Appeals from the United States Court of International Trade
in No. 1:16-cv-00171-CRK, Judge Claire R. Kelly.
M. Gurley, Arent Fox, LLP, Washington, DC, for
plaintiff-appellant. Also represented by Diana Dimitriuc
Quaia, Nancy Noonan.
Reinhart Miller, International Trade Field Office, Commercial
Litigation Branch, Civil Division, United States Department
of Justice, New York, NY, for defendant-cross-appellant
United States. Also represented by Reginald Thomas Blades,
Jr., Jeanne Davidson, Joseph H. Hunt, Washington, DC;
Mercedes Morno, United States Department of Commerce,
Timothy C. Brightbill, Wiley Rein, LLP, Washington, DC, for
defendant-cross-appellant SolarWorld Americas, Inc. Also
represented by Tessa V. Capeloto, Laura El-Sabaawi, Usha
Neelakantan, Maureen E. Thorson.
Prost, Chief Judge, Newman, Lourie, Dyk, Moore, O'Malley,
Reyna, Taranto, Chen, Hughes, and Stoll, Circuit Judges.
Newman, Lourie, Dyk, Moore, O'Malley, Reyna, Taranto,
Chen, Hughes, and Stoll, join.
Inc. appeals from the final decision of the United States
Court of International Trade in favor of the United States
and SolarWorld Americas, Inc., concluding that Sunpreme's
solar modules are covered by the scope of antidumping and
countervailing duty orders on U.S. imports of certain solar
cells from the People's Republic of China. The United
States and SolarWorld cross-appeal from the same decision,
which also concluded that the United States Department of
Commerce ("Commerce") could not instruct United
States Customs and Border Protection ("Customs") to
continue suspending liquidation of Sunpreme's solar
modules entered or withdrawn from warehouse for consumption
before the scope inquiry was initiated.
unanimous panel of this court previously affirmed the portion
of the Court of International Trade's decision upholding
Commerce's scope ruling. Sunpreme Inc. v. United
States, 924 F.3d 1198, 1212 (Fed. Cir. 2019)
("Panel Opinion"). A majority of that
panel, addressing the cross-appeal brought by the United
States and SolarWorld, also affirmed the Court of
International Trade's conclusion that Commerce's
instructions to continue suspending liquidation of goods
entered or withdrawn prior to the scope inquiry were
unlawful. Id. at 1215.
United States petitioned for en banc rehearing of its
cross-appeal. We now grant that petition to resolve whether
it is within Customs's authority to preliminarily suspend
liquidation of goods based on an ambiguous antidumping or
countervailing duty order, such that the suspension may be
continued following a scope inquiry by Commerce. We conclude
that it is.
we find that Commerce's instructions regarding continued
suspension of liquidation were lawful and not reliant on
ultra vires acts of Customs, we grant rehearing en
banc limited to that issue, vacate the original panel
opinion, and reverse that portion of the Court of
International Trade's decision. Commerce's
instructions are reinstated in full.
the original panel opinion is vacated due to our en banc
consideration of the United States's cross-appeal, we
reinstate the remaining portions of the panel opinion,
including the affirmance of the Court of International
Trade's conclusion that Commerce's final scope ruling
is supported by substantial evidence. For the sake of
completeness, the undisturbed portions of the panel opinion
are reproduced below.
modules convert sunlight into electricity. Many solar modules
are composed of crystalline silicon photovoltaic
("CSPV") cells. Those modules contain crystalline
silicon wafers that are processed in the presence of other
chemicals so that one portion of the wafer has a negative
charge (i.e., an n-type layer with excess electrons) and
another portion has a positive charge (i.e., a p-type layer
with excess electron holes). The existence of the positive
and negative layers in a single wafer creates what is known
in the industry as a "p/n junction." J.A. 325, 466,
546, 2719. A built-in electric field is created at and around
the site of the p/n junction due to the electric charge
differential. When sunlight strikes a CSPV cell, the light
energy is absorbed, free electrons in the n-type layer
attempt to unite with holes in the p-type layer at and around
the p/n junction, and the resulting energy generated by the
mobilized electrons is translated into usable electricity.
solar modules are composed of thin films. Those modules
contain very slim layers of semiconductor material, such as
amorphous silicon, deposited on a substrate of some sort,
such as glass, stainless steel, or plastic. Some of the
layers are doped with chemicals that create an excess of
electron-donating impurities (i.e., n-type layers), while
other layers are doped with chemicals that create an excess
of hole-donating impurities (i.e., p-type layers). When the
n-type and p-type layers are put in contact, they form a p/n
junction, and a built-in electric field is created. The
imposition of an additional semiconductor substrate (i.e.,
intrinsic layer) between the doped thin film layers forms
what is known as a "p/i/n junction." J.A. 531, 546.
With respect to p/i/n junctions, the electric field extends
across the entire intrinsic region.
2011, SolarWorld filed a petition with Commerce and the
United States International Trade Commission
("ITC") seeking the imposition of antidumping and
countervailing duties on CSPV cells imported from the
People's Republic of China, pursuant to §§ 701
and 731 of the Tariff Act of 1930. In 2012, following an
investigation, Commerce issued antidumping and countervailing
duty orders covering those imports. Crystalline Silicon
Photovoltaic Cells, Whether or Not Assembled Into Modules,
From the People's Republic of China: Countervailing Duty
Order ("CVD Order"), 77 Fed. Reg. 73, 017
(Dec. 7, 2012); Crystalline Silicon Photovoltaic Cells,
Whether or Not Assembled Into Modules, From the People's
Republic of China: Amended Final Determination of Sales at
Less Than Fair Value, and Antidumping Duty Order
("AD Order"), 77 Fed. Reg. 73, 018 (Dec. 7, 2012).
Both orders recite the same scope, which reads in relevant
part as follows:
The merchandise covered by this order is crystalline silicon
photovoltaic cells, and modules, laminates, and panels,
consisting of crystalline silicon photovoltaic 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 crystalline silicon photovoltaic 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
Order, 77 Fed. Reg. at 73, 017; AD Order, 77 Fed. Reg. at 73,
018-19. Commerce notified Customs of the AD and CVD Orders
("the Orders") and required cash deposits or
posting of a bond equal to the appropriate rate in effect at
the time of entry for covered imports.
manufactures solar modules in China. Those modules contain
bifacial solar cells that are composed of thin films, which
are several layers of amorphous silicon less than one micron
thick, deposited on both sides of a crystalline silicon
wafer. Following publication of the Orders on December 2,
2012, Sunpreme entered its merchandise as entry type
"01," meaning not subject to the Orders, and
continued to do so without question from Customs until early
2015, when, for unknown reasons, Customs began to question
whether Sunpreme's entries were covered by the Orders.
Initially unsure whether the Orders covered Sunpreme's
entries, Customs sought advice from one of its laboratories.
On April 20, 2015, Customs notified Sunpreme that it had
decided that Sunpreme's entries are covered by the
Orders, thus resulting in the suspension of liquidation of
Sunpreme's entries and the requirement that Sunpreme pay
cash deposits in order for its shipments to be released from
the port's warehouse. Although it objected to
Customs' determination, Sunpreme complied.
Customs continued to question whether Sunpreme's solar
modules unambiguously fell within the scope of the Orders. On
June 3, 2015, Customs contacted Commerce seeking guidance on
whether Sunpreme's products were covered by the Orders.
Commerce answered that
a determination as to whether this product is covered by
antidumping duty order A-570-979 and countervailing duty
order C-570-980 [i.e., the Orders] would need to be made by
the Department of Commerce in a scope ruling which can be
requested by the importer or exporter.
Sunpreme Inc. v. United States ("Sunpreme I
CIT"), 190 F.Supp.3d 1185, 1191-92, 1199 (Ct.
Int'l Trade 2016).
separate proceeding, Sunpreme filed a complaint with the
United States Court of International Trade ("CIT")
under 28 U.S.C. § 1581(i), directly challenging
Customs' determination that Sunpreme's solar modules
are subject to the Orders. Sunpreme Inc. v. United
States ("Sunpreme I PI"), 145
F.Supp.3d 1271, 1282 (Ct. Int'l Trade 2016) (opinion
granting preliminary injunction). In its final decision, the
CIT found it undisputed that Sunpreme's solar modules
contain layers of thin film, but that Customs' laboratory
tests confirmed those modules also contain crystalline
silicon. Sunpreme I CIT, 190 F.Supp.3d at 1191,
1195-96. The CIT noted that, although the Orders expressly
include "crystalline silicon photovoltaic cells"
within their scope and expressly exclude "thin film
photovoltaic products" from their scope, the Orders do
not define the term thin film products. Id. at 1190,
1195, 1200. That led the CIT to characterize the scope
language in the Orders as ambiguous with respect to
Sunpreme's solar modules. Id. at 1203. The CIT
concluded, based on our decisions in AMS Associates, Inc.
v. United States, 737 F.3d 1338 (Fed. Cir. 2013), and
Xerox Corp. v. United States, 289 F.3d 792 (Fed.
Cir. 2002), that Customs lacked authority to interpret the
scope of Commerce's ambiguous Orders, and thus Customs
could not determine that Sunpreme's solar modules are
subject to those duty orders. Sunpreme I CIT, 190
F.Supp.3d at 1202-04; accord Sunpreme I PI, 145
F.Supp.3d at 1283-92. We reversed on appeal because, under
the circumstances presented, the CIT lacked jurisdiction
under 28 U.S.C. § 1581(i) to entertain direct challenges
to Customs' decision given that an alternative
administrative remedy was available. See Sunpreme, Inc.
v. United States ("Sunpreme I"), 892
F.3d 1186, 1192-94 (Fed. Cir. 2018) ("Section 1581(i)
'may not be invoked when jurisdiction under another
subsection of § 1581 is or could have been available,
unless the remedy provided under that other subsection would
be manifestly inadequate.'" (quoting Int'l
Custom Prods., Inc. v. United States, 467 F.3d 1324,
1327 (Fed. Cir. 2006))). That remedy was a scope ruling from
Commerce interpreting the scope of the duty orders.
November 16, 2015, Sunpreme petitioned Commerce for a scope
ruling to determine whether its solar modules are subject to
the Orders. Sunpreme contended that the Orders do not cover
its solar modules because they do not contain CSPV cells,
they do not have a p/n junction, and they otherwise qualify
for the Orders' exclusion because they are thin film
products. On December 30, 2015, Commerce initiated a formal
the scope inquiry was initiated, but before a final ruling
was made, Commerce issued a scope ruling in a separate
proceeding deciding that Silveo, Inc.'s Triex
photovoltaic cells are subject to the Orders. Like
Sunpreme's solar modules, the Triex cells also contain a
crystalline silicon substrate sandwiched between layers of
amorphous silicon thin films.
regulations at 19 C.F.R. § 351.225(k) establish its
analytical path for deciding whether certain imports are
covered by the scope of an antidumping or countervailing duty
order. See Shenyang Yuanda Aluminum Indus. Eng'g Co.
v. United States, 776 F.3d 1351, 1354 (Fed. Cir. 2015).
Commerce first examines the sources listed under §
351.225(k)(1), which include "the scope language
contained in the order itself, the descriptions contained in
the petition, and how the scope was defined in the
investigation and in the determinations issued by Commerce
and the ITC." Id. Those are known as the (k)(1)
sources. If those sources are not sufficient to decide the
matter, then Commerce turns to examining the sources listed
under § 351.225(k)(2), which include the product's
physical characteristics, ultimate purchasers'
expectations, the ultimate use of the product, trade channels
in which the product is sold, and the manner in which the
product is advertised and displayed. Id. Those are
known as the (k)(2) sources.
determined that the (k)(1) sources were not dispositive as to
whether the Triex cells fell within the scope of the Orders.
It said the language of the Orders was ambiguous and the
other sources did not resolve whether p/i/n junctions qualify
as p/n junctions or whether products containing both thin
films and crystalline silicon components qualify for the thin
film exclusion. Commerce correctly concluded that the hybrid
Triex cells "are neither dispositively covered nor
clearly excluded from the scope of the Orders." J.A.
then concluded that, based on (k)(2) sources, the Triex cells
are covered by the Orders. It said the Triex cells contain a
p/n junction formed by any means because "a p/i/n
junction is simply a type of p/n junction" in which the
electric field is extended over a wider region of the cell.
J.A. 870-71 (internal quotation marks omitted). It concluded
the presence of an intrinsic layer does not change the
function of the p/n junction. Moreover, Commerce explained
that conventional thin film cells were designed to avoid the
use of crystalline silicon, and thus allowing products using
crystalline silicon as an active, energy-producing component
to qualify for the thin film exclusion "would result in
a physical description that would easily permit circumvention
of the scope of the Orders." J.A. 871-72.
placed the Triex scope ruling on the record in the Sunpreme
proceeding so that interested parties could comment on any
relevant distinctions between ...