Solar Cell Producers Claim Standing in Case Challenging Emergency Duty Relief
Domestic producers do have standing to bring their case challenging emergency duty relief granted to solar cell importers to the trade court, those producers, led by Auxin Solar, said Dec. 19 (Auxin Solar v. United States, CIT # 23-00274).
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
Auxin denied claims from the U.S. defendant-intervenors that the case was moot because “duty-free benefits are not presently affecting new entries." But potential injury to the producers was still possible due to the presence of as-yet unliquidated duty-free entries and by the U.S.’s “further stipulation as to the availability of reliquidation,” it said.
It said it was asking the Court of International Trade to order the U.S. to apply antidumping and countervailing duties to the current unliquidated entries.
It also said all parties agreed that Loper Bright was the governing standard for interpreting the Tariff Act of 1930. Unlike the government, it said executive discretion to “unilaterally define statutory terms is exceedingly rare.” The Tariff Act allows Commerce to make its own regulations, but not reach its own interpretations of the governing law, it said.
This is particularly important because the Act only allows Commerce to grant emergency duty relief to “food, clothing, and medical, surgical, and other supplies,” Auxin said. The department can fill in the details of those categories, but not expand its duty relief power beyond them.
The government argues that “other supplies” refers generally to any other emergency relief supplies, but this goes beyond what is allowed by the rules of statutory construction, it argued. Instead, it said, the Tariff Act must be read to be referring only to other healthcare supplies. It said the U.S. interpretation “impermissibly nullif[ied]” the preceding terms “medical” and “surgical” and made no grammatical sense -- food and clothing are also emergency relief supplies, it pointed out.
And the U.S. claimed in the alternative that the solar cells were used as healthcare supplies, but the emergency duty relief wasn’t restricted to solar panels used for healthcare, Auxin said. That claim, it said, unlawfully stretched the limits of the statute’s language.
“A member of Congress in 1930 (or today) presented with a utility-scale module and surgical scalpel would be hard-pressed to ‘spot the similarity,’” it said.
It noted another rule of statutory construction is that statutes carry their “ordinary meaning … at the time Congress enacted” them, and “[m]odern day CSPV cells and modules do not fall within the 1930s definitions of ‘food,’ ‘clothing,’ ‘medical supplies,’ ‘surgical supplies,’ or other healthcare supplies.”
Though it claimed the court didn’t need to look to legislative history or past practice of the Act, it argued these, too, actually supported its overall argument. Emergency duty relief has previously been granted, for example, only for food or only when “language directly from the statute” was involved, it said.
And it said that even if the solar cells could be granted duty-free benefits, Commerce didn’t have the ability to do so for merchandise entered before the President announced the emergency required by statute. The U.S. claimed AD/CVD hadn’t been assessed on certain entries in its system before that announcement, but, under the United States’ retroactive duty system, that made no sense, Auxin said. The purpose of emergency duty relief was to increase import levels of certain products. The solar cells already entered into the U.S. had already been imported, it said -- there was no need for any further incentive to bring them into the country by waiving duties because they were headed through the border already.