The U.S. International Trade Administration of the U.S. Department of Commerce (“ITA”) made the preliminary countervailing duty (“CVD”) rates announced last week effective today, June 10, in a published notice, 79 Fed. Reg. 33,174 (June 10, 2014). The notice confirms that all Chinese-origin solar modules, laminates, panels and building integrated materials that are within the scope of the current ITA investigation (C-570-011) and imported into the U.S. Customs territory beginning today are subject to the new CVD rates. Importers will be required to make a cash deposit with U.S. Customs and Border Protection (“Customs”) for the total amount of the CVDs at the time such merchandise is entered through Customs. The petitioner in the current case, SolarWorld America Industries Inc. (“SolarWorld”), praised the determination in a press release.
SolarWorld filed the current CVD case against Chinese solar products producers and exporters together with companion antidumping (“AD”) cases against Chinese and Taiwanese solar products producers and exporters (the “2014 cases”) in an effort to close a so-called “loophole” in the successful 2012 CVD/AD cases against Chinese solar products producers and exporters. The 2012 ITA orders applied to Chinese solar cells and solar products made with Chinese solar cells. In the current 2014 cases, SolarWorld alleged that Chinese producers simply moved production to willing Taiwanese solar cell producers that in many cases used Chinese ingots or wafers in their production process, then transferred the finished solar cells back to China for module and panel production. In some cases, the Taiwanese finished solar cells were exported directly to the United States or third countries, or made into solar products and then exported from Taiwan. In these scenarios, the rules of origin deemed the solar cells to originate in Taiwan, notwithstanding the use of Chinese ingots or wafers. Therefore, Taiwanese-origin solar cells and products were not covered by the scope of the 2012 orders and no CVD/AD penalties attached to them. SolarWorld’s 2014 petition seeks to close that “loophole” by penalizing all solar products made with solar cells having and Chinese inputs, regardless of where the country rules of origin would place the products.
The New CVD Rates
As we reported last week, the new preliminary CVD rates were set at 18.56% on Trina Solar and 35.21% on Suntech and five affiliates, and an “all others” or industry rate of 26.89% for U.S. imports of subject solar products. These preliminary duty rates appear to be generally higher than expected by the U.S. solar industry. By comparison, in 2012 the CVD rates set in the preliminary determination were in the low single digits, and then increased in the final determination and order to around 15% on average. The higher 2014 rates can be attributed in part to the challenges faced by the ITA in the investigation. In its Decision Memorandum, the ITA noted that the Chinese government was not fully cooperative and forthcoming on some information requests so the ITA was permitted to assume adverse facts that contributed to the higher rates. Further, the ITA calculated the “all others” rate as a simple average of the individual rates for Trina Solar and Suntech. These preliminary rates could change or be dropped altogether, depending on the analysis developed by both the ITA and the U.S. International Trade Commission (“ITC”) in the final phases of the investigation.
Another difference from the 2012 cases is the absence so far of a “critical circumstances” determination by the ITA that would allow the ITA to impose these preliminary CVD rates on subject imports retroactively for up to 90 days. The U.S. trade law allows the ITA to impose the retroactive remedy to address an increase in the subject imports prior to the imposition of CVDs or AD duties. In other words, the remedy seeks to prevent or penalize a surge of subject imports rushed to entry after the CVD or AD petitions are filed but before CVDs or AD duties are imposed. In 2012, SolarWorld successfully sought and received a “critical circumstances” remedy for both the CVD and AD cases at the preliminary determination phase. The remedy was subsequently withdrawn, but it caught many importers by surprise, causing some financial pain when Customs began collecting the cash deposits owed on previously entered imports. However, in the 2014 investigations there is no indication that SolarWorld has asked for the retroactive remedy. Nonetheless, it is not too late for the ITA or SolarWorld to initiate a “critical circumstances” review for this CVD case, and there is plenty of time for the remedy in the AD case. For now, importers remain at some risk of this 90-day retroactive remedy.
The Affected Solar Products
Effective June 10, the ITA directs Customs to apply the CVD rates to all subject products imported from China, namely crystalline silicon photovoltaic cells and products containing such cells. The ITA has accepted for now the broad scope of the subject products proposed by SolarWorld and repeated in the Fact Sheet. Excluded from the investigation are certain types and sizes of solar cells as well as all products covered by the prior 2012 CVD/AD orders. We advise all interested parties to study the scope description carefully.
The present subject products scope could be narrowed or clarified in the final determination and order. We expect that it will take some time for Customs and the solar industry to settle into a consistent interpretation and practice with respect to these solar product imports from China. For now, we propose the general guideline below on how the scope breaks down, but we note the substantial disagreement about the present scope definition and the applicability of country of origin rules of interpretation under the substantial transformation test. Under prior practice, module assembly alone did not generally change the country of origin of the solar cells. In other words, modules were deemed to originate in the country of origin of the solar cells. The present dispute concerns how to determine country of origin of the solar cells when part of the inputs or production process occurs in more than one country. For now, SolarWorld’s proposal of ingot or wafer origin plus module assembly controls. (Note: We emphasize that importers should undertake a careful scope review with their Customs brokers or legal counsel before making any importation decisions for their specific products.)
Our proposed guideline for the present product scope follows:
1. Subject solar products from China and anywhere else made with Chinese-origin solar cells are subject to the 2012 CVDs/AD duties.
2. Subject solar products from China made with solar cells manufactured in another country using Chinese ingots, wafers or production services for any part of such solar cells are subject to the 2014 preliminary CVDs.
3. Solar products from China made with non-Chinese-origin solar cells that have no Chinese inputs are subject to normal tariff rates for the country of origin of the solar cells.
4. Subject solar products from China or Taiwan using solar cells produced in part in both countries or only of Taiwanese-origin solar cells may be subject to 2014 AD duties to be announced by July 24, 2014 (i.e., not yet in effect; see our discussion below).
It may be a challenge for importers and Customs to sort out which duties apply to a shipment of solar products from China when clearing Customs. In 2012, the ITA provided guidance for proving the origin of solar cells imported alone or as part of a module or other product in the form of importer and exporter certifications. These certifications are to be completed, signed and dated prior to the date of entry of the subject merchandise through Customs. We expect the ITA to provide similar certification guidance for the 2014 cases. Until such guidance issues, we recommend that importers and exporters use the 2012 certification templates to prepare for clearing solar products through Customs. See 77 Fed. Reg. 63,791, 63,797 (Oct. 17, 2012).
Subject merchandise arriving at a port of entry in Customs territory must be “entered” for use within that territory. Customs entry of merchandise is usually done by brokers acting as agents for the “importer of record,” a term of art designating the party who is responsible for the imported merchandise and the financial obligations for all duties, taxes and charges applicable to the imported merchandise. The importer of record can be a foreign party and is not necessarily the end user/purchaser of the merchandise, e.g., an installer.
Typically, a Customs broker will submit the necessary documentation and information needed to allow Customs to record the details of the shipment for recordkeeping and reporting purposes as well as assess the origin and value of the merchandise for collecting applicable duties, taxes and charges. A synopsis of the information needed for valuation is submitted on an “Entry Summary” Form 7501, usually electronically. The Entry Summary has a place for calculating all CVDs and AD duties on the shipment. The amount calculated must be paid in the form of a cash deposit at the time of entry.
If there is a question about the origin of the solar cells imported alone or as part of another solar product, importers will be required to submit proof of origin, including certain certifications recommended by the ITA. The certifications are not required to be submitted unless requested by Customs. Customs has wide discretion to evaluate and assess the origin of solar cells potentially subject to CVDs or AD duties. Scenarios in which proof of origin may be requested are, for example, (1) when modules or panels from China or Taiwan are cleared through Customs, and (2) such products from third countries like Canada, Malaysia, Korea or India, when there is reason to suspect the solar cells originated in China or Taiwan. We recommend that importers of solar products build the certifications of origin into the transaction documentation process and work with their Customs brokers to ensure the brokers have what they need for a smooth “entry” of the products ahead of the arrival of the shipment at port.
The 2014 Antidumping Investigation Status
The ITA Affirmative Preliminary Determination in the CVD case is directed at the Chinese solar products export industry, but it impacts Taiwanese solar cell producers to the extent they use Chinese ingots or wafers in their production process then ship those cells back to China for assembly into solar products. As we reported in our February 2014 alert, SolarWorld also filed petitions alleging illegal product dumping at prices less than fair value by both Chinese exporters (A-570-010) and Taiwanese exporters (A-583-853). The dumping investigations are on a different timeline from CVD investigations, and the preliminary determinations in those investigations were originally due this week. However, in a May 27, 2014 notice, the ITA postponed the preliminary determination deadline in those investigations to July 24, 2014 due to their complexity. See 79 Fed. Reg. 30,084 (May 27, 2014).
The scope of merchandise in the AD investigations is currently the same as the CVD investigations. It is possible to subject the same imported merchandise to both CVDs and AD duties for one country, cumulatively, as was done in the 2012 orders. However, one product cannot be subject to two country of origin AD/CVD remedies, so if the ITA makes an affirmative preliminary determination in the AD investigations, the ITA will need to clarify which penalties apply to solar cells produced in Taiwan from Chinese ingots or wafers and those solar cells produced in China from Taiwanese ingots or wafers.
The Next Steps
These ITA investigations are interdependent on the final ITC determination on domestic injury to the U.S. solar industry. The CVD case against the Chinese solar industry is now on schedule for a final determination by August 18, 2014. If the August 18 ITA final determination is affirmative, then the ITC will issue its final determination on or about October 3, 2014. If the ITC final determination is affirmative, a final order in the CVD case is expected in mid-October.
The AD investigation against the Chinese and Taiwanese solar industries is now due for a preliminary determination by July 24, 2014, with a final determination to be scheduled within 75 days of the preliminary determination or in mid-October. Therefore, all interested parties should mark June 10, August 18 and October 3 as benchmarks in the CVD case and July 24 and approximately the first week of October for the AD case.
Although there is no indication of a “critical circumstances” analysis ongoing now, the ITA has until 21 days before the final determination in these CVD and AD investigations to initiate such a review or respond to a petition alleging proper facts. See 19 C.F.R. § 351.206(b). There’s still time, though the question will be whether the importation levels justify the remedy.
For now, the solar industry will be focused on the impact of the preliminary CVDs while waiting to learn whether Taiwanese manufacturers will be hit with AD duties later this summer.