CHANGZHOU TRINA SOLAR ENERGY CO., LTD., TRINA SOLAR (U.S.) INC., YINGLI GREEN ENERGY HOLDING COMPANY LIMITED, YINGLI GREEN ENERGY AMERICAS, INC., Plaintiffs-Appellants
UNITED STATES INTERNATIONAL TRADE COMMISSION, SOLARWORLD AMERICAS, INC., Defendants-Appellees WUXI SUNTECH POWER CO., LTD., SUNTECH AMERICA, INC., SUNTECH ARIZONA, INC., Plaintiffs
from the United States Court of International Trade in No.
1:13-cv-00014-RKE, Senior Judge Richard K. Eaton.
R. Ellis, Sidley Austin LLP, Washington, DC, argued for
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.
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
Taranto, Plager, and Chen, Circuit Judges.
Taranto, Circuit Judge.
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.
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).
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).
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
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.
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
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).
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