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Changzhou Trina Solar Energy Co. Ltd. v. United States International Trade Commission

United States Court of Appeals, Federal Circuit

January 22, 2018

CHANGZHOU TRINA SOLAR ENERGY CO., LTD., TRINA SOLAR (U.S.) INC., YINGLI GREEN ENERGY HOLDING COMPANY LIMITED, YINGLI GREEN ENERGY AMERICAS, INC., Plaintiffs-Appellants
v.
UNITED STATES INTERNATIONAL TRADE COMMISSION, SOLARWORLD AMERICAS, INC., Defendants-Appellees WUXI SUNTECH POWER CO., LTD., SUNTECH AMERICA, INC., SUNTECH ARIZONA, INC., Plaintiffs

         Appeal from the United States Court of International Trade in No. 1:13-cv-00014-RKE, Senior Judge Richard K. Eaton.

          Neil R. Ellis, Sidley Austin LLP, Washington, DC, argued for plaintiffs-appellants.

          Mary Jane Alves, Office of the General Counsel, United States International Trade Commission, Washington, DC, argued for defendant-appellee United States International Trade Commission. Also represented by Andrea C. Casson, Dominic L. Bianchi.

          Timothy C. Brightbill, Wiley Rein, LLP, Washington, DC, argued for defendant-appellee SolarWorld Americas, Inc. Also represented by Tessa V. Capeloto, Laura El-Sabaawi, Usha Neelakantan.

          Before Taranto, Plager, and Chen, Circuit Judges.

          Taranto, Circuit Judge.

         Changzhou Trina Solar Energy Co., Ltd., and Yingli Green Energy Holding Company, Ltd., are Chinese producers of crystalline silicon photovoltaic cells, modules, laminates, and panels (CSPV products). Those products were imported into the United States and were the "subject imports" in the proceeding at issue here. Trina Solar (U.S.), Inc., and Yingli Green Energy Americas, Inc., imported the subject imports into the United States. The two producers and two importers-collectively, the Chinese Respondents-are appellants in this court.

         On October 19, 2011, appellee SolarWorld Americas, Inc., filed petitions seeking imposition on the subject imports of antidumping duties under 19 U.S.C. §§ 1673- 1673h and countervailing duties under 19 U.S.C. §§ 1671- 1671h. The U.S. Department of Commerce eventually agreed with SolarWorld that the subject imports were being sold in the United States at less than its fair value and were being unfairly subsidized by the Chinese government. Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled into Modules, from the People's Republic of China: Final Determination of Sales at Less Than Fair Value, and Affirmative Final Determination of Critical Circumstances, in Part, 77 Fed. Reg. 63, 791 (Oct. 17, 2012) (Commerce Antidumping Duty Determination); Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the People's Republic of China: Final Affirmative Countervailing Duty Determination and Final Affirmative Critical Circumstances Determination, 77 Fed. Reg. 63, 788 (Oct. 17, 2012) (Commerce Countervailing Duty Determination). The International Trade Commission, performing its role in the statutory process for imposition of duties, then determined that "an industry in the United States is materially injured by reason of imports of crystalline silicon photovoltaic ('CSPV') cells and modules from China that [Commerce] has determined are subsidized and sold in the United States at less than fair value." Crystalline Silicon Photovoltaic Cells and Modules from China, Inv. Nos. 701-TA-481 and 731-TA-1190), USITC Pub. 4360, at 3 (Nov. 2012) (Final) (ITC Final Decision); Crystalline Silicon Photovoltaic Cells and Modules from China, 77 Fed. Reg. 72, 884 (Dec. 6, 2012).

         The Chinese Respondents appealed the Commission's determination to the United States Court of International Trade. As relevant here, they argued that the Commission had not properly found the required causal connection between the unfairly priced or subsidized imports and the weakened state of the domestic industry that it identified as "materially injured by reason of" the imports. The Court of International Trade rejected the challenge and sustained the Commission's determination. Chang-zhou Trina Solar Energy Co., Ltd. v. U.S. Int'l Trade Comm'n, 100 F.Supp.3d 1314, 1331-32, 1349 (Ct. Int'l Trade 2015).

         The Chinese Respondents timely appealed. We have jurisdiction under 28 U.S.C. § 1295(a)(5). We review the Commission's determination using the same standard as the Court of International Trade: we ask whether it was "unsupported by substantial evidence on the record, or otherwise not in accordance with law." Siemens Energy, Inc. v. United States, 806 F.3d 1367, 1369 (Fed. Cir. 2015) (quoting 19 U.S.C. § 1516a(b)(1)(B)(i)). We affirm.

         I

         Congress has directed the federal government, in defined circumstances, to impose antidumping duties on "foreign merchandise . . . being, or . . . likely to be, sold in the United States at less than its fair value." 19 U.S.C. § 1673(1). Congress has likewise directed the government, in defined circumstances, to impose countervailing duties on "merchandise imported, or sold (or likely to be sold) for importation, into the United States" for which "the government of a country or any public entity within the territory of a country is providing, directly or indirectly, a countervailable subsidy with respect to the manufacture, production, or export" of that merchandise. Id. § 1671(a)(1). This case involves a requirement of both regimes.

         Each regime divides the authority to make the required judgments between Commerce and the Commission. Commerce determines the existence of the unfair pricing or subsidies-for antidumping duties, "whether the subject merchandise is being, or is likely to be, sold in the United States at less than its fair value, " id. § 1673d(a)(1); see also id. § 1673(1); for countervailing duties, "whether or not a countervailable subsidy is being provided with respect to the subject merchandise, " id. § 1671d(a)(1); see also id. § 1671(a)(1). The Commission determines, for both kinds of duties, whether

in the United States-(i) is materially injured, or (ii) is threatened with material injury, or (B) the establishment of an industry in the United States is materially retarded, by reason of imports, or sales (or the likelihood of sales) for importation, of the merchandise for which Commerce has found unfair pricing or subsidies. Id. § 1673d(b)(1) (antidumping duty provision for final determination); see id. § 1671d(b)(1) (countervailing duty provision for final determination); see also id. §§ 1673(2), 1671(a)(2). For each of the antidumping and countervailing duty regimes, if both agencies answer their assigned questions affirmatively, Commerce issues the duty-imposing order. See id. §§ 1673d(c)(2), 1671d(c)(2); Duferco Steel, Inc. v. United States, 296 F.3d 1087, 1089 (Fed. Cir. 2002).

         This case involves the Commission's determination that the domestic industry was, in the statutory phrase, "materially injured . . . by reason of imports" of the Chinese Respondents' merchandise. See ITC Final Decision, at 3 (finding that domestic industry was "materially injured by reason of" the subject imports). We have noted the two parts of such a finding: that there is "present material injury"; and that "the material injury is 'by reason of' the subject imports." Gerald Metals, Inc. v. United States,132 F.3d 716, 719 (Fed. Cir. 1997). Congress has further specified that, "[i]n making ...


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