Solarworld Americas, Inc. v. United States, Yingli Green Energy Holding Co. , 910 F.3d 1216 ( 2018 )

United States Court of Appeals
for the Federal Circuit
______________________
SOLARWORLD AMERICAS, INC.,
Plaintiff-Appellant
GOAL ZERO, LLC,
Plaintiff
v.
UNITED STATES, YINGLI GREEN ENERGY
HOLDING COMPANY LIMITED, YINGLI GREEN
ENERGY AMERICAS, INC., YINGLI ENERGY
(CHINA) CO., LTD., BAODING TIANWEI 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.,
BEIJING TIANNENG YINGLI NEW ENERGY
RESOURCES CO., LTD., HAINAN YINGLI NEW
ENERGY RESOURCES CO., LTD.,
Defendants-Appellees
JINKO SOLAR IMPORT & EXPORT CO., LTD.,
JINKOSOLAR INTERNATIONAL LIMITED, JINKO
SOLAR CO., LTD., CHANGZHOU TRINA SOLAR
ENERGY CO., LTD., TRINA SOLAR (CHANGZHOU)
SCIENCE & TECHNOLOGY CO., LTD.,
Defendants
______________________
2018-1373
2 SOLARWORLD AMERICAS, INC. v. UNITED STATES
______________________
Appeal from the United States Court of International
Trade in Nos. 1:15-cv-00196-CRK, 1:15-cv-00231-CRK,
Judge Claire R. Kelly.
______________________
Decided: December 12, 2018
______________________
TIMOTHY C. BRIGHTBILL, Wiley Rein, LLP, Washing-
ton, DC, argued for plaintiff-appellant. Also represented
by STEPHANIE MANAKER BELL, TESSA V. CAPELOTO, LAURA
EL-SABAAWI, CYNTHIA CRISTINA GALVEZ, USHA
NEELAKANTAN, ADAM MILAN TESLIK, MAUREEN E.
THORSON.
TARA K. HOGAN, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for defendant-appellee United States.
Also represented by REGINALD THOMAS BLADES, JR.,
JEANNE DAVIDSON, JOSEPH H. HUNT; MERCEDES MORNO,
United States Department of Commerce, Washington,
DC.
SHAWN MICHAEL HIGGINS, Sidley Austin LLP, Wash-
ington, DC, argued for defendants-appellees Yingli Green
Energy Holding Company Limited, Yingli Green Energy
Americas, Inc., Yingli Energy (China) Co., Ltd., Baoding
Tianwei 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 Photovolta-
ic Technology Co., Ltd., Beijing Tianneng Yingli New
Energy Resources Co., Ltd., Hainan Yingli New Energy
Resources Co., Ltd. Also represented by NEIL R. ELLIS.
______________________
SOLARWORLD AMERICAS, INC. v. UNITED STATES 3
Before NEWMAN, WALLACH, and STOLL, Circuit Judges.
WALLACH, Circuit Judge.
Appellant SolarWorld Americas, Inc. (“SolarWorld”)
sued Appellee United States (“the Government”) in the
U.S. Court of International Trade (“CIT”), challenging the
U.S. Department of Commerce’s (“Commerce”) final
results of an administrative review of the antidumping
duty order covering crystalline silicon photovoltaic cells,
whether or not assembled into modules (“subject mer-
chandise”) from the People’s Republic of China (“China”).
See Crystalline Silicon Photovoltaic Cells, Whether or Not
Assembled into Modules, from the People’s Republic of
China, 80 Fed. Reg. 40,998, 40,998 (July 14, 2015) (final
admin. review) (“Final Results”). After largely sustaining
the Final Results but remanding for Commerce to recon-
sider an issue not implicated in this appeal, see Solar-
World Ams., Inc. v. United States (SolarWorld I), 234 F.
Supp. 3d 1286, 1292 (Ct. Int’l Trade 2017), the CIT ulti-
mately sustained Commerce’s final results of remand
redetermination, see SolarWorld Ams., Inc. v. United
States (SolarWorld II), 273 F. Supp. 3d 1314, 1315 (Ct.
Int’l Trade 2017); see also Final Results of Remand Rede-
termination, SolarWorld Ams., Inc. v. United States, No.
1:15-cv-00231-CRK (Ct. Int’l Trade Sept. 11, 2017), ECF
No. 144-1; J.A. 56–57 (Judgment).
SolarWorld, a domestic producer of subject merchan-
dise, appeals and argues Commerce erred in its calcula-
tion of antidumping duty margins. We have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(5) (2012). We affirm.
BACKGROUND
I. Legal Framework
By statute, antidumping duties may be imposed on
foreign merchandise sold, or likely to be sold, “in the
4 SOLARWORLD AMERICAS, INC. v. UNITED STATES
United States at less than its fair value.” 19 U.S.C.
§ 1673 (2012). 1 At the conclusion of an investigation, if
Commerce and the U.S. International Trade Commission
have made the requisite findings, Commerce “shall pub-
lish an antidumping duty order” directing U.S. Customs
and Border Protection (“Customs”) officers to assess
duties on imports of goods covered by the investigation.
Id. § 1673e(a). Each year after the order is published, if
Commerce receives a request for an administrative review
of the order, it shall conduct such a review. Id.
§ 1675(a)(1).
For every administrative review, Commerce typically
must “determine the individual weighted average dump-
ing margin for each known exporter and producer of the
subject merchandise.” Id. § 1677f-1(c)(1). A dumping
margin reflects the amount by which the “‘normal value’
(the price a producer charges in its home market) exceeds
the ‘export price’ (the price of the product in the United
States) or ‘constructed export price.’” 2 U.S. Steel Corp. v.
1 In June 2015, Congress amended the statutes con-
taining the antidumping provisions. See Trade Prefer-
ences Extension Act of 2015 (“TPEA”), Pub. L. No. 114-27,
§ 502, 129 Stat. 362, 383–84. We review the Final Results
in accordance with the TPEA because they issued after
the TPEA became effective. See Ad Hoc Shrimp Trade
Action Comm. v. United States, 802 F.3d 1339, 1348–52
(Fed. Cir. 2015).
2 “When the foreign producer or exporter sells di-
rectly to an unaffiliated purchaser in the United States,
Commerce uses [export price] as the U.S. price for pur-
poses of the comparison.” Micron Tech., Inc. v. United
States, 243 F.3d 1301, 1303 (Fed. Cir. 2001) (citation
omitted). “However, where a sale is made by a foreign
producer or exporter to an affiliated purchaser in the
United States, the statute provides for use of [constructed
SOLARWORLD AMERICAS, INC. v. UNITED STATES 5
United States, 621 F.3d 1351, 1353 (Fed. Cir. 2010) (foot-
note omitted) (citing 19 U.S.C. § 1677(35)(A)).
The statute explains how “normal value shall be de-
termined” “[i]n order to achieve a fair comparison with the
export price or constructed export price.” 19 U.S.C.
§ 1677b(a). However, if Commerce determines the export-
ing country is a “nonmarket economy country” 3 and “finds
that available information does not permit the normal
value of the subject merchandise to be determined under
[§ 1677b(a)],” then Commerce calculates normal value by
valuing the “factors of production” used in producing the
merchandise in comparable “market economy country or
countries.” Id. § 1677b(c)(1). Specifically, Commerce
must value the factors of production “to the extent possi-
ble . . . in one or more market economy countries that
are—(A) at a level of economic development comparable to
that of the nonmarket economy country, and (B) signifi-
export price] as the [U.S.] price for purposes of the com-
parison.” Id. (citation omitted). The calculation of con-
structed export price, as compared to export price, is
subject to certain “[a]dditional adjustments.” 19 U.S.C.
§ 1677a(d).
3 A “nonmarket economy country” is “any foreign
country that [Commerce] determines does not operate on
market principles of cost or pricing structures, so that
sales of merchandise in such country do not reflect the
fair value of the merchandise.” 19 U.S.C. § 1677(18)(A).
“Because it deems China to be a nonmarket economy
country, Commerce generally considers information on
sales in China and financial information obtained from
Chinese producers to be unreliable for determining,
under . . . § 1677b(a), the normal value of the subject
merchandise.” Downhole Pipe & Equip., L.P. v. United
States, 776 F.3d 1369, 1375 n.1 (Fed. Cir. 2015) (internal
quotation marks and citation omitted).
6 SOLARWORLD AMERICAS, INC. v. UNITED STATES
cant producers of comparable merchandise.” Id.§ 1677b(c)(4). Accordingly, in selecting these so-called
surrogate values to represent the factors of production,
Commerce “attempts to construct a hypothetical market
value of that product in the nonmarket economy.” Down-
hole Pipe, 776 F.3d at 1375 (internal quotation marks,
brackets, and citation omitted).
II. Procedural History
The present dispute stems from an antidumping duty
order that Commerce issued after an investigation and
that covers subject merchandise from China. Crystalline
Silicon Photovoltaic Cells, Whether or Not Assembled into
Modules, from the People’s Republic of China, 77 Fed.
Reg. 73,018, 73,018 (Dec. 7, 2012) (antidumping duty
order). In February 2014, following a timely request,
Commerce initiated the administrative review at issue,
covering a period of review of May 25, 2012, to November
30, 2013. Initiation of Antidumping and Countervailing
Duty Administrative Reviews and Request for Revocation
in Part, 79 Fed. Reg. 6147, 6147, 6150 (Feb. 3, 2014).
Commerce limited its review to the two largest Chinese
exporters of the subject merchandise by volume, Wuxi
Suntech Power Co., Ltd. and Yingli Energy (China) Co.,
Ltd. (“Yingli”). J.A. 103; see 19 U.S.C. § 1677f-1(c)(2)
(explaining when Commerce may limit its review to a
“reasonable number of exporters or producers”).
In July 2015, Commerce issued the Final Results.
80 Fed. Reg. at 40,998; see J.A. 4462–545 (providing
excerpts from Commerce’s decision memorandum
accompanying the Final Results). Commerce calculated,
inter alia, a weighted-average dumping margin for Yingli
of 0.79%. Final Results, 80 Fed. Reg. at 41,001.
Commerce’s calculated margin is based in part on its
selection of surrogate values for each of Yingli’s factors of
production, including aluminum frames, J.A. 4537–45,
and semi-finished polysilicon ingots and blocks,
SOLARWORLD AMERICAS, INC. v. UNITED STATES 7
J.A. 4536–37. For aluminum frames, Commerce selected
a value derived from import data based on Thai
Harmonized Tariff Schedule (“HTS”) Heading 7604 for
“[a]luminum bars, rods[,] and profiles,” specifically under
Subheading 7604.29, which covers “[a]luminum bars,
rods[,] and profiles” “[o]ther” than those specifically
provided for in the other subheadings at a comparable
level, J.A. 2910; see J.A. 4542, resulting in a surrogate
value of 189.16 Thai Bahts per kilogram, see J.A. 4375
(identifying the surrogate value’s price). For semi-
finished polysilicon ingots and blocks, Commerce selected
the “world market price for polysilicon of $18.19 per
kilogram.” J.A. 4537. 4
SolarWorld sued the Government, arguing, inter alia,
that Commerce should have calculated a higher anti-
dumping duty margin for Yingli because Commerce erred
by undervaluing the surrogate values for each of Yingli’s
inputs. SolarWorld I, 234 F. Supp. 3d at 1292. The CIT
rejected each of SolarWorld’s challenges. Id. at 1303–07.
Although SolarWorld argued Commerce should have
selected an aluminum frames surrogate value derived
from import data for Thai HTS Heading 7616, specifically
under Subheading 7616.99, which covers, inter alia,
“articles of aluminum [not elsewhere specified or includ-
ed],” rather than Thai HTS Heading 7604, which covers
“[a]luminum bars, rods[,] and profiles,” the CIT stated
“Commerce reasonably determined that import data
4 Commerce’s selection of these surrogate values in
the Final Results was unchanged from its preliminary
results of the review. See Crystalline Silicon Photovoltaic
Cells, Whether or Not Assembled into Modules, from the
People’s Republic of China, 80 Fed. Reg. 1021, 1021 (Jan.
8, 2015) (preliminary admin. review); J.A. 4374–75 (list-
ing Yingli’s surrogate values for each factor of production
in a spreadsheet).
8 SOLARWORLD AMERICAS, INC. v. UNITED STATES
under [Thai] HTS [H]eading 7604 is more specific.” Id. at
1303–04 (internal quotation marks and citations omitted).
The CIT also determined that Commerce reasonably
selected a surrogate value for semi-finished polysilicon
ingots and blocks as the best available information on the
record for that factor of production, in part because it was
the only surrogate value of record. Id. at 1306–07.
DISCUSSION
I. Standard of Review and Legal Standard
We apply the same standard of review as the CIT, see
Downhole Pipe, 776 F.3d at 1373, upholding Commerce
determinations that are supported “by substantial evi-
dence on the record” and otherwise “in accordance with
law,” 19 U.S.C. § 1516a(b)(1)(B)(i). “Although we review
the decisions of the CIT de novo, we give great weight to
the informed opinion of the CIT and it is nearly always
the starting point of our analysis.” Nan Ya Plastics Corp.
v. United States, 810 F.3d 1333, 1341 (Fed. Cir. 2016)
(internal quotation marks, brackets, ellipsis, and citation
omitted). “Substantial evidence is defined as more than a
mere scintilla, as well as evidence that a reasonable mind
might accept as adequate to support a conclusion,” and
Commerce’s “finding may still be supported by substantial
evidence even if two inconsistent conclusions can be
drawn from the evidence.” Downhole Pipe, 776 F.3d at
1374 (internal quotation marks and citations omitted).
We look to “the record as a whole, including evidence that
supports as well as evidence that fairly detracts from the
substantiality of the evidence.” Zhejiang DunAn Hetian
Metal Co. v. United States, 652 F.3d 1333, 1340 (Fed. Cir.
2011) (internal quotation marks and citation omitted).
When valuing factors of production in the nonmarket
economy context, the statute directs that Commerce’s
decision “shall be based on the best available information
regarding the values of such factors in a market economy
country or countries.” 19 U.S.C. § 1677b(c)(1) (emphasis
SOLARWORLD AMERICAS, INC. v. UNITED STATES 9
added). Commerce has “broad discretion” to determine
what constitutes the best available information, as this
term “is not defined by statute.” QVD Food Co. v. United
States, 658 F.3d 1318, 1323 (Fed. Cir. 2011). “Commerce
generally selects, to the extent practicable, surrogate
values that are publicly available, are product-specific,
reflect a broad market average, and are contemporaneous
with the period of review.” Qingdao Sea–Line Trading
Co. v. United States, 766 F.3d 1378, 1386 (Fed. Cir. 2014).
II. Commerce’s Selection of Surrogate Values for Both
Aluminum Frames and Semi-Finished Polysilicon Ingots
and Blocks Is Supported by Substantial Evidence and
Otherwise in Accordance with Law
A. Aluminum Frames
Commerce determined import data derived from Thai
HTS Heading 7604 “constitute[s] the best available in-
formation to value Yingli’s aluminum frames.” J.A. 4542.
Commerce found that that heading “pertain[s] to non-
hollow aluminum profiles such as those consumed by
Yingli in this review,” J.A. 4543, and explained that the
other data on the record for Thai HTS Heading 7616
“includes products dissimilar to aluminum frames,”
J.A. 4542. SolarWorld argues Yingli’s aluminum frames
are not described by Thai HTS Heading 7604’s definition
of aluminum profiles because they “are not uniform along
their entire length.” Appellant’s Br. 16 (emphasis omit-
ted). According to SolarWorld, “[b]ecause [Yingli’s] alu-
minum frames have been further processed significantly
beyond a mere extrusion, they have lost their character as
an aluminum extrusion and have instead taken the form
of a fabricated aluminum good,” such that they “no longer
fit within the definition of a ‘profile.’” Id. at 20 (citation
omitted). We disagree with SolarWorld.
Substantial evidence supports Commerce’s finding
that import data under Thai HTS Heading 7604 consti-
tutes the best available information from which to value
10 SOLARWORLD AMERICAS, INC. v. UNITED STATES
Yingli’s aluminum frames. Thai HTS Heading 7604
covers, inter alia, “[a]luminum bars, rods[,] and profiles,”
with the relevant subheading selected by Commerce
including non-hollow profiles. J.A. 2910 (emphases
added) (listing hollow profiles in one subheading and, in
Thai HTS Subheading 7604.29, which is the relevant
subheading, identifying “[o]ther” types of aluminum
profiles); see J.A. 4542. Heading 7604’s explanatory
notes 5 describe aluminum profiles as “[r]olled, extruded,
drawn, forged[,] or formed products . . . of a uniform cross-
section along their whole length.” J.A. 1384 (emphasis
added). Yingli’s factor of production for “aluminum frame
for module installation/transportation” fulfills these
criteria, with Yingli’s questionnaire responses identifying
the aluminum frames as “alloyed aluminum profiles that
are not hollow.” J.A. 1430 (emphases added). Regarding
uniform cross-section, Commerce appropriately rejected
5 “The World Customs Organization publishes the
[explanatory notes] as its official interpretation of the
Harmonized Commodity Description and Coding System
[(‘the Harmonized System’)], the global system of trade
nomenclature . . . .” Schlumberger Tech. Corp. v. United
States, 845 F.3d 1158, 1163 n.6 (Fed. Cir. 2017) (internal
quotation marks and citations omitted). “[T]he United
States and its major trading partners . . . developed a
single modern product nomenclature for international use
as a standard system of classifying goods for customs,”
and therefore base their tariff classification schedules on
the Harmonized System. Michael Simon Design, Inc. v.
United States, 637 F. Supp. 2d 1218, 1220 (Ct. Int’l Trade
2009) (internal quotation marks, brackets, and citation
omitted). For instance, in 1988, Congress passed legisla-
tion implementing the Harmonized Tariff Schedule of the
United States (“HTSUS”). Omnibus Trade and Competi-
tiveness Act of 1988, Pub. L. No. 100-418, § 1201, 102
Stat. 1107, 1147.
SOLARWORLD AMERICAS, INC. v. UNITED STATES 11
SolarWorld’s contention that Yingli’s profiles do not have
a uniform cross-section and stated “that[,] while certain
aluminum frames purchased by [Yingli] contain corners
[thereby implying that not all of their cross-sections are
uniform], we do not believe that this would necessarily
change their classification as aluminum profiles.”
J.A. 4544. SolarWorld misapprehends Commerce’s statu-
tory duty when it argues that “the definitions in the HTS
are not mere guidelines or suggestions, but are statutory
definitions with the force of law” that Commerce must
follow. Appellant’s Br. 17. Commerce is “not required to
engage in a classification analysis” but instead is “re-
quired to determine which of the competing subheadings
constituted the best available information.” Downhole
Pipe, 776 F.3d at 1379. Consequently, even if some
aluminum frames do not contain perfectly uniform cross-
sections as discussed in the explanatory note, Thai HTS
Heading 7604 still constitutes the best available infor-
mation under § 1677b(c)(1)(B), given the other similarities
detailed above between Yingli’s inputs and the products
covered by Thai HTS Heading 7604. See Home Meridian
Int’l Inc. v. United States, 772 F.3d 1289, 1296 (Fed. Cir.
2014) (“The data on which Commerce relies to value
inputs must be the ‘best available information,’ but there
is no requirement that the data be perfect.”).
The plain text of Thai HTS Heading 7604 does not
specify whether its reach is limited to unprocessed goods.
See J.A. 2910. Heading 7604’s explanatory notes, howev-
er, state that the heading specifically includes aluminum
profiles that are “worked after production.” J.A. 1384; see
J.A. 1384 (explaining that Heading 7604 “covers cast or
sintered products . . . , which have been subsequently
worked after production . . . provided that they have not
thereby assumed the character of articles or products of
other headings” (emphasis added)). As a result, that
Yingli’s frames undergo some processing, such as corner
cutting and cleaning, does not automatically remove them
12 SOLARWORLD AMERICAS, INC. v. UNITED STATES
from the ambit of Thai HTS Heading 7604. See, e.g.,
J.A. 2664 (providing a flowchart of the processing steps).
The other surrogate value source on the record is Thai
HTS Heading 7616, which, in relevant part, covers prod-
ucts, such as “[n]ails, tacks, staples . . . , screws, bolts,
nuts, screw hooks, rivets, cotters, cotter-pins, [and] wash-
ers,” as well as “[c]loth, grill, netting[,] and fencing, of
aluminum wire.” J.A. 1403. Thai HTS Heading 7604’s
inclusion of aluminum profiles that are “worked after
production,” J.A. 1384, cuts against selection of Thai HTS
Heading 7616, which by its own terms, covers “[o]ther
articles of aluminum,” i.e., those that are not elsewhere
specified or included, J.A. 1403 (emphasis added). Com-
merce appropriately relied on Thai HTS Heading 7604
and supported its selection, recognizing that Thai HTS
Heading 7616 “does not include anything similar to
aluminum profiles that were further processed into
frames” and Thai HTS Heading 7604 is “far more specific”
to Yingli’s inputs. J.A. 4545; see Downhole Pipe, 776 F.3d
at 1379 (affirming Commerce’s selection of a surrogate
value based on Indian HTS import data where Commerce
provided a “well-reasoned explanation of its selection
process”). Therefore, substantial evidence supports
Commerce’s decision to value Yingli’s aluminum frames
based on Thai HTS Heading 7604.
SolarWorld’s counterarguments are unavailing. Spe-
cifically, SolarWorld asserts Commerce erred by not
following Customs’ classification rulings that (1) classified
similar aluminum frames under HTSUS Heading 7616
and another HTSUS heading, not at issue here, see Appel-
lant’s Br. 21; and (2) classified certain “unfinished alumi-
num articles under HTS[US H]eading 7604,” id. at 23.
According to SolarWorld, these Customs rulings are
“uniquely instructive.” Reply Br. 10. To the extent So-
larWorld argues as a legal matter that Customs’ rulings
must be afforded more weight than other evidence on the
record, we disagree. Whereas Customs is tasked with
SOLARWORLD AMERICAS, INC. v. UNITED STATES 13
“fix[ing] the final classification” of imported merchandise
under the HTSUS, 19 U.S.C. § 1500; see United States v.
Mead Corp., 533 U.S. 218, 221–24 (2001) (outlining Cus-
toms’ role in classification), Commerce is authorized to
conduct administrative reviews of an antidumping duty
order to “determine . . . the amount of any antidumping
duty” necessary to remedy the effect of foreign merchan-
dise being sold in the United States at less than its fair
value, 19 U.S.C. § 1675(a)(1)(B); see id. § 1673. In accord-
ance with this authorization, the statute affords Com-
merce “broad discretion” in identifying the best available
information on the record to value factors of production.
QVD Food, 658 F.3d at 1323; see 19 U.S.C.
§ 1677b(c)(1)(B).
Keeping in mind these differing statutory purposes
that dictate Customs’ and Commerce’s respective roles,
we are informed by Judge Pogue’s conclusion in Jiangsu
Jiasheng Photovoltaic Technology Co. v. United States.
See 28 F. Supp. 3d 1317, 1336 (Ct. Int’l Trade 2014).
There, the CIT held that “[t]he fact that Commerce has at
times found support for its surrogate value choices in
Customs classification rulings does not lead to the conclu-
sion that Commerce must follow such rulings in every
case [when valuing factors of production].” Id. Although
“[t]he substantiality of evidence must take into account
whatever in the record fairly detracts from its weight,
including contradictory evidence or evidence from which
conflicting inferences could be drawn,” Huvis Corp. v.
United States, 570 F.3d 1347, 1351 (Fed. Cir. 2009) (in-
ternal quotation marks and citation omitted); see 19
U.S.C. § 1516a(b)(1)(B)(i) (stating that Commerce’s deci-
sion must be supported by “substantial evidence on the
record” (emphasis added)), a Customs ruling is only one
type of evidence for Commerce to consider. As SolarWorld
acknowledges, Commerce is not bound by Customs rul-
ings on imports for purposes of a best available infor-
mation determination. See Appellant’s Br. 22. Here,
14 SOLARWORLD AMERICAS, INC. v. UNITED STATES
Commerce considered the evidence and explained why the
evidence should be afforded less significance. J.A. 4543–
44; see, e.g., J.A. 4544 (stating that one Customs ruling
provided “no explanation . . . as to why the frames should
be classified under [Thai] HTS [Heading 7616]” (emphasis
added)).
Besides its claim of legal error, SolarWorld also in-
vites us to reweigh the evidence already considered by
Commerce. For example, SolarWorld avers Commerce
“failed to give appropriate weight to,” Appellant’s Br. 21
(emphasis added), and “failed to appropriately consider”
the aforementioned Customs rulings, id. at 23 (emphasis
added). However, we may not reweigh the evidence in
this case. See Downhole Pipe, 776 F.3d at 1377 (“While
Appellants invite this court to reweigh this evidence, this
court may not do so.”). Accordingly, Commerce properly
considered the record evidence to select a surrogate value
for Yingli’s aluminum frames.
B. Semi-Finished Polysilicon Ingots and Blocks
Commerce determined the world market price for pol-
ysilicon is the best available information to value Yingli’s
semi-finished polysilicon ingots and blocks, as they “are
comprised primarily of polysilicon.” J.A. 4537. “[B]ecause
Yingli self-produces most of its ingots and blocks, [Com-
merce] . . . accounted for the cost of the additional pro-
cessing required to manufacture most of the ingots and
blocks used in production.” J.A. 4537. Commerce also
noted that “no party submitted a [surrogate value] for
ingots and blocks which were purchased.” J.A. 4537.
SolarWorld contends that Commerce “substantially
undervalue[d]” this surrogate value by “valuing Yingli’s
ingot and block purchases using a value for virgin polysil-
icon.” Appellant’s Br. 28. According to SolarWorld,
“Yingli’s purchased semi-finished ingots and blocks are
manufactured from virgin polysilicon that undergoes
significant processing,” such that Yingli paid a premium
SOLARWORLD AMERICAS, INC. v. UNITED STATES 15
for this input. Id. at 26 (emphasis added). We disagree
with SolarWorld.
Substantial evidence supports Commerce’s selection
of a surrogate value for semi-finished polysilicon ingots
and blocks as the best available information on the rec-
ord. Commerce relied on the world market price for
polysilicon, derived from two data sources, to value Ying-
li’s input. See J.A. 4537; see also J.A. 4359 (laying out
Commerce’s calculation for this surrogate value in a factor
of production valuation memorandum), 4375 (including
the $18.19 per kilogram surrogate value in a spreadsheet
for Yingli). After conducting a verification of Yingli’s
sales and factors of production, Commerce reported that
Yingli’s ingots and blocks are manufactured primarily
from polysilicon, albeit polysilicon that is then further
processed. See J.A. 4321. As the CIT observed, Com-
merce accounted for “processing costs . . . for most mer-
chandise” because Yingli’s “total purchases of ingots and
blocks relative to the volume of ingots and blocks con-
sumed during the period of review . . . was not signifi-
cant.” SolarWorld I, 234 F. Supp. 3d at 1306 (footnote
omitted); see id. (citing, inter alia, J.A. 1619–25). In
addition, SolarWorld admits that, during the administra-
tive proceedings, “it was unable to locate a surrogate
value for polysilicon block and ingots,” meaning the world
market price was the only surrogate value information on
the record. Appellant’s Br. 29 n.4. “[T]he burden of
creating an adequate record lies with interested parties
and not with Commerce,” but SolarWorld failed to meet
that burden because it did not provide Commerce alterna-
tive surrogate value data. QVD Food, 658 F.3d at 1324(internal quotation marks, brackets, and citation omit-
ted). We conclude that substantial evidence supports
Commerce’s finding that the world market price was the
best available information on the record.
SolarWorld’s primary counterargument is that the
record contained sufficient information from which Com-
16 SOLARWORLD AMERICAS, INC. v. UNITED STATES
merce could have constructed a surrogate value for Ying-
li’s semi-finished polysilicon ingots and blocks. See Appel-
lant’s Br. 29–30; id. at 29 (describing a process in which
Commerce would begin with the surrogate value for
unprocessed polysilicon “and add[] to that [the costs
associated with] the intermediate items and steps re-
quired to produce one unit of silicon ingot or silicon
block”). Again, Commerce has “broad discretion” in
determining how to value factors of production. QVD
Food, 658 F.3d at 1323 (citation omitted). Commerce
rejected SolarWorld’s proposed construction methodology
in reliance on Commerce’s stated practice, which is to not
“use a respondent’s market economy purchase prices as
benchmarks to determine whether a[ surrogate value] is
appropriate because a respondent’s market economy
purchase prices are proprietary information [i.e., not
publicly available] and are not necessarily representative
of industry-wide prices available to other producers.”
J.A. 4537 (footnotes omitted); see Qingdao, 766 F.3d
at 1386 (acknowledging that Commerce typically prefers
prices that are, inter alia, “publicly available” and “reflect
a broad market average”).
Simply because an agency may deviate from its prac-
tice by “explain[ing] the reason for its departure,” Alle-
gheny Ludlum Corp. v. United States, 346 F.3d 1368, 1373
(Fed. Cir. 2003); see Appellant’s Br. 30 (recognizing this
principle), we see no reason why Commerce must deviate
from its practice where substantial evidence supports its
selected surrogate value. SolarWorld does not argue that
Commerce’s stated practice is contrary to any statute or
regulation. See generally Appellant’s Br. Under such
circumstances, “[t]he decision to select a particular meth-
odology rests solely within Commerce’s sound discretion.”
Micron Tech., Inc. v. United States, 117 F.3d 1386, 1396
(Fed. Cir. 1997) (internal quotation marks and citation
omitted). Here, as discussed above, Commerce properly
SOLARWORLD AMERICAS, INC. v. UNITED STATES 17
selected a surrogate value for semi-finished polysilicon
ingots and blocks.
CONCLUSION
We have considered SolarWorld’s remaining argu-
ments and find them unpersuasive. Accordingly, the
Judgment of the U.S. Court of International Trade is
AFFIRMED