Sunpreme Inc. v. United States , 256 F. Supp. 3d 1265 ( 2017 )

Slip Op. 17-116
UNITED STATES COURT OF INTERNATIONAL TRADE
SUNPREME INC.,
Plaintiff,
v.
UNITED STATES, Before: Claire R. Kelly, Judge
Defendant, Court No. 16-00171
and
SOLARWORLD AMERICAS, INC.,
Defendant-Intervenor.
OPINION AND ORDER
[Sustaining the U.S. Department of Commerce’s determination that Sunpreme Inc.’s
imported bifacial solar modules are subject to the antidumping duty and countervailing
duty orders covering certain crystalline silicon photovoltaic cells, whether or not
assembled into modules, from the People’s Republic of China, but granting Plaintiff’s
motion for judgment on the agency record challenging the terms of the liquidation
instructions issued in connection with the U.S. Department of Commerce’s affirmative
scope determination and entering judgment for Plaintiff on that claim.]
Dated: August 29, 2017
John Marshall Gurley and Diana Dimitriuc-Quaia, Arent Fox LLP, of Washington, DC,
argued for plaintiff. With them on the brief were Nancy Aileen Noonan and Aman Kakar.
Justin Reinhart Miller, Senior Trial Counsel, International Trade Field Office, Commercial
Litigation Branch, Civil Division, U.S. Department of Justice, of New York, NY, for
defendant. With him on the brief were Chad A. Readler, Acting Assistant Attorney
General, Jeanne E. Davidson, Director, and Reginald T. Blades, Jr., Assistant Director.
Of counsel on the brief was Mercedes C. Morno, Attorney, Office of the Chief Counsel for
Trade Enforcement & Compliance, U.S. Department of Commerce, of Washington, DC.
Timothy C. Brightbill and Usha Neelakantan, Wiley Rein, LLP, of Washington, DC, argued
for defendant-intervenor.
Court No. 16-00171 Page 2
Kelly, Judge: This action is before the court on Plaintiff’s USCIT Rule 56.2 motion
for judgment on the agency record challenging the United States Department of
Commerce’s (“Commerce”) determination that Plaintiff’s solar modules are subject to
antidumping and countervailing duty orders covering certain crystalline silicon
photovoltaic (“CSPV”) cells, whether or not assembled into modules, from the People’s
Republic of China (collectively “Orders”). See Pl.’s Mot. J. Agency R., Dec. 5, 2016,
ECF No. 75-1 (“Pl.’s Mot.”); see also Crystalline Silicon Photovoltaic Cells, Whether or
Not Assembled into Modules from the People’s Republic of China: Final Ruling in the
Scope Inquiry, Sept. 14, 2016, ECF No. 28-4 (“Final Scope Ruling”); Crystalline Silicon
Photovoltaic Cells, Whether or Not Assembled into Modules, From the People’s
Republic of China, 77 Fed. Reg. 73,017 (Dep’t Commerce Dec. 7, 2012) (countervailing
duty order) (“CVD Order”); Crystalline Silicon Photovoltaic Cells, Whether or Not
Assembled into Modules, From the People’s Republic of China, 77 Fed. Reg. 73,018(Dep’t Commerce Dec. 7, 2012) (amended final determination of sales at less than fair
value and antidumping duty order) (“ADD Order”). Additionally, Plaintiff challenges as
contrary to law Commerce’s liquidation instructions to U.S. Customs and Border
Protection (“Customs” or “CBP”), which ordered CBP to collect cash deposits and to
suspend liquidation on entries entered prior to the initiation of the scope inquiry that
culminated in Commerce’s issuance of the Final Scope Ruling. 1 Pl.’s Mot.; see also
1
Plaintiff brings its challenge to Commerce’s liquidation instructions within its USCIT Rule 56.2
motion for judgment on the agency record challenging Commerce’s determination that Plaintiff’s
(footnote continued)
Court No. 16-00171 Page 3
Message Number 6214307, AD PD 74, bar code 3505143-01 (Sept. 1, 2016), Message
Number 6214307, CVD PD 80, bar code 3505146-01 (Sept. 1, 2016) (collectively
“Liquidation Instructions”); Message Number 6246309, AD PD 75, bar code 3505144-
01 (Sept. 2, 2016), Message Number 6246309, CVD PD 81, bar code 3505147-01 (Sept.
2, 2016) (collectively “Corrected Liquidation Instructions”).2 For the reasons that follow,
the court denies Plaintiff’s motion for judgment on the agency record and sustains
Commerce’s final scope determination that Plaintiff’s imported solar modules are subject
to the Orders. However, the court grants Plaintiff’s motion for judgment on the agency
record on its claim challenging as contrary to law Commerce’s liquidation instructions
directing CBP to continue suspension of liquidation and to collect cash deposits with
respect to entries prior to the initiation of the scope inquiry. Accordingly, the court directs
Commerce to issue new liquidation instructions consistent with this decision.
BACKGROUND
Plaintiff, Sunpreme Inc. (“Sunpreme”), is a U.S.-based importer of solar modules
manufactured by Jiawei Solarchina (Shenzen) Co., Ltd. (“Jiawei Shenzen”) in the
People’s Republic of China. See Pl.’s Mem. Supp. Mot. J. Agency R. 3, Dec. 5, 2016,
imported solar modules are subject to the Orders. See Pl.’s Mot. As discussed in further detail
in the discussion of the Court’s jurisdiction over Plaintiff’s claim, the court construes Plaintiff’s
challenge as a motion for judgment on the agency record over which the Court has jurisdiction
under 28 U.S.C. § 1581(i). USCIT Rule 56.2 only allows for judgment on the agency record for
an action described in 28 U.S.C. § 1581(c). See USCIT R. 56.2. Therefore, the court converts
Plaintiff’s motion to a motion for judgment on the agency record brought pursuant to USCIT Rule
56.1.
2
On September 14, 2016, Defendant filed indices to the confidential and public administrative
records for its antidumping and countervailing duty scope proceedings. Those administrative
records can be found at ECF Nos. 28-2 and 28-3, respectively. All further documents from
the administrative records may be located in those appendices.
Court No. 16-00171 Page 4
ECF No. 75 (“Sunpreme Br.”) (incorporating by reference Pl.’s Mot. Prelim. Inj. and Mem.
P & A. Supp. Thereof, Sept. 8, 2016, ECF No. 21 (“Mot. PI”)); Compl. ¶ 6, 20, Aug. 26,
2016, ECF No. 2 (“Compl.”). Plaintiff imports solar modules, which it describes as
containing bi-facial solar cells with “an innovative thin film technology, the Hybrid Cell
Technology, developed and owned by Sunpreme.” Compl. ¶ 22. Plaintiff designs,
develops, and tests the imported solar cells that form the imported solar modules at its
facility in California. Id. Plaintiff avers that all of its solar modules that are the subject of
Commerce’s Final Scope Ruling
consist of solar cells made with amorphous silicon thin films and are certified
by an [industry certification body] as thin film modules under the
international standard IEC 61646: 2008 which covers “Thin film terrestrial
photovoltaic (PV) modules. Design qualification and type approval.”
Compl. ¶ 21. Plaintiff alleges that its cells are “made of several layers of amorphous
silicon less than one micron in thickness, deposited on both sides of a substrate
consisting of a crystalline silicon wafer.” Compl. ¶ 23.
Plaintiff alleges its cells have a p/i/n junction consisting of “thin film p-i-(wafer
substrate)-i-n junctions, formed by four amorphous silicon thin film depositions.” Compl.
¶ 24; see also Sunpreme Br. 28. Plaintiff asserts that “the junction is made by the layers
of p/i and i/n amorphous silicon on both the front and the back of the substrate, such that
the junction is formed on the wafer and inside the thin film layers.” Compl. ¶ 25;
Sunpreme Br. 28. Further, Plaintiff claims it uses a
blank crystalline silicon wafer as a substrate for the thin films in order to
improve the mechanical reliability of the modules. That wafer is not
processed by doping, does not contain a p/n junction, nor is it otherwise
processed to become a[ ] CSPV cell. Without the amorphous silicon layers,
the substrate is a blank silicon wafer, not a CSPV cell.
Court No. 16-00171 Page 5
Compl. ¶ 26; see also Sunpreme Br. 28.
On December 7, 2012, Commerce published the Orders. See CVD Order, 77
Fed. Reg. at 73,017; ADD Order, 77 Fed. Reg. at 73,018. The scope language of the
Orders is identical, and provides:
The merchandise covered by this order is [CSPV] cells, and
modules, laminates and panels, consisting of [CSPV] cells, whether or not
partially or fully assembled into other products, including but not limited to,
modules, laminates, panels and building integrated materials.
This order covers [CSPV] cells of thickness equal to or greater than
20 micrometers, having a p/n junction formed by any means, whether or not
the cell has undergone other processing, including, but not limited to,
cleaning, etching, coating, and/or addition of materials (including, but not
limited to, metallization and conductor patterns) to collect and forward the
electricity that is generated by the cell.
...
Excluded from the scope of this order are thin film photovoltaic
products produced from amorphous silicon (a-Si), cadmium telluride
(CdTe), or copper indium gallium selenide (CIGS).
CVD Order, 77 Fed. Reg. at 73,017; ADD Order, 77 Fed. Reg. at 73,018.
On December 11, 2012, Commerce notified CBP of the CVD Order and instructed
CBP, effective December 6, 2012, to require cash deposits equal to the subsidy rates in
effect at the time of entry. See Pl.’s Mot. Prelim. Inj. and Mem. P. & A. Supp. Thereof
Exs. Ex. 7, Sept. 8, 2016, ECF No. 21-1. On December 21, 2012, Commerce notified
CBP of the ADD Order and instructed CBP, effective December 7, 2012, to require a cash
deposit or the posting of a bond equal to the dumping margins in effect at the time of
entry. See Pl.’s Mot. Prelim. Inj. and Mem. P. & A. Supp. Thereof Exs. Ex. 6, Sept. 8,
2016, ECF No. 21-1. The instructions issued in connection with the ADD Order provided
an exporter-specific antidumping duty rate of 13.94 percent for Jiawei Shenzhen, the
manufacturer of the solar panels imported by Sunpreme. See id.
Court No. 16-00171 Page 6
Prior to approximately April of 2015, Plaintiff had been entering its modules as
ordinary consumption entries without depositing antidumping or countervailing duties.
See Def.’s Corrected Mem. Resp. Pl.’s Mot. Prelim. Inj. 4, Sept. 27, 2016, ECF No. 42
(“Def.’s Resp. PI”); see generally Sunpreme Inc. v. United States, 40 CIT __, __ 145 F.
Supp. 3d 1271, 1279 (2016) (“Sunpreme I”). CBP instructed Plaintiff to file its entries as
type “03,” the type of entries subject to antidumping and countervailing duties. See Def.’s
Resp. PI 4; see generally Sunpreme I, 40 CIT at __, 145 F. Supp. 3d at 1279. Plaintiff
complied with CBP’s instructions. See Mot. PI 12; see generally Sunpreme I, 40 CIT at
__, 145 F. Supp. 3d at 1281. As a result of Plaintiff’s entry of its merchandise as type
“03” CBP began collecting cash deposits, and liquidation of these entries was suspended
by operation of law. 3
On November 16, 2015, Plaintiff filed an application for a scope ruling requesting
that Commerce find Plaintiff’s solar modules outside the scope of the Orders. See
Request for a Scope Ruling on Solar Modules With Bi-Facial Thin Film Cells, AD PD 1–6,
bar codes 3417556-01–06 (Nov. 16, 2015); Request for a Scope Ruling on Solar Modules
With Bi-Facial Thin Film Cells, CVD PD 1–6, bar codes 3417582-01–06 (Nov. 16, 2015)
(collectively “Sunpreme Scope Ruling Request”). Plaintiff requested Commerce issue a
scope ruling on an expedited basis due to financial difficulties the company was
3
Plaintiff challenged CBP’s determination requiring it to enter its imported modules as type “03”
entries subject to antidumping and countervailing duties prior to the initiation of a scope inquiry in
a separate action. See Sunpreme Inc. v. United States, Court No. 15-315. In that action, the
court held that CBP lacked authority to suspend liquidation and order the collection of cash
deposits on entries prior to the initiation of a scope inquiry by Commerce. Sunpreme Inc. v. United
States, 40 CIT __, __, 190 F. Supp. 3d 1185, 1202 (2016). The court further held that CBP’s
collection of cash deposits on Plaintiff’s imports was contrary to law because CBP lacked authority
to interpret ambiguous scope language in the Orders. Id., 40 CIT at __, 190 F. Supp. 3d at 1196.
Court No. 16-00171 Page 7
experiencing. Sunpreme Scope Ruling Request at 2; see also Compl. ¶28. On
December 30, 2015, Commerce initiated a formal scope inquiry. See Scope Inquiry
Initiation on Photovoltaic Modules Imported by Sunpreme, AD PD 9, bar code 3428728-
01 (Dec. 30, 2015); Scope Inquiry Initiation on Photovoltaic Modules Imported by
Sunpreme, CVD PD 15, bar code 3428730-01 (Dec. 30, 2015).
On June 17, 2016, Commerce placed a final ruling in a scope inquiry involving the
applicability of the Orders to Triex photovoltaic cells manufactured by Silevo, Inc. on
the record of this scope proceeding. See Memo re: Crystalline Silicon Photovoltaic
Cells, Whether or Not Assembled into Modules, From the People’s Republic of China:
Request for Additional Factual Information and Comments in Sunpreme Scope Inquiry
at Att., AD PD 29, bar code 3479321-01 (June 17, 2016); Memo re: Crystalline Silicon
Photovoltaic Cells, Whether or Not Assembled into Modules, From the People’s
Republic of China: Request for Additional Factual Information and Comments in
Sunpreme Scope Inquiry at Att., CVD PD 35, bar code 3479320-01 (June 17,
2016) (collectively “Triex Scope Ruling”). In that determination, Commerce found the
Triex solar cell to be covered by the scope of the Orders. See Triex Scope Ruling at
38. Commerce invited interested parties to submit additional factual information and
comments to distinguish the relevant Sunpreme product from the Triex product. Memo
re: Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled into Modules,
From the People’s Republic of China: Request for Additional Factual Information and
Comments in Sunpreme Scope Inquiry at 1, AD PD 29, bar code 3479321-01 (June 17,
2016); Memo re: Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled into
Modules, From the People’s Republic of China: Request for Additional Factual
Court No. 16-00171 Page 8
Information and Comments in Sunpreme Scope Inquiry at 1, CVD PD 35, bar code
3479320-01 (June 17, 2016).
On July 29, 2016, Commerce issued the Final Scope Ruling in which it
determined that Sunpreme’s imported solar modules are subject to the Orders based
on the language of the Orders and the criteria in 19 C.F.R. § 351.225(k)(1). 4 See Final
Scope Ruling at 12–17. Commerce considered the plain language of the Orders and
determined that the scope language covers products that: “(1) are CSPV cells, (2) are
at least 20 micrometers [(“ȝP”)] thick, (3) contain a p/n junction, and (4) are excluded
thin film products.” Final Scope Ruling at 13. Relying upon the plain language of the
Orders and its analysis in the Triex Scope Ruling, Commerce concluded that Plaintiff’s
products had all of the characteristics of in-scope merchandise, and Commerce further
determined that Sunpreme’s merchandise was not excluded by the Order’s language
excluding thin film photovoltaic products. Id. at 18. Because Commerce determined
that its analysis of the language of the Orders and the sources enumerated under 19
C.F.R. § 351.225(k)(1) are dispositive as to the meaning of ambiguous scope language,
Commerce determined that it did not need to consider the criteria under 19 C.F.R. §
351.225(k)(2) or the parties’ comments on how those criteria might help Commerce
interpret the scope language of the Orders. Id. at 19.
4
Commerce’s regulations provide that, where Commerce issues a scope ruling to clarify the
scope of an antidumping or countervailing duty order with respect to particular products,
Commerce will take into account, in addition to the scope language, the descriptions of the
merchandise contained in: (1) the petition; (2) the initial investigation; (3) and past determinations
by Commerce, including prior scope determinations. 19 C.F.R. § 351.225(k)(1) (2015).
Court No. 16-00171 Page 9
On August 1, 2016, Commerce notified CBP that Plaintiff’s merchandise was
within the scope of the Orders and instructed Customs to “[c]ontinue to suspend
liquidation of entries of solar cells from the [People’s Republic of China (“PRC”)],
including the bifacial solar products imported by Sunpreme . . . subject to the antidumping
[and countervailing] duty order[s] on solar cells from the PRC.” Liquidation
Instructions. On September 2, 2016, Commerce issued messages to Customs
correcting its prior instructions regarding suspension of liquidation. The corrected
messages instruct Commerce to
[c]ontinue to suspend liquidation of entries of merchandise subject to the
antidumping [and countervailing] duty order[s] on solar cells from the PRC.
Accordingly, because the bifacial solar products imported by
Sunpreme . . . are subject to the antidumping [and countervailing] duty
order[s] on solar cells from the PRC, for entries of such merchandise that
are currently suspended from liquidation, continue to suspend those entries
from liquidation. For entries of bifacial solar products imported by
Sunpreme . . . that are not already suspended from liquidation, begin
suspension and collect cash deposits at the applicable rate for entries
that entered or were withdrawn from warehouse for consumption on or
after 12/30/2015.
Corrected Liquidation Instructions.
On September 8, 2016, Sunpreme filed a motion for a preliminary injunction
seeking to enjoin Defendant, together with its delegates, officers, agents, servants, and
employees of CBP, from requiring Sunpreme to pay cash deposits and enter its solar
modules as subject to the Orders in accordance with Commerce’s liquidation instructions
while this action is considered. See Mot. PI. The court denied Plaintiff’s motion for a
preliminary injunction seeking to enjoin CBP from collecting cash deposits on entries
entered or withdrawn from warehouse on or after initiation of the Final Scope Ruling.
Sunpreme Inc. v. United States, 40 CIT __, __, 181 F. Supp. 3d 1322, 1326 (2016)
Court No. 16-00171 Page 10
(“Sunpreme II”). However, the court enjoined Commerce from ordering CBP to collect
cash deposits and enjoined CBP from collecting cash deposits on entries entered or
withdrawn from warehouse prior to Commerce’s initiation of the scope inquiry that is the
subject of this challenge until the entry of a final and conclusive court decision in this
matter. Id.JURISDICTION AND STANDARD OF REVIEW
The Court has jurisdiction over Plaintiff’s challenge to Commerce’s scope
determination pursuant to Section 516A of the Tariff Act of 1930, 5 as amended, 19 U.S.C.
§ 1516a(a)(2)(B)(vi) and 28 U.S.C. § 1581(c) (2012), which grant the court authority to
review actions contesting scope determinations that find certain merchandise to be within
the class or kind of merchandise described in an antidumping or countervailing duty order.
See 19 U.S.C. § 1516a(a)(2)(B)(vi); 28 U.S.C. § 1581(c) (2012). The court must “hold
unlawful any determination, finding or conclusion found . . . to be unsupported by
substantial evidence on the record, or otherwise not in accordance with law . . . .” 19
U.S.C. § 1516a(b)(1)(B)(i).
Plaintiff argues that the Court possesses jurisdiction over its claim challenging
Commerce’s liquidation instructions under 28 U.S.C. § 1581(c). See Sunpreme Suppl.
Br. Proper Jurisdictional Basis Hearing Pl.’s Claim Challenging Liquidation Instructions
2–6, Aug. 11, 2017, ECF No. 111 (“Sunpreme Suppl. Br.”). Defendant argues that
“Sunpreme’s challenge to the [liquidation] instructions (Count VI of the Complaint)
5
Further citations to the Tariff Act of 1930, as amended, are to the relevant provisions of the U.S.
Code, 2012 edition.
Court No. 16-00171 Page 11
represents a challenge to the administration and enforcement of the [Final] Scope Ruling.
Accordingly . . . the proper jurisdictional basis for the Court to review Sunpreme’s claim
is 28 U.S.C. § 1581(i)—and not subsection 1581(c).” Def.’s Suppl. Br. Resp. Court’s July
24, 2017 Order, and Mot. Dismiss Count VI Compl. Lack Subject Matter Jurisdiction
Under 28 U.S.C. § 1581(c) 6–7, Aug. 11, 2017, ECF No. 110 (“Def.’s Suppl. Br.”).
However, Defendant does not object to the Court permitting Sunpreme to amend its
pleadings to invoke 28 U.S.C. § 1581(i) because Plaintiff would be capable of
commencing a separate action to challenge Commerce’s liquidation instructions and
consolidating it with this action. Id. at 7. See id. SolarWorld supports Defendant’s
position. See Def.-Intervenor SolarWorld Americas, Inc. Suppl. Br., Aug. 11, 2017, ECF
No. 111. Plaintiff also argues in the alternative that, if the court found jurisdiction proper
under 28 U.S.C. 1581(i), Sunpreme should be allowed to amend its complaint to assert
jurisdiction over its claim under 28 U.S.C. § 1581(i) (2012). See Sunpreme Suppl. Br. 7.
For the reasons that follow, the Court has jurisdiction over the Plaintiff’s challenge to the
liquidation instructions issued by the U.S. Department of Commerce following the scope
determination under review in this action pursuant to 28 U.S.C. § 1581(i) (4). 6
6
Plaintiff brought its claim challenging Commerce’s liquidation instructions issued incident to, but
not addressed within the context of Commerce’s scope determination, pursuant to 19 U.S.C.
§ 1516a(a)(2)(B)(vi). See Compl. ¶ 3. Section 1516a(a)(2)(B)(vi) of Title 19 of the United States
Code makes a determination as to whether a particular type of merchandise is within the class or
kind of merchandise described in an existing finding of dumping or antidumping or countervailing
duty order reviewable by the Court. See 19 U.S.C. § 1516a(a)(2)(B)(vi). As a result, Plaintiff
claimed the Court has jurisdiction over this claim under 28 U.S.C. § 1581(c), which grants the
Court exclusive jurisdiction of any civil action commenced under 19 U.S.C. § 1516a. See Compl.
¶ 3; see also 19 U.S.C. § 1516a(a)(2)(B)(vi).
(footnote continued)
Court No. 16-00171 Page 12
In addition to the enumerated jurisdictional bases provided for in the Court’s
jurisdictional statute, the Court has exclusive jurisdiction of any civil action commenced
against the United States, its agencies, or its officers, that arises out of any law providing
for “tariffs, duties, fees, or other taxes on the importation of merchandise for reasons other
than the raising of revenue,” see 28 U.S.C. § 1581(i)(2) (2012), and “administration and
enforcement” with respect to laws providing for such tariffs, duties, fees, or other taxes
and the “administration and enforcement” of claims that can be challenged under 28
U.S.C. § 1581(c), see 28 U.S.C. § 1581(i)(4) (2012).
Sunpreme’s challenge to the liquidation instructions issued by Commerce is a
challenge to Commerce’s administration and enforcement of the Final Scope Ruling, and
not to the substance of the Final Scope Ruling itself. See Compl. ¶ 71 (stating that “any
suspension should have commenced as of the date of initiation of the scope inquiry or
upon Commerce’s finding that the Sunpreme bifacial solar product[s] are within the scope
of the [antidumping and countervailing duty orders]”). Jurisdiction is improper under
§ 1581(c), as the challenge to the instructions does not relate to the review the scope
determination issued pursuant to 19 U.S.C. 1516a, over which the Court has jurisdiction
On July 24, 2017, the court held a teleconference to request that the parties address
whether and, if so, on what jurisdictional basis the Court could hear Plaintiff’s challenge to
Commerce’s liquidation instructions. See Teleconference, July 24, 2017, ECF No. 105. Following
the teleconference, the court ordered that the parties submit supplemental briefing addressing
the jurisdictional basis for the Court to decide Plaintiff’s claim challenging Commerce’s liquidation
instructions. See Order, July 24, 2017, ECF No. 107. The parties submitted supplemental briefs
on August 11, 2017. See Def.’s Suppl. Br. Resp. Court’s July 24, 2017 Order, and Mot. Dismiss
Count VI Compl. Lack Subject Matter Jurisdiction under 28 U.S.C. § 1581(c), Aug. 11, 2017, ECF
No. 110; Def.-Intervenor SolarWorld Americas, Inc.’s Suppl. Br., Aug. 11, 2017, ECF No. 111;
Suppl. Br. Proper Jurisdictional Basis Hearing Pl.’s Claim Challenging Liquidation Instructions,
Aug. 11, 2017, ECF No. 112.
Court No. 16-00171 Page 13
under § 1581(c). Commerce did not determine within its Final Scope Ruling what entries
should be subject to suspension and liquidation or cash deposits. Nor does the record
indicate that any party provided comments on the propriety of issuing liquidation
instructions that applied retroactively to entries that entered prior to the initiation of the
scope inquiry. Therefore, Commerce issued its liquidation instructions in the
administration and enforcement of its Final Scope Ruling and not as a part of that
determination.
Sunpreme argues that, where a plaintiff claims harm from liquidation instructions
that were a direct result of a scope determination, the true nature of the challenge relates
to the scope ruling itself. See Sunpreme Suppl. Br. 3. In support of its argument,
Sunpreme cites cases holding that the Court possesses jurisdiction to review a challenge
that stems from a scope ruling under 28 U.S.C. § 1581(c). See id. at 4–6 (citing AMS
Assocs., Inc. v. United States, 36 CIT __, 881 F. Supp., 2d 1374 (2012) (“AMS I”); United
Steel Fasteners, Inc. v. United States, 41 CIT __, Slip Op. 17-2 (2017); Ethan Allen
Operations, Inc. v. United States, 39 CIT __, 121 F. Supp. 3d 1342 (2015)). As an initial
matter, in the cases cited by Sunpreme, no party challenged the jurisdictional basis for
the Court to hear the challenge in question, and none of the holdings in the cases cited
by Sunpreme addressed the propriety of hearing the challenges under 28 U.S.C.
§ 1581(c). Moreover, all of these cases are distinguishable in that Commerce addressed
the issue of retroactivity of its scope determination in the determination being reviewed
Court No. 16-00171 Page 14
by the Court pursuant to 19 U.S.C. § 1516a and 28 U.S.C. § 1581(c). 7 Here, Commerce
did not address the issue of retroactivity in its Final Scope Ruling.
Sunpreme also argues that jurisdiction is not proper under § 1581(i) because the
Court only has jurisdiction under § 1581(i) where Commerce’s liquidation instructions are
erroneous or contrary to the final scope ruling. Sunpreme Suppl. Br. 6 (citing Shinyei
Corp. of Am. v. United States, 355 F.3d 1297, 1304–05 (Fed. Cir. 2004); Consol. Bearings
Co. v. United States, 348 F.3d 997, 1002 (Fed. Cir. 2003)). Although Sunpreme correctly
points out that both cases upon which it relies involved liquidation instructions that were
erroneous or contrary to the final scope ruling, nothing in the holding of either case limits
7
In AMS I, Commerce concluded during the course of its first administrative review that plaintiff’s
goods were subject to the antidumping order in question pursuant to a substantial transformation
analysis. AMS I, 36 CIT at __, 881 F. Supp. 2d at 1376. Thereafter, in the course of conducting
its second administrative review under the same antidumping order, Commerce retroactively
suspended liquidation of Plaintiff’s entries made during the second administrative review period.
See id., 36 CIT at __, 881 F. Supp. 2d at 1376–77. Plaintiff challenged Commerce’s issuance of
liquidation instructions, which were addressed and defended by Commerce within the context of
its final determination of the second administrative review. See id., 36 CIT at __, 881 F. Supp. 2d
at 1377–78.
In United Steel Fasteners, petitioner requested in its request for administrative review that
Commerce instruct CBP to suspend liquidation and require cash deposits for all of respondents’
entries retroactive to the first day of the administrative review period. United Steel Fasteners, 41
CIT at __, Slip Op. 17-2 at 6. Commerce also determined within its final determination that
“retroactive suspension of liquidation was reasonable because it had not initiated a scope inquiry
under 19 C.F.R. § 351.225(3).” Id., 41 CIT at __, Slip Op. 17-2 at 6–7.
In Ethan Allen, the court noted that it has, at least, a colorable claim of jurisdiction under
§ 1581(c) over plaintiff’s challenge to Commerce’s liquidation instructions that stem directly from
Commerce scope ruling and remand results. Ethan Allen, 39 CIT at __, 121 F. Supp. 3d at 1352
n. 5. However, in its decision, the court explicitly noted that “Commerce’s Remand Results
specifically address the issue of suspension of liquidation, indicating that a § 1581(c) may be the
proper method to challenge not only the Scope Ruling and Remand Results, but also the
liquidation instructions deriving therefrom.” Id. Therefore, it is apparent that the court relied in
part on the notion that Commerce addressed the retroactivity of its liquidation instructions in its
remand results to determine that the claim of jurisdiction under § 1581(c) is colorable. See id.
Court No. 16-00171 Page 15
the Court’s jurisdiction under § 1581(i) to circumstances where Commerce acts
erroneously or inconsistently with its own determination. 8
Although Defendant moves to dismiss Plaintiff’s challenge to Commerce’s
liquidation instructions pursuant to USCIT Rule 12(b)(1), over which Plaintiff pled the
Court had jurisdiction pursuant to 28 U.S.C. § 1581(c), Defendant does not object to
Plaintiff amending its complaint to bring the same claim under § 1581(i). See Def.’s
Suppl. Br. 7. Even if Sunpreme has explicitly invoked § 1581(c), the court may construe
the allegations of a pleading as presenting a claim under § 1581(i) incident to its authority
to view the allegations in the pleadings liberally and in the light most favorable to Plaintiff.
See Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583 (Fed. Cir. 1993) (stating that
allegations can be taken as true and construed in a light most favorable to the complainant
where a Rule 12(b)(1) motion challenges the Court’s subject matter jurisdiction based on
the sufficiency of the allegations in the pleadings). In light of Defendant’s lack of
8
In Shinyei, the Court of Appeals for the Federal Circuit noted that liquidation instructions issued
incident to an antidumping duty administrative review that are contrary to Commerce’s
determination are not antidumping duty determinations reviewable under 19 U.S.C. § 1516a over
which the Court would have jurisdiction under 28 U.S.C. § 1581(c). Shinyei, 355 F.3d at 1309.
Although not part of the Court of Appeals holding, the Court of Appeals remarked that the Court
had jurisdiction over such an action under 28 U.S.C. § 1581(i). But nothing in the decision
indicates that the decision relied on the notion that Commerce’s instructions are inconsistent with
its own determination in order for the Court to have jurisdiction over such a claim under § 1581(i).
Likewise, nothing in the Court of Appeals for the Federal Circuit’s holding in Consol. Bearings
indicates that the Court’s jurisdiction over a claim challenging Commerce’s liquidation instructions
issued incident to the final results in an administrative review is limited to circumstances where
Commerce acts erroneously or inconsistently with its final results. Consol. Bearings, 348 F.3d at
1002.
Moreover, both cases involved determinations made in the course of administrative
reviews of antidumping orders. See Shinyei, 355 F.3d at 1301–02; Consol. Bearings, 348 F.3d
at 1001. Therefore, neither case holds that there are any limitations upon the Court’s jurisdiction
over a challenge to liquidation instructions issued incident to a scope proceeding before
Commerce.
Court No. 16-00171 Page 16
opposition to allowing Plaintiff to amend its pleading, there is no reason to dismiss
Plaintiff’s claim or to require the amendment of the pleadings to determine that the Court
has jurisdiction over Plaintiff’s claim under § 1581(i).
The court reviews an action brought under 28 U.S.C. § 1581(i) under the same
standards as provided under § 706 of the Administrative Procedure Act (“APA”), as
amended. See 28 U.S.C. § 2640(e) (2012). Under the statute,
[t]he reviewing court shall--
(1) compel agency action unlawfully withheld or unreasonably delayed; and
(2) hold unlawful and set aside agency action, findings and conclusions
found to be--
(C) in excess of statutory jurisdiction, authority, or limitations, or short
of statutory right.
5 U.S.C. § 706(2)(A), (C). Under the arbitrary and capricious standard, courts consider
whether the agency “‘entirely failed to consider an important aspect of the problem,
offered an explanation for its decision that runs counter to the evidence before the agency,
or [the decision] is so implausible that it could not be ascribed to a difference in view or
the product of agency expertise.’” Alabama Aircraft Indus., Inc. v. United States, 586 F.3d
1372, 1376 (Fed. Cir. 2009) (quoting Motor Vehicle Ass’n v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 43 (1983)).
DISCUSSION
I. Commerce Reasonably Determined that Sunpreme’s Imported Modules Are
In-Scope
Sunpreme argues that Commerce’s determination that Sunpreme’s cells are
dispositively in-scope merchandise based upon the plain language of the Orders and the
criteria under 19 C.F.R. § 351.225(k)(1) is contrary to law and unsupported by substantial
Court No. 16-00171 Page 17
evidence for several reasons. First, Sunpreme argues that Commerce’s definition of
CSPV cells is not supported by the plain language of the Orders or the (k)(1) sources.
See Sunpreme Br. 8–17. Sunpreme also argues Commerce lacked substantial evidence
to conclude that Sunpreme’s imported modules are composed of CSPV cells as that term
is used in the scope language. See Sunpreme Br. 17–23. Second, Sunpreme claims
that Commerce’s determination that the cells in Sunpreme’s imported merchandise are
more than 20 ȝm thick is not supported by substantial evidence. Id. at 23. Third,
Sunpreme contends that Commerce’s interpretation of the term “p/n junction formed by
any means” is contrary to law and that Commerce unreasonably concluded that the p/i/n
junction in Sunpreme’s cells is a p/n junction formed by any means. See id. 24–32.
Fourth, Sunpreme contests Commerce’s interpretation of the term thin film photovoltaic
products and Commerce’s determination that Sunpreme’s imported merchandise is not
covered by the language in the Orders excluding thin film photovoltaic products. Id. at
32–40. After briefly reviewing the legal framework for Commerce’s interpretation of scope
language, the court discusses each of Sunpreme’s challenges to Commerce’s scope
determination in turn.
A. Legal Framework
The language of an antidumping or countervailing duty order dictates its scope.
See Duferco Steel, Inc. v. United States, 296 F.3d 1087, 1097 (Fed. Cir. 2002) (citing
Ericsson GE Mobile Commc’ns, Inc. v. United States, 60 F.3d 778, 782 (Fed Cir. 1995)).
Commerce’s regulations provide that, where Commerce issues scope rulings to clarify
the scope of an ambiguous order with respect to particular products, in addition to the
scope language, Commerce will take into account descriptions of the merchandise
Court No. 16-00171 Page 18
contained in: (1) the petition; (2) the initial investigation; (3) and past determinations by
Commerce, including prior scope determinations (collectively “(k)(1) sources”). 19 C.F.R.
§ 351.225(k)(1) (2015). 9 When the (k)(1) sources are not dispositive, Commerce will
further consider:
(i) The physical characteristics of the product;
(ii) The expectations of the ultimate purchasers;
(iii) The ultimate use of the product;
(iv) The channels of trade in which the product is sold; and
(v) The manner in which the product is advertised and displayed.
19 C.F.R. § 351.225(k)(2) (collectively “(k)(2) sources”).
Commerce has broad authority “to interpret and clarify its antidumping duty orders.”
Ericsson GE Mobile, 60 F.3d at 782 (citing Smith Corona Corp. v. United States, 915
F.2d 683, 686 (Fed. Cir. 1990)), as corrected on reh'g (Sept. 1, 1995)); see also King
Supply Co., LLC v. United States, 674 3d 1343, 1348 (Fed. Cir. 2012) (stating that
Commerce is entitled to substantial deference with regard to interpretations of its own
antidumping orders). However, Commerce may not interpret an order “so as to change
the scope of that order, nor can Commerce interpret an order in a manner contrary to its
terms.” Eckstrom Indus., Inc. v. United States, 254 F.3d 1068, 1072 (Fed. Cir. 2001)
(citing Wheatland Tube Co. v. United States, 161 F.3d 1365, 1370 (Fed. Cir. 1998)).
Furthermore, “[s]cope orders may be interpreted as including subject merchandise
only if they contain language that specifically includes the subject merchandise or may
be reasonably interpreted to include it.” Duferco, 296 F.3d at 1089. Although the petition
and the investigation proceedings may aid in Commerce’s interpretation of the final
9
Further citations to the Code of Federal Regulations are to the 2015 edition.
Court No. 16-00171 Page 19
order, the order itself “reflects the decision that has been made as to which merchandise
is within the final scope of the investigation and is subject to the order.” Id. at 1096.
Therefore, to the extent Commerce determines that any terms of the Orders are
ambiguous, Commerce must interpret the relevant language in the Orders to determine
whether it includes the merchandise at issue. The scope language of the Orders at issue
provides:
The merchandise covered by this order is [CSPV] cells, and
modules, laminates and panels, consisting of [CSPV] cells, whether or not
partially or fully assembled into other products, including but not limited to,
modules, laminates, panels and building integrated materials.
This order covers [CSPV] cells of thickness equal to or greater than
20 [ȝm], having a p/n junction formed by any means, whether or not the cell
has undergone other processing, including, but not limited to, cleaning,
etching, coating, and/or addition of materials (including, but not limited to,
metallization and conductor patterns) to collect and forward the electricity
that is generated by the cell.
...
Excluded from the scope of this order are thin film photovoltaic
products produced from amorphous silicon (a-Si), cadmium telluride
(CdTe), or copper indium gallium selenide (CIGS).
CVD Order, 77 Fed. Reg. at 73,017; ADD Order, 77 Fed. Reg. at 73,018.
After considering the plain language of the Orders, Commerce determined that the
scope language calls upon it to consider whether Sunpreme’s products: “(1) are CSPV
cells, (2) are at least 20 micrometers [(“ȝm”)] thick, (3) contain a p/n junction [formed by
any means], and (4) are excluded thin film products.” Final Scope Ruling at 13.
B. Sunpreme’s Solar Modules Consist of CSPV Cells
Sunpreme contends that Commerce’s interpretation of the term CSPV cells
unreasonably expands the scope beyond the definition of that term as used in the Orders.
Sunpreme Br. 10–15. Further, Sunpreme claims that Commerce’s definition is
Court No. 16-00171 Page 20
unsupported by either the plain language of the orders or the sources enumerated in 19
C.F.R. § 351.225(k)(1). Id. at 15–23. Defendant responds that Commerce reasonably
relied upon the Triex Scope Ruling to interpret the term CSPV cells. Def.’s Resp. Pl.’s
Rule 56.2 Mot. J. Upon Agency R. 13–19, Mar. 1, 2017, ECF No. 88 (“Def.’s Resp. Br.”).
In addition, Defendant argues that Commerce properly determined that the cells in
Sunpreme’s solar modules meet the definition of CSPV cells. Id. at 19–21. For the
reasons that follow, Commerce acted in accordance with law by interpreting the term
“CSPV cells” based on the plain language of the Orders and the (k)(1) sources.
Commerce’s determination that Sunpreme’s cells meet Commerce’s definition is also
supported by substantial evidence.
The Orders describe the subject merchandise as CSPV cells and “modules . . .
consisting of CSPV cells, whether or not partially or fully assembled into other products,
including, but not limited to modules,” see CVD Order, 77 Fed Reg. 73,017, ADD Order,
77 Fed. Reg. 73,018, but the term CSPV cell is not defined in the Orders. Commerce
determined that the term “CSPV cell” requires that the cell rely on crystalline silicon to
generate electricity even where other materials, such as amorphous silicon or other metal
oxides, are present in the cell. Final Scope Ruling 13. That interpretation is reasonable
because the petition, a (k)(1) source, states that CSPV cells contain crystalline silicon,
see Final Scope Ruling at 13. Further, Commerce relied upon the Triex Scope Ruling,
also a (k)(1) source, which defines a CSPV cell as a cell that relies on crystalline silicon
Court No. 16-00171 Page 21
to generate electricity. 10 Final Scope Ruling at 13 (citing Triex Scope Ruling at 30).
Commerce also reasonably determined that Sunpreme’s cells meet the definition of CSPV
by crediting Sunpreme’s characterization of the crystalline silicon substrate in its product
as serving a primary role (i.e., the primary solar absorber), which Commerce found shows
that the wafer is an active component in the generation of electricity. 11 See id. at 14 (citing
10
In the Triex Scope Ruling, Commerce concluded that neither the plain meaning of the scope
language nor the (k)(1) sources is dispositive of whether solar cells that have characteristics
typically associated with both CSPV cells and thin film cells are subject to the Orders. Triex Scope
Ruling at 31. However, Commerce found that the physical characteristics, consumer expectations
and channels of trade and distribution are largely the same for both CSPV cells and for the Triex
cells. See Triex Scope Ruling at 36–38. Specifically, Commerce notes that the crystalline silicon
wafers in both CSPV and the Triex products are physically processed (i.e., doped) “to create a
charge that, in turn, forms part of the electrical-field-generating junction.” Id. at 37. Commerce
makes clear that the function of the crystalline silicon wafer in the Triex cell is to “generate energy
when struck by sunlight.” See id. at 30. Here, Commerce determined that the functionality of the
doped crystalline silicon substrate in the Sunpreme cells is materially identical to the functionality
of the crystalline silicon component in Triex Cells in that Sunpreme acknowledged that the doped
crystalline silicon substrates serve a primary role (i.e., the primary solar absorber) in its bifacial
solar product. See Final Scope Ruling at 14. Sunpreme claims that Commerce does not
substantiate its assertion that Sunpreme acknowledged that the substrates in Sunpreme’s cells
serve a primary role (i.e., the primary solar absorber), but the record contains several statements
attributable to Sunpreme that acknowledge that the substrate in its cells serves as the primary
solar absorber. See Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled into
Modules, from The People’s Republic of China: Sunpreme Inc.’s Submission of Comments
Regarding the Silevo Final Scope Ruling at 27, CVD PD 72, bar code 348960-01 (July 5, 2016)
(stating that “[i]n Sunpreme’s cells the role of the wafer substrate is primarily to provide a light
absorbing material and a stable mechanical/thermal interface for the amorphous silicon cells.”)).
Therefore, whether or not Commerce may have also referenced material that, as Sunpreme
claims, is attributable to a journalist and not to Sunpreme, see Oral Arg. at 00:54:09–00:54:37,
June 15, 2017, ECF No. 103, there is record evidence to support Commerce’s finding that
Sunpreme acknowledged the role of the substrate in its cells as absorbing sunlight.
11
Sunpreme argues that nothing in the record supports Commerce’s conclusion that the
crystalline silicon substrate in the Sunpreme cells is actively involved in electricity generation.
Sunpreme Br. 19. In support of this argument, Sunpreme attaches great significance to a
laboratory analysis submitted with its scope application finding that the crystalline silicon wafer in
its cells does not interact with the thin film layers, which Sunpreme argues demonstrates that the
crystalline silicon wafer does not itself perform the role of converting sunlight to electricity. See id.Sunpreme offers no reason why Commerce could not reasonably conclude that the crystalline
(footnote continued)
Court No. 16-00171 Page 22
Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled into Modules, from The
People’s Republic of China: Sunpreme Inc.’s Submission of Comments Regarding the
Silevo Final Scope Ruling at 14, 27–28, AD PD 66, bar code 348958-01 (July 5, 2016);
Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled into Modules, from The
People’s Republic of China: Sunpreme Inc.’s Submission of Comments Regarding the
Silevo Final Scope Ruling at 14, 27–28, CVD PD 72, bar code 348960-01 (July 5, 2016)
(collectively “Sunpreme Comments on Triex Scope Ruling” (stating that the raw wafer in
Sunpreme’s cells have a positive or negative orientation that is inherent in the wafer
production process, and “the role of the wafer substrate is primarily a light absorbing
material and a stable mechanical/thermal interface for the amorphous silicon cells”). 12
silicon substrate is actively involved in electricity generation on the basis that the crystalline silicon
substrate is the primary solar absorber without determining the substrate interacts with the thin film
layers. Without any such evidence, Commerce’s determination that the crystalline silicon wafer in
Sunpreme’s cells is actively involved in electricity generation is supported by substantial evidence.
Nothing inherent in the term CSPV cell or in the (k)(1) sources suggests that the crystalline silicon
component must be capable of generating energy on its own.
12
Sunpreme argues that Commerce’s determination that Sunpreme’s wafers are an active
component in the production of electricity relies upon the notion that Sunpreme acknowledged its
wafers are doped in that they are processed to impart an electrical charge. See Sunpreme Br.
21. Sunpreme claims that Commerce incorrectly defines the word “doped” (i.e., processed or
active in the generation of electricity) in Sunpreme’s statement, and, further, that the definition
used by Commerce is inconsistent with the use of the word “doped” in the Petition and other
investigation documents. Sunpreme Br. 21. Sunpreme cites the petition supplement, which
defines a “dopant” as “a chemical element (impurity) added in small amounts to an otherwise pure
semiconductor material to modify the electrical properties of the material.” Id. (citing id. at Ex. 1).
Sunpreme’s admission that is critical to Commerce’s determination is that the crystalline silicon
substrate in Sunpreme’s cells is the primary solar absorber, not that the substrate has a positive
or negative charge. See Final Scope Ruling at 14 (stating that Commerce cannot ignore
Sunpreme’s acknowledgments that the substrates serve a primary role in absorbing sunlight and,
therefore, are active components). Sunpreme admits that the crystalline wafer in its cells absorb
sunlight. Sunpreme Br. 22.
(footnote continued)
Court No. 16-00171 Page 23
Commerce determined that the function of the crystalline silicon substrate in the cells
making up Sunpreme’s modules is similar to that of the crystalline silicon substrate in the
Triex cells in that the substrate in Sunpreme’s cells is involved in the absorption of sunlight
for conversion to electricity. Final Scope Ruling at 14. Commerce’s interpretation of the
ambiguous term CSPV cell therefore relies on the language in the Orders, and (k)(1)
sources, the petition and the Triex Scope Ruling. Therefore Commerce’s interpretation is
in accordance with law.
Furthermore, Sunpreme points to no evidence either detracting from Commerce’s
findings regarding the function of the crystalline silicon substrate in its cells or
distinguishing that function from the function of the crystalline silicon component in the
Defendant explains that Commerce understands the term “doped” to be broad enough to
encompass the meaning used by Sunpreme (i.e., either negatively or positively charged) and to
mean the component is “processed or active in electricity generation,” which Commerce
incorporated from the Triex Scope Ruling, see Triex Scope Ruling at 16, 30, 33). Oral Arg. at
01:14:50–01:15:15, June 15, 2017, ECF No. 103 (“Oral Arg.”). Defendant further argues that
these definitions are not contradictory despite the fact that Commerce’s use of the term is broader
than the definition cited by Sunpreme. Id. at 01:16:03–01:16:15. The court agrees that these
definitions of the term “doped” are not logically inconsistent.
Moreover, Defendant points out that the term “dope” is not part of the scope language.
See Oral Arg. 01:16:30–01:16:33. Further, Defendant states that Commerce frequently clarifies
the sense in which Commerce uses the term “doped” throughout the Triex Scope Ruling by
parenthetically clarifying the sense of the term “doped” it is using in each portion of its analysis.
Id. at 01:15:15–01:15:28; see also Triex Scope Ruling at 16–17 (referring to “‘dope’ (i.e., either
negatively or positively charge) the silicon”), 30 (clarifying the meaning of “slightly doped” as “(i.e.,
processed) and perform[ing] the critical energy-generating function in the operation of the cell.”),
33 (clarifying that the use of the term “doped” by stating that “a product containing a doped (i.e.,
active) crystalline silicon component does not de facto override the significance of that crystalline
silicon component”); Final Scope Ruling 14 (using the term doped to refer to the “absorption of
sunlight for conversion to electricity” in the sense that Sunpreme’s cells rely upon crystalline
silicon for electricity generation), 17 (stating that Sunpreme’s product contains a doped (i.e.,
active) crystalline silicon wafer).
Court No. 16-00171 Page 24
Triex cells. 13 Commerce’s determination that Sunpreme’s cells meet the definition of a
CSPV cell is therefore supported by substantial evidence.
Sunpreme raises numerous arguments challenging the support in the scope
language and (k)(1) sources for Commerce’s interpretation of the term CSPV cell. All are
unpersuasive. First, Sunpreme argues that the International Trade Commission’s (“ITC”)
description of a CSPV cell requires that the crystalline silicon component of a CSPV cell
be able to function independently as a solar cell because the ITC report describes the
crystalline silicon in a CSPV cell as performing the function of converting sunlight into
electricity. Sunpreme Br. 16–17. Further, Sunpreme claims that nothing in the ITC’s report
indicates that the function of converting sunlight into electricity is shared with any other
components in a CSPV cell. See id. (citing Request for a Scope Ruling on Solar Modules
with Bi-Facial Thin Film Cells at Ex. 9 at 5, AD PD 1–6, bar codes 3417556-01–6 (Nov.
18, 2015); Request for a Scope Ruling on Solar Modules with Bi-Facial Thin Film Cells at
13
Supreme argues that Commerce’s finding that its cells rely upon crystalline silicon to generate
electricity is belied by the fact that the patent on the record uses a substrate of metallurgical-grade
crystalline silicon, which is never used in CSPV cells. Sunpreme Br. 20–21. Sunpreme claims
that the petition and the International Trade Commission’s injury determination states that CSPV
cells use only solar-grade silicon with ultra-high purity over 99.9999%. Id. at 21 (citing Request
for a Scope Ruling on Solar Modules with Bi-Facial Thin Film Cells at Ex. 9 at I-16, AD PD 1–6,
bar codes 3417556-01–6 (Nov. 18, 2015); Request for a Scope Ruling on Solar Modules with Bi-
Facial Thin Film Cells at Ex. 9 at I-16, CVD PD 1–6, bar codes 3417582-01–06 (Nov. 16, 2015)
(collectively “ITC Injury Determination”)). Sunpreme claims that the fact that its design can function
with metallurgical-grade crystalline silicon instead of solar-grade crystalline silicon undermines
Commerce’s conclusion that its cells rely on the crystalline silicon to generate electricity.
Sunpreme Br. 21; see also Oral Arg. 00:47:21–00:47:59, June 15, 2017, ECF No. 103.
Commerce’s determination acknowledges that there is conflicting evidence on the record
regarding the role of the wafer in Sunpreme’s cells, but Commerce ultimately credits Sunpreme’s
own statements about the role of the silicon substrate in its cells (i.e., the primary solar absorber)
over other conflicting evidence. Final Scope Ruling at 14. Sunpreme’s argument asks the court
to reweigh the evidence as to what extent Sunpreme’s cells rely on crystalline silicon to generate
electricity. The court declines to do so.
Court No. 16-00171 Page 25
Ex. 9 at 5, CVD PD 1–6, bar codes 3417582-01–06 (Nov. 16, 2015) (collectively “ITC Injury
Determination”) (stating that “CSPV cells use either monocrystalline silicon or
multicrystalline silicon to convert sunlight into electricity”)). However, the language of the
Orders controls the scope. See Duferco, 296 F.3d at 1089. Sunpreme points to no
language in the Orders indicating that the crystalline silicon component of a CSPV cell
must be able to function independently as a solar cell before being incorporated into a
photovoltaic product or that the crystalline silicon must be capable of converting sunlight
into electricity on its own. Moreover, the notion that the ITC description does not reference
that the function may be shared between the crystalline silicon component of a CSPV cell
and some other component does not indicate that the ITC meant to exclude products
where the electricity generating function is shared between the crystalline silicon
component and other parts of the cell. See ITC Injury Determination at 5. Therefore,
Commerce reasonably relied upon the petition and the Triex Scope Ruling, both (k)(1)
sources, to interpret the term CSPV cell to include a product containing crystalline silicon
that is an active component in electricity generation even where that function may be
shared with other parts of the cell. See Final Scope Ruling at 13–14.
Sunpreme also argues that Commerce’s definition of a CSPV cell as a photovoltaic
cell that relies upon crystalline silicon to generate electricity is contrary to law because
Commerce’s definition is inconsistent with other (k)(1) sources, including the petition and
the investigations of Commerce and the ITC injury determination. 14 Sunpreme Br. 10.
14
Sunpreme specifically claims that the petition and the Commerce and ITC investigations define
CSPV cells by the presence of a p/n junction and not by the cells’ reliance upon crystalline silicon.
See id. 10–13.
Court No. 16-00171 Page 26
Sunpreme contends that Commerce’s definition allows cells containing only a crystalline
silicon wafer without a p/n junction to be considered CSPV cells without support in the
plain language of the orders or in the relevant (k)(1) sources. See id. Sunpreme’s
narrower understanding of a CSPV cell requires a specific type of p/n junction that is
formed within the CSPV cell. See id. at 12–14. However, as discussed more fully below,
the term p/n junction is not defined in the Orders. Commerce’s definition of a CSPV cell
does require the presence of a p/n junction, albeit not of the specific structure advocated
by Sunpreme. See Final Scope Ruling at 15–16. Commerce relied upon the plain
language of the Orders, which references “a p/n junction formed by any means” and the
Triex Scope Ruling, a (k)(1) source, to conclude that a p/n junction formed by any means
includes architectures in which the positively charged and negatively charged layers are
in close proximity. See Final Scope Ruling at 15; see also Triex Scope Ruling at 17–18
(reasoning that the purpose of the crystalline silicon wafer serves the same purpose in
both a traditional CSPV cell and the Triex cell: electricity generation between positively
and negatively doped regions of the cell). Therefore, Commerce’s definition of a CSPV is
consistent with the plain language of the orders as well as the (k)(1) sources, which require
subject merchandise to contain “a p/n junction formed by any means.”
Next, Sunpreme argues that Commerce’s definition of a CSPV cell, which requires
only that a CSPV cell rely upon crystalline silicon to generate electricity, is inconsistent
with the ITC’s definition of the term “CSPV cell.” Id. at 12 (citing ITC Injury Determination
at 5 (stating that “CSPV cells use either monocrystalline silicon or multicrystalline silicon
to convert sunlight into electricity”)). Sunpreme specifically argues that “the precise
Court No. 16-00171 Page 27
wording of the ITC’s description undermines Commerce’s definition . . . [a]s ‘rely’ is a vague
term . . . [which permits] a layer of crystalline silicon [to] do less than ‘convert sunlight into
electricity’ but still meet the definition of a CSPV cell.” Id. The language indicating that
CSPVs “use crystalline silicon” may be vague, but it is not inconsistent with Commerce’s
interpretation of the function of crystalline silicon in a CSPV cell. Nothing in the ITC’s
description cited by Sunpreme requires the crystalline silicon to perform the role of
converting sunlight into electricity without the aid of other cell components. See ITC Injury
Determination at 5.
Sunpreme claims that Commerce’s definition of a CSPV cell is not based upon an
interpretation of ambiguous language in the Orders, but rather is based upon statements
made in the Triex proceeding that do not apply to Sunpreme’s product. Sunpreme 18–19.
However, Commerce relies upon its interpretation of the ambiguous term CSPV cell from
the Triex Scope Ruling because it determined that the function of the crystalline silicon
component in the Triex cells and the cells making up Sunpreme’s modules is similar. See
Final Scope Ruling at 14 (citing Triex Scope Ruling at 30). Commerce based its
conclusion that the crystalline silicon substrate in the Sunpreme cells is involved in
electricity generation on Sunpreme’s own statement that the crystalline silicon substrate
in the cells making up its modules contains doped crystalline silicon substrates that
enhance the function of the amorphous silicon layers and act as the primary solar
absorbers. See id. Sunpreme fails to point to evidence on the record undermining
Commerce’s conclusion that the crystalline silicon substrate in its cells is involved in
electricity generation. Therefore, Commerce’s reasonably adopted the interpretation of
Court No. 16-00171 Page 28
the ambiguous term CSPV cell from the Triex ruling and determined that unrefuted record
evidence supports the notion that Sunpreme’s cells meet that definition.
Sunpreme also insists that Commerce’s failure to consider the factors under 19
C.F.R. § 351.225(k)(2) without addressing the unique factual records developed for each
product renders Commerce’s determination unsupported by substantial evidence.
Sunpreme Br. 31–32. However, Commerce’s regulations provide that it will analyze the
criteria in 19 C.F.R. § 351.225(k)(2) only where the (k)(1) criteria are not dispositive. See
19 C.F.R. § 351.225(k)(2). To be dispositive, the (k)(1) criteria must definitively answer
the scope question. Sango Int’l, L.P. v. United States, 484 F.3d 1371, 1379 (Fed. Cir.
2007) (citations omitted). Here, Commerce reasonably concluded that the language of
the petition and the interpretations of the scope language in the Triex Scope Ruling
sufficiently clarify the general definition of a CSPV cell to allow Commerce to reasonably
conclude that Sunpreme’s merchandise meets that definition. See Final Scope Ruling at
13–14. Commerce’s interpretation of a CSPV cell in the Triex Scope Ruling relied upon
the general functionality of the crystalline silicon component in the Triex cell, and
Sunpreme points to no record evidence undermining that the crystalline silicon component
of its cells performs a similar function in the generation of electricity. Therefore,
Commerce’s determination that Sunpreme’s products meets the definition of a CSPV cell,
as clarified by the (k)(1) sources, is supported by substantial evidence.
C. Sunpreme’s Cells Are At Least 20 ȝm Thick
Sunpreme argues that Commerce’s determination that Sunpreme’s cells are at
least 20 ȝm thick is unsupported by substantial evidence because the crystalline silicon
substrate component of Sunpreme’s cell should be excluded from the measurement of
Court No. 16-00171 Page 29
the product’s thickness. Sunpreme Br. 23. Instead, Sunpreme contends that Commerce
should be measuring the amorphous silicon layers, which it argues are far thinner than
20 ȝm, deposited onto the crystalline silicon substrate. See id. at 23–24. Defendant
responds that Commerce properly included the crystalline silicon component in its
measurement of Sunpreme’s cells because Commerce reasonably determined that the
scope language calls upon it to measure the thickness of the active components of the
cell. Def.’s Resp. Br. 26. For the reasons that follow, Commerce’s determination that
Sunpreme’s cells meet the 20 ȝm thickness threshold is supported by substantial
evidence.
The plain language of the Orders does not explicitly state what portion of a CSPV
cell must exceed the thickness threshold provided in the scope language. Rather, the
Orders provide that the CSPV cell must be at least 20 ȝm thick. CVD Order, 77 Fed.
Reg. 73,017, ADD Order, 77 Fed. Reg. 73,018. Commerce concluded that the crystalline
silicon component must be included in measuring the thickness of a CSPV cell because
the crystalline silicon component plays an essential role in electricity generation. See
Final Scope Ruling at 14. It is reasonably discernible that Commerce concluded that the
scope language calling upon it to consider the thickness of a CSPV cell includes all
functional components of the cell that play a role in generating electricity from solar
energy. See id. That interpretation is reasonable, given the plain language of the Orders.
Sunpreme contends that Commerce should have excluded the crystalline silicon
substrate component when measuring the thickness of Sunpreme’s cells. See Sunpreme
Br. 24. Sunpreme relies upon the argument that the crystalline silicon substrate is not
Court No. 16-00171 Page 30
part of the active part of the cell. 15 See id. Commerce supported its determination that
the crystalline silicon substrate in Sunpreme’s cells is an active and essential component
in generating electricity by noting that the substrate is the primary solar absorber. Final
Scope Ruling 14. Sunpreme admits that the substrate is the primary solar absorber.
Sunpreme Br. 22, 25. Commerce also rejected Sunpreme’s argument that the crystalline
silicon component is not part of the electricity-generating component of the cell. See Final
Scope Ruling at 16. Commerce concluded that the idea that an electricity-generating
junction could be created, either between a positively charged and an intrinsic (i.e.,
neutral charged) layer or between a negatively charged and an intrinsic layer, is illogical
because “both a positive ‘p’ layer and a negative ‘n’ layer are required in order to generate
an electrical field.” Id. Sunpreme points to no record evidence undermining Commerce’s
conclusion that “the [crystalline silicon] wafer is a necessary connection between the
positive and negative regions of Sunpreme’s cells.” 16 Id. Therefore, Sunpreme’s
contention that the crystalline silicon substrate is not part of the active part of the cell fails.
D. Sunpreme’s Cells Contain a “P/N Junction Formed By Any Means”
Sunpreme argues that Commerce unreasonably interpreted the term “p/n junction
formed by any means” to include the p/i/n junction in Sunpreme’s cells. Sunpreme Br.
24–32. Defendant responds that substantial evidence supports Commerce’s
determination that the scope language “p/n junction formed by any means” includes a
15
Sunpreme claims that the p/i/n junction in its cells is formed in the thin film layers of doped and
undoped amorphous silicon, which are the active component of its cells. See Sunpreme Br. 24.
16
In fact, Sunpreme concedes that a junction between positively charged and negatively charged
components of the cell “is essential to the creation of an electrical field.” See Sunpreme Br. 25.
Court No. 16-00171 Page 31
p/i/n junction and other arrangements of positive, negative, and intrinsic/neutral layers
within a photovoltaic cell like those contained in Sunpreme’s cells. Def.’s Resp. Br. 21–
25. For the reasons that follow, Commerce’s determination that Sunpreme’s cells contain
a “p/n junction formed by any means” is supported by substantial evidence.
The Orders do not define the phrase “p/n junction formed by any means.”
Commerce interpreted the phrase “p/n junction formed by any means” to include
structures in which the positively charged and negatively charged layers are not adjacent
or within the crystalline silicon wafer. Final Scope Ruling at 15. That interpretation is
reasonable and consistent with the scope language and the (k)(1) sources because it
gives significance to the entire phrase “formed by any means,” while referencing pre-
initiation versions of scope language proposed by the petitioner that indicate alternative
architectures were meant to be included in the scope of the Orders. 17 See Final Scope
Ruling at 15.
Specifically, Commerce referenced its determination in the Triex Scope Ruling that
a “p/i/n junction and other arrangements of positive, negative, and intrinsic/neutral layers
within a photovoltaic cell can be understood to be types of p/n junctions within the
meaning of the scope of the Orders.” Final Scope Ruling at 15 (citing Triex Scope Ruling
at 18). In the Triex Scope Ruling, Commerce attached great significance to the phrase
“formed by any means,” which Commerce concluded indicates that the specific
17
Specifically, Commerce underscores that pre-initiation versions of scope language submitted
by petitioner included a more exhaustive description of possible means of forming a p/n junctions,
including heterojunctions and p/n junctions formed by means other than diffusion. Final Scope
Ruling at 16. Commerce notes that such descriptions were omitted from the final scope language
because Commerce believed such itemization was unnecessary. Id.Court No. 16-00171 Page 32
architecture of p/n junction formation is irrelevant to determining the meaning of the
phrase “p/n junction.” See Triex Scope Ruling at 17. To reach this conclusion, Commerce
first analyzed the structural distinctions between a p/n junction and the p/i/n junction
contained in the Triex cells. See id. Commerce noted that some type of junction between
a positively charged and negatively charged region of a cell is essential to the creation of
an electrical field, and Commerce concluded that the intrinsic (i.e., inert) layer simply
connects the positively charged layers with the negatively charged layers and extends
the electrical field over an additional layer of material. Id. at 18. Second, Commerce
analyzed the function or purpose of a junction where the positively charged and negatively
charged layers are not in direct contact. See id. Commerce concluded that the function
of a junction where the p-layer and n-layer is in direct contact is the same as a junction
where those layers are separated by an intrinsic layer because the intrinsic layer simply
extends the electric field over the crystalline silicon wafer region. 18 See id.18
Sunpreme contends that the fact that p/n and p/i/n junctions are recognized in the scientific
community as distinct photovoltaic structures belies Commerce’s interpretation that a p/i/n
junction can be understood as a type of p/n junction for purposes of the Orders. See Sunpreme
Br. 26–27. Sunpreme cites the glossary attached the petition in which the Department of Energy
defines the two types of junctions separately as additional evidence that a p/n junction involves a
structure in which the p and n layers must be adjacent. See id. at 27 (citing Sunpreme Br. Ex. 1
at Ex. Gen-Supp 4).
However, Commerce explicitly acknowledged that presence on the record of materials
published by other government agencies such as the Department of Energy. See Final Scope
Ruling at 16. In response to these sources, Commerce indicated that its determination is based
on a textual interpretation of the scope language and the relevant (k)(1) sources rather than the
assertions of experts that were not involved in drafting the scope language. Id. Although the
definition of p/n junction cited by Sunpreme references a p-type layer and an n-type layer, see
Sunpreme Br. 27, the definition cited by Sunpreme does not define a p/n junction to the exclusion
of a structure in which those layers are separated by an intrinsic layer. See Sunpreme Br. Ex. 1
at Ex. Gen-Supp 4 (defining a “p/n” junction as “a semiconductor photovoltaic device structure in
(footnote continued)
Court No. 16-00171 Page 33
Sunpreme argues that Commerce’s interpretation is contrary to law because the
phrase “formed by any means” refers to structures where the positive and negative layers
within the cell are adjacent but are formed by different methods, not to junctions of any
type or located anywhere in the cell. Sunpreme Br. 26. However, it is reasonably
discernible that Commerce discounted an interpretation of the phrase “formed by any
means” that limits the phrase to apply to a structure in which the positive and negative
layers are formed within the cell because Commerce found that pre-initiation versions of
scope language indicate that petitioner intended to include structures where the p/n
junction is formed outside of the cell. 19 Final Scope Ruling at 15 (citing Triex Scope Ruling
at 13, 31). Moreover, Commerce notes that the scope language describes the junction
without reference to any specific method of junction formation because Commerce did
not believe itemization was necessary. See id.; see also Triex Scope Ruling at 17 (stating
that the Orders describe covered merchandise without reference to the method of junction
formation (i.e., either diffusion or deposition), which Commerce concluded undercuts the
which the junction is formed between the p-type layer and an n-type layer.”). Moreover, the fact
that a p/i/n junction structure is described separately as a structure in which layers of an intrinsic
semiconductor between the p-type and n-type semiconductors, see Sunpreme Br. Ex. 1 at Ex.
Gen-Supp 4, does not necessarily indicate that a p/i/n junction is not a type of p/n junction for
purposes of the Order. Therefore, the record documents cited by Sunpreme do not render
Commerce’s interpretation unreasonable.
19
Specifically, Commerce states that it found the pre-initiation versions of the scope language
indicate that SolarWorld intended to include heterojunctions and p/n junctions formed by means
other than diffusion. Final Scope Ruling at 15. It is reasonably discernible that Commerce viewed
heterojunctions and p/n junctions formed by means other than diffusion as including structures
where the p/n junction is formed outside of the crystalline silicon component cell. See Triex Scope
Ruling at 17.
Court No. 16-00171 Page 34
argument that the orders require a p/n junction to be formed within a CSPV cell). 20 It is
also reasonably discernible that Commerce ruled out the notion that the phrase “formed
by any means” limits a CSPV cell to only a structure in which the positive and negative
layers are adjacent because Commerce concluded in the Triex Scope Ruling that the
presence or absence of layers between the positively charged and negatively charged
layers does not change the function or purpose of the junction to generate an electrical
field, but rather simply extend that electrical field over a wider region of the cell. See Triex
Scope Ruling at 18. Even if Sunpreme’s alternative reading that the phrase “p/n junction
formed by any means” implies that the positively charged and negatively charged layers
are adjacent, is reasonable, Commerce has explained why its broader interpretation of
the phrase “p/n junction formed by any means” is reasonable and supported by the scope
language and the (k)(1) sources.
Sunpreme next argues that Commerce’s determination that Sunpreme’s products
meet the definition of “p/n junction formed by any means” provided in the Triex Scope
Ruling is not supported by substantial evidence because Sunpreme’s cells are physically
20
Sunpreme argues that Commerce unreasonably concluded that reducing the list of many forms
of junctions in early drafts of proposed scope language to a single junction in the final scope
language did not narrow the scope language. Sunpreme Br. 30. But Commerce reasonably
explained its logic that the removal of the reference to various types of junctions in the scope
language sought to avoid limiting potential products. See Triex Scope Ruling at 18. Further,
Commerce found the absence of language explicitly including a p/i/n junction not dispositive
because the scope language does not define a p/n junction by excluding certain structures. See
Triex Scope Ruling at 18. Where scope is defined by excluding items that are explicitly defined,
it is reasonable to assume that removing such exclusions would broaden the scope. On the other
hand, where, as here, Commerce supported its explanation for why it reads the term p/n junction
broadly and the scope language enumerates no specific architectures, it is reasonable for
Commerce to conclude that the removal of specific descriptions of structures was not meant to
narrow the scope.
Court No. 16-00171 Page 35
distinguishable from the Triex products. Sunpreme Br. 30. Specifically, Sunpreme cites
the lack of the silicon dioxide insulator between the crystalline silicon wafer and the
intrinsic and p-type and n-type amorphous thin film layers in its cells, which Sunpreme
notes distinguish its cells from the Triex cells. Sunpreme Br. 31. However, Commerce
explained that the presence or absence of silicon dioxide insulating layers is irrelevant to
its analysis regarding p/n junction formation in the Triex cell because “the function or
nature of a p/n junction in a CSPV [cell] is unchanged by the addition of a layer of [silicon
dioxide] or other insulating material.” 21 Final Scope Ruling at 15 (citing Triex Scope
Ruling at 32, 39 (internal quotations omitted)). Commerce justified its determination that
a p/i/n junction is a type of p/n junction in the Triex Scope Ruling by drawing attention to
the inclusion of different types of junction architectures in early drafts of scope language
included in the petitions. Triex Scope Ruling at 31. Commerce further justified its
determination by noting the absence of record evidence indicating that certain types of
junctions characterized by a positive region and a negative region generating an electrical
field were meant to be excluded. Triex Scope Ruling at 31–32. Sunpreme points to no
record evidence undermining the notion that the junctions in its cells have a materially
similar function to the junctions in the Triex cells. 22
21
The absence of a layer of silicon dioxide in Sunpreme’s cells does not affect the applicability of
Commerce’s logic from the Triex Scope Ruling. Commerce grounded its determination that a p/n
junction is a broad term meant to capture multiple structures that are all, by nature, characterized
by a positive region and a negative region generating an electrical field in the function of the p/n
junction, not in the actual composition of the p/n junction. See Triex Scope Ruling at 32.
22
Sunpreme argues that the record illustrates that its cells contain a p/i/n junction that is
chemically and functionally different from the junction in the Triex cells. Sunpreme Br. 30–31.
(footnote continued)
Court No. 16-00171 Page 36
E. Sunpreme’s Cells are Not Excluded Thin-Film Photovoltaic Products
Sunpreme argues that Commerce’s interpretation of the language excluding “thin
film photovoltaic products produced from amorphous silicon” is unreasonably narrow and
unsupported by the petition or the (k)(1) sources. Sunpreme Br. 32–40. Defendant
responds that Commerce reasonably determined that the petition and the Triex Scope
Ruling, both (k)(1) sources, indicate that cells containing a crystalline silicon component
that contributes to their photovoltaic function are not thin film photovoltaic products as
that term is defined in the Orders even if such products contain thin films produced from
amorphous silicon. Def.’s Resp. Br. 28–29. For the reasons that follow, Commerce’s
definition of thin film products is in accordance with law.
The Orders do not define the term “thin film photovoltaic products produced from
amorphous silicon.” The scope language is silent as to the substrate of excluded thin film
products. See CVD Order, 77 Fed. Reg. 73,017, ADD Order, 77 Fed. Reg. 73,018. The
However, the specific differences that Sunpreme highlights are not functional differences, but
rather structural differences. Specifically, Sunpreme argues that the positively charged layers
and negatively charged layers are not adjacent and that the junction is formed inside the
amorphous silicon thin film layers, not in the silicon substrate. Id. at 31. As already discussed,
Commerce reasonably concluded that the term “p/n junction formed by any means” includes
structures where these layers are not adjacent. See Final Scope Ruling at 15–16. As to the
notion that two separate junctions are formed in the thin film layers, not the substrate, Commerce
discounted this claim because Commerce found that it is illogical to reason that an electricity
generating junction could be formed between a negatively charged layer and an uncharged layer
or between a positively charged layer and an uncharged layer because both a positive and
negative layer are necessary to generate an electrical field. See id. at 16. Sunpreme
acknowledges that each amorphous silicon p-layer and n-layer in its bifacial cells is immediately
adjacent to a layer of undoped intrinsic amorphous silicon thin film, see Sunpreme Br. 31, which
is sandwiched between a naturally slightly doped silicon substrate. Id. at 22. Sunpreme does not
question Commerce’s understanding that a positive and negative layer are necessary to generate
an electrical field within the cell. Moreover, Commerce determined that Sunpreme’s claim is
directly contradicted by Sunpreme’s earlier description of its products as containing a p/i/n junction
similar to the junction contained in the Triex cells. Id. at 16.
Court No. 16-00171 Page 37
term “thin film photovoltaic products” is not unambiguously equivalent to any photovoltaic
product with a thin film. Therefore, Commerce reasonably consulted the (k)(1) sources
to define the term “thin film photovoltaic products.” Commerce cited the petition, a (k)(1)
source, which explicitly states that “thin film photovoltaic products” do not use crystalline
silicon to conclude that a product that uses crystalline silicon to generate electricity, 23
such as the Sunpreme cell, is not a thin film photovoltaic product. Final Scope Ruling at
17 (citing Request for a Scope Ruling on Solar Modules with Bi-Facial Thin Film Cells at
Ex. 6 at 16–17, AD PD 1–6, bar codes 3417556-01–6 (Nov. 18, 2015); Request for a
Scope Ruling on Solar Modules with Bi-Facial Thin Film Cells at Ex. 6 at 16–17, CVD PD
1–6, bar codes 3417582-01–06 (Nov. 16, 2015) (collectively “Petitions”)). Citing the Triex
Scope Ruling, another (k)(1) source, Commerce determined that including all products
containing amorphous silicon in the thin film exclusion would create an easy means of
circumventing the Orders. Id. (citing Triex Scope Ruling at 33). That interpretation is
23
Sunpreme argues that Commerce’s interpretation that a thin film product cannot contain any
crystalline silicon conflicts with statements by the ITC describing certain thin film products as using
a combination of amorphous silicon and micro-crystalline silicon. Sunpreme Br. 34 (citing ITC
Final Determination at I-20). However, Commerce’s definition of thin film photovoltaic products
assessed the presence of a thin film in relation to other substrates of the product. See Final
Scope Ruling at 17. Commerce did not base its determination that Sunpreme’s modules are not
thin film photovoltaic products solely upon the presence of crystalline silicon, but rather upon the
role the crystalline silicon wafer played in converting solar energy into electricity. See id.Commerce references the fact that the statement in the petitions to the effect that thin film
products do not use crystalline silicon to explain its determination that “the presence of an
amorphous silicon thin film element in a product containing a doped (i.e., active) crystalline silicon
wafer . . . does not de facto override the significance of the crystalline silicon component.” Id.The plain language of the Orders is silent with regard to what substrates may be used in thin film
photovoltaic products. See CVD Order, 77 Fed. Reg. 73,017, ADD Order, 77 Fed. Reg. 73,018.
Commerce reasonably looked to the Triex Scope Ruling and the petitions to determine whether
function of the crystalline silicon substrate in Sunpreme’s products matched the function of
crystalline silicon within a CSPV cell.
Court No. 16-00171 Page 38
reasonable because it gives meaning to all of the language of the Orders and is based
on the (k)(1) sources, which state that the thin film photovoltaic products exclusion does
not apply to products in which a crystalline silicon component contributes to their ability
to convert sunlight into electricity. 24
Commerce adequately addressed Sunpreme’s arguments regarding the meaning
of the thin film exclusion. Commerce rejected Sunpreme’s arguments that the scope
language and the (k)(1) sources, including the petition and the ITC investigation broadly
exclude products that contain thin films of amorphous silicon. See Final Scope Ruling at
17 (concluding that the mere presence of thin films of amorphous silicon is insufficient to
place a product within the thin film photovoltaic product exclusion); see also Sunpreme
Br. 33–38. Specifically, Sunpreme points to the petition’s explicit statement that “[t]hin
film technologies are not covered by the Petitions.” Sunpreme Br. 33 (citing Request for
a Scope Ruling on Solar Modules with Bi-Facial Thin Film Cells at Ex. 6 at 16–17, AD PD
1–6, bar codes 3417556-01–6 (Nov. 18, 2015); Request for a Scope Ruling on Solar
Modules with Bi-Facial Thin Film Cells at Ex. 6 at 16–17, CVD PD 1–6, bar codes
3417582-01–06 (Nov. 16, 2015) at 16–17 (collectively “Petition”)). Likewise, Commerce
24
In the Triex Scope Ruling, Commerce noted that nothing in the scope language explicitly
addresses what substrates may be included in thin film photovoltaic products. Triex Scope Ruling
at 33. Commerce cites the ITC’s investigation, which it found “provides an illustrative list of
substrates that were contemplated in [the agency’s] discussion of thin film products: ‘glass,
stainless steel, [and] plastic.’” Id. at 34. Commerce also notes that the petitions state that thin
film products do not use crystalline silicon. Id. However, Commerce did not define thin film
photovoltaic products merely by excluding any products containing a crystalline silicon substrate.
See id. Rather, Commerce read the petition’s suggestion that thin film photovoltaic products
should not contain crystalline silicon together with the function of the crystalline silicon substrate
in the Triex cells to determine that the Orders meant to exclude products containing crystalline
silicon that is active and essential to the generation of electricity. See id.Court No. 16-00171 Page 39
considered and rejected Sunpreme’s arguments that the petition’s use of the term “thin
film technologies” indicates petitioners intended that the definition of thin film photovoltaic
products in the scope language should be expansive. See id. Sunpreme points to no
definition of the term “technologies” in the petition, and the term “thin film photovoltaic
products” is not defined in the scope language of the Orders. See CVD Order, 77 Fed.
Reg. 73,017, ADD Order, 77 Fed. Reg. 73,018. Commerce reasonably concluded, based
upon an interpretation of the term thin film photovoltaic products derived from the petition,
that the mere presence of thin films of amorphous silicon is insufficient to place a product
within the exclusion because the petitions explicitly indicate that thin film products do not
use crystalline silicon. 25 Final Scope Ruling at 17.
Finally, Commerce did not find the International Standard IEC certification of
Sunpreme’s modules as a thin film product dispositive in defining the term “thin film
photovoltaic products.” See Final Scope Ruling at 17 (acknowledging that the IEC
certifications are cited in the petition but concluding they are not dispositive as to whether
25 At oral argument, Sunpreme emphasized that the Orders contain an exclusion for “thin film
photovoltaic products,” which is a broader term than thin film cells. Oral Arg. 00:05:48–00:05;59,
ECF No. 103 (“Oral Arg.”). Sunpreme further underscored that its imported merchandise consists
of bifacial solar modules, not photovoltaic cells. Id. at 00:06:00–00:06:12; see also Reply Br. Pl.
Sunpreme, Inc. 6–10, Mar. 29, 2017, ECF No. 97. Sunpreme argues that it is unreasonable for
Commerce to rely upon its determination in the Triex Scope Ruling interpreting thin film
photovoltaic products on the basis of the characteristics of the Triex cells and apply that
interpretation to Sunpreme’s modules. Reply Br. Pl. Sunpreme, Inc. 7, Mar. 29, 2017, ECF No.
97. However, Commerce’s analysis in interpreting the term thin film photovoltaic products relies
upon the function of crystalline silicon within the photovoltaic cells that compose the modules.
Final Scope Ruling at 17. Sunpreme points to no scope language or (k)(1) source indicating that
it is unreasonable to conclude that a module consisting of cells in which crystalline silicon
contributes to the electricity generating function would not be considered a thin film photovoltaic
product where the cells making up that module would. Therefore, Commerce reasonably applied
its interpretation of thin film photovoltaic products from the Triex Scope Ruling to determine
whether Sunpreme’s solar modules fall within the thin film photovoltaic products exclusion.
Court No. 16-00171 Page 40
a product is a thin film photovoltaic product); see also Sunpreme Br. 35. Specifically,
Sunpreme underscores that the petition clearly referenced industry standard (IEC 61646)
in relation to the category of thin film products, and Sunpreme contends the petition
evidences a desire to exclude all products meeting this industry standard from the scope
of the Orders. Sunpreme Br. 35. However, the scope language itself does not reference
any industry standard in defining thin film photovoltaic products. See CVD Order, 77 Fed.
Reg. 73,017, ADD Order, 77 Fed. Reg. 73,018. Commerce specifically acknowledges
that the IEC certifications are cited in the petition, a (k)(1) source, but Commerce
concluded that they are not relied upon as dispositive authorities because these
certifications were not relied upon in the initial investigations to define thin film
photovoltaic products and the standards are not referenced in the scope language itself. 26
Final Scope Ruling at 17 (citing Triex Scope Ruling at 31). Sunpreme points to no
language in the petitions or any (k)(1) source that makes it unreasonable for Commerce
to conclude that the certifications are non-dispositive. 27
26
In the Triex Scope Ruling, Commerce notes that the Triex cells have characteristics typically
associated with CSPV products and thin film photovoltaic products. Triex Scope Ruling at 31.
Sunpreme does not argue that its products do not possess characteristics typically associated
with both CSPV cells and thin film cells. Commerce further supports its determination that the
certifications are not dispositive by referencing that the Orders do not explicitly exclude “hybrid”
cells that contain amorphous silicon thin film but are otherwise subject to the Orders. Id.27
Although Commerce stated that Sunpreme’s products are certified as both CSPV products and
thin film products, Commerce cites its determination in the Triex Scope Ruling that certifications
are non-dispositive in regard to whether or not an imported project is subject to the scope of the
Orders. Final Scope Ruling 17. In the Triex Scope Ruling, Commerce points out that the scope
language does not explicitly exclude “hybrid” products, or products that meet both classifications.
Triex Scope Ruling at 31. Therefore, Commerce concluded, based on the plain language of the
Orders that the certifications received by a product are not dispositive as to whether a product is
a thin film photovoltaic product. Id.(footnote continued)
Court No. 16-00171 Page 41
Sunpreme points out that its products are only certified according the IEC standard
for thin film products. Sunpreme Br. 35–36. Commerce’s reasoning that those
certifications are non-dispositive is supported by the plain language of the Orders as well
as the (k)(1) sources is not undermined by the fact that Sunpreme’s products received
Sunpreme first argues that Commerce’s finding that Sunpreme’s products are certified as
CSPV modules is incorrect and unsupported by the record. Sunpreme Br. 35–36. Commerce
does find that evidence on the record “suggests that Sunpreme’s bifacial solar products are also
certified as CSPV products by the IEC.” Final Scope Ruling at 16. Commerce also states that
Sunpreme has not refuted that certifications applicable to CSPV products are not applicable to
the specific product that is the subject of this scope proceeding. Id. It is unclear whether
Commerce bases its findings on the weighing of the conflicting evidence. However, this finding
is not material to Commerce’s interpretation of the term “thin film photovoltaic products” or to
Commerce’s determination that Sunpreme’s products are not covered by the exclusionary
language in the Orders because Commerce determined that IEC certifications are merely
informative, but not dispositive as to whether or not products are CSPV products or thin film
photovoltaic products for purposes of the scope of the Orders. Final Scope Ruling at 17.
Second, Sunpreme cites testimony by petitioner before the ITC that hybrid cells containing
crystalline silicon and amorphous silicon are not meant to be covered by the petitions as detracting
from Commerce’s determination that a thin film photovoltaic product does not use crystalline
silicon. See Sunpreme Br. 38–39 (citing Sunpreme Scope Ruling Request at Ex. 13). However,
Commerce excluded products containing crystalline silicon that is active in the cell’s generation of
electricity, not based merely on the presence of crystalline silicon within the cell. Id. The statement
relied upon by Sunpreme says nothing about the function of the crystalline silicon in the hybrid cell
discussed in testimony before the ITC.
Third, Sunpreme references this same testimony to claim that it is unreasonable to read
the scope language as applying to cells containing both crystalline silicon and amorphous silicon
because it demonstrates that the ITC made no material injury finding with regard to such “hybrid”
products. See id. at 40. Although Commerce acknowledged that the testimony may indicate that
the ITC may not have made an injury determination with respect to products containing both
amorphous silicon and crystalline silicon, Commerce determined that the ITC’s investigation
provides little guidance as to the proper interpretation of the thin film exclusion because the record
before the ITC does not reflect the full universe of processes used to produce either thin film cells
or CSPV cells.. See id. at 13. Commerce’s conclusion as to the relative insignificance of the ITC’s
findings is reasonable, and the court declines to reweigh the evidence.
Court No. 16-00171 Page 42
only thin film certification. 28 Therefore, Commerce’s determination is not undermined by
the fact that its products only received thin film certification.
II. Commerce’s Liquidation Instructions Were Contrary to Law
Sunpreme objects that Commerce’s instructions to CBP to continue suspension of
liquidation and to collect cash deposits with respect to entries prior to the initiation of the
instant scope inquiry were contrary to law. Sunpreme Br. 41. Defendant responds that
Commerce’s instructions are in accordance with law because Commerce’s regulations
28
Sunpreme argues that Commerce’s interpretation that the certification is non-dispositive is
contradicted by a statement in the petition to the effect that:
Notably, International Standard IEC 61215 applies only to crystalline silicon
products; a separate standard –IEC 61646–applies to thin-film products, further
demonstrating the distinctions between these two products.
Reply Br. Pl. Sunpreme, Inc. 19–20, Mar. 29, 2017, ECF No. 97 (“Sunpreme Reply Br.”) (citing
Sunpreme Inc.’s Submission of Factual Information at Ex. 1, Attach 1, AD PD 32–48, bar codes
3481963-01–05 and 3481978-01–12 (June 27, 2016); Sunpreme Inc.’s Submission of Factual
Information at Ex. 1, Attach 1, CVD PD 38–54, bar codes 3481991-01–17 (June 27, 2016)).
However, whereas the petition states that the CSPV standard applies only to CSPV products, it
does not state that the thin-film product standard applies only to thin film products. See Sunpreme
Inc.’s Submission of Factual Information at Ex. 1, Attach 1, AD PD 32–48, bar codes 3481963-01–
05 and 3481978-01–12 (June 27, 2016); Sunpreme Inc.’s Submission of Factual Information at
Ex. 1, Attach 1, CVD PD 38–54, bar codes 3481991-01–17 (June 27, 2016). Therefore, the petition
language cited by Sunpreme does not render Commerce’s interpretation unreasonable.
Sunpreme further argues that Commerce’s decision to treat the statement in the petition to
the effect that thin film photovoltaic products do not contain crystalline silicon as dispositive of
whether a product falls within the thin film exclusion while treating the petition’s statements about
certifications as merely informative is arbitrary. Sunpreme Reply Br. 20. As already, discussed
Commerce did not treat the presence of crystalline silicon as dispositive of whether a product is a
thin film photovoltaic product, but rather looked to how the crystalline silicon functioned within the
cell to determine if the thin film of amorphous silicon caused the product to fall within the exclusion.
See Final Scope Ruling at 17. Moreover, the petition language pertaining to the certifications
explicitly recognizes the possibility that the IEC 61646 standard could apply to a CSPV product.
See Sunpreme Inc.’s Submission of Factual Information at Ex. 1, Attach 1, AD PD 32–48, bar
codes 3481963-01–05 and 3481978-01–12 (June 27, 2016); Sunpreme Inc.’s Submission of
Factual Information at Ex. 1, Attach 1, CVD PD 38–54, bar codes 3481991-01–17 (June 27, 2016)
(stating that the IEC 61646 applies to thin-film products, but not only to thin-film photovoltaic
products).
Court No. 16-00171 Page 43
permit the suspension of liquidation to continue, regardless of when a scope inquiry was
initiated.” See Def.’s Resp. Br. 36. For the reasons that follow, Commerce’s liquidation
instructions directing CBP to suspend liquidation on entries prior to initiation of the scope
inquiry are contrary to law.
Commerce’s regulations presume suspension of liquidation is lawful. See 19
C.F.R. §§ 351.225(l)(1), (3). Commerce’s regulation cannot reasonably be read to permit
an ultra vires suspension of liquidation to continue. When Commerce conducts a scope
inquiry,
and the product in question is already subject to suspension of liquidation,
that suspension of liquidation will be continued, pending a preliminary or
final scope ruling, at the cash deposit rate that would apply if the product
were ruled to be included within the scope of the order.
19 C.F.R. § 351.225(l)(1). Once Commerce issues a final scope ruling to the effect that
the product is included within the scope of the order,
Any suspension of liquidation under paragraph (l)(1) . . . of this section will
continue. Where there has been no suspension of liquidation, [Commerce]
will instruct [CBP] to suspend liquidation and to require a cash deposit of
estimated duties, at the applicable rate, for each unliquidated entry of the
product entered, or withdrawn from the warehouse, for consumption on or
after the date of initiation of the scope inquiry.
19 C.F.R. § 351.225(l)(3). In AMS Assocs., Inc. v. United States, 737 F.3d 1338 (Fed.
Cir. 2013), the Court of Appeals for the Federal Circuit held that, where an unclear order
renders a product not subject to an existing order and Commerce clarifies ambiguous
scope language to determine that the merchandise is subject to the antidumping order,
“the suspension of liquidation and imposition of antidumping cash deposits may not be
retroactive but can only take effect ‘on or after the date of the initiation of the scope
inquiry.’” AMS Assocs., Inc. v. United States, 737 F.3d 1338, 1344 (Fed. Cir. 2013) (“AMS
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II”) (emphasis in original) (citing identical language in 19 C.F.R. § 351.225(l)(2), as the
language quoted above in 19 C.F.R. § 351.225(l)(3)). Although in AMS II, Commerce
issued corrected liquidation instructions explicitly instructing CBP to suspend liquidation
retroactively, see AMS II, 737 F.3d at 1341, the Court of Appeals’ holding barring
retroactive application of Commerce’s findings did not depend upon Commerce taking
such additional action. See id. at 1344.
Here, CBP could not determine whether Plaintiff’s merchandise was within the
scope of the Orders based solely upon the words of the Orders and the physical
characteristics of the merchandise. Therefore, Plaintiff’s goods were outside of the scope
of the Orders until Commerce interpreted the ambiguous scope language to the effect
that Plaintiff’s products were subject to the Orders because CBP lacks the authority to
interpret ambiguous scope language. See Xerox Corp. v. United States, 289 F.3d 792,
794–95 (Fed. Cir. 2002); see also Final Scope Ruling at 18. Since Sunpreme’s products
were not subject to the Orders at the time Commerce initiated its scope inquiry on
December 30, 2015, see Final Scope Ruling at 2, Commerce’s regulations only permitted
Commerce to suspend liquidation and collect cash deposits prospectively from the date
of initiation of the scope inquiry. 19 C.F.R. § 351.225(l)(3); AMS II, 737 F.3d at 1344.
Defendant points to no authority, other than CBP’s ultra vires determination to
require Plaintiff to enter its merchandise as subject to the Orders, for the collection of
cash deposits and suspension of liquidation on Plaintiff’s entries. Defendant and
Defendant-Intervenor argue that, unlike in AMS II, here Sunpreme’s entries were already
suspended prior to the date Commerce initiated its scope inquiry. Def.’s Resp. Br. 36;
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SolarWorld Americas Inc.’s Resp. Pl.’s Mem. Supp. Rule 56.2 Mot. J. Agency R. 31, Mar.
2, 2017, ECF No. 91 (“SolarWorld Resp. Br.”). Therefore, Defendant and Defendant-
Intervenor interpret 19 C.F.R. §§ 351.225(l)(1) and (3) to permit the suspension of
liquidation to continue and the collection of cash deposits on all entries for which
liquidation was suspended. Def.’s Resp. Br. 36 (citing 19 C.F.R. §§ 351.225(l)(1), (3));
SolarWorld Resp. Br. 31–32. (citing 19 C.F.R. §§ 351.225(l)(1), (3)). However,
Commerce’s regulation cannot reasonably be interpreted to permit the suspension of
liquidation and collection of cash deposits to continue where they resulted from an ultra
vires interpretation of the scope language. Such an interpretation is unreasonable
because it would validate CBP’s ultra vires interpretation and permit the circumvention of
Commerce’s regulations by allowing CBP to require a party to enter goods as subject to
the Orders before Commerce has interpreted ambiguous scope language. Nor can either
portion of Commerce’s regulation reasonably be interpreted to permit Commerce to
require cash deposits prior to the date of initiation of the scope inquiry merely because
CBP suspended liquidation before that date without authority to do so. CBP’s purported
suspension of liquidation was void ab initio. Sunpreme Inc. v. United States, 40 CIT __,
__, 190 F. Supp. 3d 1185, 1204 (2016) (“Sunpreme III”). Commerce could not extend the
suspension of liquidation on entries that were not appropriately administratively
suspended. See id.Defendant worries about the policy implications that may result from interpreting
the statutory and regulatory framework as barring Commerce from ordering the
suspension of liquidation or collection of cash deposits on goods that may be subject to
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the scope of the orders prior to the initiation of a scope inquiry. Def.’s Resp. Br. 39.
Defendant argues that tying the ultimate duty assessment to whether, and the date on
which, Commerce initiates a scope inquiry may shield merchandise entered prior to the
date of initiation from antidumping or countervailing duty liability altogether. Id. Where
merchandise is prima facie covered the words of the order, Commerce may order the
suspension of liquidation and collection of cash deposits even in a case where an importer
claims there is ambiguity in an order. However, where the unambiguous language of an
order and factual determinations alone do not allow CBP to determine that a good falls
within an order, the good must be considered outside of the scope until Commerce
interprets the order and clarifies that the merchandise should be included in the context
of a scope determination. See Xerox, 289 F.3d at 794–95 (stating that Commerce should
decide whether an ambiguous antidumping order covers particular products in the first
instance). In the event Commerce initiates a scope proceeding because the goods were
not prima facie covered by the order, Commerce’s regulations bar it from suspending
liquidation or collecting cash deposits prior to the initiation of a scope inquiry. See 19
C.F.R. §§ 351.225(l)(1), (3). Commerce cannot purport to continue a suspension of
liquidation that was itself without authority. The court must interpret the statutory and
regulatory scheme as is. The court leaves it to Congress and Commerce to address the
policy drawback identified here.
CONCLUSION
The court sustains Commerce’s determination to the effect that Sunpreme’s
merchandise is subject to the Orders. However, Commerce’s issuance of liquidation
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instructions directing CBP to suspend liquidation on entries prior to initiation of the scope
inquiry is contrary to law. As a result, there was no valid suspension of liquidation for
Commerce to continue under 19 C.F.R. §§ 351.225(l)(1) and (3). Therefore, Commerce
lacks authority to suspend liquidation or order the collection of cash deposits on entries
prior to the initiation of the scope inquiry. Any suspension of liquidation must not cover
entries entered prior to December 30, 2015. All cash deposits collected on entries prior
to the initiation of the scope inquiry must be returned to Plaintiff. Judgment will enter
accordingly.
/s/ Claire R. Kelly
Claire R. Kelly, Judge
Dated:August 29, 2017
New York, New York