Case: 19-1591 Document: 104 Page: 1 Filed: 06/24/2020
`
`
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`SOLARWORLD AMERICAS, INC.,
`Plaintiff-Cross-Appellant
`v.
`
`UNITED STATES,
`Defendant-Appellee
`
`DEPARTMENT OF COMMERCE,
`Defendant
`
`v.
`
`TRINA SOLAR (U.S.) INC.,
`Defendant
`
`YINGLI GREEN ENERGY HOLDING COMPANY
`LIMITED, YINGLI GREEN ENERGY AMERICAS,
`INC., YINGLI ENERGY (CHINA) CO., LTD.,
`BAODING TIANWEI YINGLI NEW ENERGY
`RESOURCES CO., LTD., BEIJING TIANNENG
`YINGLI NEW ENERGY RESOURCES CO., LTD.,
`TIANJIN YINGLI NEW ENERGY RESOURCES CO.,
`LTD., HENGSHUI YINGLI NEW ENERGY
`RESOURCES CO., LTD., LIXIAN YINGLI NEW
`ENERGY RESOURCES CO., LTD., BAODING
`JIASHENG PHOTOVOLTAIC TECHNOLOGY CO.,
`LTD., HAINAN YINGLI NEW ENERGY RESOURCES
`CO., LTD., SHENZHEN YINGLI NEW ENERGY
`RESOURCES CO., LTD., CANADIAN SOLAR, INC.,
`CANADIAN SOLAR (USA), INC., CANADIAN SOLAR
`MANUFACTURING (CHANGSHU), INC.,
`CANADIAN SOLAR MANUFACTURING
`
`

`

`Case: 19-1591 Document: 104 Page: 2 Filed: 06/24/2020
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`2
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`SOLARWORLD AMERICAS, INC. v. UNITED STATES
`
`
`(LUOYANG), INC., CANADIAN SOLAR
`INTERNATIONAL LIMITED, BYD (SHANGLUO)
`INDUSTRIAL CO., LTD., SHANGHAI BYD CO.,
`LTD.,
`Defendants-Appellees
`
`CHANGZHOU TRINA SOLAR ENERGY CO., LTD.,
`TRINA SOLAR (CHANGZHOU) SCIENCE &
`TECHNOLOGY CO., LTD., YANCHENG TRINA
`SOLAR ENERGY TECHNOLOGY CO., LTD.,
`CHANGZHOU TRINA SOLAR YABANG ENERGY
`CO., LTD., TURPAN TRINA SOLAR ENERGY CO.,
`LTD., HUBEI TRINA SOLAR ENERGY CO., LTD.,
`Defendants-Appellants
`______________________
`
`2019-1591, 2019-1593
`______________________
`
`Appeals from the United States Court of International
`Trade in Nos. 1:16-cv-00132-CRK, 1:16-cv-00134-CRK,
`1:16-cv-00135-CRK, Judge Claire R. Kelly.
`______________________
`
`Decided: June 24, 2020
`______________________
`
`TIMOTHY C. BRIGHTBILL, Wiley Rein, LLP, Washington,
`DC, argued for plaintiff-cross-appellant. Also represented
`by TESSA V. CAPELOTO, DOUGLAS C. DREIER, LAURA EL-
`SABAAWI, USHA NEELAKANTAN, STEPHEN
`JOSEPH
`OBERMEIER, JOHN ALLEN RIGGINS, ADAM MILAN TESLIK,
`MAUREEN E. THORSON, ENBAR TOLEDANO.
`
` NEIL R. ELLIS, Sidley Austin LLP, Washington, DC,
`argued for defendants-appellees Yingli Green Energy
`Holding Company Limited, Yingli Green Energy Americas,
`Inc., Yingli Energy (China) Co., Ltd., Baoding Tianwei
`
`

`

`Case: 19-1591 Document: 104 Page: 3 Filed: 06/24/2020
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`SOLARWORLD AMERICAS, INC. v. UNITED STATES
`
`
`3
`
`Yingli New Energy Resources Co., Ltd., Beijing Tianneng
`Yingli New Energy Resources Co., Ltd., Tianjin Yingli New
`Energy Resources Co., Ltd., Hengshui Yingli New Energy
`Resources Co., Ltd., Lixian Yingli New Energy Resources
`Co., Ltd., Baoding Jiasheng Photovoltaic Technology Co.,
`Ltd., Hainan Yingli New Energy Resources Co., Ltd.,
`Shenzhen Yingli New Energy Resources Co., Ltd.,
`Canadian Solar, Inc., Canadian Solar
`(USA), Inc.,
`Canadian Solar Manufacturing
`(Changshu),
`Inc.,
`Canadian Solar Manufacturing (Luoyang), Inc., Canadian
`Solar International Limited. Also represented by SHAWN
`MICHAEL HIGGINS.
`
` CRAIG A. LEWIS, Hogan Lovells US LLP, Washington,
`DC, for defendants-appellees BYD (Shangluo) Industrial
`Co., Ltd., Shanghai BYD Co., Ltd.
`
` TARA K. HOGAN, Commercial Litigation Branch, Civil
`Division, United States Department
`of Justice,
`Washington, DC, argued for defendant-appellee United
`States. Also represented by JOSEPH H. HUNT, REGINALD
`THOMAS BLADES, JR., JEANNE DAVIDSON; BRENDAN SASLOW,
`MERCEDES MORNO, Office of the Chief Counsel for Trade
`Enforcement & Compliance, United States Department of
`Commerce, Washington, DC.
`
` JONATHAN FREED, Trade Pacific PLLC, Washington,
`DC, argued for defendants-appellants. Also represented by
`ROBERT GOSSELINK.
` ______________________
`
`Before PROST, Chief Judge, DYK and O’MALLEY, Circuit
`Judges.
`
`DYK, Circuit Judge.
`Defendants Changzhou Trina Solar Energy Co., Ltd. et
`al. (“Trina”) appeal decisions of the United States Court of
`International Trade
`(“CIT”)
`regarding
`the
`first
`
`

`

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`SOLARWORLD AMERICAS, INC. v. UNITED STATES
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`administrative review of an antidumping duty order on
`crystalline silicon photovoltaic cells from the People’s
`Republic of China (“PRC” or “China”). Plaintiff SolarWorld
`Americas, Inc. (“SolarWorld”) cross-appeals. We affirm in
`part, vacate in part, and remand.
`BACKGROUND
`“Dumping occurs when a foreign firm sells a product in
`the United States at a price lower than the product’s
`normal value.” Home Prod. Int’l, Inc. v. United States, 633
`F.3d 1369, 1372 (Fed. Cir. 2011). The Tariff Act of 1930,
`codified at 19 U.S.C. § 1202 et seq., authorizes the
`government
`to
`impose on dumped products
`“an
`antidumping duty . . . in an amount equal to the amount by
`which the normal value exceeds the export price” of the
`products. 19 U.S.C. § 1673. “For exporters based in
`market economy . . . countries, [the normal value] is
`generally the price at which the firm sells the product in
`its home market.” Home Prod., 633 F.3d at 1372 (citing 19
`U.S.C. § 1677b(a)(1)(B)(i)). Where the exporter is located
`in a non-market economy, “the default rule is that [the
`normal value]
`is calculated based on a factors-of-
`production analysis whereby each input is valued based on
`data from a surrogate [market economy] country.” Id.
`(citing 19 U.S.C. § 1677b(a)(1)(B)(ii)). The government is
`required to separately determine a weighted average
`dumping margin for “each known exporter and producer,”
`unless “not practicable.” See 19 U.S.C. § 1677f-1(c).
`On December 7, 2012, the Department of Commerce
`(“Commerce”) issued an antidumping duty order on
`crystalline silicon photovoltaic cells from China. On
`February 4, 2015, Commerce
`initiated
`the
`first
`administrative review of this antidumping duty order,
`covering the period December 1, 2013, through November
`30, 2014 (“Period of Review”). Included as mandatory
`respondents in this review were Trina, Yingli Green
`
`

`

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`SOLARWORLD AMERICAS, INC. v. UNITED STATES
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`5
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`Energy Holding Company Limited et al. (“Yingli”), and
`BYD (Shangluo) Industrial Co., Ltd. et al. (“BYD”).
`Commerce published its final determination (“Final
`Results”) on June 13, 2016.
`SolarWorld, Trina, Yingli, and BYD brought suit
`against the government in the CIT, each challenging
`aspects of Commerce’s Final Results under 19 U.S.C
`§ 1516a(a)(2). SolarWorld, a domestic producer, argued
`that the antidumping duty rates were too low. Trina,
`Yingli, and BYD, foreign producers, argued that their
`antidumping duty rate was too high. After remands on
`October 18, 2017, and May 18, 2018, the CIT sustained
`Commerce’s determinations on December 13, 2018.
`Commerce calculated a dumping margin of 6.55% for
`Trina, 0% for Yingli, and 8.52% for BYD.
`SolarWorld, Trina, and BYD appeal. We describe the
`particular challenges to the antidumping determinations
`and the CIT’s rulings below. We have jurisdiction under
`28 U.S.C. § 1295(a)(5).
`
`DISCUSSION
`We review the CIT’s decision to sustain Commerce’s
`final results and its remand redeterminations de novo. See
`U.S. Steel Corp. v. United States, 621 F.3d 1351, 1357 (Fed.
`Cir. 2010). We will affirm Commerce unless its decision is
`“unsupported by substantial evidence on the record, or
`otherwise not in accordance with law.” 19 U.S.C.
`§ 1516a(b)(1)(B)(i).
`
`I
`We first address Trina’s argument that Commerce
`overstated its dumping duty by using Thai import data to
`value Trina’s nitrogen input.
`Where an exporter is from a non-market economy
`(here, China), 19 U.S.C. § 1677b(c)(1) directs Commerce to
`
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`SOLARWORLD AMERICAS, INC. v. UNITED STATES
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`determine the “normal price” of merchandise subject to an
`antidumping duty “on the basis of the value of the factors
`of production utilized in producing the merchandise.” “The
`evaluation of the factors of production shall be based on the
`best available information regarding the values of such
`factors in a market economy country or countries
`considered to be appropriate by [Commerce].”
` Id.
`(emphasis added). This statutory directive reflects “the
`intent of Congress . . . that Commerce should avoid the use
`of distorted surrogate prices.” Nation Ford Chem. Co. v.
`United States, 166 F.3d 1373, 1378 (Fed. Cir. 1999).
`Section 1677b is implemented by 19 C.F.R. § 351.408,
`which provides, in relevant part, that “[Commerce]
`normally will use publicly available information to value
`factors,” and that Commerce “normally will value all
`factors in a single surrogate country.” Commerce has a
`practice of “resort[ing] to a secondary surrogate country . . .
`if data from the primary surrogate country [is] unavailable
`or unreliable.” J.A. 746.
`“In determining the valuation of the factors of
`production,
`‘the critical question
`is whether
`the
`methodology used by Commerce is based on the best
`available information and establishes the antidumping
`margins as accurately as possible.’” Zhejiang DunAn
`Hetian Metal Co. v. United States, 652 F.3d 1333, 1341
`(Fed. Cir. 2011) (quoting Shakeproof Assembly Components
`v. United States, 268 F.3d 1376, 1382 (Fed. Cir. 2001)).
`Thus, a “surrogate value must be as representative of the
`situation in the [non-market economy] country as is
`feasible.” SeAH Steel VINA Corp. v. United States, 950
`F.3d 833, 845 (Fed. Cir. 2020) (quoting Nation Ford, 166
`F.3d at 1377). “This court’s duty is ‘not to evaluate whether
`the information Commerce used was the best available, but
`rather whether a reasonable mind could conclude that
`Commerce chose
`the best available
`information.’”
`Zhejiang, 652 F.3d at 1341 (quoting Goldlink Indus. Co. v.
`
`

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`Case: 19-1591 Document: 104 Page: 7 Filed: 06/24/2020
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`SOLARWORLD AMERICAS, INC. v. UNITED STATES
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`7
`
`United States, 431 F. Supp. 2d 1323, 1327 (Ct. Int’l Trade
`2006)).
`Commerce here selected Thailand as “the primary
`surrogate country” under 19 C.F.R. § 351.408 and
`calculated a surrogate value for Trina’s nitrogen input
`using Thai import data published by the Global Trade
`Atlas (“GTA”). J.A. 704. The GTA records the quantity and
`value of imports into countries by Harmonized Tariff
`Schedule (“HTS”) classification. Commerce found the Thai
`GTA nitrogen data to be “reliable.” J.A. 707. The GTA
`data indicated an overall average unit value (“AUV”) of
`$11.68 per kilogram for nitrogen during the period of
`review, which Commerce adopted as the surrogate value
`for Trina’s nitrogen input. The CIT sustained that
`determination, concluding that Trina had failed to show
`that the Thai GTA data were aberrational.
`Trina asserts that Commerce erred in using the Thai
`GTA data because it was not the best available information
`to value Trina’s nitrogen gas input. Trina asserts that the
`Thai GTA data was “exceedingly aberrational” when
`compared to alternative surrogate values. Appellant’s
`Br. 12. We agree with Trina that Commerce has not
`provided a persuasive reason for using the Thai GTA data
`in light of unrebutted evidence of its unreliability.
`A table showing GTA nitrogen data for each of the six
`“potential surrogate countries” identified by Commerce,
`J.A. 705, is reproduced below:
`
`

`

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`SOLARWORLD AMERICAS, INC. v. UNITED STATES
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`
`Source
`
`Quantity
`(kgs)
`
`Value
`(USD)
`
`AUV
`(USD/kg)
`
`Bulgaria
`
`10,657,309 953,544
`
`Romania
`
`1,575,456
`
`199,446
`
`0.09
`
`0.13
`
`Thailand
`
`47,618
`
`556,305
`
`11.68
`
`South
`Africa
`
`24,043
`
`131,325
`
`5.46
`
`Ecuador
`
`18,462
`
`89,414
`
`4.84
`
`Ukraine
`
`6,750
`
`531,537
`
`78.75
`
`Total
`
`12,329,638 2,461,571 0.20
`
`% of
`Total
`Quantity
`
`86.44%
`
`12.78%
`
`0.39%
`
`0.20%
`
`0.15%
`
`0.05%
`
`100%
`
`J.A. 813–29.
`The government contends that Commerce’s use of Thai
`GTA data was reasonable because it “was within the range
`of [average unit values] for the other potential surrogate
`countries [other than Thailand],
`including Bulgaria
`($0.09/kg), Romania ($0.13[/kg]), Ecuador ($4.84[/kg]),
`South Africa ($5.46[/kg]), and Ukraine ($78.75/kg).”
`United States’ Br. 17. In essence, the government argues
`that Commerce reasonably relied on a “bookend”
`methodology to find the Thai data reliable because its
`average unit value was neither the highest nor the lowest
`of the potential surrogate countries. Id. But the use of a
`bookend methodology here is illogical because it fails to
`account for the fact that countries on one end of the
`bookend (Bulgaria and Romania) account for the vast
`majority (99.22%) of the recorded nitrogen imports, that
`these countries have a substantially lower average unit
`value than that of Thailand, and that the other countries
`
`

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`to which Commerce compares the Thai average unit value
`(the other end of the bookend) together represent only a
`fraction of a percent of the quantity (about 0.40%) recorded
`in the GTA.
`In this respect, Commerce’s decision here to use the
`Thai GTA data also appears inconsistent with its usual
`practice.
` Commerce’s
`longstanding
`“administrative
`practice with respect to aberrational data is ‘to disregard
`small-quantity import data [from the primary surrogate
`country] when the per-unit value is substantially different
`from the per-unit values of the larger quantity imports of
`that product from other [potential surrogate] countries.’”
`Shakeproof Assembly Components Div. of Illinois Tool
`Works, Inc. v. United States, 59 F. Supp. 2d 1354 (Ct. Int’l
`Trade 1999) (quoting Heavy Forged Hand Tools, Finished
`or Unfinished, With or Without Handles, From the People’s
`Republic of China; Final Results of Antidumping Duty
`Administrative Reviews, 63 Fed. Reg. 16758, 16761 (April
`6, 1998)). The Thai GTA data is “small-quantity” (0.39%),
`and the per-unit value of the Thai GTA data ($11.68/kg) is
`“substantially different” from the per-unit values GTA data
`for the two countries with “larger quantity imports”:
`Bulgaria ($0.09/kg) and Romania ($0.13/kg). Under these
`circumstances, the use of Thai data appears to be
`inconsistent with Commerce’s own approach in past cases.
`Commerce has also failed to explain how the Thai GTA
`data can be reconciled with data from the United States
`International Trade Commission’s
`(“ITC”) Dataweb
`website, which records exports from the United States to
`other countries. As relevant here, that data is nitrogen
`exports from the United States to Thailand during the
`Period of Review. As previously mentioned, the Thai GTA
`data records imports into Thailand from other countries
`(including the United States) during the Period of Review.
`Commerce admits that the ITC data and Thai GTA data
`
`

`

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`SOLARWORLD AMERICAS, INC. v. UNITED STATES
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`for imports from the United States thus relate to the same
`real-world transactions.
`The ITC data indicated that about 136 times more
`nitrogen was exported from the United States into
`Thailand (roughly 586,305 kg) than the GTA data
`indicated was imported into Thailand from the United
`States (4,298 kg). And the ITC data indicated an average
`unit value for nitrogen of $0.16/kg, as opposed to the GTA
`value of $11.68/kg.
`The ITC data and the Thai GTA data cannot both be
`correct, as Commerce appears to admit. See Oral
`Argument, 35:55-36:04 (when asked whether the Thai
`GTA data and the ITC data can both be correct, the
`government stated “probably not”). Commerce has not
`explained why the Thai GTA data is a more accurate record
`of these transactions than the ITC data, admitting that it
`“just do[es]n’t know” which is accurate. Oral Argument,
`36:40-49.
`The government asserts that the ITC data is irrelevant
`because “Commerce’s preference [is] to use import data for
`surrogate values[] [to enable] comparison between similar
`datasets,” and that “the value of U.S. exports to Thailand,
`which reflects only one data point, does not represent a
`broad-market average.” United States’ Br. 19. But
`Commerce’s preference for GTA data does not excuse its
`failure to reconcile the admitted inconsistency.
`In sum, Commerce has not provided sufficient
`justification for its conclusion that the Thai GTA data was
`the “best available information” from which to value
`Trina’s nitrogen input. See SEC v. Chenery Corp., 318 U.S.
`80, 95 (1943). We remand to the CIT for Commerce to
`either adequately explain why the Thai GTA data is not
`aberrational or to adopt an alternative surrogate value for
`Trina’s nitrogen input.
`
`

`

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`SOLARWORLD AMERICAS, INC. v. UNITED STATES
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`
`II
`We next turn to Trina’s contention that Commerce
`erred by using records for which a zero quantity of imports
`was recorded to calculate the average unit value for dozens
`of its inputs.
`The GTA records the import value and the import
`quantity for import transactions into a country. To
`determine the surrogate value for an input, Commerce
`calculates the average unit value of all imports of the input
`into the surrogate country during the period of review. The
`average unit value for an input is calculated as the total
`sum of import values (i.e., the total dollar value of all
`inputs) divided by the total sum of import quantities.
`Here, the Thai GTA import data relied upon by
`Commerce to calculate the surrogate value for several of
`Trina’s inputs included transactions for which a non-zero
`value was recorded but a quantity of zero was recorded.1
`Trina asserts that the use of these transactions was
`“mathematically incorrect” because
` “[t]he result of
`including these data was that the numerators in the
`surrogate value
`calculations
`increased while
`the
`denominators remained the same.” Trina’s Appellant’s Br.
`22.
`
`We do not reach Trina’s contention that Commerce’s
`use of zero-quantity data is incorrect because we find that
`Trina has not satisfied its burden to show that it suffered
`harm as a result of the purported error. “[T]he party that
`‘seeks to have a judgment set aside because of an erroneous
`ruling carries the burden of showing that prejudice
`
`
`these zero-quantity
`that
`1 Commerce asserts
`transactions were the result of the rounding down to zero
`of transactions with an actual quantity of less than 0.05 of
`the quantity unit.
`
`

`

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`SOLARWORLD AMERICAS, INC. v. UNITED STATES
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`resulted.’” Shinseki v. Sanders, 556 U.S. 396, 409 (2009)
`(quoting Palmer v. Hoffman, 318 U.S. 109 (1943)).
`“Consequently, the burden of showing that an error is
`harmful normally falls upon the party attacking the
`agency’s determination.” Id. In the antidumping context,
`a party challenging a purported error by Commerce must
`show that it was harmed as a result of the error. See
`Suntec Indus. Co. v. United States, 857 F.3d 1363, 1367
`(Fed. Cir. 2017) (affirming judgment against foreign
`exporter because exporter failed to show prejudice caused
`by Commerce’s purported error).2
`The record indicates that Commerce’s decision to use
`zero-quantity data—whether
`or not
`correct—had
`essentially no impact on Trina’s antidumping duty rate.
`Commerce explained:
`Importantly, removal of the zero-quantity entries
`has almost no impact on almost any of the AUVs.
`For 70 of the 76 different HTS categories of GTA
`import data on the record, the difference between
`the AUV of the data including zero-quantity
`imports and the AUV of the data without zero-
`quantity imports rounds to zero percent; for four
`other HTS categories, the difference is one percent.
`The differences for the other two HTS categories
`are two and five percent. The average difference of
`the 76 different HTS categories is 0.16 percent of
`
`
`2 The review in Suntec was under 28 U.S.C.
`§ 2640(e). Section 2640(e) expressly incorporates section
`706 of the Administrative Procedure Act (“APA”), which
`includes a harmless-error review provision. The review
`here is under 28 U.S.C. § 2640(b), which does not expressly
`refer to section 706. Even so, section 706 review applies
`since no law provides otherwise. Dickinson v. Zurko, 527
`U.S. 150, 154 (1999); 5 U.S.C. § 706.
`
`

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`13
`
`the total value of imports of the HTS category.
`Meanwhile, the removed 647 zero-quantity imports
`account for 6.9 percent of the data points on the
`record. Removing the zero-quantity imports would
`have almost no impact on Trina’s margin, despite
`the zero-quantity entries accounting for 6.9 percent
`of the import data . . . .
`J.A. 794 (emphasis added).
`This analysis by Commerce suggests that the effect of
`the alleged error was so small as to be negligible. Trina
`provided no rebuttal to Commerce’s analysis, admitting at
`oral argument that it could not provide “the exact impact
`here,” and that “the impact on a percent basis is small.”
`Oral Argument, 12:27–35, 14:50–15:03.
`Trina’s position
`is that
`if Commerce made a
`mathematical error here, it would be per se prejudicial
`regardless of the practical effect of that error. There is no
`such per se rule, and Trina’s position is directly contrary to
`the harmless-error rule.
`We affirm the CIT’s decision to sustain Commerce’s use
`of zero-quantity data because Trina has failed to
`demonstrate that the alleged error, if there was an error,
`was harmful.
`
`III
`to cross-appellant SolarWorld’s
`turn
`We next
`contention that the dumping margin was understated
`because Commerce undervalued Trina’s and Yingli’s solar-
`module backsheets.
`Yingli’s backsheets are made primarily of polyethylene
`terephthalate (“PET”). Some of Trina’s backsheets are
`made primarily from PET, and others primarily from
`ethylene-vinyl acetate (“EVA”).
`
`

`

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`SOLARWORLD AMERICAS, INC. v. UNITED STATES
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`To value Yingli’s backsheets and Trina’s PET
`backsheets, Commerce used Thai HTS subheading
`3920.62, which covers PET plates and sheets.3 To value
`Trina’s EVA backsheets, Commerce used Thai HTS
`subheading 3920.10, which covers plates and sheets of
`polymers of ethylene (such as EVA).4 The CIT sustained
`that determination.
`SolarWorld contends that Commerce’s use of these
`HTS numbers undervalued Yingli’s and Trina’s backsheets
`because the numbers fail to take into account the technical
`complexity of the backsheets. As support for this
`contention, SolarWorld relies on evidence that the actual
`market-economy prices paid by Yingli and Trina were
`substantially higher than the average unit values
`calculated from the HTS numbers used by Commerce. To
`SolarWorld, Commerce should instead have used Thai HTS
`subheading 3920.99 (covering plates and sheets of “other”
`plastics, i.e., those not in any other subheading of 3920,
`such as 3920.10, 3920.62) for all of Yingli’s and Trina’s
`backsheets.
`SolarWorld has not met its burden to show error. As
`Commerce found and SolarWorld does not dispute, there is
`no HTS number specific to solar-grade backsheets.
`Commerce explained that it chose HTS subheading
`3920.62
`for Yingli’s backsheets and Trina’s PET
`backsheets because this classification takes into account
`that the backsheets are comprised primarily of PET.
`Commerce similarly explained that
`it chose HTS
`subheading 3920.10 for Trina’s EVA backsheets because
`this classification is specific to ethylene products (such as
`
`
`3 More specifically, Commerce used Thai HTS No.
`3920.62.00090.
`4 More specifically, Commerce used Thai HTS No.
`3920.10.00090.
`
`

`

`Case: 19-1591 Document: 104 Page: 15 Filed: 06/24/2020
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`SOLARWORLD AMERICAS, INC. v. UNITED STATES
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`15
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`EVA). Commerce rejected classification under HTS
`subheading 3920.99 because the subheading is not specific
`to the material. Commerce’s reasonable choice of the more
`specific HTS categories is supported by substantial
`evidence. See Lifestyle Enter., Inc. v. United States, 751
`F.3d 1371, 1379 (Fed. Cir. 2014) (affirming Commerce’s use
`of one of two “imperfect” datasets after it “acknowledged
`and evaluated potential problems in using either” dataset).
`Commerce also did not err in discounting SolarWorld’s
`evidence that the backsheets purchased by Yingli and
`Trina from market economies were higher-priced than the
`average unit values of HTS categories 3920.10 and
`3920.62. We find Commerce reasonably followed its
`practice of finding such information unpersuasive because
`“a respondent’s market economy purchase prices are
`proprietary
`information and are not necessarily
`representative of industry-wide prices available to other
`producers.” J.A. 727–28. We affirm the CIT.
`IV
`We finally turn to SolarWorld’s contention that
`Commerce’s use of Thai GTA data to value Yingli’s
`tempered glass input was appropriate and that the CIT
`erred in holding the data could not be used.
`to
`failed
`The CIT concluded
`that Commerce
`persuasively explain why it used Thai GTA data in light of
`distortions by aberrational imports from Hong Kong. The
`CIT remanded for Commerce to justify its use of the Thai
`data or adopt an alternative surrogate value. On remand,
`Commerce provided additional explanation for its use of
`the Thai data. The CIT found Commerce’s additional
`justification unpersuasive and again remanded. On this
`second remand, Commerce used under protest Bulgarian
`GTA data to value Yingli’s tempered glass input. The
`government does not on appeal argue that the CIT erred in
`remanding to Commerce, but SolarWorld does.
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`Case: 19-1591 Document: 104 Page: 16 Filed: 06/24/2020
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`16
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`SOLARWORLD AMERICAS, INC. v. UNITED STATES
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`We agree with the CIT that Commerce did not
`adequately justify its use of the Thai GTA data. The
`imports from Hong Kong have a unit value 191 times
`higher than the average unit value for imports into
`Thailand from other countries. Thus, even though the
`Hong Kong imports constitute only 1.6% of Thailand’s
`import quantity, their inclusion causes the Thai average
`unit value to be quadrupled. “There is no reason to
`incorporate the distortions in the surrogate market into a
`hypothetical respondent market.” SeAH, 950 F.3d at 845
`(quoting Nation Ford, 166 F.3d at 1378) (alterations
`omitted).
`SolarWorld asserts that Commerce’s original decision
`to use the Thai data is consistent with its earlier decision
`in Wood Flooring. See Issues and Decision Mem. for the
`Final Results of the 2012–2013 Admin. Review of
`Multilayered Wood Flooring from the PRC, No. A-570-970
`(July 8, 2015) (“Wood Flooring”). To SolarWorld, because
`the overall Thai average unit value for tempered glass
`($4.14/kg) is in line with that of other potential surrogate
`countries (Ecuador at $2.75/kg, and Ukraine at $5.89/kg),
`Commerce reasonably concluded that the Thai data was
`not aberrational.
`As the CIT concluded, SolarWorld’s reliance on Wood
`Flooring is misplaced. In Wood Flooring, Commerce
`rejected an argument that imports to Thailand from
`Taiwan and the United States should be excluded from an
`average-unit-value
`calculation because
`they were
`aberrantly low in price. The “imports from Taiwan and the
`United States represent[ed] the vast majority of imports
`into Thailand (77.1%) and, therefore, [were] a true
`representation of market-driven prices.” Wood Flooring, at
`43. Here, by contrast, imports from Hong Kong constitute
`only 1.6% of imports into Thailand, so cannot be said to be
`“a true representation of market-driven prices.” See id.
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`Case: 19-1591 Document: 104 Page: 17 Filed: 06/24/2020
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`SOLARWORLD AMERICAS, INC. v. UNITED STATES
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`17
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`SolarWorld’s contention that the Hong Kong imports
`were not
`in
`fact aberrationally high
`is similarly
`unpersuasive. SolarWorld notes that the average unit
`prices of imports from the United States and the
`Netherlands into Thailand were greater than the average
`unit price of imports from Hong Kong. But imports from
`those countries constitute an
`infinitesimal
`fraction
`(0.0236% and 0.0003%, respectively) of total imports into
`Thailand, and do not indicate that the Hong Kong price
`was representative of the market.
`We affirm the CIT’s remand to Commerce to further
`explain or reconsider its decision to use the Thai GTA data
`to value Yingli’s tempered glass input.
`CONCLUSION
`We vacate the CIT’s judgment sustaining Commerce’s
`decision to use Thai GTA data to value Trina’s nitrogen
`input.
` We affirm the CIT’s
`judgment sustaining
`Commerce’s decision to use zero-quantity data. We affirm
`the CIT’s judgment declining to set aside Commerce’s use
`of Thai HTS subheadings 3920.62 and 3920.10 to value
`Trina’s and Yingli’s backsheets. We affirm the CIT’s
`judgment remanding to Commerce to further justify or
`reconsider its use of Thai GTA data to value Yingli’s
`tempered glass input. We remand the case for further
`proceedings consistent with this opinion.
`AFFIRMED IN PART, VACATED IN PART, AND
`REMANDED
`COSTS
`
`No costs.
`
`