On December 8, 2022, the Department of Commerce published its anti-circumvention preliminary determination with respect to the four Southeast Asian countries named above. The publication of the preliminary determination triggers the effective date of the certification process for importers to obtain exemptions from antidumping and/or countervailing duties for imports of solar panels. Any entity which is an importer need to be aware of specific provisions of the Federal Register notice which are:

“Exporters are required to complete and maintain the applicable exporter certification and provide the importer with a copy of that certification and all supporting documentation (e.g., invoice, purchase order, production records, etc.). With the exception of the entries described below, the exporter certification must be completed, signed, and dated by the time of shipment of the relevant entries.”

The reference to “the entries described below” is to this provision:

“For all solar cells or solar modules from Cambodia, Malaysia, Thailand, or Vietnam that were entered, or withdrawn from warehouse, for consumption during the period April 1, 2022, (the date of initiation of these circumvention inquiries) through the date of publication of the preliminary determinations in the Federal Register, where the entry has not been liquidated (and entries for which liquidation has not become final), the relevant certification should be completed and signed as soon as practicable, but not later than 45 days after the date of publication of these preliminary determinations in the Federal Register.”

Left unanswered by DOC is what is to be done about any shipments now on the water, since the date of shipment of the goods already has passed.

To the extent that importers cannot certify that the imports meet one of the exceptions for past entries, the importers will be required to change the status of the entries from “Type 1” (not subject to antidumping and/or countervailing duty provisions) to Type 3 (subject to the antidumping and/or countervailing duty orders) and file a Post Summary Correction as well as post antidumping and countervailing duty cash deposits to U.S. Customs and Border Protection. The payment of these additional deposits would also require an increase in the bonding and security requirements for the affected importers.

Thus, for entries made from April 1, 2022, through December 8. 2022, all certifications must be filed by January 23, 2023. If any importers have questions on this certification process, they should consult with their suppliers and U.S. counsel to ensure that the deadline is met, as well as assuring that certifications are filed going forward.

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