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The dust is yet to settle on tariff determinations against Chinese manufacturers, but the Coalition for American Solar Manufacturing (CASM) has released a statement warning of a “conspiracy to commit offence or to defraud the United States”. According to CASM, Chinese solar cell and panel exporters are reportedly planning to evade antidumping/countervailing orders. It asserts that this will not be effective, could be illegal and may expose US importers, in addition to Chinese exporters, to liability under US law, including significant financial penalties and criminal prosecution.
US Customs and Border Protection (CBP) has apparently begun collecting cash deposits or bonds to secure estimated AD and CVD duties on imports of solar cells and modules from China, based on the affirmative preliminary determinations by the DoC in the AD and CVD investigations of Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled into Modules, from the People’s Republic of China. AD duties at rates up to 249.96% and CVD duties at rates up to 4.73% currently apply to all Chinese solar cells and modules that entered the United States, respectively, on or after February 25, 2012, or December 27, 2011. Certain Chinese producers/exporters (“separate rate companies”) are subject to an AD duty rate of 31%. All other Chinese exporters are subject to the 249.96% rate. Chinese imports from December 27 through February 26 are subject to CVD duties only. Chinese imports starting February 27 are subject to both AD and CVD duties.
The law charges the US importer to take responsibility for posting AD and CVD duties. The exporter may not reimburse these duties. If an exporter reimburses the US importer, the amount of duties owed by the importer will double. The actual amounts of duties that will be owed on Chinese solar cells and modules will not be known until the first administrative reviews of the orders are completed – long after the goods have been imported. If the final duty amounts increase, as CASM believes they often do, the importer will be responsible for paying the difference, plus interest.
The DoC also requires certification to confirm its origin – obviously, penalties could be imposed for making false statements on import documentation or for falsely marking or identifying imported merchandise. Parties attempting to evade lawfully owed duties also could be criminally prosecuted.
CASM also claims that “importers and purchasers should bear in mind that the AD and CVD margins applying to goods currently entering the United States are likely to be higher, perhaps substantially so.”
The group is expecting that “Commerce will review entries after September 2011 and importers will be liable for duties owed on the entire calculated margins, including any increase. Similarly, Commerce is still investigating and discovering numerous Chinese subsidy programs, which will likely cause CVD margins to increase for the final determination and in future reviews.”