Solarworld Americas, Inc. v. United States

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
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2 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
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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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4 SOLARWORLD AMERICAS, INC. v. UNITED STATES
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 5
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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6 SOLARWORLD AMERICAS, INC. v. UNITED STATES
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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SOLARWORLD AMERICAS, INC. v. UNITED STATES 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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8 SOLARWORLD AMERICAS, INC. v. UNITED STATES
Source Quantity Value AUV % of
(kgs) (USD) (USD/kg) Total
Quantity
Bulgaria 10,657,309 953,544 0.09 86.44%
Romania 1,575,456 199,446 0.13 12.78%
Thailand 47,618 556,305 11.68 0.39%
South 24,043 131,325 5.46 0.20%
Africa
Ecuador 18,462 89,414 4.84 0.15%
Ukraine 6,750 531,537 78.75 0.05%
Total 12,329,638 2,461,571 0.20 100%
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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SOLARWORLD AMERICAS, INC. v. UNITED STATES 9
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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10 SOLARWORLD AMERICAS, INC. v. UNITED STATES
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 11
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
1 Commerce asserts that these zero-quantity
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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12 SOLARWORLD AMERICAS, INC. v. UNITED STATES
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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SOLARWORLD AMERICAS, INC. v. UNITED STATES 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
We next turn to cross-appellant SolarWorld’s
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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14 SOLARWORLD AMERICAS, INC. v. UNITED STATES
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.
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SOLARWORLD AMERICAS, INC. v. UNITED STATES 15
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.
The CIT concluded that Commerce failed to
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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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.Case: 19-1591 Document: 104 Page: 17 Filed: 06/24/2020
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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.