Sunpreme Inc. v. United States
2017 CIT 116
Ct. Intl. Trade2017Background
- Sunpreme, a U.S. importer, imported bifacial solar modules manufactured in China and sought a Commerce scope ruling that its modules fell outside antidumping (AD) and countervailing duty (CVD) Orders on certain crystalline silicon photovoltaic (CSPV) cells and modules. Commerce issued a final scope ruling that Sunpreme's modules are within the Orders.
- Key contested factual/legal features: whether Sunpreme's modules contain CSPV cells (i.e., rely on crystalline silicon to generate electricity), whether the cells meet the Orders' ≥20 μm thickness threshold, whether the cells contain a “p/n junction formed by any means” given their p/i/n architecture, and whether the modules fall within the thin-film (amorphous silicon) exclusion.
- Commerce relied principally on the Order text and (k)(1) sources (petition, investigation, and a prior Triex scope ruling) to interpret scope terms and concluded the modules are in-scope.
- Commerce instructed CBP to continue suspension of liquidation and to collect cash deposits, including for entries made before Commerce initiated the scope inquiry; Sunpreme challenged those liquidation instructions as contrary to law.
- The Court sustained Commerce’s scope determination as supported by law and substantial evidence, but held Commerce’s liquidation instructions unlawful to the extent they required suspension/collection for entries made prior to initiation of the scope inquiry and ordered return of deposits for those pre-initiation entries.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Sunpreme's modules are within scope as "CSPV cells" | Sunpreme: modules are hybrid thin-film products; crystalline wafer is passive substrate and thus not a CSPV cell. | U.S./Commerce: CSPV requires reliance on crystalline silicon for electricity generation; Sunpreme's wafer functions as an active absorber, so modules are CSPV. | Court: Agreed with Commerce—(k)(1) sources and record support that Sunpreme's wafer actively contributes to electricity generation; modules are in-scope. |
| Whether the cell thickness meets the Orders' ≥20 μm requirement | Sunpreme: only thin-film layers should be measured (far <20 μm); wafer substrate should be excluded. | U.S./Commerce: measure functional, electricity-generating components; wafer is active and must be included. | Court: Sustained Commerce—including wafer in thickness measurement is reasonable and supported by substantial evidence. |
| Whether a p/i/n architecture satisfies the Orders' “p/n junction formed by any means” | Sunpreme: p/i/n is distinct; Orders require a conventional p/n formed within CSPV cell; Sunpreme's junction is different/externally formed. | U.S./Commerce: phrase "formed by any means" is broad; p/i/n and other heterojunctions fall within p/n formed by any means. | Court: Sustained Commerce—interpretation is reasonable; p/i/n architecture falls within "p/n junction formed by any means." |
| Legality of Commerce's liquidation instructions to suspend liquidation and collect deposits for entries made before initiation of the scope inquiry | Sunpreme: instructions retroactively impose duties and deposits prior to initiation; unlawful. | U.S./Commerce: regs permit suspension to continue and collection where liquidation already suspended; some entries were suspended by CBP before initiation. | Court: Ruled for Sunpreme—Commerce cannot lawfully continue or order suspension/deposits for entries before initiation where prior suspension was ultra vires; deposits collected pre-initiation must be returned. |
Key Cases Cited
- Duferco Steel, Inc. v. United States, 296 F.3d 1087 (Fed. Cir.) (scope defined by order language)
- Ericsson GE Mobile Commc'ns, Inc. v. United States, 60 F.3d 778 (Fed. Cir.) (Commerce given deference to interpret its orders)
- King Supply Co., LLC v. United States, 674 F.3d 1343 (Fed. Cir.) (deference to Commerce on order interpretation)
- AMS Assocs., Inc. v. United States, 737 F.3d 1338 (Fed. Cir.) (retroactive suspension of liquidation limited to on/after scope-initiation date)
- Xerox Corp. v. United States, 289 F.3d 792 (Fed. Cir.) (CBP cannot resolve ambiguous scope language; Commerce must decide)
- Shinsei Corp. of Am. v. United States, 355 F.3d 1297 (Fed. Cir.) (distinguishing review of liquidation instructions)
- Consol. Bearings Co. v. United States, 348 F.3d 997 (Fed. Cir.) (liquidation-instructions challenges reviewed under §1581(i) where appropriate)