[00:00:34] Speaker 02:
Our next case this morning is number 161348, Kyracera-Celler versus ITC, Mr. Horgan.

[00:00:45] Speaker 01:
And now for something completely different.

[00:00:48] Speaker 01:
May it please the court.

[00:00:50] Speaker 01:
The anti-dumping law contains an irrebuttable presumption that if imports of subject merchandise are negligible in amount, the investigation shall be terminated as to those imports.

[00:01:04] Speaker 01:
So when are imports negligible?

[00:01:07] Speaker 01:
Imports from a country of merchandise corresponding to a domestic-like product identified by the commission.

[00:01:14] Speaker 01:
are negligible if such imports account for less than three percent of the volume of such merchandise imported into the U.S.

[00:01:21] Speaker 02:
As I understand it, there's another proceeding pending which involves the question of whether these solar panels from Mexico should be treated as Taiwanese in origin or as Mexican in origin.

[00:01:34] Speaker 02:
Am I correct about that?

[00:01:36] Speaker 01:
There is a separate action contesting that determination.

[00:01:39] Speaker 02:
Right.

[00:01:39] Speaker 02:
So that's not for us to determine in this case.

[00:01:42] Speaker 01:
That's correct.

[00:01:43] Speaker 02:
So don't we then have to assume that the solar panels here imported from Mexico are in fact Taiwanese in origin?

[00:01:55] Speaker 02:
And if we have to make that assumption, doesn't that defeat your case?

[00:02:00] Speaker 01:
No, Your Honor, because the Commerce Department and the International Trade Commission have separate responsibilities.

[00:02:10] Speaker 01:
One determines injury, one determines whether they're dumping occurring.

[00:02:13] Speaker 01:
They determine the scope of the subject merchandise the Commerce Department does.

[00:02:18] Speaker 02:
But try to be more direct about it.

[00:02:22] Speaker 02:
If we treat these solar panels as being Taiwanese in origin, you lose, right?

[00:02:29] Speaker 01:
No, because these are imports.

[00:02:31] Speaker 01:
The language of the statute says they have to be imports from a country.

[00:02:36] Speaker 01:
These are imported from Mexico.

[00:02:38] Speaker 01:
They are not imported from Taiwan.

[00:02:40] Speaker 05:
Your argument, as I understand it, is that because they're imported from a country, being Mexico, that means that it doesn't matter that, in fact, they're Taiwanese in origin.

[00:02:53] Speaker 01:
It doesn't matter that they contain cells that are Taiwanese in origin.

[00:02:56] Speaker 01:
It doesn't matter that they were included as subject merchandise, which is what the Commerce Department determined, because the negligibility provision applies to subject merchandise.

[00:03:06] Speaker 02:
Let's assume that in the other proceedings, finally determined

[00:03:09] Speaker 02:
that these solar panels assembled in Mexico and imported from Mexico are Taiwanese in origin.

[00:03:17] Speaker 02:
And that's binding on us.

[00:03:19] Speaker 02:
So we now have a determination that these solar panels are Taiwanese in origin.

[00:03:24] Speaker 02:
How can we turn around and treat them as Mexican in origin for purposes of this negligibility determination?

[00:03:30] Speaker 01:
Because the language of the statute doesn't refer to what the Commerce Department determines.

[00:03:35] Speaker 01:
It says where they're imported from.

[00:03:38] Speaker 01:
It says imports from, it doesn't say subject merchandise, it says imports from a country that correspond to the commissions like product determination, not to the commerce department's scope determination.

[00:03:51] Speaker 01:
So what we're suggesting is the determination by the commerce department that this is included in the case, expanding the geographic reach of the decision.

[00:04:01] Speaker 01:
doesn't relieve the commission of its separate obligation to determine whether imports from a country are negligible.

[00:04:12] Speaker 02:
So we can have a determination by commerce that they're Taiwanese in origin and a determination by the ITC that they're Mexican in origin?

[00:04:20] Speaker 01:
No, we have a determination that imports from Mexico are negligible.

[00:04:24] Speaker 01:
That's all the statute requires.

[00:04:28] Speaker 02:
for us to rule your way, we would have to say that these are Mexican in argument, wouldn't we?

[00:04:34] Speaker 01:
You would have to say that they are imported from Mexico, which they are.

[00:04:39] Speaker 01:
And that's undisputed.

[00:04:40] Speaker 01:
They are imported from Mexico.

[00:04:42] Speaker 01:
And they're not imposing these anti-dumping duties just on the cells that originate in Taiwan.

[00:04:49] Speaker 01:
They're importing on the merchandise that is produced in Mexico.

[00:04:52] Speaker 04:
But isn't the point of the negligibility analysis to determine whether the imports from the

[00:04:58] Speaker 04:
countries subject to investigation are ultimately negligible?

[00:05:02] Speaker 01:
No, the statute doesn't include that.

[00:05:04] Speaker 01:
The statute, and it could do it.

[00:05:05] Speaker 01:
As we pointed out in our brief, in the accumulation provision, they said, we're going to limit accumulation analysis to those countries that are named in the petition, on a petition filed on the same day.

[00:05:15] Speaker 01:
They didn't do that here.

[00:05:16] Speaker 01:
The language of the statute says imports from a country, Mexico.

[00:05:21] Speaker 01:
It says imports.

[00:05:22] Speaker 01:
These are imported from Mexico.

[00:05:24] Speaker 01:
And it says,

[00:05:25] Speaker 01:
of a like product or corresponding to the commission's like product analysis.

[00:05:30] Speaker 01:
So the negligibility provision doesn't reference the Commerce Department's determination at all.

[00:05:35] Speaker 01:
And that makes sense because the purpose of the negligibility provision is to limit the geographic reach of dumping, anti-dumping measures to countries where it matters.

[00:05:45] Speaker 01:
So if the imports are negligible, it makes perfect sense not to have an order on products from Mexico if the amount of those imports are negligible.

[00:05:53] Speaker 01:
no matter how that Mexico was added to the investigation.

[00:05:56] Speaker 04:
So in other words, there could be imports from Taiwan that ultimately come in from Taiwan that are far from negligible, but as long as they pass them through other countries, that means they have to be deemed negligible?

[00:06:11] Speaker 01:
No, that's not what happened here.

[00:06:12] Speaker 01:
This is not a case of transshipment.

[00:06:14] Speaker 01:
They are imposing the duties to

[00:06:17] Speaker 01:
on the modules produced, not on the cells, not on the value of the cells that are incorporated.

[00:06:21] Speaker 01:
They're imposing the duties on the total value of the modules produced.

[00:06:26] Speaker 01:
And the cells, as the record shows, only account for about 50% of the value of the merchandise.

[00:06:31] Speaker 01:
So they're not imposing this just on the Taiwanese cells.

[00:06:34] Speaker 01:
If they did, we would have a different case.

[00:06:36] Speaker 01:
That would be a case of transshipment.

[00:06:37] Speaker 04:
But in everything that my hypothetical still holds, they could set the cells to

[00:06:44] Speaker 04:
any country they wish, and as long as the ultimate modules were imported through a different country, then one gets out the picture.

[00:06:52] Speaker 01:
If they were negligible in amount, they would still have to be at a very low level.

[00:06:55] Speaker 03:
In amount that Congress has said... Negligible from that particular country, but in totality, they could be far from negligible.

[00:07:02] Speaker 01:
Right, but that's not the case here.

[00:07:06] Speaker 01:
Mexico is the only country that asked for negligibility determination.

[00:07:09] Speaker 01:
And if that happened, Your Honor, if they were doing that,

[00:07:11] Speaker 01:
then there are remedies for that in the dumping law.

[00:07:13] Speaker 01:
There's a circumvention provision that says under certain circumstances you can expand the scope if you meet those criteria.

[00:07:20] Speaker 01:
But that's not what happened here.

[00:07:21] Speaker 04:
But that was expanding the scope.

[00:07:23] Speaker 04:
We've already defined what the scope is.

[00:07:24] Speaker 01:
No, the Commerce Department defined what was included in the scope of subject merchandise.

[00:07:30] Speaker 01:
But the statute says the negligibility provision applies to subject merchandise.

[00:07:35] Speaker 01:
So you can apply the negligibility to subsets of subject merchandise.

[00:07:39] Speaker 01:
You don't make a negligibility determination as to every country that's named in the investigation.

[00:07:44] Speaker 01:
You make it individually.

[00:07:46] Speaker 01:
You don't make it as to every product.

[00:07:48] Speaker 01:
You only make it as to the like product categories determined by the commission, not the subject parts and not the scope determined by the Commerce Department.

[00:07:57] Speaker 02:
Here we have a situation, if I recall correctly, where the imports from Taiwan were not negligible, right?

[00:08:04] Speaker 02:
That's true.

[00:08:05] Speaker 02:
Right.

[00:08:06] Speaker 02:
And so what's the consequence of treating Mexico separately?

[00:08:10] Speaker 02:
That there's no duty imposed on the Mexican, what you characterize as Mexican imports, right?

[00:08:16] Speaker 01:
On imports of solar modules from Mexico.

[00:08:18] Speaker 01:
Unless down the line those imports exceed negligibility amounts and the petitioners are free to file a circumvention petition or they're free to file a new anti-dumping petition.

[00:08:27] Speaker 01:
So it's not like they're without a remedy.

[00:08:30] Speaker 01:
But Congress has said where imports from a country are negligible in amount, when they're small,

[00:08:35] Speaker 01:
There's an irreparable presumption that says, these are not injurious.

[00:08:39] Speaker 01:
That's what the commission has directed, defined by Congress, that these imports are not injurious, so those should be excluded.

[00:08:46] Speaker 01:
That's the situation we have here.

[00:08:48] Speaker 01:
We have very small amounts of solar modules produced in Mexico, imported from Mexico, and they're being included in the scope.

[00:08:56] Speaker 01:
But the statute says, in those circumstances, where the amount is so small, those should not be included.

[00:09:03] Speaker 04:
And this is, to be clear,

[00:09:05] Speaker 04:
There's no court has ever read the statute the way that you're reading it, correct?

[00:09:10] Speaker 01:
This issue has never come up before because the Commerce Department has never done this before.

[00:09:14] Speaker 01:
They've made a bizarre scope determination, a unique scope determination here.

[00:09:18] Speaker 01:
They turned what is intended to be a country by country remedy into a global remedy.

[00:09:23] Speaker 01:
But that's not the issue here.

[00:09:25] Speaker 02:
That's not the issue here.

[00:09:26] Speaker 01:
That's really your objection.

[00:09:27] Speaker 02:
That's really your objection and that's what's involved in the other case.

[00:09:34] Speaker 01:
That is an objection that is involved in the other case, but we also object to the fact that the commission has refused to do what the statute directs it to do, to make a determination as to the negligibility of imports from a country, Mexico, that correspond to a like product definition by the commission.

[00:09:55] Speaker 01:
That's what the statute says.

[00:09:56] Speaker 04:
You can't say that they have never made a scope determination that would include within the scope

[00:10:02] Speaker 04:
imports that come through other countries.

[00:10:04] Speaker 04:
That happens all the time.

[00:10:06] Speaker 01:
I don't think it's come up in this context.

[00:10:08] Speaker 01:
I don't think it's come up for judicial review in this way.

[00:10:11] Speaker 01:
There have been very few cases where they've expanded the scope in this manner.

[00:10:15] Speaker 01:
They've expanded to include other products, downstream products, things like that, but where they expanded geographically to include every country in the world, I don't think that's ever come before.

[00:10:26] Speaker 05:
You don't think they've ever made a determination like the one here where some import goes to another country and then

[00:10:32] Speaker 05:
It's not treated as being negligible because it comes to a second country as opposed to the country of origin.

[00:10:38] Speaker 01:
I don't think they've ever made a negligibility determination in those circumstances.

[00:10:42] Speaker 01:
I think I'm the first one to raise it.

[00:10:44] Speaker 05:
You might be the first one to raise it.

[00:10:46] Speaker 05:
To ask it.

[00:10:47] Speaker 05:
I understand that, but have they ever made those kinds of determinations before?

[00:10:52] Speaker 01:
They made them in circumvention cases all the time.

[00:10:54] Speaker 01:
This isn't a circumvention case.

[00:10:56] Speaker 01:
They made it in transshipment cases where it was just the same merchandise moving through another country, unaltered.

[00:11:03] Speaker 01:
But I don't think they've ever made this particular decision.

[00:11:07] Speaker 01:
I'm not aware of any prior court decision that dealt with this issue.

[00:11:13] Speaker 01:
So I want to make it clear, just in conclusion, that what we're asking the court to do is not to overturn the Commerce Department's determination here.

[00:11:23] Speaker 01:
What we're asking the court to do is to

[00:11:25] Speaker 01:
required the commission to make the determination that Congress directed it to make.

[00:11:30] Speaker 01:
The language is clear.

[00:11:32] Speaker 01:
Now they've said, oh, well, you've got to read them in tandem.

[00:11:35] Speaker 01:
So already you're thinking, well, okay, so now we're looking for some penumbral rights or something that's going to help us understand this.

[00:11:42] Speaker 01:
But they never explained that.

[00:11:44] Speaker 01:
In the commission's decision, they just said what we are suggesting is unreasonable.

[00:11:49] Speaker 01:
They never explained why they were making the decision they did.

[00:11:54] Speaker 02:
Do you want to save the rest of your time for rebuttal?

[00:11:56] Speaker 01:
I will.

[00:11:56] Speaker 02:
Thank you.

[00:12:02] Speaker 02:
Ms.

[00:12:02] Speaker 02:
Alves, is that the way to answer?

[00:12:04] Speaker 06:
Yes, good morning.

[00:12:04] Speaker 06:
Thank you, Your Honor.

[00:12:05] Speaker 06:
May I please the court?

[00:12:06] Speaker 06:
My name is Mary Jane Alves, and I represent the APOLE, the United States International Trade Commission.

[00:12:13] Speaker 06:
Judge Dyck, you have already asked this morning whether or not there is already a case pending before the Court of International Trade involving the scope issues.

[00:12:20] Speaker 06:
And in fact, as you probably recognize, there is.

[00:12:23] Speaker 06:
In fact, the CIT has issued slip opinion 1659 in June regarding some of those issues.

[00:12:32] Speaker 02:
When the Commission viewed the complaint in this case... And that involves the question of whether these solar panels can be treated as Taiwanese in origin rather than Mexican, right?

[00:12:43] Speaker 06:
That's correct, Your Honor.

[00:12:45] Speaker 05:
And you're saying a decision was issued in that case in June?

[00:12:48] Speaker 06:
The Court of International Trade issued a slip opinion in June.

[00:12:52] Speaker 06:
It was slip opinion 16-59.

[00:12:54] Speaker 06:
The Commission is not a party to that case, so I don't feel comfortable discussing that opinion.

[00:13:00] Speaker 06:
The Court has remanded certain aspects of commerce's determination, but not with respect to that issue.

[00:13:06] Speaker 06:
My colleagues, Mr. Brightville or Mr. Horgan, certainly can probably discuss that issue at more length to the extent that they're both involved in it.

[00:13:14] Speaker 02:
Well, suppose they were to win the other case.

[00:13:17] Speaker 02:
were determined that these should be treated as Mexican in origin.

[00:13:21] Speaker 02:
What would that do to this case?

[00:13:24] Speaker 06:
Well, Your Honor, let me respond to that with two points.

[00:13:27] Speaker 06:
The first point is we actually offered Kyocera the option to stay this case.

[00:13:34] Speaker 02:
I understand that, but what's the answer if we end up that way?

[00:13:40] Speaker 06:
If commerce were to ultimately

[00:13:44] Speaker 06:
lose its appeal with respect to to the issue of whether or not the imports were in fact mexican or taiwanese uh... at that point presumably this court would have already issued its decision the commission already uh... its decision already would have would have been well i guess what i'm asking is if we were to issue a decision in your favor in this case when we have to say this depends on

[00:14:10] Speaker 02:
the determination in the other proceeding that these are Taiwanese rather than Mexican?

[00:14:16] Speaker 06:
No, Your Honor, because really they are two separate inquiries.

[00:14:22] Speaker 06:
On the one hand, the Commerce Department does make its scope determination, but on the other hand... That seems to be supporting his notion.

[00:14:29] Speaker 06:
Your Honor, to the extent that the Commission relied on the information available to it, which is what the statute requires it to do in making a negligibility analysis, what was on the record before the Commission

[00:14:40] Speaker 06:
was Commerce's conclusion that these imports were, in fact, subject merchandise from Taiwan.

[00:14:45] Speaker 06:
There are two places on where Commerce made this decision.

[00:14:49] Speaker 06:
First, in its scope determination.

[00:14:51] Speaker 02:
And second, we also... But what happens if that assumption is proved to be incorrect and the other proceeding says, no, these are really Mexican?

[00:15:02] Speaker 06:
Well, at that point then the commission would need to, if the court were to find then the commission would need to then look at the issue of negligible imports on its own.

[00:15:12] Speaker 04:
However... Right, so your answer to Judge Dyke's earlier question was yes, not no.

[00:15:17] Speaker 04:
In terms of, if we were to rule in your favor, it would have to be premised on the assumption that the scope determination was an accurate one, or a supportable one.

[00:15:29] Speaker 06:
At this point, there's no indication that that is the case.

[00:15:33] Speaker 06:
And based on the information that is on the commission's record, the commission made a decision under the statute, the entire statute, which Mr. Horgan is not entitled to.

[00:15:42] Speaker 04:
But you would concede that if the scope determination was wrong and that these products are imports from Mexico, that the negligibility determination is mandatory, right?

[00:15:53] Speaker 06:
The commission would need to examine the issue.

[00:15:55] Speaker 06:
The commission has not examined the issue of negligibility with respect to imports from Mexico.

[00:15:58] Speaker 02:
You'd have to reopen this proceeding.

[00:16:00] Speaker 02:
If your assumption turned out to be wrong.

[00:16:02] Speaker 06:
We would have to at that point, because the commission has not made that analysis.

[00:16:06] Speaker 06:
And it would be up to the commission in the first instance to make that analysis, Your Honor.

[00:16:10] Speaker 04:
Right.

[00:16:10] Speaker 04:
But the statute says you'd have to make that analysis in those circumstances, right?

[00:16:15] Speaker 04:
So it's not like you could just reopen it and decide whether you want to make the analysis.

[00:16:19] Speaker 04:
You'd have to make the analysis.

[00:16:21] Speaker 04:
What your answer would be is certainly something we can't predict.

[00:16:24] Speaker 06:
It's not something that the commission has had to rule on exactly, Your Honor.

[00:16:30] Speaker 06:
The concern that we have here is that Kyocera is only reading one aspect of the statute.

[00:16:38] Speaker 06:
They are only pointing to the definition of negligible imports.

[00:16:42] Speaker 06:
However, the commission's authority to make a negligible imports determination is not derived solely from the definition of negligible imports.

[00:16:50] Speaker 06:
It's also derived from the rest of the statute, specifically section 1671 DB1 and section 1673 DB1.

[00:17:00] Speaker 06:
Both of which state in relevant part that the commission shall make a final determination whether an industry in the United States is materially injured by reason of imports of the merchandise with respect to which the administering authority has made an affirmative determination.

[00:17:15] Speaker 06:
If the commission determines that imports of the subject merchandise are negligible, the investigation shall be terminated.

[00:17:23] Speaker 06:
Mr. Horgan also ignores the statutory definition of subject merchandise, which is in 19 U.S.C.

[00:17:30] Speaker 06:
Section 167725.

[00:17:33] Speaker 06:
Subject merchandise is defined as the class or kind of merchandise that is within the scope of an investigation.

[00:17:39] Speaker 06:
So here, Commerce clearly made the determination that the imports were subject merchandise from Taiwan.

[00:17:46] Speaker 06:
And I referenced earlier Commerce's Federal Register notice, which was 79 Federal Register 7966.

[00:17:54] Speaker 06:
The specific pen site was on page 76968 and also in Commerce's issues and decision memo.

[00:18:01] Speaker 06:
Commerce specifically indicated, and I referenced in our brief on Joint Appendix page 939, Commerce's direct conclusion, cellular modules produced by Kyocera in Mexico using Taiwanese cells are considered Taiwanese in origin and are within the scope of this Taiwanese investigation.

[00:18:18] Speaker 06:
Judge Tsoukalas agreed with the commission that the statute was clear on this point, that the commission had to defer to commerce's scope determination.

[00:18:27] Speaker 06:
Indeed, the Federal Circuit itself has already looked at these statutory provisions in the context of the domestic-like product.

[00:18:33] Speaker 06:
And the Federal Circuit has agreed that the commission must defer to commerce's definition of the scope of subject merchandise that's within the scope as an imported merchandise.

[00:18:43] Speaker 04:
What's your response to your friend's argument that, in fact,

[00:18:48] Speaker 04:
you would be making the anti-circumvention provisions essentially redundant or irrelevant if we adopt your position.

[00:18:57] Speaker 06:
Your Honor, this was not an anti-circumvention proceeding as we have indicated in our brief.

[00:19:04] Speaker 06:
This court does not sit in place in order to judge hypotheticals.

[00:19:09] Speaker 06:
That is not a hypothetical.

[00:19:10] Speaker 06:
That's here.

[00:19:10] Speaker 06:
The commission is not involved in those anti-circumvention proceedings.

[00:19:13] Speaker 06:
And that was not the issue here.

[00:19:14] Speaker 02:
But I think the argument is that the anti-circumvention proceeding provides a remedy for this situation.

[00:19:21] Speaker 02:
And therefore, you shouldn't interpret the statute to do it in a different way.

[00:19:26] Speaker 02:
I think that's the argument.

[00:19:28] Speaker 02:
So the question is, does the anti-circumvention

[00:19:33] Speaker 02:
methodology take care of this or not?

[00:19:36] Speaker 06:
Your Honor, the anti-circumvention statutory provisions are within the purview of the Commerce Department, not the Commission.

[00:19:44] Speaker 06:
And in fact, in this particular case, as the Commission explained in its views, there was a situation where there was first an order put in place on imports of... Is this argument being made in the Commerce Department proceeding that this

[00:19:59] Speaker 02:
treatment of these panels as being Taiwanese in origin is inconsistent with the anti-circumvention proceeding?

[00:20:08] Speaker 06:
To my knowledge, yes, Your Honor, although I would defer to my colleagues on either side, because they're actually involved in those proceedings.

[00:20:13] Speaker 06:
And the commission has its own independent litigation authority.

[00:20:16] Speaker 06:
I don't represent the Department of Commerce.

[00:20:19] Speaker 06:
But they are making similar arguments in front of the Court of International Trade.

[00:20:25] Speaker 04:
Yeah, so my question isn't so much whether or not

[00:20:29] Speaker 04:
it's up to the commission to make these kinds of decisions.

[00:20:31] Speaker 04:
My question is challenging the logic of the legal position that you're taking.

[00:20:36] Speaker 04:
So if the logic of the legal position you're taking would result in making the anti-circumvention provisions completely redundant or unnecessary, wouldn't that mean that your legal position is at least somewhat suspect?

[00:20:56] Speaker 06:
I understand the logic of your question, Your Honor, but I would disagree that this interpretation would, in fact, render those provisions meaningless.

[00:21:06] Speaker 06:
In this case, the facts of this case illustrate that anti-circumvention provisions don't always solve problems.

[00:21:13] Speaker 06:
There was a prior case involving imports from China that covered certain cells and certain modules.

[00:21:21] Speaker 06:
Even before that order was put into place,

[00:21:24] Speaker 06:
Additional imports started coming into the United States, among the modules in question.

[00:21:31] Speaker 06:
There were other modules coming in with cells made in Taiwan, from Taiwan itself.

[00:21:37] Speaker 06:
These started coming into the United States.

[00:21:40] Speaker 06:
At that point in time, petitioners brought a second round of petitions to address the injury from those imports.

[00:21:47] Speaker 06:
Those imports would not have been covered from the scope in the prior case.

[00:21:51] Speaker 06:
That case solely dealt with very specific

[00:21:54] Speaker 06:
cells made in China, and then very specific categories of modules.

[00:21:59] Speaker 06:
And these would not have been encompassed in that.

[00:22:02] Speaker 06:
So petitioners had to bring a new case at that point in time and did.

[00:22:09] Speaker 06:
The concern I think that you may be trying to reach is whether or not the scope can include both an unfinished and a finished component to it.

[00:22:19] Speaker 06:
That case, this case, and a number of other cases also include

[00:22:23] Speaker 06:
both an unfinished and a finished component.

[00:22:26] Speaker 06:
This case involves cells and modules.

[00:22:28] Speaker 06:
Modules are assembled from cells that are strung together, laminated, and then put in a frame.

[00:22:34] Speaker 06:
And to the extent that Commerce made the determination that that cell is driving country of origin, that was underpinning its determination that this subject merchandise from Taiwan included cells that were

[00:22:50] Speaker 06:
shipped to Mexico, assembled into modules, the finished product, and then shipped to the United States.

[00:22:55] Speaker 06:
And the Commission was obligated, under the statute and this Court's prior case law, to defer to Congress' scope determination.

[00:23:06] Speaker 02:
Okay.

[00:23:07] Speaker 02:
Thank you.

[00:23:08] Speaker 02:
Thank you, Ms.

[00:23:08] Speaker 02:
Ellington.

[00:23:09] Speaker 02:
Mr. Brightfield, you have three minutes.

[00:23:17] Speaker 00:
Good morning, Your Honors.

[00:23:17] Speaker 00:
May it please the Court

[00:23:18] Speaker 00:
Just to answer two of your questions, first of all, the anti-circumvention provisions would not have provided any relief here.

[00:23:26] Speaker 00:
If they had, then SolarWorld would have taken... Because of the prior ruling with regard to how scope is defined, the cell and the manufacturing up to the cell portion was defined as creating the country of origin, but the module manufacturing was also found to be significant.

[00:23:48] Speaker 00:
circumvention relates to minor alteration in a third country would not have addressed this issue.

[00:23:53] Speaker 00:
If it would have, Solar World would have taken the much less expensive route of pursuing circumvention.

[00:23:58] Speaker 00:
Instead, it had to file this new case.

[00:24:01] Speaker 00:
Secondly, you asked if the scope case has any effect on this case, on negligibility.

[00:24:07] Speaker 00:
And my answer to that is no.

[00:24:09] Speaker 00:
If, in the unlikely event, the court rules against the scope finding that was made below,

[00:24:17] Speaker 00:
then the commission will have to make new negligibility findings and those could be appealed throughout the process.

[00:24:22] Speaker 00:
Your job is simply to rule on whether these subject imports were negligible or not.

[00:24:28] Speaker 02:
Well, all we have to do is to be careful to make clear if we were to come out that way that the decision in that respect isn't final and would be subject to reopening if the commerce proceeding came out the other way.

[00:24:42] Speaker 00:
Certainly, but you're faced with was the commission's decision

[00:24:47] Speaker 00:
reasonable and supported by substantial evidence and Just to underscore mr. Council for kiosk.

[00:24:53] Speaker 00:
I just cannot get past the other provision of the statute He says the Commission the statute requires the Commission to look at negligibility of imports from a country But then the provision that miss Alves also pointed out Clearly says if the Commission determines that imports of the subject merchandise are negligible the investigation shall be terminated the subject merchandise is

[00:25:16] Speaker 00:
included Kyocera's imports.

[00:25:18] Speaker 00:
They were Mexican modules made from Taiwanese cells.

[00:25:23] Speaker 00:
They were subject imports.

[00:25:25] Speaker 00:
They were not negligible.

[00:25:26] Speaker 00:
And when you read those two statutory provisions together, Commission did exactly what it was required to do under the statute.

[00:25:34] Speaker 00:
It examined Taiwanese imports, that is, imports of Taiwanese solar cells, regardless of where they're made into modules or panels, including Mexico.

[00:25:45] Speaker 00:
Quite clearly, those imports were not negligible.

[00:25:47] Speaker 00:
In fact, they were well beyond the negligibility threshold.

[00:25:51] Speaker 00:
And therefore, the statute does not require the commission to conduct a negligibility analysis with respect to non-subdue imports.

[00:26:00] Speaker 02:
If they win the Commerce Department proceeding, these seller panels are outside the scope of the investigation and there are no dumping duties on them, right?

[00:26:10] Speaker 00:
In the scope context, it might change the outcome of these particular imports.

[00:26:15] Speaker 00:
That's right.

[00:26:16] Speaker 00:
But for purposes of negligibility... Might or would?

[00:26:19] Speaker 02:
I mean, it would have to, wouldn't it, if the Commerce Department proceedings said, no, these aren't Taiwanese.

[00:26:24] Speaker 02:
They'd be outside the scope of the investigation.

[00:26:26] Speaker 00:
It depends on how Commerce defined the scope.

[00:26:29] Speaker 00:
And there are more than two ways that Commerce could define the scope in this investigation.

[00:26:35] Speaker 00:
So we couldn't judge that until Commerce were to define the scope in

[00:26:41] Speaker 00:
a way acceptable to the courts.

[00:26:44] Speaker 02:
Thank you, Your Honor.

[00:26:45] Speaker 02:
Thank you, Mr. Brightman.

[00:26:47] Speaker 02:
Mr. Horgan?

[00:26:53] Speaker 01:
Just a couple of things.

[00:26:53] Speaker 01:
First, I wanted to address you asked about the remand determination in the Commerce Department litigation.

[00:26:59] Speaker 01:
And that matter was remanded to the Commerce Department.

[00:27:03] Speaker 01:
The Court of International Trade found that the Commerce Department actually used two rules of origin in the Taiwanese case.

[00:27:09] Speaker 01:
They said if you had cells and you shipped them to Mexico and use them to create modules, that those were Taiwanese origin.

[00:27:18] Speaker 01:
But if you took the same cells and you shipped them to China and use them to make modules, that those modules were Chinese origin.

[00:27:26] Speaker 01:
So that's the issue that has now been revealed.

[00:27:28] Speaker 02:
That may help you in the other proceedings.

[00:27:31] Speaker 01:
Well, I'm just suggesting that the origin issue is very much at stake in that case, but that's not this case.

[00:27:39] Speaker 01:
In this case, it's whether the commission has its own independent obligation to make a negligibility determination as prescribed by Congress.

[00:27:47] Speaker 01:
And the plain language of the statute says so.

[00:27:50] Speaker 01:
It says products from Mexico, from a country, corresponding to the commission's definition of like product, they have to make the negligibility determination on that basis.

[00:28:01] Speaker 01:
And they both stood up here and said, well, but if it's subject merchandise, then we don't have to reach that issue.

[00:28:07] Speaker 01:
But that's not the case.

[00:28:09] Speaker 01:
provision only applies to subject merchandise.

[00:28:12] Speaker 01:
If it wasn't subject merchandise, none of us would be here.

[00:28:15] Speaker 01:
And it can apply to subsets of subject merchandise.

[00:28:20] Speaker 01:
So subject merchandise includes products from a dozen countries, all the countries named in a petition.

[00:28:25] Speaker 01:
In this case, China and Taiwan.

[00:28:27] Speaker 01:
That doesn't mean it doesn't make separate negligibility determinations as to China and as to Taiwan.

[00:28:33] Speaker 01:
It did in this case.

[00:28:34] Speaker 01:
So the fact that these subject merchandise

[00:28:38] Speaker 01:
and the merchandise as to which they make a negligibility determination is not coextensive.

[00:28:44] Speaker 01:
That's what they're arguing, that one decides the other, and it doesn't.

[00:28:48] Speaker 01:
The commission makes a determination as to subsets of subject merchandise, defined by the country and also by the like product.

[00:28:56] Speaker 01:
So the notion that they've propagated here and that the court below approved that they have to be the same, that subject merchandise, you have to make a determination of negligibility as to subject merchandise,

[00:29:08] Speaker 01:
is not true.

[00:29:08] Speaker 01:
They make it as to subsets of subject merchandise, defined by geography and defined by the kind of product.

[00:29:15] Speaker 01:
That's the way the negligibility provision is applied, and that's the way it needs to be applied here.

[00:29:20] Speaker 01:
Imports from a country, Mexico, are negligible in amount, so the irreparable presumption is that the investigation should be terminated as to those products.

[00:29:31] Speaker 02:
Thank you.

[00:29:32] Speaker 02:
Thank you, Mr. Horgan.

[00:29:32] Speaker 02:
Thank all counsel.

[00:29:33] Speaker 02:
The case is submitted.

[00:29:35] Speaker 02:
and we'll take a short recess before we hear our fourth case.

[00:29:40] Speaker 04:
All rise.

[00:29:43] Speaker 04:
The honorable court will take a short recess.