924 F.3d 1198
Fed. Cir.2019Background
- In 2012 Commerce issued antidumping (AD) and countervailing duty (CVD) orders covering "crystalline silicon photovoltaic (CSPV) cells, whether or not assembled into modules," and expressly excluding certain thin-film products (e.g., a‑Si, CdTe, CIGS).
- Sunpreme manufactured hybrid bifacial modules in China using thin amorphous‑silicon films deposited on both sides of a crystalline silicon wafer; it entered those modules as non‑subject entries until Customs in 2015 began treating them as covered and suspended liquidation.
- Customs initially suspended liquidation and required cash deposits beginning in April 2015; Customs later asked Commerce whether the products fell within the Orders and Commerce initiated a formal scope inquiry on December 30, 2015.
- Commerce issued a scope ruling (relying on (k)(1) and (k)(2) sources and a prior Triex ruling) finding Sunpreme’s modules: (1) are CSPV cells, (2) meet the ≥20 µm thickness requirement, (3) contain a p/n junction (p/i/n is a type of p/n), and (4) are not excluded as thin‑film products; Commerce instructed Customs to continue suspensions and collect deposits.
- Sunpreme sued in the Court of International Trade (CIT). The CIT upheld Commerce’s scope determination but held Commerce could not continue suspension of liquidation for entries made before the scope‑inquiry was initiated because Customs’ pre‑inquiry suspension was ultra vires. The Federal Circuit affirms on both points.
Issues
| Issue | Plaintiff's Argument (Sunpreme) | Defendant's Argument (U.S./SolarWorld) | Held |
|---|---|---|---|
| Whether Commerce’s scope ruling that Sunpreme’s hybrid modules are "crystalline silicon photovoltaic cells" is supported by substantial evidence | Sunpreme: its modules are not CSPV cells; crystalline wafer is inert and not an active, doped energy‑generating component | U.S./SolarWorld: wafer is slightly doped, contributes to photon collection/electricity generation; consistent with Triex and petition | Held: Substantial evidence supports Commerce — wafer contributes to energy generation, so modules are CSPV cells |
| Whether the cells meet the ≥20 micrometers thickness requirement | Sunpreme: only thin films are <20 μm; wafer should be excluded from thickness calculation | U.S./SolarWorld: wafer is an active component and counts toward thickness | Held: Substantial evidence supports Commerce — wafer is active, so cells meet thickness threshold |
| Whether a p/i/n junction qualifies as a p/n junction under the Orders | Sunpreme: p/n unambiguously means p‑adjacent to n within the crystalline wafer; p/i/n is different | U.S./SolarWorld: p/i/n functions as a p/n (electric field formation); Orders cover p/n formed by any means | Held: Substantial evidence supports Commerce — p/i/n is a form of p/n junction within scope |
| Whether Sunpreme’s modules qualify for the thin‑film exclusion | Sunpreme: modules are thin‑film products by industry certification and production | U.S./SolarWorld: Orders and petition show thin films exclude products that avoid crystalline silicon; hybrid modules have active crystalline component and thus are not excluded | Held: Substantial evidence supports Commerce — hybrid modules with active crystalline wafer are not excluded thin‑film products |
| Whether Customs lawfully suspended liquidation and collected deposits for entries made before Commerce initiated the scope inquiry (retroactive suspension) | Sunpreme: (implicit) Customs acted beyond authority; sought refund of pre‑inquiry deposits | U.S./SolarWorld: Customs’ pre‑inquiry suspension was appropriate and Commerce could continue it | Held: Customs’ pre‑inquiry suspension was ultra vires where scope was ambiguous; Commerce cannot continue an unlawful suspension — suspension/collection may only be continued prospectively from initiation date |
Key Cases Cited
- AMS Assocs., Inc. v. United States, 737 F.3d 1338 (Fed. Cir.) (Commerce may not order retroactive suspension of liquidation when it merely clarifies an ambiguous order)
- Xerox Corp. v. United States, 289 F.3d 792 (Fed. Cir.) (when scope is unclear, Commerce—not Customs—should in the first instance decide coverage)
- Duferco Steel, Inc. v. United States, 296 F.3d 1087 (Fed. Cir.) (Commerce cannot adopt an interpretation untethered to the order’s language)
- Mid Continent Nail Corp. v. United States, 725 F.3d 1295 (Fed. Cir.) (scope analysis and requirement to examine order language first)