Slip Op. No. 24-87 

UNITED STATES COURT OF INTERNATIONAL TRADE 

NAGASE & CO., LTD., 

Plaintiff,

v. 

UNITED STATES, 

 Defendant,

and

DEER PARK GLYCINE, LLC, 

Defendant-Intervenor.

 Before: Stephen Alexander Vaden, 

Judge 

 

 Court No. 1:21-cv-00574 (SAV) 

OPINION 

[Sustaining Commerce’s Remand Determination.] 

Dated: July 30, 2024 

Neil R. Ellis, Law Office of Neil Ellis PLLC, of Washington, DC, for Plaintiff 

Nagase & Co., Ltd. With him on the brief was Jay C. Campbell, White & Case 

LLP, of Washington, DC. 

Kelly M. Geddes, Trial Attorney, Commercial Litigation Branch, Civil Division, 

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

With her on the brief were Brian M. Boynton, Principal Deputy Assistant 

Attorney General, Patricia M. McCarthy, Director, Commercial Litigation 

Branch, Claudia Burke, Assistant Director, Commercial Litigation Branch, and 

Christopher Kimura, Attorney, Office of the Chief Counsel for Trade 

Enforcement and Compliance, U.S. Department of Commerce. 

Michelle Li, Thompson Hine LLP, of Washington, DC, for Defendant-Intervenor 

Deer Park Glycine, LLC. 
Court No. 1:21-cv-00574 (SAV) Page 2 

Vaden, Judge: Before the Court is the U.S. Department of Commerce’s 

(Commerce) remand determination in the first administrative review of the 

antidumping order on glycine from Japan, filed pursuant to the Court’s opinion in 

Nagase & Co. v. United States (Nagase I). See 47 CIT __, 628 F. Supp. 3d 1326 (2023). 

In Nagase I, the Court ordered Commerce to further explain its determination that a 

compensation for payment expense was properly treated as a general and 

administrative expense. The Court also held that, in the absence of a finding of legal 

error, it could not command Commerce to change its Final Results on remand to 

address an alleged error in Nagase’s assessment rate — an error that Nagase failed 

to timely raise. On remand, Commerce declined to revisit the assessment rate. 

Although no party contests Commerce’s remand determination on the compensation 

for payment expense, Nagase continues to challenge Commerce’s decision not to 

modify the assessment rate. For the following reasons, Commerce’s remand 

determination is SUSTAINED. 

BACKGROUND 

 The Court presumes familiarity with this case’s facts as described in its 

previous opinion. See Nagase I, 47 CIT __, 628 F. Supp. 3d at 1330–36. This opinion 

will recount those facts relevant to review of the Remand Results. On April 11, 2023, 

the Court issued its decision granting in-part and denying in-part Nagase’s Motion 

for Judgment on the Agency Record. Id. at 1330. Two issues from the prior opinion 

remain relevant in this remand determination. 

First, the Court held that Commerce incorrectly categorized a compensation 

for payment expense as a general and administrative expense and remanded the 
Court No. 1:21-cv-00574 (SAV) Page 3 

issue for further analysis and consideration. Id. at 1344. By statute, Commerce must 

determine whether a foreign producer is selling merchandise below the “cost of 

production.” Id. at 1337 (citing 19 U.S.C. §§ 1677b(b)(1), (3)). Commerce is directed 

to include “an amount for selling, general, and administrative expenses” when 

calculating the cost of production. Id. (citing 19 U.S.C. § 1677b(b)(3)(B)). Commerce 

usually “exclude[s] expenses related to the production of non-subject merchandise 

from its calculation of general and administrative expenses if the expenses are 

allocated properly in the producer’s ... books and records.” Id. at 1332. Nagase 

explained that a non-glycine customer paid it to produce a drug; but when Nagase’s 

facility failed an inspection, Nagase agreed to compensate the customer for the costs 

incurred and to dispose of any product already produced. Id. at 1333. Commerce 

determined that this compensation payment should be categorized as a general and 

administrative expense. Id. at 1341. The Court held that Commerce’s findings on 

the issue were “conclusory and were contradicted by record evidence” and remanded 

the issue for reconsideration. Final Results of Redetermination Pursuant to Ct. 

Remand Order (Remand Results) at 1–2, ECF No. 57 (citing Nagase I, 47 CIT __, 628 

F. Supp. 3d at 1342, 1344). 

Second, the Court sustained Commerce’s rejection of Nagase’s untimely 

request to change the assessment rate determination. Nagase I, 47 CIT __, 628 F. 

Supp. 3d at 1347. The request stemmed from Nagase’s claim that it submitted 

inaccurate entered value figures for its constructed export price sales.1 Id. at 1335 

1 The dumping margin and assessment rate are “the two most important numbers calculated 

in any antidumping review.” Nagase I, 47 CIT __, 628 F. Supp. 3d at 1331. The dumping 
Court No. 1:21-cv-00574 (SAV) Page 4 

(quoting Pl.’s Reply at 15, ECF No. 42) (“Nagase determined that ‘the per-unit 

amounts of regular U.S. duties paid on Nagase’s imports corresponding with 

[constructed export price] sales were inadvertently duplicated and reported as the 

entered values for those sales.’”). Although the calculation never changed from the 

publication of the Preliminary Results, Nagase did not seek a correction until 

nineteen days after Commerce published the Final Results — well after the five-day 

window for ministerial error allegations had closed. Id.

 The Court determined that Commerce did not abuse its discretion in denying 

Nagase’s untimely request to correct the claimed error. See id. at 1347. It also 

rejected Nagase’s proffered work-around methodologies, which Nagase claimed 

Commerce could use to derive a more accurate entered value figure –– despite that 

figure’s absence from the record. Id. at 1346 (“The record does not contain the target 

at which Commerce should be aiming, and this Court is limited to facts on the record 

when it reviews Commerce’s determinations.”). Although the Court lacked a “freefloating power to command Commerce to alter its Final Results on remand without a 

margin is “‘the total amount by which the price charged for the subject merchandise in the 

home market (the “normal value”) exceeds the price charged in the United States[.]’” Id. 

(quoting Koyo Seiko Co. v. United States, 258 F.3d 1340, 1342 (Fed. Cir. 2001)). It “applies 

prospectively to future [subject merchandise] entries[,] ... which [are] cover[ed] with cash 

deposits ... until the completion of the next administrative review.” Id. 

When Nagase brings subject merchandise into the United States, it lists the declared value 

for the merchandise at entry –– the “entered value” –– at a value typically lower than for 

what the merchandise is later sold. Id. at 1331–32. As a result, “applying the dumping 

margin rate to the declared ‘entered value’ would result in the under-collection of duties.” Id. 

at 1332. To address this problem, Commerce calculates an assessment rate by dividing the 

dumping margin by the entered value and “applies the resulting rate ‘uniformly on all entries 

each importer made during the [period of review].’” Id. (quoting Koyo Seiko, 258 F.3d at 

1343). Entered value is thus an important factor in the assessment rate’s calculation and 

the determination of what antidumping duties are due. 
Court No. 1:21-cv-00574 (SAV) Page 5 

finding of legal error,” Nagase could continue to request that Commerce correct the 

assessment rate as “Commerce retains the discretionary power to do so until after 

judicial review is completed.” Id. at 1347 (citing Dorbest Ltd. v. United States, 604 

F.3d 1363, 1376 (Fed. Cir. 2010); In re Clean Water Act Rulemaking, 60 F.4th 583, 

594 (9th Cir. 2023)). 

 On remand, Nagase filed a letter requesting that Commerce revise the 

assessment rate to exclude the allegedly inaccurate entered value data. See generally 

Nagase Letter to Commerce (June 8, 2023), J.A. at 3,093, ECF No. 66. Nagase 

proposed three possible pathways to do so. Commerce could: (1) permit Nagase to 

report accurate entered value sales; (2) “reverse engineer” accurate values by dividing 

the reported constructed export price entered values by the U.S. duty; or (3) 

recalculate the constructed export price assessment rate as a per-unit (weight-based) 

rate rather than an ad valorem rate.2 Id. at 2–3. As with the initial proceedings, at 

no point during the remand did Nagase proffer or place on the record what it alleges 

2 “Commerce ‘normally will calculate the assessment rate by dividing the dumping margin 

found on the subject merchandise examined by the entered value of such merchandise for 

normal customs duty purposes.’ Thus, the normal method as prescribed by the regulation 

results in an ad valorem assessment rate.” Albemarle Corp. v. United States, 37 CIT 1202, 

1218 (2013) (quoting 19 C.F.R. § 351.212(b)(1)), aff’d in part, rev’d in part, 821 F.3d 1345, 

1359 (Fed. Cir. 2016). Under some circumstances, Commerce may calculate the assessment 

rate on a per-unit basis, which would state the margin as dollars per kilogram. Id; see also 

Pl.’s Comments in Partial Opp’n to Remand Redetermination (Pl.’s Br.) at 8, ECF No. 59 

(quoting 1-Hydroxyethylidene-1, 1-Diphosphonic Acid from the People’s Republic of China, 84 

Fed. Reg. 67,925 (Dep’t of Com. Dec. 12, 2019), accompanying Issues and Decisions 

Memorandum at Comment 5) (“Commerce has also stated that its ‘normal practice [is] to use 

a per-unit assessment rate when the entered value is unknown and to use an ad valorem

assessment rate when the entered value is known.’”). Under Nagase’s approach, “This 

calculation would use the [potential uncollected dumping duties] in the numerator and the 

total weight in kilograms of [Nagase’s constructed export price] sales during the [period of 

review] as the denominator, to derive a per-kg figure” –– thereby avoiding use of the entered 

value information. Nagase Letter to Commerce at 3, J.A. at 3,095, ECF No. 66. 
Court No. 1:21-cv-00574 (SAV) Page 6 

is the actual entered value amount. Oral Arg. Tr. at 8:16–19, ECF No. 73. The Court 

and Commerce remain ignorant of that amount to this day. 

The Defendant-Intervenor opposed Nagase’s request but otherwise did not file 

a brief.3 See Deer Park Letter to Commerce (June 13, 2023), J.A. at 3,098, ECF No. 

66. In the original court proceedings, Deer Park opposed Nagase’s alternative means 

to derive the correct entered value figure. Nagase I, 47 CIT __, 628 F. Supp. 3d at 

1346; Def.-Int.’s Resp. to Pl.’s Mot. for J. on Agency R. (Def.-Int.’s Br.) at 29–30, ECF 

No. 39; Nagase I Oral Arg. Tr. at 76:7–13, ECF No. 54. 

Commerce published its Draft Results on July 14, 2023. Draft Results of 

Redetermination Pursuant to Ct. Remand Order (July 14, 2023) at 12, J.A. at 3,116, 

ECF No. 66. It filed the Remand Results with the Court on August 9, 2023. See 

generally Remand Results, ECF No. 57. Nagase’s dumping margin declined from 

27.71 percent in the original review to 15.93 percent following remand. Compare id.

at 23, with Glycine from Japan: Final Results of the Antidumping Administrative 

Review; 2018-2020; Correction, 86 Fed. Reg. 57,127 (Dep’t of Com. Oct. 14, 2021). The 

agency explained its decision to remove the compensation for payment expense from 

the general and administrative expense ratio, the resulting recalculated ratio, and its 

denial of Nagase’s request to revise the assessment rate. See generally Remand 

Results, ECF No. 57. Commerce stated that, on remand, it collected more information 

from Nagase via supplemental questionnaires regarding the compensation for 

3 During the remand, Defendant-Intervenor GEO Specialty Chemicals, Inc. transferred all 

“rights, title, and interest in and to its glycine business” to Deer Park Glycine, LLC (Deer 

Park or Defendant-Intervenor). Def.-Int.’s Mot. to Amend Caption at 1, ECF No. 68. The 

Court amended the caption to reflect this change. ECF No. 70. 
Court No. 1:21-cv-00574 (SAV) Page 7 

payment issue. Id. at 6–8. Commerce also clarified that it does not use 

manufacturing costs related to a particular product in its general and administrative 

expense calculation. Id. at 9. It determined, “Record evidence indicates that the 

compensation for payment expense relates to a production process or manufacturing 

cost that does not involve glycine and that [Nagase] continues to produce other 

subcontracted non-glycine products.” Id. Commerce therefore removed the 

compensation for payment expense and recalculated Nagase’s general and 

administrative expense ratio. Id. at 9–10. 

In its brief to this Court, Nagase states that Commerce made two more 

calculations to effectuate its changes to the general and administrative expense ratio. 

See Pl.’s Comments in Partial Opp’n to Remand Redetermination at 2, ECF No. 59 

(Pl.’s Br.) (citing Margin Calculation Output (July 14, 2023) at 97, J.A. at 103,445, 

ECF No. 64). First, Commerce recalculated the amount of antidumping duties owed. 

Id. Second, Commerce recalculated Nagase’s assessment rate based on the 

constructed export price sales for which it was the importer of record. Id. Commerce 

recalculated Nagase’s assessment rate by dividing the now-corrected amount of 

antidumping duties owed by the total entered value of the constructed export price 

sales for which Nagase was the importer of record –– the latter still reflecting the 

data Nagase originally submitted. Id. 

Commerce addressed its decision not to further revisit the assessment rate. 

Remand Results at 10–23, ECF No. 57. It noted that Commerce’s assessment rate 

calculation relied on data Nagase submitted and that Nagase did not seek to update 
Court No. 1:21-cv-00574 (SAV) Page 8 

the data in a timely manner. Id. at 10. Commerce also noted that Deer Park did not 

agree that Nagase’s alternative methodology would correct the alleged error –– 

especially since the “correct” entered value figure is unknown. Id. Citing the Federal 

Circuit’s Alloy Piping decision, Commerce described the question as “whether it 

would be appropriate to disturb the administrative finality of an issue ... arising from 

Commerce’s reliance [on Nagase’s] reported data.” See id. at 10–11; see also Alloy 

Piping Prods., Inc. v. Kanzen Tetsu Sdn. Bhd., 334 F.3d 1284, 1292–93 (Fed. Cir. 

2003). Commerce found that Nagase failed to cite “any ... remand determinations in 

which Commerce made a correction for an issue that the Court did not remand.” 

Remand Results at 11, ECF No. 57. 

With respect to Nagase’s proposal to use a per-unit methodology, Commerce 

explained that its normal practice is to use the ad valorem methodology when a 

respondent provides entered value data. Id. at 15; see also 19 C.F.R. § 351.212(b)(1) 

(“The Secretary normally will calculate the assessment rate by dividing the dumping 

margin ... by the entered value of such merchandise for normal customs duty 

purposes.”). Commerce also found that it was unclear that Nagase’s alternative 

methodology would work because “the ‘record does not contain a target at which 

Commerce should be aiming’” and “‘the other interested parties do not accede to 

Nagase’s understanding of the correct entered value total or to Commerce’s use of 

nonstandard means to derive it.’” Remand Results at 18, ECF No. 57 (quoting Nagase 

I, 47 CIT __, 628 F. Supp. 3d at 1346); see also Nagase I, 47 CIT __, 628 F. Supp. 3d 

at 1346 n.7 (quoting Pl.’s Mot. for J. on Agency R. and Supp. Opening Br. (Pl.’s Mot. 
Court No. 1:21-cv-00574 (SAV) Page 9 

Br.) at 37, ECF No. 34) (“Nagase, applying its alternative methodology, describes the 

resulting rate as ‘a far more realistic figure’ but noticeably does not call it the correct 

figure.”). Although Commerce found that it had some discretion to depart from its 

normal methodology, it believed that Nagase should have submitted any updated 

data during the administrative review. Remand Results at 15–17, ECF No. 57. 

Nagase supports Commerce’s excluding the compensation for payment expense 

from the general and administrative expense ratio. Id. at 12; Pl.’s Br. at 1, ECF No. 

59. However, Nagase continues to press the Court to order Commerce not to use the 

data Nagase submitted in its recalculation. Remand Results at 12–13, ECF No. 57; 

Pl.’s Br. at 1, ECF No. 59. To distinguish Nagase I’s timeliness, exhaustion, and 

finality considerations, Nagase advances three arguments for why the “circumstances 

surrounding Commerce’s recalculation of [Nagase’s] assessment rate ... differed 

fundamentally from the circumstances during the underlying annual review.” Pl.’s 

Br. at 1, ECF No. 59. Nagase first argues that Commerce knowingly used the 

incorrect entered value data when implementing the Court’s remand. Id. at 3–6. 

Because the Court reviews the Remand Results for substantial evidence, the 

recalculation created a new opportunity to review the assessment rate issue and 

Nagase’s otherwise untimely claim. Id. Nagase believes that the Court should 

remand the case “to recalculate an assessment rate ... that is not based on 

information known to be incorrect.” Id. at 1. It next proposes that Commerce could 

use information on the record to calculate the assessment rate using a per-unit 

(weight-based) methodology instead of an ad valorem methodology –– thereby 
Court No. 1:21-cv-00574 (SAV) Page 10 

overcoming the finality concerns by avoiding the “inaccurate” data without reopening 

the record. Id. at 6. Nagase’s final argument is that Commerce’s response to Nagase’s 

request to revise the assessment rate during the remand is subject to judicial review 

so that prior finality or timeliness concerns are no longer relevant. Oral Arg. Tr. at 

12:9–14, ECF No. 73 (The Court: “[B]ecause [Commerce] chose to expound on further 

reasons why they thought it was not appropriate for them to exercise their discretion 

and review this issue[,] ... that makes their methodology and the rationales ... a fresh 

issue for review by me?” Mr. Ellis: “Yes, correct, Your Honor.”). 

Commerce responds that it complied with the Court’s remand order to 

reexamine the compensation for payment expense and that its redetermination is 

supported by substantial evidence. Def.’s Resp. in Supp. of Remand Results (Def.’s 

Br.) at 4–5, ECF No. 63. It also argues that it correctly declined Nagase’s entreaties 

to revise the assessment rate. Id. at 5–9. Unlike Nagase, Commerce views the 

remand as necessarily tied to the original determination. Therefore, Nagase’s failure 

to raise timely concerns about the assessment rate during the original proceedings 

pretermits the Court’s ability to issue any order regarding the calculation now. Id. 

at 6 (“[Commerce] concluded that the interest in finality outweighed the interest in 

ensuring accuracy where the party responsible for the error had failed to take 

advantage of multiple opportunities to raise the issue before the results became 

final.”). Citing Federal Circuit precedent, Commerce argues that the Court’s remand 

on an unrelated issue is not a “vehicle for circumventing exhaustion requirements.” 

Id. at 6–7 (citing Alloy Piping, 334 F. 3d at 1292–93; QVD Food Co. v. United States, 
Court No. 1:21-cv-00574 (SAV) Page 11 

658 F.3d 1318, 1328 (Fed. Cir. 2011); Dorbest, 604 F.3d at 1363). The agency found 

that it would be inappropriate to use Nagase’s alternative methodologies because the 

correct entered value “target” is not on the record, Commerce and Deer Park oppose 

using “nonstandard means” to derive it, and Commerce’s preference is to use a 

respondent’s entered value data when it is provided. Id. at 9 (quoting Nagase I, 47 

CIT __, 628 F. Supp. 3d at 1346). 

The Court held oral argument on February 16, 2024. ECF No. 71. No party 

objected to Commerce’s new determination on the compensation for payment issue. 

Oral Arg. Tr. at 6:10–18, 40:19–24, ECF No. 73. The parties disagreed about the 

assessment rate. Nagase emphasized that the remand created a new determination 

for the Court to review and the circumstances favored ordering Commerce to 

reconsider it. Id. at 12:5–14, 12:25–13:7. Commerce and Deer Park emphasized the 

need for finality, that the Court sustained and did not remand the assessment rate 

issue, and that the parties never conceded that Nagase’s entered value data was 

incorrect because there was no merits determination on the issue. Id. at 6:25–7:3, 

22:6–13, 35:14–19, 39:23–40:6. 

JURISDICTION AND STANDARD OF REVIEW 

 As in Nagase I, the Court has jurisdiction over Nagase’s challenge under 19 

U.S.C. § 1516a(a)(2)(B)(i) and 28 U.S.C. § 1581(c), which grant the Court authority to 

review actions contesting final determinations in antidumping reviews. The Court 

must sustain Commerce’s “determination[s], finding[s], or conclusion[s]” 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). “[T]he question is not whether 
Court No. 1:21-cv-00574 (SAV) Page 12 

the Court would have reached the same decision on the same record[;] rather, it is 

whether the administrative record as a whole permits Commerce’s conclusion.” New 

Am. Keg v. United States, 45 CIT __, No. 20-00008, 2021 Ct. Intl. Trade LEXIS 34, at 

*15 (Mar. 21, 2021). Additionally, “The results of a redetermination pursuant to court 

remand are also reviewed ‘for compliance with the court’s remand order.’” Xinjiamei 

Furniture (Zhangzhou) Co. v. United States, 38 CIT 189, 190 (2014) (quoting 

Nakornthai Strip Mill Pub. Co. v. United States, 32 CIT 1272, 1274 (2008)). 

DISCUSSION 

I. Summary 

The Court remanded the issue of whether Nagase’s compensation for payment 

expense should have been included in Commerce’s calculation of the general and 

administrative expense ratio. Commerce determined on remand that the 

compensation for payment expense should be removed from Nagase’s ratio and 

performed the recalculations needed to effectuate that change. Because the remand 

determination is supported by substantial evidence and no party objects, the Court 

sustains the Remand Results. 

The Court did not order Commerce to reconsider the assessment rate; but it 

noted, “Commerce retains discretionary power to do so until after judicial review” 

concludes. Nagase I, 47 CIT __, 628 F. Supp. 3d at 1347 (citing Dorbest, 604 F.3d at 

1376). Despite Nagase’s request on remand, Commerce declined to alter the entered 

value used in determining the assessment rate. Commerce calculated the assessment 

rate using the information Nagase put on the record; there is no allegation of any 
Court No. 1:21-cv-00574 (SAV) Page 13 

mathematical error. Because Nagase failed to raise any objection during the 

administrative review to Commerce’s calculations, it may not do so now. That this 

Court remanded the review to Commerce to address an unrelated argument does not 

save Nagase from its procedural default. A remand is not a new wellspring for issues 

already forfeited. Commerce’s Remand Results will be SUSTAINED. 

II. Compensation for Payment 

The first issue is whether Commerce complied with the Court’s order to 

reconsider the compensation for payment expense. On remand, Commerce solicited 

more information on the expense from Nagase via supplemental questionnaires. 

Remand Results at 7, ECF No. 57. After reviewing the new evidence, Commerce 

reversed its original position. It wrote, “While Commerce initially considered the 

compensation for payment similar to litigation or settlement claims, upon 

reexamination, we find that the amount represents the reimbursement of certain of 

the consignee’s expenses incurred for the production of non-subject merchandise.” Id. 

at 8. Because Nagase continues to produce custom non-glycine products, the cost of 

the compensation for payment expense can be offset by that continuing line of 

business. Therefore, the compensation for payment expense should not be included 

in the general and administrative expenses for Commerce’s calculations in this 

review. See Oral Arg. Tr. at 5:25–6:15, ECF No. 73 (summarizing Commerce’s actions 

on remand); Remand Results at 9, ECF No. 57 (“Record evidence indicates that the 

compensation for payment expense relates to a production process or manufacturing 
Court No. 1:21-cv-00574 (SAV) Page 14 

cost that does not involve glycine and that [Nagase] continues to produce other 

subcontracted non-glycine products.”). 

Nagase supports Commerce’s remand determination on this issue, and Deer 

Park does not object. Oral Arg. Tr. at 6:10–18, ECF No. 73 (The Court: “[D]o I 

understand that there is no objection by any party to the Commerce Department’s 

new determination on the compensation for payment issue?” Ms. Geddes: “You have 

that information correct, Your Honor.” Mr. Ellis: “And you’re correct, Your Honor, 

that there is no objection or remaining issue regarding that topic.”); id. at 40:19–24 

(The Court: “I did not hear that you had any objection ... on behalf of your client, 

Deer Park Glycine ... to Commerce’s redetermination with regard to the 

compensation for payment expense; is that correct ...?” Ms. Li: “No objection; that’s 

correct.”). Commerce complied with the Court’s remand order to reexamine its 

determination regarding the compensation for payment expense, and no party objects 

to the agency’s new determination. The Court finds that Commerce’s Remand 

Results are supported by substantial evidence and are therefore SUSTAINED. 

III. Recalculation of the Assessment Rate 

The Court next turns to the issue not remanded: Nagase’s objection to the 

assessment rate. Nagase argues that the Court should remand this case for 

Commerce to use one of Nagase’s proffered solutions to change the assessment rate 

— either reopening the record for Commerce to accept “corrected” entered value data 

or “reverse engineer[ing]” the numbers from information already on the record. See 

Nagase Letter to Commerce at 3, J.A. at 3,095, ECF No. 66; see also Pl.’s Br. at 6, 
Court No. 1:21-cv-00574 (SAV) Page 15 

ECF No. 59. Nagase maintains that “[t]he circumstances surrounding ... the remand 

differed fundamentally from ... the underlying ... review.” Pl.’s Br. at 1, ECF No. 59. 

The core of Nagase’s argument is that, regardless of its procedural default, the 

remand created a new determination for judicial review when Commerce (1) 

recalculated the general and administrative expense ratio, knowing that one of the 

recalculation inputs involved the questioned data and (2) explained in the Remand 

Results its decision not to exercise its discretion to alter the data. See id. at 2, ECF 

No. 59 (“Commerce [when recalculating Nagase’s assessment rate] knew that this 

entered value was incorrect and, therefore, likewise knew that the resulting 

assessment rate for [Nagase] ... was incorrect.”). Nagase essentially argues that the 

remand revived Nagase’s defaulted objection. 

From Commerce’s perspective, the Court remanded on a separate issue; and it 

would be inappropriate to reconsider the assessment rate after the Court found no 

legal error on the initial review. Remand Results at 15–16, ECF No. 57; Def.’s Br. at 

5, ECF No. 63 (citing Nagase I, 47 CIT __, 628 F. Supp. 3d at 1344–47). Commerce 

opposes Nagase’s solutions –– reopening the record or using a per-unit assessment 

rate –– because doing so undermines the principle of finality and deviates from 

Commerce’s standard methodology. Def.’s Br. at 8–9, ECF No. 63; see also Oral Arg. 

Tr. at 35:21–25, ECF No. 73 (“The question was should we ... reopen a closed issue 

that was not remanded based on an allegation that isn’t in the record and that would 

require us to collect new information or to deviate from our standard methodology.”). 
Court No. 1:21-cv-00574 (SAV) Page 16 

The Court remains unconvinced that the remand eliminated the consequences 

of Nagase’s procedural default. This Court may not use non-record information in its 

review, and Nagase has consistently refused to provide either Commerce or this Court 

with what it believes the “correct” entered value amount is. See Oral Arg. Tr. at 8:16–

19, ECF No. 73. Because Nagase provided the only entered value amount on the 

record, the record it built does not demonstrate error. Nagase’s arguments are also 

at odds with Federal Circuit precedent. See, e.g., Dorbest, 604 F.3d at 1377. The 

Court will SUSTAIN Commerce’s remand determination against Nagase’s 

remaining objections. 

A. 

It is important to note the Court’s limited role in reviewing Commerce’s 

determinations. The Court is not at liberty to conduct independent factfinding to 

sustain or overturn Commerce’s final decisions in antidumping reviews. Cf. Nippon 

Steel Corp. v. Int’l Trade Comm’n, 345 F.3d 1379, 1381 (Fed. Cir. 2003) (“[T]o the 

extent the [CIT] engaged in refinding the facts (e.g., by determining witness 

credibility), or interposing its own determinations ... [it] exceeded its authority.”). 

Instead, federal statute limits the Court to review of the record created by the parties 

before the agency. See 19 U.S.C. § 1516a(b)(2)(A) (defining scope of record for review 

in proceedings before the CIT); QVD Food, 658 F.3d at 1324–25 (quoting S. Rep. No. 

96-249, at 247–48 (1979)) (“[J]udicial review of antidumping proceedings is based on 

‘information before the relevant decision-maker at the time the decision was 

rendered[.]’”). The parties bear the burden to create that record. Qingdao Sea-Line 
Court No. 1:21-cv-00574 (SAV) Page 17 

Trading Co. v. United States, 766 F.3d 1378, 1386 (Fed. Cir. 2014). Should that 

record turn out to be inadequate, the parties also bear the costs of their failure to put 

necessary information on the record. Navneet Educ. Ltd. v. United States, 47 CIT __, 

2023 Ct. Intl. Trade LEXIS 194, at *35 (Dec. 29, 2023) (declining to adjudicate a claim 

where the plaintiff “unfortunately did not place any such evidence on the record ....”). 

Commerce requested that Nagase provide the entered value for all the glycine 

it exported to the United States during the period of review. Nagase Initial 

Questionnaire, J.A. at 1,312, ECF No. 45. Nagase provided a dollar figure for that 

amount. Pl.’s Mot. Br. at 5, 14, ECF No. 34 (identifying the entered value provided); 

Remand Results at 21, ECF No. 57 (“[Nagase] reported entered value and, thus, the 

entered value is on the record.”). Commerce used the figure Nagase provided to 

calculate the resulting assessment rate and the additional duties Nagase owed. 

Nagase I, 47 CIT __, 628 F. Supp. 3d at 1335. There is no dispute that Commerce’s 

mathematical calculations — both in its original determination and on remand — are 

correct. Remand Results at 17, ECF No. 57 (“[Nagase has] alleged no such error in 

Commerce’s programming or in Commerce’s calculation methodology used to 

calculate its assessment rate.”). Nagase objects that it provided an inaccurate 

amount for the entered value and that it will pay a substantial amount in excess 

duties that it should not owe. Nagase Letter to Commerce at 2, J.A. at 3,094, ECF 

No. 66. Its problem is that there is no other figure on the record reflecting an 

alternative amount for the entered value of the glycine it exported to the United 

States. Indeed, Nagase has conspicuously declined to provide either Commerce or 
Court No. 1:21-cv-00574 (SAV) Page 18 

the Court with what it claims is the “correct” entered value amount. See Oral Arg. 

Tr. at 8:16–19, ECF No. 73 (The Court: “[T]here is no proffered actual value for what 

the ‘correct’ entered value is anywhere; that number has never been disclosed.” Mr. 

Ellis: “That’s correct.”). Because (1) the Court is limited to reviewing the record that 

was before the agency, (2) Commerce used the entered value Nagase provided, and 

(3) there is no mathematical error in Commerce’s calculations using that amount, 

there is no error on the record. Nagase cannot object that Commerce chose to use the 

value it provided. Cf. ABB Inc. v. United States, 42 CIT __, 355 F. Supp. 3d 1206, 

1222 (2018) (“When a respondent provides seemingly complete, albeit completely 

inaccurate, information, [the law] does not require Commerce to issue a supplemental 

questionnaire seeking assurances that the initial response was complete and 

accurate. In other words, Commerce is not obligated to issue a supplemental 

questionnaire to the effect of, ‘Are you sure?’”). Any information a party places on the 

record may be used by Commerce in its determination. Navneet, 47 CIT __, 2023 Ct. 

Intl. Trade LEXIS 194, at *27 (declining plaintiff’s entreaties to order Commerce to 

ignore evidence it placed on the record); Cheng Shin Rubber Ind. Co. v. United States, 

47 CIT ___, 2023 Ct. Intl. Trade LEXIS 19, at *29 (Feb. 13, 2023) (same). Commerce 

cannot be held responsible for Nagase’s failure to create a perfect record. Qingdao 

Sea-Line, 766 F.3d at 1386 (“The burden of creating an adequate record lies with the 

interested parties, not with Commerce.”).

To compound matters, Nagase never objected to Commerce’s calculations — 

using the figure Nagase provided — during the entire pendency of the original 
Court No. 1:21-cv-00574 (SAV) Page 19 

administrative review. Nagase I, 47 CIT __, 628 F. Supp. 3d at 1344. Nagase waited 

until weeks after the publication of the Final Results before alleging it had provided 

inaccurate information. Id. at 1335. But even if Nagase had timely proffered an 

objection during the ministerial error period following publication of the Final 

Results, its objection still would have been untimely. QVD Food, 658 F.3d at 1328 

(holding that a party may not raise in a ministerial error allegation an objection that 

could have been made following the publication of the preliminary results). 

Commerce never wavered in its use of the data Nagase provided. The assessment 

rate Commerce calculated in its original determination was the same one it had 

published in its Preliminary Results. Compare Prelim. Margin Calculation Output, 

J.A. at 102,781, ECF No. 44, with Final Margin Calculation Output, J.A. at 103,299, 

ECF No. 44. Commerce’s regulations have long provided that, following the 

Preliminary Results’ publication, parties must submit a case brief to the agency 

containing “all arguments that continue in the submitter’s view to be relevant to the 

Secretary’s final determination[.]” 19 C.F.R. § 351.309(c)(2); see also Oral Arg. Tr. at 

16:10–15, ECF No. 73 (The Court: “[T]his allegation is untimely in the extreme. It’s 

actually not that you missed it by two weeks, you missed it by a matter of months.” 

Mr. Ellis: “That’s correct.” The Court: “It wasn’t close.” Mr. Ellis: “That’s correct.”). 

Nagase submitted such a brief, but it did not object to Commerce’s calculation of the 

assessment rate. See Nagase Admin. Case Br., J.A. at 102,799, ECF No. 44; Nagase 

Admin. Rebuttal Br., J.A. at 102,839, ECF No. 44. It was at that point Nagase 

relinquished its right to object to the data Commerce used. QVD Food, 658 F.3d at 
Court No. 1:21-cv-00574 (SAV) Page 20 

1328. Nagase’s failure to file a ministerial error allegation following publication of 

the Final Results was just the cherry on top of Nagase’s forfeiture sundae. 

Precedent is straightforward. “Neither this Court nor the Court of Appeals for 

the Federal Circuit has ever found an abuse of discretion where Commerce has 

declined to correct a ministerial error that was detectable during the original 

proceedings but was not raised until after publication of the final results and the 

closure of the five-day window for ministerial error comments.” Nagase I, 47 CIT __, 

628 F. Supp. 3d at 1345 (citing Dorbest, 604 F.3d at 1377). Commerce’s remand 

determination does not change this rule. Having previously forfeited its objection 

and with no new evidence regarding the entered value amount on the record, there is 

nothing to raise now. “The remand after th[e] first appeal was on one very narrow 

ground, and that ground is all that remains to be litigated in this subsequent appeal.” 

Vivint v. Alarm.com Inc., 856 F. App’x 300, 304 (Fed. Cir. 2021); see also NEXTEEL 

Co. v. United States, 44 CIT __, 461 F. Supp. 3d 1336, 1343–46 (2020) (declining to 

consider arguments that could have been raised during proceedings in front of 

Commerce but were not). 

Although Commerce may have the power to offer Nagase an opportunity to 

revise its data as a matter of grace following publication of the Final Results, it is not 

legally obligated to do so. Compare Dorbest, 604 F.3d at 1376–77 (holding that, 

although Commerce has the discretion to correct an alleged error until judicial review 

concludes, a court may not force it to do so once the ministerial error allegation period 

closes), with ATC Tires Priv. Ltd. v. United States, 42 CIT __, 324 F. Supp. 3d 1355, 
Court No. 1:21-cv-00574 (SAV) Page 21 

1363 (2018) (affirming Commerce’s discretionary decision to sua sponte correct a 

ministerial error without a formal error allegation). Even where an alleged error “is 

apparent (or should have been apparent) from the face of the calculation or from the 

final determination itself,” Nagase is still “required to exhaust its administrative 

remedies.” Alloy Piping, 334 F.3d at 1292–93. The Court’s role is circumscribed by 

Federal Circuit precedent and limited to the record that Nagase built with its 

submissions. It is undisputed Nagase failed to raise an objection during the time 

allotted by regulation. That ends the matter. 

B.

Nagase’s final effort to gain a remand is its argument that there are alternative 

methodologies that could divine a more accurate assessment rate. Pl.’s Br. at 6, ECF 

No. 59. This argument misses the mark for similar reasons. First, there is only one 

entered value on the record of this case. Pl.’s Mot. Br. at 5, 14, ECF No. 34; Remand 

Results at 21, ECF No. 57 (“[Nagase] reported entered value and, thus, the entered 

value is on the record.”). It is also undisputed that Commerce used its normal 

methodology in calculating the assessment rate. See Pl.’s Br. at 8, ECF No. 59; see 

also Remand Results at 22, ECF No. 57. Because the parties agree that Commerce 

correctly performed its calculations using the data the parties provided to it, there is 

no “wrong” information present on the record for which a workaround is necessary. 

Cf. Alloy Piping Prods., Inc. v. United States, 26 CIT 330, 352 (2002), aff’d sub nom. 

Alloy Piping Prods., Inc. v. Kanzen Tetsu Sdn. Bhd., 334 F.3d 1284 (Fed. Cir. 2003) 
Court No. 1:21-cv-00574 (SAV) Page 22 

(“Procedures exist allowing respondents to correct submitted data. Kanzen’s failure 

to follow those procedures in this case is fatal to its position.”). 

Second, there is no objective way to tell how much more “accurate” Nagase’s 

proposed methodologies are because Nagase has not disclosed what the “correct” 

entered value is. See Oral Arg. Tr. at 8:16–19, ECF No. 73. Without knowing what 

the target is at which Commerce is aiming, it is impossible to determine how much 

“closer” we are. All Commerce has is Nagase’s assertion that the amount should be 

much less than Commerce’s determination. Nagase I, 47 CIT __, 628 F. Supp. 3d at 

1346 (“The record does not contain the target at which Commerce should be aiming, 

and this Court is limited to facts on the record when it reviews Commerce’s 

determinations.”); id. at 1346 n.7 (quoting Pl.’s Mot. Br. at 37, ECF No. 34) (“Nagase, 

applying its alternative methodology, describes the resulting rate as ‘a far more 

realistic figure’ but noticeably does not call it the correct figure.”).

Third, Nagase has similarly forfeited its arguments regarding any workaround 

methodologies by failing to raise them before the agency. Navneet, 47 CIT __, 2023 

Ct. Intl. Trade LEXIS 194, at *42 (citing Rhone Poulenc, Inc. v. United States, 899 

F.2d 1185, 1191 (Fed. Cir. 1990)) (“As the Federal Circuit has explained, when a party 

fails to raise a particular argument before the agency, that argument is forfeited.”). 

Because Nagase failed to allege any error in the assessment rate during the 

administrative review, Commerce had no occasion to opine in its final decision about 

whether Nagase’s proposals are possible. Remand Results at 17, ECF No. 57 (“[A]ny 

alleged reporting error should have been discovered and raised by Nagase during the 
Court No. 1:21-cv-00574 (SAV) Page 23 

administrative review.”); see also Oral Arg. Tr. at 27:24–28:2, ECF No. 73 (Ms. 

Geddes: “Commerce reasonably found [using Nagase’s alternative methodology] was 

inappropriate ... when the information on the record was not clear as to why [using 

Commerce’s] standard methodology, relying on the entered values, would be 

incorrect.”). 

Deer Park Glycine alleges Nagase’s proposal would generate inaccurate 

results, and it has consistently objected to Nagase’s alternative methodologies since 

Nagase first raised them in this Court. Nagase I, 47 CIT __, 628 F. Supp. 3d at 1346;

Def.-Int.’s Br. at 29–30, ECF No. 39; Nagase I Oral Arg. Tr. at 76:7–13, ECF No. 54. 

Nagase’s procedural default prevents the Court from having the benefit of 

Commerce’s judgment in reviewing the proposed alternative calculations. See 

McCarthy v. Madigan, 503 U.S. 140, 145 (1992) (noting that “agencies, not the courts, 

ought to have primary responsibility for [their] programs” such that allowing the 

agency to first provide its views “promotes judicial efficiency” by “produc[ing] a useful 

record for subsequent judicial consideration”); Assan Aluminyum Sanayi ve Ticaret 

A.S. v. United States, 48 CIT __, 2024 Ct. Intl. Trade LEXIS 55, at *27 (May 8, 2024) 

(“Allowing agencies to address issues first promotes accuracy and judicial economy.”). 

There is no agency record on this issue for the Court to review. Ellwood City Forge 

Co. v. United States, 46 CIT __, 582 F. Supp. 3d 1259, 1276 (2022) (citing Itochu Bldg. 

Prods. v. United States, 733 F.3d 1140, 1145 (Fed. Cir. 2013)) (“Exhaustion applies 

when it serves a ‘practical purpose’ — that of giving notice to the agency so that it 

may be the initial decision maker and create a record for subsequent judicial 
Court No. 1:21-cv-00574 (SAV) Page 24 

/s/ Stephen Alexander Vaden

review.”); see also Qingdao Sea-Line, 766 F.3d at 1386 (“The burden of creating an 

adequate record lies with the interested parties, not with Commerce.”). The Court 

declines Nagase’s invitation to usurp the agency’s role and rule on Nagase’s proposal 

in the first instance. 

CONCLUSION 

 Commerce’s Remand Determination complies with the Court’s prior order and 

is supported by substantial evidence. No party objects to Commerce’s removal of the 

compensation for payment expense from the general and administrative expense 

ratio. Although Nagase seeks to relitigate whether Commerce properly calculated 

the assessment rate, this Court is limited in its review to the record Nagase built and 

remains powerless to order Commerce to consider Nagase’s procedurally defaulted 

claims. Commerce accurately performed the necessary mathematical calculations 

using the information supplied by the parties. That Nagase now regrets the 

information it placed on the record is not grounds to excuse it from complying with 

the rules of administrative exhaustion and Federal Circuit precedent. Commerce’s 

Remand Determination is therefore SUSTAINED. 

 

 Stephen Alexander Vaden, Judge 

Dated: July 30, 2024 

 New York, New York