Case: 19-1091    Document: 80-2     Page: 1   Filed: 01/27/2020




    United States Court of Appeals
        for the Federal Circuit
                   ______________________

           SEAH STEEL VINA CORPORATION,
                   Plaintiff-Appellant

                              v.

         UNITED STATES, UNITED STATES STEEL
                   CORPORATION,
                  Defendants-Appellees

    TMK IPSCO, VALLOUREC STAR, L.P., WELDED
      TUBE USA INC., BOOMERANG TUBE LLC,
     ENERGEX TUBE (A DIVISION OF JMC STEEL
       GROUP), TEJAS TUBULAR PRODUCTS,
         MAVERICK TUBE CORPORATION,
                     Defendants
               ______________________

                         2019-1091
                   ______________________

     Appeal from the United States Court of International
  Trade in Nos. 1:14-cv-00224-RWG, 1:14-cv-00259-RWG,
  Senior Judge Richard W. Goldberg.
                  ______________________

          SEALED OPINION ISSUED: January 27, 2020
          PUBLIC OPINION ISSUED: February 14, 2020 *



     *   This opinion was originally filed under seal and has
  been unsealed in full.
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  2              SEAH STEEL VINA CORPORATION v. UNITED STATES




                    ______________________

     JEFFREY M. WINTON, Law Office of Jeffrey M. Winton
  PLLC, Washington, DC, argued for plaintiff-appellant.

       DOUGLAS GLENN EDELSCHICK, Commercial Litigation
  Branch, Civil Division, United States Department of Jus-
  tice, Washington, DC, argued for defendant-appellee
  United States. Also represented by JOSEPH H. HUNT,
  CLAUDIA BURKE, JEANNE DAVIDSON; BRENDAN SASLOW, Of-
  fice of the Chief Counsel for Trade Enforcement and Com-
  pliance, United States Department of Commerce,
  Washington, DC.

     THOMAS M. BELINE, Cassidy Levy Kent USA LLP,
  Washington, DC, argued for defendant-appellee United
  States Steel Corporation. Also represented by MYLES
  SAMUEL GETLAN, SARAH E. SHULMAN, JAMES EDWARD
  RANSDELL, IV.
                  ______________________

      Before NEWMAN, SCHALL, and WALLACH, Circuit Judges.
  WALLACH, Circuit Judge.
       Appellant SeAH Steel VINA Corporation (“SeAH”)
  sued Appellee the United States (“Government”) in the
  U.S. Court of International Trade (“CIT”), challenging the
  U.S. Department of Commerce’s (“Commerce”) final deter-
  mination of an antidumping duty investigation covering
  certain oil country tubular goods (“OCTG”) from the Social-
  ist Republic of Vietnam (“Vietnam”). See Certain Oil Coun-
  try Tubular Goods From the Socialist Republic of Vietnam,
  79 Fed. Reg. 41,973, 41,973 (July 18, 2014) (final determi-
  nation) (“Final Determination”), as amended by Certain Oil
  Country Tubular Goods From the Socialist Republic of Vi-
  etnam, 79 Fed. Reg. 53,691 (Sept. 10, 2014) (order and
  amended final determination). The CIT remanded the case
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  SEAH STEEL VINA CORPORATION v. UNITED STATES                  3



  twice to Commerce, SeAH Steel VINA Corp. v. United
  States (SeAH I), 182 F. Supp. 3d 1316, 1345 (Ct. Int’l Trade
  2016); SeAH Steel VINA Corp. v. United States (SeAH II),
  269 F. Supp. 3d 1335, 1365 (Ct. Int’l Trade 2017), and sus-
  tained Commerce’s second redetermination on remand, see
  SeAH Steel VINA Corp. v. United States (SeAH III), 332 F.
  Supp. 3d 1314, 1318 (Ct. Int’l Trade 2018) (Opinion and
  Order); see also J.A. 3011–46 (Redetermination II); J.A.
  2942–69 (Redetermination I).
      SeAH appeals. We have jurisdiction pursuant to 28
  U.S.C. § 1295(a)(5) (2012). We affirm-in-part, reverse-in-
  part, and remand.
                          BACKGROUND
                       I. Legal Framework
      Antidumping duties may be imposed on “foreign mer-
  chandise” that “is being, or is likely to be, sold in the United
  States at less than its fair value.” 19 U.S.C. § 1673 (2012). 1
  Antidumping duties are a trade remedy “imposed to protect
  [domestic] industries against unfair trade practices.” Ca-
  nadian Wheat Bd. v. United States, 641 F.3d 1344, 1351
  (Fed. Cir. 2011). Domestic industries may seek “relief from
  imports that are sold in the United States at less than fair
  value,” Allegheny Ludlum Corp. v. United States, 287
  F.3d 1365, 1368 (Fed. Cir. 2002), by filing a petition with


      1   In June 2015, Congress amended the statutes con-
  taining the antidumping provisions. See Trade Preferences
  Extension Act of 2015 (“TPEA”), Pub. L. No. 114-27,
  §§ 501–07, 129 Stat. 362, 383–87. While we review the Fi-
  nal Determination in accordance with the TPEA because it
  issued after the TPEA became effective, unless stated oth-
  erwise, we cite to the U.S. Code version of the statute as
  there are no material changes in the TPEA for purposes of
  this appeal. See Juancheng Kangtai Chem. Co. v. United
  States, 932 F.3d 1321, 1323 n.1 (Fed. Cir. 2019).
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  4             SEAH STEEL VINA CORPORATION v. UNITED STATES




  Commerce and the U.S. International Trade Commission
  (“ITC”) to initiate an antidumping duty investigation, see
  19 U.S.C. §§ 1673a(b), 1677(9)(C). Following investigation,
  if Commerce determines that imported merchandise “is be-
  ing, or is likely to be, sold in the United States at less than
  its fair value,” id. § 1673(1), and the ITC determines that
  the importation or sale of that merchandise has “materially
  injured” or “threaten[s]” to “materially injur[e]” an indus-
  try in the United States, id. § 1673(2), then Commerce will
  “publish an antidumping duty order . . . direct[ing] [U.S.
  Customs and Border Protection] to assess . . . antidumping
  dut[ies]” on subject merchandise, id. § 1673e(a)(1).
      Commerce “determine[s] the estimated weighted aver-
  age dumping margin for each exporter and producer indi-
  vidually investigated” and “the estimated all-others rate
  for all exporters and producers not individually investi-
  gated.” Id. § 1673d(c)(1)(B)(i). A dumping margin reflects
  the amount by which the “‘normal value’ (the price a pro-
  ducer charges in its home market) exceeds the ‘export price’
  (the price of the product in the United States) or ‘con-
  structed export price.’” U.S. Steel Corp. v. United States,
  621 F.3d 1351, 1353 (Fed. Cir. 2010) (footnote omitted) (cit-
  ing 19 U.S.C. § 1677(35)(A)); see 19 U.S.C. §§ 1677b(a)(1)
  (defining “normal value” as “the price at which the [mer-
  chandise] is first sold . . . for consumption” in the home
  country or third country), 1677a(b) (defining “constructed
  export price” as “the price at which the subject merchan-
  dise is first sold . . . in the United States” to “a purchaser
  not affiliated with the producer or exporter”).
     If Commerce finds that the exporting country is a “non-
  market economy” (“NME”) country 2 and “that available


      2   An NME country is “any foreign country that [Com-
  merce] determines does not operate on market principles of
  cost or pricing structures, so that sales of merchandise in
  such country do not reflect the fair value of the
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  SEAH STEEL VINA CORPORATION v. UNITED STATES                5



  information does not permit the normal value of the subject
  merchandise to be determined under [§ 1677b(a)],” then
  Commerce calculates normal value using surrogate values
  for the “factors of production” in a comparable “market
  economy country.” Id. § 1677b(c)(1). 3 Further, “[b]ecause
  firms have ‘general expenses and profits’ not traceable to a
  specific product, in order to capture these expenses and
  profits, Commerce must factor [surrogate values for]
  (1) factory overhead (‘overhead’), (2) selling, general and
  administrative expenses (‘SG&A’), and (3) profit into the
  calculation of normal value”—that is, the respondent’s “fi-
  nancial ratios.”      Dorbest Ltd. v. United States, 462
  F. Supp. 2d 1262, 1300 (Ct. Int’l Trade 2006) (quoting 19
  U.S.C. § 1677b(c)(1)). Commerce may, similarly, adjust ex-
  port price or constructed export price using surrogate val-
  ues for “movement expenses.” Prelim. I&D Memo at 10–
  11; see 19 U.S.C. § 1677a(c)(2)(A) (instructing Commerce to
  adjust constructed export price by, inter alia, “the
  amount . . . attributable to any additional costs, charges, or
  expenses . . . incident to bringing the subject merchandise
  from the original place of shipment in the exporting coun-
  try to the place of delivery in the United States”); Fine Fur-
  niture (Shanghai) Ltd. v. United States, 182 F. Supp. 3d
  1350, 1368 (Ct. Int’l Trade 2016) (explaining that


  merchandise.” 19 U.S.C. § 1677(18)(A). Commerce “con-
  siders Vietnam to be [an NME] country[.]” Certain Oil
  Country Tubular Goods from the Socialist Republic of Vi-
  etnam, Issues & Decision Mem., A-552-817, POI Jan. 1,
  2013–June 30, 2013 (Feb. 14, 2014) (adopted in 79 Fed.
  Reg. 10,478 (Feb. 25, 2014)) (“Prelim. I&D Memo”) at 6.
      3   Specifically, Commerce must value the factors of
  production “to the extent possible . . . in one or more mar-
  ket economy countries that are—(A) at a level of economic
  development comparable to that of the [NME] country, and
  (B) significant producers of comparable merchandise.” 19
  U.S.C. § 1677b(c)(4).
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  6             SEAH STEEL VINA CORPORATION v. UNITED STATES




  Commerce will use “a surrogate value for [movement] ex-
  penses” for NME respondents).
       In selecting surrogate values, Commerce “attempts to
  construct a hypothetical market value of [the subject mer-
  chandise] in the [NME].” Downhole Pipe & Equip., L.P. v.
  United States, 776 F.3d 1369, 1375 (Fed. Cir. 2015) (inter-
  nal quotation marks, alterations, and citation omitted).
  Commerce’s surrogate value determinations must “be
  based on the best available information regarding the val-
  ues of [relevant] factors in a market economy country or
  countries.” 19 U.S.C. § 1677b(c)(1); see id. § 1677b(a)
  (providing that Commerce constructs the “normal value”
  “to achieve a fair comparison with the export price”). “Com-
  merce has broad discretion to determine” what constitutes
  “the best available information,” as this term “is not de-
  fined by statute.” QVD Food Co. v. United States, 658 F.3d
  1318, 1323 (Fed. Cir. 2011). Commerce “generally selects,
  to the extent practicable, surrogate values that are publicly
  available, are product-specific, reflect a broad market av-
  erage, and are contemporaneous with the period of review.”
  Qingdao Sea–Line Trading Co. v. United States, 766 F.3d
  1378, 1386 (Fed. Cir. 2014) (footnote omitted).
                    II. Procedural History
      In July 2013, Commerce “received antidumping
  duty . . . petitions concerning imports of certain [OCTG]
  from,” inter alia, Vietnam, from domestic producers, in-
  cluding U.S. Steel Corporation (“U.S. Steel”), Maverick
  Tube Corporation, TMK IPSCO, Vallourec Star L.P., and
  Welded Tube USA Inc. (collectively, “Petitioners”). Certain
  Oil Country Tubular Goods from India, the Republic of Ko-
  rea, the Republic of the Philippines, Saudi Arabia, Taiwan,
  Thailand, the Republic of Turkey, Ukraine, and the Social-
  ist Republic of Vietnam, 78 Fed. Reg. 45,505, 45,506
  (July 29, 2013) (initiation of antidumping duty investiga-
  tions). Petitioners alleged sales of OCTG “at less than fair
  value” and “material injury to [the] industry in the United
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  SEAH STEEL VINA CORPORATION v. UNITED STATES               7



  States.” Id. Commerce initiated an investigation. Id. at
  45,505.
      Commerce “issued quantity and value . . . question-
  naires to the eight companies named in the [P]etition,” but
  received timely responses from only two—one of which was
  SeAH. Prelim. I&D Memo at 2. Commerce selected SeAH
  and the other responsive company as mandatory respond-
  ents. Id.; see 19 U.S.C. § 1677f-1(c)(2) (explaining when
  Commerce may limit its review to a “reasonable number of
  exporters or producers”). In February 2014, Commerce is-
  sued its preliminary determination. Certain Oil Country
  Tubular Goods From the Socialist Republic of Vietnam, 79
  Fed. Reg. 10,478, 10,479 (Feb. 25, 2014) (preliminary de-
  termination). Because Commerce “considers Vietnam to be
  [an NME] country,” Commerce selected a surrogate market
  economy country, India, to provide surrogate values. Pre-
  lim. I&D Memo at 6, 11; see also 19 U.S.C. § 1677b(c)(1)
  (providing for the use of surrogate values to calculate nor-
  mal value for NME respondents).
      In July 2014, Commerce issued its Final Determina-
  tion. 79 Fed. Reg. at 41,973. Commerce calculated a
  24.22% dumping margin for SeAH. Id. at 41,975. Com-
  merce based this margin on various surrogate values. See
  J.A. 2203–06 (explaining Commerce’s selection of Welspun
  Corporation Limited’s (“Welspun”) financial statements for
  calculation of surrogate financial ratios, for SeAH’s normal
  value), 2226–27 (declining to deduct a surrogate value for
  domestic inland insurance from SeAH’s constructed export
  price); see also J.A. 2188–95 (selecting the World Bank’s
  Doing Business 2014: India (“Doing Business Report”) as
  the best available information for brokerage and handling
  (“B&H”) surrogate values 4 and explaining Commerce’s


      4   Here, B&H costs are, specifically, costs for “[d]ocu-
  ment[] preparation” and “[c]ustoms clearance and tech-
  nical control” for SeAH’s imported inputs and exported
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  8             SEAH STEEL VINA CORPORATION v. UNITED STATES




  allocation of B&H costs, for adjustments to SeAH’s normal
  value and constructed export price).
      Both SeAH and Petitioners sued the Government in
  the CIT, challenging Commerce’s Final Determination as
  unsupported by substantial evidence, each arguing for the
  use of different surrogate values for SeAH’s margin calcu-
  lation. SeAH I, 182 F. Supp. 3d at 1322; see J.A. 185
  (Docket) (listing SeAH’s complaint before the CIT),
  J.A. 187 (Docket) (listing order consolidating SeAH’s case
  with U.S. Steel’s case before the CIT). The CIT remanded
  to Commerce twice, for “reconsider[ation]” and “further ex-
  planation” of its surrogate value determinations. SeAH I,
  182 F. Supp. 3d at 1330, 1335; see SeAH II, 269 F. Supp. 3d
  at 1347, 1358–59. On remand, Commerce calculated a
  61.04% dumping margin for SeAH.              J.A. 3046; see
  J.A. 2961–64 (on voluntary remand, setting aside
  Welspun’s financial statements in favor of Bhushan Steel
  Limited’s (“Bhushan”) financial statements); J.A. 2955–58
  (deciding to adjust SeAH’s constructed export price for in-
  land insurance), 3017–21, 3033–37 (using modified inland
  insurance surrogate values from Agro Dutch Industries,
  Ltd. (“Agro Dutch”)); J.A. 2977–83, 3024–28, 3037–45
  (providing further explanation of Commerce’s B&H surro-
  gate value by-weight allocation methodology). The CIT
  sustained Commerce’s Final Determination, as amended
  by Redeterminations I and II, finding “Commerce’s deter-
  minations . . . supported by substantial evidence,” and en-
  tered final judgment for the Government. SeAH III, 332 F.
  Supp. 3d at 1330–31; see SeAH II, 269 F. Supp. 3d at 1365.
                         DISCUSSION
     SeAH contends that Commerce’s margin calculation
  was unsupported by substantial evidence and not in



  subject merchandise. J.A. 1923 (exports), 2235–36 (im-
  ports).
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  SEAH STEEL VINA CORPORATION v. UNITED STATES                9



  accordance with law because: (1) Commerce’s “selection of
  [Bhushan] for surrogate ‘financial ratios’” for SeAH’s nor-
  mal value “distorted the relevant overhead costs and ad-
  ministrative      expenses       without      providing      a
  meaningful . . . profit figure,” Appellant’s Br. 47 (capitali-
  zation normalized); (2) Commerce’s “determination to in-
  clude an additional surrogate amount for . . . inland
  insurance” for SeAH’s constructed export price is “unsup-
  ported by the record evidence,” id. at 44 (capitalization nor-
  malized); and (3) Commerce’s allocation methodology for
  surrogate B&H costs for SeAH’s normal value and con-
  structed export price was “unsupported by the record evi-
  dence,” id. at 55 (capitalization normalized). We address
  each argument in turn.
                     I. Standard of Review
       We apply the same standard of review as the CIT, see
  Downhole Pipe, 776 F.3d at 1373, upholding Commerce’s
  determinations if they are supported “by substantial evi-
  dence on the record” and otherwise “in accordance with
  law,” 19 U.S.C. § 1516a(b)(1)(B)(i). “Although we review
  the decisions of the CIT de novo, we give great weight to
  the informed opinion of the CIT and it is nearly always the
  starting point of our analysis.” Nan Ya Plastics Corp. v.
  United States, 810 F.3d 1333, 1341 (Fed. Cir. 2016) (inter-
  nal quotation marks, alterations, and citation omitted).
  Substantial evidence is “more than a mere scintilla”; rather
  it is such “evidence that a reasonable mind might accept as
  adequate to support a conclusion.” Downhole Pipe, 776
  F.3d at 1374 (internal quotation marks and citations omit-
  ted). “We look to the record as a whole, including evidence
  that supports as well as evidence that fairly detracts from
  the substantiality of the evidence.” SolarWorld Ams.,
  Inc. v. United States, 910 F.3d 1216, 1222 (Fed. Cir. 2018)
  (internal quotation marks and citation omitted).
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   II. Commerce’s Selection of Bhushan for Surrogate Finan-
      cial Ratios Is Supported by Substantial Evidence and
                Otherwise in Accordance with Law
       In its Final Determination, Commerce selected
  Welspun’s, not Bhushan’s, financial records as the “best
  available information on the record” for SeAH’s surrogate
  financial ratios. J.A. 2206; see J.A. 2205–06 (selecting
  Welspun as “a producer of OCTG,” with the closest availa-
  ble “production processes” to SeAH and a “financial state-
  ment [that] is contemporaneous, publically available, and
  evidences no receipt of countervailable subsidies”). How-
  ever, following voluntary remand and the submission of ad-
  ditional evidence, Commerce found that there was
  “insufficient evidence to conclude that Welspun is actually
  a producer of [OCTG].” J.A. 2962. Commerce determined
  that Bhushan, a company it had previously disqualified be-
  cause “its production process was not sufficiently similar”
  to SeAH, was acceptable because there was “no superior
  option . . . available on the record.” J.A. 2963–64; see
  J.A. 2205 (disqualifying Bhushan, in the Final Determina-
  tion, “because its production process is not sufficiently sim-
  ilar to [SeAH’s]”). Commerce explained that Bhushan was
  the “best [available] information on the record” because
  “Bhushan produces [OCTG] and their financial statements
  are publicly available and contemporaneous with the [pe-
  riod of investigation (‘POI’)].” J.A. 2964. The CIT sus-
  tained this determination as a “reasonable exercise of
  [Commerce’s] wide discretion to choose from among imper-
  fect options.” SeAH II, 269 F. Supp. 3d at 1350 (internal
  quotation marks omitted). SeAH argues that Commerce’s
  selection of Bhushan was “patently unreasonable,” Appel-
  lant’s Br. 55, because Bhushan’s “production processes” are
  insufficiently similar to SeAH’s to yield fair overhead and
  SG&A values, id. at 48; see id. at 48–51, while the record
  evidence is insufficient to conclude that “Bhushan actually
  produced OCTG” in meaningful quantities, to yield fair
  profit values, id. at 53–54. We disagree with SeAH.
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       Substantial evidence supports Commerce’s determina-
  tion that Bhushan’s financial statements are the best
  available information on the record to calculate SeAH’s
  surrogate financial ratios. Commerce found that Bhushan,
  unlike the other available options, “produce[d] identical
  merchandise” to SeAH, and further, that Bhushan has “fi-
  nancial statements [that] are publicly available and con-
  temporaneous with the POI.” J.A. 2964. Under the
  circumstances, this is sufficient. See Qingdao Sea–Line,
  766 F.3d at 1386 (“Commerce generally selects, to the ex-
  tent practicable, surrogate values that are publicly availa-
  ble, are product-specific, reflect a broad market average,
  and are contemporaneous with the period of review.”).
  Commerce acted in keeping with its “practice . . . to use,
  whenever possible, the financial statement of a producer of
  identical merchandise[.]” J.A. 2962; see J.A. 2204 (explain-
  ing that Commerce’s “preference for using the financial
  statements of producers of identical merchandise is espe-
  cially strong here because of the unique nature of OCTG
  among the wide range of pipe products . . . [s]pecifically it
  is among the most expensive and profitable”); see also
  19 C.F.R. § 351.408(c)(4) (2013) (providing that, to value
  surrogate financial ratios, Commerce “normally will use
  non-proprietary information gathered from producers of
  identical or comparable merchandise in the surrogate
  country”). Accordingly, substantial evidence supports
  Commerce’s selection of Bhushan’s financial statements as
  the best available information on the record. See Ad Hoc
  Shrimp Trade Action Comm. v. United States, 618 F.3d
  1316, 1322 (Fed. Cir. 2010) (“Commerce has broad discre-
  tion to determine the best available information.”).
      SeAH’s counterarguments are unpersuasive. First,
  SeAH argues that Commerce has acted against its “estab-
  lished . . . preference for using the statements of surrogate-
  country producers that have production processes similar
  to those of the NME producer being examined.” Appel-
  lant’s Br. 48. However, Commerce’s mandate is to use the
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  12            SEAH STEEL VINA CORPORATION v. UNITED STATES




  “best available information” on the record. 19 U.S.C.
  § 1677b(c)(1). Commerce will “reject financial statements
  of surrogate producers whose production process is not
  comparable to the respondent’s production process when
  better information is available.” J.A. 2205 (emphasis
  added, internal quotation marks and footnote omitted).
  Where, as here, Commerce finds that better information is
  not available, see J.A. 2963–64 (finding it acceptable to use
  Bhushan’s financial statements because “no superior op-
  tion was available on the record”), Commerce may use the
  financial statements of “companies with differing integra-
  tion levels,” J.A. 2964; see Home Meridian Int’l Inc. v.
  United States, 772 F.3d 1289, 1296 (Fed. Cir. 2014) (“The
  data on which Commerce relies to value inputs must be the
  ‘best available information,’ but there is no requirement
  that the data be perfect.”). 5 While SeAH cites to several
  antidumping investigations and reviews to support its ar-
  gument, these determinations only confirm that Com-
  merce’s “best available information” analysis is context and
  fact dependent. See Dorbest, 462 F. Supp. 2d at 1268 (ex-
  plaining that the best available evidence determination is
  “one of comparison,” requiring “Commerce to select, from



       5  SeAH argues, in a footnote of its brief, that Com-
  merce should have used the financial statements of APL
  Apollo Tubes, Ltd. (“Apollo”) instead of Bhushan’s, because
  Apollo’s subsidiary has a “license to produce OCTG.” Ap-
  pellant’s Br. 52 n.78. “Arguments raised only in footnotes
  are waived.” Ford Motor Co. v. United States, 926 F.3d 741,
  760 n.12 (Fed. Cir. 2019) (internal quotation marks, alter-
  ations, and citation omitted). We decline to exercise our
  discretion to consider SeAH’s argument, as it amounts to a
  request for us to reweigh the evidence. See Downhole Pipe,
  776 F.3d at 1377 (explaining that we do not “reweigh the
  evidence” or “reconsider questions of fact anew”) (internal
  quotation marks and citation omitted).
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  SEAH STEEL VINA CORPORATION v. UNITED STATES              13



  the information before it, the best data for calculating an
  accurate dumping margin”). 6
       Second, SeAH argues that because Bhushan’s produc-
  tion processes are different from SeAH’s, use of Bhushan’s
  financial statements “distort[s] . . . overhead costs and
  SG[&A] expenses[.]” Appellant’s Br. 53; see J.A. 2963
  (characterizing SeAH as a “semi-integrated producer”).
  Commerce acknowledged that Bhushan’s level of integra-
  tion was different from SeAH’s, but found that production
  of identical merchandise was more important than having
  identical production processes to calculate OCTG dumping
  margins as accurately as possible. See Rhone Poulenc, Inc.
  v. United States, 899 F.2d 1185, 1191 (Fed. Cir. 1990) (ex-
  plaining that “the basic purpose of the [anti-dumping]



      6   See, e.g., Certain Oil Country Tubular Goods from
  the People’s Republic of China, Issues & Decision Mem., A-
  570-943, POR May 19, 2010–Apr. 30, 2011 (Dec. 5, 2012)
  (adopted in 77 Fed. Reg. 74,644 (Dec. 17, 2012)) at 20 (ex-
  plaining that “[f]or purposes of selecting surrogate produc-
  ers, [Commerce] examines how similar a proposed
  surrogate producer’s production experience is to the NME
  producer’s,” but “is not required to duplicate the exact pro-
  duction experience of an NME producer, nor must it under-
  take an item-by-item analysis in calculating factory
  overhead” (internal quotation marks and citation omit-
  ted)); Certain Circular Welded Carbon-Quality Steel Pipe
  from the People’s Republic of China, Issues & Decision
  Mem., A-570-870 POI Oct. 1, 2000–Mar. 31, 2001 (May 15,
  2002) (adopted in 67 Fed. Reg. 36,570 (May 24, 2002)) at
  cmt. 5 (explaining that “[w]hile relying on [an integrated
  producer’s] data [for a non-integrated producer] may be ap-
  propriate in other circumstances, in this case [Commerce]
  do[es] not need to use its financial information as [Com-
  merce had] four other surrogate companies which more
  closely approximate the . . . respondents experience”).
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  14            SEAH STEEL VINA CORPORATION v. UNITED STATES




  statute” is “determining current margins as accurately as
  possible”); Nation Ford Chem. Co. v. United States, 166
  F.3d 1373, 1377 (Fed. Cir. 1999) (“The ‘best available infor-
  mation’ . . . may constitute information from the surrogate
  country that is directly analogous to the production experi-
  ence of the NME producer . . . or it may not.”); see also
  J.A. 2204 (explaining that Commerce’s preference for using
  “the financial statements of producers of identical mer-
  chandise is especially strong” for OCTG, given the “unique
  nature of OCTG”), 2205 (explaining that “level of integra-
  tion is one factor” Commerce considers “[i]n analyzing the
  comparability of . . . production process[es]”), 2998 (finding
  that while “Bhushan operates at a different level of inte-
  gration than [SeAH],” “Bhushan[’s] financial statements
  are appropriate . . . because Bhushan produces identical
  merchandise”). We do not “evaluate whether the infor-
  mation Commerce used was the best available, but rather
  whether a reasonable mind could conclude that Commerce
  chose the best available information.” Zhejiang DunAn He-
  tian Metal Co. v. United States, 652 F.3d 1333, 1341 (Fed.
  Cir. 2011) (citation omitted). We “will not second-guess
  Commerce’s choice.” Mittal Steel Galati S.A. v. United
  States, 502 F. Supp. 2d 1295, 1313 (Ct. Int’l Trade 2007)
  (explaining that “[w]here Commerce is confronted with two
  alternatives (both of which have their good and bad quali-
  ties), and Commerce has a preferred alternative,” substan-
  tial evidence review means that we “will not second-guess
  Commerce’s choice”); see Consolo v. Fed. Mar. Comm’n, 383
  U.S. 607, 620 (1966) (“[T]he possibility of drawing two in-
  consistent conclusions from the evidence does not prevent
  an administrative agency’s finding from being supported
  by substantial evidence.”).
      Third, SeAH argues that “the record is not clear as to
  whether Bhushan actually produced OCTG,” Appellant’s
  Br. 53, such that “when Commerce calculated a profit ratio
  based on Bhushan’s financial statements, its result was not
  in any way an OCTG profit figure,” id. at 54. The CIT,
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  SEAH STEEL VINA CORPORATION v. UNITED STATES               15



  however, found that SeAH had “failed to exhaust its ad-
  ministrative remedies” on this point and declined to con-
  sider the argument. SeAH II, 269 F. Supp. 3d at 1350
  (citing 28 U.S.C. § 2637(d) (requiring the “exhaustion of ad-
  ministrative remedies”)); see Reply Br. 18 (conceding that
  SeAH raised this argument only on remand). In reply,
  SeAH asserts that requiring exhaustion “would impose an
  impossible burden upon [SeAH],” because remand “pre-
  sented a different issue.” Reply Br. 18–19. However,
  SeAH, while aware the CIT had found failure to exhaust,
  did not raise the exhaustion issue or its “impossible bur-
  den” argument in its opening brief. See generally Appel-
  lant’s Br. SeAH’s exhaustion arguments are, accordingly,
  waived. Becton Dickinson & Co. v. C.R. Bard, Inc., 922
  F.2d 792, 800 (Fed. Cir. 1990) (“[W]e see no reason to de-
  part from the sound practice that an issue not raised by an
  appellant in its opening brief . . . is waived.”). The CIT did
  not abuse its discretion in requiring exhaustion; like the
  CIT, we decline to consider the merits of SeAH’s argument
  that Bhushan did not produce OCTG. See Corus Staal BV
  v. United States, 502 F.3d 1370, 1381 (Fed. Cir. 2007) (ap-
  plying an abuse of discretion standard to the CIT’s exhaus-
  tion determinations). Accordingly, Commerce’s selection of
  Bhushan’s financial statements is supported by substan-
  tial evidence and otherwise in accordance with law.
  III. Commerce’s Use and Selection of Surrogate Values for
   Inland Insurance Is Supported by Substantial Evidence
           and Otherwise in Accordance with Law
      In its Final Determination, Commerce did not “deduct
  a surrogate value from [SeAH’s constructed export price] to
  represent domestic inland insurance.” J.A. 2227. Com-
  merce reasoned that, while the record included a contract
  between SeAH and a freight forwarder (“the Freight For-
  warder Contract”) that suggested the freight forwarder had
  provided inland insurance, this did not “constitute[] an ‘in-
  surance contract’ that would require a separate surrogate
  value” because “it is not uncommon for [freight forwarders]
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  16            SEAH STEEL VINA CORPORATION v. UNITED STATES




  to bear the risk of loss on the shipments they handle.”
  J.A. 2227. The CIT remanded “for further explanation”
  from Commerce concerning “why it believes that [freight
  forwarders] [generally] carry the risk of loss” or why
  SeAH’s freight forwarder, specifically, did not. SeAH I, 182
  F. Supp. 3d at 1331. On remand, Commerce found that,
  because SeAH’s contract with its freight forwarder “in-
  cludes language to insure [SeAH] against ‘any accidental
  or any damage to cargoes’ for the full amount of the in-
  voice,” the “freight contract” was an “insurance contract.”
  J.A. 2957. Accordingly, Commerce “included a surrogate
  value for domestic inland insurance in [its] revised margin
  calculations.” J.A. 2957. Commerce used the only “availa-
  ble surrogate value source” on the record, the inland insur-
  ance value of Agro Dutch, a preserved mushroom producer,
  with some adjustment for inflation, since the value was
  from 2004–2005. J.A. 2958. The CIT sustained Com-
  merce’s decision to include a surrogate value for domestic
  inland insurance, but remanded for Commerce either for
  further explanation or reconsideration of its “rel[iance] on
  the A[gro] Dutch surrogate value.”            SeAH II, 269
  F. Supp. 3d at 1357–58 (sustaining use of a surrogate
  value while remanding for further explanation of Com-
  merce’s reliance on the Agro Dutch surrogate value). 7 On


       7   SeAH does not directly challenge Commerce’s use
  of the Agro Dutch surrogate value. See Appellant’s Br. 7–
  15, 43–46. Instead, SeAH argues that Commerce violated
  SeAH’s due process rights and Commerce’s regulations by
  not allowing SeAH to submit additional information about
  inland insurance during remand proceedings. Id. at 47.
  Specifically, during its second redetermination, in response
  to SeAH’s assertion that Agro Dutch’s records were illegi-
  ble, J.A. 3031, Commerce “placed on the record a more leg-
  ible copy of the same [evidence],” J.A. 3033. SeAH asserts
  that, in so doing, “Commerce rejected [SeAH’s] re-
  quest . . . to submit information concerning the actual cost
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  SEAH STEEL VINA CORPORATION v. UNITED STATES                17




  of inland insurance in India.” Appellant’s Br. 47. However,
  Petitioners placed the Agro Dutch data on the record dur-
  ing the investigation, clearly labeled for “calculation of sur-
  rogate value for [SeAH’s] domestic inland insurance.”
  J.A. 1506 (submitting Agro Dutch’s information to “value[]
  [SeAH’s] domestic inland insurance”), 1519 (Agro Dutch
  values). SeAH, therefore, had the notice and opportunity
  to respond but did not. J.A. 3036 (explaining that the dead-
  line to submit factual information for the factors of produc-
  tion was January 17, 2014; that “rebuttal factual
  information to value factors was due on January 27, 2014”;
  and that, while Petitioners had submitted the relevant in-
  surance data by January 17, 2014, SeAH did not rebut or
  request a more legible version by January 27, 2014); see
  QVD Food, 658 F.3d at 1324 (“[T]he burden of creating an
  adequate record lies with [interested parties] and not with
  Commerce.” (internal quotation marks and citation omit-
  ted)). “Commerce’s rejection of untimely-filed factual infor-
  mation does not violate a respondent’s due process rights
  when the respondent had notice of the deadline and an op-
  portunity to reply.” Dongtai Peak Honey Indus. Co. v.
  United States, 777 F.3d 1343, 1353 (Fed. Cir. 2015). As
  such, Commerce did not abuse its discretion in declining to
  reopen the record for SeAH’s untimely filed factual infor-
  mation, see Essar Steel Ltd. v. United States, 678 F.3d
  1268, 1278 (Fed. Cir. 2012) (explaining that Commerce
  does not abuse its discretion when it declines “to reopen the
  record after it had long since closed” for evidence the re-
  spondent could have but did not previously provide), nor
  was it required under 19 C.F.R. § 351.301(c)(4) to allow be-
  lated rebuttal of evidence already on the record, see PSC
  VSMPO-Avisma Corp. v. United States, 688 F.3d 751, 761
  (Fed. Cir. 2012) (determining that the CIT improperly “in-
  truded upon Commerce’s power to apply its own procedures
  for the timely resolution of antidumping reviews”).
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  18            SEAH STEEL VINA CORPORATION v. UNITED STATES




  remand, Commerce further adjusted its constructed export
  price calculation, since the Agro Dutch value also included
  marine insurance, but confirmed its decision to continue
  using the Agro Dutch data because it “reasonably meets
  Commerce’s criteria for the selection of [surrogate values].”
  J.A. 3021; see J.A. 3019–21. The CIT found this sufficient
  and sustained Commerce’s determination. SeAH III, 332
  F. Supp. 3d at 1326. SeAH argues that “Commerce’s deter-
  mination to include an additional surrogate amount for In-
  dian inland insurance costs is contrary to law and
  unsupported by the record evidence.” Appellant’s Br. 44
  (capitalization normalized). We disagree with SeAH. 8



       8  SeAH briefly argues that, because Commerce
  found in its Final Determination that SeAH’s Freight For-
  warder Contract “was not an insurance contract,” then
  changed its position on remand, its decision is “not entitled
  to deference” and should be reviewed “de novo” as a matter
  of “contract interpretation.” Appellant’s Br. 43–44. This is
  incorrect. We review Commerce’s factual findings, includ-
  ing on remand, under a substantial evidence standard. See
  19 U.S.C. § 1516a(b)(1)(B)(i). Whether SeAH paid overland
  freight insurance is a question of fact; its Freight For-
  warder Contract is evidence toward that fact. See PSC
  VSMPO-Avisma, 688 F.3d at 760 (explaining that a sub-
  mission that “clearly assumes the weight of evidence and,
  as such, amounts to [d]ata or statements of fact in support
  of allegations” is “factual information” (internal quotation
  marks and citations omitted)); see also 19 C.F.R.
  § 351.102(21)(i), (ii) (defining “factual information” in anti-
  dumping proceedings before Commerce as “[e]vidence, in-
  cluding statements of fact, documents, and data submitted
  either in response to initial and supplemental question-
  naires” or “in support of allegations,” or “to rebut, clarify,
  or correct such evidence submitted by any other interested
  party”); J.A. 703–06 (SeAH’s Freight Forwarder Contract,
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  SEAH STEEL VINA CORPORATION v. UNITED STATES              19



      Substantial evidence supports Commerce’s determina-
  tion that SeAH’s Freight Forwarder Contract included do-
  mestic inland insurance separate from transportation
  costs. The express terms of SeAH’s Freight Forwarder
  Contract included an insurance clause with fees for cargo
  safety. J.A. 705 (providing that “[i]f there is any accident
  or any damage to cargoes [the freight forwarder] has re-
  sponsibility to compensate to [SeAH] 100% of the invoice
  amount”); J.A. 705–06 (providing that agreed price in-
  cluded both “transportation charge from SeAH’s factory to
  [port]” and “[f]ees for cargo’s safety”). Accordingly, Com-
  merce’s decision to account for such fees in its export price
  determination is supported by substantial evidence.
  Matsushita Elec. Indus. Co. v. United States, 750 F.2d 927,
  933 (Fed. Cir. 1984) (providing that substantial evidence
  includes “reasonable inferences from the record”).
      SeAH’s counterarguments are unpersuasive. SeAH ar-
  gues that Commerce’s inclusion of a surrogate value for in-
  land insurance is contrary to “well-established common-
  law principles” in India that “[hold] common carriers liable
  for any damages suffered by the cargo while the cargo is in
  their possession.” Appellant’s Br. 44. SeAH fails to estab-
  lish how this is relevant to our interpretation of SeAH’s
  contract. See J.A. 704 (providing that Vietnamese civil law
  governs SeAH’s Freight Forwarder Contract). SeAH offers
  no further evidence or explanation as to its actual ex-
  penses. See Nan Ya Plastics, 810 F.3d at 1344 (explaining
  that Commerce need not “‘prove a negative’ about a re-
  spondent’s pricing behavior if that respondent fails to pro-
  vide evidence that would yield more representative
  calculations of its pricing behavior”); QVD Food, 658 F.3d
  at 1324 (“[T]he burden of creating an adequate record lies



  submitted in response to Commerce’s supplemental ques-
  tionnaire in appendix “SC-5”). Accordingly, substantial ev-
  idence is the appropriate standard of review.
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  20            SEAH STEEL VINA CORPORATION v. UNITED STATES




  with [interested parties] and not with Commerce.” (second
  alteration in original, citation omitted)).
      SeAH further argues that, in selecting surrogate val-
  ues, “Commerce was required to determine the cost in In-
  dia of an agreement in which a carrier undertook to
  transport merchandise and to bear the cost of any losses
  during transport” and that Commerce’s finding any addi-
  tional cost “is directly contrary to Indian law.” Appellant’s
  Br. 45–46. This, however, misapprehends what Commerce
  was required to do. Commerce was required to “construct
  a hypothetical market value of [SeAH’s] product” using
  surrogate values, Downhole Pipe, 776 F.3d at 1375 (inter-
  nal quotation marks and citation omitted), not a hypothet-
  ical price using surrogate laws, see Nation Ford, 166 F.3d
  at 1377 (“[A] surrogate value must be as representative of
  the situation in the NME country as is feasible[.]” (internal
  quotation marks and citation omitted)); id. at 1378 (“There
  is no reason . . . to incorporate the distortions in the [surro-
  gate] market into a hypothetical [respondent] market[.]”).
  Accordingly, Commerce’s inclusion of a separate surrogate
  value for inland insurance is supported by substantial evi-
  dence and otherwise in accordance with law.
    IV. Commerce’s Allocation Methodology for B&H Is Un-
            supported by Substantial Evidence
      In its Final Determination, Commerce concluded that
  the Doing Business Report “represent[s] the best infor-
  mation available on the record for the valuation of B&H
  costs,” J.A. 2192, as a “contemporaneous, broad market av-
  erage,” J.A. 2193. Commerce found it “appropriate” to al-
  locate B&H cost by weight, i.e., it divided the surrogate
  B&H values from the Doing Business Report by ten metric
  tons, because ten metric tons was the example shipping
  container “weight used in the Doing Business [Report],”
  then multiplied it by the weight of SeAH’s shipments, as-
  suming that B&H cost was proportional to shipment
  weight. J.A. 2194 (citation omitted). Commerce explained
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  SEAH STEEL VINA CORPORATION v. UNITED STATES              21



  this decision was “consistent with the original data’s re-
  porting basis” thereby “maintain[ing] the relationship be-
  tween cost and quantity from the [Doing Business Report].”
  J.A. 2194–95 (citation omitted). The CIT “remand[ed] for
  further explanation” as to why Commerce presumed that
  SeAH’s “B&H costs would increase proportionately with
  the weight of the exported and imported goods.” SeAH I,
  182 F. Supp. 3d at 1343. On remand, Commerce pointed to
  record evidence that, it said, suggested SeAH’s “B&H costs
  can increase proportionately with the weight of the ship-
  ment.” J.A. 3009. The CIT remanded again to Commerce,
  with instructions to address SeAH’s counterarguments.
  SeAH II, 269 F. Supp. 3d at 1365. Commerce “continue[d]
  to find [its] allocation methodology . . . reasonable.”
  J.A. 3024. The CIT sustained Commerce’s determination
  as “supported by substantial evidence.” SeAH III, 332
  F. Supp. 3d at 1329. SeAH argues that Commerce’s by-
  weight allocation methodology “resulted in per-unit [B&H]
  values,” Appellant’s Br. 60 (capitalization normalized),
  that were contrary to record evidence and therefore “not
  reasonable,” id. at 64. 9 We agree with SeAH that Com-
  merce’s by-weight allocation methodology for B&H costs is,
  as applied here, unsupported by substantial evidence.
       First, Commerce concluded that its “allocation method-
  ology was reasonable given how [the] Doing Business [Re-
  port] calculated B&H costs.” J.A. 3042. The Doing
  Business Report aggregated data from “[l]ocal freight for-
  warders, shipping lines, customs brokers, port officials[,]
  and banks,” to “measure the time and cost (excluding tar-
  iffs) associated with exporting and importing a standard-
  ized cargo of goods by sea transport.” J.A. 1998. The Doing



      9   SeAH states that “[f]or purposes of this appeal, [it]
  accept[s] that Commerce could properly rely on the total
  costs identified in the Doing Business Report.” Appellant’s
  Br. 63.
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  22            SEAH STEEL VINA CORPORATION v. UNITED STATES




  Business Report assumed that the “traded goods” travel in
  a “dry-cargo, [twenty-]foot, full container load,” “weigh[ing]
  [ten] [metric] tons and . . . valued at $20,000.” J.A. 1998.
  From this, Commerce inferred that “the Doing Business
  [Report] calculation assumed a fixed weight for purposes of
  calculating B&H costs,” such that price and weight are “de-
  pendent upon one another.” J.A. 3044. This inference,
  however, “simply is not representative of reality.” DuPont
  Teijin Films China Ltd. v. United States, 7 F. Supp. 3d
  1338, 1351 (Ct. Int’l Trade 2014) (quoting CS Wind Vi-
  etnam Co. v. United States, 971 F. Supp. 2d 1271, 1295 (Ct.
  Int’l Trade 2014)). Commerce itself notes that the Doing
  Business Report “does not provide information showing
  how [its ten-metric-ton] assumption was developed” such
  that Commerce is “not able to go behind [the] Doing Busi-
  ness [Report] to analyze their assumption further.”
  J.A. 3043 (citation omitted). “Go[ing] behind” the report is
  not required: The Doing Business Report expressly pro-
  vides that it records “documents required per shipment,”
  J.A. 1999 (emphasis added); see J.A. 1999 (providing that
  “[i]t is assumed that a new contract is drafted per ship-
  ment” and that “[d]ocuments that are requested at the time
  of clearance but that are valid for a year or longer and do
  not require renewal per shipment . . . are not included”). It
  further provides that its “[c]ost” figures measure “the fees
  levied on a [twenty]-foot container.” J.A. 1999. It does not
  describe cost as dependent on the weight of that container.
  See J.A. 1999. Accordingly, Commerce’s assumption that
  “the Doing Business [Report] calculation assumed a fixed
  weight for purposes of calculating B&H costs” is without
  reasonable basis.      J.A. 3044; see DuPont Teijin, 7
  F. Supp. 3d at 1351 (explaining that “Commerce’s [by-
  weight B&H allocation] methodology incorrectly assumes
  that a shipment weighing less will incur lower document
  preparation and customs clearance costs, while a shipment
  weighing more will incur higher preparation costs”). If
  Commerce seeks, as it asserts, to “be internally consistent
  with the original data’s reporting basis,” J.A. 3028, then it
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  SEAH STEEL VINA CORPORATION v. UNITED STATES               23



  must reconsider its decision, see Universal Camera Corp. v.
  NLRB, 340 U.S. 474, 488 (1951) (“The substantiality of ev-
  idence must take into account whatever in the record fairly
  detracts from its weight.”).
       Second, Commerce concluded that “it is appropriate to
  value B&H on a weight basis because this basis reflects
  [SeAH’s] own service contract”; specifically, SeAH’s
  Freight Forwarder Contract “provides evidence that
  [SeAH] itself paid certain B&H charges on a weight basis.”
  J.A. 3026. SeAH’s Freight Forwarder Contract provided
  both prices per container and ton. J.A. 705 (providing
  “[p]rice of container” for forty foot and forty-five foot con-
  tainers and “[p]rice of [b]ulk [c]argoes” by “[t]on”). These
  prices were meant to include customs clearance, J.A. 706,
  and other services that, according to Commerce,
  “[c]learly . . . include document preparation,” J.A. 3040; see
  J.A. 705 (providing for “[a]rranging and finishing Customs
  Declaration, clearing customs at port, customs inspection”
  and “[p]aying port charges and any kind[] [of] fee[s] that
  relate to [p]ort formalities”). However, the prices per ton
  for bulk cargo also expressly provide that they are for
  “transport from SeAH” to regional ports, with price varying
  by destination, suggesting those fees are for transport (i.e.,
  freight forwarding). J.A. 705; see CS Wind, 971 F. Supp.
  2d at 1295 (“Common sense indicates that a half-full,
  twenty-foot container would incur the same document
  preparation expenses as a full twenty-foot container of a
  single type of good.”). The contract does not otherwise ex-
  plain why or when per container or per ton price might be
  charged. See J.A. 704–06. Commerce conceded that
  SeAH’s Freight Forwarder Contract “does not show how a
  Vietnamese company would charge for [B&H] services
  [separate from transportation],” but states that the con-
  tract is nonetheless “adequate to show that B&H costs can
  be incurred on a weight basis in Vietnam.” J.A. 3040; see
  Gov’t’s Br. 20 (arguing that Commerce “reasonably deter-
  mined that [B&H] costs should be allocated by weight”
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  24            SEAH STEEL VINA CORPORATION v. UNITED STATES




  because record evidence “indicat[es] that [SeAH’s] costs are
  or could be allocated by weight”). While “the burden of cre-
  ating an adequate record lies with [interested parties],”
  QVD Food, 658 F.3d at 1324, Commerce must, nonetheless,
  support its decision with substantial evidence, Downhole
  Pipe, 776 F.3d at 1374; see China Nat’l Arts & Crafts Imp.
  & Exp. Corp. v. United States, 771 F. Supp. 407, 413 (Ct.
  Int’l Trade 1991) (“Guesswork is no substitute for substan-
  tial evidence in justifying decisions.”). Commerce has
  failed to do so here. See CS Wind, 971 F. Supp. 2d at 1295
  (finding Commerce’s by-weight B&H allocation methodol-
  ogy unsupported by substantial evidence where “Com-
  merce has failed to explain why document preparation [and
  customs clearance] costs, as opposed to other B&H fees,
  would change depending on the size or weight of the ship-
  ment”). Substantial evidence “must do more than create a
  suspicion of the existence of the fact to be established.”
  NLRB v. Columbian Enameling & Stamping Co., 306 U.S.
  292, 300 (1939).
      Third, Commerce supported its by-weight allocation
  methodology with reference to record evidence that “shows
  that at least some Indian B&H costs vary by weight.”
  J.A. 3042. Specifically, Commerce cited to a supplemental
  questionnaire response, submitted by a mandatory re-
  spondent, GVN Fuels Ltd. (“GVN”), in another OCTG anti-
  dumping duty investigation. J.A. 1763. The supplemental
  response disclosed five separate categories of B&H
  charges: “Agency Charges,” “Shipping [B]ill [C]harges,”
  “Dock Fee,” “Bill of [L]ading [C]harges,” and “Other
  [C]harges.” J.A. 1764. Of these, two categories (“Agency
  Charges” and “Other [C]harges”) were reported at cost “per
  metric ton.” J.A. 1764. Commerce concluded that “due to
  the uncertainty as to the exact nature of [the two by-
  weight] charges, [Commerce] cannot state definitively that
  it did [include document preparation and customs clear-
  ance], just as [SeAH] cannot be certain that it did not.”
  J.A. 3042. This is insufficient. See China Nat’l Mach. Imp.
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  SEAH STEEL VINA CORPORATION v. UNITED STATES               25



  & Exp. Corp. v. United States, 264 F. Supp. 2d 1229, 1240
  (Ct. Int’l Trade 2003) (“Conjectures are not facts and can-
  not constitute substantial evidence.”). Further, the evi-
  dence Commerce cites does not support its conclusion. See
  Ta Chen Stainless Steel Pipe, Inc. v. United States, 298
  F.3d 1330, 1335 (Fed. Cir. 2002) (“To determine if substan-
  tial evidence exists, we review the record as a whole, in-
  cluding evidence that supports as well as evidence that
  fairly detracts from the substantiality of the evidence.” (in-
  ternal quotation marks and citation omitted)). Specifically,
  Commerce cites to a supplemental questionnaire response
  in which the respondent, to answer Commerce’s questions,
  reported some undefined B&H costs “per metric ton.” J.A.
  1764. GVN made no representations that it incurred or
  paid those costs by the metric ton. See J.A. 1763–65. To
  the contrary, GVN had “calculated the per metric ton rate
  identifiable to . . . certain [B&H-related] invoices” itself,
  and, when Commerce sought further clarification of what
  the specific expenses were and how GVN had calculated
  the rate, GVN provided itemized costs. J.A. 1764. GVN
  did not define “Agency Charges,” but explained “Other
  [C]harges” were “expenses that could [not] be directly allo-
  cated or traced to a specific invoice,” such that the total
  costs were “divided by the total quantity of the all [rele-
  vant] invoices” to allocate the costs. J.A. 1764. This does
  not establish that GVN paid any of the listed B&H costs by
  weight, but rather that the company reported its costs to
  Commerce by weight. Accordingly, Commerce’s B&H allo-
  cation methodology is unsupported by substantial evi-
  dence. See PAM, S.p.A. v. United States, 582 F.3d 1336,
  1340 (Fed. Cir. 2009) (“There must be at least enough evi-
  dence to allow reasonable minds to differ.”).
      The Government’s primary counterargument is unper-
  suasive. The Government argues that “[g]iven the mixed
  record of evidence showing that [SeAH’s and] Indian
  [B&H] costs” were “sometimes charged [and paid] by
  weight,” Commerce acted within its “discretion.” Gov’t’s
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  26            SEAH STEEL VINA CORPORATION v. UNITED STATES




  Br. 36. However, the record here is not “mixed” or “con-
  flicting,” as the Government asserts. Id.; see Cleo Inc. v.
  United States, 501 F.3d 1291, 1298 (Fed. Cir. 2007) (de-
  scribing evidence as “mixed” where there is evidence sup-
  porting two alternate conclusions). “Substantial evidence
  is more than a mere scintilla.” Consol. Edison Co. of New
  York v. NLRB, 305 U.S. 197, 229 (1938). As the CIT has
  already explained, we understand “that Commerce com-
  monly converts all surrogate values into a per kilogram
  amount for use in calculating dumping margins,” however,
  “its method of doing so here, based on the weight of the
  containers” is “unsupported by substantial evidence.”
  DuPont Teijin, 7 F. Supp. 3d at 1351–52; see CS Wind, 971
  F. Supp. 2d at 1295.
                         CONCLUSION
      We have considered the parties’ remaining arguments
  and find them unpersuasive. Accordingly, the Opinion and
  Order of the U.S. Court of International Trade is affirmed-
  in-part and reversed-in-part, and the case is remanded.
       AFFIRMED-IN-PART, REVERSED-IN-PART,
                 AND REMANDED
