CIT Sends Back Circumvention Finding on Vietnamese Solar Cells
The Court of International Trade on May 19 sent back the Commerce Department's circumvention finding on solar cells from Vietnam just days after sustaining two circumvention findings on solar cells from Thailand and Cambodia. Judge M. Miller Baker said in the Vietnamese circumvention case that Commerce "arbitrarily treated its adverse facts available finding as the administrative equivalent of landing on 'Go to Jail.'"
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
Baker faulted Commerce for failing to weight the statutory circumvention factors after deciding to use AFA on one of the parties. However, the judge said the agency didn't err in applying an adverse inference to cooperating parties. The judge said Commerce didn't merely extend an adverse inference to unexamined companies but "reasonably extended the circumvention remedy to them," since the non-cooperating parties "accounted for a significant volume of Vietnamese solar cells."
In 2022, Commerce opened a proceeding to look into whether solar cells from Cambodia, Malaysia, Thailand or Vietnam are circumventing the AD/CVD orders on solar cells and modules from China. For the Vietnam segment of the inquiries, the agency picked two mandatory respondents: Boviet Solar Technology and Vina Solar Technology.
As part of the analysis, Commerce looked at whether the assembly process in Vietnam was "minor or significant," considering five statutory factors for the analysis. The agency ultimately said Boviet didn't circumvent the orders, but Vina did, resorting to AFA for the company due to its failure to cooperate during on-site verification. Commerce used the AFA decision on one of the respondents to cover all the cooperating respondents that submitted quantity and value questionnaire responses.
Exporter Trina Solar (Vietnam) Science & Technology argued that Commerce can't use AFA applied elsewhere in the proceeding to side-step other evidentiary claims raised by the parties. Baker agreed, finding that while the agency "properly found in the affirmative for three of the" statutory factors "grounded on that doctrine, it didn't weigh those findings against its negative conclusion" as to the "nature of the production process" in the third country.
"Reasoned decision making required addressing every factor, balancing them, and responding to the parties’ arguments," the court said. "As that didn’t happen here, remand is necessary."
Trina was less successful in its claim against Commerce's decision to extend the AFA finding on Vina to the cooperating non-individually examined respondents. The agency's regulations say that appropriate remedies to address circumvention may include the application of an evasion determination on a "country-wide basis" regardless of producer, exporter or importer.
Regarding the "unexamined cooperating companies," Commerce had two options: treat them like Boviet or Vina. "The agency reasonably explained why it chose the latter," Baker said, noting that Commerce found Vina to make up a "significant volume of Vietnamese solar cells." The agency said it "must consider the entire results of its inquiry," and in so ruling, it didn't violate the statute, since it didn't apply an adverse inference to the cooperating parties, the decision said.
"The limitations on using antidumping margins based on adverse facts available to calculate duties for cooperating entities are simply irrelevant in the circumvention remedy context," Baker added.
The court also noted the "dog that didn't bark," referencing the "conspicuous failure" of Trina to argue that Commerce should have treated the unexamined companies "exactly like Boviet." The judge said a company "eludes circumvention duties only when it certifies that it used components produced 'by the specific party reported in its questionnaire responses,'" lest its goods be bound by the orders.
However, that's not what Trina wants. Instead, it's angling for an "unqualified negative determination for the unexamined cooperating companies, based on the Department’s finding that the nature of the process of assembly or completion of solar cells by all companies in Vietnam was significant." However, Commerce simply didn't have that option at the "remedy stage" of the proceeding, since the agency could only apply the determinations for Boviet or Vina.
(Trina Solar (Vietnam) Science & Technology Co. v. United States, Slip Op. 25-62, CIT # 23-00228, dated 05/19/25; Judge: M. Miller Baker; Attorneys: Jonathan Freed of Trade Pacific for plaintiffs Trina Solar companies; Matt Nicely of Akin Gump for plaintiff-intervenor Florida Power & Light Co.; Brian Boynton for defendant U.S. government)