Trina Solar (Vietnam) Science & Technology Co., Ltd. et al v. United States

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
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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
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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
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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.
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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-
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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.
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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)
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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)).
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