CAFC Sustains Rejection of Separate Rate Questionnaire Response Filed After Questionnaire Was Withdrawn
The U.S. Court of Appeals for the Federal Circuit on Aug. 19 affirmed the Commerce Department’s decision to reject an exporter’s response to a separate rate questionnaire that had already been rescinded.
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Exporter Jin Tiong Electrical Materials Manufacturer failed to file a timely separate rate application for the 2019-20 review of Chinese-origin aluminum wire and cable. Commerce accidentally issued Jin Tiong a separate rate questionnaire anyway; after realizing the error, it rescinded it two weeks later.
Jin Tiong submitted a response anyway. It argued that Commerce had requested the response, then rejected it under the incorrect presumption that separate rates could only be granted after an application was filed (see 2311140058).
In her 2023 opinion, Court of International Trade Judge Jennifer Choe-Groves described the mistake as “unfortunate,” but said the department had acknowledged it and withdrawn the questionnaire before Jin Tiong responded, meaning the response had been unsolicited and properly rejected (see 2303200039).
In their opinion this week, CAFC judges Alan Lourie, Jimmie Reyna and Raymond Chen sustained Choe-Groves’ decision.
“It is well established that Commerce has broad discretion to set and enforce its regulatory procedures and deadlines,” including the ones surrounding separate rate applications, they said. The department therefore acted within its discretion when it rescinded its questionnaire because Jin Tiong failed to file an application on time, they said.
They also held that Commerce permissibly applied the China-wide rate to Jin Tiong, “despite that only two respondents were under review,” for the exporter’s failure to file its separate rate application in time.
(Repwire v. United States, Fed. Cir. # 23-1933, dated 8/19/2025; Judges: Alan Lourie, Jimmie Reyna and Raymond Chen; Attorneys: David Craven of Craven Trade Law for plaintiffs-appellants Repwire and Jin Tiong Electrical Materials Manufacturer; Kelly Geddes for defendant-appellee U.S. government; Sydney Mintzer of Mayer Brown for defendant-appellee Southwire Company)