Importer Says AD/CVD Wrongly Imposed on Its Solar Modules From SE Asian Countries
Importer Veregy Central argued that CBP improperly assessed hefty antidumping and countervailing duties on its solar cell imports from Thailand and Vietnam. In a complaint filed with the Court of International Trade on Oct. 17, Veregy said its goods were properly excluded from these duties due to President Joe Biden's duty pause on solar cells and modules from Thailand, Vietnam, Cambodia and Malaysia, since its imports were within the scope of the AD/CVD orders on Chinese solar cells and were consumed in the U.S. within 24 months of Biden's proclamation announcing the duty pause (Veregy Central v. United States, CIT # 25-00229).
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Veregy is the successor-in-interest to Control Technology & Solutions (CT&S), which agreed in January and March 2022 to install solar arrays at two regional airports in Illinois. CT&S sourced the solar modules for these projects from manufacturer Zhongli Talesun Hong Kong's manufacturing facilities in Vietnam and Thailand. The solar modules were entered in four shipments from July to October 2022.
At the time of entry, the importer wasn't required to make cash deposits or post a bond for estimated AD/CVD, since "there had been no determination that such entries were subject to AD/CVD deposits," the complaint said. Nor was CT&S Central ever instructed to make AD/CVD cash deposits by either the Commerce Department or CBP, the importer said.
Liquidation of the four entries was then suspended while Commerce undertook its anti-circumvention investigation of solar cells from Vietnam and Thailand. The suspension of liquidation continued after the agency issued its affirmative final circumvention determination and continued until Commerce terminated the CVD review of goods exported to the U.S. by Talesun during the 2021-22 review period.
After the suspension of liquidation was lifted, Commerce told CBP to liquidate Veregy's entries with AD/CVD rates equal to the cash deposits Veregy was required to post at the time of entry. The importer said that since it wasn't required to post cash deposits, "CBP was required to liquidate Veregy’s entries without the assessment of any antidumping or countervailing duties." Thus, CBP failed to follow Commerce's instructions, and this failure was "arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law or supported by substantial evidence," the complaint said.
Veregy's imports were liquidated with an AD rate of 238.95% and a CVD rate of 15.24%. The importer protested, claiming CBP unlawfully found its goods weren't excluded from the AD/CVD duties due to Biden's duty pause and that CBP failed to follow Commerce's instructions in applying AD/CVD rates equal to the company's cash deposits. CBP denied the protest and told the company to take up the matter with Commerce. Veregy said it did just that, though a Commerce official told the importer to take up the matter again with CBP.
The complaint said the goods at issue clearly fall under Biden's duty pause and that CBP failed to implement Commerce's liquidation instructions. Veregy said its goods clearly qualify for duty exempt status under Biden's proclamation, since they were imported when the exemption was active, fall under the AD/CVD orders on Chinese solar modules due to Commerce's anti-circumvention proceeding and were used in the U.S. The imported modules were installed in the two Illinois airports within 24 months of the proclamation, the brief said.
Recently, the trade court vacated Biden's duty pause as a violation of Section 1318(a) of the Trade Act of 1930 (see 2509020039), though CIT Judge Timothy Reif stayed his own decision while the government appeals the ruling (see 2510160027).