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 J ohn J. Kenkel, DeKieffer & Horgan of Washington, DC for Plaintiff- Intervenor Foshan Shunde. Carrie A. Dunsmore, Trial Attorney, Commerc ial Litigation Branch, Civil Division, U.S. Department of Justice for Defenda nt United States. With her on the brief were Stuart F. Delery, Principal Deputy Assistant Attorney G eneral, 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 Admini stration 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 administrativ e review of the antidumping duty order covering Floor-Standing, Metal-Top Ironing T ables from China. See Floor-Standing, Metal-Top Ironing Tables and Ce rtain Parts Thereof from t he People’s Republic of China, 76 Fed. Reg. 15,297 (Dep’t of Comme rce 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) (collectivel y, “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/su mmary/PRC/2011-6558-1.pdf (last visited this date) (“Decision Memorandum”). Before the court are the Final Results of Redetermination, ECF No. 85 ("Remand Result s") filed by Commerce pursuant to Since Hardware (Guangzhou) Co. v. United States , Consol. Court No. 11-106, ECF No. 81 (Aug. 14, 2012) (“Since Hardwa re”) (order remanding to Co mmerce). 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 Housewar es & Hardwares Co., Ltd. (“Foshan Shunde”) both challenge Commerce’s financial statement selection; Foshan Shunde challenges Commerce’s brokerage and handling surrogat e 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 Hardwa re at 7; see also Home Prod s. 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 Comment s to Remand Results, ECF No. 89 (“FS Remand Br.”). The court sustains Comme rce’s labor wage rate valuation and cotton fabric valuation, but rem ands the issues of financial statements, and brokerage and handling to Commerce for fu rther 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), t he U.S. Court of International Trade sustains Commerce's “determinations, findings, or conclusions” unless they are “unsupported by substantial evid ence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i). Mo re specifically, when reviewing agency determinations, findings, or conclusions fo r substantial evidence, the court assesses whether the agency action is r easonable 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 evid ence 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 ha s also been described as "something less than the weight of the evidence, and t he possibility of drawing two in consistent conclusions from the evidence does not prevent an administr ative agency's finding from being supported by substantial evidence." Consolo v. F ed. Mar. Comm'n, 383 U.S. 607, 620 (1966).

calculation), as amended, ECF No. 63; Home Pr ods Int’l, Inc. v. Un ited 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 addre ssing 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. Fo rms, 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 "int erpretation governs in the absence of unambiguous statutory language to the contrary or unreasonab le resolution of language that is ambiguous."). II. Discussion A. Financial Statement Selection Commerce’s selection of financial statement s to calculate the financial ratios for respondents’ margins is an oft-litigated is sue in non-market economy antidumping cases. Commerce is guided by a general r egulatory 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 c hose the ‘06-‘07 Infiniti Modules’ financial statements alone as the best av ailable information from which to calculate the financial ratios. Foshan Shunde and Since Hardware c hallenged 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 Agen cy 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 M odules 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 so lely 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 coul d not sustain Commerce’s determination as reasonable. Since Hardware at 6. Alt hough Commerce found that t he statements were available through the Indian Ministry of Co rporate Affairs’ (“MCA”) website, Decision Memorandum at 10, there was more than a “fair amount of record information demonstrating that the Infiniti Modules finan cial statements may not have been publicly available[,]” as evidenced by Since Ha rdware 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 st atements were available through the MCA website; they are not. Rem and Results at 7. Commerce nev ertheless clarifies that it still believes they are publicly available. Id. at 29. In the Remand Results Commerce reasons that the Infiniti Modules’ financia l statements ar e publicly available because they were used in a prior administrat ive review and available on the public administrative record of that review are publicly availa ble. 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. 13,239Consol. Court No. 11-00106 Page 7 (Dep’t of Commerce Mar. 21, 2007) (final results 1 st 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 F ed. Reg. 14,4 37 (Dep’t of Commerce Mar. 18, 2008) (final results 2 nd admin. review) (selected Infiniti Modules’ ‘04-‘05 statement); Floor-Standing, Metal-T op 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 3 rd admin. review) (selected Infini ti Modules’ ‘06-‘07 statement); Floor-Standing, Metal-Top Ironing Tables a nd Certain Parts Thereof from the People’s Republic of China, 75 Fed. Reg. 55, 759 (Sept. 14, 2010) (prelim. results 4 th admin. review) (selected Infiniti Modules’ ‘05-‘06 st atement). In prior ad ministrative reviews both Since Hardware and Foshan Shunde ac cepted Infiniti Modules’ financial statements as publicly availabl e and argued about the specific substantive application of the financial statements: Specifically, Infiniti Modules’ 2006-2007 financial st atements were obtained by Petitioner and placed on th e record of the third administrative review along with the 2005-2006 financial statements of Infiniti Modules. [Commerce] used the 2006-2007 financial st atements of Infiniti Modules in the calculations set forth in the final results of the third administrative review. More importantly, Since Hard ware acknowledged the existence of and was given the opportunity to comm ent on both Infiniti Modules’ 2005- 2006 and Infiniti Modules’ 2006-2007 financi al statements in that review. Specifically, during that review, Sinc e Hardware asserted that regardless of whether [Commerce] selected t he 2005-2006 financial statements of Infiniti Modules or the 2006-2007 financ ial statements of Infiniti Modules, [Commerce] should make certain adj ustments to the financial ratios derived from those financia l statements. Simila rly, Foshan Shunde engaged in argument over certain aspec ts 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 (citati ons 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 pro posed data sources that lack integrity or reliability,” Commerce found that nothing had “transpired to undermine the integrity or reliability” of the ‘06-‘07 Infiniti Modul es’ 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 bec ause of its reliabi lity (notwithstanding that it may not be publ icly 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 Module s’ financial statements were apparently obtained directly from th e company by petitioner, Home Products International, Inc. (“HPI”), in the third adminis trative review. The public availability of that document was not challenged. Financial st atements from Infiniti Modules were also used in the fourth administrative review, and again the public avail ability 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 t he course of the prior reviews vetting and refining the Infiniti Modules’ financial st atements 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 Resu lts 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 ava ilability 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 determini ng public availability. Instead, Catfish Farmers involved a challenge to Commerce’s us e of a proprietary auditors’ report to supplement a publicly available financial stat ement. Catfish Farmers, 33 CIT at ___, 641 F. Supp. 2d at 1377. Unlike here, Commerc e 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 availabl e financial statement as among the best available information. Id. The court, in turn, sustained as reasonable Commerce’s use of the non-public, confidentia l, auditors’ report to supplem ent a publicly available financial statement. Id. Further, Catfish Farmers does not identif y 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 info rmation was reasonable. Catfish Farmers does not provide support for Commerce’s conclu sion that the Infiniti Modules’ financialConsol. Court No. 11-00106 Page 10 statements are publicly available. Catfi sh Farmers would instead appear to lend support for the conclusion that although the ‘06-‘07 financia l statements are no longer publicly available, they may still merit c onsideration as among the best available information to calculate surrogate financial ra tios because all parties had full and fair access to otherwise reliable data. As for the missing public availability cr iteria necessary to evaluate Commerce’s decision here, Foshan Shunde directs the cour t to another administrative proceeding, contemporaneous with the Rem and Results, where Commerce applied what appears to be fairly rigorous standards for public availabi lity. 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 Rep ublic of China, 75 Fe d. Reg. 32,366 (Dep’t of Commerce June 8, 2010) (final LTFV det erm.). In that proceeding Commerce sought clarification by issuing a suppl emental questionnaire. . . . In this supplemental questionnaire, the Depa rtment requested that Petitioners provide a detailed step-by-step explanation of how they obtained Greatweld’s 2008-09 financial statem ents, 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 statem ents. If such a step-by-step explanation could not be provided, the Department requested that Petitioners provide a det ailed explanation of why they could not provide such information. In addition, the Department also asked Petitioners to provide a detailed ex planation as to the reason they believed Greatweld’s 2008-09 financ ial statements were properly described as publicly availabl e and, in providing their response, to indicate if Greatweld was required under Indi an law to publicly file its 2008-09 financial statements with any governmental authority.Consol. Court No. 11-00106 Page 11 Steel Grating Remand Result s at 19-20. Petitioners ther e provided the step-by-step process of obtaining the “1) ann ual return; 2) balance shee t; 3) schedules; 4) auditor’s report; 5) director’s report; and 6) notice,” but did not provide the st ep-by-step process of receiving the income statements. Commerce determined Greatweld’s financial statements were not publ icly available “[b]ecause the ot her interested parties to the proceeding, as well as the Department itself, do not know the steps necessary to acquire Greatweld’s 2008-09 in come statement, and, therefor e, could not acquire that data themselves . . . .” Id. at 22. In contrast, Commerce here was satisfied t hat Infiniti Modules’ statements were publicly available because “Petit ioner was able to get them directly from the company simply by requesting them,” Remand Resu lts at 7, even though respondents were apparently unsuccessful with similar reques ts. Under the standards Commerce enunciated in the Steel Grating Remand Resu lts, respondents’ inabi lity to obtain the data from the same source and in the same m anner does seem to establish that Infiniti Modules’ statements are now pu blicly unavailable. In the Remand Results Commerce casts a skeptical eye on respondents’ efforts to obtain the data from Infiniti Modules, noting that respondents never s pecifically requested the ‘06-‘ 07 data. Id. at 6-7. The court was somewhat surprised by this interp retation of the record. Although it may be technically correct, the court was under the im pression that the record made clear that respondents had made a good faith effort to obtain general financ ial information from Infiniti Modules (including more cont emporaneous financial statements), but were completely rebuffed, which then instigat ed their arguments about public availability.Consol. Court No. 11-00106 Page 12

The court will remand the i ssue 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 expl anation of Catfish Farmers. Commerce’s determination that Infiniti Modules financia l statements are publicly available remains unreasonable (unsupported by substantial evidence), an d 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, In finit[i] Modules” and to “explain its choices in this administrative review against the choices made in Folding Metal Tables and Chairs . . . .” Since Ha rdware 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 revi ew under the order, and Commerce and the parties know it well. The ‘06-‘07 Infiniti Mo dules’ financial statement s, however, are less contemporaneous than the other choices, a nd have this nagging problem with public availability. The court, for its part, remain s 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 M odules 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 av ailability is not in disput e. Commerce, nevertheless, continues to reject Maximaa’s financia l statements for the following reasons: We . . . dispute Foshan Shunde’s as sertion that Maximaa’s financial statements represent t he best available information. Foshan Shunde argues that the Department’s selecti on of Maximaa’s fi nancial 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 separat e 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 c hairs, not ironing tables. In Folding Metal Tables and Chairs, we based ourselection of Maximaa on the fact that, based on the evidence in that proceeding, “a greater proportion of Maximaa’s production appear s 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 producti on processes do not resemble that of respondent in this case and with respect to this product. . . .[T]he Department’s review of the informati on submitted by Petitioner concerning Maximaa’s financial stat ements indicated that Maximaa had increasingly become an assembler rather than a manufacturer of the merchandise. Thus, notwithstandi ng the conclusion reached in Folding Tables and Chairs that Maxi maa 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 (citati ons 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 Tabl es and Chairs from China, A-570-868 (Dec. 18, 2009), available at http://ia.ita.do c.gov/frn/summary/prc/E9-30695-1.pdf (last visited this date) (“FMTC Decision Memor andum”). Folding Metal Tables and Chairs involved merchandise similar to metal ir oning 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--meta l furniture--than Infiniti Modules, and because Maximaa was an int egrated producer while Infiniti was an assembler. FMTC Decision Memorandum at 4-5. Commerce distinguished Folding Metal Tabl es and Chairs by explaining that, in this review, Maximaa had “incre asingly 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 bec oming an assembler, while accepting the financial statements of Infiniti Modules, who was an assembler. The simple fact is that both wereConsol. 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 criter ia for selecting the best available information, Maximaa remains more cont emporaneous, has more comparable metal merchandise, and its public availability is not in dispute. On this administrative record, it is difficult to imagine a reas onable mind concluding that Ma ximaa’s financial statement is not at least as useful, if not better, t han the Infiniti Modules data. Further, Commerce has a "preference . . . to use more than one financial statement where more than one representative financial statement is avail able.” Remand Results at 14. The court, therefore, remands this issue to Commerc e to reconsider it s financial statement selection. b. Omax Since Hardware and Foshan Shunde argu e that Commerce also unreasonably excluded the ‘08-‘09 Omax fi nancial statements. In selecting fi nancial statements, Commerce is driven by a statutory preference for selecting financial statements from producers of comparable mercha ndise. 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 merc handise 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 pr oducer and therefore not an appr opriate surrogate. Final Results; see Decision Memorandum at 10-11. Respondents challenged Commerce’sConsol. Court No. 11-00106 Page 16 findings and argued that they had supplied evidence of Om ax’s production of home furnishings. The court, therefore, directed Commerce to address the evidence of Omax as a manufacturer and supplier of ironi ng 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 s uggests Omax sold ironing tables to either Ikea or Polder during eitherthe POR or the period covered by Omax’s 2008-2009 annual repo rt. We thus conclude that while Omax may have been in a position to supply ir oning tables to Polder subsequent to the end of the POR, there is insu fficient evidence to conclude that Omax was a producer of ironi ng tables during the POR. Remand Results at 12. This finding is un reasonable on an administrative record in which the Omax ‘08-‘09 financ ial statements act ually contain a pi cture 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 tabl es would include a picture of an ironing table in its financial statements as a representative product. Additionally, Polder, Inc., a company that im ported ironing tables fr om Omax, stated in a letter that Omax “has supplie d global behemoth Ik ea 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 dat ed, October 15, 2010, the “last two years” references October 2008 through Oc tober 2010. Id. This period overlaps this 2008-2009 administrative review. T herefore, Commerce unreasonably concluded that “there is no record eviden ce that suggests Omax sold ir oning 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 co vered by Omax’s 2008- 2009 annual report.” Remand Results at 12. This error though is ultimately harmle ss because Commerce’s overall decision to exclude the Omax financial stat ements remains reasonable. T he 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 estab lishes that during t he period of review (POR), Omax’s principle business comprised automotive products. Ironing tables constituted, at mos t, a very small portion of Omax’s business during Omax’s 2008-2 009 financial reporting period. As a fundamental matter, Omax ’s 2008-2009 annual report establishes that duri ng the 2008-2009 fiscal repor ting 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 stat ements, Omax lists 29 of its customers. Of those 29 customers, only one customer (Ikea) seems to be involved in the business that Omax de scribes as “home furnishings.” The rest of the customers listed by Omaxin that section of the report appear to be involved in the automotive business based upon a simple examination of the company names. The importanc e of the automotive business to Omax is further highli ghted in the account fr om Jatender Mehta, the Managing Director of Omax, which c an be found in Omax’s 2008-2009 annual report . . . . In t hat account, Mr. Mehta di scusses Omax’s financial performance during the fiscal year. In discussing the challenges that Omax faced during the 200 8-2009 fiscal reporting per iod, Mr. Mehta cites to a decline from “ World Giants like GM, Ch rysler and Ford.” Mr. Mahta [sic] also notes a downturn that was experienced by Toyota. While Mr. Mehta indicates elsewhere in this accoun t 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 hom e furnishings business, is primarily described as a business segment from which Omax expects to derive future, rather t han current, business. Mr. M ehta 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 bra nd—Ikea. This would include the desired level of quality, delivery and cost awareness within the Company. The com pany has started exports of various items under the divisi on. We are putting up a new 10 Acre plant facility at Bawa i Haryana. This plant will be operational in the 3 rd quarter of FY 09-10. From our review of the customers identified by Omax, in its 2008- 2009 Annual Report, and the account of Om ax’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, t herefore, determined Omax was primarily an auto producer based on its name, customers, and the statement s of its Managing Director. The name of the company, Omax Autos Limi ted, 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 automo tive business. Admittedly, that one customer in the hom e furnishings business is t he “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 t he automotive sector and is therefore not a suitable surrogate for the general financial rati o calculations of a metal ironing boardConsol. 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 Re sults; see Decision Memor andum at cmt. 3. Commerce used the World Bank data to calculate Foshan Shunde and Since Hardware’s brokerage and handling (“B&H”) expens es based on their respective container sizes. Id

. Foshan Shunde challenged Commerce’s reli ance on the World Bank data and the specific B&H calculations. Commerce requested a voluntar y remand to correct Foshan Shunde’s container weight an d to address Foshan Shunde’s req uested letter of credit deduction. The court granted Commerce’s vo luntary request for remand and further remanded the issue for Commerce to (1) pr epare a clear and complete public summary of its calculations of Fo shan Shunde’s B&H expense; (2 ) explain why its chosen surrogate data source and calcul ation 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 act ual shipped weight and actual shipping mode. Since Hardware at 8-9. On remand Commerce affirmed its selectio n of the World Bank data and its B&H calculation. Remand Resu lts 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] calculat ion of brokerage and handling expense. In Doing Business India, total brok erage and handling expenses are listed as follows: [See Doing Business in India - Doing Business - The World Bank Group (Doing Business India—20 10) at 37 and 84; see also HPI November 15, 2010 Case Brief at 17-18.] 1) Document Preparat ion: $350 2) Customs Clearance and te chnical 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 fo rmulae set forth, we estimated the shipment weight that would be incurr ed in a 20 foot container as follows: [This calculation is also explained at HPI Novem ber 15, 2010 Case Brief at 17-18.] D= (A*B)/C E= $645/D A represents the cubic c apacity of a 20 foot contai ner which is 33 cubic meters B represents the weight of product shipped in 40 fo ot 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 we ight 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 di vided 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 illus trated publicly through the use of hypothetical numbers. In this hypot hetical example, we continue to allocate the total pool of broker age and handling expens es ($645) from the Doing Business India— 2010 study. We assume that this respondent shipped in a 40 foot cont ainer. 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 cont ainer. 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 a ssume 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 c ontainer) 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 broker age and handling expenses were properly calculated in the Final Resu lts for the following reasons. The Department’s practice when selecting the best available information for valuing FOPs, in accordance with secti on 773(c)(1) of the Act, is to select surrogate values which are product-s pecific, 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, specif ic to the costs in question, represent a broad market average, and are cont emporaneous to the POR. *** [T]he Department has utilized such World Bank data in a number of cases including Wooden Bedroom Furnit ure from the Peop le’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 s ource of surrogate value information. World Bank data represent a reputable source of information for valuing brokerage and handling because t hose data are prepared by an independent organization and are based upon a survey derived from a broad number of producers. In cont rast, the import data offered by Foshan Shunde were limited to two freight fo rwarders (Samsora[sic] and Hapang[sic] Lloyd). While Foshan Shunde has argued t hat the import data of Samsora and Hap ang[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 ca nnot be considered interchangeable. Further, the data provided by Fo shan Shunde to link brokerage and handling expenses to Foshan Shunde’s sp ecific business si tuation fail to substantiate its claims with regard to the expenses associated with the preparation of letters of credit. As Pe titioner has demonst rated, the World Bank data upon which the Department relied constituted $350 and are comprised of eight items: 1) bill of lading, 2) ce rtificate 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 sc hedule of eight items are letter of credit expenses mentioned. More to the point, . . . Foshan Shunde has claimed a constructed letter of cred it cost of $390 which exceeds the total amount of brokerage and ha ndling 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 resultConsol. 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 substant iate its assertions that as a “rational producer” it would never in cur expenses as high as those enumerated in the Do ing 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 calculat ions, distance from a seaport is an irrelevant factor for purpo ses of calculating brokerage and handling expenses. These expenses ar e 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 th at suggested difference. Similarly, there is no information on the record of this proceeding that would permit the Department to tailor any publicly-ava ilable surrogate value data to the specific business situation experi enced by Foshan Shunde or to remove elements of brokerage and handli ng expense which Foshan Shunde claims not to have incurred. . . . Foshan Shunde’s claim that it does not incur letter of credit expenses invite s an inquiry that is beyond the scope of the issue here. The relevant ques tion is whether the World Bank data are a reliable source for general br okerage 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 repor t, 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 dat a in the World Bank report is a reasonable surrogate value because a lin e-by-line analysis is simply not possible. . . . . Foshan Shunde has also challenged the Department’s adjustment from the 40 foot containersize in which it shippe d 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 Dong guan Sunrise. . . . In sustaining the Department’s conversion from a 40 f oot to a 20 foot container size, the Court rejected Fairmont’s argument indicating: This argument fails because Fairmont has not presented evidence that brokerage cost s are based on value, notConsol. Court No. 11-00106 Page 24 volume, and do not increase pr oportionately with the number of cubic feet. The methodology employed in this re view is consistent with that employed in Dongguan Sunrise. Foshan Shunde has failed to demonstrate which, if any, of the costs included wi thin the Doing Business 2010: India data do not increase proportionately with volume. Accordingly, . . . we continue to main tain that our adjus tment for container size is supported by record evidence in this proceeding. Remand Results at 17-21, 38-40 (citat ions omitted) (emphasis added). Foshan Shunde first argues that Co mmerce’s B&H calculations are unreasonable because Commerce s hould not have relied on th e World Bank data but should have instead used the dat a from Indian freight fo rwarders: 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, cust oms brokers, port officials, and banks.” Id. at 13 (citi ng Foshan Shunde SV S ubmission 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 whet her the information collect ed in the questionnaire responses was complete or properly analyzed, much le ss 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 produc tion, in accordan ce with 19 U.S.C. § 1677b(c)(1), is to “select surrogate values which are product-specific, representative of a broad-market average, publicly availa ble, 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). Accordi ngly, Commerce calculated Foshan Shunde’s B&H costs using the World Bank’s Doing Bu siness 2010: India wh ich “reflect[s] the experience of a broad number of companies, [is] publicly available, specific to the costs in question, represent a br oad market average, and are c ontemporaneous.” Remand Results at 17-18. In contrast, Foshan S hunde's data are limite d to two sources, Samsara and Hapag-Lloyd. Commerce expl ained 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, t hey 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 s pecific to the expenses in question because the expenses reported in these data source s represent import ex penses—not export expenses. Id. at 19 ("[T]here is no documen tation on the record of this proceeding to suggest that the costs for importing merchandise parallel the costs that are related to exporting merchandise."). Co mmerce further explained that “the business of exporting is fundamentally different than the busine ss of importing and the data from these activities cannot be considered interchangeabl e.” Id. at 39. In response, FoshanConsol. 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 importe rs 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 fo r Prelim. Results, PD 77 at Ex. 2. Further, when arguing that it subm itted 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 Samsar a 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 reflec t only import data. See Foshan Shunde SV Submission for Prelim . Results, PD 77 at Ex. 2. Additionally, although Fo shan Shunde claims that c onsistent with Commerce practice, Commerce “must re ject the World Bank Do ing Business Report as unrepresentative, unreliable, and unverifiable,” FS Re mand Br. at 13, Commerce reasonably found the World Bank data to be a “reliable and accurate source.” Remand Results at 38. Commerce ex plained that the “World B ank data represent a reputable source of information for valuing brok erage and handling because those data are prepared by an independent organi zation 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 R epublic of China, 76 Fed. R eg. 9,747 (Dep’t of Commerce Feb. 22, 2011) (new shipper review final resu lts); 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 Bedroo m Furniture from the People’s Republic of China, 75 Fed. Reg. 50,992 (Dep’t of Comme rce Aug. 18, 2010) (final results admin. review); see also Dongguan Su nrise Furniture Co. v. Unit ed States, 36 CIT ___, ___, 865 F. Supp. 2d 1216, 1246 (2012) (affirming Co mmerce’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 s hould have altered the World Bank data to reflect Foshan Shunde’s actual exp enses. 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 le tter of credit expens e, Commerce should adjust the B&H by deducting amounts for letter of credit expenses. Id. at 17. Foshan Shunde explains that “the Wo rld Bank data includes costs for procuring an export letter of credit,” id. at 17, and t hat “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 lette r of credit as $390. FS Remand Br. at 17 (citi ng FS’ Br. 56.2 at 26). Commerce, however, responds that it will not adjust the B&H because t he listed items composing the B&H do not include a letter of credit expense. Remand Resu lts at 39 (“Nowhere in this schedule of eight items are letter of credit expenses mentioned.”). Mo reover, Defendant argues that Foshan Shunde’s $390 letter of credit cost “exceeds [$350,] the to tal amount of [the document preparation costs of the] brokerage and h andling expenses calculated by the WorldConsol. Court No. 11-00106 Page 28 Bank. Applying the $390 letter of credit ex pense, to the $350 . . . charges . . . would result in the nonsensical calculation of a negat ive expense.” Id. at 39 (citations omitted) (original emphasis). The B&H costs from the Word Bank dat a are composed of three categories of expenses: (1) document preparation; (2) cu stoms clearance and te chnical 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) certific ate 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 eigh t listed expenses for document preparation. Even if the letter of credit expenses ar e embedded, as Foshan Shunde argues, the court agrees that, "without knowing the exac t 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. Theref ore, Commerce's refusal to adj ust 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 prox imity 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 t hat 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 tr ansportation and handling’ are calculatedConsol. Court No. 11-00106 Page 29 elsewhere in NV calculations, distance fr om a seaport is an irrelevant factor for purposes of calculating br okerage and handling expenses. These expenses are by definition incurred at the port of export." Remand Resu lts 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 t hat suggested difference.” Id. at 19. The court does not believe this conclusion is reasonable on this administrative record. Foshan Shunde placed on the administrativ e 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 mention ed 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 t he following categories of expenses for each seaport: (1) document preparation; (2) customs clear ance and technical control; (3) ports and terminal handling; and (4) inland transportati on and handling. Id. Commerce explained that it did not include in land transportation and handling in its B&H calculations. Remand Results at 40. Commerce inst ead calculated B&H from the other three categories of costs: (1) doc ument preparation; (2) custom s clearance and technical control; and (3) ports and terminal handling. Id . at Attach. 1. Therefore, in arguing the proper B&H calculation for each seapor t, Foshan Shunde also omitted inlandConsol. Court No. 11-00106 Page 30 transportation and handling cost s from the Business Subnationa l 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 av erage B&H costs for the four seaports are $480. In contrast, based on t he aggregate data of all 17 cities, Commerce calculated $645 in B&H costs. Remand Results at Attach. 1. Therefore, even excluding inland transportation costs, t here is a $165 difference between the combined data for all 17 Indian cities and the data fr om 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 “quantif y that suggested difference.” Id. at 19, 40. Further, the court agrees with Foshan S hunde that Commerce “offer ed 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 repor ts 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 re mand this issue to Commerce to consider the World Bank data from the seaports or to provide a reasonable ex planation as to why that is not appropriate. Finally, Foshan Shunde argues that Commerce’s adjustm ent of the World Bank data from 20-foot to 40-f oot containers is unreasonabl e because B&H costs do not increase proportionally from 20-f oot to 40-foot containers. FS Remand Br. at 19-20.Consol. Court No. 11-00106 Page 31
Foshan Shunde contends that t he 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-f oot 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 contai ner size that are reflected in the World Bank data.” Defendant’s Resp. to Plaintiffs’ Comm. C oncerning Remand Results, ECF No. 100 at 19-20 (“Def. Remand Br.”); see also Repl y 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 Donggu an Sunrise v. United States , 36 CIT ___, ___, 865 F. Supp. 2d 1216, 1247 (2012), in which the co urt held Commerce’s conversion from a 20- foot to a 40-foot container r easonable. Def. Remand Br. at 20. HPI also relies on Utility Scale Wind Towers from the Pe ople'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 c apacity. HPI Remand Br. at 19. On remand, Commerce explained that “Foshan Shunde has failed to dem onstrate which, if any, of the costs included within the Doing Business 2010: India data do not increase pr oportionately withConsol. Court No. 11-00106 Page 32 [container size].” Remand Re sults 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 “bec ause [Respondent] ha[d] not presented evidence that brok erage costs are based on value, not volume, and do not increase proportionally with the number of cubic feet.” D ongguan Sunrise, 36 CIT at ___, 865 F. Supp. 2d at 1247. Similarly, in Utility Scale Wind Towe rs from the People's Republic of China, Commerce stated, “absent record evidence to the contrary, total brokerage and handling costs incr ease proportionally with a c ontainer’s capacity and, therefore, per-unit brok erage and handling rates do not change as a container’s capacity increases.” Utility Sc ale 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-f oot 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 fr om 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, Fo shan Shunde has demonstr ated that B&H costs do not increase proportionally fr om 20-foot to 40-foot c ontainers. Accordingly, Commerce unreasonably concluded that, “Fos han Shunde has failed to demonstrate, which if any, of the costs . . . do not increase proporti onately with volume.” RemandConsol. 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 recalc ulate the conversion factor. Since Hardware at 2. On remand, Comme rce changed the conversi on 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 Hardwa re’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 chall enging the cotton fabric conversion factor, Since Hardware presents a hollow argument. Since Ha rdware’s entire argument consists of the following: “[t]his Court s hould 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 specif ic to Since Hardware Draft Re mand 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 s pecific to Since Hardware” and to identify standards against which the court can evaluate t he reasonableness of Commerce’s cotton fabric valuation. Id. Since Hardware’s “argument” is all t he more difficult to countenance because the Scheduling Order specifically cautioned against just such a submission: Please be advised that the court will not pe rmit 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 toConsol. Court No. 11-00106 Page 34 resolve them. Instead, the cour t 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 conclusi ons 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 ex press instructions of the Scheduling Order, the court deems this issue waived and sustains Commerc e'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. Unit ed 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 calculat ed the surrogate labor wage rate using data from the International St andard Classification of all Ec onomic Activities (“ISIC”) Revision 3 rather than ISIC Revision 2. Fi nal Results; see Decision Memorandum at 16. The court in Since Hardware rem anded 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 Ha rdware at 9-11. The court rejected SinceConsol. Court No. 11-00106 Page 35 Hardware and Foshan Shunde’s argument that Commerce must use data from India because “the statute does not m andate Commerce must, as a ma tter 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 ident ified even one country included in Commerce’s analysis that failed ei ther standard, leaving that work to the court or the other interested parties. Id. Consequently, t he 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 dat a reported by countri es either under the International Standard Industr ial Classification (ISIC) Re vision 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 ha ve selected India alone to calculate the surrogate wage rate. SH Br. at 19-20. The court previously rejected this argument in Since Hardware, and Commerc e’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, 138 0 (2012); opinion after remand, Home Prods. Int’l, Inc. v. United States, 36 CIT ___, ___, 837 F. Supp. 2d 1294, 1297 (2012); opinion after re mand, Home Prods. Int’l, In c. v. United States, 36Consol. 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 statem ent selection is remanded to reconsider the exclusion of the Maximaa financial statements; it is further ORDERED that Commerce’s brokerage and handl ing 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 surr ogate valuation is sustained; it is further ORDERED that Commerce shall file its rem and 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