MACLEAN-FOGG CO., ET AL., 

 Plaintiffs, 

 v. 

UNITED STATES, 

 Defendant, 

 and 

ALUMINUM EXTRUSIONS FAIR TRADE 

COMMITTEE, 

 Defendant-Intervenors. 

Slip Op. 12 - 

UNITED STATES COURT OF INTERNATIONAL TRADE 

OPINION 

[Commerce’s final results on redetermination are AFFIRMED.] 

Dated: November 30, 2012 

 Thomas M. Keating, Lisa M. Hammond, and Kazumune V. Kano, 

Hodes Keating & Pilon, of Chicago, IL, for Plaintiffs MacLeanFogg Co. and Fiskars Brand, Inc. 

 Mark B. Lehnardt, Lehnardt & Lehnardt LLC, of Liberty, MO, 

for Plaintiff-Intervenors Eagle Metal Distributors, Inc. and 

Ningbo Yili Import & Expert Co., Ltd. 

 Craig A. Lewis, T. Clark Weymouth, and Brian S. Janovitz, 

Hogan Lovells US LLP, of Washington, DC, for PlaintiffIntervenor Evergreen Solar, Inc. 

 Tara K. Hogan, Trial Attorney, Commercial Litigation 

Branch, Civil Division, U.S. Department of Justice, of 

Washington, DC, for Defendant. With her on the briefs were 

																																																								 1

 This action is consolidated with Court Nos. 11-00210, 11-

00220, and 11-00221. 

Before: Donald C. Pogue, 

 Chief Judge 

Consol.1 Court No. 11-00209 
Consol. Court No. 11-00209 Page 2 

Stuart F. Delery, Acting Assistant Attorney General, Jeanne E. 

Davidson, Director, and Reginald T. Blades, Jr., Assistant 

Director. Of counsel on the briefs was Joanna Theiss, Attorney, 

Office of the Chief Counsel for the Import Trade Administration, 

U.S. Department of Commerce, of Washington, DC. 

 Stephen A. Jones, Christopher T. Cloutier, Daniel L. 

Schneiderman, Gilbert B. Kaplan, Joshua M. Snead, and Patrick J. 

Togni, King & Spalding LLP, of Washington, DC, for DefendantIntervenor Aluminum Extrusions Fair Trade Committee. 

Pogue, Chief Judge: This case returns to court 

following remand in MacLean-Fogg Co. v. United States, 36 CIT 

__, 853 F. Supp. 2d 1336 (2012) (“MacLean-Fogg III”). MacLeanFogg III found that the Department of Commerce’s (“the 

Department” or “Commerce”) application, to the Plaintiffs, of 

the all-others 374.15% countervailing duty (“CVD”) rate required 

reconsideration or further explanation because Commerce failed 

to properly explain why the assumption that Plaintiffs, like the 

mandatory respondents in this investigation,3 used 100% of 

																																																								 3

 When, as in this case, an investigation involves a large 

number of potential respondents, the governing statute allows 

Commerce to select a smaller number of respondents to act as 

mandatory respondents. 19 U.S.C. § 1677f-1(e)(2). The 

remaining respondents have the option of asking for voluntary 

respondent status and submitting information for examination. 

19 U.S.C. § 1677m(a); 19 C.F.R. § 351.204(d). Companies not 

selected as mandatory or voluntary respondents receive a rate 

that is calculated for “all-other” companies. 19 U.S.C. 

§ 1671d(c)(1)(B)(i)(I). To calculate this all-others rate, 

Commerce is directed by statute to use the weighted average rate 

of all individually investigated companies, or, in the event 

that these rates are calculated using adverse facts available 

(“AFA”), any reasonable method, which may include use of rates 

calculated using AFA. 19 U.S.C. § 1671d(c)(5)(A)(i)—(ii) 
Consol. Court No. 11-00209 Page 3 

subsidies available throughout the People’s Republic of China 

(“PRC” or “China”) was remedial and not punitive. The court 

ordered Commerce to either explain how its assumption was 

remedial and not punitive, or, alternatively, recalculate the 

rate applicable to the Plaintiffs’ merchandise. 

On remand, Commerce recalculated the all-others rate, 

finding appropriate a rate equal to the mandatory respondents’ 

preliminary rate: 137.65%. Final Results of Redetermination 

Pursuant to Court Remand, ECF No. 80 at 1 (Dep’t Commerce Sept. 

13, 2012) (“Remand Results”) (citing Aluminum Extrusions from 

the People’s Republic of China, 75 Fed. Reg. 54,302 (Dep’t 

Commerce Sep. 7, 2010) (preliminary affirmative countervailing 

duty determination)). Explaining that this rate is remedial and 

not punitive, Commerce stated that the preliminary rate is not 

based on all the subsidy programs that were identified in the 

investigation and ultimately used in the final rate calculation 

for the mandatory respondents. Rather, Commerce excluded 

programs that were identified as used solely by the voluntary 

respondents and assumed a lower subsidy rate for those programs 

																																																																																																																																																																																		

(“Section 1671d”); MacLean-Fogg Co. v. United States, 36 CIT __, 

836 F. Supp. 2d 1367, 1374 n.9 (2012) (“MacLean-Fogg I”). In 

addition, Commerce promulgated -- and this court has upheld -- 

19 C.F.R. § 351.204(d)(3), which states that for the purposes of 

calculating the all-others rate, voluntary respondents’ rates 

will not be considered. MacLean-Fogg I, 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). 
Consol. Court No. 11-00209 Page 4 

than the subsidy rate used in the final rate calculation. 

Remand Results at 22. Plaintiffs seek review of the reduced 

rate. The court affirms Commerce’s rate because Commerce 

adequately explained why the 137.65% rate is not punitive but is 

a reasonable calculation for the all-others companies. 

We have jurisdiction pursuant to Section 516A(2)(B)(i) 

of the Tariff Act of 1930, as amended, 19 U.S.C. 

§ 1516a(2)(B)(i) (2006) and 28 U.S.C. § 1581(c).4

 

BACKGROUND5

Commerce designated the three largest exporters of 

extruded aluminum from China as mandatory respondents in this 

investigation. MacLean-Fogg I, 836 F. Supp. 2d at 1370. When 

the mandatory respondents failed to cooperate, Commerce resorted 

to adverse facts available to calculate their CVD rate, with a 

resulting rate of 374.15%. Id. at 1370-71; 19 U.S.C. § 1677f1(e)(2). Two companies asked for and received voluntary 

respondent status. After its investigation of these 

respondents, Commerce calculated final voluntary respondent CVD 

																																																								 4

 All further citations to the Tariff Act of 1930, as 

amended, are to Title 19 of the U.S. Code, 2006 edition. 

5 The court has, on two previous occasions, remanded this 

case to Commerce to explain how the calculation of the allothers rate for non-mandatory respondents is reasonable. 

Familiarity with the court’s prior decisions is presumed. 
Consol. Court No. 11-00209 Page 5 

rates which ranged from 8%-10%. Finally, pursuant to the 

controlling statute and regulations, Commerce averaged the rates 

calculated for the mandatory respondents and arrived at a rate 

of 374.15% for the remaining companies, otherwise known as the 

all-others companies. MacLean-Fogg I, 836 F. Supp. 2d at 1371; 

see 19 C.F.R. § 351.204(d)(3). 

Plaintiffs sought review, claiming that the statutory 

language in Section 1671d unambiguously called for the allothers rate to be calculated using only individually 

investigated respondents, which in this case, Plaintiffs 

claimed, were the voluntary respondents because those were the 

only respondents who cooperated with Commerce’s investigation. 

MacLean-Fogg I held that Section 1671d was ambiguous with regard 

to the permitted data source and that Commerce was permitted to 

use the AFA rate in calculating the all-others rate, provided it 

did so in a reasonable manner. MacLean-Fogg I, 836 F. Supp. 2d 

at 1373—74. Nonetheless, the court remanded the all-others rate 

to Commerce for reconsideration because Commerce had failed to 

articulate a logical connection between the AFA mandatory 

respondent rate and the all-others companies. Id. at 1376. 

A subsequent opinion concluded that Commerce’s 

preliminary all-others rate in the preliminary determination was 

also subject to review under the same reasonableness standard 

because it had legal effect on the entries made during the 
Consol. Court No. 11-00209 Page 6 

interim time period between the issuance of the preliminary and 

final CVD rates, both as a cash deposit rate and, if an annual 

review was sought, as a cap on the final rate for those 

particular entries. MacLean-Fogg Co. v. United States, 36 CIT 

__, 853 F. Supp. 2d 1253, 1256 (2012) (“MacLean-Fogg II”). Thus 

MacLean-Fogg II required consideration of the lawfulness of the 

preliminary rate once Commerce provided a reasonable final CVD 

rate. Id. 

Commerce then provided its first set of remand 

results. See MacLean-Fogg III, 853 F. Supp. 2d at 1338. In 

these results, Commerce did not recalculate the all-others rate, 

but rather, provided data showing that the rate calculated for 

the mandatory respondents is logically connected to the allothers companies because the mandatory respondents comprise a 

significant portion of the Chinese extruded aluminum producers 

and exporters and thus are representative of the Chinese 

extruded aluminum industry as a whole. In contrast, the allothers companies and voluntary respondents make up a fraction of 

the market. Therefore, and the court agreed, it was reasonable 

to use the mandatory respondents’ rate in Commerce’s calculation 

because the mandatory respondents were more representative of 

business practices in the Chinese extruded aluminum market. Id. 

at 1341. MacLean-Fogg III concluded that Commerce had provided 

sufficient reasoning for excluding voluntary respondents’ rates 
Consol. Court No. 11-00209 Page 7 

from the all-others rate calculation. Nonetheless, MacLean-Fogg 

III also concluded that Commerce failed to explain how the allothers rate was remedial and not punitive when it assumed use of 

all subsidy programs across the PRC while at the same time 

stating that the all-others companies were significantly smaller 

than the mandatory respondents. Id. at 1341—43. 

Accordingly, the court ordered Commerce to reconsider the allothers rate or further explain its reasoning. Id. 

In response to the court’s second remand order, 

Commerce submitted the remand results currently under review. 

In these remand results, Commerce has chosen to designate the 

all-others rate as equal to the preliminary rate it calculated 

for the mandatory respondents: 137.65%. Commerce reasons that 

because this rate does not utilize the full measure of subsidy 

programs used to calculate the final 374.15% rate, and excludes 

all programs that were used only by the voluntary respondents, 

it is in keeping with the court’s order to calculate a rate that 

is remedial and not punitive. Additionally, by reverting to the 

preliminary determination rate, Commerce assumed programspecific subsidy rates of 8.54%, which are approximately 2% 

lower than the final rate calculated for the mandatory 

respondents. Defendant’s Response to Comments Regarding the 

Second Remand Redetermination, ECF No. 85 at 27-28 (“Defendant’s 

Reply”). 
Consol. Court No. 11-00209 Page 8 

Plaintiffs argue that the all-others rate is still 

punitive because it includes more subsidy programs than the allothers companies could utilize, and is based on high usage rates 

of the subsidy programs, rates that are not in keeping with 

historical trends and voluntarily submitted information. Joint 

Plaintiffs’ Comments on Commerce’s Second Remand 

Redetermination, ECF No. 83 at 2-4 (“Plaintiffs’ Comments”). 

Furthermore, Plaintiffs assert that the reasonableness of the 

preliminary rate is still under consideration by the court and 

request an opportunity to further brief their claims once the 

court has ruled on the Second Remand Determination. Id. at 2 

n.2. Plaintiffs argue that the all-others rate should be based 

on the rates assessed on voluntary respondents and historical 

data identified from similar or identical programs. Id. at 36-

38. 

STANDARD OF REVIEW 

When reviewing Commerce’s determinations 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 
Consol. Court No. 11-00209 Page 9 

accept as adequate to support a conclusion.” Universal Camera 

Corp. v. NLRB, 340 U.S. 474, 477, 491 (1951) (citing Consol. 

Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The conclusion 

Commerce reaches need not be the best or only possible 

conclusion, merely a reasonable one. See Nat’l Cable & 

Telecomms. Assn. v. Brand X Internet Servs., 545 U.S. 967, 980 

(2005). 

DISCUSSION 

As an initial matter, Plaintiffs assert that Commerce 

must take into consideration the “limited geographic footprint” 

of the all-others companies when assuming use of subsidy 

programs.6

 Plaintiffs’ Comments at 13. Of the subsidy programs 

that Commerce factored into its CVD rate calculations, some were 

available only to producers and exporters located in specific 

geographic areas.7

 See id. at 14—15. Plaintiffs assert that 

because the record shows none of the all-others companies had a 

																																																								 6

 Plaintiffs also raise an argument that has been heard and 

settled, namely that the all-others rate is unreasonably based 

on AFA and is not permitted by statute. But the statute 

expressly permits the use of AFA rates in the calculation of the 

all-others rate. See MacLean-Fogg I, 836 F. Supp. 2d at 1373—74. 

7

 Plaintiffs point out that ten location-specific programs 

were available only in certain regions and provinces. Relying 

on the addresses provided by Petitioners before the 

investigation began, Plaintiffs claim that Commerce unreasonably 

included subsidy programs from two cities where the all-others 

companies do not have a presence. Plaintiffs’ Comments at 15. 
Consol. Court No. 11-00209 Page 10 

presence in two cities, Liaoyang and Wenzhou, Commerce 

unreasonably included the subsidy programs from the two 

localities in its calculations. Furthermore, Plaintiffs 

contend, when Commerce included every location-specific subsidy 

program in its calculations, Commerce unreasonably assumed that 

each all-others company was somehow present in and able to avail 

itself of subsidy programs across the entire PRC. Id. at 15. 

Commerce notes in response that the rate used here is 

based on an assumed use of 29 subsidy programs, which stands in 

contrast to the 54 programs identified and used in the final 

rate calculation for the mandatory respondents. Defendant’s 

Reply at 8—9. Furthermore, the 137.65% rate does not include 

the location-specific subsidy programs that were clearly 

identified on the record as being used only by the voluntary 

respondents. Id. Finally, Commerce explains that the data 

Plaintiffs rely on to demonstrate that none of the all-others 

companies are located in Liaoyang and Wenzhou is 

unsubstantiated, and that it is not reasonable to extrapolate, 

without investigation, that the addresses on file are the 

locations of manufacturing facilities, or that there is no 

cross-ownership or affiliation between the all-others companies. 

Remand Results at 24—25. In sum, Commerce’s position is that it 

is charged with fine-tuning an all-others rate based on 

incomplete record evidence. Defendant’s Reply at 10—11. 
Consol. Court No. 11-00209 Page 11 

The court agrees with Commerce. The assumptions 

guiding Commerce’s decision to use the preliminary rate are 

reasonable given the limitations of the administrative record. 

Plaintiffs’ reliance on the addresses provided in the Petition 

is unavailing because Commerce raises the reasonable concern 

that these addresses do not accurately convey locations of 

manufacturing facilities nor does they account for potential 

cross-ownership. 

While Plaintiffs assert that no record evidence exists 

to support Commerce’s claim that some of the all-others 

companies may be cross-owned, there is similarly no record 

evidence to establish that they are not cross-owned. Nor is 

there evidence to support Plaintiffs’ assertions that the 

addresses provided in the Petition are the addresses for 

manufacturing facilities. Without gathering additional data – 

which could have been submitted or obtained had the Plaintiffs 

asked for voluntary respondent status – Commerce’s choice is a 

reasonable one given the uncertainty surrounding the addresses 

on record. When Commerce reduced the number of subsidy programs 

used for its CVD rate calculation for the all-others companies, 

it addressed the issue raised by MacLean-Fogg III that the allothers rate was unreasonably assuming 100% use of all subsidy 

programs available in the PRC. 
Consol. Court No. 11-00209 Page 12 

Plaintiff’s efforts to demonstrate that the current 

rate is not a perfect fit and to provide alternative rates are 

not without weight, but Commerce’s obligation is only to provide 

a reasonable rate, not a perfect one. See Nat’l Cable & 

Telecomms., 545 U.S. at 980. 

Next, Plaintiffs contend that Commerce failed to 

account for historic trends which show non-use of most alleged 

subsidy programs and attack the program-specific subsidy rates 

that go into calculating the final all-others rate, asserting 

that these rates are aberrant and unrepresentative. Plaintiffs 

propose several different subsidy rates, based on historic use 

of subsidy programs and weighted averages. While these rates 

could possibly be reasonable, they are not the only reasonable 

ones. All that Commerce is required to provide is a reasonable 

rate, not necessarily the one that this court or another party 

feels is a better fit. See id. 

Here Commerce was faced at the outset with “the 

difficult task of selecting an all-others rate with limited 

information before it.” MacLean-Fogg I, 836 F. Supp. 2d at 

1376. Plaintiffs had the opportunity to ask for voluntary 

respondent status and failed to do so. Plaintiffs’ effort to 

detail possible rates based on historic trends and geographic 

location is the type of effort and cooperation that the court 

would hope parties would provide when they are individually 
Consol. Court No. 11-00209 Page 13 

investigated, whether as mandatory or voluntary respondents. 

Furthermore, the court notes that Plaintiffs have the 

opportunity to ask for voluntary status in an annual review of 

their CVD rate. 19 C.F.R. § 351.221. 

Finally, MacLean-Fogg II also concluded that the 

lawfulness of the preliminary rate, which was based on the same 

methodology that was remanded in MacLean-Fogg I, would be 

reviewed following determination of a final rate. However, in 

the interim, Commerce provided additional explanation, in its 

subsequent remand results, showing that the preliminary 

methodology was reasonable because the mandatory respondents in 

this investigation comprise the vast majority of extruded 

aluminum producers and exporters in China, whereas the allothers companies represent a small fraction of the industry. 

See MacLean-Fogg III, 853 F. Supp. 2d at 1339. Therefore, and 

for the same reasons provided for the final rate in MacLean-Fogg 

III, the methodology used to calculate the preliminary rate for 

the mandatory respondents, and ultimately to calculate the allothers rate as it has now been revised, is sustained. 
Consol. Court No. 11-00209 Page 14 

CONCLUSION 

For the reasons stated above, Commerce’s final results 

upon redetermination are AFFIRMED. Judgment will be entered 

accordingly. 

_____/s/ Donald C. Pogue_____ 

Donald C. Pogue, Chief Judge 

Dated: November 30, 2012 

 New York, NY