Importer Submits Own Motion for Judgment in Solar Panel Circumvention Case

Refraining from joining exporters’ June 13 submission to the Court of International Trade (see 2406140059), a plaintiff-intervenor importer filed its own motion for judgment making similar arguments against Commerce’s finding that Thai solar panel exporters had circumvented an antidumping duty order on solar panels from China (Canadian Solar International Limited v. U.S., CIT # 23-00222).

First, importer NextEra Energy Constructors said, the department unreasonably elevated the importance of research and development in determining a product’s country of origin, and, second, it underestimated the actual value added to the product by manufacturing in Thailand.

The Statement of Administrative Action that accompanied the Uruguay Round Agreements Act -- which created the current antidumping and countervailing duty system -- holds that Commerce must consider five factors to find circumvention of an AD or CVD order, and “no single factor will be controlling,” NextEra said.

Further, “Congress directed Commerce ‘to focus more on the nature of the production process’ in its inquiry,” the importer said. Despite these claims, however, it said Commerce’s affirmative circumvention finding for the exporters was only supported by one factor -- level of R&D.

“In no other case has Commerce found that the process of assembly or completion was minor when a majority of the factors weighed against that conclusion,” it said. “Moreover, besides this case, Commerce does not appear to have ever found that the process of assembly or completion was minor or insignificant when the ‘nature of the production process’ weighed against that conclusion.”

The department also wrongly found that the little value added to the solar panels by processing in exporters Trina Solar Science & Technology’s and Canadian Solar’s Thai facilities, the importer claimed.

“NextEra will not repeat Plaintiffs’ various arguments with respect to this issue, but emphasizes that Commerce in prior circumvention inquiries has explicitly incorporated a qualitative analysis into its consideration of this specific factor,” it said.

In another review, Commerce held that 15% to 20% value added was not a “small” proportion when considered alongside qualitative changes to the good being investigated, NextEra noted.

Because the statute doesn’t provide a specific numerical definition of a “small” amount of value added, the department was required to look at qualitative factors, it said. These weigh in favor of a finding for the importer, it said, as the department previously held that it is production of solar cells and solar modules that imparts the essence of solar panels; that step occurs in Thailand, not China, the importer claimed.