'Logically Inconsistent' to Deny Separate Rate With No Subject Entries in AD Case, Exporter Tells CAFC

The Commerce Department's decision not to grant exporter Ningbo Qixin a separate rate in an antidumping duty matter for not having any sales during the period of review "is logically inconsistent" since the agency is supposed to then rescind the antidumping review, the exporter told the U.S. Court of Appeals for the Federal Circuit in an April 12 opening brief. Ningbo Qixin also argued that the Court of International Trade improperly denied the appellant's motion to file new factual information out of time since "extenuating circumstances" warranted another shot to submit the information (Canadian Solar, et al. v. United States, Fed. Cir. #20-2162).

The case concerns the 2014-2015 administrative review of the antidumping duty order on solar cells from China. During the review, Ningbo Qixin submitted a separate rate application. In response, Commerce said that the sale the exporter submitted in the application did not appear to be one of subject merchandise. The agency disagreed, ultimately addressing Ningbo Qixin's claims for the first time in the review's final results, finding that no entry of subject merchandise was made during the review period. Commerce treated Ningbo Qixin as part of the China-wide entity.

CIT remanded the rejection of the separate rate application. During that remand, Ningbo Qixin filed for leave to file out of time relating to the entry under review. In the end this motion was rejected and Commerce's continued decision to deny the separate rate application was sustained. The exporter appealed to the Federal Circuit where it is now arguing that the trade court improperly denied the motion for leave to file out of time new factual information and upheld the separate rate rejection.

As for the motion for leave to file new factual information out of time, Ningbo Qixin said that extenuating circumstances necessitated the motion. These circumstances included the timing of one of Commerce's supplemental questionnaires on remand since the questionnaire was issued during the Chinese May Day holiday and the fact that Qixin was not the importer for its U.S. sales. "We respectfully request that this Court find that the CIT should have granted Qixin’s motion for leave to file out of time the factual information relevant to Qixin’s separate rate status because of the unfortunate extenuating circumstances that were beyond Qixin’s control," the brief said.

Ningbo Qixin further pushed for the Federal Circuit to remand Commerce's denial of the separate rate application on the basis that Qixin didn't have any entries of subject merchandise. "Pursuant to the Department’s regulations and established practice, a finding that Qixin lacked any entries of subject merchandise during the period of review should have resulted in the rescission of the administrative review for Qixin, not the application of the PRC-wide rate," the brief said.

"It was inappropriate for the Department to cause Qixin to lose its previously granted separate rate status just because the Department found it did not have any sales or entries in this period of review. It was also logically inconsistent for the Department to apply the PRC-wide rate to Qixin because this required Qixin to have entries during the POR to which the PRC-wide rate could be applied."