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No Comment on Draft Remand Results a Failure to Exhaust Admin Remedies, Intervenor Argues

The Court of International Trade should not again remand an antidumping duty investigation on forged steel fluid end blocks from Germany because respondent Ellwood City Forge failed to exhaust its administrative remedies regarding the margin program before it filed suit at CIT, intervenor Edelstahl Siegen said in its May 15 remand comments (Ellwood City Forge v. U.S., CIT # 21-00077).

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Despite an "obvious error" in Commerce’s calculations on its draft remand results, Ellwood chose not to comment on the draft and so it cannot currently claim that Commerce erred because it easily could have been raised during the administrative remand proceeding, Edelstahl said.

Instead, Ellwood engaged in a "lengthy, general discussion of the difference in merchandise test" in its own remand comments (see 2304170064). Those error claims, Edelstahl said, refer to lines in the remand determination that are unchanged from the draft determination that Ellwood failed to comment on. Edelstahl said that the U.S. Court of Appeals for the Federal Circuit has held that it has a "strict view of the exhaustion requirement in trade cases and that the requirement "applies equally in remand proceedings.”

Commerce properly refused to consider Ellwood’s arguments concerning possible alternatives to a cost-based PMS adjustment, Edelstahl said. The court remanded the case “on narrow grounds” that Commerce correctly found did not direct it to address alternative interpretations of the CAFC’s analysis of Hyundai Steel v. U.S.