Aireko Constr., LLC. v. United States

547 F.Supp.3d 1350

AIREKO CONSTRUCTION, LLC., Plaintiff,

v.UNITED STATES, Defendant.

Slip Op. 21-164

Court No. 20-00128

United States Court of International Trade.

December 7, 2021

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

Hardeep K. Josan, International Trade Field Office, Department of Justice, Civil Division, Commercial Litigation Branch of New York, New York for defendant United States. Also on the brief were Brian M. Boynton, Acting Assistant Attorney General, Jeanne E. Davidson, Director, Aimee Lee, Assistant Director, and Justin R. Miller, Attorney-in-Charge, International Trade Field Office. Of Counsel was Valerie Sorensen-Clark, Office of Assistant Chief Counsel, International Trade Litigation, U.S. Customs and Border Protection.

OPINION

Kelly, Judge:

Plaintiff, Aireko Construction, LLC ("Aireko"), an importer of crystalline silicon photovoltaic ("CSPV") products moves for summary judgment arguing that Customs and Border Protection ("CPB" or "Customs") unlawfully liquidated three of its entries when it imposed antidumping and countervailing duties ("ADD" and "CVD," respectively) upon them pursuant to instructions issued by the Department of Commerce ("Commerce") because the "chosen entry dates preceded Commerce's final [ADD and CVD] determination[s]." Aireko Construction LLC's Mot. Summ. J., June 4, 2021, ECF No. 22; Memo. Law and Authorities in Supp. [Pl.’s] Mot. Summ. J. at 7, June 4, 2021, ECF No. 22 ("Pl.’s Br."). Plaintiff protested the assessment of ADD and CVD on its entries and subsequently amended that protest, claiming the entries were entered prior to the issuance of the final determination and the corresponding ADD and CVD rates "could only be assessed and liquidated prospectively for entry dates prospectively." Annexation Statement Material Facts for Which There is No Genuine Issue to be Tried to R. 56 Mot. for Summ. J. ¶¶ 7–8, Ex. B at 2–3, July 28, 2021, ECF No. 27 ("PSOF"). CBP denied Aireko's protest on January 13, 2020. Id. at ¶ 10, Ex. D.

On July 10, 2020, Plaintiff commenced this action by filing a summons and complaint challenging the denial of the protest pursuant to 28 U.S.C. § 1581(a). Compl. for Damages, July 10, 2021, ECF No. 4 ("Compl."); Summons, July 10, 2020, ECF No. 1 ("Summons"). Plaintiff asks the court to instruct CBP to reliquidate the entries at "antidumping and countervailing duty rates of zero." Pl.’s Br. at 7; see also Compl. Prayer for Relief sub. para. 1. Defendant, the United States, cross moves for partial summary judgment arguing that although Commerce instructed CBP to assess ADDs, CBP assessed the ADDs at an incorrect rate. Def.’s Cross-Mot. Partial Summ. J., July 30, 2021, ECF No. 28; Def.’s Memo. of Law Opp'n Pl.’s Mot. Summ. J. in Part, and in Supp. of Def.’s Cross-Mot. for Partial Summ. J. at 7, July 30, 2021, ECF No. 28 ("Def.’s Br."). Defendant and Plaintiff agree that the entries were improperly assessed CVDs. Def.’s Br. at 8. Defendant asks the court to instruct CBP to reliquidate the entries at the correct ADD rate of 42.33% and CVD rate of 0.00%, in conformity with Commerce's instructions.¹ Id. For the reasons that follow, Plaintiff's motion for summary judgment is granted in part and denied in part, and Defendant's cross-motion for partial summary judgment is granted.

JURISDICTION AND STANDARD OF REVIEW

The court has "exclusive jurisdiction of any civil action commenced to contest the denial of a protest, in whole or in part, under section 515 of the Tariff Act of 1930,² [as amended, 19 U.S.C. § 1515 ]." 28 U.S.C. § 1581(a) (2018). The court reviews the denial of a protest de novo, based upon the record made before the court. 28 U.S.C. § 2640(a)(1) (2018). The court will grant summary judgment when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." USCIT R. 56(a).

UNDISPUTED FACTS

The following facts are not in dispute.³ Aireko imports CSPV from People's Republic of China ("PRC"). PSOF ¶ 1; DSOF ¶ 4. In January 2014, Commerce initiated an ADD investigation 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 [ADD] investigations), and a CVD investigation of CSPV products from the PRC. Certain [CSPV] From the [PRC], 79 Fed. Reg. 4,667 (Dep't Commerce Jan. 29, 2014) (initiation of [CVD] investigation); DSOF ¶ 1.

In June 2014 and July 2014, respectively, Commerce published the preliminary determinations of its CVD and ADD investigations. Certain [CSPV] From the [PRC], 79 Fed. Reg. 33,174 (Dep't Commerce June 10, 2014) (prelim. affirmative [CVD] deter.); Certain [CSPV] Products From the [PRC], 79 Fed. Reg. 44,399 (Dep't Commerce July 31, 2014) (affirmative prelim. deter. of sales at less than fair value and postponement of final deter.) (collectively, "Preliminary Determinations"); Certain [CSPV] Products From Taiwan, 79 Fed. Reg. 44,395 (Dep't Commerce July 31, 2014) (affirmative prelim. deter. of sales at less than fair value and postponement of final deter.); DSOF ¶ 2. Subsequently, Commerce instructed CBP to suspend liquidation of all entries of certain CSPV from the PRC and require a cash deposit for such entries. DSOF ¶ 3; Cash Deposit Instructions; Liquidation Instructions. In December 2014, Aireko imported CSPV from the PRC, exported by Wanxiang Import & Export Co. Ltd. and produced by Zhejiang Wanxiang Solar Co. Ltd.⁴ See Compl. ¶ 2; Ans. ¶ 2, Dec. 7, 2021, ECF No. 17; Protests; Protests and Entries from the Port of San Juan Supplement, Nov. 13, 2020, ECF No. 16 (the "Protests Supplement"); DSOF ¶ 4; PSOF ¶ 6, Ex. A. For the entries at issue, Aireko selected entry dates of December 15, 2014, December 19, 2014, and December 22, 2014 on its CBP Form 3461. PSOF ¶¶ 17-19; Compl. ¶¶ 20-22; Ans. ¶¶ 20-22; DSOF ¶ 5.

On December 23, 2014, Commerce published its final determinations for the ADD and CVD investigations. Certain [CSPV] Products From the [PRC], 79 Fed. Reg. 76,970 (Dep't Commerce Dec. 23, 2014) (final deter. of sales at less than fair value) (the "Final CSPV ADD Order"); CVD Investigation of Certain [CSPV] Products From the [PRC], 79 Fed. Reg. 76,962 (Dep't Commerce Dec. 23, 2014) (final affirmative CVD deter.) (the "Final CSPV CVD Order") (collectively, "Final Determinations"); DSOF ¶ 6. In February 2015, Commerce published the ADD and CVD orders on certain CSPV from the PRC. Certain [CSPV] Products From the [PRC], 80 Fed. Reg. 8,592 (Dep't Commerce Feb. 18, 2015) ([ADD] order and am. final affirmative [CVD] deter. and [CVD] order); DSOF ¶ 7.

On August 17, 2015, Aireko filed a scope ruling request with Commerce asking it to find that Aireko's solar panels were outside of the ADD/CVD orders’ scope. PSOF ¶ 2; see also Aireko Constr., LLC v. United States, 425 F. Supp. 3d 1307, 1310 (Ct. Int'l Trade 2020). On November 12, 2015, Commerce issued its scope ruling, finding the merchandise at issue in scope. PSOF ¶ 3; see also [CSPV] Products from the [PRC], (Dep't Commerce Nov. 12, 2015) (scope ruling on [Aireko's] solar modules composed of U.S.-origin cells). Aireko challenged that scope ruling in this court on December 12, 2015. PSOF ¶ 3; see Aireko, 425 F. Supp. 3d 1307. This court sustained Commerce's scope determination.⁵ Id.

On May 2, 2016 and May 13, 2016, respectively, Commerce issued ADD and CVD liquidation instructions to CBP covering CSPV from the PRC. DSOF ¶ 8; Liquidation Instructions (Message Nos. 6123301 (May 2, 2016), 6134304 (May 13, 2016)). Regarding the ADD order, Commerce instructed CBP to liquidate entries of certain CSPV from the PRC for the period of July 31, 2014 through January 25, 2015, at the cash deposit rate in effect on the date of entry, which was 42.33%. DSOF ¶ 9; Cash Deposit Instructions (Message No. 4307307 ¶ 3); Liquidation Instructions (Message No. 6123301 ¶ 2). Regarding the CVD order, Commerce instructed CBP to liquidate entries of CSPV from the PRC for the period October 18, 2014 through February 9, 2015 without regard to CVD. DSOF ¶ 10; Liquidation Instructions (Message No. 6134304 ¶ 5).

On September 2, 2016, CBP liquidated the entries at issue at an ADD rate of 52.13% and a CVD rate of 26.89%. PSOF ¶ 5; DSOF ¶ 11; Protests at 11–12, 28–29, 39–40; Protests Supplement at 2, 57. On December 2, 2016, Aireko protested the assessment of ADD and CVD on the entries at issue asking CBP to take no further action on the entries until the conclusion of pending litigation to determine whether the entries were "properly deemed to be within the scope of the [ADD and CVD] [o]rders." PSOF Ex. A. On November 12, 2019,⁶ Aireko amended its protest by letter stating that the entries were entered prior to the issuance of the Final Determinations and that the corresponding ADD and CVD rates could only be "assessed and liquidated prospectively for entry dates prospectively." PSOF ¶¶ 7–8, Ex. B at 2–3. Aireko's amendment letter further stated that the antidumping and countervailing duty rates "were assessed retroactively ... which is contrary to law." PSOF Ex. B at 3. CBP denied Aireko's protest⁷ and no party disputes that this action is timely.⁸ Id. ¶ 10, Ex. D; see DSOF ¶ 13.

DISCUSSION

Aireko argues that despite Commerce's instructions in the Final CSPV ADD Order to impose ADDs on certain CSPV from the PRC entered beginning July 31, 2014 through January 25, 2015, CBP erroneously liquidated the entries because there "were no pending liquidation instructions ... on Aireko's entry dates." Pl.’s Br. at 6. Implicit in Aireko's argument is that Commerce's instructions were unlawful because the scope language in Commerce's Final Determinations changed between Commerce's preliminary and final determinations such that the effectiveness of Commerce's order could only begin on December 23, 2014, the date of the Final Determinations. See id. at 3–7. Defendant contends that Commerce...