Erroneous Questionnaire Should Have Triggered Separate Rate Analysis, Exporter Says in Appeal

The Court of International Trade erred when it signed off on the Commerce Department's refusal to conduct a full administrative review of and apply adverse facts available to exporter Jin Tiong Electrical Materials Manufacturer despite issuing a questionnaire, importer Repwire and Jin Tiong said in an Aug. 3 opening brief at the U.S. Court of Appeals for the Federal Circuit (Repwire v. United States, Fed. Cir. # 23-1933).

Repwire noted that Commerce issued and then withdrew a questionnaire to Jin Tiong during the 2019-2020 antidumping duty administrative review on aluminum wire and cable from China and then unlawfully applied AFA despite creating a gap in the record. That questionnaire language "unequivocally" told exporters that separate rate status was possible through the filing of that questionnaire, especially since Commerce has issued separate rates without applications in the past, the importer argued. "The Department properly issued the questionnaire and Jin Tiong should have been allowed to establish its eligibility for a Separate Rate by completing [that] questionnaire."

Repwire also argued Commerce was required to individually review both of the potential respondents. The statute and agency regulations say Commerce can only limit the number of respondents "when the number" of them is "large," but the present review involved only two potential respondents. As a result, the agency erred by not looking into both of them, the brief said.

In the review, Repwire requested that Commerce set a dumping rate for its supplier Jin Tiong, which had not received an individual rate in the original investigation. Commerce initiated the administrative review for only two entities, Jin Tiong and ICF Cable, and then issued the questionnaire to Jin Tiong only to withdraw it two weeks later. Jing Tiong, however, objected to the withdrawal and submitted Section A as a response, which Commerce rejected. The department went on to use AFA against Jin Tiong, denying it separate rate status and citing a hole in the record.

When the department issued its final results in 2021, Repwire sued, arguing that Commerce was not allowed to further limit respondents from a pool of only two and had unlawfully applied AFA "where it created the absence of information on the record" (see 2202220046). In her March 20 opinion, CIT Judge Jennifer Choe-Groves said that while the issuance and later rescission of the questionnaire was "unfortunate," because Commerce admitted its mistake and withdrew the questionnaire before Jin Tiong responded, the department was within its rights to not conduct a separate rate review (see 2303200039).

At the Federal Circuit, Repwire went on to argue that separate rate status can be obtained "in a number of different ways," one of which "assumes ... non-filing of" a separate rate application. Requiring this application to be filed prior to a questionnaire being issued renders the agency's third "test" -- which says an exporter must respond to the separate rate section in the Section A response if an application has not already been submitted -- "a nullity." The importer added that this error was "compounded by the Department's decision to ignore precedent where" Commerce issued a questionnaire to a company that had not submitted a separate rate application.