Opinion
This matter comes before this Court on a motion for judgment on the agency record filed by Plaintiff Hangzhou Spring Washer Company (“Plaintiff’ or “Hangzhou”). Plaintiff challenges the final results by the United States Department of Commerce (“Defendant” or “Commerce”) in Certain Helical Spring Lock Washers from the People’s Republic of China, 69 Fed.Reg. 12,119 (Dep’t Commerce Mar. 15, 2004) (notice of final results of anti-dumping duty admin, review) [hereinafter Final Results ]. Plaintiff seeks remand on the following four issues: (1) valuation of steel wire rod; (2) valuation of plating; (3) valuation of overhead, selling, general and administrative expenses (“SG & A”), and profit; and (4) request for revocation. The parties concur regarding the remand request on the issue of the subsidy suspicion determination. This Court affirms in part and remands in part the Final Results as set forth below. This Court has jurisdiction over this case pursuant to 28 U.S.C. § 1581(c) (2000) аnd 19 U.S.C. § 1516a(a)(2)(A)(i) (2000).
Background
This is the ninth administrative review of the antidumping duty order pertaining to helical spring lock washers (“HSLW”) from the People’s Republic of China (“China”), and the period of review (“POR”) is from October 1, 2001, through September 30, 2002. Pursuant to 19 C.F.R.
On October 2, 2002, Commerce published Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation, 67 Fed.Reg. 61,849 (Dep’t Commerce Oct. 2, 2002) (opportunity to request administrative review). In response to Hangzhou and Defendant-Intervenor Shakeproof Assembly Components Division of Illinois Tool Works, Inc.’s (“Defendant-Intervenor” or “Shakeproof’) timely request, Commerce initiated a review. Initiation of Antidumping and Countervailing Duty Administrative Reviews and Requests for Revocation in Part, 67 Fed.Reg. 70,402 (Dep’t Commerce Nov. 22, 2002).
Because it is undisputed that the China qualifies as a non-market economy (“NME”), Commerce constructed a normal value for the various factors of production by gathering surrogate normal value data from market economy sources using a factors of production methodology. Commerce invited interested parties to submit information regarding surrogate values. (Public Record (“P.R.”) 13-14.) After Commerce issued the initial and first supplemental questionnaires and received responses from Hangzhou and deficiency comments from Shakeproof, the concept of subsidy suspicion against this subject merchandise appeared on thе record. (P.R. 19, 23, 24, 28, 30, 39, 49.)
On June 20, 2003, Shakeproof requested that Commerce apply its subsidy suspicion policy in its pre-preliminary determination comments. Shakeproof cited subsides found in earlier Commerce countervailing duty investigations involving cut-to-length steel from the United Kingdom (“UK”) and contended that Hangzhou’s wire rod supplier may have benefitted. Commerce then issued a second supplemental questionnaire to Hangzhou and subsequently conducted a verification of Hangzhou’s second supplemental questionnaire responses. (P.R. 45.) On October 31, 2003, Commerce issued a memorandum on the valuation of the factors of production, which determined that India would be the surrogate country and detailed the valuation of the factors of production. (P.R. 49.)
On November 7, 2003, Commerce published
Certain Helical Spring Lock Washers from the People’s Republic of Chinа,
68 Fed.Reg. 63,060 (Dep’t Commerce Nov.
In December 2003, Hangzhou submitted additional information on surrogate value. In January 2004, Hangzhou and Shake-proof submitted case and rebuttal briefs. (P.R. 58-61.) On March 15, 2004, Commerce issued the Final Results. Commerce found that Hangzhou sold HSLW at below normal value during the POR, calculated Hangzhou’s dumping margin to be 28.59 percent ad valorem, and rejected Hangzhou’s request for revocation. Final Results, 69 Fed.Reg. at 12,119-20. Hangzhou timely appealed.
Standard of Review
In reviewing a challengе to Commerce’s final determination in an anti-dumping administrative review, the Court will uphold Commerce’s decision unless it is “unsupported by substantial evidence on the record, or otherwise not in accordance with law....” Tariff Act of 1930, § 516A(b)(l)(B) (codified as amended at 19 U.S.C. § 1516a(b)(1)(B)(i) (2000)). “Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Consol. Edison Co. v. NLRB,
In determining whether Commerce’s interpretation and application of the antidumping statute is in accordance with law, this Court must consider “whether Congress has directly spoken to the precise question at issue,” and if not, whether the agency’s interpretation of the statute is reasonable.
Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
Parties’ Contentions
Plaintiff appeals four main issues: (1) valuation of steel wire rod; (2) valuation of plating; (3) valuation of overhead, SG & A, and profit; and (4) request for revocation. The contentions of the parties are set forth below.
A. Plaintiffs Contentions
(1) Valuation of steel wire rod
Hangzhou argues that Commerce’s rejection оf its market economy prices for
Hangzhou also argues that there is no evidence that any possible subsidy from its UK supplier benefitted Hangzhou since it purchased steel wire rod imports through a third country trading company in Hong Kong. (Pl.’s Mem. at 24.) Hangzhou cites to Certain Color Television Receivers from the People’s Republic of China, 69 Fed.Reg. 20,594, 20,597 (Apr. 16, 2004) (notice of final determination) [hereinafter Color TVs 3 ], in support of its assertion that the presumption of a subsidy does not automatically pass through to an intermediate trading company. (PL’s Mem. at 24.)
(2) Valuation of plating
Hangzhou contends Commerce’s decision to use a single surrogate price quote for plating services is contrary to established practice and not in accordance with law. Hangzhou argues that Commerce improperly used a single surrogate price rather than following its past practice to value the factors of production used by Hangzhou’s plating subcontractors. (Id. at 25.) Hangzhou argues that Commerce deviated from its practice followed in the eight previous reviews by disregarding Hangzhou’s subcontractor’s factors of production for plating. Hangzhou asserts that in the prior reviews Commerce rejected the very method applied in this review because the use of a single surrogate price impermissibly double-counts the amounts for overhead, SG & A and profit. (Id. at 26) (citing Certain Helical Spring Lock Washers from the People’s Republic of China, 67 Fed.Reg. 8,520, 8,522, cmt. 2 (Dep’t Commerce Feb. 25, 2002) (final results of antidumping duty admin, review) [hereinafter Seventh Review ].)
Hangzhou also asserts that using a surrogate value for plating will effectively treat Hangzhou’s plating subcontractor as an independent producer by calculating separate overhead, SG & A, and profit values, in violation of 19 C.F.R. § 851.401(h) (2004).
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According to Hangzhou, this methodology is inexplicably inconsistent with past reviews, in which Commerce found that Hangzhou controlled its subcontractors. (PL’s Mem. at 27.) Beсause Hangzhou controlled its subcontractors, Commerce did not consider the
In past administrative reviews of HSLWs, [Commerce] acknowledged that applying the surrogate overhead, SG & A, and profit to the subcontracted plating operations before being incorporated as a material input in the respondent’s normal value calculation would result in double-counting because all overhead, SG & A, and profit expenses were already captured by the application of the surrogate overhead, SG & A[,] and profit ratios at the final production stage.
(Pl.’s Mem. at 28 (citing Certain Helical Spring Lock Washers from the People’s Republic of China, 65 Fed.Reg. 31,143, 31,144, cmt. 3 (Dep’t Commerce May 16, 2000) (final results of antidumping duty admin, review); Certain Helical Spring Lock Washers from the People’s Republic of China, 64 Fed.Reg. 13,401, 13,404, cmt. 2 (Mar. 18, 1999) (final results of anti-dumping duty admin, review)).)
(3) Valuation of overhead, SG & A, and profit
Hangzhou contends that Commerce’s decision to use general, contemporaneous data rather than industry specific, less recent data to calculate surrogate financial ratios is unsupported by regulations, evidence and facts on the record. (Pl.’s Mem. at 32.) Hangzhou asserts that Commerce’s use of 1,927 public companies’ ratios from the Reserve Bank of India Bulletin (“RBI Bulletin data”) is not industry-specific and therefore not representative of Hangzhou’s operations. (Id.) Hangzhou argues that Commerce should have continued to use the RBI data set “Processing and Manufacturing: Metals, Chemicals, and Products Thereof’ (“metals data”) that it used in all the prior administrative reviews. (Id. at 33.) Hangzhou claims that availability of more reсent but generic data is insufficient justification to depart from Commerce’s practice in the previous reviews, in which the agency used the older but more industry specific data. 5 (Id. at 35.) Hangzhou asserts that Commerce failed to explain its rationale for imposing time parameters on the available data and why these chosen parameters have an impact on the reliability of the financial data. (Id. at 37.)
(4) Request for revocation
Hangzhou contends that Commerce’s change in factors of production methodology is of particular concern because the antidumping duty order against its HSLW was eligible for revocation in this review. (Pl.’s Mem. at 38.) Hangzhou pointed out that in the two previous reviews Commerce found that Hangzhou had not sold subject merchandise at less than fair value. (Pl.’s Mem. at 38
(citing Seventh Review, Certain Helical Spring Loсk Washers from the People’s Republic of China,
67 Fed.Reg. 69,717 (Dep’t Commerce Nov. 19, 2002) (final results of antidumping duty admin, review) [hereinafter
Eighth Review
]).) Hangzhou argues that Commerce’s unwarranted change in established practice resulted in “substantially increasing Hangzhou’s margin in this review and disqualifying Hangzhou for revocation.” (Pl.’s Mem. at 38.) Hangzhou claims that Commerce “must be bound by its prior actions so that parties have a chance to ‘purge themselves’ of antidumping liabilities.”
(Id. (citing Shikoku Chem. Corp. v. United States,
B. Defendant’s Contentions
(1) Valuation of steel wire rod
Although Commerce admits to using market prices in the past reviews, Commerce explains that the record in this review is different. Issues and Decision Memorandum for the Final Results of Antidumping Duty Administrative Review of CeHain Helical Spring Loсk Washers from the People’s Republic of China, A-570-822, cmt. 1 (Mar. 8, 2004) [hereinafter Decision Memo ]. In this review, Commerce received evidence that suggested for the first time that Hangzhou’s steel wire rod prices may have been distorted by subsidies. Commerce claims that its “past findings in this proceeding do not preclude [it] from considering [new] information and changing its treatment of Hangzhou’s [steel wire rod] prices based on that information.” Id. Although Commerce acknowledges its preference for using actual market prices to value factors of production, Commerce explains that legislative history limits the use of market economy prices to “only untainted market economy prices,” and in this review, the market prices may have been tainted by subsidy. (Def.’s Resp. at 14.)
Although Commerce contends that its decision to invoke the subsidy suspicion policy was reasonable based upon Shake-proofs submissions, Commerce admits that the subsidies were generally used by the UK steel industry and admittedly were not tied to a particular steel product. Commerce points out that this Court has recognized that even a general subsidy may provide a reasonable basis to conclude that Hangzhou’s supplier may have bene-fitted from the alleged subsidy. (Def.’s Resp. at 18-19
(citing China Nat’l Mach. Imp. & Exp. Corp. v. United States,
While Commerce concedes that Color TVs, 69 Fed.Reg. at 20,594, represents a change of policy, Commerce points out that this change occurred after this matter’s Final Results were issued. Notwithstanding the subsequent timing, Commerce requests a voluntary remand on the issue of the subsidy suspicion policy. (Def.’s Resp. at 19.) “Specifically, upon remand, Commerce would consider the issue of whether the trading company included any benefit from the subsidy when it sold to Hangzhou.” (Id.) Hangzhou consents to this remand request. (Reрly Br. in Supp. of Pl.’s Rule 56.2 Mot. for J. upon the Agency R. at 1.)
(2) Valuation of plating
Commerce admits that it veered from its past practice in this review by using a single surrogate plating price instead of a plating build-up price.
Decision Memo
at 16. Nevertheless, Commerce notes that it prefers surrogate prices over build-up prices when the respondent is not a fully integrated producer.
6
Id.
at 17. Hangzhou is not a fully integrated producer because it is unable to plate its own HSLW. However, in prior reviews, the only available plating data was Hangzhou’s platers’ factors of production.
Id.
In contrast, in this review, Shakeproof introduced another option — a single plating price quote. Therefore, Commerce could employ its preference for surrogate prices.
Id.
Commerce asserts its change in this review actually reflects its “normal praс
(3) Valuation of overhead, SG & A, and profit
Commerce contends that its decision to use more contemporaneous and nonspecific data rather than specific and less contemporaneous data is statutorily permissible pursuant to its discretionary power authorized in 19 U.S.C. § 1677b(c) (2000). (Def.’s Resp. at 27.) Although conceding that the metals data is more specific than RBI Bulletin data, Commerce responds it exercised its discretion in valuing contemporaneity over specificity. {See id.; see also Decision Memo at 21.) Commerce argues that contemporaneous data is the best available information “because the Indian economy has been quickly transforming in the past few years, negating the relevancy of the nine year old data.” (Def.’s Resp. at 27.) Commerce further asserts that using more contemporaneous data was consistent with its duty to calculate antidumping rates with maximum accuracy. (I d. at 29.)
(4) Request for revocation
Commerce contends it properly determined that Hangzhou did not qualify for revocation of the antidumping order because Hangzhou did not meet the regulatory requirement of three consecutive zero or de minimis margins pursuant to 19 C.F.R. § 351.222(b)(1). (Def.’s Resp. at 36.) Although Commerce found Hangzhou to have de minimis margins in the two previous reviews, Commerce determined that Hangzhou sold subject merchandise at less than normal value during this review. (Id.) Commerce contends that it must consider new evidence presented during each review without consideration that the review might be determinative of a revocation. {Id.)
C. Defendant-Intervenor’s Contentions
(1) Valuation of steel wire rod
Shakeproof contends that Commerce properly rejected Hangzhou’s submission of market economy prices for the valuation of steel wire rod. Although noting that Commerce typically prefers market economy import prices, Shakeproof emphasizes that such preference is discretionary and “does not override Commerce’s established practice to disregard a market price if Commerce has a ‘reason to believe or suspect’ the market economy input benefitted from subsidies.” (Def.-Intervenor’s Resp. in Opp’n to Pl.’s Mot. for J. upon the Agency R. at 8-4. (“Def.-Int.’s Resp.”).) Citing legislative history, Shakeproof argues that Commerce should disregard mаrket economy prices where there is a reason to believe or suspect the prices may be dumped or subsidized. (Def.-Int.’s Resp. at 9.) Shakeproof purports that it is sufficient that Commerce suspected subsidization for it to apply the subsidy suspicion policy to the valuation of steel wire rods.
(2) Valuation of plating
Shakeproof contends that Commerce’s decision to use a single surrogate price for the valuation of plating services was supported by substantial evidence and otherwise in accordance with law. (Def.-Int.’s Resp. at 17.) Shakeproof supplied a single surrogate price quote that involved an arm’s length transaction in quantities similar to Hangzhou’s and was comparable to the plating value calculated from separate
(3) Valuation of overhead, SG & A, and profit
Shakeproof contends Commerce correctly chose the more contemporaneous RBI Bulletin data to value overhead, SG & A, and profit. (Id. at 18.) As with the previous subsection, Shakeproofs contentions are virtually similar to Commerce’s (id. at 17-18), have been duly considered, and will not be repeated.
ANALYSIS
Congress provided Commerce with a statutory scheme for calculating dumping margins. When the antidumping investigation involves a non-market economy, as is China, 19 U.S.C. § 1677b(c) governs. This section provides that Commerce construct a normal value of the subject merchandise from the best available information on the valuation of the factors of prоduction. 19 U.S.C. § 1677b(e).
7
Courts have noted that “the process of constructing foreign market value for a producer in a nonmarket economy country is difficult and necessarily imprecise.”
Nation Ford Chem. Co. v. United States,
Furthermore, there is no statutory requirement for Commerce to use a particular methodology to calculatе valuation for factors of production.
See, e.g., Shakeproof III,
Although courts have viewed the statute as a guideline to assist Commerce in the process of constructing foreign market value for a producer in a non-market economy, they have recognized “this section also accords Commerce wide discretion in the valuation of factors of production in the application of those guidelines.”
Nation Ford,
(1) Valuation of steel wire rod
In this review, valuation of steel wire rod embodies the issue of the subsidy suspicion policy. In light of its recent Color TVs determination, 69 Fed.Reg. at 20,597, Commerce requests voluntary remand on this issue, and Hangzhou consents. This Court grants Commerce’s request for voluntary remand. However, Commerce requests a limit on its review on remand to whether any benefit was transferred to Hangzhou from its third country trading company. Because this request is for a limited review, this Court believes the issue of subsidy suspicion рolicy merits a short discussion.
Contrary to prior reviews where Hangzhou’s market economy prices were used, Commerce invoked a subsidy suspicion policy in this review. For the first time in HSLW review history, Shakeproof placed on the record a subsidization issue. Commerce reasonably notes that its “past findings in this proceeding do not preclude [it] from considering [new] information and changing its treatment of Hangzhou’s [steel wire rod] prices based on [new] information in this administrative review.”
Decision Memo
at 7. By invoking the subsidy suspicion policy, Commerce went against its own regulatory norm of using market economy prices pursuant to 19 C.F.R. § 351.408(c)(1) (2004).
9
Commerce defends its position by pointing to legislative history which states, “In valuing such factors [of production], Commerce shall avoid using any prices which it has reason to believe or suspect may be dumped or subsidized prices.” H.R. Conf. Rep. No. 100-576, at 590 (1988) [hereinafter
OTCA Legis. Hist.].
This Court finds Commerce and Shakeproofs arguments persuasive that the Congressional directive for subsidy suspicion and regulatory preference for market prices are not mutually exclusive. Rather, Commerce’s rationale that market prices will be used, as in past reviews, when the subsidy suspicion policy is not invoked is reasonable. As aptly stated in
China National,
“given that the overarching purpose of the antidumping and countervailing duty law is to counteract dumping and subsidies, the court cannot conclude that Congress would condone the use of any value where there is a ‘reason to believe or suspect’ that it reflects dumping or subsidies.”
In attempting to define a similar phrase, “reasonable grounds to believe or suspect,” which appears in 19 U.S.C. § 1677b(b)(1) (1999), this Court observed that “in order for reasonable suspicion to exist there must be ‘a particularized and objective basis for suspecting’ the existence of certain proscribed behavior, taking into account the totality of the circumstances, the whole picture.” ... This insistence on “a particularized and objective basis” has been interpreted to mean a “ ‘demand for specificity.’ ” ... Therefore, the “reason to believe or suspect” standard at issue here must be predicated on particular, specific, and objective evidence.
China Nat’l,
This Court does not decide whether the challenging party has met its burden in this case, but rather, this Court grants voluntary remand for Commerce to conduct its review consistent with the discussion herein.
(2) Valuation of plating
Commerce valued plating using a single surrogate price submitted by Shakeproof rather than build-up prices from subcontractors of Hangzhou. Although Hangzhou claims this is a departure from past practice in prior reviews and Commerce concedes this point, Commerce explains that this change is consistent with its established preferences. Commerce has articulated its preference for surrogate prices over build-up prices in its determinations when a producer is not fully integrated.
See Issues and Deci
Moreover, the record reflects Commerce’s assertion of its preferred policy for valuing factors for integrated versus non-integrated producers, and the record does not reflect any dispute that Hangzhou is a non-integrated producer. Although Commerce may have previously found that Hangzhou controlled its subcontractors, this does not negate Commerce’s current finding that Hangzhou remains a non-integrated producer. This Court cannot make a judgment on Commerce’s preferred policy of using a surrogate price over a buildup approach for non-integrated producers but instead finds that Commerce did not act arbitrarily in reaching its decision to use a single surrogate price.
See Peer Bearing,
Regarding the issue of the single surrogate price as double-counting of overhead, SG
&
A, and profit, Hangzhou argues that this Court should treat its subcontractors as “affiliated” despite the fact that “Hangzhou explained that it is not affiliated with [its] platers.”
Decision Memo
at 18;
see also
P.R. 45. This Court declines to create facts on the record. Explaining that the record contained surrogate value information for two groups of companies that both lacked specific information on integration, Commerce analyzed the record and selected the best available information without regard to the surrogate overhead, SG & A, and profit.
Decision Memo
at 18. This Court defers to Commerce as to what constitutes the best available informatiоn and finds that Commerce’s decision regarding the issue of double-counting for overhead, SG & A, and profit has a “rational connection between the facts found and the choice made.”
Shanghai Foreign Trade,
Accordingly, this Court holds that Commerce’s change in methodology to use a single surrogate price in this review is supported by substantial evidence on the record or otherwise in accordance with law.
Regulation 19 C.F.R. § 351.408(e)(4) (2004) states that Commerce “normally will use non-proprietary information gathered from producers of identical or comparable merchandise in the surrogate country” to value overhead, SG & A, and profit. In this review, however, Commerce decided to use the general but more contemporaneous data submitted by Shakeproof. This was a departure from the previous reviews, where Commerce used the specific but less contemporaneous industry specific data provided by Hangzhou. As stated above, a change in methodology is permissible, but it must be supported by substantial evidence on the record.
See Atchison,
Commerce, therefore, has two tasks to explain: (1) why it chose to ignore the regulatory norm and (2) why it departed from past practice. This Court finds that Commerce provided sufficient reasons for both. This Court recognizes that the regulations, like the statute, establish a structure that is not mandatory but rather provides guidance.
See Shakeproof III,
Although this Court has upheld the favoring of specificity, it was not done so at the expense of contemporaneity. The court in
Yantai Oriental Juice Co. v. United States
considered that the generalized data was “dramatically more outdated” than the specific data. Slip Op. 02-56,
Accordingly, this Court holds that Commerce’s decision to use the more contemporaneous but general data is supported by substantial evidence on the record or otherwise in accordance with law.
(4) Request for revocation
This Court notes that this ninth review was determinative of a revocation. Pursuant to 19 C.F.R. § 351.222(b), Commerce denied revocation because it found Hangzhou sold subject merchandise at less than normal value in this review. Although the decision as it stands is supported by substantial evidence or otherwise in accordance with law, this Court finds that the issue of revocation may be affected by the voluntary remand. If upon review Commerce finds Hangzhou’s dumping margin to be de minimis, then revocation may be warranted. This Court remands the issue of revocation along with the issue of subsidy suspicion policy, as these issues may affect each other.
Conclusion
For the foregoing reasons, this Court affirms in part and remands in part Commerce’s Final Results. This Court affirms Commerce’s determinations on the issues of valuation of plating, and overhead, SG & A, and profit as being supported by substantial evidence on the record or otherwise in accordance with law. This Court grants Defendant’s request for voluntary remand on the issue of subsidy suspicion policy regarding the valuation of steel wire rod. This Court also directs remand on the issue of revocation insofar as the voluntary remand review may affect the outcome of the revocation.
Notes
. 19 C.F.R. § 351.222(e)(1) states:
Antidumping proceeding. During the third and subsequent annual anniversary months of the publication of an anti-dumping order or suspension of an anti-dumping investigation, an exporter or producer may request in writing that the Secretary revoke an order or terminate a suspended investigation....
. 19 C.F.R. § 351.222(b)(l)(i), in relevant part, reads:
In determining whether to revoke an an-tidumping duty order or terminate a suspended antidumping investigation, the Secretary will consider:
(A) whether all exporters and producers covered at the time of revocation by the order or the suspension agreement have sold the subject merchandise at not less than normal value for a period of at least three consecutive years ...
. In Color TVs, Commerce reasoned:
The regulation does not address those instances where subsidized exports are shipped through a third-country trading company to its final destination. The trading company in the third country is not subject to the investigation, and cannot therefore be presumed to have bene-fitted from any subsidies received by the producer or exporter of the merchandise.
Issues and Deсision Memorandum for the Antidumping Duty Investigation of Certain Color Television Receivers from the People’s Republic of China, A-570-884, cmt. 8 (Apr. 16, 2004).
. 19 C.F.R. § 351.401(h) states:
Treatment of subcontractors ("tolling” operations). The Secretary will not consider a toller or subcontractor to be a manufacturer or producer where the tol-ler or subcontractor does not acquire ownership, and does not control the relevant sale, of the subject merchandise or foreign like product.
. The general RBI Bulletin data is from 2000 to 2001, and the industry specific metals data is from 1992. (Def.'s Resp. at 30.)
. Plating build-up is when the factors of production are consumed by unaffiliated plating subcontraclors. See Decision Memo at 16.
. 19 U.S.C. § 1677b(c), in pertinent part, states:
(1) In general
If—
(A) the subject merchandise is exported from a nonmarket country, and
(B) the administering authority finds that available information does not permit the normal value of the subjeсt merchandise to be determined under subsection (a) of this section,
the administering authority shall determine the normal value of the subject merchandise on the basis of the value of the factors of production utilized in producing the merchandise and to which shall be added an amount for general expenses and profit plus the cost of containers, coverings, and other expenses. Except as provided in paragraph (2), the valuation of the factors of production shall be based on the best available information regarding the values of such factors in a market country or countries considered to be appropriate by the administering authority.
(3) Factors of production
For purposes of paragraph (1), the factors of production utilized in producing merchandise include, but are not limited to—
(A) hours of labor required,
(B) quantities of raw materials employed,
(C) amounts of energy and other utilities consumed,
(D) representative capital cost, including depreciation.
(4) Valuation of factors of production
The administering authority, in valuing factors of production under paragraph (1), shall 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.
. In
Shikoku,
the plaintiff relied on Commerce’s permission to adjust home market prices to reflect repackaging costs paid to its subcontractor. However, in the final determination, Commerce retroactively applied a new methodology excluding those repackaging costs. On these facts, this Court held that Commerce's change in methodology at this late stage went against principles of fairness.
. 19 C.F.R. § 351.408(c)(1) states:
Information used to value factors. The Secretary will normally use publicly available information to value factors. However, where a factor is purchased from a market economy supplier and paid for in a market economy currency, the Secretary normally will use the price paid to the market economy supplier. In those instances where a portion of the factor is purchased from a market economy supplier and the remainder from a nonmarket economy supplier, the Secretary normally will value the factor using the price paid to the market economy supplier,
. The Court notes that Commerce has favored specificity where there was a five year span between the specific versus non-specific data. See Heavy Forged Hand Tools from the People’s Republic of China, 62 Fed.Reg. 11, 813, 11,816 (Dep't Commerce Mar. 13, 1997) (final results of antidumping duty admin, review) [hereinafter 1997 Hand Tools ] (in valuing labor costs, Commerce chose to use industry specific data from 1990 rather than less specific data from 1992 during the period of review for 1995-96); Partial-Extension Steel Drawer Slides with Rollers from the People’s Republic of China, 60 Fed.Reg. 54,472, 54,474-76 (Dep’t Commerce Oct. 24, 1995) (notice of final determination of sales at less than fair value) [hereinafter Drawers ] (in valuing rivet inputs, Commerce chose to use industry specific data from 1994 rather than the less specific data from the period of investigation during 1995). Commerce defends its decision in tire present matter, however, in that the "metals data are eight years older than the RBI [Bulletin] data, and are much further removed from the POR than the data available to [Commerce] in 1997 Hand Tools and Drawers." Decision Memo at 21.