In the July 14 memorandum, Commerce seeks information about the: (1) amount of investment necessary to construct and start-up certain facilities, (2) non-financial barriers (e.g., access to inputs, qualified technical employees, technologies, research and development, etc.) that companies typically face to establish and begin certain operations, and (3) research and development ("R&D") expenses associated with conducting certain operations. These types of facilities/operations involved in:
- refining silicon into solar-grade polysilicon,
- producing ingots from solar-grade polysilicon,
- producing wafers from solar-grade ingots,
- producing solar cells from wafers,
- producing solar modules from solar cells, and
- the same operations and products as foreign producers and exporters responding to Commerce's solar circumvention inquiries.
The agency is particularly concerned with facilities located, and operations performed, in mainland China, Cambodia, Malaysia, Thailand, or Vietnam, but would accept information pertaining to other countries.
Commerce is required to consider the level of investment and R&D expenses where circumvention is alleged due to assembly in a third country. Level of investment and R&D expenses are factors that statutorily must be considered when Commerce assesses whether the processing occurring in Cambodia, Malaysia, Thailand, and Vietnam is "minor or insignificant."[2] It is therefore important that interested parties provide Commerce with the requested information by the fast-approaching deadline of July 21st.
Commerce has requested this information only from "interested parties" in the solar circumvention inquiries which are defined under Commerce's rules to include foreign producers and U.S.Covington完全可以帮助客户响应商务请求提供事实信息或对商业规避查询有更广泛问题瑞格公元前19 0712022.
s1677j(b)(2).While the proposed rules would represent a positive development for foreign manufacturers, U.S.进口商和美国消费者,包括美国太阳项目开发产业,如果以当前形式发布,修改规则是可能的。因此,商务悬疑查询方必须在2022年8月1日之前提交评论 。
The proposed rules directly respond to President Biden's June 6, 2022 emergency declaration, which found that an emergency exists "with respect to the threats to the availability of sufficient electricity generation capacity" and authorized Commerce to issue a moratorium on tariffs on solar cells and modules from Cambodia, Malaysia, Thailand, and Vietnam for up to a 24-month period.[4]
The Proposed Rules
The proposed rules appear to respond to concerns raised by the solar project development industry about how the emergency declaration would be implemented in the context of existing agency regulations. Commerce has confirmed that it intends to provide for the temporary, duty-free importation of certain solar cells and modules from Cambodia, Malaysia, Thailand, and Vietnam even if Commerce determines that they are circumventing an existing AD/CVD order. In so doing, Commerce has clarified that these new rules—and not the agency's existing circumvention regulations—will apply to such solar cells and modules throughout the pendency of the emergency period.
The proposed rules would be codified as a new part 362 to title 19 of the Code of Federal Regulations, and they would provide that:
- The applicable entries would be those "Southeast Asian-Completed Cells and Modules" that are subject to the solar circumvention inquiries. "Southeast Asian-Completed Cells and Modules" means solar cells and modules completed in Cambodia, Malaysia, Thailand, or Vietnam, using parts and components that are made in China and "subsequently exported from Cambodia, Malaysia, Thailand or Vietnam to the United States."
- The date of termination of the temporary duty-free importation would be June 6, 2024, or the date when the emergency is terminated, whichever occurs first.
- Importation of Southeast Asian-Completed Cells and Modules would be "free of collection" of AD/CVD cash deposits until the termination date of the emergency.
- In the event of an affirmative preliminary or final circumvention determination prior to the date of termination, Commerce would not direct U.S.Customs and Border Protection to suspend liquidation or collect cash deposits. This means that Southeast Asian-Completed Cells and Modules imported at any time prior to the termination of the emergency would not be subject to AD/CVD duties as a result of an affirmative determination in the circumvention inquiries.
- In the event that it issues an affirmative preliminary circumvention determination, Commerce has signaled that it may require certifications for solar cells and modules from Cambodia, Malaysia, Thailand, and Vietnam in order to differentiate between (i) Southeast Asian modules with Chinese cells that are already subject to the existing orders and (ii) Southeast Asian modules using Chinese inputs that would become subject to the existing orders solely based upon an affirmative circumvention finding. This certification process would likely create an administrative burden for U.S.进口商
a美国成员太阳能电池制造行业Auxin Solar公司请求绕行查询,因此可能有兴趣对受影响的进口品保持高关税。商业有义务考虑所有提交的评论并可能根据这些评论修改拟议规则。 机构必须听取所有各方的意见,包括那些支持当前形式拟议规则者的意见,以便机构能够充分理解修改规则的后果。Covington深入处理国际贸易和能源问题,完全有能力帮助想提交评论或可能质疑新规则会如何影响业务的客户。
太阳产业一直处在生存危机中,这是威胁对很大一部分美国征收回溯未来关税所触发的导入物2022年4月1日启动危机时商务部启动调查以确定柬埔寨、马来西亚、泰国和越南的太阳能电池和模块是否绕过中国太阳能电池的反倾销税这些国家的太阳能电池大都占美国约80%2020年太阳模块导入量 。
While rarely invoked, section 318(a) was recently used by President Trump to reduce certain burdens on the importation of personal protective equipment during the COVID-19 pandemic.[8] There are other examples of prior Administrations suspending imports tariffs under this provision.[9]
In addition to issuing the Declaration, President Biden invoked the Defense Production Act for solar cells and modules, as well as for: insulation, electric heat pumps, transformers (and electric grid components), electrolyzers, fuel cells, and platinum group metals.The White House indicated that the DPA Determination is intended to: accelerate domestic production of clean energy technologies, including solar panel parts and put the full power of federal procurement to work spurring additional domestic solar manufacturing capacity by directing the development of master supply agreements, including "super preference" status.[10]
The President's emergency action does not impact existing AD/CVD tariffs on imports of solar cells and modules from mainland China and Taiwan including such modules assembled in jurisdictions other than mainland China or Taiwan using cells from mainland China or Taiwan.
What Can We Expect from Commerce?
On the same day the Declaration was issued, Commerce issued a press release in which Secretary Raimondo indicated that Commerce "will issue regulations to temporarily permit for up to 24 months duty-free access to solar cells and modules from Cambodia, Malaysia, Thailand, and Vietnam." The Assistant Secretary of Commerce for Enforcement and Compliance, Lisa Wang, who is responsible for AD/CVD determinations, similarly stated: "no solar cells or modules imported from Cambodia, Malaysia, Thailand, and Vietnam will be subject to new antidumping or countervailing duties during the period of the emergency."[11]
Commerce is expected to formalize the moratorium on these AD/CVD tariffs through a regulation.鉴于这一行动的紧急性质,商业界很可能在2022年8月29日初步判定日期前数日或数周发布这项条例而不通知和评论。
商业可能仍然发现柬埔寨、马来西亚、泰国和越南的太阳能电池和模块绕过AD和CVD订单,在这种情况下,关税估计在紧急段过期后开始应用。
Do这些行动解决美国危机太阳产业?
提供总统声明和商务声明,似乎极有可能在今后24个月内不向柬埔寨、马来西亚、泰国和越南的太阳能电池模块征收新的AD/CVD关税,无论规避调查结果如何宣言因此有可能产生关税可预测性,使美国太阳能产业需求继续输入太阳能电池模块太阳能电池生产者已经表示,他们正在考虑对暂停这些关税提出法律挑战上文指出,总统行动似乎与规约一致,法院通常在紧急情况下服从总统鉴此,这种法律挑战不太可能成功,而且由于通常需要时间提出这种挑战,也不太可能在商务8月初步判定前解决。太阳能产业在质疑AD/CVD收费的诉讼中,法院例行发布追溯性补救办法因此,在不大可能成功对《宣言》提出质疑的情况下,法院可追溯性地对太阳能电池和模块适用AD/CVD关税,特别是如果在任何诉讼未决期间采取程序步骤命令最终评估太阳能电池和模块关税。
在24个月紧急状态到期后进口关税水平方面比较不确定(或总统似乎不太可能结束紧急状态时更快)。商业发现规避后,从柬埔寨、马来西亚、泰国和越南等地对太阳能电池模块立即实施关税,目前尚不清楚该点可适用什么率。通常,外国出口商和生产者能够参加对AD/CVD指令的行政审查,以建立自己的公司特有收费率,而不是支付全局AD/CVD通用收费率,根据中国指令,总收费率约为250%(合并计算)。尚不清楚商务是否会允许东南亚国家出口商/生产商在紧急情况下参加评审,因为预计它们的商品在进口时不受关税约束。2024年中 假设紧急端太阳能产业发现极高AD/CVD收费威胁再次锐减美国太阳能电池和模块的供应市场
理解总统或商务对太阳能电池或对太阳能电池模块导入的潜在关税风险对贵公司很重要,Covington完全有条件提供帮助manbext网页版We have a group of attorneys who are well versed in these trade laws and have decades of experience helping clients navigate the tariff risks created by AD/CVD orders.
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If you have any questions concerning the material discussed, please contact the following members of our International Trade and Energy practices: Shara Aranoff, Alexander Chinoy, William Isasi, Andy Jack, and Jay Smith.
[1] Letter from Sen.海因里希森Lujan RepStansbury和Repfernández呼叫Biden总统(5月9日2022日)。
[4] White House, Declaration of Emergency and Authorization for Temporary Extensions of Time and Duty-Free Importation of Solar Cells and Modules from Southeast Asia (June 6, 2022).
[5] White House, Memorandum on Presidential Determination Pursuant to Section 303 of the Defense Production Act of 1950, as amended, on Solar Photovoltaic Modules and Module Components (June 6, 2022).
[6] White House, Memorandum on Presidential Determination Pursuant to Section 303 of the Defense Production Act of 1950, as amended, on Solar Photovoltaic Modules and Module Components (June 6, 2022) ("the Secretary shall consider taking appropriate action under section 1318(a) of title 19, United States Code . . . .").
[7] (empahsis added) While the text of this provision references the "Secretary of the Treasury," the notes clarify that the provision today applies to the Secretary of Commerce who is the official that administers U.S.AD/CVD法例.
Background
Customs and Border Protection ("CBP") determines the country of origin of imports for purposes of normal customs duties while Commerce may make its own country of origin determination for purposes of AD/CVD duties. Historically, both agencies used the same country of origin analysis, referred to as the "substantial transformation test," which focuses on, for example, the manufacturing activities in a country. Commerce's long-standing position is that it can reach different country of origin determinations from CBP even though the agencies are nominally applying the same test. For example, Commerce could use the substantial transformation test and find that, for purposes of AD/CVD duties, the country of origin of an import is China, while CBP could apply the same test and determine for purposes of regular customs duties it is an import from Taiwan. Needless to say, having to claim multiple countries of origin for a single import would complicate a U.S.importer's customs compliance procedures. However, until recently, importers were at least able to rely on both agencies' established practice of applying the substantial transformation test to determine what country of origin to claim.
In the solar panels from China AD and CVD proceedings, Commerce announced that it would not apply the substantial transformation test to determine country of origin. Instead it applied a new test, the "country of assembly test" in which the country of origin for AD/CVD purposes was the country in which the solar panel was assembled. Commerce developed and applied this test notwithstanding the fact that in two other AD/CVD orders on solar cells from China, Commerce determined country of origin based on the substantial transformation test.
The Federal Circuit's Decision
The Federal Circuit upheld Commerce's use of the country of assembly test finding that the agency has broad discretion to develop different country of origin tests for different AD/CVD orders. Although the Federal Circuit recognized that Commerce was using different country of origin tests for orders involving solar products, the court found that Commerce had provided a reasoned explanation supported by adequate evidence for its departure from the substantial transformation test and its adoption of the country of assembly test.
The court affirmed Commerce's principal rationale for departing from its past practice ̶ that the solar panel orders were intended to address injury to the domestic industry from solar panels assembled in China from non-Chinese cells and application of the country of assembly test would allow Commerce to fashion an order that addresses the very imports found to cause injury. Commerce found that the substantial transformation test, in contrast, would allow producers in China to evade the discipline of the various AD/CVD orders on Chinese solar products simply by producing solar panels from cells not made in China. The Federal Circuit found that the record evidence substantiated Commerce's concern that Chinese producers were evading existing AD/CVD duties by producing solar panels in China made with non-Chinese cells.
Implications
Long before the Canadian Solar decision, Commerce established the principle that it may come to a different country of origin determination than CBP for the same import and, as a result, importers may have to claim different countries of origin for AD/CVD duties and regular customs duties. However, this decision goes one step further and puts importers on notice that the substantial transformation test may not resolve country of origin for AD/CVD duties because Commerce may fashion different country of origin tests for different AD/CVD orders. This makes it more important that importers have a thorough understanding of the scope determinations Commerce has made under each AD/CVD order and that importers incorporate those determinations into their customs compliance procedures. Some of the best ways an importer can stay abreast of scope determinations is to review Commerce's Federal Register notices and confirm that they are on the "scope service list" for any AD/CVD orders that pertain to their imports when possible. Parties that have participated in an AD/CVD proceeding are eligible to be on the scope service list for that proceeding and they are directly notified of important scope determinations. See generally 19 C.F.R.§ 351.225(n) & (o).