OPINION AND ORDER
This action is before the court on US-CIT Rule 56.2 motions for judgment on the agency record challenging the U.S. Department of Commerce’s (“Department” or “Commerce”) determination in the first administrative review of the antidumping duty (“ADD”) order covering crystalline silicon photovoltaic cells, whether or not assembled into modules, from the People’s Republic of China (“China” or “the PRC”). See SolarWorld’s Mot. J. Agency R., Apr. 15, 2016, ECF No. 62; Consolidated PL Goal Zero LLC’s Rule 56.2 Mot. J. Agency R., Apr. 15, 2016, ECF No. 60-1; Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the [PRC], 80 Fed. Reg. 40,998 (Dep’t Commerce July 14, 2015) (final results of ADD administrative review and final determination of no shipments; 2012-2013) (“Final Results”) and accompanying Decision Memorandum for the Final Results of the 2012-2013 [ADD] Administrative Review of Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled into Modules, From the [PRC], Sept. 16, 2015, ECF No. 20-5 (“Final Decision Memo”).
Plaintiff, SolarWorld Americas, Inc. (“SolarWorld”), commenced this action pursuant to section 516A of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2012).
Goal Zero challenges on several grounds Commerce’s application of the China-wide rate of 249.96 percent to ERA Solar Co., Ltd. (“ERA Solar”), the exporter of subject merchandise imported by Goal Zero. See Consolidated PI. Goal Zero LLC’s Br. Supp. Rule 56.2 Mot. J. Agency R. Final Confidential Version, Apr. 15, 2016, ECF No. 59 (“Goal Zero Br.”). First, Goal Zero argues that Commerce’s presumption that Chinese companies are subject to government control is contrary to law. See id. at 10-19. Second, Goal Zero challenges the assignment of an ADD rate based on adverse facts available (“AFA”)
SolarWorld challenges four aspects of Commerce’s final determination. See So-larWorld Americas Inc.’s Mem. Supp. Rule 56.2 Mot. J. Agency R. Revised Confidential Version, Apr. 15, 2016, ECF No. 61 (“SolarWorld Br.”). First, SolarWorld challenges Commerce’s selection of surrogate value .import data for two inputs (steel frames and semi-finished polysilicon ingots and blocks) .used in the production of subject merchandise. See id. at 14-24. Second, SolarWorld questions Commerce’s decision to include a line item identified as “other income” in its surrogate financial ratio calculation. See id. at 42-44. Third,' Solar-World’challenges Commerce’s inclusion of sales made by mandatory respondent Wuxi Suntech Power Co., Ltd. (“Suntech”) to an affiliated company in the United States as constructed : export price (“CEP”) sales when calculating Suntech’s dumping margin. See id. at 29-33. In relation to this challenge, SolarWorld also claims that Commerce should have determined the date of sale for Suntech’s reported sales to its affiliate based on the date the contract whs initially executed. See id. at 33-39. Fourth, SolarWorld contests Commerce’s use of factors of production (“FOP”) usage data from Suntech and certain tollers. See id. at 39-42.
For the reasons that follow, the court sustains Commerce’s application- of the China-wide AFA rate of 249.96 percent to ERA Solar as supported by substantial evidence and in accordance with law, Commerce’s surrogate value data selections to value solar frames and semi-finished silicon ingots and blocks, Commerce’s inclusion of the “other income” line item in its surrogate financial profit calculation, the inclusion of sales to Suntech as CEP sales, and Commerce’s acceptance of FOP usage data from Suntech and certain tollers as facts available. However, the court remands for further explanation or reconsideration consistent with this opinion Commerce’s determination to use the date of shipment rather than the date of contract for Suntech’s sales to its affiliate.
BACKGROUND
On February 3, 2014, Commerce initiated the first administrative review of the ADD order on crystalline silicon photovoltaic cells, whether or not assembled into modules, from China. See Crystalline Silicon Photovoltáic Cells, Whether or Not Assembled Into Modules, From the [PRC], 79 Fed. Reg. 6,147 (Dep’t Commerce Feb. 3, 2014) (initiation of antidumping and countervailing duty administrative reviews and request for revocation in part). Commerce- selected Yingli Energy (China) Company Limited (“Yingli”) and Suntech as mandatory respondents in this review. See Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the [PRC], 80 Fed. Reg. 1,021 (Dep’t Commerce Jan. 8, 2015) (preliminary results of ADD administrative review and preliminary determination of no shipments; 2012-2013) (“Prelim. Results”). To calculate a surrogate value (“SV”) for Yingli’s aluminum frames, Commerce preliminarily used import data corresponding to Thai Harmonized Tariff System (“HTS”) heading 7604. Decision Memorandum for the Preliminary Results of the 2012-2013 [ADD] Administrative Review
Commerce preliminarily determined that ERA Solar did not establish eligibility for a separate rate because ERA Solar did not submit a separate rate application. See Prelim. Decision Memo at 15. Further, because certain entities did not respond to Commerce’s request for quantity and value (“Q & V”) information, Commerce determined that the China-wide entity failed to cooperate to the best of its ability. Prelim. Results,
In its final results, Commerce continued to use import data under Thai HTS heading 7604 to value Yingli’s aluminum frames inputs. Final Decision Memo at 76, 81-84. Commerce also continued to use the world price for polysilicon to obtain a SV for semi-finished ingots and blocks. See id. at 76. Commerce determined that the “other income” line item that had been preliminarily excluded from its surrogate financial profit ratio calculation should be included in surrogate financial profit for the final results. See id. at 60. To calculate the amount of certain FOPs consumed in the production of subject merchandise, Commerce used FOP data on the record from Suntech and from certain unaffiliated tol-lers that supplied FOP usage data as a substitute for missing FOP usage data of other unaffiliated tollers who had not provided usage information. See id. at 40-41. Commerce included sales reported by Sun-tech to its affiliate as CEP sales, because Commerce found that the reported sales price from Suntech to its affiliate was the same price as the price the affiliate sold the merchandise to the first unaffiliated party. See id. at 91-94. To determine the date of sale of Suntech’s U.S. sales in order to ensure a temporal nexus between home market sales and U.S. sales for Commerce’s margin calculation, Commerce used the date of shipment because Commerce determined that the prices in Suntech’s contracts for sale of subject merchandise can change after the original contract is executed. Id. at 93. These changes resulted in Commerce assigning a 33.08 percent margin to mandatory re
JURISDICTION AND STANDARD OF REVIEW
The court has jurisdiction pursuant to 19 U.S.C. § 1516a(a)(2)(B)(iii) and 28 U.S.C. § 1581(c) (2012), which grant the court authority to review actions contesting the final determination in an administrative review of an antidumping duty order. “The court shall hold unlawful any determination, finding, or conclusion found ... to be unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(l)(B)(i).
DISCUSSION
I. Commerce’s Application of AFA to Goal Zero
Goal Zero challenges Commerce’s application of the non-market economy (“NME”) presumption to ERA Solar, Goal Zero’s exporter, as unsupported by substantial evidence. See Goal Zero Br. 10-19. Further, Goal Zero argues that the application of a China-wide rate based on AFA is contrary to law and unsupported by substantial evidence. See id. at 19-25. Lastly, Goal Zero challenges the AFA rate assigned to the China-wide entity as contrary to law and unsupported by substantial evidence because it is uncorroborated. See id. at 26-38. The court addresses each challenge in turn.
A. Application of the NME Presumption
Goal Zero argues that Commerce’s application of a rebuttable presumption that all respondents are government controlled is contrary to law because it is inconsistent with Commerce’s findings in countervailing duty (“CVD”) proceedings that market-oriented reforms render many companies’ export activities independent of the Chinese government. See Goal Zero Br. 10-15. Defendant responds that the court should decline to decide this issue because Goal Zero failed to exhaust this issue at the administrative level. Def.’s Mem. Opp’n Pis.’ Rule 56.2 Mots. J. Upon Agency R. Confidential Version 9-10, Dec. 14, 2016, ECF No. 80 (“Def.’s Resp. Br.”). Defendant argues that, even if Goal Zero exhausted its administrative remedies, Commerce’s application is consistent with its longstanding practice and supported by substantial evidence. Id. at 10-17. The court first addresses Defendant’s exhaustion argument. Thereafter, the court proceeds to address the legal bases for Commerce’s application of the NME presumption to ERA Solar.
1. Exhaustion of Administrative Remedies
Defendant argues that Goal Zero failed to exhaust its administrative remedies. Def.’s Resp. Br. 9-10. Goal Zero responds that its challenge should be reviewed by the court because other parties raised and extensively briefed the challenge to Commerce’s NME presumption at the administrative level. Reply Br. Consolidated PI. Goal Zero, LLC Confidential Version 2-7, Feb. 16, 2017, ECF No. 100 (“Goal Zero Reply Br.”). The court reaches Goal Zero’s challenge to the NME presumption because Commerce had ample opportunity to address the arguments supporting this challenge.
Congress has directed that the Court “shall, where appropriate, require the exhaustion of administrative remedies.” 28 U.S.C. § 2637(d). Although the
Here, Commerce had sufficient opportunity to address the legal viability of the NME presumption and its applicability in this proceeding in its final determination because Suntech’s brief before the agency raised the same issues.
2. Commerce’s Application of the NME Presumption to ERA Solar
Goal Zero contends that Commerce’s application of the NME presumption is unsupported by substantial evidence because the presumption is outdated and inconsistent with Commerce’s recent findings that the Chinese economy is not composed of a single economic entity.
A NME country is defined in the statute as “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). The statute provides a non-exhaustive list of factors for Commerce to take into account in determining whether a country is a NME country. See 19 U.S.C. § 1677(18)(B)(i)-(vi). Once Commerce determines that a country is a nonmarket economy, that determination shall remain in effect until revoked.
Here, Commerce justified the continued viability of the NME presumption on the grounds that it reasonably determines that governments may “use a variety of legal and administrative levers to exert influence and control (both direct and indirect) over the assembly of economic actors across the economy” even where the economy is not comprised entirely of the government. See Final Decision Memo at 100. Goal Zero points to no reason why it is unreasonable to conclude that an entity could be controlled by the government where the government does not comprise the entire economy. Commerce reasonably explains why its presumption that an exporter in a NME country is benefiting from government control is compatible with its finding that the Chinese economy has undergone reforms to eliminate the government as a single central authority comprising the entire economy.
Goal Zero argues that Commerce’s NME presumption of state control is unreasonable in light of Commerce’s findings that changes in the Chinese economy have
B. Assignment of China-Wide Rate to ERA Solar .
Goal Zero claims that Commerce’s assignment of the China-wide rate to ERA Solar on the basis that it is government-controlled is unsupported by substantial evidence. Goal Zero Br. 16-19. Defendant counters that Commerce’s determination to include ERA Solar ’within the China-wide entity is supported by substantial evidence because ERA Solar failed to put forth any evidence supporting its eligibility for a separate rate. Def.’s Resp. Br. 17-22. The court agrees with Defendant. Com-
As already discussed, Commerce’s regulations permit it to calculate a single dumping margin applicable to all exporters and producers that are not individually examined in cases involving a NME country. See 19 C.F.R. § 351.107(d). Here, Goal Zero does not dispute Commerce’s finding that ERA Solar did not meet its burden to demonstrate independence from state control because it did not submit a separate rate application in this administrative review. See Final Decision Memo at 11; Goal Zero Br. 18. Because ERA Solar failed to submit any separate rate documentation, Commerce determined that ERA Solar did not qualify for a separate rate. Final Decision Memo at 11. Commerce would not excuse ERA Solar’s failure to submit separate rate information because Commerce reasonably determined that ERA Solar had notice that it was subject to the review.
Goal Zero argues that it is unreasonable to presume that ERA Solar is government-controlled for this review where Commerce preliminarily recognized ERA Solar’s entitlement to a separate rate in the second administrative review of this same order and in the companion CVD administrative review. See Goal Zero Br. 18-19. Commerce explained that the agency cannot rely on a party’s separate rate eligibility in one segment of a proceeding as evidence of eligibility in a prior or subsequent segment. Final Decision Memo at 13 (“[A] party’s separate rate status must be established in each segment of the proceeding in which the party is involved because a company’s corporate structure, ownership, or relationship with the government can change from one segment of a proceeding to the next.”). Although Goal Zero claims that no such changes to ERA Solar’s corporate structure actually occurred from the investigation to the second period of review, see Goal Zero Br. 19, it is reasonably discernible that Commerce relies upon the record of each proceeding because it is not burdensome for a company, which is in the best position to produce such information, to provide such information in each segment. See Final Decision Memo at 13. Based upon the record here, Commerce’s determination to deny separate rate status based upon ERA Solar’s failure to submit a separate rate certification is supported by substantial evidence.
Goal Zero argues that, in applying an adverse inference, Commerce unreasonably imputed non-cooperation to all members of the NME entity when most of the respondents fully cooperated. Goal Zero Br. 20-25. Defendant responds that Commerce reasonably applied AFA to determine the China-wide rate because Commerce determined that the China-wide entity failed to cooperate by acting to the best of its ability, because PRC exporters or producers that are part of the China-wide entity failed to respond to quantity and volume (“Q & V”) questionnaires. Def.’s Resp. Br. 24-26. Commerce’s application of an AFA rate to the China-wide entity is in accordance with law and supported by substantial evidence.
Commerce shall use “facts otherwise available in reaching the applicable determination” when a respondent: (1) withholds information that has been requested by Commerce; (2) fails to provide such information by Commerce’s deadlines for submission of the information or in the form and manner requested; (3) significantly impedes an antidumping proceeding; or (4) provides information that cannot be verified. 19 U.S.C. § 1677e(a)(2). Commerce may apply an adverse inference in choosing among facts available if the respondent’s failure to act to the best of its ability to comply with Commerce’s request for information caused the deficiency. 19 U.S.C. § 1677e(b); see also Nippon Steel Corp. v. United States,
Here, Commerce justified its determination to apply AFA to the China-wide entity because Chinese exporters of subject merchandise during the POR that are part of the China-wide entity did not respond to Commerce’s Q & V questionnaires.
Goal Zero further argues that Commerce lacked substantial evidence to determine that the China-wide entity failed to cooperate to the best of its ability because only two companies for which Commerce completed the review did not respond to its Q & V questionnaires. Goal Zero Br. 22-23. However, the statute only requires that Commerce assess the extent of the China-wide entity’s abilities, efforts, and cooperation. See Nippon Steel,
D. Selection and Corroboration of the China-Wide Rate
Goal Zero argues that Commerce’s selection of the 249.96 percent rate as the AFA rate is unsupported by substantial evidence because-it is not sufficiently corroborated, as required by the statute. Goal Zero Br. 26-38. Defendant responds that Commerce selected the highest rate in the history of the proceeding and corroborated its rate by comparing the petition margins to the margins calculated for the individually' examined respondents to determine their probative value.- Def.’s Resp. Br. 29. Commerce’s selection of an AFA rate is in accordance with its practice and it is adequately corroborated. Therefore, Com
Commerce may rely on information from several sources in selecting an AFA rate, including: (1) the petition; (2) the final determination in the investigation; (3) any previous administrative review; or (4) any other information placed on the record. 19 U.S.C. § 1677e(b); see 19 C.F.R. § 351.308(c) (mirroring the statute’s directives regarding the sources Commerce may rely upon when selecting an AFA rate). When Commerce uses secondary information, it must, to the extent practicable, corroborate the rate with independent sources that are reasonably at its disposal. 19 U.S.C. § 1677e(c). Commerce’s regulation refers to “secondary information” as information derived from: (1) the petition; (2) a final determination in a CVD investigation or an ADD investigation; (3) any previous administrative review, new shipper review, expedited antidumping review, section 753 review, or section 762 review, 19 C.F.R. § 351.308(c)(l)(i)~(iii), and defines the corroboration requirement as providing that Commerce “examine whether secondary information to be used has probative value.” 19 C.F.R. § 351.308(d). However, Commerce’s regulation explicitly states that the fact that information may not be practicably corroborated “will not prevent [Commerce] from applying an adverse inference as appropriate and using the secondary information in question.” Id.
Here, Commerce referenced its finding in the investigation that the price and normal value used to derive the highest margin contained in the petition were within the range of the U.S. prices and normal values for the respondents in the investigation.
Goal Zero argues that Commerce lacked substantial evidence to conclude that the 249.96 percent rate in the investigation is corroborated because the AFA rate is disproportionately high relative to the calculated rates for any party whose rates were individually calculated. See Goal Zero Br. 31-32. However, Commerce enjoys broad discretion to develop a methodology for calculating an AFA rate so long as the rate is corroborated. See 19 U.S.C. §§ 1677e(b),(c). Goal Zero points to no information on the record calling into doubt Commerce’s corroboration of the rate as applied to the China-wide entity.
II. Surrogate Value Data
SolarWorld challenges Commerce’s selection of import data under Thai HTS heading 7604 to value Yingli’s aluminum frames inputs, see SolarWorld Br. 14-21, and Commerce’s use of world polysilicon prices to value semi-finished polysilicon ingots and blocks purchased by Yingli, see iff at 21-25, as unsupported by substantial evidence. SolarWorld also challenges Commerce’s determination to offset selling, general, and administrative (“SG & A”) expenses by income labeled in its surrogate profit ratio calculation. See iff at 42-44. The court first reviews Commerce’s selection of SV data for aluminum frames and next reviews Commerce’s selection to value semi-finished polysilicon ingots and blocks. Thereafter, the court turns to Commerce’s adjustments to its surrogate profit ratio calculation.
A. Aluminum Frames
SolarWorld argues that Commerce unreasonably selected import data for Thai HTS subheading 7604.29, which includes “Aluminum bars, rods and profiles: Other” because the import data under this category is not specific to aluminum solar frames. SolarWorld Br. 14-21. Specifically, SolarWorld argues that the aluminum solar frames purchased by Ying-li “have been further manufactured and processed into a good” that can no longer be considered a profile and has assumed the character of a different heading. Iff at 19. Defendant responds that Commerce reasonably concluded that import data under HTS heading is the best available in
In cases involving imports from NME countries, Commerce obtains a normal value by adding the value of the FOPs used to produce the subject merchandise and “an amount for general expenses and profit plus the cost of containers, coverings, and other expenses.” 19 U.S.C. § 1677b(c)(l). Commerce values the FOPs “based on the best available information regarding the values of such factors in a market economy country or countries.” Id. Commerce’s methodology for selecting the best available information evaluates data sources based upon their: (1) specificity to the input; (2) tax and import duty exclusivity; (3) contemporaneity with the period of review; (4) representativeness of a broad market average; and (5) public availability. See Import Admin., U.S. Dep’t Commerce, Non-Market Economy Surrogate Country Selection Process, Policy Bulletin 04.1 (2004), available at http:// enforcement.trade.gov/policy/bull04-l.html (last visited Jun. 23, 2017) (“Policy Bulletin 04.1”); Prelim. Decision Memo at 28.
Here, Commerce concluded that import data under HTS subheading 7604.29, covering “aluminum alloy bars, rods and profiles, other, other than hollow profiles, other” is the best available information to value aluminum frames purchased by Yingli because the data is more specific to Yingli’s solar frames than import data under HTS subheading 7616.99, covering “articles of aluminum nesoi.” Final Decision Memo at 81-82. Commerce concluded that HTS heading 7604 is more specific than HTS subheading 7616.99 because HTS 7616.99 is “an ‘other’ category that includes products dissimilar to aluminum frames,” id. at 81, including “ ‘nails, tacks, staples, screws, bolts, nuts, screw hooks, rivets, cotters, cotter pins, washers, knitting needles, bodkins, crochet hooks, embroidery stilettos, safety pins, other pins and chains, and cloth, grill and netting of aluminum wire.’” Id. at 84. Therefore, Commerce reasonably determined that import data under HTS heading 7604 is more specific because SolarWorld points to no evidence indicating that Yingli’s aluminum frames are more similar to the products in HTS heading 7616 than those in HTS heading 7604.
SolarWorld’s claim that HTS heading 7604 only includes items that are unfinished and Yingli’s frames have become finished products is unavailing. First, the notes to Chapter 76 state that profiles include products that “ ‘have been subsequently worked after production ... provided that they have not thereby assumed the character of articles or products of the other headings.’ ” See Final Decision Memo at 82-83 (emphasis in original, quoting Jiangsu Jiasheng Photovoltaic Technology Co. v. United States, 38 CIT -, -,
SolarWorld also argues that Commerce unreasonably concluded that Yingli’s aluminum frames were “profiles” because profiles must have a uniform cross section. SolarWorld Br. 19-20 (citing the Notes to Chapter 7 of the HTS). SolarWorld suggests that Yingli’s profiles are not uniform along their entire length. W. at 20 (citing Yingli’s Response to the Department’s Fourth Section D Supplemental Questionnaire at Ex. D-30, CD 428-430, bar codes 3232605-01-03 (Oct. 1, 2014) (‘Yingli 4th Suppl. Sec. D. Resp.”)). However, Commerce’s task is not to classify the solar frame inputs used by Yingli for customs purposes, but to- select the best available data to value the FOPs in question. Solar-World offers no evidence that calls into question Commerce’s conclusion that the processing performed by Yingli leaves its solar frames more similar to the unfinished items included in HTS heading 7604 than the dissimilar finished items included in HTS subheading 7616.99. Therefore, Commerce’s determination is supported by substantial evidence.
B. Semi-Finished Ingots and Blocks
SolarWorld challenges Commerce’s' determination to value Yingli’s semi-finished.ingots and blocks input with the world market price for : polysilicon, claiming that price does not ^reflect, the substantial additional processing that po-lysilicon, must undergo tó become an ingot or block. See SolarWorld Br. 23-25. Defendant responds that Commerce’s selection is reasonable because there was no surrogate value data for ingots and blocks, and because additional processing was captured elsewhere in Commerce’s- calculations. See Defi’s Resp. Br. 40-41. .For the reasons that follow, Commerce’s determination is supported by substantial evidence. ”, ■;
As already discussed, Commerce selects the best available information to value FOPs by evaluating data' Sources based upon their: (1) 'specificity-to the input; - (2) tax and import duty exclusivity; (3) contemporaneity with the period of review; (4) representativeness of a broad market average; and (5) public availability. See Policy Bulletin 04.1; Prelim. Decision Memo at 28. Here, Commerce determined that, because no party submitted a SV for ingots and blocks, the world market price was the best information available to value ingots and blocks purchased by Yingli. Final Decision Memo at 76. Commerce noted that the inputs in question are primarily composed of polysilicon. Id Further, be
SolarWorld contends that Commerce’s use of a price for polysilicon fails to capture all the costs associated with the ingots and blocks. No party submitted SV data for ingots and blocks and additional manufacturing is required to transform polysilicon into ingots and blocks. Id. Yet, Commerce concluded that additional manufacturing costs were already accounted for because “Yingli self-produces most of its ingots and blocks.” Id. Commerce found further adjustments unnecessary. Id. However, SolarWorld claims that, because evidence on the record indicated that Yingli purchased a significant portion of the blocks consumed in the production of subject merchandise, Commerce erroneously concluded that the additional processing costs required to manufacture ingots and blocks were accounted for elsewhere in the calculation.
Lastly, SolarWorld argues that Yingli’s market economy purchases demonstrate that the SV chosen by Commerce is aberrational. See SolarWorld Br. 25. Commerce cited its practice, which is not to use a respondent’s market economy purchase prices as benchmarks because those prices are specific to one respondent and not necessarily representative of industry-wide prices available to other producers. Final Decision Memo at 76. It is reasonably discernible from Commerce’s statement that most of the ingots and blocks used by Yingli in production are self-produced that Commerce considered the small scale of Yingli’s market economy purchases to be a weak indicator of industry-wide pricing. See id. SolarWorld points to no evidence that Yingli’s market economy purchases were more representative in this case to justify a deviation from Commerce’s cited practice, which is not to use a respondent’s market economy purchase prices as a benchmark to determine if a surrogate value is aberrational. See id. (citing Issues and Decision Memorandum for the 2003-2004 [ADD] Administrative Review: Certain Cased Pencils from the [PRC], A-570-827, 8 (July 6, 2006), available at http://ia. ita.doc.gov/frn/summary/prc/E6-10568-l. pdf (last visited Jun. 23, 2017) (stating that pricing data can be selectively obtained and does not serve as a basis for evaluating whether other pricing from other data sources is unreliable)).
C. Calculation of Surrogate Financial Profit Ratio to Include “Other Income”
SolarWorld challenges as unsupported by substantial evidence Commerce’s deduction of a line item labeled “Other Income” in the financial statements of PT Len Industri (Persero) (“PT Len”), an Indonesian producer of electrical equipment including solar modules, whose financial statements Commerce selected to calculate respondents’ surrogate financial profit ratio. See SolarWorld Br. 43-44; see also Prelim. Decision Memo at 33.
As already discussed, Commerce obtains a normal value in NME cases by adding
III. Suntech’s CEP Sales
The court first addresses SolarWorld’s challenge to Commerce’s inclusion of Sun-tech’s U.S. sales to an affiliated party as CEP sales in its calculation of Suntech’s dumping margins. See SolarWorld Br. 25-
A. Treatment of Suntech’s Sales to U.S. Affiliate as CEP Sales
SolarWorld argues that Commerce lacked substantial evidence to include sales to an affiliated party in Sun-tech’s margin calculation. SolarWorld Br. 25-33. Defendant responds that Commerce properly calculated CEP based on the price at which subject merchandise was first sold in the United States by Suntech’s affiliated seller to an unaffiliated customer. Def.’s Resp. Br. 42-44. For the reasons that follow, Commerce’s inclusion of Sun-tech’s sales as CEP sales is in accordance with law and supported by substantial evidence.
Commerce determines the dumping margin by calculating the amount by which the normal value exceeds the export price or CEP of the subject merchandise. 19 U.S.C. § 1677(35)(A). CEP is the price, subject to certain adjustments, “at which the subject merchandise is first sold (or agreed to be sold) in the United States before or after the date of importation by or for the account of the producer or exporter of such merchandise or by a seller affiliated with the producer or exporter” to an unaffiliated purchaser. 19 U.S.C. § 1677a(b). Here, Commerce classified sales made by Suntech’s affiliated seller after the date of importation to the first unaffiliated customer as CEP sales. Final Decision Memo at 92-93. Suntech reported the price and quantity of modules sold to an unaffiliated purchaser and Commerce could verify those terms against documentation provided by Suntech.
SolarWorld claims that the unaffiliated party paid the affiliated party for the installation of a completed solar farm (a “turnkey solar project”). SolarWorld Br. 25-30. SolarWorld points to evidence indicating that the terms for this turnkey solar project were fixed terms. Id. at 31. There was no indication that the cost of solar modules was negotiated or priced separately.
B. Determination of Date of Sale for Suntech’s Reported Sales
SolarWorld also challenges as unsupported by substantial evidence Commerce’s use of the date of shipment rather than the date of contract for Suntech’s reported CEP sales of solar modules to its unaffiliated purchaser. See SolarWorld Br. 33-39. Defendant responds that Commerce supported its determination with record evidence showing that the material terms of the contracts were subject to change up to the date of shipment, which was also consistent with usual solar industry contract pricing practices, including those of Suntech. Def.’s Resp. Br. 45-47. The court agrees with SolarWorld that Commerce’s determination is not supported by substantial evidence because the record evidence relied upon by Commerce reflects a transaction for the supply of solar modules, not a contract for the provision of a turnkey solar project. On remand, Commerce must explain what record evidence supports a determination that the key terms of the sales between Suntech’s affiliated seller and the purchaser were subject to change after the contract date or must reconsider its determination.
As already discussed, the statute provides that CEP is the price at which merchandise is “first sold (or agreed to be sold) before or after the date of importation by or for the account of the producer or exporter of such merchandise or by a seller affiliated with the producer or exporter, to a purchaser not affiliated with the producer or exporter.” 19 U.S.C. § 1677a(b). The statute does not define when a product is deemed sold, nor does it define how Commerce determines date of sale for purposes of determining what sales should be included in calculating CEP for the POR. See id. Commerce’s regulations provide that Commerce “normally will use the date of invoice, as recorded in the exporter or producer’s records kept in the ordinary course of business” as the date of sale. 19 C.F.R. § 351.401(i). However, Commerce has discretion to use an alternative date if it determines that “a different date better reflects the date on which the exporter or producer establishes the material terms of sale.” Id.
Here, Commerce determined that a date other than the date of invoice reflects the date that the material terms of sale were established. Final Decision Memo at 93. Commerce justified this determination by
Commerce relies upon language in specific contracts of sale for solar modules in separate transactions, unrelated to the sales it included as CEP sales, to support its finding that Suntech America, Inc.’s contracts with purchasers are generally subject to change after they are executed. However, SolarWorld contends that the specific contracts between Suntech and its unaffiliated purchaser that were included as CEP sales include payment for services other than the sale of solar modules.
IY. Use of FOP Data of Certain Sun-tech Tollers
SolarWorld contends that Commerce’s acceptance of FOP usage data from Suntech and certain tollers in place of missing data from relevant toll processors was not supported by substantial evidence.
Commerce shall determine the normal value of subject merchandise exported from a NME country on the basis of the value of FOPs, to which Commerce shall add an amount for general expenses and
Here, Commerce acknowledged that Suntech was unable to provide the requested FOP consumption data for all of its tollers. Final Decision Memo at 40. Commerce accordingly determined that it was appropriate to apply facts available to calculate Suntech’s FOP usage. See id. at 40-41. Commerce justified its exercise of discretion to decline to apply an adverse inference to Suntech’s FOP consumption by recounting Suntech’s efforts to cooperate and act to the best of its ability to comply with Commerce’s request for such data. See id. at 41.
Moreover, Commerce noted that its practice is to use FOP information from tollers as a substitute for missing FOP data where: (1) a respondent has a number of tollers; (2) a respondent identifies tollers in a timely manner; (3) a respondent documents its unsuccessful efforts to obtain FOPs from its tollers; and (4) non-reporting tollers account for only a small portion of FOPs and there is usable FOP information from other suppliers that could serve as a substitute for the missing FOPs. See Final Decision Memo at 40-41. Commerce found that Suntech had a large number of tollers and that Suntech identified those tollers in a timely manner.
SolarWorld argues that Commerce’s use of Sunteeh’s own FOP data, for modules/laminates, as a substitute for missing unaffiliated tollers’ data is unreasonable because the unaffiliated tollers would likely have higher costs. SolarWorld Br. 40. So-larWorld argues that no record .eyidence indicates that a toll processor would, have similar per-unit costs to that of a large integrated producer like Suntech, Seq id. However, SolarWorld points to no evidence on the record that supports its suggestion that a relatively small producer of modules/laminates would have.higher per-unit costs than a large integrated producer like Suntech. Nor does SolarWorld support its assertion that Commerce’s acceptance of data for modules laminates would, have meaningfully affected Commerce’s margin calculation.
Finally, SolárWorld argues that Commerce’s decision to accept Suntech’s own FOP data for modules/laminates in place of its toll processors presents a significant risk for manipulation. SolárWorld Br. 41. However, Commerce notes that Suntech not only reported its own FOP data, but also reported data from cooperating unaffiliated tollers of modules. Unreported FOP Memo at 3. It is reasonably discernible that Commerce concluded, based on the absence of discrepancies in tolling data between the reporting tollers and the small proportion of module production for which it lacked data, that the data supplied could serve as a substitute for the missing data. Where SolárWorld cannot point to a discrepancy in the data actually produced which would render it unreasonable for Commerce to accept this data, the court cannot say that Commerce’s determination is unreasonable.
CONCLUSION
The court remands Commerce determination to use the date of shipment rather than the date of contract for Suntech’s reported CEP sales of solar modules to its unaffiliated purchaser for further consideration and explanation. The court sustains the Final Results in all other respects. In accordance with the foregoing, it is hereby
ORDERED that Commerce’s Final Results are remanded for further consideration consistent with this opinion; and it is further
ORDERED that Commerce shall file its remand redetermination within 45 days of this date; and it is further
ORDERED that the parties shall have 30 days thereafter to file comments on Commerce’s remand redetermination; and it is further
ORDERED that the parties shall have 15 days thereafter to file replies to comments on the remand redetermination.
. The court initially consolidated this action with an action filed by Yingli Green Energy Holding Co., Ltd., 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., Baoding Jiasheng Photovoltaic Technology Co., Ltd., Beijing Tianneng Yingli New Energy Resources Co., Ltd., Hainan Yingli New Energy Resources Co., Ltd., and Lixian Yingli New Energy Resources Co., Ltd., filed in Yingli Green Energy Holding Co., Ltd. et al. v. United States, Court No. 15-00222. See Order, Nov. 3, 2015, ECF No. 39. However, after a consent motion to sever Yingli Green Energy Holding Co., Ltd. et al. v. United States, Court No. 15-00222, the court severed that case from this consolidated case on April 8, 2016. See Order, Apr. 8, 2016, ECF No. 56.
.Although 19 U.S.C. § 1677e(a)-(b) and 19 C.F.R. § 351.308(a)-(c) (2014) each separately
. As it had done in the preliminary determination, Commerce calculated the final effective China-wide entity rate of 238,56 percent by offsetting the final China-wide ADD rate of 249.96 percent by the amount of export subsidies and estimated domestic subsidy pass-through, as directed by the statute. Final Results,
.Specifically, Suntech argued before Commerce that Commerce’s practice of presuming government control of entities operating in NMEs should be abandoned because the presumption is inconsistent with its determination that subsidies are identifiable and measurable in cases involving China. See Case Brief of Wuxi Suntech Power Co., Ltd. at 6, CD 577, bar code 3275378-01 (May 8, 2015). Suntech also explicitly argued that this aspect of Commerce's separate rate practice was at odds with Commerce’s findings in CVD proceedings regarding economic and legal reforms made in the Chinese economy that made the Chinese economy significantly different than when Commerce first implemented its separate rate practice. See id. at 7-9. Further, Suntech contended before Commerce that the findings on which Commerce relied to support the application of CVD law to NME entities directly contravenes the assumptions about the Chinese economy underlying the NME presumption. See id. at 9-12.
. Commerce cited precedent that it is within Commerce’s authority to employ a presumption for state control in a NME country and to place the burdén on exporters to demonstrate an absence of government control. See Final Decision Memo at 98 (citing Sigma Corp. v. United States,
. By practice, Commerce employs a presumption of government control for NME-based
. Neither the statute nor Commerce’s regulations defines procedures for Commerce to determine whether a country is a NME country.
. Further citations to Title 19 of the Code of Federal Regulations' are to the 2014 edition.
. Goal Zero notes that a recent World Trade Organization ("WTO”) panel decision has found that the NME presumption employed by Commerce is inconsistent with the WTO Antidumping Agreement. Goal Zero Reply Br. 9 (citing Panel Report, United States-Certain Methodologies and Their Application to Anti-Dumping Proceedings Involving China, WTO Doc. WT/DS741/R, ¶ 3.1.d (2016), available at https://www.wto.org/english/tratop_e/dispu_e/ 471r_e.pdf (last visited Jun. 23, 2017) (“US-AD Methodologies (China)”)). However, WTO decisions "are not binding on the United States." Corns Staal BV v. Dep't of Commerce,
. Goal Zero’s separate point that Commerce’s NME presumption in ADD proceedings is arbitrary because it simultaneously treats ERA Solar as government-controlled in the ADD proceeding while treating the company as independent of government control in the CVD proceeding, see Goal Zero" Br. 14-15, stems from the same flawed understanding of the premise for Commerce's decision to apply CVD law to China. Cbmmerce treats ADD and CVD proceedings differently because of the different nature of the inquiry in ADD and CVD proceedings. It is reasonably discernible that Commerce applies the NME presumption in ADD proceedings and evaluates the bestowals of countervailable subsidies precisely because reforms are uneven and some economic actors do not take advantage of the legal and administrative levers the NME-government may use to exert influence and control. See Final Decision Memo at 100, Accordingly, as already discussed,' Goal Zero’s contention that Commerce’s presumption is called into question by its own findings regarding the application- of CVD law in China are misplaced.
. Further, Commerce noted that ERA Solar had participated and received a separate rate in the investigation of this proceeding. See Final Decision Memo at 13.
. Goal Zero claims that case law requires Commerce to look to preceding and future reviews for guidance to determine whether ERA Solar is government-controlled. See Goal Zero Br. 18-19 (citing Calgon Carbon Corp. v. United States, 40 CIT -, -,
Goal Zero also implies that Commerce has a practice of looking to future reviews for guidance in making determinations about an
. Commerce noted that it received Q & V responses from 27 companies. Prelim. Decision Memo at 2. However, Commerce found that ”[o]nly 19 of the 23 companies to which [it] sent a Q & V questionnaire responded to the questionnaire.” Id. at 2 n.3.
. The statute requires Commerce to first "make an objective showing that a reasonable and responsible importer would have known that the requested information was required to be kept and maintained.” Nippon Steel,
.Goal Zero claims that Commerce has a practice of adjusting the China-wide rate to reflect past cooperation by a respondent that has previously been granted a separate rate in ' other segments of the same proceeding. Goal Zero Br, 25 (citing Diamond Sawblades Manufacturers' Coalition v. United States, 39 CIT -,
. Goal Zero argues that it is unreasonable for Commerce to conclude that the NME entity was uncooperative, where there was no evidence or explanation on the record of the impact that the absence of the Q & V responses had on Commerce’s conduct of its administrative review. See Goal Zero Br. 22-24. Goal Zero points out that "[[]],” Id. at 23 (citing Release of Customs and Border, Protection Data, CD 7, bar code 3179850-01 (Feb. 10. 2014)). Therefore, Goal Zero claims that the lack'of a Q & V response did not have the potentiál to distort the pool of respondents or to affect Commerce’s margin calculations. Id at 24. However, Goal Zero points to nothing in the statute requiring Commerce to consider the effect of the missing information or requiring Commerce to explain why information requested is relevant to its determination.
. Commerce gives all respondents an ability to establish independence from government control through its separate rate practice. It is not unreasonable for Commerce to evaluate the conduct' of the China-wide entity as a whole given that these parties failed to preserve their entitlement to individualized inquiry. Goal Zero points to nothing in the statute that requires Commerce to evaluate the conduct of each individual member of the China-wide entity to assess whether the China-wide entity cooperated to the best of its ability.
. Commerce selected the highest calculated rate applied in the history of the proceeding that could be corroborated pursuant to its practice of selecting an AFA rate that is sufficiently adverse to induce respondent compliance and to ensure that a party does not obtain a more favorable result by failing to cooperate than if it had cooperated fully. Final Decision Memo at 15.
. Defendant and Commerce asserted that, having already corroborated the AFA rate in the investigation, the burden for triggering any corroboration requirement was on Goal Zero to call into question the probative value of the rate. Def.’s Resp. Br. 31; Final Decision Memo at 17. Defendant and Commerce further asserted that the corroboration of the rate in the investigation satisfied the corroboration requirement in the absence of data questioning the probative value of the rate from the investigation. See Def.'s Resp. Br. 31; Final Decision Memo at 17. Nonetheless, Commerce corroborated the rate in this review by reference to several margins calculated for Suntech which are significantly above the 249.96 percent and many other margins at a similar level to the margin assigned to the China-wide entity. See Final Decision Memo at 17. As a.result, the court need not,address Defendant’s and Commerce’s assertions concerning whether the rate must be corroborated by considering information specifically concerning this review.
. Goal Zero questions why Commerce relies upon Suntech’s data to the exclusion of data for other individually investigated respondents to corroborate the China-wide rate. See Goal Zero Br. 33. Further, Goal Zero claims that Commerce’s final margin analysis of Suntech reveals that there were only [[ ]] the 249.96 percent petition rate. let (citing Analysis of the Final Results of Administrative Review Margin Calculation for Wuxi Suntech Power Co., Ltd. at Attach. I, CD 606, bar code 3290605-01 (July 13, 2015)). However, Goal Zero points to no authority requiring Commerce to find that all individually examined respondents had margins close to the AFA rate selected where Commerce uses AFA to calculate a rate.
. Goal Zero’s reliance on Gallant Ocean (Thailand) Co., Ltd. v. United States,
Likewise, Goal Zero’s reliance on Papierfabrik August Koehler SE v. United States,
The Court of Appeals for the Federal Circuit held that Commerce properly corroborated its selection of a petition rate where Commerce explains why the petition rate continues to be relevant. Ad Hoc Shrimp Trade Action Comm. v. United States,
. As already discussed, where appropriate, the court shall require the exhaustion of administrative remedies. 19 U.S.C. § 2637(d). The doctrine allows Commerce to “apply its expertise, rectify administrative mistakes, and compile a record adequate for judicial review,” see Carpenter Tech.,
. In its case brief, Goal Zero challenged the AFA rate as uncorroborated on the basis that: (1) it was not representative of the rates of the individually investigated respondents, see Goal Zero Adm. Case Br. at 5; (2) Commerce should have corroborated the AFA rate with transaction-specific margins specific to respondents in this review, including the review-specific margins of Yingli, see iff at 7-8; and (3) the selected rate did not reflect commercial reality because the calculated AFA is many times greater than the rate calculated for the mandatory respondent and separate rate respondents, see id. at 9.
. SolarWorld emphasizes the following processing steps, which it argues are [[ ]] to render Yingli’s solar frames a finished product classifiable in another subheading: [[]]. See SolarWorld Br. 15-16.
, Commerce concluded that the Customs and Border Protection ("CBP”) rulings placed on the record do not support, the notion that aluminum frames that have been subsequently worked after production cannot be included in HTS heading 7604. Solar-World argues that "CBP does not classify finished, 'ready to use’ goods, such as frames for solar panels, in 7604." Reply Br. PI. Solar-World Americas, Inc. Confidential Version 7-8, Feb. 16, 2017, ECF No. 99 (citing Solar-World Submission of Factual Information and Submission of Information to Value [FOPs] at Ex. 3, CD 491-512, bar codes 3241320-01-22 (Nov. 10, 2014) ("SolarWorld SV Comments”)). Although the CBP ruling cited by SolarWorld states that the aluminum frames, which Commerce classified under HTS 7616.99 are not further processed,, nothing in CBP’s determination indicates that it relies upon that fact. See SolarWorld SV Comments at Ex. 3. Moreover, Commerce notes. that another CBP ruling cited by SolarWorld classified aluminum frame sets under HTS category 8541.90. See Final Decision.Memo at 83. It is reasonably discernible that Commerce determined that this conflicting ruling, which Commerce notes SolarWorld has not argued Commerce should follow, detracts from any claim that CBP relied upon the notion that frames were finished to conclude that they were classifiable under HTS subheading 7616.99. See id.
. Commerce declined SolarWorld’s suggestion that it compare Yingli's market economy purchases of ingots and blocks to the SV generated from its SV data selection for valuing ingots and blocks because it concluded that its market economy purchases are not necessarily representative of industry-wide prices available to other producers. Final Decision Memo at 76. SolarWorld points to no evidence to undermine Commerce's conclusion that the market economy purchases of polysilicon ingots and blocks were unrepresentative of industry-wide prices.
. SolarWorld highlights evidence showing the extent of Yingli's market economy purchases relative to its total purchases of blocks. SolarWorld Br. 24. SolarWorld argues that Yingli's responses to Commerce’s Section D Questionnaire demonstrate that its "purchases of [[]].” Id. An examination of the record evidence relied on by SolarWorld reveals that the exhibit contains spreadsheets reflecting only market economy purchases and not total purchases of ingots and blocks by Yingli and related entities. See Yingli’s Response to the Department's Section D Questionnaire, Including Related Appendices at Exh. D-5, CD 173-176, bar codes 3201697-01-04 (May 13, 2014). However, the share of market economy purchases of ingots and blocks says nothing about the fraction of overall purchases of ingots and blocks.
.At oral argument, Yingli highlighted record evidence demonstrating that Yingli purchased just [[]] percent of total polysilicon blocks and [[]] percent of total polysilicon ingots used during the POR, See Oral Arg. 01:21:22-01:24:36, May 5, 2017, ECF No. 129 (citing Yingli 4th Suppl. Sec. D. Resp. at Revised Exh. D-7 (outlining consolidated purchases by Yingli entities of monocrystalline and polysilicon blocks and ingots during the POR); Yingli 4th Suppl. Sec. D. Resp. at Exh. D-20 (outlining total consolidated quantities of ingots and blocks consumed by Yingli entities during the POR)).
. Specifically, SolarWorld claims that “Commerce could have started with its [SV] for polysilicon and [[]]." SolarWorld Br. 23. Yingli points to several issues with Solar-World's suggested approach including: (1) assuming that Yingli self-produced all of the ingots and blocks consumed would overvalue a substantial number of its purchased ingots; and (2) Commerce lacks data for inputs valued on a proper basis to make the suggested adjustment. See Resp. Def.-Intervenors, Yingli Green Energy Holding co., Ltd., et al. Opp'n Pi’s Rule 56.2 Mot. J. Agency R. Confidential Version 13, Jan. 1, 2017, ECF No. 89. Although Commerce does not reference these specific issues, it is reasonably discernible from Commerce’s observation that the SV selected would account for processing costs for most of the ingots and blocks used in production that Commerce favored an approach that would lead to the least distortion. See Final Decision Memo at 76. Commerce's determination is therefore supported by substantial evidence.
. Commerce references record evidence indicating that the "other income” line item was used in- determining profit before income tax, to explain why treating PT Len’s "other , income” line item as overhead expenses was consistent with the agency’s practice of attributing such items to general operations. Final Decision Memo at 60. SolarWorld argues that Commerce provides no cite to the record indicating where it obtained this information. See SolarWorld Br. 44. Defendant clarifies that Commerce is referring to PT Len’s financial statements, which demonstrate that "the amount for ‘other income’ (22,350,878,864) was added to operating profit when calculating profit before income tax.” Def.’s Resp. Br. 51 (citing SolarWorld Factual Info. at Ex. 24 at 489). Although Commerce should have referenced the specific record evidence supporting its determination to allow SolarWorld to verify the accuracy of its finding, it is reasonably discernible from the specificity of Commerce’s reference in its final determination that its determination is based on the record evidence highlighted by Defendant, See Final Decision Memo at 60.
. Commerce recognized that Suntech identified sales during the POR using an [[]], a Suntech affiliate, generated by Suntech America, Inc. on the date it shipped subject merchandise directly to [[ ]], the unaffiliated customer, and not through an invoice issued by Suntech America, Inc. directly to [[]]. Comments in the Issues and Decision Memorandum Containing Business Proprietary Information at 12, CD 583, bar code 3289927-01 (July 7, 2015). However, Commerce considered these transactions to reflect sales to [[]] because the price and quantity reflected in the invoice to the unaffiliated purchaser are identical to the invoice issued by [[]], Suntech’s affiliate, to [[ ]]. See id. Commerce also found that it could verify the price paid in each stage of the transaction against the terms of the contract, the parties to which were Sun-tech America, Inc. and [[ ]], including [[ ]] in the contract. Id.
. SolarWorld focuses on record evidence demonstrating that the terms of the transaction between [[ ]] and [[ ]] provided for payment of [[ ]] for construction of the completed solar project. SolarWorld Br. 31 (citing Supplemental Section C Questionnaire Response—Wuxi Suntech Power Co., Ltd. at Ex. 3, CD 518-523, bar codes 3245430-01-05 (Dec. 4, 2014)). Therefore, SolarWorld contends that the payments made under the contract reflect a [[ ]] agreed to pay for the solar project, which included billings for ancillary services such as installations, and not a specific negotiated price for solar modules. Id.
. Commerce found the gross unit price for the modules is [[ ]] between [[ ]] and the unaffiliated purchaser [[ ]]. See Comments in the Issues and Decision Memorandum Containing Business Proprietary Information at 12, CD 583, bar code 3289927-01 (July 7, 2015). Moreover, Commerce noted that the gross unit module price is linked to [[]], which is part of the contract. Id.
. SolarWorld's speculation that the module prices contained in the contract and invoices provided to verify those prices are the result of [[]] contract price for the solar farm is unsupported by record evidence. See Solar-World Br. 32.
. Specifically, Commerce found that the contract reflects that [[ ]]. See SolarWorld Br. 36 (citing Supplemental Section C Questionnaire Response—Wuxi Suntech Power Co., Ltd. at Ex. 3, CD 214-218, bar codes 3209510-01—02, 3209387-01-03 (Jun. 16, 2014)).
. SolarWorld points out that there is specific language in the contract affirmatively indicating [[]], see SolarWorld Br. 37 (citing Sun-tech Suppl. Sec. C, Questionnaire Resp. at Ex. 3 at Art. 5.5), and indicating that [[]]. See id. (citing Suntech Suppl. Sec. C. Questionnaire Resp. at Ex. 3 at Art. 5.1).
.Commerce found that Suntech entities obtained certain wafers, coated glass, insulative strips, junction boxes, and modules/laminates from toll processors. See Memorandum re: Unreported Factors of Production at 1, CD 585, bar code 329025-01 (July 7, 2015).
. Specifically, Commerce noted that Sun-tech identified over [[ ]] tollers for the relevant FOPs in a timely manner. Memorandum re: Unreported Factors of Production at 7, CD 585, bar code 329025-01 (July 7, 2015).
For module/laminate toll processors, Commerce noted that Suntech identified its tollers in response to Commerce's initial questionnaire. Id. at 3. Commerce also reviewed that Suntech identified additional module/laminate tollers in response to its supplemental questionnaires. Id.
. Commerce specifically noted that the wafers processed by Suntech’s wafer toll processors accounted for [[ ]] percent of the total quantity of wafers consumed in the production of subject merchandise during the FOR. Unreported FOP Memo at 2. However, Commerce found that Suntech produced subject merchandise from "purchased (he., finished, nontolled”) wafers.” Id. Commerce found
For modules/laminates, Commerce found that the modules/laminates processed by the two tollers that responded to Suntech's FOP usage data requests represent [[ ]] percent of the total quantity of modules/laminates produced during the POR, Id. at 3. Commerce noted that Suntech reported usage data for its own self-production of modules/laminates, which represents [[]] percent of the total quantity of modules/laminates produced during the POR, See id. Therefore, Commerce found that the information submitted- reflected FOP data for [[]] percent of all modules/laminates produced during the POR. Id
. Generally, Commerce did not use Sun-tech’s own FOP data as a substitute for missing FOP data. See Final Decision Memo at 41. However, for modules/laminates, Commerce accepted Suntech’s own FOP data together with that of the reporting tollers as a substitute for the missing FOP data. Id. Although SolarWorld expresses concern, that data from Suntech may differ from the missing toller data, see SolarWorld Br. 40-42, SolarWorld points to no evidence in the record of discrepancies in FOP usage between Suntech’s FOP usage and that of its responding tollers or among the responding tollers to support its concerns. Moreover, Commerce also justified its determination that the missing information did not significantly affect the representativeness of the- data used as facts available because Suntech purchased approximately [[]] percent of the total quantity of wafers consumed and self-produced approximately [[]] percent of the total quantity of modules/laminates produced during the POR. See Unreported FOP Memo at 7. Commerce also notes that the non-reporting tollers individually supplied [[]] percent of wafers consumed and [[ ]] percent of modules/laminates produced during the POR. Id Therefore, Commerce's determination to usé, the FOP data reported by Suntech-as facts available •was supported by substantial evidence.'
. SolarWorld points out that more than [[ ]] percent of modules/laminates consumed by Suntech were produced by unaffiliated toll processors. SolarWorld Br. 40. This fact alone does not undermine Commerce’s conclusion that the missing data would not have materially affected its margin calculation ' given Commerce's explanation that the non-reporting tollers supplied a "limited portion of'the quantity” of these inputs used during the POR. See Unreported FOP Memo at 7, Solar-World points to no data undermining' Commerce's conclusion.
. SolárWorld contends that Commerce’s determination incorrectly relied on Suntech's supply of actual consumption quantities for all raw materials provided to moduleflami-nate toll processors. See SolárWorld Br. 40-41. SolárWorld claims that “some raw material costs for the module/laminate toll processors may not have been reflected at all in the FOPs reported by Suntech” because Sun-tech admitted that unaffiliated tollers may have provided materials other than those supplied by Suntech. M. at 41. SolarWorld’s argument is premised on the notion that Commerce accepted FOP data because Suntech provided consumption quantities for raw materials provided to the toll processors for the [[]] percent of modules/laminates produced by unaffiliated toll processors. See id. (citing Unreported FOP Memo at 3). However, it is reasonably discernible that Commerce accepted the data from Suntech and its unaffiliated module/laminate tollers because Commerce concluded that the data provided by Suntech, which provided FOP data for [[ ]] percent of all module/laminates produced during the POR, was representative of the experience of the non-responding tollers and not because it had complete data for the remaining [[ ]] percent of modules/laminates. See Unreported FOP Memo at 3. Therefore, Commerce did not rely upon Suntech’s supply of actual consumption quantities for all raw materials provided to module/laminate toll processors.