investigation. See Suspension Determination/Suspension Agreement, 64 Fed. Reg. 38,797. The final Agreement differed from the Proposed Agreement in only one respect: It ineor-porated the quota level of zero (effectively banning imports) for the period through September 30, 1999, which had been first announced by the Secretary of Commerce in his statement on the Proposed Agreement one month earlier. See Agreement, 64 Fed. Reg. at 38,798; Commerce June 7, 1999 News Release. Concurrent with its execution and issuance of the final Suspension Agreement, Commerce separately circulated two mem-oranda setting forth the bases for the determinations supporting its decision to suspend both the countervailing duty investigation and the antidumping investigation. See Memoranda from ITA Office of Policy to Ass’t Sec. for Import Administration (July 6, 1999) (addressing, respectively, the existence of extraordinary circumstances, and the public interest) (Supp. P.R. Doc. Nos. 1 and 2) (“Extraordinary Circumstances Memo” and “Public Interest Memo”). That same day, Commerce also issued its final affirmative determination in the underlying countervailing duty investigation. Certain Hot-Rolled Flat-Rolled Carbon-Quality Steel Products From Brazil, 64 Fed. Reg. 38,742 (Dep’t Commerce 1999) (final affirmative countervailing duty determination) (P.R. Doc. No. 172). Commerce determined net subsidy rates of 6.36% for CSN, 9.67% for USIMINAS/CO-SIPA, and 7.81% for all others. Id. The ITC’s final determination — issued August 24, 1999 — confirmed its affirmative preliminary finding on material injury. Certain Hot-Rolled Steel Products From Brazil and Russia, 64 Fed. Reg. 46,951 (ITC 1999) (final injury determinations in antidumping and countervailing duty investigations). As a result of the Suspension Agreement, no countervailing duty order has issued in this case. Moreover, in the absence of a request for ITC review of Commerce’s determination that the Agreement eliminated the injurious effects of imports, the suspension of liquidation of the goods at issue terminated twenty days after notice of suspension agreement was published in the Federal Register. II. Jurisdiction and Standard of Review Jurisdiction in this matter is predicated on 28 U.S.C. § 1581(c)(1994). Commerce’s decision to suspend the countervailing duty investigation at issue is reviewable pursuant to 19 U.S.C. § 1516a(a)(2)(B)(iv) (1994), and must be sustained unless it is “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B) (1994). III. The Requirements for Subsection (b) Agreements The Suspension Agreement states on its face that it was concluded “[pjursuant to Section 704(b) and (c) of the Tariff Act of 1930, as amended” — that is, pursuant to 19 U.S.C. § 1671c(b), as well as 19 U.S.C. § 1671c(c). Agreement, 64 Fed. Reg. at 38,798 n. 1. In contrast, the Suspension Determination invokes only subsection (c). 64 Fed. Reg. at 38,797. In its brief, the Government speculates that the Suspension Agreement’s reference to subsection (b) was “mere inadvertence,” confirms that the investigation was suspended based on subsection (c), and argues that — under the circumstances — the Court should decline to consider whether the Suspension Agreement and the underlying Suspension Determination would pass muster under subsection (b), because no live case or controversy is presented. Defendant’s Response in Opposition to Plaintiffs’ Motion for Judgment Upon the Agency Record (“Defendant’s Memo”) at 25-29. As the Domestic Producers concede, a Suspension Determination and Agreement need only meet the requirements of either subsection (b) or subsection (c). See Plaintiffs’ Brief in Support of Motion for Judgment Under Rule 56.2 (“Plaintiffs’ Memo”) at 21 (Suspension Agreement must fulfill “the provisions of Section 704(b) or Section 704(c)”). Moreover, all parties agree that the investigation was suspended under subsection (c). See DefendanNInterve-nors’ Memorandum of Points and Authorities (“DefendanUntervenors’ Memo”) at 9; Reply Memo at 2 n. 3. Accordingly, the Domestic Producers’ arguments concerning subsection (b) are moot. See Plaintiffs’ Memo at 22-28 (arguing that Suspension Agreement and underlying Suspension Determination do not meet standards of subsection (b)). When Commerce admits that it has made clerical errors, it should be given the opportunity to correct its mistakes. See, e.g., Gilmore Steel Corp. v. United States, 7 CIT 219, 223, 585 F.Supp. 670, 674, (1984). Even if the ultimate result would not be affected, it is appropriate to direct Commerce to correct errors if remand is otherwise necessary. Federal-Mogul Corp. v. United States, 18 CIT 1168, 1172, 872 F.Supp. 1011, 1014 (1994) (citing Brother Indus., Ltd. v. United States, 15 CIT 332, 346, 771 F.Supp. 374, 388 (1991)). As discussed below, the Suspension Agreement and Commerce’s underlying Suspension Determination were not in accordance with law. See section IV.A, infra. Because the case is being remanded to Commerce in any event, it is appropriate to direct Commerce to correct clerical errors at that time. See Brother Indus., 15 CIT at 346, 771 F.Supp. at 388. Therefore, on remand, Commerce shall correct its error and clarify that the suspension of the investigation was based solely on subsection (c), by revising the Suspension Agreement to eliminate all references to 19 U.S.C. § 1671c(b). IV. The Requirements for Subsection (c) Agreements As discussed above (see section III), all parties agree that — notwithstanding the Agreement’s reference to subsection (b)— the investigation at issue actually was suspended under subsection (c), i.e., 19 U.S.C. § 1671c(c). The Domestic Producers challenge virtually every aspect of that suspension, arguing (a) that Commerce failed to comply with the notice, comment and consultation requirements of the suspension agreement statute; (b) that effective monitoring of the Agreement is not practicable; (c) that there are no “extraordinary circumstances” in this case (i.e., that the Agreement is not more beneficial to the domestic industry than continuation of the investigation, and that the investigation was not complex); and (d) that the Agreement does not serve the public interest. A. Notice, Comment and Consultation The Domestic Producers argue that Commerce failed to comply with the notice, comment and consultation requirements of the suspension agreement statute, asserting that Commerce disregarded the petitioners’ written comments on the Proposed Agreement and failed to “consult meaningfully” with them. See generally Plaintiffs’ Memo at 51-53; Reply Memo at 34-37. The notice, comment and consultation requirements mandate that, before entering into a suspension agreement, Commerce must: (1) notify the petitioner of, and consult with the petitioner concerning, its intention to suspend the investigation ... not less than 30 days before the date on which it suspends the investigation, (2) provide a copy of the proposed agreement to the petitioner ... together with an explanation of how the agreement will be carried out and enforced (including any action required of foreign governments), and of how the agreement will meet the requirements of subsections (b) and (d) or (c) and (d) of [the statute], and (3) permit all interested parties ... to submit comments and information for the record before the date on which notice of suspension of the investigation is published.... 19 U.S.C. § 1671c(e). The legislative history of the statute highlights the importance of those provisions, emphasizing that “the requirement that the petitioner be consulted will not be met by pro forma communications. Complete disclosure and discussion is required.” S.Rep. No. 96-249 at 54, 1979 U.S.C.C.A.N. at 440. The Government maintains that Commerce complied fully with all applicable notice, comment and consultation requirements. In support of that claim, the Government notes that petitioners were provided with a copy of the Proposed Agreement and accorded an opportunity to comment on it — facts which are not in dispute. Defendant’s Memo at 57. The Government also points to the Suspension Determination, which states that “[t]he Department consulted with the parties to the proceeding and has considered their positions with respect to the proposed suspension agreement” (64 Fed. Reg. at 38,797), and to the Public Interest Memorandum, which asserts that “the Department has consulted with parties affected” by the Suspension Agreement and that “the Department consulted extensively with domestic producers and unions, explaining what the [countervailing duty and antidumping suspension] Agreements will do, how they will work, and how they will be enforced” (Supp. P.R. Doc. No. 2). Defendant’s Memo at 57; Tr. at 42. Apart from those conclusory statements, however, there is no affirmative record evidence to indicate that Commerce even reviewed — much less considered or responded to — the petitioners’ written comments. The Government and the Brazilian Exporters nevertheless argue that Commerce’s statements on the record must be presumed to be the truth. Tr. at 54-55; DefendanNIntervenors’ Memo at 52. According to the Brazilian Exporters: If Plaintiffs are somehow to accuse the Department of not fulfilling [its notice, comment and consultation requirements], ... they must provide proof to support their claim.... The fact that the Department did not revise the Agreement in accordance with Plaintiffs’ desires does not, vel non, demonstrate that the Department did not consider these comments. It simply demonstrates that the Department chose not to incorporate them. Defendant-Intervenors’ Memo at 52. As the Government notes, “[a]bsent some showing to the contrary, the agency is presumed to have considered all of the evidence of record.” Defendant’s Memo at 58, citing Hoogovens Staal BV v. United States, 93 F.Supp.2d 1303, 1307 (Ct. Int’l Trade 2000), appeals docketed, Nos. 00-1432, 00-1433 (Fed.Cir. June 28, 2000). However, that presumption is rebuttable— and, indeed, it is rebutted by the evidence in this case. The Suspension Agreement itself belies any claim that the Government considered the petitioners’ written comments on the Proposed Agreement. Those comments not only detailed the petitioners’ substantive objections to suspension of the investigation, but also pointed out a number of drafting errors and inaccuracies in the Proposed Agreement. See Petitioners’ Comments passim. A prime example is the Suspension Agreement’s erroneous reference to subsection (b), discussed in section III above, which was also present in the Proposed Agreement. Compare Suspension Agreement, 64 Fed. Reg. at 38,798 n. 1, with Proposed Agreement at 1 n. 1. While the Government now postulates that the existence of that mistake in the final Suspension Agreement is attributable to “mere inadvertence” (Defendant’s Memo at 27), the Proposed Agreement’s erroneous reference to subsection (b) could not possibly have escaped the notice of anyone reading the petitioners’ written comments. The first twelve pages of those comments were devoted exclusively to an in-depth analysis of why the Proposed Agreement did not satisfy the statutory requirements of subsection (b). See Petitioners’ Comments at 1-12. As proof that Commerce in fact did consider the petitioners’ written comments, the Government points to the only difference between the Proposed Agreement and the final Suspension Agreement: The provision establishing a quota level of zero for the interim period (from July 19, 1999 — the effective date of the Suspension Agreement — through October 1, 1999), which was missing from the Proposed Agreement and was raised in the petitioners’ written comments. Defendant’s Memo at 58 and Tr. at 50-58; Petitioners’ Comments at 28-24. Compare Proposed Agreement with Agreement, Part IV, 64 Fed. Reg. at 38,798. But, in the June 7, 1999 news release announcing the Proposed Agreements in both the eountervail-ing duty and antidumping duty cases, the Secretary of Commerce stated that, under the agreement at issue here, “imports [would] not resume until after October 1.” See Commerce June‘7,1999 News Release. Thus, the Suspension Agreement’s provision establishing the quota for the interim period was not inspired by the petitioners’ comments; its omission from the Proposed Agreement was simply a drafting or clerical error. The Government concedes that Commerce intended from the start to include a quota level for the interim period in the agreement, but posits that it was the petitioners’ written comments that brought the omission in the Proposed Agreement to Commerce’s attention and ensured the provision’s inclusion in the final Suspension Agreement. Defendant’s Memo at 58; Tr. at 50-51. However, the Government’s position is mere speculation. There is no evidence on the record (such as an agency decision memorandum) to support the Government’s claim of “cause and effect”; that is, there is nothing to indicate that the change between the Proposed Agreement and the final Agreement was made in response to the petitioners’ comments. And it is difficult to imagine that — had Commerce actually considered the petitioners’ comments — it would have corrected only one of the numerous drafting and clerical errors that the petitioners identified, and ignored all the others. At oral argument, counsel for the Government acknowledged that Commerce is obligated not only to solicit the petitioners’ comments, but also to consider them. Tr. at 44-46. Commerce’s failure in this case to correct in the final Suspension Agreement even the drafting and clerical errors identified by the petitioners is compelling evidence that Commerce failed to give appropriate consideration to the petitioners’ written comments. Due to Commerce’s failure to comply with the notice, comment and consultation requirements of the suspension agreement statute, any “substantial evidence” review of Commerce’s factual findings would be premature at this time. Even as to the legal issues presented, the considerations of judicial economy and deference to agency autonomy and expertise that undergird the related doctrines of exhaustion and ripeness counsel remand here. Remand will afford Commerce to consider the Domestic Producers’ comments, find facts, apply its expertise to the record, articulate its interpretation of the statute, and explain the bases for its action. Remand also will protect agency autonomy, and allow Commerce to exercise the discretion granted it by Congress. Finally, by affording Commerce an opportunity to correct any errors it may have made, remand conceivably may obviate entirely the need for further judicial review. See" n. 8, supra. See generally 2 K. Davis & R. Pierce, Jr., Administrative Law Treatise §§ 15.2 (citing McKart v. United States, 395 U.S. 185, 193-95, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969)), 15.12 (3d ed. 1994). Accordingly, for the reasons set forth above, this matter is remanded to Commerce, so that it may reconsider its Suspension Determination, giving due consideration to all of the petitioners’ comments — the substantive ones as well as those identifying drafting or clerical errors, and so that it may undertake any further consultation that may be appropriate. B. The Practicability of Effective Monitoring The statute permits suspension agreements only where “effective monitoring of the agreement by the United States is practicable.” 19 U.S.C. § 1671c(d)(1)(B). The statute’s legislative history underscores the importance of effective monitoring provisions: The committee intends that no agreement be accepted unless it can be effectively monitored by the United States. This will require establishment of procedures under which entries of merchandise covered by an agreement can be reviewed by the authority and by interested parties. Adequate staff and resources must be allocated for monitoring to insure that relief under the agreement occurs. S. Rep. No. 96-249 at 54, 1979 U.S.C.C.A.N. at 440. The Domestic Producers attack the monitoring provisions of the Agreement on three grounds. Their first complaint is the absence of any requirement that the Brazilian Government notify Commerce of its bestowal of domestic subsidies — the subsidy practice at issue in the underlying investigation. Plaintiffs’ Memo at 49. The Brazilian Exporters counter that there is no need for such a provision, because the Brazilian companies at issue in the investigation have now been “privatized.” Defendant-Intervenors’ Memo at 47-48. The Brazilian Exporters reason that, in order to make an equity infusion into one of those companies now, the Brazilian Government would have to obtain an equity position from a current private owner — at market value. Id. at 48. The Brazilian Exporters therefore conclude that it is a “practical impossibility” for the Brazilian Government to make countervailable “equity infusions.” Id. As the Domestic Producers note, however, that is not necessarily true. Rather than purchasing existing shares from current private owners, the Brazilian Government could instead buy new shares issued by the company. See Reply Memo at 32. Such a purchase would indeed confer a subsidy if the Brazilian Government paid above market value prices for the new shares. The defendant U.S. Government takes a different tack, contending in essence that any future domestic subsidies would be irrelevant to the Agreement. According to the Government, Commerce’s obligation is to monitor compliance with the terms of the Agreement — and the Agreement only imposes export limits and prohibits export subsidies or import substitution subsidies. In short, the Government argues, because the Agreement does not prohibit the bestowal of domestic subsidies, Commerce is not obligated to monitor them. Defendant’s Memo at 52-53. The Domestic Producers read Commerce’s monitoring obligations more broadly, asserting that “Congress required monitoring of a suspension agreement in order to ensure compliance both with its own terms and with the terms of the statute.” Reply Memo at 31 (citing H.R. Rep. No. 96-317 at 55, 66). The Domestic Producers note that the statute requires complete elimination of the injury from subsidized imports, see Reply Memo at 31 (citing 19 U.S.C. § 1671c(c)(1))—in this case, injury resulting from domestic subsidies. They therefore conclude that, since “[t]he provision of additional domestic subsidies would destroy the efficacy of the Agreement,” the Agreement cannot be practicably monitored in the absence of provisions requiring notification of the bestowal of such subsidies. Reply Memo at 31. The Domestic Producers’ second critique of the Agreement is that it includes no “provisions preventing circumvention through the use of swaps or transshipment through third countries, even though such provisions have been included in other countervailing duty suspension agreements.” Plaintiffs’ Memo at 49-50. Absent such provisions, the Domestic Producers assert that Commerce “will have no means to determine whether imports of the subject merchandise are exceeding the [Agreement’s] quota” of 295,000 metric tons per year. Id. at 50; Agreement, Part IV, 64 Fed. Reg. at 38,798. The Government and the Brazilian Exporters point to Part VI of the Agreement, entitled “Anticircumvention,” asserting that it “contains very broad language that addresses all types of circumvention that might occur.” See Defendant’s Memo at 53-54; DefendanNIntervenors’ Memo at 48-49 (citing Agreement, Part VI, 64 Fed. Reg. at 38,799-800). In particular, they note that the Agreement addresses transshipping by prohibiting Brazilian exporters from shipping steel “directly or indirectly” to the United States without an export license. Defendant-Intervenors’ Memo at 48 (citing Agreement, Part VI.A, 64 Fed. Reg. at 38,799-800). In addition, they note that the Agreement prohibits “any payments to one party for hot-rolled steel delivered or swapped by another party.” Defendant’s Memo at 53-54; Defendant-Intervenors’ Memo at 48-19 (citing Agreement, Part VI.B.4, 64 Fed. Reg. at 38,800) (emphasis supplied by Defendant-Interve-nors). But the Domestic Producers take little comfort in those provisions, noting that the Agreement provides only for the investigation of potential instances of anticircum-vention brought to the attention of Commerce. Reply Memo at 32-33 (citing Agreement, Part VI, 64 Fed. Reg. at 38,799-800). The Domestic Producers assert that, as a practical matter, the only interested parties with access to the information required to detect transshipment or swapping are the Brazilian Exporters— and the Agreement does not obligate them to report it. Reply Memo at 33. The Domestic Producers’ third challenge to the monitoring provisions of the Agreement goes to the definition of “violation.” They note that Commerce’s regulations define a violation as: ... noncompliance with the terms of a suspension agreement caused by an act or omission of a signatory, except, at the discretion of the Secretary, an act or omission which is inadvertent or inconsequential. Plaintiffs’ Memo at 50 (quoting 19 C.F.R. § 351.209(e)) (emphasis supplied by Plaintiffs). The Domestic Producers point out that the Agreement makes two changes — an addition and a deletion — to the definition in Commerce’s regulations. First, the Agreement defines “violation” to exclude not only noncompliance that is inadvertent or inconsequential, but also noncompliance that “does not substantially frustrate” the purposes of the Agreement. See Agreement, Part I.J, 64 Fed. Reg. at 38,798. The Domestic Producers argue that any frustration of the purposes of the Agreement — whether substantial or not— must be deemed a violation, because “if the purpose is frustrated the Agreement will neither completely eliminate or offset the subsidies nor eliminate their injurious effects, as required by the statute.” Plaintiffs’ Memo at 50-51. The Government and the Brazilian Exporters defend the Agreement’s definition of “violation.” The Brazilian Exporters argue generally that the Agreement “provides the Department with the necessary authority and discretion to determine and punish violations as it deems appropriate.” Defendant-Intervenors’ Memo at 49. The Government observes that the statute itself does not define “violation,” and asserts that “nothing from the statute or legislative history indicates that Congress intended Commerce to require strict compliance with suspension agreements.” Defendant’s Memo at 55. But the Government’s main argument is that, since courts do not overturn agency action for harmless error, it should be equally permissible for an agency to overlook harmless error committed by a party to a suspension agreement. Id. at 55. The Domestic Producers reject the Government’s analogy. According to the Domestic Producers, errors are “inadvertent,” and harmless errors are “inconsequential.” Reply Memo at 34. Thus, they reason, harmless error is fully covered by the exclusions for inadvertence and inconsequential noncompliance that appear in both the regulations and the Agreement. Id. The Domestic Producers conclude that noncompliance that “does not substantially frustrate the purpose of the agreement” is perforce an exclusion above and beyond harmless error, and is not permitted by Commerce’s own regulations. Id. The Domestic Producers also object to the omission of the phrase “at the discretion of the Secretary” from the Agreement’s definition of “violation,” expressing concern that the omission “suggests that it is no longer in [the Secretary’s] sole discretion whether a violation is inadvertent or inconsequential.” Plaintiffs’ Memo at 51. But the Government contends that the Domestic Producers are reading too much into the omission, and that their fears are unfounded. According to the Government, the plain language of the Agreement makes it clear that Commerce retains the discretion to determine whether a violation has occurred. Defendant’s Memo at 54-55 {quoting Agreement, Part X, 64 Fed. Reg. at 38,801: “[i]f the DOC determines that this Agreement is being or has been violated ...”). Although the issue of the practicability of effective monitoring has been fully briefed before the Court, it is not yet ripe for judicial review. For the reasons discussed in section IV.A above, this case is being remanded to allow Commerce to reconsider the Suspension Agreement and the underlying Suspension Determination. On remand, Commerce will have the opportunity to articulate its interpretation of the monitoring provisions of the statute and to reconsider its determination, giving due consideration to all of the petitioners’ comments' — including those on the monitoring provisions of the Agreement — with the benefit of the further amplification and explication of the Domestic Producers’ briefs before the Court. C. Extraordinary Circumstances Subsection (c) agreements are limited to cases involving “extraordinary circumstances” — that is, “circumstances in which — (i) suspension of an investigation will be more beneficial to the domestic industry than continuation of the investigation, and (ii) the investigation is complex.” 19 U.S.C. §§ 1671e(c)(1), 1671c(c)(4)(A). The Domestic Producers contest both parts of Commerce’s determination that extraordinary circumstances are present in this case. 1. Whether the Agreement Is More Beneficial to the Domestic Industry than Continuation of the Investigation As a threshold matter, the Domestic Producers contend that the petitioners’ consent is required for a subsection (c) agreement — that is, that the petitioning domestic industry wields “veto power” over suspension agreements such as the Agreement at issue here. Reply Memo at 3-9; Tr. at 15-19. In short, the Domestic Producers claim that their opposition is, in and of itself, sufficient to defeat the Agreement. Reply Memo at 15. In support of that argument, the Domestic Producers invoke both the legislative history of the suspension agreement statute, and Commerce’s past practice in the application of the statute. See Reply Memo at 3-9. On its face, the language of the suspension agreement statute “entrust[s] the ‘more beneficial’ determination to Commerce, and ... [does] not expressly accord the domestic industry a veto power.” Bethlehem Steel v. United States, 146 F.Supp.2d 927, 947-48 (CIT 2001) (footnotes omitted). However, as the Domestic Producers emphasize, Senator Heinz observed in an orchestrated colloquy immediately preceding the Senate vote on the legislation that he “would find it very difficult to believe a judgment that the domestic industry would benefit more from a suspension agreement than a completed investigation if that industry had expressed its opposition to such an action.” Reply Brief at 3 (quoting 125 Cong. Rec. 20,168 (1979)). While the Government and the Brazilian Exporters here seek to minimize the Senator’s observation (DefendanNIntervenors’ Memo at 21-22; Tr. at 37, 40, 66-67), the Domestic Producers point out that “the Department previously has not only given great weight to Senator Heinz’ statement, but concluded that it requires securing the agreement of petitioners.” Reply Brief at 6. Specifically, the Domestic Producers point to the “Powell Memorandum,” prepared by Commerce’s Chief Counsel for Import Administration in a 1992 antidump-ing investigation of uranium from the former Soviet Union. See Reply Memo at 6-7. Outlining various options for settlement of that case and anticipating industry opposition to a subsection (c) agreement, the Powell Memorandum cited Senator Heinz’s statement and cautioned that “[t]he legislative history of this [‘more beneficial’] provision indicates that Congress arguably intended it to require that the domestic industry consent to this type of agreement.” See Powell Memorandum (Reply Memo at Exhibit 1) at 1, 4. The Powell Memorandum therefore recommended in that case that Commerce enter into agreements under the special non-market economy (“NME”) provisions of the suspension agreement statute, which do not include a “beneficiality” requirement. Id. The Executive Summary of the Powell Memorandum, in particular, reinforces the view that the consent of the domestic petitioners is required for a subsection (c) agreement: [M]ost options carry procedural requirements. These include: securing the agreement of the domestic petitioner; finding that the agreement is in the public interest as specifically defined by the statute; and ensuring that the agreement is effectively monitorable. Taking these difficulties into account, only the settlement option that Congress crafted specifically for nonmarket economies ... appears capable of settling the investigation. Powell Memorandum at 1 (quoted in Reply Memo at 7-8; emphasis supplied by Plaintiffs). Indeed, as the Powell Memorandum counseled, Commerce avoided the benefi-ciality requirement in the uranium case by entering into an NME suspension agreement. See Uranium from Kazakhstan, Kyrgyzstan, Russia, Tajikistan, Ukraine and Uzbekistan, 57 Fed. Reg. 49,220 (Dep’t Commerce 1992) (suspension notice). Moreover, the Domestic Producers note, Commerce’s prior practice is consistent with the Powell Memorandum. From the Powell Memorandum in 1992, up to the suspension agreements at issue in this case and in the companion antidumping case, Commerce sought and secured the consent of the domestic petitioners to every other subsection (c) agreement. Reply Memo at 8 n. 27. Accordingly, the Domestic Producers assert that “the legislative history, as well as the uniform and consistent practice of the Department, mandates that the Department secure the consent of the petitioners” before entering into a subsection (c) agreement such as the Agreement here. Reply Memo at 8-9. At a minimum, even if it does not accord petitioners the power to veto a proposed subsection (c) agreement, the “beneficiality” requirement constitutes a very high hurdle for Commerce where, as here, the Domestic Producers maintain that the Agreement is not “more beneficial” than an order. As in the companion antidumping suspension agreement case, Commerce’s “beneficiality” determination in this case rests on its findings that the Agreement provides greater relief and greater certainty than would an antidumping order. Defendant’s Memo at 6-7, 29-30 (citing Extraordinary Circumstances Memo). In making those findings, Commerce relied solely on the analysis set out in its Public Interest Memorandum. See Extraordinary Circumstances Memorandum. According to Commerce, the Agreement affords the Domestic Producers greater relief than a countervailing duty order because it protects them from “future exchange rate-driven surges of Brazilian hot-rolled steel.” Defendant’s Memo at 30 (citing Public Interest Memo). But the Government points to no record evidence to substantiate Commerce’s premise — that exchange rate fluctuations were the cause of the surges of Brazilian steel. And, as the Domestic Producers observe, “the injury to the domestic industry in a countervailing duty case comes from the fact that the imports are subsidized, not from the fact that the exchange rate may fluctuate.” Plaintiffs’ Memo at 47. See generally Bethlehem Steel, 146 F.Supp.2d at 944-945. The other asserted benefit, according to Commerce, is greater certainty for the domestic industry. Alluding to the “reference price” provision of the suspension agreement in the related antidumping proceeding, Commerce emphasizes that U.S. producers will benefit from “a set level of relief that will remain in force over the life of the Agreements.” Defendant’s Memo at 30 (citing Public Interest Memo). According to Commerce, “[t]his would not be the case under AD/CVD orders where import levels and prices could vary dramatically from period to period, depending upon a variety of factors that could affect dumping and subsidy rates found.” Defendant’s Memo at 30 (citing Public Interest Memo), 46. At the outset, the Domestic Producers contest Commerce’s asserted right to rely on the alleged benefits of the antidumping suspension agreement in evaluating this Agreement. And they counter that, in any event, “it is unclear how a ‘set level of relief is more beneficial to U.S. producers than the full relief available from a countervailing duty order.” Plaintiffs’ Memo at 32 n. 81, 46 (emphasis in the original). Further, as discussed in Bethlehem Steel, 146 F.Supp.2d at 945, certainty is not, in and of itself, a virtue; that is, certainty is not always better than uncertainty. Moreover, any suspension agreement will, by definition, produce certainty. Thus, if mere certainty suffices to make a suspension agreement “more beneficial” to the domestic industry than continuation of an investigation, a suspension agreement would be permissible in any countervailing duty proceeding. Clearly, that was not the intent of Congress. See S.Rep. No. 96-249 at 54 (“suspension is an unusual action which should not become the normal means of disposing of cases”). Subsection (c) agreements, in particular, are reserved for cases involving “extraordinary circumstances.” 19 U.S.C. § 1671c(c)(4); S. Rep. No. 96-249 at 54, 1979 U.S.C.C.A.N. at 440 (subsection (c) agreements to be accepted only “very rarely”); H.R. Rep. No. 96-317 at 55 (extraordinary circumstances determination to “be made rarely and only upon a compelling showing”). In short, Commerce cannot logically rely on a fact that is true with respect to any investigation as the basis for its determination that a particular case involves extraordinary circumstances. As the House Committee on Ways and Means emphasized: [T]he [“more beneficial’] provision is not intended to be so general as to be meaningless. For example, the expenses saved because of prompt settlement of a case or the certainty of prompt relief may make settlement more beneficial than continuation of the investigation. However, every suspension of an investigation results in prompt, certain relief and reduced expenses. The Committee does not intend that for this reason every agreement be deemed more beneficial to domestic industry. H.R. Rep. No. 96-317 at 65 (emphasis supplied) (concerning suspension of anti-dumping investigations); see also id. at 54 (discussion of “beneficiality” requirement in context of suspension of antidumping investigations applies with equal force to countervailing duty investigations). The Brazilian Exporters place great emphasis on the Agreement’s quota, which (since October 1, 1999) has limited exports to the United States to 295,000 metric tons per year. See Agreement, Part IV, 64 Fed. Reg. at 38,798. They first contend that the quota caps Brazilian steel exports at “a significant reduction in tonnage” below 1997 and 1998 levels. Defendant-In-tervenors’ Memo at 12-13. The Domestic Producers counter that “unfairly traded imports were surging in 1997 and 1998,” arid that — using 1995 and 1996 as the baseline instead — the quota fixed in the Agreement “exceeds the historical norm by a whopping 53 percent.” Reply Memo at 10. Similarly, the Brazilian Exporters note that a countervailing duty order places no limit on import volumes, so that importers would be free to import as much Brazilian steel as they wish so long as they paid the requisite duties. Defendant-Intervenors’ Memo at 13-14; see also Tr. at 63 (counsel for Government argues that Agreement “limit[s] market share in a way that a CVD order never could”). However, as the Domestic Producers point out, an order would subject every single ton of subsidized steel to the payment of countervailing duties, while the Agreement permits 295,000 metric tons (325,248 short tons) of subsidized steel to enter the United States every year free of such duties. Reply Memo at 11. Finally, the Brazilian Exporters claim that the Agreement’s quota imposes an “absolute and consistent cap” on the quantity of Brazilian steel that may enter the United States in any given year, while— under an order — the eountervailable subsidies would be amortized over time, so that countervailing duties would decline and it would become increasingly easier for Brazilian producers to export to the United States. DefendanNIntervenors’ Memo at 14. But the Domestic Producers dispute that alleged benefit as well, arguing, first, that — under an order — the subsidy rate could be reduced only if an administrative review were conducted; and, second, if such a review were conducted, the subsidy rate would in fact increase to the extent that new domestic or other subsidies were found. Reply Memo at 11-12. The Brazilian Exporters also highlight as a benefit of the Agreement the Brazilian Government’s “agreement not to bestow ... export and import substitution subsidies, and to notify the Commerce Department any time it has reason to believe that such subsidies exist.” Defendant-Intervenors’ Memo at 16 (referring to Agreement, Part III.C, 64 Fed. Reg. at 38,798). According to the Brazilian Exporters, that undertaking “avoids the costly and time-consuming mechanism of administrative reviews to determine the existence of future countervailable benefits.” Id. The Domestic Producers retort that export and import substitution subsidies were not the cause of the injury at issue in the investigation (and are therefore irrelevant), and that the Agreement’s related notification requirements simply restate certain of the Brazilian Government’s pre-existing WTO obligations. Reply Memo at 12-13. Moreover, the Domestic Producers note, Commerce would still have to conduct an administrative review to determine the increased subsidy rate. Id. at 13. As discussed in section IV.A above, this case is being remanded to enable Commerce to reconsider its Suspension Determination, giving due consideration to petitioners’ comments and undertaking any further consultation that may be appropriate. On remand, Commerce will have the opportunity at the administrative level to explain its interpretation of the “more beneficial” requirement, in light of the statute’s legislative history and Commerce’s own prior practice. More importantly, Commerce will have the opportunity to detail, in light of petitioners’ comments (and with the benefit of their amplification before the Court), precisely why the Agreement is more beneficial to the domestic industry than a countervailing duty order- — even though at least a substantial segment of the domestic industry believes that it is not. 2. Whether the Investigation Was Complex Even if Commerce properly concluded that the Agreement is more beneficial to the domestic industry than continuation of the investigation, that would not suffice to constitute the “extraordinary circumstances” required to justify a subsection (c) agreement. Commerce must also determine that the investigation is “complex.” 19 U.S.C. § 1671c(c)(4). The Domestic Producers vigorously contest that determination in this case. For purposes of the statute, an investigation is deemed “complex” if “(i) there are a large number of alleged countervaila-ble subsidy practices and the practices are complicated, (ii) the issues raised are novel, or (iii) the number of exporters involved is large.” 19 U.S.C. § 1671c(c)(4)(B). Commerce apparently relied on the first two criteria in determining that the investigation here at issue was complex. See Extraordinary Circumstances Memo. (i) Whether There Were A Large Number of Complicated Subsidy Practices At Issue As to criterion (i) — the number and complexity of the subsidy practices alleged— Commerce’s Extraordinary Circumstances Memorandum stated that the investigation here involved “four programs” and “complex issues concerning affiliation and the privatization of three separate companies.” But the parties cannot agree even as to number of subsidy “practices” at issue— much less whether or not that number is “large.” The Domestic Producers contend that the number of practices is actually lower than Commerce suggests. Specifically, the Domestic Producers maintain that the four “programs” actually constitute only two “practices”: equity infusions and tax deferrals. Plaintiffs’ Memo at 34-36; Reply Memo at 16. In any event, they argue — whether the number of practices is two or four^ — neither number is a “large number” within the meaning of the statute. Plaintiffs’ Memo at 36; Reply Memo at 16. The Brazilian Exporters, in turn, assert that Commerce significantly understated the number of programs at issue in the investigation. Defendant-Intervenors’ Memo at 23-31. And the Government claims that sometimes a single “program” may involve numerous “subsidy practices,” which they assert was the fact in this case. Defendant’s Memo at 34. The Domestic Producers condemn as pure post hoc rationalization the Government’s efforts to' treat as a “multitude” of “practices” the four “programs” mentioned in the Extraordinary Circumstances Memorandum. Reply Memo at 16-17. As the Domestic Producers note, Commerce justified its “extraordinary circumstances” determination on the basis of four “programs,” and said nothing about any of those programs involving more than one “practice.” M Unless the Extraordinary Circumstances Memorandum’s reference to “programs” is read as a synonym for “practices,” Commerce made no determination as to the number of practices at issue in the investigation and therefore could not rely on the first criterion for finding “extraordinary circumstances” in this case. But there is no need to reach that issue here. For the reasons set forth in section IV.A above, this case is being remanded. On remand, Commerce will have the opportunity to articulate its interpretation of the statute’s reference to a “large number,” as well as its definition of a “practice” (as the term is used in the statute), with the benefit of petitioners’ comments (as amplified in their briefs before the Court). Even if the investigation in fact involved a large number of alleged subsidy practices, criterion (i) would be satisfied only if those practices were also “complicated.” 19 U.S.C. § 1671c(c)(4)(B)(i). In its Extraordinary Circumstances Memorandum, Commerce stated that the investigation here involved “complex issues concerning affiliation and the privatization of three separate companies.” The Government’s brief seeks to amplify that statement, by explaining that the respondents were part of a complex web of intercorporate relationships. Defendant’s Memo at 35. The Government further notes that the respondents were privatized, and claims that “[t]he unique transactions that gave rise to [the] various changes in ownership were exceedingly complex.” Id. The Domestic Producers counter that Commerce was already familiar with many of the relevant facts from prior investigations, greatly simplifying the review of respondents’ affiliations and privatizations. Reply Memo at 22. Moreover, they note, Commerce largely resolved the affiliation and privatization issues in the Preliminary Determination. Thus, suspending the investigation did not spare Commerce from the need to address those allegedly “complicated” issues. M Because the case is being remanded, there is no need to determine whether — on this record — Commerce properly determined that the subsidy practices at issue were complicated. On remand, Commerce will have the opportunity to revisit the issue, with the benefit of petitioners’ comments (as amplified here), and to articulate clearly the basis for whatever determination it may make. (ii) Whether the Issues Raised Were Novel The Government argues in the alternative that — even if the investigation did not involve a large number of complicated subsidy practices — Commerce’s determination that the investigation was “complex” nevertheless must be sustained because Commerce properly found that it involved issues that were “novel.” See generally Defendant’s Memo at 37-40; 19 U.S.C. § 1671c(c)(4)(B)(ii). Specifically, the Government relies on Commerce’s statement in the Extraordinary Circumstances Memorandum that the investigation “involve[d] complex issues concerning affiliation and the privatization of three separate companies.” The Domestic Producers maintain that this was a run-of-the-mill countervailing duty investigation, and vigorously dispute the notion that any “novel” issues were presented. They emphasize that Commerce had addressed the issues raised by affiliation in several prior investigations and, indeed, that it had previously investigated in other cases many of the relevant facts concerning the very affiliations involved in this case. Plaintiffs’ Memo at 39-40. The Government dismisses the prior an-tidumping cases as irrelevant, arguing that “affiliation” in an antidumping duty context differs from “affiliation” in a countervailing duty context. Defendant’s Memo at 38-39. The Government asserts that the support for the Domestic Producers’ argument is thus reduced to one prior countervailing duty case where Commerce addressed affiliation; but the Government seeks to distinguish even that case because it didn’t involve any of the companies in this case, or the types of relationships at issue here. M The Domestic Producers are equally adamant that the investigation raised no novel issues concerning privatization. They point to the numerous opinions on the subject rendered in recent years by the U.S. Court of Appeals for the Federal Circuit, and note that Commerce itself has devoted much time and effort to the development and defense of its privatization methodology. Plaintiffs’ Memo at 40-41. While they concede that the subject has been contentious, the Domestic Producers observe that the statutory test for complexity is novelty, not controversy. Id. at 41. The Domestic Producers further note that Commerce even had familiarity with Brazil’s privatization program from a prior investigation and, in fact, drew on that experience in this investigation. Id. The Government emphasizes that Commerce’s prior investigation involving Brazil’s privatization program was limited to the partial privatization of USIMINAS. Later partial privatizations of USIMINAS had to be addressed in this investigation, as did the