The Petitioners representing the U.S. domestic industry filed new petitions with the U.S. Department of Commerce (“Commerce”) against imports from three countries, Thailand, Vietnam, and Malaysia, alleging that certain Chinese producers are diverting Chinese-origin components through Thailand to undergo minor processing to complete Crystalline Silicon Photovoltaic (“CSPV”) cells and modules subject to the Orders and subsequently to export the merchandise to the United States to avoid AD/CVD duties. The companies that were named in the circumvention submissions were:

Thailand

1. Canadian Solar Manufacturing (Thailand) Co., Ltd. (“Canadian Solar Thailand”), a subsidiary of Canadian Solar Inc. (“Canadian Solar”);

2. Trina Solar Science & Technology (Thailand) Co., Ltd. (“Trina Solar Thailand”), a subsidiary of Trina Solar Co., Ltd;

3. Talesun Solar Technologies Thailand or Talesun Technologies (Thailand) Co., Ltd.; and

4. Astroenergy Solar Thailand Co., Ltd (“Astroenergy Thailand”).

Vietnam

1. Trina Solar (Vietnam) Science & Technology Co., Ltd. (“Trina Solar Vietnam”);

2. Canadian Solar Manufacturing (Vietnam) Co., Ltd. (“Canadian Solar Vietnam”);

3. China Sunergy Co., Ltd. in Vietnam (“CSUN Vietnam”);

4. Boviet Solar Technology (Vietnam) Co., Ltd. or Boviet Solar Technology Co., Ltd. (“Boviet Solar”);

5. GCL System Integration Technology (Vietnam) Co. Ltd. (“GCL-Si Vietnam”);

6. Vina Cell Technology Company Limited and Vina Solar Technology Company Limited; and

7. Jinko Solar (Vietnam) Co., Ltd.

Malaysia

1. Jinko Solar Technology Sdn. Bhd. (“Jinko Solar Malaysia”);

2. LONGi (Kuching) Sdn. Bhd.; and

3. JA Solar (Malaysia) Co., Ltd. or JA Solar Malaysia Sdn. Bhd.

While the requests are hundreds of pages in length, the gist of the allegations against each country is that the operations being performed in each of these countries are minor or insignificant, and the products being exported from each of the three countries are subject to the antidumping and countervailing duty order on CSPV cells and modules from China.

Within 45 days of the filing (which was August 16, 2021) the rules of Commerce require it to either make a final determination or initiate a full investigation. The 45-day deadline is September 30, 2021. It is very likely that Commerce will conduct a full review of these circumvention allegations, in light of their complexity and seriousness.

Of great importance to importers here is that if there is a final determination that there has been circumvention, the entries on or after the date of the initiation of the scope inquiry will be subject to Chinese rates. Thus, for imports made no later than September 30, 2021, importers could find themselves subject to the high Chinese rates. At the moment, it is very difficult for importers to know the likelihood of whether those Chinese rates will be applied, because the preliminary and final determinations of Commerce are still several months away.

The final determination in an anticircumvention ruling is to be issued normally within 300 days from the date of initiation, according to the Commerce rules. Before that time Commerce will issue a preliminary determination and at that time importers will have a better idea of the likelihood that duties will be applied to those products allegedly circumventing the order.

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Jeffrey Neeley is a Washington-based partner with the law firm Husch Blackwell. He leads the firm’s International Trade Remedies team.

Cortney O’Toole Morgan is a Washington D.C.-based partner with the law firm Husch Blackwell. She leads the firm’s International Trade & Supply Chain group.