Maclean-Fogg Co. v. United States , 836 F. Supp. 2d 1367 ( 2012 )

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