                           Slip Op. 12-61

             UNITED STATES COURT OF INTERNATIONAL TRADE

KYD, INC.,

             Plaintiff,

             v.

UNITED STATES,                           Before: Donald C. Pogue,
                                                 Chief Judge
             Defendant.
                                      Court No. 09-00034
POLYETHYLENE RETAIL CARRIER BAG
COMMITTEE, HILEX POLY CO., LLC,
and SUPERBAG CORPORATION,

             Defendant-Intervenors.




                               OPINION

[Denying Plaintiff’s Motion for Reconsideration.]

                                                   Dated: May 8, 2012

          David John Craven, Riggle and Craven, of Chicago, IL,
for Plaintiff.

          Carrie Anna Dunsmore, Renee A. Gerber, Stephen Carl
Tosini and Vincent dePaul Phillips, Trial Attorneys, Commercial
Litigation Branch, Civil Division, U.S. Department of Justice, of
Washington, DC, for Defendant. With them on the brief were
Stuart Delery, Assistant Attorney General, Jeanne E. Davidson,
Director, Patricia M. McCarthy, Assistant Director. Of counsel
on the brief were Rachel Elizabeth Wenthold and Scott McBride,
Attorneys, U.S. Department of Commerce, of Washington, DC.

          Daniel Lawrence Schneiderman and Stephen Andrew Jones,
King & Spalding LLP, of Washington, DC, for Defendant-
Intervenors.


          Pogue, Chief Judge: This opinion addresses a motion
Court No. 09-00034                                          Page 2

filed by Plaintiff KYD, Inc. (“KYD”) seeking reconsideration of

Slip Op. 12-10, KYD, Inc. v. United States, 36 CIT __, 807 F.

Supp. 2d 1372 (2012) (“KYD IV”).1   KYD IV   affirmed the

Department of Commerce’s (“Commerce”) Second Final Remand

Redetermination Results (“Second Remand Results”) imposing a

94.62 percent adverse facts available (“AFA”) antidumping duty

rate upon KYD’s entries of certain retail carrier bags (“carrier

bags”) from Thailand. See KYD IV, 807 F. Supp. 2d at 1377–78.

           Plaintiff claims that in KYD IV, the Court failed to

address Plaintiff’s argument that the 94.62 percent AFA rate

violated the excessive fines and forfeitures clause of the 8th

Amendment of the U.S. Constitution, and therefore failed to rule

on all issues before the court.

     For the reasons discussed below, Plaintiff’s motion is

denied.



                        STANDARD OF REVIEW

           A USCIT Rule 59 motion for reconsideration will be
granted,
     only in limited circumstances, including [instances of]
     1) an error or irregularity, 2) a serious evidentiary
     flaw, 3) the discovery of new evidence which even a
     diligent party could not have discovered in time, or 4)
     an accident, unpredictable surprise or unavoidable
     mistake which impaired a party’s ability to adequately
     present its case.

     1
       See Pl.’s Mem. Supp. Mot. Recons. Ct.’s Order in Slip Op.
12-10, ECF No. 125 (“Pl.’s Mot.”).
Court No. 09-00034                                           Page 3


Target Stores v. United States, 31 CIT 154, 156, 471 F. Supp. 2d

1344, 1347 (2007).

             It follows that a motion for reconsideration will not

be granted “merely to give a losing party another chance to

re-litigate the case.” Totes–Isotoner Corp. v. United States, 32

CIT 1172, 580 F. Supp. 2d 1371, 1374 (2008) (citation omitted);

see also Tianjin Magnesium Int’l. Co., v. United States, No. 09-

00535, 35 CIT __, 2011 WL 4433102, at *1 (2011).

                              DISCUSSION

             Plaintiff contends that it raised an 8th Amendment

issue during the first administrative remand, claiming that

Commerce’s selection of a 122.88 percent AFA rate for KYD’s

merchandise was punitive rather than remedial. Pl.’s Mot. at 2–3.

Plaintiff argues that this rate inappropriately punishes it for

the behavior of an uncooperative producer with which it did

business, and that even the reduced 94.62 percent AFA rate

selected in the Second Remand Results bears no relationship to

KYD’s offense. Pl.’s Mot. at 5–6.    Plaintiff claims that the

court did not reach this 8th Amendment issue in ruling on the

first remand redetermination because Commerce’s determination was

rejected on other grounds, but that the issue was still pending

before the court during the second remand redetermination. Pl.’s

Mot. at 7.
Court No. 09-00034                                            Page 4

           A. Exhaustion of Administrative Remedies

           However, Plaintiff has failed to exhaust its

administrative remedies with respect to this issue.    Even though

Plaintiff challenged the dumping margin that Commerce calculated

in its second redetermination, see Draft Results of

Redetermination Pursuant to Court Remand, A-549-821, ARP 06-07

(July 6, 2011), Remand R. Pub. Doc. 2 (“Draft Remand Results”);

see also Comment on Draft Results of Redetermination, A-549-821,

ARP 06-07 (July 18, 2011), Remand R. Pub. Doc. 9 (“Pl.’s Cmts. on

Draft Remand Results”), Plaintiff did not claim, during that

second remand proceeding, that the reduced dumping margin

selected in the Second Remand Results violated the 8th Amendment.

Def-Ints.’s Resp. in Opp. to KYD’s Mot. for Recons. at 2, ECF No.

126 (“Def.-Ints.’s Br.”).

           A Plaintiff must exhaust its administrative remedies

“where appropriate.” See 28 U.S.C. § 2637(d).   The exhaustion

requirement serves to promote judicial efficiency and to protect

the legitimate exercise of agency authority. Corus Staal BV v.

United States, 502 F.3d 1370, 1379 (Fed. Cir. 2007).      A plaintiff

is “procedurally required to raise [an] issue before Commerce at

the time Commerce was addressing the issue.” Mittal Steel Point

Lisas Ltd. v. United States, 548 F.3d 1375, 1383 (Fed. Cir.

2008).   Because of this litigation’s long history, with multiple

remands, it is particularly appropriate for Plaintiff to be
Court No. 09-00034                                             Page 5

required to exhaust its administrative remedies by challenging

the reduced margin at issue in the second remand redetermination.

It has failed to do so.

            B. Waiver of the Issue

            Likewise, Plaintiff has waived this issue by not

raising it before the court at the proper time.   Commerce issued

the final results of its second redetermination on August 18,

2011.   In its September 9, 2011 comments, Plaintiff challenged

the dumping margin selected in that second redetermination. Pl.’s

Cmts. on the Department’s Remand Determination, ECF No. 101.

However, Plaintiff did not raise an 8th Amendment issue in those

September 9 comments. Id.; Def.’s Resp. to Pl.’s Mot. for

Reconsideration at 3, 5, ECF No. 129 (“Def.’s Br.”); Def.-Ints.’s

Br. at 2.   Plaintiff states that it did challenge the 122.88

percent margin in the first redetermination on this basis. See

Pl.’s Mot. at 6; Pl.’s Cmts. on First Redetermination (Sept. 29,

2010), ECF No. 73.   However, Plaintiff did not raise the same

challenge to Commerce or this Court regarding the lower margin

that was assessed during the second determination. Def.-Ints.’s

Br. at 2.

            “[A]ll claims, arguments, and objections that [a

Plaintiff has] elected not to address in its post-remand briefs

must be deemed waived.” Bond Street, Ltd. v. United States, 35

CIT __, 774 F. Supp. 2d 1251, 1261 (2011).   Plaintiff was
Court No. 09-00034                                             Page 6

therefore obligated to raise its 8th Amendment issue before this

court in its September 9, 2011 comments on the second remand

results.2    Moreover, for the reasons articulated in Part C below,

this is not a case involving such “significant questions of

general impact or of great public concern” as to excuse such a

waiver. Cf. Ninestar Tech. Co. v. Int’l Trade Comm’n, 667 F.3d

1373, 1382 (Fed. Cir. 2012) (quoting Interactive Gift Express,

Inc. v. Compuserve Inc., 256 F.3d 1323, 1345 (Fed. Cir. 2001)).

Thus, the Court did not fail to rule on the 8th Amendment issue

because Plaintiff did not raise the issue properly following the

second remand results.

             C. Merit

             Finally, even if the issue had not been waived,

Plaintiff’s claim lacks merit:

         antidumping laws “are remedial not punitive,”. . .an
         antidumping rate based on AFA is designed “to provide
         respondents with an incentive to cooperate, not to
         impose punitive . . . margins,” DeCecco, 216 F.3d at
         1032. For that reason, an AFA dumping margin
         determined in accordance with the statutory
         requirements is not a punitive measure, and the
         limitations applicable to punitive damages
         assessments therefore have no pertinence to duties
         imposed based on lawfully derived margins such as the
         margin at issue in this case.


     2
       Plaintiff waives an argument which was not presented
to the court “until after it had filed its principal
summary judgment brief, . . . [because] parties must give a
trial court a fair opportunity to rule on an issue other
than by raising that issue for the first time in a reply
brief[.]” Novosteel SA v. United States, 284 F.3d 1261,
1274 (Fed. Cir. 2002).
Court No. 09-00034                                          Page 7


KYD, Inc. v. United States, 607 F.3d 760, 767–68 (Fed. Cir.

2010)(“KYD II”).

            It follows that any 8th Amendment issue has already

been foreclosed because “[a] statutorily proper AFA rate is

remedial rather than punitive, and a ‘punitive’ rate is

statutorily improper.” KYD, Inc. v. United States, 35 CIT __, 779

F. Supp. 2d 1361, 1384 n.24 (2011) (“KYD III”) (citations

omitted).

            Finally, by ruling that the margin Commerce calculated

in the second determination complies with the statute, KYD IV

confirmed that the rate was remedial in nature. Def.-Ints.’s Br.

at 3; see also S. Shrimp Alliance v. United States, 33 CIT __,

617 F. Supp. 2d 1334, 1340 (2009); Nat’l Knitwear & Sportswear

Ass’n v. United States, 15 CIT 548, 558, 779 F. Supp. 1364, 1372

(1991).   KYD IV determined that the antidumping rate applied to

Plaintiff’s merchandise “could reasonably be accepted as an

approximation of KYD’s rate, albeit with a built in increase

intended as a deterrent to non-compliance.” KYD IV, 807 F. Supp.

2d at 1378.

            The rate is reasonably remedial and is intended to aid

the enforcement of tariff regulations rather than to serve as a

punitive sanction. See One Lot Emerald Cut Stones & One Ring v.

United States, 409 U.S. 232, 237, 93 S. Ct. 489, 493 (1972)

(customs statute permitting the civil sanction of forfeiture is
Court No. 09-00034                                             Page 8

remedial, not punitive).    Because the AFA rate selected by

Commerce is remedial and not punitive, it cannot violate the 8th

Amendment.



                                 CONCLUSION

     For the reasons discussed above, the court denies

Plaintiff’s motion.

             It is SO ORDERED.
                                               /s/ Donald C. Pogue
                                          Donald C. Pogue, Chief Judge

Dated: May 8, 2012
     New York, N.Y.
