Canadian Solar International Limited et al v. United States

Slip Op. 19-47
UNITED STATES COURT OF INTERNATIONAL TRADE
CANADIAN SOLAR INTERNATIONAL
LIMITED ET AL.,
Plaintiffs and Consolidated Plaintiffs,
and
SHANGHAI BYD CO., LTD. ET AL.,
Plaintiff-Intervenors and
Consolidated Plaintiff-Intervenors,
v.
UNITED STATES,
Defendant,
and
SOLARWORLD AMERICAS, INC. ET AL.,
Defendant-Intervenor and Consolidated
Defendant-Intervenors.
Before: Claire R. Kelly, Judge
Consol. Court No. 17-00173
PUBLIC VERSION
OPINION AND ORDER
[Sustaining 	in 	part 	and 	remanding 	in 	part 	the 	U.S. 	Department 	of 	Commerce’s
determination in the third administrative review of the antidumping duty order covering
crystalline silicon photovoltaic cells, whether or not assembled into modules, from the
People’s Republic of China.]
Dated: April 16, 2019
Craig Anderson Lewis and Jonathan T. Stoel, Hogan Lovells US LLP, of Washington, DC,
for Canadian Solar International Limited; Canadian Solar Manufacturing (Changshu),
Inc.; Canadian Solar Manufacturing (Luoyang), Inc.; CSI Solar Power (China) Inc.; CSI-
GCL Solar Manufacturing (YanCheng) Co., Ltd.; CSI Cells Co., Ltd.; and Canadian Solar
(USA) Inc. With them on the brief was Michael G. Jacobson.
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David John Craven, Sandler, Travis & Rosenberg, PA, of Washington, DC, for Ningbo
Qixin Solar Electrical Appliance Co., Ltd.
Craig Anderson Lewis, Hogan Lovells US LLP, of Washington, DC, for Shanghai BYD
Co., Ltd.
Jonathan M. Freed, Trade Pacific, PLLC, of Washington, DC, argued for 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.;
and Trina Solar (U.S.) Inc. With him on the brief was Robert George Gosselink.
Timothy C. Brightbill, Wiley Rein, LLP, of Washington, DC, for SolarWorld Americas, Inc.
With him on the brief were Laura El-Sabaawi and Usha Neelakantan.
Neil R. Ellis, Sidley Austin, LLP, of Washington, DC, for Yingli Green Energy Holding,
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.; Shenzhen Yingli New Energy Resources Co., Ltd.; Yingli Green
Energy International Trading Co., Ltd.; Yingli Green Energy Americas, Inc.; and Yingli
Energy (China) Co., Ltd. With him on the brief were Richard L.A. Weiner, Rajib Pal, David
P. Lyons, Shawn M. Higgins, and Justin R. Becker.
Tara Kathleen Hogan, Assistant Director, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice, of Washington, DC, argued for defendant. With her on the
brief were Chad A. Readler, Acting Assistant Attorney General, Jeanne E. Davidson,
Director, and Reginald T. Blades, Assistant Director. 	Of Counsel on the brief was
Mercedes C. Morno, Attorney, Office of the Chief Counsel for Trade Enforcement and
Compliance, U.S. Department of Commerce, of Washington, DC.
Kelly, Judge: 	Before the court are several motions for judgment on the agency
record challenging various aspects of the U.S. Department of Commerce’s (“Commerce”
or “the Department”) determination in the third administrative review of the antidumping
duty (“ADD”) order on crystalline silicon photovoltaic products, whether or not assembled
into modules, from the People’s Republic of China (“the PRC”). 	See Crystalline Silicon
Photovoltaic Cells, Whether or Not Assembled Into Modules, From the People’s Republic
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of China, 82 Fed. Reg. 29,033 (Dep’t Commerce June 27, 2017) (final results of [ADD]
administrative review and final determination of no shipments; 2014–2015) (“Final
Results”) and accompanying Issues and Decision Mem. for the Final Results of the 2014–
2015 [ADD] Administrative Review of Crystalline Silicon Photovoltaic Cells, Whether or
Not Assembled into Modules, From [the PRC], A-570-979, (June 20, 2017), ECF No. 44-
5 (“Final Decision Memo”).
For the reasons that follow, the court sustains Commerce’s selection of surrogate
values for aluminum frames, nitrogen, polysilicon ingots and blocks, and financial ratios.
The court also sustains Commerce’s decision to include import data with reported zero
quantities in its calculation of surrogate values and its decision to exclude Trina U.S.’s
debt restructuring income as an offset to its indirect selling expenses. The court remands
Commerce’s selection of surrogate value for module glass, Commerce’s application of an
adverse inference in calculating Canadian Solar’s dumping rate, and Commerce’s
rejection of Ningbo Qixin Solar Electrical Appliance Co., Ltd.’s (“Qixin”) separate rate
application.
BACKGROUND
On February 9, 2016, Commerce initiated the third administrative review of the
ADD order on crystalline silicon photovoltaic cells, whether or not assembled into
modules, from the PRC, for which the period of review would be December 1, 2014
through November 30, 2015. 	See Initiation of Antidumping and Countervailing Duty
Administrative Reviews, 81 Fed. Reg. 6,832, 6,835 (Dep’t Commerce, February 9, 2016).
On March 28, 2016, after determining that it would not be practicable to examine
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individually each company for which a review was initiated, Commerce selected Canadian
Solar International Limited 1 and the collapsed entity of Trina Solar, comprised of
Changzhou Trina Energy Co., Ltd. and Trina Solar (Changzhou) Science and Technology
Co., Ltd. 2 as mandatory respondents. See Respondent Selection Mem. at 6, PD 155, CD
104, bar code 3452853-01 (Mar. 28, 2016). 3
On December 22, 2016, Commerce published the preliminary results of the third
administrative review. 	See Crystalline Silicon Photovoltaic Cells, Whether or Not
Assembled Into Modules, From [the PRC], 81 Fed. Reg. 93,888 (Dep’t Commerce Dec.
22, 	2016) 	(preliminary 	results 	of 	[ADD] 	administrative 	review 	and 	preliminary
1 Commerce initially selected Canadian Solar International Limited, Respondent Selection Mem.
at 5–6, PD 155, CD 104, bar code 3452853-01 (Mar. 28, 2016), but subsequently determined that
the following companies were affiliated and should be treated as a single entity for the purposes
of the administrative review: Canadian Solar International Limited, Canadian Solar Manufacturing
(Changshu), Inc., Canadian Solar Manufacturing (Luoyang), Inc., CSI Cells Co., Ltd., CSI-GCL
Solar Manufacturing (YanCheng) Co., Ltd., and CSI Solar Power (China) Inc. See Decision Mem.
for Preliminary Results of the 2014–2015 [ADD] Administrative Review of Crystalline Silicon
Photovoltaic Cells, Whether or not Assembled into Modules, From [the PRC] at 6, A-570-979, PD
499, bar code 3530538-01 (Dec. 16, 2016) (“Prelim. Decision Memo”); see also Affiliation & Single
Entity Mem. for Canadian Solar International Limited at 8, PD 516, CD 582, bar code 3533001-
01 (Dec. 16, 2016).
2 Commerce initially selected the collapsed entity of Changzhou Trina Solar Energy Co., Ltd. and
Trina Solar (Changzhou) Science and Technology Co., Ltd., but subsequently determined the
following companies were affiliated and treated them as a single entity: Changzhou Trina Solar
Energy Co., Ltd., Trina Solar (Changzhou) Science and 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. Final Decision Memo at 2 n.3;
see also Prelim. Decision Memo at 1.
3 On October 26, 2017, Defendant submitted indices to the public and confidential administrative
records underlying Commerce’s final determination. These indices are located on the docket at
ECF No. 44-2–3. 	Citations to the administrative record documents in this opinion are to the
numbers assigned to the documents by Commerce in these indices. 	References to the public
administrative record are in the form of “PD,” and references to the confidential administrative
record are in the form of “CD.”
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determination of no shipments; 2014–2015) (“Preliminary Results”) and accompanying
Decision Mem. for Prelim. Results of the 2014–2015 [ADD] Administrative Review of
Crystalline Silicon Photovoltaic Cells, Whether or not Assembled into Modules, From [the
PRC], A-570-979, PD 499, bar code 3530538-01 (Dec. 16, 2016) (“Prelim. Decision
Memo”).
On June 27, 2017, Commerce published the final determination. 	See Final
Results, 82 Fed. Reg. at 29,033. Commerce selected Thailand as the primary surrogate
country for valuing the mandatory respondents’ factors of production (“FOP”), see
generally Final Decision Memo, and adopted surrogate values for, inter alia, semi-finished
polysilicon ingots and blocks, aluminum frames, module glass, nitrogen, and overhead
and financial expenses. 	Final Decision Memo at 21–22, 35–38, 45–50, 52–55, 66–71.
Commerce applied partial AFA in calculating Canadian Solar International Limited’s
antidumping margin due to the failure of unaffiliated solar cell and solar module suppliers
to provide FOP information. Final Decision Memo at 15–18. Commerce excluded Trina
U.S.’s debt restructuring income from its calculation of Trina’s U.S. indirect selling
expense ratio. 	Id. at 84–85. 	Commerce included in the average unit surrogate value
calculations import data with reported quantities of zero, finding “no basis to conclude that
the zero quantity import data . . . are errors or that these zero quantity imports result in
unreliable and distortive [surrogate values].” 	Final Decision Memo at 86–87. 	Finally,
Commerce rejected Qixin’s separate rate application and assigned it the China-wide rate.
Final Decision Memo at 90–92.
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On July 7, 2017, Plaintiffs Canadian Solar International Limited; Canadian Solar
(USA), 	Inc.; 	Canadian 	Solar 	Manufacturing 	(Changshu), 	Inc.; 	Canadian 	Solar
Manufacturing (Luoyang), Inc.; CSI Cells Co., Ltd.; CSI-GCL Solar Manufacturing
(YanCheng) Co., Ltd.; and CSI Solar Power (China) Inc. (collectively, “Canadian Solar”)
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). 4 Summons, July 7, 2017, ECF No. 1; Compl., July
7, 2017, ECF No. 8. 	Canadian Solar moves for judgment on the agency record,
challenging three aspects of the Final Results. Specifically, Canadian Solar challenges:
1) Commerce’s application of partial AFA with respect to missing supplier information; 2)
Commerce’s 	use 	of 	import 	data 	under 	Thai 	Harmonized 	Tariff 	Schedule 	(“HTS”)
7007.19.90000 	to 	value 	Canadian 	Solar’s 	module 	glass 	consumption; 	and 	3)
Commerce’s use of import data under Thai HTS 2804.30.00000 to value its nitrogen
consumption. See Mem. Points & Authorities Supp. Mot. J. Agency R. at 10–41, Mar. 7,
2018, ECF No. 54-1 (“Canadian Solar’s Br.”).
This action was consolidated with actions brought by Qixin, Shanghai BYD Co.,
Ltd. (“BYD”), Changzhou Trina Solar Energy Co., Ltd. et al. (“Trina”), 5 SolarWorld
4 Further citations to the Tariff Act of 1930, as amended, are to the relevant provisions of Title 19
of the U.S. Code, 2012 edition.
5 The following parties are plaintiffs in the action Changzhou Trina Solar Energy Co., Ltd. v. United
States, Ct. No. 17-00197, which has been consolidated with the present action: 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.; and Trina Solar (U.S.) Inc.
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Americas, Inc. (“SolarWorld”), 6 and Sunpreme Inc. See Order, Sept. 26, 2017, ECF No.
41. 7 	Consolidated Plaintiffs and Plaintiff-Intervenors filed motions for judgment on the
agency record, Mot. J. Agency R., Mar. 7, 2018, ECF No. 52; Pls.’ R. 56.2 Mot. J. Agency
R., Mar. 7, 2018, ECF No. 55; Mot. J. Agency R., Mar. 7, 2018, ECF No. 56; [SolarWorld’s]
Mot. J. Agency R., Mar. 7, 2018, ECF No. 57; Mot. J. Agency R., Mar. 7, 2018, ECF No.
60, each challenging various aspects of Commerce’s Final Results. 	See Mem. Supp.
Mot. J. Agency R. Submitted by Pl. Pursuant to R. 56.2 R. U.S. Ct. Int’l Trade, Mar. 7,
2018, ECF No. 52-1 (“Qixin’s Br.”); Mem. Supp. Mot. [Trina] J. Agency R., Mar. 7, 2018,
ECF 55-1 (“Trina’s Br.”); [SolarWorld’s] Mem. Supp. R. 56.2 Mot. J. Agency R., Mar. 8,
2018, ECF No. 63 (“SolarWorld’s Br.”). Specifically, Qixin challenges Commerce’s denial
of its separate rate application in the Final Results after omitting any reference to Qixin in
the Preliminary Results. 	Qixin’s Br. at 6–15. 	Trina challenges: 1) Commerce’s use of
Thai import data to value nitrogen; 2) Commerce’s use of Thai import data to value
module glass; 3) Commerce’s decision to include in its calculation of surrogate values
import data with no corresponding quantities; and 4) Commerce’s exclusion of Trina
U.S.’s debt restructuring income in its calculation of Trina’s U.S. indirect selling expense
6 SolarWorld is a Defendant-Intervenor in the present action, as well as each of the consolidated
actions other than SolarWorld Americas, Inc. v. United States (Ct. No. 17-00200), in which it is
the plaintiff.
7 The court’s September 25, 2017 order consolidated the following cases under the present action:
Ningbo Qixin Solar Electrical Appliance Co., Ltd. v. United States, Ct. No. 17-00187; Shanghai
BYD Co., Ltd. v. United States, Ct. No. 17-00193; Changzhou Trina Solar Energy Co., Ltd. et al.
v. United States, Ct. No. 17-00197; SolarWorld Americas, Inc. v. United States, Ct. No. 17-00200;
and Sunpreme Inc. v. United States, Ct. No. 17-00201. 	Order, Sept. 26, 2017, ECF No. 41.
Sunpreme Inc.’s action was severed from the present consolidated case on March 8, 2018. See
Order, Mar. 8, 2018, ECF No. 61 (severing Ct. No. 17-00201 from Consol. Ct. No. 17-00173).
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ratio. Trina’s Br. at 4–19. 8 SolarWorld challenges: 1) Commerce’s selection of Thai HTS
7604.29.90001 	data 	to 	value 	the 	respondents’ 	aluminum 	frames; 	2) 	Commerce’s
surrogate value selection for module glass; 3) Commerce’s selection of Styromatic’s 2015
financial 	statements 	as 	best 	available 	information 	to 	calculate 	the 	respondents’
overheard, selling, general and administrative expenses, and profit; and 4) Commerce’s
surrogate value selection for respondents’ semi-finished polysilicon ingots and blocks.
SolarWorld’s Br. at 10–32.
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 [ADD] 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)(1)(B)(i).
8 As separate rate respondents in the third administrative review, Consolidated Plaintiff-
Intervenors 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.; 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.;
Shenzhen Yingli New Energy Resources Co., Ltd.; and Yingli Green Energy International Trading
Co., Ltd. (collectively “Yingli”) and Plaintiff-Intervenor and Consolidated Plaintiff-Intervenor BYD
support the arguments made by Canadian Solar and Trina. Mot. J. Agency R. at 2, Mar. 7, 2018,
ECF No. 56; Mem. Supp. R. 56.2 Mot. J. Agency R. Pl.-Intervenor & Consol. Pl.-Intervenor [BYD]
at 9–10, Mar. 7, 2018, ECF No. 60-1.
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DISCUSSION
Plaintiffs and Consolidated Plaintiffs challenge a total of five of Commerce’s
surrogate value determinations in the Final Results and raise four additional challenges.
The court first addresses the arguments that Commerce’s surrogate value selections for
module glass, aluminum frames, nitrogen, semi-finished polysilicon ingots and blocks,
and overhead, selling, general and administrative expenses, and profit are contrary to law
and/or unsupported by substantial evidence. 	The court then addresses the arguments
regarding the application of partial AFA, the decision to include import data with reported
zero quantities in the calculation of surrogate values, the exclusion of Trina’s debt
restructuring income in its calculation of Trina’s U.S. indirect selling expense ratio, and
the rejection of Qixin’s separate rate application in the Final Results.
I. 	Surrogate Value Selection
Plaintiff 	and 	Consolidated 	Plaintiffs 	challenge 	Commerce’s 	surrogate 	value
selection for module glass, aluminum frames, nitrogen, semi-finished polysilicon ingots
and blocks, and overhead, selling, general and administrative expenses, and profit as
unsupported by substantial evidence. The court addresses each of these challenges in
turn.
A. Module Glass
Trina argues that Commerce’s selection of tempered glass under Thai HTS
7007.19.90000 over float glass under Thai HTS 7005.29.90001 to value Trina’s module
glass was unsupported by substantial evidence because the float glass classification
specified the thickness of module glass consumed by Trina. See Trina’s Br. at 2, 12–14.
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SolarWorld argues that Commerce’s selection of Thai import data for tempered glass over
laminated glass was unsupported by substantial evidence because tempered glass fails
to account for the additional surface treatments of module glass. See SolarWorld’s Br. at
3, 19–21. 9 	Canadian Solar argues that Commerce’s selection of the Thai data for
tempered glass is unsupported by substantial evidence because the Thai data used by
Commerce was aberrational. 	See Canadian Solar’s Br. at 3, 19–31. 10 	Defendant
responds that Commerce’s decision is reasonable, as the Thai import data for tempered
glass satisfied all of Commerce’s surrogate value criteria and was not aberrational. See
Def.’s Resp. Opp’n Pl.’s Mot. J. Agency R. at 6, 12–21, July 30, 2018, ECF No. 71 (“Def.’s
Br.”). 	For the reasons that follow, Commerce’s selection of tempered glass over float
glass and laminated glass is reasonable. 	Commerce’s decision to use the Thai import
data for tempered glass, however, is unsupported by substantial evidence and is
remanded to Commerce for further consideration.
9 In SolarWorld’s response to the arguments of the plaintiffs and consolidated plaintiffs that
Commerce’s valuation of module glass was unreasonable, SolarWorld states that it “believes
Commerce’s surrogate valuation of module glass should be affirmed.” See Resp. Br. of Def.-Int.
SolarWorld Americas, Inc. at 29, July 31, 2018, ECF No. 73 (“SolarWorld’s Resp.”). SolarWorld
does not clarify whether in making this statement it intended to abandon its claim that the
laminated glass subheading should have been used to value the respondents’ module glass input.
As SolarWorld restates in its reply its argument that Commerce’s selection of tempered glass
subheading to value module glass “substantially undervalued this input,” the court understands
SolarWorld to not have abandoned its challenge to Commerce’s use of the tempered glass
subheading. See Reply Br. of Pl. SolarWorld Americas Inc. at 9–10, Oct. 5, 2018, ECF No. 84.
10 Trina joined and incorporated Canadian Solar’s arguments with respect to the unreliability of
Commerce’s selected surrogate value data. See Trina’s Br. at 14.
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Where the subject merchandise is exported from a nonmarket economy country,
Commerce 	calculates 	normal 	value 	based 	on 	FOPs. 	19 	U.S.C. 	§ 	1677b(c)(1).
Commerce uses “the best available information” to value the FOPs, id., and has discretion
to determine what constitutes the best available information, as this term is not defined
by statute. 	QVD Food Co. v. United States, 658 F.3d 1318, 1323 (Fed. Cir. 2011).
However, Commerce must ground its determination in the objective of the statute: to
calculate accurate dumping margins. See Rhone Poulenc, Inc. v. United States, 899 F.2d
1185, 1191 (Fed. Cir. 1990); see also Parkdale Int’l v. United States, 475 F.3d 1375, 1380
(Fed. Cir. 2007). 	Commerce generally selects surrogate values that are publicly
available, are product specific, reflect a broad market average, and are contemporaneous
with the period of review. 	Qingdao Sea–Line Trading Co. v. United States, 766 F.3d
1378, 1386 (Fed. Cir. 2014); see also 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/bull04-1.html 	(last 	visited Apr. 11, 2019) 	(“Policy
Bulletin 04.1”). 	Commerce’s practice is to avoid using aberrational values as surrogate
values. See generally Antidumping Duties; Countervailing Duties, 62 Fed. Reg. 27,296,
27,366 (Dep't Commerce May 19, 1997).
In this review, Canadian Solar reported using solar module glass, and Trina
reported using coated glass and tempered glass (collectively, “module glass”), as FOPs.
See Final Decision Memo at 45. 	The record contained Thai import data for tempered
glass (HTS 7007.19.90000), float glass (HTS 7005.29.90001), and laminated glass (HTS
7007.29.90). 	Id. 	Here, Commerce reasonably selected tempered glass as the best
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available information to value the respondents’ module glass inputs because record
information and the respondents’ descriptions indicated the module glass consumed by
the respondents was tempered. 	See Final Decision Memo at 45–46. Commerce
reasonably determined the laminated glass subheading was not the best available
information because laminated glass is composed of “multiple layers of glass and plastic”
and there was no evidence that such properties are present in the respondents’ module
glass inputs. See Final Decision Memo at 46–47.
SolarWorld maintains that Commerce’s choice of tempered glass as a surrogate
value substantially undervalued the module glass input because only laminated glass
captures the additional costs associated with the surface treatments used on the
respondents’ 	module 	glass 	to 	increase 	its 	strength, 	safety, 	and 	durability. 	See
SolarWorld’s Br. at 19–21. 	SolarWorld’s argument fails, however, as SolarWorld does
not provide any evidence establishing that this surface treatment is comparable to the
layering of laminated glass. See Final Decision Memo at 47.
Commerce also reasonably selected tempered glass over float glass to value
Trina’s module glass input because, although the float glass subheading more closely
aligned with the thickness of Trina’s input, the tempered glass subheading’s lack of
specification as to thickness indicated that it covered all thicknesses, including that
consumed by Trina. 	Final Decision Memo at 46. 	Trina maintains Commerce failed to
weigh the comparative importance of thickness against other factors in favor of selecting
tempered glass. See Trina’s Br. at 13. However, it is clear from Commerce’s explanation
that Commerce gave significant weight to the description by the parties that their module
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glass was tempered. See Final Decision Memo at 45–46. It is also clear that Commerce
gave weight to the fact that the tempered glass subheading did not exclude the products
with a thickness matching Trina’s input. See Final Decision Memo at 45–46. The court
will not reweigh the evidence, and Trina’s argument thus fails.
However, while Commerce’s choice of the tempered glass subheading to value
Trina’s and Canadian Solar’s module glass is supported by substantial evidence,
Commerce failed to provide a reasonable explanation as to why the Thai import data for
tempered glass was not distorted by a small quantity of unusually costly imports from
Hong Kong. 	Hong Kong imports accounted for only 0.4% of the total volume of Thai
import data but constituted 60.2% of the total value of Thai imports during the period of
review. See Final Decision Memo at 49; see also Thai Tempered Glass [attached as Ex.
FR-1 to Canadian Solar’s Oct. 31, 2016 Submission], PD 463–64, bar code 3518110-01
(Oct. 31, 2016). 	The average unit value (“AUV”) for tempered glass imported into
Thailand was $2.79 with the Hong Kong data, whereas excluding the Hong Kong data
results in an AUV of only $1.11. Id.
The 	court 	addressed 	this 	same 	issue 	in 	SolarWorld 	II 	in 	the 	proceedings
concerning the second administrative review of the ADD order covering crystalline silicon
photovoltaic cells. See Canadian Solar’s Br. at 22–24; see also Canadian Solar’s Reply
Br. at 5; see also SolarWorld Americas, Inc. v. United States, 42 CIT __, 320 F. Supp. 3d
1341 (2018) (“SolarWorld II”). 	In SolarWorld II the Court ordered Commerce to further
explain on remand why Commerce’s selection of Thai import data for tempered glass was
reasonable in light of record evidence that imports from Hong Kong made up only 1.6%
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of the total volume but accounted for 75% of the total value. See SolarWorld II, __ CIT
at __, 320 F. Supp. 3d at 1354–55. The court held that it was not clear that Commerce
had established a consistent practice of only assessing whether a surrogate value was
aberrant in the aggregate, and that regardless, even if it was a consistent practice,
Commerce had failed to explain how that practice was reasonable in light of the concerns
raised by the Hong Kong imports as to the accuracy of the Thai data as a whole. See id.,
320 F. Supp. 3d at 1352–56 (noting Commerce’s reliance on Issues and Decision Mem.
For the Final Results of the 2012–2013 Admin. Review of Multilayered Wood Flooring
from 	[the 	PRC] 	at 	41–43, 	A–570–970 	(July 	8, 	2015), 	available 	at
https://enforcement.trade.gov/frn/summary/prc/2015-17368-1.pdf (last visited Apr. 11,
2019) (“Wood Flooring”)). 	Commerce’s remand redetermination abandoning the use of
the Thai data for tempered glass was later sustained. See SolarWorld Americas, Inc. v.
United States, 42 CIT __, 355 F. Supp. 3d 1306 (2018). The reasoning in SolarWorld II
applies with equal force to the present proceedings. 11
11 SolarWorld argues that SolarWorld II is not relevant because in that case “the court appears to
have been principally concerned with Commerce’s citation of, and reliance on, [Wood Flooring],
which did not appear to support the agency’s characterization of its practice of considering AUV
data in the aggregate.” 	See SolarWorld’s Resp. at 25. 	In the remand results considered in
SolarWorld II, Commerce sought to rely on Wood Flooring as evidence that it was Commerce’s
practice only to consider the aggregate AUV of a data source in assessing whether it is
aberrational. 	See SolarWorld II, 42 CIT at __, 320 F. Supp. 3d at 1353. 	The court observed,
however, that Wood Flooring did not evidence a practice of assessing allegedly aberrational data
only in the aggregate, because in Wood Flooring Commerce explained why the allegedly
aberrational inputs were representative of market prices by assessing the share each input
represented of the aggregate data. See SolarWorld II, 42 CIT at __, 320 F. Supp. 3d at 1353.
(footnote continued)
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Commerce argues that the “relevant test is to determine whether the AUV in
aggregate is aberrational,” 12 as otherwise “parties would advocate the manipulation of
data by removing one or more lines they find objectionable.” Final Decision Memo at 47.
As in SolarWorld II, although this approach may be reasonable in other cases, it is not
reasonable on this record without further explanation. 13 See SolarWorld II, 42 CIT at __,
320 F. Supp. 3d at 1355.
SolarWorld correctly notes that in these proceedings Commerce does not seek to rely on
Wood Flooring as evidence of a practice of only assessing allegedly aberrational data in the
aggregate. 	SolarWorld’s Resp. at 25. 	SolarWorld America’s argument fails, however, as the
court in SolarWorld II was not solely concerned with Commerce’s reliance on Wood Flooring.
Here, as in Wood Flooring, it is not clear what reliance Commerce sought to place on this claimed
practice of exclusively reviewing allegedly aberrational data in the aggregate because in these
proceedings Commerce did, in fact, analyze the component elements of the Thai data to
determine that the Hong Kong imports were not distortive. 	See Final Decision Memo at 49. In
SolarWorld II the court also expressed concern with Commerce’s failure to address the apparent
tension between Commerce’s stated preference to base surrogate values on broad data reflective
of the surrogate country’s market as a whole and the fact “that the Hong Kong data skews the
Thai AUV in a way that renders the Thai AUV unrepresentative of the Thai market.” 	See
SolarWorld II, 42 CIT at __, 320 F. Supp. 3d at 1354.
12 Commerce cites Certain Hot-Rolled Carbon Steel Flat Products from Romania as a case “where
the Department explained that to test the reliability of [surrogate values] alleged to be aberrational,
it is appropriate to compare the selected [surrogate value] to the AUVs calculated for the same
period using data from the other designated surrogate countries.” See Final Decision Memo at 47
(citing Certain Hot-Rolled Carbon Steel Flat Products from Romania: Final Results of [ADD]
Administrative Review, 70 FR 34448 (June 14, 2005) and accompanying Issues and Decision
Mem. 	at 	8–23, 	A-485-806, 	(June 	6, 	2005), 	available 	at
https://enforcement.trade.gov/frn/summary/romania/E5-3067-1.pdf (last visited Apr. 11, 2019
(“Hot-Rolled Carbon”). This determination responded to challenges to data sources used in the
preliminary results to calculate surrogate values for a wide range of FOPs. 	See Hot-Rolled
Carbon at 19–23. 	It did not, however, directly address the question of whether the distortive
impact of component items on the total average cost of a surrogate value can be considered if
that component is alleged to be aberrational. Hot-Rolled Carbon does not, therefore, evidence a
consistent practice of exclusively considering allegedly aberrational data in the aggregate.
13 In this case, imports from Hong Kong account for only 60.2% of the total value of Thai imports
(footnote continued)
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Commerce unreasonably found that the Hong Kong imports were not low in
quantity because Hong Kong ranged fourth in terms of quantity out of 22 countries from
which Thailand imported tempered glass. 	Final Decision Memo at 49. 	Hong Kong
imports account for only 0.4% of the total volume of imports of tempered glass into
Thailand. The mere fact that there are other countries which represent an even smaller
fraction of the imports into Thailand does not impact whether the imports from Hong Kong
are of low volume.
Commerce also unreasonably concluded that the Hong Kong imports were not
aberrational through reliance on benchmarks based on imports of negligible quantity from
Denmark, France, Switzerland, and Mexico. 	Final Decision Memo at 49. 	These four
other countries exported tempered glass to Thailand at prices equivalent to, or greater
than, the Hong Kong imports. Id. The total import quantities from Denmark and France
in the period of review were only 12 kilograms or less, while an import quantity of zero
was recorded for Mexico and Switzerland. Id. These amounts are a negligible component
of the total of approximately 2.26 million kilograms of tempered glass imported into
of tempered glass, as opposed to 75% in SolarWorld II. See SolarWorld II, 42 CIT at __, 320 F.
Supp. 3d at 1354; see also Canadian Solar’s Br. at 24. However, the component of imports from
Hong Kong accounts for only 0.4% of the total quantity of imports of tempered glass into Thailand,
as against 1.6% in SolarWorld II. See SolarWorld II, 42 CIT at __, 320 F. Supp. 3d at 1354; see
also Canadian Solar’s Br. at 24. 	As such, on a per-unit basis the Hong Kong imports in the
present proceeding show a much greater deviation from the AUV than in SolarWorld II. In this
case the Hong Kong imports have an AUV of $413.10 as against a total AUV of $2.79, Canadian
Solar’s Reply at 3, while in SolarWorld II the Hong Kong imports had an AUV of $191.47 as
against a total AUV of $4.14. See SolarWorld II¸ 42 CIT at __, 320 F. Supp. 3d at 1352 n.11; see
also SolarWorld Americas, Inc. v. United States, 273 F.Supp.3d 1254, 1263 (CIT 2017) (stating
the AUV of the component of imports from Hong Kong was $191.47). Accordingly, the distortive
impact of Hong Kong imports is more significant on a per-unit basis in the present proceedings
than in SolarWorld II.
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Thailand in the period of review. 	See Thailand Import Data [attached as Ex. 2 to
SolarWorld’s Initial Surrogate Value Comments] at 2, PD 365–382, CD 424–436, bar
code 3489132-01 (July 19, 2019). Substantial evidence requires Commerce to address
evidence that supports its finding as well as that which “fairly detracts from its weight.”
Universal Camera Corp. v. NLRB, 340 U.S. 474, 477–78 (1951) (quoting Consol. Edison
Co. v. NLRB, 305 U.S. 197, 229 (1938)). 	Commerce notes the negligible volume of
imports from these countries but fails to address the potentially distortive effect of the
benchmarks’ minuscule import quantities. Final Decision Memo at 49. It is unreasonable
to rely on benchmarks that are exclusively based on negligible import quantities without
addressing the impact this negligible volume has on the reliability of the benchmarks. See
Blue Field (Sichuan) Food Industrial Co., Ltd. v. United States, 37 CIT __, __, 949 F.
Supp. 2d 1311, 1327–28 (2013) (holding as unsupported by substantial evidence a
finding by Commerce that a surrogate value was not aberrational because, inter alia, that
finding was made in reliance on benchmarks based on “miniscule import volumes”). 14
14 Commerce used Thai data from the second administrative review as a benchmark against
which to assess the Thai data for tempered glass from the present period of review. 	Final
Decision Memo at 47–8 (citing Decision Mem. for the Final Results of the 2013–2014 [ADD]
Admin. Review of Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled into Modules,
from 	[the 	PRC], 	A-570-979, 	(June 	13, 	2016) 	available 	at
https://enforcement.trade.gov/frn/summary/prc/2016-14532-1.pdf (last visited Apr. 11, 2019)
(“Solar Cells AR2 Memo”)). Canadian Solar argues that it was unreasonable for Commerce to
use Thai data from the prior administrative review as a benchmark because Commerce’s use of
this value was remanded by the Court. See Canadian Solar’s Br. at 26–27; see also SolarWorld
II, 42 CIT at __, 320 F. Supp. 3d at 1354–55. Defendant responds that the Court did not conclude
in SolarWorld II that the relevant Thai import data was aberrational or otherwise unusable for
benchmarking purposes. Def.’s Br. at 20. As discussed above, SolarWorld II ordered Commerce
(footnote continued)
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to provide further explanation as to why its use of Thai import data for tempered glass as a
surrogate value was reasonable in light of record evidence that imports from Hong Kong made
up only 1.6% of the total volume but accounted for 75% of the total value. See SolarWorld II, 42
CIT at __, 320 F. Supp. 3d at 1354–55. In those proceedings the Court did not face the question
of whether it was appropriate to use such data as a benchmark. 	The judgment sustaining
Commerce’s later remand redetermination abandoning the use of the Thai data for tempered
glass is currently under appeal. 	See Appeal No. 2019-1591, Feb. 26, 2019, ECF No. 165
(SolarWorld Americas, Inc. v. United States, Consol. Ct. No. 16-00134); Appeal No. 2019-1593,
Feb. 26, 2019, ECF No. 166 (SolarWorld Americas, Inc. v. United States, Consol. Ct. No. 16-
00134). The court cannot say that it is unreasonable for Commerce to use Thai data from the
prior administrative review as a benchmark in this review.
Nonetheless Canadian Solar also argues it was unreasonable of Commerce to only use
Thai data from the second administrative review ($4.14 per kilogram) as a benchmark without
also considering historical data from the first administrative review ($0.98 per kilogram) and initial
investigation ($0.86 per kilogram). 	See Canadian Solar’s Br. at 26–27 (citing Solar Cells AR2
Memo at 29–31). Defendant responds that Canadian Solar waived this argument because it failed
to raise it at the administrative level. Def.’s Br. at 19. Defendant further argues that a comparison
with the earlier administrative proceedings does not indicate that the Thai data for the present
proceedings is aberrational. Id. When assessing whether surrogate value data is aberrational,
Commerce’s practice is to compare the surrogate value data with record data from other potential
surrogate countries, as well as to examine “data from the same HTS category for the surrogate
country whose data are allegedly aberrational over multiple years to determine if the current data
appear aberrational compared to historical values.” Final Decision Memo at 47. Commerce did
not consider the data available in the Solar Cell AR2 Memo for the first administrative review and
initial investigation. 	See Solar Cells AR2 Memo at 29–30 & n.144-45. 	“The determinative
question [regarding administrative exhaustion] is whether Commerce was put on notice of the
issue.” Trust Chem Co. v. United States, 35 CIT __, __ n.27, 791 F. Supp. 2d 1257, 1268 n.27
(2011). In its case brief Canadian Solar argued that the Thai data is aberrational and stated it is
Commerce’s “normal practice to examine relevant price information on the record, including any
appropriate benchmark data, in order to accurately value the input in question.” 	Case Brief of
[Canadian Solar] at 29, PD 560, CD 594, bar code 3561659-01 (Apr. 10, 2017) (“Canadian Solar’s
Case Br.”). Canadian Solar only sought to compare the Thai data to data from Bulgaria during
the period of review and to Canadian Solar’s market economy purchases of module glass. Id. at
29–32. The issue of a comparison with historical data from Thailand was not waived, however,
because in responding to Canadian Solar’s argument Commerce stated its practice is to examine
data from the surrogate country “over multiple years.” 	Final Decision Memo at 47. 	While
Commerce only referred to price data from the second administrative review, it cited the Solar
Cells AR2 Memo which also contained price data for the first administrative review and the initial
investigation. See Final Decision Memo at 47 n.237. Commerce did not provide any explanation
as to why it chose to compare the Thai data for the period of review of the present investigation
only against the second administrative review and omit consideration of earlier historical data.
(footnote continued)
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Commerce’s finding that tempered glass imports from Hong Kong are not aberrational
through comparison with improperly vetted benchmarks based on negligible quantities is
thus unsupported by substantial evidence.
Commerce’s selection of the Thai data is remanded for further explanation of why
its selection is reasonable in light of the fact that imports from Hong Kong only accounted
for 0.4 % of the total volume of Thai imports, but constituted 60.2 % of the average import
value during the period of review. The AUV of imports of tempered glass from Hong Kong
into Thailand ($413.10 per kilogram) is nearly 150 times greater than the AUV of all
tempered glass imports into Thailand (including imports from Hong Kong) ($2.79 per
kilogram). 	See Canadian Solar’s Reply at 3. 	Commerce’s current explanation for not
disaggregating data is that it simply does not do so as a matter of policy. 	It justifies its
policy on the grounds of administrative burden and to avoid potentially distortive
manipulation of import data. 	Final Decision Memo at 47, 54 (citing Polyethylene
Terephthalate Film, Sheet, and Strip from [the PRC]: Issues and Decision Mem. for the
Final Results of the 2011–2012 Admin. Review at 12, A-570-924, (June 5, 2013),
available 	at 	https://enforcement.trade.gov/frn/summary/prc/2013-13985-1.pdf 	(last
See Final Decision Memo at 47–48. Commerce’s failure to explain why it did not consider data
from the first administrative review and the initial investigation is unreasonable and appears
inconsistent with its stated practice. Commerce’s apparent inconsistency with past practice is not
cured by Defendant’s argument that the earlier data does not establish that the Thai data for
tempered glass in the present period are aberrational. 	On remand Commerce is directed to
explain its decision not to consider data from the first administrative review and initial
investigation.
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visited Apr. 11, 2019); see also SolarWorld II 42 CIT at __, 320 F. Supp. 3d at 1354–
1355. Commerce’s justification may be sufficient for most cases. At some point, however,
input data may diverge so significantly from other input data that it renders the data set,
as a whole, unreliable. Ideally, Commerce, not the court, should identify where that point
lies. 	For module glass, the distortive input data has reached the point where the court
cannot say that Commerce selection is reasonable. 15
B. Aluminum Frames
SolarWorld challenges Commerce’s valuation of the respondents’ aluminum
frames using Thai HTS 7604.29.90001, which covers non-hollow aluminum profiles. See
SolarWorld’s Br. at 11–19; see also Final Decision Memo at 35–38. SolarWorld contends
that Commerce’s selection is contrary to law and not supported by substantial evidence,
arguing that the selection is not in accordance with the HTS, fails to account for the
additional manufacturing processes that the frames in question undergo, and runs
contrary to CBP rulings on the merchandise in question. 	SolarWorld’s Br. at 11–19.
15 Commerce also reasonably declined to compare the Thai import data for module glass against
Canadian Solar’s market economy purchases. 	Final Decision Memo at 48. 	Canadian Solar
argues that Commerce unreasonably rejected this data even though it was the best available
information on the record to act as a benchmark and Commerce had not identified any evidence
that undermined its reliability. 	Canadian Solar’s Br. at 31. 	Canadian Solar’s argument fails as
Commerce reasonably explained that its practice is to not use a respondent’s market economy
purchase price as a benchmark because such information is not public and not necessarily
reflective of industry-wide prices. Final Decision Memo at 49.
Canadian Solar also asserts that Commerce should have used the AUV of the float glass
subheading as a benchmark against which to assess whether the AUV for Thai imports of
tempered glass were aberrational. See Canadian Solar’s Br. at 20; Canadian Solar’s Reply at 9–
10. Canadian Solar’s argument fails, however, as Canadian Solar did not substantiate why it was
unreasonable for Commerce to decline to use data relating to an entirely different HTS
subheading as a benchmark against which to assess Thai imports of tempered glass.
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Defendant 	responds 	that 	Commerce’s 	decision 	is 	reasonable 	because 	Thai 	HTS
7604.29.90001 represents the most specific proposed surrogate value on the record.
Def.’s Br. at 23. For the reasons that follow, Commerce’s selection of import data under
HTS 7604.29.90001 is supported by substantial evidence.
As discussed above, where the subject merchandise is exported from a nonmarket
economy country, Commerce calculates normal value based on FOPs. 	19 U.S.C.
§ 1677b(c)(1). 	Commerce selects a surrogate value by which it values the FOPs and
makes that selection “based on the best available information regarding the values of
such factors in a market economy country or countries.” 	Id. 	Although Commerce has
broad discretion in deciding what constitutes the best available information, see QVD
Food Co. v. United States, 658 F.3d 1318, 1323 (Fed. Cir. 2011) (noting the absence of
a definition for “best available information” in the ADD statute), it must ground its selection
of the best available information in the overall purpose of the statute, which is to calculate
accurate dumping margins. 	See Rhone Poulenc, Inc., 899 F.2d at 1191; see also
Parkdale Int’l. v. United States, 475 F.3d 1375, 1380 (Fed. Cir. 2007). 	Commerce
considers the best available information to be (1) specific to the input; (2) tax and import
duty exclusive; (3) contemporaneous with the period of review; (4) representative of a
broad market average; and (5) publicly available. See Policy Bulletin 04.1. 16
16 To the extent possible, Commerce uses “the prices or costs of [FOPs] in one or more market
economy countries that are-- (A) at a level of economic development comparable to that of the
nonmarket economy country, and (B) significant producers of comparable merchandise.” 	19
U.S.C. §§ 1677b(c)(4)(A)–(B). Commerce also has a regulatory preference for valuing all FOPs
using surrogate value data from a single surrogate country where practicable. 	19 C.F.R.
§ 351.408(c)(2) (2014).
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Here, 	Commerce 	reasonably 	concluded 	that 	import 	data 	under 	HTS
7604.29.90001, 	which 	covers 	non-hollow 	aluminum 	profiles, 	constitutes 	the 	best
available information to value Trina’s aluminum frames. See Final Decision Memo at 35–
38. 	Commerce noted that Trina sufficiently demonstrated that the aluminum frames in
question are non-hollow, aluminum profiles, and that Commerce found no evidence on
the record to contradict this description. Final Decision Memo at 35. Moreover, as in the
underlying investigation, Commerce emphasized that HTS 7604 presents the best
available information to value the inputs in question because it covers alloyed aluminum
profiles, whereas HTS 7616.99.90—suggested by SolarWorld—comprises an “other”
subheading that includes dissimilar products. 	Id. 	Commerce reasoned that HTS 7616
applied to completely different products than the aluminum frames at issue because this
heading includes products like “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.”
Final Decision Memo at 37–38. 	Based on the inclusion of such unrelated items,
Commerce reasonably concluded that HTS 7616.99.9909 does not constitute the best
available information. 	Additionally, Commerce reasonably determined that HTS 7604’s
descriptions, such as “[a]luminum bars, rods and profiles,” indicate that the subheading
used—HTS 7604.29—includes non-hollow aluminum profiles, such as those listed by
Trina. Id. at 35. Given these explanations, Commerce’s determination that HTS 7604 is
more specific than the available alternatives on the record is supported by substantial
evidence.
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SolarWorld’s argument that evidence specific to this review renders the selection
of HTS 7604.29 unreasonable is unpersuasive. 	See SolarWorld’s Br. at 11, n.3.
SolarWorld first argues that the aluminum frames should not be valued using HTS 7604
because the HTS defines aluminum bars, rods, or profiles as having “a uniform cross
section along their whole length . . ., [sic] provided that they have not thereby assumed
the character of articles or products of other headings.” 17 SolarWorld’s Br. at 11–12 (citing
Ex. SC-17 [attached to Trina’s Sec. C Suppl. Questionnaire Resp.] at SuppC-24, PD 286–
287, CD 314–319, bar code 3480083-02 (June 21, 2016)). SolarWorld cites to an exhibit
showing a drawing of the frame as evidence that the frames cannot fit the definition of
HTS 7604, but Commerce reasonably concluded that the drawing in question shows “a
single, uniform cross section,” thus countering SolarWorld’s argument. 	See Final
Decision Memo at 36. 	SolarWorld offers no evidence to counter this determination.
Moreover, Commerce’s task is not to classify the solar frame inputs for customs purposes,
but to select the best available information to value the FOPs in question. See 19 U.S.C.
§ 	1677b(c)(1). 	SolarWorld 	fails 	to 	proffer 	evidence 	detracting 	from 	Commerce’s
conclusion that the frames are more similar to the goods under HTS 7604 than any other
data on the record.
17 Specifically, SolarWorld asserts that the record demonstrates that Trina’s aluminum solar
frames are 	SolarWorld’s Br. at 11–12.	[[ 	]]
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SolarWorld 	also 	argues 	that 	the 	aluminum 	frames 	in 	question 	cannot 	be
categorized as aluminum profiles due to the extent to which the product undergoes further
processing. SolarWorld’s Br. at 12–14. 18 According to SolarWorld, the fact that “Trina’s
aluminum frames are fabricated products that have been further manufactured into a
finished and final form” makes them not properly classifiable as aluminum profiles under
HTS 7604.29.90001. 19 SolarWorld’s Br. at 14. The argument fails, however, given that
HTS 7604 does not specify whether it covers finished or unfinished aluminum profiles, as
Commerce explained. 	Final Decision Memo at 37. 	Moreover, the International Trade
Commission’s (“ITC”) definition of aluminum profiles applies to goods “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
36 (emphasis in original, quoting Jiangsu, 38 CIT __, __, 28 F. Supp. 3d 1317, 1337
(2014)). 	It is also reasonably discernible from Commerce’s reference to the ITC’s
definition of profiles as covering goods “which have been subsequently worked after
18 For example, SolarWorld argues that the aluminum frames undergo a
resulting in
SolarWorld’s Br.
at 12–13, and that the frames “undergo multiple fabrication processes to complete them for final
use, such as drilling, cutting, punching, bending, coating, and stamping before assembly with
solar cells and backing materials.” Id. at 13.
19 SolarWorld also argues that CBP rulings classifying unfinished aluminum articles under HTS
7604 detract from Commerce’s conclusion that the aluminum frames in question are best valued
under HTS 7604. SolarWorld’s Br. at 16–17. The argument is unavailing, however, given that
Commerce did not find that HTS 7604 applied exclusively to finished aluminum profiles. 	Final
Decision Memo at 37. “The fact that HTS category 7604 has been applied in the past to unfinished
articles does not support the conclusion that Thai HTS category 7604 covers solely unfinished
merchandise that is different in nature and value from the aluminum frames at issue.” Jiangsu,
38 CIT __, __, 28 F. Supp. 3d 1317, 1337.
[[
]] 	[[
]],
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production,” Final Decision Memo at 35, that the work performed on the profiles
underscored by SolarWorld is not sufficient to render Trina’s aluminum profiles more
similar to the finished products covered by a different subheading. 	SolarWorld proffers
no evidence detracting from Commerce’s determination.
Finally, SolarWorld cites two CBP rulings, N139353 and N238208, which classify
aluminum frames for solar panels under HTS 7616.99.5090 and HTS 8541.90.0000,
respectively, to support its argument that HTS 7604 is not the best available information.
See SolarWorld’s Br. at 15–18. Commerce correctly noted, however, that it is not bound
by CBP rulings for U.S. imports when selecting import values from surrogate countries,
but rather should select the best available information on the record. 	Final Decision
Memo at 37. 	Moreover, Commerce correctly pointed out that HTS 7616.99 covers an
“other” subheading, which would solely comprise aluminum articles not already identified
elsewhere. 	Id. 	Additionally, Commerce noted that the CBP rulings did not provide
explanations for why the selected headings were appropriate, thus precluding Commerce
from weighing the ruling against evidence on the record. 	Id. 	In light of Commerce’s
response, as well as the evidence relied upon by Commerce, the decision to select HTS
7604.29.9001 is reasonable.
C. Nitrogen
Commerce valued Trina’s and Canadian Solar’s nitrogen inputs using Thai import
data under HTS 2804.30.00 (i.e, Hydrogen, rare gases and other non-metals; Nitrogen).
Final Decision Memo at 52. Trina and Canadian Solar argue that Commerce’s selection
of the Thai import data is unsupported by substantial evidence because this data is
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aberrational and unreliable. See Canadian Solar’s Br. at 31–39; Canadian Solar’s Reply
Br. at 12–15; Trina’s Br. at 4–12; Trina’s Reply Br. at 2–11. In the alternative, Canadian
Solar argues that if Commerce uses the Thai import data, then input data from the United
States and Switzerland included in the Thai data should be excluded as distortive. See
Canadian Solar’s Br. at 39–41; Canadian Solar’s Reply Br. at 16–17. 	Defendant
responds that Commerce reasonably determined that the Thai import data was not
aberrational or unreliable, and that Commerce’s selection is supported by substantial
evidence. See Def.’s Br. at 26–31.
When analyzing whether data is aberrational, Commerce generally compares that
data to (1) the AUV of data on the record for other countries at a level of economic
development comparable to the non-market economy in question, and (2) the AUV for
that input in the country at issue in prior years. Final Decision Memo at 53. Commerce’s
practice is to view data based on small quantities as not inherently distorted. Id. at 54.
Commerce’s comparison of the Thai data to data from other economically
comparable countries and from the past review reveals that this data is within the range
of the relevant benchmarks as defined by Commerce’s practice. Final Decision Memo at
53. Commerce compared the Thai import data and the import data available on the record
for five other countries economically comparable to the PRC and found the Thai data fell
within the range of the other AUVs. 	Id. at 53. 	Specifically, the Thai AUV ($9.36) was
greater than the AUVs of three other countries on the record (Bulgaria with $0.08,
Romania with $0.08, and Mexico with $0.25), but lower than the remaining two countries
(South Africa with $26.27, Ecuador with $17.16). 	Id. at 53. Commerce also concluded
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that the mere fact that the volume of Thai imports was lower than the volume of imports
from each of Bulgaria, Romania and Mexico did not, in and of itself, demonstrate
distortion. Id. at 54.
Commerce also concluded that a comparison with the nitrogen AUV in the prior
administrative review did not indicate that the Thai data was aberrational. Final Decision
Memo at 54. 	The AUV for nitrogen in the Thai import data in the prior administrative
review 	was 	$11.68, 	around 	19% 	higher 	than 	in 	the 	present 	review. 	Id. 	at 	54.
Accordingly, Commerce’s determination that the Thai import data is not aberrational is
reasonable.
Canadian Solar argues that high value imports from the United States and
Switzerland distort the value of Thai imports and should be excluded. 	See Canadian
Solar’s Br. at 39–41; Canadian Solar’s Reply Br. at 16–17. 	Imports from these two
countries account for 1.57% of imports into Thailand during the POR but comprise 22.6%
of the total value of Thai imports. 	Canadian Solar’s Br. at 39. 	Commerce reasonably
declined to disaggregate the Global Trade Atlas (“GTA”) data for nitrogen and exclude
the imports from the United States and Switzerland on the basis of its preference for using
a full dataset to avoid “cherry-picked import data in a[] [surrogate value] calculation.” Final
Decision Memo at 54. While Commerce’s policy of not disaggregating data may not be
reasonable in all circumstances, the court cannot say that Commerce’s refusal to
disaggregate the GTA data for nitrogen in this case is unreasonable. The AUV of nitrogen
imports from the United States and Switzerland is around fifteen times greater than the
AUV of all nitrogen imports into Thailand (including imports from the United States and
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Switzerland). 	See Final Decision Memo at 53; see also Summary of Import Data for
Nitrogen & Oxygen from Economically Comparable Countries [attached as Ex. 3 to
SolarWorld’s Rebuttal Surrogate Value Comments] at 2, PD 397–98, CD 482–84, bar
code 3490795-02 (July 26, 2016). 	It is reasonably discernable that Commerce did not
consider this degree of price variation within the Thai data as sufficient to justify
disaggregation 	where 	it 	had 	already 	concluded 	that 	credible 	benchmarks 	exhibit
significant price variation. 20 See Final Decision Memo at 53–54 (identifying import values
for other potential surrogate countries in this period of review as ranging between $0.08–
$27.27 per kilogram, and identifying price volatility between the present period of review
and the prior period of review in South Africa ($26.27 vs. $5.46), Romania, ($0.08 vs.
$0.13) and Ecuador ($17.16 vs. $4.84)). 21
20 Further, the price multiple of the U.S. and Swiss nitrogen imports is many times lower than that
represented by the imports of tempered glass from Hong Kong discussed above, which were
nearly 150 times the AUV for all imports of tempered glass into Thailand. See Section A above.
21 Canadian Solar argues that the South African and Ecuadorian data are unsuitable as
benchmarks because they have lower volumes and higher values than the data from Romania,
Bulgaria and Mexico. See Canadian Solar’s Br. at 37–39; Canadian Solar’s Reply at 12–15. The
South African data provides an AUV of $26.27 based on imports of 12,894 kilograms of nitrogen,
while the data from Ecuador provides an AUV of $17.16 based on 6,498 kilograms of imports.
See Summary of Import Data for Nitrogen & Oxygen from Economically Comparable Countries
[attached as Ex. 3 to SolarWorld’s Rebuttal Surrogate Value Comments] at 1, PD 397–98, CD
482–84, bar code 3490795-02 (July 26, 2016). In contrast, the data from Bulgaria, Romania and
Mexico all provide an AUV between $0.08–25 and are drawn from volumes of between
approximately 6.5–28 million kilograms. Id. at 1–2. 	Canadian Solar argues that this court has
recognized that “a very small relative quantity triggers an obligation for Commerce to explain why
data is not aberrational,” and that Commerce did not provide any such explanation. 	Canadian
Solar’s Br. at 38; Canadian Solar’s Reply at 15 (quoting Xinjiamei Furniture (Zhangzhou) Co. v.
United States, 37 CIT __, __, Slip Op. 13–30 at 13 (2013)). 	Defendant argues that Canadian
(footnote continued)
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Trina argues that Commerce unreasonably declined to use certain price quotes
and invoices as benchmarks against which to assess whether the Thai import data was
Solar waived the argument that the South African and Ecuadorian data are unsuitable as
benchmarks by failing to raise it at the administrative level. See Def.’s Br. at 28. The arguments
as to South Africa’s and Ecuador’s low volumes put Commerce on notice that the reliability of
those data sources was under question due to their low volumes. See Canadian Solar’s Reply at
13 (citing Canadian Solar’s Case Br. at 38–40).
Nonetheless, Commerce explained why it did not consider the Ecuadorian and South
African data aberrational. Commerce explained that where there are low import volumes but no
other indication that a value is aberrational, Commerce will not treat the relevant data as
aberrational. 	As discussed below, Commerce reasonably decided not to employ price quotes
and invoices as benchmarks and reasonably decided to use the South Africa and Ecuador data
as benchmarks. 	Final Decision Memo at 54 (citing Decision Mem. for the Final Results of the
2013–2014 [ADD] Admin. Review of Crystalline Silicon Photovoltaic Cells, Whether or Not
Assembled into Modules, from [the PRC] at 29–34, A-570-979, (June 13, 2016) available at
https://enforcement.trade.gov/frn/summary/prc/2016-14532-1.pdf (last visited Apr. 11, 2019)). It
is reasonably discernible from Commerce’s reasoning that it did not consider there to be any other
indication that the Ecuadorian or South African data were aberrational. 	It is also reasonably
discernible from Commerce’s discussion of how Thai data falls “within the range” of other AUVs
that it did not consider the mere fact that the South African and Ecuadorian data were the highest
on the record to indicate those data were aberrational. Final Decision Memo at 53. Commerce
thus reasonably determined that the South African and Ecuadorian data were not aberrational
and were appropriate to use as benchmarks to assess the reliability of the Thai import data.
Canadian Solar further argues that the Thai data should be treated as aberrational
because it diverges from credible benchmarks to a greater degree than did the data in Frozen
Warmwater Shrimp. 	Canadian Solar’s Br. at 33 (citing Admin. Review of Certain Frozen
Warmwater 	Shrimp 	from 	[the 	PRC]: 	Final 	Results, 	Partial 	Rescission 	of 	Sixth 	[ADD]
Administrative Review and Determination Not to Revoke in Part, 77 Fed. Reg. 53,856 (Sept. 4,
2012)). In Frozen Warmwater Shrimp Commerce found that a comparison of the AUV of shrimp
feed in the relevant period of review for Thailand, the Philippines and Indonesia as against two
prior administrative reviews demonstrated the Thai data was considerably more volatile than other
countries for which there was record data. 	See Sixth Administrative Review of Certain Frozen
Warmwater Shrimp from the People’s Republic of China: Issues and Decision Mem. for the Final
Results 	at 	49, 	A-570-893, 	(Aug. 	27, 	2012), 	available 	at
https://enforcement.trade.gov/frn/summary/prc/2012-21734-1.pdf (last visited Apr. 11, 2019)).
Canadian Solar’s comparison with Frozen Warmwater Shrimp, however, relies entirely on the use
of price quotes and invoices as benchmarks, and the rejection of South Africa and Ecuadorian
data as benchmarks. Id. at 53–54. As discussed above, Commerce reasonably declined to use
price quotes and invoices as benchmarks, and reasonably made use of the South African and
Ecuadorian data as benchmarks.
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aberrational. 	See Trina’s Br. at 6–7; Trina’s Reply at 10. 22 	Commerce stated that it
generally does not use price quotes because it cannot verify the conditions under which
the quotes were solicited and whether they have been selected from within a broader
range of quotes, and because price quotes do not represent actual prices or broad ranges
of data. 	Final Decision Memo at 52–53. 	Commerce also stated that it considered
individual prices to be unrepresentative of broad market averages. Id. at 53. Commerce’s
reasoning for declining to use the price quotes and prices as benchmarks is reasonable.
Id. at 53.
Trina further argues that the Thai data should be treated as unreliable due to a
“significant and inexplicable discrepancy” between the quantity and value of nitrogen
imports reported from the United States into Thailand, and nitrogen exports recorded from
the United States to Thailand by the ITC Dataweb. See Trina’s Br. at 7–10; Trina’s Reply
Br. at 9–10. 	The ITC data shows that the United States exported 788,319 kilograms of
nitrogen to Thailand during the period of review. 	See Analysis of U.S. Origin Nitrogen
Included in Thai Imports of Nitrogen [attached as Enclosure 2 to Trina’s Administrative
Case Br.], PD 533, CD 588, bar code 3538946-01 (Jan. 25, 2017). By contrast, the Thai
data shows that only 2,070 kilograms of nitrogen were imported from the United States
during the period of review. Id. The U.S. data contains an AUV of approximately $0.15
22 Trina submitted three invoices for the purchase of nitrogen in Thailand which reflect an average
price of $0.1187 per kilogram (derived from a total value of $4,598.61 and total quantity of
38,739.09 kilograms). See Summary of Nitrogen Values on the Record [attached as Enclosure
1 to Trina’s Administrative Case Br.], PD 533, CD 588, bar code 3538946-01 (Jan. 25, 2017).
Trina further provided a price quote for nitrogen in Thailand that offered a price of $0.0679 per
kilogram. Id.
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per kilogram, while the AUV for the U.S. component of the Thai import data contains an
AUV of approximately $140 per kilogram. 	Id. 	Commerce reasonably concluded,
however, that country-specific export data are an inappropriate benchmark by which to
evaluate corresponding import values. 	Final Decision Memo at 55. 	As Commerce
explained, this is because different reporting and inspection requirements mean that each
shipment of merchandise is likely to be treated differently. Id. (quoting Certain Activated
Carbon from [the PRC]: Issues and Decision Mem. for the Final Results of the First [ADD]
Admin. 	Review 	at 	32, 	A-570-904, 	(Nov. 	3, 	2009), 	available 	at
https://enforcement.trade.gov/frn/summary/prc/E9-27083-1.pdf 	(last 	visited 	Apr. 	11,
2019)). Trina’s argument fails as Commerce has provided a reasonable explanation for
the divergence between the U.S. export data and Thai import data, and a reasonable
justification for not using the U.S. export data as a benchmark by which to evaluate the
Thai import data.
D. Semi-Finished Polysilicon Ingots and Blocks
In the Final Results, Commerce determined that the best available information by
which to value the respondents’ semi-finished polysilicon ingots was the international
price for solar-grade polysilicon. Final Decision Memo at 21–22. SolarWorld challenges
Commerce’s decision, arguing that the surrogate value does not reflect the substantial
additional processing and value added by turning raw polysilicon into an ingot or block.
SolarWorld’s Br. at 29–32. SolarWorld proposes that Commerce instead construct a cost,
starting with the world-market price of raw polysilicon and adding the costs required to
produce a unit of ingot or block. Id. at 31–32. Defendant responds that, considering the
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available data on the record, Commerce reasonably chose to value respondents’ ingots
and blocks using a surrogate for the primary raw input. 	Def.’s Br. at 21–23. 	For the
reasons that follow, Commerce’s determination to value respondents’ semi-finished
polysilicon ingots and blocks with the world market price for raw polysilicon is reasonable.
Here, Commerce determined that the world market price for raw polysilicon
constituted 	the 	best 	available 	information 	for 	valuing 	respondents’ 	semi-finished
polysilicon ingots and blocks. 	Final Decision Memo at 21–22. 	In the absence of data
values for ingots and blocks, Commerce used a value for raw polysilicon because
respondents’ ingots and blocks are primarily composed of polysilicon. 	Id. With respect
to SolarWorld’s contention that the world market price for polysilicon is missing certain
processing costs, Commerce explained that most of the processing required to produce
ingots and blocks from raw polysilicon is performed by large, expensive machinery and
is thus accounted for in the manufacturing costs. Id. Indeed, Commerce stated that the
record did not present sufficient evidence to show that the additional processing stages
add a significant amount of value beyond the original cost of polysilicon. 	Id. 	Given
Commerce’s decision to use a value for the main component of the good, it is reasonably
discernible that Commerce viewed the option as imperfect but recognized that it would
result in a more accurate surrogate value than would a value for a component that is not
the main component of the good. See Rhone Poulenc, Inc., 899 F.2d at 1191. It is also
reasonably discernible that Commerce determined, consistent with its practice, that the
world market price for raw polysilicon is as specific as possible to the input (lacking data
for the input itself), is contemporaneous, publicly available, and represents a broad
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market average. 	See Policy Bulletin 04.1. 	Commerce’s determination that this value
constitutes the best available information is reasonable.
E. Respondents’ Surrogate Financial Ratios
In the Final Results, Commerce determined that Styromatic’s 2015 financial
statements constituted the best available information to calculate respondents’ overhead,
selling, general and administrative expenses, and profit. Final Decision Memo at 66–71.
SolarWorld challenges Commerce’s decision, arguing that Commerce should have
selected the available financial statements of Thai company Ekarat Engineering Public
Company Limited (“Ekarat”) because Ekarat is a producer of identical merchandise, thus
making it the best available information. SolarWorld’s Br. at 21. Defendant responds that
Commerce 	reasonably 	selected 	Styromatic’s 	2015 	financial 	statements, 	as 	they
constituted 	the 	best 	available 	information 	considering 	they 	were 	complete 	and
contemporaneous with the period of review, and Styromatic’s primary business is the
production of comparable merchandise. 	Def.’s Br. at 34. 	For the reasons that follow,
Commerce’s determination is supported by substantial evidence.
As discussed, Commerce determines the normal value of the subject merchandise
based on the FOPs utilized. 19 U.S.C. § 1677b(c)(1). Commerce values the FOPs using
the best available information, to which it adds “an amount for general expenses and
profit.” Id. Commerce selects a surrogate value for each input from a source in a market
economy country that is economically comparable to the NME country and a significant
producer of the merchandise in question. 	Id. §§ 1677b(c)(4)(A)–(B); 19 C.F.R. §
351.408(b). 	Commerce determines the amount for manufacturing overhead, general
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expenses, and profit using publicly available financial data from a producer of identical or
comparable merchandise. 19 C.F.R. § 351.408(c)(4). In choosing which surrogate data
to use, Commerce considers “the quality and specificity of the statements, as well as
whether the statements are contemporaneous with the data used to calculate production
factors.” 	Final Decision Memo at 67. 	Additionally, where Commerce “has reason to
believe or suspect that a company may have received countervailable subsidies, financial
ratios derived from that company’s financial statements may not constitute the best
available information.” Id.
Commerce selected Styromatic’s 2015 financial statements as the best available
information because they were contemporaneous, audited, and came from a company
that produced merchandise comparable to the subject merchandise during the period of
review. Final Decision Memo at 71. SolarWorld asserts that Ekarat’s financial statements
are the best available information because the company is the only Thai manufacturer
that produces identical merchandise. 	SolarWorld’s Br. at 21. 	Defendant responds that
Commerce reasonably explained that the majority of Ekarat’s revenue comes from
distribution 	transformers 	and 	services, 	which 	are 	not 	comparable 	to 	the 	subject
merchandise. Def.’s Br. at 32–33. 23
23 Specifically, Commerce concluded that “Ekarat’s financial statements support that more than
99 percent of its revenue came from sales of distribution transformers and services, and the
remaining revenue came from sales of electricity.” Final Decision Memo at 68.
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Commerce reasonably concluded that Styromatic’s 2015 financial statements
constituted the best available information. 	Although Commerce acknowledged that
Ekarat’s 2015 consolidated financial statements indicate that Ekarat is a manufacturer of
solar modules, Commerce reasonably concluded that Ekarat is primarily a manufacturer
of distribution transformers. 	Final Decision Memo at 68. 	First, Ekarat’s 2015 financial
statements indicate that “[m]ost of the company’s revenue came from the sale of
Distribution Transformer,” thus establishing that Ekarat was primarily engaged in the
manufacturing of non-comparable merchandise during the POR. Ekarat 2015 Financial
Statements [attached as Ex. 11 to SolarWorld’s Initial Surrogate Value Comments] at 18,
PD 365–382, CD 424–436, bar code 3489062-01 (July 18, 2016) (“Ekarat Financial
Statements”). Second, the same statements indicate that in 2015, “the company had the
sale revenue from sales of Distribution Transformer to the Metropolitan Electric Authority
and the Provincial Electric Authority . . . in the amount of . . . Baht 267.60 million or . . .
12.92%, . . . of the Transformer revenue and Services revenue of the company.” Ekarat
Financial Statements at 18. From this figure, it is discernible that Ekarat made a total of
2,071.21 million baht in transformer revenue and services revenue (267.60 divided by
0.1292). 	The financial statements also indicate that Ekarat’s total revenue for every
customer sector was 2,092.12 million baht in 2015. 	Id. 	So, 2,071.21 million—Ekarat’s
2015 transformer revenue and services revenue—is 99% of 2,092.12 million—the
company’s total 2015 revenue for customer sectors. 	Although SolarWorld argues that
Ekarat can produce solar cells, see SolarWorld’s Br. at 21–22 (citing Ekarat Financial
Statements at 11), Commerce reasonably concluded that the vast majority of Ekarat’s
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revenue comes from the sale of non-comparable merchandise and thus Ekarat should
not be considered a producer of identical merchandise. 24 	Final Decision Memo at 68.
As Ekarat’s financial statements indicate, “[m]ost of the company’s revenue came from
the sale of” distribution transformers. Ekarat Financial Statements at 18. 25
Moreover, Commerce’s practice is to decline to use financial statements of
companies that are not profitable, and Ekarat Solar Co., Ltd., Ekarat’s subsidiary
described as a solar cell producer, operated at a loss in 2015. See Final Decision Memo
at 69 (citing Canadian Solar Rebuttal Surrogate Value Comments at Ex. SVR-1, PD 391,
CD 474, bar code 3490637-01 (July 25, 2016)). 	Accordingly, Commerce’s conclusion
that Styromatic’s 2015 financial statements—rather than those of Ekarat—represented
the best available information is reasonable.
24 SolarWorld argues that Commerce’s assertion that the majority of Ekarat’s revenue came from
distribution transformer sales is not supported by the record. 	SolarWorld’s Br. at 22–23.
SolarWorld points out that Commerce cites to page 113 of Ekarat’s financial statements, which
does not clearly support Commerce’s assertion. Id. at 23. 	However, Commerce’s assertion is
reasonably discernible from the record. As described above, Ekarat’s financial statements make
clear that Ekarat made a total of 2,071.21 million baht in transformer revenue and services
revenue in 2015. Ekarat Financial Statements at 18. Ekarat’s total revenue for every customer
sector was 2,092.12 million baht in 2015, id., meaning that its transformer revenue and services
revenue constituted 99% of its total 2015 revenue. 	Thus, SolarWorld’s attempt to undermine
Commerce’s assertion that the majority of Ekarat’s revenue comes from the sale of non-
comparable merchandise is unavailing.
25 SolarWorld also points to evidence that Ekarat’s assets for cell manufacturing totaled 646.31
million baht, whereas its assets for transformer sales and services and for electricity were lower.
SolarWorld’s Br. at 22. However, Ekarat’s assets for solar cell production do not establish that it
is primarily a manufacturer of identical merchandise, particularly in light of evidence showing that
the vast majority of revenue comes from elsewhere.
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II. 	Commerce’s 	Application 	of 	Partial 	AFA 	to 	Value 	Canadian 	Solar’s
Unreported FOPs
Canadian Solar challenges Commerce’s application of partial AFA as unlawful and
unsupported by substantial evidence. 	Canadian Solar’s Br. at 10–19. 	Canadian Solar
argues that because it cooperated with Commerce in the administrative proceedings,
application of partial AFA was unlawful. Id. at 12–13. Canadian Solar further contends
that Commerce’s determination that Canadian Solar could have induced cooperation from
its unaffiliated suppliers to provide FOP data was not supported by substantial evidence.
Canadian Solar’s Br. at 11, 13–17; see also Final Decision Memo at 15–18. Commerce
reasoned that because the suppliers failed to cooperate by not providing the FOP
information, 19 U.S.C. § 1677e(a) and (b) permit Commerce to apply AFA to account for
the missing information. Final Decision Memo at 15–18. Commerce explained its use of
AFA as necessary because Canadian Solar was “in a position to exercise leverage to
induce cooperation from its uncooperative solar cell and solar module suppliers.” 	Final
Decision Memo at 16. For the reasons that follow, Commerce’s application of partial AFA
in calculating Canadian Solar’s dumping margin is neither in accordance with law nor
supported by substantial evidence.
To calculate accurate dumping margins, Commerce requests information from
respondents. Where information necessary to calculate a respondent’s dumping margin
is not available on the record, Commerce applies “facts otherwise available” in place of
the missing information. 	See 19 U.S.C. § 1677e(a). 	Where Commerce “finds that an
interested party has failed to cooperate by not acting to the best of its ability to comply
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with a request for information,” Commerce may apply “an inference that is adverse to the
interests of that party in selecting among the facts otherwise available.” 26 Id. § 1677e(b).
A respondent complies “to the best of its ability” where it “put[s] forth its maximum effort
to provide Commerce with full and complete answers to all inquiries in an investigation.”
Nippon Steel Corp. v. United States, 337 F.3d 1373, 1382 (Fed. Cir. 2003). The Court of
Appeals has held that Commerce may, under certain circumstances, apply AFA in
calculating a cooperative respondent’s antidumping margin where it finds that the
respondent could have induced an uncooperative supplier’s cooperation. 	Mueller
Comercial de Mexico S. De R.L. de C.V. v. United States, 753 F.3d 1227, 1233–34 (Fed.
Cir. 2014).
In Mueller, Mueller was a cooperative respondent but did not possess all the
production cost information Commerce needed to calculate its antidumping margin. 753
F.3d at 1230. Commerce requested data directly from Mueller’s two main suppliers, but
only one supplier provided the information. 	Commerce used facts otherwise available
pursuant to 19 U.S.C. § 1677e(a), concluding that the unavailable production cost data
was related to acquisition cost data on the record. Id. Commerce explained
Although premised on the adverse inference that [Mueller’s uncooperative
supplier’s] actual cost information would not be favorable – otherwise [the
supplier] may not have elected to withhold it from the Department – the
26 Although the statute provides separately for the use of facts otherwise available and the
subsequent application of an adverse inference regarding those facts, parties often use the term
“adverse facts available” or “AFA” to refer to the application of the “facts otherwise available” and
“adverse inferences” provisions of 19 U.S.C. 	§ 1677e. See, e.g., Final Decision Memo at 15
(explaining Commerce’s approach to applying AFA when an interested party fails to cooperate by
not acting to the best of its ability in responding to Commerce’s requests for information).
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selected facts available are intended to produce an accurate, non-punitive,
dumping margin for Mueller.
Issues and Decision Mem. for Final Results of [ADD] Administrative Review: Certain
Circular Welded Non-Alloy Steel Pipe from Mexico at 16, A-201-805, June 13, 2011, ECF
No. 59 (Mueller Comercial de Mexico, S. de R.L. de C.V. v. United States, Ct. No. 11-
00319) (“Mueller IDM”). Commerce selected the most discounted transaction data from
the 	responsive 	supplier, 	inferring 	that 	all 	merchandise 	sold 	to 	Mueller 	by 	the
uncooperative supplier came at such a discount. 	Mueller, 753 F.3d at 1230. 	This
selection enabled Commerce to calculate the uncooperative supplier’s cost of production,
and ultimately resulted in a higher dumping rate for Mueller. Id. Commerce justified its
decision, in part, based on a finding that Mueller “could and should have induced” the
cooperation of the uncooperative supplier, and that an adverse inference affecting Mueller
was necessary to induce the uncooperative supplier’s cooperation since it “could
otherwise evade its antidumping rate by funneling its goods through Mueller.” Id. at 1233.
Mueller challenged the final results at the U.S. Court of International Trade (“CIT”),
arguing that Commerce’s application of AFA was improper, given Mueller’s cooperation.
Id. at 1230–31. After the CIT sustained Commerce’s determination, Mueller appealed to
the Court of Appeals for the Federal Circuit.
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The Court of Appeals examined whether Commerce’s determination could be
sustained under 19 U.S.C. § 1677e(a). 27 It held that Commerce may, under subsection
(a), rely on inducement or evasion rationales where reasonable under the circumstances,
and where “the predominant interest in accuracy is properly taken into account.” 	Id. at
1233. The Court of Appeals explained that its holding was “justified and required, even if
Commerce is viewed as acting entirely under subsection (a) in determining Mueller’s
rate.” Id. The Court of Appeals’ use of “even if” is properly read as “assuming, as we do
here,” given that Commerce indeed acted under the authority of subsection (a) in the
administrative proceeding, and the Court undertook no prior analysis of subsection (b) in
Mueller. Moreover, the Court’s phraseology demonstrates the Court’s subtle recognition
of the importance of its holding—that policy rationales are permissible under subsection
(a)—in light of the fact that subsection (b) has traditionally called for policy rationales,
such as deterrence. See, e.g., Gallant Ocean (Thailand) Co., Ltd. v. United States, 602
F.3d 1319, 1323 (Fed. Cir. 2010) (quoting F.lli De Cecco Di Filippo Fara S. Martino S.p.A.
v. United States, 216 F.3d 1027, 1032 (Fed. Cir. 2000) (an AFA rate should be “a
reasonably accurate estimate of the respondent’s actual rate, albeit with some built-in
increase intended as a deterrent to non-compliance”)). The Court of Appeals noted that
such considerations could be reasonable in Mueller’s case, given that Mueller had an
existing relationship with its supplier and thus “could potentially have refused to do
27 The Court of Appeals acknowledged that Commerce justified its determination of Mueller’s
margin “primarily under subsection (a).” Mueller, 753 F.3d at 1232. The Court of Appeals also
explained that “Commerce used ‘facts otherwise available’ to calculate Mueller’s margin under 19
U.S.C. § 1677e(a) of the statute.” Id. at 1230.
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business” as a tactic to induce cooperation. 	Mueller, 753 F.3d at 1234–35. 	As for the
evasion rationale, the Court of Appeals explained that the uncooperative supplier—itself
a mandatory respondent in the administrative proceeding—could potentially evade its
own AFA rate by exporting its goods through Mueller if Mueller were assigned a favorable
antidumping rate. Id. at 1235.
A close reading of section 1677e(b) and Mueller reveals that application of an
inference adverse to the interests of a cooperating respondent under subsection (b) is not
contemplated by the statute nor the Court of Appeals. First, the plain language of section
1677e(b) expressly limits Commerce’s application of an adverse inference to the interests
of the party that failed to cooperate. 19 U.S.C. § 1677e(b)(1) (where an interested party
fails to cooperate, Commerce “may use an inference that is adverse to the interests of
that party”). 	Second, in the determination giving rise to Mueller, Commerce expressly
disavowed imposing an adverse inference against a cooperating party:
The Department has found that the necessary information is absent from
the record because [Mueller’s uncooperative supplier] failed to cooperate,
and has not made a finding that Mueller failed to cooperate. Accordingly,
the Department has not applied an adverse inference against the interest
of Mueller. Instead, the Department has selected from the facts otherwise
available, the best information to use in place of [the uncooperative
supplier’s] withheld cost data.
Mueller IDM at 16. 	The Court of Appeals did not reject Commerce’s selection of facts
available under subsection (a) despite its adverse effect on Mueller. 	The Court of
Appeals’ key observation—that subsection (a) “does not provide for the specific facts that
should be used as a gap-filling mechanism”—set the stage for Mueller’s lasting insight—
that policy rationales are not reserved exclusively for the realm of subsection (b). 	See
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Mueller, 753 F.3d at 1234. 	“The statute on its face does not preclude Commerce from
relying on the same considerations under subsection (a) for an AFA determination as
used under subsection (b).” 28 Id.
Here, several of Canadian Solar’s unaffiliated suppliers of solar modules did not
report information on their FOPs, information Commerce needed to calculate Canadian
Solar’s antidumping rate. 29 Final Decision Memo at 15. Commerce applied “partial AFA”
in place of the missing information. Final Decision Memo at 17. First, it noted that section
1677e(a) “provides that the Department shall apply ‘facts otherwise available’ if an
interested party or any other person withholds information that has been requested.” Id.
at 15. Next, Commerce stated that subsection (b) “provides that the Department may use
an adverse inference in applying the facts otherwise available when a party has failed to
28 After explaining Commerce’s authority to act under subsection (a), the Court of Appeals notes
that its ruling in Mueller is consistent with its precedents applying subsection (b) (which it
describes as “properly directed to non-cooperating parties”), referring to those cases as
constituting a separate body of law. See Mueller, 753 F.3d at 1234 (citing De Cecco, 216 F.3d at
1032; Changzhou Wujin Fine Chem. Factory Co., Ltd. v. United States, 701 F.3d 1367, 1379
(Fed. Cir. 2012); Fine Furniture (Shanghai) Ltd. v. United States, 748 F.3d 1365, 1370–71 (Fed.
Cir. 2014)). 	The Court of Appeals sought to ensure that developing law under (a) would exist
harmoniously with the law under (b), and to preserve the appropriate balance between accurately
estimating respondents’ antidumping rates, see Rhone Poulenc, Inc., 899 F.2d at 1191 (Fed. Cir.
1990), and relying on policy rationales. See Mueller, 753 F.3d at 1233; see also Changzhou, 701
F.3d at 1379 (holding that Commerce may not exclusively apply a deterrence rationale in the case
of a cooperating party and must conduct a case-specific factual analysis). Indeed, in the case of
a cooperating respondent, Commerce may consider policy rationales in making a facts otherwise
available determination, but those considerations must reasonably be based in the facts of the
case. See Xiping Opeck Food Co., Ltd. v. United States, 38 CIT __, __, 34 F. Supp. 3d 1331,
1351 (2014) (holding that, on remand, Commerce must explain the relevance of any inducement
or evasion considerations and must address how using AFA to calculate a cooperating party’s
rate where that rate has no impact on the non-cooperating party is reasonable).
29 The unaffiliated suppliers are interested parties for purposes of the statute. See 19 U.S.C. §
1677(9)(A) 	(defining 	“interested 	party” 	as, 	inter 	alia, 	a 	foreign 	manufacturer 	of 	subject
merchandise).
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cooperate by not acting to the best of its ability to comply with a request for information.”
Id. Thereafter it selected Canadian Solar’s highest consumption rates for FOPs for solar
cells and modules sold in the United States “because the suppliers in question failed to
cooperate by not acting to the best of their abilities to comply with a request for
information.” 	Id. at 18. 	In other words, Commerce used an adverse inference invoking
1677e(b) based on the suppliers’ lack of cooperation to calculate Canadian Solar’s rate.
Commerce’s application of an adverse inference under subsection 1677e(b) is
contrary to law. 	The plain meaning of the statute, as confirmed by Mueller, does not
provide for an adverse inference against a cooperative respondent under subsection
1677e(b). It is undisputed that Canadian Solar cooperated in the administrative review.
See Canadian Solar’s Br. at 10; Def.’s Br. at 34–41; Oral Arg. at 00:14:45–00:15:00
(Defendant agreeing that Canadian Solar was a cooperative respondent); See also
Unreported [FOPs] Mem. at 5, PD 517, CD 585, bar code 3533043-01 (Dec. 16, 2016)
(stating that Commerce may apply AFA in determining a cooperative respondent’s
dumping margin to induce cooperation of the uncooperative party). 	As discussed, the
statute allows Commerce to select facts available under subsection (a), not apply an
adverse inference against a cooperating party under subsection (b). 	Commerce may
consider inducement and evasion rationales in selecting amongst facts available under
subsection (a), so long as accuracy remains the predominant concern. Mueller, 753 F.3d
at 1233. The Court of Appeals in Mueller explained that Commerce is not prohibited “from
drawing 	adverse 	inferences 	against 	a 	non-cooperating 	party 	that 	have 	collateral
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consequences for a cooperating party,” but that was not the set of facts presented. 30 Id.
at 1236. 	Generally, Commerce’s decision to rely on subsection (a) versus (b) (or vice
versa) is critical, as the two subsections involve varying levels of review and trigger
separate lines of jurisprudence. 	Id. at 1232 (“[t]hese two subsections have different
purposes.”), 1234 (discussing the jurisprudence under subsection (b) separately). In the
case of a cooperating party, selection of facts available under subsection (a) where
Commerce considers an inducement or evasion rationale necessarily involves a more
searching review. Commerce must conduct “a case-specific analysis of the applicability
of deterrence and similar policies,” placing a “greater emphasis on accuracy” where the
decision affects a cooperating party. 	Id. at 1234 (citing Changzhou Wujin Fine Chem.
Factory Co., Ltd. v. United States, 701 F.3d 1367, 1379 (Fed. Cir. 2012)). 	Here,
Commerce purports to impose “partial AFA” pursuant to section 1677e(b), relying
principally on Mueller. 	As explained, Mueller addressed a determination Commerce
made under subsection (a), and its lessons thus apply to the selection of facts available
under subsection (a). 	Commerce’s application of an adverse inference—purportedly
under subsection 1677e(b)—is therefore contrary to law.
30 The Court of Appeals referred specifically to the situation where Commerce makes an adverse
inference to calculate the rate of a non-cooperating party, and that rate may be used in calculating
the rate of a cooperating party. Mueller, 753 F.3d at 1236 (citing KYD, Inc. v. United States, 607
F.3d 760, 768 (Fed. Cir. 2010)). That is not the case here, where Commerce had no reason to
calculate a rate for the uncooperative suppliers.
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To the extent Commerce purports to rely on 19 U.S.C. § 1677e(a) for its application
of partial AFA, its determination that Canadian Solar could have potentially induced its
uncooperative suppliers to cooperate is unsupported by substantial evidence. Commerce
cites both subsections 1677e(a) and (b) in its determination, but found, “pursuant to
[section 1677e(b)] of the Act, that the application of partial AFA is warranted.” 	Final
Decision Memo at 18. The statute makes clear that Commerce must invoke subsection
(a) to reach subsection (b). 	Therefore, Commerce’s invocation of subsection (a) would
seem to be solely in service of 	its subsection (b) analysis. 	Nonetheless, in its
determination Commerce discusses and purports to rely upon Mueller throughout, see
Final Decision Memo at 16–17, a case that relies on a subsection (a) analysis. 	See
Mueller, 753 F.3d at 1230, 1232. It is therefore possible that Commerce also attempts to
rely upon subsection (a) or some combination of subsection (a) and (b). In any event, the
record does not support Commerce’s determination pursuant to an analysis under
subsection (a), as Commerce fails to show that Canadian Solar had the type of long-
standing relationships with its suppliers that would give it leverage in the marketplace.
Although the Court of Appeals in Mueller does not expound upon what constitutes
an “existing relationship,” surely more is required than what is present here. 753 F.3d at
1235; see also Changzhou, 701 F.3d at 1379 (holding that there was no justification for
an AFA rate based in deterrence where the rate would affect only the cooperating party).
Here, Commerce based its determination that Canadian Solar has long-term relationships
with its suppliers on the fact that it maintains “supplier-specific accounts in the accounting
system” and corporate divisions dedicated to the purchasing of solar cells. Final Decision
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Memo at 16. 	Such facts do not reasonably indicate the presence of a long-term
relationship creating leverage. 	Indeed, corporate practices such as those listed by
Commerce are equally consistent with short-term, unimpactful business relationships
falling short of the type that would indicate that one party holds undue influence. Without
more evidence showing leverage, Commerce’s determination that Canadian Solar could
have induced cooperation is unreasonable. 31
31 Defendant invokes this court’s review of Commerce’s final determination in the second
administrative review (“AR2”) of the ADD order covering crystalline silicon photovoltaic cells,
whether or not assembled into modules, from the PRC, as support for the argument that Canadian
Solar could have induced its suppliers to cooperate. 	Def.’s Br. at 36 (quoting SolarWorld
Americas, Inc. v. United States, 41 CIT __, __, 273 F. Supp. 1254, 1277–78 (2017) (“SolarWorld
I”). 	SolarWorld I is inapposite because (1) it did not involve a challenge that Commerce’s
application of partial AFA was contrary to law, and (2) the facts were distinguishable from those
of the current action. In AR2, Commerce applied partial AFA to value Trina’s unreported FOPs
from Trina’s unaffiliated solar cell suppliers. See Decision Mem. for the Final Results of the 2013–
2014 [ADD] Administrative Review of Crystalline Silicon Photovoltaic Cells, Whether or Not
Assembled into Modules, From [the PRC] at 52, A-570-979, (June 13, 2016), available at
https://enforcement.trade.gov/frn/summary/prc/2016-14532-1.pdf (last visited Apr. 11, 2019)
(“AR2 IDM”). 	Trina argued that Commerce’s determination was arbitrary and unsupported by
substantial evidence because Commerce did not explain what percentage of a respondent’s
FOPs must be unreported for Commerce to consider the missing information significant enough
to warrant AFA. SolarWorld I, 41 CIT at __, 273 F. Supp. 3d at 1276; Mem. Supp. Mot. [Trina] J.
Agency R. at 19, Jan. 25, 2017, ECF No. 40 (SolarWorld Americas, Inc. v. United States, Consol.
Ct. No. 16-00134). 	The CIT sustained Commerce’s determination, noting that Commerce
reasonably explained that the percentage of solar cell inputs provided by Trina’s unaffiliated
suppliers was significant, and thus could not be excused. 	SolarWorld I, 41 CIT at __, 273 F.
Supp. 3d at 1277–78 (quoting AR2 IDM at 52). 	Trina thus did not challenge Commerce’s
determination as contrary to law, as Canadian Solar does here. See Canadian Solar’s Br. at 10.
Second, the facts of SolarWorld I differed from those of the present action. There, the CIT upheld
Commerce’s determination that Trina could induce cooperation from its suppliers based on “what
Trina acknowledged were long-standing business relationships between Trina and the suppliers.”
SolarWorld I, 41 CIT at __, 273 F. Supp. 3d at 1278 (citing AR2 IDM at 56). Here, by contrast,
Canadian Solar disputes that it has long-term relationships with the uncooperative suppliers, and
Commerce’s determination on this issue is unsupported by substantial evidence, as explained
above. Defendant’s reliance on this court’s decision in SolarWorld I is therefore unavailing.
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Defendant argues that Mueller does not require certainty—but mere potentiality—
that the cooperating respondent could induce cooperation, and that Canadian Solar’s
relationships with its suppliers meet the relevant bar. 32 	Def.’s Br. at 36 (citing Mueller,
753 F.3d at 1235). 	Defendant asserts that Commerce made three conclusions that
demonstrate Canadian Solar’s ability to potentially induce cooperation: 1) that “Canadian
Solar is a significant producer in the solar market with significant sales in 2014” and that
it was one of the largest two exporters of subject merchandise to the United States during
the relevant period; 2) that Canadian Solar continues to grow rapidly; and 3) that
Canadian Solar “purchased a substantial quantity of solar cells and solar modules from
its suppliers.” Def.’s Br. at 37–38 (citing Final Decision Memo at 16). Such observations
hardly establish that Canadian Solar possessed leverage over its suppliers, particularly
under the more searching subsection (a) analysis. 	See Mueller, 753 F.3d at 1235
(explaining that unlike Changzhou, Mueller potentially had a mechanism to force the non-
32 Defendant points out that “Canadian Solar does not aver that it ever threatened to end its
business relationship with any of these suppliers.” Def.’s Br. at 37. Although the Court of Appeals
in Mueller contemplated a threat to end business as a mechanism for exercising leverage, the
Court did not require it. See Mueller, 753 F.3d at 1235. Canadian Solar attempted to induce the
cooperation of its suppliers. 	Indeed, Canadian Solar contacted the suppliers in question
repeatedly over a period of up to four months, requesting FOP data from each supplier, in some
cases up to eleven times. Canadian Solar’s Br. at 10 (citing Canadian Solar’s June 8, 2016 Sec.
A Suppl. Questionnaire Resp. at Ex. SA-14 & SA-16, PD 263, CD 281–285 (June 8, 2016);
Canadian Solar’s July 8, 2016 Sec. D Suppl. Questionnaire Resp. at Ex. SD-13, PD 330, CD 358–
365 (July 8, 2016); Canadian Solar’s Sept. 2, 2016 Suppl. Questionnaire Resp. at Revised Ex.
SD2-1, PD 428, CD 518 (Sept. 2, 2016)). Canadian Solar even expressed that cooperation was
an “urgent” matter but was unable to persuade the suppliers. 	See id. Moreover, Defendant
correctly acknowledges that Commerce did not base its decision on Canadian Solar not
threatening its suppliers, but rather on the three conclusions listed below. 	Def.’s Br. at 37.
Canadian Solar’s lack of a threat to cease doing business is therefore not dispositive of the issue
at hand—its ability to induce cooperation.
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cooperating parties to cooperate); cf. Xiping Opeck Food Co., Ltd. v. United States, 	41
CIT __, __, 222 F. Supp. 3d 1141, 1158–59 (2017) (upholding Commerce’s determination
that cooperative respondent was in a position to induce cooperation of non-cooperative
entity because the non-cooperative entity “was not in a position to evade a dumping
margin assigned to [the cooperative respondent] by sourcing from a different supplier,”
given “the nature of their relationship and . . . [the cooperative respondent’s] statement
that it dominated and set prevailing prices in the U.S. market”). 	Further, as Commerce
noted, the record contains no information regarding Canadian Solar’s share of its
uncooperative suppliers’ business. Final Decision Memo at 16. Commerce stated that,
although the record contained no such information, it could not conclude, “based on the
lack 	of 	such 	information, 	that 	Canadian 	Solar’s 	refusal 	to 	do 	business 	with 	its
uncooperative suppliers would not serves [sic] as a mechanism to induce cooperation.”
Id. 	While Commerce may be able to avoid further inquiry where it acts pursuant to its
authority under subsection (b), it cannot point to a lack of evidence to satisfy its obligations
under a subsection (a) analysis. Under the more searching “case-specific analysis of the
applicability of deterrence and similar policies,” Commerce’s reasoning here cannot
support its determination. 	Accordingly, Commerce’s application of partial AFA in
calculating Canadian Solar’s antidumping margin is remanded for further explanation or
reconsideration.
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III. Commerce’s Decision to Include Zero Quantity Import Data
In its final determination, Commerce opted to include in the average unit surrogate
value calculations import data with quantities of zero, finding “no basis to conclude that
the zero quantity import data included in our [surrogate value] calculations are errors or
that these zero quantity imports result in unreliable and distortive [surrogate values].”
Final Decision Memo at 86. 	Rather, Commerce found these imports attributable to
rounding small import quantities down to zero. Final Decision Memo at 86. Trina argues
the record contains no evidence that shipments of low quantities were rounded down to
zero, and that including such data is distortive. Trina’s Br. at 14–17. Defendant responds
that Commerce reasonably determined that the record lacked any basis to conclude that
the zero quantity data were the result of errors. Def.’s Br. at 41–42. For the reasons that
follow, Commerce’s determination is supported by substantial evidence.
Commerce found in its final determination that the zero quantity imports in the data
set were attributable to rounding small import quantities down to zero. 	Final Decision
Memo at 86. 	Commerce addressed Trina’s counter argument that if the zeros were
attributable to rounding that one would expect a greater number of quantities rounded to
one than to zero because quantities from 0.5 units to 1.49 would round to one. 	Trina’s
Br. at 16 (citing Trina’s Administrative Case Br. at 21–22, PD 531–532, CD 588, bar code
3538943-02 (Jan. 25, 2017)). 	Commerce found no reason to expect such a neat
distribution of data as Trina describes. 	Trina’s argument regarding how the data points
should distribute does not detract from Commerce’s otherwise reasonable determination
that the zero quantity data are the result of rounding. Further, Commerce explained that
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if the zero quantity entries constituted error, it would expect similar errors to occur with
respect to the reported import values, and the record contained no such errors. 	Final
Decision Memo at 86. Additionally, if the entries were error, Commerce reasoned, such
errors would suggest serious flaws with the GTA data Commerce utilized, and no party
suggested that such fundamental flaws existed. 	Id. 	Commerce’s explanation is
reasonable and its determination is thus sustained. See Consolo v. Fed. Mar. Comm’n,
383 U.S. 607, 620 (1966) (“the possibility of drawing two inconsistent conclusions from
the evidence does not prevent an administrative agency’s finding from being supported
by substantial evidence”); see also Daewoo Electronics Co., Ltd. v. Int’l Union of
Electronic Elec., Tech, Solaried, & Mach. Workers, 6 F.3d 1511, 1520 (Fed. Cir. 1993)
(explaining that the inquiry is whether the record reasonably supports an agency’s
decision, not whether some other reasonable inference exists).
IV. Calculation of TUS’s U.S. Indirect Selling Expense Ratio
In calculating Trina’s constructed export price, Commerce declined to use debt
restructuring income reported by Trina to offset Trina’s indirect selling expenses. 	Final
Decision Memo at 84. 	Trina challenges this decision as unsupported by substantial
evidence and arbitrary. 	Trina’s Br. at 18. Trina also argues that Commerce failed to alert
Trina 	to 	its 	concerns 	about 	the 	claimed 	debt 	restructuring 	income 	during 	the
administrative proceeding. 	Id. 	at 19. 	Defendant responds that Commerce reasonably
determined not to offset Trina’s indirect selling expense by the claimed debt restructuring
income. Def.’s Br. at 43–44.
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The antidumping statute requires Commerce to make certain adjustments to a
respondent's reported constructed export price. 	See 19 U.S.C. § 1677a(c)–(d). One of
the adjustments made to constructed export price is to deduct indirect selling expenses.
See Final Decision Memo at 83–84; see also 19 U.S.C. § 1677a(d)(1)(D). Indirect selling
expenses are those costs that “would be incurred by the seller regardless of whether the
particular sales in question are made, but reasonably may be attributed (at least in part)
to such sales,” while direct selling expenses are expenses that “bear a direct relationship
to” the particular sales in question. See Uruguay Round Agreements Act, Statement of
Administrative Action, H.R. Doc. No. 103–316, at 823–4 (1994), reprinted in 1994
U.S.C.C.A.N. 4040, 4164. It is Commerce’s practice to allow income gained through debt
restructuring to be used to offset indirect selling expenses (thus minimizing the reduction
in constructed export price). Final Decision Memo at 84.
Commerce reasonably declined to offset Trina’s indirect selling expense by the
claimed debt restructuring income because there was insufficient information available
on the record for Commerce to determine what portion of the gain was attributable to the
period of review. Final Decision Memo at 84–85. Commerce’s stated practice is to only
allow such an offset for gain attributable to the period of review. 	Id. (citing Issues and
Decision Mem. for the Final Determination in the [ADD] Investigation of Structural Steel
Beams from South Korea at Comment 26, A-580-841, (July 5, 2000) available at
https://enforcement.trade.gov/frn/summary/korea-south/00-16952-1.txt (last visited Apr.
11, 	2019); 	Issues 	and 	Decision 	Mem. 	for 	the 	Final 	Determination 	in 	the 	[ADD]
Investigation of Light-Walled Rectangular Pipe and Tube from Mexico at 69–70, A-201-
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832, (Aug. 26, 2004) available at https://enforcement.trade.gov/frn/summary/mexico/E4-
2045-1.pdf (last visited Apr. 11, 2019)). 	Trina’s claim for debt restructuring income is
based solely on a single line item in its 2015 income statement. 	See Trina’s Sec. C
Questionnaire Resp. at Ex. C-10, PR 232–34, CD 188–205, bar code 3468547-01 (May
12, 2016) (“Trina’s Sec. C Questionnaire Resp.”). Trina complains that Commerce made
no further inquiry regarding whether “income might not relate entirely to the current
period” and therefore argues that Commerce’s determination is purely speculative.
Trina’s Br. at 19. However, “Commerce prepares its questionnaires to elicit information
that it deems necessary to conduct a review, and the respondent bears the burden to
respond with all of the requested information and create an adequate record.” ABB Inc.
v. United States, 42 CIT __, at __, 355 F. Supp. 3d 1206 at 1222 (2018) (citing Nan Ya
Plastics Corp. v. United States, 810 F.3d 1333, 1337 (Fed. Cir. 2016); QVD Food Co. v.
United States, 658 F.3d 1318, 1324 (Fed. Cir. 2011)). 	Trina did not provide an
explanation of the debt restructuring agreement, evidence of its terms, or information as
to the maturity of the related loan or loans, that would have allowed Commerce to
determine whether the income recorded in 2015 was related entirely to that year or to a
number of years. See Final Decision Memo at 85. Trina’s argument accordingly fails as
Commerce’s determination was not speculative but rather reasonable and based on
substantial evidence. 33
33 Trina further argues that it was arbitrary of Commerce to acknowledge that debt restructuring
(footnote continued)
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V. Commerce’s Rejection of Qixin’s Separate Rate Application
In this administrative review, Qixin was not selected as a mandatory respondent.
On March 10, 2016, Qixin submitted a separate rate application. 	See Qixin’s Separate
Rate Application, PD 107–109, bar code 3447985 (Mar. 10, 2016). Commerce issued a
first and second supplemental questionnaire to Qixin, see First Suppl. Questionnaire to
Qixin, PD 300, bar code 3481536-01 (June 24, 2016); Second Suppl. Questionnaire to
Qixin, PD 474, bar code 3521534 (Nov. 10, 2016), to which Qixin timely submitted
responses. 	See Qixin’s First Suppl. Questionnaire Resp., PD 332, CD 392, bar code
3486020-01 (July 12, 2016); Qixin’s Second Suppl. Questionnaire Resp., PD 481, CD
553, bar code 3523945-01 (Nov. 21, 2016). 	Commerce issued the Preliminary Results
on December 16, 2016, which did not mention Qixin. See Preliminary Results. Qixin filed
an administrative brief on January 25, 2017 challenging the Preliminary Results and
requesting an explanation for Commerce’s omission of Qixin from the Preliminary
Results. 	See Qixin Administrative Case Brief, PD 536, bar code 3538956-01 (Jan. 25,
2017). Commerce did not respond to Qixin’s request for an explanation, and on June 20,
2017, Commerce published the Final Results, in which Commerce explained that Qixin’s
separate rate application had been rejected. See Final Decision Memo at 90–92.
income can be used to offset indirect selling expenses, but then to disallow the offset in the
entirety. 	Trina’s Br. at 18. 	This argument fails for the same reason that Commerce’s
determination is supported by substantial evidence. Commerce acknowledged that Trina’s debt
restructuring income could potentially be used to offset its indirect selling expenses. 	Final
Decision Memo at 85. However, Commerce did not have sufficient record evidence to determine
what portion, if any, of the recorded income from debt restructuring related to the period of review.
Id.; see also Trina’s Sec. C Questionnaire Resp. at Ex. C-10. It is not inconsistent or arbitrary of
Commerce to recognize it would make an offset for debt restructuring income, but to decline to
do so where there is insufficient evidence to determine that deduction in a particular instance.
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Commerce acknowledged that it “inadvertently omitted a discussion of [Qixin’s]
separate rate status from the Preliminary Results,” but reasoned that Qixin “became
aware of the issue through the Department’s supplemental questionnaires.” 	Final
Decision Memo at 91. 	Commerce further explained that the fact that it did not mention
Qixin in the Preliminary Results should have served as an indicator to Qixin that its
application had been rejected. 	Id. 	Qixin now argues that Commerce erred in not
mentioning Qixin in the Preliminary Results, and that Commerce must provide reasonable
notice of a decision and the reasons behind that decision to enable the party to effectively
take part in the administrative process. Qixin’s Br. at 8–9 (quoting NEC Corp. v. United
States, 151 F.3d 1361, 1374 (Fed. Cir. 1998)).
Defendant now acknowledges that Qixin had no opportunity to respond to
Commerce’s denial of its separate rate application and, likewise, Commerce lacked the
opportunity to respond to the arguments Qixin may have made, had it had the opportunity.
Def.’s Br. at 44–45. 	Defendant accordingly requests that the court remand the issue to
Commerce for reconsideration. Id.
The court has discretion in deciding whether to grant a request for remand. 	See
SFK USA Inc. v. United States, 254 F.3d 1022, 1029 (Fed. Cir. 2001). By failing to include
Qixin in the Preliminary Results, Commerce deprived Qixin of the opportunity to respond
substantively to the Department’s position, and thus Qixin did not have an adequate
opportunity to participate in the administrative process. The court therefore remands the
issue to Commerce to reconsider Qixin’s separate rate application.
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CONCLUSION
For the foregoing reasons, it is
ORDERED that Commerce’s surrogate value selections for valuing respondents’
aluminum frames, nitrogen, polysilicon ingots and blocks, and financial ratios are
sustained; and it is further
ORDERED 	that 	Commerce’s 	decision 	to 	include 	import 	data 	with 	reported
quantities of zero in the surrogate value calculations is sustained; and it is further
ORDERED that Commerce’s decision to deny an offset for Trina U.S.’s debt
restructuring income is sustained; and it is further
ORDERED that Commerce’s surrogate value selection for valuing respondents’
module glass is remanded to the agency for reconsideration or further explanation; and it
is further
ORDERED that Commerce’s application of an adverse inference in calculating
Canadian Solar’s dumping rate is remanded to the agency for reconsideration; and it is
further
ORDERED that Commerce’s decision to reject Qixin’s separate rate application is
remanded to the agency for reconsideration; and it is further
ORDERED that Commerce shall file its remand determination with the court within
90 days of this date; and it is further
ORDERED that the parties shall have 30 days thereafter to file comments on the
remand determination; and it is further
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ORDERED that the parties shall have 30 days thereafter to file a reply to comments
on the remand determination.
/s/ Claire R. Kelly
Claire R. Kelly, Judge
Dated:April 16, 2019
New York, New York
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