On August 18, 2023, the Department of Commerce (“Commerce”) announced its final determination that certain solar cells and modules exported from Cambodia, Malaysia, Thailand, and Vietnam are circumventing the antidumping (“AD”) and countervailing (“CVD”) orders on imports from China after conducting its investigation for over 18 months. Any duties will only go into effect in June 2024, subject to available certifications and exemptions. Commerce’s final determination can be found here.
The Presidential Proclamation issued on June 6, 2022, states that Customs and Border Protection (CBP) will not collect duties on any solar module and cell imports from these four countries until June 2024 provided that parties can certify that the imports will be “utilized” within six months of the termination of proclamation, which is currently December 3, 2024. Commerce specified that “utilized” means “used or installed” by the termination date. Simply selling solar modules, incorporating solar cells into a solar module in the U.S., dedicating these imports to a particular project, or delivering them to a project site do not constitute being “used” or “installed”.
Commerce further clarified that solar cells manufactured from Chinese wafers in any of these named Southeast Asian countries that are then exported to a non-named country for further assembly into solar modules or other products prior to export to the U.S. are not subject to the final determination.
Commerce individually examined eight exporters and found that five of the examined exporters were circumventing the AD/CVD Orders. The final three companies specifically exempted from the final determination are Hanwha Q Cells and Jinko Solar in Malaysia, and Boviet Solar Technology in Vietnam, provided their production process and supply chain remain unchanged.
The final determination requires exporters to provide three types of certifications for exemptions from the AD/CVD orders. In addition to certifying that the imports are from an exempt exporter, solar cells and modules would not be subject to AD/CVD duties if an exporter can certify that the input cells are not made from Chinese wafers, or if the modules are either not made from Chinese wafers or not using certain other Chinese components. Certification requirements are strictly enforced at the time of importation.
Commerce determined that twenty-two (22) companies in Malaysia, Thailand, and Vietnam were ineligible for certification due to their failure to cooperate with the circumvention inquiry. In addition, Commerce also found New East Solar Energy from Cambodia to be ineligible for failure to cooperate. See Appendix II in the Final Determination. These companies may request administrative review of their certification ineligibility “during the next anniversary month of these Orders (i.e., December 2023).”
Importers and consumers of solar panels should review their supply chains and make any needed adjustments prior to June 2024 to ensure importers are not sourcing from these companies. U.S. companies should also evaluate the risks posed by these determinations when assessing production needs for business and projects beyond 2024.
If you have questions about how these regulations might impact your business, contact Nithya Nagarajan, Jeffrey Neeley, or your Husch Blackwell attorney.