Chinese Solar Exporter Argues for Separate AD Rate in Federal Circuit Appeal

The Commerce Department should accept an exporter's evidence of entries to establish a separate rate in an antidumping duty case, or else conclude that it had no shipments and not review the company, the exporter, Ningbo Qixin, argued in an Aug. 18 reply brief to the U.S. Court of Appeals for the Federal Circuit (Canadian Solar International, et al. v. U.S., Fed. Cir. # 20-2162).

The case concerns the 2014-2015 administrative review of the AD order on solar cells from China. During the review, Ningbo Qixin submitted a separate rate application. Commerce found that no entry of subject merchandise was made during the review period and subsequently treated Ningbo Qixin as part of the China-wide entity in its final rate calculations. CIT remanded the rejection of the separate rate application to Commerce. During that remand, Ningbo Qixin filed for leave to file out of time relating to the entry under review, which CIT rejected. Ningbo Qixin then challenged its lack of a separate rate at CAFC in April, arguing that the CIT improperly denied the appellant's motion to file new factual information out of time due to "extenuating circumstances" (see 2204130036).

Ningbo Qixin says that "its failure to raise arguments before the Department or the CIT ... should not preclude this court from considering these arguments now," because one of the exceptions to the exhaustion requirement is where the issue involves a pure question of law. The factual record is no longer in question because Qixin was not permitted to supplement the record previously, the company argued. The underlying legal issue is how Commerce should legally act when it finds that there are no entries of subject merchandise for a specified exporter during a review period.

Commerce argued that because Ningbo Qixin tried to submit documents that it did have at least one entry of subject merchandise, this necessarily precludes the company from arguing that it did not. However, Ningbo Qixin argued that the "record is what it is. If the Department would not allow Qixin to submit any new factual information, then Qixin can base its arguments only upon the existing record as it stands... ."

The company argued that Commerce's decision to deny it a separate rate was "based solely on the determination that Qixin did not have any suspended entries of subject merchandise during the period of review." According to Ningbo Qixin, the court has held that, “where there are no entries or unlinked sales during a period of review there is no subject merchandise and thus nothing to review... ." The company asked the court to remand the case to Commerce in order to rescind the review with respect to Qixin. In the alternative, the company asked the court to remand the case to Commerce in order to allow it to submit information demonstrating that it had a suspended entry during the review period.