SUNEDISON, INC., 

Plaintiff,

v. 

UNITED STATES, 

Defendant.

Slip Op. 16 - 

UNITED STATES COURT OF INTERNATIONAL TRADE 

OPINION and ORDER

[remanding Department of Commerce’s antidumping duty scope 

determination]

Dated: June 14, 2016 

David S. Christy, Jr., Michael P. House, and David J. 

Townsend, Perkins Coie LLP, of Washington, DC, for Plaintiff 

SunEdison, Inc. 

J. Kevin Horgan and Alexandra H. Salzman, deKieffer 

& Horgan, PLLC, of Washington, DC, for Plaintiffs Kyocera Solar, 

Inc. and Kyocera Mexicana S.A. de C.V.

Joshua E. Kurland and Agatha Koprowski, Trial 

Attorneys, Commercial Litigation Branch, Civil Division, U.S. 

Department of Justice, of Washington, DC, for the Defendant.

Also 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 D. McBride, Senior Attorney, Office of the Chief Counsel 

for Trade Enforcement & Compliance, U.S. Department of Commerce, 

of Washington, DC. 

Timothy C. Brightbill and Usha Neelakantan, 

1 This action is consolidated with Kyocera Solar, Inc. v. United 

States, Ct. No. 15-00081. Order, July 1, 2015, ECF No. 21, 

at ¶ 4; Order, Apr. 28, 2016, ECF No. 64. 

Before: Donald C. Pogue, 

Senior Judge 

Consol. Court No. 15-000661
Consol. Ct. No. 15-00066 Page 2

Wiley Rein LLP, of Washington, DC, for Defendant-Intervenor 

SolarWorld Americas, Inc. 

Pogue, Senior Judge: This consolidated action arises 

from the final affirmative determination made by the U.S. 

Department of Commerce (“Commerce”) in its antidumping 

investigation of certain crystalline silicon photovoltaic 

products (solar cells and panels) from Taiwan.2 Before the court 

are motions for judgment on the agency record, challenging 

Commerce’s final determinations regarding the scope of these 

proceedings.3

The court has jurisdiction pursuant to Section 

516A(a)(2)(B)(i) of the Tariff Act of 1930, as amended, 

19 U.S.C. § 1516a(a)(2)(B)(i) (2012),4 and 28 U.S.C. § 1581(c) 

(2012).

As explained below, Commerce’s final scope definition 

2 See Certain Crystalline Silicon Photovoltaic Products from 

Taiwan, 79 Fed. Reg. 76,966 (Dep’t Commerce Dec. 23, 2014) 

(final determination of sales at less than fair value) and 

accompanying Issues & Decision Mem., A-583-853, Investigation 

(Dec. 15, 2014) (“Solar II Taiwan I&D Mem.”) cmt. 1. 

3 See Br. of Pl. SunEdison, Inc. in Supp. of Pl.’s Mot. for J. 

Upon the Agency R., ECF Nos. 32 (conf. version) & 33 (pub. 

version) (“SunEdison’s Br.”); Kyocera Solar, Inc. & Kyocera 

Mexicana S.A. de C.V. Mem. in Supp. of Mot. for J. on the 

Agency R., ECF Nos. 29 (conf. version) & 30 (pub. version) 

(“Kyocera’s Br.”).

4 Further citations to the Tariff Act of 1930, as amended, are to 

the relevant provisions of Title 19 of the U.S. Code, 2012 

edition.
Consol. Ct. No. 15-00066 Page 3

is remanded for consistency with, and based on the same 

reasoning as, related proceedings concerning solar panels from 

the People’s Republic of China (“China” or “PRC”).5 Essentially, 

Commerce’s final scope determination, in both cases, treated 

solar panels differently depending on their country of assembly, 

and failed to consider or discuss either the proportion of 

production necessary to determine a solar panel’s country of 

origin or the reasonableness of applying duties to the entire 

value of solar panels assembled in the PRC when only a small 

percentage of the cost of production actually occurs there. 

After a statement of the background, arguments 

presented, and standard of review, the Plaintiffs’ challenges to 

Commerce’s final scope determination are discussed below. 

BACKGROUND

Relevant background leading to this case is summarized 

in the court’s prior opinion.6 Briefly, the Solar II PRC opinion 

addressed Commerce’s scope determinations in related proceedings 

concerning solar panels from China that are assembled from cells 

5 See SunPower Corp. v. United States, Slip Op. 16-56, 

Consol. Ct. No. 15-00067, ECF No. 98, (June 8, 2016) 

(“Solar II PRC Slip Op.” or “the Solar II opinion”); 

infra Discussion Sections IV, VI, & VII. 

6 Solar II PRC Slip Op., Slip Op. 16-56, 

Consol. Ct. No. 15-00067, ECF No. 98, at Background Sections I 

& II. 
Consol. Ct. No. 15-00066 Page 4

manufactured outside of China,7 including specifically cells that 

were manufactured in Taiwan (the “Solar II PRC” proceedings).8

Commerce’s final scope definition here (in the “Solar II Taiwan” 

proceedings) covers all solar cells manufactured in Taiwan that 

are assembled into panels anywhere in the world, except those 

covered by the Solar II PRC proceedings because they are 

assembled into panels in China.9 Both cases concern the rules of 

origin for solar panels manufactured from Taiwanese cells. For 

this reason, the issues here are inextricably entwined with 

those already addressed in the Solar II PRC opinion.

Familiarity with the Solar II PRC opinion is therefore presumed.

 Solar panels assembled from solar cells made in the 

PRC were also, and initially, the subject of separate 

proceedings (the “Solar I PRC” proceedings). The Solar I PRC 

proceedings resulted in antidumping and countervailing duty 

orders covering all solar cells manufactured in China, whether 

or not and regardless of where in the world such cells are 

7 Solar panels (also referred to as modules or laminates) are 

assembled from solar cells, which use crystalline silicon to 

convert sunlight into electricity. Certain Crystalline Silicon 

Photovoltaic Products from China and Taiwan, USITC Pub. 4519, 

Inv. Nos. 701-TA-511 & 731-TA-1246-1247 (Feb. 2015) (final 

determination) (“Solar II ITC Final Determination”) at 10. 

8 Solar II PRC Slip Op., Slip Op. 16-56, Consol. Ct. No. 15-

00067, ECF No. 98, at Background Section II & Discussion 

Section IV. 

9 See Solar II Taiwan I&D Mem. cmt. 1 at 23. 
Consol. Ct. No. 15-00066 Page 5

assembled into solar panels prior to exportation to the United 

States.10

 In the Solar I PRC proceedings, Commerce determined 

that “solar module assembly does not substantially transform 

solar cells such that it changes the country-of-origin.”11

Accordingly, Commerce concluded that “where solar cell 

production occurs in a different country from solar module 

assembly, the country-of-origin of the solar modules/panels is 

the country in which the solar cell was produced [and not the 

country of panel assembly].”12

10 See Crystalline Silicon Photovoltaic Cells, Whether or Not 

Assembled into Modules, from the [PRC], 77 Fed. Reg. 63,791 

(Dep’t Commerce Oct. 17, 2012) (final determination of sales 

at less than fair value, and affirmative final determination of 

critical circumstances, in part) and accompanying Issues 

& Decision Mem., A-570-979, Investigation (Oct. 9, 2012) 

(“Solar I PRC AD I&D Mem.”); Crystalline Silicon Photovoltaic 

Cells, Whether or Not Assembled into Modules, from the [PRC], 

77 Fed. Reg. 63,788 (Dep’t Commerce Oct. 17, 2012) (final 

affirmative countervailing duty determination and final 

affirmative critical circumstances determination) and 

accompanying Issues & Decision Mem., C-570-980, Investigation 

(Oct. 9, 2012); Solar II PRC Slip Op., Slip Op. 16-56, 

Consol. Ct. No. 15-00067, ECF No. 98, at Background Section I. 

11 [Commerce’s] Mem. re Scope Clarification, Crystalline Silicon 

Photovoltaic Cells, Whether or Not Assembled into Modules, from 

the [PRC], A-570-979 & C-570-980, Investigations (Mar. 19, 

2012), reproduced in, e.g., App. to Br. of Consol. Pl. Suniva, 

Inc. in Supp. of its Mot. for J. on the Agency R., Consol. Ct. 

No. 15-00067, ECF No. 58-3 at Tab 1 Ex. 2 (“Solar I PRC Scope 

Clarification Mem.”), at 8 (unchanged in Solar I PRC AD I&D Mem. 

cmt. 1 at 6–7).

12 Id.
Consol. Ct. No. 15-00066 Page 6

Following the imposition of the Solar I PRC orders, 

however, domestic producer SolarWorld Americas Incorporated 

(“SolarWorld”) (now Defendant-Intervenor in this action) 

petitioned Commerce to initiate additional proceedings.

SolarWorld alleged, inter alia, that after the Solar I PRC 

orders were imposed, exports of solar panels to the United 

States from China shifted from panels assembled from cells that 

were also made in China, to panels assembled from cells 

“completed or partially manufactured in Taiwan or other 

countries (i.e., cells manufactured in Taiwan from Taiwanese 

inputs, or cells manufactured in Taiwan or other countries from 

Chinese inputs, including wafers).”13

Commerce agreed that this “measurable shift in trade 

flows . . . resulted in increased imports of non-subject modules 

produced in China.”14 In response, Commerce initiated 

13 Pet. for Imposition of Antidumping & Countervailing Duties 

Pursuant to Secs. 701 & 731 of the Tariff Act of 1930, as 

Amended, Certain Crystalline Silicon Photovoltaic Products from 

the [PRC] and Taiwan, A-570-010, A-583-853, & C-570-011 

Investigations (Dec. 31, 2013), reproduced in App. to Def.’s 

Resp. in Opp’n to Pls.’ Rule 56.2 Mots. for J. on the Agency R., 

ECF Nos. 53-1 (conf. version) & 54-1 (pub. Version) at Tab 1 

(“Solar II Pet.”), at 5-6. 

14 Solar II Taiwan I&D Mem. cmt. 1 at 21 (citing Solar II Pet., 

[ECF Nos. 53-1 & 54-1 at Tab 1], at 3, 5-6, 21, 34, 37, 53); 

see also id. at 17 (“[SolarWorld’s Solar II] Petition claimed 

that Chinese solar producers were ‘using cells fully or 

partially manufactured in Taiwan in the modules they assembled 

for export to the United States,’ which allowed the Chinese 

(footnote continued) 
Consol. Ct. No. 15-00066 Page 7

(1) antidumping and countervailing duty investigations that 

ultimately resulted in orders covering all panels assembled in 

China from solar cells made outside of China, including 

Taiwanese cells15 (the Solar II PRC proceedings); and (2) an 

antidumping investigation that ultimately resulted in an order 

covering all solar cells produced in Taiwan, whether or not, and 

regardless of where, assembled into panels, except those 

assembled into panels in China16 (the Solar II Taiwan 

proceedings).

Plaintiffs here17 are U.S. importers and a foreign 

producer of solar panels containing solar cells manufactured in 

Taiwan.18 Plaintiffs now challenge Commerce’s final 

solar producers to ‘export those modules, duty-free, to the U.S. 

market.’ . . . The Petition claimed that Taiwanese cell and 

module imports increased by 85 percent, in large part as a 

result of this alleged loophole.”) (quoting and citing, 

respectively, Solar II Pet., [ECF Nos. 53-1 & 54-1 at Tab 1], 

at 4, 6); id. at 21 (“[F]ollowing the implementation of the 

[Solar I PRC] AD and CVD orders . . ., there has been a 

measurable shift in trade flows that has resulted in increased 

imports of non-subject modules produced in China.”) 

(citing Solar II Pet., [ECF Nos. 53-1 & 54-1 at Tab 1], at 3, 

5-6, 21, 34, 37, 53). 

15 See Solar II PRC Slip Op., Slip Op. 16-56, Consol. Ct. No. 15-

00067, ECF No. 98, at Background Section II & Discussion Section 

IV).

16 See Solar II Taiwan I&D Mem. cmt. 1 at 23. 

17 SunEdison, Inc. (“SunEdison”), and Kyocera Solar, Inc. and 

Kyocera Mexicana S.A. de C.V. (collectively “Kyocera”). 

18 Compl., ECF No. 11, at ¶ 5; see Compl., Ct. No. 15-00081, 

(footnote continued) 
Consol. Ct. No. 15-00066 Page 8

determination regarding the scope of the Solar II Taiwan 

proceedings. Specifically, the Plaintiffs make the following 

arguments regarding Commerce’s final scope determination in the 

Solar II Taiwan investigation.

PARTIES’ ARGUMENTS 

 (I) Commerce’s late modification of the Solar II 

Taiwan scope substantially deprived interested parties – 

including Kyocera, a Mexican assembler of Taiwanese solar cells 

into panels exported to the United States – of due process.19

(II) Commerce unlawfully expanded the scope of 

Solar II Taiwan, after the close of factual submissions, to 

include merchandise that had been excluded from Commerce’s 

unfair pricing analysis (as well as the International Trade 

ECF No. 6, at ¶¶ 5-6, 9, 17.

19 See Kyocera’s Br., ECF Nos. 29 & 30, at 3 (describing 

Kyocera’s production structure), 24-25 (arguing that Commerce’s 

approach to scope definition throughout this investigation 

deprived Kyocera of due process); see also SunEdison’s Br., 

ECF Nos. 32 & 33, at 28 (“[Commerce] deprived respondents of the 

opportunity to comment on the novel scope adopted in the final 

determination by issuing it so late in the proceeding.”); 

id. at 9 (“[Commerce] did not address any of the comments 

opposing [its ultimate] scope proposal . . ., even though it 

adopted in its final determination virtually all of [that] 

proposal with respect to Taiwan.”).
Consol. Ct. No. 15-00066 Page 9

Commission’s injury analysis) throughout the investigations.20

(III) Commerce’s final Solar II Taiwan scope 

determination was contrary to explicit statutory and regulatory 

requirements.21 Specifically, Plaintiffs argue that Commerce’s 

final Solar II Taiwan scope determination was contrary to one or 

more of the following statutory/regulatory provisions: 

(A) 19 U.S.C. § 1673 (providing Commerce’s authority to impose 

antidumping duties on products within “a class or kind of 

foreign merchandise”);22 (B) 19 U.S.C. §§ 1677b(a) (requiring a 

“fair comparison” between prices of the foreign like product 

20 See SunEdison’s Br., ECF Nos. 32 & 33, at 28 (“In reporting 

U.S. sales in their questionnaire responses, Commerce instructed 

the Taiwan respondents to follow . . . a scope definition that 

Commerce totally abandoned [in the final determination,] long 

after verifications of those responses were completed . . . .”); 

id. at 26 (“In Allegheny Bradford, this Court explained that 

‘Commerce’s discretion to define and clarify the scope of an 

investigation is limited in part by concerns for the finality of 

administrative action, which caution against including a product 

that was understood to be excluded at the time the investigation 

began.’”) (quoting Allegheny Bradford Corp. v. United States, 

28 CIT 830, 342 F. Supp. 2d 1172, 1187-88 (2004) (citation 

omitted)); Kyocera’s Br., ECF Nos. 29 & 30, at 7 (“[Commerce]’s 

attempt to expand the [final] scope of the [Solar II Taiwan] 

investigation comes too late. The [prior] scope ha[d] not only 

been used in [Commerce]’s selection of mandatory respondents, it 

has also defined the scope of the International Trade 

Commission’s injury investigation . . . .”) (quoting Kyocera’s 

administrative case brief below). 

21 SunEdison’s Br., ECF Nos. 32 & 33, at 14-16, 21-24; Kyocera’s 

Br., ECF Nos. 29 & 30, at 11-16.

22 SunEdison’s Br., ECF Nos. 32 & 33, at 12-14; 19 U.S.C. § 1673.
Consol. Ct. No. 15-00066 Page 10

from the country under investigation (normal value) and the U.S. 

export prices of the subject merchandise) & 1677(16)(A)-(C) 

(requiring that the “foreign like product” must be “produced in 

the same country” as the subject merchandise);23 (C) 19 U.S.C. 

§ 1677j(b) (dealing with circumvention of existing antidumping 

duty orders) & 19 C.F.R. § 351.225(h) (providing for Commerce’s 

issuance of scope rulings, under existing antidumping duty 

orders, for “products completed or assembled in other foreign 

countries”).24 SunEdison also argues that, (D) “by enacting and 

revising the antidumping law in 1984, 1988 and 1994, Congress 

bound Commerce to [continue to] use the substantial 

transformation test to determine the scope of antidumping duty 

orders . . . .”25

(IV) Commerce’s final Solar II Taiwan scope 

determination unlawfully departed from prior practice without 

23 SunEdison’s Br., ECF Nos. 32 & 33, at 14-15. 

24 Kyocera’s Br., ECF Nos. 29 & 30, at 11-16. 

25 SunEdison’s Br., ECF Nos. 32 & 33, at 21 (relying on GPX Int’l 

Tire Corp. v. United States, 666 F.3d 732, 739 (Fed. Cir. 2011) 

(“In the case of a widely known judicial decision or agency 

practice, ‘Congress is presumed to be aware of an administrative 

or judicial interpretation of a statute and to adopt that 

interpretation when it re-enacts a statute without change.’”) 

(quoting Lorillard v. Pons, 434 U.S. 575, 580 (1978)); 

id. at 21-25 (expanding on this argument). 
Consol. Ct. No. 15-00066 Page 11

sufficient explanation.26

 (V) Commerce’s conclusion that, with the exception of 

Taiwanese cells assembled into solar panels in China, all panels 

assembled from Taiwanese cells are subject to the Solar II 

Taiwan proceedings as products of Taiwan, regardless of where 

they are assembled, is not supported by substantial evidence.27

Specifically, Commerce’s determination that Taiwanese solar 

cells are not substantially transformed when assembled into 

panels in Mexico is unreasonable in light of the evidentiary 

record.28

(VI) Commerce unreasonably determined to apply 

antidumping duties on the full value of the panels into which 

Taiwanese solar cells are incorporated, rather than solely the 

value of the cells themselves.29

(VII) Commerce unreasonably excluded from its final 

dumping analysis third-country sales that the mandatory 

respondents reported as ultimately destined for the United 

26 SunEdison’s Br., ECF Nos. 32 & 33, at 12-13, 21. 

27 Kyocera’s Br., ECF Nos. 29 & 30, at 7, 18-23.

28 See id.; infra Standard of Review Section (defining 

“substantial evidence” review). 

29 SunEdison’s Br., ECF Nos. 32 & 33, at 10, 54-56; Kyocera’s 

Br., ECF Nos. 29 & 30, at 8, 15-16, 25-26. 
Consol. Ct. No. 15-00066 Page 12

States.30

Following a statement of the applicable standard of 

review, each group of arguments is addressed in turn below.

STANDARD OF REVIEW 

The court will sustain Commerce’s antidumping 

determinations if they are supported by substantial evidence and 

are otherwise in accordance with law.31 Substantial evidence 

refers to “such relevant evidence as a reasonable mind might 

accept as adequate to support a conclusion,”32 considering any 

relevant evidence that fairly detracts from the reasonableness 

of the agency’s determination.33 The substantial evidence 

standard of review can be roughly translated to mean “is the 

determination unreasonable?”34 The agency must “examine the 

relevant data and articulate a satisfactory explanation for its 

30 SunEdison’s Br., ECF Nos. 32 & 33, at 4-6, 27, 33-40. 

31 See 19 U.S.C. § 1516a(b)(1)(B)(i). 

32 SKF USA, Inc. v. United States, 537 F.3d 1373, 1378 

(Fed. Cir. 2008) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 

197, 229 (1938)). 

33 Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).

34 Nippon Steel Corp. v. United States, 458 F.3d 1345, 1351 

(Fed. Cir. 2006) (quotation and alteration marks and citation 

omitted).
Consol. Ct. No. 15-00066 Page 13

action,”35 including “a ‘rational connection between the facts 

found and the choice made.’”36

“[A]n agency determination that is arbitrary is ipso

facto unreasonable,”37 and a determination is arbitrary when it 

fails to “consider an important aspect of the problem,”38 or 

“treat[s] similar situations in dissimilar ways.”39

35 Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co., 

463 U.S. 29, 43 (1983). 

36 Id. (quoting Burlington Truck Lines v. United States, 371 U.S. 

156, 168 (1962)).

37 Shenyang Yuanda Aluminum Indus. Eng’g Co. v. United States, 

__ CIT __, __ F. Supp. 3d __, Slip Op. 16-11, 2016 WL 524268, 

at *17 n.148 (Feb. 9, 2016) (quoting Ward v. Sternes, 334 F.3d 

696, 704 (7th Cir. 2003) (“[A] decision [that] is so 

inadequately supported by the record as to be arbitrary [is] 

therefore objectively unreasonable.”) (quotation marks and 

citations omitted)).

38 State Farm, 463 U.S. at 43. 

39 Anderson v. U.S. Sec’y of Agriculture, 30 CIT 1742, 1749, 462 

F. Supp. 2d 1333, 1339 (2006) (“Agencies have a responsibility 

to administer their statutorily accorded powers fairly and 

rationally, which includes not ‘treat[ing] similar situations in 

dissimilar ways.’”) (quoting Burinskas v. NLRB, 357 F.2d 822, 

827 (D.C. Cir. 1966) (“[An agency] cannot act arbitrarily nor 

can it treat similar situations in dissimilar ways.”) (citation 

and footnote omitted)); see also id. (“Indeed, a principal 

justification for the administrative state is that in ‘areas of 

limitless factual variations, like cases will be treated 

alike.’”) (quoting Nat’l Muffler Dealers Ass’n v. United States, 

440 U.S. 472, 477 (1979) (citations omitted)) (also quoting 

South Shore Hosp., Inc. v. Thompson, 308 F.3d 91, 101 

(1st Cir. 2002) (“The goal of regulation is not to provide exact 

uniformity of treatment, but, rather, to provide uniformity of 

rules so that those similarly situated will be treated 

alike.”)); Trs. in Bankruptcy of N. Am. Rubber Thread Co. 

v. United States, 32 CIT 663, 665, 558 F. Supp. 2d 1367, 1370 

(footnote continued) 
Consol. Ct. No. 15-00066 Page 14

Where the statutory language is sufficiently broad to 

permit a range of policy choices, the agency may change course 

from its prior practice and adopt a new approach within its 

statutory authority,40 but it must explain how the new policy is 

consistent with the continued relevance (if any) of the factual 

findings on which the agency’s prior policy was based.41

“[A] reasoned explanation is needed for disregarding facts and 

circumstances that underlay or were engendered by the prior 

(2008) (“Generally, an agency action is arbitrary when the 

agency offers insufficient reasons for treating similar 

situations differently.”) (quotation and alteration marks and 

citation omitted).

40 See, e.g., Nakornthai Strip Mill Pub. Co. v. United States, 

32 CIT 1272, 1276, 587 F. Supp. 2d 1303, 1307 (2008) (“Commerce 

has discretion to change its policies and practices as long as 

they are reasonable and consistent with their statutory mandate 

and may adapt its views and practices to the particular 

circumstances at hand, so long as the agency’s decisions are 

explained and supported by substantial evidence on the record.”) 

(quotation and alteration marks and citation omitted). 

41 See British Steel PLC v. United States, 127 F.3d 1471, 1475 

(Fed. Cir. 1997) (“An agency is obligated to follow [its] 

precedent, and if it chooses to change, it must explain why.”) 

(quotation marks and citation omitted); State Farm, 463 U.S. 

at 46–48 (holding that an agency may not change course without 

addressing the continued relevance of factual findings on which 

the agency’s prior policy was based); FCC v. Fox Television 

Stations, Inc., 556 U.S. 502, 537 (2009) (J. Kennedy, concurring 

in part and concurring in judgment) (explaining that State Farm 

followed the principle that an agency “cannot simply disregard 

contrary or inconvenient factual determinations that it made in 

the past, any more than it can ignore inconvenient facts when it 

writes on a blank slate”). 
Consol. Ct. No. 15-00066 Page 15

policy.”42 Thus, “when departing from its own precedent, 

Commerce must explain its departure,”43 providing a rational link 

between the facts found and the conclusions reached, after 

considering all important aspects of the problem.

DISCUSSION

I. Remand on Other Grounds Makes Reaching Due Process 

Arguments Unnecessary. 

Because remand of Commerce’s final Solar II Taiwan 

scope determinations is warranted on other grounds,44 and because 

the parties will therefore have ample opportunity to address the 

scope issues on remand, Plaintiffs’ due process challenges to 

the final scope determination are moot. The court therefore 

offers no opinion in this regard. 

In addition, Kyocera’s claim that, as a third-country 

assembler of Taiwanese solar cells into panels, it was deprived 

of its “right to participate in the investigation as a 

respondent and submit information demonstrating that it was not 

42 Fox, 556 U.S. at 516. 

43 Nakornthai, 32 CIT at 1276, 587 F. Supp. 2d at 1308 (citing 

and quoting Trs. in Bankruptcy of N. Am. Rubber Thread Co. 

v. United States, 31 CIT 2040, 2047, 533 F. Supp. 2d 1290, 1297 

(2007) (“Commerce [must] attempt to distinguish the reasoning 

set forth in [prior cases] from the present case.”) (alterations 

in Nakornthai)). 

44 See infra Discussion Section IV. 
Consol. Ct. No. 15-00066 Page 16

dumping solar products”45 is entwined with the scope 

determinations remanded here and in Solar II PRC.46 Accordingly, 

this matter will be clarified once the issues remanded here are 

resolved, and the scope of these proceedings is finalized.

II. Commerce’s Final Solar II Taiwan Scope Modification’s 

Effect On the Databases Used Throughout the Investigation 

Plaintiffs next argue that Commerce’s final Solar II 

Taiwan scope determination unlawfully altered the sales 

databases relied on throughout the investigation, resulting in 

incongruence between the sales used to determine dumping 

liability and those ultimately covered by the order.47 Because 

45 Kyocera’s Br., ECF Nos. 29 & 30, at 25.

46 See infra Discussion Sections IV, VI, & VII; Solar II PRC Slip 

Op., Slip Op. 16-56, Consol. Ct. No. 15-00067, ECF No. 98, 

at Discussion Section IV. 

47 See SunEdison’s Br., ECF Nos. 32 & 33, at 28 (“In reporting 

U.S. sales in their questionnaire responses, Commerce instructed 

the Taiwan respondents to follow . . . a scope definition that 

Commerce totally abandoned long after verifications of those 

responses were completed . . . .”); id. at n.14 (noting that in 

Solar II PRC Commerce had emphasized that its final scope 

modification “‘result[ed] in no change to [the mandatory 

respondents’] reported database[s]’”) (quoting Issues & Decision 

Mem., Certain Crystalline Silicon Photovoltaic Products from the 

[PRC], A-570-010, Investigation (Dec. 15, 2014) (adopted in 

79 Fed. Reg. 76,970 (Dep’t Commerce Dec. 23, 2014) (final 

determination of sales at less than fair value)) (“Solar II PRC 

AD I&D Mem.”) cmt. 1 at 19); Kyocera’s Br., ECF Nos. 29 & 30, 

at 7 (quoting Kyocera’s administrative case brief below 

(“[Commerce’s scope modification changed the scope from that] 

used in [Commerce]’s selection of mandatory respondents [and] 

. . . the International Trade Commission’s injury investigation, 

which has undertaken no analysis of the impact of third-country 

(footnote continued) 
Consol. Ct. No. 15-00066 Page 17

this claim also implicates the specific agency decisions that 

are remanded here and in Solar II PRC,48 the court also defers 

consideration of this matter until the issues remanded here are 

resolved, and the scope of these proceedings is finalized.

III. Commerce’s Final Solar II Taiwan Scope Determination Was 

Not Contrary to Explicit Statutory and Regulatory 

Requirements.

Next, Plaintiffs argue that Commerce’s final Solar II 

Taiwan scope determination was contrary to one or more 

statutory/regulatory provisions.49 Each argument is addressed in 

turn.

solar modules on the domestic industry.”)); but see Solar II ITC 

Final Determination, supra note 7, at 7 (“The [International 

Trade] Commission recognized early in these [Solar II PRC and 

Solar II Taiwan] investigations that changes in the scopes were 

likely and took steps to ensure that it collected the 

information that would allow it to fulfill its statutory 

obligations. In the questionnaires issued in the final phase of 

these investigations, the Commission asked U.S. producers and 

importers to segregate their import data into sixteen 

categories, which were designed to provide the Commission with 

flexibility to adjust the data to conform to different possible 

scope definitions. The manner in which the Commission collected 

the data in these investigations permitted the agency and the 

parties to consider and evaluate the implications of various 

possible scope definitions to the Commission’s analysis.”) 

(citations omitted).

48 See infra Discussion Sections IV, VI, & VII; Solar II PRC 

Slip Op., Slip Op. 16-56, Consol. Ct. No. 15-00067, ECF No. 98, 

at Discussion Section IV. 

49 See supra notes 21-25 and accompanying text. 
Consol. Ct. No. 15-00066 Page 18

A. 19 U.S.C. § 1673

SunEdison argues that Commerce impermissibly “assigned 

to [the statutory phrase] ‘a class or kind of foreign 

merchandise’ different and inconsistent meanings for the same 

merchandise – modules containing Taiwanese-origin cells – 

depending on where the module assembly took place.”50

But as explained in the Solar II PRC opinion, it is 

well-established that the scope of an antidumping order is 

defined by two separate inquiries – (1) is the product within 

the relevant class/kind of merchandise? and (2) did the product 

originate in the country covered by the order?51 Here, the 

relevant class/kind of merchandise is solar cells, whether or 

not assembled into panels.52 The essence of the parties’ dispute 

concerns the second inquiry – Commerce’s rule for determining 

whether a given product within this class/kind of merchandise 

originates in the country covered by the order. Commerce did 

50 SunEdison’s Br., ECF Nos. 32 & 33, at 14 (quoting 19 U.S.C. 

§ 1673).

51 Solar II PRC Slip Op., Slip Op. 16-56, Consol. Ct. No. 15-

00067, ECF No. 98, at 25 (quoting and citing relevant 

authorities).

52 See Solar II Taiwan I&D Mem. Section III (Scope of the 

Investigation) at 4 (“The merchandise covered by this 

investigation is crystalline silicon photovoltaic [i.e., solar] 

cells, and modules, laminates and/or panels consisting of [such] 

cells, whether or not partially or fully assembled into other 

products, including building integrated materials.”).
Consol. Ct. No. 15-00066 Page 19

not assign different and inconsistent meanings to the phrase 

“class or kind of foreign merchandise” in 19 U.S.C. § 1673, but 

rather applied two different origin rules to products within 

this class or kind of merchandise, depending on where the solar 

cells were assembled into panels.53 Because the statute does not 

directly address this concern, Commerce’s decision in this 

regard was not explicitly contrary to the plain language of 

19 U.S.C. § 1673. 

B. 19 U.S.C. § 1677b(a) & 1677(16)(A)-(C) 

SunEdison also argues that, because “[t]he statute 

defines the term ‘country’ as limited to a single country for 

purposes of antidumping proceedings,”54 it therefore “compels a 

uniform test to determine when the foreign like product is 

‘produced in the same country’ as subject merchandise, because 

multiple tests arbitrarily create a mismatch between the 

universes [i.e., respective scopes] of subject merchandise and 

the foreign like product.”55 Because this claim is related to 

53 See infra Discussion Section IV; Solar II PRC Slip Op., 

Slip Op. 16-56, Consol. Ct. No. 15-00067, ECF No. 98, 

at Discussion Section IV. 

54 SunEdison’s Br., ECF Nos. 32 & 33, at 14-15 (quoting 19 U.S.C. 

§ 1677(3)).

55 Id. (quoting 19 U.S.C. § 1677(16)) (also citing and quoting 

Slater Steels v. United States, 27 CIT 1786, 1788, 297 F. Supp. 

2d 1362, 1364 (2003) (“Under any of these definitions [of normal 

value], both the ‘foreign like product’ and the ‘subject 

(footnote continued) 
Consol. Ct. No. 15-00066 Page 20

one of the grounds for remand, both here and in Solar II PRC,56

the court will defer its adjudication of this issue until the 

agency has had an opportunity to reconsider on remand.

 C. 19 U.S.C. § 1677j(b) & 19 C.F.R. § 351.225(h) 

Next, Kyocera argues that Commerce’s decision – to 

include, within the scope of this order on merchandise from 

Taiwan, all Taiwanese solar cells that are assembled into panels 

in Taiwan or in other countries (except those that are assembled 

into panels in China) – should be evaluated under 19 U.S.C. 

§ 1677j(b) (dealing with circumvention of existing antidumping 

duty orders) and 19 C.F.R. § 351.225(h) (providing for 

Commerce’s issuance of scope rulings, under existing antidumping 

duty orders, for “products completed or assembled in other 

foreign countries”).57

As Kyocera acknowledges, however, these provisions 

apply to circumstances where an order with a defined scope is 

already in effect,58 whereas here Commerce was defining the scope 

merchandise’ must be in the same country as the merchandise that 

is the subject of the investigation.”) (footnote omitted).

56 See infra Discussion Sections IV & VI; Solar II PRC Slip Op., 

Slip Op. 16-56, Consol. Ct. No. 15-00067, ECF No. 98, 

at Discussion Section IV.

57 Kyocera’s Br., ECF Nos. 29 & 30, at 11-16. 

58 See id. at 14; 19 U.S.C. § 1677j(b)(1)(A)(i) (providing that 

this provision applies to “merchandise imported into the United 

States [that] is of the same class or kind as any merchandise 

(footnote continued) 
Consol. Ct. No. 15-00066 Page 21

of an order prior to its imposition. Although Kyocera argues 

that this distinction is immaterial,59 the distinction is in fact 

significant. Here, Commerce is fashioning the foundational 

scope of a proceeding, before the imposition of the order, 

rather than extending an existing order to cover new merchandise 

so as to address circumvention of an order’s pre-existing scope.

19 U.S.C. § 1677j(b) and 19 C.F.R. § 351.225(h) are therefore 

inapposite to the specific issues presented here. 

D. Congress Did Not Bind Commerce To Always Use The 

Substantial Transformation Test To Establish the 

Origin of Products Manufactured in Multiple Countries. 

Finally, Congress did not require Commerce to continue 

to use its substantial transformation test60 when determining the 

produced in a foreign country that is the subject of . . . an

antidumping duty order [that is already] issued”) (emphasis 

added); 19 C.F.R. § 351.225(h) (noting that this regulatory 

provision applies once an antidumping duty order “is [already] 

in effect”). 

59 See Kyocera’s Br., ECF Nos. 29 & 30, at 14 (arguing that “the 

same reasoning applies” regardless of whether Commerce is 

initially establishing an origin rule for a class of merchandise 

in which products are manufactured in more than one country, or 

whether the agency is subsequently asked to cover additional 

merchandise that was not previously covered by the origin rule 

initially established).

60 See infra Discussion Section V (discussing Commerce’s 

substantial transformation test); Solar II Taiwan I&D Mem. 

cmt. 1 at 19-23 (applying the substantial transformation test to 

determine the origin of all panels assembled from solar cells 

made outside the country-of-assembly, except panels assembled in 

China); Solar II PRC Slip Op., Slip Op. 16-56, Consol. Ct. 

No. 15-00067, ECF No. 98, at Background Sections I & II, and 

(footnote continued) 
Consol. Ct. No. 15-00066 Page 22

origin of (and hence the appropriate foreign market for 

calculating the comparison normal values for) merchandise 

manufactured in multiple countries.61 Because the plain language 

of the antidumping statute does not unambiguously prescribe any 

specific approach to origin determinations, Commerce may 

exercise reasonable discretion in selecting a reasonable method 

for such determinations.62 Thus even if SunEdison were correct 

that, by revisiting the antidumping law without explicitly 

rejecting Commerce’s prior use of the substantial transformation 

test to determine the origin of products made in multiple 

countries, Congress ratified the agency’s use of this test,63 it 

does not follow that the agency is therefore required to always 

exercise its discretion in the same way. That Congress did not 

reject the agency’s particular exercise of discretion is not 

equivalent to a requirement that the agency must always exercise 

Discussion Section IV (providing additional background and 

discussion).

61 See SunEdison’s Br., ECF Nos. 32 & 33, at 21-25 (making the 

argument that “Congress bound Commerce to use the substantial 

transformation test to determine the scope of [all] antidumping 

duty orders”). 

62 See supra Standard of Review Section. 

63 See SunEdison’s Br., ECF Nos. 32 & 33, at 21-25 (making this 

argument).
Consol. Ct. No. 15-00066 Page 23

its discretion using the same method.64

IV. Commerce’s Final Solar II Taiwan Scope Determination Is 

Remanded for Consistency with the Solar II PRC Proceedings. 

Next, SunEdison argues that Commerce’s final Solar II 

Taiwan scope determination unlawfully departed from prior 

practice without sufficient explanation.65 Both here in Solar II 

Taiwan and in Solar II PRC, Commerce established two different 

origin rules for solar panels, depending on where they are 

assembled.66 As this Court has already ruled with regard to the 

64 See, e.g., Nakornthai, 32 CIT at 1276, 587 F. Supp. 2d at 1307 

(“Commerce has discretion to change its policies and practices 

as long as they are reasonable and consistent with their 

statutory mandate and may adapt its views and practices to the 

particular circumstances . . . at hand, so long as the agency’s 

decisions are explained and supported by substantial evidence on 

the record.”) (quotation and alteration marks and citation 

omitted). SunEdison’s argument regarding the Statement of 

Administrative Action (“SAA”), SunEdison’s Br., ECF Nos. 32 

& 33, at 24 (arguing that the SAA requires Commerce to always 

use the substantial transformation test to determine the origin 

of products manufactured in multiple countries) (quoting Uruguay 

Round Agreements Act, SAA, H.R. Doc. No. 103–316 (1994) at 844, 

reprinted in 1994 U.S.C.A.A.N. 4040 (“Outside of a situation 

involving circumvention of an antidumping duty order, a 

substantial transformation of a good in an intermediate country 

would render the resulting merchandise a product of the 

intermediate country rather than the original country of 

production.”)), is unpersuasive for the same reason. That the 

SAA accepts “substantial transformation” as sufficient to 

determine country-of-origin does not mean that it requires this 

test as necessary for that purpose.

65 See SunEdison’s Br., ECF Nos. 32 & 33, at 12-13, 21-22. 

66 See Solar II Taiwan I&D Mem. cmt. 1 at 23 (“[S]olar modules 

assembled in the PRC using Taiwanese cells are within the scope 

of, and therefore subject to, the [Solar II PRC] investigations 

(footnote continued) 
Consol. Ct. No. 15-00066 Page 24

Solar II PRC proceedings, in doing so, Commerce did not provide 

sufficient explanation for (1) departing from the agency’s prior 

practice of establishing a single consistent origin rule for all 

products within a single class or kind of merchandise; 

(2) treating similarly-situated products differently; and 

(3) departing from the agency’s prior practice of calculating 

the foreign like product’s normal value in the market where the 

majority of production of the subject merchandise took place.67

Because the final Solar II Taiwan scope incorporates 

the Solar II PRC exception for solar panels assembled in China – 

which exempts all such panels from the otherwise generallyapplicable rule that the origin of solar panels is determined by 

the origin of their constituent cells68 – these same concerns are 

also implicated here.69 Accordingly, Commerce’s final Solar II 

as Chinese modules . . . . This is in contrast to cells from 

Taiwan which are used in the assembly of solar modules in other 

countries . . ., [which] are considered Taiwanese in origin, and 

are within the scope of this [Solar II Taiwan] investigation.”) 

(footnote omitted); Solar II PRC Slip Op., Slip Op. 16-56, 

Consol. Ct. No. 15-00067, ECF No. 98, at Background Section II 

& Discussion Section IV. 

67 Solar II PRC Slip Op., Slip Op. 16-56, Consol. Ct. 

No. 15-00067, ECF No. 98, at Discussion Section IV. 

68 See, e.g., Solar II Taiwan I&D Mem. cmt. 1 at 24 (“[T]he solar 

cell determines the country of origin, unless manufactured into 

a module, laminate or panel in the PRC.”). 

69 The Government’s additional reliance here on Certain Softwood 

Lumber Products from Canada, 67 Fed. Reg. 15,545 (Dep’t Commerce 

Apr. 2, 2002) (notice of final affirmative countervailing duty 

(footnote continued) 
Consol. Ct. No. 15-00066 Page 25

Taiwan scope determination must be remanded for the same reasons 

as those elaborated in the court’s prior opinion,70 to ensure 

that the agency’s approach in these proceedings is consistent. 

determination and final negative critical circumstances 

determination) (“Softwood Lumber from Canada”), in support of 

the proposition that “[s]uch exclusions [as the exception from 

the general origin rule for panels assembled in China] are 

common,” Def.’s Resp. in Opp’n to Pls.’ Rule 56.2 Mots. for J. 

on the Agency R., ECF Nos. 44 (conf. version) & 45 (pub. 

version), at 33 (citing Softwood Lumber from Canada, 67 Fed. 

Reg. at 15,547), is unpersuasive. In that case, Commerce 

exempted softwood lumber products made in certain Canadian 

Provinces (referred to as the “Maritime Provinces”) from its 

countervailing duty investigation, Softwood Lumber from Canada, 

67 Fed. Reg. at 15,547 (citing Certain Softwood Lumber Products 

from Canada, 66 Fed. Reg. 40,228 (Dep’t Commerce Apr. 2, 2001) 

(amendment to the notice of initiation of countervailing duty 

investigation)), due to “unique circumstances,” 66 Fed. Reg. 

at 40,228. Specifically, Commerce explained that “[t]hroughout 

much of the history of this dispute, the Maritime Provinces have 

been exempt from the various actions taken,” and that (unlike 

here, with regard to solar panels) “[a]ll parties have generally 

recognized that there are unique circumstances associated with 

the Maritime Provinces and have supported those exemptions.” Id. 

at 40,229. Thus not only was the exemption uncontested and 

non-controversial (unlike here), the Softwood Lumber from Canada 

example is in any event inapposite to the issue presented here 

and in Solar II PRC with respect to the multiple origin rules 

established for solar panels. Here the issue is not (as in 

Softwood Lumber from Canada) that some products were exempted 

from antidumping/countervailing duty liability (for whatever 

political reasons), but rather that some products within the 

class or kind of merchandise are treated using a different rule 

than that which is otherwise generally applicable to products 

within that overall class/kind. Softwood Lumber from Canada is 

not an example of a case where the agency has established two 

different national origin rules for products within the same 

class or kind of merchandise.

70 See Solar II PRC Slip Op., Slip Op. 16-56, Consol. Ct. No. 15-

00067, ECF No. 98, at Discussion Section IV. 
Consol. Ct. No. 15-00066 Page 26

V. Commerce’s Determination that Solar Cells Are Not 

Substantially Transformed When Assembled Into Panels Is 

Supported by Substantial Evidence. 

Next, Plaintiff Kyocera argues that the Taiwanese 

cells used to assemble Kyocera’s solar panels in Mexico are 

substantially transformed in Mexico, such that they cannot be 

assessed antidumping liability as products of Taiwan.71

Here, as in Solar I PRC, Commerce employed the 

substantial transformation test that is the agency’s “usual 

starting point” when deciding which country’s foreign market 

should provide the basis for the antidumping liability of 

products produced in multiple countries.72 Using this test, 

Commerce found that (1) solar cells and panels are within the 

same class or kind of merchandise; (2) solar panel assembly does 

not change the nature or use of the product’s essential 

component, the solar cell; and (3) solar panel assembly does not 

constitute substantial or sophisticated processing of the 

constituent solar cells.73 Accordingly, Commerce concluded that, 

71 See Kyocera’s Br., ECF Nos. 29 & 30, at 18-23; see also id. 

at 7. 

72 Solar II Taiwan I&D Mem. cmt. 1 at 18; compare id. at 19-21, 

with Solar I PRC Scope Clarification Mem., Consol. Ct. 

No. 15-00067, ECF No. 58-3 at Tab 1 Ex. 2, at 8 (unchanged in 

Solar I PRC AD I&D Mem. cmt. 1 at 6-7).

73 Solar II Taiwan I&D Mem. cmt. 1 at 19-21 (explicitly also 

relying on the analysis conducted for the same class/kind of 

merchandise in Solar I PRC).
Consol. Ct. No. 15-00066 Page 27

“consistent with [the] determination in Solar I [PRC],” panel 

assembly does not substantially transform the constituent solar 

cells so as to change the cells’ country-of-origin.74

Kyocera argues that Commerce should have instead 

concluded that solar cells are substantially transformed when 

assembled into panels in Mexico, such that a solar panel’s 

country-of-origin for antidumping purposes should be the country 

in which the panel is assembled, rather than the country where 

the constituent cells are produced.75 But Kyocera does not 

directly challenge the factors that Commerce has chosen to use 

for determining whether components produced in a country 

different from where they are then incorporated into a finished 

product are so transformed in the exporting country as to 

justify an assessment of antidumping liability based on normal 

values calculated in the market of ultimate assembly, rather 

74 See id.; see also Solar I PRC Scope Clarification Mem., 

Consol. Ct. No. 15-00067, ECF No. 58-3 at Tab 1 Ex. 2, at 8 

(“[W]here solar cell production occurs in a different country 

from solar module assembly, the country-of-origin of the solar 

modules/panels is the country in which the solar cell was 

produced.”) (unchanged in Solar I PRC AD I&D Mem. cmt. 1 

at 6-7); Solar II PRC AD I&D Mem. cmt. 1 at 15 (“[Commerce] 

determined in [Solar I PRC] that the solar cell [is] the 

essential active component of the module, [and] that assembly of 

cells into modules [does] not constitute substantial 

transformation such that the assembled module could be 

considered a product of the country of assembly . . . .”) 

(citation omitted). 

75 See Kyocera’s Br., ECF Nos. 29 & 30, at 7, 18-23. 
Consol. Ct. No. 15-00066 Page 28

than the market of component production.76

Instead of making an argument about the reasonableness 

of the factors of analysis that Commerce actually employed here, 

Kyocera argues that Commerce should have used a different test, 

analogizing this case to country-of-origin analyses undertaken 

by different agencies in contexts unrelated to antidumping.77

But Customs’ country-of-origin determinations, made pursuant to 

and in furtherance of entirely different statutory authority, 

are inapposite to the issue presented here.78

76 See id. 

77 See id. at 19-21 (arguing that Commerce should have used the 

country-of-origin test applied by the predecessor to U.S. 

Customs & Border Protection (“Customs”) in Koru N. Am. v. United 

States, 12 CIT 1120, 701 F. Supp. 229 (1998), enforcing 

country-of-origin marking requirements under 19 U.S.C. § 1304 

(1982), see Koru, 12 CIT at 1125-26, 701 F. Supp. at 233-34); 

id. at 22-23 (arguing that Texas Instruments, Inc. v. United 

States, 681 F.2d 778 (CCPA 1982), in which the court reviewed 

Customs’ interpretation of 19 C.F.R. § 10.177(a) (1982), 

relating to country-of-origin determinations for purposes of the 

U.S. Generalized System of Preferences, see Texas Instruments, 

681 F.2d at 781-82, constitutes “binding authority” in this 

case).

78 See Certain Cold-Rolled Carbon Steel Flat Products from 

Argentina, 58 Fed. Reg. 37,062, 37,065 (Dep’t Commerce July 9, 

1993) (notice of final determination of sales at less than fair 

value) (“Cold-Rolled Steel from Argentina”) (explaining that the 

statutory provisions governing Customs’ country-of-origin 

determinations are separate from those governing Commerce’s 

antidumping determinations, such that imported products may be 

determined by different agencies to have different origins for 

different statutory purposes); see also, e.g., Wax & Wax/Resin 

Thermal Transfer Ribbon from the Republic of Korea, 69 Fed. Reg. 

17,645, 17,648 (Dep’t Commerce Apr. 5, 2004) (notice of final 

(footnote continued) 
Consol. Ct. No. 15-00066 Page 29

Here, Commerce exercised its discretion to use the 

test that it had previously established for determining which 

country will be used to calculate normal values for antidumping 

duty assessment when products are manufactured in multiple 

countries.79 Kyocera neither addresses this particular analysis 

nor makes any specific argument as to why it was not reasonable 

determination of sales at not less than fair value) (“Ribbon 

from Korea”) (“As [Commerce] has stated on numerous occasions, 

[Customs] decisions regarding substantial transformation and 

customs regulations . . . are not binding on [Commerce], because 

we make these decisions with different aims in mind (e.g., 

anticircumvention).”) (citation omitted); Stainless Steel Round 

Wire from Canada, 64 Fed. Reg. 17,324, 17,327 (Dep’t Commerce 

Apr. 9, 1999) (notice of final determination of sales at less 

than fair value) (“[W]e reiterate that the disciplines of the 

[World Trade Organization] Agreement on Rules of Origin that are 

currently in effect under Article 2 of the Agreement simply do 

not require us to apply the country-of-origin determinations 

made by the Customs Service when making determinations in 

[antidumping] proceedings.”).

79 See Solar II Taiwan I&D Mem. cmt. 1 at 19 (relying on Issues 

& Decision Mem., Glycine from India, A-533-845, Investigation 

(Mar. 28, 2008) (adopted in 73 Fed. Reg. 16,640 (Dep’t Commerce 

Mar. 28, 2008) (notice of final determination of sales at less 

than fair value)) (“Glycine from India”) at cmt. 5); see Glycine 

from India cmt. 5 at 5-6 (“The Department applies, as 

appropriate, the following criteria in determining whether 

substantial transformation occurs, thereby changing a product’s 

country of origin [for antidumping purposes]: 1) whether the 

processed downstream product falls into a different class or 

kind of product when compared to the upstream product, 

2) whether the essential component of the merchandise is 

substantially transformed in the country of exportation, 

and 3) the extent of processing.”) (citing Ribbon from Korea, 

69 Fed. Reg. at 17,647; Erasable Programmable Read Only Memories 

(EPROMs) from Japan, 51 Fed. Reg. 39,680, 39,692 (Dep’t Commerce 

Oct. 30, 1986) (final determination of sales at less than fair 

value)).
Consol. Ct. No. 15-00066 Page 30

for the agency to apply its usual test in this case.80 Nor does 

Kyocera present any argument, or point to any record evidence, 

to suggest that Commerce’s conclusions in applying the three 

factors of its substantial transformation test81 to the evidence 

here82 do not comport with a reasonable reading of the 

evidentiary record.83

80 See Kyocera’s Br., ECF Nos. 29 & 30, at 18-23. 

81 See supra note 79 (quoting and providing relevant citations 

for Commerce’s statement of the factors employed in its 

substantial transformation test). 

82 See supra note 73 and accompanying text (summarizing and 

providing relevant citation for Commerce’s evidentiary 

findings).

83 See supra Standard of Review Section. Kyocera attempts to 

analogize this case to Diamond Sawblades Mfrs.’ Coalition 

v. United States, Slip Op. 13-130, 2013 WL 5878684 (CIT Oct. 11, 

2013), Kyocera’s Br., ECF Nos. 29 & 30, at 21-22, where the 

court affirmed Commerce’s determination that, with respect to 

the class/kind of merchandise containing diamond sawblades, “the 

essential quality of the [finished] product is not imparted 

until the [components] are attached to create a finished 

[diamond sawblade],” Diamond Sawblades, 2013 WL 5878684 at *10-

11. But the court’s unrelated decision that Commerce reasonably 

weighed the particular evidentiary record in a different case, 

concerning a different class/kind of merchandise, has no bearing 

on whether Commerce’s factual determinations with respect to the 

products in this case are reasonably supported by the specific 

evidentiary record presented here. And to the extent that 

Kyocera simply invites the court to re-weigh the evidence to 

conclude that the process of panel assembly does substantially 

transform the solar cells used in panel production, 

see Kyocera’s Br., ECF Nos. 29 & 30, at 20-23, it is not the 

court’s providence to do so. See, e.g., Jiangsu Jiasheng 

Photovoltaic Tech. Co. v. United States, __ CIT __, 

121 F. Supp. 3d 1263, 1272 (2015); Pakfood Pub. Co. v. United 

States, 34 CIT 1122, 724 F. Supp. 2d 1327, 1348 (2010).
Consol. Ct. No. 15-00066 Page 31

Accordingly, this case presents no basis to disturb 

Commerce’s factual findings that (1) solar cells and panels are 

within the same class or kind of merchandise; (2) solar panel 

assembly does not change the nature or use of the product’s 

essential component, the solar cell; and (3) solar panel 

assembly does not constitute substantial or sophisticated 

processing of the constituent solar cells.84 Nor do the parties 

present a basis to disturb the agency’s consequent conclusion 

that the cell is not substantially transformed in the process of 

panel assembly so as to change the cell’s country-of-origin, 

pursuant to Commerce’s usual substantial transformation test in 

the antidumping context.

VI. Assessment of Antidumping Duties Based on the Full Value of 

Solar Panels Assembled in Third Countries from Taiwanese 

Cells

Plaintiffs also challenge Commerce’s decision to apply 

antidumping duties to the full value of solar panels assembled 

in other countries from cells produced in Taiwan, rather than 

only the value of the constituent Taiwanese cells.85 But as 

84 Solar II Taiwan I&D Mem. cmt. 1 at 19-21.

85 SunEdison’s Br., ECF Nos. 32 & 33, at 10, 54-56; Kyocera’s 

Br., ECF Nos. 29 & 30, at 8, 15-16, 25-26; see Solar II Taiwan 

I&D Mem. cmt. 1 at 24 n.80 (“[W]ith regard to [the] argument 

that [Commerce] should take into consideration the processing 

done in the country that produces the cell and the country that 

produces the module, laminate or panel, and then only apply 

(footnote continued) 
Consol. Ct. No. 15-00066 Page 32

explained in the Solar II PRC opinion, Commerce previously had a 

reasonable policy of applying antidumping duties to the full 

value of merchandise that is manufactured in part in countries 

other than the subject country, because the statute requires 

that Commerce assess such duties “in an amount ‘equal to the 

amount by which the foreign market value [now referred to as 

‘normal value’] of the merchandise [i.e., the entire finished 

product] exceeds the United States price of the merchandise.’”86

[antidumping] duties to the portion of the processing that was 

done in Taiwan, we disagree. Solar modules assembled in thirdcountries using Taiwanese solar cells are covered by the scope 

of the [Solar II Taiwan] investigation, no matter the amount of 

processing done in the third country. Thus the full value of 

these solar modules [is] subject to . . . applicable antidumping 

duties.”).

86 Cold-Rolled Steel from Argentina, 58 Fed. Reg. at 37,065 

(quoting predecessor to 19 U.S.C. § 1673e (requiring assessment 

of antidumping duties “equal to the amount by which the normal 

value of the merchandise exceeds the export price (or 

constructed export price) of the merchandise”)); see also Large 

Newspaper Printing Presses and Components Thereof, Whether 

Assembled or Unassembled, from Germany, 61 Fed. Reg. 38,166, 

38,171 (Dep’t Commerce July 23, 1996) (notice of final 

determination of sales at less than fair value) (“LNPPs from 

Germany”) (“[A]ny interpretation [of the law] which sought to 

limit the application of antidumping duties . . . to the foreign 

content [attributable solely to a particular country] would be 

inconsistent with [Commerce]’s statutory mandate to assess 

antidumping duties on the extent to which the normal value . . . 

(previously referred to as ‘foreign market value’) exceeds the 

export price (previously referred to as ‘United States price’).

Application of antidumping duties only on [a particular 

country’s partial] processing or content portion of the import 

might mean that the margin of dumping would not be fully 

offset.”) (citing Certain Corrosion-Resistant Carbon Steel 

Products from Canada, 58 Fed. Reg. 37,099 (Dep’t Commerce 

(footnote continued) 
Consol. Ct. No. 15-00066 Page 33

As Commerce had previously explained, because the foreign market 

value of the finished foreign like product is not necessarily 

subdivisible, “[a]pplication of antidumping duties only on [a 

particular country’s partial] processing or content portion of 

the import might mean that the margin of dumping would not be 

fully offset.”87

But as also discussed in the Solar II PRC opinion, 

this policy of assessing antidumping duties on the full value of 

finished products was also coupled with Commerce’s policy of 

calculating normal value using foreign like products in the 

country where most of the essential production of the subject 

merchandise took place.88 Because the statute requires a fair 

comparison between the U.S. export price of the subject 

merchandise and the normal value of the foreign like product,89

Commerce had, prior to its decisions in Solar II PRC and 

Solar II Taiwan, reasonably assessed antidumping duties on the 

July 9, 1993) (final determination of sales at less than fair 

value), aff’d, In the Matter of Certain Corrosion-Resistant 

Carbon Steel Products from Canada, USA-93-1904-03 (Binational 

Panel under the United States-Canada Free Trade Agreement 

Oct. 31, 1994)); Solar II PRC Slip Op., Slip Op. 16-56, Consol. 

Ct. No. 15-00067, ECF No. 98, at 32-35, 47-48.

87 LNPPs from Germany, 61 Fed. Reg. at 38,171. 

88 Solar II PRC Slip Op., Slip Op. 16-56, Consol. Ct. 

No. 15-00067, ECF No. 98, at 31-33, 38-39, 42-44. 

89 19 U.S.C. § 1677b(a)(1). 
Consol. Ct. No. 15-00066 Page 34

full value of finished products after calculating dumping 

margins using foreign normal values from the same market as that 

where most of the actual manufacturing of the subject 

merchandise occurred.90

Given this policy, Commerce reasonably determined to 

assess antidumping duties pursuant to the Solar II Taiwan order 

on the full value of the solar panels produced/imported by the 

Plaintiffs here, because it is undisputed that at least fifty 

percent of the production costs of Plaintiffs’ solar panels were 

incurred in the production of the panels’ constituent cells in 

Taiwan.91

90 Solar II PRC Slip Op., Slip Op. 16-56, Consol. Ct. 

No. 15-00067, ECF No. 98, at 43-44. 

91 See SunEdison’s Br., ECF Nos. 32 & 33, at 10, 54-56 (arguing 

that Commerce “must limit the collection of antidumping duty 

deposits and assessments to the value of Taiwanese-origin 

[solar] cells in the module,” without disputing that the 

majority of a solar panel’s production costs are incurred in the 

production of the constituent cells); Kyocera’s Br., ECF Nos. 29 

& 30, at 5, 8, 15-16, 25-26 (essentially same). Kyocera makes 

an argument regarding the value added by panel assembly as 

compared with the market value of the individual cells, 

Kyocera’s Br., ECF Nos. 29 & 30, at 5, 16, but as Commerce has 

explained, the agency is concerned with where the costs of 

production are incurred, rather than percentages of value added, 

because “we are primarily concerned with where [most of] the 

actual manufacturing is occurring.” LNPPs from Germany, 61 Fed. 

Reg. at 38,168; see also Cold-Rolled Steel from Argentina, 

58 Fed. Reg. at 37,065 (explaining that antidumping liability is 

not susceptible to subdivision using the market values of a 

finished product’s constituent parts, because “[antidumping] 

duties are not an assessment against value,” but are rather 

“determined by the amount of [ultimate] price discrimination 

(footnote continued) 
Consol. Ct. No. 15-00066 Page 35

But as the court also held in Solar II PRC, Commerce 

deviated from its prior policy by determining, in Solar II PRC 

and also here in Solar II Taiwan, that solar panels assembled in 

China from cells produced elsewhere are to be assessed 

antidumping duties based on a comparison to normal values 

calculated for China, rather than the market where most of the 

production of the panels (i.e., cell-production) took place.92

Because Commerce neither discussed nor reconciled this aspect of 

its Solar II PRC and Solar II Taiwan scope decisions with the 

agency’s prior policy and reasoning, remand is necessary for the 

agency to do so.93 The outcome of these remand proceedings will 

bear directly on the reasonableness of Commerce’s approach to 

antidumping duty assessment here.

Commerce’s Solar II PRC exception for solar panels 

assembled in China from non-Chinese cells (which is incorporated 

. . ., not by the value of the good”). In any event, even the 

evidence regarding the percentage of value added by panel 

assembly that Kyocera relies on does not dispute that a majority 

of the value of a solar panel resides in the constituent cells. 

See Kyocera’s Br., ECF Nos. 29 & 30, at 5 (citing [Kyocera’s] 

Req. for Scope Determination re Solar Prods. from Mexico, 

Certain Crystalline Silicon Photovoltaic Products from Taiwan, 

A-583-853, Investigation (Sept. 15, 2014), reproduced in App. to 

Pl.’s Rule 56.2 Mem. in Supp. of J. on the Agency R., ECF Nos. 

34 (conf. version) & 35 (pub. Version) at App. 2, at 4).

92 Solar II PRC Slip Op., Slip Op. 16-56, Consol. Ct. 

No. 15-00067, ECF No. 98, at 38-39, 45-46. 

93 Id.; see supra Discussion Section IV. 
Consol. Ct. No. 15-00066 Page 36

into the Solar II Taiwan scope94) seemingly abandons the agency’s 

reasonable prior policy, and thereby removes that policy’s 

explanatory power with respect to Commerce’s decision here. In 

the absence of such explanation, Commerce’s conclusory statement 

that antidumping duties will be assessed pursuant to Solar II 

Taiwan on the full value of solar panels assembled in third 

countries from Taiwanese cells simply because such panels “are 

covered by the scope of the [Solar II Taiwan] investigation, no 

matter the amount of processing done in the third country,”95 is 

by itself insufficient to address Plaintiffs’ arguments.96

Thus how Commerce addresses this concern on remand in 

94 See, e.g., Solar II Taiwan I&D Mem. cmt. 1 at 23. 

95 Id. at 24 n.80. 

96 See Solar II PRC Slip Op., Slip Op. 16-56, Consol. Ct. No. 15-

00067, ECF No. 98, at 24-25 (noting that it is well-established 

that the scope of an antidumping order is defined by two 

separate inquiries – (1) is the product within the relevant 

class/kind of merchandise? and (2) did the product originate in 

the country covered by the order?) (relying on Cold-Rolled Steel 

from Argentina, 58 Fed. Reg. at 37,065 (relied on by Commerce in 

Solar II Taiwan I&D Mem. cmt. 1 at 18 n.52); 3.5” Microdisks and 

Coated Media Thereof from Japan, 54 Fed. Reg. 6433 (Dep’t 

Commerce Feb. 10, 1989) (final determination of sales at less 

than fair value) (relied on in Cold-Rolled Steel from Argentina, 

58 Fed. Reg. at 37,065); and Solar II Taiwan I&D Mem. cmt. 1 

at 18 (“In determining the scope of the investigation, 

[Commerce] must not only address . . . the products intended to 

be covered by the scope, but also determine the country-oforigin of the solar products at issue.”)). In the absence of 

the explanatory power of its prior policy, Commerce’s 

explanation here appears to conflate these two separate 

inquiries.
Consol. Ct. No. 15-00066 Page 37

Solar II PRC, and here, will also have implications for the 

reasonableness of its decision with respect to this issue.

VII. Commerce’s Treatment of Sales of Taiwanese Cells to ThirdCountry Panel Assemblers For Export to the United States 

Finally, SunEdison challenges Commerce’s treatment of 

respondents’ “sales to third countries for which [the Taiwanese 

solar cell producers/exporters] ha[d] knowledge that the 

merchandise was ultimately destined for the United States.”97 A 

significant proportion of such sales, however, appear to have 

been sales of Taiwanese solar cells to panel assemblers in 

China,98 which Commerce specifically excluded as non-subject 

merchandise pursuant to the determinations that are remanded 

here and in Solar II PRC.99 The court will therefore defer its 

97 SunEdison’s Br., ECF Nos. 32 & 33, at 4 (quoting [Commerce’s] 

Quantity & Value Questionnaire, Certain Silicon Photovoltaic 

Products from Taiwan, A-583-853, Investigation (Jan. 29, 2014), 

reproduced in [Pub.] App. to Br. of Pl. [SunEdison] in Supp. of 

Pl.’s Mot. for J. Upon the Agency R., ECF No. 37-1 at Tab 22, 

at Attach. I (“Format for Reporting Quantity & Value of 

Sales”)); see id. at 29-49 (presenting this challenge); 

see also id. at 27 (“Commerce’s respondent selection was faulty 

because Taiwan respondents reported indirect U.S. sales of cells 

through China as ‘subject merchandise’ in accordance with 

Commerce’s instructions, yet Commerce in the end removed those 

transactions as ‘non-subject’ merchandise under its final scope 

determination[, and t]his eliminated many of their reported 

sales.”) (footnote omitted) & 49-54 (expanding this argument). 

98 See SunEdison’s Br., ECF Nos. 32 & 33, at 34-36. 

99 Solar II Taiwan I&D Mem. cmt. 1 at 23 (“Neither Taiwanese 

cells used to assemble solar modules in the PRC nor those solar 

modules are covered by the scope of this investigation. Rather, 

(footnote continued) 
Consol. Ct. No. 15-00066 Page 38

review of Commerce’s treatment of sales of Taiwanese cells to 

third-country panel assemblers that were reported as destined 

for export to the United States until the issues remanded here 

are resolved, and the scope of these proceedings is finalized.

CONCLUSION

For all of the foregoing reasons, the Solar II Taiwan 

final scope determination is remanded to Commerce for 

reconsideration in accordance with this opinion. Commerce shall 

have until August 15, 2016, to complete and file its remand 

results. Plaintiffs shall have until September , 2016, to 

file comments, and the agency and Defendant-Intervenor shall 

then have until September , 2016, to respond.

It is SO ORDERED. 

_____/s/ Donald C. Pogue_____ 

Donald C. Pogue, Senior Judge 

Dated: June 14, 2016 

 New York, NY 

solar modules assembled in the PRC using Taiwanese cells are 

within the scope of, and therefore subject to, the 

[Solar II PRC] AD and CVD investigations as Chinese modules 

. . . .”); Solar II PRC AD I&D Mem. cmt. 1 at 28 (“[S]olar cells 

assembled in China using solar cells manufactured in Taiwan are 

subject to [the Solar II PRC exception for panels assembled in 

China from non-Chinese inputs] and not [Solar II Taiwan].”) 

(citation omitted); see supra Discussion Sections IV & VI; 

Solar II PRC Slip Op., Slip Op. 16-56, Consol. Ct. No. 15-00067, 

ECF No. 98, at Discussion Section IV.