Full opinion text
Opinion CARMAN, Judge: The following actions were consolidated by order of the Court of International Trade dated February 4, 1994: British Steel pic v. United States, Court No. 93-09-00550-CVD and Geneva Steel, et al. v. United States, Court No. 93-09-00572-CVD consolidated as British Steel pic v. United States, Consol.Court No. 93-09-00550-CVD; Usinas Siderurgicas de Minas Gerais, S.A. v. United States, Court No. 93-09-00558-CVD, Gulf States Steel, Inc. of Alabama, et al. v. United States, Court No. 93-09-00574-CVD, and Usinas Siderurgicas de Minas Gerais, S.A. v. United States, Court No. 93-09-00578-CVD consolidated as Usinas Siderúrgicas de Minas Gerais, S.A. v. United States, Consol.Court No. 93-09-00558-CVD; Inland Steel Industries, Inc., et al. v. United States, Court No. 93-09-00567-CVD, Usinor Sacilor, et al. v. United States, Court No. 93-09-00588-CVD, Usinor Sacilor, et al. v. United States, Court No. 93-09-00589-CVD, Usinor Sacilor, et al. v. United States, Court No. 93-09-00590-CVD, and Usinor Sacilor, et al. v. United States, Court No. 93-09-00591-CVD consolidated as Inland Steel Industries, Inc., et al. v. United States, Consol.Court No. 93-09-00567-CVD; LTV Steel Co., Inc., et al. v. United States, Court No. 93-09-00568-CVD, Thyssen Stahl AG, et al. v. United States, Court No. 93-09-00585-CVD, AG der Dillinger Huttenwerke v. United States, Court No. 93-09-00596-CVD, and Fried. Krupp AG Hoesch-Krupp and Krupp Hoesch Stahl AG v. United States, Court No. 93-09-00603-CVD consolidated as LTV Steel Co., Inc., et al. v. United States, Consol.Court No. 93-09-00568-CVD; Laclede Steel Co., et al. v. United States, Court No. 93-09-00569-CVD, Pohang Iron & Steel Co., Ltd. v. United States, Court No. 93-09-00579-CVD, Dongbu Steel Co. Ltd., et al. v. United States, Court No. 93-09-00580-CVD, Dongbu Steel Co. Ltd., et al. v. United States, Court No. 93-09-00581-CVD, and Pohang Iron & Steel Co., Ltd. v. United States, Court No. 93-09-00582-CVD consolidated as Laclede Steel Co., et al. v. United States, Consol.Court No. 93-09-00569-CVD; Luhens Steel Co., et al. v. United States, Court No. 93-09-00570-CVD, Altos Hornos de Mexico, SA de C.V. v. United States, Court No. 93-09-00618-CVD, and Industrias Monterrey S.A. de C.V. v. United States, Court No. 93-09-00632-CVD consolidated as Luhens Steel Co., et al. v. United States, Consol.Court No. 93-09-00570-CVD; and Geneva Steel, et al. v. United States, Court No. 93-09-00566-CVD and Fabrique de Fer de Charleroi v. United States, Court No. 93-09-00599-CVD, consolidated as Geneva Steel et al. v. United States, Consol.Court No. 93-09-00566-CVD. After several scheduling conferences and upon review and consideration of the minutes of the December 15,1993, scheduling conference and upon agreement of all parties and pursuant to U.S.CIT R. 42(a), the Court entered the scheduling order governing the joint proceeding in the above-captioned cases. As a convenience to the parties, the Court used British Steel pic v. United States, Consol.Court No. 93-09-00550-CVD to identify this joint proceeding and to establish the guidelines set forth in the February 18,1994, scheduling order. In accordance with that order, the parties were jointly ordered to brief five general issues which were divided into two groups. General Issues — Group One pertains to: (a) the Department of Commerce’s use of a fifteen-year allocation period to determine the benefit from several nonrecurring countervailable grants; (b) the Department of Commerce’s use of a grant methodology to countervail equity infusions into an unequityworthy company whose shares are not publicly traded; and (c) the Department of Commerce’s treatment of privatization and restructuring regarding previously received subsidies, including the Department’s use of a repayment methodology. General Issues — Group Two pertains to: (a) the Department of Commerce’s determination of the appropriate sales denominator to be used in subsidy calculations when a respondent’s total sales include not only sales of domestically produced merchandise, but also sales of merchandise produced in one or more foreign countries; and (b) the Department of Commerce’s treatment of disproportionality for the purpose of evaluating the specificity of a potentially countervailable program. The Scheduling Order directed all questions of law and issues of fact regarding the five general issues to be briefed solely in the context of the briefs on these issues. All parties were prohibited from re-briefing or re-arguing any of these questions or issues in the context of the briefs on the country-specific issues. On the general issue of privatization, Foreign Producers British Steel pic (BS pie), Usinas Siderúrgicas de Minas Gerais, S.A. (USIMINAS), and Altos Hornos de Mexico, 5. A. de C.V. (AHMSA) filed a joint motion for partial judgment on the agency record and supporting memoranda contesting the General Issues Appendix appended to Certain Steel Products from Austria, 58 Fed. Reg. 37,225, 37,259-73 (Dep’t Comm.1993) (final determ.) (General Issues Appendix), as well as the application of the General Issues Appendix in Certain Steel Products from Brazil, 58 Fed.Reg. 37,295 (Dep’t Comm.1993) (final determ.) (Brazilian Final Determination ), Certain Steel Products from Mexico, 58 Fed.Reg. 37,352 (Dep’t Comm.1993) (final determ.) (Mexican Final Determination ), and Certain Steel Products from the United Kingdom, 58 Fed.Reg. 37,-393 (Dep’t Comm.1993). (final determ.) (British Final Determination). The Government of the United Kingdom of Great Britain and Northern Ireland, as plamtiff-intervenor, filed a brief challenging the administrative determination on the issue of privatization in the British Final Determination, in support of the Foreign Producers’ motion. Domestic Producers (“Domestics” or “Domestic Producers”) filed a joint motion for partial judgment on the agency record and supporting memoranda contesting the General Issues Appendix as well as the application of the General Issues Appendix in the Brazilian Final Determination, the Mexican Final Determination, the British Final Determination, and Certain Steel Products from Germany, 58 Fed.Reg. 37,315 (Dep’t Comm. 1993) (final determ.) (German Final Determination ). Foreign Producer AG der Dillinger Hüttenwerke moved for summary judgment in LTV Steel Co., Inc. et al. v. United States, Consol.Court No. 93-09-00568-CVD, one of the consolidated cases under the Court’s scheduling order governing this joint proceeding. On February 9, 1995, this Court issued an opinion addressing all five general issues. See British Steel pic v. United States, 19 CIT -, 879 F.Supp. 1254 (1995) (British Steel). On the general issue of privatization, the Court held: (1) Commerce’s privatization methodology as set forth in the General Issues Appendix and applied in the Brazilian Final Determination, the Mexican Final Determination, the British Final Determination, and the German Final Determination, to the extent it stated pre-privatization subsidies bestowed upon government corporations continued to be countervailable after all types of privatization transactions and that purchasers of discrete assets of subsidized corporations at arm’s length for fair market value based upon commercial considerations may be attributed with subsidies previously received by the subsidized seller corporations, was unlawful; (2) Commerce’s determination in the Mexican Final Determination,, insofar as it pertained to the application of Commerce’s privatization methodology, was remanded; (3) Commerce’s determination in the Brazilian Final Determination, insofar as it pertained to the application of Commerce’s privatization methodology, was remanded; (4) Commerce’s determination in the British Final Determination, insofar as it pertained to the application of Commerce’s privatization methodology, was remanded; (5) Commerce’s determination in the German Final Determination, insofar as it pertained to Commerce’s application of its privatization methodology, was remanded; and (6) the motion of AG der Dillinger Hüttenwerke for summary judgment in LTV Steel Co., Inc. et al. v. United States, Consol.Court No. 93-09-00568-CVD, was denied in all respects. Id. at -, 879 F.Supp. at 1288-89. The following opinion addresses Commerce’s remand determination on the issue of privatization (Privatization Remand). The Court has jurisdiction pursuant to 28 U.S.C. § 1581(c) (1988). Background A. The Court’s Remand Instructions to Commerce In remanding the Mexican Final Determination, the Brazilian Final Determination, the British Final Determination, and the German Final Determination in British Steel insofar as those determinations pertained to Commerce’s application of its privatization methodology, this Court ordered Commerce to determine the following: (1) whether each transaction was at arm’s length, for fair market value, and based upon commercial considerations; (2) whether each transaction involved a privatization or partial privatization; (3) the terms and substance of each transaction and whether each transaction involved a sale of an asset or several assets or consisted entirely of a sale of shares; (4) whether, under the Court’s analysis set forth in the British Steel opinion, if a privatization or partial privatization took place, the privatized entity continues to be, for all intents and purposes, the same entity that received subsidies prior to the privatization or partial privatization transaction; and (5) whether, under the Court’s analysis set forth in the British Steel opinion, Commerce may properly countervail the privatized or partially privatized corporation at issue in each determination. British Steel, 19 CIT at -, 879 F.Supp. at 1329 (order). This Court further ordered as follows: (1) Commerce will calculate and report any countervailing duties due, if any, by any transferor and transferee subsequent to privatization; (2) if, under the Court’s analysis set forth in British Steel, Commerce determines that any privatized or partially privatized entity continues to be, for all intents and purposes, the same entity that received subsidies prior to a privatization or partial privatization transaction, Commerce will calculate any and all countervailing duties due on the surviving entity; and (3) Commerce will calculate any and all countervailing duties due on account of any other type of privatization transaction arising in the individual determinations remanded. Id. at -, 879 F.Supp. at 1330 (order). B. Commerce’s Privatization Remand In the Privatization Remand, Commerce has determined that it may properly countervail the exports of BS pic, AHMSA, USIMINAS, and DHS Dillinger Hütte Saarstahl AG (DHS) in the full amount of subsidies received prior to privatization. See Privatization Remand at 2. In so doing, Commerce first sets forth its general framework for analysis and compliance with this Court’s remand instructions. For each of the determinations remanded on the issue of privatization, Commerce explains, it addressed whether the relevant transaction “was (1) an asset or stock sale, (2) a full or partial privatization, and (3) at arm’s length, for fair market value, and based upon commercial considerations.” Id. at 9-10 (footnotes omitted). For each determination remanded, Commerce then found “whether the privatized entity continues to be, for all intents and purposes, the same entity that received subsidies prior to the transaction.” Id. at 10. Subsequently, Commerce calculated any countervailing duty due by the privatized entity. Id. As to the Court’s instruction that Commerce determine “if a privatization or partial privatization took place, the privatized entity continues to be, for all intents and purposes, the same entity that received subsidies prior to the privatization or partial privatization transaction,” Commerce complains “the Court did not describe the test to be used, or provide any other specific guidance.” Id. Commerce notes, however, the Court expressed concern that “the privatization decision be consistent with general principles of corporate law” and that foreign governments and companies may attempt to structure privatization transactions to evade CVD liability. Id. (citations omitted). Commerce therefore concludes “that the purpose of the Court’s instructions regarding the ‘for all intents and purposes’ question is to allow the Department in some circumstances to examine the substance as well as the form of the privatization transaction at issue.” Id. Defining a “corporation” as “an artificial legal person conducting a business and capable of holding a collection of assets and liabilities,” Commerce continues with its “for all intents and purposes” analysis as follows: If the corporate form changes, but the collection of assets and liabilities remains essentially the same, the essence of the original corporation continues. In such cases, the Department finds it to be reasonable, for purposes of this remand proceeding, to conclude that the new corporation is “for all intents and purposes” the same as the original corporation. When the privatized entity continues to be the same entity, “for all intents and purposes,” that received the subsidies, we have determined that the prior subsidies can continue to be countervailed in accordance with the Court’s analysis and have calculated the amount of countervailing duties owed. To determine if the privatized entity continues to be, “for all intents and purposes,” the same as the subsidy recipient, we have analyzed whether the privatized entity was 'generally invested with the assets and rights, and assumed the liabilities and burdens, of the pre-privatization corporation. If so, we have determined that the privatized entity is the same entity, “for all intents and purposes,” as the entity that received the prior subsidies. Id. at 10-11 (citation omitted). Privatization by stock sale, Commerce states, “is merely a change in ownership.” Id. at 11 (citation and footnote omitted). The issue of whether the privatized entity is “for all intents and purposes” the same entity that received subsidies is not reached in such a case, Commerce explains, “because there is no change in the corporate form.” Id. at 12. Accordingly, Commerce reasons, in those cases the full amount of the pre-privatization subsidies remains countervailable. Id. In cases of privatization by means other than a simple stock sale, Commerce further explains, it “examined whether the post-privatization corporate entity generally became invested with the assets and rights, and assumed the liabilities and burdens, of the corporation which received subsidies prior to the privatization transaction.” Id. If so, Commerce has determined that the full amount of preprivatization subsidies remains countervailable. Id. The remainder of the Privatization Remand applies Commerce’s interpretation of the Court’s instructions to each of the determinations remanded on the issue of privatization. Those portions of the Privatization Remand are explained below. Application op U.S.CIT R. 54(b) U.S.CIT R. 54(b) provides in part: When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon express direction for the entry of judgment. As explained by the Court, Underlying rule 54(b) is the recognition that with the liberal joinder of claims now permitted by the federal rules, the policy against piecemeal appellate review implicit in the “single judicial unit” rule must be weighed against the prejudice caused by unjustified delay which can occur when decisions final as to some claims cannot be entered until the litigation is final as to all claims. In other words, a claim may be certified for appeal under rule 54(b) if a decision on that claim represents a “final decision” in the sense of an ultimate disposition of an individual claim entered in the course of a multiple claim action and if there is no just reason for delay. Timken Co. v. Regan, 5 CIT 4, 6, 1983 WL 4993 (1983) (citation omitted). The present opinion will result in the following: (1) the final resolution of the general issue of privatization and ail country-specific challenges to privatization presented in Lukens Steel Co., et al. v. United States, Consol.Court No. 93-09-00570-CVD, Usinas Siderúrgicas de Minas Gerais, S.A v. United States, Consol.Court No. 93-09-00558-CVD, and British Steel pic. v. United States, Consol.Court No. 93-09-00550-CVD; and (2) the final resolution of all issues presented in, and the dismissal of Lukens Steel Co., et al. v. United States, Consol.Court No. 93-09-00570-CVD, and Usinas Siderurgicas de Minas Gerais, S.A. v. United States, Consol.Court No. 93-09-00558-CVD. This will be accomplished as follows. As discussed above, in accordance with the February 18, 1994, scheduling order in this proceeding, the parties were jointly ordered to brief five general issues involved in various groupings of the consolidated cases under review. That scheduling order also set forth a schedule for the parties to submit individual briefs on a country-specific basis. Privatization issues were raised in the complaints and country-specific briefs of the following cases: Lukens Steel Co., et al. v. United States, Consol.Court No. 93-0900570-CVD, Usinas Siderurgicas de Minas Gerais, S.A. v. United States, Consol.Court No. 93-09-00558-CVD, British Steel pic. v. United States, Consol.Court No. 93-09-00550-CVD, and LTV Steel Co., Inc. et al. v. United States, Consol.Court No. 93-09-00568-CVD. Parties in these consolidated cases are the only parties who submitted briefs to this Court on the general issue of privatization. Pursuant to conferences with the parties, this Court ordered stays on each of the four country-specific cases. These stays essentially postponed, until this Court’s decision on the Privatization Remand, the Court’s consideration of the country-specific challenges raised in the four cases that directly related to or were dependent upon this Court’s decision on the Privatization Remand Because the Court now renders final judgment on the Privatization Remand as it pertains to Lukens Steel Co., et al. v. United States, Consol.Court No. 93-09-00570-CVD, Usinas Siderúrgicas de Minas Gerais, S.A. v. United States, Consol.Court No. 93-09-00558-CVD, and British Steel pic. v. United States, Consol.Court No. 93-09-00550-CVD, the Court now lifts the stays entered in these three eases. In the present opinion, the Court will address all country-specific issues, formerly stayed, in these three cases. In terms of entering final judgment for purposes of rendering certain claims immediately appealable, the result of the above action will be as follows. The Court will enter final judgment on all issues in, and will dismiss, Lukens Steel Co., et al. v. United States, Consol.Court No. 93-09-00570-CVD, and Usinas Siderúrgicas de Minas Gerais, S.A. v. United States, Consol.Court No. 93-09-00558-CVD. The parties to the country-specific action British Steel pic v. United States, Con-sol.Court No. 93-09-00550-CVD, however, are also involved in challenges to the general issues of allocation and sales denominator, and those challenges are reflected in the complaints. The present opinion does not render a decision on the general issues of allocation and sales denominator. Therefore, the Court will use Rule 54(b) to enter final judgment as to all claims of privatization challenged therein. Specifically, the Court will enter final judgment pursuant to Rule 54(b) in the country-specific case British Steel pic. v. United States, Consol.Court No. 93-09-00550-CVD, consisting of British Steel pic v. United States, Court No. 93-09-00550-CVD and Geneva Steel, et al. v. United States, Court No. 93-09-00572-CVD, as to: (1) the first, second, third, and fourth causes of action of the complaint of those Domestic Producers who filed a complaint in Geneva Steel, et al. v. United States, Court No. 93-09-00572-CVD; and (2) counts I, II, III, and IV in the complaint of British Steel pic in British Steel pic v. United States, Court No. 93-09-00550-CVD. There is one caveat. Commerce has set forth the final subsidy rate for BS pie in the Privatization Remand. Because that rate may change depending upon this Court’s decisions on the remand determinations concerning the issues of allocation and sales denominator, this Court does not enter final judgment on the final subsidy rate for BS pic at this time. The Court finds that Commerce’s listing of the final subsidy rate for BS pic in the Privatization Remand as opposed to its remands on allocation or sales denominator, and the Court’s later entry of final judgment as to the final subsidy rate for BS pic, does not interfere with this Court’s entry of 54(b) judgment as described above in the country-specific case British Steel pic v. United States, Consol.Court No. 93-09-00550-CVD. Furthermore, the Court finds that the challenges to the general issues of allocation and sales denominator are readily severable from the privatization issues, both general and country-specific. Furthermore, the Court’s instant decision on the privatization issues in country-specific British Steel pic. v. United States, Consol.Court No. 93-09-00550-CVD, is a decision upon cognizable claims for relief. Having determined that this Court is dealing with a “final judgment” on specific claims, the Court now determines that the final judgment on the counts in the complaint of country-specific British Steel pic v. United States, Consol.Court No. 93-09-00550-CVD, are immediately appealable under Rule 54(b). See Timken, 5 CIT at 6. There is no just reason for delay. The Court of Appeals for the Federal Circuit (Court of Appeals) has recently reversed and remanded a prior decision of this Court involving aspects of privatization. See Saarstahl AG v. United States, 78 F.3d 1539 (Fed.Cir.1996), rev’g and remanding Saarstahl, AG v. United States, 18 CIT -, 858 F.Supp. 187 (1994). Another decision of this Court involving privatization issues is currently on appeal before the Court of Appeals. See Inland Steel Bar Co. v. United States, 18 CIT -, 858 F.Supp. 179 (1994), appeals docketed, No. 94-1460 (Fed.Cir. Aug. 17, 1994) and No. 94-1491 (Fed.Cir. Sept. 7, 1994). The parties and this Court have spent a great deal of time and other resources sifting through the privatization issues in all of these cases. In the interest of conserving judicial and the parties’ resources, the Court finds it more desirable that, if further issues of privatization are to be appealed, they are appealed by as many affected parties as possible, and as concurrently as possible with this Court’s two prior decisions on these issues. In four distinct sections of the present opinion, the Court will address the general issue of privatization in the context of Commerce’s four final determinations revisited in the Privatization Remand. The Court will address all country-specific issues in Lukens Steel Co., et al. v. United States, Consol.Court No. 93-09-00570-CVD, Usinas Siderurgicas de Minas Gerais, S.A. v. United States, Consol.Court No. 93-09-00558-CVD, and British Steel pic. v. United States, Consol.Court No. 93-09-00550-CVD, in the sections addressing the relevant determinations. The Court will address the general issues of sales denominator, allocation, and disproportionality, as well as all unresolved issues in LTV Steel Co., Inc. et al. v. United States, Consol.Court No. 93-09-00568-CVD, in future, separate opinions. Standard of Review In reviewing determinations and remand determinations by Commerce, this Court will hold unlawful those found to be “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(l)(B) (1988) (current version at 19 U.S.C. § 1516a(b)(l)(B)(i) (1994)). I. Certain Steel Products from Germany Commerce’s Privatization Remand In the Privatization Remand, Commerce describes the transaction at issue as follows. In April 1989, the Government of Saarland (GOS) owned 76% of Saarstahl Volldngen GmBH (SVK). Arbed, a Luxembourg company, owned 24%. On April 20, 1989, the GOS and Arbed agreed with Usinor Sacilor, a company owned by the French government, to combine SVK with another German steel producer owned by Usinor Sacilor, Dillinger Hüttenwerke (Dillinger). The parties engaged two independent accounting firms to appraise the relative values each party would contribute to the combined entity, in order to calculate each party’s percentage share ownership in the newly-combined entity. Privatization Remand at 20. On June 14, 1989, pursuant to the agreement, the German government (GOG) and the GOS forgave all outstanding debts owed to them by SVK. Additionally, private creditors forgave a portion of the debt SVK owed them. This debt forgiveness, by both the two governments and the private creditors, “was the major subsidy found to have been bestowed upon SVK.” Id. at 21 n. 35. SVK’s name was changed to DHS Dillinger Hütte Saarstahl AG (DHS) on June 15, 1989, and its legal form was changed from GmBH (a limited liability corporation) to AG (a German stock company), so that DHS could issue stock. The events of June 15th had no effect on the assets and remaining liabilities of SVK, i.e., all assets and liabilities of SVK (including SVK’s tax loss carryforward) continued to reside in DHS. On that same day, Usinor Sacilor contributed its shares of Dillinger to DHS, and the GOS contributed an additional DM 145.1 million in cash to DHS. In return, Usinor Sacilor received a 70 percent ownership interest in DHS via the distribution of 70 percent of DHS’s shares, the GOS received 27.5 percent of DHS’s shares and Arbed received the remaining 2.5 percent of DHS’s shares. Id. at 21 (footnote omitted). DHS transferred the assets, except for the tax loss carryforward, and liabilities of former SVK into a newly created subsidiary, Saarstahl AG (SAG) on June 30, 1989. DHS thus “became a holding company with two operating subsidiaries, SAG and Dillinger.” Id. (footnote omitted). “[Bjecause DHS owned SAG, the former SVK/DHS’s assets and liabilities remained with DHS, albeit indirectly, even after the transfer of the assets and liabilities of the former SVK/DHS to the newly-created SAG.” Id. at 21 n. 37. Tax considerations drove the structure creating the combined DHS. The structure “preserve[d] SVK’s tax loss carryforward under German tax law, for the benefit of DHS. The tax loss carryforward was valued by the independent accounting firms in establishing the GOS’s percentage ownership in DHS.” Id. at 22 (footnotes omitted). Based on these circumstances, Commerce made the following findings. First, SVK’s privatization was essentially a two-step process: Pursuant to the first step of the transaction, SVK’s name was changed to DHS and it became a stock company. SVK’s assets, rights and liabilities simply became the assets, rights and liabilities of DHS. In the second step of the transaction, DHS was combined with Dillinger. Id. (footnotes omitted). Second, the transaction combining SVK with Dillinger was a transaction at arm’s length, for fair market value, and consistent with commercial considerations “because it occurred between two unrelated parties and each party’s percentage shareholding in DHS/Dillinger[] was based on appraisals performed by two independent accounting firms, which took into account the forgiveness of debt.” Id. at 23. Third, the transaction constituted a partial privatization because the GOS retained an ownership interest in DHS/Dillinger after the transaction. Fourth, “SVK/DHS is for all intents and purposes the same entity which received the subsidies, SVK” because “all the assets, rights and remaining liabilities of SVK were the same as those of SVK/DHS.” Id. Fifth, “DHS/Dillinger remained for all intents and purposes the same entity as SVK/DHS.” Id. In the second step of the transaction, the GOS exchanged SVK/DHS for an equity position in DHS/Dillinger. After completion of the transaction, Usinor Sacilor, in addition to the GOS and Arbed, held equity interests in DHS/Dillinger. Thus, while the identity of the shareholders who held ownership interests in DHS/Dillinger, as well as the relative shareholdings of pre-privatization shareholders, differed from those in SVK/DHS, there was no change in DHS/Dillinger’s corporate identity. The fact that DHS/Dillinger subsequently held the shares of Dillinger does not alter the fact that DHS/Dillinger is, for all intents and purposes, the same entity that received the subsidies, SVK/DHS. Id. at 23-24. Particularly, SVK/DHS’s assets and liabilities remained with DHS/Dillinger, directly or indirectly. Additionally, the design of the transaction was such that the tax loss carryforward would continue to benefit DHS/Dillinger after the combination with Dillinger. Thus, based on Commerce’s interpretation of British Steel DHS/Dillinger remained for all intents and purposes the same entity as SVK/DHS. Accordingly, Commerce will continue to impose countervailing duties on imports of the subject merchandise from DHS. Commerce determined the net subsidy to be 14.89% ad valorem. Discussion On June 7, 1994, this Court issued Saarstahl -AG v. United States, 18 CIT-, 858 F.Supp. 187 (1994). The factual background and findings of Commerce discussed in Saarstahl became an issue in the current proceedings because the determination at issue in Saarstahl involves the same transaction as the one relevant to the German Final Determination. During oral argument on the general issues proceeding, however, Commerce recanted important findings relative to the transaction. See British Steel 19 CIT at -, 879 F.Supp. at 1286-87. Because those recantations obfuscated the transaction, and for other reasons articulated in the opinion, this Court in British Steel remanded the German Final Determination so that Commerce could “properly make these findings and report them to this Court with articulated reason and consistency.” Id. at -, 879 F.Supp. at 1287. On March 12, 1996, the Court of Appeals reversed and remanded this Court’s Saarstahl decision. The majority opinion found this Court “erred in holding that as a matter of law a subsidy cannot be passed through during an arm’s length transaction.” Saarstahl AG v. United States, 78 F.3d 1539, 1544 (Fed.Cir.1996) (Saarstahl II). The majority reasoned this Court’s decision rested on the premise that subsidies cannot be countervailed unless they confer a demonstrable competitive benefit. Id. at 1542. The majority determined that the statute, however, does not limit countervailing duties only to subsidies giving a demonstrable competitive benefit, and thus this Court improperly equated subsidies with competitive benefits. Id. at 1542-43. “[IJnjury to domestic industry,” the majority found, “is the only ‘effect’ relevant under the statutory scheme, and the arm’s length sale of a subsidized company would not necessarily prevent the merchandise sold by the newly privatized company from having this adverse effect on the United States industry.” Id. at 1543-44 (citation omitted). “[T]he statute makes clear,” the majority reasoned, “that Congress did not require Commerce to determine the effect of the subsidy once bestowed.” Id. at 1543. The majority further explained that “Ultimately, the court did not accord sufficient deference to Commerce’s approach---- In the absence of explicit mandates ... Commerce’s approach must be accorded deference.” Id. at 1544. In sum, this Court “erred in concluding that subsidies cannot pass through to privatized companies.” Id. This Court thoroughly agrees it is erroneous to hold as a matter of law that subsidies cannot be passed in an arm’s-length transaction. It is hard to see, based on the facts as reported by Commerce to this Court during the Saarstahl proceedings, how Commerce’s attribution of subsidies to the purchaser of the assets, at arm’s length and for fair market value, could be supportable. It is possible that a purchaser of assets could bargain with the seller to take into account CVD liability. As this Court discussed in British Steel, such a scheme is possible, albeit presumably not desirable: It could be argued that in an arm’s-length transaction a purchaser of one or several assets of a subsidized corporation could discount its purchase price for “subsidies liability under the CVD laws” and therefore the subsidies could be accounted for in this manner. Congress could have but did not authorize such a result. In fact, Congress does not appear to ever have considered it. Furthermore, it would seem such an approach would cause ponderous burdens upon the free flow of commerce. One can only contemplate the frustrations of subsequent bona fide purchasers for value as they negotiate to buy one or several assets, absent recording statutes, in trying to evaluate actual and/or inchoate CVD liabilities. What if the last owner did not trade with the United States but the new owner plans to do so? One can imagine valuation problems especially where there is no statutory guidance. Absent express congressional authorization this Court observes Commerce would be wise to avoid such an approach. British Steel, 19 CIT at - n. 20, 879 F.Supp. at 1272 n. 20. Regardless, it is difficult to envision how a purchaser could have anticipated a need or possibility to discount as the transaction reportedly took place in 1989, whereas Commerce did not develop the idea of traveling subsidies until 1993. Commerce has subsequently recanted the facts that were originally presented to this Court in Saarstahl. This Court is not certain what facts Commerce presented to the Court of Appeals pertaining to Saarstahl. This Court certainly agrees a remand is in order. This Court further agrees that Commerce must be accorded sufficient deference, and that Commerce’s construction of the statute “must be sustained if it ‘falls within the range of permissible construction.’ ” Saarstahl II, 78 F.3d at 1542 (quoting Daewoo Elecs. Co. v. International Union of Electronic Workers, 11 Fed.Cir. (T) -, -, 6 F.3d 1511, 1516 (1993), cert. denied, - U.S. -, 114 S.Ct. 2672, 129 L.Ed.2d 808 (1994)) (further citation omitted). It is Commerce’s duty, as the agency charged with administration of the CVD laws to determine CVD liabilities when enterprises, groups of assets, or any other configuration of commercial resources are privatized. In so doing, however, Commerce cannot violate the CVD statutes. In the determinations at issue in British Steel, Commerce did contravene the statutes by failing to recognize and make certain critical findings regarding the transactions at issue. Under 19 U.S.C. § 1677(5)(B), a subsidy must be “provided to a specific enterprise or industry, or group of enterprises or industries.” 19 U.S.C. § 1677(5)(B) (1988). As parties, including the government, conceded at oral argument in this proceeding, “[t]his implies that the recipient of a subsidy must be a person or artificial person, such as a corporation carrying on a specific enterprise or industry, capable of holding a property interest such as a subsidy.” British Steel, 19 CIT at -, 879 F.Supp. at 1271. Indeed, the statute clearly states “enterprise,” not “asset,” or “group of assets,” but “enterprise.” This has different implications for different types of privatizations. If, for example, a private purchaser buys several shares of stock of a subsidized, government-owned corporation, the purchaser is buying an interest in the very enterprise that was provided with a subsidy under § 1677(5)(B). It would appear that as a matter of basic corporate law, the only change is the identity of shareholders. The life or nature of the corporate entity has not changed — the enterprise to which the subsidy was provided “continues to survive as does Commerce’s authority to countervail that entity.” Id. at -, 879 F.Supp. at 1273. Of course, the determination as to whether the pre-transaction enterprise is, for all intents and purposes, the post-transaction enterprise, is a determination to be made by Commerce. At the other end of the spectrum, if a purchaser pays fair market value based on commercial considerations in an arm’s-length transaction for a group of assets owned by a subsidized corporation, for example, different concerns arise. Commerce may choose to determine whether the parties had discounted the purchase price for “subsidies liability under the CVD laws.” If the parties had not, no subsidy would have been “provided to” the purchaser because the purchaser paid full value for the group of assets purchased. Again, these determinations are for Commerce to make looking at all of the circumstances of the transaction. This is not a distinction based solely on the form of the privatization transaction. First, form is subordinate to substance. As this Court explained in British Steel, [i]t is conceivable that foreign governments, transferors, and transferees could try to structure their privatization transactions to evade potential tariff liability under United States’ CVD laws____ Commerce, using its considerable expertise and insisting that such transactions be based upon good faith commercial considerations, should be able to ferret out sham transactions. British Steel, 19 CIT at -, 879 F.Supp. at 1277; see also id. at - n. 35, 879 F.Supp. at 1277 n. 35 (“Presumably, if the only reason governments are structuring privatization transactions is to evade countervailing duties, and do so without commercial considerations, Commerce will look upon such transactions with disfavor.”). Second, the examples given above are just that, examples, and are not meant to encompass the entire universe of possible privatization transactions. A myriad of transactions are conceivable. But, to create a blanket rule that subsidies always or never pass with anything “privatized” regardless of the manner and extent to which the “privatization” occurs, can lead to a direct violation of the plain statutory language requiring that a subsidy must be “provided to a specific enterprise or industry, or group of enterprises or industries.” This is what occurred in the determinations at issue in British Steel. Commerce never determined whether the post-transaction enterprises were the pretransaction enterprises. If they were not, Commerce could not, absent other circumstances, countervail the post-transaction companies. Commerce cannot countervail where no subsidy has been provided. This Court also notes the majority’s finding in the Saarstahl opinion that “the statute does not limit Commerce to countervailing only subsidies that confer a competitive advantage on merchandise exported to the United States.” Saarstahl II, 78 F.3d at 1543. The majority further found “the statute makes clear that Congress did not require Commerce to determine the effect of the subsidy once bestowed.” Id., at 1543. As explained in British Steel, this Court has no quarrel, for purposes of this proceeding, with Commerce’s insistence that it is not required to trace the effects of subsidies. See British Steel, 19 CIT at -, 879 F.Supp. at 1273. Commerce must examine the totality of the circumstances surrounding each privatization transaction to determine whether, in fact, a subsidy has been “provided to” the enterprise Commerce seeks to countervail. This has nothing to do with tracing the effect of a subsidy or determining whether any remaining competitive benefit from prior subsidies has been “extinguished.” Again, however, a myriad of transactions are possible. No other generalities can be made. Thus, this Court agrees with the Court of Appeals’s holding in Saarstahl II that it cannot be held “as a matter of law a subsidy cannot be passed through during an arm’s length transaction.” Saarstahl II, 78 F.3d at 1544. At this point, however, it is difficult to tell what Commerce originally claimed to have occurred in all of the Saarstahl proceedings. The transaction in question has become convoluted. Not only did Commerce recant certain findings relative to the trans-action, in Commerce’s present position set forth in the Privatization Remand, Commerce has changed its very depiction of the transaction at issue. On this basis alone, this Court agrees that its decision in Saarstahl required a remand. Even Commerce’s Privatization Remand in the instant ease raises questions. Commerce fails to articulate whether it will continue to allocate benefits Commerce determined DHS received over the sales of DHS’s subsidiaries, SAG and Dillinger. See British Steel, 19 CIT at - n. 39, 879 F.Supp. at 1284 n. 39. In British Steel, this Court expressly required Commerce to determine whether “Commerce may properly countervail DHS or any other party.” Id. at -, 879 F.Supp. at 1287 (emphasis added). The Court also notes Commerce states in the Privatization Remand that “because DHS owned SAG, the former SVK/DHS’s assets and liabilities remained with DHS, albeit indirectly, even after the transfer of the assets and liabilities of the former SVK/DHS to the newly-created SAG.” Commerce, however, never explains this statement. On these issues alone, it seems a further remand is called for. However, because the transaction at issue is relevant to the Saarstahl proceeding, and because the Court of Appeals has issued a majority opinion reversing and remanding Saarstahl on the facts as reported by Commerce in that proceeding, this Court determines it would preserve judicial resources to stay a ruling on the Privatization Remand as it pertains to the German Final Determination until it has jurisdiction to proceed with the remand on Saarstahl. This course of action will ultimately permit Commerce to reexamine Saarstahl and the instant case on remand. Accordingly, the Court’s consideration of the Privatization Remand as it pertains to the German Final Determination, and of all issues related to or dependent upon privatization in LTV Steel Co., Inc., et al. v. United States, Consol.Court No. 93-09-00568-CVD, consisting of LTV Steel Co., Inc., et al. v. United States, Court No. 93-09-00568-CVD, Thyssen Stahl AG, et al. v. United States, Court No. 93-09-00585-CVD, AG der Dillinger Huttenwerke v. United States, Court No. 93-09-00596-CVD, and Fried. Krupp AG Hoesch-Krupp and Krupp Hoesch Stahl AG v. United States, Court No. 93-09-00603-CVD, is stayed pending this Court’s jurisdiction pursuant to the remand from the Court of Appeals in Saarstahl. II. Certain Steel Products from Mexico Commerce’s Privatization Remand In the Privatization Remand, Commerce describes the privatization of AHMSA as follows. As part of its 1989-1994 National Development Plan, the Government of Mexico (GOM) decided to privatize state-owned steel mills, including AHMSA. The GOM first sold three AHMSA subsidiaries and closed several plants for environmental reasons. Subsequently, “[t]o implement the privatization of AHMSA,” the GOM engaged advisors, both financial and legal, and developed “detailed criteria” to be used in a bidding process for what remained of AHMSA. Privatization Remand at 28. “The winning bid,” Commerce explains, “was determined based on a formula which valued up-front payments at 100 percent of the face value, and committed investment (the purchaser’s commitment to invest money in AHMSA’s operations following the privatization) at 50 percent of the committed investment amount.” Id. An entity called Grupo Acereros del Norte (GAN) was judged to have submitted the best bid based on the evaluation formula. “Although GAN’s bid did not include the highest up-front payments,” Commerce explains, “based on the evaluation formula, the combination of GAN’s up-front payment plus 50 percent of its future committed investment was the highest.” Id. Commerce describes the rest of the transaction as follows: “GAN purchased 100 percent of AHMSA’s equity from the GOM. GAN assumed all responsibility for AHM-SA’s liabilities, and all rights to AHMSA’s assets. For Mexican tax purposes, GAN’s purchase of AHMSA was considered a sale of shares.” Id. at 28-29. Based on these facts, Commerce made the following findings. First, Commerce found that the sale of AHMSA was at arm’s length. Second, Commerce states it could not conclude that the sale was for fair market value or that it was consistent with commercial considerations. Although GAN’s bid was determined to be the “best” bid under the evaluation formula, Commerce explains, that formula included a 50 percent weighting for future committed investment, reflecting the GOM’s priority of maintaining domestic steel production once the steel mills had been privatized. Because the goal of preserving domestic steel production may not reflect considerations of a commercial seller, we cannot find that the GOM’s bid evaluation formula, and its decision to sell to GAN, was consistent with commercial considerations. Moreover, because all bids submitted for AHMSA were structured according to the bid evaluation formula, we cannot find that those bids provide a measure for fair market value. Id. at 29. Third, Commerce found the sale of AHMSA to constitute a full privatization because 100% of AHMSA was sold. Fourth, Commerce determined the sale of AHMSA was a stock sale, “therefore, the privatized AHMSA remains the same entity which received the subsidies.” Id. Accordingly, Commerce “will continue to impose countervailing duties on imports of the subject merchandise from AHMSA.” Id. Contentions of the Parties A. The Foreign Producers AHMSA sets forth three primary contentions in opposition to Commerce’s determination as to AHMSA in the Privatization Remand. First, AHMSA contends Commerce improperly refused to consider whether GAN paid fair market value for AHMSA. According to AHMSA, Commerce “simply eoncluded that, because the Mexican government included a value for ‘committed investment’ in its bid evaluation formula, it was impossible to determine what the ‘fair market value’ of AHMSA was, or whether the price GAN paid for AHMSA was above that value and based on commercial considerations.” (Comments of AHMSA on the Final Remand Determ. Concerning the General Issue of Privatization (AHMSA’s Comments) at 5 (footnote omitted).) In further support of this contention, AHMSA argues as follows. First, AHMSA claims Commerce ignored the privatization process used — “a fair and open competitive auction” ensuring “that the winning bid will represent the fair market value of the item being sold — whether payment for the item is accepted in case, barter, or any other item of value.” (Id. at 5-6.) Second, AHMSA explains that an independent consultant and the government’s bank agent evaluated AHMSA’s value under a number of methodologies prior to privatization. Even without considering the committed investment portion of GAN’s winning bid, AHMSA maintains, the price paid by GAN was “well above all of the values determined” prior to the privatization and thus, Commerce should have found that the privatization of AHMSA was at fair market value. (Id. at 8.) Third, AHMSA argues that the existence of a competing bid is not a proper basis for disregarding the independent valuations. According to AHMSA, the competing bid did not have a higher value: “To the contrary, a review of the facts demonstrates that the real ‘upfront’ cash value of that competing bid was less than the cash value of GAN’s bid.” (Id. at 9.) Commerce’s determination that the competing bid did have a higher “upfront” value, AHMSA argues, was based on an inconsistent assumption that the bid evaluation formula did not correctly calculate the value of committed investment, but did correctly calculate the value of debt. Furthermore, AHMSA claims, Commerce’s comparison of the two bids without considering committed investment is clearly incorrect. AHMSA also argues the competing bid did not conform to the bidding rules, and that both bids represented different expressions of the fair market value of the company because both were above the independent valuations. Fourth, AHMSA complains Commerce improperly equated the commercial value the GOM received with the commercial cost imposed on GAN by its bid. AHMSA’s second major contention is that Commerce’s finding the privatization was effected through a sale of shares is inconsistent with record evidence. “In economic substance,” AHMSA claims, “the transaction was essentially a sale of assets.” (Id. at 21.) AHMSA explains: [T]he privatization transaction consisted, as a formal matter, of a sale of both shares and assets from the Mexican government to GAN. In the privatization transaction, the government sold GAN: (1) all of the shares of AHMSA stock it owned, (2) the assets of Aceros Planos (which had not previously been owned by AHMSA)[], and (3) a separate continuous casting unit (which also had not previously been owned by AHMSA). ... [T]he Mexican government essentially treated the pre-privatization state-owned entity as a bundle of goods, which it combined with other assets and sliced up into a number of different packages to be sold in separate transactions. (Id. at 20-21 (footnote omitted).) Third, AHMSA contends evidence on the record further demonstrates that .AHMSA was not “for all intents and purposes” the same entity before and after the privatization. According to AHMSA, Commerce’s Privatization Remand does not contain a finding with respect to this issue. (Id. at 21-22.) “Instead,” AHMSA maintains, “the Department apparently concluded that this question did not have to be answered, because the corporate entity named AHMSA survived the privatization transaction legally intact.” (Id. at 22.) AHMSA argues this focus on corporate formalities is inconsistent with this Court’s remand order and evidence submitted by AHMSA during remand “regarding the fundamental changes in AHM-SA’s facilities, legal status, management and cost structure that resulted from the privatization.” (Id. (referencing AHMSA’s Comments App. 1).) AHMSA was, it contends, “a very different company” after privatization. (Id.) B. The Domestic Producers According to Domestic Producers, British Steel “enunciates a simple rule: If a subsidized company is privatized through the sale of its shares, the subsidies remain countervailable because nothing has occurred to remove them from the company.” (Domestic Producers’ Rebuttal Comments in Supp. of the Final Results of Redetermination Regarding the General Issue of Privatization (Domestics’ Comments) at 4 (footnote omitted).) AHMSA, Domestic Producers contend, was privatized solely through a sale of shares, regardless of whether GAN may also have purchased other assets. Domestic Producers further contend post-privatization AHMSA was for all intents and purposes the same entity that received subsidies prior to privatization. In so doing, Domestic Producers argue as follows. First, contrary to AHMSA’s contention, even after spin-offs of various units and assets prior to privatization, “AHMSA is clearly essentially the same entity that received the subsidies.” (Id. at 6-7.) Second, the end of government ownership itself does not represent a fundamental change in the entity. Similarly, the fact that transfer in ownership means GAN controls AHMSA’s management is “completely normal in the course of business” and “does not alter the essential nature of the corporation.” (Id. at 7.) Third, the question of whether AHMSA’s cost structure has changed because it now includes the costs GAN incurred in purchasing AHMSA has no relevance to AHMSA’s essential nature. In sum, Domestic Producers argue GAN purchased “an ongoing concern, a corporation that retained its independent legal identity. AHMSA has pointed out no change that in any way would have represented a return by it to the GOM of the benefits it had received from pre-privatization subsidies.” (Id. at 8.) Finally, Domestic Producers contend AHMSA’s argument that it was sold at fair market value is irrelevant, and that Commerce’s determination AHMSA was not sold at fair market value is supported by substantial evidence. To support their argument concerning relevance, Domestic Producers argue as follows: Whether or not AHMSA was privatized at or below fair market value has no connection at all with the issue of whether the Department can continue to countervail AHMSA’s pre-privatization subsidies. Even if AHMSA was sold at fair market value, the sale would affect only the ownership of the company’s shares. It would not affect “the life or nature of the corporate entity purchased.” The sale of AHMSA at less than fair market value likewise would not have any effect upon the company, because the company itself would not necessarily derive any benefit from the transaction. (Id. at 9 (footnotes omitted).) Domestic Producers contend the sale of AHMSA was at less than fair market value because, first, in accepting GAN’s bid, the GOM considered factors a commercially-motivated seller would not have and the GOM consequently accepted less than a commercial seller would have required,[] and [second] because GAN paid less for AHMSA than a competing bidder would have paid. (Id. at 12.) Domestic Producers point to GOM’s consideration of the committed investment and argue “a commercial seller simply would not consider what amounts the potential buyer intended to invest in the company after the sale, because those amounts have no relation to what the company is worth to the seller.” (Id. at 13.) Additionally, although Domestic Producers agree that the committed investment portion of GAN’s bid imposed an economic cost on GAN, they argue it is incorrect to attribute this cost to the purchase of AHMSA: What GAN was purchasing with its bid of cash plus committed investment was AHMSA plus the additional production facilities created by the additional investment. As GAN is a private party, it presumably would make investments only if it expected to earn a reasonable rate of return upon them____ [T]he value of those new facilities would be at least approximately equal to the value of the committed investment. Thus, the only cost that GAN actually incurred for the purchase of AHMSA alone was the cash portion of its bid. (Id.) Domestic Producers further argue that the existence of a higher alternative bid confirms GAN purchased AHMSA for less than fair market value, and that if GAN’s committed investment was not made on terms consistent with commercial considerations, it provided an additional indirect subsidy to AHMSA. C. The Department of Commerce Commerce first contends it properly determined that it may continue to countervail AHMSA because AHMSA was privatized through a sale of shares. According to Commerce, in British Steel this Court held “that Commerce’s ability to countervail pre-privatization subsidies continues where the privatization in question was effected through a sale of shares.” (Def.’s Resp. to Comments on the Remand Determ, on the General Issue of Privatization (Def.’s Resp.) at 16 (citation omitted).) According to Commerce, this is how AHMSA was privatized — through a sale of shares in which “GAN not only purchased the assets of AHMSA, it purchased AHMSA itself.” (Id. at 19.) Thus, Commerce explains, “consistent with the clear language of the Court’s opinion,” Commerce determined it would continue to countervail the subject merchandise from AHMSA. Second, Commerce contends it properly determined it did not reach the question of whether AHMSA was, for all intents and purposes, the same entity that received subsidies. Commerce acknowledges the Court instructed it to determine whether each privatized entity continues to be, for all intents and purposes, the same entity that received subsidies prior to the privatization transaction, but maintains the Court did not provide guidance on this instruction. Commerce explains, however, that the Court also instructed it to determine whether each privatization was effected through a sale of shares or assets, and that Commerce observed as follows in the Privatization Remand: “[wjhere a corporate entity was privatized through a stock sale, the corporate entity which received the subsidies remains the same; there is merely a change in ownership____ In such a case, the question of whether the privatized entity continues to be, for all intents and purposes, the same entity that received subsidies is not reached because there is no change in the corporate form.” (Id. at 19-20 (quoting Privatization Remand at 11-12) (emphasis added in Def.’s Resp.).) Commerce claims it “reasonably determined that, once it finds that a given privatization is a stock sale, that is the end of the matter — it need not go on to make a separate ‘all intents and purposes’ finding.” (Id. at 20.) “In other words,” Commerce explains, “a corporation that is privatized through a sale of shares is, by definition, the same corporation that received the subsidies.” (Id.) Commerce also disagrees with AHMSA’s reading of British Steel, which Commerce characterizes as focused on “whether a corporation is ‘for all intents and purposes the same after privatization as it had been before.’ ” (Id. at 21 (quoting AHMSA’s Comments at 22).) According to Commerce, “[i]n emphasizing the word ‘all,’ AHMSA suggests that the post-privatization corporation must be, in every respect, identical to the pre-privatization corporation if it is to be ‘for all intents and purposes’ the same.” (Id.) “If the privatization event itself is enough to ensure that a corporation is not for all intents and purposes the same,” Commerce argues, “then the Court’s instruction to the Department is meaningless.” (Id. at 21-22 (footnote omitted).) Finally, Commerce contends that although “the question of whether AHMSA was sold at arm’s length, for fair market value and consistent with commercial considerations should have no bearing on the Department’s ability to countervail AHMSA’s pre-privatization subsidies, because AHMSA was privatized through a sale of shares,” Commerce’s determinations concerning fair market value and commercial considerations were reasonable, supported by substantial evidence, and otherwise in accordance with law. (Id. at 23.) Commerce claims it evaluated the transaction to determine whether the transaction was for fair market value and consistent with commercial considerations, but it was unable to determine that it was: Because the goal of preserving domestic steel production may not reflect considerations of a commercial seller, we cannot find that the GOM’s bid evaluation formula, and its decision to sell to GAN, was consistent with commercial considerations. Moreover, because all bids submitted for AHMSA were structured according to the bid evaluation formula, we cannot find that those bids provide a measure for fair market value. Privatization Remand at 29, quoted in Def.’s Resp. at 24. In further support of this contention, Commerce discredits AHMSA’s arguments supporting AHMSA’s position that the GOM received fair market value on privatization. First, Commerce argues it properly did not use the independent consultants’ valuations of AHMSA. Because certain considerations that Commerce determined may not reflect the considerations of a commercial seller were reflected in the bid evaluation formula, Commerce maintains, it could not conclude that any bid submitted according to that formula reflected fair market value. “Given the GOM’s motivations,” Commerce continues, “the fact that the GOM received more for AHMSA than the values computed by outside parties does not establish that the GOM received fair value.” (Def.’s Resp. at 25.) Second, Commerce arg