Slip Op. 14-
UNITED STATES COURT OF INTERNATIONAL TRADE
DONGGUAN SUNRISE FURNITURE CO.,
LTD., TAICANG SUNRISE WOOD
INDUSTRY CO., LTD., TAICANG
FAIRMONT DESIGNS FURNITURE CO.,
LTD., and MEIZHOU SUNRISE
FURNITURE CO., LTD.,
Plaintiffs,
LONGRANGE FURNITURE CO., LTD.,
Consolidated Plaintiff,
COASTER COMPANY OF AMERICA and
LANGFANG TIANCHENG FURNITURE
CO., LTD.,
Plaintiff-Intervenors,
v. Before: Jane A. Restani, Judge
UNITED STATES, Consol. Court No. 10-00254
Defendant,
AMERICAN FURNITURE
MANUFACTURERS COMMITTEE FOR
LEGAL TRADE and VAUGHAN-BASSETT
FURNITURE COMPANY, INC.,
Defendant-Intervenors.
OPINION
[Defendant-Intervenors’ motion for reconsideration in antidumping duty matter denied.]
Dated: October , 2014
Peter J. Koenig, Squire Patton Boggs (US) LLP, of Washington, DC, for plaintiffs.
Consol. Court No. 10-00254 Page 2
Lizbeth R. Levinson and Ronald M. Wisla, Kutak Rock LLP, of Washington, DC, for
consolidated plaintiff.
Kristin H. Mowry, Jeffrey S. Grimson, Jill A. Cramer, Sarah M. Wyss, and Daniel R.
Wilson, Mowry & Grimson, PLLC, of Washington, DC, for plaintiff-intervenors.
Stephen C. Tosini, Senior Trial Counsel, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice, of Washington, DC, for defendant. With him on the brief were
Stuart F. Delery, Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M.
McCarthy, Assistant Director. Of counsel on the brief was Rebecca Cantu, Senior Attorney,
Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of
Commerce, of Washington, DC.
J. Michael Taylor, Joseph W. Dorn, and Daniel L. Schneiderman, King & Spalding, LLP,
of Washington, DC, for defendant-intervenors.
Restani, Judge: Defendant-intervenors the American Furniture Manufacturers Committee
for Legal Trade and Vaughan-Bassett Furniture Co., Inc. (collectively “AFMC”) move for
reconsideration of the court’s decision in Dongguan Sunrise Furniture Co., Ltd. v. United States,
997 F. Supp. 2d 1330 (CIT 2014) (“Dongguan IV”), pursuant to USCIT Rule 59. AFMC’s Mot.
for Recons. 1, ECF No. 221 (“Mot. for Recons.”). In the alternative, AFMC requests that the
court remand the case for the Department of Commerce (“Commerce”) to make further factual
findings. Id. at 9. Plaintiffs Dongguan Sunrise Furniture Co., Ltd., Taicang Sunrise Wood
Industry Co., Ltd., Taicang Fairmont Designs Furniture Co., Ltd., and Meizhou Sunrise
Furniture Co., Ltd. (collectively “Fairmont”) oppose the motion. Reply to Def.-Intvnr. AFMC
Mot. for Recons. 1, ECF No. 229.
In Dongguan IV, the court reviewed and remanded to Commerce its Final Results of
Third Redetermination Pursuant to Court Order, ECF No. 193-1. The court held that the partial
adverse-facts-available (“AFA”) rates assigned to Fairmont were not supported by substantial
evidence because they were not reflective of Fairmont’s commercial reality and were far beyond
Consol. Court No. 10-00254 Page 3
the amount necessary to deter future non-compliance. Dongguan IV, 997 F. Supp. 2d at 1335.
Assuming arguendo that Commerce could uptick the substitute rate based on a specific need to
deter strategic behavior (i.e., failing to report sales with high dumping margins in an attempt to
get a lower rate), the court concluded that using extremely high substitute AFA rates for this
purpose could not be done without a finding that Fairmont actually engaged in such strategic
behavior. Id. at 1337.
AFMC contends that “[r]econsideration is warranted because the decision [was] based on
erroneous de novo factual findings.” Mot. for Recons. 1. Specifically, AFMC argues that the
record evidence demonstrates that Fairmont strategically concealed its unreported sales,
presumably to hide sales with high dumping margins, and suggestions to the contrary in the
court’s opinion amounted to an impermissible and erroneous finding of fact. Id. at 2–9.
According to AFMC, the factual predicate for the court’s decision thus was mistaken. Id. at 2.
The court’s understanding of the record in this case, namely that Commerce has not
found that Fairmont avoided reporting sales for strategic reasons, long has been apparent. In the
original challenge to the partial AFA rates in this case, the court accepted only “Commerce’s
subjective finding that Fairmont failed to put forth its maximum effort because it performed a
perfunctory identification of in-scope sales” as supported by the record in justifying the
application of AFA to the small portion of sales that Fairmont did not report as in-scope
merchandise. Dongguan Sunrise Furniture Co., Ltd. v. United States, 865 F. Supp. 2d 1216,
1229 (CIT 2012). The court noted that Commerce’s alternative justification based on certain
correspondence with Fairmont purportedly showing a lack of cooperation beyond general
sloppiness on Fairmont’s part was unpersuasive and the court did not rely on it. Id. at 1231 n.17.
Consol. Court No. 10-00254 Page 4
In considering Fairmont’s challenge to Commerce’s first remand determination, the court stated
that “[a] calculated rate of 34% for Fairmont’s reported sales suggests that rates ranging from
134% to over 215% are not reflective of Fairmont’s commercial reality, especially when there is
no indication that Fairmont failed to report certain sales for strategic reasons.” Dongguan
Sunrise Furniture Co., Ltd. v. United States, 904 F. Supp. 2d 1359, 1364 (CIT 2013).
Despite the presence in earlier opinions of statements very similar to the ones AFMC
now challenges, AFMC never previously objected on this basis. It is only after this case has
been remanded for the fourth time that AFMC challenges this reading of the record. “The
decision to grant a motion for rehearing rests in the sound discretion of the Court.” Xerox Corp.
v. United States, 20 CIT 823, 823 (1996). Because AFMC had ample opportunity to raise its
concerns about the general context of Commerce’s choice previously but failed to do so, the
court will not entertain them now. Cf. United States v. Matthews, 32 CIT 1087, 1089, 580 F.
Supp. 2d 1347, 1349 (2008) (“[A]rguments raised for the first time on rehearing are not properly
before the court for consideration when prior opportunity existed . . . for the moving party to
have adequately made its position known.” (ellipses in original)).
Obviously, the main holding has been, and continues to be, that the selected rate is not
related to Fairmont’s actual sales behavior, no matter what led to the lack of full compliance.1
See Dongguan IV, 997 F. Supp. 2d at 1338. Thus, had the challenge been timely it would be
inapposite.
1
It should be noted that even if there were some gamesmanship, the rate selected must be
reasonable. It cannot be imposed as a punishment. See Gallant Ocean (Thail.) Co. v. United
States, 602 F.3d 1319, 1323 (Fed. Cir. 2010). In this matter that court was not called upon to
decide where the line is between deterring strategic behavior and punishment.
Consol. Court No. 10-00254 Page 5
For the foregoing reasons, AFMC’s motion is DENIED.
/s/ Jane A. Restani
Jane A. Restani
Judge
Dated: October , 2014
New York, New York