*1352Bеfore the court for review is the U.S. Department of Commerce's ("Department" or "Commerce") remand redetermination filed pursuant to the court's decision in An Giang Fisheries Import and Export Joint Stock Company v. United States, 41 CIT ----,
In An Giang, the court remanded Commerce's final determination in the tenth administrative review of the antidumping duty ("ADD") order on certain frozen fish fillets from the Socialist Republic of Vietnam ("Vietnam") to further explain or reconsider Commerce's surrogate value data selection for fish feed and Commerce's decision not to grant Can Tho Import-Export Joint Stock Company ("CASEAMEX") separate rate status. See An Giang, 41 CIT at ----,
On remand, Commerce provided further explanation of its determination to value respondents' fish feed using prices contained in the affidavit of Dr. Djumbuh Rukmono, an official from the Indonesian Ministry of Marine Affairs and Fisheries ("Rukmono Affidavit"). See Remand Results at 16-25; see also Petitioners' Surrogate Country Comments and Submission of Proposed Factor Values at Ex. 16-B, PD 182, bar code 3200753-04 (May 12, 2014) (containing the Rukmono Affidavit).
*1353Commerce also provided further explanation of its determination to deny CASEAMEX separate rate status. Remand Results at 2-16. For the reasons that follow, Commerce's determinations in the Remand Results to value fish feed using thе Rukmono Affidavit data and to deny CASEAMEX separate rate status are sustained.
BACKGROUND
The court presumes familiarity with the facts of this case as discussed in the previous opinion, see An Giang, 41 CIT at ----,
In An Giang, the court sustained in part and remanded in part Commerce's determination in the tenth administrative review of the subject merchandise.
JURISDICTION AND STANDARD OF REVIEW
The court continues to have jurisdiction pursuant to section 516A(a)(2)(B)(iii) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2012),
DISCUSSION
I. Surrogate Value for Fish Feed
In An Giang, the court remanded for further explanation or reconsideration Commerce's decision to rely upon the Rukmono Affidavit to value respondents' fish feed. An Giang, 41 CIT at ----,
On remand, Commerce supported its finding that the Rukmono Affidavit was representative of a broad-market average by referencing record evidence, available during the tenth (but not ninth) administrative review, showing that the Rukmono Affidavit's data represented 99.8 percent of total pangasius production in Indonesia in 2012. Remand Results at 22. In the tenth administrative review, Commerce determined that the Rukmono Affidavit was representative of a broad-market average because it covered the "vast majority" of the pangasius producing regions in Indonesia. Final Decision *1355Memo at 39. However, in the ninth administrative review, Commerce determined that the very same Rukmono Affidavit, "with the same regional and temporal coverage, was not representative of a broad mаrket average[.]" An Giang, 41 CIT at ----,
II. Commerce's Determination to Deny CASEAMEX Separate Rate Status
In An Giang, the court remanded Commerce's determination that the minority government shareholder exercised control over the selection of management. See An Giang, 41 CIT at ----,
Through practice, Commerce has implemented a presumption that all respondents within a non-market economy ("NME")
*1356country are subject to government control and should be assigned a single "NME-wide" ADD rate "unless an exporter demonstrates the absence of both de jure and de facto governmental control over its export activities."
According to Commerce's past practice, in a factual situation where the government *1357owns, either directly or indirectly, a majority share of the respondent company, the government "has the potential to exercise [ ] control over the company's operations generally[.]" See Decision Memorandum for the Preliminary Determination of the [ADD] Investigation of Carbon and Certain Alloy Steel Wire Rod from the [PRC] at 7, A-570-012, (Aug. 29, 2014), available at http://ia.ita.doc.gov/frn/summary/prc/2014-21335-1.pdf (last visited Jan. 16, 2018) ("Steel Wire Rod Decision Memo"). Commerce explains the reasoning behind its practice in Steel Wire Rod Decision Memo, see
Commerce's past practice with respect to majority government shareholders reveals that Commerce views the potential for actual control as actual control, regardless of whether such control is exercised.
*1359See Steel Wire Rod Decision Memo at 7; Tetra Decision Memo at 8. Therefore, to the extent that potential control means the ability to exercise аctual control (even without exercising it), Commerce is correct that the standard in a situation of majority government ownership is potential control. See Final Results of Redetermination Pursuant to Remand Order for Diamond Sawblades and Parts Thereof from the [PRC] at 8-9, (May 6, 2013), available at https://enforcement.trade.gov/remands/12-147.pdf (last visited Jan. 16, 2018) ("Diamond Sawblades Remand"); see also Advanced Technology & Materials Co. v. United States, 37 CIT ----,
Nonetheless, the difficulty in labeling Commerce's standard in this case stems from the term "potential" as it is used in prior proceedings and how it is used here. Where a majority shareholder has potential control that control is, for all intents and purposes, actual control. In such a situation actual control is inherent in the fact that the majority shareholder can typically control the operations of a company without actually removing directors or management since it is clear that directors or management could be removed. See Advanced Technology & Materials Co. v. United States, 37 CIT ----, ----,
Indeed, Commerce has required additional indicia of control prior to concluding that a respondent company could not rebut the presumption of de facto government control where the government owns, either directly or indirectly, only a minority of shares in the respondent company. In Containers *1360Decision Memo, Commerce determined that China Merchants Group ("CMG") and COSCO, shareholders in the respondent company, were able to exercise de facto control despite being minority shareholders with 48.26 percent of the capital shares. Containers Decision Memo at 48-53. Commerce found that the two minority shareholders were each wholly-owned by the government and that the total number of shares between the two shareholders made the government a "controlling shareholder," per the respondent company's Articles of Association.
In Truck & Bus Tires Decision Memo, Commerce likewise found de facto control by the government-owned minority shareholdеrs. Truck & Bus Tires Decision Memo at 9-10. Commerce determined that four of the respondent company's shareholders were owned by a State-owned Assets Supervision and Administration Commission ("SASAC"), and together held 49.06 percent of the respondent company's total shares. Id. at 9. In reaching that determination, Commerce found it relevant that "there [was] additional information on the record which is business proprietary that further supports our determination that [the respondent company] is under the PRC government control through its [state-owned enterprise] owners." Truck & Bus Tires Decision Memo at 10. Commerce did not refer to the potential for control, and in fact, only addressed potential control in the context of a majority government shareholder. See id. at 11-13, 20-24.
In An Giang, the court remanded for further explanation or reconsideration Commerce's determination that CASEAMEX failed to demonstrate autonomy in its selection of management. Specifically, the court stated that it was
unclear whether Commerce relied upon the potential for the government to nominate an individual to CASEAMEX's board or to management based on its ownership in the company alone, or whether Commerce found that the government indirectly nominated all of its board members and managers by nominating a representative who appointed [ [ ] ] board members and managers.
An Giang, 41 CIT at ----,
On remand, Commerce explains that its denial of separate rate status to CASEAMEX was not based on a finding of "actual influence ovеr the selection of managers" by the minority government shareholder during the POR.
Commerce's retrospective argument is based on the minority government shareholder's actions when it divested Can Tho Agriculture and Animal Products Import-Export Company, a state-owned enterprise, to create CASEAMEX. Remand Results at 8-11. Commerce argues that at the time of divestment, the minority government shareholder put in place the board of directors that continued to exist throughout the POR, and chose Mr. X as the person through whom it would exert indirect control. Id. For the period of time where CASEAMEX is able to point to record evidence of restrictions placed upon the minority government shareholder, Commerce does not explain how these appointments nonetheless support the potential to actually control during the POR. In fact, Commerce affirmatively states that it is not relying on the fact that the minority government shareholder picked board members. Id. at 13. Commerce's bеholden theory, as far as it relates to events surrounding the inception of CASEAMEX, is not reasonable. These events occurred prior to the POR and do not demonstrate how the minority government shareholder was able to influence Mr. X's decision-making as to the day-to-day operations of CASEAMEX or the selection of CASEAMEX's management during the POR. Simply put, even assuming that the minority government shareholder selected all of CASEAMEX's board members, as well as Mr. X, *1362prior to the POR, the relevant question is whether for the period of time where CASEAMEX is able to point to record evidence of restrictions placed upon the minority government shareholder, did the minority government shareholder nonetheless retain control over management.
The prospective component of Commerce's beholden theory in this review is reasonable. Commerce claims thаt Mr. X was beholden to the government minority shareholder for his employment during the POR and therefore it is reasonable to infer that the government minority shareholder "exerted influence over the appointment of the Board of Directors and managers of the company." Remand Results at 11-12, 42. As explained above, respondent companies within NME countries are presumed to be under government control. Policy Bulletin 05.1 at 1. A respondent may rebut this presumption, unless record evidence demonstrates that the majority shareholder is controlled by the government. Jiasheng, 39 CIT at ----,
On remand, Commerce relies on the fact that, prior to the adoption of the 2012 Articles of Association, the minority government shareholder could exercise its rights to control Mr. X. See Remand Results at 11-12. CASEAMEX asserts that *1363the 2012 Articles of Association restrict the control of the minority government shareholder. See CASEAMEX Resp. Comments at 22 (asserting that CASEAMEX's Articles of Association were in effect throughоut the entirety of the POR); id. at 21-23 (asserting that CASEAMEX demonstrated that the selection of managers and directors were restrained by the provisions in CASEAMEX's Articles of Association). However, the Articles of Association placed on the record are dated October 2012, were issued under the signature and seal of Mr. X, and "supersede[d] the previous Articles of Association issued in 2006." See CASEAMEX SRA at Ex. 10 at Preface. Therefore, the 2012 Articles of Association only relate to a portion of the POR. For a period of approximately 61 days at the beginning of the POR, the 2006 Articles of Association were in effect. The parties do not direct the court to where on the record a copy of CASEAMEX's 2006 Articles of Association has been reproduced. The parties do not agree whether the 2006 and 2012 Articles of Association are substantively the same.
As a result, Commerce's view that CASEAMEX has failed to rebut the presumption of de facto government control because during the POR Mr. X was beholden to the minority government shareholder, and the employees of CASEAMEX were beholden to Mr. X for their employment, Remand Results at 13-14, is reasonable.
CONCLUSION
In accordance with the foregoing, the Remand Results comply with the court's order in An Giang, 41 CIT at ----,
Notes
On April 6, 2015, Defendant submitted indices to the public and confidential administrative records which identify the record documents for Commerce's final determination in the tenth ADD administrative review. These indices are located on the docket at ECF No. 20. All further references to administrative record documents are identified by the numbers assigned by Commerce in these indices.
Specifically, in An Giang, the court sustained Commerce's selection of Indonesia as the primary surrogate country for the tenth administrative review. See An Giang, 41 CIT at ----,
Further citations to the Tariff Act of 1930, as amended, are to the relevant provisions of Title 19 of the U.S. Code, 2012 edition.
In An Giang, the court took judicial notice of Commerce's determination in the ninth administrative review, as allowed pursuant to section 2641 of the Customs Court Act of 1980, as amended
Specifically, CASEAMEX pointed to the 2012 Articles of Association which provided that neither Mr. X, the General Director and Chairman of the Board of Directors of CASEAMEX, nor the minority government shareholder, working together or alone, could push through the selection of management or election of a board member without 65 percent approval vote of the shareholders.
In an administrative review of an ADD order, Commerce is generally required to determine individual ADD rates for each known exporter or producer of subject merchandise covered by the review. 19 U.S.C. § 1677f-1(c)(1). However, Commerce may limit its examination to exporters and producers accounting for the largest volume of subject merchandise from the exporting country that can be reasonably examined, if the number of exporters or producers involved in the proceeding makes it impracticable to calculate individual rates. See 19 U.S.C. § 1677f-1(c)(2)(B). Non-individually investigated respondents are assigned an "all-others" rate (usually an average of the individually-examined respondents' rates). See 19 U.S.C. § 1673d(c)(5). In a NME antidumping investigation, all exporters are presumed to be subject to government control and should be assigned a government rate, unless, they are able to rebut the presumption of control. Import Admin., U.S. Dep't Commerce, Separate-Rates Practice and Application of Combination Rates in Antidumping Investigations involving Non-Market Economy Countries, Policy Bulletin 05.1 at 1 (Apr. 5, 2005), available at http://enforcement.trade.gov/policy/bull05-1.pdf (last visited Jan 16, 2018). Respondents seeking to rebut the presumption of government control submit a separate rate application.
Commerce's Policy Bulletin 05.1 identifies four factors that Commerce will consider in determining whether a respondent is in fact not under de facto government control: 1) export prices are not set by, or subject to the approval of, a governmental authority; 2) the respondent has authority to negotiate and sign contracts and other agreements; 3) the respondent has autonomy from the central, provincial and local governments in making decisions regarding the selection of its management; and 4) the respondent retains the prоceeds of its export sales and makes independent decisions regarding disposition of profits or financing of losses. Policy Bulletin 05.1 at 2; see also Silicon Carbide from the [PRC],
Separate rate respondents are generally assigned an ADD rate based on a weighted-average of the rates calculated for the individually examined respondents, rather than the NME country-wide rate, excluding zero or de minimis rates and rates based entirely on the application of facts otherwise available. See 19 U.S.C. § 1673d(c)(5)(A).
"The Diamond Sawblades proceedings" refer to decisions discussing the metamorphosis of the separate rate test as applied in situations where the government is a majority sharеholder. See Advanced Technology & Materials Co. v. United States, 36 CIT ----,
In the present remand redetermination, Commerce explains that, in light of the Diamond Sawblades proceedings, "the Department has continued to evaluate its practice" regarding the separate rate test. Remand Results at 28.
See also Oral Argument at 01:07:26-01:07:37 (Court: "So what's the standard? Is it the potential for control or actual control? And if it is actual control, you really need to connect the dots a little bit more, right?" Defendant: "It's actual control.")
The minority government shareholder is the [ [ ] ]. CASEAMEX SRA at Ex. 11 (providing a list of CASEAMEX's top ten shareholders at the end of the POR, and identifying the [ [ ] ] as one of those shareholders with [ [ ] ] ).
Tetra Decision Memo and Steel Wire Rod Decision Memo involve government majority shareholders, not government minority shareholders. See Tetra Decision Memo at 9-10; Steel Wire Rod Decision Memo at 8-9. In Steel Wire Rod Decision Memo, Commerce determined that four separate rate applicant companies failed to demonstrate de facto independence from the government. Id. at 8-9. Three of the companies either had a majority shareholder who was a government entity, or were themselves wholly-owned by a shareholder who was owned by a government entity. Steel Wire Rod Decision Memo at 8-9. The fourth company was denied separate rate status based on proprietary information, unavailable to the court. Steel Wire Rod Decision Memo at 9. In denying separate rate status, Commerce explained that the sheer level of government ownership meant that the government shareholder was expected to "exercise[ ] its right inherent in majority ownership [.]" Id. Commerce then provided examples of control, such as the appointment of board members and the existence of shared management between the government-owned shareholder company and the respondent company. Id.
In Tetra Decision Memo, Commerce denied separate rate status to six companies after having "considered the level of government ownership and the role [the majority shareholder(s) played in the selection] of management[.]" Tetra Decision Memo at 8-9. The majority shareholder in each of those six companies was a government-owned entity. Id. at 9-11. Further, and in comparison to Steel Wire Rod Decision Memo, Commerce in Tetra Decision Memo engaged in a more substantial discussion of how the government shareholder's ability to select management manifested in actual participation in the day-to-day operations of the respondent companies. See Tetra Decision Memo at 9-11.
Here, Commerce also relies on its analysis in Stainless Steel Sheet and Strip ("SSSS Decision Memo"), another determination involving a government shareholder who was a majority shareholder. See Remand Results at 6-7, 13; Issues and Decision Memorandum for the Final Determination in the [ADD] Investigation of Stainless Steel Sheet and Strip from the [PRC], A-570-042 (Feb. 1, 2017), available at http://ia.ita.doc.gov/frn/summary/prc/2017-02576-1.pdf (last visited Jan. 16, 2018). In SSSS Decision Memo, Commerce specifically states that, "[f]ollowing the CIT's reasoning in [Advanced Technology & Materials Co. v. United States,
In Containers Decision Memo, Commerce provided its rationale for combining the shares of two minority shareholders, despite the companies operating as two separate legal entities. Containers Decision Memo at 51. Commerce supported its decision to view the two minority shareholders as a block by citing to record evidence. Id. Specifically, evidence demonstrating that the two government-owned minority shareholders shared board members, and that their voting records exhibited "a unified approach to governance of [the respondent company]." Id. (citation omitted).
In Truck & Bus Tires Decision Memo, Commerce also reviewed whether Double Coin, another separate rate applicant, was de facto independent from the government of the PRC. Truck & Bus Tires Decision Memo at 11-13; 20-24. One of Double Coin's shareholders owned 72.15 percent of Double Coin's total shares. Id. at 12. This majority shareholder, in turn, was 100 percent controlled by a SASAC. Id. Commerce uses potential for control to explain that, in the case of a majority owner, Commerce "presume[s] that Double Coin's managers are 'beholden to the board that controls their pay, in particular to the chairmаn of the board as the de facto company head under the PRC model,' until proven otherwise." Id. at 24 (citation omitted).
Commerce's declaration that it did not find that the government minority shareholder exerted actual influence is somewhat contradicted by other statements in the Remand Results where Commerce asserts that "it is reasonable to infer that the [ [ ] ] exerted influence over the appointment of the Board of Directors and managers of the company, whether it be directly or indirectly." Remand Results at 11-12.
Defendant argues that Commerce's retrospective view is necessary to take into account the totality of factual circumstances supporting the potential control the [ [ ] ] retains over CASEAMEX. Def.'s Resp. to Pls.' Comments on Remand Redetermination at 21-23, Nov. 24, 2017, ECF No. 158. Defendant argues that past factual circumstances, such as employment history and events surrounding the сreation of CASEAMEX's first board of directors, inform the reasonable inferences Commerce is making. Id. The court notes that, in Containers Decision Memo, Commerce referenced the fact that a majority of the board of directors and supervisory committee members were employed by the government minority shareholders in the past. Containers Decision Memo at 50. Nevertheless, it is not clear to the court how past employment would support Commerce's beholden theory here. If Commerce is suggesting that past employees may feel grateful to their past employers, Commerce should explain why that gratitude translates into a lack of independence in a case where the past government employer no longer has the power to dismiss the employee.
CASEAMEX's Articles of Association refer to both a "Board of Management" and a "Board of Directors." See CASEAMEX SRA at Ex. 10. However, a review of the Articles of Association demonstrates that these two terms in fact refer to the same entity. For example, although the Table of Contents indicates that section VII of CASEAMEX's Articles of Association encompasses the articles related to the "Board of Directors," see id. at Ex. 10 at Table of Contents, section VII is in fact entitled "Board of Management" and its individual articles address the composition, rights, and responsibilities of the "Board of Management." See id. at Ex. 10 at Arts. 25-28. To avoid confusion, the court refers to this entity as the "Board of Directors" throughout this opinion.
Commerce identifies the 2012 Articles of Association as establishing minority shareholder rights and infers that prior to that time "[the [ [ ] ] ] exercised its right as the largest shareholder in selecting the Board of Directors and management of CASEAMEX." See Remand Results at 12-13. CASEAMEX, on the other hand, presumes that the 2012 Articles of Association were in effect throughout the entirety of the POR, see CASEAMEX Resp. Comments at 22, and that the Articles of Association operating in 2006 were substantively the same. Id. at 17 (arguing, without being specific as to the year of the operative version of the Articles of Association relied upon, that the board of directors in 2006 "could only be selected via the rules outlined in the company's Articles of Association").
Commerce also argues that Mr. X's dual role as General Director and Chairman of the Board of Directors allows him control over the CASEAMEX employees and the CASEAMEX managers. See Remand Results at 39-40; see also id. at 13-14. According to CASEAMEX's Articles of Association, by virtue of holding both positions, Mr. X holds significant power over the employees of CASEAMEX. See CASEAMEX SRA at Ex. 10 at Sec. VII-VIII. In light of Mr. X's rights and responsibilities, it is reasonably discernable that Commerce determined that Mr. X is able to exert control over CASEAMEX employees, who own a combined share of [ [ ] ] of CASEAMEX shares. Remand Results at 13-14; Can Tho Import-Export Joint Stock Company (CASEAMEX) Third Sep. Rate Supp. Questionnaire at Ex. S3-7, CD 149-CD 150, bar codes 3207617-01-02 (June 6, 2014).
Commerce also argues that at CASEAMEX's inception, the [ [ ] ] was able to play an "important role" in selection of managers and board members, because the Articles of Association were not in place to serve as a restraint. Remand Results at 10 (arguing that because at CASEAMEX's inception the [ [ ] ] was the largest shareholder and the Articles of Association were not adopted until 2012, the [ [ ] ] was able to play an "important role" in the selection of managers and members of CASEAMEX's first board of directors, of which [Mr. X] was a member); see id. at 11 (arguing that it is reasonable to infer that "because the Articles of Association granting minority shareholder rights had not yet been adopted ... [the [ [ ] ] ] exercised its right as the largest shareholder in selecting the Board of Directors and management of CASEAMEX.").