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New Antidumping and Countervailing Duty Petitions Filed on Crystalline Silicon Photovoltaic Products from China and Taiwan

On December 31, 2013, SolarWorld Industries America Inc. (Petitioner) filed petition with the U.S. Department of Commerce (DOC) and the U.S. International Trade Commission (ITC) requesting that antidumping duties (AD) be imposed on certain crystalline silicon photovoltaic (c-Si PV) products imported from China and Taiwan, and that countervailing duties (CVD) be imposed on c-Si PV products imported from China.  If you are an importer of c-Si-PV products for which either the modules or the cell parts are manufactured in China or Taiwan, this petition could result in significant potential AD/CVDliability for your company.  As a result, you should consider participating in the first stage of the investigation process, which is the preliminary injury investigation at the U.S. International Trade Commission (ITC).  The ITC will be sending out questionnaires to importers within the next few days, and we expect that the ITC will schedule a preliminary hearing on or about January 21, 2014.

In December 2012, AD/CVD orders were issued against c-Si PV cells, whether or not assembled into modules, from China.  However, according to the Petitioner, while the 2012 investigation was underway, Chinese and Taiwanese solar producers begin using cells fully or partially manufactured in Taiwan in the modules they assembled for exported to the United States.  These modules that were manufactured in China from cells that were fully or partially made in Taiwan were not covered by the 2012 AD/CVD orders.  According to Petitioner, imports of c-Si PV cells and modules from Taiwan increased dramatically in 2012 and 2013, and these imports have caused injury to the U.S. solar industry, specifically a collapse in U.S. prices, numerous bankruptcies by U.S. producers, shuttered operations, and hundreds of layoffs of U.S. workers.

Petitioner therefore asks the DOC and the ITC to conduct new AD/CVD investigations to cover this “loophole.”  Under the scope of investigation proposed by Petitioner, the new investigation would include “modules, laminates and/or panels consisting of crystalline silicon photovoltaic cells completed or partially manufactured within a customs territory other than that subject country, using ingots, wafers, or partially manufactured cells sourced from the subject country.”  The proposed scope would specifically exclude any products already covered by the existing AD/CVD orders on c-Si PV cells from China.

Petitioner alleges a dumping margin for Chinese producer Suntech of 298.40 percent.  Petitioner alleges dumping margins for Taiwanese producers of up to 39.01 percent.  Petitioners also allege that the Chinese government is providing Chinese producers with a wide range of unfair subsidies, and contends that the DOC should impose subsidy margins of no less than 15.97 percent, based on the DOC’s subsidy findings in the 2012 CVD investigation.

As a first step in the investigation, the ITC must determine whether there is a “reasonable indication” that the U.S. industry is materially injured, or threatened with material injury, by reason of the dumped and/or subsidized imports from China and Taiwan.  As noted above, the ITC will issue questionnaires to U.S. and foreign producers, as well as to U.S. importers, within the next few days.  We anticipate that the ITC will hold a preliminary hearing on or about January 21, 2014.  The ITC must make its preliminary injury determination no later than February 14, 2014.  If the ITC determination is affirmative, the DOC will proceed to determine whether the subjectmerchandise from China is being dumped, and whether the subjectmerchandise from China is being unfairly subsidized.  If the DOC makes affirmative determinations, then your company, as importer of record of c-Si PV cells from China and/or Taiwan, will be subject to potential AD/CVD liability, and special cash deposit requirements.

© 2020 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.National Law Review, Volume IV, Number 3


About this Author

Douglass Heffner, International trade lawyer, Drinker Biddle

Douglas J. Heffner litigates customs and international trade matters including antidumping duty, countervailing duty and safeguard cases. He represents foreign companies in Canada, Europe, Japan and Mexico, as well as domestic producers in industries that range from high-tech to heavy industry, to consumer and industrial goods. He also represents trade associations, government agencies and embassies in a broad range of matters.

Richard P Ferrin, International Trade Lawyer, Drinker Biddle

Richard P. Ferrin advises clients about international trade regulations, particularly antidumping and countervailing duty proceedings at both the administrative and appellate levels. He advocates for his client in global “safeguards” proceedings and on customs matters involving classification issues and country-of-origin determinations. Richard has represented foreign manufacturers, foreign exporters, and U.S. importers in antidumping and countervailing duty proceedings before the U.S. International Trade Commission, and in judicial review of administrative actions at the U.S. Court of International Trade, U.S. Court of Appeals for the Federal Circuit and North American Free Trade Agreement binational panels. In addition, Richard advises importers on how to minimize antidumping duty liability.