Anti-Circ Laws Don't Require Nature of Production Process to Control Analysis, US Says
Exporter Trina Solar waived its argument that the "nature of the production process" in a third country can compel a negative circumvention finding, and, in any case, it's incorrect as a matter of law, the U.S. argued on Dec. 23. Filling a reply to Trina's comments on the Commerce Department's remand results, the government urged the Court of International Trade to accept the agency's finding that Trina's Vietnamese solar cells circumvented the antidumping and countervailing duties on Chinese solar cells (Trina Solar (Vietnam) Science & Technology v. United States, CIT # 23-00228).
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In May, the trade court remanded the circumvention finding after finding that Commerce failed to properly weigh the five statutory circumvention factors after deciding to use adverse facts available against one of the parties (see 2505190054). On remand, the agency maintained its use of AFA against one of the parties, Vina Solar, finding that the extent of the company's production facilities in Vietnam is "minor or insignificant" (see 2508210058).
Trina argued that neither the trade court nor Commerce addressed its claim that the nature of the production process in Vietnam compelled a negative circumvention finding (see 2510280041). The exporter said the circumvention statute is meant to address "screwdriver" operations, adding that its Vietnamese production processes are more than screwdriver operations.
In response, the U.S. said Trina waived this argument, since the company didn't bring it up on remand. Parties can only avoid the requirement to exhaust administrative remedies if their argument is a "pure question of law" or raising it before the agency would be futile, and neither exception applies here, the government argued. Trina hasn't argued that the issue is a pure question of law, and, in fact, "the issue of whether processing or completion in Vietnam was minor or insignificant under 19 § U.S.C. 1677j(b)(1)(C) explicitly required application of Commerce’s expertise to the factual record to make a factual finding guided by the statute," the brief said.
Regardless, Trina's argument fails as a matter of law, the U.S. said. The government argued that the trade court, in its first ruling, addressed the exporter's claim. Instead of finding that the nature of the production process "was alone dispositive," as Trina suggests, the trade court told Commerce "to make a finding regarding all of the statutory factors and weigh those factors against each other," the U.S. said.
Commerce said it placed particular emphasis on the "factor of research and development due to the 'uniquely complex nature of solar cell and module production.'" Trina doesn't even try to "dispute the underlying findings by Commerce in the Remand Results" or argue that the agency was incorrect in giving this one factor more weight. Nor does the exporter argue that Commerce was wrong to look to the statute's guidance "that explains that no single factor of §1677j(b)(2) is controlling," the brief said.
Instead, Trina says the "nature of the production process factor" can't be reconciled with an affirmative circumvention finding, since anti-circumvention proceedings were created to address screwdriver operations. However, the fact the statute mentions screwdriver operations as an example doesn't limit the statutory definition of "minor or insignificant," but rather it plainly alludes to "minor or insignificant" third-country production processes, the brief said.
"If the nature of the production process alone controlled in order to 'address screwdriver operations,' then Congress would not have listed other factors Commerce must consider when making a determination under §1677j(b)(1)(C)," the U.S. argued.