Appellants appeal a decision of the U.S. Court of International Trade that affirmed a U.S. Department of Commerce determination to select Thailand as the surrogate country for China in the second administrative review of an antidumping duty order on certain steel threaded rod from China. 1 We hold that the U.S. Department of Commerce decision to use surrogate values from Thailand to value certain factors of production in calculating normal value for the subject merchandise was in accordance with law, not arbitrary or capricious, and supported by substantial evidence. We affirm.
BackgRound
Appellants are Jiaxing Brother Fastener Co., Ltd. (aka Jiaxing Brother Standard Parts Co., Ltd.), IFI & Morgan Ltd., and RMB Fasteners Ltd. (collectively, “Appellants” or “Jiaxing”). Jiaxing Brother Fastener Co., Ltd. is a Chinese manufacturer of steel threaded rod, while IFI & Morgan Ltd. and RMB Fasteners Ltd. are Chinese exporters of the steel threaded rod produced by Jiaxing Brother Fastener Co., Ltd. Appellants are affiliated parties. J.A. 8. Appellants challenge the U.S. Department of Commerce (“Commerce”) decision to select Thailand as the surrogate country to establish normal value in the second administrative review of the antidumping duty order on certain steel threaded rod from China. See Certain Steel Threaded Rod from the People’s Republic of China: Notice of Antidumping Duty Order, 74 Fed. Reg. 17,154 (Dep’t of Commerce Apr. 14, 2009).
In antidumping proceedings involving nonmarket economy countries, such as China, the Tariff Act requires Commerce to calculate normal value of the subject merchandise based on surrogate values offered in a comparable market economy.
See
19 U.S.C. § 1677b(c)(l). Commerce calculates the surrogate values by valuing certain “factors of production” used in producing the merchandise in a comparable market economy.
2
Id.
§ 1677b(c)(4). In essence, Commerce seeks to construct a hypothetical normal value for the merchandise that is uninfluenced by' the nonmarket economy.
See Nation Ford Chem. Co. v. United States,
As early as 2004, Commerce has followed a four-step process to select a surrogate country:
(1) the Office of Policy (“OP”) assembles a list of potential surrogate countries that are at a comparable level of economic development to the [non-market economy] country; (2) Commerce identifies countries from the list with producers of comparable merchandise; (3) Commerce determines whether any of the countries which produce comparable merchandise are significant producers of that comparable merchandise; and (4) if more than one country satisfies steps (1) — (3), Commerce will select the country with the best factors data.
Vinh Hoan Corp. v. United States,
The statute directs Commerce to value the factors of production through “the best available information”, in the market economy. ■ 19 U.S.C. § 1677b(c)(l). We have noted that Commerce has discretion to determine what constitutes the best available information, as this term is not defined by statute.
QVD Food Co. v. United States,
Using the best available information, Commerce “shall [value the factors of production] to the extent possible ... in one or more market economy countries that are — (A) at a level of economic development comparable to that of the nonmarket economy country, and (B) significant producers of comparable merchandise.” § 1677b(c)(4)(A)-(B) (emphases added). The statute does not define “comparable”; nor does it require Commerce to use any particular methodology in determining which countries are sufficiently comparable. To partially fill the statutory gap, Commerce promulgated ■ 19 C.F:R. § 351.408(b), which emphasizes per capita Gross Domestic Product (“GDP”) as a measure of economic comparability:
In determining whether a country is at a level of economic development comparable to the non-market economy under [19 U.S.C. § 1677b(c)(l)(B) ] or [19 U.S.C. § 1677b(c)(4)(A) ] of the Act, the Secretary will place primary, emphasis on per capita GDP as the measure of economic comparability.
19 C.F.R. § 351.408(b).
At least by 2007, Commerce began relying on per capita Gross National Income (“GNI”), as opposed to per capita GDP, for determining sufficiently comparable countries. According to Commerce, “while the two measures are very similar, per capita
Following its preference to use one surrogate country as the reference point, 19 C.F.R. § 351.408(c)(2), when several countries are both at a level of economic development comparable to the nonmarket economy country and significant producers of comparable merchandise, Commerce evaluates the reliability and completeness of the data in the similarly-situated surrogate countries and generally selects the one with the best data as the primary surrogate country. 3
In April 2008, Commerce instituted the underlying antidumping duty investigation on certain steel threaded rod from China. 4 In April 2009, Commerce made a final affirmative determination that a U.S. industry was materially injured by sales at less-than-fair value of the merchandise subject to the scope of the investigation. 5 In 2009, Commerce issued an antidumping duty order on the subject merchandise. 6 For purposes of both the preliminary and final determinations, Commerce selected India as the- surrogate country on which to base the Chinese producers’ factors of production. 7 Appellants were respondents in the investigation and were assigned anti-dumping duty rates of 55.16%. 8
The Second Administrative Review
On May 27, 2011, Commerce initiated a second administrative review for the period of review from April 1, 2010, though March 31, 2011. 9 The second administrative review is the subject of this appeal.
At the outset of the second administrative review, Commerce proposed seven countries as potential surrogate countries
Country Per Capita GNI, 2010(USD)
China $4,260
Philippines $2,050
Indonesia $2,580
Ukraine $3,010
Thailand $4,210
Pera $4,710
Columbia $5,510
South Africa $6,100
J.A. 28-29. With a per capita GNI of $1,340, India was not included on the list. J.A. 27-29. 10
After publishing the list of surrogate country candidates, Commerce invited interested parties to comment on the selection of an appropriate surrogate country for China. 11 Vulcan Threaded Products, Inc. (“Vulcan”) submitted data from Thailand, arguing that Thailand was the best choice. Jiaxing urged Commerce to use India as the surrogate country. 12 J.A. 61-62, 821. Of the additional countries proposed by other parties, none were within the per capita GNI range noted on the list. J.A. 25, 821,1384-85.
In its April 2012 preliminary decision on the second administrative review, Commerce selected Thailand as the most appropriate market economy to act as the surrogate country to China. J.A. 811-35. 13 Commerce evaluated Global Trade Atlas (“GTA”) data and determined that all countries on the surrogate country list exported significant quantities of steel threaded rod and could be considered significant producers of comparable merchandise. J.A. 820-21. After considering the reliability and availability of surrogate value data, Commerce chose Thailand as the primary surrogate country because the Thai information on record was “complete,” allowing Commerce to value material inputs, energy, movement expenses, and financial ratios. J.A. 821-22. To value financial ratios, Commerce used the 2010 annual report of the Thai company Capital Engineering Network Public Company Limited (“CEN”). J.A. 821-22, 828-43. To value the steel and hydrochloric acid (“HC1”) inputs, Commerce used Thai GTA import statistics. J.A. 824-25, 838-41. Commerce did not consider India as a surrogate country because the Indian data was less economically comparable to China than the Thai data. J.A. 820-21.
Following the preliminary decision, Jiax-ing submitted briefing, arguing that Com
On November 9, 2012, Commerce published the final results of the second administrative review, selecting Thailand as the surrogate country. 14 J.A. 1, 1384-94. Commerce again explained that India’s per capita GNI was not at a level of economic development comparable to China. J.A. 1385-87. As between Thailand and the Philippines, observing that both countries were significánt producers of comparable merchandise, Commerce determined that the Thai data was the best available information on record. J.A. 1387-88. Commerce explained that the cost of steel wire rod was the factor with the greatest significance and impact on normal value. According to Commerce, the Thai information was the most specific data available for this critical factor. J.A. 1389.
Procedural History
On November 28, 2012, Jiaxing appealed the final results to the Court of International Trade (“Trade Court”), arguing that Commerce erred in selecting Thailand as the primary surrogate country over India and the Philippines. J.A. 1441.
On February 6, 2014, the Trade Court affirmed Commerce’s exclusion of India as á potential surrogate country, but remanded for clarification on the basis for selecting Thailand as the surrogate country.
Jiaxing Brother Fastener Co. v. United States (Jiaxing I),
On May 9, 2014, Commerce again found on remand that Thailand offered superior data for calculating normal value. 15 J.A. 1422-40. Commerce observed that both the Philippines and Thailand offered financial statements that met its administrative requirements. J.A. 1424-27. Commerce also found that both the Philippine and Thai data for HC1 were specific, contemporaneous, and reliable. J.A. 1427-32. Noting the parity between the two candidate countries; Commerce emphasized the importance of steel wire rod:
Given that steel threaded rod is a type of steel fastener drawn from steel wire rod or steel round bar, in this case, these steel inputs are the most important [factors of production] to consider in the proper valuation of steel threaded rod. In fact, nearly all manufacturing costs were derived from the main steel inputs, and consist of a large majority of the [normal value].
J.A. 1432. Because one input dominated Jiaxing’s factors of production, Commerce found that the Thai steel data was superior and outweighed any weakness in the Thai financial statements or HC1 input data. J.A. 1432. Jiaxing appealed Commerce’s remand redetermination.
On September 25, 2014, the Trade Court affirmed the remand redetermination.
Jiaxing Brother Fastener Co. v. United States (Jiaxing II),
Jiaxing appeals. We have jurisdiction under 28 U.S.C. § 1295(a)(5) (2012).
STANDARD OF REVIEW
We review Trade Court decisions de novo, applying the same standard used by the Trade Court when reviewing Commerce decisions.
Downhole Pipe & Equip., L.P. v. United States,
Substantial evidence is “more than a mere scintilla” and amounts to what a “reasonable mind might accept as adequate to support a conclusion.”
Downhole,
We review de novo whether Commerce erred in interpreting a governing statute.
PSC VSMPO-Avisma Corp. v. United States,
Jiaxing argues that Commerce’s choice of Thailand as the surrogate country over India and the Philippines was erroneous on three distinct grounds. 17 First, Jiaxing argues that Commerce’s decision to exclude India reflects erroneous interpretations of the antidumping statute and findings not supported by substantial evidence. Second, Jiaxing contends that the selection of Thailand was arbitrary and capricious because India has traditionally served as the surrogate country, and there is no legal basis for Commerce to depart from its long-standing practice. Third, Jiaxing asserts that the selection of Thailand is not supported by substantial evidence. We take each argument in turn..
Commerce’s Decision to Exclude India
We first address whether Commerce’s decision to not consider India as a potential surrogate country is based on a permissible construction of the statute. As noted above, neither party argues that the statute is ambiguous. We therefore are left to determine whether Commerce’s decision to not consider India as a surrogate country (or a surrogate country candidate) conflicts with the statute’s express terms.
See United States v. Eurodif S.A., 555
U.S. 305, 322,
We discern nothing in the statute that requires Commerce to consider any particular country as a surrogate country. When Congress does not mandate a procedure or methodology for applying a statutory test, “Commerce may. perform its duties in the way it believes most suitable.”
See JBF RAK LLC v. United States,
Commerce’s Selection of Thailand over India
We next consider Jiaxing’s assertion that Commerce has a long and estab
The record demonstrates that Commerce considered Jiaxing’s arguments that favored India, and that its rejection of them during the second administrative review was consistent with the antidumping statute and supported by substantial evidence:
India, though, had a per capita GNI of $1,340, whereas [China] had a per capita GNI of $4,260. Given that disparity, as well as the availability of surrogate value data from two other economically comparable countries, Commerce’s decision to not select India appears reasonable; it is difficult to envision how India would have been a reasonable or defensible choice on this administrative record.
[Jiaxing], however, omit[s] from [its] analysis other apparent “material factors of economic comparability” contained on the administrative record that tend to demonstrate greater similarities between [China] and Thailand than [China] and India, including per capita GDP, life expectancy, adult literacy, and GDP composition by sector of origin.
India therefore could never be a reasonable choice because at least one country, the Philippines, satisfies the statutory criterion of economic comparability, whereas India does not. [Jiaxing’s] argument about the qualitative superiority of Indian data compared to Thai data ultimately concentrates on a false choice.
Jiaxing I,
That India has a long history as serving as the surrogate country to China does not mean Commerce is restrained from considering the adequacy of other countries to serve that role. Commerce is required to base surrogate country selection on the facts presented in each case, and not on grounds of perceived tradition. “[E]ach administrative review is a separate exercise of Commerce’s authority that allows for different conclusions based on different facts in the record.”
Qingdao,
Commerce’s Selection of Thailand qver the Philippines
We next address whether Commerce’s selection of Thailand over the Philippines as the surrogate country was contrary to law and not supported by substantial evidence. Jiaxing argues that Commerce erred in (1) relying on the financial statement of the Thai corporation CEN, (2) emphasizing the value of steel over other inputs, and (3) favoring Thai HC1 data, over Philippine HC1 data.
First, Jiaxing argues that the CEN financial statement was not the best available information available in the record. In addition to CEN’s financial statement, the record contains four Indian and four Philippine financial statements. Jiaxing argues that Commerce’s use of the CEN financial statement is unreasonable because CEN’s principal business is investment, not steel production. J.A. 661. Jiaxing cites a previous Commerce decision that CEN was not a manufacturer of steel wire rod. 18 Jiaxing also challenges the accuracy of the CEN financial statement, arguing that the statement does not provide cost breakouts and that the record lacked an original-language-translation version of the statement. Jiaxing further asserts that CEN is a beneficiary of “concessionary tax rates,” which skews the data. ”
Second, Jiaxing asserts that Commerce erred in emphasizing steel inputs at the expense of non-conforming data. Jiaxing notes that the Thai wire rod values are 40% higher than the world market prices, and that Vulcan recently sued Thailand for dumping and injuring the U.S. steel threaded rod industry. 19
Jiaxing further argues that the Thai import value for HC1 is questionable because the data are inconsistent with the value of domestic Thai HC1 products and the import value of HC1 products shipped by other countries to Thailand. J.A. 12-14.
We conclude that Commerce’s selection of Thailand over the Philippines as the surrogate country is reasonable and supported by substantial evidence. The question here is not whether the infórma
We also conclude that Commerce reasonably relied on the CEN financial statement, and that substantial evidence supports Commerce’s findings. The record shows that only three of the Philippine financial statements are relevant because one company produces steel wire mesh fencing, which is not drawn from wire rod. J.A. 1393-94. Although CEN was primarily an investment company, one of its subsidiaries produced pre-stressed concrete wire, which is drawn from wire rod. CEN also generated almost 50% of its income in 2010 from wire industries. J.A. 629. In addition, the CEN financial statement presented financial ratios similar to Jiaxing. J.A. 1393.
Jiaxing’s argument that Commerce’s rejection of CEN’s financial statement in Wire Hangers compels the same result in this case is unpersuasive. We agree with the Trade Court that the CEN data in this case is different than that in Wire Hangers:
The CEN data at issue in this review is not the same as the CEN data in Wire Hangers. The Wire Hangers review focused on a CEN financial statement from 2011 whereas this record features a CEN annual report from 2010. [Vulcan] 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. Commerce also explains that steel threaded rod and wire hangers do not have identical manufacturing processes or inputs.
Jiaxing II,
Commerce correctly rejected arguments that CEN received certain concessionary taxes that could have skewed the CEN data. The record evidence shows that any concessionary taxes that were received by CEN occurred outside the relevant review period. In addition, there is no record evidence that the CEN financial statement was translated inaccurately or was otherwise erroneous.
Commerce’s decision to emphasize the steel input was reasonable and supported by substantial evidence. Jiaxing does not dispute that steel is the main input and primary driver of cost for steel threaded rod. Though the data may be imperfect, the administrative record supports the conclusion that the Thai data identified a low carbon variety that matches more closely to the main input of the subject merchandise than the data that Jiaxing proposes.
Home Meridian Int’l, Inc. v. United States,
Commerce’s choice to prioritize steel costs over other inputs is also not erroneous because almost all Jiaxing’s production costs are subsumed by the cost of steel.
See Downhole Pipe,
Finally, we find no error in Commerce’s determination to use Thai import statistics to value HC1, a conclusion in accordance with its administrative preference to appraise surrogate values from a single surrogate country. See 19 C.F.R. § 351.408(c)(2). The record evidence shows that the HC1 import statistics from India and Thailand were equally usable (both were specific, contemporaneous, and represented broad market averages), so Commerce’s choice to use the Thai import statistics is supported by substantial evidence.
Conclusion
Commerce’s decision to select Thailand as the surrogate country on which to base Chinese cost of production, values was reasonable, supported by substantial evidence, not arbitrary or capricious, and otherwise in accordance with law. The decision of the Trade Court is affirmed.
AFFIRMED
Costs
Each party shall bear its own costs. •
Notes
. Certain Steel Threaded Rod from the People’s Republic of China: Final Results and Final Partial Rescission of Antidumping Duty Administrative Review; 2010-2011, 77 Fed. Reg. 67,332, 67,333 (Dep’t of Commerce Nov. 9, 2012).
. The factors of production "include, but are not limited to ... hours of labor required, ... quantities of raw materials employed, ... amounts' of energy and other utilities consumed, and ... representative capital cost, including depreciation.”- 19 U.S.C. § 1677h(c)(3).
. See Import Admin., U.S. Dep’t Commerce, Non-Market Economy Surrogate Country Selection Process, Policy Bulletin 04.1 (2004), http://enforcement.trade.gov/policy/bull04-l. html (last visited Jan. 21, 2016) (“[D]ata quality is a critical consideration affecting surrogate country selection. After all, a country that perfectly meets the requirements of economic comparability and significant producer is not of much use as a primary surrogate if crucial factor price data from that country are inadequate or unavailable.”).
. See Steel Threaded Rod from the People’s Republic of China: Initiation of Antidumping Duty Investigation, 73 Fed. Reg. 17,318-23 (Dep't of Commerce Apr. 1, 2008).
. See Certain Steel Threaded Rod from the People’s Republic of China: Notice of Antidump-ing Duty Order, 74 Fed. Reg. 17,154 (Dep't of Commerce Apr. 14, 2009).
. See Certain Steel Threaded Rod from the People’s Republic of China: Notice of Antidump-ing Duty Order, 74 Fed. Reg. 17,154 (Dep’t of Commerce Apr. 14, 2009).
. See Certain Steel Threaded Rod from the People's Republic of China: Final Determination of Sales at Less Than Fair Value, 74 Fed. Reg. 8907, 8909 (Dep't of Commerce Feb. 27, 2009).
. See Certain Steel Threaded Rod From the People’s Republic of China: Notice of Anti-dumping Duty Order, 74 Fed. Reg. 17,154, 17,156 (Apr. 14, 2009).
. See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 76 Fed. Reg. 30,912 (Dep’t of Commerce May 27, 2011).
. Memorandum, Antidumping Duty Order on Certain Steel Threaded Rod from the People’s Republic of China (Dep’t of Commerce Nov. 18, 2011).
.See J.A. 821; Certain Steel Threaded Rod From the People’s Republic of China: Preliminary Results of Administrative Review, Intent to Rescind, and Rescission, in Part, 77 Fed. Reg. 27,022, 27025 (Dep’t of Commerce May 8, 2012).
. See J.A. 61-64; Second Administrative Review of Steel Threaded Rod from China: Petitioner’s Comments on Surrogate Country Selection (Feb. 3, 2012).
. See J.A. 821; Certain Steel Threaded Rod From the People’s Republic of China: Preliminary Results of Administrative Review, Intent to Rescind, and Rescission, in Part, 77 Fed. Reg. 27,022 (Dep’t of Commerce May 8, 2012).
. Certain Steel Threaded Rod from the People’s Republic of China: Final Results and Final Partial Rescission of Antidumping Duty Administrative Review; 2010-2011, 77 Fed. Reg. 67,332, 67,333 (Dep’t of Commerce Nov. 9, 2012).
. Results of Redetermination Pursuant to Jiaxing Brother Fastener Co., Ltd. v. United States Court No. 12-00384, Slip Op. 14 — 12 (February 6, 2014) (May 9, 2014).
. Although the parties agree that the statute at issue is clear, they disagree as to whether Commerce's interpretation conflicts with the statute’s express terms. Because the parties
. At the outset, we consider the government's contention that Jiaxing waived two issues on appeal. First, the government argues that Jiaxing failed to argue before the Trade Court that Commerce erred in not addressing production comparability when selecting the preliminary list of surrogate country candidates. Second, the government argues that Jiaxing did not address below its transparency/consistency concerns as to the shift away from India as a surrogate country to China. Jiaxing counters that those issues are subject to this appeal because they stem from the findings and conclusions in Jiaxing I and Jiaxing II, some of which could not be raised until now. Reviewing the decisions below, we find that, those issues are subsumed in the arguments below and appear properly before us because Jiaxing asserted that the underlying statute was interpreted and applied erroneously to exclude India from consideration as a surrogate country candidate. We do, however, agree with the government’s contention that Jiaxing waived another argument on appeal — its argument that Commerce set forth the GNI band width without any reasoned explanation for its choice. As the government points out, Jiax-ing failed to make this argument during the administrative and trial proceedings, and we decline to consider it for the first time on appeal.
. See Steel Wire Garment Hangers From the People’s Republic of China: Antidumping Duty Administrative Review, 2010-2011, 77 Fed. Reg. 66952 (Nov. 8, 2012) ("Wire Hangers”).
. See Steel Threaded Rod From Thailand: Preliminary Determination of Sales at Less Than Fair Value and Affirmative Preliminary Determination of Critical Circumstances, 78 Fed. Reg. 79670 (Dep’t of Commerce Dec. 31, 2013).
