Commerce Lawfully Revoked Separate Rate Questionnaire, AD Petitioner Tells CAFC

Exporter Jin Tiong Electrical Materials Manufacturer and importer Repwire failed to argue that the Commerce Department could only limit respondents in an antidumping duty review when the number of respondents is large administratively, petitioner Southwire Co. said in its reply brief at the U.S. Court of Appeals for the Federal Circuit. Should the appellate court find that Jin Tiong and Repwire didn't fail to exhaust their administrative remedies, the decision not to assign Jin Tiong a separate rate rested on the exporter's "failure to submit a timely" separate rate application, the petitioner argued (Repwire v. United States, Fed. Cir. # 23-1933).

During the 2019-20 review of the AD order on aluminum wire and cable from China, Commerce accidentally issued and then withdrew a questionnaire to Jin Tiong and hit the company with adverse facts available. The exporter failed to submit a separate rate application. Jin Tiong and Repwire argued that the questionnaire language "unequivocally" told the exporter that separate rate status was possible via the questionnaire, making the use of AFA illegal (see 2308030047).

The Court of International Trade said that while the issuance and rescission of the questionnaire was "unfortunate," the agency was within its rights not to conduct a separate rate review since Commerce withdrew the questionnaire before receiving a response (see 2303200039).

The petitioner defended the withdrawal of the questionnaire at the Federal Circuit, saying it was within the agency's discretion to revoke the questionnaire after the exporter's failure to file a separate rate application. "Moreover, Commerce acted reasonably in line with its discretion to set and maintain deadlines in antidumping proceedings when it withdrew Jin Tiong’s questionnaire after failing to receive a timely SRA, as clearly instructed in the Initiation Notice and SRA, or a timely extension request," the brief said.

Southwire argued that the AD statute "does not unambiguously address the submission of an untimely" separate rate application, requiring reliance on Commerce's jurisdiction. Looking to Commerce's gap-filling decision, the agency clearly said Jin Tiong wasn't eligible for a separate rate since it didn't timely file an application.