CIT Upholds Controversial AD/CV Duty Orders on Solar Products From China and Taiwan
Antidumping and countervailing duty orders on crystalline silicon photovolatic products from China from Taiwan will remain in place, after the Court of International Trade on July 21 issued two decisions (here) and (here) upholding the controversial scopes of the AD/CVD orders.
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The validity of the orders were cast into doubt in June 2016, when CIT told the Commerce Department to reconcile discrepancies between coverage of the 2015 orders on solar products and 2012 AD/CV duty orders on solar cells from China (see 1606090047). CIT took issue with the seeming inconsistency in that the earlier solar cells orders determined origin based on the country where the cells were produced, while the solar products orders conferred origin based on where the modules or panels are produced, regardless of the cells' origin.
In response to the remand, Commerce told CIT that the difference was necessary because of the unique problems posed by shifting patterns of production. The court found Commerce's explanation reasonable, sustaining the orders based on the new explanation. "The differing rules of origin appear reasonably tailored to cover the particular solar products at issue in the two sets of investigations, and reflect the particular injurious activity discovered in each investigation," CIT said.
Beyond leaving the AD/CV duty orders intact, the CIT decisions also "set a potentially important precedent by upholding Commerce’s determination not to use its typical 'substantial transformation' test to determine the country of origin of a product in a trade case context," said Wiley Rein, which represented the domestic petitioners that requested the duties, in a press release (here). "It is believed to be the first time that Commerce has used a different test, which should allow it additional flexibility to address dumping and subsidies in future AD and CVD cases."
Attorneys representing the U.S.-based SunPower and Kyocera, which had challenged the China and Taiwan orders, respectively, said they have not yet decided whether to appeal the decision. Any appeal must be filed within 30 days.
(SunPower Corporation v. U.S., Slip Op. 17-89, dated 07/21/17, CIT # 15-00067, Judge Kelly; Kyocera Solar, Inc. et al. v. U.S., Slip Op. 17-90, dated 07/21/17, CIT # 15-00081, Judge Kelly)