Separate Rate Applications Shouldn't Require Suspended Entry During POR, Exporters Argue
Responding to a Court of International Trade request to discuss “the statutory scheme of who is eligible to apply for a separate rate,” wood moldings and millwork products exporters China Cornici and RaoPing said applicants shouldn’t need a suspended entry during the relevant review period (China Cornici Co. Ltd. v. U.S., CIT #s 23-000216, -00217).
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They said in supplementary letter brief that “there is no statutory foundation for the ‘separate rate’ process.”
They went on to say that the requirement that an applicant have a suspended entry during a period of review appeared for the first time in the 2015 separate rate application -- without notice or explanation. Until that point, “Commerce’s practice was to limit consideration of separate-rate applications ‘to firms that exported subject merchandise to the United States during the period of investigation/review,’” they said.
The department codified its “opaque practice” in its Jan. 15, 2025, regulation amendments, the exporters said, but its explanation for the suspended entry requirement was a post-hoc rationalization that invoked “circular reasoning.” Commerce, they said, explained that it wouldn’t consider separate rate applications made by applicants without a suspended entry “because without entries to which Commerce could assess duties there would [be] no purpose for a separate rate analysis.”
This resulted in “a tale of bureaucratic rigidity triumphing over both fairness and fact,” they said. They again explained that Commerce rescinded a separate rate countervailing duty review for China Cornici and RaoPing because it found CBP had not suspended an entry for either of them during the review period. But CBP hadn’t done so due to a failure on its end, not theirs -- after they initially failed to deposit duties, then corrected the error, they asked the agency to suspend liquidation, they said. But CBP “failed to act,” they said.
"Commerce’s mechanical application of [a then-]uncodified policy to retroactively deny Plaintiffs rights, amounts to administrative whim," they said.