On August 18, 2023, the Department of Commerce (“DOC”) announced its final decision in its circumvention investigation on Solar Products containing Chinese components (e.g., wafers and other inputs) further processed in Cambodia, Malaysia, Thailand, and Vietnam (“CMTV”).  The investigation found that certain exports of Solar Products from these countries are circumventing the China Solar I Antidumping Duty Order (“ADD” – A-570-979) and Countervailing Duty Order (“CVD” – C-570-980) (“the Orders”).   This decision expands the scope of the Orders to include (with certain exceptions discussed below) cells/modules exported from CMTV whose wafers are made in China.  Previously, these cells/modules had been excluded from the Orders assuming their cells had not been doped in China.

Certain important aspects of this decision follow.

• Pursuant to a Presidential Proclamation dated June 6, 2022, the DOC has suspended collection and assessment of Solar I ADD/CVD on cells/modules subject to the Circumvention inquiry which are entered for consumption between 11/16/2022 and 6/5/2024, provided that these cells/modules are utilized in the United States within 180 days of 6/5/2024. There are a number of technical requirements that must be met to be eligible for this temporary exemption from ADD/CVD duties.
• Cells and modules are not circumventing the Orders where they are produced from non-Chinese origin wafers
• Modules are not circumventing the Orders where they contain wafers produced in China provided that no more than two of the following components are produced in China: (1) silver paste; (2) aluminum frames (3) glass; (4) back sheets; (5) ethylene vinyl acetate sheets; and (6) junction boxes.
• Three companies were found not to be circumventing the Orders: Hanwha (Malaysia), Jinko (Malaysia), Boviet (Vietnam). Jinko was represented by GDLSK in the proceeding.
• To avoid having to deposit ADD/CVD, companies importing solar products from these four countries must file Certifications establishing that the cells/modules qualify for an exemption from the Orders. The certifications have a number of technical requirements.  Failure to timely file the Certifications can result in CBP suspending liquidation of the entries and requiring deposit of the applicable ADD/CVD.
• Certain companies are subject to adverse facts available (“AFA”). Products from these companies will not be eligible for the component content certifications. A list of the AFA companies is available upon request.
• Entries of solar products from Cambodia, Malaysia, Thailand and Vietnam subject to the Orders by reason of the Circumvention decision will be assessed at the China-wide entity ADD rate (238.95%) unless either: (1) the relevant cell or module exporter from Cambodia, Malaysia, Thailand, or Vietnam has its own company-specific ADD and/or CVD rate under the Orders or; (2) if it does not, the Chinese company that exported the wafers to CMTV has its own company-specific ADD and/or CVD rate under the Orders.

If you have any questions regarding the Circumvention determination, the Certification requirements, or the applicability to particular imports, please contact one of our attorneys.