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CAFC Says No Automatic Review Rescission for Company Denied Separate Rate for No Shipments

A company unable to prove it has any entries for the purposes of obtaining a separate rate should not automatically be found to have no shipments and be rescinded from the review, the U.S. Court of Appeals for the Federal Circuit ruled in a May 19 opinion. Though the appellate court found the government's claim that it is not required to rescind a review for a company with no entries unconvincing, Judges Timothy Dyk, Richard Linn and Raymond Chen said that Ningbo Qixin did not clear the bar for establishing no shipments, even though Commerce had rejected a separate rate for the company because it couldn't verify any entries.

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The issue in the suit arose after Commerce declined to grant exporter Qixin a separate rate in the 2014-15 review of the antidumping duty order on solar cells from China for not having sales during the review period. Qixin argued that the agency should have rescinded the review rather than deny the separate rate application and treat the company as part of the China-wide entity if Commerce concluded there were no entries during the review period (see 2204130036). The U.S. said Qixin had failed to provide evidence of an entry of subject merchandise.

Qixin took the matter to the Court of International Trade, where Commerce asked for a voluntary remand after agreeing that the exporter had no opportunity to respond to the arguments the company may have made. Commerce issued a supplemental questionnaire to Qixin requesting documentation on the one sale Qixin put forward as a sale of subject merchandise. Qixin did not submit the requested information, leading Commerce to again reject the separate rate application. Back at the trade court, Qixin moved for leave to file new information out of time, identifying for the first time five entries that the company said were of the solar cells. CIT denied the motion.

At the Federal Circuit, Qixin first argued that the trade court should have granted the company's motion for leave to file new factual information out of time since the exporter had good cause for not presenting the information before the agency's deadlines. Dyk, the author of the opinion, disagreed, noting that Qixin had "no fewer than four opportunities" to provide the documents establishing that it had entries of subject merchandise during the review. Supplementation of the record is normally not permitted since judicial review should be centered on the record already in existence, so the trade court did not abuse its discretion by rejecting Qixin's motion, the judge said.

As an alternative argument, Qixin said Commerce should have just rescinded the review for the exporter rather than assigning it the China-wide rate if it found the company did not have any entries. Qixin based its argument on the Federal Circuit's Allegheny Ludlum Corp. v. U.S. decision in which the appellate court said where there are no entries, Commerce does't need to conduct a review.

The government argued that the use of the term "may" when describing what the agency can do if it finds there were no entries during the review period means that it is not required to rescind a review in such circumstances. The Federal Circuit did not buy this argument. "We doubt that continuing a review where it was conclusively established that there were no entries during the period of review could ever be appropriate," the opinion said.

"But that is not the situation here," the court added. Commerce only found that Qixin did not clear the burden to get a separate rate, not that it didn't have any entries. "Neither the regulation nor Allegheny Ludlum requires rescission of an administrative review where the exporter has failed to establish the absence of entries, and indeed, Qixin continues to argue that it did have entries," the court said.

(Canadian Solar International Limited v. United States, Fed. Cir. # 20-2162, dated 05/19/23; Judges: Timothy Dyk, Richard Linn and Raymond Chen; Attorneys: Adams Lee of Harris Bricken for plaintiff-appellant Ningbo Qixin; Joshua Kurland for defendant-appellee U.S. government)