[00:00:00] Speaker 03:
2162, Canadian Solar International versus United States.

[00:00:07] Speaker 03:
Mr. Lee.

[00:00:11] Speaker 03:
It's just me, Your Honor.

[00:00:13] Speaker 03:
Oh, I guess he waived argument.

[00:00:18] Speaker 03:
That's right.

[00:00:19] Speaker 03:
That's right.

[00:00:24] Speaker 03:
So go ahead.

[00:00:25] Speaker 01:
Thank you, Your Honor.

[00:00:28] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:00:31] Speaker 01:
This court should affirm the decision of the trial court in this case because the appellant Ningbo Kishin failed in multiple ways to preserve its argument.

[00:00:41] Speaker 01:
And in any event, the arguments that they're making lack merit.

[00:00:46] Speaker 03:
Can we focus a bit, and I think this is the reason that we wanted to hear from you is not so much on the first point, but on the second point.

[00:00:54] Speaker 03:
Can an administrative review be initiated with respect to an importer who has no entries?

[00:01:02] Speaker 01:
Yes, in the sense that the regulation, the relevant regulation, 19 CFR 351213 D3 that's cited in the brief, it's a discretionary regulation.

[00:01:16] Speaker 03:
But that's terminating.

[00:01:18] Speaker 03:
That's not initiating.

[00:01:20] Speaker 03:
My question was about initiating.

[00:01:26] Speaker 01:
I think the answer is still yes, Your Honor, but it's a little more complicated because at the time of initiation, commerce does not necessarily know whether companies have entries or don't.

[00:01:37] Speaker 01:
What happens is that commerce will issue an initiation notice that says,

[00:01:43] Speaker 01:
Anyone who wishes to request an administrator review of this order for which we're in the anniversary month, please go ahead and request a review.

[00:01:53] Speaker 01:
In a case like this one, the domestic, I'm not sure if that's, it's frequently the case of both the domestic industry and various foreign importers will request a review.

[00:02:02] Speaker 01:
Commerce doesn't know at that point whether anyone has shipments, although presumably if someone is requesting a review, they're not requesting a review because they don't have shipments.

[00:02:15] Speaker 01:
I believe it did.

[00:02:17] Speaker 01:
I'm not 100% sure.

[00:02:18] Speaker 01:
What I am 100% sure of is throughout this proceeding,

[00:02:22] Speaker 01:
Continually, up until the very end, frankly up until appeal, Keshen represented that it had shipments.

[00:02:30] Speaker 01:
We cited these pages of the record in our brief.

[00:02:33] Speaker 01:
It's at page 568, 595, 653 of the record.

[00:02:39] Speaker 01:
And frankly, it's pretty clear, based on the evidence, that there were shipments of some kind.

[00:02:48] Speaker 01:
They just weren't ultimately able to demonstrate evidence of a shipment that commerce requires in order to give someone a separate rate.

[00:02:57] Speaker 02:
Mr. Curlin, the regulation says the secretary may rescind if the secretary concludes there were no entries.

[00:03:08] Speaker 02:
Under what circumstances would the secretary properly not rescind if the secretary concludes there were no entries?

[00:03:19] Speaker 01:
Well, I think implicit in your question is an important distinction that we have to make about this case.

[00:03:24] Speaker 01:
In this case, the secretary did not make an affirmative conclusion.

[00:03:28] Speaker 02:
No, I understand that.

[00:03:30] Speaker 02:
I'm just asking the question, under what circumstances would the secretary properly not rescind

[00:03:38] Speaker 02:
if the conclusion was that there were no entries.

[00:03:40] Speaker 02:
Because the statute is written in discretionary language.

[00:03:44] Speaker 01:
Right.

[00:03:45] Speaker 01:
I think it would be inappropriate for me to try to speculate when that might come up.

[00:03:52] Speaker 01:
I can try to spin circumstances.

[00:03:54] Speaker 01:
But I think it's a case-by-case determination, depending on the facts.

[00:03:57] Speaker 03:
I suppose the secretary said, I conclude based on the record that there were no entries.

[00:04:05] Speaker 03:
I'm convinced of that.

[00:04:06] Speaker 03:
The record is clear there were no entries.

[00:04:09] Speaker 03:
How could he continue the review under those circumstances?

[00:04:12] Speaker 03:
How could that be permissible?

[00:04:16] Speaker 01:
I'm not sure there is a circumstance if the agency made that type of affirmative determination, which is not what it made here.

[00:04:24] Speaker 02:
My concern is that under those circumstances, it seems to me a determination not to rescind would be completely arbitrary and inappropriate.

[00:04:35] Speaker 02:
It seems to me the regulation of anything should say shall rescind if the secretary determines there are no entries.

[00:04:44] Speaker 01:
i understand your question you're i mean this is the regulation as written certainly is discretionary and i i think they can't be on bridal discretion has to be some standard and i don't see any standard built into that regulation or or anything surrounding it sure i i i i i think that it would be unlikely that the agency made an affirmative determination that there are no entries uh...

[00:05:13] Speaker 03:
But the problem is, I don't see how you could even initiate review if there were no entries.

[00:05:18] Speaker 03:
If the request for review said, we'd like review initiated, company X doesn't have any entries, but we think it ought to be included in the review anyway.

[00:05:27] Speaker 03:
And based on that, commerce initiated a review, that would be improper, right?

[00:05:34] Speaker 01:
I think so, yes.

[00:05:35] Speaker 01:
But that's not at all what happened here.

[00:05:37] Speaker 03:
We keep a ring with you.

[00:05:39] Speaker 03:
That's not what happened.

[00:05:41] Speaker 01:
Well, the initiation notice, and this is also in our brief, the initiation notice in this case and in every case.

[00:05:47] Speaker 01:
And here, I believe it's at page, the initiation notice is 81, FedReg, and then it's page 68632.

[00:05:55] Speaker 01:
There's also relevant information at 68634.

[00:05:59] Speaker 01:
But it says, if you don't have any shipments,

[00:06:02] Speaker 01:
Please provide a certification in the next 30 days indicating that you don't have any shipments.

[00:06:07] Speaker 01:
And of course, that's not what happened here, right?

[00:06:10] Speaker 00:
Tishin was saying... I guess what we're trying to figure out is how does...

[00:06:15] Speaker 00:
commerce determine who to subject the review to in the first place?

[00:06:24] Speaker 00:
Is it every importer that was subject to the original anti-dumping duty order from the original investigation?

[00:06:33] Speaker 00:
Anybody that was swept into that is automatically part of the administrative review or does commerce do some kind of

[00:06:42] Speaker 00:
I don't know, initial review to figure out who to identify that should be part of the administrative review.

[00:06:51] Speaker 01:
It's based on the requests that are made.

[00:06:55] Speaker 01:
If no one requests a review of a particular exporter, then that company will not be part of the review.

[00:07:03] Speaker 01:
But normally what will happen is that the

[00:07:07] Speaker 01:
the domestic industry will come in and say, we'd like you to review all of the exporters of this particular product.

[00:07:15] Speaker 01:
Frequently, the exporters themselves will also ask the department to place a request for an administrative review.

[00:07:21] Speaker 00:
It was part of the original investigation and was subject to the original order?

[00:07:29] Speaker 01:
I don't know the answer to that precise question, but to answer, I think, the thrust of Your Honor's question, they had been subject to previous administrative reviews.

[00:07:38] Speaker 01:
However, in this review, they were required to file a new separate rate application and not just a certification of the separate rate status, because they'd had a kind of ownership change.

[00:07:49] Speaker 01:
And when that happens, you have to effectively identify yourself as an

[00:07:56] Speaker 01:
It's not literally a new exporter, but you have to go through the full separate rate application and not just certify, hey, I'm the same company you reviewed last time.

[00:08:05] Speaker 01:
So that's why they were filing a full separate rate application here.

[00:08:10] Speaker 01:
As part of that separate rate application, commerce requires information about a sale, which it then uses to verify the representations that you're making about not having de facto control by the Chinese government.

[00:08:24] Speaker 01:
It essentially uses the information for that sale to say, OK, no one from the Chinese government is setting this price.

[00:08:31] Speaker 01:
The money is going back to the company.

[00:08:33] Speaker 01:
All the things that a company is representing in the separate rate.

[00:08:36] Speaker 01:
So if a company says, we want to be reviewed, we deserve a separate rate, but then at the end of the day can't provide the information that commerce needs to do the separate rate, in that circumstance, they're not going to get a separate rate and are going to end up with a China-wide rate.

[00:08:59] Speaker 01:
The other thing I'll add that I think gets at your honor's questions is

[00:09:03] Speaker 01:
not at the point of request, but at the beginning of these reviews, Commerce, for purposes of determining who it's going to select as the mandatory respondent, as your honors are familiar, always looks to the largest shippers and exporters, and so it does a run of CBP data.

[00:09:20] Speaker 01:
to see who does the CVP data indicated at least were identified by importers as having been the source of merchandise.

[00:09:32] Speaker 01:
It doesn't quite use that for these purposes, but it sometimes becomes relevant.

[00:09:36] Speaker 01:
What I would say is here, the information in the CVP data is confidential information.

[00:09:44] Speaker 01:
In addition to that, Appellant's counsel, even though he's not here, has not ever been admitted to the confidentiality order in the case because he came in late.

[00:09:54] Speaker 01:
But I will say, in general terms, that that run of data is inconsistent with the position that this should simply be rescinded with respect to Kishin.

[00:10:06] Speaker 01:
It would be a legal fiction to suggest that because they weren't able to demonstrate

[00:10:11] Speaker 01:
that they had a sale that commerce could review, that they actually had no sales.

[00:10:15] Speaker 03:
Can I ask you about the consequences of initiating review or continuing review, not rescinding it when there are no entries during the period?

[00:10:26] Speaker 03:
I understand that the consequence of that would be that the country rate would be applied to that importer, and even though they didn't have any entries during the period,

[00:10:37] Speaker 03:
during the next period they would have to have a cash deposit rate at the country-wide rate rather than the earlier rate determined in the earlier administrative reviews.

[00:10:50] Speaker 03:
That's correct?

[00:10:51] Speaker 01:
That's accurate.

[00:10:52] Speaker 01:
Yeah.

[00:10:52] Speaker 01:
Yes.

[00:10:54] Speaker 01:
It gets to a point I was about to make that the position Taoiseach is taking here, if you step back from the facts of this case,

[00:11:01] Speaker 01:
it would be a really, really bad thing.

[00:11:03] Speaker 01:
It would open the door up for really bad manipulation.

[00:11:07] Speaker 01:
I try to say that in the most layman's terms.

[00:11:11] Speaker 01:
If you're a company that

[00:11:16] Speaker 01:
that doesn't like things that dumped a lot during the current period of review or thinks that you have a problem and you'd end up with a country-wide rate, that their position would be an invitation to simply say, well, I can't produce any sales.

[00:11:27] Speaker 01:
Too bad.

[00:11:27] Speaker 01:
Got to give me the last rate that I'm very happy with.

[00:11:30] Speaker 01:
Maybe I got a zero in the last review.

[00:11:33] Speaker 01:
And so it's the flip side of Your Honor's question.

[00:11:36] Speaker 01:
But I guess my response to Your Honor's question is that's not entirely unreasonable.

[00:11:42] Speaker 01:
I mean, this court has held in China Manufacturing Associates

[00:11:45] Speaker 01:
and other cases going back to Sigma.

[00:11:48] Speaker 03:
What's not unreasonable?

[00:11:49] Speaker 03:
Applying a cash deposit rate if there were no entries?

[00:11:53] Speaker 03:
That wouldn't be reasonable, would it?

[00:11:55] Speaker 01:
No, applying a China-wide rate going forward to a company that hasn't been able to demonstrate that it's separate from the China-wide entity.

[00:12:05] Speaker 03:
Even other actual entries.

[00:12:07] Speaker 01:
Well, if there are no entries, then in some sense,

[00:12:14] Speaker 01:
i know your honor this isn't quite runs question but in some sense it's mood if if if they're not actually going to apply to anything and you're not applying it uh... whatever it is a hundred percent rate anything that's gone in and out of your honor's question is actually the case deposit rate and even which shouldn't happen if they have no interest respectfully your honor i'm i'm i'm i'm respectfully disagreeing in the sense that i don't think it's unreasonable for commerce going forward to apply a china-wide rate

[00:12:41] Speaker 01:
to a company that has essentially become part of the China-wide entity because it's unable to demonstrate that it's not on YouTube.

[00:12:47] Speaker 00:
I guess one of the unusual circumstances here is we have an importer that has proclaimed that it does have entries, right?

[00:12:55] Speaker 00:
It does have merchandise, but then it just wasn't able to corroborate that with enough evidence.

[00:13:02] Speaker 01:
Right.

[00:13:03] Speaker 00:
And that also... But that's the different situation about maybe why

[00:13:08] Speaker 00:
That would be a circumstance where commerce doesn't have to rescind.

[00:13:14] Speaker 01:
That's right.

[00:13:14] Speaker 01:
That's right.

[00:13:15] Speaker 01:
And there's another case on the record that presents analogous circumstances.

[00:13:18] Speaker 01:
We cited it in our brief.

[00:13:19] Speaker 01:
It's stainless steel and strip in coils from Taiwan.

[00:13:24] Speaker 01:
And there, when a company properly raised this issue, unlike Keishin in this case, Commerce gave an extended explanation about why, in those type of circumstances, it wasn't appropriate to recent review, as opposed to a situation where he's... I don't understand what the facts are.

[00:13:41] Speaker 03:
There were entries?

[00:13:43] Speaker 01:
As far as I know, they weren't able to demonstrate that there was an entry.

[00:13:49] Speaker 01:
I don't know offhand whether there were actually entries or not, but it was a situation like this one where the company was coming in and saying, we want a separate rate.

[00:13:59] Speaker 01:
And then the evidence it had in connection with the separate application was lacking.

[00:14:07] Speaker 00:
What if Qixin instead had come in and said, we want a separate rate and we don't want the country-wide rate because we didn't import any subject merchandise during the period of review?

[00:14:24] Speaker 01:
I think in that circumstance, commerce likely would have rescinded.

[00:14:27] Speaker 00:
And then there was no evidence in the record disproving that.

[00:14:31] Speaker 01:
Commerce likely would have rescinded.

[00:14:33] Speaker 01:
Assuming, first of all, in that circumstance, they would come in and have filed their no shipment

[00:14:38] Speaker 01:
certification within 30 days, or even otherwise.

[00:14:41] Speaker 01:
Right here, it's not that we applied a deadline and we didn't give them a chance to say no shipments.

[00:14:45] Speaker 01:
I mean, up until this appeal, and this has been going on at the administrative levels for six years.

[00:14:50] Speaker 00:
That's what I'm wondering is, does commerce expect an importer like Chishun to somehow provide evidence of a negative, to prove up instead of just proclaiming that they never had any shipments?

[00:15:05] Speaker 01:
Only minimally, if they supply the certification, which is the main thing Commerce wants, it will then go verify that at the CBP data.

[00:15:13] Speaker 03:
The certification, they have no entries.

[00:15:16] Speaker 01:
Right.

[00:15:16] Speaker 01:
If they supply the no entry certification, then Commerce goes and looks in the data.

[00:15:20] Speaker 01:
It gives people an opportunity to comment on it, so the domestic industry can wag their finger and say, no, no, no, you're not telling the truth.

[00:15:27] Speaker 01:
None of that happened here, because teaching's position all along was that they had entries.

[00:15:32] Speaker 03:
And look, the information... With the concern, you've got to understand this, is that if there were such a certification, there were such notice and comment, and Commerce said, we agree with you, there were no entries during the period, it seems a little strange.

[00:15:45] Speaker 03:
for commerce to continue the investigation as to that importer and hit them with the country-wide rate which affects their cash deposit rate.

[00:15:54] Speaker 01:
So I completely understand that concern and there are cases that they've cited and we've cited where commerce

[00:16:01] Speaker 01:
did rescind the review under those type of circumstances.

[00:16:04] Speaker 01:
When someone claimed there was that garlic case where they claimed they were a new shipper, but it turned out they weren't making any bona fide sales, there's Allegheny Ludlam.

[00:16:12] Speaker 01:
When Congress has made that affirmative determination, it has rescinded.

[00:16:15] Speaker 01:
That's not the case here.

[00:16:18] Speaker 01:
I'd be remiss if I didn't at least briefly mention the waiver issue, because they argue on reply that this is

[00:16:23] Speaker 01:
This is like a pure question of law to get around exhaustion, and I guess I have a couple of points there.

[00:16:28] Speaker 03:
Well, they made the point in their case brief, right?

[00:16:33] Speaker 01:
Well, they haven't said... No, it's a short answer.

[00:16:38] Speaker 01:
In the case brief before commerce, not that this would save them from exhaustion and waiver anyway.

[00:16:43] Speaker 01:
but what they said was because commerce had inadvertently left them out of preliminary results they said hey if you guys are intending to rescind with respect to us will you please let us know.

[00:16:55] Speaker 03:
They went beyond that they said if you conclude that there were no entries you should rescind.

[00:17:03] Speaker 01:
I think that may be what they said in their original brief at the CIT but none of that gets you around that doesn't even get you around exhaustion let alone waiver

[00:17:13] Speaker 01:
I mean, this court has very clear precedent.

[00:17:16] Speaker 01:
I don't want to belabor the point, because we cited it in our brief, that you have to continue to raise an issue on remand if you were going to pursue it.

[00:17:26] Speaker 01:
That's an exhaustion requirement.

[00:17:27] Speaker 01:
I mean, I guess I will briefly belabor.

[00:17:31] Speaker 01:
There's Mittal Steel.

[00:17:31] Speaker 01:
There's that recent primetime case that this court issued that is best packed.

[00:17:38] Speaker 01:
Even if you got around that, here, the regulation is discretionary.

[00:17:44] Speaker 01:
And they never raised this point, right?

[00:17:46] Speaker 01:
Once they missed the deadline to submit something on remand, they didn't file comments on the draft remand results.

[00:17:54] Speaker 01:
Then they came to court months later and said, hey, let us put in this new information.

[00:18:00] Speaker 01:
Which, by the way, they could have put in from 2016 about other sales that they had.

[00:18:06] Speaker 01:
And when the court rejected that, they didn't file any brief contesting commerce's remand results.

[00:18:11] Speaker 01:
And so how did commerce abuse this discretion?

[00:18:16] Speaker 01:
Thank you.