No Error in Liquidation Instructions, CIT Should Toss 1581(i) Lawsuit, US Tells Trade Court

There is no error in the Commerce Department's liquidation instructions, so importer MS Solar's lawsuit under Section 1581(i), the Court of International Trade's "residual" jurisdiction, should be dismissed, the U.S. said in a March 30 reply brief backing its motion to dismiss. Instead, the case should have been filed under Section 1581(c) to contest the antidumping duty review itself, the brief said (MS Solar Investments v. United States, CIT #21-00303).

In 2010 and early 2011, MS Solar bought 20 solar panels from Chinese exporter Yingli Green Energy Americas, 20 from Sun Earth Solar Power and 23 from Upsolar. The panels were originally shipped to Canada, but after the intended projects were canceled, the panels were sent to a storage facility in the Bahamas. They were then shipped to the U.S. in 2013. Commerce then undertook an administrative review of the ADD order on solar panels from China, covering 2012-2013 entries.

MS Solar says it attempted to ensure that its imports of the previously purchased panels that had been stored in the Bahamas wouldn't be subject to "an arbitrary and excessive antidumping duty rate." These measures included applying for an administrative review request, submitting a separate rate bid and working with Yingli to report to Commerce the pre-investigation sale of solar panels by Yingli to MS Solar, it said. Despite this, MS Solar was hit with the China-wide solar panel dumping rate instead of the Yingli company-specific rate.

MS Solar filed suit at CIT, where it originally asserted jurisdiction under Sections 1581(a) and 1581(i) because it was seeking "critical documents" from the U.S. at the time to elucidate which agency was responsible, the company said. MS Solar eventually obtained them via discovery. As a result, MS Solar amended its complaint to add its claims under 1581(i). Prior to, and after, amending the complaint, DOJ filed a motion to dismiss. MS Solar then defended against this motion, arguing that its qualm is with Commerce's liquidation instructions (see 2203030030).

Not so, DOJ said. The importer's gripe is actually with the administrative review's results themselves and the case's jurisdiction should reflect that. Since CBP correctly applied the liquidation, Section 1581(i) cannot be claimed over their faulty application, the brief said. "Ultimately, MS Solar is not challenging Commerce’s application of its Final Results to the liquidation instructions, but the assessment rate (i.e., PRC-wide rate) which was assigned to certain MS Solar’s entries during the review period," the brief said.

DOJ then sought to convince the court that 1581(c) is not "manifestly inadequate" and is actually the proper home for the suit. "MS Solar knew or should have known that Yingli did not report MS Solar sales in its U.S. sales database," the brief said. "... and MS Solar should have taken steps to ensure that its entry was treated in accordance with its expectations. ... MS Solar simply slept on its rights.

"To remedy its failure, MS Solar characterizes Commerce’s protection of proprietary information as the impediment to its awareness of the applicable assessment rates even though MS Solar had access to such information during the review and asks this Court to reach behind the Final Results to review the administrative review record and reweigh the evidence. MS Solar’s claim is precisely the type of claim that falls within section 1581(c) and relief under that section is not manifestly inadequate, thus, this Court’s section 1581(i) jurisdiction is unavailable."