Rulings, remedies and court proceedings for customs and trade professionals

CIT to Ask If AD/CVD Can Ever Violate 8th Amendment If Legally Calculated

The Court of International Trade will ask parties in an oral argument in Section 1581(i) action set for March 20 if antidumping and countervailing duties can ever violate the 8th Amendment as an excessive fine if they are legally calculated. Issuing questions ahead of the argument, Judge Mark Barnett also asked about when exactly importer Greentech Energy Solutions was injured when its solar cell entries were assessed AD/CVD (Greentech Energy Solutions v. United States, CIT # 23-00118).

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Greentech brought the suit to contest AD/CVD on its imports from Vietnam, arguing that the lack of a dumping, subsidization or injury finding on solar cells from Vietnam made the duties illegal (see 2306130025). The U.S. moved to toss the action, claiming the court didn't have jurisdiction to hear the suit since Greentech should have filed a protest with CBP to first challenge the decision (see 2312260052).

Greentech argued that it wasn't adversely affected until CBP told it that its goods were being hit with AD/CVD -- a development that came two years after the goods were imported. The government said any injury occurred when Greentech imported the goods, claiming the company wasn't required to wait for a "purely ministerial" enforcement notice. Barnett asked: "To the extent that Greentech was required to have and retain certification(s) regarding the source of the solar cells contained in its imports of solar panels/modules at the time of entry, on what basis does Greentech assert that its cause of action did not accrue at the time of entry?"

The judge also asked if CBP has the authority to make country of origin determinations "independent of the lack of contemporaneous certifications" in those protests. Barnett also asked if there are limits on CBP's ability to find the COO of the entries based on the documents given to CBP as part of the protest process.

The judge also told Greentech to be "prepared to reconcile its characterization of Commerce’s instructions with the actual text of the instructions."