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Volume XII, Number 183

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Key Takeaways | Update on the Solar Circumvention Proceeding and Discussion of Possible Comments in Response to Commerce’s Recent Memo [VIDEO]

On May 17, 2022, Carl Fleming, Lynn Kamarck, and Tyler Kimberly from McDermott’s Energy and Project Finance and International Trade teams hosted Solar Energy Industry Association (SEIA) General Counsel and Vice President of Market Strategy John Smirnow for a roundtable discussion that provided substantive arguments, best practices and other advocacy strategies for US solar developers who are preparing to submit collective and individual responses to the US Department of Commerce (Commerce) this week following Auxin Solar Inc.’s petition and Commerce’s subsequent memorandum.

Below are key takeaways from the discussion:

1. To reach an affirmative circumvention determination, Commerce must confirm that the processing occurring in the target countries (i.e., Cambodia, Malaysia, Thailand and Vietnam) is “minor or insignificant.” While Commerce’s precedent establishes that the processing required to make a wafer into a module (including cell production) is not “minor or insignificant,” it has suggested the opposite during this circumvention inquiry.

2. Commerce could terminate the circumvention proceeding on the basis that including cells or modules completed in the target countries within the scope of the existing Chinese orders would not be “appropriate.” However, there is no clear indication as to what “appropriate” means.

3. What developers need the most right now is certainty. Because of the uncertainty surrounding the amounts of cash deposits and the final assessment of import duties, some developers are unable to make key business decisions. While Commerce tried to provide some of this certainty in its May 2 proposal, it did not accomplish that goal.

4. Developers can share their views regarding the investigation by submitting comments to Commerce by 5:00 pm EDT on May 19, 2022. Comments can include discussion of any difficulties complying with Commerce’s proposed certifications and whether such certificates would be useful to the company, the treatment of cells or modules manufactured in non-targeted countries and inconsistencies between prior Commerce decisions and the investigation at hand.

5. SEIA is calling for a Public Interest Requirement in anti-circumvention investigations to prevent similar petitions from being filed and moving forward in the future.

© 2022 McDermott Will & EmeryNational Law Review, Volume XII, Number 138
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About this Author

Carl Fleming Washington D.C. Transaction Lawyer McDermott Will Emery Law Firm
Partner

Carl J. Fleming focuses his practice on mergers and acquisitions, project development and project finance, predominately in the renewable energy industry. He leads energy, infrastructure and PPP transactions throughout the US and in more than 40 countries worldwide. Carl represents private equity investors, Fortune 500 companies, foreign governments, and a broad range of leading renewable energy developers and sponsors.

Carl provides legal and commercial advice for the development, construction, operation, purchase and sale, and financing of projects and infrastructure, including...

202 756 8917
Lynn G. Kamarck Counsel McDermott Will & Emery
Counsel

Lynn G. Kamarck focuses her practice on regulatory matters and has more than 30 years of experience in international trade matters, with an emphasis on trade remedy proceedings, trade policy, export controls and customs.

Lynn represents clients in international trade proceedings, including antidumping, countervailing duty and safeguards cases, customs penalty proceedings and related litigation. Additionally, Lynn drafts and promotes legislative and regulatory changes on behalf of her clients. Her export control experience includes export...

202-756-8044
Tyler Kimberly Associate McDermott Will & Emery
Associate

Tyler Kimberly focuses his practice on international trade matters, and his experience includes analyzing issues in both US trade and administrative law.

Tyler has clerked for the Honorable Judge Mark A. Barnett and the Honorable US Magistrate Judge Susan L. Collins. Prior to clerking, Tyler was an associate at an Ohio-based law firm where he focused on federal litigation. Tyler also held positions at two UN international criminal tribunals.

202-756-8318
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