Commerce Clarifies, Maintains Circumvention Finding for Vietnamese Solar Cell Exporters
In remand results released Aug. 15, the Commerce Department maintained its application of adverse facts available to Vietnamese exporters investigated in a solar cells circumvention inquiry (Trina Solar (Vietnam) Science & Technology Co. v. United States, CIT # 23-00228).
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Court of International Trade Judge M. Miller Baker said in a May 19 opinion that Commerce was still required to weigh statutory circumvention factors after applying the inference to make its final decision (see 2505190054). Having failed to do so, the department had “arbitrarily treated its adverse facts available finding as the administrative equivalent of landing on 'Go to Jail,’” the judge found.
Although Commerce applied AFA with regard to three of the five statutory factors for mandatory respondent Vina Solar and other non-cooperating non-selected respondents, Baker said it failed to make any finding regarding the extent of their production facilities. It also found that the nature of those exporters’ production didn’t indicate circumvention.
The department then further failed to weigh its five required findings, he said.
In its new results on remand, Commerce said that it “clarif[ies] in this remand redetermination that, based on AFA, the extent of Vina Solar’s production facilities in Vietnam are minor or insignificant.”
It also said it was giving “particular importance to the level of Vina Solar’s R&D in Vietnam,” a decision CIT has sustained in other circumstances. Further, it said, “four of the five criteria weigh in favor of finding that the production of inquiry merchandise in Vietnam is minor or insignificant for Vina Solar.”
Though Baker said that the department “made no findings about the extent of production facilities on the part of Vina or any other company,” Commerce claimed it already had determined, based on AFA, that the extent of the production facilities of the review’s noncooperative nonselected respondents was minor or insignificant.
It said that, “[s]imilar” to its analysis for Vina Solar, “the negative finding for the ‘nature of the production process’ does not outweigh the other factors that indicate a minor or insignificant production process in Vietnam” for the non-selected respondents hit with AFA.