Aluminum Exporter Tells CAFC More Than 1 Way to Achieve Separate Rate Status
There are other ways to achieve separate rate status in an antidumping duty review beyond filing a separate rate application, exporter Jin Tiong Electrical Materials Manufacturer and importer Repwire argued in a Nov. 13 reply brief at the U.S. Court of Appeals for the Federal Circuit. The importer and exporter argued against the government, which claimed that Jin Tiong was not eligible for a separate rate in the 2019-20 AD review of aluminum wire and cable from China since it didn't submit a separate rate application, even though a separate rate questionnaire was accidentally sent to it (Repwire v. United States, Fed. Cir. # 23-1933).
"This [is] not a complicated case," Jin Tiong and Repwire said. It boils down to two views of the "statute, case law and regulations," where one says that a separate rate can only be achieved via a separate rate application and the other says that "a respondent may reasonably expect to obtain a Separate Rate through the questionnaire." The companies supported the latter view by noting that the standard questionnaires include questions on obtaining a separate rate and the fact that Commerce "must select both entities as mandatory respondents when the total pool of potential respondents is two."
Jin Tiong didn't submit a separate rate application in the review, though it errantly received a separate rate questionnaire months after the deadline for applications closed. The company filled out the questionnaire, though the agency revoked it. The Court of International Trade sustained the move (see 2303200039).
In a reply brief at the appellate court, Jin Tiong and Repwire said that the U.S.'s presumption that separate rate status can only be achieved via a separate rate certification or application "is belied by the language of the standard questionnaire." The original questionnaire "provides for multiple options to prove the lack of government control, including the completion of a portion of Section A of the questionnaire," which need not be completed if a separate rate application is provided.
"If entire paragraphs are ignored, the individual words are not only not being given their ordinary meaning, they are being given no meaning. A[s] such, in order to give meaning to this section of the standard questionnaire, a separate rate can also be granted based on the questionnaire response," the brief said.