Sunpreme Inc. v. United States, Slip Op. 16-93

• Decision Date: 05 October 2016
• Docket Number: Court No. 16-00171,Slip Op. 16-93
• Citation: 181 F.Supp.3d 1322
• Parties: SUNPREME INC., Plaintiff, v. UNITED STATES, Defendant, and SolarWorld Americas, Inc., Defendant-Intervenor.
• Court: U.S. Court of International Trade

181 F.Supp.3d 1322

SUNPREME INC., Plaintiff,

v.UNITED STATES, Defendant,andSolarWorld Americas, Inc., Defendant-Intervenor.

Slip Op. 16-93

Court No. 16-00171

United States Court of International Trade.

October 5, 2016

John Marshall Gurley , Diana Dimitriuc-Quaia , and Nancy Aileen Noonan , Arent Fox LLP, of Washington, DC, for plaintiff.

Justin Reinhart Miller , Senior Trial Counsel, International Trade Field Office, Civil Division, U.S. Department of Justice, of New York, NY, for defendant. With him on the brief were Tara Kathleen Hogan , Senior Trial Counsel, U.S. Department of Justice, Commercial Litigation Branch—Civil Division, of Washington, DC, Benjamin C. Mizer , Principal Deputy Assistant Attorney General, Jeanne E. Davidson , Director, and Reginald T. Blades, Assistant Director. Of counsel on the brief was Rebecca Cantu , Senior Counsel, Office of the Chief Counsel for Enforcement and Compliance, U.S. Department of Commerce of Washington, DC.

Timothy C. Brightbill and Maureen Elizabeth Thorson , Wiley Rein LLP, of Washington DC, for defendant-intervenor.

OPINION AND ORDER

Kelly, Judge:

This matter is before the court on Plaintiff's motion, pursuant to USCIT Rule 65(a), for a preliminary injunction ("PI") seeking to enjoin Defendant, together with its delegates, officers, agents, servants and employees of the United States Customs and Border Protection ("Customs" or "CBP") from requiring it to pay cash deposits and enter its solar modules as subject to antidumping and countervailing duty orders on crystalline silicon photovoltaic ("CSPV") cells from the People's Republic of China after the U.S. Department of Commerce ("Commerce") issued a scope ruling to the effect that Plaintiff's merchandise falls within the scope of those orders. See Pl.'s Mot. Prelim. Inj. and Mem. P. & A. Supp. Thereof Confidential Version, Sept. 8, 2016, ECF. No. 20 ("PI Mot."); see alsoCrystalline 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) ("AD Order"); Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled into Modules, from the People's Republic of China: Final Ruling in the Sunpreme Scope Inquiry, Sept. 14, 2016, ECF No. 28-4 ("Final Scope Ruling"). Additionally, Plaintiff avers that Commerce lacked authority to issue instructions to CBP that permit the collection of cash deposits and suspension of liquidation on entries entered prior to the initiation of the scope inquiry and that Commerce's instructions to CBP are otherwise contrary to law. PI Mot. 46–47; see also Sunpreme Corrected Customs Instructions, AD PD 75, bar code 3505144-01 (Sept. 12, 2016); Sunpreme Corrected Customs Instructions, CVD PD 81, bar code 3505147-01 (Sept. 12, 2016).¹ Therefore, even if the court allows the collection of cash deposits on entries after the initiation of the scope inquiry to continue, Plaintiff requests an injunction to prevent CBP from collecting cash deposits and suspending liquidation on entries entered or withdrawn from warehouse prior to the initiation of the scope inquiry. See PI Mot. 46–47. Plaintiff brought the underlying action to challenge Commerce's determination that Plaintiff's solar modules are subject to antidumping and countervailing duty orders covering certain crystalline silicon photovoltaic cells, whether or not assembled into modules, from the People's Republic of China (collectively "Orders"). See Compl., Aug. 26, 2016, ECF No. 2; see also Final Scope Ruling; CVD Order, 77 Fed. Reg. 73,017 ; AD Order, 77 Fed. Reg. 73,018.

On September 9, 2016, Plaintiff requested expedited briefing on its motion for a PI. See Req. for Order to Show Cause Why Time to Respond to Pl.'s Mot. Prelim. Inj. Should Not Be Shortened, Sept. 9, 2016, ECF No. 23. After a telephone conference held the same day, see Teleconference, Sept. 9, 2016, ECF No. 24, the court granted Plaintiff's request for expedited briefing. See Order, Sept. 9, 2016, ECF No. 25. On September 23, 2016, Defendant and Defendant-Intervenor filed response briefs opposing Plaintiff's motion.² See Def.'s Mem. Resp. Pl.'s Mot. Prelim. Inj. Confidential Version, Sept. 23, 2016, ECF No. 33 ("Def.'s Resp. Br."); Def.-Intervenor SolarWorld Americas, Inc.'s Opp'n Pl. Sunpreme Inc.'s Mot. Prelim. Inj. Confidential Version, Sept. 23, 2016, ECF No. 36 ("SolarWorld Br."). On September 28, 2016, Plaintiff filed a motion for leave to file a reply brief to the responses of Defendant and Defendant-Intervenor. See Pl.'s Mot. For Leave To File A Reply To Resps. of United States & SolarWorld Americas Inc. To Pl.'s Mot. Prelim. Inj., Sept. 28, 2016, ECF No. 50. Briefing on the motion concluded on September, 29, 2016 when the court granted Plaintiff's motion. See Order, Sept. 29, 2016, ECF No. 52; see also Pl.'s Reply to Resps. of Def. United States & SolarWorld Americas Inc. to Pl.'s Mot. Prelim. Inj. Confidential Version, Sept. 29, 2016, ECF No. 53 ("Sunpreme Reply Br.").

For the reasons that follow, the court denies Plaintiff's motion to enjoin Commerce from requiring it to pay cash deposits and enter its solar modules as subject to the antidumping and countervailing duty orders on entries entered or withdrawn from warehouse on or after the initiation of the scope inquiry. However, the court enjoins Commerce from ordering CBP to collect and CBP from collecting cash deposits on entries entered or withdrawn from warehouse prior to the initiation of the scope inquiry.

BACKGROUND

Plaintiff, Sunpreme Inc. ("Sunpreme"), is a U.S.-based importer of solar modules manufactured in the People's Republic of China. PI Mot. 7; see also Compl. ¶6.

Plaintiff describes its solar modules as containing bi-facial solar cells with "an innovative thin film technology, the Hybrid Cell Technology, developed and owned by Sunpreme." Compl. ¶22; PI Mot. 7. Plaintiff alleges that it manufactures its cells at its facility in Jiaxing, China. Compl. ¶20; PI Mot. 7. Plaintiff avers that all of its solar modules that are the subject of the 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; PI Mot. 7. 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; PI Mot. 7.

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; PI Mot. 8—9. 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; PI Mot. 9. 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.

Compl. ¶26; PI Mot. 9.

On December 7, 2012, Commerce published the Orders. See CVD Order, 77 Fed. Reg. at 73,017 ; AD Order, 77 Fed. Reg. at 73,018. The scope language of the Orders is identical and provides:

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 (CIGS).

CVD Order, 77 Fed. Reg. at 73,017 ; AD Order, 77 Fed. Reg. at 73,018.

On December 11, 2012, Commerce notified Customs of the CVD Order and instructed Customs, 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 Confidential Version Att. 1 at Ex. 7, Sept. 8, 2016, ECF No. 20-1 ("Exs. Pl Mot."). On December 21, 2012, Commerce notified Customs of the AD Order and instructed Customs, 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 Exs. Pl Mot. Att. 1 at Ex. 6.

The messages to Customs contain, respectively, the antidumping duty and countervailing rates applicable to Plaintiff's entries. See Exs. Pl Mot. Att. 1 at Exs. 6, 7. Those rates are 13.94% and 15.24%, respectively. See Exs. Pl Mot. Att. 1 at Exs. 6, 7.

It is undisputed that Plaintiff had been filing its entries as type "01" ordinary consumption entries without depositing antidumping or countervailing duties prior to April 2015. See Def.'s Resp....