Changzhou Trina Solar Energy Co. v. U.S. Int'l Trade Comm'n

100 F.Supp.3d 1314

CHANGZHOU TRINA SOLAR ENERGY CO., LTD., Trina Solar (U.S.) Inc., Wuxi Suntech Power Co., Ltd., Suntech America, Inc., Suntech Arizona, Inc., Yingli Green Energy Holding Company Limited, and Yingli Green Energy Americas, Inc., Plaintiffs

v. UNITED STATES INTERNATIONAL TRADE COMMISSION, DefendantandSolarWorld Americas Inc., Defendant–Intervenor.

Slip Op. 15–84.

Court No. 13–00014.

United States Court of International Trade.

Aug. 7, 2015.

Neil R. Ellis and Rajib Pal, Sidley Austin LLP, of Washington, DC, argued for plaintiffs. With them on the brief were Richard Weiner, Brenda A. Jacobs, Lawrence R. Walders, and Raphaelle E. Monty.

Mary Jane Alves, Attorney–Advisor, Office of General Counsel, United States International Trade Commission, of Washington, DC, argued for defendant. With her on the brief were Dominic L. Bianchi, General Counsel, and Neal J. Reynolds, Assistant General Counsel for Litigation.

Timothy C. Brightbill, Wiley Rein LLP, of Washington, DC, argued for defendant-intervenor.

OPINION

EATON, Judge:

Before the court is the motion for judgment on the agency record of plaintiffs Changzhou Trina Solar Energy Co., Ltd., Trina Solar (U.S.) Inc., Wuxi Suntech Power Co., Ltd., Suntech America, Inc., Suntech Arizona, Inc. (“Suntech Arizona”), Yingli Green Energy Holding Company Limited, and Yingli Green Energy Americas, Inc. (collectively, “plaintiffs”) made pursuant to USCIT Rule 56.2. See Mot. for J. on the Agency R. (ECF Dkt. No. 31). By their motion, plaintiffs contest the final affirmative material injury determination of the United States International Trade Commission (“ITC” or the “Commission”) in the antidumping and countervailing duty investigations concerning crystalline silicon photovoltaic (“CSPV”) cells and modules from China. See Crystalline Silicon Photovoltaic Cells and Modules From China (Final), USITC Pub. 4360, Inv. Nos. 701–TA–481 and 731–TA–1190 (Nov. 2012) (ECF Dkt. No. 20–1) (“Final Determination”); Crystalline Silicon Photovoltaic Cells and Modules From China, 77 Fed.Reg. 72,884 (ITC Dec. 6, 2012). Defendant, the ITC, opposes plaintiffs' motion and asks that its Final Determination be sustained. See Def. International Trade Commission's Opp'n to Pls.' Mot. for J. on the Agency R. 1 (ECF Dkt. No. 35). Defendant-intervenor, SolarWorld Americas Inc. (“defendant-intervenor” or “SolarWorld”), a domestic manufacturer of solar cells and modules, joins in opposition to plaintiffs' motion.See Def.-int. SolarWorld's Resp. to Pls.' Rule 56.2 Mot. for J. on the Agency R. and Accompanying Mem. of P. & A. in Supp. 1–3 (ECF Dkt. No. 38). Jurisdiction lies pursuant to 28 U.S.C. § 1581(c) and 19 U.S.C. § 1516a(a)(2)(B)(i). For the reasons that follow, the ITC's Final Determination is sustained.

BACKGROUND

In October 2011, defendant-intervenor SolarWorld filed antidumping and countervailing duty petitions with the United States Department of Commerce (“Commerce” or the “Department”) and the ITC covering imports of CSPV cells and modules from China.¹ Crystalline Silicon Photovoltaic Cells and Modules From China, 76 Fed.Reg. 66,748, 66,748 –49 (ITC Oct. 27, 2011) (institution of antidumping and countervailing duty investigations and scheduling of preliminary phase investigations). The period of investigation was January 2009 through June 2012 (“POI”). In October 2012, following its investigations, the Department determined that imports from China were both being subsidized by the Chinese government and sold in the United States at less than fair value. Subsequently, in November 2012, following its own investigations, the ITC issued its Final Determination, whereby it determined that the CSPV industry in the United States was being materially injured by reason of imports of subject merchandise. Final Determination, 77 Fed.Reg. at 72,884.

During the preliminary investigations, the Chinese Chamber of Commerce for Import and Export of Machinery and Electronic Products (the “Chinese Chamber”), an association of Chinese producers and exporters, and related U.S. importers of subject merchandise that opposed the petition, urged the ITC to define the domestic like product more broadly than was ultimately the case in the Final Determination. See Views of the Commission (Preliminary) at 9, CD 136 at Doc. No. 466545 (Dec. 13, 2011), ECF Dkt. No. 67–1 (“Preliminary Determination”). Specifically, the Chinese Chamber argued that the scope should include thin-film photovoltaic products (“thin-film products”) in the definition of the domestic like product. Preliminary Determination at 9. At the conclusion of its investigations, however, the Commission excluded thin-film products from the scope of the domestic like product. Final Determination at 9.

In its Final Determination, the ITC also found that plaintiff Suntech Arizona should be excluded from the domestic industry as a related party because its interests rested primarily with importing CSPV products rather than their domestic production. Final Determination at 19, 22. As a result, the Commission defined the domestic industry of subject merchandise to include “all U.S. producers of CSPV cells and modules, except for Suntech [Arizona].” Final Determination at 24.

Also, during the course of the investigations, plaintiffs claimed that the ITC should take into account certain unique aspects of the CSPV marketplace before making its injury determination. See, e.g., Post–Hearing Br. of China Chamber of Commerce for Import and Export of Machinery and Electronic Products (Volume I of II) at 4–14, CD 419 at Doc. No. 493162 (Oct. 11, 2012), ECF Dkt. No. 67–3. As shall be seen, the Commission takes the position that it took into account market conditions, as required by law.

In the end, in the Final Determination, the Commission issued its affirmative material injury determination, finding that the domestic industry was “ ‘materially injured by reason of’ unfairly traded imports.” Final Determination at 25.

STANDARD OF REVIEW

“The court shall hold unlawful any determination, finding, or conclusion found ... to be unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i).

DISCUSSION

I. Legal Framework

“Under the unfair trade laws, Commerce determines whether foreign imports into the United States are either being dumped or subsidized (or both). It is for the ITC to determine whether these dumped or subsidized imports are causing material injury to a domestic industry in the United States.” Navneet Publ'ns (India) Ltd. v. United States, 32 CIT 169, 171, 2008 WL 743836 (2008) (citing 19 U.S.C. §§ 1673(1), (2), 1671(a)(1), (2) ).

Although Commerce determines the “class or kind of foreign merchandise [that] is being, or is likely to be, sold in the United States at less than its fair value” or has been subsidized, “the ITC is responsible for identifying the corresponding universe of items produced in the United States that are like [,] or in the absence of like, most similar in characteristics and uses with the items in the scope of the investigation.” See 19 U.S.C. § 1673(i) ; 19 U.S.C. § 1671(a) ; Int'l Imaging Materials, Inc. v. U.S. Int'l Trade Comm'n, 30 CIT 1181, 1183, 2006 WL 270156 (2006) (alteration in original) (citation omitted) (internal quotation marks omitted) (citing 19 U.S.C. § 1677(10) ). Thus, the ITC begins a material injury investigation by “determin [ing] the scope of the ‘domestic industry’ by defining the ‘domestic like product’ under investigation.” Cleo Inc. v. United States, 30 CIT 1380, 1382–83, 2006 WL 2685080 (2006) (citing 19 U.S.C. § 1677(4)(A) ), aff'd, 501 F.3d 1291 (Fed.Cir.2007) ; see also Int'l Imaging, 30 CIT at 1183.

Under certain conditions, the Commission's decision as to the companies that make up the domestic industry is guided by 19 U.S.C. § 1677(4)(B)(i). This subsection provides, in relevant part, “[i]f a producer of a domestic like product and an exporter or importer of the subject merchandise are related parties, or if a producer of the domestic like product is also an importer of the subject merchandise, the producer may, in appropriate circumstances, be excluded from the industry.” 19 U.S.C. § 1677(4)(B)(i) ; see also Allied Mineral Prods., Inc. v. United States, 28 CIT 1861, 1863, 2004 WL 2580776 (2004).

Following the Commission's determination as to what constitutes the domestic like product and its determination as to which companies qualify as members of the domestic industry, “it must next examine the volume of imports, their effect on prices for the domestic like product, and their impact on domestic producers of the domestic like product.” Int'l Imaging, 30 CIT at 1183 (citation omitted) (internal quotation marks omitted) (citing 19 U.S.C. § 1677(7)(B)(i)(I)-(III) ). As part of its analysis, “[t]he Commission may also consider ‘such other economic factors as are relevant in the determination.’ ” JMC Steel Grp. v. United States, 38 CIT ––––, ––––, 24 F.Supp.3d 1290, 1298 (2014) (quoting Hynix Semiconductor, Inc. v. United States, 30 CIT 1208, 1210, 431 F.Supp.2d 1302, 1306 (2006) ); see also 19 U.S.C. § 1677(7)(B)(ii). Upon completion of this analysis, should the ITC make a final affirmative material injury determination, and Commerce make an affirmative determination with respect to countervailing duties or dumping, an order will result.

II. The Commission's Domestic Like Product Analysis Is Supported by Substantial Evidence

As part of its investigations, the Commission sought to define the domestic like product in order to determine whether a domestic industry was materially injured as a result of subject imports. Here, the Commission's domestic like product analysis balanced the six factors² typically used to determine whether a specific product should be included within the scope of the Commission's investigation. Upon completing this analysis, the Commission determined that thin-film products fell outside the scope of the domestic like product. Final Determi...