Maclean-Fogg Co. v. United States

SLIP OP 12 - 47

UNITED STATES COURT OF INTERNATIONAL TRADE

MACLEAN-FOGG COMPANY, et al.,

Plaintiffs,
Before: Donald C. Pogue,
v. Chief Judge

UNITED STATES, Consol. Court No. 11-00209

Defendant.

OPINION

[Commerce’s all-others countervailing duty rate REMANDED.]

Dated: April 4, 2012

Mark B. Lehnardt, Lehnardt & Lehnardt LLC, of Liberty, MO, for
the Plaintiff-Intervenors Eagle Metal Distributors, Inc. and Ningbo
Yili Import and Export Co., Ltd.

Craig A. Lewis, Theodore C. Weymouth, and Brian S. Janovitz,
Hogan Lovells US LLP, of Washington, DC, for the Plaintiff-
Intervenor Evergreen Solar, Inc.

Thomas M. Keating, and Lisa M. Hammond, Hodes, Keating and
Pilon, of Chicago, IL, for Plaintiffs Maclean-Fogg Co. and Fiskars
Brands, Inc.

Tara K. Hogan, Trial Attorney, Commercial Litigation Branch,
Civil Division, United States Department of Justice, of Washington,
DC, for the Defendant. With her on the briefs were Tony West,
Assistant Attorney General; Jeanne E. Davidson, Director; and
Reginald T. Blades Jr., Assistant Director. Of counsel on the
briefs were, Joanna Theiss, Office of the Chief Counsel for Import
Administration, United States Department of Commerce, and

Stephen A. Jones, Christopher T. Cloutier, Daniel L.
Schneiderman, Gilbert B. Kaplan, Joshua M. Snead, and Patrick J.
Togni, King and Spalding LLP, of Washington, DC, for the Defendant-
Intervenor Aluminum Extrusions Fair Trade Committee.
Consol. Court No. 11-00209 Page 2

Pogue, Chief Judge: In this action, Plaintiffs, four

domestic importers and one exporter of extruded aluminum,

challenge the all-others countervailing duty (“CVD”) rate set by

the Department of Commerce (“the Department” or “Commerce”) in

its investigation of their goods imported from the People’s

Republic of China. We have jurisdiction under Section

516A(a)(2)(B)(i) of the Tariff Act of 1930, as amended, 19 U.S.C.

1516a(a)(2)(B)(i)(2006)1 and 28 U.S.C. § 1581(c).

After a brief review of the relevant background and

applicable standard of review, the court will explain why it

concludes that Commerce has not presented, for its rate choice,

a logical basis or explanation which considers the important

aspects of the problem presented. Accordingly, the all-others

rate is remanded for reconsideration.

BACKGROUND

This case arises from Commerce’s initiation of companion CVD

and antidumping (“AD”) investigations into various Chinese

exporters and producers of aluminum extrusions.2 See Aluminum

1
All further citations to the Tariff Act of 1930, as
amended, are to Title 19 of the U.S. Code, 2006 edition.
2
The merchandise covered by the investigation are aluminum
shapes and forms created by the extrusion process and made from
aluminum alloys which correspond to the Aluminum Association
designations beginning with the numbers 1, 3, or 6. Final
Determination, 76 Fed. Reg. at 18,521. These forms are produced
in a variety of shapes, ranging from solid to hollow profiles in
Consol. Court No. 11-00209 Page 3

Extrusions from the People’s Republic of China, 75 Fed. Reg.

22,114 (Dep’t Commerce Apr. 27, 2010) (Initiation of

Countervailing Duty Investigation) (“CVD Initiation”). Because

Commerce’s investigation involved 114 potential

exporter/producers (“respondents”), Aluminum Extrusions from the

People’s Republic of China, 76 Fed. Reg. 18,521 (Dep’t Commerce

Apr. 4, 2011) (Final Affirmative Countervailing Duty

Determination) (“Final Determination”) and accompanying Issues

and Decision Memorandum (“I&D Memo”) at Comment 10 (Mar. 28,

2011), Commerce initially selected the three largest respondents

by volume as mandatory respondents.3 However, none of these

pipes, tubes, bars, and rods. They may also be prepared for
assembly by being cut-to-length, machined, drilled, punched,
notched, bent, stretched, knurled, swedged, mitered, chamfered,
threaded, and spun. Id.
3
Where there is such a large number of potential
respondents, the statute permits Commerce to select either a
statistically valid set of exporters and producers or those that
are the largest by volume. See 19 U.S.C. § 1677f-1(e)(2):

If the administering authority determines that it is not
practicable to determine individual countervailable subsidy
rates under paragraph (1) because of the large number of
exporters or producers involved in the investigation or
review, the administering authority may--

(A) determine individual countervailable subsidy rates for a
reasonable number of exporters or producers by limiting its
examination to--

(i) a sample of exporters or producers that the
administering authority determines is statistically
valid based on the information available to the
Consol. Court No. 11-00209 Page 4

three mandatory respondents responded to Commerce’s initial

questionnaire. See Respondent Selection Memorandum at 4, May 18,

2010, ECF No. 39, Tab D (citing 19 U.S.C. § 1677f-1(e)(2))

(“Respondent Selection Memo”); I&D Memo, Section VI at 5.

Commerce therefore found that these mandatory respondents

“withheld requested information and significantly impeded [the]

proceeding.” I&D Memo, Section VI. Commerce further found that

because the three mandatory respondents failed to act to the best

of their abilities in the investigation, an adverse inference was

warranted, such that Commerce would use adverse facts available

(“AFA”) in calculating their countervailing duty rate. Commerce

intended to calculate an AFA rate to ensure the mandatory

respondents did not obtain a more favorable rate than if they had

cooperated with Commerce’s request for information. Id. (relying

on and citing 19 U.S.C. § 1677e(b)).

Accordingly, and citing its longstanding practice, in

calculating, for the three mandatory respondents, an AFA CVD

administering authority at the time of selection, or

(ii) exporters and producers accounting for the largest
volume of the subject merchandise from the exporting
country that the administering authority determines can
be reasonably examined; or

(B) determine a single country-wide subsidy rate to be
applied to all exporters and producers.”)
Consol. Court No. 11-00209 Page 5

rate, Final Determination, 76 Fed. Reg. at 18,523,4 Commerce

selected the “highest calculated rate in any segment of the

proceeding.” Aluminum Extrusions from the People’s Republic of

China, 75 Fed. Reg. 54,302, 54,305 (Dep’t Commerce Sep. 7, 2010)

(preliminary affirmative countervailing duty determination)

(“Preliminary Determination”) (citing Laminated Woven Sacks From

the People’s Republic of China: Final Affirmative Countervailing

Duty Determination and Final Affirmative Determination, in Part,

of Critical Circumstances, 73 Fed. Reg. 35,639 (Dep’t Commerce

June 24, 2008)). More specifically, Commerce typically uses the

highest program-specific rates calculated for cooperating

respondents in the current or in prior CVD proceedings. Here,

Commerce used the “highest calculated subsidy rate for any

program otherwise listed that could conceivably be used by the

non-cooperating companies” and arrived at a final rate of 374.15%

for each of the three mandatory respondents.5 Id. at 54,305;

Final Determination, 76 Fed. Reg. at 18,523.

Two other companies submitted responses and were chosen by

4
Commerce, pursuant to its statutory mandate, uses
information derived from the petition, final determination, any
previous review or determination and/or any other information
placed on the record. Preliminary Determination, 75 Fed. Reg. at
54, 304 (citing 19 U.S.C. § 1677e(b) and 19 C.F.R.
§ 351.308(c)(1) and (2).
5
In its preliminary determination, Commerce calculated an
AFA rate of 137.65%. Preliminary Determination, 75 Fed. Reg. at
54,320–21.
Consol. Court No. 11-00209 Page 6

Commerce to participate in the investigation as voluntary

respondents: Zhaoqing New Zhongya Aluminum Co., Ltd., Zhongya

Shaped Aluminum HK Holding Ltd., and Karlton Aluminum Company

Ltd. (collectively “Zhongya”) and Guang Ya Aluminum Industries

Co., Ltd., Foshan Guangcheng Aluminum Co., Ltd., Guang Ya

Aluminum Industries Hong Kong, Kong Ah International Company

Limited, and Yongji Guanghai Aluminum Industry Co., Ltd.

(collectively “Guang Ya”). In the final determination, Commerce

issued a final CVD rate of 8.02% ad valorem for Zhongya, and

9.94% ad valorem for Guang Ya. Final Determination, 76 Fed. Reg.

at 18,522–23.6

Having calculated rates for the mandatory and voluntary

respondents, Commerce then calculated the CVD rate for the

remaining “all-other” respondents, arriving at a rate of 374.15%.

Final Determination, 76 Fed. Reg. at 18,822–23. This rate is

identical to and calculated as a weighted average of the AFA

rates Commerce issued for the three non-cooperating mandatory

respondents. In choosing to use the weighted average of the

rates determined for the mandatory respondents, Commerce excluded

the rates calculated for the voluntary respondents. In doing so,

Commerce relied on 19 C.F.R. § 351.204(d)(3) which permits

6
Unlike the AFA rate, the final voluntary respondents’
rates did not differ significantly from the preliminary rates,
which were 10.37% ad valorem and 6.18% ad valorem respectively.
See Preliminary Determination, 75 Fed. Reg. at 54,321.
Consol. Court No. 11-00209 Page 7

Commerce to exclude any rates calculated for voluntary

respondents when calculating the all-others rate. I&D Memo,

Section XI, Comment 9 at 54; 19 C.F.R. § 351.204(d)(3).

Plaintiffs allege that when averaging rates to calculate

the all-others rate, Commerce’s decision to omit any rates

calculated for voluntary respondents is expressly prohibited by

the governing statute, 19 U.S.C. § 1671d(c)(5)(A)(i)–(ii)

(“section 1671d"). Plaintiffs also contend that 19 C.F.R.

§ 351.204(d)(3) is invalidly promulgated in light of the alleged

lack of ambiguity of the statute. Finally, Plaintiffs assert

that Commerce’s chosen methodology is unreasonable and not

supported by substantial evidence.

STANDARD OF REVIEW

When reviewing Commerce’s “determinations, findings or

conclusions” in a countervailing duty investigation, the Court

determines whether they are “unsupported by substantial evidence

on the record, or otherwise not in accordance with law.”

19 U.S.C. § 1516a(b)(1)(B)(i). Substantial evidence is evidence

which, considering the record as a whole, “a reasonable mind

might accept as adequate to support a conclusion.” Universal

Camera Corp. v. N.L.R.B., 340 U.S. 474, 477, 491 (1951) (citing

Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). In

presenting its findings, the agency must explain its standards

and “rationally connect them to the conclusions drawn from the
Consol. Court No. 11-00209 Page 8

record.” U.S. Steel Corp. v. United States, Slip Op. 10-104,

2010 Ct. Intl. Trade LEXIS 107 (CIT Sep. 13, 2010) at *4 (citing

Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut.

Auto. Ins. Co., 463 U.S. 29, 43(1983); Matsushita Elec. Indus.

Co. v. United States, 750 F.2d 927, 933 (Fed. Cir. 1984)). The

conclusion Commerce reaches need not be the best or only possible

conclusion, merely a reasonable one. See Lifestyle Enterprise,

Inc. v. United States, Slip-Op 11-16, 2011 WL 637667 at *10 (CIT

Feb. 11, 2011).

DISCUSSION

Because Plaintiffs’ first two claims are related, the court

will consider them in Part A below, and then turn to Plaintiffs’

remaining claim in Part B.

A.

Plaintiffs first raise a straightforward Chevron challenge,7

7
Under this familiar standard, when the court reviews an
agency’s statutory interpretation, it must first determine
whether Congress “has directly spoken to the precise question at
issue.” Chevron, U.S.A., Inc. v. Natural Res. Def. Council,
Inc., 467 U.S. 837, 842 (1984). If Congress has clearly
expressed its intent on the issue, then the court must give
effect to this unambiguous intent. Chevron, 467 U.S. at 842–43.
If the court finds that “the statute is silent or ambiguous with
respect to the specific issue, the question for the court is
whether the agency’s interpretation is based on a permissible
construction of the statute.” Id. at 843. In this “second step”
review, the court must look to the structure and language of the
statute as a whole. K Mart Corp. v. Cartier, Inc., 486 U.S. 281,
291 (1988); Sullivan v. Everhart, 494 U.S. 83, 89 (1990). If it
Consol. Court No. 11-00209 Page 9

asserting that section 1671d unambiguously requires that the all-

others rates be based on all “individually investigated”

respondents and therefore Commerce erred by excluding voluntary

respondents from the calculation of the all-others rate.

Section 1671d states, in relevant part:

[T]he all-others rate shall be an amount equal to the
weighted average countervailable subsidy rates
established for exporters and producers individually
investigated, excluding any zero and de minimis
countervailable subsidy rates, and any rates determined
entirely under section 1677e.[8]

If the countervailable subsidy rates established for all
exporters and producers individually investigated are
zero or de minimis rates, or are determined entirely
under section 1677e of this title, the administering
authority may use any reasonable method to establish an
all-others rate for exporters and producers not
individually investigated, including averaging the
weighted average countervailable subsidy rates determined
for the exporters and producers individually
investigated.

19 U.S.C. § 1671d(c)(5)(A)(i)–(ii).

determines that the agency’s interpretation is reasonable, then
the court must uphold that interpretation, even if the court does
not believe it to be the best statutory interpretation. Adair v.
United States, 497 F.3d 1244, 1252 (Fed. Cir. 2007) (citing Nat’l
Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S.
967, 980 (2005)); Chevron, 467 U.S. at 842-43; Zenith Radio
Corp. v. United States, 437 U.S. 443, 450 (1978).
8
Section 1677e refers to rates for the mandatory
respondents that are calculated, as here, with adverse facts
available. 19 U.S.C. § 1677(e).
Consol. Court No. 11-00209 Page 10

Plaintiffs assert that the statute is unambiguous and

clearly refers to all individually investigated respondents,

whether mandatory or voluntary. They urge the court to read the

statute as establishing only two distinct categories of

respondents: those that are individually investigated and those

that are not. Plaintiffs’ Br. at 17, Oct. 31, 2011, ECF No. 29

(referring to 19 U.S.C. § 1671d(c)(5)(A)(i)).

But the statute does not say “all.” Nor does the statute

clearly specify which particular subset of respondents Commerce

is to rely upon when setting the all-others rate. While section

1671d does refer to “individually investigated” respondents,

Congress does not define “individually investigated” as used in

19 U.S.C. § 1671d(c)(5)(A)(i)–(ii), see 19 U.S.C. § 1202 et seq,

and the statutory language does not articulate the exact sources

from which Commerce is required to extract data when making its

calculations.

Plaintiffs contend that because Congress did not

differentiate between mandatory and voluntary respondents in

section 1671d, but did so in other portions of the statute, it

must have intended all individually investigated respondents,

whether mandatory or not, to be encompassed by the statutory

language. Plaintiff’s Br. at 17.

Plaintiffs are correct insofar as they claim that the court
Consol. Court No. 11-00209 Page 11

is to read a statutory provision in the context of the statute as

a whole. See Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997)

("The plainness or ambiguity of statutory language is determined

by reference to the language itself, the specific context in

which that language is used, and the broader context of the

statute as a whole."). But the statute as a whole includes

another provision, 19 U.S.C. § 1677f-1(e), which at least

suggests that Congress intended for Commerce to, in some

reasonable way, use rates from mandatory respondents when

calculating the all-others rate under section 1671d. See 19

U.S.C. § 1677f-1(e). Section 1677f-1(e) states that when there

are too many importers or producers to make it practical for

Commerce to set individual CVD rates, “individual countervailable

subsidy rates determined under subparagraph (A) shall be used to

determine the all-others rate under section 1671d(c)(5).”

Subparagraph (A) sets forth the process by which Commerce selects

mandatory respondents. 19 U.S.C. § 1677f-1(e). In light of this

provision, Plaintiffs’ contention that section 1671d

unambiguously refers to all individually investigated

respondents, whether mandatory or voluntary, fails. See Union

Steel v. United States, __ CIT __, Slip Op. 12-24 (Feb. 27, 2012)

at *17–19 (holding that the term “weighted average dumping

margin” is not so specific as to require a particular

calculation). Rather, Commerce correctly concludes that the
Consol. Court No. 11-00209 Page 12

statute is ambiguous. Antidumping Duties; Countervailing Duties,

62 Fed. Reg. 27,296, 27,351 (Dep’t Commerce May 19, 1997) (Final

Rule) (“Preamble”).

In their second and related claim, Plaintiffs assert that

because section 1671d is unambiguous, Commerce therefore

invalidly promulgated and relied on 19 C.F.R. § 351.204(d)(3).

Commerce responds that the regulation was validly promulgated and

necessary to fill the uncertainty created by the statute.

Commerce explains that when it was promulgating 19 C.F.R.

§ 351.204(d)(3), it looked to Article 9.4 of the World Trade

Organization (“WTO”) Antidumping Agreement for guidance. That

Article contemplates “parallel proceedings for voluntary

respondents.” Commerce also states that, for policy reasons, it

excluded voluntary respondents’ rates from its all-others

calculation. Gov’t Response at 17–19, Jan. 4, 2012, ECF No. 33.

All parties agree that the WTO Subsidies and Countervailing

Measures Agreement, which governs countervailing duty measures,

contains no provision parallel to Article 9.4 of the WTO

Antidumping Agreement. The parties, however, arrive at two

different conclusions from this difference. Plaintiffs contend

that the absence of such a provision, in the Subsidies Agreement,

indicates that the Antidumping Agreement should have no bearing

on a CVD investigation. Commerce, on the other hand, relies on
Consol. Court No. 11-00209 Page 13

legislative history to conclude that Congress believed it was

“appropriate to treat voluntary responses in countervailing duty

investigations in a similar manner.” Gov’t Response at 19

(citing S.R. 103-412 at 83 (1984)). Commerce further argues that

voluntary respondents are unrepresentative of the remaining

companies because of the incentives in the statute. Commerce

contends that respondents will voluntarily seek review only when,

knowing their own commercial practices, they have good reason to

believe that their rates will be lower than those set for the

mandatory respondents, regardless of whether those mandatory

respondents are cooperative or not. Gov’t Response at 24.

Therefore, Commerce reasons, including rates from a “self

selected group” such as the voluntary respondents, would “be

expected to distort the weighted-average for the respondents

selected by the Department on a neutral basis.” Gov’t Response

at 22 (citing Preamble, 62 Fed. Reg. at 27,310).

This explanation for promulgating and relying on 19 C.F.R.

§ 351.204(d)(3) is reasonable. As the WTO Subsidies and

Countervailing Measures Agreement is silent on the issue, 19

C.F.R. § 351.204(d)(3) was validly promulgated as a reasonable

interpretation of 19 U.S.C. § 1671d(c)(5)(A).9

9
Plaintiffs also argue that the final all-others rate
chosen by Commerce, 374.15%, amounts to an unlawful application
of an AFA rate because it is identical to the AFA rate but was
imposed without the statutorily required finding of non-
Consol. Court No. 11-00209 Page 14

B.

Our decision that the establishment of an all-others rate is

not controlled by the Plaintiffs’ reading of the statute’s

provisions, and to uphold Commerce’s regulation, is not the end

of the matter. Nor is it conclusive either that Commerce’s

regulation permits it not to include, in its all-others

calculation, CVD rates calculated for voluntary respondents, 19

CFR § 351.204(d)(3), or that Commerce is permitted to use the

individual AFA subsidy rates determined for the high-volume

mandatory respondents in its establishment of an all-others rate.

19 U.S.C. §1677f-1(e). This is because the statute also requires

that Commerce must use a “reasonable method” for establishing

that all-others rate. 19 U.S.C. §1671d(c)(5)(A)(ii).10

The issue therefore is whether Commerce’s decision to

calculate the all-others rate using the weighted average of the

rates determined for the mandatory respondents, all of whom were

cooperation. Plaintiff’s Br. at 26–27. The statute, however,
expressly allows Commerce to use facts available rates, at least
in some reasonable way, to calculate the all-others rates. 19
U.S.C. § 1671d(c)(5)(A)(ii). Therefore, Plaintiff’s argument is
unavailing.
10
As noted above, section 1671d provides for Commerce to
“use any reasonable method to establish an all-others rate for
exporters and producers not individually investigated” when the
rates determined for exporters and producers is zero, de minimis,
or calculated entirely under AFA. 19 U.S.C.
§ 1671d(c)(5)(A)(i)–(ii).
Consol. Court No. 11-00209 Page 15

non-cooperative and therefore received AFA rates, is

reasonable.11

We begin our analysis of whether Commerce’s method used here

was reasonable with a brief consideration of the two prior agency

decisions upon which Commerce relies, Certain Potassium Phosphate

Salts from the PRC, 75 Fed. Reg. 30,375 (Dep’t Commerce Jun. 1,

2010)(Final Affirmative Countervailing Duty Determination and

Termination of Critical Circumstances Inquiry) (“Phosphate Salts

From the PRC”) and Raw Flexible Magnets from the People's

Republic of China, 73 Fed. Reg. 39,667 (Dep’t Commerce Jul. 10,

2008) (Final Affirmative CVD Determination) (“Flexible Magnets

from the PRC”). Neither of these investigations involved

voluntary respondents; rather the record was limited to mandatory

respondents. Accordingly, these cases are not precedent for the

decision here, and thus do not provide a basis for Commerce’s

choice.

Aside from its reliance on Phosphate Salts from the PRC and

Flexible Magnets from the PRC, and after rejecting the arguments

of the parties regarding its selection of an all-others rate,

ultimately, Commerce states that it made the choice to set the

all-others rate as equal to the AFA rate “[b]ecause there were no

11
Plaintiffs also challenge Commerce’s preliminary all-
others rate. However, the court’s jurisdiction under 28 U.S.C.
§ 1581(c) is to review final agency action.
Consol. Court No. 11-00209 Page 16

calculated rates for individually investigated mandatory

respondents on this record.” I&D Memo, Comment 9 at 52. But

this was a situation of Commerce’s own making. Nothing prevented

Commerce from identifying other respondents for mandatory

investigation.

Moreover, the rates for voluntary respondents were on the

record. While Commerce was permitted not to use the voluntary

respondents’ rates in setting the all-others rate, these rates

nonetheless demonstrate that the AFA rate was not attributable to

all respondents. Similarly, while Commerce was permitted to

recognize that the remaining or all-other producers/exporters had

chosen not to seek voluntary respondent status, and thus could

not assume or rely on being granted a rate based on the voluntary

respondents’ rates, there is nothing on the record here that

indicates that the AFA rate is attributable to these other

parties.

Commerce disputes this aspect of the Plaintiffs’ challenge

by noting that Plaintiffs have been unable to cite case law which

holds that an all-others rate must be corroborated. But this

argument misses the point. Administrative law is rooted in the

reasonableness standard, and this standard applies with equal

force regardless of whether the issue originates in an

antidumping or countervailing duty investigation.
Consol. Court No. 11-00209 Page 17

Certainly it is the parties’ responsibility to create a

record from which Commerce may decide the issues presented. See

QVD Food Co. v. United States, 658 F.3d 1318, 1324 (Fed. Cir.

2011) (“Although Commerce has authority to place documents in the

administrative record that it deems relevant, ‘the burden of

creating an adequate record lies with [interested parties] and

not with Commerce.’” (alteration in original) (quoting Tianjin

Mach. Imp. & Exp. Corp. v. United States, 16 CIT 931, 936, 806 F.

Supp. 1008, 1015 (1992)). Here, the Plaintiffs chose to leave

Commerce with the difficult task of selecting an all-others rate

with limited information before it.

Nonetheless, there is nothing in Commerce’s decision which

indicates a logical connection between the AFA rate and

Commerce’s conclusion to apply that rate to the remaining

parties. See Burlington Truck Lines Inc. v. United States, 371

U.S. 156, 168 (1962)(requiring a rational connection between the

facts found and the choice made). There is nothing to indicate

that Commerce “examine[d] the relevant data and articulate[d] a

satisfactory explanation for its action.” Id.; see also, China

Kingdom Imp. & Exp. Co. v. United States, 31 CIT 1329, 1358

(2007) (Commerce has a responsibility to ensure accuracy of

rates).

Here Commerce chose to select the largest
Consol. Court No. 11-00209 Page 18

exporters/producers by volume as mandatory respondents rather

than to select a representative, valid sample of

exporters/producers as permitted by 19 U.S.C. § 1677f-

1(e)(2)(A)(i). Respondent Selection Memo at 4. While this

choice is permitted by law, 19 U.S.C. § 1677f-1(c)(2)(B), having

made such a choice – and having chosen not to select a

representative, valid sample – Commerce cannot then claim that

the rates determined for the large volume respondents are

representative of other exporters/producers. Similarly, while

Commerce’s regulation states that the all-others rate shall

exclude the weighted average of the voluntary respondents’ rates,

that regulation does not provide a basis for asserting that the

mandatory respondents’ AFA rate is appropriate for other

exporters/producers.

Finally, an AFA rate is to be remedial, not punitive. KYD,

Inc. v. United States, 607 F.3d 760, 767–78 (Fed. Cir. 2010).

Nothing on the record here indicates that Commerce considered how

to serve this purpose in selecting the applicable all-others rate

in this case. Thus Commerce, in making its choice, failed to

consider an important aspect of the problem presented. Motor

Vehicles Mfrs. Ass’n, 463 U.S. at 43.

In this case, Commerce is required to make a reasonable

decision, considering the important aspects of the problem
Consol. Court No. 11-00209 Page 19

presented, and explain why that decision complies with the

statutory reasonableness requirement. We remand to give it the

opportunity to do so.

CONCLUSION

For the forgoing reasons, Commerce’s calculations are

REMANDED.

Commerce shall have until May 4, 2012 to complete and file

its Remand Results. Plaintiffs, Plaintiff-Intervenors, and

Defendant-Intervenor shall have until May 18, 2012 to file

comments. Plaintiffs, Plaintiff-Intervenors, Defendant, and

Defendant-Intervenor shall have until May 30, 2012 to file any

reply.

It is SO ORDERED.

/s/ Donald C. Pogue
Donald C. Pogue, Chief Judge

Dated: April 4, 2012
New York, New York