                                      Slip Op. 14-115

                UNITED STATES COURT OF INTERNATIONAL TRADE


  JIAXING BROTHER FASTENER CO.,

                       Plaintiffs,

         v.                                             Before: Leo M. Gordon, Judge

  UNITED STATES,                                        Court No. 12-00384

                      Defendant.


                                         OPINION

[Remand results sustained.]

                                                                Dated: September 25, 2014

      Gregory S. Menegaz, J. Kevin Horgan, and John J. Kenkel for deKieffer & Horgan,
PLLC, of Washington, DC for Plaintiffs Jiaxing Brother Fastener Co., Ltd., aka Jiaxing Brother
Standard Parts Co., Ltd., IFI & Morgan Ltd., and RMB Fasteners Ltd.

       Carrie A. Dunsmore, Trial Attorney, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice for Defendant United States. With her on the brief were Stuart F.
Delery, Assistant Attorney General, Jeanne E. Davidson, Director, Patricia M. McCarthy,
Assistant Director. Of counsel on the brief was Daniel J. Calhoun, Senior Attorney, Office of
the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce of
Washington, DC.

      Frederick P. Waite and Kimberly R. Young for Vorys, Sater, Seymour and Pease LLP
of Washington, DC for Defendant-Intervenor Vulcan Threaded Products Inc.


       Gordon, Judge: This action involves the second administrative review conducted

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

covering steel threaded rod from the People’s Republic of China (“PRC”). See Certain

Steel Threaded Rod from the People’s Republic of China, 77 Fed. Reg. 67,332 (Dep’t of

Commerce Nov. 9, 2012) (final results second admin. review) (“Final Results”); see also
Court No. 12-00384                                                                  Page 2


Issues and Decision Memorandum for Final Results of Second Administrative Review of

Certain Steel Threaded Rod from the People’s Republic of China, A-570-932 (Nov. 5,

2012), available at http://enforcement.trade.gov/frn/summary/PRC/2012-27438-1.pdf

(last visited this date) (“Decision Memorandum”). Before the court are the Results of

Redetermination, ECF No. 39 (“Remand Results”), filed by Commerce pursuant to Jiaxing

Brother Fastener Co. v. United States, 38 CIT ___, 961 F. Supp. 2d 1323 (2014)

(“Jiaxing I”). Familiarity with the court’s decision in Jiaxing I is presumed. The court has

jurisdiction pursuant to Section 516A(a)(2)(B)(iii) of the Tariff Act of 1930, as amended,

19 U.S.C. § 1516a(a)(2)(B)(iii) (2012),1 and 28 U.S.C. § 1581(c) (2012).

       Plaintiffs Jiaxing Brother Fastener Co., Ltd., aka Jiaxing Brother Standard Parts

Co., Ltd., IFI & Morgan Ltd., and RMB Fasteners Ltd. (collectively, “Plaintiffs”) challenge

Commerce’s continued selection of Thailand as the primary surrogate country. For the

reasons that follow, the court sustains Commerce’s Remand Results.

                                  I. Standard of Review

       For administrative reviews of antidumping duty orders, the court sustains

Commerce’s “determinations, findings, or conclusions” unless they are “unsupported by

substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C.

§ 1516a(b)(1)(B)(i). More specifically, when reviewing agency determinations, findings,

or conclusions for substantial evidence, the court assesses whether the agency action is

reasonable given the record as a whole. Nippon Steel Corp. v. United States, 458 F.3d


1
 Further citations to the Tariff Act of 1930, as amended, are to the relevant provisions of
Title 19 of the U.S. Code, 2012 edition.
Court No. 12-00384                                                               Page 3


1345, 1350-51 (Fed. Cir. 2006). Substantial evidence has been described as “such

relevant evidence as a reasonable mind might accept as adequate to support a

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

2005) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Substantial

evidence has also been described as “something less than the weight of the evidence,

and the possibility of drawing two inconsistent conclusions from the evidence does not

prevent an administrative agency’s finding from being supported by substantial evidence.”

Consolo v. Fed. Mar. Comm'n, 383 U.S. 607, 620 (1966).          Fundamentally, though,

“substantial evidence” is best understood as a word formula connoting reasonableness

review. 3 Charles H. Koch, Jr., Administrative Law and Practice § 9.24[1] (3d ed. 2014).

Therefore, when addressing a substantial evidence issue raised by a party, the court

analyzes whether the challenged agency action “was reasonable given the circumstances

presented by the whole record.” Edward D. Re, Bernard J. Babb, and Susan M. Koplin,

8 West's Fed. Forms, National Courts § 13342 (2d ed. 2014).

                                     II. Discussion

      In both the Final Results and the Remand Results, Commerce selected Thailand

over the Philippines as the primary surrogate country and used Thai data to value all of

Plaintiffs’ factors of production. Commerce did so in part because it believed a Thai

company called Capital Engineering Network Public Company Limited (“CEN”) could

serve as an adequate proxy for Plaintiffs’ overhead, SG&A, and profit ratios. Plaintiffs

contend that Commerce’s use of CEN arbitrarily conflicts with Steel Wire Garment

Hangers from the People’s Republic of China, 77 Fed. Reg. 66,952 (Dep’t of Commerce
Court No. 12-00384                                                               Page 4


Nov. 8, 2012) (prelim. results third admin. review) (“Wire Hangers”), a preliminary

determination in a proceeding involving merchandise similar to steel threaded rod that

Commerce issued one day prior to the Final Results contested here. Pl.’s Comments on

Remand Determ. 1-2, ECF No. 43 (“Pls.’ Br.”).

      In Wire Hangers, Commerce selected the Philippines over Thailand as the primary

surrogate country because of concerns over the available Thai data, and in particular,

problems it identified with a CEN financial statement.      Decision Memorandum for

Preliminary Results of Antidumping Duty Administrative Review of Steel Wire Garment

Hangers from the People’s Republic of China, A-570-918, at 14-16 (Nov. 8, 2012),

available at http://enforcement.trade.gov/frn/summary/prc/2012-27337-1.pdf (last visited

this date) (“Wire Hangers Memorandum”). Specifically, based on that financial statement,

Commerce found that CEN’s principal business is investment, not manufacturing like the

respondent. Id. at 14-15. Commerce also noted that only one of CEN’s four subsidiaries

produced wire, and that the record did not indicate whether that one subsidiary “draws

wire from steel rod, [or] produces any downstream products from wire that can be

considered comparable” to wire hangers. Id. at 15. By contrast, the Philippine financial

statements on the Wire Hangers record suggested that those Philippine companies did

manufacture comparable merchandise. Commerce concluded that the Thai financial

statements were “less appropriate” for calculating the respondent’s financial ratios than

the Philippine financial statements, and in turn selected the Philippines as the primary

surrogate country. Id. at 14-16.
Court No. 12-00384                                                                    Page 5


       Plaintiffs argue that Wire Hangers is “a highly comparable case” to this

administrative review, and that “it is purely arbitrary and capricious for [Commerce] to now

find in this case that [CEN] is comparable to steel wire processing companies like those

that produce steel threaded rods (as opposed to wire hangers).” Pls.’ Br. at 1, 8. Plaintiffs’

reasoning is straightforward. Given that wire hangers and steel threaded rod can both be

produced from steel wire rod, how could Commerce find that CEN’s wire subsidiary

produces merchandise comparable to steel threaded rod but not merchandise

comparable to wire hangers? How could Commerce also suggest that CEN’s business

is too diverse to be an adequate financial surrogate for a wire hanger manufacturer but

not too diverse to be an adequate financial surrogate for a steel threaded rod

manufacturer?     Most importantly, how can CEN be an adequate proxy for any

manufacturer if its principal business is investment? See Pls.’ Br. at 2-12.

       The court in Jiaxing I agreed that the Final Results appeared to contradict

Commerce’s contemporaneous position in Wire Hangers as well as Commerce’s own

financial surrogate selection criteria. Jiaxing I, 38 CIT at ___, 961 F. Supp. 2d at 1332.

In the Remand Results, Commerce now offers a detailed explanation of why the record

in this review supports a conclusion it could not draw from the record in Wire Hangers:

       While the Department expressed concern in Hangers regarding the
       comparability of the financial statements for the same Thai company at
       issue in this review (albeit for a different year), in that case we were
       considering the manufacturing process for steel wire garment hangers, not
       steel threaded rod. Unlike in Hangers, the record in this case reflects that
       the Thai company, [CEN], produces prestressed concrete wire.
       Specifically, CEN’s financial statements indicate that its business involves
       “Manufacturing and distributing prestressed concrete wire, prestressed
       concrete strand wire and welding wire.” In the original antidumping duty
       investigation of steel threaded rod from the PRC, the Department found that
Court No. 12-00384                                                                Page 6


      downstream products of wire rod that are drawn from wire rod are
      comparable merchandise to steel threaded rod.

      Further, the Department was concerned, in part, in Hangers that the Thai
      company produced non-comparable merchandise as well as comparable
      merchandise. After review the record in this case, the Department found
      that the Philippine companies, like the Thai company, all produce non-
      comparable merchandise, as well as comparable merchandise.
      Specifically, APO Industries, Inc. produces nails, but also produces piano
      hinges; Benedicto Steel Corporation produces prestressed concrete wire
      and nails, but also produces tin plate, metal screen, pots and other non-
      comparable merchandise; and Sterling Steel Incorporated produces nails,
      but also produces other non-comparable hardware goods such as iron
      pipes and wire netting.

      ....

      . . . With respect to the concern expressed in Hangers that CEN is a holding
      company, the Department examined the record of this case and
      acknowledged that CEN’s statements are consolidated statements, and
      that the wire subsidiary produces comparable merchandise. However,
      while the RMB/IFI Group claims that the Philippine companies primarily
      produce comparable merchandise and only produce a few non-comparable
      products, and therefore are in no way similar to CEN, the RMB/IFI Group
      provided no record evidence (such as information within the companies’
      financial statements listing revenue by specific products) to demonstrate the
      percentage of comparable versus non-comparable merchandise produced
      or sold by these Philippine companies as compared to CEN. Therefore,
      record evidence does not demonstrate that the Philippine companies are
      more representative of respondents’ production experience than the Thai
      company. An examination of the actual financial ratios themselves further
      confirms that the financial ratios from the CEN statements are not dissimilar
      to the ratios from the Philippine companies as the RMB/IFI Group suggests.

      With respect to the concern expressed in Hangers that CEN did not draw
      steel wire rod, the Department’s analysis in that case was focused on the
      manufacturing process for steel wire garment hangers, not steel threaded
      rod. The analysis criteria in Hangers cannot be indiscriminately applied to
      this case without consideration to differences in inputs and production
      processes. The scope of steel threaded rod covers products not only drawn
      from wire rod but also round bar. Unlike Hangers, for the producers of steel
      threaded rod, the main inputs consumed in the production process can
      either be wire rod or round bar depending on the gauge of steel threaded
      rod produced. Moreover, in Hangers, the discussion of consumption of wire
Court No. 12-00384                                                                 Page 7


      rod is an element of the Department’s analysis of any differences in the level
      of integration between the respondents and the potential surrogate
      companies. Such analysis is necessarily specific to that record. Hence, the
      RMB/IFI Group’s argument solely relying on consumption of wire rod in
      determining comparability is not appropriate for steel threaded rod.

      More to the point, the case history of steel threaded rod proceedings
      addresses this concern. In the original antidumping duty investigation of
      steel threaded rod from the PRC, while the Department initially rejected the
      financial statements of an Indian company Rajratan Global Wire Ltd.
      (“Rajratan”) based on the belief that Rajratan did not produce downstream
      products of wire rod, the Court remanded that decision to the Department.
      On remand, the Department found that Rajratan did produce comparable
      products to steel threaded rod based on the evidence that Rajratan
      produced prestressed concrete wire and tyre bead wire. As a result, the
      Department included the financial statements of Rajratan in the calculation
      of financial ratios, which the Court sustained. In this administrative review
      of the same order, CEN’s financial statements indicate its business involves
      “Manufacturing and distributing prestressed concrete wire, prestressed
      concrete strand wire and welding wire.” Because the Department, with the
      Court’s approval, previously determined in an earlier segment of this
      proceeding that prestressed concrete wire is comparable merchandise to
      steel threaded rod, it is appropriate to use CEN’s financial statements and
      Thai data in general in this administrative review.

Remand Results at 6-7, 14-16 (footnotes omitted).

      In short, as Commerce explains, the record and circumstances of this

administrative review are not so similar to Wire Hangers as to require the same result.

The CEN data at issue in this review is not the same as the CEN data in Wire Hangers.

Remand Results at 6. The Wire Hangers review focused on a CEN financial statement

from 2011 whereas this record features a CEN annual report from 2010. Defendant-

Intervenor clarifies that the 2010 annual report on this record includes CEN’s 2010

financial statement as well as extra details about the operations of CEN’s subsidiaries.

Def.-Intervenor’s Resp. Br. 3-6 & n.1, ECF No. 44. Commerce also explains that steel

threaded rod and wire hangers do not have identical manufacturing processes or inputs.
Court No. 12-00384                                                                  Page 8


As a consequence, although the Wire Hangers record did not support a finding that CEN’s

wire subsidiary produced merchandise comparable to wire hangers, Wire Hangers

Memorandum at 14-15, Commerce here can and does show that CEN’s wire subsidiary

produces prestressed concrete wire, a product that Commerce previously found to be

comparable to steel threaded rod. Remand Results at 6, 15-16. Further, unlike the

Philippine financial data on the record in Wire Hangers, the Philippine financial statements

here carry one of the same critical shortcomings as the CEN data. Each Philippine

company on this record produces non-comparable merchandise to some degree, just like

CEN. Id. at 6-7, 14-15. Commerce reasonably explains why these differences merit a

different surrogate country choice in this review than the choice it made in Wire Hangers.

       Although Commerce reasonably explained its different choices here than in Wire

Hangers, Plaintiffs’ other arguments challenging the adequacy of the available Thai

surrogate data do test the reasonableness of selecting Thailand as the primary surrogate

country.2 As Plaintiffs explain, Commerce has a stated preference is to use multiple

financial statements to calculate surrogate financial ratios. Here, the record contains only

one Thai source, the 2010 CEN annual report, as opposed to three usable Philippine

sources. Plaintiffs also show that CEN’s income derives from its ownership of numerous

other companies, not manufacturing, and that only one of CEN’s four subsidiaries

produces comparable merchandise. Pls.’ Br. at 2-7. To this extent, the CEN data on this


2
 Among its other objections to the adequacy of CEN as a financial surrogate, Plaintiffs
assert that CEN’s wire-producing subsidiary is operating at a loss. Pls.’ Br. at 7-8. As
Defendant correctly explains, however, this argument is not properly before the court
because Plaintiffs failed to raise it at any point during proceedings at Commerce. See
Mittal Steel Point Lisas Ltd. v. United States, 548 F.3d 1375, 1383-84 (Fed. Cir. 2008).
Court No. 12-00384                                                                   Page 9


record does appear to present some of the same problems undercutting CEN’s “suitability

for calculating financial ratios” that Commerce expressed in Wire Hangers. Wire Hangers

Memorandum at 14-16. Moreover, as Plaintiffs argue, financial ratios have in some

instances proved determinative in the selection of a surrogate country. See id. at 10-12

(citing Certain Steel Nails from the People’s Republic of China, 78 Fed. Reg. 16,651

(Dep’t of Commerce Mar. 18, 2013) (final results third admin. review)). Plaintiffs also

repeat the same persuasive arguments that led the court in Jiaxing I to observe that the

Philippine hydrochloric acid (“HC1”) data “simultaneously appear to undermine the

reasonableness of relying on Thai import statistics and offer an apparently better means

of valuing Plaintiffs’ [HC1] input.” Jiaxing I, 38 CIT at ___, 961 F. Supp. 2d at 1334.

       In remanding the Final Results, the court in Jiaxing I questioned how Commerce

could reasonably select Thailand despite problems with the Thai financial and HC1 data

and despite the apparent superiority of alternative Philippine data on the record. Id. at

___, 961 F. Supp. 2d at 1334-45. In response, Commerce now explains why it believes

other advantages in the Thai surrogate data outweigh these shortcomings:

       When multiple different factors regarding data quality are present in
       evaluating SVs from various countries, the Department must weigh the
       balance of the evidence. Given that steel threaded rod is a type of steel
       fastener drawn from steel wire rod or steel round bar, in this case, these
       steel inputs are the most important FOPs to consider in the proper valuation
       of steel threaded rod. In fact, nearly all of the manufacturing costs were
       derived from the main steel inputs, and consist of a large majority of the NV.
       In circumstances where the importance of one input dominates all other
       inputs, the Department will take into consideration the significant impact that
       the primary input has on NV, when considering the overall data quality of
       one surrogate country versus another. As noted in the Final Results, Thai
       import data for steel wire rod provide for specific grades of steel based on
       carbon content that can be matched to the grade of steel wire rod consumed
       by the RMB/IFI Group, whereas Philippine import data provide broad
Court No. 12-00384                                                                  Page 10


      categories that are not as specific to the steel wire rod consumed by the
      RMB/IFI Group. Moreover, in this review, the Department can value all
      FOPs with the available Thai data set whereas the Philippine data set are
      missing packing materials including polyethylene bag, plastic cap, carton,
      paper tube and staples. Therefore, it is reasonable for the Department to
      find that the totality of facts in this review lead to a different conclusion in
      selecting Thailand as the primary surrogate country as compared to the
      decision the Department made in Hangers. In this review, the superior
      quality of Thai data for the main input, steel wire rod, outweighs any other
      strengths contained in the Philippine data (i.e., more financial statements,
      or the alleged superiority of the data for HC1, which the Department
      disputes).

      Based on the discussions above, having examined the quality of financial
      statements and the quality of HC1 import data from the Philippines, in view
      of the totality of the facts, the Department continues to find that Thailand
      offers better surrogate data to value the RMB/IFI Group’s FOPs overall. In
      determining the appropriate SVs, the Department strongly favors selecting
      all SVs from a single country, pursuant to 19 CFR 351.408(c)(2). The
      Department will only introduce data from a secondary surrogate country into
      the calculation if there were no primary SV, or if the primary SV was
      unreliable based on record evidence. As the Department continues to find
      Thailand to be the appropriate primary surrogate country, the Department
      finds that Thai financial statements and HC1 import statistics constitute the
      best available information because they meet the Department’s criteria in
      selecting SVs and are from the primary surrogate country, with no evidence
      demonstrating that they are aberrant or otherwise unreliable.

      ....

      As explained above, in Hangers, the Department’s decision in selecting the
      Philippines was not based on financial statements alone. While the
      Department generally finds that financial ratios are critical and sometimes
      decisive in the selection of primary surrogate country, this is not always the
      case. As discussed above, the Department considers several criteria and
      makes a primary surrogate country determination based on the totality of
      circumstances. Here, the Court explicitly asked the Department to consider
      whether Thailand’s apparently more specific steel input data outweighs the
      apparent comparative strengths of the Philippine HC1 and financial data.
      Based on the analysis above, the superior quality of Thai data for the main
      input, steel wire rod, outweighs any other strengths contained in the
      Philippine data, with the result that the overall accuracy of the calculation is
      best enhanced by reliance on a more specific steel surrogate value than on
      the financial statements or the Philippine HC1 surrogate value. To do
Court No. 12-00384                                                                 Page 11


       otherwise as suggested by the RMB/IFI group would ignore the totality of
       the evidence in this case and lead to a less accurate result. . . . In re-
       weighing the totality of the evidence in this case, the Department once again
       arrives at the conclusion that Thailand best serves as the primary surrogate
       country.

Remand Results at 11-12, 16-17 (emphasis added, footnotes omitted).

       Commerce has a regulatory preference is to “value all factors [of production] in a

single surrogate country,” 19 C.F.R. § 351.408(c)(2) (2014), as well as a policy “to only

resort to a secondary surrogate country if data from the primary surrogate country are

unavailable or unreliable.” Issues and Decision Memorandum for the Final Results of the

Second Administrative Review of Sodium Hexametaphosphate from the People’s

Republic of China, A-570-908, at 4 & n.15 (Sept. 19, 2012), available at

http://enforcement.trade.gov/frn/summary/prc/2012-23832-1.pdf (last visited this date).

The administrative record contained available, but imperfect, surrogate data for all major

inputs sourced from both Thailand and the Philippines, including Thai and Philippine steel

import data. When comparing the carbon content of steel contained in the Thai and

Philippine import data to the carbon content of the steel wire rod input Plaintiffs actually

used, however, Commerce found that the Thai data turned out to be more specific to

Plaintiffs’ steel inputs than the Philippine data. And as Commerce detailed in a business

proprietary memorandum it produced during the remand proceedings and summarized in

the Remand Results, the steel input accounts for almost all of Plaintiffs’ manufacturing

costs and most of Plaintiffs’ normal value. Remand Results at 11 (citing Contribution of

FOPs to the Calculation of Normal Value at 1 (Dep’t of Commerce Mar. 28, 2014)). Due

to the steel input’s outsized impact on Plaintiffs’ normal value, Commerce reasonably
Court No. 12-00384                                                                Page 12


prioritized that input in making its surrogate country selection. The Thai steel data’s

superior quality therefore supports Commerce’s choice of Thailand as the primary

surrogate country and Commerce’s use of Thai data to calculate Plaintiffs’ normal value.

       Commerce’s rationale for why it would tolerate relative weaknesses in the Thai

financial and HC1 data makes sense. Neither input influences Plaintiffs’ normal value

nearly as much as the steel input, meaning a reasonable mind could conclude as

Commerce did that “the overall accuracy of the calculation is best enhanced by reliance

on a more specific steel surrogate value than on the financial statements or the Philippine

HC1 surrogate value.” Remand Results at 16; see generally Lifestyle Enter., Inc. v.

United States, 751 F.3d 1371, 1378 (Fed. Cir. 2014) (“Because Commerce reasonably

chose one of two imperfect data sets, the Trade Court erred in substituting its own

judgment for Commerce’s.”).        A reasonable mind could likewise conclude that

Commerce’s regulatory preference to value all inputs from a single surrogate country

favors using Thai data to value all of Plaintiffs’ inputs despite some apparent relative

superiority of the Philippine financial and HC1 data.

       The court sustains Commerce’s reasonable selection of Thailand as the primary

surrogate country and use of Thai data to calculate Plaintiffs’ normal value. Judgment

will be entered accordingly.

                                                           /s/ Leo M. Gordon
                                                         Judge Leo M. Gordon

Dated: September 25, 2014
       New York, New York
