CIT Says Brazil Orange Juice Producer can Raise AD Zeroing Argument Despite Non-Exhaustion

The Court of International trade remanded the final results of another administrative review to the International Trade Administration for zeroing, despite the ITA’s argument that plaintiff Sucocitrico Cutrale didn’t exhaust its administrative remedies by raising the argument in its case briefs during the review.

Although Cutrale challenged the ITA’s use of zeroing during the 2008-09 administrative review of the AD duty order on orange juice from Brazil (A-351-840), Cutrale’s case briefs during the review based the challenge on consistency with World Trade Organization rulings, not the issue of inconsistent statutory interpretation between investigations and administrative reviews raised in Dongbu Steel Co. v. United States. CIT said that although Cutrale did not raise the argument during the review, and as such did not exhaust its administrative remedies with respect to the argument, the doctrine of intervening judicial interpretation allows an exception to the principle of exhaustion in that the decision in Dongbu was not available at the time the final results of this review were published.

Therefore, CIT remanded the final results to the ITA to reconsider the use of zeroing. CIT also affirmed the final results with respect to five other issues, and refused to hear another issue raised by Cutrale because it did not exhaust its administrative remedies.

(Slip Op. 12-71, dated 06/01/12, public version released 06/19/12, Judge Goldberg

(See ITT's Online Archives 11040408 for summary of the Court of Appeals for the Federal Circuit's ruling in Dongbu v. U.S.)