Latest Memorandum from Commerce concerning Photo voltaic Circumvention Investigation | Blogs | Renewable Vitality Outlook

On Might 2, 2022, the U.S. Division of Commerce (“Commerce”) launched a memorandum to “All Events” that clarifies the scope of the investigation into the alleged circumvention of tariffs on sure photo voltaic cells and photo voltaic modules imported into america from Malaysia, Thailand, Vietnam or Cambodia, initially introduced by Commerce on March 28, 2022 (the “Investigation”). For extra background, please see Foley’s article concerning the launch of the Investigation.

Amongst different issues, the three-page memorandum, entitled “Circumvention Inquiries with Respect to Cambodia, Malaysia, Thailand, and Vietnam, – Potential Certification Necessities” (the “Memorandum”) offers extra readability on (i) what kind of certification necessities can be positioned on photo voltaic cells and modules, (ii) what varieties of inputs can be topic to the duties, and (iii) what the quantity of the duties can be, in every case, within the occasion of an affirmative preliminary or remaining dedication within the Investigation.

Certification Necessities

The Memorandum notes that in earlier affirmative circumvention inquiries, Commerce established certification procedures for importers and exporters concerning the supply of the supplies used within the topic merchandise, and signifies that Commerce would make the most of an analogous certification course of right here. Prior to now, solely imports that had been discovered to not adjust to the certification necessities had been topic to the orders and relevant money deposits, and imports that glad the certification necessities had been thought-about not topic to the orders. The one exception to this was the exclusion of firms that “didn’t cooperate” to one of the best of their capacity within the circumvention inquiry and corporations that had been unable to hint the enter from the topic nation to the precise merchandise that the corporate shipped to america.

Inputs

Importantly, Commerce makes clear that wafers comprised of polysilicon sourced from China however really sliced into wafers exterior of China are exterior the scope of the circumvention inquiries.  Equally, Commerce famous that solely Chinese language-origin inputs that haven’t undergone additional manufacturing processes in a foreign country are topic to the investigation. This added readability will enable panel manufactures to higher assess their threat of circumvention duties and will give producers that don’t use wafers manufactured in China a bonus in industrial negotiations. 

Potential Duties

Importantly, Commerce acknowledged that photo voltaic cells and modules comprised of non-Chinese language wafers should not coated by the circumvention continuing and won’t be topic to money deposit necessities even when Commerce points an affirmative dedication.  Commerce states that within the occasion of an affirmative dedication, if photo voltaic cells or modules have Chinese language inputs which can be traceable to a particular Chinese language producer and are discovered to be topic to the duties, the meant money deposit charge for such imports will probably be equal to that Chinese language producer’s company-specific charges, as if that they had been shipped instantly from China. Though Commerce identifies the origin of silicon wafers because the figuring out issue as as to if a panel is topic to the investigation, Commerce doesn’t say that money deposits can be required to cowl solely the worth of the wafer. If Commerce points an affirmative circumvention dedication, then money deposits will probably be primarily based on your entire worth of the cells and modules incorporating Chinese language wafers.  For imports that can not be tied to a particular Chinese language producer, the U.S. Customs and Border Patrol will probably be instructed to droop liquidation of the entry and gather money deposits on the charges relevant beneath relevant regulation related to Chinese language-produced photo voltaic cells and modules.¹

The Division of Commerce is requesting any events to supply feedback and different factual data associated to the fabric within the Memorandum prior to five:00pm Jap Time on Might 9, 2022.

Foley’s Renewable Vitality apply has deep expertise in all facets of the photo voltaic trade, in addition to in depth expertise with the Division of Commerce. If in case you have any questions on Commerce’s dedication or its affect on your online business, please contact Mike Walsh, Jeff Atkin, or your Foley lawyer. Jeff is the co-chair of Foley’s Vitality apply, and Mike is the previous chief of workers and appearing common counsel on the U.S. Division of Commerce.