Solar Circumvention Proceeding: Postponement of Preliminary Determinations

August.23.2022

On August 22, the U.S. Department of Commerce (“Commerce”) postponed its preliminary determinations in the solar panel antidumping and countervailing duty (“AD/CVD”) circumvention proceeding by 90 days. The preliminary determinations were to be made by late August, but now they are to be made by November 28, 2022.

Commerce initiated its circumvention inquiries on April 1, 2022, in response to a petition filed by Auxin Solar, Inc. Commerce is to decide whether solar cells and modules completed in Cambodia, Malaysia, Thailand, or Vietnam using parts and components from China are circumventing the AD/CVD orders on solar cells and modules from China. For background information on Commerce’s circumvention proceeding, please see Orrick’s webinar here and Orrick’s prior update on the status of the proceeding here.

The postponement does not affect the scope of entries on which AD/CVD cash deposits could be collected by virtue of circumvention findings. Those remain covered imports from the four Southeast Asian countries going back to April 1, 2022 (and perhaps earlier).

At the same time, postponement of the circumvention determinations also would not affect application of a time-limited duty waiver that the Biden administration announced on June 6, 2022. As described in Orrick’s update here, the administration announced its intention to waive, for up to two years, collection of AD/CVD deposits or final duties on imports of solar cells and panels from Cambodia, Malaysia, Thailand and Vietnam if Commerce's circumvention determinations would otherwise result in duty collections during this period. Commerce published proposed waiver-implementing regulations on July 1, 2022. It would not be surprising, however, if the waiver is challenged judicially, and the outcome of any such challenge would be uncertain.