CBP Failed to Follow Commerce's Instructions in Liquidating CSPV Goods, US Says in CIT Case

The Court of International Trade should grant the Commerce Department's cross-motion for judgment, enforcing the antidumping and countervailing duty rates at which the agency instructed CBP to liquidate crystalline silicon photovoltaic products entries, Commerce said in a July 30 brief. While CBP initially imposed an incorrect AD duty rate for the entries in question, the government defense said it identified the proper rate at which the court should enforce the duties (Aireko Construction LLC v. United States, CIT #20-00128).

The government made its case for partial summary judgment in a case brought by Aireko Construction over the importer's crystalline silicon photovoltaic products from China. Aireko's entries were imported in December 2014 and liquidated at an AD rate of 52.13% and a CVD rate of 26.89%. The importer picked Dec. 19 and 22, 2014, as the dates of entry for the CSPV goods while the final determinations for the AD/CVD investigations were released on Dec. 23, 2014. In May 2016, Commerce gave CBP liquidation instructions for entries from July 2014 to January 2015.

These instructions set a 42.33% AD rate for the entries and a 0% CVD rate. Nevertheless, CBP liquidated at the 52.13% and 26.89% rates. Aireko timely protested the liquidations, which were denied by CBP, prompting the CIT case. Aireko argues that the entries are not subject to either the AD or the CVD duties. In its brief, the U.S. government admitted its liquidation mistake, pushing now for the 42.33% AD rate and 0% CVD rate.

The largest disagreement between Aireko and the U.S. government is about the authority of the 2017 CIT decision SunPower Corp. v. United States over the case. Aireko appears to appeal to this case to argue that the AD/CV duties do not apply to its entries since the goods were imported before the final determinations were published.

However, "Aireko simply block quotes the decision and neglects to discuss the relevance of the case to the facts here, leaving the Court and the Government to attempt to decipher its argument," the U.S. said. "Although not entirely clear, relying on SunPower, Aireko appears to argue that antidumping and countervailing duties could only apply to entries made on or after December 23, 2014 -- the date of Commerce’s final determinations. Because its merchandise entered prior to that date (i.e., December 19 and 22, 2014), Aireko appears to claim that CBP erred in retroactively assessing antidumping and countervailing duties to the entries at issue. Aireko is incorrect. As discussed above, in its ministerial role, CBP merely followed Commerce’s liquidation instructions."