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
United States Court of Appeals for the Federal Circuit
December 12, 2018
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, Washington, 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, Washington, 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, Washington, 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 Photovoltaic Technology Co., Ltd., Beijing Tianneng Yingli New Energy Resources Co., Ltd., Hainan Yingli New Energy Resources Co., Ltd. Also represented by NEIL R. ELLIS.
Before NEWMAN, WALLACH, and STOLL, Circuit Judges.
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 merchandise“) 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 reconsider an issue not implicated in this appeal, see SolarWorld Ams., Inc. v. United States (SolarWorld I), 234 F. Supp. 3d 1286, 1292 (Ct. Int‘l Trade 2017), the CIT ultimately 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 Redetermination, 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 merchandise, appeals and argues
BACKGROUND
I. Legal Framework
By statute, antidumping duties may be imposed on foreign merchandise sold, or likely to be sold, “in the United States at less than its fair value.”
For every administrative review, Commerce typically must “determine the individual weighted average dumping margin for each known exporter and producer of the subject merchandise.”
The statute explains how “normal value shall be determined” “[i]n order to achieve a fair comparison with the export price or constructed export price.”
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
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, 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 antidumping 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
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 evidence on the record” and otherwise “in accordance with law,”
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.”
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 information to value Yingli‘s aluminum frames.” J.A. 4542. Commerce found 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
Substantial evidence supports Commerce‘s finding that import data under Thai HTS Heading 7604 constitutes the best available information from which to value 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 notes5 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 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 statutory 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 “required 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 information under
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, however, 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 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 products, such as “[n]ails, tacks, staples..., screws, bolts, nuts, screw hooks, rivets, cotters, cotter-pins, [and] washers,” 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). Commerce 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. Specifically, 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 Appellant‘s Br. 21; and (2) classified certain ”unfinished aluminum 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 SolarWorld 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 “fix[ing] the final classification” of imported merchandise under the HTSUS,
Keeping in mind these differing statutory purposes that dictate Customs’ and Commerce‘s respective roles, we
Besides its claim of legal error, SolarWorld also invites 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 polysilicon 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, [Commerce]... accounted for the cost of the additional processing 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 polysilicon.” 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 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 record. Commerce relied on the world market price for polysilicon, derived from two data sources, to value Yingli‘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
SolarWorld‘s primary counterargument is that the record contained sufficient information from which Com-merce could have constructed a surrogate value for Yingli‘s semi-finished polysilicon ingots and blocks. See Appellant‘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 required 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 practice by “explain[ing] the reason for its departure,” Allegheny 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 methodology 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 selected a surrogate value for semi-finished polysilicon ingots and blocks.
CONCLUSION
We have considered SolarWorld‘s remaining arguments and find them unpersuasive. Accordingly, the Judgment of the U.S. Court of International Trade is
AFFIRMED