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    Arent Fox Wins Closely Watched Trade Case before the Court of International Trade

    January 15, 2016

    Washington, DC — Earlier this month, Arent Fox LLP secured a victory for Sunpreme Inc., a US solar company based in Sunnyvale, California, after the US Court of International Trade ruled that US Customs and Border Protection was acting unlawfully by requiring the collection of cash deposits on solar modules that were not clearly covered by antidumping and countervailing duty orders.
     
    “It is no secret that CBP has stepped up its activities in the enforcement of antidumping and countervailing duty orders,” said International Trade partner John Gurley. “Many companies have seen CBP apply duties to their imports, even when there seems to be a real question of whether the products are even covered by the scope of the AD/CVD orders.” Mr. Gurley led a team from Arent Fox that included International Trade partners Nancy A. Noonan and Diana Quaia.
     
    In Sunpreme Inc. v. United States, the Court found that CBP acted beyond the scope of its authority when it interpreted certain scope language in the AD/CVD orders on Crystalline Silicon Photovoltaic Cells from China. The Court made clear that CBP unlawfully interpreted the scope language and that only the US Department of Commerce has the authority to make such a determination. According to the Court, CBP acted unlawfully in this case, while noting that, “where the scope language is not ambiguous and CBP can determine the merchandise falls within the scope language based upon the clear language of the Orders, CBP can act without a scope ruling.”

    Under the Court’s ruling, because only Commerce can interpret the scope, the suspension of liquidation and cash deposits for AD/CVD duties cannot be required by CBP until Commerce issues a scope ruling. Even then, relevant regulations provide that the collection of cash deposits can only reach back to the date of initiation of a scope inquiry.
     
    Arent Fox’s International Trade group represents and advises US, non-US, and government entities in a broad range of cross-border matters, including customs/import compliance, global trade policy, international trade litigation, export controls and sanctions, and international anti-corruption and the Foreign Corrupt Practices Act (FCPA). The comprehensive practice is regularly ranked among the best in the country by Chambers USA and Legal 500.