U.S. Department of Commerce Opens Anticircumvention Inquiries Into Solar Modules

On Monday, March 28, 2022, the U.S. Department of Commerce (the Department) announced that it has determined to open inquiries as to whether solar cells and modules produced in Cambodia, Malaysia, Thailand, and Vietnam, using parts and components from the People’s Republic of China (China) and exported to the United States, are circumventing antidumping and countervailing duty orders on solar cells and modules from China (Existing AD/CVD Orders). The inquiries are being initiated pursuant to Auxin Solar Inc.’s (Auxin) request to the Department.

As part of the inquiries, the Department will issue questionnaires to solicit information from companies in Cambodia, Malaysia, Thailand, and Vietnam to determine whether the production processes used to produce solar cell and modules in each of these countries are “minor or insignificant.” Specifically, the questionnaires will include questions regarding the origin of inputs used to produce solar cells and modules, the level of investment and research and development in each country, the nature of the production processes in each country, and the extent of the production processes and facilities in each country. The Department will collect the quantity and value (Q&V) data via a questionnaire that it will likely send to a select few companies based on U.S. import data and data solicited from companies; the Q&V questionnaire will be available on the Department’s electronic document repository system, called ACCESS, and parties to whom a Q&V questionnaire is not issued may respond voluntarily by the applicable deadline. A company’s failure to respond to any request for information by the Department, including for the Q&V data, may result in adverse inferences against such company — the adverse inference here likely resulting in an affirmative finding of circumvention.

The Department will not begin to suspend liquidation (i.e., make a final computation of or ascertainment of duties) or order cash deposits on entries that have not previously been subject to suspension unless and until it issues an affirmative preliminary or final circumvention determination. In the event of an affirmative preliminary or final determination, the Department will likely direct U.S. Customs and Border Protection to suspend liquidation of the applicable merchandise and apply the applicable cash deposit rate for each unliquidated entry not yet suspended, entered, or withdrawn from warehouse, for consumption on or after the date of publication of the notice of initiation in the Federal Register.

Cash deposit rates on subject entries that remain unliquidated and are not suspended from liquidation currently could range above 250% of declared value and will be set at the preliminary and final determinations. These cash deposits are only estimates of future duty liability. Final assessment rates will not be known until conclusion of future administrative reviews and subsequent court appeals, meaning that the cost borne by an importer of record may not be known definitively until years after importation.

The Department has the authority to retroactively suspend liquidation and apply cash deposits on entries that entered prior to the date of publication of the inquiry initiation notice but requires sufficient evidence establishing that retroactive application is appropriate. Auxin has requested that the Department apply retroactive suspension of liquidation, but the Department has not made any determinations with respect to this request. However, even if the Department agrees to a retroactive suspension, the earliest date to which such suspension would apply is November 4, 2021.

The Department intends to issue its preliminary determination within 150 days and a final determination within 300 days of publication of the initiation notice in the Federal Register.