Dorbest Ltd. v. United States

Slip-Op. 06-160

UNITED STATES COURT OF INTERNATIONAL TRADE

- - - - - - - - - - - - - - - -- -x

DORBEST LTD.; RUI FENG WOODWORK :

(DONGGUAN) CO. LTD.; RUI FENG :

LUMBER DEV. (SHENZHEN) CO. LTD., :

:

and :

:

AM. FURNITURE MFRS. COMM. FOR :

LEGAL TRADE; VAUGHAN-BASSETT :

FURNITURE CO. INC.; CABINET :

MAKERS, MILLMEN, & INDUS. :

CARPENTERS LOCAL 721; UBC S. :

COUNCIL OF INDUS. WORKERS LOCAL :

2305; UNITED STEEL WORKERS OF AM. :

LOCAL 193U; CARPENTERS INDUS. :

UNION LOCAL 2093; TEAMSTERS, :

CHAUFFEURS,WAREHOUSEMEN & HELPERS :

LOCAL 991; IUE INDUS. DIV. OF CWA :

LOCAL 82472 :

:

Plaintiffs/Defendant- :

Intervenors, :

:

v. : Before: Pogue, Judge

: Consol. Ct. No. 05-00003

UNITED STATES, :

:

Defendant, :

:

DONGGUAN LUNG DONG/DON HE :

ART HERITAGE INT’L, LTD/SUPER ART :

FURNITURE CO./ARTOWRK METAL & :

PLASTIC CO./JIBSON INDUS. LTD./ :

ALWAYS LOYAL INT’L; FORTUNE GLORY :

LTD. (HK LTD.)/ NANHAI JIANTAI :

WOODWORK CO.; FINE FURNITURE :

(SHANGHAI) LTD.; COASTER CO. OF :

AM.; COLLEZIONE EUROPA, USA, :

INC.; FINE FURNITURE DESIGN & :

MKTG. LLC; GLOBAL FURNITURE, INC.,:

HILLSDALE FURNITURE, LLC; :

KLAUSSNER INT’L, LLC; MAGNUSSEN :

HOME FURNISHINGS INC.; :

L. POWELL CO.; RIVERSEDGE :

FURNITURE CO.; WOODSTUFF MFG. :

INC., D/B/A SAMUEL LAWRENCE; :

SCHNADIG CORP.; GOOD COS.; :

STANDARD FURNITURE MFG. CO. :

:

Defendant-Intervenors. :

- - - - - - - - - - - - - - - ----x

[Commerce’s determination sustained in part and remanded in

part].

Consolidated Ct. No. 05-00003 Page 2

Kaye Scholer, LLP (Jeffrey S. Grimson, Donald B. Cameron, Julie

C. Mendoza, R. Will Planert, Brady W. Mills, Jahna M. Hartwig) for

Dorbest Limited et al.;

King & Spalding, LLP (Joseph W. Dorn, Stephen A. Jones, Jeffrey

M. Telep, J. Michael Taylor) for the American Furniture

Manufacturers Committee for Legal Trade et al.;

Peter D. Keisler, Assistant Attorney General; David M. Cohen,

Director, Patricia M. McCarthy, Assistant Director, Commercial

Litigation Branch, Civil Division, U.S. Department of Justice (Brian

A. Mizoguchi, Michael D. Panzera); Rachel Wenthold and Carrie L.

Owens, Attorneys, Of Counsel, Office of Chief Counsel for Import

Administration, U.S. Department of Commerce, for the United States

Department of Commerce;

Mowry International Group, LLC (Jill Cramer and Kristin H.

Mowry) on behalf of Art Heritage International, Limited et al.; and

Trade Pacific, PLLC (Robert G. Gosselink) on behalf of Dongguan

Lung Dong/Dong He et al.

OPINION

Decided: October 31, 2006

POGUE, Judge: This matter arises from an affirmative antidumping

duty determination by the Department of Commerce (“Commerce”) in its

investigation of wooden bedroom furniture from the People’s Republic

of China (“PRC”). Plaintiffs challenge numerous aspects of that

determination here. Before the court are USCIT R. 56.2 Motions for

Judgment on the Agency Record filed by the parties, specifically by

Dorbest Limited et al (“Dorbest” also known as “Respondents”), the

American Furniture Manufacturers Committee for Legal Trade et al.

(“AFMC” also the “Petitioners” in the investigation), and Commerce.

For the reasons set forth below, the court grants in part each of

Consolidated Ct. No. 05-00003 Page 3

these motions and denies in part each of these motions; the court

also reserves decision on several issues pending the results on

remand.

BACKGROUND

A.

On December 17, 2003, Commerce commenced an antidumping

investigation of wooden bedroom furniture from the PRC in response

to a petition filed by the domestic industry. See Wooden Bedroom

Furniture from the People’s Republic of China, 68 Fed. Reg. 70,228

(Dep’t Commerce Dec. 17, 2003) (initiation of antidumping duty

investigation).1 The investigation covered more than 211 Chinese

1

In investigations of merchandise produced in non-market

economies (“NMEs”), if the “prices of the goods produced in an

NME are subject to discrepancies which distort their value,”

Magnesium Corp. of Am. v. United States, 20 CIT 1092, 1095, 938

F. Supp. 885, 890 (1996), the antidumping statute authorizes

Commerce to approximate normal value based on the cost of

producing the foreign merchandise (with a margin of profit

factored in), see 19 U.S.C. § 1677b(c)(2000). To value these

factors of production and profit, Commerce must use the “best

available” pricing and cost data for the factors of production

taken from “surrogate” economies/companies. Id.

Antidumping investigations are bifurcated between Commerce

and the International Trade Commission (“ITC”). The ITC makes

injury determinations and Commerce makes less-than-fair value

("LTFV") determinations. If the ITC determines that a domestic

industry is materially injured or is threatened with material

injury and Commerce determines that the merchandise is being

sold at LTFV, Commerce issues an antidumping order directing the

United States Customs Service to collect antidumping duties

“equal to the amount by which the normal value exceeds the export

price (or the constructed export price) for the merchandise.” 19

U.S.C. § 1673 (2000). The “export price” or “constructed export

price” is the price at which the subject merchandise is sold in

(continued...)

Consolidated Ct. No. 05-00003 Page 4

exporters/producers of wooden bedroom furniture making this one of

the largest investigations involving PRC companies. See Wooden

Bedroom Furniture from the People's Republic of China, 69 Fed. Reg.

35,312, 35,313 (Dep’t Commerce June 24, 2004) (notice of preliminary

determination and postponement of final determination) (“Preliminary

Determination”). The period of investigation (“Period of

Investigation” or “POI”) encompassed imports of the subject

merchandise from April 1, 2003 through September 30, 2003. Commerce

rendered an affirmative less than fair value determination for the

subject merchandise and imposed the antidumping duty order and

dumping margins that are at issue here. Wooden Bedroom Furniture

from the People's Republic of China, 69 Fed. Reg. 67,313, 67,317

(Dep't Commerce Nov. 17, 2004)(notice of final determination of

sales at less than fair value) (“Final Determination”) amended by

Wooden Bedroom Furniture from the People’s Republic of China, 70

Fed. Reg. 329, 330 (Dep't Commerce Jan. 4, 2005) (notice of amended

final determination of sales at less than fair market value and

antidumping duty order) (“Amended Final Determination”).

More specifically, Commerce determined that the PRC is an NME

country and that available information did not permit the foreign

market value of the merchandise to be determined as it would in a

1

(...continued)

the United States market. 19 U.S.C. § 1677a. “Normal value” is

the price of the foreign merchandise in its country of origin, in

an appropriate third country, or the foreign product’s cost of

production. See 19 U.S.C. § 1677b.

Consolidated Ct. No. 05-00003 Page 5

market economy. See Preliminary Determination, 69 Fed. Reg. at

35,318. Consequently, Commerce derived the respondent’s normal

value through aggregating the surrogate costs of the factors of

production required to produce the product. See id. at 35,324.

Because of the large number of companies under investigation,

pursuant to 19 U.S.C. § 1677f-1(c)(2)(B), Commerce limited its

investigation to the seven largest manufacturers of wooden bedroom

furniture from the PRC.2 Among these seven was Respondent Dorbest.

See Preliminary Determination, 69 Fed. Reg. at 35,318.

In the investigation, Commerce chose India as the surrogate

country and chiefly relied on a data set referred to as the Monthly

Statistics of Foreign Trade in India (“MSFTI”) to value the factors

of production (numbering over 500). Id.; Id. at 35,324; Memorandum

from James H. Jochum to Jeffrey A. May, Issues and Decision

Memorandum for the Less-Than-Fair-Value Investigation of Wooden

Bedroom Furniture from the People’s Republic of China, at 41 (Cmt.

2), Dep’t of Commerce (November 8, 2004), P. R. Doc. 1933, available

at http://ia.ita.doc.gov/frn/summary/prc/04-25507-1.pdf (“Issues &

Decision Mem.”). Likewise, Commerce used nine financial statements

from Indian companies to calculate profit, overhead, and general

expenses. Id. at 23. For its calculation of the wage rate,

2

Other aspects of Commerce’s final determination here were

challenged in Decca Hospitality Furnishings, LLC v. United

States, 29 CIT ___, 391 F. Supp. 2d 1298(2005) and Guangzhou

Maria Yee Furnishings, Ltd. v. United States, 29 CIT ___,___, 412

F. Supp. 2d 1301 (2005).

Consolidated Ct. No. 05-00003 Page 6

Commerce ran a regression to determine the relationship between

nations’ per capita Gross National Product and their wage rates;

Commerce then multiplied the resulting coefficient by the PRC’s per

capita gross national product to derive China’s wage rate. See

Wooden Bedroom Furniture from the People’s Republic of China: Final

Results of Redetermination Pursuant to Court Remand Orders (Dep’t

Commerce Aug. 1, 2005) (“Remand Determination”).

B.

The court must sustain a final determination in an antidumping

duty investigation if that determination is supported by substantial

evidence on the record and is otherwise in accordance with law. 19

U.S.C. § 1516a(b)(1)(B)(i) (2000); Ta Chen Stainless Steel Pipe,

Inc. v. United States, 298 F.3d 1330, 1335 (Fed. Cir. 2002).

The parties here have collectively alleged more than a score

of issues requiring review, some with multiple subparts. To issue

a coherent opinion, the court has grouped the issues as follows: (1)

Commerce’s selection of data sets, specifically, (a) Commerce’s use

of Indian surrogate data to value the factors of production,

(b)Commerce’s use of the MSFTI, (c) Commerce’s calculation of the

wage rate, and (d) Commerce’s selection of surrogate companies for

the calculation of profit, overhead, and selling, general and

administrative expenses (collectively “financial ratios”); (2)

Commerce’s valuation of certain specific factors of production; (3)

Consolidated Ct. No. 05-00003 Page 7

other individual company-specific protests; and (4) the application

(or lack thereof) of adverse inferences in Commerce’s selection of

facts otherwise available.

For ease of reference, the discussion is organized as follows:

I. DATA SETS . . . . . . . . . . . . . . . . . . . . . . . . . 9

A. Selection of Surrogate Countries . . . . . . . . . . 15

(1) Evaluation of Indonesian Data . . . . . . . . . 19

(2) Commerce’s finding that India was a producer of the

comparable merchandise . . . . . . . . . . . . 22

(4) Weighing the choice between Indonesia and India

. . . . . . . . . . . . . . . . . . . . . . . 26

B. Monthly Statistics of Foreign Trade in India . 29

(1) In general . . . . . . . . . . . . . . . . . . 29

(2) MSFTI as a primary data set . . . . . . . . . 31

(3) MSFTI as applied to individual factors. . . . . 34

a) Mirrors . . . . . . . . . . . . . . . . . . 37

(i) Imported Mirrors As Inputs . . . . . 38

(ii) Glass Yug . . . . . . . . . . . . . 40

(iii)Tarun Vadehra, Highland House and

Goldfindo . . . . . . . . . . . . . 44

(iv) The MSFTI data is either non-inclusive or

distortive of mirror inputs . . . . 46

Consolidated Ct. No. 05-00003 Page 8

(v) Infodrive India . . . . . . . . . . . 47

(vi) Commerce’s evaluation . . . . . . . 54

(b) Paints . . . . . . . . . . . . . . . . . . 57

(c) Cardboard . . . . . . . . . . . . . . . . 62

C. Wage rate . . . . . . . . . . . . . . . . . . . 64

(1) Facial Challenge . . . . . . . . . . . . . . . 66

(2) As Applied Invalidity . . . . . . . . . . . . . 68

(a) Creation of the Regression Model . . . . . 71

(i) Notice and Comment Rulemaking . . . . 74

(ii) Deadlines . . . . . . . . . . . . . 77

(b) Distortion of Regression Model . . . . . . 77

(3) Proper Data Set . . . . . . . . . . . . . . . . 83

D. Financial Ratios . . . . . . . . . . . . . . . . 87

II. VALUING SPECIFIC FACTORS OF PRODUCTION . . . . . . . . . 105

(A) Hooks and Connectors . . . . . . . . . . . . . . . . 107

(B) Hinges . . . . . . . . . . . . . . . . . . . . . . . 110

(C) Resin . . . . . . . . . . . . . . . . . . . . . . . 111

(D) Styrofoam . . . . . . . . . . . . . . . . . . . . . 113

(E) Cardboard . . . . . . . . . . . . . . . . . . . . . 116

(F) Iron Components . . . . . . . . . . . . . . . . . . 119

III. DISCRETE COMPANY-SPECIFIC ISSUES . . . . . . . . . . . . 121

(A) Voluntary Remand Issues . . . . . . . . . . . . . . 122

Consolidated Ct. No. 05-00003 Page 9

(B) Zeroing . . . . . . . . . . . . . . . . . . . . . . 124

IV. FACTS OTHERWISE AVAILABLE/ADVERSE INFERENCES . . . . . . 128

(A) Factor Inputs . . . . . . . . . . . . . . . . . . . 134

(B) Wood Scraps . . . . . . . . . . . . . . . . . . . . 137

V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . 139

I. DATA SETS

As noted above, because pricing information in NMEs is largely

unreliable, section 223 of the Tariff Act of 1930, 19 U.S.C.

§ 1677b(c)(1)3 authorizes Commerce to approximate the cost of

production with pricing information from “surrogate” countries and

companies. The court notes that the antidumping duty statute both

authorizes and requires that "the valuation of the factors of

production shall be based on the best available information

regarding the values of such factors in a market economy country or

countries considered to be appropriate by the administering

authority." 19 U.S.C. § 1677b(c)(1) (emphasis added); see also

Globe Metallurgical, Inc. v. United States, 28 CIT ___,___, 350 F.

Supp. 2d 1148, 1156-57 (2004).

3

Hereinafter cited as 19 U.S.C. § 1677 et. seq. 2000 ed.

Consolidated Ct. No. 05-00003 Page 10

The term “best available” is one of comparison, i.e., the

statute requires Commerce to select, from the information before it,

the best data for calculating an accurate dumping margin. The term

“best” means “excelling all others.” II Oxford English Dictionary

139(2d 1989); Webster’s II New Riverside University Dictionary 168

(1988) (“[e]xceeding all others in excellence, achievement, or

quality”). This “best” choice is ascertained by examining and

comparing the advantages and disadvantages of using certain data as

opposed to other data. See Guangdong Chemicals Imp. & Exp. Corp.

v. United States, 30 CIT __, Slip Op. 06-142, at 8 (Sept. 18, 2006).

In calculating factors of production, Commerce typically

employs data sets. Court review of whether Commerce’s data set

selection is the “best available information” addresses whether the

particular selection is supported by substantial evidence and

whether it is in accordance with law. Whether a data set selection

issue is factual or legal, i.e., reviewed for substantial evidence

or for its accordance with law, depends on the question presented.

If the question is whether Commerce may use a particular piece of

data, whether Commerce may use a factor in weighing the choice

between two data sources, or what weight Commerce may attach to such

a factor, the question is legal. Cf. Writing Instrument Mfrs. Ass’n

v. U.S. Dep’t of Commerce, 21 CIT 1185, 1187-88, 984 F. Supp. 629,

634 (1997); Lasko Metal Prods., Inc. v. United States, 43 F.3d 1442,

1446 (Fed. Cir. 1994); Nation Ford Chem. Co. v. United States, 166

Consolidated Ct. No. 05-00003 Page 11

F.3d 1373, 1377 (Fed. Cir. 1999). If the question is whether

Commerce should have used a particular piece of data, when viewed

among alternative available data, or what weight Commerce should

attach to a price or data, the question is factual. Cf. Shandong

Haurong Machinery Co., v. United States, 29 CIT __,__, Slip Op 05-54

at 10 (2005); Yantai v. United States, 26 CIT 605, 607, 610-612

(2002).

In reviewing legal issues presented here, the court applies the

two-step inquiry of Chevron U.S.A. Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837, 842-843 (1984). Accordingly, Commerce

has considerable discretion in selecting a data source. See Nation

Ford Chem. Co. v. United States, 166 F.3d at 1377. Commerce’s

exercise of its discretion, however, must still have fidelity to its

statutory mandate. Statutorily, Commerce has a duty to ensure that

dumping margins are calculated as accurately as possible.

See, e.g., Allied-Signal Aerospace Co. v. United States, 996 F.2d

1185, 1190 (Fed. Cir. 1993); Rhone Poulenc, Inc. v. United States,

899 F.2d 1185, 1191 (Fed. Cir. 1990). This rule applies with equal

force to imports from an NME. S. Rep. No. 100-71 at 106 (1987)

(Committee on Finance)(“[t]he Committee is particularly concerned

that imports from certain nonmarket economy countries, such as the

Peoples Republic of China, not be unfairly disadvantaged by use of

the new methodology where price differences can be accounted for in

whole or in part by quality differences in the imported

Consolidated Ct. No. 05-00003 Page 12

merchandise.”).

On factual issues, the court's role “is not to evaluate whether

the information Commerce used was the best available, but rather

whether a reasonable mind could conclude that Commerce chose the

best available information.” Goldlink Indus. Co. v. United States,

30 CIT , , 431 F. Supp. 2d, 1323, 1327 (2006); see also CITIC

Trading Co. v. United States, 27 CIT , , Slip Op. 03-23 at 16

(Mar. 4, 2003) (“while the standard of review precludes the court

from determining whether Department’s [sic] 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.”); cf. Klein v. Peterson, 866 F.2d 412, 414 (Fed. Cir.

1989) (reconciling an agency’s duty to find clear and convincing

evidence of misconduct with the court’s substantial evidence

standard of review as “a reasonable mind could have found the

evidence of misconduct clear and convincing”).

For the court to conclude that a reasonable mind would support

Commerce’s selection of the best available information, Commerce

needs to justify its selection of data with a reasoned explanation.

Cf. Lasko Metal Prods. v. United States, 43 F.3d 1442, 1446 (Fed.

Cir. 1994); see Olympia Indus., Inc. v. United States, 22 CIT 387,

390, 7 F. Supp. 2d 997, 1001 (1998) (“Commerce has an obligation to

review all data and then determine what constitutes the best

information available or, alternatively, to explain why a particular

Consolidated Ct. No. 05-00003 Page 13

data set is not methodologically reliable”). In doing so, Commerce

must “conduct a fair comparison of the data sets on the record” with

regard to its announced method or criteria. Allied Pac. Food

(Dalian) Co. v. United States, 30 CIT __, __, 435 F. Supp. 2d 1295,

1313-14 (2006).

The court must also recognize that Commerce has limited

resources and is under time constraints and, therefore, a certain

level of imprecision is not unreasonable. See Geum Poong Corp. v.

United States, 26 CIT 991, 995 (2002). In addition, choosing the

best data requires expertise and, on occasion, judgment. See Lasko

Metal Prods., 43 F.3d at 1446; cf. Motor Vehicle Mfrs. Ass’n of

U.S., Inc. v. State Farm Mut. Aut. Ins. Co., 463 U.S. 29, 52 (1983)

("It is not infrequent that the available data do not settle a

regulatory issue, and the agency must then exercise its judgment in

moving from the facts and probabilities on the record to a policy

conclusion."). Accordingly, parties and courts may aspire to, but

cannot demand, perfection. Moreover, “the court may not substitute

its judgment for that of the [agency] when the choice ‘is between

two fairly conflicting views, even though the court would

justifiably have made a different choice had the matter been before

it de novo.’” Goldlink Ind. Co. v. United States, 30 CIT at __, 431

F. Supp. 2d at 1326 (quoting Am. Spring. Wire Corp. v. United

States, 8 CIT 20, 22 (1984).

Another related principle that may seem obvious, but is

Consolidated Ct. No. 05-00003 Page 14

relevant here, is that Commerce’s findings or conclusions rendered

in equations or numeric form are not beyond scrutiny. Id.; accord

Geum Poong, 26 CIT at 995. Scrutiny of surrogate values is

important because they are proxies -- they are not actual costs but

estimates based on the best available information. If the proxy

values selected prove unrepresentative, reliance on them defeats

their purpose, namely, to derive a dumping margin that is as

accurate as possible. See, e.g., Goldlink Indus., 30 CIT at __,

Slip Op. 06-65 at 27-28. Hence, if Commerce selects a particular

data set that is demonstrably unrepresentative or distortional, a

reasonable mind may rightly question how such a selection could be

the “best.” It may in fact be the best available information, but

affirming Commerce’s choice requires a reasoned explanation from

Commerce that is supported by the administrative record.

In considering Commerce’s announced criteria, an additional

consideration is that merely enlarging the size of an

unrepresentative data set does not necessarily mean that a

reasonable mind can conclude that the data set is the best available

on the administrative record. Data sets need not be large

(proportional to all possible data points) if the means of selecting

the data points is statistically sound, e.g., statistical sampling.

Similarly, a large but biased data set is of limited (if any)

probative value. Cf. Bazemore v. Friday, 478 U.S. 385, 400 (1986).

For example, a researcher attempting to assess the literacy rate in

Consolidated Ct. No. 05-00003 Page 15

the United States who surveys every college graduate in the country

would create a large data set that has absolutely no probative

value; however, a researcher who randomly samples a few thousand

people, chosen from the population at large, would create a valuable

data set.

With these considerations in mind, the court’s review of

Commerce’s compilation of data sets will focus on the soundness of

Commerce’s announced method or criteria in selecting data points,

and its adherence thereto. Cf. Shanghai Foreign Trade Enters. Co.

v. United States, 28 CIT ___, 318 F. Supp. 2d 1339, 1351-52 (2004).

A. Selection of Surrogate Countries

As noted above, “the valuation of the factors of production

shall be based on the best available information regarding the

values of such factors in a market economy country or countries

considered to be appropriate.” 19 U.S.C. § 1677b(c)(1)(emphases

added). The statute further specifies that an “appropriate” market

economy country is one “(A) at a level of economic development

comparable to that of the nonmarket economy country, and (B) [a]

significant producer[] of comparable merchandise.” 19 U.S.C.

§ 1677b(c)(4).

Pursuant to this statutory direction, Commerce’s regulations

specify that, other than for valuing labor costs, it “normally will

use publicly available information to value factors” and that it

Consolidated Ct. No. 05-00003 Page 16

“normally will value all factors in a single surrogate country.”

19 C.F.R. § 351.408(c)(1)&(2)4 (emphases added). As emphasized,

Commerce “normally” will use pricing data from the surrogate country

selected. The use of the word “normally” means that Commerce may

select other data as warranted under the circumstances. Though

Commerce, as is true of all agencies, is due deference for its

reasonable interpretation of its own regulations, NSK Ltd. v. Koyo

Seiko Co., 190 F. 3d 1321, 1326 (Fed. Cir. 1999) (“we accord

substantial deference to Commerce’s interpretations of its own

regulations.”), the use of “normally” indicates that Commerce

intends to give itself leeway in the selection of surrogate

countries. However, Commerce cannot use this language to allow

itself flexibility while simultaneously using the language to

disallow consideration of data from other countries without regard

for its own stated criteria. Cf. Shanghai Foreign Trade Enters. Co.

v. United States, 28 CIT __, __, 318 F. 2d 1339, 1351-52

(2004)(“Commerce’s decision to use Indian Import Statistics suffers

from the same flaw that Commerce alleges as a basis for rejecting

plaintiff’s alternatives.”).

For example, Commerce’s regulations acknowledge that “where a

factor is purchased from a market economy supplier and paid for in

a market economy currency, [Commerce] normally will use the price

paid to the market economy supplier.” 19 C.F.R. § 351.408(c)(1).

4

All references to the Code of Federal Regulations are to

the 2003 edition.

Consolidated Ct. No. 05-00003 Page 17

As such, the selection of a surrogate country does not require that

the particular data that is used to value a specific factor of

production also come from that surrogate country; rather, it appears

that Commerce’s selection of a surrogate country creates, at most,

a rebuttable presumption in favor of data from that surrogate

country.

In selecting the surrogate country, Commerce employs a four

step process. First, Commerce compiles a list of countries that are

at a level of economic development comparable to the country being

investigated. Department of Commerce, Import Administration Policy

Bulletin 04.1: Non-Market Economy Surrogate Country Selection

Process at 2 (March 1, 2004), available at

http://ia.ita.doc.gov/policy/bull04-1.html. (“Policy Bulletin”).

Commerce then ascertains which, if any, of those cited countries

produce comparable merchandise. Id. Next, from the resulting list

of countries, Commerce determines, which, if any, of the countries

are significant producers of said comparable merchandise. Finally,

Commerce evaluates the quality, e.g., the reliability and

availability, of the data from those countries. Id. at 3. Upon

review of these criteria, Commerce chooses the country most

appropriate for use as a surrogate for the investigation.

Here, Commerce listed five countries as economically comparable

to the PRC: India, Indonesia, Sri Lanka, Pakistan and the

Philippines. Memorandum from Jon Freed, Case Analyst, to File,

Consolidated Ct. No. 05-00003 Page 18

through Edward C. Yang, Office Director & Robert Bolling, Program

Manager, Re: Antidumping Investigation of Wooden Bedroom Furniture

from the People’s Republic of China: Selection of a Surrogate

Country, Dep’t of Commerce (March 8, 2004), P. R. Doc. 619. at 1

(“Surrogate Country Selection Mem.”). No party contests this

finding. Id. at 5. Next, Commerce found that both India and

Indonesia produced comparable merchandise. Commerce found that both

countries are significant producers of comparable merchandise.

Issues & Decision Mem., P.R. Doc. 1933 at 38, 40 (Cmt. 2); but see

id. at 41. Last, Commerce evaluated and compared the quality of

Indian and Indonesian data. Although Respondents placed domestic

Indonesian pricing data on the record, Commerce rejected this data

in favor of Indonesian import statistics. Focusing then on

Indonesian import statistics, Commerce found that Indian import

statistics were preferable to its Indonesian counterpart because:

(1) Indonesian data had been unsatisfactory in other investigations;

(2) Indonesian “information was either unreliable or the Indonesian

import statistics were reported in units for which the Department

was unable to obtain a comparable value . . .”; and (3) there

existed gaps in the Indonesian data which required the use of gap-

filler data that Commerce “prefers not to use unless there are clear

distortions in the surrogate price import statistics . . . .”

Issues & Decision Mem., P.R. Doc. 1933 at 42 (Cmt. 2). Therefore,

Commerce selected India as its surrogate country for this

Consolidated Ct. No. 05-00003 Page 19

investigation.

Respondents challenge Commerce’s approach in several respects:

(1) that Commerce erred in rejecting Indonesian data -- both its

domestic and import statistics; (2) that India is not a producer of

products identical to the subject merchandise; (3) that Indian

production of the subject merchandise is not significant; and (4)

Commerce erred in weighing the evidence, in the aggregate, that

India was preferable to Indonesia. Though the weighing of the data

is considered to be the fourth step of Commerce’s process of

selecting a surrogate country, the court will address the issues

regarding Indian and Indonesian data first, as the data issues are

intertwined with all aspects of selecting a surrogate country.

(1) Evaluation of Indonesian Data

Commerce has indicated that it does not have sufficient data

from Indonesia, that the data it does have is suspect, and that it

has had data problems with Indonesia in the past. Issues & Decision

Mem., P.R. Doc. 1933 at 42 (Cmt. 2). These comments seem to be

directed primarily towards the use of Indonesian import data, rather

than Indonesian domestic data. However, a closer examination of the

record indicates that Commerce also considered the domestic

Indonesian data in its evaluation.

Under established case-law, “[t]he decision on which price to

use -domestic or import- is based on which value will result in a

Consolidated Ct. No. 05-00003 Page 20

more accurate normal value.” Rhodia, Inc. v. United States, 25 CIT

1278, 1286, 185 F. Supp. 2d 1343, 1352 (2001); Hebei Metals &

Minerals Imp. & Exp. Corp. v. United States, 28 CIT __, __, Slip Op.

04-88 at 15 (July 19, 2004)(“Hebei I”). Commerce may prefer one to

the other so long as a reasonable mind could find that the one

preferred is more accurate than the other. See Goldlink Indus.,

30 CIT at __, Slip Op. 06-65 at 27-28; cf. Yantai Oriental Juice

Co. v. United States, 26 CIT 605, 617 (2002).

Here, Commerce found that respondent-selected domestic

Indonesian data price lists are not more reliable than import

statistics because “single prices from a narrow source are not

necessarily representative of an entire industry during the entire

period of investigation.” Def.’s Resp. Pls.’ Surrogate Value

Related Rule 56.2 Mots. J. Agency R. 26 (“Def.’s Br.”); Issues &

Decision Mem., P.R. Doc. 1933 at 42 (Cmt. 2); Polyethylene Retail

Carrier Bags from the People’s Republic of China, 69 Fed. Reg.

34,125 (Dep’t Commerce June 18, 2004) (notice of final determination

of sales at less than fair value) and accompanying Issues and

Decision Memorandum at 47 (Cmt. 9) available at

http://ia.ita.doc.gov/frn/summary/prc/04-13815-1.pdf (“the

experience of a single producer is less representative of the cost

of an input in a surrogate country.”). In contrast, import

statistics encompass a broader range of pricing data that are more

representative of an entire industry during the entire period of

Consolidated Ct. No. 05-00003 Page 21

investigation. Commerce was also “unable to find substantial

information or directories for Indonesian furniture manufactures

[sic].” Surrogate Country Selection Mem., P.R. Doc. 619 at 5.

In addition to finding that Indonesian domestic data or price

lists were wanting, Commerce found that Indonesian import data (1)

had been unsatisfactory in other investigations; (2) that

“information was either unreliable or the Indonesian import

statistics were reported in units for which the Department was

unable to obtain a comparable value . . .”; and (3) “because of the

inadequacies of the Indonesian import statistics [Respondents]

submitted gap-filler data from various sources that the Department

prefers not to use unless there are clear distortions in the

surrogate price import statistics . . . .” Issues & Decision Mem.,

P.R. Doc. 1933 at 42 (Cmt. 2). Admittedly, there is some

circularity to Commerce’s explanation. Commerce rejected Indonesian

domestic data due to its lack of completeness, and then rejected

Indonesian import data due to the need to use “gap-filler” data

which it will not use without finding distortion in import data.

However, Commerce’s finding on the whole that Indonesian data

is unreliable and insufficent is supported by substantial evidence.

Respondents do admit that some of the Indonesian data is unreliable

or unusable. Id. Though respondents do point to gap-filler data

(such as “Indonesian domestic prices for woods and processed woods

for the period of investigation published by the International

Consolidated Ct. No. 05-00003 Page 22

Tropical Timber Organization (‘ITTO’)),” Mem. P. & A. Support Pls.’

& Pl.-Intervenors’ Rule 56.2 Mot. J. Agency R. 10 (“Pls.’ Br.”),

this represents but one set of various inputs required for valuing

the factors of production. Assuming without deciding, that the ITTO

data is reliable, accurate, and contemporaneous, it is still

reasonable for Commerce to find, on the record here, that in toto

the combination of domestic and import data from Indonesia was not

of a sufficient quality or amount to allow for the valuation of all

the necessary factors of production, and for the calculation of

financial ratios. Therefore, Commerce’s determination that the

Indonesian data was unreliable is supported by substantial evidence.

(2) Commerce’s finding that India was a producer of the

comparable merchandise

Commerce’s determination that India is a producer of comparable

merchandise is also supported by substantial evidence. Commerce

found evidence on the record to indicate that India produces

comparable furniture. Surrogate Country Selection Mem., P.R. Doc.

619 at 5; Issues & Decision Mem., P.R. Doc. 1933 at 39 (Cmt. 2)

(“Respondents do not argue that India does not produce wooden

bedroom furniture.”). In particular, Commerce found that

International Furniture Producers, an Indian company, as well as

other companies were significant producers of wooden bedroom

furniture. Surrogate Country Selection Mem., P.R. Doc. 619 at 5.

Consolidated Ct. No. 05-00003 Page 23

Respondents, contend, however, that the finding that India

produces comparable merchandise is irrelevant in the face of the

fact that Indonesia produces identical merchandise. Pls.’ Br. 13-

14, 16. As Respondents noted in their brief, Commerce automatically

considers a producer of identical merchandise to be a producer of

comparable merchandise. Pls.’ Br. 13. Respondents argue that

because Indonesia produces identical merchandise, and they contend

India does not, Indonesia should automatically be selected as the

surrogate country.

Commerce, however, does not always choose the producer of

identical merchandise, if there is one. Commerce explains in its

Policy Bulletin that “[if] considering a producer of identical

merchandise leads to data difficulties, the operations team may

consider countries that produce a broader category of reasonably

comparable merchandise.” Policy Bulletin at n. 6. It appears to the

court that this analysis is in accordance with the legislative

history of the governing statute:

Because the Commerce Department may have difficulties in

getting detailed data from countries not subject to

investigation, the bill gives the Commerce Department

authority to use “comparable merchandise” as the basis

for foreign market value. Comparable merchandise is a

broader category than the “such or similar” merchandise

comparison which is usually used in antidumping

investigations.

S. Rep. No. 100-71 at 106 (1987) (Committee on Finance).

Given that Commerce chooses the surrogate country and

Consolidated Ct. No. 05-00003 Page 24

identifies comparable merchandise on a case-by-case basis, it is

reasonable for Commerce to decline to make the producer of identical

merchandise the automatic choice. The process of constructing an

export price is a necessarily laborious and data-intensive process,

and it is reasonable, and necessary, for Commerce to feel assured

that the data it is employing is sufficient and reliable.

Therefore, assuming that Indonesia is a producer of identical

merchandise, that identity does not upset Commerce’s determination

that India produces comparable merchandise. The statute does not

require Commerce to find a producer of identical merchandise, but

rather a producer of comparable merchandise. Though Commerce has

indicated a preference for identical goods, that preference must

sometimes take second-seat if the use of identical goods leads to

data selection problems. Given Commerce’s finding that Indonesian

data was unreliable, Commerce’s decision to look to comparable

producers of subject merchandise was supported by substantial

evidence, as was its determination that India is a producer of

comparable merchandise.

(3) Commerce’s finding that India was a significant

producer of subject merchandise

In addition to determining that a country produces comparable

merchandise, the statute requires that the surrogate country be a

“significant producer” of the comparable subject merchandise.

Here, Commerce found that both India and Indonesia were significant

Consolidated Ct. No. 05-00003 Page 25

producers of comparable merchandise. Issues & Decision Mem., P.R.

Doc. 1933 at 39 (Cmt. 2) (“it would be illogical to conclude, as

argued by Respondents . . . , that Indonesia is a significant

producer of furniture while India is not.”). Respondents contest

this finding asserting that India is not a significant producer of

wooden bedroom furniture.

Commerce identifies a significant producer based on a totality

of the circumstances, and makes its decision concerning significance

on a case-by-case basis. Policy Bulletin at 3. Commerce

ascertained that “fixed standards such as ‘one of the top five

producers’” are not helpful as the meaning can differ significantly

from case to case.5 Id. Commerce further explained that the

selection of a surrogate country is, of course, highly dependent on

the available data.

Here, Commerce determined that India was a significant producer

of comparable merchandise. In particular, Commerce determined that

there was at least one major Indian manufacturer of wooden bedroom

furniture, IFP, and that there were other producers of comparable

merchandise. Surrogate Country Selection Mem., P.R. Doc. 619 at 5-

5

According to the legislative history of the governing

statute, “[t]he term “significant producer” includes any country

that is a significant net exporter and, if appropriate, Commerce

may use a significant net exporting country in valuing factors.”

Conference Report to the 1988 Omnibus Trade & Competitiveness

Act, H.R. Rep. No. 100-576, at 590 (1988) (“Conf. Rep.”)at 590.

This, however, does not, preclude Commerce from finding that a

country who is a producer of the subject merchandise but not a

net exporter is a significant producer of the subject merchandise

based on other criteria.

Consolidated Ct. No. 05-00003 Page 26

6. Commerce has also indicated that it was able to find additional

companies that produce comparable merchandise, in addition to

further information and directories with regard to 416 Indian

furniture manufacturers. Id. at Attachs. II & III, fr. 11, 14.

Commerce found that there are upwards of 11,000 producers of

furniture in India, and a furniture industry output of $1.7 billion

(compared with Indonesia’s output of $1.9 billion). Issues &

Decision Mem., P.R. Doc. 1933 at 39 (Cmt. 2). Commerce also

indicated that it was able to find nine Indian surrogate financial

statements. Id. at 67 (Cmt. 3). Consequently, Commerce’s finding

that India is a significant producer of comparable merchandise is

supported by substantial record evidence.

(4) Weighing the choice between Indonesia and India

As the discussion above indicates, Commerce’s decision to opt

for India as the surrogate country in this investigation, as opposed

to Indonesia (or any of the other economically comparable countries)

was driven in large part by data concerns and considerations.

Commerce had access to and was apprised of numerous sources of

information from India. Commerce was also able to locate Indian

company directories, Surrogate Country Selection Mem., P.R. Doc. 619

at 5 & Attach. III fr. 14, and Commerce had experience utilizing the

Indian import statistic data base, the Monthly Statistics of Foreign

Trade in India (“MSFTI”).

Consolidated Ct. No. 05-00003 Page 27

Respondents point to various criteria, including the fact that

Indonesia is a net exporter of wooden bedroom furniture while India

is not, Pls.’ Br. 17, and the size of the industry, to indicate that

Commerce should have chosen Indonesia instead of India as the

surrogate country. Id. at 14-15 (claiming that the portion of

India’s furniture production that is wooden furniture is 60 percent

and the proportion that is bedroom furniture is 20 percent); Id. at

17 (“the values of [India’s] exports were 38 million and 30 million

rupees (about $875 thousand and $690 thousand)” in 2002 and 2003

respectively). However, just as previous case law has established

that Commerce need not pick the “most comparable economy”,

Tehnoimportexport v. United States, 15 CIT 250, 256, 766 F. Supp.

1169, 1175 (1991)(emphasis in original), Commerce need not pick the

most significant producer.

Despite the fact that the Indian data may or may not be a

perfect fit for every surrogate value, this court has noted time

and again that the estimation of a normal value using surrogate

values is an inexact science. See, e.g., Nation Ford Chem. Co. v.

United States, 166 F. 3d 1373, 1377 (Fed. Cir. 1999) (“the process

of constructing foreign market value for a producer in a nonmarket

economy country is difficult and necessarily imprecise”) (citing

Sigma Corp. v. United States, 117 F. 3d 1401, 1408 (Fed. Cir. 1997).

While accuracy is a touchstone, Commerce often finds that it has to

choose between two (or more) sub-optimal data sources. In such a

Consolidated Ct. No. 05-00003 Page 28

scenario, where Commerce is choosing between two less-than-ideal

data sources, its decision must be upheld provided it is supported

by substantial evidence. Here, Commerce has demonstrated, through

substantial evidence, that it was able to locate data from India

that it knew to be reliable having previously worked with the data.

Surrogate Country Selection Mem., P.R. Doc. 619 at 3. Therefore,

based on the preceding analysis, Commerce’s determination to use

India as the surrogate country for this investigation was

appropriate; as a factual matter that decision was also supported

by substantial evidence.

The legislative history of the governing statute does indicate

that “if possible,” Commerce should utilize data based on production

of “the same general class or kind of merchandise using similar

levels of technology and at similar levels of volume as the

producers subject to investigation.” Conf. Rep. at 591. Though

the desire for comparability of technology is clear, and one could

argue, optimal, this desire is qualified by the phrase “if

possible.” Here, Commerce reasonably determined that the quality

of Indonesian data would be a hindrance in calculating surrogate

values; therefore it would not be possible to utilize Indonesian

data, whether or not the Indonesian furniture industry proved to be

a closer match in production process to the Chinese furniture

industry. Issues & Decision Mem., P.R. Doc. 1933 at 42. The

statute requires Commerce to look to the comparability of

Consolidated Ct. No. 05-00003 Page 29

merchandise, and Commerce acted in accordance with law in

determining that comparability of merchandise does not necessarily

require comparability of industry. 19 U.S.C. § 1677b(c)(4).

Ultimately Commerce can, and does, mix and match the data that

it chooses in its surrogate value selection, for instance through

the use of gap-filling data. See Lasko Metal Prods. v. United

States, 43 F. 3d 1442, 1445-46 (Fed. Cir. 1994); Nation Ford, 166

F. 3d. at 1378. Because Commerce can mix and match data when it

finds data from its primary source to be wanting, the surrogate

country selection amounts to a nod or a presumption as to what will

be Commerce’s “go-to” country. In this investigation, the choice

of India had a direct bearing on the choice of the main data set

employed by Commerce in its surrogate value selection, namely in

Commerce’s selection of MSFTI as its main data set in valuing the

factor inputs.

B. Monthly Statistics of Foreign Trade in India

(1) In general

The valuation of factors of production in a nonmarket economy

is governed by 19 U.S.C. § 1677b(c). As noted previously, this

section of the statute instructs Commerce to value factors of

production “based on the best available information regarding the

values of such factors in a market economy country or countries

considered to be appropriate by the [Secretary].” 19 U.S.C.

§ 1677b(c)(1). In addition, Commerce has promulgated regulations

Consolidated Ct. No. 05-00003 Page 30

specifying that the information utilized is “normally” to be

“publicly available” and that, except to value labor, the Department

will normally value all factors using data from a single surrogate

country. 19 C.F.R. § 351.408(c).6 While Commerce has not

promulgated additional regulations to govern its selection of data

for the valuation of factors of production, it has developed policy

preferences relating to its data choices.

Specifically, Commerce prefers data that is (1) a non-export

average value; (2) most contemporaneous with the period of

investigation (“POI”); (3) product-specific; and (4) tax-exclusive.

Memorandum to File, From Michael Holton, Subject: Preliminary

Determination Factors Valuation Memorandum: Wooden Bedroom Furniture

from the People’s Republic of China, Dep’t of Commerce (June 17

2004), P.R. Doc. 1329 at 2 (“Factors Valuation Mem.”). See, e.g.,

Polyethylene Retail Carrier Bag Comm. v. United States, 29 CIT __,

Slip Op. 05-157 at 31-32, 42-25 (Dec. 13, 2005).

6

19 C.F.R. § 351.408 (c)(1)-(2) reads:

(c) Valuation of factors of production. For purposes of

valuing the factors of production . . . under section

773(c)(1) of the Act the following rules will apply:

(1) Information used to value factors. The Secretary

normally will use publicly available information to value

factors. . . .

(2) Valuation in a single country. Except for labor, as

provided in paragraph (d)(3) of this section, the Secretary

normally will value all factors in a single surrogate country.

Consolidated Ct. No. 05-00003 Page 31

(2) MSFTI as a primary data set

In this investigation, the application of the factors outlined

above led Commerce to rely on the Monthly Statistics of Foreign

Trade in India data for the valuation of raw materials. Factors

Valuation Mem. at 4. MSFTI, published by the Government of India

and available through the World Trade Atlas, provides the quantity

and value of all Indian imports, reported by Harmonized Tariff

Schedule of India (“HTS[I]”) headings and subheadings. Commerce

argues that MSFTI data represents the best available information for

the valuation of raw material inputs because MFSTI data were

publicly available, contemporaneous and representative of all Indian

imports, ‘representative of the inputs in question,’ and tax-

exclusive. Def.’s Resp. Br. Pls.’ Surrogate Value Related Mot. J.

Agency Record 36 (“Def.’s Br.”); see also Issues & Decision Mem.,

P.R. Doc. 1933 Cmts. 10, 17, 25 & 27. Commerce also notes that it

has utilized MSFTI in previous investigations. Id. at 137 (Cmt.

10) & 206 (Cmt. 25)(Commerce has a long-standing preference for

MSFTI unless it is unreliable or distorted).

Respondents challenge Commerce’s use of MSFTI, arguing that

MSFTI data is overbroad; that better import data is available from

Infodrive India and IBIS7; that MSFTI does not always capture the

7

Respondents describe Infodrive and IBIS data as using

“customs data to identify inter alia, the specific type of

merchandise being imported, quantity of the imports and their

customs value, the origin of the merchandise and the importer.”

Pls.’ Br. 25. Shing Mark contends that Infodrive India and IBIS

(continued...)

Consolidated Ct. No. 05-00003 Page 32

inputs that are used by the Indian wooden furniture industry; that

MSFTI data is inaccurate and unreliable and that there are other

sources of data that provide specific and accurate domestic data.

Pls.’ Br. 32-46.

As a threshold matter, Commerce has determined that when it

selects import statistics as a means of valuing factors of

production for a non-market economy, it would rather choose a

broader range of statistics stating that “[a] broad, average price

from import statistics is reliable is [sic] because the average

includes a range of prices.” Def.’s Br. 52; see also Issues &

Decision Mem., P.R. Doc. 1933 at 137 & 206. Commerce further

elaborated that, “[a]n average price representing a subset of

imports is not more accurate than an average price of all imports

into India . . . .” Def.’s Br. 52; see also Issues & Decision Mem.

P.R. Doc. 1933, at 206 (Cmt. 25) & 214-217 (Cmt. 26). Respondents

propose Infodrive India and IBIS as alternative sources of import

data, rather than MSFTI, arguing that Infodrive India and IBIS

provide a detailed breakdown of Harmonized Tariff Schedule (“HTS”)

subheadings. This line-by-line information, Respondents claim,

would allow Commerce to make a more precise match between the input

used by the Chinese manufacturers and the surrogate Indian import.

7

(...continued)

report “the date of entry, the Indian HTS, the importer of

record, the import description, the quantity, the value, the unit

measure, foreign port, foreign country, Indian port, and method

of shipment.” Issues & Decision Mem., P.R. Doc. 1933 at 131

(Cmt. 10).

Consolidated Ct. No. 05-00003 Page 33

Issues & Decision Mem., P.R. Doc. 1933 at 131 (Cmt. 10); Pls.’ Br.

36. All parties agree that Infodrive India and IBIS do not provide

data on all imports into India.8

The court finds that, in general, Commerce’s preference for a

broader data set is reasonable and supported by substantial

evidence. In essence, Commerce is arguing that where it has a

choice between underinclusive data (which does not capture all the

inputs used by wooden furniture manufacturers) or overinclusive data

(which includes some data which is not used as an input, but

captures all the inputs because of its broad range), it will choose

overinclusive data. As Commerce is faced with a choice between two

imperfect options, it is within Commerce’s discretion to determine

which choice represents the best available information. Commerce’s

decision to rely on the MSFTI data, as a general database, to value

raw material factors of production, instead of Infodrive India or

IBIS data, is supported by substantial evidence in that the record

supports Commerce’s conclusion that the MSFTI data is more inclusive

than the Respondents’ alternatives.

8

The parties do not seem to agree as to the exact percentage

of imports captured by these two different databases. Commerce

claims that Infodrive India only accounts for 60 percent of

Indian imports, and within that percentage, not all of that is

usable, so the amount is actually less. Issues & Decision Mem.,

P. R. Doc. 1933 at 139-40 (Cmt. 10). Respondents claim that

“Infodrive India reports commercially significant quantities of

roughly 73 percent of imports.” Id. Regardless of which

percentage is the actual percentage, it is uncontroverted that

these two databases do not capture the full universe of imports

into India.

Consolidated Ct. No. 05-00003 Page 34

(3) MSFTI as applied to individual factors.

However, while Commerce’s choice of MSFTI data, as a general

database, rather than Respondents’ alternatives, is appropriate,

Commerce’s individual determinations, on a factor input by factor

input basis, must also be supported by substantial evidence. If

Commerce’s specific data choices do not actually include or capture

the factor or input it is estimating, or a reasonably comparable

item, such a choice is not supported by the record; for example, if

Commerce were estimating the cost of hard-cover law casebooks by

relying on the average cost of paperback legal thrillers, while

another data set provides the cost of hard-cover textbooks, its

choice could not be sustained. Cf. Hebei Metals & Minerals Imp.

& Exp. Corp. v. United States, 29 CIT __, __ , 366 F. Supp. 2d 1264,

1272-73 (2005) (“Hebei II”) (Commerce cannot assume that the

“others” category includes the coal at issue, without establishing

what category of coal was used by the respondents, and without

establishing that the category did “cover the type of coal used in

Hebei’s production process.”); Guangdong Chems. Imp. & Exp. Corp.

v. United States, 30 CIT __, __, 414 F. Supp. 2d 1300, 1311 (2006)

(“Even if the court were to conclude that Commerce produced

substantial evidence demonstrating that azelaic and sebacic acid are

priced similarly, that would not justify Commerce’s decision to

abandon a more product-specific data source.”).

Additionally, if the data is heavily weighted by a

Consolidated Ct. No. 05-00003 Page 35

disproportionate inclusion of higher priced or lower priced data,

such that Commerce is systematically overvaluing or undervaluing the

factors of production, the broad range of the statistics would not,

in and of itself, render the data reliable. See Goldlink Indus., 30

CIT at , Slip Op. 06-65 at 27-28 (“Since the presumption is that

NME data is distorted, Commerce must find a reasonable surrogate

value. Logically then, Commerce cannot use a surrogate value if it

is also distorted, otherwise defeating the purpose of using a

surrogate value rather than the actual export value.”).

In addition, although the court has, in specific instances,

approved the use of import data, and the use of MSFTI data in

particular, the court has always emphasized that in order for import

data to be used, there must be reason to believe that the industry

in question would use imported inputs.9 See Hebei I, 28 CIT at __,

9

Respondents also argue that the use of import data is

contrary to the clear intent of the statute which requires that

factors of production be valued “in” a comparable market economy

country. In addition to the fact that this court, and the

Federal Circuit have affirmed the use of import statistics to

value factors of production (in certain circumstances),

see, e.g., Nation Ford, 166 F. 3d 1373 (Fed. Cir. 1999); China

First Pencil Co. v. United States, 30 CIT __, Slip Op. 06-34

(Mar. 7, 2006); Wuhan Bee Healthy Co. v. United States, 29 CIT

, Slip Op. 05-142 (Nov. 2, 2005), the fact that Commerce is using

import data to value the factors of production does not mean that

they are not valuing those factors of production “in” the

comparable market economy country. The prices that producers pay

for the imported inputs are not created in a vacuum; they are

created by market forces, and indicate the value that producers

are willing to associate with those imported prices. Therefore,

the use of import prices in and of itself is not contrary to the

statute. The use of the import statistics, however, still has to

be supported by substantial evidence on a case-by-case basis.

Consolidated Ct. No. 05-00003 Page 36

Slip Op. 04-88 at 22 (“Commerce here did not explain why an Indian

manufacturer would pay for imported coal”); Yantai Oriental Juice

Co. v. United States, 26 CIT 605, 617 (2002) (“Here, Commerce has

produced no evidence tending to lead to the conclusion that India's

domestic AJC producers would use imported as against domestic

coal.”); Wuhan Bee Healthy Co. v. United States, 29 CIT , , 374

F. Supp. 2d 1299, 1310 (2005) (Commerce gives “no reason[] as to why

imported coal provides the best surrogate value.”). If it is

unlikely that the domestic industry would use imported inputs, and

there is domestic data available, then Commerce’s choice of import

data to value factor inputs may not be reasonable. One example of

when the domestic industry would choose to source its factor inputs

domestically would be when the price of the imported good is

markedly higher than the price of the domestic good. Hebei II, 29

CIT at __, 366 F. Supp. 2d at 1274 (“[T]he preference for domestic

data is most appropriate where the circumstances indicate that a

producer in a hypothetical market would be unlikely to use an

imported factor in its production process. The most obvious

circumstance occurs where the import price is significantly greater

than the domestic price.”). Another example would be when the

import statistics themselves demonstrate that the specific input is

not imported into the country. While Commerce may establish

criteria in order to guide its data selection process, this does not

relieve Commerce of the obligation to evaluate the relative accuracy

Consolidated Ct. No. 05-00003 Page 37

of domestic and import data in valuing factors of production. See

Yantai, 26 CIT at 617 (“Commerce nowhere explains how the use of

seemingly more expensive imported coal data is the best available

information establishing the actual costs incurred by Indian AJC

producers.”). Commerce itself, when noting potential price

discrepancies in import data, has employed benchmarks in order to

evaluate the reliability of MSFTI data. China First Pencil, 30 CIT

___, Slip Op. 06-34 (on voluntary remand, Commerce examined MSFTI

data for the price of pencil cores by comparing it with price quotes

from the United States, since Commerce was unable to obtain price

quotes from India).

(a) Mirrors

The court turns to Respondents’ challenge of the use of

specific MSFTI data for the valuation of mirrors, paints, and

cardboard. Respondents claim that the MSFTI data is demonstrably

inaccurate for valuing these specific factors of production. Pls.’

Br. 27, & 40-46. Respondents attempt to demonstrate that MSFTI is

inaccurate in valuing mirrors by alleging that (1) there is evidence

that Indian furniture manufacturers do not use imported mirrors in

their manufacturing process; (2) in this instance MSFTI is not

inclusive of the mirrors utilized; and (3) the MSFTI data utilized

was overly distorted by the inclusion of specialty mirrors.

Consolidated Ct. No. 05-00003 Page 38

(i) Imported Mirrors As Inputs

Respondents provide a range of data to demonstrate that the

import prices for mirrors selected by Commerce are considerably

higher than domestic prices, suggesting either that the import

prices are distorted or that Indian producers would not use imported

mirrors as an input for wooden bedroom furniture. See, e.g., Hebei

II, 29 CIT at __, 366 F. Supp. 2d at 1274 (companies are less

likely to use imported inputs when the prices of imported inputs are

higher than domestic inputs). Respondents argue that the actual

price for 5mm mirrors used in wooden furniture production in India

is within a range of between $9.35/m2 and $13.13/m2 instead of the

Final Determination value of $60.13/m2 for mirror imports (a range

of 4.6 to 6.4 times greater than the alternate prices). Pls.’ Br.

27. Repondents refer to: (a) record data from an Indian glass

industry publication (“Glass Yug”); (b) actual average period of

investigation prices paid for mirrors used by two Indian wooden

furniture producers (Tarun Vadehra and Highland House);10 (c) and

actual average prices paid for mirrors by a large Indonesian wooden

bedroom furniture producer, Goldfindo. Id.

Additionally, there is evidence on the record that at least one

furniture producer in India only sourced mirrors domestically during

the period of investigation. See Ernst & Young Private Ltd., Report

10

According to respondents, the “Highland House data were

compiled and verified as complete and accurate by the independent

accounting firm of Ernst & Young.” Pls.’ Br. 24.

Consolidated Ct. No. 05-00003 Page 39

on the Agreed Upon Procedures on the Purchases Ledger of Highland

House Private Ltd. (Apr. 1, 2004), Attach. to Letter from John D.

Greenwald, Wilmer, Cutler, Pickering, Hale & Dorr, LLP., on behalf

of Lacquer Craft Mfg. Inc. & Markor International Furniture

(Tianjin) Manufacture Co., Ltd., to The Honorable Donald L. Evans,

Secretary of Commerce, Re: Wooden Bedroom Furniture from the

People’s Republic of China: Surrogate Country Submissions (Apr. 20,

2004), P. R. Doc. 770 at 56 (fr. 13) (“As per the list provided by

Lacquer Craft, Ernst & Young was required to compile prices of

standard 5/6mm thickness type plain mirrors purchased by Highland

House during the period. During the period, Highland House

purchased plain mirrors from domestic suppliers only.”). Commerce

did not address the assertion that imported mirrors were not used

by Indian furniture manufacturers.

Instead of addressing the Respondents’ concerns with the MSFTI

data, Commerce chose to attack the quality of the data proffered by

Respondents, claiming that the unreliability of the data negated its

ability to serve even as a means of evaluating the MSFTI data.

The court finds that Commerce’s determination that the MSFTI

data was accurate with respect to mirrors is not supported by

substantial evidence, because Commerce did not evaluate the

inaccuracies of the MSFTI data set. See Shanghai Foreign Trade

Enters. Co. v. United States, 28 CIT __,__, 318 F. Supp. 2d 1339,

1352 (2004)(Commerce’s determination was not supported by

Consolidated Ct. No. 05-00003 Page 40

substantial evidence when “Commerce summarily discarded the

alternatives as flawed but did not evaluate the reliability of its

own choice.”). Commerce argues that Yantai, Hebei II, and Shanghai

Foreign Trade are inapplicable here as “Commerce did not summarily

discard the alternatives as flawed without evaluating the

reliability of its own choice.” Def.’s Br. 47. However, as

explained below, here Commerce’s reasons for rejecting other data

were either applied on an inconsistent basis, or did not actually

provide a rational reason for rejecting the data.

(ii) Glass Yug

Commerce provided three reasons for dismissing the Glass Yug

data: (1) the data do not cover the entire POI;11 (2) the Glass Yug

11

In making this comment, Commerce also emphasized that

“among Indian mirror manufacturers there was intense competition

that resulted in the downward prices for mirrors.” Issues &

Decision Mem., P.R. Doc. 1933 at 207 (Cmt. 25). The article in

which the mirror data appears provides the data that illustrates

the effects of said price war. Glass Yug 9 (Apr.-June 2003),

Exh. 48 to Steptoe & Johnson, LLP Submission of Surrogate Values

for the Factors of Production for Shing Mark Co. Enterprise, Ltd.

(Apr. 16, 2004) Attach. to Letter from Thomas L. Trendl, Steptoe

& Johnson, LLP on behalf of Shing Mark Co. Enterprise, Ltd. to

the Honorable Donald L. Evans, Secretary of Commerce, Re: Wooden

Bedroom Furniture from the People’s Rebublic of China: Submission

of Surrogate Values for the Factors of Production, (Apr. 16,

2004), P. R. Doc. 761, fr. 446 (“Shing Mark April 16

Submission”). However, as Commerce noted, intense competition is

not in and of itself a reason to reject mirror prices. Issues &

Decision Mem., P.R. Doc. 1933 at 207 (Cmt. 25). Indeed, one of

the reasons that Commerce engages in a factor valuation process

for non-market economy countries is in order to have factor input

prices that are determined by the interaction of competitive

(continued...)

Consolidated Ct. No. 05-00003 Page 41

data are very specific and Commerce does not know whether or not

Respondents use the same type of mirrors; and (3) the Glass Yug data

are not specific enough because it does not contain information on

the sizes of the mirrors and whether or not the mirrors are beveled.

Issues & Decision Mem., P.R. Doc. 1933 at 204-206 (Cmt. 25). First,

regarding the POI, Commerce may not always elevate contemporaneity,

or its desire to have data covering an entire POI, over the need for

accuracy. See Hebei II, 29 CIT at __, 366 F. Supp. 2d at 1275

(finding that contemporaneity is but one factor to be considered in

looking at data and noting that “the Court has previously found

contemporaneity to be insufficient to explain why an import price

is the best available information for establishing the actual costs

incurred by a producer.” (citing Yantai, Slip Op. 02-56 at 23)).

If the domestic data proves to be otherwise accurate, then it may

well be preferable to use accurate data, compiled over a shorter

period of time, then inaccurate or unreliable data that covers the

entire POI.

Commerce’s second and third contentions rely on Commerce’s

desire not to have underinclusive data. Essentially, Commerce is

arguing that since it cannot match Glass Yug data with Respondent

data, either because the Glass Yug data are not specific enough or

because the data are too specific, use of the Glass Yug data would

11

(...continued)

forces in a market economy context.

Consolidated Ct. No. 05-00003 Page 42

lead to an underinclusive data set.12

Respondents have asserted that they have placed evidence on

the record that shows the width of their mirrors. Respondents note

that Shing Mark has reported its mirrors to be 3mm, 5mm, and 6mm in

depth, Steptoe & Johnson, LLP, Case Brief on Behalf of Shing Mark

Co., Ltd., (Oct. 6, 2004) Attach. to Letter from Jack R. Hayes,

Steptoe & Johnson, LLP, on behalf of Shing Mark Co., Ltd. to the

Honorable Donald L. Evans, Secretary of Commerce, Re: Antidumping

Duty Investigation on Wooden Bedroom Furniture from the People’s

Republic of China: Submission of Case Brief on Behalf of Shing Mark

Enterprise Co., Ltd., (Oct. 7, 2004), P. R. Doc. 1854, fr. 58

(“Shing Mark Case Brief”), while there is evidence on the record

indicating that Dorbest’s mirrors are 5mm in thickness, Dorbest

Ltd., Second Supplemental Sections C & D Response (June 15, 2004),

Attach. to Letter from Jeffrey S. Grimson, Kaye Sholer, LLP, on

behalf of Dorbest Ltd., to the Honorable Donald L. Evans, Secretary

12

Commerce stated specifically, in its Issues & Decision

Memorandum:

the Department will consider domestic prices where

sufficient record evidence demonstrates that the range

of grades exist in the reported inputs and a difference

of the domestic and import price appear to be caused by

the breadth of category. Additionally, the Department

determines that Glass Yug is not the best available

information due to a lack of detail put on record by

the respondents for their factor inputs of mirror and

glass and the lack of specific information for the

prices reported in Glass Yug.

Issues & Decision Mem., P.R. Doc. 1933 at 206 (Cmt. 25).

Consolidated Ct. No. 05-00003 Page 43

of Commerce, Re: Response to DOC’s June 8, 2004, Second Supplemental

Sections C-D Questionnaire in Wooden Bedroom Furniture from China,

(Inv. No. A-570-890), (June 15, 2004), Prop. Doc. 599, fr. 314 & 318

(“Dorbest June 15 Submission”); See Pls.’ Br. 42. Respondents

maintain that this is sufficient information for Commerce to match

Glass Yug data with Respondents’ inputs, because Glass Yug data

provided prices for mirrors with thickness of 2.5, 3.5, 4.0, 5.0 and

6.0 millimeters.13 Pls.’ Br. 42; Shing Mark Apr. 16 Submission, P.

R. Doc. 761, fr. 446.

13

If Commerce required more specific information than this

in order to properly ascertain the most accurate and appropriate

surrogate value, such as whether or not mirrors are cut down to a

smaller size, or if they are beveled, Issues & Decision Mem. P.R.

Doc. 1933 at 207 (Cmt. 25), Commerce could request such

information, see Hebei II 366 F. Supp. 2d at 1273, (“During its

investigation or upon remand, Commerce should have established

the category of coal used by Hebei or at least established the

category or categories of coal normally used to produce the

subject merchandise.”).

The court notes that, as Respondents point out in their

brief, “[t]he thickness range of the Indian import data is, of

course, completely unknown.” Pls.’ Br. 42. Commerce relies upon

MSFTI data in order to ensure that it captures within its range

of data the inputs actually used, and so is operating on the

assumption that the broader data will somehow capture the correct

factor input whereas if a narrower category is chosen, there is a

chance that it will be valuing the wrong factor of production.

This position, however, is only reasonable if (1) Commerce does

not have evidence in the record that the narrower data set is of

the same inputs as used by Respondents; and (2) the larger data

set captures the factor of production in question. Respondents

have asserted that the thickness of the mirrors they use is of

the same thickness as the Glass Yug data. Pls.’ Br 42. Shing

Mark Apr 16 Submission, P. R. Doc. 761, fr. 446; Shing Mark Case

Brief, P. R. Doc. 1854 at 36 (fr. 58); Lacquer Craft May 26

Submission, P. R. Doc. 1135 at fr. 9-10; Dorbest June 15

Submission, Prop. Doc. 599, fr. 314 & 318. Respondents also

assert that there is nothing on the record reflecting any

consumption of mirrors outside the range. Pls.’ Br. 42.

Consolidated Ct. No. 05-00003 Page 44

Additionally, it appears inconsistent for Commerce to require

specificity for one data set, while allowing for a broader data set

that has no indication either as to whether it includes mirrors with

“beveling” or etching, as is the case with MSFTI. See Hebei II, 366

F. Supp. 2d at 1273 (“A broad and unsupported coal value falls short

of a substantial evidentiary basis just as a narrow and unsupported

coal value does.”); Guangdong, 318 F. Supp. 2d at 1352 (Commerce

must apply its standards as consistently to its selected data set

as to other data sets). At the very least, none of Commerce’s

arguments with respect to Glass Yug address why this data should not

be viewed as probative towards a view that Commerce’s chosen

valuation is too high and/or inaccurate.

(iii) Tarun Vadehra, Highland House and Goldfindo

Commerce rejected the Tarun Vadehra and Highland House

information because it found that the information was not “publicly

available” insofar as it was not information that could “be

duplicated by the Department, the Petitioners, or anyone else that

lack[] access to the confidential records from which they were

derived.” Issues & Decision Mem., P.R. Doc. 1933 at 162-63. (Cmt.

17). Respondents argue that this is not how Commerce has generally

defined publicly available. Pls.’ Br. 34. The court does not have

to reach this issue with regard to the Tarun Vadehra and Highland

House data, because Commerce also explained that it found that this

Consolidated Ct. No. 05-00003 Page 45

data was not representative of all Indian prices. Though Commerce

considers several issues in evaluating the merits of various data,

see supra, p. 30, Commerce’s determination is supported by

substantial evidence in that the data from two Indian producers is

not representative of the country as a whole. See Retail Carrier

Bags, 29 CIT at __, Slip Op. 05-157 at 38 (finding that the

selection of import statistics in valuing black inks on the basis

of the import data being “country-wide” data was supported by

substantial evidence, as evidence submitted to demonstrate that

Indian import statistics counted as an even smaller percentage of

sales of the relevant inks was not provided during the

administrative review.). Commerce also implicitly rejected the data

provided by Respondents from the Indonesian company, Goldfindo

stating that “the Department has not considered the factor values

derived form [sic] Goldfindo because Goldfindo is an Indonesian

company and the Department has determined to use India as the

surrogate country in this investigation.” Issues & Decision Mem.,

P.R. Doc. 1933 at 163 (Cmt. 17). The court notes that though

Commerce is not obligated to value its factors of production from

just one surrogate country, see, e.g., 19 U.S.C. § 1677b(c)(1);

Nation Ford Chem. Co. v. United States, 166 F.3d 1373, 1378 n.5

(Fed. Cir. 1999) (the antidumping duty statute "does not preclude

consideration of pricing or costs beyond the surrogate country if

necessary"), Commerce has also noted that the same argument against

Consolidated Ct. No. 05-00003 Page 46

using Tarun Vadehra and Highland House data – namely that the data

do not cover country-wide prices and are too narrow to be considered

for surrogate valuation – applies as well to Goldfindo data.

Issues & Decision Mem., P.R. Doc. 1933 at 163 (Cmt. 17) (“the

Department’s practice is to not use price quotes to value factors

when other usable, reliable information is available.”).

(iv) The MSFTI data is either non-inclusive or distortive of

mirror inputs

Respondents also argue that the Infodrive India and IBIS data

indicate that the mirrors reported as being imported under

subheading 7009.91.00 of the Harmonized Tariff Schedule of India

(“HTS[I]”) included Taiwanese exports of rearview mirrors for

automobiles to an Indian company by the name of “Enginetech” or

mirrors from Germany including a “chiara” bathroom mirror and a

telescopic mirror. Issues & Decision Mem., P.R. Doc. 1933 at 194

(Cmt. 25) & 183 (Cmt. 24); see also Pls.’ Br. 26. According to

Respondents, these are higher-priced specialty mirrors, the

inclusion of which has a distortive effect on the valuation of the

mirror inputs used in furniture production.

Respondents also claim that, in addition to examining the line-

by-line data available from Infodrive India to ascertain what

precise goods were listed under HTS[I] subheading 7009.91.00

(“mirrors, other, unframed”), they examined Taiwan’s corresponding

export data for “mirrors, other, unframed” and that the Taiwanese

Consolidated Ct. No. 05-00003 Page 47

export data show a low volume of exports to India under this HTS

subheading. Issues & Decision Mem., P.R. Doc. 1933 at 191 (Cmt.

24). Respondents further claim that the Taiwan export data show a

correspondingly larger volume of exports under the HTS subheading

for rearview mirrors for automobiles. Id. Respondents theorize

that the Indian government’s updating of the Tariff Classification

to the eight-digit subheading level on February 1, 2003 (immediately

prior to the POI) led to problems in the classification of entries.

Id. at 182 (Cmt. 24). Respondent Shing Mark argues that the

“reclassification of the Tariff Schedule resulted in the creation,

renaming, moving, or deletion of various headings and subheadings

which, in turn, resulted in the misclassification of entries in this

new tariff system.” Id.

Commerce does not directly address this allegation, nor the

apparent discrepancy between Taiwanese export data and Indian import

data. Commerce rather points to the existence of an HTS[I]

subheading for rearview mirrors which, Commerce argues, would negate

the possibility of rearview mirrors being classified under

subheading 7009.91.00. Id. at 205 (Cmt. 25). This does not

address the issue of potential misclassification – if rearview

mirrors are miclassified under “mirrors, other, unframed” the

existence of a subheading for rearview mirrors proves nothing.

(v) Infodrive India

Consolidated Ct. No. 05-00003 Page 48

Rather than directly addressing Respondents arguments, Commerce

rejected any attempt to use Infodrive India data to show that the

MSFTI data was inaccurate on three bases: (1) Commerce could not use

the more specific data provided in Infodrive India because

Respondents’ description of their inputs was not specific enough to

allow Commerce to make an exact match between Infodrive India and

the Respondents’ inputs; (2) the data in Infodrive consisted of

“non-quantifiable unit measurement[s]”; and (3) Commerce found

Infodrive India’s data to be unreliable. Issues & Decision Mem.,

P.R. Doc. 1933 at 139 (Cmt. 10)& 203 (Cmt. 25). The court will

address each point in turn.14

With respect to the first point, Commerce found that the input

descriptions provided by Respondents did “not provide sufficient

descriptions or distinguishable characteristics that would allow the

Department to search the voluminous Infodrive India data and IBIS

data to obtain accurate surrogate-value information.” Issues &

Decision Mem., P.R. Doc. 1933 at 138 (Cmt. 10).

Regardless of whether such a search is possible, this point

does not render the Infodrive India or IBIS data ineffective as a

14

Commerce also points to the “lack of contemporaneous data

for the entire POI” as another reason for rejecting such data.

Issues & Decision Mem., P.R. Doc. 1933 at 204 (Cmt. 25). Again,

this argument does not address why this data cannot be used as a

reference point to evaluate other data. Also, as noted in the

courts previous discussion, contemporaneity, in and of itself

should not be viewed as the sole reason to discard data; rather

the quality of the data needs to be viewed in its totality. See

supra p. 41.

Consolidated Ct. No. 05-00003 Page 49

benchmark or other means of testing the MSFTI data. If Infodrive

India does, as contended by the Respondents, provide a line-by-line

item breakdown of imported inputs into India, then a claim that

there is no way to match inputs with the Infodrive India data is not

responsive to whether or not Infodrive India casts light on

potential inaccuracies in the MSFTI data set.

Turning to the second aspect of Commerce’s analysis, Commerce

concluded that Infodrive India information is not usable because the

unit measurements vary and are non-quantifiable. Respondents note,

however, that “[i]f anything, the fact that the units of measure

differ greatly [in Infodrive India] supports Dorbest’s argument that

the import statistics incorporate a hodgepodge of product (much of

which was misclassified) and therefore is not suitable for use as

a surrogate value.” Reply Br. Pls. Dorbest Ltd., Rui Feng Woodwork

(Dongguan) Co., & Rui Feng Lumber Supp. Rule 56.2 Mot. J. Agency R.

Relating to Issues Surrogate Country, Surrogate Values & Financial

Ratios (“Dorbest Reply Br.”) 6, fn.9. The court finds merit in

Respondents’ argument. Given that Respondents offered the Infodrive

India data to demonstrate alleged inaccuracies and

misclassifications in the MSFTI data for India, Commerce’s reason

for rejecting the data set only buttresses Respondents’ argument,

and does not provide a reason for not using Infodrive India to

ascertain if there are problems with MSFTI’s data set with respect

to mirrors.

Consolidated Ct. No. 05-00003 Page 50

Finally, Commerce determined that it was Infodrive India data,

and not MSFTI data, that was unreliable. In its Issues and

Decision Memorandum that accompanied Commerce’s final determination,

Commerce stated:

The only information on the record that India’s HTS

reclassification resulted in any misclassifications

under the Indian Tariff Schedule is from the

Infordrive [sic] India data. In fact, we found that

the MSFTI information from the World Trade Atlas

does not contain the same misclassification as

those contained in Infodrive India. Therefore, we

find that, if India’s reclassification of the Tariff

Schedule resulted in any misclassifications of

import items, it is Infodrive India’s data that is

unreliable because these data are the only data that

report such misclassification. The Department

observes further that the World Trade Atlas reports

the official MSFTI data which may account for

Infodrive India’s misclassifications.

Issues & Decision Mem., P.R. Doc. 1933 at 138-39 (Cmt. 10).

It appears to the court that, in essence, Commerce is making

two points: (1) the MSFTI data is correct because it is corroborated

in the World Trade Atlas even though the World Trade Atlas simply

compiles the MSFTI data reported to it by the Indian government; (2)

because MSFTI and the World Trade Atlas report the official data,

they are presumed to be accurate and if only one source contradicts

this data, it is the contradictory source that must be unreliable

and inaccurate.

Respondents argued before Commerce that Commerce had utilized

Infodrive India data in a previous investigation: Certain Color

Consolidated Ct. No. 05-00003 Page 51

Television Receivers From the People's Republic of China, 69 Fed.

Reg. 20,594 (Dep't Commerce April 16, 2004) (notice of final

determination of sales at less than fair value and negative final

determination of critical circumstances).15 Dorbest Reply Br. 5.

Commerce, in using the Infodrive data in Color Televisions

determined that:

the data on which Infodriveindia [sic] is based is not

private at all, but rather is Indian customs data.

Because we initially shared TCL’s concerns about the

source of this data, early on in this investigation, we

contacted Infodrive India Pvt. Ltd. (Infodrive), the

company responsible for maintaining the Infodriveindia

[sic] website, and inquired about its data collection

methods. According to Infodrive officials, Infodrive: 1)

obtains the information in question from official Indian

customs data; 2) receives daily customs data transmitted

each month from the Indian customs department; and 3)

presents the Indian customs data exactly as it is

received, without additions or deletions.

Memorandum from Laurie Parkhill to Jeffrey A. May, Issues and

Decision Memorandum for the Antidumping Duty Investigation of

Certain Color Television Receivers from the People’s Republic of

China, at 43 (Cmt. 9)(April 16, 2004) available at

http://ia.ita.doc.gov/frn/summary/prc/04-8694-1.pdf.16 Therefore,

15

This decision was recently affirmed in Sichaun Changdong

Electric Co. v. United States, 30 CIT __, Slip Op. 06-141 (Sept.

14, 2006)(upholding Commerce’s use of Infodrive data rather than

MSFTI data where Infodrive was product specific and

contemporaneous).

16

See also Memorandum from Alice Gibbons, Analyst Office of

AD/CVD Enforcement to File, Re: Placing Information on the Record

Regarding Infodriveindia.com in the Antidumping Duty

Investigation on Color Television Receivers from the People’s

(continued...)

Consolidated Ct. No. 05-00003 Page 52

according to Commerce’s own explanation, Infodrive India presents

Indian government import data that it receives on a monthly basis

from the Indian customs department. Moreover, Infodrive India data

appears to be the same data provided by MSFTI (through the World

Trade Atlas) in a disaggregated form, providing descriptions of the

items that are imported and classified under a particular HTS[I]

subheading. The view that this is a subset of the same data set, but

more detailed, is supported by the assertion by Respondents that

“the total Rupee value of imports from Taiwan from Infodrive is

2,665,062.75, while the total imports in the MSFTI from Taiwan is

0.002665 Billion, or 2.665,000 (World Trade Atlas data rounds

figures).” Dorbest Reply Br. 6.

Therefore, if Infodrive India data provides a breakdown of the

import data reported in MSFTI, it is unreasonable for Commerce to

conclude that Infodrive data is unreliable or contains

misclassifications, while simultaneously claiming that MSFTI is both

reliable and contains no inaccuracies. In addition, because the

record suggests that the disaggregated line-item data indicates that

items manufactured by “Enginetech” are potentially rearview

16

(...continued)

Republic of China (PRC) 2 (Nov. 17, 2004), Attach. to Letter from

Eric C. Emerson, Thomas J. Trendl, & Jack R. Hayes, Steptoe &

Johnson LLP, to the Honorable Donald L. Evans, Secretary of

Commerce, Re: Wooden Bedroom Furniture from the People’s Republic

of China: Additional Comments on “Valuation of the Factors of

Production”, P.R. Doc. 907 at fr. 125-129 (May 14, 2004).

Consolidated Ct. No. 05-00003 Page 53

mirrors17 there is a sufficient reason to further investigate

whether or not rearview mirrors (and other speciality mirrors) are

included in the basket category selected by Commerce to value

mirrors. Regardless of whether or not Commerce finds it appropriate

to use the Infodrive India data to value mirrors, the Infodrive

India data can prove to be illuminating as to the nature of the

product actually being valued within a specific (and in this case

17

Petitioners claim that the information listed in Infodrive

India indicates that the mirrors shipped by Enginetech are

“mirror plates” and do not indicate that these were actually

rearview mirrors. Issues & Decision Mem., P.R. Doc. 1933 at 202

(Cmt. 25). Respondents have placed data on the record, however,

that, if correct, demonstrate that Enginetech is an autoparts

company that sells rearview mirrors for automobiles. See Dorbest

Reply Br. 7; Exh. 9 to Letter from John D. Greenwald, Wilmer,

Cutler, Pickering, Hale & Dorr, on behalf of, Lacquer Craft

Manufacturing Co., Ltd. & Markor International Furniture

(Tianjin) Manufacture Co., to the Honorable Donald L. Evans,

Secretary of Commerce, Re: Wooden Bedroom Furniture from China:

Surrogate Value Submission, P.R. Doc. 1695, fr. 123 (Aug. 17,

2004) (“Lacquer Craft Aug. 17 Submission”) (referencing

www.enginetech-autoparts.com). Respondents also claim that the

Taiwanese imports from Enginetech were described as “6 inch

mirror with housing”, “MB100 Mirror plates with lettering,” “TWM

mirror plate with lettering.” Dorbest Reply Br. 6; Steptoe &

Johnson, LLP, Submission of Factual Information for Valuing

Factors of Production of Shing Mark Enterprise Co., Ltd., (Aug.

17, 2004) Attach. to Letter from Eric C. Emerson, Steptoe &

Johnson, LLP on behalf of Shing Mark Enterprise Co., Ltd., to the

Honorable Donald L. Evans, Secretary of Commerce Re: Antidumping

Duty Investigation on Wooden Bedroom Furniture from the People’s

Republic of China: Submission of Factual Information for Valuing

Factors of Production, Pub. 1694 fr. 161-162 (Aug. 17,

2004)(“Shing Mark Aug. 17 Submission”); Lacquer Craft Aug. 17

Submission, Pub. 1695 at fr. 95. The information placed on the

record indicates at least a colorable claim that the surrogate

value selected by Commerce includes data from rearview or other

specialty mirrors.

Consolidated Ct. No. 05-00003 Page 54

basket)18 HTS[I] subheading.

(vi) Commerce’s evaluation

Having concluded that Infodrive India data was unreliable,

Commerce examined the MSFTI data in order to ascertain whether or

not there was any distortive effect as a result of imports from

Taiwan and Germany. Commerce employed the MSFTI data for mirrors

from Indonesia as a benchmark19, and calculated the POI average

prices for Indonesia and found that the POI average price from both

Taiwan and Germany were lower than that of Indonesia. Issues &

Decision Mem., P.R. Doc. 1933 at 204 (Cmt. 25). Commerce concluded

that this examination of the data demonstrated that “to the extent

that any imports were misclassified from Taiwan there is no record

evidence that these were distortive as the value comparison

described above clearly indicates.” Id. at 205 (Cmt. 25).

While this attempt at benchmarking may indicate that the

Taiwanese and German data were at least as representative of the

18

Commerce has previously noted the broad aspect of an

HTS[I] subheading. Freshwater Crawfish Tailmeat from the People’s

Republic of China, 64 Fed. Reg. 27,961, 27,962 (Dep't Commerce,

May 24, 1999) (final results of new shipper review) ("[I]mport

data from basket categories can be too broad to be reliable.").

19

Commerce used the Indonesian data to analyze this issue

despite the fact that Commerce considers Indonesia to be a

country with subsidies and therefore excluded those products

originating from Indonesia from its surrogate value calculation

in the Final Determination. Issues & Decision Mem., P.R. Doc.

1933 at 204 (Cmt. 25).

Consolidated Ct. No. 05-00003 Page 55

goods classified in 7009.91.00 as the Indonesian imports, it does

not address the claim that the Taiwanese and German mirrors include

specialty mirrors, and that specialty mirrors lead to a higher

valuation of the mirrors that are used in making wooden furniture

sets. If the distortion alleged by the Respondents is limited to

a problem with the data for imports from Taiwan and Germany, then

this evaluation by Commerce would demonstrate that the problems with

the Taiwanese and German data were not distortive. However, if the

problem with the mirror data is endemic to the subheading chosen by

Commerce to value the mirrors, then the distortions could also exist

within the Indonesian data, and the evaluation does not demonstrate

that the Taiwanese and German data do not have distortions.

Additionally, testing import data against import data does not

answer the broader issue raised by Respondents, i.e., that the

import data suggests higher prices for imported mirrors than

domestic mirrors, which would suggest that furniture manufacturers

would not purchase imported mirrors as inputs.

From this examination of the record and analysis it appears

that Commerce never examined or explained evidence on the record

that would seem to indicate (1) that the Indian furniture industry

does not use imported mirrors as an input; or (2) if the Indian

furniture industry does use imported mirrors as an input, that the

data Commerce is employing actually does not capture the price of

plain mirrors utilized in furniture production in India (i.e.,

Consolidated Ct. No. 05-00003 Page 56

Commerce only reviewed whether the data is indeed overinclusive of

plain mirrors, rather than whether the data was not inclusive at all

or distorted). See, e.g., Issues & Decision Mem., P.R. Doc. at 198

(Cmt. 25) (“Respondents [contend] that the core problem is that the

Indian import statistics are shaped by imports of products not used

in furniture production.”). Commerce must reexamine the MSFTI data,

in comparison to other data on the record, and/or determine that the

data does not include specialty mirrors.

In sum, on this issue, Respondents have placed on the record

data from four different sources indicating prices that are

significantly lower than the import-data-based values selected by

Commerce, yet Commerce has not evaluated the MSFTI mirror data vis-

a-vis the benchmarks offered by the Respondents, or vis-a-vis any

other non-MSFTI source.20 Commerce has rendered it impossible to

20

Commerce does try to explain, post-hoc, the differences

between the import prices and the prices provided by Respondents:

. . . all of the values to which [sic] respondent

claims are “mutually reinforcing” were championed by

respondent companies that had a keen interest in

selecting low values. It is hardly shocking that the

values they propose as “more accurate” are at the lower

end of the spectrum. Conversely, Indian import values

are more representative of prices from all of India

because they are not derived from the few values hand

picked by respondents. Therefore, it is perfectly

logical that they are higher; however, higher values do

not equate to inaccurate values, as respondents

erroneously assert.”

Def.’s Br. 64. This explanation, however, merely relies on the

blanket statement that import prices are more representative of

prices from all of India. As explained above, this rationale

(continued...)

Consolidated Ct. No. 05-00003 Page 57

demonstrate any inaccuracies or distortions in the data it has

selected, by requiring data sets being offered for comparisons to

be faultless. This is a standard that even Commerce’s data set

cannot meet. Respondents have also placed on the record a colorable

claim that the data set includes data that is either not

representative of the factor input or has a highly distortive effect

on the factor valuation. Because Commerce has not analyzed these

factors, or Respondents’ claims, the court cannot conclude that

Commerce’s conclusions with regard to mirrors are supported by the

record.

(b) Paints

Respondents allege that using MSFTI to provide a surrogate

value for paints is not in accordance with law or supported by

substantial evidence, because it leads to an inaccurate valuation

of paint inputs. Respondents allege that they have placed evidence

on the record that indicates that the surrogate value chosen by

Commerce is higher than the price paid by wooden bedroom furniture

manufacturers, and that the HTS[I] heading chosen to value paint is

overly broad, insofar as it also captures paint allegedly used for

automobiles and shipbuilding. Pls.’ Br. 26 - 27. Respondents

submitted information from (1) a major Indian paints supplier, Asia

20

(...continued)

only holds true if the import prices used capture the actual

inputs in question. Accordingly, Commerce’s rationale does not

constitute a reasonable examination or explanation as to what may

be driving the difference in prices.

Consolidated Ct. No. 05-00003 Page 58

Paints; (2) Infodrive and IBIS; and (3) Highland House and Tarun

Vadhera, that they claim provides better and more accurate

information for valuing the paint factor input, in addition to

demonstrating that the value selected by Commerce is inaccurate.

Id. 26 - 27, 32 - 34; Commerce rejected all surrogate values

proffered by Respondents, and chose to value paint under a four

digit heading for paint, HTS 3208. Issues & Decision Mem., P.R.

Doc. 1933 at 214 (Cmt. 26).

Respondents specifically allege that the surrogate value chosen

by Commerce for paint is overvalued, pointing to information they

have placed on the record that their price range for paint extends

from $2.18 to $4.03 a kilogram, while the surrogate value selected

by Commerce was $4.48/kg.21 They suggest that the very fact that

the values they have culled from various data sources are lower than

Commerce’s chosen values is in and of itself sufficient reason for

Commerce’s valuation to be doubted. However, it appears to the

court that this is not the test suggested by Hebei I, 28 CIT __,

Slip Op. 04-88 and Hebei II, 29 CIT __, 366 F. Supp. 2d 1264.

21

Respondents have divided their paints usage into five

categories: thinner, lacquer, sealer, stain and glaze. For

thinner, respondents provided values of between $1.18/kg -

$1.36/kg with a final determination valuation of $2.83/kg. The

final determination valuation for laquer, sealer, stain and glaze

was $4.48/kg each. For laquer, the respondents provided values

of between $2.11/kg - $3.89/kg; for sealer $2.42/kg - $3.89/ kg;

for stain $2.18/kg - $3.89/kg; and for glaze $2.99/kg - $4.03/kg.

Pls.’ Br. 27. Respondents also provided a per liter price for

the paint, but the court could not ascertain from the record

before it the conversion factor for liters to kilograms for the

various types of paint.

Consolidated Ct. No. 05-00003 Page 59

Hebei I & II stand for the proposition that import prices should not

be used when an industry uses domestic inputs, and that one means

of ascertaining whether or not domestic inputs are used is by

comparing domestic to imported prices. Hebei II 366 F. Supp. 2d

at 1274. However, in the case at bar, in the table comparing

various paint values provided by Respondents, Respondents provide

information from Infodrive India from two companies, “Advance Paints

and Linea Coats PVT, that were exhibitors at ‘Indiawood 2004' and,

unlike the other importers, import the types of paint . . . that are

used to finish wooden bedroom furniture.” Pls.’ Br. 26.

Respondents have also, therefore, indicated that the value that

Commerce selected includes the types of paint used in wooden

furniture production. Id.

The court’s analysis for mirrors found that the selection of

MSFTI as a data source for the valuation of mirrors was not

supported by substantial evidence in the face of evidence that (1)

companies do not source their mirrors internationally; (2) the MSFTI

data selected was either not inclusive of the type of mirror used

in wooden furniture production or was distorted by the inclusion of

specialty mirrors when the factor input was plain mirrors. For

paint, there is evidence on the record that the right type of paint

is imported. Additionally, though Respondents have placed evidence

on the record that the major paint importers as listed in Infodrive

India are companies that “purchase or supply paints used by the

Consolidated Ct. No. 05-00003 Page 60

automobile, computer, chemical and shipbuilding industries” and that

“none of these importers have anything to do with furniture

production,” Pls.’ Br. 26, they have not alleged or demonstrated

that these paints are distortive of the final surrogate value.

Therefore, Respondents have not alleged a sufficiently colorable

claim that the surrogate value chosen by Commerce is either not

inclusive of the factor input, or that it is overly distortive of

the value of the factor input.

Thus, Respondents’ argument becomes an allegation that

Commerce’s choice for surrogate value is overinclusive and that

instead Commerce should use, inter alia, Asian Paints (India)

Dealers Price List. Issues & Decision Mem., P.R. Doc. 1933 at 217-

223 (Cmt. 27). Respondents assert that this list is publicly

available, tax-exclusive and contemporaneous with the POI.

Additionally, Respondents contend that this list “describes the

maximum retail prices to be charged by all Indian dealers, is

representative of a large sample of domestic prices because Asian

Paints is a major producer of paint products that are sold and

distributed throughout India, [and] is not aberrational. . . .” Id.

at 218. Respondents contend that for at least Shing Mark, the Asian

Paints price list includes products that are comparable to the

reported factors of production, such as Asian Paints “Melamyne

Sealer” and “Melamyne Glossy.” Id.

Commerce rejected the use of the Asian Paints price list,

Consolidated Ct. No. 05-00003 Page 61

stating that it does not “best represent the respondents’ paint

inputs.” Id. at 222. Given that Shing Mark listed over 100

different paint inputs and Lacquer Craft listed over 230 paint

inputs, Commerce found that a single product list from a single

producer would not represent the “broad” multitude of factors

employed by the various respondents. Id. Commerce also determined

that “a single price list from a domestic Indian producer is not a

representative sample of the domestic prices charged for the

respondents’ finishing factors.” Id. at 223. Finally, after

examining the differences in retail prices reported on the Asian

Paints website, Commerce found that the Asian Paints price list was

not indicative of the prices paid by end-users, but rather was a

list of prices paid by dealers, and was therefore not indicative of

the prices paid by furniture manufacturers. Id. Effectively,

Commerce found that the prices from the Asian Paints price list were

both underinclusive, and at the wrong level of trade to use for

surrogate valuation.

As stated in our analysis above, supra at 32-33, when Commerce

is faced with a choice between two sub-optimal data sources, i.e.,

underinclusive vs. overinclusive data, Commerce’s choice between the

two is reasonable and supported by substantial evidence. Chia Far

Indus. Factory Co. v. United States, 28 CIT __, __, 343 F. Supp. 2d

1344, 1352 (2004) Because Commerce’s choice of MSFTI data to value

Consolidated Ct. No. 05-00003 Page 62

paint inputs22 in light of its alternatives was a reasonable

determination of the best available data, Commerce’s selection of

MSFTI data is appropriate.23,24 See Goldlink, 30 CIT at __, Slip

Op. 06-65 at 8. (“The Court’s role in the case at bar is not to

evaluate whether the information Commerce used was the best

available, but rather whether a reasonable mind could conclude that

Commerce chose the best available information.”)(citation omitted).

(c) Cardboard

22

The court’s holding here is limited to finding that

Commerce may reasonably determine that MSFTI represents the best

available information for valuing paint. This holding, however,

is not preclusive of Commerce finding a more narrow subheading

(to the six or eight digit level) or a series of subheadings, to

value paints, instead of the broad 4 digit heading of HTS[I]

chosen in the final determination.

23

AFMC avers that Commerce’s selection of a separate HTS[I]

subheading for thinner was unsupported by substantial evidence

and not in accordance with law, alleging that the aggregation of

products into “thinner” when the thinner was not an independent

factor of production, but rather was added to other finishes, was

not appropriate. The court finds this argument to be without

merit. Commerce was able to find a more specific match for the

product reported to be “thinner,” and therefore it was reasonable

for Commerce to use that valuation for that input. Cf.

Guangdong Chems.,30 CIT at __,414 F. Supp. 2d at 1311.

Therefore, Commerce’s selection of a separate valuation for

“thinner” is appropriate.

24

It is not clear whether or not Respondents are also

advocating for the valuation of paint using either Infodrive

India or Tarun Vadehra and Highland House data. To the extent

Respondents are, the court finds that its analysis above, with

respect to overinclusive or underinclusive data and the select

nature of Infodrive India, Tarun Vadehra and Highland House data,

see supra at 32-33,44-46, applies equally here.

Consolidated Ct. No. 05-00003 Page 63

Respondents also challenge Commerce’s valuation of packing

cardboard, which it assigned a value of $1.10/kg based on HTS[I]

subheading 4808.9000 (“[p]aper and paperboard, corrugated (with or

without glued flat surface sheets), creped, crinkled, embossed or

perforated, in rolls or sheets, other than paper of the kind

described in heading 4803 - other.”). Pls.’ Br. 27. Respondents

assert that this valuation is too high, basing their assertion on

data gathered from Tarun Vadehra and Highland House in India and

Goldfindo in Indonesia. According to Respondents, the cardboard

prices paid by these wooden furniture manufactures ranged from

$0.31/kg to $0.65/kg. Id. Respondents object to the utilization

of MSFTI data in this instance because these values are not specific

to the type of cardboard used by the Respondents. Respondents

suggest that Highland House and Tarun Vadehra provide a better, more

specific valuation for packing materials, as the packing materials

employed by these furniture producers are known in detail, as

opposed to the broad, general MSFTI data. Id. at 29.

Once again, Commerce was faced with a choice between two

imprecise, not-perfect surrogate values. The MSFTI data runs the

risk of being overbroad, in capturing more factor inputs than are

actually utilized by the wooden furniture industry in India, while

the data from the two Indian furniture producers runs the risk of

being too narrow, such that the factor input in question is not

actually captured by the proffered values. Though Respondents have

Consolidated Ct. No. 05-00003 Page 64

asserted that the cardboard data is distortive, they have not

produced evidence to indicate in what way the data is distortive.

Issues & Decision Mem., P.R. Doc. 1933 at 225 (Cmt. 29).

Respondents have not alleged that the industry does not use the

inputs captured by MSFTI, nor that the valuation is distorted by the

inclusion of more expensive specialized products. Respondents’

assertion in this instance is limited to pointing out how certain

producers in India pay less for their cardboard inputs. Pls.’ Br.

27 & 36. Though one could conclude from this evidence that this

lower price is reflective of the real experiences of all Indian

producers, one could also conclude that these are specific prices

for specific producers, reflective of their unique product needs,

and thus not reflective of the experience of all Indian producers.

Commerce examined and evaluated the data sources before it, and

chose between two imperfect data sources. Commerce’s conclusion,

that MSFTI represented the best available information in this

instance, was reasonable and supported by substantial evidence.

C. Wage rate

One of the primary factors of production for any product is the

cost of labor. Commerce treats the wage rate differently from all

other factors of production; for labor, Commerce employs

“regression-based wage rates reflective of the observed relationship

between wages and national income in market economy countries,”

19 C.F.R. § 351.408(c)(3). Using this regression analysis, Commerce

Consolidated Ct. No. 05-00003 Page 65

determines the relationship between countries’ per capita Gross

National Product (“GNI”) and their wage rates; Commerce approximates

the wage rate of the PRC by using the PRC’s GNI as the variable in

the equation that was the result of the regression. See Wooden

Bedroom Furniture from the People’s Republic of China: Final Results

of Redetermination Pursuant to Court Remand Orders (Dep’t Commerce

Aug. 1, 2005) (“Remand Determination”).25 Stated mathematically:

where Y is a constant26 (as determined by the regression model), X

is the coefficient (as determined by the regression model), GNIPRC is

the per capita GNP of the PRC, and WagePRC is the derived wage rate

for the PRC. Id. at 9.

For wage rate data used to calculate the regression, because

of “the practices of the respective data sources,” “[t]here is

normally a two-year interval between the current year and the most

recent reporting year of the data required for [Commerce’s]

25

Following the commencement of this litigation, Commerce

requested, and was granted, a voluntary remand to correct some

flaws in its wage rate calculation. The determination under

review is Commerce’s results pursuant to this voluntary remand.

This is the only aspect of Commerce’s determination that the

court is considering after a remand.

26

This term is also known as the y-intercept. The

regression model attempts to fit a line through various data

points, plotted along the x and y axes (here the x axis

representing GNI and the y axis representing the wage rate). The

constant, or y-intercept, is the point at which the line

predicted by the regression equation crosses the y-axis.

See, e.g., Lawrence Hamilton, Data Analysis for Social Scientists

309 (Wadsworth Publishing Co. 1996).

Consolidated Ct. No. 05-00003 Page 66

methodology.” Remand Determination at 4. Therefore, Commerce uses

the “most recent reporting year” provided by each country and

inflates those values, i.e., multiplies the values by the rate of

inflation. Commerce calculates the wage rate regression once a

year and uses that regression to calculate the wage rate for all

investigations and administrative reviews in NMEs conducted during

that year. For this investigation, Commerce calculated its

regression after choosing a wage rate data set for fifty-four market

economy countries, including the United States, as reported to the

World Bank for 2001. See Remand Determination at 4-5 & 14.

Respondents and AFMC challenge numerous aspects of Commerce’s

calculation of the wage rate here. Broadly speaking, Respondents

and AFMC allege three types of errors: (1) that Commerce’s method

for calculating the wage rate is facially unlawful; (2) that even

if the regulation is not facially unlawful, the manner in which

Commerce implements its regulation is unlawful; and (3) that

Commerce erred in its choice of data.27

(1) Facial Challenge

27

As Commerce noted in its Final Determination, and in its

brief, Commerce is currently seeking comments on its calculation

methodology for its NME Wage Rate Methodology. Expected Non-

Market Economy Wages: Request for Comment on Calculation

Methodology, 70 Fed. Reg. 37,761 (Dep’t. Commerce June 30, 2005).

While the court’s holding infra is that Commerce is not required,

by the statute, to limit its data set in its regression analysis

to economically comparable countries, in the manner calculated by

Respondents, nothing stated by the court here would preclude

Commerce from considering Respondents’ arguments in Commerce’s

reexamination of its NME wage rate methodology.

Consolidated Ct. No. 05-00003 Page 67

As noted above, the antidumping statute requires that

Commerce’s “valuation of the factors of production shall be based

on the best available information regarding the values of such

factors in a market economy country or countries considered to be

appropriate by the administering authority.” 19 U.S.C. §1677b(c)(1)

(emphases added). In defining the market economy countries to which

Commerce may turn, Congress further requires that Commerce

[S]hall utilize, to the extent possible, the prices or

costs of factors of production 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) significant producers of comparable

merchandise.

19 U.S.C. § 1677b(c)(4) (emphasis added). Commerce’s regulation

provides that “[f]or labor, [Commerce] will use regression-based

wage rates reflective of the observed relationship between wages and

national income in market economy countries.” 19 C.F.R.

§ 351.408(c)(3).

Respondents argue that although the section 1677b(c)(4) permits

Commerce to use data from only “comparable” market economies,

Commerce’s regulation does not require such comparability in the

selection of economies for the calculation of the wage rate.

Respondents further state that Commerce intended to include the word

“comparable” in its regulation, and unintentionally omitted that

Consolidated Ct. No. 05-00003 Page 68

word from its final rule. Therefore, Respondents argue, Commerce’s

regulation is void on its face. The court disagrees.

Although Commerce’s regulation does not specifically provide

that Commerce must choose comparable market economies, it does not

suggest the opposite either. Rather, the regulation is silent as

to how Commerce will select market economies for its data set. As

such, even if Respondents were correct that the antidumping statute

permits use of data only from comparable market economies, Commerce

could conceivably be faithful to both its regulation and

Respondents’ interpretation of the antidumping statute by using data

from only comparable market economies. Accordingly, Respondents

fail to state a case for the facial invalidity of Commerce’s

regulation. Cf. Reno v. Flores, 507 U.S. 292, 301 (1993); INS v.

Nat’l Center for Immigrants' Rights, Inc., 502 U.S. 183, 188 & 194

(1991).

(2) As Applied Invalidity

Respondents next argue that Commerce’s selection of market

economies for its regression in this instance violates the

antidumping statute. Specifically, Respondents argue that most of

the countries in the data set have a level of economic development

far exceeding that of the PRC. For example, among the nations

included within the data set is the United States (a nation with one

of the highest GNI’s). See Import Administration, Expected Wages

Consolidated Ct. No. 05-00003 Page 69

of Selected Non-Market Economy Countries, Expected Wage Calculation:

2003 GNI Data, Regression Analysis: 2003 GNI Data, Revised November

2005, htt p : / / i a . i t a .doc.gov/wages/03wages/110805- 2003-

Tables/03wages-110805.html (last visited August 10, 2006).

Therefore, Respondents contend, Commerce’s regression methodology

employs inappropriate countries for its calculation of the PRC’s

wage rate.

While it is true that Commerce’s regression analysis uses data

from non-comparable countries, the result (in theory) derives what

should be a comparable wage rate for the PRC. As Commerce has

explained “[t]he regression that results provides a formula that,

when applied to the non market economy country’s GNI, enables

Commerce to determine in an accurate, fair and predictable manner,

the labor wage rate of a market economy country at a comparable

level of development.” Def.’s Resp. Parties’ Comments Remand

Results Re: Commerce’s Labor Wage Rate 24 (“Def.’s Resp. Parties

Cmts.”).

It may be the case that there is a relationship between a

country’s GNI and its wage rate and that accuracy would be greatly

enhanced by using a broader data set of nations than just those at

a comparable level of development to the PRC. Under such

circumstances, using a broader data set may constitute the “best

available information” and recourse to a broader range of market

economy countries could be "appropriate" in advancing one of the

Consolidated Ct. No. 05-00003 Page 70

antidumping statute’s purposes, i.e., to calculate the dumping

margin as accurately as possible. This view of the “best available

information” and “appropriate” market economy country or countries

requirements is reflected in numerous court decisions. See, e.g.,

Shakeproof Assembly Components Div. of Ill. Tool Works, Inc. v.

United States, 268 F.3d 1376, 1381 (Fed. Cir. 2001) (“we have

specifically held that Commerce may depart from surrogate values

when there are other methods of determining the ‘best available

information’ regarding the values of the factors of

production.”)(citations omitted); Nation Ford Chem. Co. v. United

States, 166 F.3d 1373, 1378 n.5 (Fed. Cir. 1999) (the antidumping

duty statute "does not preclude consideration of pricing or costs

beyond the surrogate country if necessary"); Lasko Metal Prods. Inc.

v. United States, 43 F.3d 1442, 1446 (Fed. Cir. 1994)(relying on the

international market price for the factors of production); Globe

Metallurgical, Inc. v. United States, 28 CIT ___,___, 350 F. Supp.

2d 1148, 1158 (2004) (“Under some circumstances, however, where the

NME country has become a market economy, the post-NME values will

best serve as representative of the values of the NME country as if

it were a market economy.”).

Indeed, the court in Nation Ford explicitly approved the notion

of creating a “hypothetical” market economy to approximate the

production experience of the PRC. Nation Ford, 166 F.3d at 1378.

Consequently, Commerce’s calculation, at least in theory, produces

Consolidated Ct. No. 05-00003 Page 71

a hypothetical wage rate for the PRC, which is therefore by

definition a wage rate for a producer country at a comparable level

of development, as required by 19 U.S.C. § 1677b(c)4. As such, so

long as a reasonable mind can find that Commerce’s data choice in

using the regression methodology constitutes the “best available

information” in a particular case, nothing precludes Commerce from

using sources outside a surrogate country to value the factors of

production. Cf. Nation Ford, 166 F.3d at 1378 (the “best available

information” test must be evaluated under the circumstances of the

case).

This, however, raises the main thrust of Respondents’ arguments

here. Specifically, Respondents claim that (1) the manner in which

Commerce created the regression model was arbitrary and therefore

unsupported by substantial evidence; (2) the results of the

regression model may be distorted; and (3) Commerce has failed to

explain why it uses the PRC's GNI but not its wage rate. The court

considers each claim in turn.

(a) Creation of the Regression Model

Commerce selected the wage rate data for its regression from

the Yearbook of Labour Statistics, published by the International

Labour Organization (ILO). Remand Determination at 5. Commerce

follows a three-step process in choosing which data it will use.

First, Commerce establishes a minimum standard for data. Under this

standard, Commerce will only use data if that data is (i) less than

Consolidated Ct. No. 05-00003 Page 72

five years old; (ii) reports wages for both male and female

employees; and (iii) covers "different types of industr[ies]."

Remand Determination at 6. Next, because the ILO database includes

multiple expressions of wage rates, Commerce must choose which data

meeting its minimum threshold it will use for a particular country.

Commerce prioritizes data using the following criteria (in this

order of precedence): (i) "’[w]orker [c]overage,’ i.e., coverage of

different types of workers, such as wage earners or salaried

employees"; (ii) "’[t]ype of [d]ata,’ i.e., the unit of time for

which the wage is reported, such as per hour or per month”; and

(iii) "’[s]ource ID,’ i.e., a code for the source of the data." Id.

Within each factor, Commerce has preferences. For example, Commerce

"generally prioritizes 'wage earners,' 'employees' and 'total

employment,' in that order for the parameter 'Worker Coverage.'"

Id. at 7. "Finally, it is the Department's normal practice to

eliminate aberrational values (i.e., values that vary in either

direction in the extreme from year to year) from the wage rate

dataset" Id. Using these criteria, Commerce used the wage rate

data of fifty-four countries.28

Here, Commerce has acknowledged (a) the desirability of a

broader data set in its own justification for the creation and

28

The initial data set that Commerce employed in this

investigation had fifty-six countries. In the Remand

Determination, Commerce determined that the data from two

countries were not reliable. Remand Determination at 13. As a

result, the data set employed in December 2004 consisted of only

fifty-four countries.

Consolidated Ct. No. 05-00003 Page 73

utilization of a regression model for wage rates, see Def.’s Br. 21

(“Due to the variability of wage rates in countries with similar per

capita GNI, a more accurate result would be obtained by utilizing

data from multiple countries.”)(citations omitted); id. at 5 & 24

(“A relatively broad data set helps to prevent bias and ensure that

the regression is statistically sound.”); Rules and Regulations 19

CFR Parts 351, 353 and 355, Antidumping Duties; Countervailing

Duties, 62 Fed. Reg. 27,296 at 27,367 (May 19, 1997) (“Preamble 19

CFR § 351”) (“averaging of multiple data points . . . should lead

to more accurate results. . . .”); (b) that additional countries for

which it had available data (may have) met its selection criteria,

Final Determination, 69 Fed. Reg. 67,313, 67,317; Issues & Decision

Mem., P.R. Doc. 1933 at 180 (Cmt. 23)29; and (c) use of these

additional countries would yield a better result than a regression

model without such countries, id. Under such circumstances,

Commerce’s exclusion of the countries that met its own selection

criteria was arbitrary and therefore unsupported by substantial

evidence. Accordingly, Commerce’s regression model cannot constitute

29

Specifically Commerce stated:

the Department agrees in part with Dorbest that a

recalculation of the regression analysis may require

the Department to expand the basket of countries it

includes in its regression analysis. A review of the

data shows, however, that it may be appropriate to

include substantially more than the nineteen countries

which Dorbest identifies.

Issues & Decision Mem., P.R. Doc. 1933 at 180 (Cmt. 23).

Consolidated Ct. No. 05-00003 Page 74

the “best available information.” Indeed, even if the statute did

not require the use of “best available information” an arbitrary

application of selection criteria is inherently unreasonable and,

therefore, renders the conclusion unsupported by substantial

evidence. Cf. Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm

Mut. Auto. Ins. Co., 463 U.S. 29, 48 (1983). Nor can Commerce hide

behind its own regulation - Commerce’s regulation, when interpreted,

must yield a reasonable interpretation of the statute.

Arbitrariness is inherently unreasonable. Cf. Allied Pac. Food

(Dalian) Co. v. United States, 30 CIT ___,___, Slip Op. 06-89 at 48

(June 12, 2006) (finding non-adherence to selection criteria to be

reversible error).

Unsurprisingly then, Commerce does not contest this premise.

Instead, Commerce stated that it would not increase the data set

here because: (i) such an undertaking would require a significant

change in the data set that should be subject to comment from the

general public; and (ii) this would require more time than was

available in the investigation in order to “determine an accurate

construction of a new dataset and to conduct a new regression

analysis. Issues & Decision Mem., P.R. Doc. 1933 at 180 (Cmt. 23);

Remand Determination at 22; see also Def.’s Resp. Parties Cmts. 28.

The court will consider each rationale.

(i) Notice and Comment Rulemaking

Consolidated Ct. No. 05-00003 Page 75

Commerce’s first argument, i.e., that the data set in question

must be developed through notice-and-comment rulemaking, appears to

be inconsistent with Commerce’s past practice. Commerce has in the

past updated and expanded the number of countries within the data

set without resorting to notice and comment rulemaking. In fact,

during the investigation here, Commerce used a basket of fifty-six

countries, but during the voluntary remand, used a basket of only

fifty-four. Remand Determination at 13. No notice-and-comment

rulemaking was used to effect the change. Commerce has also, over

time, expanded its data set of countries from forty-five countries

to fifty-six countries without vetting its choices through notice-

and-comment rulemaking. During the notice-and-comment period for

this regulation, Commerce foresaw utilizing forty-five countries for

the regression analysis. See Proposed Rules 19 CFR Parts 351, 353,

and 355 Antidumping Duties; Countervailing Duties, 61 Fed. Reg.

7308, 7345 (Dep’t Commerce Feb. 27, 1996) (“Proposed Rule”) (noting

that the methodology would employ approximately forty-five

countries); Import Administration, Expected Wages of Selected Non-

Market Economy Countries, http://ia.ita.doc.gov/wages (last visited

October 5, 2006) (“For previous updates, we utilized the wage and

gross domestic product (GDP) data of at least 45 market economies

collected from publicly available sources such as the International

Labour Organization and the World Bank/International Monetary

Fund.”). By the year 2002, Commerce had increased this data set to

Consolidated Ct. No. 05-00003 Page 76

fifty-six countries. Expected Wages of Selected Non-Market Economy

Countries, Corrected 2000 data Revised September 2002,

http://ia.ita.doc.gov/wages/corrected00wages/corrected00wages.htm.

Commerce has even changed the underlying data it uses in its

methodology without notice-and-comment rulemaking. See Expected

Wages of Selected Non-Market Economy Countries,

http://ia.ita.doc.gov/wages (“However, beginning with last year’s

update (May 2000), we chose to use per capita gross national product

(GNP) instead of GDP.”). Consequently, under the regulation,

Commerce has expanded and contracted its data set at will, as well

as altered the underlying data. Cf. Qwest Corp. v. FCC, 258 F. 3d

1191, 1206 (10th Cir. 2001) (“the FCC is not required to begin a new

notice-and-comment period every time it fixes a technical bug in its

computer program.”).

Moreover, it is fundamental administrative law that when a

regulation is unlawful, or a finding of fact unsupported by

substantial evidence, Commerce must change its practice or

conclusion. See, e.g., Allegheny Ludlum Corp. v. United States, 367

F.3d 1339 (Fed. Cir. 2004) (noting that Commerce employed a

different test than that provided for in the regulation found

unlawful by the Court of International Trade). Contrary to

Commerce's reasoning, it may not continue to unlawfully apply a

regulation or finding of fact to a party. Accordingly, this defense

must be rejected.

Consolidated Ct. No. 05-00003 Page 77

(ii) Deadlines

Commerce’s second argument is that, given its statutory

deadlines for completing investigations, Commerce could not consider

available information in updating its regression model. Congress

was certainly sensitive to this concern by limiting Commerce’s

choice of data to that “available” during the investigation. But

in recognizing this concern, Congress nonetheless required that if

information was available, i.e., placed on the record, Commerce was

compelled to consider it. Therefore, Commerce’s defense runs

directly against its statutory duty. Consequently, Commerce’s

second defense must also be rejected.

The difficulty here is more pronounced than it might be in

another context. Commerce’s problem here is entirely self-inflicted

– it chose such an “extremely complex” methodology. Remand

Determination at 2. When adopting such an “extremely complex”

methodology, Commerce should have been aware that correcting it

would also be complex. Therefore, Commerce cannot reasonably

defend its actions here by invoking problems of its own creation.

(b) Distortion of Regression Model

Commerce’s regression model also appears to produce distorted

results. Consider, as an example, the prediction of India’s labor

wage rate. In its Remand Determination, Commerce calculated the

constant to be 0.392, the coefficient to be 0.00048, and India’s

Consolidated Ct. No. 05-00003 Page 78

2002 GNI (expressed in U.S. dollars) to be $470. See Exhibit III

to Remand Determination at pp. 2, 3, 5 & 6. Commerce’s model

therefore predicts India’s wage rate to be $0.6176 per hour.30

However, the labor wage Commerce used for India was $0.21 per hour

– approximately one-third of what the model predicts. Id. at 3.

Therefore, assuming that the Indian labor wage rate is accurate and

representative, it appears that the regression contains a bias or

distortion. Given that India was the country Commerce found most

comparable to the PRC with respect to all other factors of

production, it seems likely then that a similar distortion or

inconsistency could result in computing the wage rate of the PRC.

At the least, there appears to be an inconsistency or distortion in

Commerce’s figures, a distortion Commerce does not explain.

This possible distortion also appears when one considers the

effect of the constant, i.e., 0.392. If a country had no GNI, i.e,

GNI = 0, then the model would predict a wage rate of $ 0.392.31

30

I.e., WageIndia= 0.392 + .00048 * 470 = $0.6176.

31

Of the countries Commerce found economically comparable to

the PRC, only one country has a higher wage rate than this

baseline (without adding in the value of GNI*0.00048).

(continued...)

Consolidated Ct. No. 05-00003 Page 79

Thus, Commerce’s regression model appears to overstate wage rates

of low-income countries. This would appear problematical here where

Commerce is attempting to value labor in such a low-income country,

i.e., the PRC. While Commerce’s model may be the best information

available on the record, here Commerce has failed to give a viable

explanation for its choice in light of this possible distortion of

its predicted wage rate of countries such as the PRC.

Rather, despite these possible anomalies, Commerce's only

apparent justification is that use of the regression model leads to

an accurate, fair, and predictable computation of the wage rate.

See Remand Determination at 22. In the face of what appears to be

flaws in Commerce’s figures, the first observation, i.e., accuracy,

31

(...continued)

Country Wage rate GNI Predicted Wage

rate

India $.21 470 $0.62

Pakistan $.36 420 $0.59

Sri Lanka $.33 850 $0.80

Indonesia* $.35 n/a n/a

Philippines $.81 1030 $0.89

*Indonesia was not included within Commerce's regression model;

this number was provided to Commerce by Respondents.

All data came from, or was compiled using data obtained in,

Exhibit III to Remand Determination at 3 & 5. For reference, the

PRC’s GNI for 2002 was $960. See Exhibit II to Remand

Determination at 1. It is not clear to the court whether the

source of this apparent distortion is in the underlying wage rate

data set, in Commerce’s calculation, or in the regression model

itself.

Consolidated Ct. No. 05-00003 Page 80

is no more than a conclusory statement. Nor does the court find

that the claims of fairness and predictability are supportable. In

adopting its regulation Commerce commented that "[i]t also is

fairer [to use the regression method], because the valuation of

labor will not vary depending on which country [Commerce] selects

as the economically comparable surrogate economy." Preamble 19 CFR

§ 351, 62 Fed. Reg. at 27,367. At the same time, in this case,

Commerce used a wage rate of $0.85 which appears to be higher than

each of the possible surrogate countries. Commerce should examine

and balance these competing claims to “fairness.”

As for predictability, first, because the computation of normal

value for merchandise from an NME is based on many different factors

calculated during an investigation, the added predictability of a

wage rate (if there is any) has limited utility -- assuredly not

enough to permit an inaccurate computation. Second, Commerce

recalculates the wage rate annually. It is therefore unclear to

what degree the use of the regression here guarantees

predictability. Certainly, the data set Commerce used here was not

available when the Respondents were importing the merchandise under

investigation -- therefore, they gained no benefit from the

predictability (if any) of its use. Third, if the regression model

is inaccurate, Commerce's use thereof could simply be adding a

tariff to Respondent's merchandise without there existing a

violation of the antidumping statute. In other words, predictable

Consolidated Ct. No. 05-00003 Page 81

or not, Commerce's antidumping authority would be of uncertain

legitimacy. Such a method would also be contrary to congressional

intent. See S. Rep. No. 100-71 at 106 (1987) (quoted above). While

the court will give more deference to long-standing agency

practices, this deference is neither automatic nor unlimited.

See, e.g., AK Steel Corp. v. United States, 226 F.3d 1361 (Fed. Cir.

2000).

Therefore, on this record, and lacking sufficient justification

from Commerce for its choices made, the court cannot conclude that

Commerce’s selected calculation of its regression model is

reasonable.32 Cf. Qwest, 258 F. 3d at 1206 (plaintiff “has not

presented any evidence that the model overall produces such

inaccurate results that it cannot form the basis of rational

32

In AFMC’s response to the court’s questions of July 13,

2006, AFMC pointed out that some changes to the data set or the

regression model would create “distortions and results that are

less reliable than Commerce’s existing methodology.” AFMC Resp.

Court’s July 13, 2006 Qs. 19. AFMC points to the fact that

Commerce’s data set of 56 countries leads to an adjusted R square

of 0.92 while if only the LI [low-income] and LMI [lower-middle

income] countries were used, the adjusted R square is only 0.47.

Id.

This argument ignores two crucial points. First, accepting

all of AFMC’s points as true, these are points addressing the

reasonableness of the model, through an evaluation

of the statistical soundness of the model, that Commerce would

have to make to demonstrate reasonableness in the face of other

discrepancies and distortions. Secondly, as to the point that

restricting the data set to only low income and lower-income

countries would reduce the adjusted R-squared, this does not

address what the outcome would be were the data set to be

expanded to include all countries that meet Commerce’s criteria.

Commerce is, of course, free, upon remand to consider these

issues and respond appropriately.

Consolidated Ct. No. 05-00003 Page 82

decision-making.”) (emphasis removed).

Additionally, Commerce uses the GNI of the PRC in its wage rate

calculation while, at the same time, declining to use wage rate data

from the PRC. See Remand Determination at 9. Respondents object

to the use of the GNI from the PRC in calculation of the wage rate,

pointing out that the entire reason behind using surrogate value

data is that Commerce has determined that the PRC is an NME, and,

as such, Commerce does not trust the wage and price data that

emerges from the PRC to be truly reflective of market-forces. The

GNI, representing the per capita income of a country, is in part

based on the wages in a given country, as wages affect income.

Commerce, relying on its regulation, failed to address the

substantive point raised in this argument. To be sure, despite the

presumption that data from an NME is unreliable, Commerce may be

justified in finding some data from the PRC reliable while finding

other data from the PRC unreliable, e.g., Commerce may conclude that

the PRC's GNI data is reliable whereas the PRC's wage rate data is

not. However, at the very least, Commerce must justify why it made

such a finding. See, e.g., Allied Pac. Food, 30 CIT at ___, Slip

Op. 06-89 at 48. Therefore, this matter is also remanded for an

explanation as to why Commerce finds the PRC’s GNI data to be

sufficiently reliable to utilize in a regression analysis.

* * *

Consolidated Ct. No. 05-00003 Page 83

The court expresses no opinion on whether Commerce's

regression methodology is salvageable.33 The court notes, however,

that this will be Commerce's third try to rectify problems with its

methodology in this case.34

Upon consideration on remand, Commerce must explain why it is

using the data set it employs in face of the objections noted above

and address any apparent statistical anomalies. If Commerce finds

it cannot offer such explanation, Commerce shall use the "best

available information" as required by the antidumping statute.

(3) Proper Data Set

AFMC also disagrees with Commerce’s approach for a different

reason. During the proceedings on remand, Commerce admitted that

“[a]fter extracting the selection of datapoints from the larger

dataset, [Commerce} did not retain the full underlying ILO dataset”

it had used during the investigation. Remand Determination at 17.

33

For instance, Respondents have alleged that Commerce’s

data set appears to be heteroscedastic (that is, the variance

between the predicted data point and the actual data point varies

over the data set). Respondents also allege that the appropriate

means of correcting for such heteroscedasticity would be to

employ a Generalized Least Squares Model instead of an Ordinary

Least Squares Model in Commerce’s regression analysis. The

court, of course, does not know whether or not this would improve

the accuracy of the model, but this is an example of a step

Commerce could consider on remand.

34

Commerce made adjustments during ministerial error

proceedings and during the voluntary remand.

Consolidated Ct. No. 05-00003 Page 84

Therefore, because the original data set was lost, Commerce used a

data set compiled a month after the publication of the Final

Determination in the Remand Determination. Id. at 10-12, 17.

Commerce did note that the data set it used was “drawn from the same

ILO database that existed during [Commerce’s] investigation.” Id.

at 17. However, Commerce also noted that “while [Commerce] would

prefer to use a 2002 wage rate data set that was extracted in

October 2004, such a data set is not available.” Id. Commerce

further commented that “parties provided [no] information to suggest

that there are any material differences between the datasets.” Id.

AFMC argues that it was improper for Commerce to resort to a

data set compiled after the investigation. In supporting its

arguments, AFMC points to what it claims are “material” differences

(presumably outcome determinative differences) between the data

sets. AFMC further questions when the data was extracted, claiming

that the data upon which Commerce relied was not “available” during

the investigation; it avers that because Commerce did not retain the

original data set, Commerce cannot claim that the information was

actually available during the pendency of the investigation.

Much of AFMC’s legal premise is correct. First, when Commerce

uses data, it must include that data as part of the record.

19 U.S.C. § 1516a(b)(2); see also 19 U.S.C. § 1677f(a)(3); 19 C.F.R.

§§ 351.104(a)(1). Commerce must, in turn, file this record with the

clerk of this Court within forty days of the service of the

Consolidated Ct. No. 05-00003 Page 85

complaint filed under 19 U.S.C. § 1516a. See 28 U.S.C. § 2635(b);

USCIT R. 73.2. Moreover, just as “substantial evidence review (on

the record) would not be a meaningful exercise if the ‘evidence’

that comprised the record was obtained through an arbitrary

procedure,” Decca Hospitality Furnishings, LLC v. United States,

29 CIT ___,___, 391 F. Supp. 2d 1298, 1305 (2005), substantial

evidence review would not be meaningful if Commerce fails to turn

over the relevant evidence to the court to review. Even absent this

requirement, however, Commerce additionally erred in failing to

retain information relevant to ongoing litigation; such an error may

render the court less able to perform its function and result in a

miscarriage of justice.

AFMC is also right in claiming that Commerce may only resort

to the “best available information.” See 19 U.S.C. § 1677b(c)(1).

Although the statute does not define the time period in which

“availability” is measured, given that administrative law defines

“available” in terms of the underlying investigation, “available”

must mean “available during the investigation.” See, e.g., Vt.

Yankee Nuclear Power Corp. v. Natural Resources Def. Council, Inc.,

435 U.S. 519, 555 (1978) (“[T]he role of a court in reviewing the

sufficiency of an agency's consideration of environmental factors

is a limited one, limited both by the time at which the decision was

made and by the statute mandating review."); see also Co-Steel

Raritan, Inc. v. ITC, 357 F.3d 1294, 1316-1317 (Fed. Cir. 2004); cf.

Consolidated Ct. No. 05-00003 Page 86

19 U.S.C. § 1677f(a)(3); S. REP. NO. 96-249 at 247-48 (1979),

reprinted in 1979 U.S.C.C.A.N. 381, 633 ("Judicial review of

determinations subject to the provisions of subsection (a)(1) would

proceed upon the basis of information before the relevant

decision-maker at the time the decision was rendered including any

information that has been compiled as part of the formal record.").

However, these legal principles notwithstanding, 19 U.S.C.

§ 1677b(c)(1) only applies to the information itself, i.e., the

source data, apart from any manipulations or analysis of that data,

i.e., the actual data set. After all, Commerce routinely compiles

data sets to value factors of production; if “information” included

these manipulations then, after a determination issues, Commerce

could never go back and fix errors in its analysis without creating

new “information” unavailable during the investigation. Cf. infra

at 100 n. 36. Consequently, to allege that Commerce has relied on

data unavailable during the investigation, a party must allege more

than that the data set as used was unavailable; it must allege that

the underlying data which was then used in the data set was

unavailable during the investigation.

With this foundation in place, AFMC fails to sufficiently

allege reversible error. First, it appears that AFMC’s actual claim

is that the data was not extracted rather than the data set was

unavailable. See, e.g., AFMC’s Resp. Br. Final Result of

Redetermination Re: Wage Rate Calculations 4. Simply because data

Consolidated Ct. No. 05-00003 Page 87

was not “extracted” does not mean that it was unavailable.

Therefore, Commerce’s isolated statement in its Remand Determination

(and others in Commerce’s brief) cannot support AFMC’s argument.

AFMC’s argument also contradicts Commerce’s comment that the

information was unavailable during the investigation. Remand

Determination at 17. Although Commerce’s inability to present the

data set for examination may make it more difficult for parties to

contest Commerce’s assertion, all the data upon which Commerce

relied is publically available.35 As such, AFMC could still have

presented evidence before the closure of the investigation. Given

these considerations, the court rejects AFMC’s argument.

D. Financial Ratios

Because firms have “general expenses and profits” not traceable

to a specific product, in order to capture these expenses and

profits, Commerce must factor (1) factory overhead (“overhead”), (2)

selling, general and administrative expenses (“SG&A”), and (3)

profit into the calculation of normal value. 19 U.S.C.

§ 1677b(c)(1); see also Final Determination, 69 Fed. Reg. at 35,327;

Hebei II, 29 CIT at __, 366 F. Supp. 2d at 1277 n.7; Shanghai

Foreign Trade Enters. Co. v. United States, 28 CIT __, ___, 318 F.

35

Commerce obtains its wage rate data from the International

Labor Organization, Yearbook of Labour Statistics; country-

specific consumer price index and exchange rate data from the

International Monetary Fund, International Financial Statistics;

and country specific GNI data from the World Bank, World

Development Indicators. See Remand Determination at 5.

Consolidated Ct. No. 05-00003 Page 88

Supp. 2d 1339, 1341 (2004); Peer Bearing Co. v. United States, 25

CIT 1199, 1214-15, 182 F. Supp. 2d 1285, 1303-04 (2001); cf.

19 U.S.C. §§ 1677b(c)(4),1677b(b)(3)(B), 1677b(e). As with its

calculation of the other factors of production, Commerce uses

surrogate values to determine an importer’s financial ratios. In

this instance, Commerce uses financial statements from one or more

surrogate company/companies to calculate comparable ratios.36

36

These values are calculated as follows. Factory overhead

includes such costs as the cost of machinery, spare parts, and

rent. Commerce adds together all such costs, as expressed on a

surrogate company’s financial statement, to get the total

overhead expenditure (“Overheads”); Commerce then divides the

result by the surrogate firm’s material, labor, and energy costs

(“MLEs”). See, e.g., Memorandum from Jon Freed, Case Analyst, to

File Re: Final Determination Financial Ratio Memorandum: Wooden

Bedroom Furniture from the People’s Republic of China, P.R. Doc.

1931 at Attachs. 2-10. (“Financial Ratio Memo”). Finally,

Commerce multiplies the result by the derived manufacturing cost

of the product in question of the investigated firm (“MLEp”).

The result is the overhead that may be allocated to the normal

value of the merchandise in question (“Overheadp”). Stated

mathematically:

Next, Commerce adds the surrogate firm’s MLE and Overhead

(together “the cost of manufacturing”) and determines an amount for

general expenses (“SG&As”) including, for example, expenses such as

bank charges, travel expenses, and office supplies. See Magnesium

Corp. of Am. v. United States, 166 F.3d 1364, 1371-72 (Fed. Cir.

1999); Financial Ratio Memo, P.R. Doc. 1931 at Attachs. 2-10.

Commerce then calculates the ratios of the surrogate firms’ SG&A to

its cost of manufacturing and multiplies this ratio by the sum of

MLEp and Overheadp; the result is the SG&A that may be allocated to

the merchandise in question (“SG&Ap”). Stated mathematically:

Last, Commerce adds an amount for profit. Commerce initially

calculates the surrogate company’s profit ratio which is the ratio

of the surrogate company’s before-tax profit (“profits”) over the

(continued...)

Consolidated Ct. No. 05-00003 Page 89

In choosing financial statements, Commerce “normally will use

nonproprietary information gathered from producers of identical or

comparable merchandise in the surrogate country.” 19 C.F.R.

§ 351.408(c)(4). In choosing from financial statements which meet

this criterion, Commerce generally considers the quality,

specificity, and contemporaneity of the available financial

statements. See Issues and Decision Memorandum at Cmt. 5

accompanying Fresh Garlic From the People’s Republic of China, 67

Fed. Reg. 72,139 (Dep’t Commerce Dec. 4, 2002) (final results of

antidumping duty new shipper review) available at

http://ia.ita.doc.gov/frn/summary/prc/02-30771-1.pdf (“Fresh

Garlic”). Commerce may also consider the “representativeness of the

production experience of the surrogate producers in relation to the

respondent’s own experience[,]” Issues and Decission Memoradum at

Cmt. 9, accompanying Persulfates from the People's Republic of

China, 68 Fed. Reg. 6712 (Dep’t Commerce Feb. 10, 2003) (final

results of antidumping duty administrative review) available at

http://ia.ita.doc.gov/frn/summary/prc/03-3285-1.pdf. We note again

36

(...continued)

sum of MLEs, Overheads, and SG&As. Financial Ratio Memo, P.R. Doc.

1931 at Attachs. 2-10; Shanghai Foreign Trade Enters. Co., 28 CIT

at ___, 318 F. Supp. at 1341. Commerce then multiplies this result

by the investigated company’s derived MLEp, Overheadp, and SG&Ap.

The result is the profit that may be allocated to the merchandise

in question (“profitp”). Stated mathematically:

Consolidated Ct. No. 05-00003 Page 90

that Commerce must apply its selection criterion in a consistent and

uniform manner, otherwise its selection could become arbitrary and

capricious.

In order to derive “a more accurate portrayal of the economic

spectrum,” Commerce may, of course, select more than one surrogate

company from which to draw data. Issues and Decision Memorandum at

Cmt. 6 accompanying “Fresh Garlic”, 67 Fed. Reg. 72,139. When this

is the case, Commerce usually calculates the simple average of the

selected companies’ financial ratios. Rhodia, Inc. v. United

States, 25 CIT 1278, 1285, 185 F. Supp. 2d 1343, 1350 (2001);

see also Timken v. United States, 26 CIT 434, 466-67, 201 F. Supp.

2d 1316, 1346 (2002). Nevertheless, although using multiple

financial statements is permissible, as will be discussed below,

Commerce is not justified in sacrificing quality for quantity; put

differently, Commerce must justify why the data set it chooses is

appropriate. Otherwise, Commerce’s decision would not be faithful

to its own stated criteria.

In the case at bar, the parties submitted financial statements

of eighteen companies. Commerc

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