Canadian Solar International Limited et al v. United States

Slip. Op. 19-127
UNITED STATES COURT OF INTERNATIONAL TRADE
CANADIAN SOLAR INTERNATIONAL
LIMITED ET AL.,
Plaintiffs and Consolidated Plaintiffs,
and
SHANGHAI BYD CO., LTD. ET AL.,
Plaintiff-Intervenors and
Consolidated Plaintiff-Intervenors,
v.
UNITED STATES,
Defendant,
and
SOLARWORLD AMERICAS, INC. ET AL.,
Defendant-Intervenor and
Consolidated Defendant-Intervenors.
Before: Claire R. Kelly, Judge
Consol. Court No. 17-00173
MEMORANDUM AND ORDER
[Denying Plaintiff-Intervenor’s motion to file out of time new factual information related to
U.S. Department of Commerce’s remand redetermination.]
Dated: October 1, 2019
Adams Chi-Peng Lee, Harris Bricken McVay Sliwoski LLP, of Seattle, WA, for Ningbo
Qixin Solar Electrical Appliance Co., Ltd.
Joshua Ethan Kurland, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, DC., for defendant. With him on the brief were
Joseph H. Hunt, Assistant Attorney General, Jeanne E. Davidson, Director, and Reginald
T. Blades, Assistant Director. Of Counsel on the brief was Mercedes C. Morno, Senior
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Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S.
Department of Commerce, of Washington, DC.
Timothy C. Brightbill, Wiley Rein, LLP, of Washington, DC, for SolarWorld Americas, Inc.
Before the court is Plaintiff-Intervenor Ningbo Qixin Solar Electrical Appliance Co.
Ltd.’s (“Qixin”) motion to file out of time new factual information related to the U.S.
Department of Commerce’s (“Commerce” or the “Department”) Remand Results. 	Pl.-
Intervenor’s [Qixin’s] Mot. Leave File Out of Time New Factual Info. Related DOC’s
Remand Redetermination, Aug. 14, 2019, ECF No. 120 (“Pl.-Intervenor’s Mot.”); see also
Results of Redetermination Pursuant to Ct. Remand Order Confidential Version, July 15,
2019, ECF No. 110 (“Remand Results”). The United States (“Defendant”) and Solarworld
Americas, Inc. (“Defendant-Intervenor”) oppose the motion. 	See Def.’s Resp. [Pl.-
Intervenor’s Mot.] Leave File Out of Time New Factual Info., Sept. 11, 2019, ECF No. 127
(“Def.’s Resp. Br.”); [Def.-Intervenor] Solarworld Americas, Inc. Resp. [Pl.-Intervenor’s
Mot.], Sept. 11, 2019, ECF No. 128. 	For the following reasons, Plaintiff-Intervenor’s
motion is denied.
On July 15, 2019, Commerce filed its remand redetermination, issued pursuant to
the court’s order in Canadian Solar Int’l Ltd. v. United States, 43 CIT __, __, 378 F. Supp.
3d. 1292, 1325 (2019) requiring Commerce to reconsider or further explain its rejection
of 	Qixin’s separate rate application. See generally Remand Results. On remand,
Commerce reopened the record and issued Qixin a supplemental questionnaire on May
2, 	2019. 	See 	Letter from 	USDOC to 	Sandler, Travis 	Pertaining to 	Ningbo 	Qixin
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Questionnaire, RPD 3, bar code 3829214-01 (May 2, 2019). 1 Commerce requested that
Qixin provide information which would demonstrate whether Qixin had a sale or entry of
the subject merchandise during the period of review. See id. at question 2.
On May 9, 2019, Qixin replied by letter, stating that it had been “unable to obtain
the information requested” and 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 	[Customs 	and 	Border 	Protection].” 	Resp. 	from 	Sandler, 	Travis 	&
Rosenberg, P.A. to Sec. of Commerce Pertaining to Ningbo Qixin Suppl. Questionnaire
at 	1, 	RPD 	5, 	bar 	code 	3831452-01 	(May 	9, 	2019) 	(“Qixin’s 	Resp. 	to 	Suppl.
Questionnaire”). According to Qixin, its counsel submitted this response without Qixin’s
knowledge and because of extenuating circumstances. 2 Pl.-Intervenor’s Mot. at 2–3. On
June 9, 2019, Commerce issued its draft remand redetermination to the parties, in which
Commerce determined that Qixin was not eligible for a separate rate because it “failed to
provide conclusive evidence [that] it had a sale or shipment of subject merchandise[.]”
Mem. from USDOC to File Pertaining to Interested Parties Draft Results of Remand
Redetermination at 23, RPD 6, bar code 3850449-01 (June 19, 2019). 	In its remand
1 On July 26, 2019, Defendant filed on the docket the indices to the public and confidential
administrative records of this review at ECF Nos. 112-2–3. All further references to documents
from the administrative records are identified by the numbers assigned by Commerce in these
indices.
2 Qixin explained the claimed extenuating circumstances. 	See Pl.-Intervenor’s Mot. at 2–3.
Commerce issued the supplemental questionnaire during May Day, an official public holiday in
the People’s Republic of China that fell on May 1–4, 2019. Id. at 2. Due to “[m]iscommunication”
between Qixin and its counsel, Qixin believed the deadline to respond to Commerce’s
supplemental questionnaire to be Monday, May 6, 2019 rather than Thursday, May 9, 2019. Id.
at 2–3. Consequently, Qixin believed that it would be “unable to respond to the Department’s
supplemental questionnaire response,” since “its U.S. importers were unavailable to assist over
the weekend.” Id.
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redetermination, Commerce continued to find that Qixin was not eligible for a separate
rate. See Remand Results at 15–23. Qixin now requests leave from the court to file new
factual information pertinent to Commerce’s denial of separate rate status. 	See Pl.-
Intervenor’s Mot at 1.
Judicial review of a remand redetermination is based on the administrative record
of the proceeding. See section 516A(b)(2)(A) of the Tariff Act of 1930, as amended, 19
U.S.C. § 1516a(b)(A) (2012). 3 That record consists of, inter alia, “a copy of all information
presented . . . or obtained . . . during the course of the administrative proceeding[.]” 19
U.S.C. 	§ 	1516a(b)(2)(A)(i). 	Commerce’s 	regulations 	define 	admissible 	“factual
information” and prescribe how and when parties may provide that information to the
agency. See 19 C.F.R. § 351.102(b)(21) (2019) (defining “factual information”); 19 C.F.R.
§ 351.301 (setting time limits and parameters governing how different categories of
factual information are provided to the agency).
Generally, a court will not consider matters outside of that administrative record,
unless the omission prevents effective judicial review. 	See Axiom Res. Mgmt., Inc. v.
United States, 564 F.3d 1374, 1379–80 (Fed. Cir. 2009) (citing Camp v. Pitts, 411 U.S.
138, 142 (1973); Murakami v. United States, 46 Fed. Cl. 731, 735 (2000), aff’d, 398 F.3d
1342 (Fed. Cir. 2005)). 	“Limiting the court’s review to the agency record furthers
important efficiency and finality considerations.” Chemours Co. FC LLC v. United States,
Slip Op. 19-82, 2019 WL 3205769, at *2 (CIT July 3, 2019) (citing Vt. Yankee Nuclear
3 Further citations to the Tariff Act of 1930, as amended, are to the relevant provisions of the U.S.
Code 2012 edition.
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Power Corp. v. Nat’l Res. Def. Council, Inc., 435 U.S. 519, 554–55 (1978); Essar Steel
Ltd. V. United States, 678 F.3d 1268, 1277 (Fed. Cir. 2012)). However, a reviewing court
will examine information outside of the administrative record when a party demonstrates
that there is a “reasonable basis to believe that materials considered by agency
decisionmakers are not in the record.” 	See Ammex Inc. v. United States, 23 CIT 549,
556, 62 F. Supp. 2d 1148, 1156 (1999); see also Saha Thai Steel Pipe Co. v. United
States, Ltd., 11 CIT 257, 259, 661 F. Supp. 1198, 1200 (1987).
Plaintiff-Intervenor 	does 	not 	allege 	that 	the 	omission 	of 	certain 	information
precludes the court’s consideration of 	the Remand Results or that the record is
incomplete. Nor does it allege that Commerce failed to consider materials that were on
the record. Instead, Plaintiff-Intervenor now argues that, because it had “not adequately
respond[ed] to the Department’s supplemental questionnaire[,]” the court should require
Commerce to consider materials that were not on the record. Pl.-Intervenor’s Mot. at 3.
Given that the court’s review of the Remand Results only extends to the same world of
materials that Commerce reviewed, the court, here, cannot grant Qixin’s request to file
new 	factual 	information. 	See 	19 	U.S.C. 	§ 	1516a(b)(1)(B)(i) 	(judicial 	review 	of
Commerce’s 	determinations 	in 	antidumping 	proceedings); 	see 	also 	19 	U.S.C.
§ 1516a(b)(2)(A) (record for review).
Moreover, 	Qixin’s 	request 	to 	submit 	new 	factual 	information 	to 	the 	court
misapprehends the judicial review and administrative processes. Qixin bore the burden
to populate the remand record with materials that would support its separate rate
application, including information responsive to Commerce’s supplemental questionnaire
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on remand. 	See Ta Chen Stainless Steel Pipe, Inc. v. United States, 298 F.3d 1330,
1336 (Fed. Cir. 2002). If Qixin wishes to submit information in the administrative
proceeding, it must do so in that proceeding. See 19 C.F.R. § 351.104(a)(1) (defining the
administrative 	record); 	see 	also 	Ammex, 	Inc., 	62 	F. 	Supp. 	2d 	at 	1153 	(“[T]he
administrative record . . . include[s] information that was directly or indirectly considered
by the relevant agency decisionmakers[.]”). If Qixin requires additional time to submit this
information, Commerce’s regulations provide the opportunity to request an extension of
time. 	See 	19 	C.F.R. 	§ 	351.302(b) 	(extension 	of 	time 	for 	“good 	cause”). 	Qixin
acknowledges that it did not make such a request. See Pl.-Intervenor’s Mot. at 3. If Qixin
objects to Commerce’s refusal to accept such information, it may challenge that rejection
in the court in a USCIT R. 56.2 motion using any basis available to it. 	See 19 U.S.C.
§ 1516a(b)(1). 	Qixin cannot circumvent the administrative process through judicial
review, and the court cannot now consider evidence that Commerce itself never
considered.
Therefore, upon consideration of Plaintiff-Intervenor’s motion to file out of time new
factual information related to Commerce’s remand redetermination, consideration of all
other pertinent papers filed with the court, and upon due deliberation, it is
ORDERED that Plaintiff-Intervenor’s motion is denied.
/s/ Claire R. Kelly
Claire R. Kelly, Judge
Dated: October 1, 2019
New York, New York
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