United States Court of Appeals 

for the Federal Circuit ______________________

SUNPREME INC.,

Plaintiff-Appellant

v.

UNITED STATES, SOLARWORLD AMERICAS, INC.,

Defendants-Cross-Appellants

______________________

2018-1116, 2018-1117, 2018-1118

______________________

Appeals from the United States Court of International 

Trade in No. 1:16-cv-00171-CRK, Judge Claire R. Kelly.

______________________

Decided: January 7, 2020

______________________

JOHN M. GURLEY, Arent Fox, LLP, Washington, DC, for 

plaintiff-appellant. Also represented by DIANA DIMITRIUC 

QUAIA, NANCY NOONAN. 

 JUSTIN 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, Washington, DC. 

 TIMOTHY C. BRIGHTBILL, Wiley Rein, LLP, Washington, 
2 SUNPREME INC. v. UNITED STATES

DC, for defendant-cross-appellant SolarWorld Americas, 

Inc. Also represented by TESSA V. CAPELOTO, LAURA ELSABAAWI, USHA NEELAKANTAN, MAUREEN E. THORSON.

______________________

Before PROST, Chief Judge, NEWMAN, LOURIE, DYK,

MOORE, O’MALLEY, REYNA, TARANTO, CHEN, HUGHES, and 

STOLL, Circuit Judges.

∗

Opinion for the court filed by Chief Judge PROST, in which 

Circuit Judges NEWMAN, LOURIE, DYK, MOORE, O’MALLEY,

REYNA, TARANTO, CHEN, HUGHES, and STOLL, join.

PROST, Chief Judge.

Sunpreme 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Sunpreme’s solar modules entered or withdrawn from 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. 

A 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 crossappeal brought by the United States and SolarWorld, also 

affirmed the Court of International Trade’s conclusion that 

 

∗ Circuit Judge Wallach did not participate.
SUNPREME INC. v. UNITED STATES 3

Commerce’s instructions to continue suspending liquidation of goods entered or withdrawn prior to the scope inquiry were unlawful. Id. at 1215.

The 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.

Because 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.

Although 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.1

BACKGROUND

I

Solar 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 

 

1 Therefore, the en banc portion of this opinion consists only of Part II of the Discussion section.
4 SUNPREME INC. v. UNITED STATES

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.

Other 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.

In 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 
SUNPREME INC. v. UNITED STATES 5

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 (CIGS).

CVD 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.
6 SUNPREME INC. v. UNITED STATES

Sunpreme 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.

Meanwhile, 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).

In a separate proceeding, Sunpreme filed a complaint 

with the United States Court of International Trade 

(“CIT”) under 28 U.S.C. § 1581(i), directly challenging 
SUNPREME INC. v. UNITED STATES 7

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. Id.
8 SUNPREME INC. v. UNITED STATES

II

A

On 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 scope inquiry.

B

After 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.

Commerce’s 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 
SUNPREME INC. v. UNITED STATES 9

product is advertised and displayed. Id. Those are known 

as the (k)(2) sources.

Commerce 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. 884.

Commerce 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.

Commerce placed the Triex scope ruling on the record 

in the Sunpreme proceeding so that interested parties 

could comment on any relevant distinctions between Sunpreme’s solar modules and the Triex product.

C

In July 2016, Commerce issued its final scope ruling 

with respect to Sunpreme’s solar modules. Like the Triex 

hybrid cells, Commerce understood that Sunpreme’s solar 

modules were neither covered nor clearly excluded by the 
10 SUNPREME INC. v. UNITED STATES

descriptions contained in the Orders. Based solely on (k)(1) 

sources, it concluded that Sunpreme’s hybrid bifacial thin 

film cells are subject to the Orders. It concluded that Sunpreme’s solar modules contain CSPV cells because they actively rely on crystalline silicon wafers to generate 

electricity and absorb sunlight, just like the crystalline silicon component in the Triex product. It also determined 

that the CSPV cells, which include all the active, energygenerating components such as the thin films and crystalline silicon wafers, are at least twenty micrometers thick. 

Furthermore, Commerce decided that Sunpreme’s solar 

modules contain a p/n junction because, as it said in the 

Triex scope ruling, a p/i/n junction is just a form of p/n junction that does not change the function or nature of the p/n 

junction in the CSPV cell. Finally, it concluded that Sunpreme’s solar modules do not qualify for the thin film exclusion because, as it said in the Triex scope ruling, the 

mere presence of some thin film layers does not override 

the significance of the crystalline silicon wafer and thus 

cannot thereby circumvent the Orders.

Commerce then issued instructions to Customs ordering it to continue suspending liquidation of Sunpreme’s solar modules imported pre-scope inquiry and to begin 

suspending liquidation and collecting cash deposits at the 

applicable rate for any relevant products Sunpreme entered or withdrew from warehouse for consumption on or

after December 30, 2015. That date is when Commerce initiated the scope proceedings.

D

Sunpreme filed a complaint in the CIT challenging 

Commerce’s final scope ruling and its instructions to Customs. It argued that Commerce’s final scope ruling is unsupported by substantial evidence and that its instructions 

to Customs should not have applied retroactively to solar 

modules entered before the scope inquiry was initiated. 

The CIT upheld Commerce’s final scope ruling as in 
SUNPREME INC. v. UNITED STATES 11

accordance with law and supported by substantial evidence, but it invalidated as contrary to law that part of 

Commerce’s instructions to Customs ordering continued 

suspension of liquidation for entries pre-dating the initiation of the scope inquiry. Sunpreme Inc. v. United States

(“Sunpreme II CIT”), 256 F. Supp. 3d 1265, 1278, 1292, 

1294 (Ct. Int’l Trade 2017).

With respect to the final scope ruling, the CIT explained that substantial evidence supports each of Commerce’s four main determinations: that Sunpreme’s solar 

modules contain CSPV cells, are at least twenty micrometers thick, have a p/n junction, and do not qualify for the 

thin film exclusion. Id. at 1278–91. It agreed that the Orders, the petition, the initial investigation, and the Triex 

scope ruling provided evidentiary support for Commerce’s 

decision. Id.

With respect to Commerce’s instructions to Customs, 

however, it held that it was unlawful for Commerce to order continued suspension of liquidation and collection of 

cash deposits for entries made before the scope inquiry was 

initiated. Id. at 1291–94. The CIT held that Customs’ suspension of liquidation was ultra vires because Customs 

made its decision before the Sunpreme scope inquiry was 

completed, at which time Customs lacked authority to interpret the Orders to determine whether Sunpreme’s solar 

modules fell within the scope of those Orders. Id. The CIT 

again relied on AMS, 737 F.3d 1338, and Xerox, 289 F.3d 

792, to support its judgment that Customs lacked authority 

to interpret the Orders for suspension of liquidation purposes. Id. at 1292. The CIT therefore concluded that “Commerce could not extend the suspension of liquidation on 

entries that were not appropriately administratively suspended.” Id. at 1293. It held that Commerce only has authority to “continue” a lawful suspension of liquidation. Id.

Sunpreme now appeals the CIT’s decision upholding 

Commerce’s scope ruling. The United States and 
12 SUNPREME INC. v. UNITED STATES

SolarWorld cross-appeal the CIT’s partial invalidation of 

Commerce’s instruction to Customs to the extent that it directed suspension of liquidation pre-dating the initiation of 

the scope inquiry. We have jurisdiction to decide the appeals under 28 U.S.C. § 1295(a)(5).

DISCUSSION

We review CIT decisions de novo and apply anew the 

same standard it used. Ad Hoc Shrimp Trade Action 

Comm. v. United States, 802 F.3d 1339, 1348 (Fed. Cir. 

2015); Atl. Sugar, Ltd. v. U.S., 744 F.2d 1556, 1559 n.10 

(Fed. Cir. 1984). Under that standard, we “must uphold 

Commerce’s determinations unless they are ‘unsupported 

by substantial evidence on the record, or otherwise not in 

accordance with law.’” Ad Hoc Shrimp, 802 F.3d at 1348 

(quoting 19 U.S.C. § 1516a(b)(1)(B)(i)). While our review 

repeats much of the work of the CIT, we do not ignore the 

CIT’s informed judgment. Id. Moreover, we give substantial deference to Commerce’s interpretation of its own duty 

orders “because the meaning and scope of [those] orders are 

issues ‘particularly within the expertise’ and ‘special competence’ of Commerce.” King Supply Co. v. United States, 

674 F.3d 1343, 1348 (Fed. Cir. 2012) (quoting Sandvik Steel 

Co. v. United States, 164 F.3d 596, 600 (Fed. Cir. 1998)).

A decision is supported by substantial evidence if the 

evidence amounts to “more than a mere scintilla” and “a 

‘reasonable mind might accept [it] as adequate to support 

a conclusion.’” Ad Hoc Shrimp, 802 F.3d at 1348 (quoting 

Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 217 

(1938)). Commerce’s findings “may still be supported by 

substantial evidence even if two inconsistent conclusions 

can be drawn from the evidence.” Id.

Two main issues are presented for our review. First, 

Sunpreme argues that Commerce’s determination that its 

solar modules are covered by the scope of the Orders is not 

supported by substantial evidence. Second, the United

States and SolarWorld contend that Commerce’s 
SUNPREME INC. v. UNITED STATES 13

instructions to Customs were not unlawful and should 

have been upheld in all respects. We address those issues 

in turn below.

I

Sunpreme’s only challenge on appeal is that the CIT 

incorrectly concluded that Commerce’s decision that Sunpreme’s solar modules are covered by the Orders is supported by substantial evidence. The United States and 

SolarWorld disagree.

Commerce issues scope rulings to clarify the scope of 

its antidumping and countervailing duty orders. 19 C.F.R. 

§ 351.225(a). As noted above, the analysis for Commerce’s 

scope rulings is governed by its regulations at 19 C.F.R. 

§ 351.225. “Commerce must first examine the language of 

the final order.” Mid Continent Nail Corp. v. United States, 

725 F.3d 1295, 1302 (Fed. Cir. 2013). If the language is 

unclear, then Commerce must turn to available (k)(1) 

sources, including the petition, the initial investigation, 

and any earlier determinations by Commerce and the ITC. 

Id.; 19 C.F.R. § 351.225(k)(1). If the matter remains unresolved, Commerce must turn to available (k)(2) sources, including the product’s physical characteristics, ultimate 

purchasers’ expectations, the product’s ultimate use, the 

channels of trade in which the product is sold, and the way 

the product is marketed. Mid Continent, 725 F.3d at 1302; 

19 C.F.R. § 351.225(k)(2).

While “review of the petition and the investigation may 

provide valuable guidance as to the interpretation of the 

final order,” those sources “cannot substitute for language 

in the order itself.” Duferco Steel, Inc. v. United States, 296 

F.3d 1087, 1097 (Fed. Cir. 2002). The scope of an order can 

encompass certain “merchandise only if [the order] contain[s] language that specifically includes the subject merchandise or may be reasonably interpreted to include it.” 

Id. at 1089. Similarly, “merchandise facially covered by an 

order may not be excluded from the scope of the order 
14 SUNPREME INC. v. UNITED STATES

unless the order can reasonably be interpreted so as to exclude it.” Mid Continent, 725 F.3d at 1301 (emphasis omitted). At bottom, while Commerce has “substantial freedom 

to interpret and clarify its antidumping [and countervailing duty] orders,” it may not do so in a way that changes 

them. Id. at 1300 (quoting Novosteel SA v. United States, 

284 F.3d 1261, 1269 (Fed. Cir. 2002)).

Sunpreme attacks all four parts of Commerce’s scope 

determination. First, it argues its solar modules are not 

CSPV cells. Second, it contends they are far less than 

twenty micrometers thick. Third, it asserts they do not 

contain a p/n junction. Last, it argues they qualify for the 

Orders’ thin film exclusion. Because none of Sunpreme’s 

arguments is persuasive, we conclude, as the CIT did, that 

Commerce’s final scope ruling is supported by substantial 

evidence.

A

Sunpreme argues that substantial evidence does not 

support Commerce’s conclusion that its solar modules contain CSPV cells. It argues that Commerce’s decision to 

treat any product relying on crystalline silicon to generate 

electricity as a CSPV cell is contrary to law because it introduces criteria into the scope of the Orders that are not 

covered by their plain language or any (k)(1) sources. 

Moreover, it contends that Commerce was wrong when it 

stated that the crystalline silicon wafers in Sunpreme’s solar modules play a primary role in the modules’ generation 

of electricity. Finally, Sunpreme asserts that its crystalline silicon wafers are not doped and thus can produce no 

more electricity than a sliver of river rock.

The United States and SolarWorld respond that Commerce correctly concluded that Sunpreme’s solar modules 

contain CSPV cells. They identify record evidence they allege shows that Sunpreme’s solar modules contain a doped 

crystalline silicon substrate that serves a primary role in 

absorbing sunlight, which according to the Triex scope 
SUNPREME INC. v. UNITED STATES 15

ruling is enough to conclude that those modules contain 

CSPV cells. They argue Sunpreme simply wishes for us to 

reweigh the evidence and reach a different conclusion.

We agree with the United States and SolarWorld that 

substantial evidence supports Commerce’s conclusion that 

Sunpreme’s solar modules contain CSPV cells. Commerce 

determined that a CSPV cell is a solar product that relies 

on crystalline silicon to generate electricity. That is a reasonable interpretation of the Orders based on their plain 

language and (k)(1) sources. The Orders expressly cover 

“crystalline silicon photovoltaic cells” without much relevant further limitation. CVD Order, 77 Fed. Reg. at 

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

states that “CSPV cells . . . are made from crystalline silicon” and “convert the energy of sunlight directly into electricity, by the photovoltaic effect.” J.A. 237. And 

Commerce determined in the Triex scope ruling that the 

basic purpose of solar cells as opposed to blank crystalline 

silicon wafers is electricity generation, and thus a crystalline silicon substrate that contributes to energy generation 

when the device is struck by sunlight constitutes a CSPV 

cell.

The record supports Commerce’s decision that Sunpreme’s solar modules rely on crystalline silicon in the electricity generation process. In the Triex scope ruling, 

Commerce explained that traditional CSPV cells contain a 

“semi-conduction and photon collection region . . . between 

the positively and negatively doped layers of the wafer itself,” and that the crystalline silicon wafer in the Triex cells 

serves the same purpose because “the wafer is part of the 

‘circuit’ between the p/n layers of thin film, creating a region of semi-conduction and photon collection between the 

thin film layers.” J.A. 871. In both instances, the wafer 

contributes to “electricity generation between the positively and negatively doped regions of the cell.” J.A. 871. 

It is active because it is slightly doped and plays a critical 

role in the energy-generating function of the cells.
16 SUNPREME INC. v. UNITED STATES

The same is true for Sunpreme’s solar modules. Sunpreme said that “the role of the wafer substrate [in its solar 

modules] is primarily to provide a light absorbing material 

and a stable mechanical/thermal interface for the amorphous silicon cells.” J.A. 4575. It also admitted that its 

crystalline silicon wafers are naturally slightly doped, 

meaning they have a slight inherent p-type or n-type orientation. J.A. 4574, 4773. And Sunpreme has not identified any evidence that, given those characteristics, the 

crystalline silicon wafers in its solar modules do not operate just like the wafers in the Triex cells, which formed part 

of the energy-generating circuit by “creating a region of 

semi-conduction and photon collection between the thin 

film layers.” It was thus reasonable for Commerce to conclude that Sunpreme’s solar modules contain CSPV cells 

because the active crystalline silicon wafers in those products absorb sunlight, are slightly doped, and largely serve 

the same function as the crystalline silicon in traditional 

CSPV cells.

We are not persuaded by Sunpreme’s arguments to the 

contrary. Commerce’s determination that CSPV cells are 

those that rely on crystalline silicon to generate electricity 

does not add a new criterion to the scope of the Orders because the scope language can reasonably bear, and the 

(k)(1) sources reasonably support, Commerce’s interpretation. Whether the crystalline silicon wafer is doped or acts 

as a primary solar absorber are not new criteria, but instead serve as exemplary guideposts for identifying the 

purpose and function of the wafer, which is to contribute to 

the generation of energy in the modules. Additionally, 

even if the crystalline silicon wafers in Sunpreme’s solar 

modules are not the primary solar absorbers in the cells, 

Commerce could have reasonably concluded that it is 

enough that the wafers provide for and are primarily used 

for absorbing sunlight. Finally, while Sunpreme would 

have everyone believe that its crystalline silicon wafers are 

inert, useless slivers of river rock that play no role in the 
SUNPREME INC. v. UNITED STATES 17

energy-production process, the wafers are naturally 

slightly doped and, when used in conjunction with the rest 

of the solar module’s components, play a critical role in the 

generation of energy. J.A. 245–55, 304–06, 325–27, 871. 

We therefore agree with the CIT that substantial evidence 

supports Commerce’s conclusion that Sunpreme’s solar 

modules contain CSPV cells.

B

Sunpreme argues that its solar modules do not contain 

cells that are at least twenty micrometers thick. It argues 

the thin film layers are far less than twenty micrometers 

thick and the much thicker crystalline silicon substrate 

must be excluded from the calculation given that it is not 

an active part of the devices. Because we uphold Commerce’s conclusion that the crystalline silicon wafer in Sunpreme’s solar modules are indeed an active part of those 

devices, Sunpreme’s thickness argument necessarily fails. 

We agree with the CIT that Commerce’s ruling that Sunpreme’s solar modules have cells that are at least twenty 

micrometers thick is supported by substantial evidence.

C

Sunpreme also argues that substantial evidence does 

not support Commerce’s conclusion that its solar modules 

have a p/n junction. It contends that the term “p/n junction” as used in the Orders does not require interpretation 

because it unambiguously refers to p-type layers directly 

adjacent to or abutting n-type layers formed within the 

crystalline silicon wafer itself. It asserts that its solar modules do not have a p/n junction because the thin films form 

p/i and i/n junctions outside the wafer substrate and a p/i/n 

junction is not a p/n junction.

The United States and SolarWorld counter that Commerce correctly concluded that Sunpreme’s solar modules 

contain a p/n junction. They argue that the Triex scope 

ruling is a (k)(1) source that supports treating p/i/n 
18 SUNPREME INC. v. UNITED STATES

junctions as a subset of p/n junctions, and that the form of 

junction should not be elevated over its function. They also 

contend that neither the plain language of the Orders nor 

any (k)(1) sources limits the location of the p/n junction to 

inside the crystalline silicon component.

We agree with the United States and SolarWorld that 

substantial evidence supports Commerce’s conclusion that 

Sunpreme’s solar modules contain a p/n junction. The language of the Orders, as well as several (k)(1) sources, support Commerce’s determination that a p/i/n junction is a 

type of p/n junction because the function and nature of the 

junction, which is the formation of an electric field, is unchanged by introducing an intrinsic crystalline silicon 

layer between positive and negative thin films. The Orders 

provide that covered merchandise must contain “a p/n junction formed by any means . . . .” CVD Order, 77 Fed. Reg. 

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

language in no way limits the location, form, or method of 

production of the p/n junction.

The original petition describes the p/n junction as “an 

interface of a p-type semiconductor and an n-type semiconductor that is usually formed by dopant additions to create 

an intrinsic or extrinsic charge state.” J.A. 237–38. It 

states the junction could be heterogenous with various sections of the substrate responding differently to sunlight, 

homogenous, or patterned. J.A. 238. It also notes that the 

p/n junction could be formed by several means and recites 

a non-exhaustive list that includes dopant diffusion, ion 

implanation, epitaxial growth, and bonding of dissimilar 

materials. J.A. 238 n.14. SolarWorld later revised its petition to state that the duty orders cover cells “having a p/n 

junction formed by any means,” without reference to a specific list of possible formation methods. J.A. 816. SolarWorld explained that its change was meant to clarify that 

the p/n junction could be formed in any number of ways and 

at any one of numerous points in the manufacturing process of the cells. Again, like the language of the Orders, 
SUNPREME INC. v. UNITED STATES 19

the petition does not limit the location, form, or method of 

production of the p/n junction.

The Triex scope ruling states that a p/i/n junction 

simply is a type of p/n junction because it is one of many 

possible means of forming the necessary electric field. That 

is, the intrinsic crystalline silicon substrate connects the ptype and n-type thin film layers so that the cell functions 

in the same way as p/n junctions formed by other means. 

The intrinsic layer just “‘extends the electric field over a 

wider region of the cell’ (i.e., the crystalline silicon wafer 

region . . .).” J.A. 871 (citation omitted). Additionally, in 

the Triex scope ruling, Commerce soundly and logically rejected the argument that the crystalline wafer is inert and 

thus plays no role in the electricity generation process because, if that were true, the substrate could be replaced 

with less expensive material than crystalline silicon that 

would clearly fall outside the scope of the Orders. Therefore, the language of the Orders and the (k)(1) sources support Commerce’s interpretation.

Here, Sunpreme’s solar modules contain a p/i/n junction formed by p-type and n-type thin films sandwiched 

atop both sides of an intrinsic crystalline silicon wafer. 

Substantial evidence therefore supports Commerce’s conclusion that Sunpreme’s solar modules contain a p/n junction, which encompasses p/i/n junctions.

Sunpreme’s arguments to the contrary do not convince 

us otherwise. First, the term “p/n junction” is not unambiguously defined in the Orders. The petition’s use of the 

word “interface” to describe the boundary between the ptype and n-type layers that creates the p/n junction does 

not necessarily mean that the layers must be in direct contact without the presence of an intervening intrinsic layer. 

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

at 73,018. Additionally, the fact that glossaries define both 

p/n and p/i/n junctions does not mean that the two are mutually exclusive, for the same reason that a dictionary’s 
20 SUNPREME INC. v. UNITED STATES

separate definitions for flower and tulip do not connote absolute distinctiveness.

Second, Sunpreme is incorrect in its insistence that the 

p/n junction must be located within the crystalline silicon 

wafer itself. Neither the language of the Orders nor any 

(k)(1) source limits the location of the p/n junction, and 

Commerce expressly rejected the same argument in its earlier Triex scope ruling. The fact that the petition originally 

included a list of means that was later removed is unhelpful to Sunpreme’s argument because the removal broadens 

the methods of formation that previously were delineated 

in a non-exhaustive list. Furthermore, a SolarWorld representative’s statement during the ITC conference that the 

p/n junction is created within the silicon base material does 

not conflict with a junction formed by p-type thin films, ntype thin films, and an intrinsic substrate relating the two. 

The p/n junction is in all those components, including the 

base material itself, and cannot be seen.

Third, we are not persuaded by Sunpreme’s attempt to 

distinguish the Triex scope ruling based on perceived differences in the cells. Both Sunpreme’s solar modules and 

the Triex cells have p/i/n junctions formed by thin films laid 

atop a crystalline silicon substrate, wherein the crystalline 

silicon substrate facilitates the creation of an electric field 

between the thin film layers. Any other differences between the cells, including the location of the junction or the 

method of formation, do not bear on our analysis for the 

reasons stated above.

Finally, Sunpreme’s effort to analogize the facts of this 

case to the facts in Duferco is fruitless. In Duferco, Commerce interpreted a floor plate product with patterns in 

nonrectangular cross-sections achieved from a rolling process to be within the scope of an order covering flat-rolled 

products of nonrectangular cross-section where the crosssection was achieved only after rather than during the rolling process. 296 F.3d at 1095. We held that Commerce’s 
SUNPREME INC. v. UNITED STATES 21

interpretation was unlawful because it was completely untethered from the language of the order. Id. at 1095, 1098. 

We reasoned that merchandise may only be included 

within an order’s scope if that order contains language specifically targeting the subject merchandise or capable of being reasonably interpreted to include such merchandise. 

Id. at 1089. The same facts do not exist here. Unlike the 

duty order in Duferco, which did not include any language 

that could act as a hook for the subject merchandise, the 

Orders expressly contemplate products having a p/n junction formed by any means, which for the reasons stated 

above can be reasonably interpreted to include p/i/n junctions.

We therefore agree with the CIT that substantial evidence supports Commerce’s conclusion that Sunpreme’s solar modules contain a p/n junction.

D

Sunpreme argues that Commerce’s ruling that Sunpreme’s solar modules do not qualify for the thin film exclusion in the Orders is not supported by substantial 

evidence. It argues that Commerce rewrote the scope of 

the exclusion by interpreting it as not covering solar products containing active crystalline silicon wafers because 

the language of the exclusion and (k)(1) sources do not suggest discriminating among products based on the thin film 

substrate. It contends that its solar modules are thin films 

based on their industry certification, their size, and the 

way in which they are produced. Finally, Sunpreme asserts that SolarWorld’s statements during the ITC conference demonstrate the scope of the exclusion is broader than 

Commerce’s interpretation because there is no overlap between thin films and crystalline silicon cells, and the only 

competitive injury contemplated by the industry was with 

respect to crystalline silicon products rather than thin 

films.
22 SUNPREME INC. v. UNITED STATES

The United States and SolarWorld respond that Commerce correctly interpreted the thin film exclusion as not 

extending to Sunpreme’s solar modules. They argue that 

the language of the exclusion in the Orders is capable of 

bearing a narrow interpretation and (k)(1) sources support 

that understanding. Additionally, they encourage us to 

discount the value of the industry certifications Sunpreme 

identifies with respect to its solar modules because those 

modules are certified as both crystalline silicon and thin 

film products. Finally, SolarWorld argues that Sunpreme 

misconstrues its representative’s statements at the ITC 

conference.

Substantial evidence supports Commerce’s conclusion 

that Sunpreme’s solar modules do not qualify for the thin 

film exclusion. It was a reasonable interpretation of the 

Orders, based on their plain language and (k)(1) sources, 

for Commerce to determine that the thin film exclusion 

does not protect those products that have both thin films 

and an active crystalline silicon wafer. The Orders provide 

that the covered merchandise “is crystalline silicon photovoltaic cells” and the excluded merchandise includes “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. The petition clearly 

states that thin film products “do not use crystalline silicon 

. . . .” J.A. 551. And the ITC asserted in its investigation 

that “CSPV products and thin film products have different 

chemical compositions and physical characteristics that affect the inherent properties of each and may limit their interchangeability,” making particular note that traditional 

CSPV cells are made from crystalline silicon and are more 

efficient while thin films are typically made of amorphous 

silicon or non-silicon materials. J.A. 309, 326–27. The ITC 

also determined in its investigation that thin film products 

tend to use glass substrates or a flexible substrate such as 
SUNPREME INC. v. UNITED STATES 23

stainless steel or plastic. Those sources strongly suggest 

that thin films do not incorporate crystalline silicon.

Moreover, in the Triex scope ruling, Commerce distinguished CSPV cells from thin film products for purposes of 

the Orders. Relying on the petition and the ITC’s initial 

investigation, Commerce said conventional thin films were 

designed to avoid the use of crystalline silicon and instead

use a-Si, CdTe, or CIGS on a non-functional substrate like 

glass. It determined that the Triex cells do not qualify for 

the thin film exclusion because they “contain a crystalline 

silicon component that contributes to their photovoltaic 

function.” J.A. 871.

Because there is no dispute that Sunpreme’s solar modules contain crystalline silicon, and the evidence demonstrates that the crystalline silicon plays an active role in 

the cells energy generation processes as stated above, Sunpreme’s solar modules do not qualify for the thin film exclusion. We agree with the CIT’s decision to uphold 

Commerce’s interpretation of the Orders because allowing 

any product that contains any thin film layer 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. 872.

Sunpreme’s arguments trying to chip away at Commerce’s reasonable conclusion are unpersuasive. First, 

Commerce’s interpretation does not rewrite the scope of the 

thin film exclusion by defining it based on the substrate 

used, but instead its interpretation reasonably construes 

the exclusion to prevent it from covering products that are 

drawn to the central focus of the Orders: active crystalline 

silicon. Second, although SolarWorld’s representative 

stated at the ITC conference that it was not concerned with 

certain hybrid solar cell products that used both crystalline 

silicon wafers and amorphous silicon thin film layers, he 

noted that his lack of concern was merely because those 

hybrid products were limited in availability and 
24 SUNPREME INC. v. UNITED STATES

production. Earlier in the conference, SolarWorld stressed 

that thin film technologies are “completely separate” from 

crystalline silicon products and the two do not overlap in 

their application. J.A. 370. Last, even if Sunpreme’s solar 

modules are certified by the International Electrotechnical 

Commission as thin film products, we are not persuaded 

that the scope of the Orders is dictated by or otherwise 

tethered to such industry certifications. We therefore conclude that substantial evidence supports Commerce’s determination that Sunpreme’s solar modules are not 

excluded thin films.

In sum, we agree with the CIT that substantial evidence supports Commerce’s final scope ruling. Sunpreme’s 

solar modules are covered by the Orders.

II

We now turn to the cross-appeal filed by the United 

States and SolarWorld which is the subject of the petition 

for rehearing en banc, asking us to reinstate the portion of 

Commerce’s instructions to Customs held invalid by the 

CIT.

Commerce issued the Orders in December 2012. Despite the Orders, Sunpreme identified its imported modules as type 01 entries, meaning that the entries were not 

subject to antidumping and countervailing duties. In April 

2015, however, Customs began to question Sunpreme’s 

identification of its products as type 01 entries. Customs 

determined that the products were in fact covered by the 

Orders and, beginning on April 20, 2015, directed Sunpreme to instead enter its products as type 03 entries, 

which require payment of antidumping and countervailing 

duty cash deposits. In the hopes of avoiding this treatment, 

Sunpreme requested a scope inquiry to determine whether 

its products were in fact within the scope of the Orders. 

Commerce initiated a formal scope inquiry on December 

30, 2015. At the conclusion of the scope inquiry, Commerce 

determined that Sunpreme’s modules did in fact fall within 
SUNPREME INC. v. UNITED STATES 25

the scope of the Orders. Accordingly, Commerce instructed 

Customs to continue the suspension of liquidation and collection of cash deposits for Sunpreme modules, which had 

begun in April 2015. Sunpreme challenged those instructions at the CIT.

The CIT vacated Commerce’s instructions in-part,

holding that the suspension of liquidation could not lawfully cover modules entered prior to the initiation of a formal scope inquiry on December 30, 2015. A panel majority 

of this court agreed. Panel Opinion, 924 F.3d at 1215–16. 

The United States now asks us en banc to reverse that conclusion, and to reimpose the portion of Commerce’s instructions suspending liquidation for entries between April 20, 

2015 and December 30, 2015.

A

Under the clear and unambiguous terms of the relevant regulation, 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 the final scope ruling. 19 C.F.R. 

§ 351.225(l)(1) (emphasis added). When Commerce issues 

a final scope ruling “to the effect that the product in question is included within the scope of the order, any suspension of liquidation under paragraph (l)(1) or (l)(2) will 

continue.” 19 C.F.R. § 351.225(l)(3) (emphasis added). If

there has been no previous suspension of liquidation, and 

the final scope ruling is that the product is covered by the 

order, then Commerce is instead commanded by subsection 

(l)(3) to instruct Customs to suspend liquidation and collect 

the requisite cash deposit “for each unliquidated entry of 

the product entered, or withdrawn from warehouse, for 

consumption on or after the date of initiation of the scope 

inquiry.” Id. (emphasis added). Alternatively, if the final 

scope ruling is that the product in question was not within 

the scope of the order, subsection (l)(3) provides that Commerce will order any previous suspension of liquidation 
26 SUNPREME INC. v. UNITED STATES

ended and instruct Customs to refund cash deposits already made or release any bonds relating to the product. 

Customs began suspending liquidation of Sunpreme’s 

subject solar modules on April 20, 2015, prior to the initiation of the scope inquiry. Under a straightforward application of subsection (l)(1), that suspension of liquidation 

“continued” through the duration of the scope inquiry. 

When Commerce issued its final scope ruling confirming 

that the modules were within the scope of the Orders, subsection (l)(3) required that the existing “suspension of liquidation under paragraph (l)(1) . . . will continue.” 

Consistent with that regulation, Commerce instructed that 

Customs should continue its suspension of liquidation for 

entries dating back to April 20, 2015. As a result, Sunpreme was required to pay antidumping duties for products

falling within the Orders beginning with the initial suspension of liquidation on April 20, 2015.

The CIT, however, did not reach this result. Instead, 

it held that the suspensions of liquidation beginning in 

April of 2015 were ultra vires acts by Customs because they 

required Customs to interpret ambiguous orders, and 

therefore were of no legal effect. Sunpreme II CIT, 256 

F. Supp. 3d at 1292. Citing 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), the CIT concluded that Customs “lacks the authority 

to interpret ambiguous scope language.” Sunpreme II CIT, 

256 F. Supp. 3d at 1292. Therefore, the CIT held, no valid

suspensions of liquidation existed that could be “continued” 

during the scope inquiry under subsection (l)(1). With no 

legally effective ongoing suspensions of liquidation, Commerce would have instead faced the situation under subsection (l)(3) “where there has been no suspension of 

liquidation.” In that instance, Commerce’s instructions to 

Customs would be limited to products “entered on or after 

the date of initiation of the scope inquiry,” here December 

30, 2015. Based on its interpretation of our caselaw, the 
SUNPREME INC. v. UNITED STATES 27

CIT vacated the portion of Commerce’s instructions that 

would have continued the suspension of liquidation for 

modules entered prior to that date.

The question before us, then, is whether Customs acted 

within its authority when it initially interpreted the Orders to cover Sunpreme’s solar modules and began suspension of liquidation. If it did, Sunpreme is required to pay 

antidumping and countervailing duties on products imported on or after April 20, 2015 (when Customs first determined that Sunpreme’s modules were within the scope 

of the Orders and began collecting cash deposits). However, if Customs exceeded its authority when it interpreted 

the Orders, then Sunpreme is only required to pay duties 

on products imported on or after December 30, 2015 (the 

date the scope inquiry was initiated). Sunpreme would 

thus be refunded its cash deposits for modules imported between April 20 and December 30, despite our conclusion in 

Part I that Sunpreme’s modules are within the scope of the 

Orders. 

For the reasons explained below, we break from the 

CIT and the prior panel opinion in this case, and now hold 

that Customs did not exceed its authority by ordering the 

suspension of liquidation based on its interpretation of the 

Orders. Customs has a statutory responsibility to fix the 

amount of duty owed on imported goods. See 19 U.S.C. 

§ 1500(c). As part of that responsibility, Customs is both 

empowered and obligated to determine in the first instance 

whether goods are subject to existing antidumping or countervailing duty orders. While Customs may not expand or 

alter the scope of such orders, its authority and responsibility to determine whether they apply does not dissipate

simply because an order lacks perfect clarity. Contrary to 

the CIT’s conclusion, Customs’s yes-or-no answer to 

whether an order applies does not invade the interpretive 

province of Commerce. Any other result would significantly limit Customs’s ability to perform its statutory role
28 SUNPREME INC. v. UNITED STATES

and would encourage gamesmanship by importers hoping 

to receive the type of windfall that Sunpreme seeks here. 

B

The Tariff Act of 1930 requires Commerce to impose 

two types of duties on imports of goods that may injure domestic industries. When “foreign merchandise is being, or 

is likely to be, sold in the United States at less than its fair 

value,” Commerce imposes an antidumping duty. 

19 U.S.C. § 1673. Similarly, when a foreign government 

subsidizes the manufacture or export of goods imported or 

sold into the United States, Commerce imposes a countervailing duty. See 19 U.S.C. § 1671.

When goods are imported into the United States, Customs is obligated to “fix the final amount of duty to be paid 

on such merchandise and determine any increased or additional duties, taxes, and fees due.” 19 U.S.C. § 1500(c). 

That obligation necessarily requires Customs to make a determination as to whether existing antidumping or countervailing duty orders apply to the subject goods. See 

Mukand Int’l, Ltd. v. U.S., 502 F.3d 1366, 1367 (Fed. Cir. 

2007) (noting that after Commerce has issued an antidumping duty order “Customs is thereafter responsible for 

applying and enforcing the order”); Xerox, 289 F.3d at 794 

(“When merchandise may be subject to an antidumping 

duty order, Customs makes factual findings to ascertain 

what the merchandise is, and whether it is described in an 

order.”). Neither section 1500 nor any related provision 

limits that obligation to the circumstance in which the order is clear and unambiguous. To the contrary, such a limitation would prevent Customs from performing its 

statutory obligations to “fix the final amount of duty” and 

“collect any increased or additional duties and fees due.” 

19 U.S.C. §§ 1500(c), 1505(b). Indeed, Customs is legally 

prohibited from releasing goods that are subject to an antidumping or countervailing duty order, ambiguous or not, 

unless the importer pays a cash deposit. See 19 U.S.C. 
SUNPREME INC. v. UNITED STATES 29

§ 1671h (“[F]or all entries . . . of merchandise subject to a 

countervailing duty . . . no customs officer may deliver merchandise of that class or kind to the person by whom or for 

whose account it was imported unless that person . . . deposits with the appropriate customs officer an estimated 

countervailing duty”); § 1673g(a) (providing the same for 

antidumping duties). Nothing in this statutory scheme 

suggests that Customs may simply ignore ambiguous orders when it “fix[es] the final amount of duty” owed on 

goods. 19 U.S.C. § 1500(c).

Our conclusion is further bolstered by section 1514(b), 

which provides that “determinations of the Customs Service,” including whether goods fall within the scope of an 

antidumping or countervailing duty order, “are final and 

conclusive” unless appealed to Commerce. 19 U.S.C. 

§ 1514(b); see also Fujitsu Ten Corp. v. United States, 957 

F. Supp. 245, 248 (Ct. Int’l Trade 1997) (Wallach, J.) (“The 

statute recognizes Customs makes the initial determination that an existing antidumping order applies to a specific entry of merchandise. The statute states that such a 

decision is ‘final and conclusive’ unless it is appealed by petition to Commerce.” (citations omitted)). We see little 

room for an interpretation in which Customs is tasked by 

section 1500 to “fix the final amount of duty,” and by section 1514 to do so “final[ly] and conclusive[ly],” but is implicitly prohibited from doing so in cases that are less than 

perfectly clear.

Any other result would also be inconsistent with 

19 C.F.R. § 351.225(l). That regulation expressly contemplates a scenario in which products are “subject to suspension of liquidation” at the direction of Customs, but 

Commerce later initiates a scope inquiry and issues a “final 

scope ruling [] to the effect that the product in question is 

not included within the scope of the order” (i.e., that Customs’s initial determination was incorrect). See id. Such a 

regulation would be largely unnecessary if Customs was 
30 SUNPREME INC. v. UNITED STATES

only empowered to suspend liquidation where orders were 

clear and unambiguous.

C

We recognize that the CIT’s conclusion and Sunpreme’s

arguments are rooted not in the language of any statute or 

regulation, but in our caselaw. As discussed below, however, we do not agree that either of the cases relied upon 

prohibit Customs from suspending liquidation based on an 

ambiguous order. 

The CIT, relying on AMS Associates., Inc. v. United 

States, 737 F.3d 1338 (Fed. Cir. 2013), stated 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.”

Sunpreme II CIT, 256 F. Supp. 3d at 1292 (quoting AMS, 

737 F.3d at 1344) (emphasis original to AMS). Applying 

that holding to this case, however, contorts the meaning of 

the terms “not subject to an existing order” and “retroactive” in a manner that runs contrary to AMS itself. 

In AMS, Customs made an initial determination that 

the goods in question were “not subject to the antidumping 

duty order.” Id. at 1340. As a result, “those entries were 

consequently not subject to antidumping deposits.” Id. In 

a later administrative review, Commerce “clarified” the 

scope of the order, to the effect that the goods fell within its 

scope. As a result, Commerce issued instructions to suspend liquidation, retroactively and for the first time, of 

goods entered prior to the review and never previously suspended. Id. at 1343, 1344. 
SUNPREME INC. v. UNITED STATES 31

AMS is factually distinct from the present case in two 

meaningful ways. First, in AMS, Customs originally determined that the goods were not within the scope of the ambiguous order. Here, Customs found (correctly) that the 

goods were within the scope of the order. The CIT correctly 

noted that AMS’s holding is limited to cases “where an unclear order renders a product not subject to an existing order.” Sunpreme II CIT, 256 F. Supp. 3d at 1292. But it 

would be error to include this case—in which the products

were found to be subject to an existing order, even if that 

order was unclear—in that same category. 

Second and more importantly, as a result of the original determination, Customs had not suspended liquidation 

in AMS. Despite that, Commerce ordered the suspension 

of liquidation, retroactive to even before the initiation of 

the scope inquiry. As we noted in AMS, that was a clear 

violation of 19 C.F.R. § 351.225(l)(2). Commerce may not 

suspend liquidation in a manner that causes merchandise 

that previously entered not subject to duties to be retroactively brought within the scope of duty orders. But that 

rule has no bearing on this case, where the goods in question entered subject to duties, have always been subject to 

duties, and will now continue to be subject to duties. There 

is nothing “retroactive” about continuing to suspend liquidation where liquidation has already been suspended for 

the entire relevant time period. 

Indeed, subsection (l)(3) distinguishes exactly these 

two scenarios. When Commerce rules that a product falls 

within the scope of an order, but “there has been no [previous] suspension of liquidation,” a new suspension must be 

ordered beginning only “on or after the date of initiation of 

the scope inquiry.” 19 C.F.R. § 351.225(l)(3). Anything else 

would be impermissibly retroactive, as we acknowledged in 

AMS. But where, as here, a suspension that predates the 

scope inquiry already exists, subsection (l)(3) instead dictates that the existing suspension “will continue.” Id. No 
32 SUNPREME INC. v. UNITED STATES

retroactivity concerns are raised because no new suspension occurs. 

Any other outcome would run counter to the principles 

set forth in AMS itself. The AMS court rejected an interpretation of the scope inquiry regulations that “would permit importers to potentially avoid paying antidumping 

duties on past imports by asserting unmeritorious claims 

that their products fall outside the scope of the original order.” 737 F.3d at 1344. Yet the CIT’s analysis here leads 

to a similar result. Under the CIT’s view of AMS, Sunpreme would be entitled to a refund of cash deposits and 

duties paid on goods entered between April and December 

2015, as a result of its unmeritorious challenge to Commerce, even though Customs, Commerce, the CIT, and this 

court have all now concluded that Sunpreme’s modules fall 

within the scope of the Orders.

The CIT separately relied on Xerox Corp. v. United 

States, 289 F.3d 792 (Fed. Cir. 2002) to conclude that Sunpreme’s “goods were outside the scope of the Orders until 

Commerce interpreted the ambiguous scope language . . . 

because [Customs] lacks the authority to interpret ambiguous scope language.” Sunpreme II CIT, 256 F. Supp. 3d 

at 1292. We do not agree. 

Xerox did not address Customs’s authority to take or 

not take any interpretive action. Rather, it presented a 

question of the Court of International Trade’s jurisdiction: 

whether, under the facts of that case, the proper method of 

appeal was to protest to Customs, or to request a scope determination by Commerce. 289 F.3d at 793. Notably, 

Xerox did not concern an ambiguous order at all. As this 

court made clear in that case, “the scope of the order is not 

in question . . . the belts at issue are facially outside the 

scope of the antidumping duty order.” Id. at 795. 

It is true that, in summarizing the scope inquiry process, this court in Xerox described Customs’s authority to

“fix[] the amount of duty to be paid” as “ministerial.” Id. at 
SUNPREME INC. v. UNITED STATES 33

794 (citing 19 U.S.C. § 1500(c)). We used the same term in 

Mitsubishi Electronics. America, Inc. v. United States, 44 

F.3d 973, 977 (Fed. Cir. 1994), in distinguishing Customs’s 

ministerial authority from Commerce’s broader authority, 

noting that Customs may not “modify Commerce’s determinations, their underlying facts, or their enforcement.” 

Id. (quoting Royal Bus. Machs., Inc. v. United States, 507 

F. Supp. 1007, 1014 n.18 (Ct. Int’l Trade 1980) (internal 

quotations and modifications omitted)). But we did not 

hold or state in Xerox or Mitsubishi that the “ministerial” 

duty of Customs excludes “interpret[ing] ambiguous scope 

language,” Sunpreme II CIT at 1292, for the limited but 

essential purpose of making the daily, yes-or-no decisions

about whether a particular product meets the test of an antidumping or countervailing duty order. The term “ministerial” often is used to contrast the presence of certain 

kinds of discretion or judgment. See, e.g., Dep’t of Homeland Sec. v. MacLean, 135 S. Ct. 913, 922 (2015); Kendall 

v. Stokes, 44 U.S. (3 How.) 87, 98 (1845); Black’s Law Dictionary 1192 (11th ed. 2019). We need only say that we did 

not use the term in Xerox or Mitsubishi so narrowly as to 

exclude the individual product-by-product application decisions Customs is required by law to make, which do not 

invoke the kind of deference-deserving, boundary-defining

authority reserved to Commerce when it interprets or clarifies an order during scope proceedings. 

Customs is tasked with determining, for every imported product, whether the product falls within the scope 

of an antidumping or countervailing duty order. 19 U.S.C. 

§ 1500(c). That necessarily entails evaluating both the 

product and the order. Xerox recognizes as much. 289 F.3d 

at 794 (“When merchandise may be subject to an antidumping duty order, Customs makes factual findings to ascertain what the merchandise is, and whether it is 

described in an order. If applicable, Customs then assesses 

the appropriate antidumping duty.” (internal citation omitted)). In each instance, Customs is statutorily tasked with 
34 SUNPREME INC. v. UNITED STATES

answering a yes-or-no question as to whether the order applies, in order to fix the duty owed. When the order is ambiguous, Customs is nonetheless called upon to answer the 

question. As we have described, “[w]hen Customs believes

an antidumping duty order covers a particular imported 

good, it suspends liquidation of that entry.” Mukand, 

502 F.3d at 1367 (emphasis added). Answering that question does not transform Customs’s yes-or-no question into 

an interpretive act that would “modify Commerce’s determinations” or otherwise impinge upon Commerce’s authority to issue and set the scope of duty orders.

Finally, we address the CIT and Sunpreme’s citations 

to Xerox, which in turn cites Sandvik Steel Co. v. United 

States, 164 F.3d 596 (Fed. Cir. 1998), for the proposition 

that “Commerce should in the first instance decide whether 

an antidumping order covers particular products.” Sunpreme II CIT at 1293 (citing Xerox, 289 F.3d at 794–95);

Appellant’s Response to Petition for Rehearing, at 11. That 

out-of-context citation is inapplicable here. The question 

presented in Sandvik was whether an importer has 

properly exhausted its administrative remedies when it declines to file a scope inquiry with Commerce, but instead 

files a protest with Customs and in turn appeals to the CIT. 

This court held that such an approach was impermissible, 

in part because it effectively circumvented any ruling from 

Commerce, which “should in the first instance” rule on the 

scope of an antidumping duty order. Sandvik, 164 F.3d at 

602. In other words, Sandvik stands for the proposition 

that Commerce should evaluate the scope of an order before 

the issue reaches the CIT. It does not hold that any interpretation by Customs prior to Commerce conducting a 

scope inquiry is invalid. Indeed, as Xerox notes, liquidation 

was suspended in Sandvik despite the fact that “it was unclear whether the goods at issue were within the scope of 

antidumping duty orders.” 289 F.3d at 795 (citing 

Sandvik, 164 F.3d at 598–99). Sandvik did not disapprove 

of suspensions based on unclear orders. 
SUNPREME INC. v. UNITED STATES 35

For the reasons discussed above, neither AMS nor 

Xerox controls the outcome of this case. Under a proper 

reading, neither is contrary to our current holding that 

Customs has the authority to suspend liquidation of goods 

when it determines that the goods fall within the scope of 

an ambiguous antidumping or countervailing duty order. 

In the interest of clarity, however, to the extent any portions of AMS or Xerox could be read as contrary to this holding, those portions are hereby overruled.

D

In addition to being consistent with the relevant statutes, regulations, and caselaw, our holding that Customs 

may suspend liquidation of goods based on ambiguous duty 

orders elides significant policy concerns that would be created by the alternative outcome. Our decision in this case 

is driven by the law, and not by policy considerations. But, 

when a policy is declared in a statute, we must consider 

and “follow the policy Congress has prescribed.” SAS Inst., 

Inc. v. Iancu, 138 S. Ct. 1348, 1358 (2018). Sunpreme’s limited view of Customs’s authority runs afoul of the policy 

declared in the Tariff Act, which instructs the government 

to “provide, to the maximum extent practicable, for the protection of revenue.” 19 U.S.C. § 1484(a)(2)(C); see also 

Guangdong Wireking Housewares & Hardware Co., Ltd v. 

U.S., 745 F.3d 1194, 1203 (Fed. Cir. 2014) (“The congressional intent behind the enactment of countervailing duty 

and antidumping law generally was to create a civil regulatory scheme that remedies the harm unfair trade practices cause.”); see also id. (noting that the statutory scheme 

has a “curative purpose” and a “remedial intent”). 

Barring Customs from suspending liquidation based on 

ambiguous orders would create perverse incentives for importers, contrary to the remedial and revenue-driven policy 

of the statute. The Orders went into effect in December 

2012, and imposed antidumping and countervailing duties 

on CSPV cells “having a p/n junction formed by any means, 
36 SUNPREME INC. v. UNITED STATES

whether or not the cell has undergone other processing.” 

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

at 73,018–19. Contrary to the Orders, Sunpreme entered 

its modules without depositing duties until April 2015, 

when Customs determined that the modules fell within the 

scope of the Orders and ordered the suspension of liquidation. Since then, Commerce, the CIT, a unanimous panel 

of this court, and now an en banc majority of this court have 

all also concluded that Sunpreme’s modules contain “a p/n 

junction formed by any means.” Yet, if Customs could not 

have lawfully suspended liquidation, Sunpreme would now

receive a refund for duties it paid between April 2015 and 

December 2015.

CONCLUSION

For the reasons stated above, we affirm the CIT’s conclusion that Commerce’s final scope ruling placing Sunpreme’s solar products within the ambit of the Orders is 

supported by substantial evidence. We reverse, however, 

the CIT’s determination that Commerce’s instructions to 

Customs are invalid to the extent that they require continuation of suspension of liquidation and collection of cash 

deposits on Sunpreme’s solar modules entered or withdrawn from warehouse for consumption before Commerce 

initiated its scope inquiry on December 30, 2015. Commerce’s liquidation instructions are reinstated in full.

AFFIRMED-IN-PART and REVERSED-IN-PART

COSTS

Costs to the United States and SolarWorld.