Itochu Building Products v. United States
2012 CIT 122
Ct. Intl. Trade2012Background
- Itochu Building Products (IBP) imported subject nails and challenged Commerce’s change-in-circumstances revocation of the antidumping order for four nail types, asserting an earlier effective date of January 23, 2008.
- Commerce revoked the order as to those four types effective August 1, 2009, citing its practice of selecting the date after the most recent completed review, despite requests for January 23, 2008.
- Final Results of Changed Circumstances Review announced May 24, 2011 reaffirmed the August 1, 2009 date and noted no comments were received on preliminary results.
- Itochu filed suit in 2011 challenging the August 1, 2009 date; the court limited review to whether Itochu exhausted its administrative remedies.
- The court held that Itochu waived its challenge by not commenting during the preliminary results stage and that exhaustion is required, leading to dismissal with judgment for the defendant.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Itochu waived the challenge to the effective date. | Itochu argued it preserved error by opposing January 23, 2008. | Commerce’s notice invited comments; absence of comments signified assent to the preliminary results. | Yes; Itochu waived the issue by not commenting. |
| Whether exhaustion of administrative remedies was required and properly applied. | Exhaustion should be excused due to futility or pure legal question. | Exhaustion required; party had to raise arguments during comment period. | Exhaustion applied; no exception warranted. |
| Whether the Department’s rationale for choosing August 1, 2009 was reviewable. | Rationale lacked rational basis and fairness. | Decision justified by recent practice; not a pure legal question. | Court did not reach merits; record supported exhaustion-based dismissal. |
Key Cases Cited
- Mittal Steel Point Lisas Ltd. v. United States, 548 F.3d 1375 (Fed. Cir. 2008) (waiver when party failed to preserve position at remand)
- L.A. Tucker Truck Lines, Inc. v. United States, 344 U.S. 33 (U.S. 1952) (exhaustion of administrative remedies requires objection at proper time)
- Corus Staal BV v. United States, 502 F.3d 1370 (Fed. Cir. 2007) (pure legal-question exception to exhaustion not satisfied here)