Full opinion text
OPINION AND ORDER RESTANI, Judge: This action challenges the Department of Commerce’s (“Commerce”) final determination in a countervailing duty (“CVD”) investigation of certain pneumatic off-the-road (“OTR”) tires from the People’s Republic of China (“PRC”). See Certain Pneumatic Off-the-Road Tires from the People’s Republic of China, 72 Fed. Reg. 44,122 (Dep’t Commerce Aug. 7, 2007) (initiation of CVD investigation); Certain New Pneumatic Off-the-Road Tires from the People’s Republic of China, 73 Fed. Reg. 40,480 (Dep’t Commerce July 15, 2008) (“Final Determination”)-, see also Issues and Decision Memorandum for the Final Affirmative Countervailing Duty Determination: Certain New Pneumatic Off-the-Road Tires (OTR Tires) from the People’s Republic of China, C-570-913, POI: 1/01/06-12/30/06 (July 7, 2008), available at http://ia.ita.doc.gov/frn/summary/ prc/E8-16154-l.pdf (last visited Dec. 21, 2012) (“I & D Memo ”) GPX International Tire Corporation (“GPX”), Hebei Starbright Tire Co., Ltd. (“Starbright”) and Tianjin United Tire & Rubber International Co. Ltd. (“TUTRIC”) (collectively “Plaintiffs”) challenge various aspects of the Final Determination and the Final Results of Redetermination Pursuant to Remand (Apr. 26, 2010), available at http://ia.ita.doc.gov/remands/09-103.pdf (last visited Dec. 21, 2012) (“First Remand”). They also challenge the constitutionality of a new law passed during the course of this litigation. See Pub. L. No. 112-99, 126 Stat. 265-66 (2012) (the “New Law”) (The New Law is attached as an appendix to this opinion.). Defendant as well as Titan Tire Corporation and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO-CLC (collectively “Titan”) and Bridgestone Americas, Inc. and Bridge-stone Americas Tire Operations, LLC (collectively “Bridgestone”) oppose the Plaintiffs’ claims, and Titan and Bridgestone have filed their own challenges to the Final Determination, For the reasons set forth below, the court finds that the New Law is constitutional but remands to Commerce to re-analyze whether countervailable subsidies were extinguished and, if not, to explain or reconsider its calculation of the resulting CVD rates. BACKGROUND The court assumes general familiarity with the long procedural history of this case that was first filed in 2008. For ease of understanding, however, a summary is provided below. Plaintiffs first filed this case in 2008, challenging Commerce’s Final Determination. The investigation into Plaintiffs’ product was one of the first cases in which Commerce imposed CVDs on products from the PRC after determining that it was possible to identify and measure subsidies in China. Commerce altered its previous practice, in which it did not apply CVD in non-market economies (“NME”), relying instead in those cases on its NME AD methodology to remedy unfair trade practices. Commerce based its change in policy on the evolution of China’s economy from a centrally-controlled monolithic economy towards a market economy. This court initially determined that Commerce’s imposition of CVDs was based on an unreasonable interpretation of the Tariff Act of 1930, as amended, unless Commerce developed a methodology to ensure that goods covered by concurrent AD and CVD orders would not be subject to overlapping remedies. GPX Int’l Tire Corp. v. United States, 645 F.Supp.2d 1231, 1251 (CIT 2009) (“GPX II”). Upon remand, Commerce informed the court that it did not have a method for identifying any overlapping remedies, and therefore, it decided under protest to offset AD rates by the calculated CVD rates. GPX Int’l Tire Corp. v. United States, 715 F.Supp.2d 1337, 1345 (CIT 2010) (“GPX III”). Because this was contrary to law and rendered the CVD investigation and resulting duties meaningless, the court ordered Commerce to forgo the imposition of CVDs in this case. Id. at 1354. Under protest again, Commerce complied, and this court issued final judgment sustaining that determination. GPX Int’l Tire Corp. v. United States, Slip Op. 10-112, 2010 WL 3835022 (CIT Oct. 1, 2010) (“GPX IV”). On appeal, the Court of Appeals for the Federal Circuit (“CAFC”) initially affirmed the decision of this court, although upon different grounds. GPX Int’l Tire Corp. v. United States, 666 F.3d 732, 745 (Fed.Cir.2011) (“GPX V”). In its opinion, the CAFC determined that the CVD statute unambiguously prohibited Commerce from imposing CVDs on goods from China, finding that Congress had ratified Commerce’s prior practice when amending the Tariff Act. Id. After the panel opinion was filed in the CAFC but before the court’s mandate was issued, the Secretary of Commerce and U.S. Trade Representative sent urgent letters to Congress seeking an amendment of the law to reverse the decision of the CAFC. See Letter from Secretary of Commerce John Bryson and U.S. Trade Representative Ron Kirk, Jan. 18, 2012, attached to Resp. of Titan Tire Corp. and the United Steelworkers Union, Qua Def-Intvnrs., to the Rule 56.2 Mots, of GPX, Starbright, and TUTRIC, Qua Pis. Asserting Constitutional Claims in Accord, with this Hon. Ct.’s Order of July 3, 2012 (“Titan Br.”). While a petition for rehearing en banc was pending, Congress enacted the New Law. The law was adopted after limited debate on the House floor and without any comment in the Senate. See 158 Cong. Rec. H1166-73 (daily ed. Mar. 6, 2012). The New Law contains two sections. Section 1 amends the Tariff Act of 1930 to require Commerce to impose CVDs on identified subsidies from NMEs. New Law, 126 Stat. 265-66. The section does provide an exception to this requirement when “the administering authority is unable to identify and measure subsidies provided by the government of the non-market economy country or a public entity within the territory of the nonmarket economy country because the economy of that country is essentially comprised of a single entity.” Id. Section 2 “requires” Commerce to account for potential overlapping remedies by reducing the AD rate to the extent that Commerce is able to reasonably estimate the amount that the countervailable subsidy has increased the “normal value” used in the NME AD methodology. Id. Although the Section 2 of the statute applied only prospectively as of March 13, 2012, Congress made Section 1 effective beginning November 20, 2006. Id. The CAFC requested additional briefing on the impact of the new law. GPX Int’l Tire Corp. v. United States, 678 F.3d 1308, 1311 (Fed.Cir.2012) (“GPX VI”). In opposing rehearing, Plaintiffs raised issues regarding the constitutionality of the New Law, focusing primarily on the different effective dates of the two sections of the statute. Id. at 1312-13. Because the constitutional issues were raised for the first time in the petition for rehearing, the CAFC agreed with the government that it should remand the case to this court to evaluate the claims in the first instance. Id. Accordingly, the CAFC vacated the previous judgment of this court and remanded. CAFC Mandate of June 4, 2012, Docket No. 353. On remand from the CAFC, GPX claims that the New Law is unconstitutional for three reasons. See Resp’t Pis.’ Supplemental Mem. of Points and Auths. in Supp. of their Mot. for J. on the Agency R. 2 (“GPX Br.”). GPX argues that the law violates the Ex Post Facto Clause of the Constitution, as well as due process and equal protection rights of the Fifth Amendment. Id. TUTRIC argues only that the law violates equal protection. See Br. on Constitutional Issues of Co-Pi. Tianjin United Tire & Rubber Int’l Co., Ltd. 1 (“TUTRIC Br.”). The government contends first that the law is not retrospective because it merely clarified existing law that both this court and the CAFC misinterpreted. See Def.’s Br. 3-4. Additionally, Defendant argues that even if the law is retrospective, it does not violate any of Plaintiffs’ constitutional rights. Id. at 12. Intervenor Defendant Titan largely reiterates the arguments of the government in support of the constitutionality of the legislation, while Bridgestone did not file additional briefs on the constitutional issues. See Titan Br. 8-29. The parties further disagree on the issue of severability should Section 1 of the law be found unconstitutional. Because the court upholds the constitutionality of the New Law, it will also return to the remaining CVD issues raised by the parties in the initial rounds of briefing in this matter. The parties certified that because those issues have already been fully briefed, no additional briefing was needed during this remand. GPX’s Resp. to Ct. Order dated June 21, 2012 (June 29, 2012), Docket No. 360; Def.’s Resp. to Ct. Order Regarding Scheduling of Remand Proceedings, Letter of June 29, 2012, Docket No. 361. Following oral argument, however, the court offered parties an opportunity to submit letters identifying relevant cases decided after the CVD issues were briefed. None were submitted. STANDARD OF REVIEW The court has continuing jurisdiction under 28 U.S.C. § 1581(c). This court reviews constitutional challenges de novo, with a presumption that Congress has constitutionally enacted the challenged statute in accordance with substantive due process. See Concrete Pipe & Prods. v. Constr. Laborers Pension Trust for S. Cal, 508 U.S. 602, 637, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993); NationsBank of Tex., N.A. v. United States, 269 F.3d 1332, 1335 (Fed.Cir.2001). The court will uphold a statute as constitutional unless the plaintiff shows that the statute lacks any rational basis for serving a legitimate government interest, and therefore, Congress has acted “in an arbitrary and irrational way.” Concrete Pipe, 508 U.S. at 637, 113 S.Ct. 2264. With respect to equal protection claims, though at times a heightened standard of review may apply, Plaintiffs do not claim that a fundamental right is abridged or that they are part of any suspect class. GPX Br. 28; TUTRIC Br. 6. Therefore, the statute will also be upheld as constitutional on this claim unless it is not supported by any rational basis. See Armour v. City of Indianapolis, — U.S.-, 132 S.Ct. 2073, 2080, 182 L.Ed.2d 998 (2012). A rational basis may be found if: 1) “there is a plausible policy reason for the classification;” 2) “the legislative facts on which the classification is apparently based rationally may have been considered to be true by the governmental decisionmaker;” and 3) “the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational.” Id. In reviewing Commerce’s Final Determination and First Remand imposing CVDs, this court shall hold unlawful any determination by Commerce that is “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(l)(B)(i). DISCUSSION I. Constitutional Issues A. Retroactivity of the New Law A fundamental disagreement between the Plaintiffs and the government/Intervenor Defendants exists over the operative effects of the New Law. The government dismisses virtually all of the Plaintiffs’ challenges to the New Law by arguing that it was merely a clarification rather than a modification of existing law. Def.’s Br. 3-8. In doing so, the government claims that both the CAFC and this court erred in deciding that Commerce was not permitted to impose CVDs in NMEs without any form of adjustment to account for concurrent NME AD determinations. Id. It argues, therefore, that the court need not consider arguments based on the retroactivity of Section 1. Id. Plaintiffs contend that the decisions of this court and of the CAFC make clear that Section 1 of the law is a modification to existing law, retroactively effective nearly six years prior to its enactment. Resp’t Pis.’ Reply to Resp. Brs. of Def. & Def-Intvnrs. Concerning Constitutional Issues (“GPX Reply Br.”) 2-6. A law is retrospective in nature when “the new provision attaches new legal consequences to events completed before its enactment.” Landgraf v. USI Film Prods., 511 U.S. 244, 269-70, 114 S.Ct. 1488, 128 L.Ed.2d 229 (1994) (noting that the sound instincts of judges in deciding such cases are guided by “familiar considerations of fair notice, reasonable reliance, and settled expectations”). In evaluating the substance of prior law, courts must balance their independent interpretations with those expressed by the amending Congress. In Marbury v. Madison, Chief Justice John Marshall explained, “It is emphatically the province and duty of the judicial department to say what the law is.” 5 U.S. 137, 177, 1 Cranch 137, 2 L.Ed. 60 (1803). Based on this principle, the Supreme Court has repeatedly held that although Congress’ contemporary interpretation of a previously enacted statute is entitled to great weight, it is not conclusive or binding upon the courts. FHA v. Darlington, Inc., 358 U.S. 84, 89-90, 79 S.Ct. 141, 3 L.Ed.2d 132 (1958) (“Subsequent legislation which declares the intent of an earlier law is not, of course, conclusive in determining what the previous Congress meant. But the later law is entitled to weight when it comes to the problem of construction.”); United States v. Stafoff, 260 U.S. 477, 480, 43 S.Ct. 197, 67 L.Ed. 358 (1923) (“Of course a statute purporting to declare the intent of an earlier one might be of great weight in assisting a Court when in doubt, although not entitled to control judicial action.”). To support its argument that the New Law was merely a clarification, the government points to several statements by members of Congress indicating that the law was intended to reverse an erroneous decision of the CAFC. Def.’s Br. 6-7. The government also cites statements by members who explain that the law seeks to “clarify” existing law and that the new law “should not have been necessary.” Id. at 7. Courts, however, have been wary to rely upon limited statements of a few members of Congress. See, e.g., Corley v. United States, 556 U.S. 303, 329-30, 129 S.Ct. 1558, 173 L.Ed.2d 443 (2009) (recognizing that floor statements by a few members do not necessarily reflect the understanding of the entire Congress). Such hesitation is particularly warranted in a case like this where there was no Senate debate at all and only very limited statements in the House. Further, the use by Congress of an effective date for Section 1 that predates the statute’s enactment by nearly six years is an indication that Congress felt the need to confirm that the law was a modification. Such a provision was needed to overcome the general presumption against retroactivity that typically applies to economic legislation, absent express congressional intent to the contrary. See Landgraf, 511 U.S. at 269-70,114 S.Ct. 1483. The government’s argument is also difficult to square with the remand from the CAFC to consider the constitutionality of the New Law. If the New Law made no change to the law applicable to cases arising between the two effective dates of the New Law, there were no valid expectations at the time of importation to be upset and no significant constitutional issues to be addressed. In such a case, one would expect the appellate court to quickly dispose of the issue, as it did with respect to another constitutional issue, see supra note 7, rather than remanding the issue to this court for elaboration. Further, the government’s view of a simple clarification is not easily extracted from the tangled history of this case. First, the CAFC did not vacate GPX V, even though requested to do so. See GPX VI, 678 F.3d at 1313. Second, it did say in GPX VI that GPX V was undoubtedly overruled by Congress, but it did not say its view of the prior law was wrong. Id. at 1311-12. Third, unlike its GPX V opinion, in a footnote in GPX VI, it did declare the more flexible approach this court derived from Georgetown Steel wrong, but it provided no analysis on that point in either GPX V or GPX VI, so it is difficult to say what exactly, in the appellate court’s view, was incorrect in this court’s opinions interpreting prior law. See id. at 1312 n. 3. The CAFC did appear to view Section 2 of the New Law, which is expressly prospective, as a change from prior law. Id. at 1311-12. At the same time, it seems to have equated the Section 2 adjustment as encompassing all possible remedies for a potential overlap between CVD and NME AD law, such that Congress has permitted no adjustments to cure the possible overlap in this case and similarly situated cases. Id. This broad view of the scope of Section 2 and of the implied limitation on the pending, cases is somewhat supported by the limited legislative history of the New Law indicating that the Congress did not wish to upset Commerce’s decision to apply CVD law here without the Section 2 adjustment (or any other adjustment). See 158 Cong. Rec. H1166, 1170, 1173 (daily ed. Mar. 6, 2012) (statements of Rep. Critz and Rep. Turner). Because of the effect on this pending case, one should consider if Section 2 is only a clarification of prior law and not a change, but as indicated, the appellate court said, even if cryptically, that Section 2 was a prospective change, with no Section 2 adjustments possible under prior law. Putting that together with the CAFC’s seemingly broad view of what Section 2 does, one comes to the conclusion that no adjustment was permitted under prior law, for whatever reason, and an adjustment is now required or permitted for future cases. Thus, only the basic question remains as to whether Section 1, which because of its clear retrospective effective date, is a change in prior law or a clarification of it. As indicated, this is simply not clearly decided by the CAFC and the best approach for reason of judicial economy, and to make sure that the court obeys the direction of the CAFC to consider constitutional issues, is to view Section 1 of the New Law as a retrospective change in the law, and not a clarification. That is, the court will assume that at the time of importation, the law was as stated in GPX V, i.e., CVD remedies were not permitted. In sum, given the difficulties in concluding that Section 1 and the implied retrospective effects of Section 2 are together a simple clarification of prior law, the court will proceed to analyze the constitutionality of the New Law assuming, at least arguendo, that the New Law effected a retroactive change in the law. This enables the court to directly address the issues it concludes were remanded to it by its court of appeals. Failure of Plaintiffs on such issues would render the question of a retroactive change versus mere clarification in the law irrelevant. B. Ex Post Facto GPX contends that Section 1 of the New Law violates the Ex Post Facto Clause of the Constitution because it effectively penalizes certain importers for past conduct. GPX Br. 9-19. The government and Titan argue that the New Law is remedial in nature and therefore not subject to the proscriptions of the Ex Post Facto Clause. Def.’s Br. 12-16; Titan Br. 20-24. GPX has failed to demonstrate that the law falls within the scope of the Ex Post Facto Clause. Article I Section 9 of the Constitution provides that “No Bill of Attainder or ex post facto Law shall be passed.” This clause, however, does not prohibit the imposition of all retrospective laws. Instead, the clause only prohibits the imposition of retrospective penal legislation, which often, though not always, takes the form of criminal law. See NationsBank of Tex., 269 F.3d at 1336 (citing Colder v. Bull, 3 U.S. 386, 390-91, 3 Dall. 386, 1 L.Ed. 648 (1798)). By contrast, retroactive remedial laws are not prohibited by the clause. When a law is not facially penal, the plaintiff must show by the “clearest proof’ that the law is “so punitive either in purpose or effect as to negate the State’s intention to deem it ‘civil.’ ” Smith v. Doe, 538 U.S. 84, 92, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (internal brackets omitted). The CAFC has outlined a three-part test for evaluating whether a law is effectively penal. Huaiyin Foreign Trade Corp. v. United States, 322 F.3d 1369,1380 (Fed.Cir.2003). An otherwise remedial law becomes subject to the ex post facto clause if: “(1) the costs imposed are unrelated to the amount of actual harm suffered and are related more to the penalized party’s conduct, (2) the proceeds from infractions are collected by the state, rather than paid to the individual harmed, and (3) the statute is meant to address a harm to the public, as opposed to remedying a harm to an individual.” Id. In this case, all parties agree that the trade remedy laws are generally remedial in nature. GPX Reply Br. 6. Furthermore, GPX asserts that all parties agree that under the Huaiyin test, the duties meet the latter two prongs. Id. This latter point has not been conceded entirely by the government because, although the government collects the funds, the trade remedy laws are intended to primarily protect individual domestic industries rather than the public at large. Therefore, GPX must show that the New Law satisfies both prong one and prong three of the Huaiyin test. It has failed to do so. Both this court and the CAFC have consistently upheld the trade remedy laws as remedial and not punitive in nature. See Chaparral Steel Co. v. United States, 901 F.2d 1097, 1103-04 (Fed.Cir. 1990); Peer Bearing Co. v. United States, 182 F.Supp.2d 1285, 1310 (CIT 2001); Badger-Powhatan v. United States, 608 F.Supp. 653, 656 (CIT 1985). This conclusion stems, in part, from the detailed calculations required of Commerce to establish a duty rate that reasonably offsets the effects of foreign subsidies or dumping. See Chaparral, 901 F.2d at 1103-04 (citing S.Rep. No. 1221, 92d Cong., 2d Sess. 8 (1972)). Accordingly, it is clear from the case law that regular AD/CVD duties would certainly meet this standard. Id. Additionally, it is clear that the amount of duties need not be a perfect match to the harm caused in order to remain classified as remedial. Huaiyin, 322 F.3d at 1380 (establishing as penal only penalties that are “unrelated” to the actual harm). Within virtually all trade remedy investigations, perfect information is rarely available and reasonable estimates must be made. Certain aspects of the trade remedy laws also permit Commerce to look to surrogate data sources or allow the use of adverse inferences, which may increase the level of the duty assessed. See, e.g., 19 U.S.C. §§ 1677b, 1677e. These adjustments, however, do not transform the duty into a punitive measure provided the duty remains reasonably related to the actual harm caused. See KYD, Inc. v. United States, 607 F.3d 760, 762 (Fed.Cir.2010); Lifestyle Enter., Inc. v. United States, 865 F.Supp.2d 1284, 1289 (CIT 2012) (explaining that an AD rate based on adverse facts available may not be punitive but must bear a rational relationship to an importer’s commercial reality). The duties imposed by the New Law will be upheld so long as they are not “unrelated to” the harm caused. This standard does not require precise equivalency of the duties to the harm caused to the domestic industry. Even if the duties imposed by the CVD investigations of goods from NMEs that were initiated between 2006-2012 are presumed to be somewhat higher due to allegedly overlapping remedies, they remain mathematically linked to the measured harm. Similarly, the trade remedy laws are designed to buffer domestic industries from the harm caused by competing with the allegedly subsidized or dumped foreign products. For this reason, domestic industries typically petition Commerce to initiate an investigation. In examining duties subject to an amendment to the unfair trade law that does not apply here, the court in Huaiyin found that the trade remedy duties failed to satisfy the third prong of its penal láw test because the duties were designed to benefit individual industries. 322 F.3d at 1380-81. Though in that case the collected duties were distributed to the petitioning domestic industries, even if they are not allocated likewise in this case, they are still collected to primarily counter the individual harm to particular domestic industries in an attempt to provide relief from the imports which are causing or threatening material injury. See id. This purpose is supported by the floor statements that focused on leveling the competitive playing field to protect domestic industries, rather than the general public. See 158 Cong. Rec. H1166-73 (daily ed. Mar. 6, 2012). Even if the laws have some broader societal purpose and can be considered to address a public harm in part, they remain remedial, not punitive. Therefore, GPX has failed to show by the clearest proof that the New Law rises to the level of retroactive penal legislation falling within the scope of the Ex Post Facto Clause. C. Due Process GPX also argues that the New Law violates the Fifth Amendment’s due process guarantees by retrospectively altering legitimate expectations of the level of duties that would be imposed on their imports. GPX Br. 19. GPX analogizes the New Law to the retrospective imposition of a tax, arguing that the case law in this area prohibits Congress from imposing laws which reach back beyond a few months. Id. The government responds that Congress sought to correct an unexpected judicial decision with the New Law, and GPX did not have a settled expectation that trade remedy duties would not have to be paid on the covered imports. Def.’s Br. 21. Although the government contends that import duties are part of general economic legislation and not the same as taxes, rendering the precedent cited by GPX inapplicable, it argues, nonetheless, that the New Law should be upheld even under the tax law standard because it is rationally based on legitimate governmental interests of finality and administrative efficiency. Def.’s Br. 17. GPX has failed to demonstrate that the government did not have a rational basis in enacting the New Law or that the New Law upended a vested right. General economic legislation is subject to a rational basis review. Pension Ben. Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 729, 104 S.Ct. 2709, 81 L.Ed.2d 601 (1984). The Supreme Court has affirmed that “the strong deference accorded legislation in the field of national economic policy is no less applicable when the legislation is applied retroactively.” Id. This deference applies even if the legislation adjusts the rights and burdens of individuals or imposes new duties or liabilities for past acts. Id.; Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976). To succeed, a challenger must demonstrate that the law is “particularly ‘harsh and oppressive’ ” or “arbitrary and irrational.” R.A. Gray, 467 U.S. at 733, 104 S.Ct. 2709. In the tax context, courts look to “the nature of the tax and the circumstances in which it is laid before it” to determine whether it meets this threshold. Welch v. Henry, 305 U.S. 134, 147, 59 S.Ct. 121, 83 L.Ed. 87 (1938). Although the government’s possible justifications for retroactivity are varied, they may not be as broad as those for prospective legislation. Turner Elkhorn, 428 U.S. at 17, 96 S.Ct. 2882. To determine whether a retroactive law is rational, the Seventh Circuit articulated a four-factor test in Nachman Corp. v. Pension Ben. Guar. Corp., 592 F.2d 947, 960 (7th Cir.1979), affd 446 U.S. 359, 100 S.Ct. 1723, 64 L.Ed.2d 354 (1980). Under Nachman, courts examine: the reliance interests of affected parties, the extent to which impaired private interests were previously subject to regulatory control, the equities of imposing the burdens, and the statutory provisions that moderate the impact of the burdens. Id. A line of cases from the early twentieth century adopted broad deference towards retrospective legislation under an agency theory of law. See, e.g., Graham & Foster v. Goodcell, 282 U.S. 409, 427-430, 51 S.Ct. 186, 75 L.Ed. 415 (1931) (collecting cases); United States v. Heinszen & Co., 206 U.S. 370, 385-86, 27 S.Ct. 742, 51 L.Ed. 1098 (1907). Under this theory, the Court recognized that “defects in the administration of the law may be cured by subsequent legislation without encroaching upon constitutional right, although existing causes of action may thus be defeated.” Graham, 282 U.S. at 427, 51 S.Ct. 186. The Court has considered a series of cases alleging the unconstitutional retroactive imposition of duties on goods from the Philippines. See, e.g., Heinszen, 206 U.S. at 378, 27 S.Ct. 742. In those case, the Court had already decided that following a peace treaty with Spain, the President lacked the power to continue his practice of imposing duties on goods from the islands. Id. Following the ruling, Congress passed retroactive legislation, ratifying the past collection of duties during the period between the signing of the treaty and the passage of the new law. Id. at 381-82, 27 S.Ct. 742. The Court upheld this law as consistent with the Fifth Amendment’s due process clause, even though refund cases were pending in the courts at the time. Id. at 385-86, 27 S.Ct. 742. The Court based its decision on the theory that Congress could previously have imposed the duties and merely ratified the actions of the president retroactively. Id. In a different context, the Court in R.A. Gray upheld federal retroactive legislation over constitutional challenges when it corrected defects in past legislation. 467 U.S. at 720, 729, 104 S.Ct. 2709. The Court dismissed the challenge citing the “short and limited periods [of retroactivity] required by the practicalities of producing national legislation....” Id. at 731, 104 S.Ct. 2709. The Court found constitutional a law that modified ERISA to avoid voluntary employer withdrawals from multi-employer plans. Id. at 722, 104 S.Ct. 2709. The law ultimately was passed with a retroactive effective date that reached back five months, in part to discourage employers from withdrawing from the plan during the laws’ consideration. Id. at 724-25, 104 S.Ct. 2709. During the legislative process, the effective date was advanced several times so that it always lagged the legislative process by a few months, discouraging employers from trying to game the system by exiting plans prior to the law’s enactment and rendering the true retroactivity period much longer. Id. at 731,104 S.Ct. 2709. Similarly, the Court in General Motors Corp. v. Romein, 503 U.S. 181, 191, 112 S.Ct. 1105, 117 L.Ed.2d 328 (1992), upheld a retroactive Michigan statute that required employers to reimburse their employees’ withheld disability benefits. The statute had been passed in 1987 to overrule a disfavored statutory construction by the Michigan Supreme Court of a 1981 law. Id. at 184-85, 112 S.Ct. 1105. The U.S. Supreme Court found that the retroactive law, though imposing substantial liability on employers who relied on the Michigan Supreme Court decision, did not violate due process because the legislation was a rational means to restore the legislative intent of the original law to maintain benefits to certain workers. Id. at 191, 112 S.Ct. 1105. The Second Circuit took a similar approach in evaluating retroactive tax legislation. Canisius College v. United States, 799 F.2d 18 (2d Cir.1986). In Canisius, the court upheld legislation effectively validating a Treasury Department revenue rule that courts previously had found to expand impermissibly the definition of “wages” subject to FICA taxation beyond the scope of the statute. Id. at 21. After looking to the period of retroactivity (four years), the reliance interests of the parties, and whether the parties’ rights had vested, the court concluded that Congress had acted constitutionally with a curative intent to ratify the invalidated Treasury Department revenue rule, despite the longer than normal period of retroactivity. Id. at 25-27. GPX relies upon different tax cases, such as United States v. Carlton, which upheld retrospective tax legislation based on “only a modest period of retroactivity.” 512 U.S. 26, 32, 114 S.Ct. 2018, 129 L.Ed.2d 22 (1994) (recognizing that Congress “almost without exception” enacts revenue statutes with retroactive effective dates). Finding that the government has wide latitude to change its tax assessments, which are not considered penalties, the Court held that due process is generally not offended by modifications to that policy prospectively or retrospectively. Id. at 34, 114 S.Ct. 2018 (upholding a retroactive modification of a tax deduction provision that prevented the challenging companies from claiming it). The Court further limited seemingly contrary precedent, including Nichols, to apply to only “wholly new taxes” with extended periods of retroactivity. Id. (citing Nichols v. Coolidge, 274 U.S. 531, 47 S.Ct. 710, 71 L.Ed. 1184 (1927)). It also noted that those cases stem from a time of greater scrutiny of economic legislation that is no longer undertaken by the courts. Id. In this case, the New Law is retrospective in its application back to November 20, 2006, approximately five and one half years before its enactment. 126 Stat. 265-66. This time period is longer than those upheld in the tax case law cited by GPX and in many of the general economic legislation cases relied upon by the government. In both sets of cases, the retrospective period normally was limited to the current fiscal year or legislative session, rarely reaching back more than a year. Though the time period of retroactivity is particularly long here, such a concern is in part offset by the failure of the Plaintiffs to articulate a vested right with which the New Law interferes, as well as by the specific context of trade duties. In examining the nature and circumstances of the New Law, the court notes that customs duties are to an extent unique from other government assessments in that there is no right to import, and where unfair trade remedies apply, those with goods that may be imported rarely can predict with accuracy what the duty will be. See Norwegian Nitrogen Prods. Co. v. United States, 288 U.S. 294, 318, 53 S.Ct. 350, 77 L.Ed. 796 (1933) (recognizing that as with tax rates “[n]o one has a legal right to the maintenance of an existing rate or duty.”). For example, when goods become the subject of an AD/ CVD investigation, liquidation is suspended while the initial investigation is undertaken, and generally while a review is conducted, prior to a final rate determination and duty assessment. See Parkdale Int’l v. United States, 475 F.3d 1375, 1376-77 (Fed.Cir.2007) (“While liability to pay dumping duties accrues upon entry of subject merchandise, ... the actual duty is not formally determined until after entry, and not paid until the [entries] are liquidated by [Customs].” (citing 19 C.F.R. § 141.1(a))); 19 U.S.C. § 1675(a)(1) (Upon completion of a review, Commerce “shall publish in the Federal Register the results of such review, together with notice of any duty to be assessed [and] estimated duty to be deposited.”). That is, it is a retrospective assessment scheme. The duty deposits, of course, occur before the jurisdiction of this court may be invoked to challenge the determination, and litigation, if it occurs, further delays liquidation. Because, as to trade remedies, neither exporters nor importers have any real certainty as to the final rate on the imported product at the time of entry, they cannot demonstrate that a property right in a particular duty rate has vested, with which Congress may not interfere. In examining the additional factors laid out in Nachman, the court notes that the area of trade is a highly regulated field in which duties are calculated, as indicated, based on imprecise and retrospective trade remedy laws. Although Plaintiffs understandably may have assumed that the CVD law would not be applied to their imports from China while Commerce continued to treat the country as an NME, they also knew at the time of entry into the United States of the goods at issue here that China’s status was in a state of flux, and they should have known that their imports might be subject to increased remedial duties. See generally Antidumping Duty Investigation of Certain Lined Paper Products from the People’s Republic of China (“China”) — China’s Status as a Nan-Market Economy (“NME”), A-570-901 (Aug. 30, 2006), available at http://ia.ita.doc.gov/download/ pre-nme-status/prc-lined-paper-memo08302006.pdf (last visited Dec. 21, 2012). Though GPX claims that the statute unambiguously prohibited the imposition of CVDs on goods from China as a NME as a legal matter, citing GPX V, they cannot claim that they lacked notice that China’s status as a traditional NME was at least unsettled by the time Commerce issued its preliminary determination in this investigation and their entries were subjected to trade remedies. If China had graduated to market economy stature, CVD remedies would have been imposed and there would be no claim related to the imposition of CVD or the lack of an adjustment because of the potential overlap with NME AD remedies. Further, the ability of the parties to predict duty rates is particularly difficult because prior to an NME unfair trade investigation, the parties may not even be able to tell whose pricing behavior will be used to calculate AD margins, as often few respondents are chosen for examination. Many exporters are covered by an all others AD rate or a China-entity rate. See Final Determination, 73 Fed. Reg. at 40,-483. Equally unpredictable are the programs that are found to provide identifiable and measurable subsidies and how the subsidies will be valued for CVD purposes. Finally, if the importers had assumed that some offset applied for the potential overlap caused by imposing AD and CVD on the same goods from an NME, it could not have been clear at the time of importation what type of adjustment was required, when it would be done, and what data would be used. The lack of reliance on an adjustment is underscored by TUTRIC’s failure even to raise the coordination issue in its initial complaint and briefing before this court. Even GPX did not raise the adjustment issue directly. The court considered the claim as part of GPX’s basic claim of incompatibility between CVD and NME AD methodologies. At a minimum, the parties here had notice at the time of an affirmative preliminary determination that Commerce would subject their imports entered thereafter to full trade remedy duties, because that is exactly what Commerce did. It is subsequent to that time that their imports were subject to the cash deposits and ultimately remedial duties. See Certain New Pneumatic Off-the-Road Tires From the People’s Republic of China, 73 Fed. Reg. 21,588 (Dep’t Commerce Apr. 22, 2008) (preliminary negative determination of critical circumstances). As Plaintiffs continued to enter merchandise, the only certainty was that there would be litigation. Turning to the balance of burdens, the court notes that the government asserts that Congress acted based on the legitimate state interest of protecting U.S. industry from unfair trade practices while also ensuring the finality of existing CVD orders. Def.’s Br. 20-21. At least twenty-four orders were entered based on what later proved to be a contentious and perhaps faulty interpretation of the statute by Commerce. The government’s assertions appear to be supported by the minimal legislative history and the letter from the administration that spurred Congress into action. See 158 Cong. Rec. H1166-73 (daily ed. Mar. 6, 2012). The effective date itself for Section 1 likely amounts to a deferral to Commerce’s expertise in determining when Commerce first might have been able to identify and measure subsidies in the PRC. See also supra note 7. As in Canisius and R.A. Gray, these legislative bases are legitimate and provide the minimal rationale needed to prevent GPX from overcoming the presumption of constitutionality afforded to laws in this field. Because of the unique contours of trade law, arguments that due process was violated solely by the extended period of retrospeetivity are unavailing. Additionally, GPX’s reliance on Carlton and Nichols is unpersuasive. The Carlton court limited the holding of the Nichols line of cases to a different jurisprudential regime that likely is no longer extant. Furthermore, GPX’s arguments that Section 1 is a “wholly new tax” is not consistent with Carlton, as Section 1 of the New Law merely extends or expressly recognizes the ability of Commerce to impose CVDs in the NME context without first graduating the country to full market economy status. This modification, if it indeed is one, to “tax” policy is more akin to the adjustment upheld in Carlton rather than to the taxes in Nichols and the other cases cited in Carlton, which involved taxing a type of activity thought to be wholly exempt from the scope of taxation when undertaken. GPX and the other importers were aware that their importation of goods from China could give rise to duty liability in the form of traditional customs duties as well as trade remedy duties, and therefore, a modification to the boundaries of those laws does not constitute a “wholly new tax.” GPX finally argues that Congress lacks a rational purpose for enacting Section 1 of the New Law in this case because cash deposits under the CVD order have already been paid as of 2007. GPX Br. 27-28. Therefore, GPX takes the interesting position that a refund of those deposits at this point would not injure the domestic industry because it has already been protected for the last five years by both the AD and CVD cash deposits. Id. The court cannot agree with GPX, however, as Congress did not act arbitrarily or irrationally in deciding not to create a trade remedy system whereby deposits are automatically returned to the importer. GPX essentially argues that the trade remedy system must be replaced by a practice of importers temporarily providing deposits that they are guaranteed to receive back after a period of time, effectively reducing the duties to the cost of borrowing funds to deposit. This is not the statutory scheme enacted under the Tariff Act, and GPX has failed to cite any authority to indicate that the policy goals of the statutory scheme are somehow unconstitutional. Accordingly, GPX has failed to demonstrate that the law offends due process. D. Equal Protection Lastly, Plaintiffs assert that the New Law violates the right to equal protection under the law by applying a different law to respondents whose products were covered by CVD investigations between November 20, 2006, and March 13, 2012, as compared to other firms whose products will be investigated for unfair trade practices after the New Law was enacted. GPX Br. 28; TUTRIC Br. 8-14. In its reply brief, GPX clarifies that the classification it challenges “is not differential treatment between different classes of persons.” GPX Reply Br. 13. Instead, it seeks to challenge the treatment of a “single class of persons” who are treated differently based on the timing of their imports, prior to or after the enactment of the New Law. Id. Importantly, and as indicated, none of the Plaintiffs asserts that the classification is based on any suspect class. The government argues that the type of classification created by the New Law occurs upon the imposition of any law that applies prospectively, such that only future conduct will enjoy any benefits of the new law. Def.’s Br. 12. As with the challenge based on due process, the government proffers the rational bases of administrative finality and efficiency. Def.’s Br. 17. GPX’s and TUTRIC’s arguments based on the date-based classification created by the New Law are without merit. Economic legislation or an administrative classification that neither targets a suspect class nor implicates a fundamental right will be upheld “so long as it bears a rational relation to some legitimate end.” Romer v. Evans, 517 U.S. 620, 631, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996); Hodel v. Indiana, 452 U.S. 314, 331, 101 S.Ct. 2376, 69 L.Ed.2d 40 (1981). A court will uphold such legislation in favor of the presumption of constitutionality if there is “any reasonably conceivable state of facts that could provide a rational basis for the classification.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993); see also Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993) (explaining that the legislature need not articulate a rational basis). In Armour, the Supreme Court explained that administrative considerations regarding the burden of retroactively providing relief from a law can be legitimate state interests, upholding in that case a law that only prospectively forgave future installment payments by homeowners. 132 S.Ct. at 2081. The classification that GPX points to is based on the gap between the New Law’s effective dates for Section 1, November 20, 2006, and Section 2, March 13, 2012. 126 Stat. 265-66. During this interim period, goods from NMEs may be subject to the concurrent imposition of duties under the CVD and AD laws without any possible offset for overlapping remedies. Id. The government has proffered a rational reason for Congress’ decision to make only Section 1 expressly retroactive. Because approximately twenty-four CVD investigations were conducted on goods from NMEs during the interim period, Congress feared that without retroactive application of Section 1, the results of these investigations could be overturned. Def.’s Br. 20-21. Similarly, retroactive application of Section 2 of the law would have subjected those investigations to reopening based on the New Law, requiring Commerce to recalculate the AD or CVD rates in those investigations. Id. To preserve the finality of the investigations and to avoid additional recalculations by Commerce, the government argues this interim period was needed. Id. The government also indicates that Section 2 was the result of an attempt to conform with an adverse WTO dispute settlement decision. Def.’s Br. 27; see Appellate Body Report, US-Antidumping and Countervailing Duties (China), WT/ DS379/AB/R (Mar. 11, 2011), available at http://www.wto.org/english/tratop_e/dispu_ e/cases_e/ds379_e.htm (last visited Dec. 21, 2012). Such action is normally taken under section 129 of the- Uruguay Round Agreement Act, with prospective application only, much like Section 2 of the New Law. See 19 U.S.C. § 3538. These concerns appear to be rationally related to the government’s interests in conserving limited resources and also consistent with the general statutory approach of prospective implementation of changes based on an adverse ruling in a WTO dispute. TUTRIC argues that Congress may not rely upon administrative efficiency and finality as rational bases for the classification created by the New Law. Reply Br. on Constitutional Issues of Co-Pi. Tianjin United Tire & Rubber Int’l Co., Ltd. 7-14 (“TUTRIC Reply Br.”). It asserts that administrative finality is only a legitimate governmental interest when the government has shown that forgoing the classification would result in substantial additional expense or would be particularly burdensome. Id. at 7-11. TUTRIC claims that the expense involved in treating the present case like those covered by Section 2 of the New Law would be minimal as TUTRIC would have Commerce simply forgo the imposition of CVDs or apply the new methodology developed to address overlapping remedies. Id. TUTRIC’s finality arguments are based largely on the claim that few of the covered cases are “final” because challenges to them remain pending before either this court or the WTO’s Dispute Settlement Body. Id. The court, however, declines to evaluate the merits of Congress’ legislative decision regarding the relative expense and administrative burden of reopening the twenty-four investigations permitted by Section 1 but not covered by Section 2 of the New Law. As explained above, retroactive imposition of Section 1 does not invoke any constitutional prohibitions. Therefore, the burden to be considered is that associated with Commerce’s undertaking an analysis of possible overlapping remedies for cases prior to March 2012. Although TUTRIC asserts that this burden is not substantial, as Commerce will be required to develop a methodology for other cases, the court recognizes that at least some significant effort would be required to apply that methodology to this case and other completed investigations, including the collection of additional data, verification, and analysis. Similarly, the court must reject TUTRIC’s finality claims. Although, TUTRIC is correct that Congress may have chosen to enact Section 2 retroactively just as it did for Section 1, TUTRIC has not cited any authority for its argument that finality cannot be a legitimate governmental interest. The court does not find persuasive TUTRIC’s argument that many of the CVD investigations remain subject to some form of review, as Congress reasonably could believe that many of these proceedings will not result in redeterminations, especially following the enactment of Section 1 of the New Law. Accordingly, Plaintiffs have failed to overcome the New Law’s presumption of constitutionality. E. Severability As this court finds that the New Law is constitutional, it need not reach the issue of severability raised by the parties. II. CVD ISSUES Because the court has determined that the New Law is constitutional, it now turns to the claims raised several years ago challenging the methodology employed by Commerce in calculating CVD rates. These issues were initially briefed under the label of “all other CVD issues” or raised in comments to Commerce’s First Remand. Because the court finds that at least some of these claims have merit, it will remand to Commerce. A. Cut-off date The original remand in this matter required that Commerce reject the arbitrary date that Commerce had chosen for the existence of a subsidy, which it had set as the date of China’s WTO accession, on the basis that such an arbitrary date had no relation to the actual identification and measurement of subsidies. GPX II, 645 F.Supp.2d at 1249. In response, Commerce determined, based on changes in Chinese law, when it could identify four subsidy types: grants, credit-oriented subsidies, tax-related subsidies, and land. First Remand at 27-35. This resulted in moving to an earlier date most of the dates from when Commerce could first identify a particular type of subsidy. Id. The court did not review these results previously as it ultimately decided no CVDs could be imposed in this case. GPX III, 715 F.Supp.2d at 1344 n. 4. Because of the effective date of Section 1 of the New Law, the court now addresses this issue. In fact, the New Law may say something new about it. No party, however, has chosen to brief this point. For the parties before the court, the rates calculated under the First Remand did not change. There is no difference in the rates of the Plaintiffs, whether they are based on the First Remand’s commencement dates or whether the rates should be based on some date between those dates and the date utilized in the original determination. Domestic parties have not argued that the dates should have been even earlier, so they are satisfied with the First Remand on this point and raise no controversy. Plaintiffs’ only remaining complaint would be that dates later than the original date are required, but Plaintiffs’ comments on remand were based primarily on the prior law as explained in Georgetoim Steel and GPX II. Further, GPX originally argued not for a fact-based cut-off date for particular subsidies but for an equally arbitrary cut-off date based on publication of a Commerce analysis memorandum. Plaintiffs’ comments on the First Remand offered no later specific dates for measurement. The claim now is a general one that Commerce could not rely on Chinese law but must make its identification decision on the basis of the “recipients’ economic environment.” Resp’t Pis.’ Comments on Commerce’s Final Redetermination Pursuant to Remand at 18. As Plaintiffs have provided no briefing addressing now-applicable law, the court will not take up this point. It is waived. To the extent the government wishes to rely on the New Law to support an arbitrary cut-off date, that issue is also waived for this litigation. As the court has been provided no currently viable basis to reject the First Remand on this point, or to find dates later than the original starting dates appropriate, the First Remand is sustained as to the dates for measurement. B. Remaining GPX-specific claims 1. Background Hebei Tire Co. Ltd. (“Hebei Tire”) began as a state-owned enterprise overseen by a state-owned holding company. Analysis of Change in Ownership (May 28, 2008), GPX App. Tab. 15 at 4 (“Preliminary CIO Memo ”); see also Analysis of Change in Ownership, Final Determination (July 7, 2008), GPX App. Tab. 17 at 1 (“Final CIO Memo ”) (adopting preliminary determination). In 2000, Hebei Tire was selected to be privatized as part of an economic liberalization effort by the PRC. Preliminary CIO Memo at 4. During the 2000 privatization, Hebei Tire’s employees and management purchased the company’s shares from the holding company, in part using a fictional financing arrangement and in part through an agreement to assume certain existing liabilities. Id. Additionally, the local village obtained a minority interest in the company by granting land rental rights to Hebei Tire. Id. Despite these changes, management, employees, and the board of directors remained largely unchanged. Id. The record is unclear as to whether Hebei Tire’s privatization complied with all applicable laws, as it appears the law required employees to be compensated for losing their state-employee status. Id. This compensation, however, was not provided until the later sale of assets to Starbright. Id. at 5. In 2005, Hebei underwent “further privatization” to ensure that it was in compliance with applieable regulations, in anticipation of the sale to Starbright. Id. Starbright ultimately purchased virtually all of the assets of Hebei Tire, as the only bidder in a foreclosure auction based on a pre-negotiated asset purchase agreement. Id. at 6. 2. Change in Ownership Methodology GPX first challenges Commerce’s findings that Starbright received countervailable subsidies when it acquired Hebei Tire in 2006. Resp’t Pis.’ Mem. of Points and Auths. in Supp. of Their Mot. for J. on the Agency R. 15-40 (“GPX CVD Br.”). In particular, GPX alleges that Commerce failed to comply with the law because it did not make specific findings of a financial contribution and benefit in evaluating the asset purchase. Id. The government responds that Commerce did not need to make a finding of a new financial contribution, and GPX failed to exhaust administrative remedies by not raising this claim below. Def.’s Mem. in Opp. to Pis.’ and Def.-Intvnrs.’ Mem. Regarding CVD Issues in Supp. of Their Mots, for J. Upon the Agency Rs. 37-48 (“Def.’s CVD Br.”). As a preliminary matter, the court finds that GPX did articulate its objections to Commerce’s methodology in its case brief before Commerce, and therefore the court will turn to the merits of the challenge. Starbright Case Brief (June 4, 2008), GPX App. Tab 16 at 39. In order for Commerce to find a countervailable subsidy, the statute requires that Commerce identify a financial contribution, given by an authority, that conferred a benefit on a person. 19 U.S.C. § 1677(5)(B). The financial contribution may be given either directly, or indirectly through a private entity in a case where the authority “entrusts or directs a private entity to make a financial contribution, if providing the contribution would normally be vested in the government and the practice does not differ in substance from practices normally followed by governments.” Id. § 1677(5)(B)(iii). The statute also clarifies that when a subsidized company changes ownership, either through an equity or asset sale, the original subsidy is not necessarily extinguished. Id. § 1677(5)(F). Commerce’s current methodology for determining whether a purchasing company has received a countervailable subsidy by virtue of taking over a subsidized company has not yet been subjected to judicial scrutiny. In evaluating Commerce’s previous methodologies, however, the courts have consistently refused to allow Commerce to “presume conclusively that the subsidies granted to the former owner [of corporate assets] automatically ‘passed through’ to [the purchaser].” Delverde, SrL v. United States, 202 F.3d 1860, 1366 (Fed.Cir.2000) (finding that the statute’s preclusion of a per se rule of extinguishment did not imply a converse per se rule of non-extinguishment). Instead, Commerce must find facts to demonstrate that the purchaser directly or indirectly “received both a financial contribution and benefit from a government.” Id. at 1367 (emphasis added). After Delverde, Commerce attempted to modify its methodology to comply with the ruling. It replaced the previous methodology with a “same-person” methodology wherein Commerce looked to four factors to determine whether the purchasing company was essentially the same corporate person as the purchased company. See Allegheny Ludlum Corp. v. United States, 367 F.3d 1339, 1342 (Fed.Cir.2004) (“Allegheny /”). Again, the CAFC found that this methodology conflicted with the statutory definition of a subsidy because it did not undertake the required “fact-intensive inquiry into the circumstances surrounding the transfer of ownership, beyond the simple inquiry into whether the transaction occurred at arm’s length.” Id. at 1344. The court reaffirmed that Commerce must show that the purchaser “received both a financial contribution and benefit from a government, albeit indirectly through the seller.” Id. (emphasis added). Additionally, the court rejected Commerce’s renewed arguments that whether the purchase was at fair market value (“FMV”) is irrelevant, finding instead that the terms of the transaction are important, relevant considerations. Id. at 1345-47 (finding that the new methodology essentially operated as a per se rule, failing to consider whether the purchaser adequately compensated the seller/government for the purchase, thereby repaying the subsidies). On remand, the court clarified that “the payment of fair market value means that the purchasing firm did not receive more than it paid for....” Allegheny Ludlum Corp. v. United States, 358 F.Supp.2d 1334, 1339 (CIT 2005) (“Allegheny II”). Based on the successful challenges to Commerce’s methodologies in both Delverde and Allegheny I, it is clear that a tension exists in the statute between the definition of a subsidy in 19 U.S.C. § 1677(5)(B) and the later added clause clarifying the effects of a change in ownership in 19 U.S.C. § 1677(5)(F). Although the defining clause requires Commerce to identify both a financial contribution “to a person” and a resulting benefit, the change in ownership clause discusses a subsidy that does not flow through to a purchaser because it “no longer continues to be countervailable.” This language implies the possibility of the existence of a subsidy prior to the sale which continues to exist following the purchase. Accordingly, Allegheny I refers to a subsidy that no longer exists as one that is “extinguished.” 367 F.3d at 1344. The CAFC decisions and legislative history do not resolve the tension in the statute. In the committee report considering the addition of 19 U.S.C. § 1677(5)(F), the House explained the purpose of the new provision: The issue of the privatization of a state-owned firm can be extremely complex and multifaceted. While it is the Committees’ intent tha