Commerce Issues Preliminary Determination That Solar Cells From China Should Be Assessed Antidumping And Countervailing Duties

August 7, 2012

Preliminary Determination On Antidumping Duties

On May 25, 2012, the Department of Commerce (Commerce) published its affirmative preliminary determination that imports of crystalline silicon photovoltaic (“solar cells”) cells from China are being dumped into the United States. This investigation covers photovoltaic cells, whether or not assembled into modules. Under U.S. law, dumping occurs when a foreign company sells a product to the U.S. at less than fair market value.

Antidumping duties (AD) must be deposited for entries of these cells that are made on or after May 25, 2012. Fifty-nine exporters qualified for the separate rate of 31.18%. The “China-wide” rate, which applies to those Chinese producers/exporters who did not receive the separate rate, is 249.96%.

Scope Of The Investigation

The products covered by the investigation are identified as follows:

The merchandise covered by this investigation is crystalline silicon photovoltaic cells, and modules, laminates, and panels, consisting of crystalline silicon photovoltaic cells, whether or not partially or fully assembled into other products, including, but not limited to, modules, laminates, panels and building integrated materials. This investigation covers crystalline silicon photovoltaic cells of thickness equal to or greater than 20 micrometers, having a p/n junction formed by any means, whether or not the cell has undergone other processing, including, but not limited to, cleaning, etching, coating, and/or addition of materials (including, but not limited to, metallization and conductor patterns) to collect and forward the electricity that is generated by the cell.

Merchandise under consideration may be described at the time of importation as parts for final finished products that are assembled after importation, including, but not limited to, modules, laminates, panels, building-integrated modules, building-integrated panels, or other finished goods kits. Such parts that otherwise meet the definition of merchandise under consideration are included in the scope of this investigation.

Excluded from the scope of this investigation are thin film photovoltaic products produced from amorphous silicon (a-Si), cadmium telluride (CdTe), or copper indium gallium selenide (CIGS). Also excluded from the scope of this investigation are crystalline silicon photovoltaic cells, not exceeding 10,000mm\2 in surface area, that are permanently integrated into a consumer good whose function is other than power generation and that consumes the electricity generated by the integrated crystalline silicon photovoltaic cell. Where more than one cell is permanently integrated into a consumer good, the surface area for purposes of this exclusion shall be the total combined surface area of all cells that are integrated into the consumer good.

Modules, laminates, and panels produced in a third-country from cells produced in the PRC are covered by this investigation; however, modules, laminates, m1d panels produced in the PRC from cells produced in a third-country are not covered by this investigation.

Critical Circumstances Exist

Commerce also preliminarily determined that critical circumstances existed. Under the U.S. antidumping law, if it is shown that there have been massive imports of the product within a relatively short period of time, Commerce can impose AD duties on imports made 90 days prior to the date of the preliminary determination. Because there was a preliminary finding of critical circumstances, Commerce will instruct Customs to require a deposit based on these preliminary rates applicable to all entries of Chinese solar cells back through February 25, 2012.

What Happens Next For The AD Investigation

Commerce is currently scheduled to make its final determination by October 9, 2012. However, this date might be extended. If Commerce makes an affirmative final determination and the U.S. International Trade Commission (ITC) makes an affirmative final determination that there is injury to the U.S. domestic industry from these imports, Commerce will issue an AD Order.

Preliminary Determination On Countervailing Duties

Commerce published a Notice on March 26, 2012, stating it had preliminarily determined that two certain Chinese producers/exporters of solar cells have received countervailable subsidies of 2.90% and 4.73%, respectively. All other Chinese producers/exporters received a preliminary subsidy rate of 3.6%. In simple terms, a Commerce CVD investigation reviews whether “countervailing” duties should be imposed to offset subsidies by foreign governments on certain products exported to the U.S.

Scope of the CVD Investigation

The scope of the CVD investigation covers the same products as the antidumping investigation (see above). 

Critical Circumstances Exist

Commerce determined in an earlier decision on January 27, 2012, that critical circumstances existed in the CVD investigation. Thus, CVD duty deposits must be paid on entries dating back to December 27, 2011.

What Happens Next For The CVD Investigation

A final determination is currently scheduled for October 9, 2012. However, it is possible that this may be extended. If Commerce makes an affirmative final determination and the ITC makes an affirmative final injury determination that imports of solar cells from China are injuring the domestic industry, Commerce will issue a CVD Order.

If you have any questions about these issues, please contact Steve Spraitzar at steve.spraitzar@tuttlelaw.com or at (415) 288-0427.

Stephen S. Spraitzar is an attorney with the Law Offices of George R. Tuttle in San Francisco.

Copyright © 2012 by Tuttle Law Offices. 

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