Changzhou Wujin Fine Chemical Factory Co. v. United States ( 2014 )

Slip Op. 14-
UNITED STATES COURT OF INTERNATIONAL TRADE
CHANGZHOU WUJIN FINE CHEMICAL
FACTORY CO., LTD., and JIANGSU
JIANGHAI CHEMICAL GROUP, LTD.,
Plaintiffs, Before: Judith M. Barzilay, Senior Judge
v. Consol. Court No. 09-00216
UNITED STATES,
Defendant,
and
COMPASS CHEMICAL
INTERNATIONAL, LLC,
Defendant-Intervenor.
OPINION and ORDER
[Motion for reconsideration denied.]
Dated: February , 2014
Riggle & Craven (David J. Craven), for Plaintiffs.
Stuart F. Delery, Assistant Attorney General; Jeanne E. Davidson, Director, Patricia M.
McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, United States
Department of Justice (Antonia R. Soares); Whitney M. Rolig, Of Counsel, Office of the Chief
Counsel for Import Administration, United States Department of Commerce, for Defendant.
Levin Trade Law, P.C. (Jeffrey S. Levin), for Defendant-Intervenor.
BARZILAY, Senior Judge: Consolidated Plaintiff Jiangshai Jiangsu Chemical Group,
Ltd. (“Jiangsu”) moves under USCIT Rule 59 for reconsideration of the court’s opinion issued
Consol. Court No. 09-00216 Page 2
on October 2, 2013. See Changzhou Wujin Fine Chem. Factory Co. v. United States, 37 CIT __,
942 F. Supp. 2d 1333 (2013). The court sustained Commerce’s decision to assign an above de
minimis separate rate to Jiangsu given the limitations presented by the administrative record.
Jiangsu, however, claims that the court (1) overlooked data and information about the
respondents that suggests separate rate respondents are entitled to a 0% rate; and (2) discounted
certain quantity and value data indicating that separate respondents are entitled to a 0% rate. For
the reasons set forth below, Jiangsus’s motion is denied.
Granting a motion for reconsideration pursuant to USCIT Rule 59 rests within the sound
discretion of the court. Target Stores v. United States, 31 CIT 154, 156, 471 F. Supp. 2d 1344,
1346-47 (2007). “The major grounds justifying reconsideration are an intervening change of
controlling law, the availability of new evidence, or the need to correct a clear error or prevent
manifest injustice.” Royal Thai Gov’t v. United States, 30 CIT 1072, 1074, 441 F. Supp. 2d
1350, 1354 (2006) (quotations and citation omitted). A motion for reconsideration serves as “a
mechanism to correct a significant flaw in the original judgment . . . .” United States v. UPS
Customhouse Brokerage, Inc., 34 CIT __, ___, 714 F. Supp. 2d 1296, 1301 (2010) (quotations
and citation omitted). It does not, however, afford a losing party an opportunity “to repeat
arguments or to relitigate issues previously before the court.” Id. “Importantly, the court will
not disturb its prior decision unless it is ‘manifestly erroneous.’” Starkey Labs., Inc. v. United
States, 24 CIT 504, 505, 110 F. Supp. 2d 945, 947 (2000) (citation omitted).
Jiangsu has not established that the court committed a clear error. Instead, Jiangsu is
attempting to relitigate issues that have already been decided in the court’s original decision.
The court did not overlook data or the “nature” of respondents as described by Jiangsu. Pl. Br. 3.
To the contrary, the court considered that data and concluded that it did not support the outcome
Consol. Court No. 09-00216 Page 3
sought by Jiangsu (i.e., a 0% dumping margin). The court concluded that Commerce’s
inferences and assumptions about Kewei’s lack of participation were reasonable. More
specifically, the court concluded that it was reasonable to infer that had Kewei (a non-
cooperating mandatory respondent) participated in the investigation, it would have received an
actual dumping rate (with no built in increase to deter non-compliance) greater than 0%. The
court cited relevant authority supporting such an inference and had no authority before it
supporting Jiangsu’s preferred interpretation. The court, therefore, sustained Commerce’s
decision to select Kewei’s above de minimis rate as the separate rate for Jiangsu and the other
separate rate respondents. As noted in the opinion, this is the preferred methodology under the
statute.
Likewise, the court did not overlook or discount the Q&V data because it was unverified.
Pl. Br. 4. It is not a question of whether the Q&V data is verified or unverified. That is not
outcome determinative. The court concluded that it could not endorse Jiangsu’s separate rate
calculation, which relies on Q&V data cobbled together with other pricing data, to arrive at a rate
of 0%. For the court to embrace Jiangsu’s separate rate calculation and reject Commerce’s
chosen methodology, Jiangsu must demonstrate that its proposed calculation is the only
reasonable outcome on this administrative record. See Allied Tube and Conduit Corp. v. United
States, 24 CIT 1357, 1371–72, 127 F. Supp. 2d 207, 220 (2000) (“Plaintiff, therefore, must
demonstrate that it presented Commerce with evidence of sufficient weight and authority as to
justify its factual conclusions as the only reasonable outcome.”). The court is not convinced that
Jiangsu’s separate rate calculation yields a more representative rate. Jiangsu’s reliance on Q&V
data is misplaced. Q&V data is typically used to identify the largest volume producer in
selecting mandatory respondents, not to calculate dumping margins. See 19 U.S.C. § 1677f-
Consol. Court No. 09-00216 Page 4
1(c)(2)(B); see also Pakfood Public Co., Ltd. v. United States, 34 CIT __, __, 724 F. Supp. 2d
1327, 1336 n.13 (2010). Contrary to Jiangsu’s claims, there is not enough data to justify a
separate rate of 0%.
The problem in this case is a lack of pricing data at the investigation stage of the
administrative proceeding, where Commerce relies on the participation of the mandatory
respondents to provide information about their pricing practices. Where, as here, two mandatory
respondents are selected and one cooperates (and receives a de minimis rate) and the other fails
to cooperate (and receives an AFA rate), Commerce is left with very little pricing information to
calculate a separate rate. The uncooperative respondent will oftentimes drop out of the
investigation before submitting its pricing data. Accordingly, there is margin specific pricing
information for the cooperative respondent but limited margin specific information for the
uncooperative respondent. Separate rate respondents in such a situation do not automatically get
the benefit of the cooperative mandatory respondent’s de minimis dumping margin simply by
qualifying for a separate rate. The statute does not contemplate such a policy. Separate rate
respondents, therefore, must avail themselves of potential remedies at the administrative level or
accept the risk of receiving a separate rate derived from an undeveloped administrative record.
That is what happened here.
Accordingly, it is hereby
ORDERED that Jiangsu’s motion for reconsideration is denied.
Dated: February , 2014 /s/ Judith M. Barzilay
New York, NY Judith M. Barzilay, Senior Judge