Background

President Biden took executive action June 6 to boost domestic clean energy manufacturing by declaring the following industrial resources, materials, and critical technology as essential to U.S. national security under the Defense Production Act of 1950: (1) solar photovoltaic modules and module components, including ingots, wafers, solar glass, and cells; (2) electrolyzers, fuel cells, and platinum group metals; (3) transformers and electric power grid components; (4) electric heat pumps; and (5) insulation.

Additionally, the president has expanded the authority of the secretary of Commerce to exempt for a 24-month period any imports of solar cells and modules from Cambodia, Malaysia, Thailand, and Vietnam that are not already subject to antidumping or countervailing duties from any such duties that may be imposed under an ongoing anti-circumvention inquiry. A White House statement indicates that this action would “ensure the U.S. has access to a sufficient supply of solar modules to meet electricity generation needs while domestic manufacturing scales up”.

The International Trade Administration initiated earlier this year an inquiry into whether crystalline silicon photovoltaic cells, whether or not assembled into modules, that are completed in Cambodia, Malaysia, Thailand, or Vietnam using parts and components from China are circumventing the AD and CV duty orders on such goods from China. If the ITA reaches an affirmative determination, subject goods could be hit with AD/CV duties. However, Commerce Secretary Gina Raimondo would be able to provide an exemption from any such duties through June 6, 2024, or until the end of the emergency declared on June 6, 2022, by President Biden, whichever occurs first.

The Department of Commerce signaled in a press release that such an exemption would indeed be granted in the event of an affirmative determination in the anti-circumvention inquiry.

The goods covered by the AD/CV duty orders on China are crystalline silicon photovoltaic cells, and modules, laminates, and panels consisting of crystalline silicon photovoltaic cells, whether or not partially or fully assembled into other products, including modules, laminates, panels, and building integrated materials. These items are currently classified in HTSUS subheadings 8501.71.0000, 8501.72.1000, 8501.72.2000, 8501.72.3000, 8501.72.9000, 8501.80.1000, 8501.80.2000, 8501.80.3000, 8501.80.9000, 8507.20.8010, 8507.20.8031, 8507.20.8041, 8507.20.8061, 8507.20.8091, 8541.42.0010, and 8541.43.0010.

For more information, please contact attorney attorney Kristen Smith at (202) 730-4965.

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