United States Court of Appeals
    for the Federal Circuit
          ______________________

 MACLEAN-FOGG COMPANY, AND FISKARS
      BRANDS, INCORPORATED,
             Plaintiffs,

                   AND

NINGBO YILI IMPORT & EXPORT CO., LTD.,
               Plaintiff,

                   AND

       EVERGREEN SOLAR, INC.,
           Plaintiff-Appellant,

                   AND

  EAGLE METALS DISTRIBUTORS, INC.,
          Plaintiff-Appellant,

                    v.

           UNITED STATES,
           Defendant-Appellee,

                   AND

  ALUMINUM EXTRUSIONS FAIR TRADE
             COMMITTEE,
           Defendant-Appellee.
         ______________________

                2013-1187
2                               MACLEAN-FOGG COMPANY      v. US



                   ______________________

   Appeal from the United States Court of International
Trade in Nos. 11-CV-0209, 11-CV-0210, 11-CV-0220, and
11-CV-0221, Chief Judge Donald C. Pogue.
                ______________________

                    Decided: June 3, 2014
                   ______________________

    MARK B. LEHNARDT, Lehnardt & Lehnardt LLC, of
Liberty, Missouri, argued for all plaintiffs-appellants.
With him on the brief was CRAIG A. LEWIS, Hogan Lovells
US LLP, of Washington, DC, for plaintiff-appellant Ever-
green Solar, Inc. Of counsel was WESLEY V. CARRINGTON.

    TARA K. HOGAN, Senior Trial Counsel, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, argued for defendant-
appellee United States. With her on the brief were STUART
F. DELERY, Acting Assistant Attorney General, JEANNE E.
DAVIDSON, Director, and REGINALD T. BLADES, JR., Assis-
tant Director. Of counsel on the brief was JOANNA THEISS,
ATTORNEY, Office for Chief Counsel for Import Trade
Administration, United States Department of Commerce,
of Washington, DC.

      ALAN H. PRICE, Wiley Rein LLP, of Washington, DC,
for defendant-appellee Aluminum Extrusions Fair Trade
Committee. Of counsel were ROBERT E. DEFRANCESCO,
III, and LAURA EL-SABAAWI.
                 ______________________

Before NEWMAN, CLEVENGER, and REYNA, Circuit Judges.
    Opinion for the court filed by Circuit Judge CLEVENGER.
       Dissenting opinion filed by Circuit Judge REYNA.
MACLEAN-FOGG COMPANY    v. US                             3



CLEVENGER, Circuit Judge.
    Evergreen Solar, Inc. and Eagle Metal Distributors,
Inc. (collectively, the “Appellants”) appeal the final deci-
sion of the United States Court of International Trade
sustaining the final all-others countervailing duty rate set
by the Department of Commerce (“Commerce”) in an
investigation of aluminum extrusions imported from the
People’s Republic of China. MacLean-Fogg Co. v. United
States, 885 F. Supp. 2d 1337 (Ct. Int’l Trade 2012) (“Mac-
Lean-Fogg IV”). We have jurisdiction under 28 U.S.C.
§ 1295(a)(5). Because the Court of International Trade did
not interpret the relevant statute correctly, we reverse.
                                I
    When Commerce conducts a countervailing duty in-
vestigation of particular merchandise in a market involv-
ing a large number of exporters and producers, the
countervailing duty statute authorizes it to select a sam-
ple of exporters and producers for individual investiga-
tion. 19 U.S.C. § 1677f-1. The countervailing duty statute
provides in § 1671d for the calculation of an “all-others”
countervailing duty rate which applies to exporters or
producers who are not individually investigated. Export-
ers or producers who are initially selected by Commerce
are called mandatory respondents. Mandatory respond-
ents who cooperate with Commerce’s investigation are
given countervailing duty rates particular to their indi-
vidual circumstances. Mandatory respondents who fail to
cooperate to the best of their ability are given rates de-
termined under § 1677e(b) using adverse facts available
(“AFA”). Exporters or producers who are not initially
selected for investigation and who wish to participate may
supply the necessary information to Commerce to calcu-
late individual countervailing duty rates for them. Such
exporters or producers are called voluntary respondents.
“All-others” are those exporters or producers not exam-
ined as initial selectees or as voluntary respondents.
4                              MACLEAN-FOGG COMPANY     v. US



     The general rule for calculation of the all-others coun-
tervailing duty rate specifies that the rate will 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.”
§ 1671d(c)(5)(A)(i). There is an exception to the general
rule for calculation of the all-others rate. The exception
comes into play “[i]f the countervailable subsidy rates
established for all exporters and producers individually
investigated are zero or de minimis rates, or are deter-
mined entirely under section 1677e.” § 1671d(c)(5)(A)(ii).
When the exception is applicable, the statute permits
Commerce to “use any reasonable method to establish an
all-others rate for exporters and producers not individual-
ly investigated.” Id.
    This case arose from a countervailing duty investiga-
tion of aluminum extrusions from the People’s Republic of
China, pursuant to a petition filed by Appellee Aluminum
Extrusions Fair Trade Committee. There are three cate-
gories of exporters or producers in this case. First, the
three selected mandatory respondents who refused to
cooperate and who consequently were awarded rates
entirely under § 1677e. Second, the two voluntary re-
spondents, who after individual investigation were
awarded individual rates that reflected their own particu-
lar circumstances. And third, the all-others, some of
whom are the Appellants, who challenge the legality of
the all-others rate Commerce established in this case.
    To establish the all-others rate, Commerce first dis-
carded the AFA rate assigned to the three mandatory
respondents—correctly so, because the all-others rate
statute mandates exclusion of rates determined entirely
under § 1677e. Next, Commerce excluded the individual
rates assigned to the voluntary respondents, relying on 19
C.F.R. § 351.204(d)(3), which expressly requires exclusion
MACLEAN-FOGG COMPANY    v. US                              5



of countervailable subsidy rates for voluntary respondents
from the calculation of the all-others rate. Having exclud-
ed the voluntary respondents’ countervailing duty rates,
Commerce had nothing left with which it could calculate
the all-others rate under the general rule, 19 U.S.C.
§ 1671d(c)(5)(A)(i). Commerce thus turned to the process
of “us[ing] any reasonable method to establish an
all-others rate for exporters and producers not
individually investigated” under the exception rule.
§ 1671d(c)(5)(A)(ii). Commerce decided to impose the
374.15% rate, the AFA rate assigned to the non-
cooperating mandatory respondents, on all-others as a
reasonable method.
    Four domestic importers and one exporter of extruded
aluminum challenged Commerce’s action in the Court of
International Trade. The plaintiffs argued that 19 U.S.C.
§ 1677d was plain on its face in requiring Commerce to
use countervailing duty rates for voluntary respondents in
calculating the all-others rate, and that Commerce’s
regulation to the contrary was unlawful. The plaintiffs
also challenged the 374.15% rate as resulting from an
unreasonable method.
    The Court of International Trade concluded that
§ 1677d is ambiguous on the question of whether counter-
vailing duty rates assigned to voluntary respondents
should be included in the calculation of the all-others rate,
and that Commerce’s regulation is reasonable and thus
enforceable. MacLean-Fogg Co. v. United States, 836 F.
Supp. 2d 1367, 1373-74 (Ct. Int’l Trade 2012) (“MacLean-
Fogg I”). The Court of International Trade however
deemed the method that produced the 374.15% unneces-
sarily punitive and therefore unreasonable, and remand-
ed the case to Commerce to recalculate the all-others rate.
Id. at 1375-76. On reconsideration, the Court of Interna-
tional Trade reiterated its conclusion that the relevant
statute is ambiguous and that the regulation is valid.
6                              MACLEAN-FOGG COMPANY     v. US



MacLean-Fogg Co. v. United States, 853 F. Supp. 2d 1253,
1256 (Ct. Int’l Trade 2012) (“MacLean-Fogg II”).
    After further rounds of litigation at the Court of In-
ternational Trade, Commerce arrived at a “reasonable
method” for establishing the all-others rate, settling on a
AFA-based rate of 137.65%. MacLean-Fogg Co. v. United
States, 853 F. Supp. 2d 1336, 1373-74 (Ct. Int’l Trade
2012) (“MacLean-Fogg III”); MacLean-Fogg IV, 885 F.
Supp. 2d at 1343. The all-others rate of 137.65%, sus-
tained by the Court of International Trade, was obtained
by subtracting the contributions of subsidy programs
specific to the voluntary respondents from the 374.15%
rate previously given to the mandatory respondents based
on all subsidy programs.
    Appellants challenge the Court of International
Trade’s conclusions in MacLean-Fogg I and II, arguing
that the countervailing duty statute is clear on its face in
providing that the rates of any exporter or producer who
is individually investigated must be included in the
calculation of the all-others rate under the general rule.
They point out that the voluntary respondents were
individually investigated, and indeed received rates
particular to their individual circumstances. Because the
statute unambiguously provides for inclusion of voluntary
respondents’ rates in the calculation of the all-others rate,
Appellants maintain that there is no room for regulatory
interpretation of the statute and that 19 C.F.R.
§ 351.204(d)(3) therefore cannot lawfully take away what
the statute gives: inclusion of voluntary rates in calculat-
ing the all-others rate.
    Appellants also attack the Court of International
Trade’s conclusions in MacLean-Fogg III and IV about the
methodology used to arrive at the all-others rate. They
maintain that the statute does not permit direct applica-
tion of the adverse inference rate as the all-others rate
MACLEAN-FOGG COMPANY    v. US                            7



and also that the all-others rate imposed was not reason-
able under the particular circumstances of this case.
    We agree with Appellants that the statute unambigu-
ously requires that the rates of any individually investi-
gated exporter or producer be included in the calculation
of the all-others rate under the general rule. We hold that
19 C.F.R. § 351.204(d)(3) is invalid and reverse the judg-
ment of the Court of International Trade, remanding for a
proper determination of the all-others rate under the
general rule. We do not reach the question as to whether
the methodology used by Commerce to determine the all-
others rate was reasonable under the exception rule.
                            II
    The central question on appeal is whether 19 U.S.C.
§ 1671d is ambiguous on the issue of whether voluntary
respondent rates are to be included in the calculation of
the all-others rate under the general rule. In Chevron
analysis terms, Congress spoke directly to this question,
and as explained below its intent is clear. Chevron,
U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837,
842-43 (1984).
   § 1671d states, in relevant part:
   the all-others rate shall be an amount equal to the
   weighted average countervailable subsidy rates
   established for exporters and producers individu-
   ally investigated, excluding any zero and de min-
   imis countervailable subsidy rates, and any rates
   determined entirely under section 1677e of this ti-
   tle . . . .
   If the countervailable subsidy rates established
   for all exporters and producers individually inves-
   tigated are zero or de minimis rates, or are deter-
   mined entirely under section 1677e of this title,
   the administering authority may use any reason-
   able method to establish an all-others rate for ex-
8                              MACLEAN-FOGG COMPANY      v. US



    porters and producers not individually investigat-
    ed . . . .
§ 1671d(c)(5)(A)(i)-(ii).
      The Court of International Trade held that the statute
is ambiguous in MacLean-Fogg I. First, it looked to the
fact that § 1671(c)(5)(A)(i) recites that “the all-others rate
. . . be an amount equal to the weighted average counter-
vailable subsidy rates established for exporters and
producers individually investigated” without use of the
word “all” to modify “exporters and producers individually
investigated.” MacLean-Fogg I, 836 F. Supp. 2d at 1373.
Second, it reasoned that the statute lacked a “clear[]
specif[ication]” as to “which particular subset of respond-
ents Commerce is to rely upon when setting the all-others
rate” because there is no definition of the term “individu-
ally investigated” within the statute. Id. Finally, the
Court of International Trade identified within § 1677f-1,
which provides that the individual rates determined for
mandatory respondents “shall be used to determine the
all-others rate under section 1671d(c)(5),” a “suggest[ion]
that Congress intended for Commerce to, in some reason-
able way, use rates from mandatory respondents when
calculating the all-others rate under section 1671d.” Id.
    The Court of International Trade revisited the per-
ceived ambiguity of “individually investigated” in Mac-
Lean-Fogg II. Appellants pointed to the consistent use of
“investigate” within the Statement of Administrative
Action Accompanying the Uruguay Round Agreements
Act (“Statement of Administrative Action”) in reference to
voluntary respondents to show that “exporters and pro-
ducers individually investigated” include the voluntary
respondents. The Court of International Trade acknowl-
edged the Appellants’ argument, but upheld its earlier
conclusion. In its words, “it does not follow that a neutral
verb such as ‘investigate’ . . . always includes voluntary
MACLEAN-FOGG COMPANY    v. US                              9



respondents in its scope.” MacLean-Fogg II, 853 F. Supp.
2d at 1256.
    Commerce argued to the Court of International Trade
that its regulation is reasonable. First, relying on the
view that the statute is ambiguous on whether to count
the countervailing duty rates of voluntary respondents
when calculating the all-others rate, Commerce postulat-
ed that voluntary respondents and mandatory respond-
ents should be viewed as proceeding on parallel tracks
within the same countervailing duty investigation. Coop-
erating mandatory respondents would be investigated and
given particular rates that would be factored into an all-
others rate under the terms of § 1677d. Voluntary re-
spondents would likewise be investigated and given
individual rates, but in a parallel proceeding in which
their rates would be excluded from the all-others calcula-
tion. Because Commerce saw the statute as ambiguous on
whether voluntary respondent rates are included in
calculating the all-others rate, it considered itself free in
effect to conduct parallel proceedings for voluntary re-
spondents. Such made sense, according to Commerce,
because otherwise there was a risk that the rates of the
voluntary respondents would reduce the all-others rate
that would prevail if only the rates of mandatory respond-
ents were considered. Commerce predicted, without any
actual evidence, that voluntary respondents would be
motivated to seek individual rates only when they had
some real-world expectation that their individual rates
would be less than the rates that Commerce would de-
termine for mandatory respondents. Commerce’s justifica-
tion for its rejection was deemed reasonable by the Court
of International Trade, which noted the court’s obligation
to uphold Commerce’s interpretation “even if the court
does not believe it to be the best statutory interpretation.”
MacLean-Fogg I, 835 F. Supp. 2d at 1372 n.7.
10                              MACLEAN-FOGG COMPANY     v. US



                              III
    With regard to the treatment of voluntary respond-
ents, Congress spoke directly in § 1677m, which states in
relevant part:
     (a) Treatment of voluntary responses in counter-
     vailing or antidumping duty investigations and
     reviews
     In any investigation . . . in which the administer-
     ing authority has, under . . . section 1677f–1
     (e)(2)(A) of this title . . . , limited the number of
     exporters or producers examined . . . the adminis-
     tering authority shall establish an individual
     countervailable subsidy rate . . . for any exporter
     or producer not initially selected for individual
     examination under such sections who submits to
     the administering authority the information re-
     quested from exporters or producers selected for
     examination, if—
     (1) such information is so submitted by the date
     specified . . . for exporters and producers that
     were initially selected for examination . . . and
     (2) the number of exporters or producers who have
     submitted such information is not so large that
     individual examination of such exporters or pro-
     ducers would be unduly burdensome and inhibit
     the timely completion of the investigation.
    The statute is clear that voluntary respondents are
“exporters or producers” subject to “individual examina-
tion.” The rates calculated for them are “individual coun-
tervailable subsidy rate[s].” Within the countervailing
duty statute, “investigation”/”examination” and “investi-
gated”/“examined” are used interchangeably.
    For example, 19 U.S.C. § 1677f–1(e)(2), which pro-
vides Commerce with the authority for determining the
MACLEAN-FOGG COMPANY     v. US                             11



countervailable subsidy rates by sampling, states that
Commerce may “limit[] its examination” where there is a
“large number of exporters or producers involved in the
investigation or review.” (emphases added). The State-
ment of Administrative Action, by statute the “authorita-
tive expression by the United States . . . in any judicial
proceeding in which a question arises concerning such
interpretation or application” of the countervailing duty
statute, § 3512(d), also mixes “investigate/investigation”
and “examine/examination.” See, e.g., H.R. DOC. NO. 103-
316, vol. 1, at 873 (1994), reprinted in 1994 U.S.C.C.A.N.
4040, 4201 (“. . . in cases where Commerce has limited its
examination to selected exporters and producers, it never-
theless will calculate an individual dumping margin for
any exporter or producer not selected for examination that
provides the necessary information on a timely basis and
in the form required. Although Commerce . . . will not
discourage voluntary responses and will endeavor to
investigate all firms that voluntarily provide timely re-
sponses in the form required, in certain cases . . . where
the number of exporters or producers is particularly high,
Commerce may decline to analyze voluntary responses
because it would be unduly burdensome and would pre-
clude the completion of timely investigations or reviews.”
(emphases added)).
      Indeed, § 1677m describes the limited number of
mandatory respondents as having been “examined” dur-
ing the “investigation.” The language of 19 U.S.C.
§ 1671d(c)(1)(B)(i)(I) lends further support to the statuto-
ry construction here. It states that “[Commerce] shall . . .
determine an estimated individual countervailable subsi-
dy rate for each exporter and producer individually inves-
tigated, and . . . an estimated all-others rate for all
exporters and producers not individually investigated
. . . .” § 1671d(c)(1)(B)(i)(I). The two voluntary respondents
in this case were individually investigated and received
their individual countervailable subsidy rates accordingly.
12                             MACLEAN-FOGG COMPANY     v. US



Because § 1677m(a) recites that the rates of voluntary
respondents are “individual countervailable subsidy
rate[s],” the voluntary respondents must be understood to
be “exporter[s] and producer[s] individually investigated.”
      Beyond examining the meaning of words, it is also in-
structive to consider the statutory conflict that would
result if “exporters and producers individually investigat-
ed” were construed not to include the voluntary respond-
ents. On one hand, § 1671d(c)(1)(B)(i) provides that
Commerce “shall . . . determine an estimated all-others
rate for all exporters and producers not individually
investigated.” (emphasis added). On the other hand,
§ 1677m recites that Commerce “shall establish an indi-
vidual countervailable subsidy rate . . . for any exporter or
producer not initially selected for individual examination
. . . who submits . . . the information requested from ex-
porters or producers selected for examination,” i.e., for the
voluntary respondents. (emphasis added). The construc-
tion adopted by the Court of International Trade would
mean that Commerce “shall” impose on the voluntary
respondents both the “individual countervailable subsidy
rate” under § 1677m and the all-others rate under
§ 1671d(c)(1)(B)(i). That is an impossible result. The
Court of International Trade accidentally created a con-
flict in the statute where none exists.
    Were there need for more, as a matter of the plain
meaning of words, there is no ambiguity in the word
“individually” or in the word “investigated.” In the context
of the countervailing duty statute, there is no possible
doubt that a voluntary respondent who receives his
individual rate has undergone “individual investigation.”
    In MacLean-Fogg I, the Court of International Trade
found an ambiguity on the basis that the general rule for
calculating the all-others rate did not explicitly state that
the rates of “all” exporters and producers individually
investigated be included. 836 F. Supp. 2d at 1373. This
MACLEAN-FOGG COMPANY     v. US                             13



reasoning lacks support because the general rule itself
specifies its own exclusions: “any zero and de minimis
margins, and any margins determined entirely on the
basis of the facts available.” § 1671d(c)(5)(A)(i). The
existence of exclusions means that Congress intended all
“weighted average countervailable subsidy rates estab-
lished for exporters and producers individually investi-
gated” be factored into the calculation unless the
conditions for exclusion are met.
    For the same reason, the Court of International Trade
erred in stating that the statute “does [not] clearly specify
which particular subset of respondents Commerce is to
rely upon when setting the all-others rate.” MacLean-
Fogg I, 836 F. Supp. 2d at 1373. By setting forth exclu-
sions, Congress must be understood to intend that the
rates of all individually investigated respondents be relied
upon unless the rates fall within one of the exclusions.
    We also conclude that ambiguity cannot be found in
the specific method for calculating the all-others rate
under § 1671d simply because § 1677f-1(e)(2) provides
that the rates calculated for mandatory respondents
“shall be used to determine the all-others rate under
section 1671d(c)(5) of this title.” Section 1671d(c)(5) itself
limits § 1677f-1(e)(2) by excluding from the all-others rate
calculation any mandatory respondent rate that is zero,
de minimis or determined using AFA, which demon-
strates that the specific all-others rate calculation statute
governs the determination of the all-others rate. The fact
that some rates determined for mandatory respondents
shall be used in calculating the all-others rate does not
suggest that rates determined for individually investigat-
ed voluntary respondents must be excluded from the
calculation of the all-others rate.
    The Court of International Trade in MacLean-Fogg II
did consider the use of the word “investigate” in the
Statement of Administrative Action to refer to the volun-
14                             MACLEAN-FOGG COMPANY    v. US



tary respondents, but regarded it as a “neutral verb”
which does not always include voluntary respondents in
its scope. 853 F. Supp. 2d at 1256. “Investigate,” by itself
alone, may be neutral, but the disputed term, “exporters
and producers individually investigated,” is not. Given
that § 1671d repeatedly refers to “exporters and producers
individually investigated” and “exporters and producers
not individually investigated,” the language “exporters
and producers individually investigated” must be under-
stood to be a term of art. That the Statement of Adminis-
trative Action would refer to a specific group of
respondents with the word “investigate” is therefore of
critical importance to understanding whether “exporters
and producers individually investigated” encompasses
such respondents.
     We thus conclude that the Court of International
Trade erred in holding that the statute is ambiguous on
the question of whether the countervailing duty rates
(other than zero or de minimis) of voluntary respondents
must be included in the general rule for 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. Com-
merce’s rationale for its regulation is therefore irrelevant
and cannot serve to create ambiguity where none exists.
                             IV
   The legislative history confirms that voluntary re-
spondents are individually investigated. As the House
Report explains,
     Section 264. Determination of countervailable
     subsidy rate
     Present law
     Section 703(d)(1) of the Act [codified as 19 U.S.C.
     § 1671b(d)(1)] currently provides that Commerce
MACLEAN-FOGG COMPANY    v. US                             15



   shall, if its preliminary [countervailing duty] de-
   termination is affirmative, order the suspension of
   liquidation of all entries of merchandise subject to
   the determination . . . .
   Explanation of provision
   Section 264(a) of H.R. 5110 amends section
   703(d)(1) of the Act to provide that when Com-
   merce issues an affirmative preliminary [counter-
   vailing duty] determination, it will determine an
   individual countervailable subsidy rate to be ap-
   plied to each exporter and producer individually
   investigated and an “all-others” rate to be applied
   to those exporters and producers who were not in-
   dividually investigated . . . . Section 705(c)(1)(B)
   [codified as 19 U.S.C. § 1671d(c)(1)(B)] would ap-
   ply similar rules to affirmative final [countervail-
   ing duty] determinations.
   Section 264(b)(2) of H.R. 5110 amends section
   705(c) of the Act to establish rules for calculating
   the all-others rate and the country-wide subsidy
   rate.
   Reasons for change
   The change is necessary to conform U.S. law to
   the Agreement.
H.R. REP. NO. 103-826, at 118 (1994). See also Statement
of Administrative Action, H.R. DOC. NO. 103-316 at 873,
reprinted in 1994 U.S.C.C.A.N. at 4201 (“Recognizing the
impracticality of examining all producers and exporters in
all cases[,] Article 9.4 of the Antidumping Agreement
permits the use of an all others rate to be applied to non-
investigated firms. . . . [S]ection 735(c)(5)(A) to the Act
[codified as 19 U.S.C. § 1673d(c)(5)(B)] . . . provides that
the all others rate will be equal to the weighted average of
individual dumping margins calculated for those export-
ers and producers that are individually investigated,
16                               MACLEAN-FOGG COMPANY   v. US



exclusive of any zero and de minimis margins, and any
margins determined entirely on the basis of the facts
available.”).
    The legislative history confirms that those who are
“individually investigated” receive an “individual counter-
vailable subsidy rate” and those who are “not individually
investigated” receive an “all-others” rate. 19 U.S.C.
§ 1677m(a) recites that voluntary respondents receive an
“individual countervailable subsidy rate.” Consequently,
they are “individually investigated” within the meaning of
§ 1671d(c)(5)(A). There is no room for an alternative
understanding.
                             V
    It is further instructive to consider the history of the
countervailing duty statute, because, as the Statement of
Administrative Action provides, “[19 U.S.C. § 1677m, the
voluntary respondent provision,] generally codifies exist-
ing practice.” H.R. DOC. NO. 103-316 at 873, reprinted in
1994 U.S.C.C.A.N. at 4201.
     Prior to the amendments to the Tariff Act in 1994, an
all-others rate did not exist. Instead, a country-wide duty
rate, “equal to the amount of the net subsidy determined
or estimated to exist,” “shall presumptively apply to all
merchandise of such class or kind exported from the
country investigated.” 19 U.S.C. § 1671e(a) (1986)
(amended 1994). Even with this presumption, however,
“differing countervailing duties” may be provided when
“the administering authority determines there is a signif-
icant differential between companies receiving subsidy
benefits.” Id. Unlike the statute as it is today, the coun-
tervailing statute did not state how a country-wide duty
rate is to be “determined or estimated to exist” or how
individual rates are to be tabulated to ascertain “a signifi-
cant differential.” See Ipsco, Inc. v. United States, 899
F.2d 1192, 1195-96 (Fed. Cir. 1990).
MACLEAN-FOGG COMPANY      v. US                               17



    However, “[t]he regulations require Commerce to de-
termine, to the extent practicable, if a producer received a
significantly different net subsidy, by comparing the net
subsidy received by the producer with the weighted-
average net subsidy calculated on a country-wide basis.”
Kajaria Iron Castings Pvt. Ltd. v. United States, 156 F.3d
1163, 1177 (Fed. Cir. 1998) (applying the law as it was
prior to the 1994 amendments (citing 19 C.F.R.
§ 355.22(d)(1) (1992))). Accordingly, the regulations set
forth the “[c]alculation of individual rates.” 19 C.F.R.
§ 355.20(d) (1993). “If the Secretary decides that an
individual . . . producer or exporter received a significant-
ly different net subsidy, . . . the Secretary will state . . . an
individual estimated net subsidy for that person.”
§ 355.20(d)(2) (1993).
      The regulations also set forth a mechanism for pro-
ducers and exporters to apply for exemption to the pre-
sumptive country-wide rate. § 355.14(a) (1993) (“Any
producer or exporter . . . which desires exclusion from a
countervailing duty order must submit to the Secretary
. . . an irrevocable written request for exclusion.”). “The
Secretary will investigate requests for exclusion to the
extent practicable in each investigation.” Id. If investigat-
ed, these producers and exporters will get an “individual
rate, calculated in accordance with paragraph (d) of [the
aforementioned § 355.20 (1993)], [which] will be either the
weighted-average net subsidy calculated on a country-
wide basis or the individual rate calculated for that
person.” § 355.20(e) (1993).
    The producers and exporters whose “requests for ex-
clusion” from the presumptive country-wide rate are
“investigat[ed]” and who receive an “individual rate” are
the forerunners of the voluntary respondents. §§ 355.14,
355.20 (1993). To the extent that the countervailing duty
statute codifies this existing practice, it also codifies that
voluntary respondents are “individually investigated”
within the meaning of the statute.
18                            MACLEAN-FOGG COMPANY    v. US



    In addition, in the pre-1994 regime, rates calculated
for producers and exporters investigated and assigned
individual rates were factored into calculation of the
country-wide rate. For example, in Kajaria Iron Castings,
producers who received the country-wide rate challenged
the method of calculating that rate. Commerce had,
pursuant to its regulations, determined that three pro-
ducers had received a “significantly different net subsidy”
from the country-wide rate Commerce had calculated
based on information obtained from all the companies
investigated. 156 F.3d at 1166. The significantly different
net subsidies were 0%, 41.75%, and 16.14% compared to
the country-wide subsidy rate of 5.53%. Id. The challeng-
ers argued that the higher net subsidy rates established
for the individual companies should have been excluded
from the calculation of the country-wide rate. We rejected
that challenge, Kajaria Iron Castings, 156 F.3d at 1177,
relying on our previous decision in Ipsco, 899 F.2d 1192.
In Ipsco, in calculating the country-wide rate, Commerce
excluded the Canadian producers who received no coun-
tervailable subsidy (zero rate countervailing duty) or de
minimis subsidies from the country-wide rate calculation.
We sustained the challenge to Commerce’s methodology,
holding that the rates of all companies, including those
receiving no or de minimis subsidies must be included in
the country-wide average net subsidy rate. 899 F.2d at
1196.
    The law and regulations as they were before 1994
thus contemplated that Commerce would assign individu-
al countervailing duty rates to individually investigated
producers, and would include any such rates in the calcu-
lation of the country-wide rate.
                            VI
    Accordingly, “exporters and producers individually in-
vestigated” in the context of 19 U.S.C. § 1671d(c)(5)(A)
must be read to encompass the voluntary respondents. On
MACLEAN-FOGG COMPANY    v. US                           19



the current facts, the precondition for invoking the excep-
tion provision, that “the countervailable subsidy rates
established for all exporters and producers individually
investigated are zero or de minimis rates, or are deter-
mined entirely under section 1677e of this title,” has not
been met. § 1671d(c)(5)(A)(ii). We reverse the decision of
the Court of International Trade and remand for determi-
nation of the all-others rate under the general rule,
§ 1671d(c)(5)(A)(i).
            REVERSED AND REMANDED
                          COSTS
   No costs.
United States Court of Appeals
    for the Federal Circuit
          ______________________

 MACLEAN-FOGG COMPANY, AND FISKARS
      BRANDS, INCORPORATED,
             Plaintiffs,

                   AND

NINGBO YILI IMPORT & EXPORT CO., LTD.,
               Plaintiff,

                   AND

       EVERGREEN SOLAR, INC.,
           Plaintiff-Appellant,

                   AND

  EAGLE METALS DISTRIBUTORS, INC.,
          Plaintiff-Appellant,

                    v.

           UNITED STATES,
           Defendant-Appellee,

                   AND

  ALUMINUM EXTRUSIONS FAIR TRADE
             COMMITTEE,
           Defendant-Appellee.
         ______________________

                2013-1187
2                             MACLEAN-FOGG COMPANY    v. US



                 ______________________

   Appeal from the United States Court of International
Trade in Nos. 11-CV-0209, 11-CV-0210, 11-CV-0220, and
11-CV-0221, Chief Judge Donald C. Pogue.
                ______________________

REYNA, Circuit Judge, dissenting.
    I disagree with the majority that 19 U.S.C.
§ 1671d(c)(5)(A)(i)-(ii) (“Section 1671d”) unambiguously
requires that the voluntary respondent rates be included
in the all-others rate calculation. Because I find the
statute ambiguous and Commerce’s interpretation rea-
sonable, I would affirm the Court of International Trade’s
decision affirming a final all-others countervailing duty
rate of 137.65% in this investigation. I therefore respect-
fully dissent.
                      BACKGROUND
    A complete statement of the background of this case
is essential to understanding the issues involved on
appeal. The present appeal concerns a countervailing
duty investigation on imports of aluminum extrusions
from China initiated by Commerce on April 20, 2010.
Aluminum Extrusions from the People’s Republic of Chi-
na, 75 Fed. Reg. 22,114 (Dep’t of Commerce Apr. 27,
2010). The petition that triggered the investigation
identified as potential respondents 114 Chinese exporters
and producers of aluminum extrusions. Due to limited
agency resources, Commerce decided to limit the investi-
gation to the three largest companies based on export
volume (the “mandatory respondents”).
    The investigation initially focused on 29 subsidy pro-
grams alleged in the petition. Commerce issued a ques-
tionnaire to the mandatory respondents regarding these
programs, but none of the mandatory respondents sub-
mitted a response. Two other Chinese companies identi-
MACLEAN-FOGG COMPANY    v. US                            3



fied in the petition, however, requested “voluntary re-
spondent” status and submitted questionnaire responses.
The Government of China also submitted a questionnaire
response.
    Commerce published its preliminary results on Sep-
tember 7, 2010. Aluminum Extrusions from the People’s
Republic of China, 75 Fed. Reg. 54,302, at 54,321 (Dep’t of
Commerce Sept. 7, 2010). Because the mandatory re-
spondents failed to cooperate in the investigation by
declining to respond to the questionnaire, Commerce
calculated their preliminary countervailing duty rate
using “adverse facts available” (AFA). Pursuant to 19
U.S.C. § 1677e(b), Commerce may use an adverse infer-
ence in selecting among facts derived from the petition,
the record, or any previous investigation. Commerce
explained that it typically relies on the rates calculated
for cooperating respondents when calculating an AFA
rate. Because in this case there were no cooperating
mandatory respondents, Commerce used the highest non-
de minimis rate calculated for the same or similar subsidy
program in another China countervailing duty proceed-
ing, in accordance with its established practice. Where no
non-de minimis subsidy rates calculated for the same or
similar program existed, Commerce applied “the highest
calculated subsidy rate for any program otherwise listed
that could conceivably be used by the non-cooperating
companies.” Id. at 54,321. Following this procedure,
Commerce arrived at a 137.65% preliminary countervail-
ing duty rate for the mandatory respondents. Id. at
54,305. For the two voluntary respondents, Commerce
calculated rates of 6.18% and 10.37% based on their
separate, company-specific data. Id.
    For the exporters and producers not designated as
mandatory or voluntary respondents (the “all-others
respondents”), Commerce calculated a preliminary “all-
others” rate equal to the preliminary AFA rate for the
mandatory respondents. As the basis for this methodolo-
4                             MACLEAN-FOGG COMPANY    v. US



gy, Commerce relied on 19 C.F.R. § 351.204(d)(3), which
provides that countervailing duty rates calculated for
voluntary respondents should be excluded from the all-
others rate calculation. Commerce acknowledged that, in
prior investigations, it had calculated the all-others rate
by averaging the AFA rates of the non-cooperating, man-
datory respondents with the rate calculated for voluntary
respondents. But Commerce explained that, upon further
examination, it found that approach was not appropriate
in this case because the “potential for voluntary respond-
ents’ net subsidy rates to distort or manipulate the all-
others rate is too great.” Id. at 54,321.
    After receiving case briefs and rebuttal comments
from interested parties, including Appellants, Commerce
issued a final determination calculating a final AFA rate
of 374.15% for the mandatory respondents. Aluminum
Extrusions from the People’s Republic of China, 76 Fed.
Reg. 18,521 (Dep’t of Commerce Apr. 4, 2011). Commerce
included in the investigation and its calculation of the
final AFA rate 25 additional subsidy programs identified
by petitioners during the course of the investigation.
Commerce also increased the subsidy-specific rate for
some programs. Commerce revised the rate for the two
voluntary respondents to 8.02% and 9.94%.
    Commerce continued to apply the AFA rate (which
had increased to 374.15%) to the all-others respondents.
In a memorandum responding to the comments submitted
by interested parties, Commerce noted that 19 C.F.R.
§ 351.204(d)(3) mandates exclusion of the voluntary
respondent rates from the all-others rate calculation.
Quoting comments accompanying the promulgation of
this rule, Commerce explained that the Tariff Act was
silent regarding whether voluntary respondent rates
should be included, and that Commerce had therefore
looked at the World Trade Organization (WTO) Anti-
Dumping Agreement for guidance:
MACLEAN-FOGG COMPANY    v. US                               5



   Article 9.4 of the [Anti-Dumping] Agreement pro-
   vides that the duties applied to ‘‘exporters or pro-
   ducers not included in the examination’’ (i.e., ‘‘all-
   others’’) may not exceed the weighted-average
   margin for the ‘‘selected exporters or producers.’’
   This implies that those exporters or producers not
   ‘‘selected’’ are not considered to be included in the
   ‘‘examination.’’ Therefore, the better interpreta-
   tion of section 705(c)(5) or 735(c)(5) of the Act is
   that producers who are not ‘‘selected’’ by the De-
   partment (i.e., voluntary respondents) are not
   considered to have been ‘‘examined’’ (i.e., investi-
   gated), so that their margins should not contrib-
   ute to the ‘‘all-others’’ rate.       In effect, the
   Department conducts parallel proceedings for vol-
   untary respondents.
Joint Appendix (J.A.) at 245 (quoting Antidumping Du-
ties; Countervailing Duties, 62 Fed. Reg. 27,296, at 27,310
(Dep’t of Commerce May 19, 1997)). Commerce also
explained that excluding voluntary respondent rates from
the all-others rate “serves the obvious purpose of prevent-
ing distortion or outright manipulation of the all-others
rate” because exporters or producers most likely to submit
voluntary responses “are those with reason to believe that
they will obtain a lower margin by volunteering than by
being subject to the all-others rate.” J.A. at 246 (quoting
62 Fed. Reg. at 27,310).
    Appellants and other importers and Chinese produc-
ers filed suit in the Court of International Trade alleging
that Section 1671d unambiguously requires that the
voluntary respondent rates be included in the all-others
rate calculation. The Court of International Trade disa-
greed, finding that the statute was ambiguous and that
Commerce’s interpretation excluding voluntary respond-
ent rates was reasonable. MacLean-Fogg Co. v. United
States, 836 F. Supp. 2d 1367, 1373-74 (Ct. Int’l Trade
2012). The court nevertheless found that Commerce had
6                            MACLEAN-FOGG COMPANY    v. US



not established that excluding the voluntary respondent
rates from the all-others rate calculation was “a reasona-
ble method” under § 1671d(c)(5)(A)(ii) because there was
no “logical connection” between the AFA rate and the all-
others respondents. Id. at 1375-76. The court remanded
for Commerce to recalculate the all-others rate or explain
why adopting the AFA rate for the all-others respondents
constituted a reasonable method. Id. 1
     On remand, Commerce retained its methodology for
calculating the all-others rate based on the mandatory
respondents’ AFA rate. Commerce argued that its ap-
proach was reasonable because the three mandatory
respondents represented a significant portion of the
relevant market and were therefore representative of the
all-others respondents. The Court of International Trade
disagreed, finding that Commerce had failed to explain
why the AFA rate was remedial and not punitive when
applied to the all-others respondents, who Commerce had
not found to be non-cooperative. See MacLean-Fogg Co. v.
United States, 853 F. Supp. 2d 1336, 1343 (Ct. Int’l Trade
2012). First, the court noted that the AFA rate assumed
that the mandatory respondents benefited from all 54
subsidy programs included in the investigation, but
Commerce had provided no reason why the same assump-
tion applied to the all-others respondents, who are small-
er than the mandatory respondents. See id. at 1342.
Second, the court observed that Commerce had failed to



    1    The court declined to review the preliminary all-
others rate. MacLean-Fogg, 836 F. Supp. 2d at 1375 n.11.
In a subsequent opinion, the court clarified that the
preliminary all-others rate was subject to the same “rea-
sonable method” standard as the final rate but deferred
review until receiving Commerce’s remand determination.
MacLean-Fogg Co. v. United States, 853 F. Supp. 2d 1253
(Ct. Int’l Trade 2012).
MACLEAN-FOGG COMPANY    v. US                            7



justify its assumption that the all-others respondents
benefited from subsidies specific to certain geographic
areas. See id. at 1343. The court thus remanded the case
again for Commerce to reconsider the all-others rate.
    On the second remand, Commerce adopted the
137.65% preliminary AFA rate as the final all-others rate.
Commerce found it reasonable to assume that the all-
others respondents might not have benefited from the 25
subsidy programs added during the investigation, which
had been examined solely with respect to the voluntary
respondents. Commerce thus concluded that the prelimi-
nary rate was reasonable because it only included the 29
programs that were investigated in connection with the
mandatory respondents.       Commerce also noted that,
although certain programs were location-specific, it had to
assume use of those programs because the record was
incomplete regarding the location of the all-others re-
spondents and it was not reasonable to extrapolate the
locations of manufacturing facilities or company affilia-
tions from the addresses included in the petition.
    The Court of International Trade affirmed the
137.65% all-others rate, finding that the rate was reason-
able given “the limitations of the administrative record.”
MacLean-Fogg Co. v. United States, 885 F. Supp. 2d 1367,
1342 (Ct. Int’l Trade 2012). The court found that adopt-
ing the preliminary AFA rate—based on a reduced num-
ber of subsidy programs—sufficiently addressed its
concern that the rate should not be punitive. The court
rejected Appellants’ attempts to show that the all-others
rate was based on program-specific rates that are aber-
rant and unrepresentative when compared to historical
data, noting that Commerce is only required to provide a
reasonable rate, not necessarily “a perfect one.” Id. The
court also determined that the methodology used to
calculate the preliminary rate for the mandatory respond-
ents was reasonable as applied because the mandatory
8                               MACLEAN-FOGG COMPANY   v. US



respondents account for the vast majority of aluminum
exports from China. See id.
    This appeal followed.
                       DISCUSSION
                            I
     Section 1671d is ambiguous with respect to the pre-
cise question at issue: whether Commerce is required to
include voluntary respondent rates when calculating the
all-others rate under the general rule. At issue in this
case is not the nomenclature developed by Commerce to
distinguish classes of respondents, but how the statute
dictates that rates should be calculated depending on
whether a company is selected for investigation or not.
Section 1671d states that Commerce shall use the
weighted average rates calculated for respondents “indi-
vidually investigated,” excluding rates that are zero, de
minimis, or determined entirely under facts available.
19 U.S.C. § 1671d(c)(5)(A)(i). The statute does not define
“individually investigated” as used in Section 1671d.
    I disagree with the majority that the requirement to
calculate an “individual” rate for voluntary respondents
implies that voluntary respondents are “individually
investigated” within the meaning of Section 1671d. The
fact that voluntary respondents must receive an individu-
al rate does not directly address the question of whether
such rate must be included in the all-others rate calcula-
tion. “Voluntary” respondents are not selected for indi-
vidual-specific investigation.   Commerce may accept
voluntary respondents at its discretion, and only if they
submit the relevant information in a complete and timely
manner. See id. § 1677m(a)(1)-(2). The optional nature of
the process suggests that it provides a mechanism for
respondents “not initially selected” to be excepted from
the all-others rate, and was not necessarily intended to
MACLEAN-FOGG COMPANY    v. US                             9



inject an additional variable into the mandatory process
of calculating the all-others rate.
    Indeed, the statute clearly distinguishes voluntary re-
spondents from those that were “initially selected for
individual investigation” by Commerce.             See id.
§ 1677m(a). The parties do not dispute that the respond-
ents “initially selected for individual investigation” are
the mandatory respondents. And § 1677f-1 expressly
provides that the individual countervailable subsidy rates
determined for the mandatory respondents “shall be used
to determine the all-others rate under section 1671d(c)(5)
of this title.” Id. § 1677f-1(e). Because this section nei-
ther forecloses nor mandates inclusion of the voluntary
respondent rates in the all-others rate calculation, I would
hold that the statute is ambiguous with respect to the
precise question presented here. 2
    I also find that Commerce’s interpretation of Section
1671d—embodied in 19 C.F.R. § 351.204(d)(3)—is based
on a permissible construction of the statute. See Chevron,
U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S.
837, 843 (1984). In promulgating the regulation, Com-
merce looked at the WTO Anti-Dumping Agreement for
guidance, which provides:
   When authorities have limited their examination
   in accordance with the second sentence of para-



   2     The majority states that “[t]he fact that some
rates determined for mandatory respondents shall be
used in calculating the all-others rate does not suggest
that the rates determined for individually investigated
voluntary respondents must be excluded from the calcula-
tion of the all-others rate.” Maj. Op. at 13 (emphasis
added). I agree, and thereby point out that the majority’s
position on this issue highlights the ambiguity in the
statute.
10                             MACLEAN-FOGG COMPANY     v. US



     graph 10 of Article 6, any anti-dumping duty ap-
     plied to imports from exporters or producers not
     included in the examination shall not exceed:
        (i) the weighted average margin of dumping
            established with respect to the selected ex-
            porters or producers or,
        (ii) where the liability for payment of anti-
             dumping duties is calculated on the basis of
             a prospective normal value, the difference
             between the weighted average normal value
             of the selected exporters or producers and
             the export prices of exporters or producers
             not individually examined,
     provided that the authorities shall disregard for
     the purpose of this paragraph any zero and de
     minimis margins and margins established under
     the circumstances referred to in paragraph 8 of
     Article 6. The authorities shall apply individual
     duties or normal values to imports from any ex-
     porter or producer not included in the examination
     who has provided the necessary information dur-
     ing the course of the investigation, as provided for
     in subparagraph 10.2 of Article 6.
Agreement on Implementation of Article VI of the General
Agreement on Tariffs and Trade 1994, art. 9.4, Apr. 15,
1994, 1868 U.N.T.S. 201 (emphasis added).
     The WTO Anti-Dumping Agreement was approved by
Congress as part of the Uruguay Round Agreements Act.
Pub. L. 103-465, § 101, 108 Stat. 4809, 4814-15 (1994)
(codified at 19 U.S.C. § 3511). Absent express language to
the contrary, a statute should not be interpreted to con-
flict with international obligations. See Fed.-Mogul Corp.
v. United States, 63 F.3d 1572, 1581 (Fed. Cir. 1995)
(“GATT agreements are international obligations, and
absent express Congressional language to the contrary,
MACLEAN-FOGG COMPANY    v. US                             11



statutes should not be interpreted to conflict with inter-
national obligations.”). By making an implicit distinction
between “selected” respondents and those “not included in
the examination [that have] provided the necessary
information during the course of the investigation[,]”
Article 9.4 supports Commerce’s conclusion that volun-
tary respondents are examined in “parallel” to those
companies “included in the investigation.” See 62 Fed.
Reg. at 27,310. Hence, Commerce’s conclusion that
voluntary respondents are not “individually investigated”
within the meaning of Section 1671d is reasonable.
    Commerce’s interpretation does not create a “statuto-
ry conflict” by mandating imposition on the voluntary
respondents of two different rates—the individual rate
and the all-others rate. See Maj. Op. at 12. When proper-
ly understood as examined in “parallel,” the voluntary
respondents are not included in the group of respondents
“not individually investigated” who must receive an all-
others rate pursuant to § 1671d(c)(1)(B)(i). Likewise, this
understanding that voluntary respondents are examined
in parallel explains why Congress had no need to include
voluntary respondent rates in the list of exclusions to the
general rule of Section 1671d. See Maj. Op. at 12-13.
    The majority’s reliance on the “history of the counter-
vailing duty statute” is also misplaced. See id. at 16. It is
true that, prior to the 1994 amendments to the Tariff Act,
the calculation of the country-wide rate had to include
any “individual rates” calculated for whom the majority
views as the “forerunners” of the voluntary respondents.
See id. at 17-18. But the reason for such rule was that
zero and de minimis rates also had to be included. See
Kajaria Iron Castings Pvt. Ltd. v. United States, 156 F.3d
1163, 1178 (Fed. Cir. 1998) (explaining that it would be
inconsistent to exclude individual rates when zero and de
minimis rates must be included). In contrast, the current
statute explicitly excludes zero and de minimis rates from
the all-others rate calculation. Accordingly, “the pre-1994
12                               MACLEAN-FOGG COMPANY   v. US



regime” not only does not support the majority’s conclu-
sion, but actually supports Commerce’s determination
that, under the current regime, it is reasonable to exclude
voluntary respondent rates from the all-others rate calcu-
lation.
     Finally, I agree with Commerce that excluding volun-
tary respondent rates from the all-others rate calculation
serves the purpose of preventing distortion or manipula-
tion of data. For example, exporters or producers “not
initially selected” whose own data suggests an incentive
to participate on a voluntary basis could decide not to
participate (or refuse to cooperate) should they determine
that other respondents with lower countervailable subsidy
rates could drive the all-others rate lower than their own
voluntary respondent rate.       I would hold that Com-
merce’s regulation excluding voluntary respondent rates
from the calculation of the all-others rate is reasonable
and entitled to Chevron deference. I therefore respectful-
ly dissent.
                            II
     The majority does not reach the question of whether
the methodology used by Commerce to determine the all-
others rate in this case was a “reasonable method” pursu-
ant to § 1671d(c)(5)(A)(ii). See Maj. Op. at 7. Appellants
argue that it is not, although they apparently concede
that Commerce may use AFA rates “in some reasonable
fashion” in calculating the all-others rate. See Reply Br.
12; see also Yangzhou Bestpak Gifts & Crafts Co. v. Unit-
ed States, 716 F.3d 1370, 1378 (Fed. Cir. 2013) (calculat-
ing the all-others rate by taking the simple average of a
de minimis rate and a total AFA rate assigned to two
mandatory respondents is a “reasonable method”). Specif-
ically, Appellants contend that Commerce is not permit-
ted to apply to the all-others respondents, which were
never found to be non-cooperative, a rate entirely based on
AFA rates. Additionally, Appellants argue that the
MACLEAN-FOGG COMPANY    v. US                           13



137.65% rate is aberrant and punitive because it assumes
“a worst-case scenario” that each of the all-others re-
spondents benefited from all of the 29 original programs
at the highest benefit rate ever calculated in a prior
China countervailing duty investigation.
    I disagree that Commerce may not adopt an all-others
rate based entirely on AFA rates calculated for mandatory
respondents. Section 1671d(c)(5)(A)(ii) expressly permits
“averaging the weighted average countervailable subsidy
rates” calculated for the mandatory respondents when
they are all zero, de minimis, or determined entirely on
the basis of facts available. There is nothing in the stat-
ute that forecloses the adoption of a weighted average of
the mandatory respondents’ rates when they are all AFA
rates.
    Likewise, the Statement of Administrative Action,
recognized by Congress as an “authoritative expression” of
the interpretation and application of the Tariff Act, see
19 U.S.C. § 3512(d), explicitly contemplates that a “rea-
sonable method” under the exception to the general rule
of Section 1671d may include AFA rates:
   In such situation, Commerce may use any reason-
   able method to calculate the all others rate. The
   expected method in such cases will be to weight
   average the zero and de minimis margins and
   margins determined pursuant to facts available,
   provided the volume data is available.
Statement of Administrative Action Accompanying the
Uruguay Round Agreements Act, H.R. No. 103-316, vol. 1,
at 873 (1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4201.
Indeed, adopting a weighted average of the mandatory
respondents’ rate is the “expected” method unless it
results in an average “that would not be reasonably
reflective” of potential countervailing subsidy margins for
the all-others respondents. See id. I thus would reject
Appellants’ argument that an all-others rate may not be
14                            MACLEAN-FOGG COMPANY    v. US



based entirely on AFA rates, regardless of whether a
finding of non-cooperation has been made with respect to
the all-others respondents.
     I also find that adopting an all-others rate equal to
the preliminary AFA rate is reasonable under the facts of
this case. Commerce reasonably concluded that the all-
others respondents might not have benefited from the
additional 25 programs examined solely with respect to
the voluntary respondents, and appropriately adopted an
all-others rate based only on the 29 subsidy programs
included in the initial petition. Given “the limitations of
the administrative record,” MacLean-Fogg, 885 F. Supp.
2d at 1342, it was not unreasonable for Commerce to
assume that the all-others respondents, like the mandato-
ry respondents, received benefits under each of these
programs at the highest rate on record for identical or
similar programs in prior China countervailing duty
investigations. I see no error in Commerce declining to
take into consideration information pertaining to individ-
ual circumstances that Commerce had no obligation to
consider. Had a majority of the panel upheld Commerce’s
regulation, I would also hold that substantial evidence
supports Commerce’s determination to adopt the prelimi-
nary AFA rate for the all-others respondents.
