Importer Says Solar Charging Modules Fit Under Consumer Goods, Off-Grid AD/CVD Exclusions
The Commerce Department erred in including importer GameChange Solar's off-grid solar charging modules in the scope of the antidumping duty and countervailing duty orders on Chinese solar cells, the importer argued in a motion for judgment at the Court of International Trade last week. GameChange argued that Commerce "unlawfully" said its goods don't fit under the orders' exclusions for consumer goods or off-grid crystalline silicon photovoltaic panels (GameChange Solar v. United States, CIT # 24-00174).
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In any case, Commerce erred in failing to find whether the company's charging modules are covered by the orders by specifically analyzing the scope language or engaging in further consideration under the (k)(1) and (k)(2) factors, the brief said. GameChange argued that the agency "merely analyzed two scope exclusions" and failed to engage in a standard scope analysis.
In its scope ruling, Commerce said GameChange's modules didn't satisfy the consumer goods exclusion, which excludes consumer goods with a "primary function other than power generation."
Commerce defined a "consumer good" generally as "goods that directly satisfy human wants." The agency said it's not clear the solar cells in GameChange's modules are "integrated into a consumer good given that the charging module is used to operate the solar modules in the array that produces electricity for consumers." Even if the charging module were to be considered a consumer good, Commerce said its function isn't something other than "power generation."
The importer claimed that by Commerce's own definition, the company's charging modules are consumer goods "whose function is other than power generation." The company said Commerce, in "reaching the diametrically opposite conclusion," ignored evidence showing the module is "sold directly to end-users as part of the Genius Tracker," which is a stand-alone product that aids solar racking systems to change position. Commerce even analyzed the Genius Tracker under this exception at first but later shifted focus to more narrowly look at whether the charging module has a function other than power generation.
Commerce also said GameChange's modules don't qualify for the off-grid solar cell panel exclusion. The exclusion has six different requirements, and the agency said the modules don't qualify for two of them: the requirement that the good have a "permanently connected wire that terminates in either an 8 mm male barrel connector, or a two-port rectangular connector with two pins in square housing of different colors" and the criteria that products be "packaged in individual retail packaging."
GameChange relied heavily on the largely redacted evidentiary record in this portion of its brief, arguing that Commerce failed to account for multiple pieces of evidence showing its product meets these two criteria.
Lastly, the importer said Commerce only found that the company's products failed to meet these two exclusions and that the agency didn't look to whether the products actually fit under the scope language. "The absence of exclusionary language in the scope is not sufficient for Commerce to include an imported article within the scope of an ADD/CVD order," the brief said. Commerce said it's clear the scope of the orders covers off-grid solar modules, since explicit exclusions were added to the scope for specific types of off-grid solar modules, but if the scope didn't cover off-grid solar modules, there would be no need to add exclusions for specific types of off-grid solar modules, the brief said.
"Such circular reasoning is devoid of the necessary identification of plain scope language necessary to find GameChange’s charging module subject to the ADD/CVD Orders," GameChange argued. The company said it's "axiomatic" that the "absence of exclusionary language in the scope is not sufficient for Commerce to include an imported article within the scope of an ADD/CVD order."