CIT Shuts Down Challenge to AD/CVD Instructions Due to Improper Jurisdiction

The Court of International Trade partially sided with solar cell importer Aireko Construction, instructing CBP to properly liquidate its entries in accordance with the Commerce Department's instructions, but ruled against Aireko by finding that the importer did not properly challenge the instructions themselves. In a Dec. 7 opinion, Judge Claire Kelly said that CBP needs to correct its error by applying antidumping and countervailing duty rates different from those listed in Commerce's instructions but that Aireko failed to launch a challenge under Section 1581(i) -- CIT's "residual" jurisdiction -- to challenge the instructions.

In 2014, Aireko imported crystaline silicon photovoltaic products from China, which were subsequently assessed AD/CV duties. The importer requested a scope ruling, arguing that its imports were not subject to the orders, but was then faced with an adversarial ruling from Commerce. Aireko took its case to CIT, where Commerce's scope decision was upheld. After the case, Commerce issued AD/CVD liquidation instructions to CBP, telling the border agency to impose a 42.33% AD duty but to leave the CV duties off the entries. Instead, CBP liquidated the entries with a 52.13% antidumping rate and a 26.89% countervailing duty rate.

This led Aireko back to CIT, where it challenged CBP's denial of its protest over the assessment of the AD/CV duties. However, "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," the opinion said. Since Aireko filed its case under Section 1581(a), though, it did not have the jurisdictional grounds to challenge the liquidation instructions, the judge said.

What Kelly did side with Aireko over was the question of the proper AD/CVD rates, instructing CBP to liquidate the entries at their proper marks.

The importer also alleged that the AD/CVD rates were assessed retroactively since its entries were entered before the final determinations of the AD/CVD review. "The court need not reach the argument concerning the retroactive application of the order here," the judge held. "Aireko protested CBP’s liquidation of its entries. In doing so, it can only reach CBP’s decisions, namely whether CBP followed Commerce’s instructions."

(Aireko Construction, LLC v. United States, Slip Op. 21-164, CIT #20-00128, dated 12/07/21, Judge Claire Kelly. Attorneys: Peter Herrick of Peter S. Herrick, P.A. for plaintiff Aireko; Hardeep Josan for defendant U.S. government)