MacLean-Fogg Company v. United States

MACLEAN-FOGG CO., ET AL.,
Plaintiffs,
v.
UNITED STATES,
Defendant,
and
ALUMINUM EXTRUSIONS FAIR TRADE
COMMITTEE,
Defendant-Intervenor.
Slip Op. 15 - 85
UNITED STATES COURT OF INTERNATIONAL TRADE
OPINION and ORDER
[remanding U.S. Department of Commerce’s countervailing duty
determination]
Dated: August 11, 2015
Thomas M. Keating, Hoes Keating & Pilon, of Chicago,
IL, for Plaintiffs MacLean-Fogg Co. and Fiskars Brands, Inc.
Craig A. Lewis and T. Clark Weymouth, Hogan Lovells US
LLP, of Washington, DC, for Plaintiff Evergreen Solar, Inc.
Mark B. Lehnardt, Lehnardt & Lehnardt LLC, of Liberty,
MO, for Plaintiffs Eagle Metal Distributors, Inc. and Ningbo
Yili Import & Export Co., Ltd.
Tara K. Hogan, Senior Trial Counsel, and Douglas
Edelschick, Trial Attorney, Commercial Litigation Branch, Civil
Division, U.S. Department of Justice, of Washington, DC, for the
1 This case is consolidated with Ct. Nos. 11-00210, 11-00220,
and 11-00221. Order, Aug. 23, 2011, ECF No. 26, at ¶ 2.
PUBLIC VERSION
Before: Donald C. Pogue,
Senior Judge
Consol. Court No. 11-00209 1
Case 1:11-cv-00209-DCP Document 121 Filed 08/14/15 Page 1 of 32

Consol. Court No. 11-00209 	Page 2
Defendant. 	Also on the brief were Benjamin C. Mizer, Principal
Deputy Assistant Attorney General, Jeanne E. Davidson, Director,
and Reginald T. Blades, Jr., Assistant Director. 	Of counsel was
Scott D. McBride, Senior Attorney, Office of the Chief Counsel
for Trade Enforcement & Compliance, U.S. Department of Commerce.
Alan H. Price and Robert DeFrancesco, Wiley Rein LLP,
of Washington, DC, for the Aluminum Extrusions Fair Trade
Committee.
Before Pogue, Senior Judge: 	This consolidated action
arises from the U.S. Department of Commerce’s (“Commerce”)
countervailing duty (“CVD”) investigation of aluminum extrusions
from the People’s Republic of China (“China”). 2 Before the court
are the results of Commerce’s redetermination on remand of the
“all-others” CVD rate, pursuant to the Court of Appeals’
decision in MacLean-Fogg Co. v. United States, 753 F.3d 1237,
1246 (Fed. Cir. 2014) (“MacLean-Fogg V”). 3
The court has jurisdiction pursuant to Section
516A(a)(2)(B)(i) of the Tariff Act of 1930, as amended,
2 See 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 & Decision Mem.,
C-570-968, Investigation (Mar. 28, 2011) (“I&D Mem.”).
3 See Final Results of Redetermination Pursuant to Ct. Remand,
ECF No. 108-1 (“Remand Results”); Def.-Intervenor Aluminum
Extrusions Fair Trade Comm.’s [(“AEFTC”)] Comments on Final
Results of Redetermination Pursuant to Remand, ECF No. 110
(“Pet’r’s Br.”) & [AEFTC’s] Suppl. Briefing Rebuttal Comments,
ECF Nos. 118 (conf. version) & 119 (pub. version) (“Pet’r’s
Suppl. Br.”) (challenging Commerce’s all-others rate calculation
in the Remand Results).
Case 1:11-cv-00209-DCP Document 121 Filed 08/14/15 Page 2 of 32

Consol. Court No. 11-00209 	Page 3
19 U.S.C. § 1516a(a)(2)(B)(i) (2012) 4 and 28 U.S.C. § 1581(c)
(2012).
As explained below, because Commerce’s decision to
rely on simple averaging when calculating the “all-others” rate
in this case was an unreasonable judgment in the application of
19 U.S.C. § 1671d(c)(5)(A)(i), this determination is remanded
for reconsideration.
BACKGROUND
Where, as here, a countervailing duty investigation
involves a large number of exporters and/or producers as
potential respondents, Commerce is authorized to select a sample
of these exporters and producers for individual examination (the
“mandatory” respondents). 5 In addition, the remaining exporters
and producers may request an individualized examination as
“voluntary” respondents. 6 Companies not selected as mandatory or
voluntary respondents receive a CVD rate that is calculated for
“all-other” companies (the “all-others” rate), 7 which must equal
the weighted average of all “individually investigated”
4 All further citations to the Tariff Act of 1930, as amended,
are to Title 19 of the U.S. Code, 2012 edition.
5 19 U.S.C. § 1677f–1(e)(2); MacLean-Fogg V, 753 F.3d at 1238.
6 19 U.S.C. § 1677m(a); 19 C.F.R. § 351.204(d) (2011).
7 19 U.S.C. § 1671d(c)(1)(B)(i)(I).
Case 1:11-cv-00209-DCP Document 121 Filed 08/14/15 Page 3 of 32

Consol. Court No. 11-00209 	Page 4
companies’ rates, 8 unless all such rates are zero/ de minimis or
entirely based on “facts otherwise available,” rather than the
respondents’ own submissions. 9 Consequently, Commerce generally
constructs the all-others rates by using the weighted average of
the mandatory respondents’ rates. 10
Following this statutory scheme, in the CVD
investigation at issue here, Commerce selected the three
companies exporting the largest volume of subject imports during
the period of investigation as the mandatory respondents. 11
However, none of these three companies responded to Commerce’s
requests for information. 12 Commerce therefore found that the
8 19 U.S.C. § 1671d(c)(5)(A)(i).
9 See id. at §§ 1671d(c)(5)(A)(ii), 1677e.
10 Cf. Yangzhou Bestpak Gifts & Crafts Co. v. United States,
716 F.3d 1370, 1373 (Fed. Cir. 2013) (discussing 19 U.S.C.
§ 1673d(c)(5)(A) – the identically-worded antidumping all-others
rate provision); compare 19 U.S.C. § 1671d(c)(5)(A)(i) (“[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 of this title.”), with 19 U.S.C.
§ 1673d(c)(5)(A) (“[T]he estimated all-others rate shall be an
amount equal to the weighted average of the estimated weighted
average dumping margins established for exporters and producers
individually investigated, excluding any zero and de minimis
margins, and any margins determined entirely under section 1677e
of this title.”).
11 MacLean–Fogg Co. v. United States, 36 CIT __, 836 F. Supp. 2d
1367, 1370 (2012) (“MacLean–Fogg I”).
12 Id.
Case 1:11-cv-00209-DCP Document 121 Filed 08/14/15 Page 4 of 32

Consol. Court No. 11-00209 	Page 5
mandatory respondents “withheld requested information and
significantly impeded [the] proceeding,” 13 and failed to act to
the best of their abilities to cooperate in the investigation. 14
Accordingly Commerce established CVD rates for the mandatory
respondents based entirely on adverse facts available (“AFA”). 15
Meanwhile, two companies had requested and were granted
individualized examinations as voluntary respondents, each
ultimately receiving a non-zero, non-de minimis, non-AFA CVD
rate. 16
With regard to the all-others rate, agency regulations
in force at the time of the investigation prohibited Commerce
from including the voluntary respondents’ CVD rates in the all-
others rate calculation. 17 As this Court explained when
13 I&D Mem. Section VI (Use of Facts Otherwise Available and
Adverse Inferences) at 10 (applying 19 U.S.C. §§ 1677e(a)(2)(A)
& (C) (requiring Commerce to “use the facts otherwise available”
if, inter alia, a respondent withholds information requested by
Commerce during the investigation, or “significantly impedes”
the proceeding)).
14 Id. (applying 19 U.S.C. § 1677e(b) (permitting Commerce to
“use an inference that is adverse to the interests of [a] party
[that has failed to cooperate by not acting to the best of its
ability to comply with Commerce’s requests for information] in
selecting from 	among the facts otherwise available”)).
15 Id.; MacLean-Fogg I, 36 CIT at __, 836 F. Supp. 2d at 1370-71.
16 MacLean-Fogg I, 36 CIT at __, 836 F. Supp. 2d at 1371.
17 19 C.F.R. § 351.204(d)(3) (“In calculating an all-others rate
. . ., [Commerce] will exclude weighted-average . . .
countervailable subsidy rates calculated for voluntary
(footnote continued)
Case 1:11-cv-00209-DCP Document 121 Filed 08/14/15 Page 5 of 32

Consol. Court No. 11-00209 	Page 6
upholding this regulation in MacLean-Fogg I, Commerce’s basis
for excluding the voluntary respondents’ rates from the all-
others rate calculation was the concern that voluntary
respondents are unrepresentative of the remaining companies
(particularly where, as here, the three largest
exporters/producers did not respond to Commerce’s inquiries at
all). 18 The agency considered the voluntary respondents to be
unrepresentative because, unlike the mandatory or the all-other
respondents, the voluntary respondents are those that willingly
submit their sales data of their own accord, presumably because
their commercial practices are such that they have good reason
to believe that their CVD rates will be lower than those set for
the mandatory respondents (regardless of whether those mandatory
respondents are cooperative or not), such that including the
rates established for this self-selected group threatens
distortion of the weighted-average of the more representative
rates. 19 But the Court of Appeals reversed this decision, 20
respondents.”) (invalidated by MacLean-Fogg V, 753 F.3d at 1240
(“We hold that 19 C.F.R. § 351.204(d)(3) is invalid . . . .”)).
18 Maclean–Fogg I, 26 CIT at __, 836 F. Supp. 2d at 1374 (noting
Commerce’s concerns that voluntary respondents are a self-
selecting group more likely to have a lower CVD rate, the
inclusion of which could skew the all-others rate).
19 Id.; see also Antidumping Duties; Countervailing Duties,
62 Fed. Reg. 27,296, 27,310 (Dep’t Commerce May 19, 1997) (final
rule) (explaining Commerce’s basis for the regulation).
Case 1:11-cv-00209-DCP Document 121 Filed 08/14/15 Page 6 of 32

Consol. Court No. 11-00209 	Page 7
invalidated 19 C.F.R. § 351.204(d)(3), and ordered this court to
remand Commerce’s all-others rate calculation, requiring the
agency to include the two voluntary respondents’ rates when
determining the all-others rate in this case “under the general
rule, [19 U.S.C.] § 1671d(c)(5)(A)(i).” 21
On remand, Commerce applied 19 U.S.C.
§ 1671d(c)(5)(A)(i), as interpreted by MacLean-Fogg V, excluding
the three mandatory respondents’ AFA-based rates from the all-
others calculation, but including the two non-zero, non-de
minimis, non-AFA based voluntary respondents’ rates. 22
Considering the two voluntary respondents’ rates, however,
Commerce found that it could not weight-average these rates
without impermissibly revealing the two companies’ business
20 MacLean-Fogg V, 753 F.3d at 1246; but see id. at 1246-53
(Reyna, J. dissenting).
21 MacLean-Fogg V, 753 F.3d at 1246; Order for Remand,
ECF No. 103 (remanding to Commerce for reconsideration
consistent with the Court of Appeals’ opinion); see 19 U.S.C.
§ 1671d(c)(5)(A)(i) (”For purposes of this subsection and
section 1671b(d) of this title, the 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 of this title.”).
22 Remand Results, ECF No. 108-1, at 6 (explaining that Commerce
did not include the net subsidy rates for the non-cooperative
mandatory respondents in its all-others rate calculation because
those rates were based entirely on AFA).
Case 1:11-cv-00209-DCP Document 121 Filed 08/14/15 Page 7 of 32

Consol. Court No. 11-00209 	Page 8
proprietary information (“BPI”) to each other. 23 Normally, in
such situations Commerce “would calculate a weighted-average
countervailing duty rate using the publicly available, ranged
values of the [individually examined] respondents’ exports of
subject merchandise to the United States, compare both this
weighted-average rate and a simple average of [these]
respondents’ countervailing duty rates to the actual weighted-
average rate (calculated using the proprietary export values)
and assign to All Others the amount closer to the actual
weighted-average countervailable subsidy rate.” 24 But in this
case, although agency regulations require that all BPI
submissions, including numerical data, be accompanied by
publicly available summaries, 25 the two voluntary respondents did
not submit public, “ranged” versions of their BPI. 26 During its
investigation, Commerce chose not to enforce this requirement
because the agency’s regulations then expressly prohibited using
23 Id.; see 19 U.S.C. § 1677f(b) (prohibiting impermissible
disclosure of BPI).
24 Prelim. Issues & Decision Mem., Certain Frozen Warmwater
Shrimp from India, C-533-854, Investigation (May 28, 2013)
(adopted in 78 Fed. Reg. 33,344 (Dep’t Commerce June 4, 2013)
(preliminary countervailing duty determination)) Section VIII
(Calculation of the All Others Rate) at 25 (unchanged in 78 Fed.
Reg. 50,385 (Dep’t Commerce Aug. 19, 2013) (final affirmative
countervailing duty determination)) (“Shrimp from India”).
25 19 C.F.R. § 351.304(c)(1).
26 See Remand Results, ECF No. 108-1, at 6.
Case 1:11-cv-00209-DCP Document 121 Filed 08/14/15 Page 8 of 32

Consol. Court No. 11-00209 	Page 9
the voluntary respondents’ countervailable subsidy rates to
calculate the all-others rate. 27 Commerce therefore “did not
find that it was necessary during the underlying investigation
to request the publicly-ranged or indexed numerical data from
the voluntary respondents.” 28
Thereafter, however, as noted above, the Court of
Appeals for the Federal Circuit held that countervailable
subsidy rates calculated for voluntary respondents in CVD
investigations unambiguously fall within the meaning of
“countervailable subsidy rates established for exporters and
producers individually investigated,” as used in 19 U.S.C.
§ 1671d(c)(5)(A)(i), and therefore that such rates must be used
in the calculation of an all-others rate, so long as they are
not zero/de minimis or based entirely on facts otherwise
available or AFA. 29 On remand, finding that “the publicly ranged
27 Def.’s Supplemental Br., ECF No. 115 (“Def.’s Suppl. Br.”)
at 4.
28 Id.
29 MacLean-Fogg V, 753 F.3d at 1240-46 (interpreting 19 U.S.C.
§ 1671d(c)(5)(A)(i) (“[T]he all-others rate [in a CVD
investigation] 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 [using facts otherwise available, pursuant to 19 U.S.C.
§ 1677e].”)); see id. at 1244 (“[C]ountervailing duty rates
(other than zero or de minimis [or based entirely on AFA]) of
voluntary respondents must be included in the general rule for
(footnote continued)
Case 1:11-cv-00209-DCP Document 121 Filed 08/14/15 Page 9 of 32

Consol. Court No. 11-00209 	Page 10
sales data that could be used to calculate a weighted average
all others rate based on publicly available data [were] not on
the administrative record,” Commerce therefore “based the
revised all others rate on a simple average of the two voluntary
respondents’ calculated net subsidy rates.” 30
In commenting on the remand results below, the
Aluminum Extrusions Fair Trade Committee (“AEFTC”) – a
petitioner in the underlying countervailing duty investigation
and an intervenor in this action 31 — argued, inter alia, that
Commerce should have calculated the all-others rate using a
weighted average of the two voluntary respondents’ rates,
contending that 19 C.F.R. § 351.304(c)(1) requires parties to
calculation of the all-others rate. 	Because the statute is
clear that such voluntary respondent rates must be included in
the general all-others rate calculation, Commerce’s regulatory
interpretation to the exact contrary is invalid.”); id. at 1246
(remanding “for determination of the all-others rate under the
general rule, [19 U.S.C.] § 1671d(c)(5)(A)(i)”).
30 Remand Results, ECF No. 108-1, at 6; see also id. at 6-7
(arguing that basing the all-others rate on a simple average of
the individually-investigated respondents’ non-zero,
non-de minimis, non-AFA rates “is consistent with [Commerce]’s
practice of determining an all others rate when there are only
two companies which have been individually investigated”)
(citing Utility Scale Wind Towers from the People’s Republic of
China, 77 Fed. Reg. 75,978, 75,979 (Dep’t Commerce Dec. 26,
2012) (final affirmative countervailing duty determination)
(“Wind Towers from China”)).
31 Consent Mot. to Intervene as a Matter of Right, ECF No. 7;
Order, July 7, 2011, ECF No. 12 (granting motion to intervene).
Case 1:11-cv-00209-DCP Document 121 Filed 08/14/15 Page 10 of 32

Consol. Court No. 11-00209 	Page 11
submit publicly ranged versions of their BPI data, and that
Commerce should therefore “reopen the record to obtain the
publicly ranged data that is necessary for [Commerce] to
calculate a weighted average all others rate.” 32 Commerce,
however, declined to reopen the record. 33 Rather, Commerce found
that the voluntary respondents’ publicly ranged sales data was
neither “necessary [nor] warranted” because “the use of a simple
average of the two voluntary respondents’ net subsidy rates to
calculate the all others rate is consistent with [Commerce’s]
practice in cases in which the publicly available ranged sales
data are not on the record.” 34 AEFTC now challenges this
determination. 35 Alternatively, AEFTC also argues that Commerce
should have established a single subsidy rate for both voluntary
32 Remand Results, ECF No. 108-1, at 8 (discussing Petitioners’
comments below).
33 Id. at 10 (“We . . . disagree with Petitioners that [Commerce]
should reopen the record in order to obtain publicly ranged data
that would permit [Commerce] to calculate a weighted average all
others rate.”).
34 Id.; see also Def.’s Suppl. Br., ECF No. 115, at 5 (“Commerce
decided to calculate the all-others rate in accordance with its
practice and used a simple average in the Remand Results, rather
than expend additional administrative resources and further
delay the ultimate resolution of this proceeding.”) (citing
Remand Results, ECF No. 108-1, at 6-7, 10).
35 Pet’r’s Br., ECF No. 110, at 3-4.
Case 1:11-cv-00209-DCP Document 121 Filed 08/14/15 Page 11 of 32

Consol. Court No. 11-00209 	Page 12
respondents, because the companies are affiliated. 36
STANDARD OF REVIEW
The court will sustain Commerce’s countervailing duty
determinations on remand if they are in accordance with the
remand order, are supported by substantial evidence, and are
otherwise in accordance with law. 37 Where the statute and
regulations leave the agency with a measure of discretion, the
court reviews such decisions for abuse of discretion. 38 “An
abuse of discretion occurs where the decision is based on an
erroneous interpretation of the law, on factual findings that
are not supported by substantial evidence, or represent an
unreasonable judgment in weighing relevant factors.” 39 Moreover,
Commerce’s discretion “is bounded at the outer limits by the
36 Id. at 2-3. 	AEFTC additionally argues that the Court of
Appeals incorrectly invalidated 19 C.F.R. § 351.204(d)(3),
pursuant to which Commerce had initially excluded the voluntary
respondents’ subsidy rates from the all-others rate calculation.
See id. at 1-2. 	Because this Court is bound by the Court of
Appeals’ decision, however, in the absence of overruling
precedent, this issue is settled. MacLean-Fogg V, 753 F.3d
at 1244; see supra note 29 (quoting relevant language).
37 See 19 U.S.C. § 1516a(b)(1)(B)(i).
38 See, e.g., Wuhu Fenglian Co. v. United States, 36 CIT __,
836 F. Supp. 2d 1398, 1403 (2012).
39 Dongtai Peak Honey Indus. Co. v. United States, 38 CIT __,
971 F. Supp. 2d 1234, 1239 (2014) (quoting WelCom Prods., Inc.
v. United States, 36 CIT __, 865 F. Supp. 2d 1340, 1344 (2012)
(citing Star Fruits S.N.C. v. United States, 393 F.3d 1277, 1281
(Fed. Cir. 2005))).
Case 1:11-cv-00209-DCP Document 121 Filed 08/14/15 Page 12 of 32

Consol. Court No. 11-00209 	Page 13
obligation to carry out its statutory duty of ‘determining
dumping margins “as accurately as possible.”’” 40
DISCUSSION
AEFTC argues that Commerce’s calculation of the all-
others rate on remand – based on a simple average of the two
voluntary respondents’ subsidy rates – was contrary to law
because (I) Commerce had found these two companies to be
affiliated, and so should have established a single rate for
both and then used that rate as the all-others rate 41 ; or, in the
alternative, because (II) Commerce used a simple (rather than
weighted) average of the two voluntary respondents’ subsidy
rates, contrary to 19 U.S.C. § 1671d(c)(5)(A)(i). 42 Each
argument is addressed in turn.
I. 	Affiliation
AEFTC first argues that because Commerce found that
the two voluntary respondents were affiliated, Commerce should
have established a single rate for both and then used that rate
40 Wuhu Feglian, 36 CIT at __, 836 F. Supp. 2d at 1403
(quoting NTN Bearing Corp. v. United States, 74 F.3d 1204, 1208
(Fed. Cir. 1995) (quoting Rhone Poulenc, Inc. v. United States,
899 F.2d 1185, 1191 (Fed. Cir. 1990))) (alteration marks
omitted).
41 See Pet’r’s Br., ECF No. 110, at 2-3.
42 See id. at 3-4.
Case 1:11-cv-00209-DCP Document 121 Filed 08/14/15 Page 13 of 32

Consol. Court No. 11-00209 	Page 14
as the all-others rate. 43 Commerce responds that its finding
that the two voluntary respondent companies were “affiliated
persons” under 19 U.S.C. § 1677(33) is insufficient to compel
the conclusion that these companies form a single entity for
which a single subsidy rate is appropriate. 44 Specifically,
Commerce’s regulations provide that the agency will generally
attribute subsidies to (and hence establish CVD rates for) “the
products produced by the corporation that received the
43 See id. at 2-3.
44 See Def.’s Resp. to Comments Regarding the Remand
Redetermination, ECF No. 112 (“Def.’s Br.”) at 4-6;
see also Def.’s Suppl. Br., ECF No. 115, at 6 (“A determination
by Commerce that the two voluntary respondents were ‘affiliated
persons’ under 19 U.S.C. § 1677(33) did not transform them into
the same corporate person . . . .”); Remand Results,
ECF No. 108-1, at 9-10 (“While [Commerce] determined that the
[two voluntary respondents] were affiliated under [19 U.S.C.
§ 1677(33)] by virtue of familial relations that exist between
the firms, [Commerce], citing to its regulations, also found
that the mere affiliation was not a sufficient basis to find
that firms are cross-owned. 	[Commerce] further determined that
the [two voluntary respondents] do not meet the additional
criteria that are necessary for [Commerce] to find that cross-
ownership exists between the two firms. 	. . . 	Accordingly, in
the Final Determination, [Commerce] found that the [two
voluntary respondents] were not cross-owned and, [therefore,]
treated [the] two firms as separate entities and, accordingly,
calculated separate net subsidy rates for the two firms.”)
(citing I&D Mem. at 5-6 (citing Countervailing Duties, 63 Fed.
Reg. 65,348, 65,401 (Dep’t Commerce Nov. 25, 1998) (final rule)
(explaining the basis for 19 C.F.R. § 351.525(b)(6)’s provision
that mere affiliation is not sufficient for subsidy
attribution); 19 C.F.R. § 351.525(b)(6)(vi)); Final
Determination, 76 Fed. Reg. at 18,522-23).
Case 1:11-cv-00209-DCP Document 121 Filed 08/14/15 Page 14 of 32

Consol. Court No. 11-00209 	Page 15
subsidy,” 45 except “[i]f two (or more) corporations with cross-
ownership produce the subject merchandise.” 46 Where two or more
corporations “with cross-ownership” produce the subject
merchandise, Commerce “will attribute [and countervail for] the
subsidies received by either or both corporations to the
products produced by both corporations,” using a single
CVD rate. 47
The regulations further provide that “[c]ross-
ownership exists between two or more corporations where one
corporation can use or direct the individual assets of the other
corporation(s) in essentially the same ways it can use its own
assets,” 48 adding that this standard will normally be met “where
there is a majority voting ownership interest between two
corporations or through common ownership of two (or more)
corporations.” 49 Moreover, in explaining these regulatory
provisions, Commerce has expressly stated that mere affiliation
between two companies, within the meaning of 19 U.S.C.
§ 1677(33), is insufficient for a finding of cross-ownership
45 19 C.F.R. § 351.525(b)(6)(i).
46 Id. at § 351.525(b)(6)(ii) (emphasis added).
47 Id.
48 Id. at § 351.525(b)(6)(vi).
49 Id.
Case 1:11-cv-00209-DCP Document 121 Filed 08/14/15 Page 15 of 32

Consol. Court No. 11-00209 	Page 16
which would support the establishment of a single subsidy rate
for two or more companies. 50
Here, Commerce found that the record of this
investigation contained “no evidence” that the two voluntary
respondents “have the ability to direct the individual assets of
one another as if they were their own.” 51 Commerce accordingly
concluded that cross-ownership among these companies was not
established, and hence determined that a single subsidy rate for
both would not be appropriate. 52 As AEFTC has not provided any
“new information or argument that would warrant reconsideration
. . . on this point,” 53 Commerce’s finding that the two voluntary
respondents do not meet the regulatory criteria for cross-
50 See Countervailing Duties, 63 Fed. Reg. at 65,401-02 (“[W]e
simply do not find the affiliation standard to be a helpful
basis for attributing subsidies. 	Nowhere in the statute or the
[Statement of Administrative Action] is there any indication
that the affiliated party definition [in 19 U.S.C. § 1677(33)]
was intended to be used for subsidy attribution purposes.
Rather, it identifies the broadest category of relationships
which might be relevant to either an antidumping or a
countervailing duty analysis. 	. . . 	[W]e do not intend to
investigate subsidies to affiliated parties unless cross-
ownership exists or other information, such as a transfer of
subsidies, indicates that such subsidies may in fact benefit the
subject merchandise produced by the corporation under
investigation.”).
51 I&D Mem. Section III (Attribution of Subsidies) at 6.
52 See id.; 19 C.F.R. §§ 351.525(b)(6)(i), (ii), (vi).
53 Remand Results, ECF No. 108-1, at 10.
Case 1:11-cv-00209-DCP Document 121 Filed 08/14/15 Page 16 of 32

Consol. Court No. 11-00209 	Page 17
ownership is not contested. 54 Furthermore, AEFTC presents no
specific argument to support its contention that, contrary to
the agency’s regulations, a finding of affiliation is sufficient
to require Commerce to assign a single subsidy rate to the
affiliated companies. 55
Accordingly, because Commerce’s regulations provide
that only companies that are cross-owned may have their
subsidies attributed to one another 56 (the reasoned basis for
which 57 is not explicitly challenged here 58 ), and because AEFTC
provides no evidentiary support or argument to impugn Commerce’s
finding that the two voluntary respondents here are not cross-
owned, 59 Commerce’s determination to calculate separate subsidy
rates for these companies is therefore sustained.
II. 	Simple Averaging
54 See Pet’r’s Br., ECF No. 110, at 2-3 (conceding that AEFTC has
provided no new information to warrant reconsideration of
Commerce’s finding that the two voluntary respondents are not
cross-owned, but arguing that Commerce’s affiliation finding
should have sufficed to establish a single subsidy rate for the
two affiliated companies).
55 See id.
56 See 19 C.F.R. §§ 351.525(b)(6)(i)-(ii).
57 See Countervailing Duties, 63 Fed. Reg. at 65,401-02.
58 See Pet’r’s Br., ECF No. 110, at 2-3.
59 See I&D Mem. Section III (Attribution of Subsidies) at 6;
Pet’r’s Br., ECF No. 110, at 2-3.
Case 1:11-cv-00209-DCP Document 121 Filed 08/14/15 Page 17 of 32

Consol. Court No. 11-00209 	Page 18
Next, in the alternative, AEFTC argues that Commerce
acted contrary to law by using a simple average of the two
voluntary respondents’ subsidy rates – rather than a weighted
average, as required by 19 U.S.C. § 1671d(c)(5)(A)(i) – to
establish the all-others rate. 60 Specifically, AEFTC argues that
Commerce unreasonably determined that weight-averaging the rates
would impermissibly reveal BPI, because the agency’s regulations
require that all BPI submissions have correlating public
versions, and provide a methodology for converting BPI into
public information. 61 AEFTC argues that Commerce abused its
discretion by neither requesting that the respondents apply this
methodology to their BPI and submit public versions of the
necessary data, nor itself applying this methodology to convert
the BPI to usable data. 62
Commerce responds by pointing to 19 U.S.C. § 1677f(b)
60 See Pet’r’s Br., ECF No. 110, at 3-4.
61 Id.; see 19 C.F.R. § 351.304(c)(1) (“A person filing a
submission that contains information for which business
proprietary treatment is claimed must file a public version of
the submission. 	. . . 	The public version must contain a
summary of the bracketed information in sufficient detail to
permit a reasonable understanding of the substance of the
information. 	. . . 	Generally, numerical data will be
considered adequately summarized if grouped or presented in
terms of indices or figures within 10 percent of the actual
figure. 	. . . .”).
62 Pet’r’s Suppl. Br., ECF Nos. 118 & 119, at 2-7.
Case 1:11-cv-00209-DCP Document 121 Filed 08/14/15 Page 18 of 32

Consol. Court No. 11-00209 	Page 19
– which provides that information designated as BPI “shall not
be disclosed to any person without the consent of the person
submitting the information,” other than to certain U.S.
Government officials and authorized applicants under an
administrative protective order 63 – explaining that “[a]t no
point during the investigation did counsel for either voluntary
respondent authorize Commerce to reveal proprietary information
to the other,” 64 and arguing that weight-averaging these subsidy
rates to arrive at the all-others rate was therefore foreclosed
by the fact that doing so would reveal the two companies’ BPI to
each other. 65
Although Commerce acknowledges that weight-averaging
would be possible (without improperly divulging the two
63 Def.’s Suppl. Br., ECF No. 115, at 5 (citing 19 U.S.C.
§ 1677f(b), and quoting Allegheny Ludlum Corp. v. United States,
27 CIT 1461, 1465 (2003) (not reported in the Federal
Supplement) (sustaining as reasonable Commerce’s interpretation
that 19 U.S.C. § 1677f(b) provides “a limited exception to the
Trade Secrets Act, 18 U.S.C. § 1905, which generally prohibits
an agency from disclosing business proprietary information”)
(citation omitted)).
64 Id. at 6 (citing 19 C.F.R. § 351.306(a)(5) (authorizing
Commerce to disclose BPI to “[a]ny person to whom the submitting
person specifically authorizes disclosure in writing”)).
65 Id. at 5-6; see also Def.’s Br., ECF No. 112, at 3; Remand
Results, ECF No. 108-1, at 6 (“[W]e are unable to calculate a
weighted average all others rate without also divulging the two
voluntary respondents’ business proprietary data to each
other.”).
Case 1:11-cv-00209-DCP Document 121 Filed 08/14/15 Page 19 of 32

Consol. Court No. 11-00209 	Page 20
respondents’ BPI to each other) if the BPI were accompanied with
public versions of the data, as required by 19 C.F.R.
§ 351.304(c)(1), 66 such information is not on the record here
because the voluntary respondents did not submit public versions
of their BPI, and Commerce “did not find that it was necessary
during the underlying investigation to [enforce 19 C.F.R.
§ 351.304(c)(1) and] request the publicly-ranged or indexed
numerical data from the voluntary respondents” because, at that
time, 19 C.F.R. § 351.204(d)(3) expressly prohibited using the
voluntary respondents’ rates in the all-others rate
calculation. 67 On remand, responding to AEFTC’s suggestion that
Commerce re-open the record to obtain these missing publicly
ranged data, so the two voluntary respondents’ rates may be
weight-averaged without divulging BPI to each other, the agency
continued to find that such data were neither “necessary [n]or
66 See Remand Results, ECF No. 108-1, at 6 (“In investigations
involving two individually examined respondents where the use of
a weighted average all others rate is not possible because the
use of such a method would divulge the two firms’ business
proprietary data, . . . we may use a weighted average of their
rates, weighted by the two respondents’ public ranged sales
data, if that data is on the administrative record.”) (citations
omitted); id. at 6 n.25 (“[W]hen available, [Commerce] may
utilize publicly ranged data to determine the . . . all others
rate.”); 19 C.F.R. § 351.304(c)(1).
67 Def.’s Suppl. Br., ECF No. 115, at 4.
Case 1:11-cv-00209-DCP Document 121 Filed 08/14/15 Page 20 of 32

Consol. Court No. 11-00209 	Page 21
warranted” 68 because using a simple average of the two rates,
rather than “expend[ing] additional administrative resources and
further delay[ing] the ultimate resolution of this proceeding,”
was a “reasonable choice.” 69
But the statute unequivocally and without exception
requires that Commerce base the all-others rate on the weighted
average of individually-investigated non-zero, non–de minimis,
non-AFA rates. 70 Defendant argues that “the statute and
regulation are silent as to Commerce’s methodology for
calculating an all-others rate when using data derived from two
respondents in a weighted-average calculation would divulge the
firms’ business proprietary data to each other, in violation of
the administrative protective order.” 71 But in fact the statute
(requiring Commerce to use a weighted-average when calculating
the all-others rate 72 ) and the regulations (requiring publicly
ranged data for all BPI submissions 73 ) preclude the situation
68 Remand Results, ECF No. 108-1, at 10.
69 Def.’s Suppl. Br., ECF No. 115, at 5 (citing Remand Results,
ECF No. 108-1, at 6-7, 10).
70 19 U.S.C. § 1671d(c)(5)(A)(i).
71 Def.’s Br., ECF No. 112, at 7.
72 19 U.S.C. § 1671d(c)(5)(A)(i).
73 19 C.F.R. § 351.304(c)(1) (“A person filing a submission that
contains information for which business proprietary treatment is
claimed must file a public version of the submission. 	. . .
(footnote continued)
Case 1:11-cv-00209-DCP Document 121 Filed 08/14/15 Page 21 of 32

Consol. Court No. 11-00209 	Page 22
Commerce describes. 	If “calculating an all-others rate when
using data derived from two respondents in a weighted-average
calculation would divulge the firms’ business proprietary data
to each other,” 74 19 U.S.C. § 1671d(c)(5)(A)(i)’s requirement
that Commerce use a weighted average may be satisfied by
employing the publicly ranged data. 75
Commerce argues that the missing public data here are
nevertheless unnecessary because using a simple average is also
reasonable. 76 But this argument ignores the accuracy-enhancing
value placed by the statute on accounting for the individually-
The public version must contain a summary of the bracketed
information in sufficient detail to permit a reasonable
understanding of the substance of the information.”) (emphasis
added).
74 Def.’s Br., ECF No. 112, at 7.
75 See Remand Results, ECF No. 108-1, at 6 n.25 (“[Commerce] may
utilize publicly ranged data to determine the . . . all others
rate.”).
76 See id. at 6 (“In investigations involving two individually
examined respondents where the use of a weighted average all
others rate is not possible because the use of such a method
would divulge the two firms’ business proprietary data, we have
two options – we may use a simple average of the two
respondents’ countervailable subsidy rates, or we may use a
weighted average of their rates, weighted by the two
respondents’ publicly ranged sales data . . . .”) (citations and
footnote omitted); id. at 6-7 (“[W]e have based the revised all
others rate on a simple average of the two voluntary
respondents’ calculated net subsidy rates. 	Such a calculation
is consistent with [Commerce’s] practice of determining an all
others rate when there are only two companies which have been
individually investigated.”) (citing Wind Towers from China,
77 Fed. Reg. at 75,979).
Case 1:11-cv-00209-DCP Document 121 Filed 08/14/15 Page 22 of 32

Consol. Court No. 11-00209 	Page 23
investigated respondents’ relative sales volumes by weight-
averaging to arrive at the all-others rate. 77 Moreover, as AEFTC
points out, here there was a significant disparity in the volume
of sales between the two respondents whose rates were averaged
to arrive at the all-others rate. 78 Accordingly, taking a simple
average of the two gives significantly more weight to the
respondent with the lower sales volume, resulting in an all-
others rate that is materially different from what it would
otherwise be if it were properly weighted based on the relative
size of each respondent’s total sales. 79 Thus Commerce’s
77 See 19 U.S.C. § 1671d(c)(5)(A)(i).
78 Pet’r’s Suppl. Br., ECF Nos. 118 & 119, at 5 (“Commerce’s
calculation memoranda indicate that [one of the voluntary
respondent’s] total sales of [subject merchandise] was [[
]] [other voluntary respondent] during
the [period of investigation].”) (citing Ex. 1 to Pet’r’s Suppl.
Br., ECF Nos. 118 & 119 (reproducing Commerce’s memoranda
regarding calculations for the two voluntary respondents)).
79 See id. (noting that the respondent with the lower subsidy
margin comprises “[[ 	]] of the total denominator”);
cf. Issues & Decision Mem., Aluminum Extrusions from the
People’s Republic of China, C-570-968, ARP 10-11 (Dec. 26, 2013)
(adopted in 79 Fed. Reg. 106, 106 (Dep’t Commerce Jan. 2, 2014)
(final results of countervailing duty administrative review;
2010 and 2011)) (“AR1 I&D Mem.”) cmt. 3 at 58 (faced with a
similar situation in the subsequent first administrative review,
where Commerce similarly could not calculate a weighted-average
all-others rate without impermissibly revealing BPI, Commerce
compared the results of using a simple average with those
obtained from calculating a weighted-average using the public
versions of the BPI, and “found that the weighted-average rate
using publicly available, ranged sales values, rather than the
simple-average rate, is the rate closer to the actual weighted-
(footnote continued)
Case 1:11-cv-00209-DCP Document 121 Filed 08/14/15 Page 23 of 32

Consol. Court No. 11-00209 	Page 24
argument – that completing the record with publicly ranged
values of the two voluntary respondents’ BPI was neither
necessary nor warranted because a simple average would suffice –
is unreasonable in light of the statute’s clear preference for
the accuracy-enhancing value of weight-averaging and the
particular facts of this case. 80
Additionally, Commerce incompletely characterizes its
practice in cases where weight-averaging two respondents’ rates
would impermissibly reveal their BPI to each other as either
taking a simple average of the two or taking an average weighted
by the respondents’ publicly ranged sales values. 81 In fact
Commerce’s reasonable practice in such situations is to take
average subsidy rate (based on proprietary export values) and,
thus, the better proxy”) (citations omitted).
80 Defendant also argues that Commerce chose to use a simple
average, rather than seek to complete the record with publicly
ranged values, to avoid “expend[ing] additional administrative
resources and further delay[ing] the ultimate resolution of this
proceeding.” Def.’s Suppl. Br., ECF No. 115, at 5 (citing Remand
Results, ECF No. 108-1, at 6-7, 10). 	But resource-constraint
and expediency do not excuse the agency from its statutory
obligations; indeed, one overarching theme of this already
protracted litigation, see Compl., ECF No. 6 (filed June 23,
2011), is that the agency is bound by the letter of the law,
even (or perhaps especially) where doing so necessitates
delaying the ultimate resolution of a proceeding to correct for
legal deficiencies. Cf. Mac-Lean Fogg V, 753 F.3d at 1246
(remanding Commerce’s all-others rate calculation, more than
three years after its initial finalization, to be entirely re-
done so as to conform to the plain language of the statute).
81 Remand Results, ECF No. 108-1, at 6.
Case 1:11-cv-00209-DCP Document 121 Filed 08/14/15 Page 24 of 32

Consol. Court No. 11-00209 	Page 25
both averages and compare each to the actual weighted-average
(using BPI available to the agency), in order to arrive at the
nearest approximation of the all-others rate contemplated by
19 U.S.C. § 1671d(c)(5)(A)(i). 82 This practice reasonably
reconciles 19 U.S.C. § 1671d(c)(5)(A)(i) (the all-others
provision) with 19 U.S.C. § 1677f(b) (the BPI provision) because
it most closely approximates the result contemplated by the all-
others provision without violating the BPI provision. 	And while
Commerce relies on a handful of recent contrary determinations,
in which the agency has resorted to simple averaging in the
absence of publicly available data, 83 none of these decisions
provide any significant reasoning or explanation to indicate why
the necessary public information was absent from the record or
82 AR1 I&D Mem., supra note 79, cmt. 3 at 58; Shrimp from India,
supra note 24, at 25.
83 Specifically, Commerce cites to four prior determinations:
Shrimp from India, supra note 24, at 25; Certain Oil Country
Tubular Goods from the Republic of Turkey, 79 Fed. Reg. 41,964,
41,965 (Dep’t Commerce July 18, 2014) (final affirmative
countervailing duty determination and final affirmative critical
circumstances determination) (“OCTG from Turkey”); Chlorinated
Isocyanurates from the People’s Republic of China, 79 Fed. Reg.
10,097 (Feb. 24, 2014) (preliminary [countervailing duty]
determination and alignment of final determination with final
antidumping determination) (unchanged in 79 Fed. Reg. 56,560,
56,562 (Dep’t Commerce Sept. 22, 2014) (final affirmative
countervailing duty determination; 2012)) (“Chlorinated
Isocyanurates from China”); and Wind Towers from China, 77 Fed.
Reg. at 75,979. Remand Results, ECF No. 108-1, at 6-7 nn. 24 &
26.
Case 1:11-cv-00209-DCP Document 121 Filed 08/14/15 Page 25 of 32

Consol. Court No. 11-00209 	Page 26
why it could not be obtained, or how such simple averaging
comports with the statutory directive to weight-average
individual rates when calculating the all-others rate, 84 and
84 In Shrimp from India, Commerce explained that its normal
practice is to “calculate a weighted-average countervailing duty
rate using the publicly available, ranged values of the
mandatory respondents’ exports of subject merchandise to the
United States, compare both this weighted-average rate and a
simple average of the mandatory respondents’ countervailing duty
rates to the actual weighted-average rate (calculated using the
proprietary export values) and assign to All Others the amount
closer to the actual weighted-average countervailable subsidy
rate,” but then stated that “we do not have publicly available
information on U.S. sales value for one of the selected
respondents,” and explained that, “[b]ecause of this,” the
agency used a simple average to calculate the all-others rate.
Shrimp from India, supra note 24, at 25. 	Commerce provided no
explanation for why the necessary public data were missing from
the record, and no explanation as to how this approach comports
with the statutory directive to weight-average individual rates
when calculating the all-others rate. See id.; see also Issues &
Decision Mem., Certain Frozen Warmwater Shrimp from India, C-
533-854, Investigation (Aug. 12, 2013) (adopted in 78 Fed. Reg.
50,385 (Dep’t Commerce Aug. 19, 2013) (final affirmative
countervailing duty determination)) (providing no commentary on
this issue). 	In the remaining three determinations that
Commerce relies on here, the agency provided even less
explanation, simply stating that, “[n]otwithstanding the
language of [19 U.S.C. § 1671d(c)(5)(A)(i)],” Commerce chose not
to calculate the all-others rate by weight-averaging the rates
of the individually investigated respondents “because doing so
risks disclosure of proprietary information” and, without any
additional reasoning or explanation, therefore using a simple
average of the individual rates as the all-others rate.
OCTG from Turkey, 79 Fed. Reg. at 41,965, and accompanying
Issues & Decision Mem., C-489-817, Investigation (July 10, 2014)
(providing no commentary on this issue); Chlorinated
Isocyanurates from China, 79 Fed. Reg. at 10,098 (unchanged in
the final results, 79 Fed. Reg. at 56,562, and accompanying
Issues & Decision Mem., C-570-991, Investigation (Sept. 8, 2014)
(providing no commentary on this issue)); Wind Towers from
China, 77 Fed. Reg. at 75,979, and accompanying Issues &
(footnote continued)
Case 1:11-cv-00209-DCP Document 121 Filed 08/14/15 Page 26 of 32

Consol. Court No. 11-00209 	Page 27
accordingly none of these determinations supports the agency’s
argument here.
That the necessary public data are absent from the
record here is due to Commerce’s own decision not to enforce its
regulatory requirement and request the necessary data from the
submitting parties. 85 Commerce initially “did not find that it
was necessary” to complete the public record, including public
versions of the voluntary respondents’ BPI, because at the time
19 C.F.R. § 351.204(d)(3) precluded using the voluntary
respondents’ data in the all-others rate calculation. 86 But even
then Commerce faced a challenge to the legality of this
regulation, 87 and it was unreasonable to presume that the
ultimate outcome of this litigation would favor the agency, as
indeed it did not. 88
Decision Mem., C-570-982, Investigation (Dec. 17, 2012)
(providing no commentary on this issue).
85 See Def.’s Suppl. Br., ECF No. 115, at 4.
86 Id.
87 See MacLean-Fogg I, 36 CIT at __, 836 F. Supp. 2d at 1372;
Case Br. of Eagle Metals Distribs., Inc., Ningbo Yili Imp.
& Exp. Co., Ltd. & Zhaoqing Asia Aluminum Factory Co. Ltd.,
Aluminum Extrusions from the People’s Republic of China,
C-570-968, Investigation (Feb. 9, 2011), reproduced in [Pls.’]
J.A., ECF No. 39 at Tab P, at 4 (arguing that “[Commerce]’s
regulation excluding the calculated rates for voluntary
respondents [from the all-others rate calculation] is void
because it is contrary to the plain language of the statute”).
88 MacLean-Fogg V, 753 F.3d at 1244 (“Because the statute is
(footnote continued)
Case 1:11-cv-00209-DCP Document 121 Filed 08/14/15 Page 27 of 32

Consol. Court No. 11-00209 	Page 28
Moreover, even if the regulation excluding the
voluntary respondents’ rates from the all-others rate
calculation had not been challenged and invalidated, and even if
Commerce had been correct that the voluntary respondents’
information would be used solely to calculate their own
individual rates, Commerce also failed to consider another
important concern. 	By leaving the record of the voluntary
respondents’ rates calculations sealed from public scrutiny
(because the voluntary respondents’ rates are based on their
non-public information), Commerce failed to recognize the value
of ensuring that all aspects of the administrative record –
including the evidentiary bases for the voluntary respondents’
rates themselves (regardless of whether or not they are included
in the all-others rate) – are as publicly available as they can
be. 	There is “a fundamental public interest in transparency in
government,” 89 and “[t]he parties to a lawsuit are not the only
clear that [non-zero, non-de minimis, non-AFA] voluntary
respondent rates must be included in the general all-others rate
calculation, Commerce’s regulatory interpretation to the exact
contrary is invalid.”).
89 Former Emps. of Invista, S.a.r.l. v. U.S. Sec’y of Labor,
33 CIT 1523, 1524 n.1, 657 F. Supp. 2d 1359, 1360-61 n.1 (2009)
(ordering the agency to review the entire administrative record
to ensure that it is maximally publicly available);
see also Union Oil Co. of Cal. v. Leavell, 220 F.3d 562, 568
(7th Cir. 2000) (Easterbrook, J.) (“What happens in the halls of
government is presumptively public business.”).
Case 1:11-cv-00209-DCP Document 121 Filed 08/14/15 Page 28 of 32

Consol. Court No. 11-00209 	Page 29
people who have a legitimate interest in the [public] record
compiled in a legal proceeding.” 90 “[L]itigants in other similar
cases have a legitimate need (and a right) to review the facts
underlying a[n agency]’s decision” in order to “discern the
relevance and significance of [that] decision vis-à-vis their
own cases.” 91 Here, Commerce unreasonably failed to weigh the
importance of completing the public record with regard to these
voluntary respondents, even if the agency were correct that
their subsidy rates would not be included in the all-others
rate, for by doing so Commerce automatically precluded potential
future interested parties from ascertaining the reasoning
underlying the voluntary respondents’ rates.
Finally, Commerce’s decision on remand not to expend
the minimal effort required to correct the error and obtain the
missing public versions of the necessary BPI was, based on the
record here, clearly an unreasonable exercise of judgment.
90 Citizens First Nat’l Bank of Princeton v. Cincinnati Ins. Co.,
178 F.3d 943, 944 (7th Cir. 1999) (Posner, C.J.).
91 Former Emps. of Invista, 33 CIT at 1524 n.1, 657 F. Supp. 2d
at 1361 n.1 (citations omitted); see also id. (“The public has a
right to review a judge’s rationale, not merely the outcome, in
a case.”); cf. In re Constr. Equip. Co., 665 F.3d 1254, 1261
(Fed. Cir. 2011) (noting that administrative agencies “have a
‘quasi-judicial’ flavor” that justifies the application of
judicial principles to agency decision-making); Iowa League of
Cities v. EPA, 711 F.3d 844, 873 (8th Cir. 2013) (noting that
the procedures established by the Administrative Procedure Act
“secure the values of government transparency”).
Case 1:11-cv-00209-DCP Document 121 Filed 08/14/15 Page 29 of 32

Consol. Court No. 11-00209 	Page 30
Although Commerce initially saw no apparent need for the public
data, this was no longer true at the time of the remand
proceeding. 	19 C.F.R. § 351.304(c)(1), which requires all BPI
to be accompanied by public versions “in sufficient detail to
permit a reasonable understanding of the substance of the
information,” provides a clear and unambiguous formula for
converting proprietary numerical data into publicly available
summaries thereof: “numerical data will be considered adequately
summarized if grouped or presented in terms of indices or
figures within 10 percent of the actual figure,” and “[i]f an
individual portion of the numerical data is voluminous, at least
one percent representative of that portion must be summarized.” 92
Accordingly, all that Commerce had to do to follow the statutory
prescription that individual rates be weight-averaged to arrive
at the all-others rate, without impermissibly revealing BPI, was
to send a letter to each of the voluntary respondents,
referencing the regulation and requesting that their BPI be
publicly ranged in accordance with the provided formula for
doing so, or even to simply itself apply the formula to the BPI.
Instead the agency chose to forego the statutory requirement and
distort the accuracy of its all-others rate calculation. 	Thus
to the extent that Commerce had discretion to avoid enforcement
92 19 C.F.R. § 351.304(c)(1).
Case 1:11-cv-00209-DCP Document 121 Filed 08/14/15 Page 30 of 32

Consol. Court No. 11-00209 	Page 31
of the public versions requirement, the agency failed to
exercise its judgment reasonably, and therefore abused its
discretion.
Accordingly, while Commerce is correct that it has no
general duty to reopen the record during remanded proceedings, 93
the particular circumstances presented here require that, where
the necessary data is missing from the record due to Commerce’s
own failure to fully administer the legal framework, it is the
agency’s responsibility to go back and fix errors that are
material to the remand proceeding. 	Commerce’s determination to
use a simple average of the two individually-investigated
respondents’ subsidy rates in this case is therefore remanded
for reconsideration. 	On remand, Commerce may either reopen the
record and enforce 19 C.F.R. § 351.304(c)(1)’s requirement that
the voluntary respondents submit public versions of their BPI,
or (as AETFC suggests 94 ) itself publicly range the BPI, if the
agency finds that doing so is appropriate here.
93 See Def.’s Br., ECF No. 112, at 6.
94 Pet’r’s Suppl. Br., ECF Nos. 118 & 119, at 4 (“Given that
Commerce has the parties’ total sales revenue and the subsidy
calculation for both domestic and export subsidies, there is no
reason that Commerce, using its inherent authority to enforce
its own regulations, cannot round and range the total sales
denominator within the regulatory plus or minus ten percent
without reopening the record and delaying this proceeding.”).
Case 1:11-cv-00209-DCP Document 121 Filed 08/14/15 Page 31 of 32

Consol. Court No. 11-00209 	Page 32
CONCLUSION
For all of the foregoing reasons, Commerce’s
determination to rely solely on simple averaging when
calculating the all-others rate in this case pursuant to
19 U.S.C. § 1671d(c)(5)(A)(i) is remanded for reconsideration,
consistent with this opinion. 	Commerce shall have until
September 24, 2015, to complete and file its remand results, the
parties shall have until October 9, 2015, to file any comments,
and the agency shall have until October 19, 2015, to respond.
It is SO ORDERED.
_____/s/ Donald C. Pogue_____
Donald C. Pogue, Senior Judge
Dated: August 11, 2015
New York, NY
Case 1:11-cv-00209-DCP Document 121 Filed 08/14/15 Page 32 of 32