Solar Cell Exporter Says CIT Can Now Address Claims on Nature of Production Process in Anti-Circ Case
Solar cell exporter Trina Solar (Vietnam) Science & Technology Co. said neither the Court of International Trade nor the Commerce Department addressed the exporter's claim that the nature of the production compelled a negative determination in the antidumping and countervailing duties anti-circumvention inquiry on solar cells from Vietnam. Filing comments on Commerce's remand results in a case on the circumvention proceedings, Trina Solar said the court can now address whether the significance of the statutory "nature and production process" factor "can be reconciled with" Commerce's affirmative circumvention finding "when the circumvention provisions were enacted to address 'screwdriver' operations" (Trina Solar (Vietnam) Science & Technology Co. v. United States, CIT # 23-00228).
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In May, CIT Judge M. Miller Baker remanded the circumvention finding regarding solar cells from Vietnam after finding that Commerce "arbitrarily treated its adverse facts available finding as the administrative equivalent of landing on 'Go to Jail'" (see 2505190054). The judge faulted the agency for failing to weight the statutory circumvention factors after deciding to use AFA on one of the parties, though the judge said Commerce didn't err in applying an adverse inference to cooperating parties.
On remand, Commerce maintained its use of AFA on the noncooperative party, Vina Solar, finding that the extent of the company's production facilities in Vietnam are "minor or insignificant" (see 2508210058).
In comments on the remand results, Trina Solar said Baker's prior order was limited to "an analysis of the 'minor or insignificant' factors" under the circumvention statute for Vina Solar. The judge can now address Trina's claims regarding the "nature of the production process" in Vietnam, which he didn't do the first time around, the brief said. Trina said the "crux" of its argument is that "Commerce’s findings with regard to the 'nature of the production process' were so forceful that 'Commerce’s entire affirmative determination is fundamentally incongruent' regardless of any company-specific AFA findings for the other factors."
The circumvention statute and its regulations weren't meant to address "manufacturing activity involving significant, extensive, and technologically advanced production steps" as exists in Vietnam, the brief said. However, Trina Solar said it's aware that Baker "disagreed with this position in the companion civil action relating to exports from Thailand," citing a decision from Baker issued in May. "Nevertheless, we respectfully request that the Court take this opportunity to address this fundamental question within the context of the Final Determination relating to the circumvention inquiry for exports from Vietnam."