The U.S. Department of Commerce, on remand, imposed countervailing and anti-dumping duties (19 U.S.C. 1671) on the importation of solar cells and modules, laminates, and/or panels, containing solar cells imported or sold for importation from China. In defining the class or kind of merchandise within the scope of the orders, Commerce used a new test, rather than the typically-used “substantial transformation” test, to determine the country of origin. If Commerce had used the substantial transformation test, it would have concluded that the country of cell production confers origin because the process of assembling the solar cells into solar panels does not substantially transform those solar cells. The Court of International Trade and the Federal Circuit upheld that determination as supported by substantial evidence. The Tariff Act does not require Commerce to define the “class or kind of [foreign] merchandise” in any particular manner. It is reasonable to use the country where the merchandise was assembled to define the class or kind of merchandise within the scope of the orders—especially where, as here, the very imports found to cause injury due to unfair pricing and/or subsidies were panels assembled in China containing cells produced in other countries.
Federal Circuit upholds Department of Commerce's use of the country where the merchandise was assembled to define the class or kind of merchandise within the scope of its anti-dumping orders.