Aireko Construction, LLC v. United States

Slip Op. 21-164
UNITED STATES COURT OF INTERNATIONAL TRADE
Before Claire R. Kelly, Judge
Court No. 20-00128
OPINION
[Granting defendant’s motion for partial summary judgment and denying in part and
granting in part plaintiff’s motion for summary judgment.]
Dated: 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.
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
AIREKO CONSTRUCTION, LLC.,
Plaintiff,
v.
UNITED STATES,
Defendant.
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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,
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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).
1 Commerce’s liquidation instructions directed CBP to liquidate entries of subject
merchandise “entered or withdrawn from warehouse on or after 10/08/2014 and on or
before 02/09/2015 . . . without regard to countervailing duties” see Def.’s Br. Ex. B
Liquidation Instructions, July 30, 2021, ECF 28-1 (Message No. 613404 ¶ 5)
(“Liquidation Instructions”), and “liquidate all entries for all firms except those listed
in paragraph 3 and assess antidumping duties on the merchandise entered, or
withdrawn from warehouse, for consumption at the cash deposit or bonding rate in
effect on the date of entry.” Id. (Message No. 6123301 ¶ 2); see also; Def.’s Br. Ex. A
Cash Deposit Instructions, ECF No. 28-1, (Message No. 4307307 ¶ 3) (“Cash Deposit
Instructions”).
2 Further citations to the Tariff Act of 1930, as amended, are to the relevant
provisions of Title 19 of the U.S. Code, 2018 edition.
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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.
3 Plaintiff filed a statement of facts as required by USCIT Rule 56.3. 	See Pl.’s Br.;
PSOF. 	However, Plaintiff’s Statement Of Facts was not annexed to its motion as
required by the rule, see USCIT R. 56.3(a), and was first filed on June 4, 2021, see
Annexation of Statement of Material Facts for Which there is No Genuine Issue to be
Tried to Rule 56 Mot. for Summ. J., June 4, 2021, ECF No. 23, and subsequently on
July 28, 2021. 	PSOF. 	In filing its Statement Of Facts Plaintiff did not provide
relevant citations as required by the Rule. USCIT R. 56.3(c) (“each statement by the
movant . . . pursuant to rule 56(a) and (b) . . . will be followed by citation to evidence
which would be admissible”). Defendant nonetheless replied to Plaintiff’s Statement
Of Facts on July 30, 2021. Def.’s Resp. to Pl.’s Statement of Material Facts, ECF No.
28-2, July 30, 2021 (“PSOF Resp.”). 	Defendant annexed its Rule 56.3 statement of
facts to its cross-motion for partial summary judgment. Def.’s Cross-Mot. for Partial
Summ. J., July 30, 2021, ECF 28; Def.’s Statement of Undisputed Material Facts in
Supp. of Cross-Mot. for partial Summ. J., July 30, 2021, ECF No. 28. Plaintiff failed
altogether to respond to Defendant’s Statement Of Facts and therefore the court
considers the Defendant’s Statement Of Facts undisputed for the purpose of this
motion. 	USCIT R. 56(e)(1) (“If a party fails to . . . properly address another party’s
assertion of fact as required by Rule 56(c), the court may[] consider the fact
undisputed for the purposes of the motion”); see United States v. Harvic Int’l Ltd.¸
427 F. Supp. 3d 1349, 1353 (Ct. Int’l Trade 2020); New Image Glob., Inc. v. United
States, 399 F. Supp. 3d 1257, 1262 (Ct. Int’l Trade 2019) (citing Saab Cars USA, Inc.
v. United States, 434 F.3d 1359, 1369 (Fed. Cir. 2006)); United States v. Univar USA
Inc., 355 F. Supp. 3d, 1225, 1253 (Ct. Int’l Trade 2018).
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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
4 Aireko filed entry documentation with CBP for the entries at issue in San Juan,
Puerto Rico, indicating that they were not subject to ADDs or CVDs, by entering the
goods as entry type “01” rather than entry type “03.” PSOF Exs. G–I; see Pl.’s Memo.
Law in Opp’n to Def.’s Cross-Mot. for Partial Summ. J. at 2, Sept. 13, 2021, ECF No.
31 (“Pl.’s Resp.”). Aireko argues that CBP’s failure to suspend the liquidation of the
entries, require the deposit of estimated ADDs or CVDs, or reject the entries is
evidence that CBP “did not view Aireko’s solar panels within the scope of the Order.”
See Pl. Resp. at 2–3. Aireko is incorrect. As an initial matter, it is the responsibility
of 	the 	importer—not 	CPB—to 	use 	reasonable 	care 	in 	completing 	its 	entry
documentation 	so 	that 	CPB 	may 	properly 	assess 	duties. 	19 	U.S.C.
(footnote continued)
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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.
§ 1484(a)(1)(B). 	Further, contrary to Aireko’s assertion, CBP sent Requests For
Information for the entries on January 26, 2015, requesting inter alia certificates of
origin for the cells. 	Protests Supplement at 34–47. 	In March of 2015, CBP sent
Aireko Notices of Action for the entries, informing Aireko that the entries were
subject to ADD and CVD. 	Id. at 48–50, 77–80, 83–94. 	On September 2, 2016, CBP
liquidated the entries and assessed ADDs and CVDs. PSOF ¶ 5; DSOF ¶ 11.
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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
5 In addition to reviewing the scope ruling, Aireko argued that CBP had erroneously
liquidated its entries. 	Aireko, 425 F. Supp. 3d at 1312–13. 	Aireko brought its case
under 28 U.S.C. § 1581(c), which grants the court jurisdiction to review Commerce’s
scope ruling determinations. 19 U.S.C. §1516a(a)(2)(B)(iv); 28 U.S.C. § 1581(c). The
Court explained that “[t]he jurisdictional foundation for Aireko to contest a scope
ruling does not also support a challenge to CBP's actions which would include CBP's
decisions incident to liquidation” and declined to reach the merits of Aireko’s
argument. Aireko, 425 F. Supp. 3d at 1313.
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(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.”
6 Both Defendant and Plaintiff mistakenly refer to the date of the amendment as
November 12, 2016, but it is attached to Plaintiff’s Statement of Facts as Exhibit B
and it was filed on November 12, 2019. 19 C.F.R. § 174.14(e) (2018) (“An amendment
to a protest . . . shall be deemed filed on the date it is received by the Customs officer”);
PSOF Exs. B, C (DHL proof of delivery receipt dated November 12, 2019 with the
notation “Aireko Amended Protest delivered to Customs”).
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PSOF Ex. B at 3. CBP denied Aireko’s protest 7 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
7 Defendant’s Statement Of Facts states that CBP denied Airkeo’s protest on June
11, 2020, see Def.’s Statement of Undisputed Material Facts in Supp. Cross-Mot. for
Partial Summ. J. ¶ 13, July 30, 2021, ECF No. 28 (“DSOF”), however, evidence cited
by Defendant in support of this fact indicates that the protest was denied on August
28, 2020. Protests and Entries from the Port of San Juan at 1, Oct. 5, 2020, ECF No.
11-1 (the “Protests”). Aireko attached the denied protest as Exhibit D of its Statement
Of Facts, see PSOF Ex. D, showing that a protest officer denied the protest on
January 13, 2020. 	Id. 	Regardless of the date that the protest was actually denied,
Plaintiff timely commenced this action. 	See 28 U.S.C. § 2636(a)(1); PSOF Ex. D
(indicating that the denied protest was received on June 15, 2020); Compl.; Summons.
For the purpose of this motion, the court will use the denial date indicated on the
protest form. PSOF Ex. D.
8 Plaintiff complains that it received its denied protest more than 90 days from the
denial and thus “was deprived of the opportunity to request the denied protest voided
under 19 U.S.C § 1511(d).” Pl.’s Br. at 2–3. 19 U.S.C. § 1511(d) was repealed in 1978.
See Pub. L. 95-410, Title I § 107, Oct. 3, 1978, 92 Stat. 892. 	To the extent that
Plaintiff’s argument may refer to 19 U.S.C. § 1515(d), see PSOF Resp. ¶ 12, Plaintiff
fails to address its materiality to the current motion. 	Thus, the court does not
consider this argument.
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Determinations. 	See id. at 3–7. 	Defendant contends that Commerce issued valid
instructions to CBP to liquidate certain CSPV from the PRC entered for the period at
the cash deposit rate in effect on the date of entry, which was 42.33%. Def.’s Br. at 7,
Cash Deposit Instructions (Message No. 4307307 ¶ 3), Liquidation Instructions
(Message No. 6123301 ¶ 2). Defendant further argues that to the extent that Aireko
challenges Commerce’s instructions, those instructions are not protestable and thus
such a challenge is not properly before the Court. 	Def.’s Reply Memo. in Further
Supp. of Def.’s Cross-Mot. for Summ. J. at 5–6, Oct. 4, 2021, ECF No. 32 (“Def.’s
Reply”). 	For the following reasons the court orders partial summary judgment in
favor of Defendant and partial summary judgment in favor of Plaintiff.
Aireko’s entries were subject to ADDs at the rate prescribed in Commerce’s
liquidation instructions to CBP. See Liquidation Instructions (Message No. 6123301
¶ 2). 	The ADD laws empower Commerce to investigate dumping allegations and
establish ADD rates. 9 	19 U.S.C. §§ 1673, 1673a–1673(h). 	Commerce will issue
9 When a domestic industry in the United States believes it is being harmed by unfair
trade practices it may petition the government to investigate those practices. 	19
U.S.C. § 1673a(b). 	In an investigation, Commerce will determine whether sales of
the investigated merchandise have been dumped, made at less than fair value, or
whether a countervailable subsidy has been provided. 	See id. §§ 1673, 1671(a)(1).
The International Trade Commission (“ITC”) determines whether the imported
merchandise 	materially 	injures 	or 	threatens 	to 	materially 	injure 	the 	relevant
domestic industry. 	Id. §§ 1673d(b)(1), 1671d(b)(1). 	If both Commerce and the ITC
render 	affirmative 	determinations, 	Commerce 	issues 	an 	antidumping 	or
countervailing duty order. Id. §§ 1673e(a), 1671e(a). Where Commerce has made an
(footnote continued)
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instructions to CBP to suspend the liquidation 10 of entries subject to the order and to
collect 	cash 	deposits 	to 	secure 	the 	ADD 	or 	CVD 	to 	be 	paid. 	19 	U.S.C.
§ 1673d(c)(1)(B)(ii). 	If a question arises as to the meaning of a particular order, an
interested party may request that Commerce conduct a scope inquiry to clarify
whether a particular type of merchandise is within the class or kind of merchandise
described. 19 C.F.R. § 351.225 (2018). The ADD laws also limit CBP’s role to fulfilling
Commerce’s instructions. Mitsubishi Elecs. Am., Inc. v. United States, 44 F.3d 973,
977 (Fed. Cir. 1994) (CBP cannot “modify . . . Commerce’s determinations, their
underlying facts, or their enforcement.” (internal citations, brackets, and quotation
marks omitted)). The contents of those instructions, as opposed to CBP’s adherence
to them, is not a protestable event. 	See 19 U.S.C. §§ 1671, 1673, 1675 (Commerce,
not CBP determines the rate and scope of AVD and CVD orders); see also 19 U.S.C.
affirmative finding and there is injury to the domestic industry, Commerce will issue
an order that identifies the scope of the merchandise to which it applies and assesses
antidumping duties “in an amount equal to the amount by which the normal value
exceeds the export price.” Id. §§ 1673, 1673e(a). Commerce’s order will “include[ ] a
description of the subject merchandise, in such detail as the administering authority
deems necessary.” Id. §§ 1673e(a)(2), 1671e(a)(2). 	“At least once during a 12-month
period beginning on the anniversary date of the publication of countervailing or
antidumping duty order,” Commerce, upon request, “shall review and determine the
amount of any net countervailable subsidy, the amount of any antidumping duty, and
review the status of and compliance with, any agreement [leading to the suspension
of an investigation].” 	19 U.S.C.S. § 1675(a)(1). 	The results of the administrative
review, along “with notice of a duty to be assessed, estimated duty to deposited, or
notice that an investigation is being resumed” shall be published in the Federal
Register. Id. § 1675(a)(1)(c).
10 “Liquidation” is defined as “the final computation or ascertainment of duties on
entries for consumption or drawback entries.” 19 C.F.R. § 159.1 (2018).
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§ 1514 (listing CBP’s decisions which may be protested); Shinyei Corp. of America v.
United States, 355 F.3d 1297, 1304–05 (Fed. Cir. 2004) (“Because the alleged agency
error in the present case is on the part of Commerce, and not Customs . . . section
1581(a) cannot vest the Court of International Trade with jurisdiction”). 	To the
extent that Aireko challenges Commerce’s instructions, that challenge should have
been brought under 28 U.S.C. § 1581(i) and would now be untimely. 11 	Shinyei, 355
F.3d at 1304; Consolidated Bearings Co. v. United States, 348 F.3d 997, 1002 (Fed.
Cir. 2003) (“Consequently, an action challenging Commerce’s liquidation instructions
is . . . a challenge to the ‘administration and enforcement’ of those final results [and]
[s]ection 1581(i)(4) grants jurisdiction to such an action”).
Here, Commerce commenced an investigation of CSPV from the PRC and
subsequently issued its Preliminary Determinations and Final Determinations.
Aireko entered subject merchandise on December 15, 2014, December 19, 2014, and
December 22, 2014. PSOF at ¶¶ 17–19, Exs. G–I. In May of 2016, Commerce issued
liquidation instructions to 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 of
42.33% for ADD, see DSOF ¶ 9, Cash Deposit Instructions (Message No. 4307307 ¶
3); Liquidation Instructions (Message No. 6123301 ¶ 2), and without regard to CVD
11 An action commenced pursuant to 28 U.S.C. §1581(i) “is barred unless commenced
. . . within two years after the cause of action first accrues.” 28 U.S.C. § 2636(i). The
instructions to liquidate the entries involved here were issued on May 2, 2016 and
May 13, 2016. 	Liquidation Instructions (Message Nos. 6123301 (May 2, 2016),
6134304 (May 13, 2016)).
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for the period of October 18, 2014 through February 9, 2015. 12 	DSOF ¶ 10,
Liquidation 	Instructions 	(Message 	No. 	6134304 	¶ 	5). 	CBP 	failed 	to 	follow
Commerce’s instructions when it assessed ADDs at 52.13% and CVDs at 26.89%.
Def.’s 	Br. 	at 	7–8. 	Plaintiff 	may 	protest 	CBP’s 	failure 	to 	follow 	Commerce’s
instructions, see 19 U.S.C. § 1514(a)(2); see also Shinyei, 355 F.3d at 1304, but it may
not protest the content of the instructions. Shinyei, 355 F.3d at 1304.
Aireko mistakenly invokes SunPower Corp. v. United States, 253 F. Supp. 3d
1275 (Ct. Int'l Trade 2017) as the foundation for its challenge. Pl.’s Br. at 4–6. Aireko
apparently contends that Commerce’s modification of the order language from the
Preliminary Determinations to the Final Determinations renders any retroactive
application of the language in the Final Determinations to merchandise contrary to
law. Id. As a preliminary matter, Aireko reads SunPower for more than it is worth.
In SunPower, U.S. producers of solar cells challenged Commerce’s final scope
determination involving solar panels and modules from the PRC under 28 U.S.C. §
1581(c). 	SunPower, 253 F. Supp. 3d at 1283–1285. 	The investigations at issue in
SunPower followed prior investigations of solar cells from the PRC and Taiwan. 13 Id.
at 1280.
12 These instructions followed a scope decision issued by Commerce, challenged in
this court, and ultimately decided by this court on January 13, 2020. 	Aireko, 425
F.Supp. 3d 1307.
13 See [CSPV] Cells, Whether or Not Assembled Into Modules, From the [PRC], 76
Fed. Reg. 70,960 (Dep't Commerce Nov. 16, 2011) (initiation of [ADD] investigation);
(footnote continued)
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SunPower involved an investigation in which Commerce initially proposed
scope language setting forth a “two out of three rule” in which “a product would
qualify as subject merchandise if it contained Chinese input (ingots, wafers, or
partially manufactured cells) and assembly of the module occurred in China,” even if
the cell was manufactured or completed in a third country. Id. at 1281. In the final
determination issued on December 14, 2014, Commerce abandoned the two out of
three rule and adopted language in which “country of origin would be determined by
the country in which the assembly of the panel occurred.” Id. at 1282. In SunPower
the court ultimately upheld Commerce’s determination and addressed Plaintiff’s
admonition that the order only be applied prospectively. 	Id. at 1293. 	The court
concluded that the admonition was of no moment, as there was no dispute that the
order had been applied prospectively. 	Id. 	Commerce issued the final order on
December 14, 2014 and applied the order to entries made after December 14, 2014.
[CSPV] Cells, Whether or Not Assembled Into Modules, From the [PRC], 76 Fed. Reg.
70,966, 70,967 (Dep't Commerce Nov. 16, 2011) (initiation of [CVD] investigation)
(“Solar I”). The Solar I PRC investigations covered solar cells from China, including
Chinese cells assembled into modules outside of China but did not cover solar
modules assembled in China using solar cells produced outside of China. SunPower,
253 F. Supp. 3d at 1278–1279. In these investigations Commerce considered the solar
cell as the origin-conferring component. See id. Subsequently in response to another
petition, Commerce investigated solar modules made with cells other than PRC cells.
See Certain [CSPV] Products from the [PRC] and Taiwan, 79 Fed. Reg. at 4,661;
Certain [CSPV] Products from the [PRC], 79 Fed. Reg. at 4,667. These investigations
resulted in two sets of orders. Certain [CSPV] Products from the [PRC], 80 Fed. Reg.
8,592 (Dep't Commerce Feb. 18, 2015) ([ADD] order; and amended final affirmative
[CVD] deter. and [CVD] order); Certain [CSPV] Products from Taiwan, 80 Fed. Reg.
8,596 (Dep't Commerce Feb. 18, 2015) ([ADD] order); SunPower, 253 F. Supp. 3d at
1280.
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Court No. 20-00128 	Page 15
Id. Thus, SunPower did not reach the question of whether application of the order to
entries prior to the issuance of the final determination, but after the preliminary
determination, would be an unlawful retroactive application of the order.
More importantly, the court need not reach the argument concerning the
retroactive application of the order here. 	Aireko protested CBP’s liquidation of its
entries. 	PSOF ¶¶ 6–8, Ex. A; DSOF ¶ 12. 	In doing so, it can only reach CBP’s
decisions, namely whether CBP followed Commerce’s instructions. Shinyei, 355 F.3d
at 1304. 	CBP’s role is to liquidate the goods pursuant to Commerce’s instructions.
Belgium v. United States, 551 F.3d 1339, 1343 (Fed. Cir. 2009) (explaining that
Customs performs a ministerial function in executing liquidation instructions issued
by Commerce). CBP failed to follow Commerce’s instructions and therefore the court
grants partial judgment in favor of the Plaintiff, to the extent necessary to assess the
CVD 	rate 	at 	the 	rate 	Commerce 	instructed. 	Def.’s 	Br. 	at 	7–8, 	Liquidation
Instructions 	(Message 	No. 	6134304 	at 	¶ 	5). 	However, 	Commerce’s 	decision
underlying the instructions is not a protestable event and Plaintiff’s motion for
summary 	judgment 	is 	denied 	to 	the 	extent 	that 	it 	challenges 	the 	content 	of
Commerce’s instructions. Defendant’s cross-motion for partial summary judgment is
granted.
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Court No. 20-00128 	Page 16
CONCLUSION
For 	the 	foregoing 	reasons, 	Aireko 	Construction, 	LLC’s 	motion 	for
summary judgment is granted in part and denied in part. The United States’ cross-
motion for summary judgment is granted. Judgment will enter accordingly.
/s/ Claire R. Kelly
Claire R. Kelly, Judge
Dated: 	December 7, 2021
New York, New York
Case 1:20-cv-00128-CRK Document 33 Filed 12/07/21 Page 16 of 16