Case: 19-1591    Document: 104   Page: 1   Filed: 06/24/2020




    United States Court of Appeals
        for the Federal Circuit
                  ______________________

           SOLARWORLD AMERICAS, INC.,
               Plaintiff-Cross-Appellant
                           v.

                    UNITED STATES,
                    Defendant-Appellee

           DEPARTMENT OF COMMERCE,
                   Defendant

                            v.

                TRINA SOLAR (U.S.) INC.,
                       Defendant

   YINGLI GREEN ENERGY HOLDING COMPANY
  LIMITED, YINGLI GREEN ENERGY AMERICAS,
      INC., YINGLI ENERGY (CHINA) CO., LTD.,
     BAODING TIANWEI YINGLI NEW ENERGY
    RESOURCES CO., LTD., BEIJING TIANNENG
   YINGLI NEW ENERGY RESOURCES CO., LTD.,
 TIANJIN YINGLI NEW ENERGY RESOURCES CO.,
       LTD., HENGSHUI YINGLI NEW ENERGY
    RESOURCES CO., LTD., LIXIAN YINGLI NEW
     ENERGY RESOURCES CO., LTD., BAODING
  JIASHENG PHOTOVOLTAIC TECHNOLOGY CO.,
 LTD., HAINAN YINGLI NEW ENERGY RESOURCES
    CO., LTD., SHENZHEN YINGLI NEW ENERGY
  RESOURCES CO., LTD., CANADIAN SOLAR, INC.,
 CANADIAN SOLAR (USA), INC., CANADIAN SOLAR
       MANUFACTURING (CHANGSHU), INC.,
        CANADIAN SOLAR MANUFACTURING
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 2              SOLARWORLD AMERICAS, INC.   v. UNITED STATES



         (LUOYANG), INC., CANADIAN SOLAR
     INTERNATIONAL LIMITED, BYD (SHANGLUO)
      INDUSTRIAL CO., LTD., SHANGHAI BYD CO.,
                       LTD.,
                Defendants-Appellees

     CHANGZHOU TRINA SOLAR ENERGY CO., LTD.,
       TRINA SOLAR (CHANGZHOU) SCIENCE &
      TECHNOLOGY CO., LTD., YANCHENG TRINA
       SOLAR ENERGY TECHNOLOGY CO., LTD.,
     CHANGZHOU TRINA SOLAR YABANG ENERGY
     CO., LTD., TURPAN TRINA SOLAR ENERGY CO.,
     LTD., HUBEI TRINA SOLAR ENERGY CO., LTD.,
                   Defendants-Appellants
                  ______________________

                   2019-1591, 2019-1593
                  ______________________

     Appeals from the United States Court of International
 Trade in Nos. 1:16-cv-00132-CRK, 1:16-cv-00134-CRK,
 1:16-cv-00135-CRK, Judge Claire R. Kelly.
                 ______________________

                  Decided: June 24, 2020
                  ______________________

    TIMOTHY C. BRIGHTBILL, Wiley Rein, LLP, Washington,
 DC, argued for plaintiff-cross-appellant. Also represented
 by TESSA V. CAPELOTO, DOUGLAS C. DREIER, LAURA EL-
 SABAAWI, USHA NEELAKANTAN, STEPHEN JOSEPH
 OBERMEIER, JOHN ALLEN RIGGINS, ADAM MILAN TESLIK,
 MAUREEN E. THORSON, ENBAR TOLEDANO.

     NEIL R. ELLIS, Sidley Austin LLP, Washington, DC,
 argued for defendants-appellees Yingli Green Energy
 Holding Company Limited, Yingli Green Energy Americas,
 Inc., Yingli Energy (China) Co., Ltd., Baoding Tianwei
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 SOLARWORLD AMERICAS, INC.   v. UNITED STATES                3



 Yingli New Energy Resources Co., Ltd., Beijing Tianneng
 Yingli New Energy Resources Co., Ltd., Tianjin Yingli New
 Energy Resources Co., Ltd., Hengshui Yingli New Energy
 Resources Co., Ltd., Lixian Yingli New Energy Resources
 Co., Ltd., Baoding Jiasheng Photovoltaic Technology Co.,
 Ltd., Hainan Yingli New Energy Resources Co., Ltd.,
 Shenzhen Yingli New Energy Resources Co., Ltd.,
 Canadian Solar, Inc., Canadian Solar (USA), Inc.,
 Canadian Solar Manufacturing (Changshu), Inc.,
 Canadian Solar Manufacturing (Luoyang), Inc., Canadian
 Solar International Limited. Also represented by SHAWN
 MICHAEL HIGGINS.

     CRAIG A. LEWIS, Hogan Lovells US LLP, Washington,
 DC, for defendants-appellees BYD (Shangluo) Industrial
 Co., Ltd., Shanghai BYD Co., Ltd.

    TARA K. HOGAN, Commercial Litigation Branch, Civil
 Division, United States Department of Justice,
 Washington, DC, argued for defendant-appellee United
 States. Also represented by JOSEPH H. HUNT, REGINALD
 THOMAS BLADES, JR., JEANNE DAVIDSON; BRENDAN SASLOW,
 MERCEDES MORNO, Office of the Chief Counsel for Trade
 Enforcement & Compliance, United States Department of
 Commerce, Washington, DC.

    JONATHAN FREED, Trade Pacific PLLC, Washington,
 DC, argued for defendants-appellants. Also represented by
 ROBERT GOSSELINK.
                  ______________________

   Before PROST, Chief Judge, DYK and O’MALLEY, Circuit
                          Judges.
 DYK, Circuit Judge.
      Defendants Changzhou Trina Solar Energy Co., Ltd. et
 al. (“Trina”) appeal decisions of the United States Court of
 International Trade (“CIT”) regarding the first
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 4              SOLARWORLD AMERICAS, INC.   v. UNITED STATES



 administrative review of an antidumping duty order on
 crystalline silicon photovoltaic cells from the People’s
 Republic of China (“PRC” or “China”). Plaintiff SolarWorld
 Americas, Inc. (“SolarWorld”) cross-appeals. We affirm in
 part, vacate in part, and remand.
                       BACKGROUND
      “Dumping occurs when a foreign firm sells a product in
 the United States at a price lower than the product’s
 normal value.” Home Prod. Int’l, Inc. v. United States, 633
 F.3d 1369, 1372 (Fed. Cir. 2011). The Tariff Act of 1930,
 codified at 19 U.S.C. § 1202 et seq., authorizes the
 government to impose on dumped products “an
 antidumping duty . . . in an amount equal to the amount by
 which the normal value exceeds the export price” of the
 products. 19 U.S.C. § 1673. “For exporters based in
 market economy . . . countries, [the normal value] is
 generally the price at which the firm sells the product in
 its home market.” Home Prod., 633 F.3d at 1372 (citing 19
 U.S.C. § 1677b(a)(1)(B)(i)). Where the exporter is located
 in a non-market economy, “the default rule is that [the
 normal value] is calculated based on a factors-of-
 production analysis whereby each input is valued based on
 data from a surrogate [market economy] country.” Id.
 (citing 19 U.S.C. § 1677b(a)(1)(B)(ii)). The government is
 required to separately determine a weighted average
 dumping margin for “each known exporter and producer,”
 unless “not practicable.” See 19 U.S.C. § 1677f-1(c).
     On December 7, 2012, the Department of Commerce
 (“Commerce”) issued an antidumping duty order on
 crystalline silicon photovoltaic cells from China. On
 February 4, 2015, Commerce initiated the first
 administrative review of this antidumping duty order,
 covering the period December 1, 2013, through November
 30, 2014 (“Period of Review”). Included as mandatory
 respondents in this review were Trina, Yingli Green
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 SOLARWORLD AMERICAS, INC.   v. UNITED STATES                5



 Energy Holding Company Limited et al. (“Yingli”), and
 BYD (Shangluo) Industrial Co., Ltd. et al. (“BYD”).
 Commerce published its final determination (“Final
 Results”) on June 13, 2016.
     SolarWorld, Trina, Yingli, and BYD brought suit
 against the government in the CIT, each challenging
 aspects of Commerce’s Final Results under 19 U.S.C
 § 1516a(a)(2). SolarWorld, a domestic producer, argued
 that the antidumping duty rates were too low. Trina,
 Yingli, and BYD, foreign producers, argued that their
 antidumping duty rate was too high. After remands on
 October 18, 2017, and May 18, 2018, the CIT sustained
 Commerce’s determinations on December 13, 2018.
 Commerce calculated a dumping margin of 6.55% for
 Trina, 0% for Yingli, and 8.52% for BYD.
     SolarWorld, Trina, and BYD appeal. We describe the
 particular challenges to the antidumping determinations
 and the CIT’s rulings below. We have jurisdiction under
 28 U.S.C. § 1295(a)(5).
                        DISCUSSION
     We review the CIT’s decision to sustain Commerce’s
 final results and its remand redeterminations de novo. See
 U.S. Steel Corp. v. United States, 621 F.3d 1351, 1357 (Fed.
 Cir. 2010). We will affirm Commerce unless its decision is
 “unsupported by substantial evidence on the record, or
 otherwise not in accordance with law.”            19 U.S.C.
 § 1516a(b)(1)(B)(i).
                              I
     We first address Trina’s argument that Commerce
 overstated its dumping duty by using Thai import data to
 value Trina’s nitrogen input.
     Where an exporter is from a non-market economy
 (here, China), 19 U.S.C. § 1677b(c)(1) directs Commerce to
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 6               SOLARWORLD AMERICAS, INC.    v. UNITED STATES



 determine the “normal price” of merchandise subject to an
 antidumping duty “on the basis of the value of the factors
 of production utilized in producing the merchandise.” “The
 evaluation of the factors of production shall be based on the
 best available information regarding the values of such
 factors in a market economy country or countries
 considered to be appropriate by [Commerce].”               Id.
 (emphasis added). This statutory directive reflects “the
 intent of Congress . . . that Commerce should avoid the use
 of distorted surrogate prices.” Nation Ford Chem. Co. v.
 United States, 166 F.3d 1373, 1378 (Fed. Cir. 1999).
      Section 1677b is implemented by 19 C.F.R. § 351.408,
 which provides, in relevant part, that “[Commerce]
 normally will use publicly available information to value
 factors,” and that Commerce “normally will value all
 factors in a single surrogate country.” Commerce has a
 practice of “resort[ing] to a secondary surrogate country . . .
 if data from the primary surrogate country [is] unavailable
 or unreliable.” J.A. 746.
     “In determining the valuation of the factors of
 production, ‘the critical question is whether the
 methodology used by Commerce is based on the best
 available information and establishes the antidumping
 margins as accurately as possible.’” Zhejiang DunAn
 Hetian Metal Co. v. United States, 652 F.3d 1333, 1341
 (Fed. Cir. 2011) (quoting Shakeproof Assembly Components
 v. United States, 268 F.3d 1376, 1382 (Fed. Cir. 2001)).
 Thus, a “surrogate value must be as representative of the
 situation in the [non-market economy] country as is
 feasible.” SeAH Steel VINA Corp. v. United States, 950
 F.3d 833, 845 (Fed. Cir. 2020) (quoting Nation Ford, 166
 F.3d at 1377). “This court’s duty is ‘not to evaluate whether
 the information Commerce used was the best available, but
 rather whether a reasonable mind could conclude that
 Commerce chose the best available information.’”
 Zhejiang, 652 F.3d at 1341 (quoting Goldlink Indus. Co. v.
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 SOLARWORLD AMERICAS, INC.   v. UNITED STATES                7



 United States, 431 F. Supp. 2d 1323, 1327 (Ct. Int’l Trade
 2006)).
     Commerce here selected Thailand as “the primary
 surrogate country” under 19 C.F.R. § 351.408 and
 calculated a surrogate value for Trina’s nitrogen input
 using Thai import data published by the Global Trade
 Atlas (“GTA”). J.A. 704. The GTA records the quantity and
 value of imports into countries by Harmonized Tariff
 Schedule (“HTS”) classification. Commerce found the Thai
 GTA nitrogen data to be “reliable.” J.A. 707. The GTA
 data indicated an overall average unit value (“AUV”) of
 $11.68 per kilogram for nitrogen during the period of
 review, which Commerce adopted as the surrogate value
 for Trina’s nitrogen input. The CIT sustained that
 determination, concluding that Trina had failed to show
 that the Thai GTA data were aberrational.
      Trina asserts that Commerce erred in using the Thai
 GTA data because it was not the best available information
 to value Trina’s nitrogen gas input. Trina asserts that the
 Thai GTA data was “exceedingly aberrational” when
 compared to alternative surrogate values. Appellant’s
 Br. 12. We agree with Trina that Commerce has not
 provided a persuasive reason for using the Thai GTA data
 in light of unrebutted evidence of its unreliability.
     A table showing GTA nitrogen data for each of the six
 “potential surrogate countries” identified by Commerce,
 J.A. 705, is reproduced below:
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 8                SOLARWORLD AMERICAS, INC.       v. UNITED STATES



     Source     Quantity      Value         AUV          % of
                 (kgs)        (USD)       (USD/kg)      Total
                                                       Quantity

  Bulgaria      10,657,309   953,544      0.09         86.44%

  Romania       1,575,456    199,446      0.13         12.78%

  Thailand      47,618       556,305      11.68        0.39%

  South         24,043       131,325      5.46         0.20%
  Africa

  Ecuador       18,462       89,414       4.84         0.15%

  Ukraine       6,750        531,537      78.75        0.05%

  Total         12,329,638   2,461,571    0.20         100%

 J.A. 813–29.
     The government contends that Commerce’s use of Thai
 GTA data was reasonable because it “was within the range
 of [average unit values] for the other potential surrogate
 countries [other than Thailand], including Bulgaria
 ($0.09/kg), Romania ($0.13[/kg]), Ecuador ($4.84[/kg]),
 South Africa ($5.46[/kg]), and Ukraine ($78.75/kg).”
 United States’ Br. 17. In essence, the government argues
 that Commerce reasonably relied on a “bookend”
 methodology to find the Thai data reliable because its
 average unit value was neither the highest nor the lowest
 of the potential surrogate countries. Id. But the use of a
 bookend methodology here is illogical because it fails to
 account for the fact that countries on one end of the
 bookend (Bulgaria and Romania) account for the vast
 majority (99.22%) of the recorded nitrogen imports, that
 these countries have a substantially lower average unit
 value than that of Thailand, and that the other countries
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 SOLARWORLD AMERICAS, INC.   v. UNITED STATES                9



 to which Commerce compares the Thai average unit value
 (the other end of the bookend) together represent only a
 fraction of a percent of the quantity (about 0.40%) recorded
 in the GTA.
     In this respect, Commerce’s decision here to use the
 Thai GTA data also appears inconsistent with its usual
 practice.    Commerce’s longstanding “administrative
 practice with respect to aberrational data is ‘to disregard
 small-quantity import data [from the primary surrogate
 country] when the per-unit value is substantially different
 from the per-unit values of the larger quantity imports of
 that product from other [potential surrogate] countries.’”
 Shakeproof Assembly Components Div. of Illinois Tool
 Works, Inc. v. United States, 59 F. Supp. 2d 1354 (Ct. Int’l
 Trade 1999) (quoting Heavy Forged Hand Tools, Finished
 or Unfinished, With or Without Handles, From the People’s
 Republic of China; Final Results of Antidumping Duty
 Administrative Reviews, 63 Fed. Reg. 16758, 16761 (April
 6, 1998)). The Thai GTA data is “small-quantity” (0.39%),
 and the per-unit value of the Thai GTA data ($11.68/kg) is
 “substantially different” from the per-unit values GTA data
 for the two countries with “larger quantity imports”:
 Bulgaria ($0.09/kg) and Romania ($0.13/kg). Under these
 circumstances, the use of Thai data appears to be
 inconsistent with Commerce’s own approach in past cases.
     Commerce has also failed to explain how the Thai GTA
 data can be reconciled with data from the United States
 International Trade Commission’s (“ITC”) Dataweb
 website, which records exports from the United States to
 other countries. As relevant here, that data is nitrogen
 exports from the United States to Thailand during the
 Period of Review. As previously mentioned, the Thai GTA
 data records imports into Thailand from other countries
 (including the United States) during the Period of Review.
 Commerce admits that the ITC data and Thai GTA data
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  10             SOLARWORLD AMERICAS, INC.    v. UNITED STATES



  for imports from the United States thus relate to the same
  real-world transactions.
      The ITC data indicated that about 136 times more
  nitrogen was exported from the United States into
  Thailand (roughly 586,305 kg) than the GTA data
  indicated was imported into Thailand from the United
  States (4,298 kg). And the ITC data indicated an average
  unit value for nitrogen of $0.16/kg, as opposed to the GTA
  value of $11.68/kg.
      The ITC data and the Thai GTA data cannot both be
  correct, as Commerce appears to admit.          See Oral
  Argument, 35:55-36:04 (when asked whether the Thai
  GTA data and the ITC data can both be correct, the
  government stated “probably not”). Commerce has not
  explained why the Thai GTA data is a more accurate record
  of these transactions than the ITC data, admitting that it
  “just do[es]n’t know” which is accurate. Oral Argument,
  36:40-49.
      The government asserts that the ITC data is irrelevant
  because “Commerce’s preference [is] to use import data for
  surrogate values[] [to enable] comparison between similar
  datasets,” and that “the value of U.S. exports to Thailand,
  which reflects only one data point, does not represent a
  broad-market average.” United States’ Br. 19. But
  Commerce’s preference for GTA data does not excuse its
  failure to reconcile the admitted inconsistency.
      In sum, Commerce has not provided sufficient
  justification for its conclusion that the Thai GTA data was
  the “best available information” from which to value
  Trina’s nitrogen input. See SEC v. Chenery Corp., 318 U.S.
  80, 95 (1943). We remand to the CIT for Commerce to
  either adequately explain why the Thai GTA data is not
  aberrational or to adopt an alternative surrogate value for
  Trina’s nitrogen input.
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  SOLARWORLD AMERICAS, INC.   v. UNITED STATES              11



                               II
       We next turn to Trina’s contention that Commerce
  erred by using records for which a zero quantity of imports
  was recorded to calculate the average unit value for dozens
  of its inputs.
      The GTA records the import value and the import
  quantity for import transactions into a country. To
  determine the surrogate value for an input, Commerce
  calculates the average unit value of all imports of the input
  into the surrogate country during the period of review. The
  average unit value for an input is calculated as the total
  sum of import values (i.e., the total dollar value of all
  inputs) divided by the total sum of import quantities.
      Here, the Thai GTA import data relied upon by
  Commerce to calculate the surrogate value for several of
  Trina’s inputs included transactions for which a non-zero
  value was recorded but a quantity of zero was recorded. 1
  Trina asserts that the use of these transactions was
  “mathematically incorrect” because       “[t]he result of
  including these data was that the numerators in the
  surrogate value calculations increased while the
  denominators remained the same.” Trina’s Appellant’s Br.
  22.
      We do not reach Trina’s contention that Commerce’s
  use of zero-quantity data is incorrect because we find that
  Trina has not satisfied its burden to show that it suffered
  harm as a result of the purported error. “[T]he party that
  ‘seeks to have a judgment set aside because of an erroneous
  ruling carries the burden of showing that prejudice


      1   Commerce asserts that these zero-quantity
  transactions were the result of the rounding down to zero
  of transactions with an actual quantity of less than 0.05 of
  the quantity unit.
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  12              SOLARWORLD AMERICAS, INC.    v. UNITED STATES



  resulted.’” Shinseki v. Sanders, 556 U.S. 396, 409 (2009)
  (quoting Palmer v. Hoffman, 318 U.S. 109 (1943)).
  “Consequently, the burden of showing that an error is
  harmful normally falls upon the party attacking the
  agency’s determination.” Id. In the antidumping context,
  a party challenging a purported error by Commerce must
  show that it was harmed as a result of the error. See
  Suntec Indus. Co. v. United States, 857 F.3d 1363, 1367
  (Fed. Cir. 2017) (affirming judgment against foreign
  exporter because exporter failed to show prejudice caused
  by Commerce’s purported error). 2
      The record indicates that Commerce’s decision to use
  zero-quantity data—whether or not correct—had
  essentially no impact on Trina’s antidumping duty rate.
  Commerce explained:
       Importantly, removal of the zero-quantity entries
       has almost no impact on almost any of the AUVs.
       For 70 of the 76 different HTS categories of GTA
       import data on the record, the difference between
       the AUV of the data including zero-quantity
       imports and the AUV of the data without zero-
       quantity imports rounds to zero percent; for four
       other HTS categories, the difference is one percent.
       The differences for the other two HTS categories
       are two and five percent. The average difference of
       the 76 different HTS categories is 0.16 percent of



       2   The review in Suntec was under 28 U.S.C.
  § 2640(e). Section 2640(e) expressly incorporates section
  706 of the Administrative Procedure Act (“APA”), which
  includes a harmless-error review provision. The review
  here is under 28 U.S.C. § 2640(b), which does not expressly
  refer to section 706. Even so, section 706 review applies
  since no law provides otherwise. Dickinson v. Zurko, 527
  U.S. 150, 154 (1999); 5 U.S.C. § 706.
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  SOLARWORLD AMERICAS, INC.   v. UNITED STATES               13



      the total value of imports of the HTS category.
      Meanwhile, the removed 647 zero-quantity imports
      account for 6.9 percent of the data points on the
      record. Removing the zero-quantity imports would
      have almost no impact on Trina’s margin, despite
      the zero-quantity entries accounting for 6.9 percent
      of the import data . . . .
  J.A. 794 (emphasis added).
      This analysis by Commerce suggests that the effect of
  the alleged error was so small as to be negligible. Trina
  provided no rebuttal to Commerce’s analysis, admitting at
  oral argument that it could not provide “the exact impact
  here,” and that “the impact on a percent basis is small.”
  Oral Argument, 12:27–35, 14:50–15:03.
      Trina’s position is that if Commerce made a
  mathematical error here, it would be per se prejudicial
  regardless of the practical effect of that error. There is no
  such per se rule, and Trina’s position is directly contrary to
  the harmless-error rule.
     We affirm the CIT’s decision to sustain Commerce’s use
  of zero-quantity data because Trina has failed to
  demonstrate that the alleged error, if there was an error,
  was harmful.
                               III
      We next turn to cross-appellant SolarWorld’s
  contention that the dumping margin was understated
  because Commerce undervalued Trina’s and Yingli’s solar-
  module backsheets.
      Yingli’s backsheets are made primarily of polyethylene
  terephthalate (“PET”). Some of Trina’s backsheets are
  made primarily from PET, and others primarily from
  ethylene-vinyl acetate (“EVA”).
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  14              SOLARWORLD AMERICAS, INC.    v. UNITED STATES



      To value Yingli’s backsheets and Trina’s PET
  backsheets, Commerce used Thai HTS subheading
  3920.62, which covers PET plates and sheets. 3 To value
  Trina’s EVA backsheets, Commerce used Thai HTS
  subheading 3920.10, which covers plates and sheets of
  polymers of ethylene (such as EVA). 4 The CIT sustained
  that determination.
      SolarWorld contends that Commerce’s use of these
  HTS numbers undervalued Yingli’s and Trina’s backsheets
  because the numbers fail to take into account the technical
  complexity of the backsheets.        As support for this
  contention, SolarWorld relies on evidence that the actual
  market-economy prices paid by Yingli and Trina were
  substantially higher than the average unit values
  calculated from the HTS numbers used by Commerce. To
  SolarWorld, Commerce should instead have used Thai HTS
  subheading 3920.99 (covering plates and sheets of “other”
  plastics, i.e., those not in any other subheading of 3920,
  such as 3920.10, 3920.62) for all of Yingli’s and Trina’s
  backsheets.
      SolarWorld has not met its burden to show error. As
  Commerce found and SolarWorld does not dispute, there is
  no HTS number specific to solar-grade backsheets.
  Commerce explained that it chose HTS subheading
  3920.62 for Yingli’s backsheets and Trina’s PET
  backsheets because this classification takes into account
  that the backsheets are comprised primarily of PET.
  Commerce similarly explained that it chose HTS
  subheading 3920.10 for Trina’s EVA backsheets because
  this classification is specific to ethylene products (such as


       3 More specifically, Commerce used Thai HTS No.
  3920.62.00090.
     4   More specifically, Commerce used Thai HTS No.
  3920.10.00090.
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  SOLARWORLD AMERICAS, INC.   v. UNITED STATES              15



  EVA).     Commerce rejected classification under HTS
  subheading 3920.99 because the subheading is not specific
  to the material. Commerce’s reasonable choice of the more
  specific HTS categories is supported by substantial
  evidence. See Lifestyle Enter., Inc. v. United States, 751
  F.3d 1371, 1379 (Fed. Cir. 2014) (affirming Commerce’s use
  of one of two “imperfect” datasets after it “acknowledged
  and evaluated potential problems in using either” dataset).
  Commerce also did not err in discounting SolarWorld’s
  evidence that the backsheets purchased by Yingli and
  Trina from market economies were higher-priced than the
  average unit values of HTS categories 3920.10 and
  3920.62. We find Commerce reasonably followed its
  practice of finding such information unpersuasive because
  “a respondent’s market economy purchase prices are
  proprietary information and are not necessarily
  representative of industry-wide prices available to other
  producers.” J.A. 727–28. We affirm the CIT.
                               IV
      We finally turn to SolarWorld’s contention that
  Commerce’s use of Thai GTA data to value Yingli’s
  tempered glass input was appropriate and that the CIT
  erred in holding the data could not be used.
      The CIT concluded that Commerce failed to
  persuasively explain why it used Thai GTA data in light of
  distortions by aberrational imports from Hong Kong. The
  CIT remanded for Commerce to justify its use of the Thai
  data or adopt an alternative surrogate value. On remand,
  Commerce provided additional explanation for its use of
  the Thai data. The CIT found Commerce’s additional
  justification unpersuasive and again remanded. On this
  second remand, Commerce used under protest Bulgarian
  GTA data to value Yingli’s tempered glass input. The
  government does not on appeal argue that the CIT erred in
  remanding to Commerce, but SolarWorld does.
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  16             SOLARWORLD AMERICAS, INC.    v. UNITED STATES



      We agree with the CIT that Commerce did not
  adequately justify its use of the Thai GTA data. The
  imports from Hong Kong have a unit value 191 times
  higher than the average unit value for imports into
  Thailand from other countries. Thus, even though the
  Hong Kong imports constitute only 1.6% of Thailand’s
  import quantity, their inclusion causes the Thai average
  unit value to be quadrupled. “There is no reason to
  incorporate the distortions in the surrogate market into a
  hypothetical respondent market.” SeAH, 950 F.3d at 845
  (quoting Nation Ford, 166 F.3d at 1378) (alterations
  omitted).
      SolarWorld asserts that Commerce’s original decision
  to use the Thai data is consistent with its earlier decision
  in Wood Flooring. See Issues and Decision Mem. for the
  Final Results of the 2012–2013 Admin. Review of
  Multilayered Wood Flooring from the PRC, No. A-570-970
  (July 8, 2015) (“Wood Flooring”). To SolarWorld, because
  the overall Thai average unit value for tempered glass
  ($4.14/kg) is in line with that of other potential surrogate
  countries (Ecuador at $2.75/kg, and Ukraine at $5.89/kg),
  Commerce reasonably concluded that the Thai data was
  not aberrational.
      As the CIT concluded, SolarWorld’s reliance on Wood
  Flooring is misplaced. In Wood Flooring, Commerce
  rejected an argument that imports to Thailand from
  Taiwan and the United States should be excluded from an
  average-unit-value calculation because they were
  aberrantly low in price. The “imports from Taiwan and the
  United States represent[ed] the vast majority of imports
  into Thailand (77.1%) and, therefore, [were] a true
  representation of market-driven prices.” Wood Flooring, at
  43. Here, by contrast, imports from Hong Kong constitute
  only 1.6% of imports into Thailand, so cannot be said to be
  “a true representation of market-driven prices.” See id.
Case: 19-1591     Document: 104     Page: 17     Filed: 06/24/2020




  SOLARWORLD AMERICAS, INC.   v. UNITED STATES              17



      SolarWorld’s contention that the Hong Kong imports
  were not in fact aberrationally high is similarly
  unpersuasive. SolarWorld notes that the average unit
  prices of imports from the United States and the
  Netherlands into Thailand were greater than the average
  unit price of imports from Hong Kong. But imports from
  those countries constitute an infinitesimal fraction
  (0.0236% and 0.0003%, respectively) of total imports into
  Thailand, and do not indicate that the Hong Kong price
  was representative of the market.
      We affirm the CIT’s remand to Commerce to further
  explain or reconsider its decision to use the Thai GTA data
  to value Yingli’s tempered glass input.
                         CONCLUSION
      We vacate the CIT’s judgment sustaining Commerce’s
  decision to use Thai GTA data to value Trina’s nitrogen
  input.    We affirm the CIT’s judgment sustaining
  Commerce’s decision to use zero-quantity data. We affirm
  the CIT’s judgment declining to set aside Commerce’s use
  of Thai HTS subheadings 3920.62 and 3920.10 to value
  Trina’s and Yingli’s backsheets. We affirm the CIT’s
  judgment remanding to Commerce to further justify or
  reconsider its use of Thai GTA data to value Yingli’s
  tempered glass input. We remand the case for further
  proceedings consistent with this opinion.
    AFFIRMED IN PART, VACATED IN PART, AND
                  REMANDED
                            COSTS
      No costs.
