On August 17, 2023, the Department of Commerce (Commerce) made the final determination in its investigations of whether crystalline silicon photovoltaic (CSPV) cells and modules from Cambodia, Malaysia, Thailand, and Vietnam using parts and components manufactured in China (and subsequently exported from Cambodia, Malaysia, Thailand, or Vietnam) to the United States are circumventing existing US antidumping and countervailing duty (AD/CVD) orders on imports of CSPV cells and modules from China.¹ The final determination follows the Department’s affirmative preliminary determinations of circumvention in December 2022.² 

Commerce found that circumvention was occurring by at least one company under investigation in each country. Because the findings of circumvention apply country-wide, the underlying antidumping and countervailing duties will apply to most producers in the four Southeast Asian countries. However, under Presidential Proclamation 10414,³ issued by President Biden on June 6, 2022, antidumping or countervailing duties on solar cells and modules from these four countries are suspended until June 6, 2024 (as long as such solar cells and modules are not already subject to antidumping or countervailing duties).⁴ Accordingly, until June 6, 2024, pursuant to special procedures published in 19 CFR Part 362,⁵ eligible importers and exporters of solar cells and modules may apply for temporary relief using one of three certifications, described below.

1. When the specific entries meet the regulatory definition of Applicable Entries, the importer and exporter should complete the respective certifications provided in Appendix IV of the final notice.
   1. “Applicable Entries” means the entries of Southeast Asian-Completed Cells and Modules that are entered into the United States, or withdrawn from warehouse, for consumption on or after April 1, 2022, until the Date of Termination (June 6, 2024) and, for entries that enter after November 15, 2022, are “utilized” in the United States by the Utilization Expiration Date (December 3, 2024).
   2. “Southeast Asian-Completed Cells and Modules” means CSPV cells, whether or not assembled into modules (solar cells and modules), which are completed in Cambodia, Malaysia, the Thailand, or Vietnam using parts and components manufactured in the People’s Republic of China, and subsequently exported from Cambodia, Malaysia, Thailand, or Vietnam to the United States.
   3. “Utilization” and “utilized” means the Southeast Asian-Completed Cells and Modules will be used or installed in the United States. Merchandise which that remains in inventory or a warehouse in the United States, is resold to another party, is subsequently exported, or is destroyed after importation is not considered utilized for these purposes and therefore is not eligible for duty relief.
2. When the exporter is a company for which Commerce has made a determination of no circumvention, listed in Appendix III, the importer and exporter should complete the respective certifications provided in Appendix V. Only three companies received this negative determination: Hanwha Q Cells (Malaysia), Jinko Solar (Malaysia), and Boviet Solar (Vietnam).
3. When the specific entries are outside the scope of the Orders because they were not manufactured using components produced in China (and thus outside the scope of the circumvention inquiries), the importer and exporter should complete the appropriate certification provided in Appendix VI. Under this procedure, companies will need to certify one of the following:
   1. the Southeast Asia-made solar cells covered by the certification were not manufactured using wafers produced in China;
   2. the Southeast Asia-made modules covered by the certification were not manufactured using wafers produced in China; or
   3. the Southeast Asia-made modules covered by the certification were manufactured using wafers produced in China, but no more than two of the aforementioned module components that were used to manufacture the modules were produced in China.

The first certification type is only available until the Date of Termination. The second and third certification types described above will continue to be available following the Date of Termination.

For certain companies that failed to provide requested information or significantly impeded the inquiry process, Commerce used “adverse inferences” based on “facts otherwise available” (AFA) to reach affirmative determinations of circumvention, listed in Appendix II. These companies are not eligible to participate in the certification program. The AFA affirmative determination was applied to 33 companies. Interested parties that wish to have their suspended non-“Applicable Entries,” if any, reviewed, and/or their ineligibility for the certification program reevaluated, may request an administrative review of the relevant suspended entries beginning December 2023.

It is important to note that the Proclamation’s relief does not apply automatically—companies must comply with significant reporting and recordkeeping requirements and can also face penalties if they fail the verification process.

Fundamentally, the final determination reached the same conclusions as the preliminary determination. Smaller changes from the preliminary determination are:

• Vietnam Sunergy Joint Stock Company (Vietnam) was removed from Appendix II. 
• NE Solar (Cambodia) and Vina (Vietnam) were added to Appendix II.
• The certifications in Appendix V were modified such that companies must still share information regarding the identity of their wafer suppliers but may now receive business proprietary information (BPI) treatment for that information instead of having it publicly disclosed. 

In light of the final determinations of circumvention and the detailed requirements for temporary duty relief, US solar project developers who source solar panels from Southeast Asia should carefully evaluate their supply chains and take steps to ensure compliance and to mitigate the commercial impacts of the determination.

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1 Antidumping and Countervailing Duty Orders on Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the People’s Republic of China: Final Scope Determination and Final Affirmative Determinations of Circumvention With Respect to Cambodia, Malaysia, Thailand, and Vietnam, 88 FR 57419 (August 23, 2023). The final Issue and Decision Memoranda for each country are available for download at https://access.trade.gov/.
See also the underlying AD/CVD Orders: Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules fFrom the People’s Republic of China: Amended Final Determination of Sales at Less Than Fair Value, and Antidumping Duty Order, 77 FR 73018 (December 7, 2012) (Solar Cells AD Order) and Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, fFrom the People’s Republic of China: Countervailing Duty Order, 77 FR 73017 (December 7, 2012) (Solar Cells CVD Order).
2 Antidumping and Countervailing Duty Orders on Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the People’s Republic of China: Preliminary Affirmative Determinations of Circumvention With Respect to Cambodia, Malaysia, Thailand, and Vietnam. 87 FR 75221 (December 8, 2022). 
3 Proclamation 10414, “Declaration of Emergency and Authorization for Temporary Extensions of Time and Duty-Free Importation of Solar Cells and Modules from Southeast Asia” (June 6, 2022), available at https://www.federalregister.gov/d/2022-14241.
4 See ES Legal Alert: Biden Administration takes unprecedented action on solar panel imports (June 6, 2022), https://us.eversheds-sutherland.com/NewsCommentary/Legal-Alerts/251540/Biden-Administration-takes-unprecedented-action-on-solar-panel-imports.
5 Available at https://www.ecfr.gov/current/title-19/chapter-III/part-362.

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