Slip Op. 15-136 

UNITED STATES COURT OF INTERNATIONAL TRADE 

KYOCERA SOLAR, INC. AND 

KYOCERA MEXICANA S.A. DE C.V., 

 Plaintiff, 

v. 

UNITED STATES, 

Defendant, 

AND 

SOLARWORLD AMERICAS, INC., 

Defendant-Intervenor. 

 Before: Nicholas Tsoucalas, 

Senior Judge 

 Court No. 15-00084 

PUBLIC VERSION 

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 DefendantIntervenor 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”) 

products1 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 nonsubject 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: 

 New York, New York 

December 7, 2015