Slip Op. 26-29
UNITED STATES COURT OF INTERNATIONAL TRADE
Court No. 23-00228
TRINA SOLAR (VIETNAM) SCIENCE & TECHNOLOGY CO. LTD.; TRINA SOLAR ENERGY DEVELOPMENT COMPANY LIMITED; and TRINA SOLAR CO., LTD., Plaintiffs, and FLORIDA POWER & LIGHT COMPANY, Plaintiff-Intervenor, v. UNITED STATES, Defendant, and AUXIN SOLAR INC. and FIRST SOLAR VIETNAM MANUFACTURING CO., LTD., Defendant-Intervenors.
Before: M. Miller Baker, Judge
OPINION
[Sustaining the Department of Commerce’s redetermi- nation.]
Dated: March 17, 2026 Ct. No. 23-00228 Page 2
Jonathan M. Freed and MacKensie R. Sugama, Trade Pacific PLLC, Washington, DC, on the comments for Plaintiffs.
Alexander Brewer, Trial Attorney, Commercial Litiga- tion Branch, Civil Division, U.S. Department of Jus- tice, Washington, DC, on the comments for Defendant. Of counsel on the comments was Karl Mueller, Attor- ney, Office of Chief Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce, Washing- ton, DC.
Baker, Judge: This challenge to the Department of Commerce’s finding that solar cell imports from Vi- etnam circumvent antidumping and countervailing duty orders on such equipment made in China returns following the remand ordered in Trina Solar (Vi- etnam) Science & Technology Co. v. United States, Slip Op. 25-62, 789 F. Supp. 3d 1248 (CIT 2025) (Remand Op.). For the reasons explained below, the court sus- tains the agency’s redetermination.
I
As relevant here, the court directed Commerce to reconsider whether the process of assembling or com- pleting solar cells in Vietnam by Vina Solar Technol- ogy Co. and a group of other non-cooperating compa- nies was “minor or insignificant” for purposes of 19 U.S.C. § 1677j(b)(1)(C). See Remand Op. at 11–13, 789 F. Supp. 3d at 1254–55. The statute prescribes five factors the Department must “take into account” for that determination. 19 U.S.C. § 1677j(b)(2). The agency found three of them weighed in favor of finding Ct. No. 23-00228 Page 3
the process “minor or insignificant,” but it also found that one—the “nature of the production process”— pointed the opposite way, and it made no finding at all on the “extent of production facilities.” Remand Op. at 12–13, 789 F. Supp. 3d at 1254. Nor did it weigh the three affirmative conclusions against the one negative finding. Id. Instead, the court observed, Commerce “arbitrarily treated its adverse facts available finding as the administrative equivalent of landing on ‘Go to Jail.’” Id. at 12, 789 F. Supp. 3d at 1254. “Reasoned decision making required addressing every factor, bal- ancing them, and responding to the parties’ argu- ments.” Id. at 13, 789 F. Supp. 3d at 1254–55.
II
On remand, Commerce acknowledged that it must analyze the five statutory factors “to determine whether the process of assembly or completion of mer- chandise in a foreign country is minor or insignifi- cant.” Appx22029. It explained that the administra- tive record supported affirmative “minor or insignifi- cant” findings for Vina on three factors—level of in- vestment in Vietnam, R&D expenses in that country, and the extent of production facilities there compared to the extent of affiliates’ facilities in China. Appx22031.
As to the value of Vina’s processing in Vietnam, the Department also returned an affirmative “minor or in- significant” finding based on adverse facts available. Appx22032. Finally, Commerce stood by its prior con- clusion that the “nature of the production process” in Vietnam was significant for all producers, including Ct. No. 23-00228 Page 4
the uncooperative ones, which cut against a “minor or insignificant” determination. Id.
In sum, the Department explained, four of § 1677j(b)(2)’s factors “support[ed] finding that Vina Solar’s production in Vietnam is minor or insignifi- cant.” Appx22033. Of those, Commerce “g[a]ve partic- ular importance to the level of [Vina’s] R&D in Vi- etnam” because of “the uniquely complex nature of so- lar cell and module production.” Appx22034. Taken to- gether, these affirmative findings outweighed the agency’s negative determination as to “the nature of the production process.” Id.
Commerce then explained its application of that conclusion to the companies that refused to answer its questionnaire. It emphasized that it seeks to ensure that such entities cannot benefit from non-cooperation and stated that, because of that policy, it found that four of the five factors—except “nature of the produc- tion process”—pointed in favor of a “minor or insignif- icant” determination, which in turn supported finding circumvention. Appx22034–22035. The Department stated that while the “nature of the production pro- cess” was not “minor or insignificant” for any Vietnam- ese producer, that factor did not outweigh the other four. Appx22035–22036.
Commerce released its draft results to the inter- ested parties and gave them an opportunity to re- spond. Appx22025; Appx22029. None did, so the De- partment adopted the draft analysis as its final rede- termination. Appx22029. Ct. No. 23-00228 Page 5
III
Trina raises a single argument. It contends that neither the Remand Opinion nor Commerce’s redeter- mination addressed its argument that the nature of the production process of solar cells in Vietnam com- pelled a negative circumvention conclusion. ECF 65, at 2–8. The government responds that the company failed to exhaust its administrative remedies because it did not submit comments on the draft remand re- sults. ECF 71, at 11.
On reply, Trina contends that “exhaustion does not apply here because the issue Plaintiffs raised in their comments filed after the Remand Results was not within the scope of the order under which Commerce made its remand redetermination.” ECF 78, at 3. It as- serts that the court instructed the Department to make a finding on “extent of production” and then to balance the § 1677j(b)(2) factors to analyze the “minor or insignificant” issue. Id. But Trina argues that its “nature of the production process” argument—i.e., “that the finding with regard to the nature of pro- cessing was so clear and forceful that it compelled the negative circumvention determination”—was a sepa- rate issue the court did not remand because “[t]he rem- edy Plaintiffs sought with this argument was not for Commerce to balance all five factors . . . .” Id. at 4–5.
The court disagrees. It instructed the agency to ad- dress all the statutory factors, balance them, and con- sider the parties’ arguments. Id. at 12–13, 789 F. Supp. 3d at 1254–55. That necessarily meant enter- Ct. No. 23-00228 Page 6
taining Trina’s argument that the “nature of the pro- duction process” was dispositive.
That’s exactly what the agency’s draft remand re- sults did. They explained that although the nature of the production process in Vietnam was substantial as Trina contended, that did not outweigh the other four factors—including the all-important R&D—cutting the other way. Appx22024–22025.
If Trina disagreed, it needed to submit comments to that effect upon receiving the agency’s draft results. A party that fails “to raise the issue at the appropriate time on remand” abandons its argument “by failing to exhaust its administrative remedies before Com- merce.” Mittal Steel Point Lisas Ltd. v. United States, 548 F.3d 1375, 1383 (Fed. Cir. 2008) (citing AIMCOR v. United States, 141 F.3d 1098, 1111–12 (Fed. Cir. 1998)).
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Slip Op. 26-29
UNITED STATES COURT OF INTERNATIONAL TRADE
Court No. 23-00228
TRINA SOLAR (VIETNAM) SCIENCE & TECHNOLOGY CO. LTD.; TRINA SOLAR ENERGY DEVELOPMENT COMPANY LIMITED; and TRINA SOLAR CO., LTD., Plaintiffs, and FLORIDA POWER & LIGHT COMPANY, Plaintiff-Intervenor, v. UNITED STATES, Defendant, and AUXIN SOLAR INC. and FIRST SOLAR VIETNAM MANUFACTURING CO., LTD., Defendant-Intervenors.
Before: M. Miller Baker, Judge
OPINION
[Sustaining the Department of Commerce’s redetermi- nation.]
Dated: March 17, 2026 Ct. No. 23-00228 Page 2
Jonathan M. Freed and MacKensie R. Sugama, Trade Pacific PLLC, Washington, DC, on the comments for Plaintiffs.
Alexander Brewer, Trial Attorney, Commercial Litiga- tion Branch, Civil Division, U.S. Department of Jus- tice, Washington, DC, on the comments for Defendant. Of counsel on the comments was Karl Mueller, Attor- ney, Office of Chief Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce, Washing- ton, DC.
Baker, Judge: This challenge to the Department of Commerce’s finding that solar cell imports from Vi- etnam circumvent antidumping and countervailing duty orders on such equipment made in China returns following the remand ordered in Trina Solar (Vi- etnam) Science & Technology Co. v. United States, Slip Op. 25-62, 789 F. Supp. 3d 1248 (CIT 2025) (Remand Op.). For the reasons explained below, the court sus- tains the agency’s redetermination.
I
As relevant here, the court directed Commerce to reconsider whether the process of assembling or com- pleting solar cells in Vietnam by Vina Solar Technol- ogy Co. and a group of other non-cooperating compa- nies was “minor or insignificant” for purposes of 19 U.S.C. § 1677j(b)(1)(C). See Remand Op. at 11–13, 789 F. Supp. 3d at 1254–55. The statute prescribes five factors the Department must “take into account” for that determination. 19 U.S.C. § 1677j(b)(2). The agency found three of them weighed in favor of finding Ct. No. 23-00228 Page 3
the process “minor or insignificant,” but it also found that one—the “nature of the production process”— pointed the opposite way, and it made no finding at all on the “extent of production facilities.” Remand Op. at 12–13, 789 F. Supp. 3d at 1254. Nor did it weigh the three affirmative conclusions against the one negative finding. Id. Instead, the court observed, Commerce “arbitrarily treated its adverse facts available finding as the administrative equivalent of landing on ‘Go to Jail.’” Id. at 12, 789 F. Supp. 3d at 1254. “Reasoned decision making required addressing every factor, bal- ancing them, and responding to the parties’ argu- ments.” Id. at 13, 789 F. Supp. 3d at 1254–55.
II
On remand, Commerce acknowledged that it must analyze the five statutory factors “to determine whether the process of assembly or completion of mer- chandise in a foreign country is minor or insignifi- cant.” Appx22029. It explained that the administra- tive record supported affirmative “minor or insignifi- cant” findings for Vina on three factors—level of in- vestment in Vietnam, R&D expenses in that country, and the extent of production facilities there compared to the extent of affiliates’ facilities in China. Appx22031.
As to the value of Vina’s processing in Vietnam, the Department also returned an affirmative “minor or in- significant” finding based on adverse facts available. Appx22032. Finally, Commerce stood by its prior con- clusion that the “nature of the production process” in Vietnam was significant for all producers, including Ct. No. 23-00228 Page 4
the uncooperative ones, which cut against a “minor or insignificant” determination. Id.
In sum, the Department explained, four of § 1677j(b)(2)’s factors “support[ed] finding that Vina Solar’s production in Vietnam is minor or insignifi- cant.” Appx22033. Of those, Commerce “g[a]ve partic- ular importance to the level of [Vina’s] R&D in Vi- etnam” because of “the uniquely complex nature of so- lar cell and module production.” Appx22034. Taken to- gether, these affirmative findings outweighed the agency’s negative determination as to “the nature of the production process.” Id.
Commerce then explained its application of that conclusion to the companies that refused to answer its questionnaire. It emphasized that it seeks to ensure that such entities cannot benefit from non-cooperation and stated that, because of that policy, it found that four of the five factors—except “nature of the produc- tion process”—pointed in favor of a “minor or insignif- icant” determination, which in turn supported finding circumvention. Appx22034–22035. The Department stated that while the “nature of the production pro- cess” was not “minor or insignificant” for any Vietnam- ese producer, that factor did not outweigh the other four. Appx22035–22036.
Commerce released its draft results to the inter- ested parties and gave them an opportunity to re- spond. Appx22025; Appx22029. None did, so the De- partment adopted the draft analysis as its final rede- termination. Appx22029. Ct. No. 23-00228 Page 5
III
Trina raises a single argument. It contends that neither the Remand Opinion nor Commerce’s redeter- mination addressed its argument that the nature of the production process of solar cells in Vietnam com- pelled a negative circumvention conclusion. ECF 65, at 2–8. The government responds that the company failed to exhaust its administrative remedies because it did not submit comments on the draft remand re- sults. ECF 71, at 11.
On reply, Trina contends that “exhaustion does not apply here because the issue Plaintiffs raised in their comments filed after the Remand Results was not within the scope of the order under which Commerce made its remand redetermination.” ECF 78, at 3. It as- serts that the court instructed the Department to make a finding on “extent of production” and then to balance the § 1677j(b)(2) factors to analyze the “minor or insignificant” issue. Id. But Trina argues that its “nature of the production process” argument—i.e., “that the finding with regard to the nature of pro- cessing was so clear and forceful that it compelled the negative circumvention determination”—was a sepa- rate issue the court did not remand because “[t]he rem- edy Plaintiffs sought with this argument was not for Commerce to balance all five factors . . . .” Id. at 4–5.
The court disagrees. It instructed the agency to ad- dress all the statutory factors, balance them, and con- sider the parties’ arguments. Id. at 12–13, 789 F. Supp. 3d at 1254–55. That necessarily meant enter- Ct. No. 23-00228 Page 6
taining Trina’s argument that the “nature of the pro- duction process” was dispositive.
That’s exactly what the agency’s draft remand re- sults did. They explained that although the nature of the production process in Vietnam was substantial as Trina contended, that did not outweigh the other four factors—including the all-important R&D—cutting the other way. Appx22024–22025.
If Trina disagreed, it needed to submit comments to that effect upon receiving the agency’s draft results. A party that fails “to raise the issue at the appropriate time on remand” abandons its argument “by failing to exhaust its administrative remedies before Com- merce.” Mittal Steel Point Lisas Ltd. v. United States, 548 F.3d 1375, 1383 (Fed. Cir. 2008) (citing AIMCOR v. United States, 141 F.3d 1098, 1111–12 (Fed. Cir. 1998)). “At the very least,” Trina “should have indi- cated that it maintained its prior position with respect to” how to weigh the five factors. 1 Mittal, 548 F.3d at 1384; see also KYD, Inc. v. United States, 836 F. Supp. 2d 1410, 1414 (CIT 2012) (“All claims, argu- ments, and objections that a plaintiff has elected not to address in its post-remand briefs must be deemed waived.”) (cleaned up) (quoting Bond St., Ltd. v. United States, 774 F. Supp. 2d 1251, 1261 (CIT 2011)).
1 Playing word games, Trina contends its position is that
Commerce should not “weigh” the relevant factors at all— instead, it contends that on this record the agency must deem “nature of the production process” dispositive. ECF 78, at 5. Assigning outcome-determinative significance to the company’s preferred factor is a weighing exercise. Ct. No. 23-00228 Page 7
Providing comments on the draft results would have provided the agency the “opportunity to correct its own mistakes.” McCarthy v. Madigan, 503 U.S. 140, 145 (1992). Commerce was free to change course “if a sufficiently persuasive showing [were] made” that those results were flawed. Corus Staal BV v. United States, 502 F.3d 1370, 1380 (Fed. Cir. 2007) (citing McCarthy, 503 U.S. at 147–48). “Even if it [were] un- likely that [the agency] would adopt [Trina’s] legal ar- guments . . . , it was still possible that upon full airing, [the Department] might have accepted” them, “there- by obviating the need for judicial review.” Id. The court therefore holds that the company failed to exhaust its remedies. 2
2 Even if Trina had exhausted its arguments and the De-
partment had reached the same conclusion, the court would still sustain the redetermination. In remanding, the court directed Commerce to address all the § 1677j(b)(2) factors and weigh them. Remand Op. at 12–13, 789 F. Supp. 3d at 1254–55. As explained above, that’s what the agency did. Although Trina objects to how Commerce balanced the factors, see ECF 65, at 2–8, the court rejected that argu- ment in two similar cases and does so here for the same reasons. See BYD (H.K.) Co. v. United States, 785 F. Supp. 3d 1359, 1371–76 (CIT 2025), appeal pending, No. 25-1937 (Fed. Cir.); Canadian Solar Int’l Ltd. v. United States, 788 F. Supp. 3d 1262, 1270–75 (CIT 2025), appeal pending, No. 25-1940 (Fed. Cir.). The Department ex- plained that “nature of the production process” did not out- weigh the other four factors because of R&D’s cardinal sig- nificance. Appx22034. Even if the record permits the read- ing that Trina demands, the agency reasonably reached a (footnote continues on next page) Ct. No. 23-00228 Page 8
* * *
“The law helps those who help themselves, gener- ally aids the vigilant, but rarely the sleeping, and never the acquiescent.” Hannan v. Dusch, 153 S.E. 824, 831 (Va. 1930). Trina’s silence in response to the agency’s draft results might not have constituted in- tentional acquiescence, but it certainly amounted to sleeping. Because the company failed to exhaust its administrative remedies, the court sustains the De- partment’s redetermination. A separate judgment will issue. See USCIT R. 58(a).
Dated: March 17, 2026 /s/ M. Miller Baker New York, NY Judge
different conclusion based on substantial evidence. See SSIH Equip. S.A. v. U.S. Int’l Trade Comm’n, 718 F.2d 365, 382 (Fed. Cir. 1983) (if Commerce makes a choice between “two fairly conflicting views,” the court may not substitute its judgment even if its view would have been different had the matter been before it de novo”) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)).