The US Department of Commerce (DOC) issued its preliminary determination on December 2, 2022, related to circumvention of antidumping and countervailing duty (AD/CVD) orders A-570-979 and C-570-980 (the Orders) with respect to Cambodia, Malaysia, Thailand, and Vietnam. DOC determined that imports of certain crystalline silicon photovoltaic (CSPV) cells exported from Cambodia, Malaysia, Thailand, or Vietnam using parts and components produced in China are circumventing the AD/CVD orders on solar cells and modules from China.
The circumvention inquiry covers the following:
- CSPV cells, whether or not partially or fully assembled into other products, that were produced in Cambodia, Malaysia, Thailand, or Vietnam from wafers produced in China.
- Modules, laminates, and panels consisting of CSPV cells, whether or not partially or fully assembled into other products, that were produced in Cambodia, Malaysia, Thailand, or Vietnam from wafers produced in China and where three or more of the following components in the module/laminate/panel were produced in China: silver paste; aluminum frames; glass; backsheets; ethylene vinyl acetate sheets; and junction boxes.
Wafers produced outside of China with polysilicon sourced from China are not considered to be wafers produced in China for purposes of this circumvention inquiry.
DOC issued a negative circumvention determination for the four entities listed in the preliminary determination, finding that they are not circumventing the Orders. This determination is final and will not be impacted by DOC’s final determination. However, more companies could be added to the negative circumvention determination list when DOC issues its final determination.
Following Presidential Proclamation 10414 declaring an emergency related to imports of solar cells and modules from Southeast Asia, DOC directed US Customs and Border Protection (CBP) to discontinue the suspension of liquidation and collection of cash deposits based on the circumvention inquiry and this preliminary determination for “Applicable Entries”: Southeast Asian completed cells and modules that are entered into the United States, or have been withdrawn from a warehouse, for consumption before the Date of Termination (currently June 6, 2024), and entries that enter after November 15, 2022, and are used in the United States by the Utilization Expiration Date (currently December 3, 2024). This requirement is intended to prevent stockpiling.
Despite the moratorium, DOC is directing CBP to suspend liquidation and collect cash deposits of AD/CVD based on this affirmative preliminary determination for imports that are not Applicable Entries.
To avoid an import being subject to suspension of liquidation or cash deposits, both the importer and exporter must complete certain certifications (a form for certification is provided in the preliminary determination notice):
- Entry is an Applicable Entry;
- Producer identified under negative circumvention determination; or
- Items do not meet content requirement.
Noncooperative companies, listed on Appendix II of the notice, are not eligible to use certifications 2 or 3, and even if they attempt to cooperate now, it will be challenging for them to reverse the adverse inference. Certifications and supporting documentation are subject to verification by DOC or CBP.
The exporter certification should be completed by the party selling the solar cells or modules that were manufactured in Cambodia, Malaysia, Thailand, or Vietnam for importation into the United States. Exporter certifications must be completed, signed, and dated by the time of shipment, and importer certifications by the time the entry summary is filed by CBP. The exporter is required to complete the certification and provide it, along with supporting documentation, to the importer. Both the importer and exporter certifications must be submitted to CBP as part of the entry process.
Importers and exporters must maintain records of the certifications, and supporting documentation, for five years after the latest entry date or the date that is three years after the conclusion of any litigation related to such entries, whichever time is longer.
For articles entered, or withdrawn from a warehouse, for consumption between April 1, 2022, and December 2, 2022, where the entry has not been liquidated, the certification should be completed and signed as soon as practicable, but not later than 45 days after the date of publication of the preliminary determination in the Federal Register (anticipated to be the week of December 5, 2022). This certification can be a blanket covering multiple entries, an individual certification per entry, or a combination thereof.
For unliquidated entries declared as non-AD/CVD-type entries and entered, or withdrawn from a warehouse, for consumption in the United States during the period of April 1, 2022, through the date of publication of the determination in the Federal Register, for which none of the above certifications may be made, importers must file a post-summary correction with CBP converting the entry to an AD/CVD-type entry. If an importer/exporter does not meet the certification requirements, DOC will instruct CBP to suspend all unliquidated entries and require the importer to post applicable AD/CVD cash deposits.
Note, this is a preliminary affirmative determination and DOC provided a negative circumvention determination for a few suppliers. The final determination from DOC is scheduled to be issued May 1, 2023. But in the interim, companies must start filling in the required certifications or be subject to the suspension of liquidation and collection of cash deposits.