Trade Courts Update for Week of December 9, 2015

United States Court of International Trade

 

Affirmed ITC Decision Regarding Solar Modules

Kyocera Solar, Inc. et al. v. United States et al., Court No. 15-84, Slip Op. 15-136 (December 7, 2015) came before the Court upon Plaintiff’s, Kyocera Solar Inc. (“KSI”) and Kyocera Mexicana 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-12461247 (Feb. 2015) (“ITC Decision”).  Defendant ITC and Defendant-Intervenor Solarworld Americas Inc. (“Solarworld”) opposed Plaintiff’s motion. The Court affirmed the Commission’s decision.

Kyocera, a producer of solar energy modules, began taking Taiwan solar cells and incorporating them into solar modules in Mexico.  The ITC decided to include those modules made in Mexico incorporating Taiwan cells into the scope of the injury determination for certain crystalline silicon photovoltaic products from China and Taiwan.  Kyocera argued 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. Kyocera argued that Commerce could have conducted an anti-circumvention inquiry and consulted with the Commission to determine the impact of the circumvention on the injury analysis.  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.” Slip Op. pg.  10.  However, because Commerce’s determinations were not at issue, the court did not address those arguments here.  Moreover, because the imports from Mexico of solar modules were not negligible, the Court saw no reason why the Commission’s decision should not be affirmed. 

 

Commerce’s Decision Regarding Scope of Aluminum Extrusion Orders were Remanded in Part

In Meridian Products, LLC  v. United States and Aluminum Extrusions Fair Trade Committee, Court No. 13-246, Slip Op. 15-135 (December 7, 2015), the court affirmed in part and remanded in part the final scope ruling regarding the countervailing duty and antidumping duty orders on aluminum extrusions from the People’s Republic of China (“the Orders”). Meridian Products LLC (“Meridian”) argued that the Final Scope Ruling was contrary to law and that Commerce should have excluded all three types of oven door handles from the scope of the Orders.

Type A handles were “finished handles” that were “for oven door assemblies,” which had “a radius arc and distinctive bow tie look” and were “brushed and anodized with mounting hole area that fits over a shoulder bolt on the oven doors.” Slip Op. at pg. 4-5.  The “Type C Handle Kit” was “a boxed consumer-installed freezer handle kits [sic]” that “contain[ed] one handle, one allen wrench, and installation instructions.” Id. “The handle . . . ha[d] an arc radius and drilled holes on the back to match the door holes for assembly” and “ha[d] the appearance of a bow tie.” Id.

Each Type A and each Type C handle was produced by fabrication that is performed on an extrusion consisting of an aluminum alloy covered by the Orders. Because the general scope language, i.e., the language not including the exclusions, describes these two handle types, and no exclusion within the scope language applies to either of them, they were correctly included in scope. On the other hand Type B handles, were not one-piece articles but instead were assemblies comprised of an extruded aluminum “middle handle bar extrusion piece” and “two plastic injection molded end caps.” Slip Op. at pg.9.

The court held that because an extrusion was defined as “a shape or form produced by an extrusion process” and because this definition did not cover assemblies containing an extrusion piece, the scope of the orders did not cover Type B handles. The court held that Commerce, therefore, must reconsider its determination that the Type B handles were within the scope and Commerce must be mindful that “its responsibility is to interpret, and not to enlarge, the scope language it previously placed in final form upon promulgation of the Orders.” Slip Op. pg. 16.   While Defendant-Intervenor argued that the subject handles were “subassemblies” within the scope of the Orders, the court could not sustain Commerce’s decision based on this reasoning, where (1) Commerce did not rely on such an argument, and (2) the subassembly language applied to “partially assembled merchandise,” where the subject goods were imported fully assembled. For these reasons the Court remanded in part Commerce’s decision regarding the scope of the Orders as it applied to the subject oven door handles.