Aireko Constr., LLC v. United States

425 F.Supp.3d 1307

AIREKO CONSTRUCTION, LLC, Plaintiff,

v. UNITED STATES, Defendant,andSolarWorld Americas, Inc., Defendant-Intervenor.

Slip Op. 20-6

Court No. 15-00319

United States Court of International Trade.

Dated: January 13, 2020

Peter S. Herrick, Miami, Peter S. Herrick, P.A., of St. Petersburg, FL, for plaintiff Aireko Construction, LLC.

Joseph H. Hunt, Assistant Attorney General, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., for defendant. With him on the brief were Jeanne E. Davidson, Director, and Tara K. Hogan, Assistant Director. Of counsel was Ian McInerney, Attorney, Office of the Chief Counsel for Enforcement and Compliance, U.S. Department of Commerce, of Washington, D.C.

Timothy C. Brightbill and Laura El-Sabaawi, Wiley Rein LLP, of Washington, D.C. for defendant-intervenor SolarWorld Americas, Inc.

OPINION AND ORDER

Kelly, Judge:

This action is before the court on a U.S. Court of International Trade 56.2 motion for judgment on the agency record. See Pl.'s Br. Supp. Pl.'s Mot. J. Agency R., July 31, 2019, ECF No. 57 ("Pl.'s Mot. & Br."). Plaintiff Aireko Construction, LLC ("Aireko") challenges the U.S. Department of Commerce's ("Commerce" or "Department") scope ruling in its antidumping and countervailing duty ("AD/CVD") investigations of crystalline silicon photovoltaic ("CSPV") products from the People's Republic of China ("PRC"). See Certain [CSPV] Products from the [PRC], 79 Fed. Reg. 76,970 (Dep't Commerce Dec. 23, 2014) (final determination of sales at less than fair value) ("Final AD Determination"); Countervailing Duty [ ("CVD") ] Investigation of Certain [CSPV] Products from the [PRC], 79 Fed. Reg. 76,962 (Dep't Commerce Dec. 23, 2014) (final affirmative CVD determination) ("Final CVD Determination"); [CSPV] Products from the [PRC]: Scope Ruling on [Aireko's] Solar Modules Composed of U.S.-origin Cells, Nov. 12, 2015, ECF No. 16-4 ("Scope Ruling"). Commerce imposed antidumping and countervailing duties on the importation of solar cells and modules, laminates and/or panels containing solar cells imported or sold for importation to the United States from the PRC. Certain [CSPV] Products from the [PRC], 80 Fed. Reg. 8,592 (Dep't Commerce Feb. 18, 2015) (antidumping [ ("AD") ] duty order; and am. final affirmative [CVD] determination and [CVD] order) ("AD/CVD Orders").

Plaintiff contests as contrary to law and unsupported by substantial evidence Commerce's determination that Aireko's solar modules are within the scope of the AD/CVD Orders. See Pl.'s Mot. & Br. at 5, 6–11. Aireko also contends that the U.S. Customs and Border Protection ("CBP") assessed AD/CVD duties retroactively, in a manner contrary to law. See id. at 5, 8–9. Defendant and Defendant-Intervenor SolarWorld Americas, Inc. ("SolarWorld") argue that because Aireko's solar modules meet the physical description of the merchandise covered in the AD/CVD orders, the court should affirm Commerce's Scope Ruling. See Def.'s Opp'n Br. to Pl.'s R. 56.2 Mot. J. Agency R. at 8–14, Oct. 1, 2019, ECF No. 59 ("Def.'s Br."); Def.-Intervenor [SolarWorld's] Resp. to Mot. J. Agency R. at 1–2, Oct. 1, 2019, ECF No. 60. Defendant further contends that this Court lacks jurisdiction over Aireko's claim that CBP assessed duties retroactively. See Def.'s Br. at 8, 14–16. For the reasons that follow, the court sustains Commerce's Scope Ruling. Further, the court lacks jurisdiction over a claim that CBP retroactively assessed antidumping duties.

BACKGROUND

Following its AD/CVD investigations concerning imports of CSPV products from the PRC and Taiwan, see Certain [CSPV] Products from the [PRC] and Taiwan, 79 Fed. Reg. 4,661 (Dep't Commerce Jan. 29 2014) (initiation of [AD] investigations); see also Certain [CSPV] Products from the [PRC], 79 Fed. Reg. 4,667 (Dep't Commerce Jan. 29, 2014) (initiation of [CVD] investigation), Commerce issued final AD/CVD determinations that defined the scope of subject merchandise as, inter alia, "modules laminates and/or panels assembled in the [PRC] consisting of [CSPV] cells produced in a customs territory other than the PRC." Final AD Determination, 79 Fed. Reg. at 76,972 ; Final CVD Determination, 79 Fed. Reg. at 76,963 (collectively, "Final AD/CVD Determinations").

In 2015, interested parties appealed these determinations, contending that Commerce's final scope determinations departed from Commerce's prior rule to determine country of origin. See SunPower Corp. v. United States, 40 CIT ––––, ––––, 179 F. Supp. 3d 1286, 1288 (2016) (" SunPower I"). The court reviewed Commerce's decision to assess country of origin based on country of assembly rather than by applying the "substantial transformation" test¹ it had used in prior investigations of CSPV products from the PRC ("Solar I investigations"). Id. at 1289–93 (2016).² It remanded, for further explanation, this apparent departure from the Solar I investigations in determining solar panels' country of origin. Id. at 1300–08. Following remand, the court sustained Commerce's redetermination. See SunPower Corp. v. United States, 41 CIT ––––, ––––, 253 F. Supp. 3d 1275, 1294 (2017) (" SunPower II"). Specifically, the court considered Commerce's explanation reasonable that it had applied a country of assembly test, rather than the substantial transformation test, to address allegations of injurious antidumping and subsidization with respect to solar panel assembly in the PRC. Id. at 1288–90. The Court of Appeals for the Federal Circuit affirmed. Canadian Solar, Inc. v. United States, 918 F.3d 909, 917–22 (Fed. Cir. 2019).

Aireko did not participate as an interested party in the SunPower II proceedings. Instead, it filed a scope ruling request on August 17, 2015, asking Commerce to find that its solar panels were outside the AD/CVD Orders' scope. See Scope Ruling Request Regarding [Aireko's] Imported CSPV Products at 1, PD 1, bar code 3299166-01 (July 17, 2015) ("Scope Ruling Request").³ Commerce declined. See Scope Ruling at 1. On December 11, 2015, Aireko appealed Commerce's Scope Ruling. See Summons, Dec. 11, 2015, ECF No. 1; Complaint, Dec. 12, 2015, ECF No. 4. Given that Aireko appealed the Scope Ruling as interested parties were challenging SunPower II, the court stayed Aireko's case pending the disposition and appeals of SunPower II. See Order, Mar. 4, 2016, ECF No. 22; Order, July 14, 2016, ECF No. 27; Order, Oct. 20, 2017, ECF No. 50.⁴ The court lifted the stay on June 6, 2019, following the issuance of the Court of Appeals for the Federal Circuit's decision in Canadian Solar. See Order, June 6, 2019, ECF No. 55.

JURISDICTION AND STANDARD OF REVIEW

The court has jurisdiction over Plaintiff's challenge to the Scope Ruling under 19 U.S.C. § 1516a(a)(2)(B)(vi) (2012)⁵ and 28 U.S.C. § 1581(c), which grant the court authority to review actions contesting scope determinations that find certain merchandise to be within the class or kind of merchandise described in an antidumping or countervailing duty order. The court must "hold unlawful any determination, finding, or conclusion found ... to be unsupported by substantial evidence on the record, or otherwise not in accordance with law[.]" 19 U.S.C. § 1516a(b)(1)(B)(i). As for Plaintiff's challenge to CBPs assessment of duties and liquidation of entries, the court lacks jurisdiction as discussed more fully below.

DISCUSSION

I. Commerce's Scope Ruling

Plaintiff challenges Commerce's determination that Aireko's solar modules were within the scope of the AD/CVD Orders as contrary to law and unsupported by substantial evidence. See Pl.'s Mot. & Br. at 5–7, 10–11. According to Aireko, Commerce's Scope Ruling "impermissibly expanded the scope of the [AD/CVD] Orders in a manner inconsistent with the terms of the Orders[.]" Id. at 5. Defendant counters, to the extent that Aireko challenges the lawfulness of scope language, that Canadian Solar's holding binds this Court. Id. at 12–13. Defendant also contends that the Scope Ruling should be affirmed because Aireko does not dispute that its solar modules fall within the Scope Ruling's language. See Def.'s Br. at 8–14. For the reasons that follow, Commerce's Scope Ruling is in accordance with law and supported by substantial evidence.

An antidumping or countervailing duty order must "include[ ] a description of the subject merchandise, in such detail as the administering authority deems necessary[.]" 19 U.S.C. §§ 1671e(a)(2), 1673e(a)(2) ; see also Duferco Steel, Inc. v. United States, 296 F.3d 1087, 1096 (Fed. Cir. 2002). This description is referred to as the scope. The statute further defines subject merchandise as "the class or kind of merchandise that is within the scope of an investigation, a review, a suspension agreement, [or] an order[.]" 19 U.S.C. § 1677(25). The language of an order dictates its scope, and the words of an order serve as the basis for the inclusion or exclusion of merchandise within the scope of the order. Duferco, 296 F.3d at 1096–97.

Commerce's regulations outline the necessary steps for assessing whether a product is included within the scope of an order. See 19 C.F.R. § 351.225 (2015). Commerce will take into account "[t]he descriptions of the merchandise contained in the petition, the initial investigation, and the determinations of the Secretary (including prior scope determinations) and the Commission." 19 C.F.R. § 351.225(k)(1). Should these "(k)(1) factors" not be dispositive, Commerce will then turn to subsection (k)(2), which lists the following "(k)(2) factors" to consider: "(i) [t]he physical characteristics of the product; (ii) [t]he expectations of the ultimate purchasers; (iii) [t]he ultimate use of the product; (iv) [t]he channels of trade in which the product is sold; and (v) [t]he manner in which the product is advertised and displayed." 19 C.F.R. § 351.225(k)(2). Commerce may not interpret an order "so as to change the scope of that order, nor can Commerce interpret an order in a manner...