OPINION AND ORDER

POGUE, Chief Judge:

This case returns to the court following remand in Maclean-Fogg Co. v. United States, 36 CIT ___, 836 F.Supp.2d 1367 (2012) ("Maclean-Fogg I"). In Maclean-Fogg I, and again upon Plaintiffs' motion for reconsideration in MacLean-Fogg Co. v. United States, 36 CIT ___, ___ F.Supp.2d ___, Slip Op. 12-81 (June 13, 2012) ("MacLean-Fogg II"), the court found that the Department of Commerce's ("the Department" or "Commerce") calculation of the all-others 374.15% countervailing duty ("CVD") rate,2 based solely on mandatory respondents' adverse facts available ("AFA") rate, while legally permissible, was neither reasonable in this instance or based on a reasonable reading of the record. Maclean-Fogg I, 36 CIT at ___, 836 F.Supp.2d at 1375-76. The court ordered Commerce to either explain how its conclusion is reasonable or, alternatively, recalculate the all-others rate. Id. On remand, Commerce continues to base the all-others rate solely on the mandatory respondents' AFA rate, explaining that this is reasonable because the mandatory respondents represent a significant portion of the market and are therefore representative of the all-others companies. Final Results of Remand Redetermination, ECF No. 62-1, at 1 ("Remand Results"). Plaintiffs, who are some of the all-others companies to whom the rate applies, again seek review of this rate.

Because Commerce failed to explain how the assumption that Respondents used 100% of the subsidies available throughout the entire People's Republic of China ("PRC") is remedial not punitive — providing no more than an appropriate level of deterrence — the court again remands the rate to Commerce.

This court has jurisdiction pursuant to Section 516(a)(2)(B)(I) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516(a)(2)(B)(I) (2006) and 28 U.S.C. § 1581(c).3

BACKGROUND4

In its investigation of Chinese producers and exporters of aluminum extrusions, Commerce designated the three largest exporters as mandatory respondents.5 These mandatory respondents failed to respond to Commerce's questionnaire. Maclean-Fogg I, 36 CIT at ___, 836 F.Supp.2d at 1370. Because the mandatory respondents failed to cooperate, Commerce relied on facts available when calculating the mandatory respondents' CVD rates. 19 U.S.C. § 1677m. Using information provided by the domestic industry, Commerce listed 59 subsidy programs that the importer producers could have availed themselves of and calculated an AFA CVD rate using the highest possible subsidization rate for each of these 59 programs. I & D Memo at Comment 8, 67.6 The resulting AFA rate for the mandatory respondents was 374.15%. Maclean-Fogg I, 36 CIT at ___, 836 F.Supp.2d at 1371. By contrast, two companies that were selected as voluntary respondents received much lower individual rates of 8.02% and 9.94% respectively. Id.

When calculating the "all-others" rate for the remaining companies, Commerce excluded the voluntary respondents' rates from its calculations in accordance with its regulation, 19 C.F.R. § 351.204(d)(3). Maclean-Fogg I, 36 CIT at ___, 836 F.Supp.2d at 1371. Commerce instead averaged the mandatory respondents' rate, resulting in an all-others rate identical to the AFA rate. Id. In Maclean-Fogg I, Plaintiffs challenged the regulation, the use of AFA rate in the calculation of the all-others rate, and the exclusion of the voluntary respondents' rate, contending that the governing statute, 19 U.S.C. § 1671d(c)(5)(A)(i)-(ii), unambiguously required Commerce to use the rates of all individually investigated respondents when calculating the all-others rate. Id. at 1372-73. This court concluded in Maclean-Fogg I that this statute was ambiguous, allows the use of facts available in a reasonable manner, and permits Commerce to use mandatory respondents' AFA rates in the calculation of the all-others rate without a finding of noncooperation. Id. at 1374 n. 9. Therefore Commerce's regulation and methodology were reasonable. However, the court found that Commerce's methodology was not supported by substantial evidence because it failed to articulate a logical connection for attributing the high mandatory respondents' rate to the all-other companies, and failed to address whether the rate was remedial rather than punitive. Id. at 1375-76.

On remand, Commerce chose to use the same methodology and provided additional explanation for its decision. Remand Results at 1. In addition to reiterating its earlier concerns with rate manipulation, Commerce further explained that the mandatory respondents' exports represent a significant portion of the sales of subject merchandise. Id. at 4-7. By comparison, the voluntary respondents make up a tiny fraction of that market. Id. at 6-7. In light of these significant differences in market share, the Department stated that its continued exclusive use of only the mandatory respondents' rate in the calculation of the all-others rate is a reasonable and reliable reading of record evidence because such a large portion of the market is highly representative of the entire market as a whole. Id. at 8. Commerce considered voluntary respondents' share of the industry too low to be probative of the industry's level of subsidization or to validly challenge the representativeness of mandatory respondents' rate. Id. at 7. Moreover, to include the voluntary respondents' rates would have run contrary to the policy reasons underpinning Commerce's regulation — namely, a fear of manipulation of the all-others rate and a desire to maintain its integrity from potential distortions. Id. at 4-5; see also Antidumping Duties; Countervailing Duties, 62 Fed.Reg. 27,296, 27,310 (Dep't Commerce May 19, 1997). Specifically, Commerce stated that voluntary respondents are more likely self-selected because they know that their CVD rates will be lower. Remand Results at 5. As such, their rates could potentially distort the representativeness of the all-others rate, especially here where such a significant segment of the industry failed to participate, as opposed to the small percentage of the industry that did. Id. The Department further stated that it would have relied on the mandatory respondents' rates regardless of whether they were lower or higher than the voluntary respondents' rates.7 Id. at 7. Having chosen the mandatory respondents as representatives of the market, Commerce considered it "inappropriate to ignore the fact that [AFA] ... had to be applied to all mandatory company respondents" and thus used the mandatory respondent rates even though they were based on AFA. Id. at 8-9 (quoting Laminated Woven Sacks, 73 Fed.Reg. at 35,639). Plaintiffs again challenge this rate.

STANDARD OF REVIEW

"The court will sustain the Department's determination upon remand if it complies with the court's remand order, is supported by substantial evidence on the record, and is otherwise in accordance with law." Jinan Yipin Corp. v. United States, 33 CIT ___, 637 F.Supp.2d 1183, 1185 (2009) (citing 19 U.S.C. § 1516a(b)(1)(B)(1)).

DISCUSSION

Plaintiffs assert again that Commerce unreasonably excluded the voluntary respondents' rates when calculating the all-others rate and unlawfully applied AFA to the all-others companies. However, they also concede that the court has already recognized that this methodology, which averages the rates of mandatory respondents, even where those rates are all based on AFA, is specifically permitted by the statute. Pls.' Comments at 4; Maclean-Fogg I, 36 CIT at ___, 836 F.Supp.2d at 1374-1375. Furthermore, the court has already approved the decision not to include in that average the rates of the voluntary respondents. Id.

Nonetheless, as we concluded in Maclean-Fogg I, the chosen rate must be based on a reasonable reading of the record evidence. Id. at 1376. Specifically, it must be based on reliable evidence in the record and must be relevant to the all-others respondents. See Dongguan Sunrise Furniture Co. v. United States, 36 CIT ___, ___ F.Supp.2d ___, ___, Slip Op. 12-79, at *8 (June 6, 2012) ("Commerce must provide some justification for finding that ... [this] rate ... is relevant and reliable for this respondent in this time period."). Commerce's responsibility is to choose "a rate that, on this record, could reasonably be accepted as an approximation of [] [the all-others companies'] rate, albeit with a built in increase intended as a deterrent to non-compliance." KYD, Inc. v. United States, 36 CIT ___, 807 F.Supp.2d 1372, 1378 (2012). This comports with the SAA requirement that the rate be "reasonably reflective of potential [CVD] margins for non-investigated exporters or producers." Uruguay Round Agreements Act, Statement of Administrative Action, H.R. Doc. No. 103-316, vol. 1, at 873 (1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4201 ("SAA").

Here, Commerce defends its choice of mandatory respondents' rates based on its finding that the mandatory respondents' goods represent a significant portion of imports of the subject merchandise. Remand Results at 6-7. Because the mandatory respondents were responsible for a large volume of the subject merchandise, Commerce found that they are more representative of all producers and exporters as opposed to the smaller, self-selected sample of voluntary respondents.8 Commerce points out that using the mandatory respondents' rates allows it to obtain information for a substantial majority of the market. Id. at 10. Finally, Commerce notes that it considered other methods of incorporating the voluntary respondents' rate into the all-others rate, but ultimately rejected them due to overwhelming concerns about rate manipulation given the specific facts in this case, namely the striking difference in import volume between the mandatory and voluntary respondents.9 Id. at 10-12. Under these circumstances, Commerce shows it considered the issue carefully and reasonably decided not to give weight to the voluntary respondents' rates.

Plaintiffs continue to attack the use of the mandatory respondents' total AFA rate as not a "reasonable method" per se, but this issue is resolved by the statute. Nothing in the statute requires that the mandatory respondents' rates, even when based on AFA, may only be used to develop rates for uncooperative respondents. Federal Circuit precedent is not to the contrary. Rather, these cases set the parameters summarized in Dongguan and KYD above. See, e.g., PAM, S.p.A. v. United States, 582 F.3d 1336 (Fed.Cir. 2009); Dongguan, 36 CIT at ___, ___ F.Supp.2d at ___, Slip Op. 12-79 at *8 (summarizing and citing Gallant Ocean (Thai.) Co. v. United States, 602 F.3d 1319, 1323-24 (Fed.Cir.2010), and F.lli De Cecco Di Filippo Fara S. Martino S.p.A. v. United States, 216 F.3d 1027, 1032 (Fed. Cir.2000)).

Moreover, as Plaintiffs concede, "if mandatory respondents do not cooperate in a countervailing duty investigation, Commerce has no product- or industry-specific information establishing use or rates for individual subsidy programs alleged to have been used." Pls.' Comments at 13. Thus Commerce must necessarily base its rate determination on secondary data that simply cannot be a direct representation of the all-others companies' subsidy experience. Accordingly, Plaintiffs' argument that the rate chosen is based on program-specific CVD rates that include programs from investigations of different products from different industries does not render that rate unreasonable. See PAM, 582 F.3d at 1340 ("So long as the data is corroborated, Commerce acts within its discretion when choosing which sources and facts it will rely on to support an adverse inference.").

As Commerce explained, its total-AFA rate methodology in this case necessarily involved program-specific CVD rates calculated for different programs in investigations of different products from different industries:

Aluminum Extrusions From the People's Republic of China, 75 Fed.Reg. 54,302, 54,305 (Dep't Commerce Sept. 7, 2010) (preliminary affirmative countervailing duty determination) ("Prelim. Determination"). Commerce further explains that when dealing with non-cooperating companies, it is agency practice to "select, as AFA, the highest calculated rate in any segment of the proceeding." Id.

Importantly, however, Plaintiffs point out that Commerce assumes use, by all respondents, of 100% of subsidy programs alleged by the petitioning U.S. industry when no respondent in any PRC CVD investigation — including in the underlying investigation — has ever been found to use more than about half such alleged programs. See Pls.' Comments at 16-18. Plaintiffs note that "out of 39 total cooperating respondents in the 26 China CVD investigations completed to date, the most alleged subsidy programs any cooperative respondent has been found to use is only about half." Pls.' Comments at 17. Plaintiffs have attached a survey of CVD investigations from the PRC sorted by percentage of subsidy programs actually used, and it appears that within these programs listed, respondents use approximately 15%-30% of the subsidy programs that Commerce uses in its calculations. Pls.' Comments at Attachment 3. Thus Plaintiffs claim that Commerce's reliance on 100% of the potential subsidies generate an all-others CVD rate not reasonably related to the all-others companies actual experience.10 Pls.' Comments at 17; De Cecco, 216 F.3d at 1032 ("Congress could not have intended for Commerce's discretion to include the ability to select unreasonably high rates with no relationship to the respondent's actual dumping margin.").

It is Commerce's role to weigh the evidence. Nucor Corp. v. United States, 32 CIT 1380, 1414, 594 F.Supp.2d 1320, 1356 (2008) ("It is well-established that it is an agency's domain to weigh the evidence"). Nonetheless, here Commerce has calculated a deterrent for the mandatory respondents which is based on 100% use of all alleged subsidies. Remand Results at 26, 33-34. While this could be a reasonable choice for non-cooperating companies, Commerce has not placed an explanation on the record why a rate that is based on fewer than "any program otherwise listed that could conceivably be used by the non-cooperating companies," Prelim. Determination, 75 Fed.Reg. at 54,305, would not be sufficient to provide a rate relevant to the all-others companies. See Dongguan, 36 CIT ___, ___ F.Supp.2d at ___, Slip Op. 12-79, at *8. For example, Commerce does not explain why the preliminary 137.65% rate, based on the assumed use of 29 programs, rather than the 54 programs included in the Final Determination, would not have been sufficient to provide an appropriate deterrent. See Remand Results at 26.

Commerce did not find that the Plaintiffs, the all-others companies, were non-cooperative. Notably, Commerce acknowledged in the I & D Memo that, at the Petitioners' urging, it was departing from the practice of attributing subsidies according to the specific province in which mandatory respondents were located. I & D Memo at Comment 8. Rather, Commerce decided in this investigation to apply every single subsidy program available throughout the PRC to the respondents, regardless of their actual location, based on the assumption that "the same types of subsidy programs exist across most provinces and municipalities." Id. The all-others companies are not the largest companies in this investigation and Commerce has neither explained 1) how smaller companies, which presumably are located in one province or town, can avail themselves of subsidies that exist in another province or town, nor 2) how the assumption that "the same types of subsidy programs exist across most provinces and municipalities" is a reasonable one for the all-others companies. Thus, Commerce has not explained, based on the evidence in the record, how the all-others rate calculated is not punitive rather than remedial.

Accordingly, we remand for Commerce's consideration of this issue.11

CONCLUSION

For the forgoing reasons, Commerce's calculations are REMANDED.

Commerce shall have until August 30, 2012 to complete and file its Remand Results. Plaintiffs and Defendant-Intervenor shall have until September 13, 2012 to file comments. Plaintiffs, Defendant, and Defendant-Intervenor shall have until September 27, 2012 to file any reply.

It is SO ORDERED.