Glycine Producer Didn't Exhaust Administrative Remedies Before Coming to CIT, US Alleges

The producer argued that calcium glycinate is both a precursor to a precursor of dried crystalline glycine -- processable into glycine slurry-- and also transformable directly into dried crystalline glycine.

But the trade court “should reject Deer Park’s efforts to introduce extra-record evidence and advance new arguments on appeal,” the U.S. said. It noted specifically that the producer had failed to cite any of its additional sources when it filed its scope ruling application regarding the product.

Absent this information and “consistent with its regulations,” Commerce considered all relevant evidence to determine that calcium glycinate is a precursor of glycine slurry, not dried crystalline glycine, it said. Specifically, the U.S. said, the department looked to the language of the AD and CVD orders, the International Trade Commission’s report from its injury investigation and descriptions provided by Deer Park in its application.

The language of the orders doesn’t cover “inputs or precursors used in the production of glycine” in general, it said; rather, it said “expressly” covers “glycine of all purity levels, which covers all forms of crude or technical glycine including, but not limited to, sodium glycinate, glycine slurry and any other forms of amino acetic acid or glycine.”

The producer raised three definitions of the term “precursor,” arguing that Commerce had unreasonably misinterpreted the orders in order to limit them. But these weren’t raised during the scope proceeding, so this argument was waived, the U.S. said. And scope applications “explicitly” require filers to provide factual information, including dictionaries, in support of their positions, it noted.

“Deer Park effectively seeks to supplement [its] application with information it failed to include in the first instance, despite clear instructions to do so,” it said.

Deer Park also argued that sodium glycinate, a product similar to calcium glycinate, has been ruled within the scope of the orders in the past -- but this claim hadn’t been exhausted yet, either, the U.S. said.

The producer preemptively claimed in its motion for judgment that the argument had been raised during the procedure when Commerce cited a footnote in the ITC’s investigation report that mentioned sodium glycinate. But “the fact that Commerce cited a footnote in the ITC Report that mentioned sodium glycinate did not mean that Commerce was required to scrutinize the entirety of the report” to establish the similarities between sodium and calcium glycinate, the government said.

“Commerce had no reason to conduct such an analysis, because [Deer Park] never asserted during the scope proceeding that calcium glycinate was in scope because of its similarity to sodium glycinate,” it said.

More generally, the department’s decision was reasonable and didn’t limit the scope of the orders, it said. It said calcium glycinate must undergo multiple steps just to become glycine slurry, which then must be further processed to be transformed into dried crystalline glycine.

“Commerce did not foreclose the possibility that a different precursor of glycine slurry, such as a chemical that is more readily converted into dried crystalline glycine, could be within the scope of the Orders,” it said.

The relevant antidumping duty orders cover glycine from India, Japan and Thailand, while the relevant countervailing duty orders cover the product from China, India and Thailand.