Injury Timeline for Vietnam Solar Modules Requires 1581(i) Jurisdiction, Importer Argues

CBP's decision to assess antidumping and countervailing duties on its 2019 imports of solar modules from Vietnam could only be challenged under 28 U.S.C. § 1581(i) because no other jurisdictions were available to provide relief of the "unprecedented" imposition of AD and CVD on merchandise not subject to an AD or CVD order, Greentech Energy Solutions said in its Oct. 12 response to DOJ's earlier motion to dismiss a case regarding imports of solar modules from Vietnam (Greentech Energy Solutions v. U.S., CIT # 23-00118).

Greentech filed its case in June, arguing that the imposition of the AD/CVD were illegal, given the lack of a dumping, subsidization or injury finding for Vietnam, nor even the existence of an anti-circumvention inquiry at that time (see 2306130025).

In its September motion to dismiss, DOJ argued that the "protest procedure" at CIT and "judicial review" under Section 1581(a) are not "manifestly inadequate" to review Greentech's claims, barring review under Section 1581(i) (see 2309120055). The collection of the duties was based on Greentech's inability to submit importer and exporter certifications completed at the time of shipment from Vietnam and the time of entry into the U.S. The government claimed those certifications were needed for Vietnamese imports despite the fact that the certification provision was set in the AD investigation on solar cells from China. DOJ said that Greentech's challenge was "untimely" as over two years have passed since the accrual of any cause of action that challenged the 2012 certification requirement.

Greentech said it was unaware of the certification requirement at the time of shipment and import, and provided certifications that the solar cells were not produced in China when it became aware of the requirement.

CBP’s carrying out of Commerce’s instructions was purely ministerial and unprotestable, which made relief under 1581(a) impossible. "This is precisely the kind of action Section 1581(i) was intended to cover," Greentech said, because the importer is challenging the actions taken by Commerce, which CBP merely implemented ministerially.

Greentech said that DOJ's claim that the company could have challenged the certification requirement when Commerce described it in 2012 was incorrect because Greentech had suffered no injury at the time and couldn't have qualified as an interested party and couldn't have sought relief under 1581(c). To qualify as an interested party, Greentech would have needed to import solar panels during the period of investigation, which it didn't do. DOJ "cannot credibly argue that Greentech’s importation of solar cells from Vietnam in 2019 qualified Greentech as an interested party to the Solar Cells from China investigations in 2012," Greentech said.

Similarly, Greentech said it couldn't have challenged the certification requirement in 2019 when it actually imported solar cells because it wasn't injured. Even after it imported solar modules from Vietnam, Greentech said it couldn't have been an interested party "for the plain reason that solar cells from Vietnam are not subject to the AD and CVD orders on Solar Cells from China." The case is "fundamentally distinguish[ed]" from seemingly similar cases because Greentech never imported covered merchandise, it said.

Greentech lacked standing to bring an earlier challenge to the certification requirements because it didn't suffer injury before CBP issued the notice of action. The importer said it wasn't injured by Commerce’s description of the intended certification requirement. Injury came only when CBP informed the company via the Notice of Action that assessed Greentech’s imports with duties under the orders on Solar Cells from China.

Because "no appropriate administrative remedies existed to exhaust," the exhaustion principle didn't apply, Greentech said. The lack of appropriate administrative remedies is the very reason neither 28 U.S.C. § 1581(a) nor 1581(c) was available, Greentech said.

Greentech also argued that the duties were "punitive" and "excessive." The merchandise wasn't even subject to the orders, making duties calculated for those orders punitive instead of remedial. DOJ makes the "unprecedented" argument that AD and CVD laws are remedial even when they are imposed on merchandise that was never accused of, or found to be, injuring a U.S. industry, or of being dumped or subsidized. "Imposing AD and CVD duties on merchandise not subject to any AD or CVD order does not provide a remedy to the U.S. industry or the Government, it punishes an importer for the offense of not having a certification," Green argued.