Jiaxing Brother Fastener Co. v. United States , 822 F.3d 1289 ( 2016 )

United States Court of Appeals
for the Federal Circuit
______________________
JIAXING BROTHER FASTENER CO., LTD., AKA
JIAXING BROTHER STANDARD PARTS CO., LTD.,
AKA RMB FASTENERS LTD., AKA IFI & MORGAN
LTD.,
Plaintiff-Appellant
v.
UNITED STATES, VULCAN THREADED
PRODUCTS, INC.,
Defendants-Appellees
______________________
2015-1161
______________________
Appeal from the United States Court of International
Trade in No. 1:12-cv-00384-LMG, Judge Leo M. Gordon.
______________________
Decided: April 21, 2016
______________________
GREGORY S. MENEGAZ, DeKieffer & Horgan, PLLC,
Washington, DC, argued for plaintiff-appellant. Also
represented by JOHN J. KENKEL, JAMES KEVIN HORGAN,
ALEXANDRA H. SALZMAN.
ALEXANDER V. SVERDLOV, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for defendant-appellee
United States. Also represented by ELIZABETH ANNE
2 JIAXING BROTHER FASTENER CO. v. US
SPECK, BENJAMIN C. MIZER, JEANNE E. DAVIDSON,
PATRICIA M. MCCARTHY; LISA W. WANG, Office of the Chief
Counsel for Trade Enforcement and Compliance, United
States Department of Commerce, Washington, DC.
FREDERICK PAUL WAITE, Vorys, Sater, Seymour &
Pease LLP, Washington, DC, argued for defendant-
appellee Vulcan Threaded Products, Inc. Also represented
by KIMBERLY YOUNG.
______________________
Before O’MALLEY, REYNA, and CHEN, Circuit Judges.
REYNA, Circuit Judge.
Appellants appeal a decision of the U.S. Court of In-
ternational Trade that affirmed a U.S. Department of
Commerce determination to select Thailand as the surro-
gate country for China in the second administrative
review of an antidumping duty order on certain steel
threaded rod from China. 1 We hold that the U.S. De-
partment of Commerce decision to use surrogate values
from Thailand to value certain factors of production in
calculating normal value for the subject merchandise was
in accordance with law, not arbitrary or capricious, and
supported by substantial evidence. We affirm.
BACKGROUND
Appellants are Jiaxing Brother Fastener Co., Ltd.
(aka Jiaxing Brother Standard Parts Co., Ltd.), IFI &
Morgan Ltd., and RMB Fasteners Ltd. (collectively,
“Appellants” or “Jiaxing”). Jiaxing Brother Fastener Co.,
1 Certain Steel Threaded Rod from the People’s Re-
public of China: Final Results and Final Partial Rescis-
sion of Antidumping Duty Administrative Review; 2010–
2011, 77 Fed. Reg. 67,332, 67,333 (Dep’t of Commerce
Nov. 9, 2012).
JIAXING BROTHER FASTENER CO. v. US 3
Ltd. is a Chinese manufacturer of steel threaded rod,
while IFI & Morgan Ltd. and RMB Fasteners Ltd. are
Chinese exporters of the steel threaded rod produced by
Jiaxing Brother Fastener Co., Ltd. Appellants are affili-
ated parties. J.A. 8. Appellants challenge the U.S. De-
partment of Commerce (“Commerce”) decision to select
Thailand as the surrogate country to establish normal
value in the second administrative review of the anti-
dumping duty order on certain steel threaded rod from
China. See Certain Steel Threaded Rod from the People’s
Republic of China: Notice of Antidumping Duty Order, 74
Fed. Reg. 17,154 (Dep’t of Commerce Apr. 14, 2009).
In antidumping proceedings involving nonmarket
economy countries, such as China, the Tariff Act requires
Commerce to calculate normal value of the subject mer-
chandise based on surrogate values offered in a compara-
ble market economy. See 19 U.S.C. § 1677b(c)(1).
Commerce calculates the surrogate values by valuing
certain “factors of production” used in producing the
merchandise in a comparable market economy. 2 Id. §
1677b(c)(4). In essence, Commerce seeks to construct a
hypothetical normal value for the merchandise that is
uninfluenced by the nonmarket economy. See Nation
Ford Chem. Co. v. United States, 166 F.3d 1373, 1375
(Fed. Cir. 1999); see also 19 U.S.C. § 1677(18)(A) (defining
“nonmarket economy country”). To do this, Commerce
selects a market economy country as the primary surro-
gate country. 19 C.F.R. § 351.408(c)(2). The process of
choosing a market economy country to value the factors of
production is known as surrogate country selection. See
2 The factors of production “include, but are not lim-
ited to . . . hours of labor required, . . . quantities of raw
materials employed, . . . amounts of energy and other
utilities consumed, and . . . representative capital cost,
including depreciation.” 19 U.S.C. § 1677b(c)(3).
4 JIAXING BROTHER FASTENER CO. v. US
Dorbest Ltd. v. United States, 604 F.3d 1363, 1368 (Fed.
Cir. 2010).
As early as 2004, Commerce has followed a four-step
process to select a surrogate country:
(1) the Office of Policy (“OP”) assembles a list of
potential surrogate countries that are at a compa-
rable level of economic development to the [non-
market economy] country; (2) Commerce identifies
countries from the list with producers of compa-
rable merchandise; (3) Commerce determines
whether any of the countries which produce com-
parable merchandise are significant producers of
that comparable merchandise; and (4) if more
than one country satisfies steps (1)–(3), Com-
merce will select the country with the best factors
data.
Vinh Hoan Corp. v. United States, 49 F. Supp. 3d 1285,
1292 (Ct. Int’l Trade 2015) (internal quotation marks
omitted) (quoting Import Admin., U.S. Dep’t of Com-
merce, Non-Market Economy Surrogate Country Selection
Process, Policy Bulletin 04.1 (2004),
http://enforcement.trade.gov/policy/bull04-1.html (last
visited Feb. 11, 2014)).
The statute directs Commerce to value the factors
of production through “the best available information” in
the market economy. 19 U.S.C. § 1677b(c)(1). We have
noted that Commerce has discretion to determine what
constitutes the best available information, as this term is
not defined by statute. QVD Food Co. v. United States,
658 F.3d 1318, 1323 (Fed. Cir. 2011). “Commerce general-
ly selects, to the extent practicable, surrogate values that
are publicly available, are product-specific, reflect a broad
market average, and are contemporaneous with the
period of review.” Qingdao Sea-Line Trading Co. v.
United States, 766 F.3d 1378, 1386 (Fed. Cir. 2014).
JIAXING BROTHER FASTENER CO. v. US 5
Using the best available information, Commerce
“shall [value the factors of production] to the extent
possible . . . in one or more market economy countries that
are—(A) at a level of economic development comparable to
that of the nonmarket economy country, and (B) signifi-
cant producers of comparable merchandise.”
§ 1677b(c)(4)(A)–(B) (emphases added). The statute does
not define “comparable”; nor does it require Commerce to
use any particular methodology in determining which
countries are sufficiently comparable. To partially fill the
statutory gap, Commerce promulgated 19 C.F.R.
§ 351.408(b), which emphasizes per capita Gross Domestic
Product (“GDP”) as a measure of economic comparability:
In determining whether a country is at a level of
economic development comparable to the non-
market economy under [19 U.S.C.
§ 1677b(c)(1)(B)] or [19 U.S.C. § 1677b(c)(4)(A)] of
the Act, the Secretary will place primary empha-
sis on per capita GDP as the measure of economic
comparability.
19 C.F.R. § 351.408(b).
At least by 2007, Commerce began relying on per cap-
ita Gross National Income (“GNI”), as opposed to per
capita GDP, for determining sufficiently comparable
countries. According to Commerce, “while the two
measures are very similar, per capita GNI is reported
across almost all countries by an authoritative source (the
World Bank),” and Commerce “believes that the per
capita GNI represents the single best measure of a coun-
try’s level of total income and thus level of economic
development.” Vinh Hoan, 49 F. Supp. 3d at 1293 n.5
(quoting Antidumping Methodologies in Proceedings
Involving Non-Market Economy Countries: Surrogate
Country Selection and Separate Rates, 72 Fed. Reg.
13246, 13246 n.2 (Dep’t of Commerce Mar. 21, 2007)).
6 JIAXING BROTHER FASTENER CO. v. US
Following its preference to use one surrogate country
as the reference point, 19 C.F.R. § 351.408(c)(2), when
several countries are both at a level of economic develop-
ment comparable to the nonmarket economy country and
significant producers of comparable merchandise, Com-
merce evaluates the reliability and completeness of the
data in the similarly-situated surrogate countries and
generally selects the one with the best data as the prima-
ry surrogate country. 3
In April 2008, Commerce instituted the underlying
antidumping duty investigation on certain steel threaded
rod from China. 4 In April 2009, Commerce made a final
affirmative determination that a U.S. industry was mate-
rially injured by sales at less-than-fair value of the mer-
chandise subject to the scope of the investigation. 5 In
2009, Commerce issued an antidumping duty order on the
3 See Import Admin., U.S. Dep’t Commerce, Non-
Market Economy Surrogate Country Selection Process,
Policy Bulletin 04.1 (2004), http://enforcement.trade.gov
/policy/bull04-1.html (last visited Jan. 21, 2016) (“[D]ata
quality is a critical consideration affecting surrogate
country selection. After all, a country that perfectly
meets the requirements of economic comparability and
significant producer is not of much use as a primary
surrogate if crucial factor price data from that country are
inadequate or unavailable.”).
4 See Steel Threaded Rod from the People’s Republic
of China: Initiation of Antidumping Duty Investigation,
73 Fed. Reg. 17,318–23 (Dep’t of Commerce Apr. 1, 2008).
5 See Certain Steel Threaded Rod from the People’s
Republic of China: Notice of Antidumping Duty Order, 74
Fed. Reg. 17,154 (Dep’t of Commerce Apr. 14, 2009).
JIAXING BROTHER FASTENER CO. v. US 7
subject merchandise. 6 For purposes of both the prelimi-
nary and final determinations, Commerce selected India
as the surrogate country on which to base the Chinese
producers’ factors of production. 7 Appellants were re-
spondents in the investigation and were assigned anti-
dumping duty rates of 55.16%. 8
The Second Administrative Review
On May 27, 2011, Commerce initiated a second ad-
ministrative review for the period of review from April 1,
2010, though March 31, 2011. 9 The second administra-
tive review is the subject of this appeal.
At the outset of the second administrative review,
Commerce proposed seven countries as potential surro-
gate countries on the basis that they had a per capita GNI
close to China:
Country Per Capita GNI, 2010 (USD)
China $4,260
Philippines $2,050
Indonesia $2,580
Ukraine $3,010
Thailand $4,210
6 See Certain Steel Threaded Rod from the People’s
Republic of China: Notice of Antidumping Duty Order, 74
Fed. Reg. 17,154 (Dep’t of Commerce Apr. 14, 2009).
7 See Certain Steel Threaded Rod from the People’s
Republic of China: Final Determination of Sales at Less
Than Fair Value, 74 Fed. Reg. 8907, 8909 (Dep’t of Com-
merce Feb. 27, 2009).
8 See Certain Steel Threaded Rod From the People’s
Republic of China: Notice of Antidumping Duty Order, 74
Fed. Reg. 17,154, 17,156 (Apr. 14, 2009).
9 See Initiation of Antidumping and Countervailing
Duty Administrative Reviews, 76 Fed. Reg. 30,912 (Dep’t
of Commerce May 27, 2011).
8 JIAXING BROTHER FASTENER CO. v. US
Peru $4,710
Columbia $5,510
South Africa $6,100
J.A. 28–29. With a per capita GNI of $1,340, India was
not included on the list. J.A. 27–29. 10
After publishing the list of surrogate country candi-
dates, Commerce invited interested parties to comment on
the selection of an appropriate surrogate country for
China. 11 Vulcan Threaded Products, Inc. (“Vulcan”)
submitted data from Thailand, arguing that Thailand was
the best choice. Jiaxing urged Commerce to use India as
the surrogate country. 12 J.A. 61–62, 821. Of the addi-
tional countries proposed by other parties, none were
within the per capita GNI range noted on the list. J.A.
25, 821, 1384–85.
In its April 2012 preliminary decision on the second
administrative review, Commerce selected Thailand as
the most appropriate market economy to act as the surro-
gate country to China. J.A. 811–35. 13 Commerce evalu-
10 Memorandum, Antidumping Duty Order on Cer-
tain Steel Threaded Rod from the People’s Republic of
China (Dep’t of Commerce Nov. 18, 2011).
11 See J.A. 821; Certain Steel Threaded Rod From
the People’s Republic of China: Preliminary Results of
Administrative Review, Intent to Rescind, and Rescission,
in Part, 77 Fed. Reg. 27,022, 27025 (Dep’t of Commerce
May 8, 2012).
12 See J.A. 61–64; Second Administrative Review of
Steel Threaded Rod from China: Petitioner’s Comments
on Surrogate Country Selection (Feb. 3, 2012).
13 See J.A. 821; Certain Steel Threaded Rod From
the People’s Republic of China: Preliminary Results of
Administrative Review, Intent to Rescind, and Rescission,
JIAXING BROTHER FASTENER CO. v. US 9
ated Global Trade Atlas (“GTA”) data and determined
that all countries on the surrogate country list exported
significant quantities of steel threaded rod and could be
considered significant producers of comparable merchan-
dise. J.A. 820–21. After considering the reliability and
availability of surrogate value data, Commerce chose
Thailand as the primary surrogate country because the
Thai information on record was “complete,” allowing
Commerce to value material inputs, energy, movement
expenses, and financial ratios. J.A. 821–22. To value
financial ratios, Commerce used the 2010 annual report of
the Thai company Capital Engineering Network Public
Company Limited (“CEN”). J.A. 821–22, 828–43. To
value the steel and hydrochloric acid (“HCl”) inputs,
Commerce used Thai GTA import statistics. J.A. 824–25,
838–41. Commerce did not consider India as a surrogate
country because the Indian data was less economically
comparable to China than the Thai data. J.A. 820–21.
Following the preliminary decision, Jiaxing submit-
ted briefing, arguing that Commerce should use India as
the primary surrogate country, with the Philippines as an
alternative to India. J.A. 1384–85.
On November 9, 2012, Commerce published the final
results of the second administrative review, selecting
Thailand as the surrogate country. 14 J.A. 1, 1384–94.
Commerce again explained that India’s per capita GNI
was not at a level of economic development comparable to
China. J.A. 1385–87. As between Thailand and the
in Part, 77 Fed. Reg. 27,022 (Dep’t of Commerce May 8,
2012).
14 Certain Steel Threaded Rod from the People’s Re-
public of China: Final Results and Final Partial Rescis-
sion of Antidumping Duty Administrative Review; 2010–
2011, 77 Fed. Reg. 67,332, 67,333 (Dep’t of Commerce
Nov. 9, 2012).
10 JIAXING BROTHER FASTENER CO. v. US
Philippines, observing that both countries were signifi-
cant producers of comparable merchandise, Commerce
determined that the Thai data was the best available
information on record. J.A. 1387–88. Commerce ex-
plained that the cost of steel wire rod was the factor with
the greatest significance and impact on normal value.
According to Commerce, the Thai information was the
most specific data available for this critical factor. J.A.
1389.
Procedural History
On November 28, 2012, Jiaxing appealed the final re-
sults to the Court of International Trade (“Trade Court”),
arguing that Commerce erred in selecting Thailand as the
primary surrogate country over India and the Philippines.
J.A. 1441.
On February 6, 2014, the Trade Court affirmed Com-
merce’s exclusion of India as a potential surrogate coun-
try, but remanded for clarification on the basis for
selecting Thailand as the surrogate country. Jiaxing
Brother Fastener Co. v. United States (Jiaxing I), 961 F.
Supp. 2d 1323, 1335 (Ct. Int’l Trade 2014). The Trade
Court found that India did not satisfy Commerce’s re-
quirements for economic comparability. Id. at 1329–32.
Comparing India’s per capita GNI of $1,340 against
China’s per capita GNI of $4,260, the Trade Court con-
cluded that “it is difficult to envision how India would
have been a reasonable or defensible choice on this ad-
ministrative record.” Id. at 1329. Taken together,
“Commerce’s only real choice was not between India and
Thailand, but between Thailand and the Philippines.” Id.
at 1332. The Trade Court remanded for reconsideration
of Commerce’s selection of Thailand over the Philippines.
Id. at 1332–35. Although the Trade Court found the Thai
data “apparently more specific,” the Trade Court deter-
mined that Commerce had not adequately explained
whether the more specific Thai input data on steel out-
JIAXING BROTHER FASTENER CO. v. US 11
weighed the “apparent comparative strengths” of the
Philippine data on financial statements and HCl. Id. at
1334–35. The Trade Court further instructed Commerce
to reassess its preference for using a single surrogate
country to source all data to calculate normal value. Id.
On May 9, 2014, Commerce again found on remand
that Thailand offered superior data for calculating normal
value. 15 J.A. 1422–40. Commerce observed that both the
Philippines and Thailand offered financial statements
that met its administrative requirements. J.A. 1424–27.
Commerce also found that both the Philippine and Thai
data for HCl were specific, contemporaneous, and reliable.
J.A. 1427–32. Noting the parity between the two candi-
date countries, Commerce emphasized the importance of
steel wire rod:
Given that steel threaded rod is a type of steel
fastener drawn from steel wire rod or steel round
bar, in this case, these steel inputs are the most
important [factors of production] to consider in
the proper valuation of steel threaded rod. In
fact, nearly all manufacturing costs were derived
from the main steel inputs, and consist of a large
majority of the [normal value].
J.A. 1432. Because one input dominated Jiaxing’s factors
of production, Commerce found that the Thai steel data
was superior and outweighed any weakness in the Thai
financial statements or HCl input data. J.A. 1432. Jiax-
ing appealed Commerce’s remand redetermination.
On September 25, 2014, the Trade Court affirmed the
remand redetermination. Jiaxing Brother Fastener Co. v.
United States (Jiaxing II), 11 F. Supp. 3d 1326, 1333 (Ct.
15 Results of Redetermination Pursuant to Jiaxing
Brother Fastener Co., Ltd. v. United States Court No. 12-
00384, Slip Op. 14-12 (February 6, 2014) (May 9, 2014).
12 JIAXING BROTHER FASTENER CO. v. US
Int’l Trade 2014). The Trade Court reasoned that the cost
of steel wire rod drove almost the entire value of steel
threaded rod and that the Thai financial information
provided by CEN was representative of Jiaxing’s financial
ratios. Id. at 1330–32. Reviewing Commerce’s selection
of Thailand over the Philippines, the Trade Court deter-
mined that the Thai import data identified specific grades
of steel with varying carbon content that could be
matched to the low-carbon grade of steel used by Jiaxing,
while the Philippine import data provided broader catego-
ries that were not as specific. Id. at 1330–32. The Thai
data also provided values for all factors of production,
whereas the Philippine data set was missing certain
values. Id. at 1333.
Jiaxing appeals. We have jurisdiction under 28
U.S.C. § 1295(a)(5) (2012).
STANDARD OF REVIEW
We review Trade Court decisions de novo, applying
the same standard used by the Trade Court when review-
ing Commerce decisions. Downhole Pipe & Equip., L.P. v.
United States, 776 F.3d 1369, 1373 (Fed. Cir. 2015) (cita-
tion omitted). Under that standard, we will uphold
Commerce’s determinations 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).
Substantial evidence is “more than a mere scintilla”
and amounts to what a “reasonable mind might accept as
adequate to support a conclusion.” Downhole, 776 F.3d at
1374 (quoting Consol. Edison Co. of N.Y. v. NLRB, 305
U.S. 197, 229 (1938)). Our review is limited to the record
before Commerce in the particular review proceeding at
issue and includes all “evidence that supports and de-
tracts” from Commerce’s conclusion. Sango Int’l L.P. v.
United States, 567 F.3d 1356, 1362 (Fed. Cir. 2009). An
agency finding may still be supported by substantial
evidence even if two inconsistent conclusions can be
JIAXING BROTHER FASTENER CO. v. US 13
drawn from the evidence. Downhole, 776 F.3d at 1374
(citing Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620
(1966)).
We review de novo whether Commerce erred in inter-
preting a governing statute. PSC VSMPO-Avisma Corp.
v. United States, 688 F.3d 751, 763 (Fed. Cir. 2012) (citing
Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837 (1984)). 16
DISCUSSION
Jiaxing argues that Commerce’s choice of Thailand as
the surrogate country over India and the Philippines was
erroneous on three distinct grounds. 17 First, Jiaxing
16 Although the parties agree that the statute at is-
sue is clear, they disagree as to whether Commerce’s
interpretation conflicts with the statute’s express terms.
Because the parties do not argue that the statutory lan-
guage is ambiguous, we assume, without deciding, that
the language is unambiguous. Accordingly, in this case,
we address whether Commerce gave “effect to the unam-
biguously expressed intent of Congress,” a review con-
ducted without affording deference to the agency.
Chevron, 467 U.S. at 842.
17 At the outset, we consider the government’s con-
tention that Jiaxing waived two issues on appeal. First,
the government argues that Jiaxing failed to argue before
the Trade Court that Commerce erred in not addressing
production comparability when selecting the preliminary
list of surrogate country candidates. Second, the govern-
ment argues that Jiaxing did not address below its trans-
parency/consistency concerns as to the shift away from
India as a surrogate country to China. Jiaxing counters
that those issues are subject to this appeal because they
stem from the findings and conclusions in Jiaxing I and
Jiaxing II, some of which could not be raised until now.
14 JIAXING BROTHER FASTENER CO. v. US
argues that Commerce’s decision to exclude India reflects
erroneous interpretations of the antidumping statute and
findings not supported by substantial evidence. Second,
Jiaxing contends that the selection of Thailand was
arbitrary and capricious because India has traditionally
served as the surrogate country, and there is no legal
basis for Commerce to depart from its long-standing
practice. Third, Jiaxing asserts that the selection of
Thailand is not supported by substantial evidence. We
take each argument in turn.
Commerce’s Decision to Exclude India
We first address whether Commerce’s decision to not
consider India as a potential surrogate country is based
on a permissible construction of the statute. As noted
above, neither party argues that the statute is ambiguous.
We therefore are left to determine whether Commerce’s
decision to not consider India as a surrogate country (or a
surrogate country candidate) conflicts with the statute’s
express terms. See United States v. Eurodif S.A., 555 U.S.
305, 322 (2009).
Reviewing the decisions below, we find that those issues
are subsumed in the arguments below and appear proper-
ly before us because Jiaxing asserted that the underlying
statute was interpreted and applied erroneously to ex-
clude India from consideration as a surrogate country
candidate. We do, however, agree with the government’s
contention that Jiaxing waived another argument on
appeal—its argument that Commerce set forth the GNI
band width without any reasoned explanation for its
choice. As the government points out, Jiaxing failed to
make this argument during the administrative and trial
proceedings, and we decline to consider it for the first
time on appeal.
JIAXING BROTHER FASTENER CO. v. US 15
We discern nothing in the statute that requires Com-
merce to consider any particular country as a surrogate
country. When Congress does not mandate a procedure or
methodology for applying a statutory test, “Commerce
may perform its duties in the way it believes most suita-
ble.” See JBF RAK LLC v. United States, 790 F.3d 1358,
1364 (Fed. Cir. 2015) (internal quotation marks and
citation omitted). Here, Commerce has provided reasoned
analysis in support of its surrogate country determina-
tion, which we find to be supported by substantial evi-
dence.
Commerce’s Selection of Thailand over India
We next consider Jiaxing’s assertion that Commerce
has a long and established practice of using India as a
surrogate country and that its selection of Thailand was
contrary to law and unsupported by substantial evidence.
Jiaxing notes that India has been a surrogate country to
China for nearly three decades. To suddenly not include
India on the list of alternative surrogate countries demon-
strates, in Jiaxing’s view, a lack of transparency and an
inconsistency with Commerce’s past practices, which in
turn causes a lack of predictability for nonmarket re-
spondents. In Clearon, Jiaxing argues, the Trade Court
remanded for reconsideration of the proper surrogate
country because Commerce, with no justification, depart-
ed from its past practices by not identifying India as a
candidate. See Clearon Corp. v. United States, 36 I.T.R.D.
(BNA) 788, 2014 Ct. Intl. Trade LEXIS 88, at *23 (Ct.
Int’l Trade July 24, 2014) (“The need for an agency to
adequately address a departure from past practice is a
compelling justification for a remand request.”). Accord-
ing to Jiaxing, Clearon demonstrates the influential role
that India has played over the years as a surrogate to
China. We disagree that Commerce is forever bound by
its past practices.
16 JIAXING BROTHER FASTENER CO. v. US
The record demonstrates that Commerce considered
Jiaxing’s arguments that favored India, and that its
rejection of them during the second administrative review
was consistent with the antidumping statute and sup-
ported by substantial evidence:
India, though, had a per capita GNI of $1,340,
whereas [China] had a per capita GNI of $4,260.
Given that disparity, as well as the availability of
surrogate value data from two other economically
comparable countries, Commerce’s decision to not
select India appears reasonable; it is difficult to
envision how India would have been a reasonable
or defensible choice on this administrative record.
....
[Jiaxing], however, omit[s] from [its] analysis oth-
er apparent “material factors of economic compa-
rability” contained on the administrative record
that tend to demonstrate greater similarities be-
tween [China] and Thailand than [China] and In-
dia, including per capita GDP, life expectancy,
adult literacy, and GDP composition by sector of
origin.
....
India therefore could never be a reasonable choice
because at least one country, the Philippines, sat-
isfies the statutory criterion of economic compa-
rability, whereas India does not. [Jiaxing’s]
argument about the qualitative superiority of In-
dian data compared to Thai data ultimately con-
centrates on a false choice.
Jiaxing I, 961 F. Supp. 2d at 1329, 1330–32 (citations
omitted).
That India has a long history as serving as the surro-
gate country to China does not mean Commerce is re-
JIAXING BROTHER FASTENER CO. v. US 17
strained from considering the adequacy of other countries
to serve that role. Commerce is required to base surro-
gate country selection on the facts presented in each case,
and not on grounds of perceived tradition. “[E]ach admin-
istrative review is a separate exercise of Commerce’s
authority that allows for different conclusions based on
different facts in the record.” Qingdao, 766 F.3d at 1387.
There is no legal requirement that India serve as a surro-
gate country to China. Clearon, 36 I.T.R.D. (BNA) 788,
2014 Ct. Intl. Trade LEXIS 88, at *34 (“Commerce is not
required by statute or regulation to select the same surro-
gate country it did in previous reviews, or the country
with largest economy, or the most populated country . . .
.”). Nor did the selection process lack transparency.
Commerce reviewed the parties’ comments submitted
after it issued the list of potential surrogate countries,
and Commerce provided notice of its preliminary and
final determinations—even though Commerce was not
required to give prior notice that it had selected Thailand
over India. Cf. Tehnoimportexport v. United States, 766 F.
Supp. 1169, 1175 (Ct. Int’l Trade 1991) (holding
that Commerce had no obligation to notify the parties
beforehand that it had chosen a different surrogate coun-
try for the final determination than it used in the initial
determination). We hold that Commerce’s past practice
alone of selecting India as the surrogate country does not
restrain Commerce from selecting a country other than
India to serve as the surrogate country.
Commerce’s Selection of Thailand over the
Philippines
We next address whether Commerce’s selection of
Thailand over the Philippines as the surrogate country
was contrary to law and not supported by substantial
evidence. Jiaxing argues that Commerce erred in (1)
relying on the financial statement of the Thai corporation
CEN, (2) emphasizing the value of steel over other inputs,
and (3) favoring Thai HCl data over Philippine HCl data.
18 JIAXING BROTHER FASTENER CO. v. US
First, Jiaxing argues that the CEN financial state-
ment was not the best available information available in
the record. In addition to CEN’s financial statement, the
record contains four Indian and four Philippine financial
statements. Jiaxing argues that Commerce’s use of the
CEN financial statement is unreasonable because CEN’s
principal business is investment, not steel production.
J.A. 661. Jiaxing cites a previous Commerce decision that
CEN was not a manufacturer of steel wire rod. 18 Jiaxing
also challenges the accuracy of the CEN financial state-
ment, arguing that the statement does not provide cost
breakouts and that the record lacked an original-
language-translation version of the statement. Jiaxing
further asserts that CEN is a beneficiary of “concession-
ary tax rates,” which skews the data.
Second, Jiaxing asserts that Commerce erred in em-
phasizing steel inputs at the expense of non-conforming
data. Jiaxing notes that the Thai wire rod values are 40%
higher than the world market prices, and that Vulcan
recently sued Thailand for dumping and injuring the U.S.
steel threaded rod industry. 19
Jiaxing further argues that the Thai import value for
HCl is questionable because the data are inconsistent
with the value of domestic Thai HCl products and the
import value of HCl products shipped by other countries
to Thailand. J.A. 12–14.
18 See Steel Wire Garment Hangers From the People’s
Republic of China: Antidumping Duty Administrative
Review, 2010-2011, 77 Fed. Reg. 66952 (Nov. 8, 2012)
(“Wire Hangers”).
19 See Steel Threaded Rod From Thailand: Prelimi-
nary Determination of Sales at Less Than Fair Value and
Affirmative Preliminary Determination of Critical Cir-
cumstances, 78 Fed. Reg. 79670 (Dep’t of Commerce Dec.
31, 2013).
JIAXING BROTHER FASTENER CO. v. US 19
We conclude that Commerce’s selection of Thailand
over the Philippines as the surrogate country is reasona-
ble and supported by substantial evidence. The question
here is not whether the information Commerce used was
the best available, but rather whether a reasonable mind
could conclude that Commerce chose the best available
information. Zhejiang DunAn Hetian Metal Co. v. United
States, 652 F.3d 1333, 1341 (Fed. Cir. 2011).
We also conclude that Commerce reasonably relied on
the CEN financial statement, and that substantial evi-
dence supports Commerce’s findings. The record shows
that only three of the Philippine financial statements are
relevant because one company produces steel wire mesh
fencing, which is not drawn from wire rod. J.A. 1393–94.
Although CEN was primarily an investment company,
one of its subsidiaries produced pre-stressed concrete
wire, which is drawn from wire rod. CEN also generated
almost 50% of its income in 2010 from wire industries.
J.A. 629. In addition, the CEN financial statement pre-
sented financial ratios similar to Jiaxing. J.A. 1393.
Jiaxing’s argument that Commerce’s rejection of
CEN’s financial statement in Wire Hangers compels the
same result in this case is unpersuasive. We agree with
the Trade Court that the CEN data in this case is differ-
ent than that in Wire Hangers:
The CEN data at issue in this review is not the
same as the CEN data in Wire Hangers. The Wire
Hangers review focused on a CEN financial
statement from 2011 whereas this record features
a CEN annual report from 2010. [Vulcan] clari-
fies that the 2010 annual report on this record in-
cludes CEN’s 2010 financial statement as well as
extra details about the operations of CEN’s sub-
sidiaries. Commerce also explains that steel
threaded rod and wire hangers do not have identi-
cal manufacturing processes or inputs.
20 JIAXING BROTHER FASTENER CO. v. US
Jiaxing II, 11 F. Supp. 3d at 1330 (emphases in original
and internal citations omitted).
Commerce correctly rejected arguments that CEN re-
ceived certain concessionary taxes that could have
skewed the CEN data. The record evidence shows that
any concessionary taxes that were received by CEN
occurred outside the relevant review period. In addition,
there is no record evidence that the CEN financial state-
ment was translated inaccurately or was otherwise erro-
neous.
Commerce’s decision to emphasize the steel input was
reasonable and supported by substantial evidence. Jiax-
ing does not dispute that steel is the main input and
primary driver of cost for steel threaded rod. Though the
data may be imperfect, the administrative record sup-
ports the conclusion that the Thai data identified a low
carbon variety that matches more closely to the main
input of the subject merchandise than the data that
Jiaxing proposes. Home Meridian Int’l, Inc. v. United
States, 772 F.3d 1289, 1296 (Fed. Cir. 2014) (“The data on
which Commerce relies to value inputs must be the ‘best
available information,’ but there is no requirement that
the data be perfect.”).
Commerce’s choice to prioritize steel costs over other
inputs is also not erroneous because almost all Jiaxing’s
production costs are subsumed by the cost of steel. See
Downhole Pipe, 776 F.3d at 1380 (endorsing the use of a
“primary input” to calculate surrogate value). That Thai
steel prices are unusually high does not in this case
necessarily imply that the prices are aberrant where the
evidence shows that Thai steel was superior to Philippine
steel. See Downhole Pipe, 776 F.3d at 1380 (rejecting that
an “aberrantly high” value is “outside the bounds of
commercial reality,” and holding that the value was “the
best evidence available on the record”).
JIAXING BROTHER FASTENER CO. v. US 21
Finally, we find no error in Commerce’s determination
to use Thai import statistics to value HCl, a conclusion in
accordance with its administrative preference to appraise
surrogate values from a single surrogate country. See 19
C.F.R. §351.408(c)(2). The record evidence shows that the
HCl import statistics from India and Thailand were
equally usable (both were specific, contemporaneous, and
represented broad market averages), so Commerce’s
choice to use the Thai import statistics is supported by
substantial evidence.
CONCLUSION
Commerce’s decision to select Thailand as the surro-
gate country on which to base Chinese cost of production,
values was reasonable, supported by substantial evidence,
not arbitrary or capricious, and otherwise in accordance
with law. The decision of the Trade Court is affirmed.
AFFIRMED
COSTS
Each party shall bear its own costs.