`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`SILFAB SOLAR, INC., HELIENE, INC., CANADIAN
`SOLAR (USA), INC., CANADIAN SOLAR
`SOLUTIONS, INC.,
`Plaintiffs-Appellants
`
`v.
`
`UNITED STATES, UNITED STATES CUSTOMS
`AND BORDER PROTECTION, UNITED STATES
`INTERNATIONAL TRADE COMMISSION,
`CHAIRMAN RHONDA K. SCHMIDTLEIN,
`COMMISSIONER KEVIN K. MCALEENAN, OFFICE
`OF THE U.S. TRADE REPRESENTATIVE, U.S.
`TRADE REPRESENTATIVE ROBERT E.
`LIGHTHIZER, SOLARWORLD AMERICAS, INC.,
`Defendants-Appellees
`
`SUNIVA, INC.,
`Defendant
`______________________
`
`2018-1718
`______________________
`
`Appeal from the United States Court of International
`Trade in No. 1:18-cv-00023-TCS, Chief Judge Timothy C.
`Stanceu.
`
`______________________
`
`Decided: June 15, 2018
`______________________
`
`

`

`
`2
`
` SILFAB SOLAR, INC. v. UNITED STATES
`
`
`JONATHAN THOMAS STOEL, Hogan Lovells US LLP,
`
`Washington, DC, argued for plaintiffs-appellants. Also
`represented by CRAIG ANDERSON LEWIS, MITCHELL REICH,
`ROBERT B. WOLINSKY.
`
`JEANNE DAVIDSON, Commercial Litigation Branch,
`
`Civil Division, United States Department of Justice,
`Washington, DC, argued for defendants-appellees United
`States, United States Customs and Border Protection,
`Kevin K. McAleenan, Office of the U.S. Trade Representa-
`tive, Robert E. Lighthizer. Also represented by CHAD A.
`READLER, TARA K. HOGAN, JOSHUA E. KURLAND, STEPHEN
`CARL TOSINI.
`
`JOHN DAVID HENDERSON, Office of the General Coun-
`
`sel, United States International Trade Commission,
`Washington, DC, argued for defendants-appellees United
`States International Trade Commission, Rhonda K.
`Schmidtlein. Also represented by DOMINIC L. BIANCHI,
`ANDREA C. CASSON.
`
`TIMOTHY C. BRIGHTBILL, Wiley Rein, LLP, Washing-
`
`ton, DC, for defendant-appellee SolarWorld Americas, Inc.
`Also represented by TESSA V. CAPELOTO, LAURA EL-
`SABAAWI, USHA NEELAKANTAN, MAUREEN E. THORSON.
`
` DANIEL L. PORTER, Curtis, Mallet-Prevost, Colt &
`Mosle LLP, Washington, DC, for amicus curiae Govern-
`ment of Canada. Also represented by CHRISTOPHER A.
`DUNN, JAMES P. DURLING.
`______________________
`
`Before DYK, MOORE, and REYNA, Circuit Judges.
`DYK, Circuit Judge.
` Silfab Solar Inc., Heliene Inc., Canadian Solar (USA)
`Inc., and Canadian Solar Solutions Inc. (“appellants”)
`
`

`

`SILFAB SOLAR, INC. v. UNITED STATES
`
`3
`
`sought a preliminary injunction to bar the enforcement of
`presidentially imposed tariffs on solar products. The
`Court of International Trade (“CIT”) denied the injunc-
`tion. We affirm. We conclude that the President’s actions
`here were lawful and that accordingly, appellants have
`not established a probability of success on the merits as
`required for a preliminary injunction.
`BACKGROUND
`I
`Section 201 of the Trade Act of 1974 is commonly
`known as the “escape clause” and authorizes the Presi-
`dent to impose tariffs under prescribed conditions. Section
`201 provides that if the International Trade Commission
`(“ITC” or “the Commission”) determines that
`an article is being imported into the United States
`in such increased quantities as to be a substantial
`cause of serious injury, or the threat thereof, to
`the domestic industry producing an article like or
`directly competitive with the imported article, the
`President, in accordance with this part, shall take
`all appropriate and feasible action within his
`power which the President determines will facili-
`tate efforts by the domestic industry to make a
`positive adjustment to import competition and
`provide greater economic and social benefits than
`costs.
`19 U.S.C. § 2251(a) (emphases added). Such actions are
`typically referred to as “safeguard measures.” Section
`2253(a) provides the same authorization that
`[a]fter receiving a report . . . containing an affirm-
`ative finding regarding serious injury, or the
`threat thereof, to a domestic industry, the Presi-
`dent shall take all appropriate and feasible action
`within his power which the President determines
`will facilitate efforts by the domestic industry to
`
`

`

`
`4
`
` SILFAB SOLAR, INC. v. UNITED STATES
`
`make a positive adjustment to import competition
`and provide greater economic and social benefits
`than costs.
`19 U.S.C. § 2253(a) (emphases added).
`In May 2017, a United States manufacturer of solar
`products, Suniva, Inc., filed a petition with the ITC,
`requesting that the President undertake measures to
`protect U.S. solar manufacturers against foreign imports.
`The goods at issue in this case are crystalline silicon
`photovoltaic (CSPV) cells, manufactured and sold either
`as standalone cells or as functional modules. In accord-
`ance with Section 2252(b)(1)(A), the ITC conducted an
`investigation “to determine whether an article is being
`imported into the United States in such increased quanti-
`ties as to be a substantial cause of serious injury, or the
`threat thereof, to the domestic industry producing an
`article like or directly competitive with the imported
`article.” 19 U.S.C. § 2252(b)(1)(A). On November 17, 2017,
`the ITC issued a report, in which it made an affirmative
`serious injury determination under 19 U.S.C. § 2252(b).
`The ITC determined that solar products were “being
`imported into the United States in such increased quanti-
`ties as to be a substantial cause of serious injury to the
`domestic industry producing an article like or directly
`competitive with the imported article.” J.A. 92.
`When making the determination, there were only four
`Commissioners serving on the ITC. While the four Com-
`missioners were united in their affirmative finding of
`serious injury, they divided into three groups with respect
`to relief. Vice Chairman Johanson and Commissioner
`Williamson recommended a tariff of 30% on imports in
`excess of 1 gigawatt for the first year. Similarly, Chair-
`man Schmidtlein recommended both tariffs and quotas
`under which (1) cells that exceed the 0.5 gigawatts vol-
`ume level would be subject to a 30% tariff, (2) modules
`would be subject to 35% tariff, and (3) a tariff of 10% ad
`
`

`

`SILFAB SOLAR, INC. v. UNITED STATES
`
`5
`
`valorem to be instituted on imports of up to 0.5 gigawatts.
`Commissioner Broadbent recommended a quantitative
`restriction on cells and modules. Since no recommenda-
`tion received the assent of “a majority of the commission-
`ers voting” or of “not less than three commissioners,” none
`was an official Commission recommendation under 19
`U.S.C. § 1330(d)(2).
`After determining that a serious injury was occurring,
`the ITC reported specifically on imports from Canada.
`This appeal only involves solar imports from Canada, and
`not Mexico. The NAFTA Implementation Act requires
`that
`the International Trade Commission shall also
`find (and report to the President at the time such
`injury determination is submitted to the Presi-
`dent) whether (1) imports of the article from a
`NAFTA country, considered individually, account
`for a substantial share of total imports; and
`(2) imports of the article from a NAFTA country,
`considered individually or, in exceptional circum-
`stances, imports from NAFTA countries consid-
`ered collectively, contribute importantly to the
`serious injury, or threat thereof, caused by im-
`ports.
`Pub. L. No. 103-182, 107 Stat. 2057 (1993) (codified at 19
`U.S.C. § 3371) (emphases added). The ITC explained in its
`finding on “substantial share” that Canada contributed
`only roughly 2% of the relevant solar imports during the
`applicable period. The industry in Canada was not among
`the top five suppliers of imports of CSPV products during
`the relevant time period and, on average, was the ninth-
`largest source of solar products. The ITC also pointed out
`that imports from Canada declined between 2015 and
`2016, even though global imports continued to increase. A
`3-1 majority of the ITC concluded that Canadian imports
`did not account for a “substantial share” of solar imports.
`
`

`

`
`6
`
` SILFAB SOLAR, INC. v. UNITED STATES
`
`It further found that Canadian imports did not “contrib-
`ute importantly” to the serious injury, an issue not perti-
`nent to this appeal.
`While Chairman Schmidtlein recommended that the
`President should not exempt Canadian goods from the
`safeguard, given their high rate of growth, the other
`Commissioners recommended excluding Canadian im-
`ports. These Commissioners noted that if a surge of
`imports from Canada took place in the future, the domes-
`tic industry had options to pursue relief under the
`NAFTA import-surge mechanism, 19 U.S.C. § 3372(c).
`Section 3372(c)(1) provides that if the
`President . . . excludes imports from a NAFTA
`country or countries from action . . . but thereafter
`determines that a surge in imports from that
`country or countries is undermining the effective-
`ness of the action—(A) the President may take
`appropriate action . . . to include those imports in
`the action.
`
`II
`After the ITC makes an affirmative injury determina-
`tion under Section 2252(b), as noted earlier, the President
`“shall take all appropriate and feasible action within his
`power which the President determines will facilitate
`efforts by the domestic industry to make a positive ad-
`justment to import competition and provide greater
`economic and social benefits than costs.” 19 U.S.C.
`§ 2253(a)(1)(A). When determining what action to take,
`the statute directs the President to “take into account” ten
`factors, ranging from “the recommendation and report of
`the Commission,” to broader considerations such as the
`national economic interest. 19 U.S.C. § 2253(a)(2).
`After the ITC made its report, the Trade Policy Staff
`Committee (“TPSC”) was tasked with offering a remedy
`recommendation
`to
`the President.
`19 U.S.C.
`
`

`

`SILFAB SOLAR, INC. v. UNITED STATES
`
`7
`
`§ 2253(a)(1)(C). On behalf of the TPSC, the Office of the
`United States Trade Representative (“USTR”) issued a
`request for comments and a notice of public hearing about
`the determination of import injury with regard to CSPV
`cells. Request for Comments and Public Hearing About
`the Administration’s Action Following a Determination of
`Import Injury With Regard to Certain Crystalline Silicon
`Photovoltaic Cells, 82 Fed. Reg. 49,469 (Oct. 25, 2017).
`After the hearing, the TPSC provided the President with
`its recommendation concerning appropriate safeguard
`measures. This recommendation is not a public document
`and was not supplied to this court.
`On January 23, 2018, President Trump issued Proc-
`lamation No. 9693, entitled “To Facilitate Positive Ad-
`justment to Competition From Imports of Certain
`Crystalline Silicon Photovoltaic Cells (Whether or Not
`Partially or Fully Assembled Into Other Products) and for
`Other Purposes.” J.A. 74 (“Proclamation”). The Proclama-
`tion announced a four year safeguard, including a 30-
`percent tariff on solar products, whether assembled as
`cells or modules. As noted earlier, under the NAFTA
`Statute, the President must determine whether the tariffs
`apply to Canadian imports. The President acknowledged
`that the ITC “made negative findings with respect to
`imports of CSPV products from Canada.” J.A. 74, ¶ 3.
`Notwithstanding this, he determined that “imports of
`CSPV products from . . . Canada . . . account for a sub-
`stantial share of total imports and contribute importantly
`to the serious injury or threat of serious injury found by
`the ITC.” J.A. 75, ¶ 7. Accordingly, he did not exempt
`Canadian imports. The President’s safeguard action, i.e.,
`the tariffs, took effect on February 7, 2018.
`III
`On the same day, the plaintiffs, three Canadian man-
`ufacturers of solar panels and a U.S. importer of solar
`cells and modules, filed suit in the CIT, seeking a declara-
`
`

`

`
`8
`
` SILFAB SOLAR, INC. v. UNITED STATES
`
`tory judgment that the Proclamation, as applied to them,
`is contrary to law and an injunction barring enforcement
`of the tariffs. Plaintiffs named as defendants the United
`States, U.S. Customs and Border Protection and its acting
`Commissioner, the U.S. International Trade Commission
`and its Chairman, and the Office of the U.S. Trade Repre-
`sentative and the U.S. Trade Representative. Defendant-
`Intervenors Suniva and SolarWorld, Inc., U.S. manufac-
`turers of solar cells and modules, intervened in support of
`the President’s decision.
`Plaintiffs submitted declarations detailing an immi-
`nent, severe threat of irreparable injury from the solar
`tariffs to their businesses and an expert report containing
`economic analysis of the injury.
`IV
`On March 5, 2018, the CIT denied the motion for a
`preliminary injunction in a careful and thorough opinion.
`The CIT held that, even if it “presume[d], without decid-
`ing” that plaintiffs could demonstrate irreparable harm in
`the absence of an injunction, and that the balance of
`hardships weighed in their favor, plaintiffs would not
`qualify for preliminary relief, because they were not likely
`to succeed on the merits of their claim and the public
`interest did not favor a preliminary injunction. J.A. 7. As
`to the public interest factor, the CIT expressed concern
`that the nominal bond requested “could expose the gov-
`ernment to the risk of being unable to collect safeguard
`duties owed once the entries are liquidated should it
`ultimately prevail in this litigation.” J.A. 40. Although
`plaintiffs asked the court to stay proceedings and grant
`an injunction pending appeal, the CIT denied both mo-
`tions.
`
`

`

`SILFAB SOLAR, INC. v. UNITED STATES
`
`9
`
`Appellants appealed the denial of the injunction to
`our court.1 At this court, they sought, and we denied, a
`motion for injunction pending appeal. The CIT had juris-
`diction pursuant to 28 U.S.C. § 1581(i). We have jurisdic-
`tion pursuant to 28 U.S.C. § 1292(c)(1). “The governing
`standard of review on appeal of a grant or denial of a
`preliminary injunction is abuse of discretion.” Am. Signa-
`ture, Inc. v. United States, 598 F.3d 816, 823 (Fed. Cir.
`2010) (citing Titan Tire Corp. v. Case New Holland, Inc.,
`566 F.3d 1372, 1375 (Fed. Cir. 2009)).
`DISCUSSION
`I
`A preliminary injunction “is an extraordinary reme-
`dy.” Winter v. Nat. Res. Def. Council, 555 U.S. 7, 24 (2008)
`(citing Munaf v. Geren, 553 U.S. 674, 689-90 (2008)). The
`moving party has to show the following factors in order to
`obtain a preliminary injunction: (1) likelihood of success
`on the merits, (2) irreparable harm absent immediate
`relief, (3) the balance of interests weighing in favor of
`relief, and (4) that the injunction serves the public inter-
`est. Id. at 20; accord Wind Tower Trade Coal. v. United
`States, 741 F.3d 89, 95 (Fed. Cir. 2014).
`On appeal, the appellants focus primarily on the first
`factor – likelihood of success on the merits. In Winter, the
`Supreme Court made clear that “[i]ssuing a preliminary
`injunction based only on a possibility of irreparable harm
`is inconsistent with our characterization of injunctive
`relief.” Winter, 555 U.S. at 22. Since Winter, we have held
`that the party seeking the injunction must be able to
`
`1 At the CIT, plaintiffs also argued for a prelimi-
`nary injunction on the grounds that the presidential
`action violated quantitative restriction limitations under
`19 U.S.C. § 3372(d). Plaintiffs do not raise this issue on
`appeal.
`
`

`

`
`10
`
` SILFAB SOLAR, INC. v. UNITED STATES
`
`“demonstrate that it has at least a fair chance of success
`on the merits for a preliminary injunction to be appropri-
`ate.” Wind Tower, 741 F.3d at 96 (citing Qingdao Taifa
`Grp. Co. v. United States, 581 F.3d 1375, 1381 (Fed. Cir.
`2009)).
`Appellants rely on past cases where we have held that
`the probability of success factor can be decided on a
`sliding scale, and a lesser showing of likelihood of success
`is acceptable, where there is a significant showing of
`irreparable injury. See, e.g., Belgium v. United States, 452
`F.3d 1289, 1292-93 (Fed. Cir. 2006). Appellants argue
`that they have shown a strong likelihood of irreparable
`injury and that, accordingly, only a reduced showing of
`probability of success should be required. Even accepting
`(without deciding) the theory that our sliding-scale juris-
`prudence remains good law after Winter, we conclude that
`appellants have not shown any probability of success on
`the merits, so that a preliminary injunction would not be
`appropriate even under the most lenient sliding-scale
`standard.
`
`II
`Under Corus and other decisions of this court, there
`are limited circumstances when a presidential action may
`be set aside if the President acts beyond his statutory
`authority, but such relief is only rarely available. Corus
`Grp. PLC v. Int’l. Trade Comm’n, 352 F.3d 1351, 1356
`(Fed. Cir. 2003) (highlighting that review is available to
`determine whether the President “clear[ly] miscon-
`stru[ed]” his statutory authority); see also Motion Sys.
`Corp. v. Bush, 437 F.3d 1356, 1361 (Fed. Cir. 2006) (en
`banc) (explaining that courts may consider whether “the
`President has violated an explicit statutory mandate”);
`Maple Leaf Fish Co. v. United States, 762 F.2d 86, 89
`(Fed. Cir. 1985) (holding that “[f]or a court to interpose,
`there has to be a clear misconstruction of the governing
`statute, a significant procedural violation, or action
`
`

`

`SILFAB SOLAR, INC. v. UNITED STATES
`
`11
`
`outside delegated authority”). We conclude that such
`relief is not available in this case and reject appellants’
`various arguments to the contrary.
`First, appellants argue that the President had no
`power to act because the ITC made no recommendation as
`to remedy. The simple answer to this claim is that the
`President’s authority to act is not conditioned on the
`existence of such a recommendation. It is conditioned only
`on an ITC’s finding of serious injury, or the threat thereof.
`19 U.S.C. § 2253 provides that
`[a]fter receiving a report . . . containing an affirm-
`ative finding regarding serious injury, or the
`threat thereof, to a domestic industry, the Presi-
`dent shall take all appropriate and feasible action
`within his power which the President determines
`will facilitate efforts by the domestic industry to
`make a positive adjustment to import competition
`and provide greater economic and social benefits
`than costs.
`19 U.S.C. § 2253(a) (emphasis added).
`In Corus, we held that the President lacks authority
`under Section 2253 to act, unless the ITC makes a deter-
`mination of serious injury or threat thereof. 352 F.3d at
`1354. However, nothing in the statute or in Corus sug-
`gests that the existence of an ITC recommendation as to
`remedy is a condition of the President’s power to act.
`Indeed, the statute makes clear that the only condition
`necessary for the President to take action is the affirma-
`tive finding regarding serious injury or the threat thereof.
`As the CIT pointed out, it is difficult to believe that Con-
`gress would have wanted an injury to go unremedied,
`simply because the ITC’s Commissioners could not agree
`on a particular remedy.
`Appellants argue that if the President is allowed to
`act without an ITC recommendation as to remedy, Con-
`
`

`

`
`12
`
` SILFAB SOLAR, INC. v. UNITED STATES
`
`gress will not be able to exercise its fast track authority.
`The statute provides that if “the action taken . . . differs
`from the action recommended by the Commission under
`section 2252(e)(1)” a fast track congressional override is
`available, allowing Congress to institute “the action
`recommended by the Commission . . . upon the enactment
`of a joint resolution . . . within the 90-day period begin-
`ning on the date on which the [recommendation] is
`transmitted to the Congress.” 19 U.S.C. § 2253(c). We
`express no opinion about whether, in the absence of a
`remedy recommendation, Congress has authority to
`invoke the fast track provision of Section 2253(c). The
`question of whether the President’s action here “differs
`from the action recommended by the Commission” when
`the ITC makes no recommendation is a matter for Con-
`gress, and not this court.
`Second, appellants argue that the statute gives the
`President authority only if he acts under the statute and
`that the President cannot do so if the ITC has failed to
`comply with the statute. Section 2252(f)(1) states that
`“[t]he Commission shall submit to the President a report
`on each investigation.” While the ITC did not make the
`required remedy recommendation, we have rejected the
`contention that the failure of the ITC to comply with its
`statutory obligations invalidates presidential action. In
`Michael Simon Design, Inc. v. United States, 609 F.3d
`1335, 1342-43 (Fed. Cir. 2010), as here, the plaintiff
`claimed that the President’s action was unlawful because
`the ITC’s recommendation failed to comport with the
`applicable statute. We held that an allegedly unlawful
`ITC recommendation to the President did not invalidate
`the President’s determination. We explained that a “rec-
`ommendation does not cease to be made ‘under’ [the
`relevant] section . . . simply because the recommendation
`is assertedly contrary to the substantive requirements of
`that provision.” Id. at 1341. This was the case, because, as
`in Dalton v. Specter, 511 U.S. 462, 476 (1994), “[n]othing
`
`

`

`SILFAB SOLAR, INC. v. UNITED STATES
`
`13
`
`in [the relevant statute] requires the President to deter-
`mine whether the Secretary or Commission committed
`any procedural violations in making their recommenda-
`tions, nor does [the relevant statute] prohibit the Presi-
`dent
`from approving
`recommendations
`that are
`procedurally flawed.”
`Third, appellants argue that the President did not
`make the required report to Congress. Section 2253(b)(1)
`requires that
`[o]n the day the President takes action . . . the
`President shall transmit to Congress a document
`describing the action and the reasons for taking
`the action. If the action taken by the President
`differs from the action required to be recommend-
`ed by the Commission under section 2252(e)(1) of
`this title, the President shall state in detail the
`reasons for the difference.
`19 U.S.C. § 2253(b)(1) (emphasis added). In fact, it ap-
`pears that the President did make a report to Congress.
`J.A. 829-51. But even if the President had not, or, if the
`report was in some way deficient, that would not be a
`ground for setting aside the President’s action. Under the
`statute, the making of the required report is not a condi-
`tion precedent to valid presidential action, and the failure
`to make a required report, even if it occurred, is not
`grounds to set aside the presidential action. In Michael
`Simon, after “the appellants argue[d] that it was improp-
`er for the President to adopt modifications that were not
`rate neutral,” we held that “section 3006(a) does not make
`rate neutrality a condition of the President’s decision.”
`609 F.3d at 1342. Therefore, “any claim that the Presiden-
`tial proclamation does not produce rate neutrality is not
`subject to judicial review.” Id. at 1342-43. This was the
`case, because “the statute [at issue] contains no language
`that expressly mandates substantial rate neutrality as a
`prerequisite to the President’s authority to proclaim
`
`

`

`
`14
`
` SILFAB SOLAR, INC. v. UNITED STATES
`
`HTSUS modifications.” Id. at 1343. Similarly, the making
`of a report is not a precondition for presidential action in
`this case.
`Fourth, appellants contend that the President did not
`consider the ITC report as required by the statute. The
`statute requires that the President “shall take into ac-
`count – (A) the recommendation and report of the Com-
`mission.” 19 U.S.C. § 2253(a)(2). The Proclamation states
`that the President considered the report. J.A. 74 ¶¶ 2-6
`(stating that the President made his decision “[a]fter
`taking into account the considerations specified in section
`203(a)(2) of the Trade Act . . . [including] the ITC Re-
`port”). We have no authority to determine whether the
`President’s statement is factually accurate. See Maple
`Leaf, 762 F.2d at 89. To the extent that appellants argue
`that the President did not take account of the recommen-
`dation of the ITC because there was none, this is merely a
`reprisal of the argument that the President has no au-
`thority to act without an ITC recommendation. We ad-
`dressed and rejected this above.
`Finally, appellants argue that the President’s action
`violated the NAFTA Implementation Act, specifically 19
`U.S.C. § 3372. Section 3372(a) instructs that, “[i]n deter-
`mining whether to take action under . . . the Trade Act of
`1974 . . . with respect to imports from a NAFTA country,
`the President shall determine whether” a NAFTA coun-
`try’s exports to the United States “account for a substan-
`tial share of total imports” and whether those imports
`“contribute importantly to the serious injury . . . found by
`the International Trade Commission.” Imports from a
`NAFTA country will be excluded from the action “if the
`President makes a negative determination” regarding
`either substantial share or contribute importantly “with
`respect to
`imports
`from such country.” 19 U.S.C.
`§ 3372(b). The President thus must exempt Canada if he
`
`

`

`SILFAB SOLAR, INC. v. UNITED STATES
`
`15
`
`“determines” that Canadian imports do not constitute a
`“substantial share” of total imports.2 As set forth in the
`Proclamation, President Trump determined that “imports
`of CSPV products from . . . Canada . . . account for a
`substantial share of total imports.” J.A. 75, ¶ 7.
`Appellants argue that there is no support for such a
`determination. Appellants point out that the ITC deter-
`mined that imports from Canada did not constitute a
`“substantial share.” J.A. 159.3 The Proclamation itself
`recognized that the ITC made findings “as to whether
`imports from . . . Canada, considered individually, account
`for a substantial share of total imports and contribute
`importantly to the serious injury, or threat thereof,
`caused by imports. The ITC . . . made negative findings
`
`
`2 Subsections 3372(a)-(b) provide that
`the President shall determine whether – (1) im-
`ports from such country, considered individually,
`account for a substantial share of total imports; or
`(2) imports from a NAFTA country, considered in-
`dividually, or in exceptional circumstances im-
`ports
`from NAFTA
`countries
`considered
`collectively, contribute importantly to the serious
`injury, or threat thereof, found by the Interna-
`tional Trade Commission. . . . [And that] [i]n de-
`termining the nature and extent of action to be
`taken under chapter 1 of title II of the Trade Act
`of 1974 [19 U.S.C.A. § 2251 et seq.], the President
`shall exclude from such action imports from a
`NAFTA country if the President makes a negative
`determination under subsection (a)(1) or (2) of this
`section with respect to imports from such country.
`3 Appellants do not argue that the President erred
`in his “contribute to injury” finding, the second factor
`required.
`
`

`

`
`16
`
` SILFAB SOLAR, INC. v. UNITED STATES
`
`with respect to imports of CSPV products from Canada.”
`J.A. 74, ¶ 3. Moreover, according to the record, Canadian
`imports seem to account for only roughly 2% of the rele-
`vant solar imports during the applicable period. The
`industry in Canada was not among the top five suppliers
`of imports of CSPV products during the relevant time
`period, and on average, Canada was only the ninth larg-
`est source of solar products. The NAFTA Implementation
`Act provides that a NAFTA country should “normally” be
`deemed “to account for a substantial share” only if it is
`“among the top 5 suppliers” over “the most recent 3-year
`period.” 19 U.S.C. § 3371(b)(1).
`The presidential action cannot be set aside because it
`conflicts with the ITC’s conclusion. While the ITC made a
`negative finding as to substantial share with respect to
`solar products from Canada, these findings in no way bind
`the President. Indeed, the ITC has a duty only to find and
`report regarding determinations of substantial share, and
`the President is free to reach a different decision regard-
`ing those determinations.
`Nor do we have authority to review the President’s
`substantial share determination. The question regarding
`substantial share is factual, and we have no authority to
`review the President’s factual determinations. “The
`President’s findings of fact and the motivations for his
`action are not subject to review.” Maple Leaf, 762 F.2d at
`89 (citation omitted); see also United States v. George S.
`Bush & Co., 310 U.S. 371, 379-80 (1940) (“[T]he judgment
`of the President . . . on the facts . . . is no more subject to
`judicial review . . . than if Congress itself had exercised
`that judgment.”); Michael Simon, 609 F.3d at 1340 (“The
`language . . . does not implicitly or explicitly limit the
`President’s discretion in a way that would render the
`President’s actions in this case judicially reviewable.”).
`In particular, courts have repeatedly confirmed that,
`where the statute authorizes a Presidential “determina-
`
`

`

`SILFAB SOLAR, INC. v. UNITED STATES
`
`17
`
`tion,” the courts have no authority to look behind that
`determination to see if it is supported by the record. See,
`e.g., George S. Bush & Co., 310 U.S. at 379 (finding no
`review when the statute committed the decision to the
`President’s “judgment”); Motion Sys., 437 F.3d at 1359
`(finding no review when the statute authorized the Presi-
`dent to “provide import relief . . . unless the President
`determines that provision of such relief is not in the
`national economic interest of the United States”); Maple
`Leaf, 762 F.2d at 87-90 (finding no review of the Presi-
`dent’s “determin[ations]” under Sections 2251-53 of Title
`19 of the U.S. Code). Congress could not have intended
`that courts review a presidential determination, based on
`an ITC record, when the President can and does rely on
`information that is neither public, nor part of that record.
`CONCLUSION
`The CIT correctly determined that appellants cannot
`demonstrate likelihood of success on the merits, and thus
`we need not consider the other preliminary injunction
`factors. If Congress desires to eliminate these tariffs or to
`cabin the President's authority, that is a matter for Con-
`gress to address in future legislation, not a matter for this
`court on this appeal.
`
`AFFIRMED
`
`