Solar Installer Alert: USITC Holds Final Phase Public Hearing in Chinese and Taiwanese Solar CSPV Panels Import Injury Investigations

Legal Alert

On December 8, 2014, Oregon Senator Ron Wyden testified on behalf of some U.S. solar cell manufacturers at a public hearing of the U.S. International Trade Commission (USITC). The USITC scheduled the hearing as part of its final phase investigations into alleged import injury to the U.S. solar cell industry from Crystalline Silicon Photovoltaic (CSPV) products from China and Taiwan. Originally, the investigation commenced in response to petitions filed by German-American solar cell manufacturer SolarWorld Industries America Inc. (as of October 1, 2014, officially “SolarWorld Americas, Inc.”), whose U.S. headquarters in Hillsboro, OR makes it and many of its workers constituents of Sen. Wyden. Sen. Wyden’s press release and links to his remarks before the USITC are at Wyden: Ensure Fair Trade for Oregon Workers and Businesses.

The 2014 Solar Trade Cases

The USITC and the U.S. International Trade Administration (ITA, part of the U.S. Department of Commerce) conduct separate investigations of alleged unfair trade practices in the nature of alleged unfair subsidies given to foreign manufacturers and exporters and alleged unfairly priced imports. The USITC focuses on alleged injury to U.S. industry and ITA focuses on assessing whether the imports constituted unfair trade practices. The remedies, if warranted, are countervailing duties (CVD) to offset the subsidies and antidumping duties (AD) to offset the unfairly low prices. Typical CVD and AD investigations can last a year or so. The cases involve subsidy allegations against China and dumping allegations against both China and Taiwan and are docketed as USITC Investigation Nos. 701-TA-511 and 731-TA-1246-1247 and ITA Investigation Nos. A-570-010, C-570-11, and A-583-853. Solar merchandise involved in earlier 2012 CVD and AD orders against China is excluded from these 2014 investigations. The current scope is under review but is listed in this Fact Sheet (PDF).

Previously on February 14, 2014, the USITC made a preliminary determination of material injury to the U.S. solar cell manufacturing industry due to low-priced CSPV products from China and Taiwan, thereby handing the next step of the investigation to ITA. See our report on the USITC preliminary phase. Next, ITA announced affirmative preliminary determinations effective in the CVD case against China on June 10, 2014, and in the AD cases against China and Taiwan on July 31, 2014. See our respective coverage of those preliminary determinations at New Countervailing Duties on Imports of Chinese Solar Products Take Effect June 10, 2014 and U.S. Commerce Department Imposes Preliminary Antidumping Duties on CSPV Products Sourced from Taiwan and China and Commerce Dept. Reduces Preliminary Antidumping Duty Rates for Solar Products from Taiwan.

The December 8 USITC Final Phase Hearing

Following up on the two ITA preliminary determinations, the USITC announced commencement of its final phase investigations, effective July 31, 2014 (79 FR 50696 8/25/2014), and invited public participation. At that time, the USITC set the public hearing date for December 8, 2014. On or about December 4, the USITC released a Tentative Agenda (PDF) with more than two hours of witness testimony and remarks. Sen. Wyden, SolarWorld’s legal counsel and executives, and some US solar company executives were among those who represented the alleged injured U.S. solar cell industry. Various legal counsel and executives from foreign manufacturers and exporters from China and Taiwan testified against a finding of material injury. The USITC disclosed a confidential pre-hearing brief to the parties and will release a public hearing report in a few weeks. Meanwhile, the parties have until December 15, 2014, to submit post-hearing briefs.

Next Steps for the ITA and USITC

Earlier this year, the ITA extended the time for its final determinations in the AD cases to the maximum 135 days from the preliminary determinations, making the ITA’s final determinations due on or about December 16, 2014. The ITA also aligned the CVD final determination against China with the AD determinations against China and Taiwan, so that determination is also due December 16. (79 FR 44402 7/31/2014). If the ITA makes an affirmative final determination in any of the cases, the USITC will have 45 days from that final ITA determination date to make a final determination on whether the U.S. solar cell industry was materially injured. Currently, USITC proposes to close the record on or about January 12, 2015, and a proposed Commission vote is set for January 20. See USITC Case Schedule. If both agencies make affirmative final determinations, then ITA will issue final CVD and AD orders to impose increased duties on the subject solar products from China and Taiwan. If either agency makes a negative determination, then no CVD or AD penalties will be imposed.

A Note About Cash Deposits with U.S. Customs and Border Patrol

Currently, the U.S. Customs and Border Patrol (CBP) is collecting cash deposits at the AD rates noted in the ITA Affirmative Preliminary Determination for China published on July 31, 2014 (79 FR 44399 7/31/2014) and the Amended Affirmative Preliminary Determination for Taiwan published on August 22, 2014 (79 FR 49754 8/22/2014). However, the CVD cash deposits ended on October 8, 2014, due to a statutory maximum period applicable to preliminary CVD determinations that was exceeded when the ITA aligned the CVD and AD cases to the longer time period for AD investigations. See 79 FR 44402 7/31/2014. These cash deposits will either be finalized, adjusted or refunded after the final ITA orders in late January or early February.

Stoel Rives Updates

The Stoel Rives Energy Trade Team is standing by for any announcement by ITA of last minute developments in the ITA investigations before the December 16 deadline for the ITA final determinations. We will report on events as they occur and will cover the impending ITA and USITC determinations as these Solar Trade Cases come to a close. For more information, please contact your Stoel Rives attorney or a key contributor.

Media Contact

Jamie Moss (newsPRos)
Media Relations
w. 201.493.1027 c. 201.788.0142

Mac Borkgren
Senior Manager, Marketing Communications & Operations

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