Canadian Solar International v. United States

Case: 20-2162 Document: 47 Page: 1 Filed: 05/19/2023
United States Court of Appeals
for the Federal Circuit
______________________
CANADIAN SOLAR INTERNATIONAL LIMITED,
CANADIAN SOLAR MANUFACTURING
(CHANGSHU), INC., CANADIAN SOLAR
MANUFACTURING (LUOYANG), INC., CSI SOLAR
POWER (CHINA) INC., CSI-GCL SOLAR
MANUFACTURING (YANCHENG) CO., LTD., CSI
CELLS CO., LTD., CANADIAN SOLAR (USA), INC.,
SHANGHAI BYD CO., LTD., YINGLI GREEN
ENERGY HOLDING CO., LTD., BAODING TIANWEI
YINGLI NEW ENERGY RESOURCES CO., LTD.,
TIANJIN YINGLI NEW ENERGY RESOURCES CO.,
LTD., HENGSHUI YINGLI NEW ENERGY
RESOURCES CO., LTD., LIXIAN YINGLI NEW
ENERGY RESOURCES CO., LTD., BAODING
JIASHENG PHOTOVOLTAIC TECHNOLOGY CO.,
LTD., BEIJING TIANNENG YINGLI NEW ENERGY
RESOURCES CO., LTD., HAINAN YINGLI NEW
ENERGY RESOURCES CO., LTD., SHENZHEN
YINGLI NEW ENERGY RESOURCES CO., LTD.,
YINGLI GREEN ENERGY INTERNATIONAL
TRADING CO., LTD., YINGLI GREEN ENERGY
AMERICAS, INC., YINGLI ENERGY (CHINA) CO.,
LTD., CHANGZHOU TRINA SOLAR ENERGY CO.,
LTD., TRINA SOLAR (CHANGZHOU) SCIENCE &
TECHNOLOGY CO., LTD., YANCHENG TRINA
SOLAR ENERGY TECHNOLOGY CO., LTD.,
CHANGZHOU TRINA SOLAR YABANG ENERGY
CO., LTD., TURPAN TRINA SOLAR ENERGY CO.,
LTD., HUBEI TRINA SOLAR ENERGY CO., LTD.,
TRINA SOLAR (U.S.) INC., SOLARWORLD
AMERICAS, INC.,
Plaintiffs
Case: 20-2162 Document: 47 Page: 2 Filed: 05/19/2023
2 CANADIAN SOLAR INTERNATIONAL v. US
NINGBO QIXIN SOLAR ELECTRICAL APPLIANCE
CO., LTD.,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2020-2162
______________________
Appeal from the United States Court of International
Trade in Nos. 1:17-cv-00173-CRK, 1:17-cv-00187-CRK,
1:17-cv-00193-CRK, 1:17-cv-00197-CRK, 1:17-cv-00200-
CRK, Judge Claire R. Kelly.
______________________
Decided: May 19, 2023
______________________
ADAMS LEE, Harris Bricken McVay Sliwoski, LLP, Se-
attle, WA, argued for plaintiff-appellant.
JOSHUA E. KURLAND, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for defendant-appellee. Also repre-
sented by REGINALD THOMAS BLADES, JR., BRIAN M.
BOYNTON, PATRICIA M. MCCARTHY; LESLIE MAE LEWIS, Of-
fice of the Chief Counsel for Trade Enforcement & Compli-
ance, United States Department of Commerce,
Washington, DC.
______________________
Before DYK, LINN, and CHEN, Circuit Judges.
Case: 20-2162 Document: 47 Page: 3 Filed: 05/19/2023
CANADIAN SOLAR INTERNATIONAL v. US 3
DYK, Circuit Judge.
Ningbo Qixin Solar Electrical Appliance Co. Ltd.
(“Qixin”) appeals a final judgment of the United States
Court of International Trade (“CIT”). The CIT sustained a
remand determination by the Department of Commerce
(“Commerce”) that Qixin was not eligible for a separate
rate in an antidumping administrative review and held
that Commerce did not err in declining to rescind the re-
view. 1
On appeal, Qixin contends that (1) the CIT should have
granted Qixin’s motion for leave to file new factual mate-
rial and (2) Commerce should have rescinded the adminis-
trative review because Commerce had determined that
Qixin had made no entries during the period of review. Be-
cause (1) the CIT did not abuse its discretion in denying
Qixin’s motion to file new material out of time and
(2) Commerce did not make a conclusive finding that Qixin
had no entries in the period of review as required to rescind
a review under the applicable regulation, we affirm.
BACKGROUND
I
Commerce imposes antidumping duties when it “deter-
mines that a class or kind of foreign merchandise is being,
or is likely to be, sold in the United States at less than its
fair value,” resulting in actual or threatened harm to a do-
mestic industry. 19 U.S.C. § 1673. Foreign exporters of
merchandise that is subject to an antidumping duty order
must deposit preliminary estimated antidumping duties
when the merchandise enters the United States, but the
final antidumping duty rate is determined later, during
1 Canadian Solar Int’l Ltd. v. United States, 415 F.
Supp. 3d 1326 (Ct. Int’l Trade 2019).
Case: 20-2162 Document: 47 Page: 4 Filed: 05/19/2023
4 CANADIAN SOLAR INTERNATIONAL v. US
annual retrospective administrative reviews. See
19 C.F.R. § 351.212(a).
An administrative review requires Commerce to review
the antidumping duty rate applicable to specific entries in
the period of review. As the government agrees, where it
is established that there are no entries of subject merchan-
dise in the period, Commerce “cannot” initiate an adminis-
trative review. Allegheny Ludlum Corp. v. United States,
346 F.3d 1368, 1372 (Fed. Cir. 2003).
In the case of nonmarket economy (“NME”) countries,
such as the People’s Republic of China (“PRC”), all export-
ers are presumed to be controlled by the state and, accord-
ingly, are subject to a single country-wide duty rate, unless
an exporter is able to affirmatively demonstrate the ab-
sence of state control, in which event the exporter is enti-
tled to a separate rate. See Dongtai Peak Honey Indus. Co.
v. United States, 777 F.3d 1343, 1349–50 (Fed. Cir. 2015);
see also 19 C.F.R. § 351.107(d). An exporter seeking a sep-
arate rate from an NME country-wide rate has the burden
of demonstrating that it was free of state control and that
it had entries of subject merchandise that entitled it to a
separate rate for the period of review. See Diamond
Sawblades Mfrs. Coal. v. United States, 866 F.3d 1304,
1311 (Fed. Cir. 2017).
II
This appeal relates to the third administrative review
of a 2012 antidumping duty order for solar cells from the
PRC. 2 The 2012 antidumping duty order had assigned
2 Crystalline Silicon Photovoltaic Cells, Whether or
Not Assembled Into Modules, From the People’s Republic
of China: Amended Final Determination of Sales at Less
Than Fair Value, and Antidumping Duty Order, 77 Fed.
Reg. 73,018 (Dec. 7, 2012).
Case: 20-2162 Document: 47 Page: 5 Filed: 05/19/2023
CANADIAN SOLAR INTERNATIONAL v. US 5
Qixin a separate rate lower than the PRC-wide rate, as did
the first two administrative reviews for the periods from
May 25, 2012, through November 30, 2013, and from
December 1, 2013, through November 30, 2014, 3 evidently
finding that Qixin had entries during these review periods
and was not government controlled.
For the third administrative review, for the review pe-
riod from December 1, 2014, through November 30, 2015,
Qixin filed a request for administrative review and was in-
cluded as a party in Commerce’s initiation notice. 4 That
initiation notice explained that a party seeking a separate
rate would have to submit a separate rate application or
certification. 5 The separate rate application explained that
“an exporter cannot obtain a separate rate without provid-
ing [Commerce] the relevant U.S. Customs 7501 Entry
3 See Crystalline Silicon Photovoltaic Cells, Whether
or Not Assembled Into Modules, From the People’s
Republic of China: Final Results of Antidumping Duty
Administrative Review and Final Determination of No
Shipments; 2012–2013, 80 Fed. Reg. 40,998, 41,002 (July
14, 2015); Crystalline Silicon Photovoltaic Cells, Whether
or Not Assembled Into Modules, From the People’s
Republic of China: Final Results of Antidumping Duty
Administrative Review and Final Determination of No
Shipments; 2013–2014, 81 Fed. Reg. 39,905, 39,907, 39,908
(June 20, 2016).
4 Initiation of Antidumping and Countervailing
Duty Administrative Reviews, 81 Fed. Reg. 6,832, 6,835
(Feb. 9, 2016).
5 Id. at 6,834. The notice also explained that “[i]f a
producer or exporter named in this notice of initiation had
no exports, sales, or entries during the period of re-
view . . . , it must notify [Commerce] within 30 days of pub-
lication of this notice.” Id. at 6,832.
Case: 20-2162 Document: 47 Page: 6 Filed: 05/19/2023
6 CANADIAN SOLAR INTERNATIONAL v. US
Summary.” J.A. 118. Qixin filed a separate rate applica-
tion in March 2016 with a U.S. Customs 7501 Entry
Summary for a single sale Qixin claimed was a sale of mer-
chandise during the 2014 to 2015 period of review. In re-
sponse to two supplemental questionnaires from
Commerce, Qixin maintained that the sale was of subject
merchandise. Commerce continued to assert that Qixin
had not provided an entry number that corresponded to
subject merchandise.
In December 2016, Commerce issued the preliminary
results of the administrative review. 6 The preliminary re-
sults did not mention Qixin’s eligibility for a separate rate.
Qixin submitted a case brief commenting on the prelimi-
nary results, arguing that Commerce had erroneously
omitted Qixin from the preliminary results of the adminis-
trative review and should correct the error and calculate a
separate rate for Qixin. Qixin argued, in the alternative,
that if Commerce concluded that there had been no entries
during the period of review, it should have rescinded the
review with respect to Qixin. The effect of rescinding the
administrative review with respect to Qixin would have
been that the separate rate established in the previous ad-
ministrative review would continue going forward as the
cash deposit for any new Qixin entries.
6 Crystalline Silicon Photovoltaic Cells, Whether or
Not Assembled Into Modules, From the People’s Republic
of China: Preliminary Results of Antidumping Duty
Administrative Review and Preliminary Determination of
No Shipments; 2014–2015, 81 Fed. Reg. 93,888 (Dec. 22,
2016); see also J.A. 613–44 (Preliminary Decision
Memorandum).
Case: 20-2162 Document: 47 Page: 7 Filed: 05/19/2023
CANADIAN SOLAR INTERNATIONAL v. US 7
In June 2017, Commerce issued the final results of its
administrative review. 7 In the final results, Commerce ex-
plained that Qixin had failed to provide evidence of an en-
try of subject merchandise during the period of review and,
without “conclusive evidence” of such an entry, Qixin was
not entitled to a separate rate. J.A. 762. As for Qixin’s al-
ternative argument—that if Commerce found there had
been no entry of merchandise in the period of review,
Commerce should have rescinded the review—Commerce
simply “determined not to rescind the review” without fur-
ther explanation. J.A. 762.
Qixin challenged the final results before the CIT, and
Commerce requested a remand, agreeing that Qixin “had
no opportunity to respond to Commerce’s denial of its sep-
arate rate application and, likewise, Commerce lacked the
opportunity to respond to the arguments Qixin may have
made, had it had the opportunity.” Canadian Solar Int’l
Ltd. v. United States, 378 F. Supp. 3d 1292, 1324–25 (Ct.
Int’l Trade 2019) (citing Def.’s Response in Opposition to
Plaintiff’s Motion for Judgment on the Agency Rec. at
44–45 (J.A. 834–35)). The CIT granted Commerce’s
7 Crystalline Silicon Photovoltaic Cells, Whether or
Not Assembled Into Modules, From the People’s Republic
of China: Final Results of Antidumping Duty
Administrative Review and Final Determination of No
Shipments; 2014–2015, 82 Fed. Reg. 29,033 (June 27,
2017); see also J.A. 672–764 (Issues and Decision
Memorandum). Commerce amended the final results, but
the amended results did not change with respect to Qixin.
Crystalline Silicon Photovoltaic Cells, Whether or Not
Assembled Into Modules, from the People’s Republic of
China: Amended Final Results of Antidumping Duty
Administrative Review; 2014–2015, 82 Fed. Reg. 40,560(Aug. 25, 2017).
Case: 20-2162 Document: 47 Page: 8 Filed: 05/19/2023
8 CANADIAN SOLAR INTERNATIONAL v. US
remand motion, ordering Commerce to reconsider its deci-
sion regarding Qixin’s separate rate application. Id. at
1325.
On remand, Commerce reopened the record and issued
a third supplemental questionnaire to Qixin requesting,
among other information, explanation and documentation
regarding the sale Qixin had put forward as a sale of sub-
ject merchandise. Qixin responded:
Ningbo Qixin has been unable to obtain the infor-
mation requested by the Department of Commerce
and thus is supplying this letter in lieu of a sub-
stantive response. Ningbo Qixin notes that all of
the information . . . is in the possession of the
United States government and official copies of all
of these documents can be readily obtained from
[U.S. Customs and Border Protection (“Customs”)].
J.A. 901.
In June 2019, Commerce issued draft remand results
reaffirming the denial of Qixin’s separate rate application
in the pre-remand final results, giving Qixin an oppor-
tunity to respond. Commerce explained that “because
Qixin had failed to provide conclusive evidence it had a sale
or shipment of subject merchandise . . . , Qixin had not sat-
isfied the requirements for obtaining a separate rate.”
J.A. 925. Commerce noted that the burden rested on Qixin
to show it was entitled to a separate rate, and that Qixin
had failed to provide documentation of any entry of subject
merchandise “[d]espite [the] repeated opportunities” pro-
vided by Commerce to do so. J.A. 926.
Qixin submitted no comments on the draft remand re-
sults. Accordingly, in July 2019, Commerce issued the fi-
nal remand results, which reaffirmed the determination
that Qixin had failed to demonstrate it had an entry of
Case: 20-2162 Document: 47 Page: 9 Filed: 05/19/2023
CANADIAN SOLAR INTERNATIONAL v. US 9
subject merchandise in the period of review and, therefore,
that Qixin was not entitled to a separate rate.
Thereafter, when the final remand results were before
the CIT, Qixin moved for leave to file new information out
of time. Qixin no longer contested that the previously iden-
tified sale was not a sale of subject merchandise. For the
first time, Qixin identified five additional entries that
Qixin claimed were of subject merchandise during the re-
view period. Qixin apparently sought to provide this infor-
mation to the CIT so that the information could be
considered by Commerce in the event of a further remand.
In October 2019, the CIT denied Qixin’s motion to file
new information. The CIT explained that Qixin was re-
quired to submit this information to Commerce in the first
instance, and, if Qixin needed an extension of time, it had
to submit such request first to Commerce. The CIT could
not, in the absence of such request, “consider evidence that
Commerce itself never considered.” Canadian Solar Int’l
Ltd. v. United States, 399 F. Supp. 3d 1379, 1383 (Ct. Int’l
Trade 2019).
In a separate decision, the CIT sustained Commerce’s
denial of a separate rate for Qixin. The CIT noted that
Commerce had “reopened the record to provide Qixin an
opportunity to demonstrate that any entry it may have
made during the review period qualified as a sale of subject
merchandise.” Canadian Solar Int’l Ltd. v. United States,
415 F. Supp. 3d 1326, 1335 (Ct. Int’l Trade 2019) (internal
quotation marks and citation omitted). Despite having the
“burden to populate the record with all relevant infor-
mation[,] Qixin failed to provide Commerce with the infor-
mation it requested.” Id. (citation omitted). Furthermore,
Qixin had not “challenge[d] Commerce’s redetermination
on this matter” by filing comments on the draft remand re-
sults. Id.Case: 20-2162 Document: 47 Page: 10 Filed: 05/19/2023
10 CANADIAN SOLAR INTERNATIONAL v. US
Following several additional remands to Commerce
and CIT decisions unrelated to Qixin, the CIT entered a
final judgment denying Qixin a separate rate. See
Canadian Solar Int’l Ltd. v. United States, 548 F. Supp. 3d
1373 (Ct. Int’l Trade 2021). Qixin appealed. We have ju-
risdiction pursuant to 28 U.S.C. § 1295(a)(5).
DISCUSSION
I
On appeal, Qixin first argues that the CIT should have
granted Qixin’s motion for leave to file new factual infor-
mation out of time because Qixin had good cause for not
presenting the information before Commerce’s deadlines.
Qixin had the burden to create the record during the ad-
ministrative review and had no fewer than four opportuni-
ties—the original separate rate application and the three
supplemental questionnaires—to provide complete docu-
mentation establishing entries of subject merchandise dur-
ing the period of review. Normally, supplementation of the
record is not permitted, because “the focal point for judicial
review should be the administrative record already in ex-
istence, not some new record made initially in the review-
ing court.” Camp v. Pitts, 411 U.S. 138, 142 (1973) (per
curiam); see also Axiom Res. Mgmt., Inc. v. United States,
564 F.3d 1374, 1380 (Fed. Cir. 2009). Accordingly, the CIT
did not abuse its discretion in denying Qixin’s motion to file
new factual material out of time, as Qixin now apparently
admits. 8 See Dongtai Peak Honey, 777 F.3d at 1353
8 Qixin admits that “[Commerce] did provide an op-
portunity to submit information necessary to respond fully
to [Commerce’s] supplemental questionnaire[,] . . . that
[Qixin] perhaps could have and should have requested an
extension of time to submit its response to [Commerce’s]
remand supplemental questionnaire[, and] . . . that the
Case: 20-2162 Document: 47 Page: 11 Filed: 05/19/2023
CANADIAN SOLAR INTERNATIONAL v. US 11
(“Commerce’s rejection of untimely-filed factual infor-
mation does not violate a respondent’s due process rights
when the respondent had notice of the deadline and an op-
portunity to reply.”); 19 C.F.R. § 351.302(d) (providing that
Commerce will not consider untimely filed materials).
Nonetheless, Qixin asks us as a matter of equity to allow
the filing. We have no such authority.
II
Qixin alternatively argues that Commerce should have
rescinded the administrative review for Qixin rather than
assigning Qixin the PRC-wide rate, relying on our decision
in Allegheny Ludlum in which we explained that “where
there are no entries . . . during a period of review there is
no subject merchandise and thus nothing to review and no
basis for revising cash deposit rates—so Commerce need
not (indeed, cannot) conduct a review.” 346 F.3d at 1372.
The government contends that Qixin’s argument was
forfeited because it was not raised before Commerce or the
CIT, except in Qixin’s pre-remand case brief. We need not
decide whether the issue was properly raised below be-
cause we conclude that Qixin’s argument lacks merit in any
case.
The applicable regulation states that Commerce “may
rescind an administrative review . . . if [it] concludes that,
during the period covered by the review, there were no en-
tries, exports, or sales of the subject merchandise, as the
case may be.” 19 C.F.R. § 351.213(d)(3) (emphasis added).
According to the government, “[t]he regulation’s use of the
permissive term ‘may’ means that Commerce is not
CIT and this Court generally will not consider matters out-
side the administrative record unless the omission pre-
vents effective judicial review.” Appellant’s Br. 26 (citing
Axiom Res. Mgmt., Inc., 564 F.3d at 1379–80).
Case: 20-2162 Document: 47 Page: 12 Filed: 05/19/2023
12 CANADIAN SOLAR INTERNATIONAL v. US
required to rescind a review in such circumstances and has
discretion in making its determination.” Gov’t’s Br. 32 (ci-
tation omitted).
However, the government was unable to identify any
circumstances in which a review could continue in the ab-
sence of any entries of subject merchandise in the review
period, and its effort to dismiss Allegheny Ludlum as inap-
plicable to NME cases is unconvincing. We doubt that con-
tinuing a review where it was conclusively established that
there were no entries during the period of review could ever
be appropriate.
But that is not the situation here. Despite some lan-
guage in Commerce’s original (pre-remand) final results
that suggested Commerce may have affirmatively con-
cluded Qixin had no entries, see J.A. 762 (“[Commerce]
finds that Ningbo Qixin did not have a suspended entry of
subject merchandise during the [review period].”), read in
context, Commerce merely found that Qixin had not met
its burden to establish entries. The final remand results
clearly state that Commerce concluded only that it “deter-
mine[d] that, because Qixin ha[d] failed to provide conclu-
sive evidence that it had a sale or shipment of subject
merchandise, Qixin has not satisfied the requirements for
obtaining a separate rate.” J.A. 962; see also J.A. 963
(“[B]ecause Qixin has failed to demonstrate that it had a
sale or entry of subject merchandise during the [review pe-
riod], Commerce continues to find for purposes of this re-
mand redetermination that Qixin is not eligible for a
separate rate.”).
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. In
Allegheny Ludlum, two parties had claimed they had not
exported any subject merchandise to the United States
Case: 20-2162 Document: 47 Page: 13 Filed: 05/19/2023
CANADIAN SOLAR INTERNATIONAL v. US 13
during the period of review, and Commerce affirmatively
verified those claims, including by “review[ing] Customs’
databases and [finding] that they showed no entries . . .
during the period of review.” 346 F.3d at 1370. The regu-
lation provides for rescission if Commerce “concludes”
there are no entries of subject merchandise in the period of
review. § 351.213(d)(3). Here, Commerce in its final re-
mand decision never “concluded” that Qixin had no entries
in the period of review. In fact, Qixin has never even main-
tained that it had no entries. In its motion for leave to file
new factual material out of time, Qixin pointed to addi-
tional entries it claimed were of subject merchandise dur-
ing the period of review. And at argument, the government
suggested that its records indicate Qixin did in fact have
entries of subject merchandise during the review period. It
is not inconsistent for Commerce to find that Qixin failed
to establish there were no entries (necessary for rescission),
and also to conclude that Qixin failed to establish there
were entries (necessary for a separate rate). Qixin simply
failed to resolve an ambiguity necessary for it to secure re-
lief.
AFFIRMED