Analysis: Vote is "Affirmative" in USITC's Final Determination of Injury to U.S. Solar Cell Industry from Imports of CSVP Solar Products from China and Taiwan

by Stoel Rives LLP
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By a vote held on January 21, 2015, the U.S. International Trade Commission (USITC) made an affirmative final determination of “material injury” to the U.S. solar cell manufacturing industry due to low-priced Crystalline Silicon Photovoltaic (CSPV) products from China and Taiwan, and subsidized CSPV products from China.  The U.S. International Trade Administration (ITA, part of the U.S. Department of Commerce) has already issued Affirmative Final Determinations of dumping CSPV products from China and Taiwan, and unfair subsidies for CSPV products from China.  The ITA will soon issue antidumping duty (AD) Orders against certain CSPV products from China and Taiwan and a countervailing duty (CVD) Order against certain CSPV products from China.

Four Commissioners voted affirmatively with respect to all subject CSPV products and Chairman Meredith M. Broadbent voted in the affirmative with respect to modules from China and Taiwan and in the negative with respect to cells from Taiwan.  Commissioner F. Scott Kieff did not vote.  Copies of the final USITC report and remarks will be available on or about February 20, 2015.  Based on the projected timing in the USITC press release, the ITA AD and CVD Orders will be issued in the first half of February, 2015, with instructions to Customs and Border Patrol (U.S. Customs) to follow soon thereafter.

Our in depth analysis will follow publication of the ITA AD and CVD Orders in February, 2015, but here is an interim guide for exporters and importers of CSPV products:

CSPV Cells from Taiwan

As we detailed in our recent Taiwan Alert, in its Final Determination (79 Fed. Reg. 76966 (Dec. 23, 2014)), ITA altered the scope of the products covered in the investigation.  For Taiwan, the final scope focuses on Taiwanese cells and excludes modules and panels made in Taiwan from third country cells.  See the Taiwan scope description in the fact sheet attached to the USITC press release.

For now, subject CSPV products for Taiwan require AD cash deposits as follows:

Taiwanese Industry Dumping Margins/Cash Deposit Rates

Rate Category

Final Determination

Gintech Energy, Case No. A-583-853-001

27.55%

Motech Indus., Case No. A-583-853-002

11.45%

All Others, Case No. A-583-853-001

19.50%

The U.S. Customs instructions further provide that if the exporter of the subject products does not have its own cash deposit rate, then the rate for the producer which supplied those products will be used. If neither the exporter nor the producer has a separate rate, then the “all others” rate of 19.50% will be used.

As described in our Taiwan Alert, exporter and importer certifications are required in some instances.  Note that there are no CVD rates imposed on Taiwanese CSPV products.  ITA could adjust these AD rates for any calculation errors in its AD order, but until then any CSPV products within the scope of the investigation are subject to the above cash deposit rates.

CSPV Products from China

The situation for CSPV products from China is more complex due to the interplay of the CVD investigation and the previous ITA AD and CVD Orders issued in 2012 against Chinese cells and products containing Chinese cells (2012 Cases).  As we described in our report on the December, 2014 Affirmative Final Determination of ITA in the current cases, the scope changed for subject CSPV products from China as well.  Most importantly, all modules and panels assembled in China from cells of any other country are subject to AD and CVD cash deposit rates as follows

Chinese Industry Dumping Margins

Rate Category

Final Determination

Cash Deposit Rates Adjusted for Export Subsidies

2 Mandatory Trina Solar Respondents, Case No. A-570-010-001

26.71%

TBD in U.S. Customs Instructions

4 Mandatory Jinko Solar Respondents, Case No. A-570-010-002

78.42%

TBD

42 Separate Rate Companies, Case No. A-570-010-0XX

52.13%

TBD

China-Wide Entity, Case No. A-570-010-000

165.04%

TBD

 

Chinese Industry Subsidy Rates

Rate Category

Final Determination

6 Wuxi Suntech Respondents, Case No. C-570-011-001

27.64%

2 Trina Solar
Respondents, Case No. C-570-011-002

49.79%

All Others, Case No. C-570-011-000

38.72%

The full scope description of the CSPV products covered in these investigations is set forth in the fact sheet attached to the USITC press release.

As with Taiwanese CSPV products, the U.S. Customs instructions for the AD cash deposits further provide that if the exporter of the subject products does not have its own cash deposit rate, then the rate for the producer which supplied those products will be used. If neither the exporter nor the producer has a separate rate, then the China-Wide Entity AD rate of 165.04% will be used.  No exporter or importer certifications are required for the CSPV products subject to the new AD cash deposit rates.  Again, ITA could adjust these AD rates in the AD Order for any calculation errors in the Final Determination.

No CVD Cash Deposits Due Until the ITA CVD Order Issues Next Month

As explained in our report on the USITC Final Phase hearing in December, 2014, the CVD investigation against Chinese CSPV products was aligned with the AD investigation so that Final Determinations would issue at the same time.  However, that alignment caused the preliminary cash deposit rates for the CVD investigation to exceed a four month statutory maximum period for collection.  Therefore, as of October 8, 2014, the CVD cash deposits were suspended and only the AD cash deposits applied.  The CVD cash deposit rates will resume in February, 2015, when ITA issues the CVD Order with any necessary rate adjustments.  Until then, only the AD cash deposit rates for China without subsidy adjustment will apply as show in the table above.

Continued Cash Deposit Requirements of the 2012 Cases

Note also, the earlier 2012 Cases for Chinese cells continue to require cash deposits as follows:

2012 Case for Chinese Industry Dumping Margins

Rate Category for Exporter and Related Manufacturer Pairs

AD Order Cash Deposit Rates Adjusted for Export Subsidies

Trina Solar Company Pairs

7.78%%

Wuxi Suntech Company Pairs

18.60%

At Least 70 Other  Separate Rate Company Pairs

13.94%

China-Wide Entity

239.42%

 

2012 Case for Chinese Industry Subsidy Rates

Rate Category

CVD Order

Trina Solar
Entities

15.97%

Wuxi Suntech Entities

14.78%

All Others Rate

15.24%

These rates have been in place since the December, 2012 ITA AD and CVD Orders in the 2012 Cases, and they are in force now.  However, ITA recently issued Preliminary Results for its first Administrative Review of the 2012 Cases which will change the cash deposit rates for some exporters if they are finalized in about three months or so.  See 80 Fed. Reg. 1019 (Jan. 8, 2015).  We will report on those Final Results in the coming weeks as new information develops.

Summary of Where Things Stand

Starting with the ITA Final Determinations published December 23, 2014 until the date of the ITA AD and CVD Orders to be issued in the first half of February, 2015, CSPV products entering the U.S. Customs territory will be subject to the following AD and CVD cash deposit rates in addition to normal duty rates. The current cases against Taiwan and China are referred to as “2015 Cases” based on the year in which AD and CVD Orders will be issued.

Assembly Country

Cell Country

AD/CVD Rates Applicable

China

China

2012 China AD and CVD rates

China

Taiwan

2015 China AD rates*

China

Any Third Country

2015 China AD rates*

Taiwan

Taiwan

2015 Taiwan AD rates

Taiwan

China

2012 China AD and CVD rates

Taiwan

Any Third Country

Excluded

Any Third Country

China

2012 China AD and CVD rates

Any Third Country

Taiwan

2015 Taiwan AD rates

Any Third Country

Any Third Country

Excluded

*Note that CVD cash deposit rates are suspended until they resume in the ITA CVD Order and could be retroactive to the date of the published USITC Final Determination.

We will update this table after the ITA Orders issue next month.

Stoel Rives Updates

The Stoel Rives Energy Trade Team will monitor further developments in these Solar Trade Cases and report on events as they occur, including the final USITC report and the ITA AD and CVD Orders when they issue.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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