Three latest occasions may have an effect on the duties owed by US firms on imports of crystalline silicon photovoltaic (“CSPV”) cells and modules. First, the US Department of Commerce (“Commerce”) initiated new antidumping and countervailing responsibility investigations on CSPV cells and modules from Cambodia, Malaysia, Thailand, and Vietnam.[1] Second, the Office of the US Trade Representative (“USTR”) just lately proposed the addition of Section 301 duties on CSPVs from China within the context of a four-year assessment of Section 301 duties.[2] Third, the Biden Administration has introduced its intention to “imminently” revoke the Section 201 exemption for bifacial cells and CSPV modules.[3] Businesses utilizing CSPV cells and modules coated by these actions or proposed actions ought to take into account:
- Participate in or monitor new antidumping responsibility and countervailing responsibility investigations;
- Submission of feedback and/or requests for exemptions to proposed Section 301 duties; and
- Discuss enterprise methods to keep away from new Section 201 duties for bifacial CSPV cells and modules, together with modifying or modifying present agreements.
New Antidumping and Countervailing Duty Investigations
On May 20, 2024, Commerce initiated new antidumping and countervailing responsibility investigations on CSPV cells and modules from Cambodia, Malaysia, Thailand, and Vietnam following a petition filed by a coalition of US firms. (the “Petitioner”). The scope of the brand new investigations[4] clearly excluding the CSPV cells and modules coated by the latest circumvention willpower relating to the importation of CSPV cells and modules from the identical international locations.[5] In different phrases, the merchandise which can be within the scope of the determinations of circumvention shouldn’t be included within the scope of the brand new investigations.
There is a few threat that the Petitioner could search to increase the attain of those investigations to CSPV cells and modules from different international locations. In specific, the Petitioner said that it “believes that there are photo voltaic modules coming into the United States from different third international locations (egIndia) containing cells of nation origin and thus could also be topic to[] Petitions.”[6] However, the Petitioner acknowledged that there’s “no proof to point out” that the importation of CSPV cells and modules from international locations apart from these listed within the petitions ought to be topic to investigation.[7]
The Petitioner didn’t allege estimates of countervailing responsibility charges for various international locations. However, the Petitioner alleged the next estimates of antidumping responsibility charges:
- Cambodia: 126.07 %
- Malaysia: 81.24 %
- Thailand: 70.35 %
- Vietnam: 271.45 %[8]
Commerce intends to pick the businesses it would individually assessment by June 10, 2024.[9]
Commerce usually imposes measures (eg, requires the suspension of liquidation and the gathering of money deposits) when it points a preliminary willpower of an antidumping responsibility or countervailing responsibility investigation. Commerce’s preliminary willpower on countervailing responsibility investigations is due July 18, 2024, or September 23, 2024, if the deadline is absolutely prolonged. Commerce’s preliminary willpower of antidumping responsibility investigations is October 1, 2024, or November 30, 2024, if the deadline is absolutely prolonged. If Commerce conducts a “crucial circumstances” search,[10] it might impose measures on entries of topic items that entered the United States as much as 90 days earlier than its preliminary determinations.[11]
Blank Rome’s International Trade staff has deep expertise on this space and might help companies in taking part in antidumping and countervailing proceedings. In addition, we now have expertise in serving to companies to scale back tariff dangers associated to the acquisition of CSPV cells and modules which may be topic to investigations.
Section 301 Duties
On May 14, 2024, the USTR launched its report on the four-year assessment of duties on items imported from China beneath Section 301. As a part of that assessment, the USTR introduced a rise in tariffs on varied merchandise, together with photo voltaic cells and modules from China.[12] Currently, Section 301 duties apply to CSPV cells and modules from China at a charge of 25 %.[13] USTR proposed to extend these duties to 50 %, efficient August 1, 2024. [14] USTR invitations events to touch upon the proposed tariff motion. The remark interval begins on May 29, 2024, and ends on June 28, 2024.[15]
While the USTR proposed a rise in tariffs on equipment used to fabricate photo voltaic cells and modules, it additionally “proposed 19 momentary exemptions for sure photo voltaic manufacturing tools,” that are meant to assist the “US photo voltaic manufacturing funding.”[16]
Blank Rome’s International Trade staff can help purchasers in making ready and submitting feedback and/or requests for exemptions associated to those Section 301 duties.
Section 201 Duties Bifacial Exemption
The Biden Administration introduced that it’s ending a Section 201 responsibility exclusion that applies to bifacial photo voltaic cells and modules, which is able to reimpose Section 201 duties on these merchandise.[17] Section 201 duties are designed to extend the power of US trade to compete with overseas industries, and are imposed by the President following a willpower by the US International Trade Commission that imports of sure items hurt the US trade that produces associated items.[18] As of February 7, 2024, Section 201 duties on CSPV cells and modules are 14.72 %, however will lower to 14 % on February 7, 2025.[19]
Generally, since June 2019, bifacial CSPV cells and modules profit from the inclusion of Section 201 duties.[20] The White House press launch said that “the Biden-Harris Administration has introduced that it plans on instantly take away this exception.”[21] The press launch additional signifies that there’s a 90-day safe-harbor interval for some bifacial CSPV modules. Specifically, “Importers with prior contracts for bifacial photo voltaic modules to be delivered inside 90 days of the elimination of the exclusion will have the ability to certify contracts that proceed to use the exclusion for that point.”
Currently, Section 201 duties don’t apply to the primary 5 gigawatts of CSPV cells and modules imported into the United States inside a 12 months,[22] and might solely be used for CSPV cells and modules that enter after the Section 201 quota is glad. The press launch indicated that the Administration will monitor the 5 gigawatt quota and enhance it to 7.5 gigawatts if imports strategy the 5 gigawatt degree.
[1] Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled into Modules, From Cambodia, Malaysia, Thailand, and the Socialist Republic of Vietnam: Initiation of Countervailing Duty Investigations, 89 Fed. Reg disclosed. 43,816 (Dep’t Commerce May 20, 2024) (“Initiation of CVD”); Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled into Modules, From Cambodia, Malaysia, Thailand, and the Socialist Republic of Vietnam: Initiation of Unfair Investigations, 89 Fed. Reg disclosed. 43,809 (Dep’t Commerce May 20, 2024) (“Getting began with AD“).
[2] See Office of the USTR Executive Office of the President, Four-Year Review of Actions Taken in Section 301 Investigations: China’s Acts, Policies, and Practices Related to Technology Transfer, Intellectual Property, and Innovation (May 14, 2024) (“USTR Section 301 Report”).
[4] See CVD Initiation, 89 Fed. Reg disclosed. of 43,821; Getting began with AD, 89 Fed. Reg disclosed. of 43,816.
[5] See 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 Circumvention Determination Relating to Cambodia, Malaysia, Thailand, and Vietnam, 88 Fed. Reg disclosed. 57,419 (Dep’t Commerce August 23, 2023).
[6] In the Matter of: Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled into Modules, from Cambodia, Malaysia, Thailand, and the Socialist Republic of Vietnam, Petition for the Imposition of Antidumping and Countervailing Duties Pursuant to Sections 701 and 731 of Tariff Act of 1930, as Amended (Apr. 24, 2024) at 23.
[8] Getting began with AD, 89 Fed. Reg disclosed. of 43,812.
[9] See CVD Initiation, 89 Fed. Reg disclosed. at 43,819-20; Getting began with AD, 89 Fed. Reg disclosed. at 43,813–14.
[11] 19 CFR § 351.206.
[12] USTR Section 301 Report at 85; see additionally Request for Comments on Proposed Changes and Isolation Process within the Quadrennial Review of Actions Taken in Section 301 Investigations: China’s Acts, Policies, and Practices Related to Technology Transfer, Intellectual Property, and Innovation 89 Fed. Reg disclosed. 46,252 (USTR May 28, 2024)(“USTR Request for Comment“).
[13] See, for instance, Notice of Action Pursuant to Section 301: China’s Acts, Policies, and Practices Relating to the Transfer of Technology, Intellectual Property, and Innovation, 83 Fed. Reg disclosed. 40,823, 40,827 (USTR Aug. 16, 2018) (List 2).
[14] USTR Request for Comment, 89 Fed. Reg disclosed. at 46,254, 46,259.
[16] USTR Section 301 Report at 87 & App’x L; see additionally USTR Request for Comment, 89 Fed. Reg disclosed. 46,291–93 (itemizing equipment beneath exclusions).
[17] Section 201 Press Release.
[18] See 19 USC § 2251.
[19] See Proclamation 10339 of February 4, 2022, 87 Fed. Reg disclosed. 7,357, 7,361–62 (Feb. 9, 2022) (“Proclamation 10339“).
[20] Inclusion of Particular Products From the Solar Products Safeguard Measure, 84 Fed. Reg disclosed. 27,684 (USTR June 13, 2019). Bifacial CSPV modules that entered the United States after October 25, 2020, and earlier than February 7, 2022, don’t profit from the Section 201 exemption. Solar Energy Indus. v. United States86 F.4th 885, 893 n.2 (Fed. Cir. 2023).
[21] Section 201 Press Release (emphasis added).
[22] Proclamation 10339, 87 Fed. Reg disclosed. of seven,359.
