Antidumping petitioner Ellwood City Co. failed to preserve its objection to the Commerce Department's use of a questionnaire in light of on-site verification by not exhausting administrative remedies, the Court of International Trade ruled in a Nov. 8 opinion. Judge Stephen Vaden said Ellwood City had many chances to object to the verification methodology in the AD investigation, but it never did. However, the case was remanded to Commerce over defendant-intervenor and AD respondent BGH Edelstahl Siegen's challenge to Commerce's use of a particular market situation adjustment to the sales-below-cost test.

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The Court of International Trade should give the National Oceanic and Atmospheric Administration a voluntary remand in a case seeking a Marine Mammal Protection Act ban on imports of fish and fishery products from New Zealand caught using techniques that allegedly have caused the near extinction of the Maui dolphin, the U.S. argued in a Nov. 8 motion. The voluntary remand would let the NOAA "amend the current comparability findings for certain New Zealand fisheries whose expiration dates conform with the deadlines set forth for other comparability findings to be issued under the Marine Mammal Protection Act and 50 C.F.R. § 216.24(h)," the government said (Sea Shepherd New Zealand v. United States, CIT #20-00112).

The rehearing motion from plaintiffs in an antidumping duty case, led by Ellwood City Forge, "appears to be little more than an impermissible attempt to relitigate an argument" already dispatched by the Court of International Trade, Judge Stephen Vaden held in a Nov. 8 opinion. Ellwood City sought reconsideration of the court's order tossing the challenge to the Commerce Department's failure to conduct on-site verification during an antidumping review, given that the plaintiffs failed to broach the topic administratively. Vaden said that Ellwood City misunderstood "the nexus between futility" and the requirement to exhaust administrative remedies.

Arguments from plaintiffs in the massive Section 301 litigation against the Office of the U.S. Trade Representative's remand submission at the Court of International Trade lack merit and reveal a "misunderstanding of judicial remands," the U.S. argued in a Nov. 4 brief defending the remand results. The plaintiffs said that USTR cannot take another look at the record to defend its tariff action under Section 301 from public comments and can only "parrot existing statements" on the record. The government said that this view is not compatible with a key Supreme Court precedent, and that under this interpretation, no agency would be able to stand by its decision in fixing a failure to respond to public comments (In Re Section 301 Cases, CIT #21-00052).

A Temporary Storage Agreement should end when it is obvious a party to the agreement is no longer seeking court judgment, DOJ said in a Nov. 3 response motion at the Court of International Trade (Virtus Nutrition v. United States, CIT #21-00165).

Chief Judge Kimberly Moore at the U.S. Court of Appeals for the Federal Circuit, during Nov. 3 oral argument, questioned plaintiff-appellant M S International's (MSI's) position that the Commerce Department failed to include quartz surface product (QSP) fabricators as part of the domestic industry for quartz surface products when initiating the antidumping and countervailing duty investigations on QSPs from India (Pokarna Engineered Stone Limited v. United States, Fed. Cir. #22-1077).

The U.S. Court of Appeals for the Federal Circuit in a Nov. 2 oral argument questioned importer Acquisition 362, doing business as Strategic Import Supply, over its jurisdictional grounds to challenge a CBP decision, given that the company failed to file a protest. SIS argued that it didn't need to file a protest to challenge the liquidation of its entries, given that there was nothing to protest within 180 days of liquidation. At oral argument, Judges Timothy Dyk, Richard Taranto and Todd Hughes probed this position, with Hughes in particular expressing doubt over the claim, given the finality surrounding CBP's liquidation of imports (Acquisition 362 v. United States, Fed. Cir. #22-1161).

Antidumping duty petitioners submitted various supplemental authorities in Amsted Rail Co.'s case over its former counsel's purported "betrayal" in using a former client's information against it in a later injury proceeding at the International Trade Commission. The petitioners, collectively referred to as the Coalition of Freight Coupler Producers, included a declaration from Georgetown University Law Center ethics professor Michael Frisch discussing whether ARC's former counsel, Daniel Pickard, now-partner at Buchanan Ingersoll, committed an ethics violation. Frisch said that the D.C. Bar Rule 1.9 concerning conflicts of interest does not apply to ARC since the only party affected by the injury proceeding is ASF-K de Mexico, a Mexican maquiladora factory affiliated with ARC that did not formerly employ Pickard, and that ARC's lawsuit is an "abuse of the litigation process" (Amsted Rail Co. v. United States International Trade Commission, CIT #22-00307).

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