                         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
Court No. 15-00084                                                        Page 3


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
