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September 20, 2022

Commerce Issues Final Rule on AD/CVD Grace Period

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The Department of Commerce (DOC) has issued the final rule implementing the two-year moratorium on anti-dumping or countervailing duties (AD/CVD) for solar panels and cells from Cambodia, Malaysia, Thailand, and Vietnam in accordance with the June 6, 2022, Presidential Proclamation (Declaration of Emergency and Authorization for Temporary Extensions of Time and Duty-Free Importation of Solar Cells and Modules from Southeast AsiaSee GT Alert, Biden Uses Emergency Powers to Pause New Solar Import Tariffs—Frequently Asked Questions), which provided for the two year moratorium on those tariffs.

The Sept. 16, 2022, DOC final rule provides that in the event there is an affirmative preliminary or final determination in the AD/CVD circumvention inquiries, cash deposits will not be collected, liquidations will not be suspended, and AD/CV duty assessments will not be applied until June 6, 2024 ("Date of Termination"). The waiver applies to entries of merchandise after the date of the final rule and to shipments already entered and that may be subject to the AD/CVD duties should there be an affirmative preliminary or final determination.

Note that pursuant to the Presidential Proclamation the grace period could be ended earlier than June 6, 2024, should the commerce secretary declare "the emergency…has terminated" and "the United States has access to a sufficient supply of solar modules to assist in meeting our electricity generation needs." The final rule adds another requirement: The solar cells must now be used or installed within 180 days of the termination date. Tariffs may be reinstated following this period, but importers of solar cells and modules will not be subject to retroactive payments of tariffs on imports during the suspension period.

The rule provides certainty to importers of solar cells and modules as they await the results of the preliminary determination in the DOC investigation, expected by Nov. 28, 2022, and the final determination in the spring of 2023. As described in the previous GT Alert on this topic, the DOC began an inquiry into whether imports of solar cells and modules from Cambodia, Malaysia, Thailand, and Vietnam are circumventing the antidumping and countervailing duties orders on crystalline silicon photovoltaic cells, whether or not assembled into modules, from China. The DOC is considering whether the scope of the existing antidumping and countervailing orders against China includes those solar cells and modules completed in those four countries using Chinese parts and components.

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