Kyocera Solar, Inc. v. United States

253 F.Supp.3d 1294

KYOCERA SOLAR, INC. and Kyocera Mexicana S.A. de C.V., Plaintiffs,

v. UNITED STATES, Defendant,andSolarworld Americas, Inc., Defendant–Intervenor.

Slip Op. 17-90, Court No. 15-00081.

United States Court of International Trade.

July 21, 2017

J. Kevin Horgan, deKieffer & Horgan, PLLC, of Washington, DC, argued for plaintiffs Kyocera Solar, Inc. and Kyocera Mexicana S.A. de C.V. With him on the brief was Alexandra H. Salzman.

Joshua E. Kurland and Agatha Koprowski, Trial Attorneys, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, argued for the defendant. With them on the brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Jeanne E. Davidson, Director, and Reginald T. Blades, Jr., Assistant Director. Of counsel was Scott McBride, Assistant Chief Counsel, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, DC.

Timothy C. Brightbill, Wiley Rein LLP, of Washington, DC, argued for defendant-intervenor SolarWorld Americas, Inc. With him on the brief was Laura El–Sabaawi.

OPINION

Kelly, Judge:

Before the court for review is the U.S. Department of Commerce's ("Commerce" or "Department") remand determination in the antidumping investigation of certain crystalline silicon photovoltaic products from Taiwan, filed pursuant to the court's order in SunEdison, Inc. v. United States, 40 CIT ––––, 179 F.Supp.3d 1309 (2016).²

See Final Results of Redetermination Pursuant to Court Order, Oct. 5, 2016, ECF No. 75–1³ ("Solar II Taiwan Remand Results"). For the reasons set forth below, the court sustains Commerce's redetermination because Commerce has complied with the court's order in SunEdison, 40 CIT ––––, 179 F.Supp.3d 1309, and Commerce's conclusions are supported by substantial evidence.

BACKGROUND

The court assumes familiarity with the facts of this case as discussed in the previous opinion, see SunEdison, 40 CIT at ––––, 179 F.Supp.3d at 1312–16, and here recounts the facts relevant to the court's review of the Solar II Taiwan Remand Results. This case concerns an antidumping duty ("ADD") investigation of certain solar products from Taiwan which is intrinsically related to two sets of ADD and countervailing duty ("CVD") investigations covering certain solar products from the People's Republic of China ("China" or "PRC"). An overview of all three sets of investigations⁴ is warranted to contextualize the current proceeding.

Initially, Commerce investigated the solar industry in China on the basis of a petition from domestic producer SolarWorld Americas, Inc. ("SolarWorld"), Defendant–Intervenor here, alleging dumping activity and countervailable subsidies injurious to the domestic solar industry ("the Solar I PRC investigations"). Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the People's Republic of China, 76 Fed. Reg. 70,960 (Dep't Commerce Nov. 16, 2011) (initiation of ADD investigation); Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the People's Republic of China, 76 Fed. Reg. 70,966, 70,967 (Dep't Commerce Nov. 16, 2011) (initiation of CVD investigation). The Solar I PRC investigations resulted in ADD and CVD orders covering crystalline silicon photovoltaic cells ("solar cells" or "cells") from China, including Chinese cells assembled into modules, laminates, and panels outside of China ("the Solar I PRC Orders"); these orders did not cover solar modules, laminates, or panels assembled in China using solar cells produced outside of China. See Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the People's Republic of China, 77 Fed. Reg. 73,018 (Dep't Commerce Dec. 7, 2012) (amended final determination of sales at less than fair value and ADD order); Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the People's Republic of China, 77 Fed. Reg. 73,017 (Dep't Commerce Dec. 7, 2012) (CVD order) ("the Solar I PRC Orders"). Although the Solar I PRC Orders covered both solar cells and modules, laminates, and/or panels containing solar cells, Commerce determined that the solar cell is the origin-conferring component. See Issues and Decision Mem. for the Final Determination in the [ADD] Investigation of Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled into Modules, from the [PRC], A–570–979, 5–9 (Oct. 9, 2012), available at http://ia.ita.doc.gov/frn/summary/prc/2012–25580–1.pdf (last visited July 12, 2017) ("Solar I PRC ADD Final Decision Memo"); Issues and Decision Mem. for the Final Determination in the [CVD] Investigation of Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, from the [PRC], C–570–980, 77–81 (Oct. 9, 2012), available at http://ia.ita.doc.gov/frn/summary/prc/2012–25564–1.pdf (last visited July 12, 2017) ("Solar I PRC CVD Final Decision Memo"). Further, using a substantial transformation analysis, Commerce determined that assembly of solar cells into modules, laminates, and/or panels in a third country did not change the country of origin of the merchandise.⁵ Solar I PRC ADD Final Decision Memo at 5–6; Solar I PRC CVD Final Decision Memo at 77–78. Thus, solar modules, laminates, and panels assembled in a third country using Chinese solar cells are covered by the Solar I PRC Orders, while solar modules, laminates, and panels assembled in the PRC using non-Chinese solar cells are not covered. See Solar I PRC Orders.

Subsequently, SolarWorld petitioned Commerce to initiate additional proceedings related to the Chinese and Taiwanese solar industries. Pet. for Imposition of [ADD] and [CVD] Investigation, Certain Crystalline Silicon Photovoltaic Products from the [PRC] and Taiwan, PD 1–8, bar codes 3171322–01–08 (Dec. 31, 2013) ("Solar II PRC and Taiwan Petition").⁶ SolarWorld claimed ongoing injury to the domestic solar industry, alleging that the Chinese solar industry had, in response to the Solar I PRC Orders, shifted from the assembly of modules, laminates, and panels (or "panels") using Chinese cells to the assembly of panels in China using non-Chinese cells and to the manufacture of cells and assembly of panels in Taiwan.⁷ Id. at 3–6 (stating that the Solar I PRC Orders"failed to cover Chinese solar modules assembled from non-Chinese solar cells, allowing Chinese solar producers to begin using cells fully or partially manufactured in Taiwan in the modules they assembled for export to the United States, and to export those modules, duty-free, to the U.S. market."). At the same time, the petition alleges that imports of solar cells and panels from Taiwan increased as well, causing material injury to the domestic industry. See id. at 2–7. On the basis of this petition, Commerce initiated a second ADD and CVD investigation of the Chinese solar industry and an ADD investigation of the Taiwanese solar industry. Certain Crystalline Silicon Photovoltaic Products from the [PRC] and Taiwan, 79 Fed. Reg. 4,661 (Dep't Commerce Jan. 29, 2014) (initiation of ADD investigations) ("Solar II PRC and Taiwan ADD Initiation Notice"); Certain Crystalline Silicon Photovoltaic Products from the [PRC], 79 Fed. Reg. 4,667 (Dep't Commerce Jan. 29, 2014) (initiation of CVD investigation) ("Solar II PRC CVD Initiation Notice").

These investigations resulted in two sets of orders. The investigation into the Chinese solar industry resulted in an ADD order and a CVD order covering modules, laminates, and/or panels assembled in China consisting of cells manufactured outside of China, including cells manufactured in Taiwan. Certain Crystalline Silicon Photovoltaic Products from the [PRC], 80 Fed. Reg. 8,592 (Dep't Commerce Feb. 18, 2015) (ADD order; and amended final affirmative CVD determination and CVD order) ("the Solar II PRC Orders").⁸ The investigation into the Taiwanese solar industry resulted in an ADD order covering solar cells manufactured in Taiwan,⁹ including Taiwanese cells assembled into modules, laminates, and/or panels outside of Taiwan, but excluding Taiwanese cells assembled into modules, laminates, and/or panels in China covered by the Solar II PRC Orders. Certain Crystalline Silicon Photovoltaic Products from Taiwan, 80 Fed. Reg. 8,596 (Dep't Commerce Feb. 18, 2015) (ADD order) ("the Solar II Taiwan Order").¹⁰

The Solar II Taiwan Order is at issue in this case. The petition alleged injury to the domestic industry from imports of certain solar products from Taiwan, Solar II PRC and Taiwan Petition at 5–6, and the Solar II Initiation Notice indicated that the investigation would cover:

[C]rystalline 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 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. [SeeSolar I PRC Order ].

See Solar II PRC and Taiwan ADD Initiation Notice, 79 Fed. Reg. at 4,667. Panels assembled in third-countries using Taiwanese cells were not explicitly included or excluded in the scope of the investigation at the outset of the investigation. However, as noted above, at this stage of the proceeding the...