Trade Court Says Commerce Legally Withdrew Separate Rate Questionnaire Issued in Error

The Court of International Trade on March 20 upheld the Commerce Department's withdrawal of a separate-rate questionnaire it had erroneously issued to exporter Jin Tiong Electrical Materials Manufacturer in an antidumping review, finding Commerce's rejection of the company's answers as untimely was proper because the agency had withdrawn the questionnaire before Jin Tiong submitted its response.

Judge Jennifer Choe-Groves said that while the erroneous questionnaire request and later rescission "was unfortunate, the Court recognizes that Commerce admitted its mistake within two weeks and withdrew the questionnaire" before Jin Tiong responded. The rejection of the questionnaire resulted in Jin Tiong being given the China-wide rate in the 2019-20 AD administrative review on aluminum wire and cable.

Jin Tiong and importer Repwire further argued that the rejection of Jin Tiong's questionnaire response was an abuse of discretion since the exporter submitted the response at Commerce's request even though the request was rescinded. Citing one of the agency's regulations, Choe-Groves ruled that the agency has the discretion to reject unsolicited findings. "It is apparent to the Court that Commerce considered Jin Tiong’s submission to be unsolicited because Commerce rescinded the questionnaire prior to receiving the submission," the judge said.

Repwire also challenged the imposition of adverse facts available on Jin Tiong, which the agency based on the lack of a questionnaire response. The exporter said Commerce rejected the very information which would have given evidence of separate rate status.

But Choe-Groves ruled that because Jin Tiong failed to file its separate rate application within the 30-day deadline from Commerce's initiation notice, which would have shown independence from Chinese state control, "the Court concludes that Commerce’s determination that Jin Tiong was not eligible for a separate rate was reasonable and supported by substantial evidence."

(Repwire v. United States, Slip Op. 23-40, CIT Consol. #22-00016, dated 03/20/23l Judge: Jennifer Choe-Groves; Attorneys: David Craven of Craven Trade Law for plaintiffs Repwire and Jin Tiong; Reginald Blades for defendant U.S. government; Sydney Mintzer of Mayer Brown for defendant-intervenor Southwire Co.; and Jack Levy of Cassidy Levy for defendant-intervenor Encore Wire Corp.)