Mayer, Chief Judge, Skelton, Senior Circuit Judge, and Plager, Circuit Judge.
The opinion of the court was delivered by: Mayer, Chief Judge
Appealed from:United States Court of International Trade Chief Judge Gregory W. Carman United States Court of Appeals for the Federal Circuit
Opinion for the court filed by Chief Judge Mayer. Concurring in part and Dissenting in part opinion filed by Circuit Judge Plager.
Inland Steel Bar Co. ("Inland Steel") and the United States appeal the judgment of the Court of International Trade, Consol. Court No. 93-04-00234 (Feb. 10, 1997), Inland Steel Bar Co. v. United States, 960 F. Supp. 307 (Ct. Int'l Trade 1997) ("Inland Steel IV"), affirming the final determination of the United States Department of Commerce ("Commerce") in Certain Hot Rolled Lead and Bismuth Carbon Steel Prods. from the United Kingdom, 58 Fed. Reg. 6237 (Dep't Comm. Jan. 27, 1993), as modified on remand in Remand Determination: Certain Hot Rolled Lead and Bismuth Carbon Steel Prods. from the United Kingdom Pursuant to Inland Steel Bar Co. v. United States, Slip Op. 96-134 (CIT Aug. 13, 1996) (Sept. 13, 1996) ("Remand Determination II"). They also appeal the Court of International Trade's order in Inland Steel Bar Co. v. United States, 936 F. Supp. 1052 (Ct. Int'l Trade 1996) ("Inland Steel III"), remanding the case to Commerce. We reverse and remand.
In 1986, British Steel Corp., a United Kingdom, government owned company (privatized in 1988 as British Steel, PLC), and Guest, Keen and Nettlefolds, a privately-owned, British company, established United Engineering Steels Ltd. ("United Engineering") as a joint venture. British Steel Corp. contributed its Special Steel Division ("Division") to United Engineering in return for stock in the joint venture. Commerce found that British Steel Corp.'s transfer of the Division to United Engineering was at arm's-length on terms consistent with commercial considerations and that United Engineering was a separate entity not controlled by British Steel Corp. *fn1 See Certain Hot Rolled Lead and Bismuth Carbon Steel Prods. from the United Kingdom, 58 Fed. Reg. 6237, 6240 (Dep't Comm. Jan. 27, 1993) ("Final Determination"). Nevertheless, because British Steel Corp. received government subsidies from 1977-82, see British Steel Corp. v. United States, 605 F. Supp. 286, 289, 294-95 (Ct. Int'l Trade 1985), Commerce examined whether any of these subsidies traveled with the Division to United Engineering. Commerce initially determined that "a company's sale of `business' or `productive unit' does not alter the effect of previously bestowed subsidies." Final Determination, 58 Fed. Reg. at 6240. Because it found that the Division is a productive unit, it determined that the portion of British Steel Corp.'s subsidies attributable to the Division traveled to United Engineering. Commerce measured United Engineering's resulting subsidy as "an ad valorem subsidy of 12.69 percent." See id. at 6241.
Commerce's policy on repayment of subsidies during privatization transactions continued to evolve. On July 9, 1993, Commerce published the General Issues Appendix, 58 Fed. Reg. 37,225, 37,259-73 (Dep't Comm. July 9, 1993), which affirmed its previous position that subsidies can travel to a private or privatized company and announced repayment methodologies for determining what portion of the subsidies is repaid and thereby extinguished. See id. Because it did not take into consideration whether a part of the Division's purchase price repaid a portion of the prior subsidies, Commerce requested and on September 20, 1993, received a remand from the Court of International Trade to address this issue.
On remand, Commerce determined that although the portion of British Steel Corp.'s subsidies attributable to the Division traveled to United Engineering, some of these subsidies were repaid by the Division's purchase price. See Certain Hot Rolled Lead and Bismuth Carbon Steel Products from the United Kingdom, 58 Fed. Reg. 6237 (Dep't Comm. Jan. 27, 1993), as modified on remand in Remand Determination: Certain Hot Rolled Lead and Bismuth Carbon Steel Prods. from the United Kingdom (Oct. 10, 1993) ("Remand Determination I"). Commerce explained that this approach is "consistent with its position on privatization in [Certain Steel Prods. From the United Kingdom, 58 Fed. Reg. 37,393 (Dep't Comm. July 9, 1993) (final countervailing duty determination)] that the purchase price paid for all or part of a government-owned company can, at least in part, constitute repayment of prior subsidies." Remand Determination I at 1-2; see also General Issues Appendix, 58 Fed. Reg. at 37,262-63.
To determine the amount of the repayment, Commerce applied a repayment methodology that it had developed in the General Issues Appendix, 58 Fed. Reg. at 37,259-73. Commerce first calculated the amount of the potential pass-through subsidies, or the amount of subsidies that the Division possibly could have taken with it to United Engineering, by multiplying the ratio of the book value of the Division's assets to the book value of British Steel Corp.'s assets and "the net present value in the year of the spin-off of the future subsidy benefit streams from [British Steel Corp.]'s prior subsidies." To estimate the portion of the Division's purchase price attributable to these prior subsidies, Commerce divided the face value of the allocable subsidies received by British Steel Corp. by its net worth for each year it had received a subsidy prior to selling off the Division. Commerce applied the average of these ratios to the Division's purchase price and subtracted this amount from the total potential pass-through subsidies to arrive at the amount of the subsidies that traveled to United Engineering in 1986. Finally, Commerce determined the benefit allocable to United Engineering in 1991, the period of investigation, by dividing the traveled subsidies by "the net present value in the year of the spin-off of the future benefit streams from subsidies received by [British Steel Corp.] prior to the spin-off" and multiplying this percentage by "the total amount of the subsidies that would have been allocated to [British Steel Corp.] in 1991 absent any subsequent spin-offs or privatization." Commerce then divided the benefit allocable to United Engineering in 1991 by its total sales in 1991 to arrive at an ad valorem subsidy of 4.59%. See Remand Determination I at 2-4.
United Engineering appealed this determination to the Court of International Trade. Relying heavily on its reasoning in Saarstahl AG v. United States, 858 F. Supp. 187, 193 (Ct. Int'l Trade 1994) ("Saarstahl I"), rev'd, 78 F.3d 1539 (Fed. Cir. 1996) ("Saarstahl II"), the court held that the arm's-length nature of the transaction prevented the subsidies from traveling with the production unit. See Inland Steel Bar Co. v. United States, 858 F. Supp. 179, 186 (Ct. Int'l Trade 1994) ("Inland Steel I") ("Once a productive unit has been sold in an arm's length transaction at fair market value, Commerce must look to the subsidy recipient, in this case [British Steel Corp.], and reallocate the subsidy over the remaining business."). Inland Steel appealed to this court. We reversed and remanded "[f]or the reasons set forth in our opinion in Saarstahl [II]." Inland Steel Bar Co. v. United States, 86 F.3d 1174, 1996 WL 168937 (Fed. Cir. 1996) (nonprecedential) ("Inland Steel II").
On remand, the Court of International Trade instructed Commerce to determine whether the Division was "a productive unit capable of receiving a subsidy" based on the test developed in British Steel plc v. United States, 879 F. Supp. 1254 (Ct. Int'l Trade 1995) ("British Steel I") and British Steel plc v. United States, 924 F. Supp. 139 (Ct. Int'l Trade 1996) ("British Steel II"). *fn2 Inland Steel III, 936 F. Supp. at 1052-53. On remand, Commerce continued to use the definition of "productive unit" given in the General Issues Appendix, 58 Fed. Reg. at 37,268-namely, an operation capable of "(1) generating sales and (2) operating independently"-and continued to classify the Division as a productive unit. Commerce further explained that under British Steel I & II, only a person or artificial person that is capable of holding a property interest is capable of receiving a subsidy. In the British Steel line of cases, the Court of International Trade explained: where a private investor pays fair market value in an arm's-length transaction based upon commercial considerations for an asset or assets of a corporation, "there is no benefit conferred to the purchaser and therefore, no countervailable subsidy within the meaning of 19 U.S.C. § 1677(5)." . . . If, however, a purchaser buys into the subsidized corporate entity itself so that the subsidized entity continues in its corporate existence in whole or in part, Commerce may properly continue to countervail that entity in accordance with legislative intent. British Steel I, 879 F. Supp. at 1274 (quoting Saarstahl I, 858 F. Supp. at 193).
Based on its finding that the Division was not a legal entity and therefore not an artificial person, Commerce determined that the Division was not capable of receiving a subsidy. It thus concluded that British Steel Corp.'s subsidies did not travel with it to United Engineering and revised "the 4.59 percent ad valorem rate for United Engineering . . . determined under Commerce's privatization/repayment methodology . . . to an ad valorem rate of 0.0 percent." Remand Determination II at 2-5.
Inland Steel appealed this determination to the Court of International Trade which affirmed, reiterating its interpretation of 19 U.S.C. § 1677(5)(B) and 1671(a)(1)(B)(1988) as requiring that subsidies be held by only persons or artificial persons. See Inland Steel IV, 960 F. Supp. at 313. In the Court of International Trade's view, "a key issue in determining whether a countervailable subsidy exists is whether the entity in question is organized in such a manner that it is capable of ...