DOJ Briefs Federal Circuit on Commerce's Right to Use a Single Mandatory Respondent in AD Cases
The Commerce Department has the right to select a single mandatory respondent in antidumping proceedings, the Department of Justice said in a June 21 response brief in the U.S. Court of Appeals for the Federal Circuit. YC Rubber, Sutong and ITG Voma are appealing their unsuccessful Court of International Trade challenge of the second administrative review of the antidumping duty order on passenger vehicle and light truck tires from China. In its brief, DOJ says that Commerce is not required by law to examine more than one company individually (YC Rubber Co. (North America) et al. v. United States, Federal Circuit #21-1489).
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After initially selecting two respondents for the administrative review, one backed out and was not replaced. Only after the publication of the preliminary determination, however, did the plaintiffs raise any issues with this development, DOJ said. Commerce then determined that given its "limited resources, workload, and circumstances of the review," using the one remaining respondent to calculate the dumping margin was reasonable.
On appeal, the plaintiffs argued in their opening brief that selecting only one respondent is a misinterpretation of the plural terms "exporters" or "producers" in the relevant law (see 2105140064). This reading is incorrect, DOJ said, since there is a well-established principle which finds that, "unless context dictates otherwise, 'words importing the plural include the singular.'" Congress also did not define "reasonable number" when referencing the number of respondents and Congress' use of the plural terms "exporters" and "producers," DOJ said. "Had Congress intended to ensure that Commerce examined more than one respondent, Congress could have included language to that effect, e.g., 'must have more than one respondent' or 'more than one,'" the brief said. "It did not."