CIT Affirms 'Hybrid' Solar Cells Covered by AD/CV Duties on Solar Cells From China
The Court of International Trade on Aug. 29 upheld a Commerce Department scope ruling finding “hybrid” solar panels are subject to antidumping and countervailing duties on solar cells from China. The court agreed with the agency’s ruling that the addition of “thin film” to a crystalline silicon substrate does not exempt Sunpreme’s solar cells from AD and CV duties. However, the court directed Commerce to issue new liquidation instructions, finding the agency improperly ordered CBP to suspend liquidation prior to the beginning of the scope inquiry.
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Commerce issued its scope ruling in July 2016 (see 1608030041), on the heels of a similar scope ruling that found Triex hybrid cells subject to the AD/CV duty orders on crystalline silicon photovoltaic cells, whether or not assembled into modules, from China (see 1604070040 and 1607180071). Sunpreme had argued the crystalline silicon component acted only as a “substrate” for the electricity-generating amorphous silicon thin film. Thin film cells are exempt from the AD/CV duty orders.
CIT agreed with Commerce’s determination that the crystalline silicon component was actually involved in electricity generation, rendering them crystalline silicon photovoltaic cells covered by the orders. Sunpreme’s product matches the physical characteristics outlined in the scope, CIT said: they are crystalline silicon photovoltaic cells at least 20 micrometers thick, with a p/n junction formed by any means (in this case, a “p/i/n” junction). The hybrid cells don’t meet the requirements of the thin film exemption, the court said. The original petition for solar cells duties says thin film products don’t use crystalline silicon to generate electricity.
But mirroring its ruling in 2016 in a different case involving Sunpreme’s hybrid cells (see 1610200024), CIT found the liquidation instructions issued by Commerce after the scope ruling were improper. The instructions had in effect directed CBP to “continue to suspend liquidation” and collect cash deposits for entries beginning in April 2015, when CBP began suspending liquidation of Sunpreme’s hybrid cells. Commerce didn’t begin its scope ruling until December of that year. CIT already blocked CBP from collecting cash deposits on the disputed entries (see 1610120072).
Commerce cannot “continue” an improper suspension of liquidation, Commerce said. CBP began suspending liquidation that April because of suspicions that Sunpreme’s product was covered by AD/CV duties, but the scope was ambiguous as to its application, and CBP isn’t tasked with interpreting ambiguous scopes, CIT said. Under Commerce’s regulations, liquidation may be suspended beginning on the date Commerce initiates a formal scope ruling. The court directed Commerce to amend its liquidation instructions so that liquidation is only suspended for entries beginning in December 2015, when Commerce began its scope inquiry.
(Sunpreme Inc. v. U.S., Slip Op. 17-116, CIT # 16-00171, dated 08/29/17, Judge Kelly)