2017 CIT 90
Ct. Int'l Trade2017Background
- This case challenges Commerce’s final antidumping duty (ADD) determination and scope for certain crystalline silicon photovoltaic products from Taiwan (Solar II Taiwan), particularly whether panels assembled in third countries (e.g., Mexico) from Taiwanese cells are within the order.
- Related PRC investigations (Solar I and Solar II PRC) produced orders that treated country-of-origin differently (PRC orders targeted panels assembled in China using non‑Chinese cells; Taiwan order targeted Taiwanese cells and expressly excluded Taiwanese‑cell panels assembled in China).
- Commerce revised the scope during the investigation (removing a “two‑out‑of‑three” rule and explicitly covering third‑country panels made from Taiwanese cells); Kyocera argued it lacked notice and opportunity to participate as a respondent.
- The Court of International Trade remanded parts of the Solar II Taiwan determination for consistency with SunPower/SunEdison, asking Commerce to explain: (1) its use of different country‑of‑origin rules, (2) apparent disparate treatment of similarly situated products, (3) selection of the market for normal‑value comparisons, and (4) assessment of duties on the full panel value and effects of scope changes.
- On remand Commerce explained its rationale: the Solar II PRC and Solar II Taiwan proceedings cover different classes/kinds of merchandise and thus justify different origin tests and different home‑market selections tailored to the injurious conduct found; Commerce also defended assessing duties on the full value of finished panels and its authority to change scope before a final order.
- The court sustained Commerce’s remand redetermination, finding Commerce complied with the prior remand order and its explanations were supported by substantial evidence and consistent with law.
Issues
| Issue | Kyocera (Plaintiff) Argument | United States (Commerce) Argument | Held |
|---|---|---|---|
| 1) Did Commerce impermissibly apply two different country‑of‑origin rules to a single class or kind of merchandise? | Commerce applied inconsistent origin rules to the same class/kind (panels), unlawfully creating two origin tests. | The Solar II PRC and Solar II Taiwan investigations cover different classes/kinds (PRC: assembled panels in China; Taiwan: Taiwanese cells and third‑country panels made from them), so different origin rules are proper. | Court sustained Commerce: different proceedings = different classes/kinds; Commerce adequately explained differing origin rules. |
| 2) Did Commerce treat similarly situated products disparately? | Panels assembled outside China should be treated same as panels assembled in China; disparate treatment is arbitrary. | The investigations targeted different injurious conduct (PRC: subsidies/pricing at assembly stage in China; Taiwan: cell manufacture in Taiwan), so products were not similarly situated and different approaches are justified. | Court sustained Commerce: record supports that products were situated differently and Commerce’s tailored approaches were reasonable. |
| 3) Was Commerce required to base normal value on the market of "majority" or "essential" production (i.e., where most production occurred)? | Using Chinese market for normal value (in PRC investigation) departs from prior practice and may be unfair without a fair‑comparison analysis. | Statute requires a fair comparison between normal value and export price, but not specifically the market of majority production; origin test determines home market and Commerce reasonably chose market tied to injurious conduct. | Court sustained Commerce: statute permits Commerce discretion; Commerce explained why Chinese market comparison was appropriate in PRC investigation. |
| 4) Did Commerce unlawfully alter scope during the investigation, deprive parties of participation, or improperly assess duties on full panel value assembled in third countries? | Scope change mid‑investigation deprived third‑country assemblers (e.g., Kyocera) of respondent status/notice; assessing duties on full panel value is arbitrary when only cells are from Taiwan. | Commerce may modify scope up to final order; parties had notice and submitted comments; assessing duties on full panel value remedies unfair pricing/subsidization of finished panels and is supported by substantial evidence. | Court sustained Commerce: Commerce has authority to alter scope pre‑order; Kyocera had opportunity to participate; Commerce reasonably assessed duties on full panel value given investigation findings. |
Key Cases Cited
- Target Corp. v. United States, 609 F.3d 1352 (Fed. Cir.) (order, not the petition, determines class or kind of merchandise)
- Duferco Steel, Inc. v. United States, 296 F.3d 1087 (Fed. Cir.) (Commerce may refine scope during investigation; final order defines covered merchandise)
- Mitsubishi Elec. Corp. v. United States, 898 F.2d 1577 (Fed. Cir.) (Commerce responsible for determining proper scope to effectuate antidumping laws)
- Save Domestic Oil, Inc. v. United States, 357 F.3d 1278 (Fed. Cir.) (Commerce must either follow routine practice or reasonably explain departures)
- Smith Corona Corp. v. United States, 915 F.2d 683 (Fed. Cir.) (scope‑clarification principles and notice considerations)