US Says Commerce Not Required to Send Questionnaire to All When Number of Respondents Small

The Commerce Department wasn't required to issue exporter Jin Tiong Electrical Materials Manufacturer a questionnaire for purposes of giving the company a separate antidumping duty rate, the U.S. government told the U.S. Court of Appeals for the Federal Circuit in an Oct. 20 reply brief. The government said 19 U.S.C. § 1677f-1(c)(1) -- the statute relied on by Jin Tiong to claim that Commerce can't limit the number of respondents when the number is small -- doesn't speak to a process that Commerce must follow in carrying out its separate rate examinations (Repwire v. United States, Fed. Cir. # 23-1933).

The appellate court has previously found that the agency is free to establish its own rules of procedure and pursue methods of inquiry sufficient to let it discharge its duties "absent constitutional constraints or extremely compelling circumstances." Given that the separate rate application process is not one of them, Commerce "acted within its discretion when it established a threshold process that parties must follow to demonstrate their eligibility for a separate rate," the brief said.

The case, challenging the 2019-20 AD review of the order on aluminum wire and cable from China, saw Jin Tiong fail to timely submit a separate rate application. Months after the deadline closed, Commerce errantly sent the exporter a separate AD rate questionnaire, which it filled out. The agency revoked the questionnaire, and the Court of International Trade said it was properly withdrawn (see 2303200039).

Jin Tiong now sits before the Federal Circuit, claiming Commerce was required to send the company a questionnaire, among other things. In its reply brief, the U.S. said Jin Tiong, and its importer Repwire, rely on a "single, distinguishable determination in Cast Iron Soil Pipe From The People's Republic of China, in which Commerce mistakenly believed that a mandatory respondent had timely filed a separate rate application." Even if this case was distinguishable, one different outcome is not enough to establish a binding past practice, the brief said.

"Plaintiff-appellants have failed to demonstrate that Jin Tiong was treated disparately," the brief said.