Slip Op. 13-69 

UNITED STATES COURT OF INTERNATIONAL TRADE 

 

Before: Leo M. Gordon, Judge 

Consol. Court No. 11-00106 

OPINION and ORDER 

[Final results of administrative review sustained in part and remanded in part.] 

 Dated: May 30, 2013 

William E. Perry and Emily Lawson, Dorsey & Whitney LLP of Seattle, Washington for 

Plaintiff Since Hardware (Guangzhou) Co., Ltd. 

Gregory S. Menegaz, J. Kevin Horgan, and John J. Kenkel, DeKieffer & Horgan of 

Washington, DC for Plaintiff-Intervenor Foshan Shunde. 

Carrie A. Dunsmore, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. 

Department of Justice for Defendant United States. With her on the brief were Stuart F. 

Delery, Principal Deputy Assistant Attorney General, Jeanne E. Davidson, Director, Patricia 

M. McCarthy, Assistant Director. Of counsel on the brief was Thomas M. Beline, Office of the 

Chief Counsel for Import Administration of Washington, DC. 

Frederick L. Ikenson, Peggy A. Clarke, and Larry Hampel, Blank Rome LLP of 

Washington, DC for Defendant-Intervenor Home Products International, Inc. 

Gordon, Judge: This consolidated action involves the U.S. Department of 

Commerce’s (“Commerce”) fifth administrative review of the antidumping duty order 

covering Floor-Standing, Metal-Top Ironing Tables from China. See Floor-Standing, 

Metal-Top Ironing Tables and Certain Parts Thereof from the People’s Republic of 

China, 76 Fed. Reg. 15,297 (Dep’t of Commerce Mar. 21, 2011) (final results admin. 

SINCE HARDWARE (GUANGZHOU) 

CO., LTD., 

 

Plaintiff, 

 

 v. 

UNITED STATES, 

Defendant. 
Consol. Court No. 11-00106 Page 2 

review), as amended by 76 Fed. Reg. 23,543 (Dep’t of Commerce Apr. 27, 2011) 

(amended final results admin. review) (collectively, “Final Results”); see also Issues and 

Decision Memorandum for Ironing Tables from China, A-570-888 (March 22, 2011), 

available at http://ia.ita.doc.gov/frn/summary/PRC/2011-6558-1.pdf (last visited this 

date) (“Decision Memorandum”). Before the court are the Final Results of 

Redetermination, ECF No. 85 ("Remand Results") filed by Commerce pursuant to Since 

Hardware (Guangzhou) Co. v. United States, Consol. Court No. 11-106, ECF No. 81 

(Aug. 14, 2012) (“Since Hardware”) (order remanding to Commerce). The court has 

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) (2006),1

 and 28 U.S.C. § 1581(c) (2006). 

Plaintiffs Since Hardware (Guangzhou) Co., Ltd. (“Since Hardware”) and Foshan 

Shunde Yongjian Housewares & Hardwares Co., Ltd. (“Foshan Shunde”) both 

challenge Commerce’s financial statement selection; Foshan Shunde challenges 

Commerce’s brokerage and handling surrogate valuation; and Since Hardware 

challenges Commerce’s cotton fabric surrogate valuation and labor wage rate surrogate 

valuation.2 See Since Hardware Comments to Remand Results, ECF No. 90 

 

1

 Further citations to the Tariff Act of 1930, as amended, are to the relevant provisions 

of Title 19 of the U.S. Code, 2006 edition. 

2

 Since Hardware also attempted to challenge Commerce’s brokerage and handling 

(“B&H”) valuation, but the court had to deem the issue waived for failure to adequately 

brief the argument. Since Hardware at 7; see also Home Prods. Int’l, Inc. v. United 

States, No. 11-00104 (Jan. 3, 2012), ECF No. 62 (order waiving challenge to B&H 

(footnote continued) 
Consol. Court No. 11-00106 Page 3 

(“SH Remand Br.”); Foshan Shunde Comments to Remand Results, ECF No. 89 (“FS 

Remand Br.”). The court sustains Commerce’s labor wage rate valuation and cotton 

fabric valuation, but remands the issues of financial statements, and brokerage and 

handling to Commerce for further consideration. 

I. Standard of Review 

When reviewing Commerce's antidumping determinations under 19 U.S.C. 

§ 1516a(a)(2)(B)(iii) and 28 U.S.C. § 1581(c), the U.S. Court of International Trade 

sustains Commerce's “determinations, findings, or conclusions” unless they are 

“unsupported by substantial evidence on the record, or otherwise not in accordance with 

law.” 19 U.S.C. § 1516a(b)(1)(B)(i). More specifically, when reviewing agency 

determinations, findings, or conclusions for substantial evidence, the court assesses 

whether the agency action is reasonable given the record as a whole. Nippon Steel 

Corp. v. United States, 458 F.3d 1345, 1350-51 (Fed. Cir. 2006). Substantial evidence 

has been described as "such relevant evidence as a reasonable mind might accept as 

adequate to support a conclusion." Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 

(1938). Substantial evidence has also been described as "something less than the 

weight of the evidence, and the possibility of drawing two inconsistent conclusions from 

the evidence does not prevent an administrative agency's finding from being supported 

by substantial evidence." Consolo v. Fed. Mar. Comm'n, 383 U.S. 607, 620 (1966). 

 

 calculation), as amended, ECF No. 63; Home Prods Int’l, Inc. v. United States, 36 CIT 

___, ___, 837 F. Supp. 2d 1294, 1300-1302 (2012); opinion after remand, Home Prods. 

Int’l, Inc. v. United States, 36 CIT ___, 853 F. Supp. 2d 1257 (2012).
Consol. Court No. 11-00106 Page 4 

Fundamentally, though, "substantial evidence" is best understood as a word formula 

connoting reasonableness review. 3 Charles H. Koch, Jr., Administrative Law and 

Practice § 9.24[1] (3d. ed. 2013). Therefore, when addressing a substantial evidence 

issue raised by a party, the court analyzes whether the challenged agency action "was 

reasonable given the circumstances presented by the whole record." Edward D. Re, 

Bernard J. Babb, and Susan M. Koplin, 8 West's Fed. Forms, National Courts § 13342 

(2d ed. 2013). 

Separately, the two-step framework provided in Chevron, U.S.A., Inc. v. Natural 

Res. Def. Council, Inc., 467 U.S. 837, 842-45 (1984), governs judicial review of 

Commerce's interpretation of the antidumping statute. See United States v. Eurodif 

S.A., 555 U.S. 305, 316 (2009) (Commerce's "interpretation governs in the absence of 

unambiguous statutory language to the contrary or unreasonable resolution of language 

that is ambiguous."). 

II. Discussion 

A. Financial Statement Selection 

Commerce’s selection of financial statements to calculate the financial ratios for 

respondents’ margins is an oft-litigated issue in non-market economy antidumping 

cases. Commerce is guided by a general regulatory preference for publicly available, 

non-proprietary information. 19 C.F.R. § 351.408(c)(1), (4) (2009). Beyond that, 

Commerce generally considers the quality, specificity, and contemporaneity of the 

available financial statements. See Fresh Garlic from the People's Republic of China, 
Consol. Court No. 11-00106 Page 5 

67 Fed. Reg. 72,139 (Dep't of Commerce Dec. 4, 2002) (final results new shipper 

review). 

During the administrative review, Commerce had a choice from among four 

Indian financial statements: ‘06-‘07 Infiniti Modules Private Ltd. (“Infiniti Modules”); ‘08-

‘09 Omax Autos Ltd. (“Omax”); and ‘07-‘08 and ‘08-‘09 Maximaa Systems Ltd. 

(“Maximaa”). In the Final Results Commerce chose the ‘06-‘07 Infiniti Modules’ financial 

statements alone as the best available information from which to calculate the financial 

ratios. Foshan Shunde and Since Hardware challenged this decision, arguing that the 

statements were not publicly available and that Omax’s and Maximaa’s financial 

statements represented the best available information to calculate the financial ratios. 

Since Hardware Mot. for J. upon the Agency R., ECF No. 43 (SH 56.2 Br.”); Foshan 

Shunde Mot. for J. upon the Agency R., ECF No. 44 (FS 56.2 Br.”). In its initial 

consideration of the issue, the court agreed that Commerce’s choice may not have been 

reasonable and remanded for Commerce to “reconsider[] the issue of the public 

availability of the Infiniti Modules financial statement, . . . [and to] review and reconsider 

whether the more contemporaneous statements of Omax or Maximaa might be useful 

additional data points, either in place of, or in addition to, Infiniti Modules.” Since 

Hardware at 6. On remand Commerce again solely selected the ‘06-‘07 Infiniti Modules’ 

financial statements and found them to be publicly available. See Remand Results at 

7,15. 
Consol. Court No. 11-00106 Page 6 

1. Public Availability 

When first reviewing the issue of the public availability of the ‘06-‘07 Infiniti 

Modules’ financial statements, the court could not sustain Commerce’s determination as 

reasonable. Since Hardware at 6. Although Commerce found that the statements were 

available through the Indian Ministry of Corporate Affairs’ (“MCA”) website, Decision 

Memorandum at 10, there was more than a “fair amount of record information 

demonstrating that the Infiniti Modules financial statements may not have been publicly 

available[,]” as evidenced by Since Hardware and Foshan Shunde’s unsuccessful 

attempts to obtain the financial statements or other Infiniti Modules’ financial 

information. Since Hardware at 4. 

On remand Commerce acknowledges that it erred in the Final Results when it 

concluded that the Infiniti Modules’ financial statements were available through the MCA 

website; they are not. Remand Results at 7. Commerce nevertheless clarifies that it 

still believes they are publicly available. Id. at 29. In the Remand Results Commerce 

reasons that the Infiniti Modules’ financial statements are publicly available because 

they were used in a prior administrative review and available on the public 

administrative record of that review are publicly available. Id. at 29. Commerce 

explains that Commerce and all interested parties have significant experience with 

Infiniti Modules as a surrogate company. Id. at 5-6. In each of the four prior 

administrative reviews, Commerce calculated financial ratios using a single year of 

Infiniti Modules’ financial statements. See Floor-Standing, Metal-Top Ironing Tables 

and Certain Parts Thereof from the People’s Republic of China, 72 Fed. Reg. 13,239 
Consol. Court No. 11-00106 Page 7 

(Dep’t of Commerce Mar. 21, 2007) (final results 1st admin. review) (selected Infiniti 

Modules’ ‘04-‘05 statement); Floor-Standing, Metal-Top Ironing Tables and Certain 

Parts Thereof from the People’s Republic of China, 73 Fed. Reg. 14,437 (Dep’t of 

Commerce Mar. 18, 2008) (final results 2nd admin. review) (selected Infiniti Modules’ 

‘04-‘05 statement); Floor-Standing, Metal-Top Ironing Tables and Certain Parts Thereof 

from the People’s Republic of China, 74 Fed. Reg. 11,085 (Dep’t of Commerce Mar. 16, 

2009) (final results 3rd admin. review) (selected Infiniti Modules’ ‘06-‘07 statement); 

Floor-Standing, Metal-Top Ironing Tables and Certain Parts Thereof from the People’s 

Republic of China, 75 Fed. Reg. 55,759 (Sept. 14, 2010) (prelim. results 4th admin. 

review) (selected Infiniti Modules’ ‘05-‘06 statement). In prior administrative reviews 

both Since Hardware and Foshan Shunde accepted Infiniti Modules’ financial 

statements as publicly available and argued about the specific substantive application of 

the financial statements:

Specifically, Infiniti Modules’ 2006-2007 financial statements were 

obtained by Petitioner and placed on the record of the third administrative 

review along with the 2005-2006 financial statements of Infiniti Modules. 

[Commerce] used the 2006-2007 financial statements of Infiniti Modules in 

the calculations set forth in the final results of the third administrative 

review. More importantly, Since Hardware acknowledged the existence of 

and was given the opportunity to comment on both Infiniti Modules’ 2005-

2006 and Infiniti Modules’ 2006-2007 financial statements in that review. 

Specifically, during that review, Since Hardware asserted that regardless 

of whether [Commerce] selected the 2005-2006 financial statements of 

Infiniti Modules or the 2006-2007 financial statements of Infiniti Modules, 

[Commerce] should make certain adjustments to the financial ratios 

derived from those financial statements. Similarly, Foshan Shunde 

engaged in argument over certain aspects of using Infiniti’s financial 

statements in the fourth administrative review, though it did not dispute 

that the information was publicly available. 
Consol. Court No. 11-00106 Page 8 

Remand Results at 5-6 (citations omitted). Noting that its regulatory preference for 

publicly available information addresses “the concern that a lack of transparency about 

the source of the data could lead to proposed data sources that lack integrity or 

reliability,” Commerce found that nothing had “transpired to undermine the integrity or 

reliability” of the ‘06-‘07 Infiniti Modules’ financial statements. Id. at 6. 

 This though is not really a determination of “public availability” made against 

measurable objective criteria. It is instead a determination that the Infiniti Modules’ data 

remains among the best available information because of its reliability (notwithstanding 

that it may not be publicly available). The court understands Commerce’s desire to use 

information with which it is familiar from a surrogate company that it knows well. It 

makes good, practical, efficient sense. The ‘06-‘07 Infiniti Modules’ financial statements 

were apparently obtained directly from the company by petitioner, Home Products 

International, Inc. (“HPI”), in the third administrative review. The public availability of 

that document was not challenged. Financial statements from Infiniti Modules were also 

used in the fourth administrative review, and again the public availability of that data 

was not challenged. In both instances respondents accepted the data and made 

substantive arguments about its proper use. Commerce and the interested parties have 

invested significant time and energy over the course of the prior reviews vetting and 

refining the Infiniti Modules’ financial statements for use in the financial ratio 

calculations. The court fully understands Commerce’s reluctance to abandon otherwise 

reliable data on a technicality that it has become publicly unavailable (or perhaps never 

was when measured against objective criteria). 
Consol. Court No. 11-00106 Page 9 

The court, though, cannot sustain Commerce’s determination that these financial 

statements are publicly available. In the Remand Results Commerce cites to Catfish 

Farmers of Am. v. United States, 33 CIT ___, ___, 641 F. Supp. 2d 1362, 1377 (2009), 

as an example of “the standard for public availability established in our practice.” 

Remand Results at 29. One searches Catfish Farmers in vain for an explanation of the 

“standard for public availability established in [Commerce’s] practice.” Remand Results 

at 29. That explanation does not appear in Catfish Farmers because it did not involve 

Commerce’s administrative practice for determining public availability. Instead, Catfish 

Farmers involved a challenge to Commerce’s use of a proprietary auditors’ report to 

supplement a publicly available financial statement. Catfish Farmers, 33 CIT at ___, 

641 F. Supp. 2d at 1377. Unlike here, Commerce did not determine that the proprietary 

auditors’ report was publicly available. Commerce, instead reasoned that because 

everyone had fair and open access to it during the proceeding, it was appropriate to 

supplement an otherwise publicly available financial statement as among the best 

available information. Id. The court, in turn, sustained as reasonable Commerce’s use 

of the non-public, confidential, auditors’ report to supplement a publicly available 

financial statement. Id. 

Further, Catfish Farmers does not identify or explain Commerce’s standards or 

criteria for public availability. Instead, it more modestly demonstrates that Commerce’s 

regulatory preference for public availability is not absolute, offering an instance in which 

Commerce’s use of proprietary surrogate information was reasonable. Catfish Farmers 

does not provide support for Commerce’s conclusion that the Infiniti Modules’ financial 
Consol. Court No. 11-00106 Page 10 

statements are publicly available. Catfish Farmers would instead appear to lend 

support for the conclusion that although the ‘06-‘07 financial statements are no longer 

publicly available, they may still merit consideration as among the best available 

information to calculate surrogate financial ratios because all parties had full and fair 

access to otherwise reliable data. 

As for the missing public availability criteria necessary to evaluate Commerce’s 

decision here, Foshan Shunde directs the court to another administrative proceeding, 

contemporaneous with the Remand Results, where Commerce applied what appears to 

be fairly rigorous standards for public availability. See Yantai Xinke Steel Structure Co. 

v. United States, Court No. 10-00240, Final Results of Redetermination Pursuant to 

Court Remand, ECF No. 83 at 18-23 (“Steel Grating Remand Results”); see also 

Certain Steel Grating from the People’s Republic of China, 75 Fed. Reg. 32,366 (Dep’t 

of Commerce June 8, 2010) (final LTFV determ.). In that proceeding Commerce 

sought clarification by issuing a supplemental questionnaire. . . . In this 

supplemental questionnaire, the Department requested that Petitioners 

provide a detailed step-by-step explanation of how they obtained 

Greatweld’s 2008-09 financial statements, and that the steps provided 

should be of sufficient detail so that any party would be able to replicate 

these steps to acquire Greatweld’s 2008-09 financial statements. If such 

a step-by-step explanation could not be provided, the Department 

requested that Petitioners provide a detailed explanation of why they could 

not provide such information. In addition, the Department also asked 

Petitioners to provide a detailed explanation as to the reason they 

believed Greatweld’s 2008-09 financial statements were properly 

described as publicly available and, in providing their response, to indicate 

if Greatweld was required under Indian law to publicly file its 2008-09 

financial statements with any governmental authority. 
Consol. Court No. 11-00106 Page 11 

Steel Grating Remand Results at 19-20. Petitioners there provided the step-by-step 

process of obtaining the “1) annual return; 2) balance sheet; 3) schedules; 4) auditor’s 

report; 5) director’s report; and 6) notice,” but did not provide the step-by-step process 

of receiving the income statements. Commerce determined Greatweld’s financial 

statements were not publicly available “[b]ecause the other interested parties to the 

proceeding, as well as the Department itself, do not know the steps necessary to 

acquire Greatweld’s 2008-09 income statement, and, therefore, could not acquire that 

data themselves . . . .” Id. at 22. 

In contrast, Commerce here was satisfied that Infiniti Modules’ statements were 

publicly available because “Petitioner was able to get them directly from the company 

simply by requesting them,” Remand Results at 7, even though respondents were 

apparently unsuccessful with similar requests. Under the standards Commerce 

enunciated in the Steel Grating Remand Results, respondents’ inability to obtain the 

data from the same source and in the same manner does seem to establish that Infiniti 

Modules’ statements are now publicly unavailable. In the Remand Results Commerce 

casts a skeptical eye on respondents’ efforts to obtain the data from Infiniti Modules, 

noting that respondents never specifically requested the ‘06-‘07 data. Id. at 6-7. The 

court was somewhat surprised by this interpretation of the record. Although it may be 

technically correct, the court was under the impression that the record made clear that 

respondents had made a good faith effort to obtain general financial information from 

Infiniti Modules (including more contemporaneous financial statements), but were 

completely rebuffed, which then instigated their arguments about public availability. 
Consol. Court No. 11-00106 Page 12 

The court will remand the issue of public availability for Commerce to reconcile 

its approach here with the Steel Grating Remand Results, as well as to reconsider its 

determination in light of the court’s explanation of Catfish Farmers. Commerce’s 

determination that Infiniti Modules financial statements are publicly available remains 

unreasonable (unsupported by substantial evidence), and therefore cannot be 

sustained.

2. Other Financial Statements 

In Since Hardware the court also remanded for Commerce to “review and 

reconsider whether the more contemporaneous statements of Omax or Maximaa might 

be useful additional points, either in place of, or in addition to, Infinit[i] Modules” and to 

“explain its choices in this administrative review against the choices made in Folding 

Metal Tables and Chairs . . . .” Since Hardware at 6. On remand Commerce again 

selected the ’06-’07 Infiniti Modules’ financial statements. Since Hardware and Foshan 

Shunde argue that Commerce’s selection was unreasonable and that it should have 

selected Omax or Maximaa. As previously discussed, Infiniti Modules’ data has certain 

advantages. It has been used in every review under the order, and Commerce and the 

parties know it well. The ‘06-‘07 Infiniti Modules’ financial statements, however, are less 

contemporaneous than the other choices, and have this nagging problem with public 

availability. The court, for its part, remains unconvinced that Commerce’s sole selection 

of the ’06-’07 Infiniti Modules’ financial statements alone is a reasonable choice on this 

administrative record. 
Consol. Court No. 11-00106 Page 13 

a. Maximaa 

Compared to the ‘06-‘07 Infiniti Modules financial statements, the ‘07-‘08 

Maximaa financial statements are more contemporaneous, and the ‘08-‘09 Maximaa 

financial statements cover the exact period of review. Unlike Infiniti Modules’ financial 

statements, Maximaa’s public availability is not in dispute. Commerce, nevertheless, 

continues to reject Maximaa’s financial statements for the following reasons: 

We . . . dispute Foshan Shunde’s assertion that Maximaa’s financial 

statements represent the best available information. Foshan Shunde 

argues that the Department’s selection of Maximaa’s financial statements 

in Folding Metal Tables and Chairs undercuts the rejection of Maximaa’s 

2007-2008 financial statements in the instant proceeding. However, in the 

proceeding at issue in this remand, the Department declined to use the 

2008 and 2009 financial statements of Maximaa based on record 

evidence that was submitted by interested parties on the record of 

this case, not the record of the case Foshan cites. The record 

evidence in this proceeding is separate and distinct from the information 

that comprised the record in Folding Metal Tables and Chairs and relates 

to a different product. Necessarily, our comments about the nature of 

financial statements in that case were made in the context of comparing 

them to folding metal tables and chairs, not ironing tables. In Folding 

Metal Tables and Chairs, we based our selection of Maximaa on the fact 

that, based on the evidence in that proceeding, “a greater proportion 

of Maximaa’s production appears to consist of comparable 

merchandise (i.e., metal furniture),” and “because it has a similar 

production process to that of the respondent.” The record in this 

case does not support the same conclusions. Rather, Maximaa’s 

business activities and production processes do not resemble that 

of respondent in this case and with respect to this product. . . .[T]he 

Department’s review of the information submitted by Petitioner concerning 

Maximaa’s financial statements indicated that Maximaa had increasingly 

become an assembler rather than a manufacturer of the 

merchandise. Thus, notwithstanding the conclusion reached in 

Folding Tables and Chairs that Maximaa was an integrated producer 

of steel furniture, we continue to maintain that facts on the record in this 

case demonstrate that the use of Maximaa’s financial statements 

inappropriate in this proceeding. 
Consol. Court No. 11-00106 Page 14 

Remand Results at 12-13 (citations omitted) (emphasis added). 

Commerce fails to reasonably distinguish its financial statement selection here 

from its financial statement selection in Folding Metal Tables and Chairs from the 

People’s Republic of China, 74 Fed. Reg. 68,568 (Dep’t of Commerce Dec. 28, 2009) 

(final results admin. review) (“Folding Metal Tables and Chairs”); see also Issues and 

Decision Memorandum for Folding Metal Tables and Chairs from China, A-570-868 

(Dec. 18, 2009), available at http://ia.ita.doc.gov/frn/summary/prc/E9-30695-1.pdf (last 

visited this date) (“FMTC Decision Memorandum”). Folding Metal Tables and Chairs 

involved merchandise similar to metal ironing boards and a choice among similar 

financial statements, Maximaa’s ‘07-‘08 and Infiniti Modules’ ‘06-‘07. In that review, 

Commerce selected the Maximaa financial statement because it found that Maximaa 

produced a greater proportion of comparable merchandise--metal furniture--than Infiniti 

Modules, and because Maximaa was an integrated producer while Infiniti was an 

assembler. FMTC Decision Memorandum at 4-5. 

Commerce distinguished Folding Metal Tables and Chairs by explaining that, in 

this review, Maximaa had “increasingly become an assembler.” Remand Results at 13. 

Commerce rejected Maximaa’s financial statement because of this critical finding. Id. 

However, Infiniti Modules was “evermore a 100% assembler.” FS Remand Br. at 10. 

Therefore, the court does not understand the basis for rejecting Maximaa’s financial 

statements because it was becoming an assembler, while accepting the financial 

statements of Infiniti Modules, who was an assembler. The simple fact is that both were 
Consol. Court No. 11-00106 Page 15 

assemblers. Commerce’s distinction appears to be one without a difference, and is 

accordingly unreasonable. 

Turning to Commerce’s remaining criteria for selecting the best available 

information, Maximaa remains more contemporaneous, has more comparable metal 

merchandise, and its public availability is not in dispute. On this administrative record, it 

is difficult to imagine a reasonable mind concluding that Maximaa’s financial statement 

is not at least as useful, if not better, than the Infiniti Modules data. Further, Commerce 

has a "preference . . . to use more than one financial statement where more than one 

representative financial statement is available.” Remand Results at 14. The court, 

therefore, remands this issue to Commerce to reconsider its financial statement 

selection. 

b. Omax

Since Hardware and Foshan Shunde argue that Commerce also unreasonably 

excluded the ‘08-‘09 Omax financial statements. In selecting financial statements, 

Commerce is driven by a statutory preference for selecting financial statements from 

producers of comparable merchandise. 19 U.S.C. § 1677b(c)(4)(B); see also 19 C.F.R. 

§ 351.408(c)(4) (“For manufacturing overhead, general expenses, and profit, the 

Secretary normally will use non-proprietary information gathered from producers of 

identical or comparable merchandise in the surrogate country.”). In the final results 

Commerce declined to use Omax’s financial statements because it determined that 

Omax was primarily an auto producer and therefore not an appropriate surrogate. Final 

Results; see Decision Memorandum at 10-11. Respondents challenged Commerce’s 
Consol. Court No. 11-00106 Page 16 

findings and argued that they had supplied evidence of Omax’s production of home 

furnishings. The court, therefore, directed Commerce to address the evidence of Omax 

as a manufacturer and supplier of ironing tables. Since Hardware at 6. 

 On remand, Commerce determined that Omax was not a producer of ironing 

tables:

[T]here is no record evidence that suggests Omax sold ironing tables to 

either Ikea or Polder during either the POR or the period covered by 

Omax’s 2008-2009 annual report. We thus conclude that while Omax 

may have been in a position to supply ironing tables to Polder subsequent 

to the end of the POR, there is insufficient evidence to conclude that 

Omax was a producer of ironing tables during the POR. 

Remand Results at 12. This finding is unreasonable on an administrative record in 

which the Omax ‘08-‘09 financial statements actually contain a picture of an ironing 

table. Id. at 31. Although Commerce tries to explain the picture away, id. at 31, the 

court is not persuaded that a company not producing ironing tables would include a 

picture of an ironing table in its financial statements as a representative product. 

Additionally, Polder, Inc., a company that imported ironing tables from Omax, stated in a 

letter that Omax “has supplied global behemoth Ikea with ironing tables and other steel 

housewares for the last two years.” Since Hardware SV Submission, PD 98, App. 1 at 

1-2 (emphasis added).3 Because Polder’s letter was dated, October 15, 2010, the “last 

two years” references October 2008 through October 2010. Id. This period overlaps 

this 2008-2009 administrative review. Therefore, Commerce unreasonably concluded 

that “there is no record evidence that suggests Omax sold ironing tables to either Ikea 

 

3

 “PD” refers to a document in the public administrative record. 
Consol. Court No. 11-00106 Page 17 

or Polder during the POR or the period covered by Omax’s 2008-2009 annual report.” 

Remand Results at 12. 

 This error though is ultimately harmless because Commerce’s overall decision to 

exclude the Omax financial statements remains reasonable. The administrative record 

supports Commerce’s determination that Omax is not a suitable surrogate because it is 

primarily an auto producer: 

. . . [T]he record in this case establishes that during the period of review 

(POR), Omax’s principle business comprised automotive products. 

Ironing tables constituted, at most, a very small portion of Omax’s 

business during Omax’s 2008-2009 financial reporting period. 

 

As a fundamental matter, Omax’s 2008-2009 annual report 

establishes that during the 2008-2009 fiscal reporting period, Omax was 

principally a manufacturer of automobile parts. First, we note that Omax’s 

official name is “Omax Autos Limited.” More importantly, we note that at 

page 13 of its financial statements, Omax lists 29 of its customers. Of 

those 29 customers, only one customer (Ikea) seems to be involved in 

the business that Omax describes as “home furnishings.” The rest of the 

customers listed by Omax in that section of the report appear to be 

involved in the automotive business based upon a simple examination of 

the company names. The importance of the automotive business to 

Omax is further highlighted in the account from Jatender Mehta, the 

Managing Director of Omax, which can be found in Omax’s 2008-2009 

annual report . . . . In that account, Mr. Mehta discusses Omax’s financial 

performance during the fiscal year. In discussing the challenges that 

Omax faced during the 2008-2009 fiscal reporting period, Mr. Mehta cites 

to a decline from “World Giants like GM, Chrysler and Ford.” Mr. 

Mahta[sic] also notes a downturn that was experienced by Toyota. 

While Mr. Mehta indicates elsewhere in this account that Omax intends to 

expand the company’s “product profile to Home Furnishings, Commercial 

Vehicles and the Indian Railway,” Mr. Mehta merely indicates that 

“[I]nvestments for creating manufacturing facilities have been earmarked.” 

However, Omax’s “foray” into the home furnishings business, is primarily 

described as a business segment from which Omax expects to derive 

future, rather than current, business. Mr. Mehta discusses no specific 

sales volume for “home furnishings” during the POR. Additionally, Mr. 

Mehta indicates that; 
Consol. Court No. 11-00106 Page 18 

. . . the company has made a foray into the Home 

Furnishings segment. The strategy has been to tie up with 

the biggest international brand—Ikea. This would include 

the desired level of quality, delivery and cost awareness 

within the Company. The company has started exports of 

various items under the division. We are putting up a new 

10 Acre plant facility at Bawai Haryana. This plant will be 

operational in the 3rd quarter of FY 09-10. 

From our review of the customers identified by Omax, in its 2008-

2009 Annual Report, and the account of Omax’s business that is set forth 

by Mr. Mehta, we continue to conclude that Omax’s primary business 

during the period captured by its 2008-2009 financial statements was 

the production of automotive products. 

*** 

Because automotive products are less similar to ironing tables than is 

furniture, we conclude that data from Infiniti Modules represents a higher 

quality of data within the meaning of section 773(c)(l) of the Act. 

Id. at 10-12 (emphasis added). Commerce, therefore, determined Omax was primarily 

an auto producer based on its name, customers, and the statements of its Managing 

Director. 

 The name of the company, Omax Autos Limited, pretty much says it all. It 

communicates that the company is primarily involved in the automotive business. 

Similarly, all but one of Omax’s 29 customers is in the automotive business. Admittedly, 

that one customer in the home furnishings business is the “global behemoth” Ikea. 

Since Hardware SV Submission, PD 98 at App. 1. And although that does count for 

something, a reasonable mind could conclude on this administrative record that Omax 

concentrates the bulk of its operations on the automotive sector and is therefore not a 

suitable surrogate for the general financial ratio calculations of a metal ironing board 
Consol. Court No. 11-00106 Page 19 

manufacturer. Accordingly, the court must sustain Commerce’s decision to exclude the 

Omax financial statements. 

B. Brokerage and Handling 

In the final results Commerce determined the World Bank’s Doing Business 

2010: India is “the best available source for valuing Foshan Shunde's brokerage and 

handling expenses.” Final Results; see Decision Memorandum at cmt. 3. Commerce 

used the World Bank data to calculate Foshan Shunde and Since Hardware’s 

brokerage and handling (“B&H”) expenses based on their respective container sizes. 

Id. Foshan Shunde challenged Commerce’s reliance on the World Bank data and the 

specific B&H calculations. Commerce requested a voluntary remand to correct Foshan 

Shunde’s container weight and to address Foshan Shunde’s requested letter of credit 

deduction. The court granted Commerce’s voluntary request for remand and further 

remanded the issue for Commerce to (1) prepare a clear and complete public summary 

of its calculations of Foshan Shunde’s B&H expense; (2) explain why its chosen 

surrogate data source and calculation is reasonably the best choice by comparing the 

advantages and disadvantages of each; and (3) respond to Foshan Shunde’s 

arguments with respect to Commerce adjusting Foshan Shunde’s actual shipped weight 

and actual shipping mode. Since Hardware at 8-9. 

On remand Commerce affirmed its selection of the World Bank data and its B&H 

calculation. Remand Results at 15-22, Attach. 1. Commerce also detailed the 

mechanics of its calculation for public summary: 
Consol. Court No. 11-00106 Page 20 

This details [Commerce’s] calculation of brokerage and handling expense. 

In Doing Business India, total brokerage and handling expenses are listed 

as follows: [See Doing Business in India - Doing Business - The World 

Bank Group (Doing Business India—2010) at 37 and 84; see also HPI 

November 15, 2010 Case Brief at 17-18.] 

1) Document Preparation: $350 

2) Customs Clearance and technical control $120 

3) Ports and Terminal Handling $175 

Total charges $645 

Moreover, as noted in the Doing Business India—2010 study, the 

container size assumed in the study is for a 20 foot full container load. 

However, both Since Hardware and Foshan Shunde shipped in 40 foot 

containers. Therefore, using the formulae set forth, we estimated the 

shipment weight that would be incurred in a 20 foot container as follows: 

[This calculation is also explained at HPI November 15, 2010 Case Brief 

at 17-18.] 

D= (A*B)/C 

E= $645/D 

A represents the cubic capacity of a 20 foot container which is 33 cubic 

meters 

B represents the weight of product shipped in 40 foot containers which is 

{ } kg of product 

C represents the cubic capacity of a 40 foot container (the size in which 

both respondents shipped merchandise) which is 67.3. 

D represents the estimated weight of product shipped in 20 foot containers 

E represents the calculated, per kilogram amount for brokerage and 

handling. 

In this case D yields an estimated weight of { } kilograms for product 

shipped in a 20 foot container 

D= 33*{ }/67.3= { }. 
Consol. Court No. 11-00106 Page 21 

Therefore, to derive the { } per unit brokerage and handling amount 

utilized in the Final Results, we divided the total brokerage and handling 

amount of $645 by the { } estimated weight of product shipped in 20 foot 

containers. 

E=$645/{ }={ } 

Public Summary of Calculation 

This calculation can also be illustrated publicly through the use of 

hypothetical numbers. In this hypothetical example, we continue to 

allocate the total pool of brokerage and handling expenses ($645) from 

the Doing Business India—2010 study. We assume that this respondent 

shipped in a 40 foot container. We, thus adjust the calculated shipment 

weight for this hypothetical respondent to adjust for shipments in a 20 foot 

container instead of in a 40 foot container. We also continue to assume 

the same cubic capacity for both the 20 foot and 40 foot containers that 

we utilized in the Final Results of this review. 

In our hypothetical example, we assume that the respondent shipped 

5000 kg of product in a 40 foot container. In such an instance 

A (the cubic capacity of a 20 foot container) would continue to equal 33 

cubic meters. 

B (the weight of product shipped in 40 foot container) would equal 5000 

kilograms. 

C (the cubic capacity of a 40 foot container) would continue to equal 67.3 

cubic meters. 

D represents the estimated weight of product shipped in 20 foot container 

which would be 

D= 33*5000/67.3= 2,451.71 

E represents the calculated, per kilogram amount for brokerage and 

handling which would equal $0.2631 or 

E= $645/2451.71=.2631 

Remand Results at Attach. 1. Commerce further explained:
Consol. Court No. 11-00106 Page 22 

[W]e have determined that brokerage and handling expenses were 

properly calculated in the Final Results for the following reasons. The 

Department’s practice when selecting the best available information for 

valuing FOPs, in accordance with section 773(c)(1) of the Act, is to select 

surrogate values which are product-specific, representative of a broadmarket average, publicly available, contemporaneous with the POR, and 

free of taxes and duties. The Doing Business 2010: India data from the 

World Bank reflect the experience of a broad number of companies, are 

publicly available, specific to the costs in question, represent a broad 

market average, and are contemporaneous to the POR. 

*** 

[T]he Department has utilized such World Bank data in a number of 

cases including Wooden Bedroom Furniture from the People’s Republic of 

China, Stainless Steel Sinks from China, and Wooden Bedroom Furniture 

from the People‘s Republic of China, consistently finding the World Bank 

data to be a reliable and accurate source of surrogate value information. 

World Bank data represent a reputable source of information for valuing 

brokerage and handling because those data are prepared by an 

independent organization and are based upon a survey derived from a 

broad number of producers. In contrast, the import data offered by 

Foshan Shunde were limited to two freight forwarders (Samsora[sic] and 

Hapang[sic] Lloyd). While Foshan Shunde has argued that the import 

data of Samsora and Hapang[sic] Lloyd also relate somehow to exports, 

the facts on the record of this proceeding do not substantiate the 

quantification of any such export experience. As previously noted, the 

business of exporting is fundamentally different than the business of 

importing and the data from these activities cannot be considered 

interchangeable. 

 Further, the data provided by Foshan Shunde to link brokerage and 

handling expenses to Foshan Shunde’s specific business situation fail to 

substantiate its claims with regard to the expenses associated with the 

preparation of letters of credit. As Petitioner has demonstrated, the World 

Bank data upon which the Department relied constituted $350 and are 

comprised of eight items: 1) bill of lading, 2) certificate of origin, 3) 

commercial invoice, 4) custom’s export declaration, 5) inspection report, 6) 

packing list, 7) technical standard/health certificate, and 8) terminal 

handling receipts. Nowhere in this schedule of eight items are letter of 

credit expenses mentioned. More to the point, . . .Foshan Shunde has 

claimed a constructed letter of credit cost of $390 which exceeds the 

total amount of brokerage and handling expenses calculated by the 

World Bank. Applying the $390 letter of credit expense, to the $350 

of charges set forth in the Doing Business report would thus result 
Consol. Court No. 11-00106 Page 23 

in the nonsensical calculation of a negative expense amount for 

Foshan Shunde’s brokerage and handling expenses. . . . . 

 Foshan Shunde’s fails to substantiate its assertions that as a 

“rational producer” it would never incur expenses as high as those 

enumerated in the Doing Business report or that distance from seaport is 

a determining factor in brokerage and handling expenses. As Petitioner 

has noted, because “inland transportation and handling” are 

calculated elsewhere in NV calculations, distance from a seaport is 

an irrelevant factor for purposes of calculating brokerage and 

handling expenses. These expenses are by definition incurred at the 

port of export.

*** 

. . . While Foshan Shunde asserts that exporters close to a seaport 

incur lower brokerage and handling costs than do inland 

manufacturers, there is no evidence on the record that permits the 

Department to quantify that suggested difference. Similarly, there is 

no information on the record of this proceeding that would permit the 

Department to tailor any publicly-available surrogate value data to the 

specific business situation experienced by Foshan Shunde or to remove 

elements of brokerage and handling expense which Foshan Shunde 

claims not to have incurred. . . . Foshan Shunde’s claim that it does not 

incur letter of credit expenses invites an inquiry that is beyond the scope 

of the issue here. The relevant question is whether the World Bank data 

are a reliable source for general brokerage and handling expenses, not 

whether the World Bank report reflects Foshan Shunde’s line-by-line 

experience. . . . Without knowing the exact breakdown of the data 

included in the World Bank report, the Department can no more 

deduct a letter of credit expense than add extra expenses which 

Foshan Shunde incurred but are not reflected by the World Bank 

data. In other words, the averaged data in the World Bank report is a 

reasonable surrogate value because a line-by-line analysis is simply not 

possible. . . . . 

Foshan Shunde has also challenged the Department’s adjustment 

from the 40 foot container size in which it shipped to the 20 foot container 

sizes that are reflected in the Doing Business 2010: India data. This issue 

was also reviewed by the Court in Dongguan Sunrise. . . . In sustaining 

the Department’s conversion from a 40 foot to a 20 foot container size, the 

Court rejected Fairmont’s argument indicating: 

This argument fails because Fairmont has not presented 

evidence that brokerage costs are based on value, not 
Consol. Court No. 11-00106 Page 24 

volume, and do not increase proportionately with the number 

of cubic feet. 

The methodology employed in this review is consistent with that 

employed in Dongguan Sunrise. Foshan Shunde has failed to 

demonstrate which, if any, of the costs included within the Doing Business 

2010: India data do not increase proportionately with volume. 

Accordingly, . . . we continue to maintain that our adjustment for container 

size is supported by record evidence in this proceeding. 

Remand Results at 17-21, 38-40 (citations omitted) (emphasis added). 

 Foshan Shunde first argues that Commerce’s B&H calculations are 

unreasonable because Commerce should not have relied on the World Bank data but 

should have instead used the data from Indian freight forwarders: Samsara and HapagLloyd. FS Remand Br. at 11-20. Foshan Shunde challenges the World Bank data as 

not reflecting the experience of any Indian producers at all, but being based on a survey 

completed by “[l]ocal freight forwarders, shipping lines, customs brokers, port officials, 

and banks.” Id. at 13 (citing Foshan Shunde SV Submission for Final Results, PD 96 at 

Ex. 6). Foshan Shunde adds that Commerce is generally reluctant to use the results of 

a survey as source documentation when “none of the actual responses or data collected 

from these questionnaires were provided in the report” and that therefore, Commerce 

“had no way to evaluate whether the information collected in the questionnaire 

responses was complete or properly analyzed, much less whether the responses can 

be considered representative . . . .” Id. at 13 (quoting Fresh Garlic from China, 77 Fed. 

Reg. 34,346 (Dep’t of Commerce June 11, 2012) (final results admin. review)). The 

court disagrees. 
Consol. Court No. 11-00106 Page 25 

Commerce explained that its practice when selecting the best available 

information for valuing factors of production, in accordance with 19 U.S.C. 

§ 1677b(c)(1), is to “select surrogate values which are product-specific, representative 

of a broad-market average, publicly available, contemporaneous . . . and free of taxes 

and duties.” Remand Results at 17-18 (citing Certain Polyester Staple Fiber from the 

People’s Republic of China, 75 Fed. Reg. 1336 (Dep’t of Commerce Jan. 11, 2010) 

(final results admin. review). Accordingly, Commerce calculated Foshan Shunde’s B&H 

costs using the World Bank’s Doing Business 2010: India which “reflect[s] the 

experience of a broad number of companies, [is] publicly available, specific to the costs 

in question, represent a broad market average, and are contemporaneous.” Remand 

Results at 17-18. In contrast, Foshan Shunde's data are limited to two sources, 

Samsara and Hapag-Lloyd. Commerce explained that while the World Bank data 

largely satisfy Commerce's surrogate value criteria, Foshan Shunde's two sources are 

deficient in several respects. See id. at 18-19. First, they fail to represent a broad 

market average because they are from only two companies. Id. at 18. Second, the 

experience of two freight forwarders is not specific to the expenses in question because 

the expenses reported in these data sources represent import expenses—not export 

expenses. Id. at 19 ("[T]here is no documentation on the record of this proceeding to 

suggest that the costs for importing merchandise parallel the costs that are related to 

exporting merchandise."). Commerce further explained that “the business of exporting 

is fundamentally different than the business of importing and the data from these 

activities cannot be considered interchangeable.” Id. at 39. In response, Foshan 
Consol. Court No. 11-00106 Page 26 

Shunde contends that Commerce’s finding “is simply incorrect” and that it submitted 

“prices for all port activities – for both importers and exporters.” FS Remand Br. at 16. 

However, the Samsara and Hapag-Lloyd data that Foshan Shunde submitted are both 

labeled as import data. See Foshan Shunde SV Submission for Prelim. Results, PD 77 

at Ex. 2. Further, when arguing that it submitted export data, Foshan Shunde cites to its 

submission of the Indian port schedules, Foshan Shunde SV Submission for Prelim. 

Results, PD 77 Ex. 1, and not the Samsara and Hapag-Lloyd data, Foshan Shunde SV 

Submission for Prelim. Results, PD 77 Ex. 2. Therefore, Commerce reasonably 

concluded that the Samsara and Hapag-Lloyd data reflect only import data. See 

Foshan Shunde SV Submission for Prelim. Results, PD 77 at Ex. 2. 

Additionally, although Foshan Shunde claims that consistent with Commerce 

practice, Commerce “must reject the World Bank Doing Business Report as 

unrepresentative, unreliable, and unverifiable,” FS Remand Br. at 13, Commerce 

reasonably found the World Bank data to be a “reliable and accurate source.” Remand 

Results at 38. Commerce explained that the “World Bank data represent a reputable 

source of information for valuing brokerage and handling because those data are 

prepared by an independent organization and are based upon a survey derived from a 

broad number of producers.” Id. at 38-39. Commerce has also previously relied on the 

World Bank data to calculate surrogate B&H values. See e.g., Wooden Bedroom 

Furniture from the People’s Republic of China, 76 Fed. Reg. 9,747 (Dep’t of Commerce 

Feb. 22, 2011) (new shipper review final results); Drawn Stainless Steel Sinks from the 

People’s Republic of China, 78 Fed. Reg. 13,019 (Dep’t of Commerce Feb. 26, 2013) 
Consol. Court No. 11-00106 Page 27 

(final results admin. review); Wooden Bedroom Furniture from the People’s Republic of 

China, 75 Fed. Reg. 50,992 (Dep’t of Commerce Aug. 18, 2010) (final results admin. 

review); see also Dongguan Sunrise Furniture Co. v. United States, 36 CIT ___, ___, 

865 F. Supp. 2d 1216, 1246 (2012) (affirming Commerce’s reliance on the World Bank 

data and noting that “Commerce has consistently found the World Bank to be a reliable 

source for data”). Therefore, Commerce reasonably relied on the World Bank data. 

Foshan Shunde next argues that Commerce should have altered the World Bank 

data to reflect Foshan Shunde’s actual expenses. FS Remand Br. at 12. First, Foshan 

Shunde argues that Commerce should remove a specific expense from the aggregate 

data, specifically, the expense for preparing a letter of credit. Id. at 17. Foshan Shunde 

contends that because it did not incur a letter of credit expense, Commerce should 

adjust the B&H by deducting amounts for letter of credit expenses. Id. at 17. Foshan 

Shunde explains that “the World Bank data includes costs for procuring an export letter 

of credit,” id. at 17, and that “the L/C costs are embedded in the “documents required to 

export and import” and greatly inflate the document preparation costs.” FS 56.2 Br. at 

Ex. 1, 31. Foshan Shunde lists the price of an export letter of credit as $390. FS 

Remand Br. at 17 (citing FS’ Br. 56.2 at 26). Commerce, however, responds that it will 

not adjust the B&H because the listed items composing the B&H do not include a letter 

of credit expense. Remand Results at 39 (“Nowhere in this schedule of eight items are 

letter of credit expenses mentioned.”). Moreover, Defendant argues that Foshan 

Shunde’s $390 letter of credit cost “exceeds [$350,] the total amount of [the document 

preparation costs of the] brokerage and handling expenses calculated by the World 
Consol. Court No. 11-00106 Page 28 

Bank. Applying the $390 letter of credit expense, to the $350 . . . charges . . . would 

result in the nonsensical calculation of a negative expense.” Id. at 39 (citations omitted) 

(original emphasis). 

The B&H costs from the Word Bank data are composed of three categories of 

expenses: (1) document preparation; (2) customs clearance and technical control; and 

(3) ports and terminal handling. Id. at Attach. 1. The document preparation fee is 

composed of eight items: (1) bill of lading; (2) certificate of origin; (3) commercial 

invoice; (4) custom's export declaration; (5) inspection report; (6) packing list; 

(7) technical standard/health certificate; and (8) terminal handling receipts. Id. at 39. 

Letters of credit are not included in the eight listed expenses for document preparation. 

Even if the letter of credit expenses are embedded, as Foshan Shunde argues, the 

court agrees that, "without knowing the exact breakdown of the data included in the 

World Bank Report, [Commerce] can no more deduct a letter of credit expense than add 

extra expenses which Foshan Shunde incurred but are not reflected by the World Bank 

data." Id. at 19-20. Therefore, Commerce's refusal to adjust the B&H costs for possible 

letter of credit expenses was reasonable. 

Next, Foshan Shunde argues that Commerce should have adjusted its B&H 

calculations to reflect Foshan Shunde’s proximity to China’s seaports. Foshan Shunde 

argues that “proximity to a major seaport is a key factor in the World Bank’s 

determination of the cost of trading across borders in India” and that companies near 

ports bear lower B&H expenses. FS 56.2 Br. at Ex. 1, 28; FS Remand Br. at 16. 

Commerce responds that “because ‘inland transportation and handling’ are calculated 
Consol. Court No. 11-00106 Page 29 

elsewhere in NV calculations, distance from a seaport is an irrelevant factor for 

purposes of calculating brokerage and handling expenses. These expenses are by 

definition incurred at the port of export." Remand Results at 40. Commerce further 

adds that “[w]hile Foshan Shunde asserts that exporters close to a seaport incur lower 

brokerage and handling costs than do inland manufacturers, there is no evidence on the 

record that permits [Commerce] to quantify that suggested difference.” Id. at 19. The 

court does not believe this conclusion is reasonable on this administrative record. 

Foshan Shunde placed on the administrative record the World Bank’s Doing 

Business Subnational Report that includes the specific B&H costs for Indian seaports: 

Chennai, Kochi, Kolkata, and Mumbai. Foshan Shunde SV Submission for Final 

Results, PD 96 at Ex. 4. The data that Commerce relied on, the World Bank’s Doing 

Business in India: 2010, is composed of the B&H costs of 17 Indian cities/regions 

including the four above mentioned port cities. Id. at Ex. 3-4. Four of the 17 cities are 

seaports, and the remaining 13 are inland. Id. at Ex. 4. The Doing Business 

Subnational Report contains the following categories of expenses for each seaport: 

(1) document preparation; (2) customs clearance and technical control; (3) ports and 

terminal handling; and (4) inland transportation and handling. Id. Commerce explained 

that it did not include inland transportation and handling in its B&H calculations. 

Remand Results at 40. Commerce instead calculated B&H from the other three 

categories of costs: (1) document preparation; (2) customs clearance and technical 

control; and (3) ports and terminal handling. Id. at Attach. 1. Therefore, in arguing the 

proper B&H calculation for each seaport, Foshan Shunde also omitted inland 
Consol. Court No. 11-00106 Page 30 

transportation and handling costs from the Business Subnational Report data. FS 56.2 

Br. at 28. The Business Subnational Report, excluding inland transportation and 

handling fees, provides the following B&H costs for the four seaports: Chennai: $439; 

Kochi: $375; Kolkata: $462; and Mumbai $645. Foshan Shunde SV Submission for 

Final Results, PD 96 at Ex. 4.; see also id. The average B&H costs for the four 

seaports are $480. In contrast, based on the aggregate data of all 17 cities, Commerce 

calculated $645 in B&H costs. Remand Results at Attach. 1. Therefore, even excluding 

inland transportation costs, there is a $165 difference between the combined data for all 

17 Indian cities and the data from the seaports. This evidence directly contradicts 

Commerce’s conclusion that “distance from a seaport is an irrelevant factor” and that 

there is no evidence to “quantify that suggested difference.” Id. at 19, 40. Further, the 

court agrees with Foshan Shunde that Commerce “offered no explanation why the 

World Bank report including export costs from 17 Indian cities, most of which lie far 

inland, was a more appropriate data set than the regional reports of four Indian cities 

geographically located near major ports, when Foshan Shunde itself is located near 

major Chinese ports.” FS 56.2 Br. at 26. Commerce’s determination appears 

unreasonable. The court must therefore remand this issue to Commerce to consider 

the World Bank data from the seaports or to provide a reasonable explanation as to why 

that is not appropriate. 

Finally, Foshan Shunde argues that Commerce’s adjustment of the World Bank 

data from 20-foot to 40-foot containers is unreasonable because B&H costs do not 

increase proportionally from 20-foot to 40-foot containers. FS Remand Br. at 19-20. 
Consol. Court No. 11-00106 Page 31 

Foshan Shunde contends that the per-kilogram B&H costs of a 40-foot container is 

lower than that of a 20-foot container. Id. Commerce calculated the B&H costs by first 

determining the per-kilogram B&H costs of a 20-foot container, and then applied that 

value to the weight of a 40-foot container. This type of calculation assumes that B&H 

costs increase proportionally from 20-foot to 40-foot containers. From this calculation, 

Commerce determined B&H costs to be $645. Remand Results at Attach. 1. 

Defendant and HPI respond to Foshan Shunde’s argument, explaining that Commerce 

“merely converted the data, such that the World Bank data would reflect the ways in 

which Foshan Shunde actually ships its goods” and that, “Commerce made a 

straightforward mathematical adjustment from the 40-foot container size in which it 

shipped to the 20-foot container size that are reflected in the World Bank data.” 

Defendant’s Resp. to Plaintiffs’ Comm. Concerning Remand Results, ECF No. 100 at 

19-20 (“Def. Remand Br.”); see also Reply of HPI to Comm. Concerning Remand 

Results, ECF No. 101 at 19 (“HPI Remand Br.”). Defendant also argues that this same 

issue was addressed in Dongguan Sunrise v. United States, 36 CIT ___, ___, 865 F. 

Supp. 2d 1216, 1247 (2012), in which the court held Commerce’s conversion from a 20-

foot to a 40-foot container reasonable. Def. Remand Br. at 20. HPI also relies on Utility 

Scale Wind Towers from the People's Republic of China, 77 Fed. Reg. 75,992 (Dep’t of 

Commerce Dec. 26, 2012) (final determ.), in arguing that total B&H costs increase 

proportionally with container capacity. HPI Remand Br. at 19. On remand, Commerce 

explained that “Foshan Shunde has failed to demonstrate which, if any, of the costs 

included within the Doing Business 2010: India data do not increase proportionately with 
Consol. Court No. 11-00106 Page 32 

[container size].” Remand Results at 21. Defendant and HPI, therefore, argue that 

Commerce’s conversion of the data was reasonable (supported by substantial 

evidence). 

In Dongguan Sunrise the court sustained Commerce’s adjustment of the World 

Bank data from a 20-foot to a 40-foot container “because [Respondent] ha[d] not 

presented evidence that brokerage costs are based on value, not volume, and do not 

increase proportionally with the number of cubic feet.” Dongguan Sunrise, 36 CIT at 

___, 865 F. Supp. 2d at 1247. Similarly, in Utility Scale Wind Towers from the People's 

Republic of China, Commerce stated, “absent record evidence to the contrary, total 

brokerage and handling costs increase proportionally with a container’s capacity and, 

therefore, per-unit brokerage and handling rates do not change as a container’s 

capacity increases.” Utility Scale Wind Towers from the People's Republic of China, 77 

Fed. Reg. 75,992, 75,997 (Dep’t of Commerce Dec. 26, 2012) (final determ.) (emphasis 

added). If B&H costs increased proportionally from 20-foot to 40-foot containers, as 

Commerce calculated, then there would be a 100% increase in B&H costs from a 20-

foot to a 40-foot container. Foshan Shunde, however, points to evidence in the record 

that shows only a 30-50% increase in costs from 20-foot to 40-foot containers. Foshan 

Shunde SV Submission for Prelim., PD 77, Ex. 1 at 3-6, 14-16, 37, 64-65, Ex. 2; see 

also FS 56.2 Br. at 33. Therefore, Foshan Shunde has demonstrated that B&H costs 

do not increase proportionally from 20-foot to 40-foot containers. Accordingly, 

Commerce unreasonably concluded that, “Foshan Shunde has failed to demonstrate, 

which if any, of the costs . . . do not increase proportionately with volume.” Remand 
Consol. Court No. 11-00106 Page 33 

Results at 21. The court remands this issue to Commerce to consider Foshan 

Shunde’s evidence regarding B&H costs in 20-foot versus 40-foot containers. 

C. Cotton Fabric Surrogate Valuation 

In Since Hardware the court granted Commerce’s voluntary remand request to 

reconsider Since Hardware’s cotton fabric weight and recalculate the conversion factor. 

Since Hardware at 2. On remand, Commerce changed the conversion factor from 5.0 

to 7.5 and explained: 

Since Hardware has demonstrated that the weight of its cotton fabric was 

between 100 grams and 200 grams per square meter. The precise 

conversion factor for Since Hardware’s cotton inputs would therefore 

range between 5 and 10. Therefore, based upon the information on 

record, the Department has based its determination on a reasonable 

inference that the conversion factor is 7.5. 

Remand Redetermination at 23. In challenging the cotton fabric conversion factor, 

Since Hardware presents a hollow argument. Since Hardware’s entire argument 

consists of the following: “[t]his Court should find that Commerce should use the record 

information verified for Since Hardware and apply the 5.49 conversion factor instead of 

the 7.5 as it is more specific to Since Hardware Draft Remand Comments at 2-6[sic].” 

SH Br. at 20. Missing is any effort to develop an argument as to how the 5.49 

conversion factor is “more specific to Since Hardware” and to identify standards against 

which the court can evaluate the reasonableness of Commerce’s cotton fabric valuation. 

Id. Since Hardware’s “argument” is all the more difficult to countenance because the 

Scheduling Order specifically cautioned against just such a submission: 

Please be advised that the court will not permit the plaintiff to shift to the 

court and the other parties the burden of establishing the ossature of 

plaintiff’s arguments against the standard of review the court applies to 
Consol. Court No. 11-00106 Page 34 

resolve them. Instead, the court will summarily sustain Commerce’s 

action. 

Scheduling Order at 5, ECF No. 36. Rule 56.2(c)(2) requires that briefs "must include 

the authorities relied on and the conclusions of law deemed warranted by the 

authorities." USCIT R. 56.2(c)(2). As Since Hardware has failed to satisfy this basic 

requirement, and abide by the express instructions of the Scheduling Order, the court 

deems this issue waived and sustains Commerce's cotton fabric surrogate valuation. 

See MTZ Polyfilms, Ltd. v. United States, 33 CIT ___, ___, 659 F. Supp. 2d 1303, 1308-

09 (2009); Fujian Lianfu Forestry Co. v. United States, 33 CIT ___, ___, 638 F. Supp. 

2d 1325, 1350 (2009); United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) 

("[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at 

developed argumentation, are deemed waived. It is not enough merely to mention a 

possible argument in the most skeletal way, leaving the court to do counsel's work, 

create the ossature for the argument, and put flesh on its bones.") (citations omitted). 

D. Labor Wage Rate Surrogate Valuation 

In the final results Commerce calculated the surrogate labor wage rate using 

data from the International Standard Classification of all Economic Activities (“ISIC”) 

Revision 3 rather than ISIC Revision 2. Final Results; see Decision Memorandum at 

16. The court in Since Hardware remanded the issue to have Commerce conform its 

results with the prior review, Home Prods., 36 CIT ___, ___, 837 F. Supp. 2d 1294, 

1296-97, and to include Indian data under ISIC Revision 2, as well as any other 

appropriate country in that data set. Since Hardware at 9-11. The court rejected Since 
Consol. Court No. 11-00106 Page 35 

Hardware and Foshan Shunde’s argument that Commerce must use data from India 

because “the statute does not mandate Commerce must, as a matter of law, use Indian 

data alone.” Since Hardware at 10. The court also deemed waived any argument by 

Since Hardware and Foshan Shunde that, as a factual matter, India alone was both 

economically comparable to China and a significant producer of comparable 

merchandise, because neither party identified even one country included in 

Commerce’s analysis that failed either standard, leaving that work to the court or the 

other interested parties. Id. Consequently, the court did not “require Defendant or HPI 

to expend any more energy on this issue” other than for Commerce to conform its 

decision to its Remand Redetermination from the prior administrative review. Id. at 11. 

On remand Commerce followed the court’s instructions and recalculated the 

labor wage rate “rely[ing] on labor data reported by countries either under the 

International Standard Industrial Classification (ISIC) Revision 3, or, as discussed 

below, ISIC Revision 2,” including “data from India and Nicaragua.” Remand Results at 

22-22. Since Hardware again argues that Commerce should have selected India alone 

to calculate the surrogate wage rate. SH Br. at 19-20. The court previously rejected 

this argument in Since Hardware, and Commerce’s labor wage rate surrogate valuation 

is therefore sustained. See Since Hardware at 10-11; see also Home Prods. Int’l, Inc. v. 

United States, 36 CIT ___, ___, 810 F. Supp. 2d 1373, 1380 (2012); opinion after 

remand, Home Prods. Int’l, Inc. v. United States, 36 CIT ___, ___, 837 F. Supp. 2d 

1294, 1297 (2012); opinion after remand, Home Prods. Int’l, Inc. v. United States, 36 
Consol. Court No. 11-00106 Page 36 

CIT ___, 853 F. Supp. 2d 1257 (2012), aff’d, Home Prods. Int’l, Inc. v. United States, 

501 Fed. Appx. 981 (Fed. Cir. Apr. 11, 2013). 

III. Conclusion 

Accordingly, it is hereby 

ORDERED that Commerce’s financial statement selection is remanded to 

reconsider the exclusion of the Maximaa financial statements; it is further 

ORDERED that Commerce’s brokerage and handling calculations are remanded 

for Commerce to reconsider its treatment of container sizes and proximity to seaports; it 

is further 

ORDERED that Commerce’s labor wage rate surrogate valuation is sustained; it 

is further 

ORDERED that Commerce’s cotton fabric surrogate valuation is sustained; it is 

further 

ORDERED that Commerce shall file its remand results on or before July 30, 

2013; and it is further 

ORDERED that, if applicable, the parties shall file a proposed scheduling order 

with page limits for comments on the remand results no later than seven days after 

Commerce files its remand results with the court. 

/s/ Leo M. Gordon 

 Judge Leo M. Gordon 

Dated: May 30, 2013 

 New York, New York