Slip Op. 12-4 

UNITED STATES COURT OF INTERNATIONAL TRADE 

HOME PRODUCTS INTERNATIONAL, 

INC., 

 Plaintiff, 

 v. 

UNITED STATES, 

 Defendant. 

Before: Leo M. Gordon, Judge 

Consol. Court No. 11-00104 

OPINION and ORDER 

[Administrative review results remanded.] 

 Dated: January 6, 2012 

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

Washington, DC for Plaintiff Home Products International, Inc. 

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

U.S. Department of Justice, of Washington, D.C. for defendant. With her on the brief 

were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director and Patricia 

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

the Chief Counsel for Import Administration, International Department of Commerce of 

Washington, D.C. for Defendant United States. 

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

Defendant-Intervenor Since Hardware (Guangzhou) Co., Ltd. 

 Gordon, Judge: This consolidated action involves an administrative review 

conducted by the U.S. Department of Commerce (“Commerce”) of the antidumping duty 

order covering Floor-Standing, Metal-Top Ironing Tables from China. See FloorStanding, Metal-Top Ironing Tables and Certain Parts Thereof from the People’s 

Republic of China, 76 Fed. Reg. 15,295 (Dep’t of Commerce Mar. 21, 2011) (final 
Consol. Court No. 11-00104 Page 2 

results admin. review) (“Final Results”); see also Issues and Decision Memorandum for 

Ironing Tables from China, A-570-888 (Mar. 20, 2011), available at 

http://ia.ita.doc.gov/frn/summary/PRC/2011-6560-1.pdf (last visited Jan. 6, 2012) 

(“Decision Memorandum”). Before the court are motions for judgment on the agency 

record filed by Home Products International, Inc. (“HPI”) and Since Hardware 

(Guangzhou) Co., Ltd. (“Since Hardware”). 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). 

 HPI challenges Commerce’s determination to use the market economy purchase 

price for Since Hardware’s cartons. Since Hardware challenges Commerce’s (1) 

selection of a financial statement for use in the surrogate financial ratio, and (2) 

surrogate value determination for labor.2 For the reasons set forth below, the court 

remands the Final Results to Commerce to address certain aspects of its surrogate 

value determination for labor. 

I. Standard of Review 

 For administrative reviews of antidumping duty orders, the court 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 

 

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 challenged Commerce’s surrogate value determination for 

brokerage and handling, which the court decided on procedural grounds in a prior order. 
Consol. Court No. 11-00104 Page 3 

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.” Dupont Teijin Films USA v. United States, 407 F.3d 1211, 1215 (Fed. Cir. 

2005) (quoting 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). 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. 2011). 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. 

2011). 

 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. Dupont, 407 F.3d 1211, 1215; 

Agro Dutch Indus. Ltd. v. United States, 508 F.3d 1024, 1030 (Fed. Cir. 2007). 

“[S]tatutory interpretations articulated by Commerce during its antidumping proceedings 

are entitled to judicial deference under Chevron.” Pesquera Mares Australes Ltda. v. 
Consol. Court No. 11-00104 Page 4 

United States, 266 F.3d 1372, 1382 (Fed. Cir. 2001); see also Wheatland Tube Co. v. 

United States, 495 F.3d 1355, 1359 (Fed. Cir. 2007) (“[W]e determine whether 

Commerce's statutory interpretation is entitled to deference pursuant to Chevron.”). 

II. Discussion 

A. Cartons 

Although Commerce generally uses data from a surrogate market economy 

country to value inputs for a respondent operating in a non-market economy, if the 

respondent purchases an input in sufficient quantity from a market economy, 

Commerce values those inputs based on the purchase price paid. 19 C.F.R. § 

351.408(c)(1). Commerce has adopted a rebuttable presumption that market economy 

purchase prices are the best available information if the total purchased volume 

exceeds 33 percent of the total volume of that input’s purchases. See Antidumping 

Methodologies: Market Economy Inputs, Expected Non-Market Economy Wages, Duty 

Drawback; and Request for Comments, 71 Fed. Reg. 61,716, 61,717-719 (Dep’t of 

Commerce Oct. 19, 2006) (“market economy input methodology”). 

Applying the market economy input methodology, Commerce determined that 

Since Hardware purchased more than 33 percent of its cartons from a market economy 

source, and that the market economy price was the best available information to value 

cartons. In its administrative case brief HPI contended that Since Hardware’s carton 

input consisted of two inputs, cartons and corrugated paper, and that if separated, the 

33 percent threshold would not be met. HPI Case Brief at 11-13, PR 82.3 In the Final 

 

3

 “PR __” refers to a document contained in the public administrative record. 
Consol. Court No. 11-00104 Page 5 

Results Commerce did not share HPI’s “inferences and assumptions,” Clearon Corp. v. 

United States, 35 CIT ___, ___, 800 F. Supp. 2d 1355, 1361 (2011), and continued to 

treat cartons as one input. 

In its brief before the court, HPI again contends that Since Hardware’s carton 

input should be divided into two separate factors of production—a cartons factor and a 

corrugated paper factor. Home Products Br. at 3-4, ECF No. 29. The available record 

evidence, however, demonstrates that Since Hardware reported the carton input as one 

factor, Since Hardware treats the input as one factor, and Commerce verified Since 

Hardware’s input as one factor. See Since Hardware Section D Response PR 17; 

Verification Memorandum, PR 51. The court cannot identify any record evidence that 

demonstrates that Since Hardware purchased cartons as two inputs (cartons and 

corrugated paper). For example, Home Products might have included on the 

administrative record affidavits or invoices from its own experience with cartons, or 

obtained information from Since Hardware’s supplier (as it did for brokerage and 

handling) demonstrating that the supplier sells cartons as two items, not one. See QVD 

Food Co. v. United States, 658 F.3d 1318, 1324 (Fed. Cir. 2011) (“[T]he burden of 

creating an adequate record lies with [interested parties] and not with Commerce.”) 

(internal quotation marks and citation omitted). In short, Commerce’s finding that Since 

Hardware’s cartons are one factor and not two is reasonable. Commerce’s treatment of 

Since Hardware’s cartons input must therefore be sustained. 
Consol. Court No. 11-00104 Page 6 

B. Surrogate Financial Statements 

Since Hardware only filed a rebuttal brief during the administrative proceeding 

and did not challenge Commerce’s selection of surrogate financial statements. See 

November 17, 2010 Letter from Since Hardware to Commerce, PR 83. In its brief 

before the court, Since Hardware raises for the first time issues relating to the selection 

of surrogate financial statements, issues that it could have raised before the agency in 

its case briefs. Since Hardware has therefore failed to exhaust its administrative 

remedies. See 28 U.S.C. § 2637(d); Carpenter Tech. Corp. v. United States, 30 CIT 

1373, 1374-75, 452 F. Supp. 2d 1344, 1346 (2006) (citing Woodford v. Ngo, 548 U.S. 

81, 88-90 (2006)); see also 19 C.F.R. § 351.309(c)(2). Accordingly, Commerce’s 

selection of financial statements is sustained. 

C. Labor Wage Rage 

When determining surrogate labor rates, Commerce is required “to utilize, to the 

extent possible,” data from one or more market economy countries that are both 

economically comparable to the non-market economy at issue, and “significant 

producers of comparable merchandise.” 19 U.S.C. § 1677b(c)(4); Dorbest Ltd. v. United 

States, 604 F.3d 1363, 1372–73 (Fed. Cir. 2010) (invalidating portion of Commerce’s 

labor regulation, 19 C.F.R. § 351.408(c)(3)). In the Final Results Commerce valued 

labor using an average, industry-specific wage rate calculated from earning or wage 

data under Chapter 5B of the International Labor Organization (“ILO”) Yearbook on 

Labor Statistics. See Industry Specific Wage Rate Selection Memorandum, PR 71. 

Commerce relied on industry-specific labor data from multiple countries that Commerce 
Consol. Court No. 11-00104 Page 7 

determined were economically comparable to China and significant producers of 

comparable merchandise. Id. Commerce, however, did not utilize wage data from the 

primary surrogate country, India. Id.

Since Hardware challenges Commerce’s valuation of the labor wage rate, 

arguing that wage data from India is the best available information to value labor. Since 

Hardware contends that this result is mandated by 19 U.S.C. § 1677b(c)(4), Dorbest, 

and Shandong Rongxin Import & Export Co. v. United States, 35 CIT ___, 774 F. Supp. 

2d 1307 (2011), as well as Commerce’s subsequently announced policy changes for 

the calculation of labor wage rates in NME proceedings, Antidumping Methodologies in 

Proceedings Involving Non-Market Economies: Valuing the Factor of Production: Labor, 

76 Fed. Reg. 36,092 (June 21, 2011) (“New Labor Wage Rate Policy”). 

These authorities, however, do not mandate the result that Since Hardware 

desires. As the court in Shandong explained: “The Court finds groundless [the] 

argument that Commerce was obligated to utilize data from a single country to value 

labor. This argument is untenable in the face of a statute, agency regulation, and CAFC 

case law, which all explicitly permit the agency to utilize data from multiple countries.” 

Shandong, 35 CIT at ___, 774 F. Supp. 2d at 1314. Commerce may, as a matter of 

gap-filling discretion, decide to use only one country when valuing labor (an approach it 

has since adopted in its New Labor Wage Rate Policy), but nothing in the authorities 

relied upon by Since Hardware mandates that result. 

For Since Hardware to obtain the relief it desires, (an order from the court 

directing Commerce to use only Indian wage data to value labor), the administrative 
Consol. Court No. 11-00104 Page 8 

record must support the conclusion that India, and India alone, is both economically 

comparable to China and a significant producer of comparable merchandise. Since 

Hardware, though, never makes that specific argument. Instead, Since Hardware 

argues that Commerce’s use of HTS categories at the six-digit, instead of the 10-digit, 

level was “overly broad,” inflating the measure of exports from countries that Commerce 

identified as “significant producers.” Since Hardware Br. at 7, ECF No. 30. Missing 

from this argument, however, is any explanation why the measure is “overly broad.” 

One might surmise that Since Hardware is arguing that the six-digit level includes 

merchandise that is not “comparable” to the subject merchandise, as required by 19 

U.S.C. § 1677b(c)(4). That argument, in turn, would implicate an analysis of the 

meaning of the word “comparable”, together with an analysis of the information on the 

administrative record on the scope of the six and ten-digit HTS categories. For 

whatever reason though, Since Hardware chose not to fully develop its argument that 

Commerce’s approach was “overly broad,” leaving the court to deem the issue waived, 

and sustain Commerce’s use of multiple countries to calculate the surrogate value for 

the labor wage rate. 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 
Consol. Court No. 11-00104 Page 9 

work, create the ossature for the argument, and put flesh on its bones.”) (internal 

citations omitted). 

Moving on, Since Hardware does raise one issue from Commerce’s labor wage 

rate determination that merits a remand: Commerce’s selection of the industry-specific 

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

Commerce selected ISIC Revision 3 instead of Revision 2 because it was more 

contemporaneous, but it does not include data from India (the primary surrogate), which 

did not report data in Revision 3. See Decision Memorandum at 5. The court in 

Shandong reviewed an identical issue, providing a detailed explanation of the potential 

unreasonableness of excluding Indian data from the labor calculus: 

The Court is less sanguine, however, about the reasons Commerce 

cites for excluding Indian labor data, which was reported under ISIC–

Rev.2, from the group of countries ultimately providing the labor rate, all of 

which reported data under ISIC–Rev.3. While the agency has made clear 

that it prefers “to use data from a single ISIC revision to ensure 

consistency of the industry category,” the Court finds Commerce's 

justification for this preference lacking and inconsistent. The Indian wages 

and earnings data reported to the ILO appears to meet all other criteria 

identified by the agency, including quality, specificity, and 

contemporaneity. Indian ILO labor data was reported for a year close to 

the period of review—2006—and was reported at a more specific 3–digit 

level of the ISIC than the 2–digit–level data relied on by Commerce. Also, 

India reported a combined earnings figure for men and women, in 

accordance with Commerce's preference, and the agency does not 

dispute that the ISIC–Rev.2 Indian labor data includes the pencil industry. 

To dismiss such apparently valuable data without further explanation is 

unjustified. Moreover, refusing to use ISIC–Rev.2 data contradicts what 

the agency has repeatedly identified as a paramount interest: generating 

the broadest basket of countries possible to value labor. Commerce has 

cited the need for a broad basket of countries to justify using less 

contemporaneous data, Remand Results at 28, and to attempt to justify 

the inclusion of labor data from countries with minuscule amounts of 

exports, (Def.'s Resp. at 14.). The inconsistency with which Commerce 

has asserted the need for a broad basket of countries warrants a remand. 
Consol. Court No. 11-00104 Page 10 

Commerce has broad discretion to determine which criteria it will use to 

sort and prioritize the data it uses in making its determination. The Court's 

role is to ensure that Commerce's sorting and prioritizing decisions are 

reasonable and consistently applied. In this case, the Court finds that most 

of Commerce's sorting and prioritizing decisions are well justified, such as 

the decision to use earnings data if available, and wages data if not, and 

the choice only to utilize data reported for both sexes. The decision to 

insist that data be reported under a common ISIC revision, however, is not 

supported by substantial evidence on the record. On remand, if 

Commerce still wishes to omit all labor data that a qualifying country 

reported under ISIC–Rev.2, it must explain why the need for consistency 

across ISIC revisions predominates over the need for a broad basket of 

countries to value labor. Alternatively, if Commerce determines that the 

chief value is to have the broadest feasible basket of countries, 

Commerce is instructed to review which qualifying countries have reported 

data under a prior ISIC revision which satisfy the agency's other 

requirements. 

Shandong, 35 CIT at ___, 774 F. Supp. 2d at 1315. This is persuasive. Accordingly, 

the court will remand this issue to Commerce to address these specific issues, and if 

necessary, include Indian data in its calculation. 

Finally, Since Hardware challenges Commerce’s choice of ISIC Classification 28 

(metal fabricated products), as opposed to ISIC Classification 36 (manufacture of metal 

furniture) as one of the proper surrogate value data sources for ironing tables. 

Commerce carefully explained its choice of ISIC Classification 28 on page 3 of its 

Industry Specific Wage Rate Selection Memorandum and again in the Decision 

Memorandum at 5-6. Commerce’s choice and its accompanying explanations appear 

more than reasonable on this administrative record. 

Since Hardware favors ISIC Classification 36 (manufacture of metal furniture) on 

the ground that ISIC Classification 28 (metal fabricated products) may cover items other 

than ironing tables, but Since Hardware fails to establish that ISIC Classification 36 
Consol. Court No. 11-00104 Page 11 

(manufacture of metal furniture) only covers ironing tables. Since Hardware also fails to 

explain why or how this issue adversely affects the surrogate labor value for the subject 

merchandise. (For example, do labor rates vary widely among the products covered by 

ISIC Classification 28? And conversely, are labor rates consistently uniform for the 

items covered by ISIC Classification 36?). Also missing from Since Hardware’s 

argument is any consideration of how ISIC Classification 36, when compared to ISIC 

Classification 28, yields a much more accurate surrogate labor value for ironing tables. 

 Whatever the merits of ISIC Classification 36 may be (and Since Hardware has 

not adequately explained what they are), substantial evidence review contemplates that 

for a given data selection issue, two or more reasonable though inconsistent choices 

are possible on the same administrative record. See Catfish Farmers of Am. v. United 

States, 33 CIT ___, ___, 641 F. Supp. 2d 1362, 1366 (2009) (“The administrative record 

for an antidumping duty administrative review may support two or more reasonable, 

though inconsistent, determinations on a given issue.”). See also CITIC Trading Co. v. 

United States, 27 CIT 356, 366 (2003) (“while the standard of review precludes the 

court from determining whether [Commerce's] choice of surrogate values was the best 

available on an absolute scale, the court may determine the reasonableness of 

Commerce's selection of surrogate prices.”). With this framework in mind, and given an 

administrative record containing a thorough and reasonable explanation justifying the 

selection of ISIC Classification 28, the court must conclude that Since Hardware’s 

arguments for an alternative ISIC Classification are without merit. Commerce’s choice 

of ISIC Classification 28 is therefore sustained. 
Consol. Court No. 11-00104 Page 12 

III. Conclusion

For the foregoing reasons the court will remand this action to Commerce to 

reconcile its exclusion of Indian wage data with Shandong. Accordingly, it is hereby 

ORDERED that this action is remanded to Commerce to reconcile 

its exclusion of Indian labor data with the concerns raised by the court in 

Shandong; and it is further 

ORDERED that Commerce shall file its remand results on or before 

February 15, 2012; 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: January 6, 2012 

 New York, New York