On 22 August, the US Division of Commerce (DOC) delayed its preliminary determination into its investigation into alleged circumvention of antidumping and countervailing duties (AD/CVD) by photo voltaic producers in Southeast Asia, extending the timelines of what has grow to be some of the intently watched and impactful authorized battles within the US photo voltaic sector’s historical past.
The extension till 28 November may also push again the ultimate determination from its preliminary date of 27 January. The division mentioned it wanted “extra time” to analyse “voluminous administrative file, together with a number of questionnaire and supplemental questionnaire responses”.
To recap briefly, in March the DOC launched an investigation into AD/CVD by photo voltaic producers in Cambodia, Malaysia, Thailand and Vietnam following a petition by small US module producer Auxin Photo voltaic that basically froze module imports to the US from these international locations, which have acted as export outposts for key Chinese language PV producers lately.
This resulted in chaos within the US photo voltaic sector. A Photo voltaic Vitality Industries Affiliation (SEIA) survey within the month following revealed that 83% of module purchasers had shipments both delayed or cancelled and 70% of respondents mentioned a minimum of half of their photo voltaic workforce was in danger as a result of damaging affect of the case. In the meantime, photo voltaic installs within the US had been forecast to drop by nearly half.
Then, in early June, US President Joe Biden signed an government order to waive tariffs on photo voltaic imports from Southeast Asia for 2 years as a part of a swathe of measures to spice up renewables deployment within the US’ faltering clear power sector.
The White Home branded the measure as a “bridge” for photo voltaic imports whereas “reinforcing the integrity of our commerce legal guidelines and processes”.
However the legality of the order has been hotly contested. PV Tech Premium has beforehand reported how questions have been raised concerning the legality of the transfer as business stakeholders assess the chance of it being challenged in court docket.
Kyle Hayes, particular counsel for worldwide legislation agency Baker Botts, informed this website that the primary query on stakeholders’ minds was whether or not the DOC could be ready to situation tariffs whereas Biden’s waiver was nonetheless in place, no matter whether or not it decides to take action or not.
“As a sensible matter, I consider that the majority people assume that so long as the Biden waiver is in impact over the following two years, the Commerce tariffs that come out of both the preliminary or closing ruling wouldn’t be capable to be effectuated till the waiver is not in place,” mentioned Hayes.
“That is successfully a constitutional query as a result of the DOC is an government company which might then be in battle with a presidential order,” he continued, including that “the DOC might be not seeking to have a showdown with President Biden over the tariff waiver.”
But when these DOC tariffs are imposed, there may be nonetheless uncertainty as as to whether they are going to be retroactive or not. Elliott Williams, an legal professional at clear power attorneys Stoel Rives, informed PV Tech Premium: “The chance of retrospective tariffs is ameliorated by the President’s 6 June order asking Commerce to think about a 24-month moratorium on duties for the products at situation on this investigation.
“Nonetheless, the chance just isn’t zero since we’re nonetheless ready to see what rule Commerce will implement primarily based on the President’s order and on the feedback that Commerce obtained on its proposed rule for a 24-month moratorium. And such rule, when it comes out, could also be topic to potential authorized problem.”
On high of this, there may be uncertainty as to when the tariffs could be utilized and at what charge. “So the authorized query remains to be just about up within the air,” famous Hayes.
Authorized issues apart, uncertainty across the case is being felt throughout the US photo voltaic sector. Pol Lezcano, photo voltaic analyst at BloombergNEF , beforehand informed this website that builders had been seeking to replenish on modules over the following couple of years for vegetation below development now but in addition for early-stage tasks of their pipelines.
Certainly, Hayes has purchasers who’re working exhausting to “safe capability and pricing for 2025 to 2027, understanding that the Biden tariff waiver will expire in June 2024,” he mentioned, “so that they’re making an attempt to get forward of that if the worst-case situation manifests itself.”
“The upshot is that the business won’t come to a standstill so long as everybody has religion within the Biden waiver. The actual query is ‘what occurs past 2024?’” Hayes requested.
“Consequently, you’re seeing builders give attention to that June 2024 date and do something they will to hedge and lock-in pricing, even when it’s at a little bit of a premium.”
AD/CVD: A timeline
August 2021: A gaggle of nameless photo voltaic producers, dubbed the American Photo voltaic Producers In opposition to Chinese language Circumvention (A-SMACC), petitions the US Division of Commerce to research alleged circumvention of AD/CVD tariffs by producers primarily based throughout Southeast Asia.
September 2021: The Division of Commerce delays its verdict on the A-SMACC petition, requesting new info to proceed, together with the identities of these firms included throughout the group.
November 2021: The Division of Commerce rejects the A-SMACC petition, citing the continued anonymity of these included throughout the group as an impediment to additional proceedings.
February 2022: Auxin Photo voltaic, a hitherto little-known US module producer, launches a brand new petition with the US Division of Commerce to research potential circumvention of AD/CVD tariffs by Southeast Asia-based producers.
March 2022: The Division of Commerce confirms it’ll examine alleged AD/CVD circumvention following Auxin Photo voltaic’s petition, successfully halting US module provide from Southeast Asia.
Could 2022: Eight main module producers with operations in Southeast Asia are chosen as obligatory respondents to Commerce’s investigation.
June 2022: With the investigation nonetheless ongoing, the Biden administration confirms it’ll waive sure commerce tariffs on photo voltaic merchandise for 2 years, successfully which means AD/ CVD tariffs won’t be applied till June 2024 on the earliest.
November 2022: The preliminary findings of the Division of Commerce’s investigation are introduced. This has been prolonged from August 2022.
January – April 2023: A closing determination on the investigation, together with any potential tariff charges, are to be introduced by the Division of Commerce, though that is now prone to even be pushed again following the preliminary determination delay.
