Slip Op. 15-136
UNITED STATES COURT OF INTERNATIONAL TRADE
KYOCERA SOLAR, INC. AND
KYOCERA MEXICANA S.A. DE C.V.,
Plaintiff,
v. Before: Nicholas Tsoucalas,
Senior Judge
UNITED STATES,
Court No. 15-00084
Defendant,
PUBLIC VERSION
AND
SOLARWORLD AMERICAS, INC.,
Defendant-Intervenor.
OPINION
[Plaintiff’s Motion for Judgment Upon the Agency Record is denied.
The International Trade Commission’s determination and decision
are affirmed.]
Dated:December 7, 2015
J. Kevin Horgan and Alexandra H. Salzman, DeKieffer & Horgan, PLLC,
of Washington, DC, for Plaintiff.
Mary Jane Alves, Office of the General Counsel, U.S. International
Trade Commission, of Washington, DC, for Defendant. With her on
the brief were Andrea C. Casson, Assistant General Counsel for
Litigation, and Dominic L. Bianchi, General Counsel.
Timothy C. Brightbill, Laura El-Sabaawi, Usha Neelakantan, Wiley
Rein, LLP, of Washington DC, for Defendant-Intervenor.
Tsoucalas, Senior Judge: This case comes before the Court
upon Plaintiff’s, Kyocera Solar Inc. (“KSI”) and Kyocera Mexicana
Court No. 15-00084 Page 2
S.A. DE C.V. (“KMX”) (collectively “Kyocera”), Motion for Judgment
upon the Agency Record challenging the International Trade
Commission’s (“ITC” or “Commission”) decision in Certain
Crystalline Silicon Photovoltaic Products From China and Taiwan,
80 Fed. Reg. 7,495 (ITC Feb. 10, 2015) (“ITC Injury Determination”)
and Certain Crystalline Silicon Photovoltaic Products from China
and Taiwan, USITC Pub. 4519 Inv. Nos. 701-TA-511 and 731-TA-1246-
1247 (Feb. 2015) (“ITC Decision”). Defendant ITC and Defendant-
Intervenor Solarworld Americas Inc. (“Solarworld”) oppose
Plaintiff’s motion. For the following reasons, the court denies
the Plaintiff’s motion and affirms the ITC Injury Determination
and ITC Decision.
BACKGROUND
Kyocera is a producer and supplier of solar energy
modules. Mem. in Supp. Of Mot. for J. Upon the Agency R. (“Pl.’s
Br.”) at 2, July 13, 2015, ECF No. 23. Kyocera International
(“KII”) was established in 1969 as a holding company for Kyocera
Corporation’s North American group of companies. Id. KSI is KII’s
North American solar products subsidiary headquartered in
Scottsdale, Arizona. Id.
KMX is a maquiladora manufacturing plant located in
Tijuana, Mexico. Id. In 2004, KMX began producing solar modules
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in Mexico for KSI. Id. In 2010, KMX began incorporating solar cells
produced in Taiwan into some of the solar modules KMX produced in
Mexico. Id. The Taiwanese solar cells were connected in Mexico
to form solar modules. Id.
On December 31, 2013, Solarworld filed a petition
alleging that certain crystalline silicon photovoltaic (“CSPV”)
products 1 imported from Taiwan were being dumped in the United
States. Pl.’s Br. at 3. The petition also alleged that CSPV
products imported from China were being dumped and unfairly
subsidized. Id.
The Department of Commerce (“Commerce”) initiated an
antidumping investigation of CSPV products from Taiwan and China
on January 29, 2014. Certain Crystalline Silicon Photovoltaic
Products From the People’s Republic of China and Taiwan, 79 Fed.
Reg. 4,661 (Dep’t Commerce Jan. 29, 2014) (Initiation of
Antidumping Duty Investigations). Commerce described the products
subject to investigation in the following manner:
The merchandise covered by these
investigations is crystalline silicon
photovoltaic cells, and modules, laminates
and/or panels consisting of crystalline
silicon photovoltaic cells, whether or not
partially or fully assembled into other
products, including building integrated
materials. For purposes of these
1 CSPV products include solar cells and modules.
Court No. 15-00084 Page 4
investigations, subject merchandise also
includes modules, laminates and/or panels
assembled in the subject country consisting of
crystalline silicon photovoltaic cells that
are completed or partially manufactured within
a customs territory other than that subject
country, using ingots that are manufactured in
the subject country, wafers that are
manufactured in the subject country, or cells
where the manufacturing process begins in the
subject country and is completed in a non-
subject country . . . .
Also excluded from the scope of these
investigations are any products covered by the
existing antidumping and countervailing duty
orders on crystalline silicon photovoltaic
cells, whether or not assembled into modules,
from the People’s Republic of China.
Id. at 4,667. The scope description included modules produced in
Taiwan using cells produced elsewhere, but it did not include solar
modules produced in non-subject countries such as Mexico. Id.
On September 15, 2014, Kyocera filed a request asking
Commerce to exclude solar modules produced in Mexico. Request for
Scope Determination Kyocera Conf. App. Attach. E, Sept. 15, 2014,
ECF No. 28. Nevertheless, on December 23, 2014, Commerce decided
to include solar modules produced in Mexico using Taiwanese cells
within the scope of its investigation: “[m]odules, laminates, and
panels produced in a third-country from cells produced in Taiwan
are covered by this investigation.” Certain Crystalline Silicon
Photovoltaic Products From Taiwan, 79 Fed. Reg. 76,966, 76,968
Court No. 15-00084 Page 5
(Dep’t Commerce Dec. 23, 2014) (Final Determination of Sales at
Less Than Fair Value). Using this scope definition provided by
Commerce, the ITC determined that an industry in the United States
is materially injured by reason of imports of CSPV products from
Taiwan. ITC Injury Determination, 80 Fed. Reg. at 7,495.
Kyocera subsequently filed this action disputing the
ITC’s affirmative injury determination. Compl. at ¶¶ 16-25, Mar.
20, 2015, ECF No. 6.
JURISDICTION AND STANDARD OF REVIEW
The Court has jurisdiction over this action pursuant to
section 201 of the Customs Courts Act of 1980, 28 U.S.C. § 1581(c)
(2012), and Sections 516A(a)(2)(A)(i)(II) and 516A(a)(2)(B)(i) of
the Tariff Act of 1930, 19 U.S.C. § 1516a(a)(2)(A)(i)(II) (2012), 2
19 U.S.C. § 1516a(a)(2)(B)(i).
In an action challenging a final injury determination by
the ITC, the Court shall hold unlawful any determination found to
be unsupported by substantial evidence on the record, or otherwise
not in accordance with law. 19 U.S.C. § 1516a(b)(l)(B)(i).
Substantial evidence means “more than a mere scintilla”
of “such relevant evidence as a reasonable mind might accept as
2 Further citations to the Tariff Act of 1930 are to the relevant
portions of Title 19 of the U.S. Code, 2012 edition, and all
applicable amendments thereto, unless otherwise noted.
Court No. 15-00084 Page 6
adequate to support a conclusion.” Universal Camera Corp. v. NLRB,
340 U.S. 474, 477 (1951)(quoting Consol. Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)). To determine if substantial evidence
exists, the court reviews the record as a whole. Id. at 488. “The
substantiality of evidence must take into account whatever in the
record fairly detracts from its weight.” Id. The mere fact that
it may be possible to draw two inconsistent conclusions from the
record does not prevent the determination from being supported by
substantial evidence. Am. Silicon Techs. v. United States, 261
F.3d 1371, 1376 (Fed. Cir. 2001); see also Consolo v. Fed. Mar.
Comm'n, 383 U.S. 607, 620 (1966).
Under the first step of Chevron U.S.A. Inc. v. Nat. Res.
Def. Council Inc., 467 U.S. 837, 842 (1984), when a court reviews
an agency’s construction of the statute which it administers, the
first question is whether Congress has directly spoken to the
precise question at issue. If the intent of Congress is clear,
that is the end of the matter; for the court, as well as the
agency, must give effect to the unambiguously expressed intent of
Congress. Id. at 842-43. “To ascertain . . . Congress[‘] . . .
intention . . . [the Court] employ[s] the ‘traditional tools of
statutory construction.’” Timex V.I., Inc. v. United States, 157
F.3d 879, 882 (Fed. Cir. 1998) (citing Chevron, 467 U.S. at 843
Court No. 15-00084 Page 7
n.9.) “The first and foremost ‘tool’ . . . is the statute's text,
giving it its plain meaning . . . [I]f the text answers the
question, that is the end of the matter.” Id. (citing VE Holding
Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574, 1579 (Fed. Cir.
1990)). “Beyond the statute's text, those ‘tools’ include the
statute’s structure, canons of statutory construction, and
legislative history.” Id. If the statute is silent or ambiguous
with respect to the specific issue, the question for the court is
whether the agency’s answer is based on a permissible construction
of the statute. Chevron, 467 U.S. at 843. “‘To survive judicial
scrutiny, an agency's construction need not be the only reasonable
interpretation or even the most reasonable interpretation.’”
Usinor v. United States, 26 CIT 767, 771 (2002) (not reported in
F.Supp.2d) (citing Koyo Seiko Co. v. United States, 36 F.3d 1565,
1570 (Fed. Cir. 1994). “Thus, when faced with more than one
reasonable statutory interpretation, ‘a court must defer to an
agency's reasonable interpretation . . . even if the court might
have preferred another.’” U.S. Steel Grp. v. United States, 225
F.3d 1284, 1287 (Fed. Cir. 2000) (quoting NSK Ltd. v. United
States, 115 F.3d 965, 973 (Fed. Cir. 1997)).
Court No. 15-00084 Page 8
1. Whether Commerce improperly used its authority to expand the
geographic reach of the antidumping order.
Kyocera argues that Commerce improperly used its
authority to expand the geographic reach of the antidumping order
by defining the scope of merchandise covered to include modules
produced in Mexico using Taiwanese cells. Pl.’s Br. at 10.
Kyocera maintains that Commerce could have conducted a
circumvention inquiry under 19 U.S.C. § 1677j(b) and 19 C.F.R. §
351.225(h) (2015), and consulted with the ITC regarding the impact
of a circumvention finding on the injury analysis. Id. The court
declines to address this argument, because it is not properly
before the court. This case concerns the Commission’s affirmative
material injury determination regarding CSPV from Taiwan. ITC
Injury Determination, 80 Fed. Reg. at 7,495; ITC Decision.
Commerce’s determinations are the subject of separate litigation.
Thus, the Court will not address Commerce’s determinations here.
2. The ITC’s Negligibility Analysis
Under the statute, if the ITC determines that imports of
the subject merchandise are negligible, its investigation into
whether there is injury shall be terminated. 19 U.S.C. §
1673d(b)(1). Imports from a country are considered negligible if
such imports account for less than 3% of the volume of all such
merchandise imported into the U.S. in the most recent twelve month
Court No. 15-00084 Page 9
period for which data are available that precedes the filing of
the petition or the initiation of the investigation. Id. §
1677(24)(A)(i). However, imports are not negligible if the
aggregate volume of imports of the merchandise from all countries
with respect to which investigations were initiated on the same
day exceeds 7% of the volume of all such merchandise imported into
the U.S. during the applicable twelve month period. Id. §
1677(24)(A)(ii).
Kyocera argues that the ITC’s injury determination was
neither supported by substantial evidence nor in accordance with
law, because imports of CSPV from Mexico were negligible. Pl.’s
Br. at 11. Kyocera appears to acknowledge that the statute centers
the negligibility analysis on the imports of the subject
merchandise with respect to which Commerce has made an affirmative
determination. Id. at 15. Kyocera maintains that Commerce made an
affirmative determination with respect to solar products from
Mexico when it deemed Mexican products to be subject merchandise.
Id.
Kyocera points out that the definition of negligibility
is not limited to countries named in the petition. Id.
Additionally, Kyocera questions the Commission’s deference to
Commerce’s scope determination:
Court No. 15-00084 Page 10
[a]llowing the Commission to wash its hands of
the matter by deferring to the Commerce
Department’s unlawful scope determination
creates a perfect Catch 22. If the petitioner
had filed a dumping petition against solar
products from Mexico as it could have done,
the petition would have resulted in a negative
injury finding . . . Likewise, if the
petitioner had requested a circumvention
inquiry with respect to KSI’s solar products
from Mexico, there would not have been a
finding of circumvention because KSI had
established its Mexican production facilities
long before any antidumping cases were filed,
and also because the Commission would have
been asked to make an assessment of the [sic]
whether such products were a cause of injury.
Id. at 15-16. Kyocera’s argument is flawed. Kyocera ignores the
fact that Commerce’s investigation defines the scope of the ITC’s
analysis. 19 U.S.C. § 1673d (a)(1), (b)(1); See USEC Inc. v.
United States, 34 Fed.Appx. 725, 730 (Fed. Cir. 2002) (“The
merchandise that is subject to the ITC's analysis is the ‘subject
merchandise’ as to which Commerce has initiated an antidumping
investigation.”) Congress’ intent is clear in this regard. See
Chevron, 467 U.S. at 842-43. Here, Commerce determined that “the
solar modules produced by Kyocera in Mexico using Taiwanese cells
are considered Taiwanese in origin, and are within the scope of
this [Taiwanese] investigation.” Certain Crystalline Silicon
Photovoltaic Products from Taiwan: Issues and Decision Memorandum
for the Final Determination of Sales at Less Than Fair Value, at
Court No. 15-00084 Page 11
23, A-583-853,(Dec. 15, 2014). Thus, the ITC was bound by
Commerce’s determination and tasked with examining whether imports
from Taiwan, including modules from Mexico, were negligible. See
USEC, 34 Fed.Appx. at 730. Accordingly, the ITC correctly declined
to conduct a separate negligibility analysis with Mexico as the
country of origin.
According to data available for the most recent twelve
month period prior to the filing of the petitions, subject imports
of CSPV products from Taiwan were [[ ]]% of total CSPV imports
and subject imports from China were [[ ]]% of total CSPV imports.
Def.’s App. Prehearing Br. of Taiwan Photovoltaic Industry
Association at Ex. 7, Dec. 1, 2014, ECF No. 41. Ostensibly, these
figures exceed the 3% and 7% thresholds. 19 U.S.C. §
1677(24)(A)(i),(ii). Therefore, the Commission reasonably
concluded that the imports were not negligible.
3. Conclusion
For the foregoing reasons, the court denies the
Plaintiff’s motion and affirms the ITC Injury Determination and
ITC Decision. Judgment will enter accordingly.
Court No. 15-00084 Page 12
/s/ Nicholas Tsoucalas
Nicholas Tsoucalas
Senior Judge
Dated: December 7, 2015
New York, New York