Slip Op. 15-38

UNITED STATES COURT OF INTERNATIONAL TRADE 

ZHEJIANG SANHUA CO., LTD, 

Plaintiff,

v.

UNITED STATES, 

Defendant.

 Before: Leo M. Gordon, Judge 

 Court No. 14-00007 

OPINION 

[Motion for judgment on the agency record denied; final results of administrative review 

sustained.]

 Dated: April 24, 2015 

 David A. Riggle and David J. Craven, Riggle and Craven of Chicago, Illinois for 

Plaintiff Zhejiang Sanhua Co., Ltd. 

 L. Misha Preheim, Senior Trial Counsel, Commercial Litigation Branch, Civil 

Division, U.S. Department of Justice of Washington, DC for Defendant United States. 

With him on the brief were Joyce R. Branda, Acting Assistant Attorney General, Jeanne 

E. Davidson, Director, Patricia M. McCarthy, Assistant Director. Of counsel on the brief 

was Devin S. Sikes, Attorney, U.S. Department of Commerce for Trade Enforcement and 

Compliance of Washington, DC. 

Gordon, Judge: This action involves an administrative review conducted by the 

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

frontseating service valves from the People’s Republic of China. See Frontseating 

Service Valves from the People’s Republic of China, 78 Fed. Reg. 73,825 (Dep’t of 

Commerce Dec. 9, 2013) (final results admin. review) (“Final Results”); see also Issues 

and Decision Memorandum for the Final Results of the Antidumping Duty Administrative 

Review on Frontseating Service Valves from the People’s Republic of China, A-570-933 
Court No. 14-00007 Page 2 

(Dep’t of Commerce Nov. 29, 2013) (“Decision Memorandum”), available at 

http://enforcement.trade.gov/frn/summary/prc/2013-29333-1.pdf (last visited this date). 

Before the court is Plaintiff Zhejiang Sanhua Co., Ltd.’s (“Sanhua”) motion for judgment 

on the agency record. See Pl.’s Rule 56.2 Mem. in Supp. of Mot. for J. on the Agency R. 

(July 31, 2014), ECF No. 24 (“Pl.’s Br.”). The court has jurisdiction pursuant to Section 

516A(a)(2)(B)(iii) of Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) 

(2012),1 and 28 U.S.C. § 1581(c) (2012). 

Sanhua challenges Commerce’s use of facts available to calculate Sanhua’s brass 

and copper byproduct offsets, Commerce’s rejection of Sanhua’s ministerial error 

submission, and Commerce’s 15-day liquidation policy. For the reasons set forth below, 

the court sustains the Final Results on each issue.

I. Standard of Review 

For administrative reviews of antidumping duty orders, the court sustains 

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

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

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

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

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

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

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

 

1 Further citations to the Tariff Act of 1930, as amended, are to the relevant provisions of 

Title 19 of the U.S. Code, 2012 edition. 
Court No. 14-00007 Page 3 

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

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

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

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

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

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

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

review. 3 Charles H. Koch, Jr., Administrative Law and Practice § 9.24[1] (3d ed. 2015). 

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

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

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

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

Separately, the two-step framework provided in Chevron, U.S.A., Inc. v. Natural 

Res. Def. Council, Inc., 467 U.S. 837, 842-45 (1984), governs judicial review of 

Commerce’s interpretation of the antidumping statute. See United States v. Eurodif S.A., 

555 U.S. 305, 316 (2009) (Commerce’s “interpretation governs in the absence of 

unambiguous statutory language to the contrary or unreasonable resolution of language 

that is ambiguous.”). 

II. Discussion 

A. Facts Available

Commerce calculates dumping margins by determining “the amount by which the 

normal value exceeds the export price or constructed export price of the subject 
Court No. 14-00007 Page 4 

merchandise.” 19 U.S.C. § 1677(35)(A). The statute permits certain downward 

adjustments to normal value, but does not address adjustments for byproduct sales. See 

id. § 1677b(a)(6)-(7). Commerce as a matter of policy, however, offsets normal value for 

the sale of byproducts generated during production of the subject merchandise during the 

period of review. See, e.g., Issues and Decision Memorandum for the Final Results of 

Antidumping Duty Administrative Review and New Shipper Review of Wooden Bedroom 

Furniture from the People's Republic of China, A-570-890, at 70-71 (Dep’t of Commerce 

Aug. 11, 2008), available at http://enforcement.trade.gov/frn/summary/prc/E8-19303-

1.pdf (last visited this date) (describing and applying scrap offset policy). 

Sanhua sold brass and copper scrap during the period of review. Sanhua, though, 

did not track the quantity of scrap generated on a product-specific basis. Instead, in 

response to Commerce’s request for product-specific figures, Sanhua reported brass and 

copper byproduct using a formula that extrapolated product-specific data from total scrap 

sales. As Commerce explained: 

Sanhua first calculated the sum of [the weight of] all reported [factors of 

production] for each [frontseating service valve, or FSV] which includes 

[factors of production] related to components not manufactured from brass 

or copper (e.g., nylon charge port caps). Sanhua then subtracted the total 

standard weight of each finished FSV from the sum of the [factors of 

production] for that FSV to determine each FSV’s “difference.” Next, 

Sanhua [multiplied] each FSV’s “difference” by its [period of review] 

production quantity and summed the [results of that calculation for] all FSVs 

produced to determine the total “difference.” Sanhua then divided the total 

weight of brass and copper scrap generated and sold during the [period of 

review] by the extended “difference” to determine the ratio of scrap [in 

grams] to difference [in grams]. Sanhua applied the brass and copper ratios 

to each FSV’s “difference” to determine the FSV’s brass and copper scrap 

offset.
Court No. 14-00007 Page 5 

Decision Memorandum at 21 (footnotes omitted). In other words, Sanhua calculated the 

difference in weight between the inputs before production of each valve and the standard 

final weight of each valve to estimate the weight of material lost during production. Sanhua 

then applied a ratio derived from the total weight of scrap it actually sold to approximate 

the portion of scrap metal in the total material lost during production. Sanhua’s 

methodology resulted in estimated weights of brass and copper scrap on a productspecific basis. See id. 

Commerce identified several potential problems with Sanhua’s methodology. 

Decision Memorandum at 21-22. For example, Commerce observed that Sanhua’s 

method depended in part on the weight of components “that bear[] no relationship to the 

scrap offset being claimed,” and that Sanhua’s method derives copper offsets in part from 

the amount of brass used in the production of some products. Id. Commerce noted that 

Sanhua in some instances claimed an offset even though it reported a total input weight 

lower than the final product weight. Most importantly, Commerce also observed that 

Sanhua’s methodology did not account for “yield loss,” the percentage of inputs neither 

incorporated into the final product nor recovered and sold as scrap. Commerce’s 

concerns were confirmed at verification, finding “for most of the products examined” that 

Sanhua’s method “resulted in higher scrap offsets than the yields reflected in the technical 

drawings of the components made of brass or copper inputs.” Decision Memorandum at 

22 (emphasis added). 

Commerce turned to “facts available” to address the problems it identified with 

Sanhua’s reported brass and copper offsets. The statute requires Commerce to use facts 
Court No. 14-00007 Page 6 

otherwise available when, among other things, an interested party provides information 

that cannot be verified. 19 U.S.C. § 1677e(a)(2)(D). Under this scenario, “Commerce may 

use as ‘facts available’ any ‘information or inferences which are reasonable to use under 

the circumstances’ to make the applicable determination or substitute for the missing 

information.” Ningbo Dafa Chem. Fiber Co. v. United States, 580 F.3d 1247, 1252 (Fed. 

Cir. 2009) (quoting Statement of Administrative Action, H.R. Rep. No. 103-316, vol. 1 at 

869 (1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4198). 

Using other information available on the record, Commerce applied an adjustment 

to Sanhua’s reported offsets to account for yield loss: 

To calculate the scrap adjustment for the final results, we summed the overand under-reported brass and copper scrap offset quantities for all products 

examined at verification and divided this amount by the total reported brass 

and copper scrap offset for the same products to determine the overall overor under-reported brass and copper scrap offset percentage of adjustment. 

We then applied this percentage adjustment to the CONNUM-specific brass 

and copper scrap offset quantities to determine the CONNUM-specific 

scrap adjustment. . . . [W]e find, as facts available, that this adjustment 

reasonably limits the brass and copper offset to the yield losses attributable 

to only those components produced using brass and copper inputs. We find 

that this approach is not adverse to Sanhua because it acknowledges that 

scrap is generated in the production of FSV and permits an offset and it 

includes both over- and underreported scrap amounts. We also find this 

adjustment to be reasonable because it is calculated based on the 

weighted-average over- and under-reported quantities of each product 

examined and represents both subject and non-subject merchandise. 

Decision Memorandum at 23-24 (footnote omitted). Commerce noted, however, that “this 

adjustment does not resolve all of the Department’s concerns with Sanhua’s scrap 

allocation methodology.” Id. at 23. 
Court No. 14-00007 Page 7 

Sanhua requested that Commerce alter this methodology to account for scrap 

derived from damaged and purchased components. Commerce declined, explaining that 

“the brass and copper consumed in the production of the damaged components or 

products or the quantity of purchased components is not included in Sanhua’s reported 

brass, copper, or purchased components [factors of production],” meaning that “the scrap 

generated from the damaged components or products was not generated from the 

production of the subject merchandise.” Id. at 22-23. Commerce further explained that 

Sanhua’s claimed offsets should actually be revised downward to exclude this scrap. 

However, Commerce was unable to make this downward adjustment because “the 

documentation regarding the number of pieces and related weights of damaged 

components is not available on the record” and that “documentation collected at 

verification reflects the number of pieces of damaged products, but not the corresponding 

product weights.” Id. at 23 n.136. 

Sanhua argues that Commerce’s scrap offset calculation unreasonably failed to 

“take into account all the factors that generate scrap, caused distortions[,] and was not 

supported by company records.” Pl.’s Br. at 4. Specifically, Sanhua contends that 

Commerce unreasonably relied on the full standard input and output weight described in 

certain technical drawings when calculating the yield loss adjustment. According to 

Sanhua, the “standard” product weights described in the drawings are theoretical 

maximum weights. Id. at 4-5. Sanhua insists that actual weight “normally is less [than 

standard product weight] due to experience and greater efficiency in manufacturing during 

the product lifetime,” a fact confirmed by Commerce’s own findings of lower product 
Court No. 14-00007 Page 8 

weights at verification. Id. at 5. Sanhua points to record data showing that Commerce’s 

use of standard product weights in its adjustment formula results in lower scrap offsets. 

Id. at 4-5. Sanhua also argues that Commerce’s methodology unreasonably fails to 

account for scrap derived from inputs that Sanhua purchased. Sanhua in particular 

objects to Commerce’s refusal to include purchased “damaged connection tubes” in its 

adjustment to copper offsets because these tubes constitute “the most significant source 

of copper scrap.” Id. at 7. 

Sanhua does not offer a specific alternative to Commerce’s adjustment 

methodology. Instead, Sanhua argues that Commerce should have accepted Sanhua’s 

unadjusted offset requests because Sanhua’s methodology “ties to the company’s own 

internal records” instead of some “theoretical calculation.” Id. 

Defendant responds generally that Commerce reasonably used facts available to 

adjust Sanhua’s offset reporting. Defendant explains that Commerce requested scrap 

offset data on a product-specific basis, but that Sanhua did not maintain that information 

in the normal course of business. Def.’s Resp. to Pl.’s Mot. for J. upon the Admin. R. 12 

(Sept. 30, 2014), ECF No. 25 (“Def.’s Resp.”). According to Defendant, Sanhua’s claim 

that its offset reporting “is based on its normal books and records” is misleading because 

Sanhua’s methodology derives offset values indirectly. Id. at 13-14. 

Analysis 

Sanhua essentially argues that Commerce introduced inaccuracies into Sanhua’s 

offset reporting that did not exist before. See Pl.’s Br. at 4-7. Sanhua had to calculate 

product-specific offsets indirectly because Sanhua did not record its brass and copper 
Court No. 14-00007 Page 9 

byproduct on a product-specific basis. In fairness, Sanhua’s methodology does tie to the 

amount of total scrap it produced, a data point Sanhua maintained in the normal course 

of business. Decision Memorandum at 21. As Commerce explained, however, Sanhua’s 

scrap reporting methodology implied certain relationships between inputs, scrap 

production, and the subject merchandise that Commerce could not verify. In particular, 

Sanhua’s formula derived offsets in part from inputs unrelated to scrap, potentially 

overstated the amount of copper scrap produced for certain models, and did not reflect 

differences in production yields between models. Decision Memorandum at 21-22. 

Commerce at verification observed that Sanhua’s formula in fact produced “higher scrap 

offsets than the yields reflected in the technical drawings of the components made of 

brass or copper inputs” for “most” of the products evaluated by Commerce. Id. at 22. 

Sanhua does not present a cogent rebuttal to these findings. 

Commerce must use facts available when a party provides information that 

Commerce cannot verify. 19 U.S.C. § 1677e(a)(2)(D); Decision Memorandum at 21-22. 

Sanhua does not challenge Commerce’s application of facts available or identify any 

verifiable alternative adjustment methodology. In the court’s view, Commerce analyzed 

the available record information and reasonably adjusted Sanhua’s offset reporting 

methodology. The court therefore sustains this aspect of the Final Results. 

B. Ministerial Error Submission 

Sanhua submitted a ministerial error request soon after Commerce issued the 

Final Results. Sanhua attached an exhibit to that submission containing information 

related to the surrogate value for brass scrap. Commerce rejected Sanhua’s submission 
Court No. 14-00007 Page 10 

because three pages of the exhibit contained “new” information. Specifically, Commerce 

observed that “Page 1 of exhibit ME-2 includes the Department's surrogate value . . . 

worksheet for [a prior administrative] review,” and that “Pages 3 and 4 of exhibit ME-2 

include import statistics for brass scrap from the Philippines National Statistics Office” not 

part of the original administrative record. Rejection of New Factual Information Contained 

in Zhejiang Sanhua Co., Ltd.’s December 9, 2013, Ministerial Error Letter, 1 (Dep’t of 

Commerce Dec. 16, 2013), PD 130 (“Rejection Memorandum”). Commerce provided 

Sanhua with an opportunity to resubmit its request without the three offending pages. Id. 

at 1-2. Sanhua did so, but Commerce ultimately denied the entirety of Sanhua’s request 

for ministerial error corrections. Ministerial Error Allegation Memorandum, 1-4 (Dep’t of 

Commerce Jan. 9, 2014), PD 136 (“Error Memorandum”). Sanhua now challenges 

Commerce’s decision to reject the three pages attached to its initial ministerial error 

submission because, in Sanhua’s view, those three pages did not contain “new” 

information. Pl.’s Br. at 9-12.

The court does not agree. Sanhua insists the rejected pages do not contain “new” 

information because the first page contains “the sort of information [Commerce] routinely 

allows to be placed on the record” and the other two pages contain information already 

on this record “in a different format” or using “a different unit of measure.” Id. at 10-11. By 

Sanhua’s own admission, however, the information on the first rejected page came from 

the record of a prior administrative review, not this administrative review. See id. at 10. 

Furthermore, the other two pages do not contain information differing merely in format or 

unit of measure. Instead, as Defendant explains, the two other pages contain information 
Court No. 14-00007 Page 11 

that differs in substance from what appears on this administrative record. Def.’s Resp. at 

24-25 (citing and describing relevant record sources). Commerce reasonably concluded 

that the three pages contained “new” information that did not warrant consideration as 

part of Plaintiff’s request for a ministerial error correction. See Rejection Memorandum at 

1-2.

It seems that this issue is less about a genuine attempt to correct a ministerial error 

and more an effort to reargue the substantive merits of a surrogate value determination. 

Sanhua claimed in its submission that Commerce inadvertently valued brass scrap using 

dollars per kilogram (excluding freight and insurance) instead of dollars per net kilogram 

(including freight and insurance). Commerce, though, calculated a surrogate value for 

brass scrap using a methodology that Sanhua itself suggested during the proceeding. 

See Error Memorandum at 2-3; Decision Memorandum at 32-33. In persuading 

Commerce to utilize its preferred methodology, it appears Sanhua neglected to develop 

the record so that Commerce could value brass scrap in dollars per net kilogram. See 

Error Memorandum at 3 (“The Department did not choose a [surrogate value] measured 

in net kilograms, because no such value was timely filed on the record of this review.”). It 

therefore appears to the court that this issue is not really about a ministerial error, but 

instead reflects Sanhua’s untimely attempt to paper the record with missing information 

that would have enabled Commerce to calculate a more favorable surrogate value for 

brass scrap. In any event Commerce’s denial of Sanhua’s ministerial error request was 

reasonable on this administrative record. 
Court No. 14-00007 Page 12 

C. Commerce’s 15-day policy 

Lastly, Sanhua challenges Commerce’s 15-day liquidation policy. Sanhua argues 

that SKF USA, Inc. v. United States, 33 CIT 1866, 1883-91, 675 F. Supp. 2d 1264, 1280-

86 (2009), after remand, 34 CIT ___, Slip Op. 10-76 (2010) (“SKF II”), and Tianjin Mach. 

Imp. & Exp. Corp. v. United States, 28 CIT 1635, 1649-51, 353 F. Supp. 2d 1294, 1309-

10 (2004) (“Tianjin”) render Commerce’s 15-day liquidation policy unlawful. Pl.’s Br. at 

12-14. Defendant responds that the court lacks jurisdiction to review this issue because 

the court cannot review the liquidation policy under 28 U.S.C. § 1581(c) and because 

Sanhua does not have standing to challenge the policy. Alternatively, Defendant argues 

that Commerce’s 15-day policy is a reasonable interpretation of the statute. Def.’s Resp. 

at 25-31. 

Whether the court has subject matter jurisdiction to hear Plaintiff’s challenge to 

Commerce’s 15-day liquidation policy is an academic exercise. If Plaintiff’s claim arises 

out of the final results of the subject administrative review, then jurisdiction exists under 

28 U.S.C. § 1581(c). See Mittal Steel Galati S.A. v. United States, 31 CIT 730, 736, 491 

F. Supp. 2d 1273, 1279-80 (2007) (“Mittal Steel I”). On the other hand, if Plaintiff’s claim 

arises from agency action outside of the final results of the subject administrative review, 

then jurisdiction lies under 28 U.S.C. § 1581(i). See SKF USA Inc. v. United States, 31 

CIT 405, 409-10 (2007) (“SKF I”). Regardless, the court has subject matter jurisdiction. 

See Mittal Steel I, 31 CIT at 736, 491 F. Supp. 2d at 1280. Here, the court exercises its 

jurisdiction to hear Plaintiff’s challenge to Commerce’s 15-day liquidation policy under 

§ 1581(i). As to standing, the court sees no merit in the Government’s argument. See 
Court No. 14-00007 Page 13 

SKF II, 33 CIT at 1885-86, 675 F. Supp. 2d at 1281-82 (rejecting similar arguments). Even 

though it has jurisdiction over Plaintiff’s claim, the court does not reach the merits on this 

issue because Sanhua’s briefing on this issue is incomplete and inadequate. 

Sanhua believes that naked citation to SKF II and Tianjin entitles it to declaratory 

relief as a matter of law. Sanhua, however, omits from its discussion several other 

decisions of the court that sustained Commerce’s previous 15-day liquidation policy as a 

reasonable interpretation of the statute. See Mittal Steel Galati S.A. v. United States, 31 

CIT 1121, 1141, 502 F. Supp. 2d 1295, 1313, after remand 31 CIT 1776, 521 F. Supp. 

2d 1409 (2007); Mittal Steel I, 31 CIT at 736, 491 F. Supp. 2d at 1279 (Gordon, J.); 

Mukand Int’l Ltd. v. United States, 30 CIT 1309, 1312, 452 F. Supp. 2d 1329, 1332 (2006) 

(Gordon, J.). 

The premise of the adversarial system is that courts do not sit as self-directed 

boards of legal inquiry and research, but instead as arbiters of legal questions presented 

and argued by the parties. See Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983); 

MTZ Polyfilms, Ltd. v. United States, 33 CIT 1575, 1578-79, 659 F. Supp. 2d 1303, 1308-

09 (2009) (explaining applicability of Carducci and waiver for inadequate briefing in 

actions at the Court of International Trade). This Court’s Rules require that all motions 

“must . . . .state with particularity the grounds for seeking the order,” USCIT R. 7(b)(1)(B), 

and that briefs in support of motions for judgment on the agency record “must include the 

authorities relied on and the conclusions of law deemed warranted by the authorities,” 

USCIT R. 56.1(c)(2) (agency record actions other than a 1581(c) action); USCIT R. 

56.2(c)(2) (1581(c) action); see also MTZ Polyfilms, 33 CIT at 1579, 659 F. Supp. 2d at 
Court No. 14-00007 Page 14 

1309. Failing to enforce these requirements deprives the court “in substantial measure of 

that assistance of counsel which the system assumes.” Carducci, 714 F.2d at 177. 

There is no real argument in Sanhua’s challenge to Commerce’s 15-day liquidation 

policy. In fact, Sanhua’s briefing is similar to argumentation the court deemed waived in 

JBF RAK LLC v. United States, 38 CIT ___, ___, 991 F. Supp. 2d 1343, 1356 (2014). 

Compare Pl.’s Br. at 12-14 with Pl. JBF RAK LLC’s Mem. of Law in Supp. of its Mot. for 

J. on the Agency R. Pursuant to R. 56.2 at 21-23, JBF RAK, 38 CIT ___, 991 F. Supp. 2d 

1343 (No. 13-cv-00211), ECF No. 32. There, the court faulted the plaintiff for failing to 

identify relevant authority and for failing to discuss and apply the appropriate analytical 

framework. JBF RAK, 38 CIT at ___, 991 F. Supp. 2d at 1356. “[T]o review the issue in 

this context,” the court noted, “it would have to first assume the role of co-plaintiff, reframe 

[the plaintiff’s] arguments under [Chevron], wrestle with the existing decisions on this 

issue, and analyze Commerce's 15–day policy under that framework. The court would 

effectively be litigating the issue for [plaintiff], which is something it cannot do.” Id. 

“It is well established that arguments that are not appropriately developed in a 

party’s briefing may be deemed waived.” United States v. Great Am. Ins. Co., 738 F.3d 

1320, 1328 (Fed. Cir. 2013); see also Carducci, 714 F.2d at 177. Here, Sanhua fails to 

identify the relevant authority and apply the Chevron framework in analyzing the many 

competing policy issues implicated by this legal question. See Pl.’s Br. at 12-14. The court 

therefore deems this issue waived.2

 

2 The court notes that Plaintiff’s claim may also be subject to dismissal pursuant to Rule 

41(b)(4) for failure to comply with the Court’s Rules. 
Court No. 14-00007 Page 15 

III. Conclusion 

For the foregoing reasons, Sanhua’s motion for judgment on the agency record is 

denied. Judgment will be entered accordingly. 

 /s/ Leo M. Gordon 

Judge Leo M. Gordon 

Dated: April 24, 2015 

 New York, New York