Trade Updates for Week of November 21, 2018

United States Court of International Trade

Motion to Dismiss Granted in Countervailing Duty Order on Tires

Before the Court in Zhongce Rubber Group Company Limited v. United States, Slip Op. 18-160, Court No. 18-00082 (November 20, 2018) was defendant’s motion to dismiss. Plaintiff brought this action to contest the application of adverse facts available by Commerce in calculating the rate applied to Zhongce during an administrative review of the countervailing duty order on tires from China. Defendant moved to dismiss because plaintiff had not exhausted administrative remedies before commencing the action. For the following reasons the Court dismissed the case.

28 U.S.C. § 2637(d) “provides that the court shall, where appropriate, require the exhaustion of administrative remedies.” Id. at 3. “Exhaustion allows agencies to apply their expertise, rectify administrative mistakes, and compile records adequate for judicial review.” Id. at 4. “In this case, Zhongce failed to submit a case brief challenging Commerce’s preliminary results, and instead waited to challenge Commerce’s decision before this court.” Id. at 5. The Court found that plaintiff failed to exhaust administrative remedies because of the failure to submit a case brief for Commerce to review. The Court also found exceptions to the rule did not apply because the appropriate administrative remedies would not have been futile efforts and the pure law exception did not apply where there were factual questions at issue.