                                        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
