Party Not Required to Submit SRA to Establish Separate Rate Eligibility, Exporter Tells CIT
Exporter Jin Tiong Materials Manufacturer was not required to submit a separate rate application or separate rate certification to establish its eligibility for a separate rate in an antidumping duty review, plaintiffs Jin Tiong and Repwire argued in a Nov. 2 reply brief at the Court of International Trade. The exporters dubbed the issue "not complicated," arguing that while Jin Tiong did not submit a separate rate application, Section A of the standard questionnaire in non-market economy cases requests the same information. As a result, Commerce properly issued a questionnaire to Jin Tiong but illegally withdrew it before the exporter was able to submit its responses (Repwire v. United States, CIT Consol. #22-00016).
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The case concerns the 2019-2020 administrative review of the antidumping duty order on aluminum wire and cable from China in which Commerce started reviewing Jin Tiong and one other company. In its initiation notice in the Federal Register, the agency required all companies that wanted a separate rate and for which a review had been started to submit a separate rate application no later than 30 days from the notice's publication. Jin Tiong did not file the application by this deadline. Nevertheless, Commerce mistakenly sent out a questionnaire to Jin Tiong. The agency later rescinded it since the company failed to apply for a separate rate.
In the trade court, Jin Tiong argued that Commerce improperly withdrew the questionnaire (see 2202220046). The exporter argued the language of the questionnaire absolved it from its failure of having not timely filed the separate rate application. In its reply, Commerce disagreed, saying this claim goes against the "plain language of the Initiation Notice," overlooks the agency's explanation in rescinding the questionnaire and is based on language not on the record because the questionnaire is not on the record (Ref:2209290031]).
In its reply, plaintiffs Repwire and Jin Tiong argued that Commerce had a pool of two potential respondents and that both of these entities should have been used as mandatory respondents. The statute does not require the filing of a separate rate application nor a separate rate certification, the brief said. The language in the questionnaire itself "expressly contemplates" submitting a response without filing a separate rate application or separate rate certification, rendering Commerce's sole reliance on the separate rate application process "unreasonable,' the plaintiffs said.
The plaintiffs further argued that Commerce had no discretion in selecting mandatory respondents since there were only two companies in the running to serve as mandatory respondents. "As such, at the time of initiation of this review, it was clear that both of the potential respondents would be required, by statute, to be selected as a mandatory respondents and would be required to answer the full questionnaire," the brief said. "Critically, this would include Section A of the Department’s questionnaire which, by its own words, contains the information necessary to establish that the company being reviewed is separate from the Government of China."