US vs. China solar redux: US Commerce Department eyes retroactive penalties

January 30, 2012 - Another round of fisticuffs between US manufacturers of solar products, aka Coalition for American Solar Manufacturing (CASM) vs. the Coalition for Affordable Solar Energy (CASE). This time CASM seemingly has the US Department of Commerce (DoC) in its corner. (In a related story -- do they get together and time these things? -- CASE has a new study that handwrings over the potential impact of tariffs on US jobs and end-market demand.)

Last week CASM revealed its tracking of what it called a 110% surge in Chinese solar imports over the past several months, ostensibly to get product into the country ahead of any negative ruling from the DoC. The DoC apparently agrees with that assessment [PDF provided by CASM].

Such a flood of imports, CASM argues, opens the door for a "critical circumstances" ruling that would retroactively apply any duties by 90 days from the preliminary determination. The DoC has now postponed such a determination for a second time, first to Feb. 13 and now to March 2, due in part to what CASM calls "slow responses from the Chinese respondents," so now the retroactivity would apply as of early December. And again, the DoC seems to be ready to agree to that "critical" assessment [PDF again provided by CASM].

Bottom line: March 2 is the new date to watch. If the DoC rules in favor of CASM and US solar manufacturers, it will apply (as yet undetermined) duties retroactively to December.

Key summaries from the DoC document spell things out:

"We find that there is a reasonable basis to believe or suspect that certain subsidy allegations under investigation are inconsistent with the SCM Agreement [Subsidies and Countervailing Measures Agreement of the World Trade Organization], and we find that there have been massive imports of solar cells over a relatively short period from Suntech, Trina, and all other producers or exporters."

"Based on information provided by Petitioner and the data placed on the record of this investigation by the mandatory respondents, Wuxi Suntech Power Co., Ltd. (Suntech) and Changzhou Trina Solar Energy Co., Ltd. (Trina) (collectively, respondents), the Department preliminarily determines that critical circumstances exist for imports of solar cells from the PRC for Suntech, Trina, and all other producers or exporters."

"If we make an affirmative preliminary determination that countervailable subsidies have been provided to respondents at above de minimis rates, we will instruct U.S. Customs and Border Protection (CBP) to suspend liquidation of all entries of solar cells from the PRC, as described in the "Scope of Investigation" section of the Initiation Notice, that are entered, or withdrawn from warehouse, for consumption on or after the date that is 90 days prior to the effective date of "provisional measures."