United States Court of Appeals 

for the Federal Circuit ______________________

CHANGZHOU TRINA SOLAR ENERGY CO., LTD., 

TRINA SOLAR (CHANGZHOU) SCIENCE & 

TECHNOLOGY CO., LTD., TRINA SOLAR (U.S.) 

INC.,

Plaintiffs-Appellees

v.

UNITED STATES,

Defendant-Appellee

v.

SOLARWORLD AMERICAS, INC.,

Defendant-Appellant

______________________

2020-1004

______________________

Appeal from the United States Court of International 

Trade in Nos. 1:17-cv-00199-CRK, 1:17-cv-00217-CRK, 

Judge Claire R. Kelly.

______________________

Decided: September 3, 2020

______________________

JONATHAN FREED, Trade Pacific PLLC, Washington, 

DC, argued for plaintiffs-appellees. Also represented by 

ROBERT GOSSELINK. 

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2 CHANGZHOU TRINA SOLAR ENERGY v. UNITED STATES

 JOSHUA E. KURLAND, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by ETHAN P. DAVIS, JEANNE DAVIDSON, REGINALD 

THOMAS BLADES, JR.; IAN ANDREW MCINERNEY, Office of 

the Chief Counsel for Trade Enforcement and Compliance, 

United States Department of Commerce, Washington, DC. 

 TIMOTHY C. BRIGHTBILL, Wiley Rein, LLP, Washington, 

DC, argued for defendant-appellant. Also represented by 

LAURA EL-SABAAWI, DOUGLAS C. DREIER, STEPHEN JOSEPH 

OBERMEIER, JOHN ALLEN RIGGINS, ENBAR TOLEDANO. 

 ______________________

Before DYK, WALLACH, and CHEN, Circuit Judges.

WALLACH, Circuit Judge.

Appellees Changzhou Trina Solar Energy Co., Ltd., 

Trina Solar (Changzhou) Science & Technology Co., Ltd., 

and Trina Solar (U.S.), Inc. (collectively, “Trina”) filed suit 

against Appellee the United States (“Government”) in the 

U.S. Court of International Trade (“CIT”), challenging the 

U.S. Department of Commerce’s (“Commerce”) final results

in the first administrative review of the antidumping (“antidumping” or “AD”) duty order covering certain crystalline 

silicon photovoltaic products from the People’s Republic of 

China (“PRC”). See Certain Crystalline Silicon Photovoltaic Products From the People’s Republic of China, 82 Fed. 

Reg. 32,170, 32,172 (Dep’t of Commerce July 12, 2017) (final results) (“Final Results”). Appellant SolarWorld Americas, Inc. (“SolarWorld”), a domestic producer of like 

products, participated as petitioner and defendant-intervenor. The CIT remanded “Commerce’s decision not to offset” 

Trina’s export price by a countervailed export subsidy as 

“contrary to law,” instructing Commerce “to recalculate 

Trina’s [export] price[]” with the offset, while sustaining, 

inter alia, “Commerce’s surrogate value selection[] for 

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CHANGZHOU TRINA SOLAR ENERGY v. UNITED STATES 3

valuing . . . module glass.” Changzhou Trina Solar Energy 

Co. v. United States (Trina I), 359 F. Supp. 3d 1329, 1344 

(Ct. Int’l Trade 2019). Commerce issued its remand redetermination, recalculating Trina’s export price in accordance with Trina I, under protest. J.A. 6764–65; see J.A. 

6764–70 (Remand Redetermination). The CIT sustained 

Commerce’s Remand Redetermination. See Changzhou 

Trina Solar Energy Co. v. United States (Trina II), 393 F. 

Supp. 3d 1245, 1251 (Ct. Int’l Trade 2019); J.A. 16–17 

(Judgment).

SolarWorld appeals. We have jurisdiction pursuant to 

28 U.S.C. § 1295(a)(5). We affirm. 

BACKGROUND

I. Legal Framework 

Antidumping duties may be imposed on “foreign merchandise [that] is being, or is likely to be, sold in the United 

States at less than its fair value.” 19 U.S.C. § 1673(1). Domestic industries may seek “relief from [such] imports,” Allegheny Ludlum Corp. v. United States, 287 F.3d 1365, 

1368 (Fed. Cir. 2002), by filing a petition with Commerce 

and the U.S. International Trade Commission (“ITC”) to initiate an antidumping duty investigation, see 19 U.S.C. 

§§ 1673a(b), 1677(9)(C). Following investigation, if Commerce determines that imported merchandise “is being, or 

is likely to be, sold in the United States at less than its fair 

value,” id. § 1673(1), and the ITC determines that the importation or sale of that merchandise has “materially injured” or “threaten[s]” to “materially injur[e]” “an industry 

in the United States,” id. § 1673(2), then Commerce will 

“publish an antidumping duty order . . . direct[ing] [U.S. 

Customs and Border Protection] to assess . . . antidumping 

dut[ies]” on subject merchandise, id. § 1673e(a)(1). Each 

year after the order is published, “if [Commerce receives] a 

request for . . . review” of that order from an interested 

party, Commerce will “review[] and determine . . . the 

amount of any antidumping duty” under the order. Id.

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4 CHANGZHOU TRINA SOLAR ENERGY v. UNITED STATES

§ 1675(a)(1)(B) (providing for the “[p]eriodic review of [the] 

amount of duty”); see 19 C.F.R. § 351.213(b) (providing for 

the “[a]dministrative review of orders” on the request of “an 

interested party”).1 

In the course an investigation or review, Commerce 

“determine[s] the estimated weighted average dumping 

margin for each exporter and producer individually investigated” or reviewed and “the estimated all-others rate for 

all exporters and producers not individually investigated” 

or reviewed. 19 U.S.C. § 1673d(c)(1)(B)(i); see id. § 1677f1(c) (providing for the “[d]etermination of dumping margin[s]” in investigations and reviews for “a reasonable 

number of exporters or producers”). A dumping margin reflects the amount by which the “‘normal value’ (the price a 

producer charges in its home market) exceeds the ‘export 

price’ (the price of the product in the United States) or ‘constructed export price.’” U.S. Steel Corp. v. United States, 

621 F.3d 1351, 1353 (Fed. Cir. 2010) (footnote omitted) (citing 19 U.S.C. § 1677(35)(A)); see 19 U.S.C. §§ 1677b(a)(1) 

(defining “normal value” as “the price at which the [merchandise] is first sold . . . for consumption” in the home 

country or a third country), 1677a(b) (defining “constructed 

export price” as “the price at which the subject merchandise is first sold . . . in the United States” to “a purchaser 

not affiliated with the producer or exporter”). Where merchandise is subject to both antidumping and countervailing 

duties (“countervailing duties” or “CVD”), Commerce will 

increase the export price or constructed export price by “the 

1 An “interested party” includes: “a foreign manufacturer, producer, or exporter, or the United States importer, 

of subject merchandise”; “the government of a country in 

which such merchandise is produced or manufactured or 

from which such merchandise is exported”; and, “a manufacturer, producer, or wholesaler in the United States of a 

domestic like product.” 19 U.S.C. § 1677(9)(A)–(C).

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CHANGZHOU TRINA SOLAR ENERGY v. UNITED STATES 5

amount of any countervailing duty imposed on the subject 

merchandise . . . to offset an export subsidy[.]” 

19 U.S.C.§ 1677a(c)(1)(C); see id. § 1671(a)(1) (providing 

that countervailing duties may be imposed on imported 

merchandise to countervail subsidies provided by, e.g., the

government of the exporting country, for “the manufacture, 

production, or export of” that merchandise). If Commerce 

finds that the exporting country is a “nonmarket economy” 

(“NME”) country2 and “that available information does not 

permit the normal value of the subject merchandise to be 

determined under [§ 1677b(a)],” then Commerce calculates 

the normal value using surrogate values for the “factors of 

production” in a comparable “market economy country.” 

Id. § 1677b(c)(1).

II. Procedural History

A. The AD and CVD Orders

In December 2013, SolarWorld, “a domestic producer of 

solar cells and panels,” filed “antidumping [and countervailing] duty . . . petition[s] concerning imports of certain 

crystalline silicon photovoltaic products” from the PRC, 

then Commerce initiated antidumping and countervailing 

duty investigations in response. Certain Crystalline Silicon Photovoltaic Products From the People’s Republic of 

China and Taiwan, 79 Fed. Reg. 4,661, 4,661 (Dep’t of 

Commerce Jan. 29, 2014) (initiation of antidumping duty 

2 An NME 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.” 19 U.S.C. § 1677(18)(A). Commerce considers the 

PRC to be an NME country. Certain Crystalline Silicon 

Photovoltaic Products From the People’s Republic of China, 

82 Fed. Reg. 12,793, 12,795 (Dep’t of Commerce Mar. 7, 

2017) (preliminary results) (“Preliminary Results”).

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6 CHANGZHOU TRINA SOLAR ENERGY v. UNITED STATES

investigations); see Certain Crystalline Silicon Photovoltaic 

Products From the People’s Republic of China, 79 Fed. Reg.

4,667, 4,668 (Dep’t of Commerce Jan. 29, 2014) (initiation 

of countervailing duty investigation) (similar). Trina was 

a mandatory respondent in the CVD investigation proceedings. See Countervailing Duty Investigation of Certain 

Crystalline Silicon Photovoltaic Products From the People’s 

Republic of China, 79 Fed. Reg. 76,962, 76,963 (Dep’t of 

Commerce Dec. 23, 2014) (final affirmative countervailing 

duty determination) (“Final CVD Determination”). 

In calculating Trina’s countervailing duty rate, Commerce found various “[p]rograms . . . to be countervailable,” 

Issues & Decisions Mem., Certain Crystalline Silicon Photovoltaic Products From the People’s Republic of China, C570-011, Investigation at 16 (Dec. 15, 2014), https://enforcement.trade.gov/frn/summary/prc/2014-30071-1.pdf

(adopted in Final CVD Determination, 79 Fed. Reg. 76,962)

(“Final CVD I&D Mem.”), among them, “Export Buyer’s 

Credits,” as “[e]xport [c]redit [s]ubsidies” (“Ex-Im Bank 

Buyer’s Credit Program”) provided by the Export-Import 

Bank of China (“Ex-Im Bank”), id. at 30. Commerce explained that, “through this program, the [Ex-Im Bank] provides loans at preferential rates for the purchase of 

exported goods from the PRC.” Id.; see id. at 94 (“[W]here 

we have found that such export buyer’s credits have been 

used [by buyers], we have consistently found such financing to be countervailable as a subsidy benefitting the exporter”). While Trina had reported that it had not used the 

Ex-Im Bank Buyer’s Credit Program, see id. at 94, Commerce “was not able to verify [Trina’s] reported non-use . . . 

during verification with the [Government of China],” id. at 

30. Commerce, accordingly, “rel[ied] upon [adverse facts 

available (‘AFA’)]” to determine that “Trina . . . used [the] 

program during the [period of investigation].” Id.; see 19 

U.S.C. §§ 1677e(a)(2)(A) (providing for “[d]eterminations 

[made] on [the] basis of facts available” where an “interested party . . . withholds [requested] information”), 

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1677e(b)(1) (providing for the use of “[a]dverse inferences” 

“in selecting from among the facts otherwise available” 

where Commerce “finds that an interested party has failed 

to cooperate . . . to the best of its ability”). Commerce concluded that Trina had “benefited from this program at [a] 

rate of 10.54 percent ad valorem, the highest rate determined for a similar program in a prior PRC proceeding.” 

Final CVD I&D Mem. 16.

In February 2015, Commerce issued antidumping and 

countervailing duty orders covering “certain crystalline silicon photovoltaic products,” specifically, “modules, laminates and/or panels consisting of crystalline silicon 

photovoltaic cells, whether or not partially or fully assembled into other products, including building integrated materials.” Certain Crystalline Silicon Photovoltaic Products 

From the People’s Republic of China, 80 Fed. Reg. 8,592, 

8,592 (Dep’t of Commerce Feb. 18, 2015) (antidumping 

duty order and amended final affirmative countervailing 

duty determination and countervailing duty order) (“AD 

and CVD Orders”).3

3 The AD and CVD Orders discussed here are distinct from and in addition to the 2012 AD and CVD orders 

on “crystalline silicon photovoltaic cells, whether or not assembled into modules, laminates, and/or panels, from the 

PRC.” AD and CVD Orders, 80 Fed. Reg. at 8,593 (footnote 

omitted); see Crystalline Silicon Photovoltaic Cells, 

Whether or Not Assembled Into Modules, From the People’s 

Republic of China, 77 Fed. Reg. 73,018 (Dep’t of Commerce 

Dec. 7, 2012) (amended final determination of sales at less 

than fair value, and antidumping duty order); Crystalline 

Silicon Photovoltaic Cells, Whether or Not Assembled Into 

Modules, From the People’s Republic of China, 77 Fed. Reg.

73,017 (Dep’t of Commerce Dec. 7, 2012) (countervailing 

duty order).

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8 CHANGZHOU TRINA SOLAR ENERGY v. UNITED STATES

B. The First Administrative Review

In February 2016, Commerce filed notice of the opportunity to request administrative review of the AD and CVD

Orders. Opportunity to Request Administrative Review, 81 

Fed. Reg. 5,712, 5,713 (Dep’t of Commerce Feb. 3, 2016);

see 19 U.S.C. § 1675(a)(1); 19 C.F.R. § 351.213. Commerce 

received multiple requests for review. J.A. 6562 (Preliminary I&D Mem.). Commerce initiated the AD Order’s first

administrative review, covering the period of review of July 

31, 2014, through January 31, 2016. Initiation of Antidumping and Countervailing Duty Administrative Reviews, 81 Fed. Reg. 20,324, 20,324 (Dep’t of Commerce 

Apr. 7, 2016). Commerce selected Trina as the sole mandatory respondent. J.A. 6562. Having been the petitioner

in the original AD and CVD investigations, SolarWorld 

participated as an interested party. J.A. 6563. 

In March 2017, Commerce issued its preliminary results. See Preliminary Results, 82 Fed. Reg. at 12,794; see 

J.A. 6561–87 (Preliminary I&D Mem.). Commerce declined to increase Trina’s export price “by the amount of 

any countervailing duty imposed to offset an export subsidy.” J.A. 6586. Commerce explained that, “[a]s a result 

of noncooperation by the Government of China in the companion CVD investigation,” Commerce had relied on AFA 

to “determine[] that Trina benefited from the Export 

Buyer’s Credits Program,” and, as such, “did not determine” whether “the program in question was export contingent.” J.A. 6586. “Without a determination in the 

companion CVD investigation that this program provides 

an export subsidy,” Commerce concluded it was inappropriate to offset Trina’s export price by the amount of the countervailing duty imposed. J.A. 6586. Further, because 

“[Commerce] considers the PRC to be an NME country,” 

J.A. 6567, Commerce selected Thailand as a surrogate 

market economy country to provide surrogate values to calculate Trina’s normal value, J.A. 6575; see also 19 U.S.C. 

§ 1677b(c)(1) (providing for the use of surrogate values to 

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CHANGZHOU TRINA SOLAR ENERGY v. UNITED STATES 9

calculate normal value for NME respondents). Commerce 

valued Trina’s module glass input using Harmonized Tariff 

Schedule (“HTS”) Subheading 7007.19.90000 (covering 

“Toughened (Tempered) Safety Glass, Not Suitable For Incorporation In Vehicles, Aircraft, Spacecraft Or Vessels; 

Other”). J.A. 140 (Final I&D Mem.).

In July 2017, Commerce issued its Final Results. 

82 Fed. Reg. at 32,170; see J.A. 113–56 (Final I&D Mem.). 

Commerce calculated a 9.61 percent weighted average 

dumping margin for Trina. Final Results, 82 Fed. Reg. at 

32,171. Consistent with the Preliminary Results, Commerce declined to offset Trina’s export price by any countervailed export subsidy. J.A. 121. Commerce explained 

that it “did not make a determination in the [companion] 

CVD investigation . . . that the [Ex-Im Bank] Buyer’s 

Credit Program was an export subsidy,” because it had relied on AFA to countervail the program. J.A. 121. For

Trina’s normal value, Commerce “continued to value 

Trina’s module glass using Thai imports of tempered glass 

classified under HTS [Subheading] 7007.19.90000[.]” J.A. 

141. Commerce rejected SolarWorld’s argument that 

“Trina’s module glass should be valued using HTS [Subheading] 7007.29.90 (i.e., Laminated safety glass: Other; 

Other),” because “laminated glass is ‘made in sandwich 

form, with one or more interlayers of plastics between two 

or more sheets of glass,’” J.A. 141 (quoting WCO EN 

7007.29.90), and there was “no record evidence of additional working [of Trina’s module glass] that would result 

in glass comparable to laminated glass,” J.A. 142. 

Both SolarWorld and Trina filed suit against the Government in the CIT, challenging Commerce’s Final Results

as unsupported by substantial evidence and contrary to

law. Trina I, 359 F. Supp. 3d at 1331. On the offset issue, 

the CIT remanded to Commerce, concluding that “Commerce’s decision to not offset the Ex-Im Bank Buyer’s 

Credit Program [wa]s contrary to law[.]” Id. at 1332. The 

CIT reasoned that, because AFA “does not obviate the need 

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10 CHANGZHOU TRINA SOLAR ENERGY v. UNITED STATES

for Commerce to affirmatively find that the elements of the 

statute have been satisfied,” Commerce must have “necessarily found that the [Ex-Im Bank] [B]uyer’s [C]redit 

[P]rogram was an export subsidy,” and, therefore, “Commerce’s decision to deny an offset for the countervailing duties imposed” as a result of the Ex-Im Bank Buyer’s Credit 

Program “is contrary to law[.]” Id. at 1339. The CIT “directed [Commerce] to recalculate Trina’s [export] prices to 

account for the offset[.]” Id. at 1332. On the valuation of 

Trina’s inputs, the CIT “sustain[ed] Commerce’s selection 

of surrogate values for,” inter alia, “module glass” as supported by substantial evidence. Id. The CIT explained that 

“Commerce [had] reasonably determined that [Thai] import data under HTS [S]ubheading 7007.19.90000 constitute[d] the best available information with which to value 

[that] input.” Id. at 1336; see 19 U.S.C. § 1677b(c)(1) 

(providing that Commerce’s surrogate value determinations must “be based on the best available information regarding the values of [relevant] factors in a market 

economy country or countries”). 

“In accordance with [Trina I],” Commerce, “under respectful protest, increased Trina’s [export] price[] by the 

amount countervailed” based on the Ex-Im Bank Buyer’s 

Credit Program subsidy “in the most recently completed 

segment of the corresponding [CVD] proceeding.” 

J.A. 6764–65 (citing Final CVD Determination, 79 Fed. 

Reg. 76,962); see Viraj Grp., Ltd. v. United States, 343 F.3d 

1371, 1376 (Fed. Cir. 2003) (explaining that Commerce 

may “adopt[] under protest a contrary position forced upon 

it by the [CIT]” and subsequently appeal that position to 

this court). Commerce maintained that, while it had 

“properly determined not to grant Trina an offset to its [export] prices for the countervailed . . . Ex-Im Bank Buyer’s 

Credit Program,” it nonetheless “compl[ied] with the 

[CIT’s] direction” and “increased Trina’s [export] price[.]” 

J.A. 6769. As a result, Trina’s weighted average dumping 

margin was reduced to 3.42 percent. J.A. 6770. The CIT 

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CHANGZHOU TRINA SOLAR ENERGY v. UNITED STATES 11

sustained Commerce’s Remand Redetermination. See 

Trina II, 393 F. Supp. 3d at 1251.

DISCUSSION

SolarWorld argues that: (1) the CIT “erred in sustaining Commerce’s [Remand Redetermination]—made under 

protest—to offset Trina’s [export] price to account for the 

countervailed” Ex-Im Bank Buyer’s Credit Program, Appellant’s Br. 19 (capitalization normalized); and (2) the CIT 

“improperly deferred” to Commerce when it “sustain[ed]

Commerce’s decision to apply Thai HTS [Subheading]

7007.19.90000 to Trina’s solar [module] glass,” id. at 31. 

We address each argument in turn. 

I. Standard of Review

We “apply . . . the same standard” of review as the CIT, 

Downhole Pipe & Equip., L.P. v. United States, 776 F.3d 

1369, 1373 (Fed. Cir. 2015) (internal quotation marks and 

citation omitted), upholding Commerce’s determinations if 

they 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, 810 

F.3d 1333, 1341 (Fed. Cir. 2016) (internal quotation marks, 

alterations, and citation omitted). 

We review Commerce’s “statutory interpretations as to 

the appropriate methodology” under Chevron U.S.A., Inc.

v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). Pesquera Mares Australes Ltda. v. United States, 266 F.3d 

1372, 1379 (Fed. Cir. 2001). If “Congress has directly spoken to the precise question at issue,” then “that is the end 

of the matter; for the court, as well as the agency, must give 

effect to the unambiguously expressed intent of Congress.” 

Wheatland Tube Co. v. United States, 495 F.3d 1355, 1359 

(Fed. Cir. 2007) (quoting Chevron, 467 U.S. at 842–43). “In 

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12 CHANGZHOU TRINA SOLAR ENERGY v. UNITED STATES

order to determine whether a statute clearly shows the intent of Congress . . . , we employ traditional tools of statutory construction and examine the statute’s text, structure, 

and legislative history, and apply the relevant canons of 

interpretation.” Kyocera Solar, Inc. v. U.S. Int’l Trade 

Comm’n, 844 F.3d 1334, 1338 (Fed. Cir. 2016) (internal 

quotation marks and citations omitted). If, however, “the 

statute is silent or ambiguous with respect to the specific 

issue,” we evaluate whether Commerce’s interpretation is 

reasonable. Chevron, 467 U.S. at 843. The agency’s construction need not be the only reasonable interpretation or 

even the most reasonable interpretation. See Zenith Radio 

Corp. v. United States, 437 U.S. 443, 450 (1978).

We review Commerce’s findings of fact for substantial 

evidence. See SolarWorld Ams., Inc. v. United States, 910 

F.3d 1216, 1222 (Fed. Cir. 2018). Substantial evidence is 

“more than a mere scintilla”; rather it is such “evidence 

that a reasonable mind might accept as adequate to support a conclusion.” Downhole Pipe, 776 F.3d at 1374 (internal quotation marks and citations omitted). “We look to 

the record as a whole, including evidence that supports as 

well as evidence that fairly detracts from the substantiality 

of the evidence.” SolarWorld, 910 F.3d at 1222 (internal 

quotation marks and citation omitted).

II. Export Subsidy Offset

A. Legal Standard

If imported merchandise is subject to both antidumping and countervailing duties, Commerce “shall,” when calculating a respondent’s antidumping duty rate, “increase[]”

the respondent’s “export price” or “constructed export 

price” by “the amount of any countervailing duty imposed . . . to offset an export subsidy[.]” 19 U.S.C. 

§ 1677a(c)(1)(C). Commerce may impose countervailing 

duties when it “determines that the government of a country or any public entity within the territory of a country is 

providing, directly or indirectly, a countervailable subsidy”

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CHANGZHOU TRINA SOLAR ENERGY v. UNITED STATES 13

for “the manufacture, production, or export of” the subject 

merchandise. Id. § 1671(a)(1); see id. § 1677(5) (providing 

that a “countervailable subsidy” is a “financial contribution,” “income or price support,” or “funding mechanism” 

provided by “an authority,” such as a government, “to a person” with “a benefit . . . thereby conferred”). To be countervailable, a subsidy must be “specific.” Id. § 1677(5)(A). To 

be “specific” a subsidy must be “an export subsidy,” “an import substitution subsidy,” or one of certain “domestic subsid[ies].” Id. § 1677(5A)(A). “An export subsidy is a subsidy 

that is, in law or in fact, contingent upon export performance, alone or as [one] of [two] or more conditions.” Id. 

§ 1677(5A)(B); see 19 C.F.R. § 351.514(a) (explaining that 

“a subsidy” is “contingent upon export performance if the 

provision of the subsidy is, in law or in fact, tied to actual 

or anticipated exportation or export earnings, alone or as 

one of two or more conditions”). 

If Commerce finds, in the course of an investigation or 

review, that “necessary information is not available on the 

record” or “an interested party or any other person . . . 

withholds information that has been requested by [Commerce],” “fails to provide such information by the deadlines . . . or in the form and manner requested,” 

“significantly impedes a proceeding,” or “provides such information but the information cannot be verified,” then 

Commerce is permitted to use “facts otherwise available” 

in making its determinations. 19 U.S.C. § 1677e(a)(2)(A)–

(D); see 19 C.F.R. § 351.308 (providing for “[d]eterminations on the basis of facts available”). If Commerce further 

finds a respondent has “failed to cooperate by not acting to 

the best of its ability to comply with a request for information,” then it “may use an inference that is adverse to 

the interests of that party in selecting from among the facts 

otherwise available” (that is, AFA). 19 U.S.C. § 1677e(b); 

see 19 C.F.R. § 351.308(a) (similar). In selecting AFA, 

Commerce may use information from the petition, investigation, prior administrative reviews, or “any other 

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14 CHANGZHOU TRINA SOLAR ENERGY v. UNITED STATES

information placed on the record.” 19 U.S.C. § 1677e(b); see 

id. § 1677e(b)(2) (providing a list of “[p]otential sources of 

information for adverse inferences”); 19 C.F.R. § 351.308(c) 

(similar); Gallant Ocean (Thail.) Co. v. United States, 602 

F.3d 1319, 1323 (Fed. Cir. 2010) (providing that, “in the 

case of uncooperative respondents,” Commerce has discretion to “select from a list of secondary sources as a basis for 

its adverse inferences”). When Commerce “relies on secondary information rather than on information obtained in 

the course of an investigation or review,” it “shall, to the 

extent practicable, corroborate that information from independent sources that are reasonably at [its] disposal.” 19 

U.S.C. § 1677e(c); see 19 C.F.R. § 351.308(d) (providing for 

the “[c]orroboration of secondary information” “to the extent practicable” and providing a non-exclusive list of “independent sources that are reasonably at [Commerce’s] 

disposal”).

B. Commerce’s Decision to Not Offset Trina’s Export Price 

Is Contrary to Law

In its Final Results, Commerce declined to increase

Trina’s export price by the amount countervailed to offset 

the Ex-Im Bank Buyer Credit Program. J.A. 121. Commerce explained that such an increase was improper because Commerce “did not make a determination in the 

[companion] CVD investigation . . . that the [Ex-Im Bank] 

Buyer’s Credit Program was an export subsidy” because it 

had relied on AFA to countervail the program. J.A. 121. 

The CIT remanded to Commerce, concluding that “Commerce’s refusal to offset the CVDs imposed is contrary to 

law because Commerce necessarily determined that the 

[Ex-Im Bank] [B]uyer’s [C]redit [P]rogram was an export 

subsidy in the [companion] CVD investigation.” Trina I,

359 F. Supp. 3d at 1337. The CIT “directed [Commerce] to 

recalculate Trina’s [export] prices to account for the offset[.]” Id. at 1332. On remand, Commerce, “under respectful protest, increased Trina’s [export] price[] by the amount 

countervailed” as a result of the Ex-Im Bank Buyer’s Credit 

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Program. J.A. 6764–65. The CIT sustained Commerce’s 

Remand Redetermination. Trina II, 393 F. Supp. 3d at 

1251. SolarWorld asserts that “[t]he CIT erred in ordering 

Commerce to offset Trina’s [export] price to account for the 

countervailed Ex-Im [Bank] Buyer’s Credit Program,” Appellant’s Br. 17, and in “sustaining Commerce’s decision

[as] made under protest,” id. at 19.4 We disagree with SolarWorld. 

Commerce’s decision to not increase Trina’s export 

price by the amount countervailed for the Ex-Im Bank 

Buyer’s Credit Program is contrary to law. Where, as here, 

merchandise is subject to both antidumping and countervailing duties during the period of review, Commerce 

“shall,” when calculating a respondent’s antidumping duty 

rate, “increase[]” the respondent’s “export price” or “constructed export price” by “the amount of any countervailing 

duty imposed . . . to offset an export subsidy[.]” 19 U.S.C. 

§ 1677a(c)(1)(C); see AD and CVD Orders, 80 Fed. Reg. at

8,592 (providing that Trina’s merchandise is subject to antidumping and countervailing duties). As such, when calculating Trina’s antidumping duty rate, Commerce was

required to increase Trina’s export price by any countervailing duty imposed in the companion CVD investigation 

to offset an export subsidy. See Lexecon Inc. v. Milberg 

Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35 (1998) (explaining that “shall” generally creates “an obligation impervious to judicial discretion” (citing Anderson v. 

Yungkau, 329 U.S. 482, 485 (1947))).

4 While Commerce issued its Remand Redetermination under respectful protest, J.A. 6764–70; see Viraj, 343 

F.3d at 1376 (providing that the Government may appeal 

Commerce’s determinations made under protest), the Government does “not appeal” the CIT’s reversal of this policy 

and “do[es] not address the issue substantively in [its] 

brief,” Gov’t’s Br. 7 n.1.

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16 CHANGZHOU TRINA SOLAR ENERGY v. UNITED STATES

Here, Commerce failed to increase Trina’s export price 

by a countervailing duty imposed to offset an export subsidy. In the companion CVD investigation, Commerce first

determined that the Ex-Im Bank Buyer’s Credit Program 

was countervailable as an export subsidy. Commerce described the program as providing “[e]xport [c]redit [s]ubsidies,” explaining that “[t]hrough th[e] program, the [Ex-Im 

Bank] provides loans at preferential rates for the purchase

of exported goods from the PRC.” Final CVD I&D Mem.

30; see 19 U.S.C. § 1677(5A)(B) (“An export subsidy is a 

subsidy that is, in law or in fact, contingent upon export 

performance, alone or as [one] of [two] or more conditions.”). Next, “[un]able to verify [Trina’s] reported nonuse of [the program],” Commerce resorted to AFA to determine that Trina had “used [the] program during the [period 

of investigation].” Final CVD I&D Mem. 30. Commerce,

accordingly, imposed a countervailing duty on Trina’s merchandise to offset the Ex-Im Bank Buyer’s Credit Program. 

See id. at 16. Having determined that the Ex-Im Bank 

Buyer’s Credit Program was an export subsidy and imposed a countervailing duty on Trina’s merchandise as a 

result, Commerce was required to increase Trina’s export 

price by the offset. Commerce’s decision to do otherwise 

was contrary to law. See 19 U.S.C. § 1677a(c)(1)(C) (providing that a respondent’s “export price shall be[] increased 

by . . . the amount of any countervailing duty imposed on 

the subject merchandise . . . to offset an export subsidy”); 

Kyocera Solar, 844 F.3d at 1338 (explaining that, where 

“‘Congress has directly spoken to the precise question at 

issue[,]’ . . . our inquiry ends, for we ‘give effect to the unambiguously expressed intent of Congress.’” (quoting Chevron, 467 U.S. at 842–43)).

Commerce’s reasoning that, because its “determination 

to countervail the [Ex-Im Bank Buyer’s Credit Program]

was based on [AFA],” it “[had] not” actually “ma[d]e a determination that the program . . . was [an export subsidy]”

and, therefore, was not required to offset it, J.A. 121–22, is

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CHANGZHOU TRINA SOLAR ENERGY v. UNITED STATES 17

incorrect. AFA allows Commerce to “reach[]” a “determination” on an incomplete record. 19 U.S.C. § 1677e(a); see 

id. § 1677e(b)(2) (providing “[p]otential sources of information for adverse inferences”). It does not obviate Commerce’s obligation to make “the applicable determination.” 

Id. § 1677e(a); see id. § 1671(a)(1) (providing that Commerce must “determine[] that” an exporter or producer is 

receiving “a countervailable subsidy” before imposing countervailing duties). Nor does it obviate Commerce’s obligation to support any such determinations “[with] substantial 

evidence.” Id. § 1516a(b)(1)(B)(i); see id. § 1677e(c) (requiring that Commerce, “to the extent practicable, corroborate 

that information from independent sources that are reasonably at their disposal”); Gallant Ocean, 602 F.3d at 1325 

(vacating and remanding Commerce’s AFA duty rate calculation as unsupported by substantial evidence); 

Dongguan Sunrise Furniture Co. v. United States, 931 F. 

Supp. 2d 1346, 1350 (Ct. Int’l Trade 2013) (“[E]ven an AFA

rate must be supported by substantial evidence.” (citation 

omitted)). Before imposing a countervailing duty, Commerce must necessarily determine that a subsidy is “specific”—that it is an “export subsidy,” “import substitution 

subsidy,” or a “[d]omestic subsidy” meeting certain requirements, 19 U.S.C. § 1677(5A)—even if it must use AFA to do 

so, id. § 1677e (providing that Commerce may “use the 

facts otherwise available in reaching the applicable determination”). Otherwise, Commerce cannot impose a countervailing duty to offset that subsidy. Id. §§ 1671(a)(1) 

(providing that Commerce may impose countervailing duties only where it “determines that the government of a 

country or any public entity within the territory of a country is providing, directly or indirectly, a countervailable 

subsidy”), 1677(5)(A) (providing that, to be countervailable, 

a subsidy must be “specific”). Accordingly, Commerce’s decision to not offset Trina’s export price, based on its reliance on AFA to countervail the Ex-Im Bank Buyer’s Credit 

Program, is contrary to law. 

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18 CHANGZHOU TRINA SOLAR ENERGY v. UNITED STATES

SolarWorld’s counterarguments are unpersuasive. 

First, SolarWorld argues that, because the term “export 

subsidy” in 19 U.S.C. § 1677a(c)(1)(C) is ambiguous, the 

CIT should have deferred to Commerce’s reasonable interpretation of that term—that “export subsidy . . . exclude[s] 

AFA determinations[.]” Appellant’s Br. 26 (capitalization 

normalized). This argument is without merit. The term 

“export subsidy” is not ambiguous as to whether it includes 

determinations made using AFA. On its face, it covers all 

export subsidy determinations. See 19 U.S.C. 

§ 1677(5A)(B) (defining “export subsidy” as “a subsidy that 

is, in law or in fact, contingent upon export performance, 

alone or as [one] of [two] or more conditions”). Moreover, 

Commerce did not offer an interpretation of “export subsidy” in either its Final Results, see J.A. 121–22, or its Remand Redetermination, see J.A. 6764–70. Commerce 

concluded only that, by resorting to AFA, it “[had] not determine[d]” whether “the subsidies in question were export 

subsidies” within the statutory definition and “as required 

for an offset under [19 U.S.C. § 1677a(c)(1)(C)].” J.A. 121–

22; see J.A. 122 n.16 (quoting 19 U.S.C. § 1677(5A)(B) without comment). At best, SolarWorld’s argued interpretation 

of “export subsidy” comes from the Government’s briefing 

before the CIT. See Def.’s Resp. Br. Opp’n Rule 56.2 Mots. 

J. Agency R. at 23–25, Changzhou Trina Solar Energy Co. 

v. United States, CIT Consol. No. 17-cv-00199-CRK (June 

7, 2018), ECF No. 38 (arguing that, because the term “export subsidy” is ambiguous and “does not require that 

Trina’s [export] price be adjusted,” Commerce’s “interpretation” of 19 U.S.C. § 1677a(c)(1)(C) should be deferred to 

as “reasonable”). Even if the term “export subsidy” were 

ambiguous, see 19 U.S.C. § 1677(5A)(B) (expressly defining

“export subsidy”), we do not apply Chevron “to an agency 

counsel’s interpretation of a statute,” much less a defendant-intervenor’s, “where the agency itself has articulated 

no position on the question,” Bowen v. Georgetown Univ. 

Hosp., 488 U.S. 204, 212 (1988).

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Second, SolarWorld argues that we should give Auer 

deference to Commerce’s interpretation of the Final CVD 

I&D Mem.—erroneously calling it the “CVD Order”—as 

“apply[ing] AFA in finding the Ex-Im [Bank] Buyer’s 

Credit Program was an export subsidy.” Appellant’s Br. 20 

(citing Auer v. Robbins, 519 U.S. 452, 461 (1997); Diamond 

Sawblades Mfrs. Coal. v. Hyosung D&P Co., 809 F.3d 626, 

630 (Fed Cir. 2015)). This argument is irrelevant. Here, 

as SolarWorld concedes, Commerce has determined that 

the Ex-Im Bank Buyer’s Credit Program was an 

“[e]xport[] . . . [s]ubsid[y],” because it “provides loans at

preferential rates for the purchase of exported goods from 

the PRC.” Final CVD I&D Mem. 30; see Appellant’s Br. 20

(arguing that Commerce “f[ound] the Ex-Im [Bank] Buyer’s 

Credit Program was an export subsidy” (capitalization normalized)). As discussed above, whether Commerce used 

AFA to reach that determination is immaterial. See 19 

U.S.C. §§ 1671(a)(1), 1677a(c)(1)(C), 1677e(a).

Third, SolarWorld argues that “providing . . . an offset 

would inappropriately reward noncompliance with Commerce’s request for information[]” from the Government of 

China in the CVD investigation, “eliminating any incentive 

for the [Government of China] to cooperate in future CVD 

investigations of this key subsidy program.” Appellant’s 

Br. 18. SolarWorld neglects the fact that AFA was already 

applied to increase Trina’s countervailing duty rate. See

Final CVD I&D Mem. 16, 94; see also Dupont Teijin Films 

USA, LP v. United States, 273 F. Supp. 2d 1347, 1349 n.4 

(2003) (explaining that “[t]he basic economic theory behind 

[19 U.S.C. § 1677a(c)(1)(C)]” is that the any “export subsidy” received directly “contribute[s] to lower-priced sales 

of subject merchandise . . . by the amount of [that] subsidy. 

The offset is designed to prevent the double application of 

duties when the subsidies and dumping are related.”). Further, SolarWorld’s argument misapprehends the nature of 

AFA. See F.lli De Cecco Di Filippo Fara S. Martino S.p.A. 

v. United States, 216 F.3d 1027, 1032 (Fed. Cir. 2000)

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20 CHANGZHOU TRINA SOLAR ENERGY v. UNITED STATES

(explaining that AFA “is to provide respondents with an incentive to cooperate, not to impose punitive, aberrational, 

or uncorroborated margins”). Accordingly, Commerce’s decision to not offset Trina’s export price is contrary to law. 

See Wheatland Tube, 495 F.3d at 1359 (“If the intent of 

Congress is clear, that is the end of the matter; for the 

court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” (quoting Chevron,

467 U.S. at 842–43)).

III. Surrogate Value Selection

A. Legal Standard

Where, as here, the exporting country has a non-market economy, see Preliminary Results, 82 Fed. Reg. at

12,795, Commerce calculates the normal value for a respondent’s subject merchandise using surrogate values 

from a comparable market economy country, see 19 U.S.C.

§ 1677b(c)(1), (4). In selecting surrogate values, Commerce 

“attempts to construct a hypothetical market value of [the 

subject merchandise] in the [NME].” Downhole Pipe, 776 

F.3d at 1375 (internal quotation marks, alterations, and citation omitted). 

Commerce’s surrogate value determinations must “be 

based on the best available information regarding the values of [relevant] factors in a market economy country or 

countries.” 19 U.S.C. § 1677b(c)(1); see id. § 1677b(a) 

(providing that Commerce constructs the “normal value” 

“to achieve a fair comparison with the export price”). “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, 658 F.3d 

1318, 1323 (Fed. Cir. 2011). Commerce “generally selects, 

to the extent practicable, 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) (footnote omitted).

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B. Commerce’s Surrogate Value Selection for Trina’s 

Module Glass Is Supported by Substantial Evidence 

In its Final Results, Commerce “value[d] Trina’s module glass using Thai imports of tempered glass classified 

under HTS [Subheading] 7007.19.90000,” J.A. 141; see 

J.A. 140 (providing that Thai HTS Subheading

7007.19.90000 “Toughened (Tempered) Safety Glass, Not 

Suitable For Incorporation In Vehicles, Aircraft, Spacecraft 

Or Vessels; Other”). Specifically, Commerce found, based 

on “an examination of record information and Trina’s [submissions]” in the course of administrative review, that 

“Trina’s module glass” was “tempered.” J.A. 141. Presented with Thai import data for HTS Subheading 7007.19.90000 (“tempered/safety glass”), HTS 

Subheading 7007.19.90001 (“float glass”), and HTS Subheading 7007.29.90 (“laminated safety glass”), Commerce 

concluded that “Trina’s module glass [wa]s appropriately 

valued using Thai HTS [Subheading] 7007.19.90000.” 

J.A. 141. The CIT sustained this determination as supported by substantial evidence. See Trina I, 359 F. Supp. 

3d at 1336. SolarWorld argues that “Commerce’s determination to use Thai HTS [Subheading] 7007.19.90000 to 

value Trina’s solar glass was not supported by substantial 

evidence.” Appellant’s Br. 31 (capitalization normalized). 

SolarWorld asserts that “[r]ecord evidence . . . makes clear 

that[,] in addition to being tempered, Trina’s solar module 

glass also undergoes additional processing” that “impart[s]

extreme durability to the glass,” leaving “Thai HTS [Subheading] 7007.29.90 . . . the only HTS number that reflects” that processing. Id. at 34–35; see J.A. 141 (providing 

that HTS Subheading 7007.29.90 covers “Laminated safety 

glass: Other; Other”). We disagree with SolarWorld. 

Substantial evidence supports Commerce’s decision to 

value Trina’s module glass using Thai imports of tempered 

glass classified under HTS Subheading 7007.19.90000. In 

its submissions to Commerce, Trina described its module 

glass as “tempered.” J.A. 46–47 (Trina’s Third 

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22 CHANGZHOU TRINA SOLAR ENERGY v. UNITED STATES

Supplemental Questionnaire Response) (providing that 

“both [its] coated glass and tempered glass” are “tempered”); see J.A. 5550 (Trina’s Section A Questionnaire Response) (providing Trina advertising material describing 

Trina’s module glass as “[anti-reflective] coated tempered 

glass”), 5713 (Trina’s First Supplemental Questionnaire 

Response) (explaining that Trina’s “tempered glass” is 

“float glass” rather than “rolled glass”). Further, Commerce, examining Trina’s publicly available data, found 

that the “only glass referred to there [was] tempered glass.” 

J.A. 46. Examination of other producers’ publicly available 

data indicated use of “tempered glass” with “antireflection 

surface treatment” and “extremely durable” “front glazing,” in some cases “us[ing] a polymer film (plastic) as the 

front sheet.” J.A. 46–47. Trina confirmed that there was 

no “significant difference between the glass referred to in” 

the publicly available information and “the glass Trina consumed during the [period of review] to produce the subject 

merchandise.” J.A. 47. On this basis, Commerce conclude 

that “Trina’s module glass [wa]s appropriately valued” using data for “Thai imports of tempered glass classified under HTS [Subheading] 7007.19.90000.” J.A. 141; see 

Qingdao Sea–Line, 766 F.3d at 1386 (providing that “Commerce generally selects, to the extent practicable, surrogate values that are,” inter alia, “product-specific”). As 

such, Commerce’s use of Thai tempered glass data to value 

Trina’s tempered module glass is supported by substantial 

evidence. See Downhole Pipe, 776 F.3d at 1374 (providing 

that substantial evidence is such evidence as a “reasonable 

mind might accept as adequate to support a conclusion”

(citing Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 

229 (1938)). 

SolarWorld’s counterarguments are unpersuasive. 

First, SolarWorld argues that “Commerce failed to use the 

‘best available information’ to value Trina’s solar glass,” because “Commerce valued Trina’s coated, tempered glass 

using Thai imports of standard tempered glass[.]” 

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CHANGZHOU TRINA SOLAR ENERGY v. UNITED STATES 23

Appellant’s Br. 31 (emphasis omitted). This argument misapprehends the “best available evidence” standard. “The 

data on which Commerce relies to value inputs must be the 

‘best available information,’ but there is no requirement 

that the data be perfect.” Home Meridian Int’l, Inc. v. 

United States, 772 F.3d 1289, 1296 (Fed. Cir. 2014). The 

fact that Trina’s tempered glass has a coating does not preclude the conclusion that Thai import data for tempered 

glass is the best available information on the record to 

value it. See Nation Ford Chem. Co. v. United States, 166 

F.3d 1373, 1377 (Fed. Cir. 1999) (“The ‘best available information’ . . . may constitute information from the surrogate 

country that is directly analogous to the production experience of the NME producer . . . or it may not.”); see also SolarWorld, 910 F.3d at 1223 (explaining that, in selecting 

surrogate values, “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” (internal quotation marks and 

citation omitted)).

Second, SolarWorld argues that, “[b]ecause Commerce 

did not consider evidence that detracts from its conclusion,” 

specifically, “[record] evidence indicating that Trina’s glass 

[is laminated glass],” Commerce’s decision is “not supported by substantial evidence.” Appellant’s Br. 35. This 

argument is premised on a misreading of Commerce’s determination. Commerce “disagree[d] with [SolarWorld’s]

suggestion that Trina’s module glass should be valued” as 

“[l]aminated safety glass” using Thai “HTS [Subheading]

7007.29.90[.]” J.A. 141. Commerce explained that, while 

“laminated glass is ‘made in sandwich form, with one or 

more interlayers of plastics between two or more sheets of 

glass,’” J.A. 141 (quoting WCO EN 7007.29.90), SolarWorld 

could only point to evidence that “Trina’s module glass” had

potentially “undergone additional working such as surface 

treatments and glazing,” not “additional working that 

would result in . . . laminated glass . . . made of multiple 

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24 CHANGZHOU TRINA SOLAR ENERGY v. UNITED STATES

layers of plastic and glass,” J.A. 142. On appeal, SolarWorld does not challenge Commerce’s definition of laminated glass or point to missed evidence; rather, SolarWorld

proffers the same rejected evidence, compare Appellant’s 

Br. 33–34 (arguing that a “datasheet for glass on Trina’s 

website refers to . . . [‘c]oated [t]empered [g]ass’” with “‘a 

polymer film (plastic) as the front sheet . . . for arrays in 

high-impact environments’” and “information from other 

module suppliers, indicating that their glass is ‘high-transparency tempered glass with an antireflection surface 

treatment’” and “‘front glazing . . . [that] is extremely durable’” (quoting J.A. 46–47 (Trina’s Third Supplemental 

Questionnaire Response)), with J.A. 140–42 (summarizing 

SolarWorld’s arguments before Commerce as relying on the 

same evidence), and “invite[s] [us] to reweigh [it],” Downhole Pipe, 776 F.3d at 1376. We decline to do so. See 

Matsushita Elec. Indus. Co. v. United States, 750 F.2d 927, 

936 (Fed. Cir. 1984) (“That [an appellant] can point to evidence of record which detracts from the evidence which 

supports the [agency’s] decision and can hypothesize a reasonable basis for a contrary determination is neither surprising nor persuasive.”). Accordingly, substantial 

evidence supports Commerce’s decision to value Trina’s 

module glass using Thai imports of tempered glass classified under HTS Subheading 7007.19.90000.

CONCLUSION

We have considered the parties’ remaining arguments 

and find them unpersuasive. For the foregoing reasons, 

the Judgment of the U.S. Court of International Trade is

AFFIRMED

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