Commerce Defends Withdrawal of Questionnaire in AD Review
Exporter Jin Tiong Electrical Materials Manufacturer failed to timely submit a separate rate application by the applicable deadline, making it ineligible to rebut the presumption of Chinese government control and get a separate rate, the U.S. argued in a Sept. 28 reply brief at the Court of International Trade. Jin Tiong is not absolved from having missed the deadline by a wrongly filed, then later rescinded, questionnaire sent to the exporter by the Commerce Department, the brief said (Repwire v. United States, CIT Consol.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. 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 The agency later rescinded it since the company failed to apply for a separate rate.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.
"But even if the questionnaire cited by Repwire and Jin Tiong were on the record, the language plaintiffs attempt to rely upon cannot be read to invalidate a requirement that was provided in the Initiation Notice, and of which Jin Tiong had notice of at least two months before the questionnaire was inadvertently issued," the reply brief said. "A questionnaire that was issued accidently and that was rescinded shortly thereafter cannot have invalidated a requirement for an affirmative filing by Jin Tiong that was identified in the Initiation Notice that was published several months prior."
Jin Tiong also said Commerce could have made a separate rate finding based on the questionnaire responses the exporter submitted to the agency. Commerce said this argument falls flat since the responses were "unsolicited and removed from the record of Commerce's review." Again, the application was not submitted by the deadline, nullifying the submission, the brief said.