Solar Importer Gets Commerce To Trim China Dumping Duties

2017-07-22

Law360, Washington (April 6, 2017, 1:20 PM EDT) -- The U.S. Department of Commerce finalized a partial tweak Wednesday carving out an exception for a single product facing anti-dumping duties imposed on Chinese solar panels after an American importer of the goods said domestic manufacturers don't make the item in question and domestic manufacturers didn't object. 
Commerce's International Trade Administration justified the carveout, exempting small panels coated in a protective resin and connected to a battery charging unit, based on a lack of interest from domestic manufacturers. The carveout covers “certain crystalline silicon photovoltaic products” from Taiwan facing anti-dumping duties to prevent products from being sold in the U.S. at less than fair-market value, as well as Chinese products facing both anti-dumping and countervailing duties imposed in the face of allegedly improper subsidies from Beijing.

“Because we determine that there are changed circumstances that warrant the revocation of the orders, in part, and there have been no completed administrative reviews of the orders, we will instruct U.S. Customs and Border Protection ('CBP') to liquidate without regard to antidumping and countervailing duties,” ITA said in the Federal Register notice, “and to refund any estimated antidumping and countervailing duties on all unliquidated entries of the merchandise covered by this partial revocation that were entered, or withdrawn from warehouse, for consumption, on or after the date that corresponds to the date that suspension of liquidation first began in the relevant proceeding.”

The liquidation dates back to mid-2014. The duties had been imposed under a petition from Oregon-based SolarWorld Americas Inc., which identifies itself as the largest “crystalline-silicon solar manufacturer” in the United States and which has been an active participant in pushing for heavy U.S. enforcement to counter “trade aggression” from China.

This time around, however, the company acceded to a changed circumstances review, or CCR, request from Texas-based PulseTech Products Corp., which imports solar products into the United States. PulseTech made a new, consolidated CCR request in April 2016 after having requested separate reviews for the China and Taiwan duties.

That request last year specifically referred to the carveout parameters that, after several revisions that included a withdrawn bid to also exempt standalone panels that aren't incorporated with battery charging, led to Wednesday's partial revocation.

“PulseTech has reviewed this revised scope exclusion language with the petitioner, SolarWorld, and understands that the petitioner intends to submit a letter to the department confirming that it does not oppose the revised scope exclusion,” the company said last April.

“Moreover, based on its extensive market research, PulseTech believes that there is no U.S. producer of a domestic like product identical to the merchandise covered by the proposed scope exclusion,” it added. “Indeed, the requested scope exclusion would apply to a narrow range of highly specialized solar products that are not within the markets served by the petitioner.”

SolarWorld submitted its own filing in early September 2016 stating that it did not oppose exclusion language updated by PulseTech a few days earlier. The company reiterated, however, that its willingness to accept a carveout was limited to PulseTech's proposed scope, while maintaining its backing of the remaining duties.

The attorney who submitted that letter for SolarWorld, Timothy C. Brightbill of Wiley Rein LLP, on Thursday called the tweak “a very limited exclusion.”

Brightbill told Law360 that the exclusion covers a single product with military applications that PulseTech sells and that SolarWorld does not produce in the United States.

The parties spent a year working on the exact carveout parameters, Brightbill said in an interview, and SolarWorld remains “as interested as ever in tough enforcement.” Brightbill called scope exclusions fairly common practices when there's importer interest and the product isn't produced by domestic companies.

Representatives for PulseTech did not immediately respond Thursday to press inquiries.

According to the Federal Register notice, Commerce published its preliminary CCR in mid-February, expressing its plans to partially revoke the solar panel duties. While Commerce invited comments, it received none, according to the notice, which it used to justify the change.

“Specifically, because the producers accounting for substantially all of the production of the domestic like product to which the orders pertain lack interest in the relief provided by the orders with respect to the following type of solar panels, we are revoking the orders, in part for solar panels,” Commerce said.