United States Court of Appeals
for the Federal Circuit
______________________
KYOCERA SOLAR, INC., KYOCERA MEXICANA
S.A. DE C.V.,
Plaintiffs-Appellants
v.
UNITED STATES INTERNATIONAL TRADE
COMMISSION, SOLARWORLD AMERICAS, INC.,
Defendants-Appellees
______________________
2016-1348
______________________
Appeal from the United States Court of International
Trade in No. 1:15-cv-00084-NT, Senior Judge Nicholas
Tsoucalas.
______________________
Decided: December 15, 2016
______________________
JAMES KEVIN HORGAN, DeKieffer & Horgan, PLLC,
Washington, DC, argued for plaintiffs-appellants. Also
represented by JOHN J. KENKEL, GREGORY S. MENEGAZ,
ALEXANDRA H. SALZMAN.
MARY JANE ALVES, Office of the General Counsel,
United States International Trade Commission, Washing-
ton, DC, argued for defendant-appellee United States
International Trade Commission. Also represented by
ANDREA C. CASSON, DOMINIC L. BIANCHI.
2 KYOCERA SOLAR, INC. v. ITC
TIMOTHY C. BRIGHTBILL, Wiley Rein, LLP, Washing-
ton, DC, argued for defendant-appellee SolarWorld Amer-
icas, Inc. Also represented by STEPHANIE MANAKER BELL,
TESSA V. CAPELOTO, LAURA EL-SABAAWI, DERICK HOLT,
USHA NEELAKANTAN, MAUREEN E. THORSON.
______________________
Before DYK, O’MALLEY, and STOLL, Circuit Judges.
STOLL, Circuit Judge.
Kyocera Solar Inc. and Kyocera Mexicana S.A. de C.V.
(collectively, “Kyocera”) appeal a final determination by
the U.S. Court of International Trade (“CIT”). The CIT
reviewed and affirmed the International Trade Commis-
sion’s (“Commission”) determination that the statutory
text did not support Kyocera’s proposed interpretation of
the statute. Because we agree that the plain meaning of
the statute forecloses Kyocera’s proposed interpretation,
we affirm.
BACKGROUND
This case concerns solar modules (i.e., solar panels)
that incorporate crystalline silicon photovoltaic (“CSPV”)
cells from Taiwan. CSPV cells convert sunlight into
electricity using mono- or multi-crystalline silicon cells.
The CSPV cells are strung together, sealed, laminated,
and framed to make solar modules, also known as CSPV
modules. CSPV cells are the main electricity-generating
component of solar modules.
Kyocera produces and manufactures solar modules
abroad and imports them for sale in the United States.
The solar modules at issue in this case are ultimately
assembled in and imported from Mexico but incorporate
Taiwanese CSPV cells. These solar modules were subject
to an antidumping duty investigation into CSPV products
from China and Taiwan. SolarWorld Industries America,
KYOCERA SOLAR, INC. v. ITC 3
Inc., an American producer of CSPV cells and modules,
had filed antidumping and countervailing duty petitions
alleging material injury and threat of material injury to a
domestic industry by CSPV product imports from China
and Taiwan.
The Department of Commerce (“Commerce”) defined
the investigation’s scope to include cells and modules
produced in Taiwan and certain modules “completed or
partially manufactured” in other countries. The relevant
portion of Commerce’s scope definition is reproduced
below:
The merchandise covered by these investigations
is crystalline silicon photovoltaic cells, and mod-
ules, laminates and/or panels consisting of crystal-
line silicon photovoltaic cells, whether or not
partially or fully assembled into other products,
including building integrated materials. For pur-
poses of these investigations, subject merchandise
also includes modules, laminates and/or panels
assembled in the subject country consisting of
crystalline silicon photovoltaic cells that are com-
pleted or partially manufactured within a customs
territory other than that subject country, using
ingots that are manufactured in the subject coun-
try, 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.
Certain Crystalline Silicon Photovoltaic Products From
the People’s Republic of China and Taiwan, 79 Fed. Reg.
4661, 4667 (Dep’t of Commerce Jan. 29, 2014) (initiating
antidumping duty investigations).
Kyocera later challenged Commerce’s scope determi-
nation and requested that it exclude solar modules pro-
duced in Mexico from the investigation’s scope, including
modules produced in Mexico using CSPV cells manufac-
4 KYOCERA SOLAR, INC. v. ITC
tured in Taiwan. Commerce declined Kyocera’s request.
It determined that the investigation would include solar
modules produced in Mexico that incorporated Taiwanese
CSPV cells. Commerce explained that “[m]odules, lami-
nates, 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 (Dep’t of Commerce
Dec. 23, 2014) (final determination). Kyocera challenged
this scope determination in a separate civil action; Com-
merce’s scope determination is not at issue in this case.
See Kyocera Solar, Inc. v. United States, CIT Ct. No. 15–
00081 (Ct. Int’l Trade filed Mar. 20, 2015).
Using Commerce’s scope determination, the Commis-
sion determined that an industry within the United
States had been materially injured by imports of CSPV
products from Taiwan. The Commission explained that it
“must defer to Commerce’s determination of the scope of
the merchandise subject to these investigations, and
Commerce has determined that U.S. imports of CSPV
modules assembled in third countries such as Mexico from
CSPV cells made in Taiwan are U.S. imports of subject
merchandise from Taiwan.” Certain Crystalline Silicon
Photovoltaic Prods. from China & Taiwan, Inv. No. 701-
TA-511, USITC Pub. 4519 (Feb. 1, 2015) (Final), 2015 WL
10553313, at *13 n.110.
Kyocera nevertheless argued that the Commission
had to conduct a separate negligibility analysis regarding
Mexican solar panels incorporating Taiwanese CSPV
cells. Section 1677(24) of Title 19 of the United States
Code defines “[n]egligible imports” as “imports from a
country of merchandise corresponding to a domestic like
product identified by the Commission . . . account[ing] for
less than 3 percent of the volume of all such merchandise
imported into the United States in the most recent 12-
month period for which data are available that precedes”
the filing of the petition or the initiation of the investiga-
KYOCERA SOLAR, INC. v. ITC 5
tion. 19 U.S.C. § 1677(24). Under 19 U.S.C.
§ 1673d(b)(1)(B), “[i]f the Commission determines that
imports of the subject merchandise are negligible, the
investigation shall be terminated.” Kyocera argued that
this statutory scheme required the Commission to conduct
a separate negligibility analysis for its solar modules
assembled in Mexico incorporating Taiwanese CSPV cells
in contrast to solar modules assembled in Taiwan incor-
porating Taiwanese CSPV cells. In particular, Kyocera
argued that § 1677(24) requires a negligibility analysis for
imports from “a country,” and that its Mexican imports
were from “a country,” so the Commission should sepa-
rately conduct a negligibility analysis to determine
whether solar modules imported from Mexico “account for
less than 3 percent of the volume” of solar modules im-
ported into the United States. See 19 U.S.C. § 1677(24).
The Commission rejected Kyocera’s argument, ex-
plaining that it reflected both an improper attempt to
circumvent Commerce’s scope determination and an
incorrect reading of the statute:
Kyocera’s arguments are based on two flawed
premises. First, Kyocera overlooks that the
Commission must defer to Commerce’s definition
of the scope of the merchandise subject to these
investigations, and Commerce has determined
that U.S. imports of CSPV modules assembled in
third countries such as Mexico from CSPV cells
made in Taiwan are U.S. imports of subject mer-
chandise from Taiwan, as discussed earlier.
Moreover, Kyocera does not read the negligible
imports language in tandem with 19 U.S.C.
§§ 1671d(b), 1673d(b), which direct the Commis-
sion to determine whether a domestic industry is
materially injured “by reason of imports, or sales
(or the likelihood of sales) for importation, of the
merchandise with respect to which the administer-
ing authority has made an affirmative determina-
6 KYOCERA SOLAR, INC. v. ITC
tion under subsection (a)(1) of this section. If the
Commission determines that imports of the sub-
ject merchandise are negligible, the investigation
shall be terminated.” (emphasis added). It is not
reasonable to read “any country” into the defini-
tion of negligible imports without taking into ac-
count that the statute centers the negligibility
analysis on the imports of the subject merchan-
dise with respect to which Commerce has made an
affirmative determination.
Certain Crystalline Silicon Photovoltaic Prods. from
China & Taiwan, 2015 WL 10553313, at *13 n.110.
Kyocera appealed the Commission’s determination to
the CIT, which affirmed the Commission’s refusal to
conduct a separate negligibility analysis for Kyocera’s
solar modules incorporating Taiwanese CSPV cells in
Mexican manufacturing plants. It explained that “Kyoc-
era ignores the fact that Commerce’s investigation defines
the scope of the [Commission’s] analysis.” J.A. 10. It
explained that “[h]ere, 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.” Id.
(quotation marks and brackets omitted). The CIT con-
cluded that “the [Commission] was bound by Commerce’s
determination and tasked with examining whether im-
ports from Taiwan, including modules from Mexico, were
negligible. Accordingly, the [Commission] correctly
declined to conduct a separate negligibility analysis with
Mexico as the country of origin.” J.A. 11 (citation omit-
ted).
Kyocera appealed. We have jurisdiction under
28 U.S.C. § 1295(a)(5).
KYOCERA SOLAR, INC. v. ITC 7
DISCUSSION
We review the CIT’s assessment of the Commission’s
final determination by reapplying the CIT’s standard of
review. Specifically, we ask whether the Commission’s
determination is unsupported by substantial evidence or
otherwise not in accordance with the law. Siemens Ener-
gy, Inc. v. United States, 806 F.3d 1367, 1369 (Fed. Cir.
2015). “In undertaking this review, we give great weight
to ‘the informed opinion of the [CIT].’” Nippon Steel Corp.
v. United States, 458 F.3d 1345, 1351 (Fed. Cir. 2006)
(quoting Suramerica de Aleaciones Laminadas, C.A. v.
United States, 44 F.3d 978, 983 (Fed. Cir. 1994)).
Kyocera’s appeal raises an issue of statutory construc-
tion. We review issues of statutory construction under
the two-prong analysis announced in Chevron, U.S.A.,
Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837 (1984). We first determine “whether Congress has
directly spoken to the precise question at issue.” Id. at
842. If it has, our inquiry ends, for we “give effect to the
unambiguously expressed intent of Congress.” Id. at 843.
If, however, the statute does not answer the question at
hand because it is “silent or ambiguous,” then, under
Chevron’s second prong, we determine whether the agen-
cy provided “a permissible construction of the statute.”
Id. “If Congress has explicitly left a gap for the agency to
fill, there is an express delegation of authority to the
agency to elucidate a specific provision of the statute by
regulation.” Id. at 843–44. “Such legislative regulations
are given controlling weight unless they are arbitrary,
capricious, or manifestly contrary to the statute.” Id. at
844 (footnote omitted).
We find that this dispute is resolved by the plain
meaning of the statute. “In order to determine whether a
statute clearly shows the intent of Congress in a Chevron
step-one analysis, we employ traditional tools of statutory
construction and examine ‘the statute’s text, structure,
8 KYOCERA SOLAR, INC. v. ITC
and legislative history, and apply the relevant canons of
interpretation.’” Heino v. Shinseki, 683 F.3d 1372, 1378
(Fed. Cir. 2012) (quoting Delverde, SrL v. United States,
202 F.3d 1360, 1363 (Fed. Cir. 2000)). “It is a ‘fundamen-
tal canon of statutory construction that the words of a
statute must be read in their context and with a view to
their place in the overall statutory scheme.’” FDA v.
Brown & Williamson Tobacco Corp., 529 U.S. 120, 133
(2000) (quoting Davis v. Mich. Dep’t. of Treasury, 489 U.S.
803, 809 (1989)). That principle rings particularly true
here. The statutory structure before us offers important
context that guides our understanding of the disputed
text’s meaning.
We begin with 19 U.S.C. §§ 1671d(b) and 1673d(b),
which outline the Commission’s final determination
inquiry in countervailing duties and antidumping investi-
gations, respectively. These sections task the Commission
with finally determining whether certain imports, those
that fall within the scope of a final affirmative antidump-
ing or countervailing duty determination made by Com-
merce, are harming an industry within the United States.
19 U.S.C. §§ 1671d, 1673d. Section 1671d(b), which is
mirrored by § 1673d(b), reads as follows:
(b) Final determination by Commission
(1) In general
The Commission shall make a final de-
termination of whether--
(A) an industry in the United
States--
(i) is materially injured, or
(ii) is threatened with material
injury, or
(B) the establishment of an indus-
try in the United States is materi-
KYOCERA SOLAR, INC. v. ITC 9
ally retarded, by reason of im-
ports, or sales (or the likelihood of
sales) for importation, of the mer-
chandise with respect to which the
administering authority has made
an affirmative determination un-
der subsection (a) of this section.
If the Commission determines that
imports of the subject merchandise
are negligible, the investigation
shall be terminated.
These sections also require the Commission to conduct a
negligibility determination and to terminate the investi-
gation if it “determines that imports of the subject mer-
chandise are negligible.” Id. (emphasis added). This
negligibility determination is further defined in 19 U.S.C.
§ 1677(24), which explains that “imports from a country of
merchandise corresponding to a domestic like product
identified by the Commission are ‘negligible’ if such
imports account for less than 3 percent of the volume of
all such merchandise imported into the United States” in
a specified time period.
It is § 1677(24)’s definition of negligible merchandise
that Kyocera reads as “direct[ing] the Commission to
consider whether ‘imports from a country’ are negligible.”
Appellant Br. 20. Kyocera argues that “[t]he language of
the statute is not ambiguous. ‘A country’ means exactly
that—a country. Mexico is a country.” Id. It follows,
Kyocera argues, that its imports of solar modules assem-
bled in Mexico incorporating Taiwanese CSPV cells are
from Mexico, and thus the Commission should have
conducted a separate negligibility analysis for these
modules.
We disagree. Kyocera’s statutory reading improperly
wrests a line of statutory text from its context. See Brown
& Williamson, 529 U.S. at 133. Here, the statute plainly
10 KYOCERA SOLAR, INC. v. ITC
requires that the Commission make its determinations
with regard to subject merchandise. And the statute
vests Commerce with the role of determining the scope of
the merchandise subject to investigation. See 19 U.S.C.
§§ 1671d(b), 1673d(b); see also 19 U.S.C. §§ 1671e(a)(2),
1673e(a)(2) (explaining that Commerce shall include in
antidumping and countervailing duty orders “a descrip-
tion of the subject merchandise, in such detail as [Com-
merce] deems necessary”). Indeed, the negligibility
determination requires an inquiry into whether “imports
of the subject merchandise are negligible.” 19 U.S.C.
§§ 1671d(b)(1), 1673d(b)(1). And the statute defines
“subject merchandise” as “the class or kind of merchan-
dise that is within the scope of an investigation.” 19
U.S.C. § 1677(25). Thus, the Commission’s determina-
tions of domestic injury and negligibility are made with
respect to the subject merchandise—i.e., the merchandise
within the scope of Commerce’s investigation. We there-
fore agree with the Commission’s observation that “[i]t is
not reasonable to read ‘any country’ into the definition of
negligible imports without taking into account that the
statute centers the negligibility analysis on the imports of
the subject merchandise with respect to which Commerce
has made an affirmative determination.” Certain Crystal-
line Silicon Photovoltaic Prods. from China & Taiwan,
2015 WL 10553313, at *13 n.110.
Moreover, Kyocera cannot challenge Commerce’s de-
termination that the solar modules finally assembled in
Mexico are Taiwanese in origin. Indeed, Kyocera “does
not dispute” that “[t]he Commerce Department deter-
mined that solar products produced in Mexico from Tai-
wanese origin cells[] are subject merchandise and
Taiwanese in origin.” Appellant Reply Br. 4. In fact, that
very determination is the subject of a separate civil pro-
ceeding in the CIT, see CIT Ct. No. 15–00081, filed by
Kyocera. And both parties agree that Commerce’s scope
determination is not before us today. Kyocera argues,
KYOCERA SOLAR, INC. v. ITC 11
however, that “the Commission is required to examine the
negligibility of subject merchandise (in this case, Taiwan-
ese origin solar products produced in Mexico) imported
from Mexico.” Appellant Br. 4. We disagree. The statute
does not support Kyocera’s proposed distinction between
Commerce’s determination of origin and the origin of
goods referred to in the negligibility statute. As we
explained above, the statute centers the negligibility
determination on subject merchandise. In this case,
Commerce determined that the solar modules that Kyoc-
era claims are “from Mexico” are Taiwanese in origin.
Following the statutory structure, the Commission
properly treated the cells as Taiwanese in origin, and thus
correctly refused to conduct a separate negligibility de-
termination for Kyocera’s solar cells.
We have considered Kyocera’s remaining arguments
and find them unpersuasive.
CONCLUSION
Because we find Kyocera’s position unambiguously re-
futed by the plain meaning of the statute, we conclude our
analysis under the first prong of Chevron and do not reach
its second prong. As Kyocera does not otherwise chal-
lenge the Commission’s determination, we affirm.
AFFIRMED
COSTS.
No Costs.