ZHEJIANG DUNAN HETIAN METAL CO., LTD.

Plaintiff,

v.

UNITED STATES,

Defendant,

 - and -

PARKER-HANNIFIN CORP.,

Defendant-Intervenor.

Slip Op. 10-41

UNITED STATES COURT OF INTERNATIONAL TRADE

Before: Pogue, Judge

Court No. 09-00217

PUBLIC VERSION

OPINION AND ORDER

[Plaintiff’s motion for judgment upon the administrative record

denied.]

Dated: April 19, 2010

Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP (Mark

E. Pardo and Andrew T. Schutz) for the Plaintiff.

Tony West, Assistant Attorney General; Jeanne E. Davidson,

Director; Patricia M. McCarthy, Assistant Director, Commercial

Litigation Branch, Civil Division, United States Department of

Justice (L. Mischa Preheim and Carrie A. Dunsmore); and, of

counsel, Joanna Theiss, Office of the Chief Counsel for Import

Administration, United States Department of Commerce, for the

Defendant.

Roetzel & Andress, LPA (Donald R. Dinan and Craig A. Koenigs)

for the Defendant-Intervenor. 

Pogue, Judge: This case involves a challenge to the United

States Department of Commerce’s (“Commerce” or “the Department”)
Court No. 09-00217 Page 2

data choices and adjustments in its calculation of an antidumping

(“AD”) duty on goods produced in a non-market economy (“NME”). 

Specifically, Plaintiff Zhejiang DunAn Hetian Metal Co., Ltd.

(“DunAn”) challenges the Department’s data selection, use of

partial adverse facts available (“AFA”), and scrap offset

methodology in Commerce’s final affirmative determination AD duty

order regarding frontseating service valves (“FSVs”) from the

People’s Republic of China (“China”).1

The court has jurisdiction pursuant to 28 U.S.C. § 1581(c).

Currently before the court is DunAn’s USCIT R. 56.2 Motion for

Judgment Upon the Agency Record. 

Standard of Review

The statutory provision which supplies the standard for review

for Commerce’s final determination requires that the court shall

“hold unlawful any [agency] determination, finding, or conclusion

found . . . to be unsupported by substantial evidence on the

record, or otherwise not in accordance with law.” Tariff Act of

1 See Frontseating Service Valves From the People’s Republic

of China, 74 Fed. Reg. 10,886 (Dep’t Commerce Mar. 13, 2009)

(final determination of sales at less than fair value and final

negative determination of critical circumstances) (“Final

Determination”), and accompanying Issues and Decision Memorandum,

A-570-933, [period of investigation (“POI”)] 7/1/07 - 12/31/07

(Mar. 6, 2009), Admin. R. Pub. Doc. 226, available at

http://ia.ita.doc.gov/frn/summary/PRC/E9-5480-1.pdf (last visited

Apr. 19, 2010) (“Decision Mem.”); Frontseating Service Valves

from the People’s Republic of China, 74 Fed. Reg. 19,196 (Dep’t

Commerce Apr. 28, 2009) (AD duty order). Commerce selected

DunAn, a Chinese producer of FSVs, as a mandatory respondent in

this administrative proceeding.
Court No. 09-00217 Page 3

1930, § 516A(b)(1)(B)(i), 19 U.S.C. § 1516a(b)(1)(B)(i)(2006).2 See

also 19 U.S.C. §§ 1516a(a)(2)(A)(i)(II), 1516a(a)(2)(B)(i); Huaiyin

Foreign Trade Corp. (30) v. United States, 322 F.3d 1369, 1374

(Fed. Cir. 2003).

Discussion

By its instant motion, DunAn seeks (1) recalculation of the

Indian3 import statistics used to value brass bar4; (2) replacement

of the labor wage rate -- calculated in accordance with the

Department’s regulatory regression analysis5 -- with an Indian

labor rate of $0.21 per hour; (3) reversal of the Department’s

application of partial AFA to DunAn’s December 2007 U.S. sales data

and inventory carrying costs (“ICC”)6; and (4) revision of the

2

 Further citations to the Tariff Act of 1930, as amended,

are to the relevant provisions of Title 19 of the U.S. Code, 2006

edition.

3 Plaintiff does not challenge the choice of India as the

appropriate country from which to select the relevant data. See

19 U.S.C. § 1677b(c)(4) (providing for the valuation of

merchandise exported from a nonmarket economy, to “the extent

possible,” using prices or costs in a comparable market economy

country).

4 DunAn uses brass bar to make FSV valve bodies and valve

stems. See Frontseating Service Valves from the People’s Republic

of China, 73 Fed. Reg. 20,250, 20,253 (Dep’t Commerce Apr. 15,

2008)(initiation of AD duty investigation).

5 See 19 C.F.R. § 351.408(c)(3)(2009) (providing for the use

of “regression-based wage rates reflective of the observed

relationship between wages and national income in market economy

countries.”). 

6

 ICC are costs associated with keeping merchandise in

inventory before it is sold. Mittal Steel Point Lisas Ltd. v.
Court No. 09-00217 Page 4

Department’s methodology for recognizing the value of DunAn’s

recycled brass scrap. 

The court will, in turn, analyze each of these values. 

A. Commerce’s Selection of a Value for Brass Bar

Commerce’s selection of a value for brass bar is governed by

19 U.S.C. § 1677b(c), which requires that Commerce choose data that

is the “best available information” on the record.7 Here, Commerce

United States, 31 CIT 638, 645, 491 F. Supp. 2d 1222, 1230

(2007), aff’d, 548 F.3d 1375 (Fed. Cir. 2008). Commerce’s

authority to account for ICC arises from 19 U.S.C. § 1677a(d).

NTN Bearing Corp. of Am. v. United States, 368 F.3d 1369, 1373

(Fed. Cir. 2004).

7

 Section 1677b(c)(1) provides that Commerce 

shall determine the normal value of the subject

merchandise on the basis of the value of the factors of

production [“FOP”] utilized in producing the

merchandise . . . . the valuation of the [FOPs] shall

be based on the best available information regarding

the values of such factors in a market economy country

or countries considered to be appropriate by

[Commerce].

19 U.S.C. § 1677b(c)(1)(emphasis added). 

As the court has previously noted:

The term “best available” is one of comparison,

i.e., the statute requires Commerce to select, from the

information before it, the best data for calculating an

accurate dumping margin. The term “best” means

“excelling all others.” This “best” choice is

ascertained by examining and comparing the advantages

and disadvantages of using certain data as opposed to

other data.

Dorbest Ltd. v. United States (“Dorbest I”), 30 CIT 1671, 1675,

462 F. Supp. 2d 1262, 1268 (citations omitted).
Court No. 09-00217 Page 5

selected an average unit value (“AUV”) derived from the World Trade

Atlas (“WTA”)8 Indian import statistics for the POI. DunAn does

not challenge Commerce’s use of the WTA data set in general or the

particular HTS classification used.9

 Rather, DunAn argues that

some aspects of the WTA data set are incorrect and should be

eliminated. Specifically, DunAn challenges the sufficiency of the

evidence to support Commerce’s inclusion, in the WTA data, of brass

bar values for Indian imports from France, Japan, and the United

Arab Emirates (“UAE”).10

The relevant WTA data for HTS 7407.21.10 “Bars of Brass” are

as follows:

8

 Global Trade Information Services, Inc. publishes the WTA,

organizing the data using the Indian Harmonized Tariff Schedule

(“HTS”) classifications. See Global Trade Information Services,

Inc., World Trade Atlas®,

http://www.gtis.com/english/GTIS_WTA.html (last visited Apr. 19,

2010). Global Trade Information Services, Inc. obtains the

specific import values for India contained in the WTA directly

from the Directorate General of Commercial Intelligence and

Statistics, Ministry of Commerce of India; the WTA reports the

data in rupees. See Frontseating Service Valves from the People’s

Republic of China, 73 Fed. Reg. 62,952, 62,957 (Dep’t Commerce

Oct. 22, 2008) (preliminary determination of sales at less than

fair value, preliminary negative determination of critical

circumstances, and postponement of final determination).

9 Thus the representativeness of the WTA under HTS 7407.21.10

as to the brass bar that DunAn actually uses as an FOP is not at

issue before the court. (Cf. Pl.’s Rule 56.2 Mot. for J. Upon

Agency R. (“Pl.’s Br.”) 5, 14-15.)

10 Denying DunAn’s request, Commerce did not, in the

underlying investigation, remove UAE, French, or Japanese imports

from the AUV calculated from WTA data.
Court No. 09-00217 Page 6

Country Quantity

(Kgs)

Value

(Rupees)

AUV

Sri Lanka 44,720 7,990,000 178.67

Malaysia 24,262 8,031,000 331.01

UAE 8,000 3,652,000 456.50

Germany 4,526 2,581,000 570.26

Japan 3,911 1,574,000 402.45

United Kingdom 3,380 1,779,000 526.33

Denmark 1,300 541,000 416.15

Netherlands 1,042 501,000 480.81

Singapore 392 487,000 1,242.35

France 261 374,000 1,432.95

United States 90 78,000 866.67

TOTAL 91,884 27,588,000 300.25

Petitioner’s Surrogate Value Comments Regarding Frontseating

Service Valves from the People’s Republic of China, A-570-933, POI

7/01/07 - 12/31/07 (Sept. 29, 2008), Admin. R. Pub. Doc. 106,11 at

Ex. 1A. See also Zhejiang DunAn Heitan’s First Surrogate Value

Submission, A-570-933, POI 7/01/07 - 12/31/07 (Sept. 29, 2008),

Admin. Pub. Doc. 107 (“DunAn’s First Surrogate Value Submission”),

at Ex. 3A. See also Antidumping Duty Investigation of Frontseating

Service Valves from the People’s Republic of China: Factor

Valuations for the Final Determination, A-570-933, POI 7/1/07 -

12/31/07 (Mar. 6, 2009), Admin. R. Pub. Doc. 227, at Attach. 3

(providing HTS classification for “Of copper-zinc base alloys

11 In the record the Department provided to the court,

Commerce has organized the documents according to sequence

numbers. Administrative record document numbers and sequence

numbers may be cross-referenced using court document number 22.
Court No. 09-00217 Page 7

(brass) . . . Bars” as HTS 7407.21.10).

Failing to remove imports from France, Japan, and the UAE

constituted error, according to DunAn, because other record

evidence, i.e., data from Infodrive India,12 demonstrated that

shipments from the above countries did not consist of brass13 bar,

and, thus, that WTA data as to the UAE, France, and Japan were

flawed and unreliable.

12 Infodrive India Pvt Ltd., an Indian company, publishes

export and import information from India and other countries.

Infodrive India, http://www.infodriveindia.com/ (last visited

Apr. 19, 2010). Each month, Infodrive India “collects, collates

and standardizes,” from Indian ports, over two million export

shipping bills and import bills of entry. Infodrive India,

Benefits of India Export Import Data,

http://www.infodriveindia.com/India-Trade-Data/Benefits.aspx

(last visited Apr. 19, 2010). Infodrive India then cleans up and

stores the data on its server. Id. Due to inconsistencies in

product information and the fact that, according to Infodrive

India, “classification is often wrong,” Infodrive India provides,

for each import or export, the actual product description as well

as the reported HTS Code. Id. As recognized in Dorbest I,

“Infodrive India presents Indian government import data that it

receives on a monthly basis from the Indian customs department.”

Dorbest I, 30 CIT at 1697, 462 F. Supp. 2d at 1285. “Infodrive

India data appears to be the same data provided [in the WTA] in a

desegregated form, providing descriptions of the items that are

imported and classified under a particular [HTS] subheading.” 30

CIT at 1697, 462 F. Supp. 2d at 1285-86. In essence, Infodrive

India is a subset of the WTA, only more detailed. 30 CIT at 1697,

462 F. Supp. 2d at 1286.

13 Brass is “[a]n alloy of copper and zinc.” Webster’s II New

Riverside University Dictionary 197 (1988). Copper is “[a]

ductile, malleable, reddish-brown metallic element that is an

excellent conductor of heat and electricity and is used for

electrical wiring, water piping, and corrosion-resistant parts,”

id. 310, whereas zinc is “[a] bluish-white, lustrous metallic

element used to form a wide variety of alloys including brass

[and] bronze . . . .” Id. 1339.
Court No. 09-00217 Page 8

The Infodrive India data as to France, Japan, and the UAE14 are

as follows:

HTS Code Actual Product

Description

Origin Qty

(Kgs)

Value

(Rupees)

AUV

74072110 Barre B33/25 H Q1.5MM

(Copper Bar)

France 12.0 57091.02 4757.59

74072110 Bronze Bars (Aircraft Raw

Materials for Defence

Use)P.O.NO: 4160375

France 161.0 316566.20 1966.25

74072110 Beryllium Copper Flat Bar

(TK46267)

Japan 3589.5 1444719.91 402.49

74072110 Beryllium Copper Round

Bar (TK46268)

Japan 322.0 129600.17 402.49

74072110 Cupro Nickel Bar UAE 8110.0 3652206.74 450500.40

Second Surrogate Value Submission of Zhejiang DunAn Heitan

(“DunAn”): Investigation of Frontseating Service Valves from the

People’s Republic of China, A-570-933, POI 7/1/07 - 12/31/07 (Dec.

15, 2008), Admin. R. Pub. Doc. 189 (“DunAn’s Second Surrogate Value

Submission”), at Ex. 2. DunAn stresses that copper bar, bronze15

14 Infodrive India reported UAE data in metric tons, which

the court translated into kilograms.

15 Bronze is “[a]n alloy of copper and tin, occas[ionally]

with traces of other metals” or “[a]n alloy of copper, with or

without tin, and antimony, phosphorus, or other components.” 

Webster’s II New Riverside University Dictionary, supra note 13,

at 203.
Court No. 09-00217 Page 9

bar, beryllium16 copper bar, and cupronickel17 bar are distinct from

brass bar.18

As a result, the dispute between the parties on this issue

turns on Commerce’s assessment of these Infodrive data. Explaining

its decision not to exclude these imports, Commerce stated:

we find that the Infodrive data contain insufficient

product information in the description of the line items

to enable the Department to make a definitive

determination that these line items are misclassified.

Specifically, the product description in the Infodrive

data are such that, given the dependency upon the

chemical make-up of the underlying products, they could

be properly classified within the Indian HTS category

where they are, or in the category addressed by DunAn.

Thus, the Department cannot determine, due to lack of

product detail, i.e., chemical properties, the precise

chemical make-up of these line items. Accordingly,

without clear evidence to the contrary, the Department

will not speculate that these materials have been

misclassified. Therefore, . . . the Department has

determined to include imports from Japan, France, and the

UAE in calculating the surrogate value for brass bar in

the final determination because the record evidence does

not demonstrate that the imports from these countries

were misclassified.

16 Beryllium is “[a] high-melting, lightweight, corrosionresistant, rigid, steel-gray metallic element used as an

aerospace structural material, as a moderator and reflector in

nuclear reactors, and in a copper alloy used for springs,

electrical contacts, and nonsparking tools.” Webster’s II New

Riverside University Dictionary, supra note 13, at 167. 

17 Cupronickel is “[a] copper-based alloy containing 10-30%

nickel.” Webster’s II New Riverside University Dictionary, supra

note 13, at 336. Nickel is “[a] silvery, hard, ductile, metallic

element used in alloys, in corrosion-resistant surfaces and

batteries, and for electroplating . . . .” Id. 794.

18 Should Commerce exclude import information from the UAE,

France, and Japan, the AUV for brass bar would decrease by 8.13%.
Court No. 09-00217 Page 10

Decision Mem. at 21.19

DunAn argues that Commerce should have accorded more weight to

the Infodrive India data and that Commerce should have, based on

these data, eliminated the three countries’ data as unreliable. 

DunAn in addition contends that it is irrelevant which HTS

classification applies; “[t]he issue is not whether these shipments

have been properly classified within the HTS [but rather] is

whether these shipments are representative of the factor input

Commerce is attempting to value.” (Pl.’s Br. 13.) DunAn offered

record evidence to demonstrate that bronze, beryllium copper, and

cupronickel have different chemical properties and have different

19 Moreover, in its analysis during its preliminary

investigation, Commerce concluded that WTA data:

represent an average of import prices, net of taxes and

import duties, and contemporaneous with the POI for the

input in question. . . . Our analysis of the WTA data

shows that the Infodrive data, analyzed by quantity,

only accounts for 26 percent of the WTA data. We

derived this figure by dividing the total quantity of

the misclassified line items by the total quantity of

WTA data. . . .

Furthermore, record evidence indicates that the line

items that DunAn argues represents materials that are

misclassified [] are, in fact, types of brass, and

therefore these line items are not outside the HTS

category.

Antidumping Duty Investigation of Frontseating Service Valves

from the People’s Republic of China: Factor Valuations for the

Preliminary Determination, A-570-933, POI 7/1/07 - 12/31/07 (Oct.

15, 2008), Admin. R. Pub. Doc. 150 (“Factor Valuations Prelim.

Mem.”), at 7. Because the court affirms Commerce’s decision in

the Final Determination, the court need not address these

additional reasons given for Commerce’s determination.
Court No. 09-00217 Page 11

uses than brass. (See id. 12-13;) DunAn’s Second Surrogate Value

Submission at Exs. 3A-3E. Therefore, according to DunAn, because

the data from these three countries distorted the resulting brass

bar surrogate value and because the Department’s usage of that WTA

data is not a selection of the “best available” evidence,

Commerce’s determination is unsupported by substantial evidence.20

The government responds that the complete WTA data set under

HTS category 7407.21.10 was the best available information on the

record. Commerce chooses surrogate values on a case-by-case basis,

and prefers to use “public, country-wide data.” (Def.’s Opp’n to

Pl.’s Mot. for J. Upon the Agency R. (“Def.’s Br.”) 27 (quoting

Mittal Steel Galati S.A. v. United States, 31 CIT 1121, 1124, 502

F. Supp. 2d 1295, 1298 (2007)).) Consequently, the government

argues, Commerce used “the full WTA data set, with the exception of

imports from non-market economy countries, countries known to have

country-wide export subsidies, or unidentified countries . . .

because [the data] are publicly-available, broad-based, productspecific, tax-exclusive and contemporaneous.” (Id. (citing Decision

Mem. at 22-23).) In addition, the government points out that

Commerce did in fact examine the Infodrive India data, but did not

find them definitive, particularly because DunAn failed to “provide

20 DunAn’s argument is that Commerce should have used data

from Infodrive India to discredit certain WTA data. This is a

factual question. See Dorbest I, 30 CIT at 1676, 462 F. Supp. 2d

at 1268.
Court No. 09-00217 Page 12

any specific evidence that entries containing a certain amount of

a chemical were inappropriately considered ‘brass bar’ such as

would be classified under the HTS category for brass bar.” (Id. 27,

28.)

The government is correct. The problem with DunAn’s claim is

that it does not focus on the specific information in the

administrative record. In scrutinizing the Infodrive India data,

Commerce confronted two inconsistent descriptions of the imports

from the three countries at issue. Whereas the Infodrive India

spreadsheet listed an “actual product description” for France,

Japan, and the UAE, specified as copper and bronze, beryllium

copper, and cupronickel, respectively, the spreadsheet also

categorized the imported metals as “brass” under the HTS Code. 

Bronze, brass, beryllium copper, and cupronickel are all copper

alloys and, although having distinct properties and uses, the types

of metals at issue here are relatively similar in chemical makeup.

See supra notes 13, 15-17. The accuracy of labels assigned to

these imports, therefore, depends very much upon the types and

percentages of metals contained therein. Commerce did not have

this information. Thus, even had Commerce solely relied upon the

Infodrive data, Commerce would still have had to choose between the

“brass bar” classification listed and the perhaps conflicting

product description. It was therefore reasonable for Commerce to

rely upon the Infodrive India HTS classifications rather than the
Court No. 09-00217 Page 13

product descriptions, the former being consistent with the WTA

data. As the court frequently emphasizes, “the possibility of

drawing two inconsistent conclusions from the evidence does not

prevent [Commerce’s] finding from being supported by substantial

evidence.” Matsushita Elec. Indus. Co. v. United States, 750 F.2d

927, 933 (Fed. Cir. 1984) (quoting Consolo v. Fed. Mar. Comm’n, 383

U.S. 607, 619-20 (1966)). It is not the court’s place to choose

between the classification and the description based on this

record. See U.S. Steel Group v. United States, 96 F.3d 1352, 1357

(Fed. Cir. 1996).

DunAn cites to opinions of the Court which, according to

DunAn, “admonished the Department . . . for failing to accord

sufficient weight to Infodrive India data or other trade

intelligence data that indicated the Indian import statistics

utilized for the surrogate value were not representative of the

input being valued.” (Pl.’s Br. 9-12 (discussing Taian Ziyang Food

Co. v. United States, __ CIT __, __, 637 F. Supp. 2d 1093, 1149

(2009); Zhengzhou Harmoni Spice Co. v. United States, __ CIT __,

__, 617 F. Supp. 2d 1281, 1325, 1327 (2009); Globe Metallurgical,

Inc. v. United States, No. 07-00386, 2008 WL 4417187, at *5-7 (CIT

Oct. 1, 2008); Longkou Haimeng Mach. Co. v. United States, __ CIT

__, __, 581 F. Supp. 2d 1344, 1363 (2008)).) See also Dorbest I, 30

CIT at 1698, 1700, 462 F. Supp. 2d at 1286, 1288.

The case law DunAn cites, however, focuses on Commerce’s
Court No. 09-00217 Page 14

failure to provide a sufficient reasoned explanation of its chosen

data set.21 In these cases, the Department wholly failed to address

“whether or not Infodrive India casts light on potential

inaccuracies” in the WTA data. Dorbest I, 30 CIT at 1695, 462 F.

Supp. 2d at 1284. See also Zhengzhou, __ CIT at __, 617 F. Supp. 2d

at 1322-23 (rejecting Commerce’s cursory presumption that Infodrive

data were unreliable without “even a scintilla of evidence of

manipulation or distortion or affiliation”), 1326-27; Taian Ziyang,

__ CIT at __, 637 F. Supp. 2d at 1156 (“Commerce simply dismissed

[respondents’] concerns” in a “terse three sentences” and “failed

21 See Taian Ziyang, __ CIT at __, 637 F. Supp. 2d at 1126

(determining that Commerce had not supported its choice of data

set with substantial evidence, as it had “failed to establish

that its chosen data[]set . . . adequately approximates the

respondent’s production experience” and “failed to establish that

the NDRDF data are sufficiently representative of the garlic seed

used by respondents”), 1144, 1156, 1157, 1162; Zhejiang Native

Produce & Animal By-Products Imp. & Exp. Group v. United States

(“Zhejiang I”), No. 06-00234, 2008 Ct. Intl. Trade LEXIS 69, at

*53 (CIT June 16, 2008) (repudiating Commerce’s conclusion that

its chosen data are most reliable, to value brokerage and

handling, due to the data’s “quality and specificity,” when

Commerce “at no point . . . explain[ed] how the data meets either

one of these standards”); Zhengzhou, __ CIT at __, 617 F. Supp.

2d at 1297-1303 (holding Commerce’s grounds for using Agmarket

data “impermissibly speculative”), 1308-12 (noting Commerce’s

failure to support its use of Maersk data with record evidence),

1321 (“Commerce failed to explain how the seemingly nonrepresentative import data is the best available information when

domestic data on the record represent the exact type of product

used by the respondents and actual domestic market prices for

that input.” (citation, quotation marks, emphasis, & alterations

omitted)); Globe Metallurgical, 2008 WL 4417187, at *7; Longkou,

__ CIT at __, 581 F. Supp. 2d at 1363; Allied Pac. Food (Dalian)

Co. v. United States (“Allied Pac. I”), 30 CIT 736, 752-68, 435

F. Supp. 2d 1295, 1309-22 (2006).
Court No. 09-00217 Page 15

to directly confront” respondent’s claims), 1159-60. Instead,

Commerce “conclude[d] that Infodrive data [are] unreliable or

contain[] misclassifications, while simultaneously claiming that

[WTA data are] both reliable and contain[] no inaccuracies.”

Dorbest I, 30 CIT at 1697, 462 F. Supp. 2d at 1286.

In the determination at issue in this case, however, the

Department directly addressed the relevance of the Infodrive data

to the WTA data. Commerce did not merely dismiss the Infodrive

India data out of hand, nor did it make a general finding that

Infodrive data were unreliable.22 Rather, Commerce, assuming the

Infodrive data were in fact reliable, directly discussed Infodrive

India’s relevance to the WTA data and found the Infodrive data to

be inconclusive.

Further, even if the overall WTA data were being challenged,

DunAn did not present Commerce with evidence that HTS 7407.21.10

includes imports that are other than the specific input at issue

here. Moreover, DunAn did not provide evidence, other than

Infodrive India, to attempt to demonstrate WTA misclassifications.

Compare Dorbest I, 30 CIT at 1694, 462 F. Supp. 2d at 1283 (noting

that respondents provided evidence that Taiwanese export data did

22 In this respect, the issue here differs from that in

Zhengzhou, where the court rejected the Department’s “bare

speculation” and unsupported presumptions about the domestic

data’s reliability. __ CIT at __, 617 F. Supp. 2d at 1317, 1320-

21, 1322-23, 1325. 
Court No. 09-00217 Page 16

not match the WTA-listed Indian imports from Taiwan).23 See also

Allied Pac. I, 30 CIT at 754-55, 435 F. Supp. 2d at 1311-12;

Zhengzhou, __ CIT at __, 617 F. Supp. 2d at 1317 (rejecting

Commerce’s determination on grounds that plaintiffs provided

specific proof that the relevant HTS classification was too broad

and “the great majority of entries” covered goods other than the

subject merchandise (quotation marks & citation omitted)). In

other words, here, both the WTA data and the Infodrive India data

are sufficiently product-specific or representative to be

considered the “best available” information. As the finder of

fact, Commerce therefore had the discretion to choose between these

data sets.

23 The plaintiff in Dorbest I presented evidence that the

Indian domestic furniture industry did not utilize some types of

mirrors imported under the relevant HTS classification reflected

in the WTA. See Dorbest I, 30 CIT at 1698-90, 1694, 1697-98 &

n.17, 1699, 462 F. Supp. 2d at 1279-80, 1283, 1286 & n.17, 1287.

See also Longkou, __ CIT at __, 581 F. Supp. 2d at 1361, 1363. 

These plaintiffs also placed evidence on the record demonstrating

that these mirrors were “higher-priced speciality mirrors” and,

therefore, these mirrors had “a distortive effect on the

valuation of the mirror inputs used in furniture production.”

Dorbest I, 30 CIT at 1694, 462 F. Supp. 2d at 1283. See

also Globe Metallurgical, 2008 WL 4417187, at *5-6; Taian Ziyang,

__ CIT at __, 637 F. Supp. at 1149, 1155-56; Zhejiang Native

Produce & Animal By-Products Imp. & Exp. Group v. United States,

No. 06-00234, 2009 Ct. Intl. Trade LEXIS 64, at *18-19 (CIT June

19, 2009); Zhengzhou, __ CIT at __, 617 F. Supp. 2d at 1324. 

DunAn did not present Commerce with similar evidence

demonstrating cost of production (“COP”) distortion. In fact,

the AUV of $300.25 fits well within the range of brass bar prices

in India. Globe Metallurgical, Inc. v. United States, No. 07-

00386, 2009 Ct. Intl. Trade LEXIS 35, at *11 (CIT May 5, 2009)

(“The new value selected by Commerce is well within the range of

silica fume prices in India.”).
Court No. 09-00217 Page 17

The court’s duty, in reviewing Commerce’s determination as to

whether a certain set of data is the “best available information,”

is “not to evaluate whether the information Commerce used was the

best available, but rather whether a reasonable mind could conclude

that Commerce chose the best available information.” Goldlink

Indus. Co. v. United States, 30 CIT 616, 619, 431 F. Supp. 2d 1323,

1327 (2006). Thus, “[i]f Commerce’s determination of what

constitutes the best available information is reasonable, then the

[c]ourt must defer to Commerce.” Id. Accord Fujian Lianfu Forestry

Co. v. United States, __ CIT __, __, 638 F. Supp. 2d 1325, 1333

(2009); Zhejiang I, 2008 Ct. Intl. Trade LEXIS 69, at *20; Dorbest

I, 30 CIT at 1676-77, 462 F. Supp. 2d at 1269. 

Accordingly, because Commerce’s reading of the evidence is

reasonable, the court rejects DunAn’s challenge to Commerce’s

selection of WTA data, including data on imports from France,

Japan, and the UAE.

B. Commerce’s Calculation of Labor Costs

Next, DunAn challenges Commerce’s derivation of a wage rate

for DunAn’s labor using a “regression-based” calculation24 that

included wage rate and income data from countries (a) not

economically comparable to China and (b) not significant producers

24 For an explanation of the use of regression models, see

Allan G. Bluman, Elementary Statistics: A Step by Step Approach

528-30, 544-46 (6th ed. 2007) and Mario F. Triola, Elementary

Statistics 541-45 (10th ed. 2008). 
Court No. 09-00217 Page 18

of merchandise comparable to the subject FSV.25 DunAn instead

advocates the use of an Indian wage rate as the surrogate wage rate

for DunAn’s labor. For the following reasons, the court sustains

the Department’s use of the labor regression model in this

determination.

In its wage rate calculation, Commerce performs a simple

regression to estimate the linear relationship between yearly per

capita gross national income (“GNI/capita”)26 and hourly wage rate

(“wage”). To describe this relationship, Commerce uses publicly

available GNI/capita and wage data from 61 market economy

countries.27 28 GNI/capita serves as the independent variable (x)

25 Plaintiff does not challenge the type of regression used

by Commerce, but rather generally challenges, as inconsistent

with the statute, the use of a regression model to calculate

labor.

26 GNI/capita is equivalent to per capita gross national

product, the latter defined as “the dollar value of a country’s

final output of goods and services in a year divided by its

population.” Antidumping Methodologies: Market Economy Inputs,

Expected Non-Market Economy Wages, Duty Drawback; and Request for

Comments, 71 Fed. Reg. 61,716, 61,723 (Dep’t Commerce Oct. 19,

2006) (quotation marks omitted).

27 The 61 countries plotted on the 2005 regression are:

Albania; Argentina; Australia; Austria; Belgium; Botswana;

Bulgaria; Canada; Chile; Colombia; Costa Rica; Croatia; Czech

Republic; Denmark; Dominican Republic; Ecuador; Egypt; El

Salvador; Estonia; Finland; France; Germany; Hong Kong, China;

Hungary; Iceland; India; Ireland; Israel; Japan; Jordan;

Kazakhstan; Republic of Korea; Latvia; Lithuania; Luxembourg;

Former Yugoslav Republic of Macedonia; Madagascar; Malta;

Mauritius; Mexico; Mongolia; Netherlands; New Zealand; Nicaragua;

Norway; Panama; Poland; Portugal; Romania; Russian Federation;

Seychelles; Singapore; Slovakia; Slovenia; Spain; Sri Lanka;

Sweden; Switzerland; United Kingdom; United States; and West Bank
Court No. 09-00217 Page 19

and wage as the dependent variable (y);29 predictably, these

and Gaza Strip. Import Administration, International Trade

Administration, United States Department of Commerce, Expected

Wages of Selected Non-market Economy Countries (2008),

http://ia.ita.doc.gov/wages/05wages/05wages-051608.html#table1 

(last visited Apr. 19, 2010).

28 Commerce utilizes four data sets to regress wage on

GNI/capita: country-specific earnings data from the International

Labour Organization’s Yearbook of Labour Specifics; to account

for inflation, country-specific consumer price index data from

the International Monetary Fund’s (“IMF”) International Financial

Statistics; IMF International Financial Statistics exchange

rates; and country-specific GNI data from the World Bank’s World

Development Indicators. Commerce uses a “base year” of two years

prior to the regression to enter into its calculation.

Antidumping Methodologies: Market Economy Inputs, Expected

Non-Market Economy Wages, Duty Drawback; and Request for

Comments, 71 Fed. Reg. at 61,722; Expected Non-Market Economy

Wages, 70 Fed. Reg. 37,761, 37,762 (Dep’t Commerce June 30, 2005)

(request for comment on calculation methodology). The regression

was performed in 2008, and, given lag time in availability of

data, the base year was 2005. Factor Valuations Prelim. Mem. at

8; (Pl.’s Br. 36 n.*.) Commerce used the base year average

exchange rates to convert the GNI and earnings data into U.S.

Dollars. Decision Mem. at 17. 

Commerce uses these data sets to obtain a “complete picture

of labor in the particular market economy,” and, therefore,

attempts to use data including coverage of, among other things,

all types of industries in the respective country. Decision Mem.

at 17; Antidumping Methodologies: Market Economy Inputs, Expected

Non-Market Economy Wages, Duty Drawback; and Request for

Comments, 71 Fed. Reg. at 61,721. In other words, the labor data

used is not industry-specific and “the value for labor will be

the same in every proceeding [in a given year] involving a given

NME.” Antidumping Methodologies: Market Economy Inputs, Expected

Non-Market Economy Wages, Duty Drawback; and Request for

Comments, 71 Fed. Reg. at 61,720.

DunAn has not challenged the use of these data sets in

particular, and instead focuses on the overall use of the

regression analysis.

29 The equation is therefore: Wage[predicted] = Y-intercept +

slope * GNI/capita[entered]. Antidumping Methodologies: Market

Economy Inputs, Expected Non-Market Economy Wages, Duty Drawback;

and Request for Comments, 71 Fed. Reg. at 61,723.
Court No. 09-00217 Page 20

variables have a positive linear relationship. Commerce then

estimates the wage for an NME country by using the NME GNI/capita.

Accordingly, although Commerce used Indian data for other

FOPs, in calculating a 2005 surrogate wage for merchandise from

China, Commerce regressed 2005 market economy wages on 2005

GNI/capitas, as follows:

Expected Wages of Selected Non-Market Economy Countries, supra note

27. Thus, Commerce created a 2005 NME regression line equation to

describe the relationship between the 61 countries’ wages and

GNI/capita:
Court No. 09-00217 Page 21

Wage[predicted] = 0.257585 + 0.000448 * GNI/capita[entered]

See id. Because Commerce estimates that NME countries’s GNI/capita

and wages would have the same relationship, Commerce used the same

regression line to also describe predicted NME wages:

NME wage[predicted] = 0.257585 + 0.000448 * NME GNI/capita[entered]

See id. That is to say, by entering in an NME’s GNI/capita,

Commerce could predict the NME’s wages.

Using this equation, Commerce then entered China’s 2005

GNI/capita –- $1,740 -- into the above equation and derived a wage

of, approximately, $1.04.30 Id. Commerce selected this surrogate

wage rate as the labor FOP for the calculation of DunAn’s COP. 

DunAn notes that, had Commerce limited its surrogate values to that

of India as it did for other FOPs, DunAn’s surrogate wage would

have instead amounted to $0.21. (Pl.’s Br. 39;) Expected Wages of

Selected Non-Market Economy Countries, supra note 27.

Like the plaintiff in Dorbest I and in the subsequent decision

post-remand, Dorbest Ltd. v. United States (“Dorbest II”), __ CIT

__, 547 F. Supp. 2d 1321 (2008), DunAn attacks 19 C.F.R. §

351.408(c)(3) as invalid both facially and as-applied in this

case.31 The court will address each of DunAn’s arguments in turn.

30 I.e., 0.257585 + 0.000448 * 1740 = 1.037105 . 1.04.

31 Dorbest I and Dorbest II are on appeal to the Federal

Circuit on the issue of the validity of the labor regression
Court No. 09-00217 Page 22

1. Facial Challenge

First, DunAn argues that Commerce’s regulation is contrary to

the statute and, therefore invalid on its face. Following Dorbest

I, the court rejects DunAn’s facial challenge.32 

Section 1677b does, of course, require Commerce to 

utilize, to the extent possible, the prices or costs of

factors of production in one or more market economy

countries that are –-

(A) at a level of economic development comparable

to that of the nonmarket economy country, and

(B) significant producers of comparable merchandise.

19 U.S.C. § 1677b(c)(4). Commerce’s regulation –- providing for

the use of “regression-based wage rates reflective of the observed

relationship between wages and national income in market economy

regulation. No. 2009-1257 (Fed. Cir. Mar. 18, 2009).

32 In Dorbest I, plaintiff Dorbest, like DunAn, argued that

the statute mandated that Commerce input only countries that

fulfilled the economic comparability category. In addressing

that challenge, the court assumed, arguendo, that Dorbest’s

reading of the statute was correct, holding that:

Although Commerce’s regulation does not

specifically provide that Commerce must choose

comparable market economies, it does not suggest the

opposite either. Rather, the regulation is silent as to

how Commerce will select market economies for its data

set. As such, even if . . . the antidumping statute

permits use of data only from comparable market

economies, Commerce could conceivably be faithful to

both its regulation and [this] interpretation of the

antidumping statute by using data from only comparable

market economies.

Dorbest I, 30 CIT at 1705, 462 F. Supp. 2d at 1292. 
Court No. 09-00217 Page 23

countries” -- is not, on its face, inconsistent with the statutory

requirement for use of prices or costs from a market economy

country. Rather, consistent with the statute, Commerce’s

regulation derives a wage rate for a “hypothetical” market economy

China, that is, a market economy country with China’s level of

economic development and that produces merchandise comparable to

the Chinese merchandise at issue. See Nation Ford Chem. Co. v.

United States, 166 F.3d 1373, 1378 (Fed. Cir. 1999)(“§ 1677b(c)’s

goal [is] constructing a hypothetical ‘market value’ representative

of the foreign producers under investigation”). See also Shakeproof

Assembly Components Div. of Ill. Tool Works, Inc. v. United States,

268 F.3d 1376, 1381 (Fed. Cir. 2001) (according Commerce discretion

to depart from surrogate country valuation “when there are other

methods of determining the ‘best available information’ regarding

values of [FOPs].”). 

DunAn attempts to distinguish Dorbest I on the grounds that 

Dorbest I did not address the substantial producer prong of section

1677b(c). However, the court’s reasoning for economic

comparability applies equally to the significant producer

requirement, as to choice of an underlying data set, should such a

requirement indeed exist. Therefore, Dorbest I is persuasive here. 

DunAn also attacks Dorbest I by highlighting an excerpt from

the legislative history of section 1677b(c). DunAn cites the

Conference Agreement discussion of this provision contained in the
Court No. 09-00217 Page 24

Omnibus Trade and Competitiveness Act of 1988: “[t]he [FOPs] would

be valued from the best available evidence in a market economy

country (or countries) that is at a comparable level of economic

development as the country subject to investigation and is a

significant producer of the comparable merchandise.” H.R. Rep. No.

100-576, at 590 (1988) (Conf. Rep.), reprinted in 1988 U.S.C.C.A.N.

1547, 1623. But the language from the Conference Report does not

provide any more guidance than the wording of section 1677b(c), nor

has DunAn demonstrated that the Report is in any way inconsistent

with the court’s reading of the statute.

Finally, DunAn points the court to other decisions from this

Court that have invalidated 19 C.F.R. § 351.408(c)(3) as an

impermissible and unreasonable implementation of section 1677b(c).

See, e.g., Taian Ziyang, __ CIT at __, 637 F. Supp. 2d at 1136-38;

Allied Pac. Food (Dalian) Co. v. United States (“Allied Pac. II”),

__ CIT __, 587 F. Supp. 2d 1330 (2008). These opinions take the

position that the regulation is invalid because it precludes

Commerce from considering investigation- and product-specific wage

data. See Allied Pac. II, __ CIT at __, 587 F. Supp. 2d at 1356

(“The regulation requires a single calculated wage rate to be

determined annually . . . . [and therefore] [t]he regulation does

not permit a surrogate labor rate to be determined for an

individual proceeding”), 1358 (“Commerce’s response in the preamble

[to the regulation] falls short of a plausible explanation of why
Court No. 09-00217 Page 25

Commerce considered it acceptable to foreclose consideration of

data specific to the type of labor required to produce comparable

merchandise. . . . [Commerce’s] rationale [is] insufficient to

justify a regulation that disallows the use of data on the cost of

a specific type of labor”). But the statute imposes a data

selection requirement of country comparability, not merchandise

specificity; nor does the statute require the use of data generated

for an individual or specific investigation. See 19 U.S.C. §

1677b(c)(4) (Commerce “shall utilize . . . the prices or costs of

factors of production in one or more market economy countries that

are . . . significant producers of comparable merchandise”).33

Consequently, the Department’s labor rate regulation is not, on its

33 Moreover, assuming arguendo that the statute does not

contemplate a hypothetical market economy China, it is far from

clear that -- despite the fact that Commerce calculates labor

wage rates “each year” -- Commerce cannot limit its data set,

through an investigation, to those countries that satisfy the

statutory criteria. Whether Commerce should so limit its data

set or should instead include a broad set of data such as that

used in this case, that is, which set of data qualifies as the

“best available information,” goes to Commerce’s application of

section 351.408(c)(3) rather than to the regulation’s facial

validity. See Wash. State Grange v. Wash. State Republican Party,

552 U.S. 442, 449 (2008) (“a plaintiff can only succeed in a

facial challenge by establishing that no set of circumstances

exists under which the [regulation] would be valid” (citation,

quotation marks, & alteration omitted)); Preminger v. Sec’y of

Veterans Affairs, 517 F.3d 1299, 1311 (Fed. Cir. 2008) (“A facial

challenge to a statute or regulation is independent of the

individual bringing the complaint and the circumstances

surrounding his or her challenge. . . . In contrast, an

as-applied challenge is specific to the facts of the particular

individual involved in the suit.” (citations & quotation marks

omitted)).
Court No. 09-00217 Page 26

face, inconsistent with the statute.

2. As-Applied Challenge

Second, DunAn argues that the Department should have used the

Indian wage rate in lieu of the number for China’s wage rate

derived from the regression. In this regard, DunAn does not attack

the methodology Commerce used in implementing the regulation and

does not, other than challenging the legality of the regression

model, explain how the Indian wage rate instead constitutes the

“best available information.” Rather, DunAn argues that Commerce

did not explain how use of global regression-based calculation has

produced a wage rate that is more accurate for the valuation of

labor in the FSVs industry. (See Pl.’s Br. 39-40; Pl.’s Reply Br.

15.)

But Commerce did in fact explain its reasoning on this issue:

While surrogate values for other FOPs are selected from

a single surrogate country, due to the gross variability

between wage rates and GNI, we do not find reliance on

wage data from a single surrogate country reliable for

purposes of valuing the labor input. While there is a

strong positive correlation between wage rates and GNI,

there is also variation in the wage rates of comparable

market economies. For example, even for countries that

are relatively comparable in terms of GNI for purposes of

factor valuation (e.g., where GNI is below US$ 2500), the

wage rate spans from US$ 0.21 to US$ 2.06. To further

illustrate, DunAn advocates that instead of relying on

the regression methodology, the Department should value

labor using India’s single wage rate. Petitioner contends

that should the Department consider valuing labor from a

single surrogate, other comparable countries should also

be considered, such as [Colombia]. Although both India

and [Colombia] have GNIs of under US $2500, India’s wage

rate is approximately US $0.21, as compared to

[Colombia’s] observed wage rate of US $1.13. The large
Court No. 09-00217 Page 27

variance in these two countries’ wages—not to mention the

variances which occur when wage rates are considered for

other market economy countries of economic comparability—

illustrate the arbitrariness of relying on a wage rate

from a single country. For these reasons, DunAn’s

suggestion of using a single surrogate country to value

labor does not constitute the best available information.

Decision Mem. at 20 (citations omitted). 

Moreover, earlier in its Decision Memo, Commerce explained the

benefits of its global regression model: “[t]he Department . . .

considers that the regression methodology constitutes the best

available information for purposes of valuing labor” as “[t]he

Department’s methodology avoids extreme variances in labor wage

rates that exist across market economies, and instead, accounts for

the global relationship between GNI and wages.” Id. at 17. 

Further:

relying only on data from countries that are economically

comparable to each NME would undermine, rather than

enhance, the accuracy of the Department’s regression

analysis. The number of “economically comparable”

countries would be extremely small. For example, when

examining countries with GNIs that range between US $700

and US $2500 (e.g., countries that might be considered

economically comparable to [China]), there are just nine

countries out of a full data set of 61 countries used in

the revised wage calculation in May 2008. A regression

based on such a small subset of countries would be highly

dependent on each and every data point, and thus, the

inclusion or exclusion of any one country could have an

extreme effect on the regression results from

case-to-case, and from year-to-year. Relying on a broad

data set, as opposed to data from just the economically

comparable countries, maximizes the accuracy of the

regression results, minimizes the effects of the

potential year-to-year variability in the basket, and

provides predictability and fairness. . . .

[T]he purpose in using a regression methodology . . . is
Court No. 09-00217 Page 28

to provide a more accurate labor value that is stable and

predictable across all cases. The regression methodology

accomplishes this by providing a variable average that

“smoothes out” the variations in the data and permits, in

a predictable manner, the estimation of a market economy

wage rate relative to a level of GNI that is as accurate

as practicable, with the least amount of volatility

across cases.

Id. at 19 (citations & footnote omitted). 

Considered in light of Commerce’s analysis, DunAn did not

create a record establishing that the particular Indian surrogate

value, $0.21/hour, would somehow be more accurate, and thus better

information, than the regression surrogate value derived for China.

Compare Dorbest II, __ CIT at __, 547 F. Supp. 2d at 1328-30

(analyzing plaintiffs’ argument that the regression was

heteroscedastic); Dorbest I, 30 CIT at 1710-12, 462 F. Supp. 2d at

1296-98 (addressing plaintiffs’ arguments that the regression model

is distorted given the existence of a non-zero y-intercept). 

Contrary to DunAn’s arguments, Commerce’s explanation reasonably

supports Commerce’s use of the broader global regression

methodology and preference for the wage rate selected here when

compared to India’s surrogate wage rate. See Dorbest I, 30 CIT at

1677, 462 F. Supp. 2d at 1269 (Commerce must “justify its selection

of data with a reasoned explanation.”). There is nothing on the

record here that would preclude a reasonable mind from preferring

the regression-generated wage rate to the specific India-based

$0.21 rate.

Accordingly, the court affirms Commerce’s use of the
Court No. 09-00217 Page 29

regression model in calculating the FOP for labor in this case.

C. Partial AFA Applied as to DunAn U.S. Sales and ICC

DunAn next challenges, as unsupported by substantial evidence

on the record, Commerce’s decision to apply partial AFA –- to

DunAn’s reported U.S. December 2007 sales and to the ICC for the

months of October through December 2007 –- because the Department

was unable to verify the data DunAn submitted.34 As the court will

explain, the court also affirms this aspect of the Department’s

final determination.

1. Commerce’s Verification of DunAn’s U.S. Sales and ICC

The court begins with a summary of the relevant facts at issue

during Commerce’s verification of DunAn’s POI U.S. sales of FSVs. 

During the POI and beyond, Dunan’s U.S. subsidiary, DunAn

Precision, Inc., and a U.S. customer had a purchasing agreement

whereby the customer maintained quantities of imported DunAn FSV

inventory in the customer’s U.S. warehouse. Each month, the

customer withdrew FSVs out of the warehouse as needed, and reported

the number of used inventory (or “usage”) to DunAn Precision. 

According to DunAn, DunAn Precision would review these “consumption

reports” for accuracy, and, if correct, would invoice the customer

for the values on the consumption report each month. (Pl.’s Br. 15-

16;) Application of Partial Adverse Facts Available for Zhejiang

34 Commerce is required to verify “all information relied

upon” in making its final determination. 19 U.S.C. § 1677m(i)(1).
Court No. 09-00217 Page 30

DunAn Precision Industries Co., Ltd., Zhejiang DunAn Hetian Metal

Co., Ltd. and their U.S. Subsidiary DunAn Precision Inc. in the

Antidumping Investigation of Frontseating Service Valves (“FSVs”)

from the People’s Republic of China, A-570-933, POI 7/1/07 -

12/31/07 (Mar. 6, 2009), Admin. R. Conf. Doc. 228 (“Application of

AFA Mem.”), at 2-3. If the consumption reports were inaccurate,35

DunAn Precision would invoice the customer at the correct value, and

“would keep a record of the discrepancy and invoice [the customer]

on the corrected quantity.” (Pl.’s Br. 16.) Accord Application of

AFA Mem. at 2, 3. Thereafter, based on the customer’s recent

consumption and projected upcoming needs, DunAn Precision would

issue FSV orders to DunAn. Application of AFA Mem. at 3.

During verification, DunAn submitted to Commerce DunAn

Precision’s invoices and financial statements together with a “Sales

Reconciliation” worksheet harmonizing the two. Verification of the

U.S. sales questionnaire responses of Zhejiang DunAn Precision

Industries Co., Ltd., Zhejiang DunAn Hetian Metal Co., Ltd., and

their U.S. subsidiary DunAn Precision Inc. in the Antidumping

Investigation of Frontseating Service Valves (“FSVs”) from the

People’s Republic of China, A-570-933, POI 7/1/07 - 12/31/07 (Jan.

35 During the POI, Mr. Shu, the DunAn Precision general

manager, verified the accuracy of the consumption report by

forwarding the report to Mr. Han, an engineer, who compared the

report with the physical FSV inventory in the warehouse.

Application of AFA Mem. at 2. During Commerce’s investigation

and verification, DunAn Precision’s general manager was Mr. Qi.

Id.
Court No. 09-00217 Page 31

15, 2009), Admin. R. Conf. Doc. 254 (“Verification Mem.”), at 7. 

DunAn noted that payment received from its customer in December 2007

was thirty cents less than the value on its December 2007 invoice,

but, at the time, provided no reason for this seemingly minor

discrepancy.36 Application of AFA Mem. at 3. 

Subsequently, in its investigation into other DunAn Precision

sales records, Commerce discovered that, for the month of December

2007, the consumption report and the invoice did not match. 

Although the total value noted in the invoice deviated by only

thirty cents from the consumption report –- consistent with the

December 2007 discrepancy between payment and invoice noted above --

the quantities in the December 2007 consumption report differed

significantly from those in the invoice. Verification Mem. at 8;

Application of AFA Mem. at 3. Specifically, the consumption report

quantity for one FSV model vastly exceeded that in the invoice, and,

for another FSV model, the invoice quantity vastly exceeded that in

the consumption report.37 Application of AFA Mem. at 5; Decision Mem.

36 DunAn Precision also informed Commerce of a

misclassification, as income, of a $[[ ]] security deposit;

Commerce confirmed this misclassification. Verification Mem. at

7. 

37 For December 2007, the consumption report indicated a

quantity of [[ ]] pieces of FSV model [[ ]]

whereas the invoice noted [[ ]] pieces of this model; this

is a difference of [[ ]] pieces. Verification Mem. at 8. 

Also for December 2007, the consumption report recorded a

quantity of [[ ]] pieces of FSV model [[ ]] as

opposed to the invoice number of [[ ]], a difference of 

[[ ]]. Application of AFA Mem. at 3.
Court No. 09-00217 Page 32

at 49-50.

Commerce asked for an explanation of these discrepancies. Mr.

Qi responded that he did not have one. Verification Mem. at 8. 

Later, he told Commerce that he “remembered” that “when he first

received the December 2007 [] monthly consumption report, he noticed

an abnormally large withdrawal” of a certain FSV model;38 after

verifying that the amount in the consumption report was inaccurate,

he corrected the error with the customer. Id. Accord Application of

AFA Mem. at 3. However, DunAn did not have any record of the

discrepancy and correction, despite DunAn Precision and Mr. Qi’s

policy to maintain such documentation. Verification Mem. at 8;

Application of AFA Mem. at 2, 3. Moreover, Mr. Qi did not explain

this deviation from policy and claimed not to know the location of

any of Mr. Han’s reports. Application of AFA Mem. at 3.

The only document DunAn voluntarily produced as to the

discrepancy was an e-mail exchange between Mr. Han and an employee

of the U.S. customer, in which the latter sent the consumption

report, asking Mr. Han to “[p]lease review this and confirm this

payment is accurate.” U.S. Sales Verification Ex. 7. Mr. Han

responded that “[t]he numbers showing on the report of the month of

Dec.[ are] right [and] [p]lease go ahead [and] arrange the payment.”

Id. DunAn explained that the e-mail shows an assent to value rather

than quantity. Verification Mem. at 9; Application of AFA Mem. at

38 Model No. [[ ]]
Court No. 09-00217 Page 33

4. DunAn also claimed that the U.S. customer likely misreported

numbers on its consumption reports for financial reasons.39 Further,

DunAn argued that the consumption report numbers were abnormally

large in comparison to other 2007 orders,40 and, in any event, it

would have been impossible for the customer to withdraw so many of

the relevant model of FSVs from inventory, as DunAn Precision did

not have enough of the model in stock.41 Verification Mem. at 10;

39 According to DunAn, the U.S. customer [[ 

 

 ]]. Verification Mem. at 10. Accord

Application of AFA Mem. at 4. In other words, the customer 

[[ 

 

 

 ]]. Verification Mem. at 10. Accord

Application of AFA Mem. at 4. Despite this business tactic,

however, DunAn Precision [[ 

 

 ]]. Verification Mem. at 10. Accord Application of AFA Mem.

at 4. During verification, Commerce confirmed the 

[[ ]] and the U.S. customer’s 

[[ ]]. Verification Mem. at

10; Application of AFA Mem. at 5.

40 DunAn noted that “the consumption alleged for a single day

in December for [[ ]] was [[ ]] units, which

far exceeded the daily total for any other day and, in fact,

exceeded the entire monthly total for this model in other

months.” (Pl.’s Br. 18.) [[ ]] is twenty times greater

than the average usage for this model. (Id. 25.)

41 Taking into account consumption reports through November

2007, DunAn Precision usage in 2007, and imports through December

7, 2007, the quantity of the relevant FSV model in warehouse

inventory available to the U.S. customer, adjusted by Commerce,

totaled [[ ]], which is [[ ]] less than the customer’s

December 2007 consumption report. See supra note 37; Verification
Court No. 09-00217 Page 34

Application of AFA Mem. at 5. 

Confusing matters further, however, Mr. Qi maintained separate

“monthly inventory reports” or “MIRs,” which Commerce obtained for

the months October 2007 through March 2008.42 43 Conspicuously, the

January 2008 MIR was singularly structured. Verification Mem. at 11;

Application of AFA Mem. at 5-6. Unlike the other MIRs, the January

2008 MIR did not account for the final inventory from the previous

month, that is, the report did not account for December 2007

inventory remaining after subtracting out the U.S. customer’s

purchases that month; the January MIR instead used the U.S.

customer’s consumption numbers.44 Verification Mem. at 11-12;

Mem. at 10-11; U.S. Sales Verification Ex. 7; (Pl.’s Br. 18.)

42 Significantly, DunAn Precision’s outside accountant used

the MIRs as the basis for inventory on the balance sheet and for

costs of sales calculation in the income statement. Verification

Mem. at 12-13; Application of AFA Mem. at 6. 

43 Mr. Qi also kept a worksheet on his computer allowing him

to compare 2007 and 2008 sales in order to project future FSV

demand. Verification Mem. at 8. The total 2007 quantity differed

from the total 2007 quantity provided in the monthly invoices.

Id. Mr. Qi stated that he did not know where the numbers came

from except that another employee provided them to him. Id. The

employee had no record of these 2007 numbers, and also could not

determine the source of the quantity figures contained in Mr.

Qi’s worksheet. Id.

44 In describing the MIRs, Commerce explained that:

each [MIR], other than January 2008, was similarly

structured: the first column is total inventory from

the previous month, the second column is inventory

received during the current month, the third column is

the total of the previous two columns, the fourth

column is the usage during the current month, and the
Court No. 09-00217 Page 35

Application of AFA Mem. at 5-6. The remaining 2008 MIRs carried

over the sales from December 2007, but the amount carried over still

came from the December consumption report, not the December

invoice.45 Verification Mem. at 12; Application of AFA Mem. at 6. 

fifth column is the total ending inventory (the third

column total minus the fourth column usage). This last

column is then carried over to the next month’s DunAn

Precision [MIR] as the first column.

Verification Mem. at 11. But as to the January 2008 MIR:

the first column . . . is not the same as the last

column of the December report, i.e., the ending

inventory from December 2007. Rather, the first column

of the January 2008 DunAn Precision [MIR] is the same

as the third column of the December 2007 DunAn

Precision [MIR], i.e., the total inventory in December

before usage is deducted. Therefore, the last two

columns of the December 2007 DunAn Precision [MIR],

including December usage, which consists of the

quantities reported by DunAn in its sales

reconciliation, is excluded from the inventory

calculation starting in January 2008.

Secondly, the January DunAn Precision [MIR] has an

additional column that the other reports do not have: a

column for the usage of the previous month: December

2007. We noted that the December 2007 usage column in

January 2008 DunAn Precision [MIR] contained the

quantity figures from the [U.S. customer] monthly

consumer report, not the quantities from the December

2007 sales invoice. Thus, the January 2008 DunAn

Precision [MIR] begins with the total inventory of

December 2007 (without the deduction of December 2007

usage), and then deducts December 2007 usage based on

the [U.S. customer] monthly consumption report figures,

and January 2008 usage.

Id. at 11. 

45 Commerce “examined the DunAn Precision [MIRs] for February

and March 2008, to see if [they] were reconciled to include the

allegedly correct quantity figures from the December 2007 DunAn
Court No. 09-00217 Page 36

Commerce was concerned that this MIR structure, by eliminating

December 2007 net inventory, served to side-step, rather than to

reconcile, the very quantity discrepancies at issue. Verification

Mem. at 12; Application of AFA Mem. at 6. At first, Mr. Qi could

not provide any explanation for the difference in the January 2008

MIR or how the MIRs resolved the quantity/inventory December 2007

conundrum and could not even remember making the report.

Verification Mem. at 9, 12. Mr. Qi finally answered that DunAn

Precision reported its numbers in that way for tax reasons.46

Verification Mem. at 12. 

In essence, Mr. Qi admitted that the inventory numbers

contained in the October, November, and December 2007 MIRs were

Precision [MIR].” Verification Mem. at 12. Commerce “note[d] that

[these MIRs] were not [so reconciled], and the December 2007

[U.S. customer] monthly consumption figures were carried

forward.” Id.

46 As to DunAn Precision’s purported tax reasons for the

January 2008 MIR, Mr. Qi informed the Department that DunAn

Precision [[ 

 ]]

although it must, in accordance with its agreement with its U.S.

customer “keep four to six weeks of inventory on hand at all

times.” Verification Mem. at 12; Application of AFA Mem. at 6. 

Because DunAn Precision [[ 

 

 ]]

Verification Mem. at 12. Thus, DunAn Precision must continue

receiving inventory but [[ 

 ]], Verification Mem.

at 12, that is, it [[ 

 

 ]]. Application of AFA Mem. at 6.
Court No. 09-00217 Page 37

incorrect. But while Commerce pointed out that this recordation of

inventory indicated that the consumption reports were accurate, Mr.

Qi again, without explanation, maintained that the invoice

quantities were correct. Verification Mem. at 12. Mr. Qi still

refused to answer why consumption report numbers, rather than

invoice numbers, were used in the MIRs, except to indicate that the

U.S. customer [[ ]].

Application of AFA Mem. at 6.

As a result of the Commerce’s inability to verify DunAn’s

conflicting sales data for December 2007, and because of DunAn’s

lack of clarity regarding these data, Commerce applied AFA to

DunAn’s December 2007 entries at an AD margin of 55.62 –- the

margin from the initiation and the highest margin calculated for the

proceeding. Decision Mem. at 52. Moreover, because Mr. Qi provided

evidence that inventory numbers were incorrectly reported in the

MIRs for the latter three months of 2007, Commerce applied AFA as to

the ICC for these months and used the highest ICC expense calculated

for any sale during the POI. Id.

2. Analysis

a. Application of “Facts Otherwise Available”

The administrative record contains substantial evidence 

supporting Commerce’s application of AFA as to the December 2007

sales. In accordance with 19 U.S.C. § 1677e(a)(2)(D), Commerce

noted significant irreconcilable differences, in December sales,
Court No. 09-00217 Page 38

between the consumption reports and the invoices, and thus could not

verify these sales numbers.47 

When a respondent has not provided Commerce with accurate,

verifiable record evidence, the statutory provision for application

of facts otherwise available is intended to permit Commerce to fill

the gap. Ningbo Dafa Chem. Co. v. United States, 580 F.3d 1247, 1255

(Fed. Cir. 2009); Statement of Administrative Action, H.R. Rep. No.

103-316, at 869 (1994) (“SAA”), reprinted in 1994 U.S.C.C.A.N. 4040,

4198. See also Nippon Steel Corp. v. United States, 337 F.3d 1373,

1381 (Fed. Cir. 2003); Dorbest I, 30 CIT at 1737, 462 F. Supp. 2d at

1318 (“Section 1677e(a) requires that there be a gap in the record

47 Commerce may use “facts otherwise available” in reaching

its determination, specifically where:

(1) necessary information is not available on the

record, or

(2) an interested party or any other person–

(A) withholds information that has been

requested by the administering authority or the

Commission under this title,

(B) fails to provide such information by the

deadlines for submission of the information or in

the form and manner requested, subject to . . .

[other provisions not relevant here],

(C) significantly impedes a proceeding under

this title, or

(D) provides such information but the

information cannot be verified as provided in [19

U.S.C. § 1677m(i)] . . . .

19 U.S.C. § 1677e(a). Accord 19 C.F.R. § 351.308(a).
Court No. 09-00217 Page 39

of verifiable information due to a party’s failure to supply

necessary or reliable information in response to an information

request from Commerce” (citing NTN Bearing Corp., 368 F.3d at 1377

(“All that is required is that the necessary information be

unavailable on the record.”))(other citations omitted)). 

Accordingly, Commerce’s use of facts otherwise available is

warranted when Commerce cannot verify the accuracy of respondent’s

data or cannot reconcile the information produced. 19 U.S.C. §

1677e(a); Heveafil Sdn. Bhd. v. United States, 58 F. App’x 843, 847-

48 (Fed. Cir. 2003). As to its procedures for verifying information

provided in respondent’s questionnaire responses, Commerce is

accorded broad discretion. Heveafil, 58 F. App’x at 847; Micron

Tech., Inc. v. United States, 117 F.3d 1386, 1396 (Fed. Cir. 1997).48

DunAn points to other documents, separately verified by

Commerce, such as the invoices and consumption reports through

November, that purportedly demonstrate the accuracy of its December

invoices. Because of these other invoices and documents, DunAn

claims that no “gaps” existed on the record to justify the use of

AFA.49 DunAn contends that Shandong Huarong Mach. Co. v. United

48 To the extent DunAn rejects Commerce’s administration of

the verification, DunAn has presented the court with no evidence

that Commerce acted arbitrarily in these proceedings.

49 DunAn also argues that, because Commerce accepted the date

of invoice as the date of sale for its calculations, Commerce

should have accepted the sales listed on the invoice only. The

court agrees with the government that the date of sale does not

wed Commerce to accepting invoice amounts at face value despite
Court No. 09-00217 Page 40

States, 30 CIT 1269, 435 F. Supp. 2d 1261 (2006) supports the

conclusion that, because it provided Commerce with “necessary

information,” Commerce could not apply facts otherwise available.

Shandong, 30 CIT at 1301-02, 435 F. Supp. 2d at 1289. 

The government responds, however, that, when attempting to

verify the accuracy of sales and ICC, Commerce “discovered documents

that contradicted those previously provided to it.” (Def.’s Br. 17.) 

Because of these inconsistencies, Commerce was unable to verify the

information on the record and could not rely on the accuracy of

DunAn’s documentation. The government also argues that DunAn’s

consumption reports prior to December 2007 are not relevant to the

question of whether records for December 2007 were accurate, and

shipment records only display import numbers and do not account for

the debated consumption numbers. (Id. 21.) As to DunAn’s complaints

that Commerce did not utilize the consumption reports instead of the

invoices, the government argues that Commerce did not accept the

accuracy of the consumption reports, but, rather, determined that

the consumption reports indicated contradictions in DunAn

Precision’s records that prevented Commerce from verifying the

December sales numbers. (Id. 21-22.)

significant discrepancies in the documentation. Nor does the

choice of date of sale render the consumption report numbers

irrelevant, as it was DunAn Precision’s practice to review the

consumption reports for accuracy and, after recording

inconsistencies, invoice its customer based on these data. 

Moreover, DunAn Precision’s own January 2008 accounting records

conflicted with the December invoice numbers.
Court No. 09-00217 Page 41

The government is once again correct. Nothing in Shandong

indicates that Commerce may not apply facts otherwise available when

information is unverifiable; unverifiable “necessary information”

creates a “gap” in the administrative record to the same degree as

a complete absence of “necessary information.” See Heveafil, 58 F.

App’x at 847-48. See also SAA at 869, reprinted in 1994 U.S.C.C.A.N.

at 4198. Such information is still “missing” from the record that

would serve to verify the contradictory sales numbers. A

respondent’s submission of unverifiable evidence, rather than no

evidence at all, does not save the respondent from Commerce’s

reasonable use of facts otherwise available.50 In any event, the

court would direct DunAn to read the clear and unambiguous language

of section 1677e(a) that instructs that facts otherwise available

are appropriate either when “necessary information is not available

on the record” or when “an interested party or any other person . .

. provides such information but the information cannot be verified

. . . .” 19 U.S.C. § 1677e(a).

For the same reason, as to ICC, the court cannot mandate that

Commerce ignore purportedly unreliable statements made by Mr. Qi in

favor of what Commerce has reasonably determined to be unverifiable

50 As Defendant-Intervenor points out, “[i]f DunAn’s argument

were taken to its illogical conclusion, all a respondent would

have to do to overcome application of [AFA] for failing to

provide information, would be to supply any information, even if

it were false and unverifiable.” (Def.-Intervenor’s Opp’n to

Pl.’s Rule 56.2 Mot. for J. Upon the Agency R. (“Def.-

Intervenor’s Br.”) 14.)
Court No. 09-00217 Page 42

information.

Finally on this issue, DunAn argues that the inventory reports

show that it was impossible to fulfill the consumption reports’

requirements, and claims that the December 2007 withdrawal was

clearly so large as to be aberrational. Commerce replied to DunAn’s

concerns that “DunAn attempts to demonstrate the accuracy of its

records by pointing to the very records that could not be

substantiated at verification.” Decision Mem. at 51.51

The court again agrees with the government’s position. Given

that, for the relevant valves, Commerce could verify neither the

exact number of December 2007 sales nor the total inventory in stock

between October and December 2007, it is reasonable for Commerce to

decline to square alleged December inventory amounts and sales, even

in light of DunAn’s proffered import data and even assuming,

arguendo, that this import information is correct. Moreover,

because its December 2007 sales were unverifiable and because of Mr.

Qi’s admission,52 it was also within Commerce’s discretion to refuse

51 DunAn also disputes Commerce’s finding that “the

withdrawals on DunAn’s inventory reports cover a broad range of

quantity, and while the monthly withdrawal in question is the

largest, we do not find that it is so much larger than the others

as to be anomalous, and indicate that it is inaccurate.” Decision

Mem. at 51. As the court determines that Commerce’s reasoning,

regarding problems with verification of December sales, was

supported by substantial record evidence, the court need not

address this further factual finding.

52 Mr. Qi admitted that [[ 

 ]]. See supra.
Court No. 09-00217 Page 43

to find that anomalies in December sales numbers definitively either

verified or discredited the accuracy of various other information on

the record.

As such, Commerce’s use of facts otherwise available, as to the

December 2007 sales and ICC, is sustained.

b. Application of Adverse Inferences

The administrative record also reflects that Commerce

supported, with substantial evidence, its decision that DunAn did

not act “to the best of its ability” to aid Commerce in resolving

record discrepancies. 19 U.S.C. § 1677e(b).53

In making its determination whether or not to utilize an

adverse inference, Commerce need only make a “factual assessment of

the extent to which a respondent keeps and maintains reasonable

records and the degree to which the respondent cooperates in

investigating those records and in providing Commerce with the

requested information.” Nippon, 337 F.3d at 1383. Moreover, there

is no mens rea requirement to warrant an adverse inference, and

Commerce may use adverse facts regardless of a respondent’s

motivation or intent. Id.

53 Commerce may “use an inference that is adverse to the

interests of [the interested party]” if Commerce “finds that an

interested party has failed to cooperate by not acting to the

best of its ability to comply with [Commerce’s] request for

information.” 19 U.S.C. § 1677e(b). Accord 19 C.F.R. § 

351.308(a). The adverse inference “may include reliance on

information” from the petition, a final determination in the same

investigation, or “any other information placed on the record.”

19 U.S.C. § 1677e(b). Accord 19 C.F.R. § 351.308(c). 
Court No. 09-00217 Page 44

The statutory standard does not require perfection;

nonetheless, though mistakes may sometimes be discounted, a

respondent cannot be “inattentive[], careless[], or inadequate [in]

record keeping.” Id. at 1382. Commerce may presume that a

respondent is familiar with its own records. Id. Commerce may also

assume that respondents are familiar with rules and regulations that

apply to the import activities undertaken. Id. As a consequence, in

order to avoid an adverse inference, a respondent must: 

(a) take reasonable steps to keep and maintain full and

complete records documenting the information that a

reasonable importer should anticipate being called upon to

produce; (b) have familiarity with all of the records it

maintains in its possession, custody, or control; and (c)

conduct prompt, careful, and comprehensive investigations

of all relevant records that refer or relate to the

imports in question to the full extent of the importers’

ability to do so.

Id.

Errors resulting in failure to provide information (e.g.,

computer errors or mistaken advice from an attorney) will not

absolve a respondent from a Commerce determination that the

respondent has failed to cooperate. See PAM, S.p.A. v. United

States, 582 F.3d 1336, 1339 (Fed. Cir. 2009). A respondent may not

rely on excuses that its employee designated to prepare the response

either does not know about the needed records, Nippon, 337 F.3d at

1383, or has a lack of familiarity with the respondent’s accounting

records. Heveafil, 58 F. App’x at 849. Nor can the respondent avoid

adverse inferences if it finds that records no longer exist or
Court No. 09-00217 Page 45

cannot be located. See id. 

DunAn argues that DunAn Precision merely failed to maintain

sufficient records to account for discrepancies between consumption

reports and invoices. These failures, however, even if inadvertent,

support Commerce’s decision to apply an adverse inference. See

Nippon, 337 F.3d at 1383. Further, Commerce met with Mr. Qi several

times and, in some instances, Mr. Qi could not explain the

inconsistencies in DunAn Precision’s documents. Of those

inconsistencies for which he could account, Mr. Qi informed Commerce

that DunAn Precision made adjustments in its accounting records –-

also provided to Commerce –- but, at the same time, kept MIRs that

conflicted with the invoices. Yet Mr. Qi continued to insist that

the invoices were correct. This lack of clarity indicates, at best,

negligent record keeping, inadequate knowledge of existing records,

insufficient inquiry into these records, and failure to adequately

prepare Mr. Qi for Commerce’s investigation. See id.; Heveafil, 58

F. App’x at 849; PAM, 582 F.3d at 1339.

DunAn once again relies on Shandong, 30 CIT at 1301-02, 435 F.

Supp. 2d at 1288-89, as support for its position.54 But, consistent

with Shandong, it is within Commerce’s discretion to make factual

54 The Shandong court upheld Commerce’s decision because, on

the record, it was reasonable for Commerce to refuse to apply AFA

in light of its determination that “SMC complied with [the

Department’s] requests for documentary evidence regarding its

ocean freight expenses . . . .” Shandong, 30 CIT 1301, 435 F.

Supp. 2d at 1289 (quotation marks omitted). 
Court No. 09-00217 Page 46

conclusions based upon the administrative record so long as a

reasonable fact finder could make such conclusions. DunAn has not

demonstrated to the court that, on this administrative record, a

reasonable fact finder could not come to the conclusion that

Commerce reached here. See U.S. Steel Group, 96 F.3d at 1357-58; In

re Alonso, 545 F.3d 1015, 1019 (Fed. Cir. 2008). 

On the record before the court, it was reasonable for Commerce

to find that either DunAn was not completely forthcoming to Commerce

or that DunAn Precision was at least negligent with its record

keeping. Therefore, the court sustains Commerce’s application of an

adverse inference against DunAn.

c. Use of AFA Margin of 55.62 percent55

DunAn also contests the resulting AFA rate. Commerce applied

a 55.62 percent dumping margin to DunAn’s December 2007 sales of the

two FSV models at issue, as 55.62 percent was the initiation rate

and the highest rate in the proceeding. Application of AFA Mem. at

9; Decision Mem. at 52.56

The statute explicitly authorizes Commerce, in determining an

appropriate AFA rate, to rely on any information placed on the

record, including information derived from the petition. 19 U.S.C.

55 DunAn does not challenge the particular AFA rate applied

to the ICC.

56 55.62 percent happens to also be the China-wide rate.

Frontseating Service Valves from the People’s Republic of China,

74 Fed. Reg. at 19,197. 
Court No. 09-00217 Page 47

§ 1677e(b); 19 C.F.R. § 351.308; F.lli De Cecco di Filippo Fara S.

Martino S.p.A. v. United States, 216 F.3d 1027, 1032 (Fed. Cir.

2000); SAA at 870, reprinted in 1994 U.S.C.C.A.N. at 4199. 

That said, Commerce may not “overreach reality” in resorting to

an adverse margin. De Cecco, 216 F.3d at 1032. See also PAM, 582

F.3d at 1340; 19 U.S.C. § 1677e(c). When using “secondary

information,” such as that from the petition, to create a proxy

margin, Commerce must “to the extent practicable, corroborate that

information from independent sources that are reasonably at [its]

disposal.” 19 U.S.C. § 1677e(c); 19 C.F.R. § 351.308(d). “Commerce

evaluates whether secondary information has probative value by

assessing its reliability and relevance.” KYD, Inc. v. United

States, __ CIT __, __, 613 F. Supp. 2d 1371, 1378 (2009) (citation

omitted). See also Mittal Steel Galati S.A. v. United States, 31 CIT

730, 734, 491 F. Supp. 2d 1273, 1278 (2007).

Accordingly, the rate chosen must attempt to be a “reasonably

accurate estimate” of respondent’s actual rate, “albeit with some

built-in increase intended as a deterrent,” and must be corroborated

with information on the record. De Cecco, 216 F.3d at 1032. See also

id. (“Congress could not have intended for Commerce’s discretion to

include the ability to select unreasonably high rates with no

relationship to the respondent’s actual dumping margin.”). Within

these constraints, Commerce is entitled to use the highest margin

applied to DunAn or any other respondent. See Heveafil, 58 F. App’x
Court No. 09-00217 Page 48

at 846, 849-50; De Cecco, 216 F.3d at 1032. 

DunAn first argues that Commerce may not apply the China-wide

rate because DunAn is independent from the Chinese government. See

Qingdao Taifa Group Co. v. United States, __ CIT __, __, 637 F.

Supp. 2d 1231, 1240-41 (2009), aff’d on other grounds, 581 F.3d 1375

(Fed. Cir. 2009); Gerber Food (Yunnan) Co. v. United States, 29 CIT

753, 771-72, 387 F. Supp. 2d 1270, 1287 (2005). But the government

responds that Commerce utilized the petition rate, rather than

purposefully applying the China-wide rate, and claims that Commerce

did not specifically group DunAn within the China-wide entity which

received the China-wide rate: “Commerce’s use of the petition rate

as [AFA] for DunAn’s December 2007 sales quantity [] cannot be

equated to Commerce treating DunAn as part of the China-wide

entity.” (Def.’s Br. 22.) 

Consistent with the government’s arguments, in Commerce’s

determinations it referred to the high margin given to DunAn merely

as the rate in the petition, and did not, in using this rate, deny

DunAn a separate rate. Final Determination at 10,889; Decision Mem.

at 52; Frontseating Service Valves from the People’s Republic of

China, 73 Fed. Reg. at 62,956; Application of AFA Mem. at 9. Compare

Qingdao, __ CIT at __, 637 F. Supp. 2d at 1240, 1242 (reversing

Commerce’s decision, when applying AFA, to apply the PRC-wide rate

instead of a separate rate). As a consequence, whether or not

Commerce can apply the China-wide rate to DunAn is irrelevant here.
Court No. 09-00217 Page 49

Be that as it may, Commerce’s use of the petition margin, when

based upon secondary information such as the petition rate, still

must approximate DunAn’s actual rate, and Commerce must corroborate

the use of the rate with evidence on the record. See PAM, 582 F.3d

at 1340; De Cecco, 216 F.3d at 1032. 

In this regard, DunAn does not argue that Commerce failed to

adequately corroborate, as required by 19 U.S.C. § 1677e(c),

Commerce’s use of the 55.62 percent petition rate. Rather, DunAn

argues that the applied rate was not directly related to the

unverified information at issue. DunAn complains that, while

Commerce found DunAn’s sales quantity data to be unverifiable,

Commerce, in its calculations, nonetheless used this same quantity

data when calculating DunAn’s weighted-average dumping margin. To 

DunAn, this choice was inconsistent.

Yet DunAn’s argument is unpersuasive because it “conflate[s]

Commerce’s determination to reject as unreliable [certain

information DunAn] submitted with Commerce’s determination to use as

AFA ‘other’ record evidence . . . .” Wash. Int’l Ins. Co. v. United

States, No. 08-00156, 2010 Ct. Intl. Trade LEXIS 13, at *16-17 (CIT

Feb. 9, 2010) (citation omitted). Commerce may, as here, use the

quantity information rejected as unverifiable because it is DunAn’s

own number. DunAn cannot now complain that Commerce used, when

applying AFA, the information DunAn itself submitted during the

investigation. See id. 
Court No. 09-00217 Page 50

The court thus sustains Commerce’s use of 55.62 percent as

DunAn’s AFA rate.

D. Offset for Recycled Brass Scrap

The court also rejects DunAn’s final ground for remand. In

using brass bar to manufacture its FSVs, DunAn produces by-product

brass scrap. DunAn sells some of this scrap, but much of the brass

scrap is recycled and integrated into later production of other

FSVs. Responding to DunAn’s case brief in the administrative

proceeding below, the Department allowed an offset, in part, for the

reduced value of brass scrap, and applied this offset to DunAn’s

normal value. See Decision Mem. at 58-59. 

DunAn claims that Commerce’s scrap offset methodology is

contrary to law. Specifically, DunAn argues that Commerce reduced

its calculation of DunAn’s COP by the reduced value of brass scrap

rather than subtracting the brass bar created from scrap from the

total brass bar used. This method of calculating the offset,

according to DunAn, leads to significant undervaluation of DunAn’s

cost savings from the use of recycled brass scrap.57

Commerce did not address this argument in its Decision

Memorandum. Accordingly, DunAn asks that the court direct Commerce

57 DunAn has not argued or presented the court with evidence

that Commerce acts arbitrarily or capriciously in implementing

its offset methodology.
Court No. 09-00217 Page 51

to explain its choice of offset calculation.58

The court’s analysis of this issue begins with the recognition

that it is Commerce’s consistent practice to grant, from the COP, an

offset of the scrap’s sales value.59 In addition, the court sees no

conflict between the offset methodology and the governing statutes

and regulations, and thus determines the Department’s practice to be

reasonable and hence in accordance with law.

DunAn cites Commerce decisions to demonstrate that “the

Department’s practice is not to value by-products reused in

production.” (Pl.’s Reply Br. 13 (quoting Coated Free Sheet Paper

from the People’s Republic of China, 72 Fed. Reg. 60,632 (Dep’t

Commerce Oct. 25, 2007) (final determination of sales at less than

fair value), and accompanying Issues and Decision Memorandum,

A-570-906, POI 04/01/06 - 09/30/06 (Oct. 17, 2007), at 36, available

58 Both the government and Parker note that DunAn’s position

unrealistically treats brass scrap and brass bar as perfectly

interchangeable and so fails to take into account costs

associated with scrap processing. (Def.’s Br. 36; Def.-

Intervenor’s Br. 27.)

59 See Arch Chems., Inc. v. United States, No. 08-00040, 2009

Ct. Intl. Trade LEXIS 78, at *5-6 (CIT July 13, 2009); Ass’n of

Am. Sch. Paper Suppliers v. United States, No. 06-00395, 2008 Ct.

Intl. Trade LEXIS 128, at *20 (CIT Nov. 17, 2008); Ames True

Temper v. United States, 31 CIT 1303, 1317 (2007); Steel Concrete

Reinforcing Bars from the People’s Republic of China, 66 Fed.

Reg. 33,522, 33,524 (Dep’t Commerce June 22, 2001) (notice of

final determination of sales at less than fair value), and

accompanying Issues and Decision Memorandum, A-570-860, POI

10/1/99 - 3/30/00 (June 22, 2001), at Comment 5c, available at

http://ia.ita.doc.gov/frn/summary/prc/01-15652-1.txt (last

visited Apr. 19, 2010). (See also Pl.’s Br. 32.) 
Court No. 09-00217 Page 52

at http://ia.ita.doc.gov/frn/summary/PRC/E7-21041-1.pdf (last

visited Apr. 19, 2010)) (quotation marks omitted).) Pursuant to

this practice, Commerce will not add the value of the brass scrap as

an FOP in calculating the COP, as the scrap came from the alreadyvalued brass FOP.

But this is a different issue. Here, Commerce indeed did not

add the sales value of the scrap to DunAn’s COP. In fact, Commerce

granted DunAn an offset because DunAn used some of the scrap. If

DunAn’s argument were correct, namely that the values of brass bar

and brass bar scrap were equivalent and therefore were completely

fungible, then the sales value of the scrap would equal the sales

value of the brass bar and the value Commerce applied to the scrap

would not be in dispute. Rather, for whatever reason, brass scrap

does not equal brass bar, and it was thus reasonable for Commerce to

treat these inputs differently based upon the sales value of each.

Moreover, the court does not agree that Commerce’s failure to

address this one issue constitutes error. Commerce is presumed to

have considered all the record evidence, see Thomas v. Office of

Pers. Mgmt., No. 2009-3107, 2010 WL 391327, at *2 (Fed. Cir. Feb. 4,

2010) (per curiam); Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir.

2000); Nucor Corp. v. United States, 28 CIT 188, 233, 318 F. Supp.

2d 1207, 1247 (2004), aff’d, 414 F.3d 1331 (Fed. Cir. 2005), and

need not address every argument raised by a respondent in its

briefing. Timken U.S. Corp. v. United States, 421 F.3d 1350, 1354-56
Court No. 09-00217 Page 53

(Fed. Cir. 2005). As has been explained many times before, the

court will remand if Commerce “failed to consider an important

aspect of the problem . . . .” Motor Vehicle Mfr. Ass’n of the U.S.,

Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). By

following its reasonable established practice, Commerce has not so

failed. 

Conclusion

For all of the foregoing reasons, Plaintiff’s Motion for

Judgment Upon the Agency Record is DENIED. Judgment will be entered

for Defendant.

It is SO ORDERED.

 /s/ Donald C. Pogue 

Donald C. Pogue, Judge

Dated: April 19, 2010

 New York, New York