CIT Dismisses Thai Bags Argument that AFA Rate Is "Excessive" Under 8th Amendment

The Court of International Trade denied Thai plaintiff KYD Inc.’s motion for reconsideration of CIT’s January 2012 affirmance of the International Trade Administration’s second remand redetermination of the 2006-07 administrative review of the antidumping duty order on polyethylene retail carrier bags from Thailand (A-579-821). KYD said CIT did not address its argument in the January 2012 proceedings that the 94.62% Adverse Facts Available (AFA) rate assigned to KYD by the second remand redetermination and affirmed by CIT violated the excessive fines and forfeitures clause of the 8th Amendment.

CIT said KYD failed to exhaust its administrative remedies because it did not raise its argument with the ITA during the second remand proceeding or with CIT in its brief to the court about the second remand redetermination. Although KYD argued that it did challenge the CIT’s first remand redetermination (which found an AFA rate for KYD of 122.88%) on this basis, CIT said KYD was required to, and did not, raise the same challenge to the ITA or CIT regarding the lower margin that was assessed during the second remand redetermination. Furthermore, CIT said even if KYD had exhausted its administrative remedies, its argument lacked merit, because the AFA rate was already affirmed as remedial, not punitive, and therefore cannot violate the 8th Amendment. Therefore, CIT denied KYD’s motion for reconsideration.

(See ITT's Online Archives 12011852 for summary of CIT's January 2012 affirmance (Slip Op. 12-10))

(CIT Slip Op. 12-61, dated 05/08/12, Judge Pogue)