Solarworld Americas, Inc. v. United States, Yingli Green Energy Holding Co.
Opinion
Appellant SolarWorld Americas, Inc. ("SolarWorld") sued Appellee United States ("the Government") in the U.S. Court of International Trade ("CIT"), challenging the U.S. Department of Commerce's ("Commerce") final results of an administrative review of the antidumping duty order covering crystalline silicon photovoltaic cells, whether or not assembled into modules ("subject merchandise") from the People's Republic of China ("China").
See
Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled into Modules, from the People's Republic of China
,
SolarWorld, a domestic producer of subject merchandise, appeals and argues
*1220
Commerce erred in its calculation of antidumping duty margins. We have jurisdiction pursuant to
BACKGROUND
I. Legal Framework
By statute, antidumping duties may be imposed on foreign merchandise sold, or likely to be sold, "in the United States at less than its fair value."
For every administrative review, Commerce typically must "determine the individual weighted average dumping margin for each known exporter and producer of the subject merchandise."
The statute explains how "normal value shall be determined" "[i]n order to achieve a fair comparison with the export price or constructed export price." 19 U.S.C. § 1677b(a). However, if Commerce determines the exporting country is a "nonmarket economy country"
3
and "finds that available information does not permit the normal value of the subject merchandise to be determined under [ § 1677b(a) ]," then Commerce calculates normal value by valuing the "factors of production" used in producing the merchandise in comparable "market economy country or countries."
II. Procedural History
The present dispute stems from an antidumping duty order that Commerce issued after an investigation and that covers subject merchandise from China.
Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled into Modules, from the People's Republic of China
,
In July 2015, Commerce issued the
Final Results
.
SolarWorld sued the Government, arguing, inter alia, that Commerce should have calculated a higher antidumping duty margin for Yingli because Commerce erred by undervaluing the surrogate values for each of Yingli's inputs.
SolarWorld I
,
DISCUSSION
I. Standard of Review and Legal Standard
We apply the same standard of review as the CIT,
see
Downhole Pipe
, 776 F.3d at 1373, upholding Commerce determinations that are supported "by substantial evidence on the record" and otherwise "in accordance with law," 19 U.S.C. § 1516a(b)(1)(B)(i). "Although we review the decisions of the CIT de novo, we give great weight to the informed opinion of the CIT and it is nearly always the starting point of our analysis."
Nan Ya Plastics Corp. v. United States
,
When valuing factors of production in the nonmarket economy context, the statute directs that Commerce's decision "shall be based on the
best available information
regarding the values of such factors in a market economy country or countries." 19 U.S.C. § 1677b(c)(1) (emphasis added). Commerce has "broad discretion" to determine what constitutes the best available information, as this term "is not defined by statute."
QVD Food Co. v. United States,
II. Commerce's Selection of Surrogate Values for Both Aluminum Frames and Semi-Finished Polysilicon Ingots and Blocks Is Supported by Substantial Evidence and Otherwise in Accordance with Law
A. Aluminum Frames
Commerce determined import data derived from Thai HTS Heading 7604 "constitute[s] the best available information to value Yingli's aluminum frames." J.A. 4542. Commerce found that that heading "pertain[s] to non-hollow aluminum profiles such as those consumed by Yingli in this review," J.A. 4543, and explained that the other data on the record for Thai HTS Heading 7616 "includes products dissimilar to aluminum frames," J.A. 4542. SolarWorld argues Yingli's aluminum frames are not described by Thai HTS Heading 7604's definition of aluminum profiles because *1223 they "are not uniform along their entire length." Appellant's Br. 16 (emphasis omitted). According to SolarWorld, "[b]ecause [Yingli's] aluminum frames have been further processed significantly beyond a mere extrusion, they have lost their character as an aluminum extrusion and have instead taken the form of a fabricated aluminum good," such that they "no longer fit within the definition of a 'profile.' " Id. at 20 (citation omitted). We disagree with SolarWorld.
Substantial evidence supports Commerce's finding that import data under Thai HTS Heading 7604 constitutes the best available information from which to value Yingli's aluminum frames. Thai HTS Heading 7604 covers, inter alia, "[
a
]
luminum
bars, rods[,] and
profiles
," with the relevant subheading selected by Commerce including
non-hollow
profiles. J.A. 2910 (emphases added) (listing hollow profiles in one subheading and, in Thai HTS Subheading 7604.29, which is the relevant subheading, identifying "[o]ther" types of aluminum profiles);
see
J.A. 4542. Heading 7604's explanatory notes
5
describe aluminum profiles as "[r]olled, extruded, drawn, forged[,] or formed products ... of
a uniform cross-section
along their whole length." J.A. 1384 (emphasis added). Yingli's factor of production for "aluminum frame for module installation/transportation" fulfills these criteria, with Yingli's questionnaire responses identifying the aluminum frames as "alloyed
aluminum profiles
that are
not hollow
." J.A. 1430 (emphases added). Regarding uniform cross-section, Commerce appropriately rejected SolarWorld's contention that Yingli's profiles do not have a uniform cross-section and stated "that[,] while certain aluminum frames purchased by [Yingli] contain corners [thereby implying that not all of their cross-sections are uniform], we do not believe that this would necessarily change their classification as aluminum profiles." J.A. 4544. SolarWorld misapprehends Commerce's statutory duty when it argues that "the definitions in the HTS are not mere guidelines or suggestions, but are
statutory
definitions with the force of law" that Commerce must follow. Appellant's Br. 17. Commerce is "not required to engage in a classification analysis" but instead is "required to determine which of the competing subheadings constituted the best available information."
Downhole Pipe
, 776 F.3d at 1379. Consequently, even if some aluminum frames do not contain perfectly uniform cross-sections as discussed in the explanatory note, Thai HTS Heading 7604 still constitutes the best available information under § 1677b(c)(1)(B), given the other similarities detailed above between Yingli's inputs and the products covered by Thai HTS Heading 7604.
See
Home Meridian Int'l Inc. v. United States
,
The plain text of Thai HTS Heading 7604 does not specify whether its reach is limited to unprocessed goods. See J.A. 2910. Heading 7604's explanatory notes, however, state that the heading specifically includes aluminum profiles that are "worked after production." J.A. 1384; see J.A. 1384 (explaining that Heading 7604 "covers cast or sintered products ..., which have been subsequently worked after production ... provided that they have not thereby assumed the character of articles or products of other headings" (emphasis added) ). As a result, that Yingli's frames undergo some processing, such as corner cutting and cleaning, does not automatically remove them from the ambit of Thai HTS Heading 7604. See, e.g. , J.A. 2664 (providing a flowchart of the processing steps). The other surrogate value source on the record is Thai HTS Heading 7616, which, in relevant part, covers products, such as "[n]ails, tacks, staples ..., screws, bolts, nuts, screw hooks, rivets, cotters, cotterpins, [and] washers," as well as "[c]loth, grill, netting[,] and fencing, of aluminum wire." J.A. 1403. Thai HTS Heading 7604's inclusion of aluminum profiles that are "worked after production," J.A. 1384, cuts against selection of Thai HTS Heading 7616, which by its own terms, covers "[ o ] ther articles of aluminum," i.e., those that are not elsewhere specified or included, J.A. 1403 (emphasis added). Commerce appropriately relied on Thai HTS Heading 7604 and supported its selection, recognizing that Thai HTS Heading 7616 "does not include anything similar to aluminum profiles that were further processed into frames" and Thai HTS Heading 7604 is "far more specific" to Yingli's inputs. J.A. 4545; see Downhole Pipe , 776 F.3d at 1379 (affirming Commerce's selection of a surrogate value based on Indian HTS import data where Commerce provided a "well-reasoned explanation of its selection process"). Therefore, substantial evidence supports Commerce's decision to value Yingli's aluminum frames based on Thai HTS Heading 7604.
SolarWorld's counterarguments are unavailing. Specifically, SolarWorld asserts Commerce erred by not following Customs' classification rulings that (1) classified similar aluminum frames under HTSUS Heading 7616 and another HTSUS heading, not at issue here,
see
Appellant's Br. 21; and (2) classified certain
"unfinished
aluminum articles under HTS[US H]eading 7604,"
id.
at 23. According to SolarWorld, these Customs rulings are "uniquely instructive." Reply Br. 10. To the extent SolarWorld argues as a legal matter that Customs' rulings must be afforded more weight than other evidence on the record, we disagree. Whereas Customs is tasked with "fix[ing] the final classification" of imported merchandise under the HTSUS,
Keeping in mind these differing statutory purposes that dictate Customs' and Commerce's respective roles, we
*1225
are informed by Judge Pogue's conclusion in
Jiangsu Jiasheng Photovoltaic Technology Co. v. United States
.
See
Besides its claim of legal error, SolarWorld also invites us to reweigh the evidence already considered by Commerce. For example, SolarWorld avers Commerce " failed to give appropriate weight to," Appellant's Br. 21 (emphasis added), and " failed to appropriately consider " the aforementioned Customs rulings, id. at 23 (emphasis added). However, we may not reweigh the evidence in this case. See Downhole Pipe , 776 F.3d at 1377 ("While Appellants invite this court to reweigh this evidence, this court may not do so."). Accordingly, Commerce properly considered the record evidence to select a surrogate value for Yingli's aluminum frames.
B. Semi-Finished Polysilicon Ingots and Blocks
Commerce determined the world market price for polysilicon is the best available information to value Yingli's semi-finished polysilicon ingots and blocks, as they "are comprised primarily of polysilicon." J.A. 4537. "[B]ecause Yingli self-produces most of its ingots and blocks, [Commerce] ... accounted for the cost of the additional processing required to manufacture most of the ingots and blocks used in production." J.A. 4537. Commerce also noted that "no party submitted a [surrogate value] for ingots and blocks which were purchased." J.A. 4537. SolarWorld contends that Commerce "substantially undervalue[d]" this surrogate value by "valuing Yingli's ingot and block purchases using a value for virgin polysilicon." Appellant's Br. 28. According to SolarWorld, "Yingli's purchased semi-finished ingots and blocks are manufactured from virgin polysilicon that undergoes significant processing ," such that Yingli paid a premium for this input. Id. at 26 (emphasis added). We disagree with SolarWorld.
Substantial evidence supports Commerce's selection of a surrogate value for semi-finished polysilicon ingots and blocks as the best available information on the record. Commerce relied on the world market price for polysilicon, derived from two data sources, to value Yingli's input.
See
J.A. 4537;
see also
J.A. 4359 (laying out Commerce's calculation for this surrogate value in a factor of production valuation memorandum), 4375 (including the $18.19 per kilogram surrogate value in a spreadsheet for Yingli). After conducting a verification of Yingli's sales and factors of
*1226
production, Commerce reported that Yingli's ingots and blocks are manufactured primarily from polysilicon, albeit polysilicon that is then further processed.
See
J.A. 4321. As the CIT observed, Commerce accounted for "processing costs ... for most merchandise" because Yingli's "total purchases of ingots and blocks relative to the volume of ingots and blocks consumed during the period of review ... was
not significant
."
SolarWorld I
,
SolarWorld's primary counterargument is that the record contained sufficient information from which Commerce
could have constructed
a surrogate value for Yingli's semi-finished polysilicon ingots and blocks.
See
Appellant's Br. 29-30;
id.
at 29 (describing a process in which Commerce would begin with the surrogate value for unprocessed polysilicon "and add[ ] to that [the costs associated with] the intermediate items and steps required to produce one unit of silicon ingot or silicon block"). Again, Commerce has "broad discretion" in determining how to value factors of production.
QVD Food
,
Simply because an agency
may
deviate from its practice by "explain[ing] the reason for its departure,"
Allegheny Ludlum Corp. v. United States
,
CONCLUSION
We have considered SolarWorld's remaining arguments and find them unpersuasive. Accordingly, the Judgment of the U.S. Court of International Trade is
AFFIRMED
In June 2015, Congress amended the statutes containing the antidumping provisions.
See
Trade Preferences Extension Act of 2015 ("TPEA"), Pub. L. No. 114-27, § 502,
"When the foreign producer or exporter sells directly to an
unaffiliated
purchaser in the United States, Commerce uses [export price] as the U.S. price for purposes of the comparison."
Micron Tech., Inc. v. United States
,
A "nonmarket economy country" is "any foreign country that [Commerce] determines does not operate on market principles of cost or pricing structures, so that sales of merchandise in such country do not reflect the fair value of the merchandise."
Commerce's selection of these surrogate values in the
Final Results
was unchanged from its preliminary results of the review.
See
Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled into Modules, from the People's Republic of China
,
"The World Customs Organization publishes the [explanatory notes] as its official interpretation of the Harmonized Commodity Description and Coding System [ ('the Harmonized System') ], the global system of trade nomenclature ...."
Schlumberger Tech. Corp. v. United States
,
Reference
- Full Case Name
- SOLARWORLD AMERICAS, INC., Plaintiff-Appellant Goal Zero, LLC, Plaintiff v. UNITED STATES, Yingli Green Energy Holding Company Limited, Yingli Green Energy Americas, Inc., Yingli Energy (China) Co., Ltd., Baoding Tianwei Yingli New Energy Resources Co., Ltd., Tianjin Yingli New Energy Resources Co., Ltd., Hengshui Yingli New Energy Resources Co., Ltd., Lixian Yingli New Energy Resources Co., Ltd., Baoding Jiasheng Photovoltaic Technology Co., Ltd., Beijing Tianneng Yingli New Energy Resources Co., Ltd., Hainan Yingli New Energy Resources Co., Ltd., Defendants-Appellees Jinko Solar Import & Export Co., Ltd., Jinkosolar International Limited, Jinko Solar Co., Ltd., Changzhou Trina Solar Energy Co., Ltd., Trina Solar (Changzhou) Science & Technology Co., Ltd., Defendants
- Cited By
- 28 cases
- Status
- Published