Classification of certain crystalline silicon photovoltaic modules

H296919 June 25, 2025 OT:RR:CTF:EMAIN H296919 TPB CATEGORY: Classification TARIFF NO.: 9903.45.25; 8541.43.0010 John P. Smirnow Smirnow Law 1717 K Street, NW, Suite 1120 Washington, DC 20006 RE: Classification of certain crystalline silicon photovoltaic modules Dear Mr. Smirnow: This is in response to your letter of April 10, 2018, issued on behalf of Cypress Creek Renewables (“Cypress Creek”), in which you request a binding ruling as to whether certain crystalline silicon photovoltaic (“CSPV”) modules imported from South Korea are subject to the February 7, 2018 safeguard measure on imports of certain CSPV products implemented pursuant to Section 201 of the Trade Act of 1974, as amended (19 U.S.C. §2252) (“Solar 201 safeguard”). Per your request, we offered a meeting, pursuant to 19 C.F.R. §177.4, to further discuss the matter prior to issuing our ruling, but did not receive a response. Our determination as to the applicability of the Solar 201 safeguard is set forth below. FACTS: Your April 10, 2018, letter (“ruling request”) describes the articles to be imported as “72-cell CSPV modules used in large-scale solar arrays.” This description is consistent with an appended product data sheet, which pertains to “Q.ANTUM Solar Modules” made up of “Q Cells.” According to the data sheet, each product consists of 72 monocrystalline photovoltaic cells mounted onto aluminum frame, each is equipped with a junction box containing bypass diodes, as well as a cable and connector, and each and has a measured output ranging up to 370 watts. Additionally, according to “an overview of the anticipated cell and module manufacturing processes” appended as a separate attachment, the cells range from 180 to 200 micrometers in thickness. In your ruling request, you describe the manufacturing process for these products as follows: Malaysian-origin silicon substrates are exposed to phosphorus gas at a high temperature. The phosphorus gas and oxidation of the substrate surface results in a thin phosphosilicate glass (“PSG”) layer on the substrate surface, which combined with the furnace high temperature results in molecular-level diffusion of phosphorous into the substrate. Importantly, the formation of the PSG layer during the diffusion process creates a positive-negative (“P/N”) junction with the wafer. The P/N junction is what enables a CSPV cell to produce electricity. The diffusion process represents an estimated 13 percent of the capital expenditure cots (“capex”) for equipment and facilities for the production processes at issue. The diffuse CSPV cell is then exported to South Korea. Upon importation into South Korea, the diffused CSPV cells first undergo a chemical etching and edge isolation process, which separates the positive and negative layers, and a washing process to remove any remaining surface particles. The etching and edge isolation process represents approximately 7.5 percent of capex. A silicon nitride anti-reflective coating is then applied to reduce reflection and increase the amount of light absorbed into the cells. The cells may also undergo a passivation process. First, a rear surface passivation film is applied. Second, lasers or chemicals are used to open the rear passivation layer and create pockets in the film to absorb more light. Collectively, these light absorption enhancement processes represent approximately 8-10 percent of capex. The CSPV cells then undergo a contact printing and drying process. During this step, metal lines are printed on the front and rear of the cell to collect electricity produced by the cell. The cells are tested under simulated sunlight conditions, and then classified and sorted according to their characteristics and efficiencies. The printing process represents approximately 13 percent of capex, with much of the costs attributable to the need for handling high-cost silver paste. The CSPV cells are then assembled into solar modules. First, a series of CSPV cells is soldered together. A Piece of glass and sheet of ethyl vinyl acetate (“EVA”) are p9laced on the production line, followed by six strings of 12 CSPV cells. A second sheet of EVA, sealant and back sheet are then added. The combined materials are then laminated in a vacuum and cured. At this stage, the completed article is referred to as a “laminate.” Aluminum frames are subsequently attached to the laminate and a junction box is attached to the back side of the module. The finished CSPV modules are then cleaned and inspected. The module assembly process represents approximately 32 percent of capex. (Emphasis in original). You assert that because assembly of the CSPV panels at issue includes certain steps undertaken in the U.S., specifically the creation of the positive-negative (“p/n”) junction in the cells making up the panels, the products fall outside the scope of the Solar 201 safeguard. ISSUE: Whether the CSPV products at issue fall within the scope of the Solar 201 safeguard and are consequently subject to increased duties. 2 LAW AND ANALYSIS: Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the heading and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). The Solar 201 safeguard was implemented in accordance with Presidential Proclamation 9693, dated January 23, 2018, which was promulgated in pursuant to Section 201 of the Trade Act of 1974, as amended (19 U.S.C. §2252). See Fed. Reg. Vol. 83, No. 17 (Jan. 25, 2018). The Solar 201 safeguard establishes a tariff-rate quota and additional duties on imports of CSPV “cells” and “modules.” Id. In particular, the proclamation calls for amendment of Chapter 99, Subchapter III, HTSUS, to create subheadings 9903.45.21 and 9903.45.22, which apply to CSPV cells, and 9903.45.25, which applies to CSPV modules. Id. The proclamation also calls for amendment of Chapter 99, Subchapter III, to create a new legal note, Note 18, to define the products classifiable in subheadings 9903.45.21 to 9903.45.25 and set forth the additional rates of duties to be applied to these products. Id. These amendments to Chapter 99 went into effect on February 7, 2018. The HTSUS headings and subheadings under consideration are as follows: 8541 Diodes, transistors and similar semiconductor devices; photosensitive semiconductor devices, including photovoltaic cells whether or not assembled in modules or made up into panels; light-emitting diodes (LED); mounted piezoelectric crystals; parts thereof: Photosensitive semiconductor devices, including photovoltaic cells whether or not assembled in modules or made up into panels; light-emitting diodes (LED): 8541.42 Photovoltaic cells not assembled in modules or made up into panels 8541.43 Photovoltaic cells assembled in modules or made up into panels 3 8541.43.0010 Crystalline silicon photovoltaic cells of a kind described in statistical note 101 to this chapter Crystalline silicon photovoltaic cells, as defined in note 18(c) to this subchapter, when the product or originating good of a country other than a country described in note 18(b) to this subchapter, except as provided in heading 9903.45.27: 9903.45.21 If entered in an annual aggregate quantity not exceeding 12.5 gigawatts, under the terms of such note… 9903.45.22 Other… 9903.45.25 Modules as defined in note 18(g) to this subchapter, when the product or originating good of a country other than a country described in note 18(b) to this subchapter, except as provided in heading 9903.45.27 or heading 9903.45.29… 9903.45.27 Crystalline silicon photovoltaic cells, as defined in note 18(c) to this subchapter, and modules as defined in note 18(g) to this subchapter, all the foregoing when the product and originating good of Canada… 9903.45.29 Bifacial solar panels, as defined in and meeting the conditions of U.S. note 18(j) to this subchapter, that absorb light and generate electricity on each side of the panel and that consist of only bifacial solar cells that absorb light and generate electricity on each side of the cells… Note 18 to Subchapter III of Chapter 99 provides, in relevant part, as follows: (a) Subheadings 9903.45.21 through 9903.45.29 and any superior texts thereto establish temporary modifications applicable to entries of goods described herein and classified in the enumerated provisions of chapter 85 of the tariff schedule. Whenever any such subheading specifies that the annual aggregate quantity of such goods shall not exceed the quantity established under the terms of this note, when such goods are not the product of a country enumerated in subdivision (b) of this note, any entry of such goods that is in excess of the quantity specified for such provision shall be entered under the over-quota subheading set forth herein for such goods. All such goods shall be subject to duty as provided herein; and such duties shall be cumulative and imposed in addition to the rate of duty established for any such goods in chapter 85 of the tariff schedule, except as may be specified for duties imposed under the Rates of Duty 2 column. (b) For the purposes of this note and the application of subheadings 9903.45.21 through 9903.45.29, inclusive, the following developing countries that are members of the World Trade Organization shall not be subject to the rates of duty and tariff-rate quotas provided for therein: 1 Chapter 85 Statistical Note 10: For the purposes of statistical reporting numbers 8541.42.0010 and 8541.43.0010, the term “crystalline silicon photovoltaic cells” means crystalline silicon photovoltaic cells of a thickness equal to or greater than 20 micrometers, having a p/n junction (or variant thereof) formed by any means, whether or not the cell imported under statistical reporting number 8541.42.0010 (or subassemblies thereof imported under statistical reporting number 8541.43.0010) has undergone other processing, including, but not limited to, cleaning, etching, coating, and/or addition of materials (including, but not limited to, metallization and conductor patterns) to collect and forward the electricity that is generated by the cell. Such cells include photovoltaic cells that contain crystalline silicon in addition to other photovoltaic materials. This includes, but is not limited to, passivated emitter rear contact cells, heterojunction with intrinsic thin-layer cells, and other so-called hybrid cells. 4 Afghanistan, Albania, Algeria, Angola, Armenia, Azerbaijan, Belize, Benin, Bhutan, Bolivia, Bosnia and Herzegovina, Botswana, Brazil, Burkina Faso, Burma, Burundi, Cambodia, Cameroon, Cape Verde, Central African Republic, Chad, Comoros, Congo (Brazzaville), Congo (Kinshasa), Côte d’Ivoire, Djibouti, Dominica, Ecuador, Egypt, Eritrea, Ethiopia, Fiji, Gabon, The Gambia, Georgia, Ghana, Grenada, Guinea, Guinea-Bissau, Guyana, Haiti, Indonesia, Iraq, Jamaica, Jordan, Kazakhstan, Kenya, Kiribati, Kosovo, Kyrgyzstan, Lebanon, Lesotho, Liberia, Madagascar, Malawi, Maldives, Mali, Mauritania, Mauritius, Moldova, Mongolia, Montenegro, Mozambique, Namibia, Nepal, Niger, Nigeria, North Macedonia, Pakistan, Papua New Guinea, Paraguay, Rwanda, Saint Lucia, Saint Vincent and the Grenadines, Samoa, Sao Tomé and Principe, Senegal, Serbia, Sierra Leone, Solomon Island, Somalia, South Africa, South Sudan, Sri Lanka, Suriname, Swaziland [Eswatini], Tanzania, Timor-Leste, Togo, Tonga, Tunisia, Tuvalu, Uganda, Ukraine, Uzbekistan, Vanuatu, Yemen (Republic of), Zambia and Zimbabwe. (c) (i) For the purposes of subheadings 9903.45.21 and 9903.45.22 and heading 9903.45.27, except as otherwise provided herein, the term “crystalline silicon photovoltaic cells” (“CSPV cells”) means crystalline silicon photovoltaic cells of a thickness equal to or greater than 20 micrometers, having a p/n junction (or variant thereof) formed by any means, whether or not the cell (or subassemblies thereof provided for in subheading 8541.42.00 and imported under statistical reporting number 8541.42.0010) has undergone other processing, including, but not limited to, cleaning, etching, coating, and/or addition of materials (including, but not limited to, metallization and conductor patterns) to collect and forward the electricity that is generated by the cell. Such cells include photovoltaic cells that contain crystalline silicon in addition to other photovoltaic materials. This includes, but is not limited to, passivated emitter rear contact cells, heterojunction with intrinsic thin-layer cells, and other so-called hybrid cells. Subheadings 9903.45.21 and 9903.45.22 include goods presented in cell form and which at the time of importation are not presented assembled into circuits, laminates or modules or made up into panels. (ii) Subheadings 9903.45.21 and 9903.45.22 and heading 9903.45.27 shall not cover— * * * (3) CSPV cells, whether or not partially or fully assembled into other products, if such CSPV cells were manufactured in the United States. * * * (g) Subject to the provisions of subdivision (c)(iii) of this note, for purposes of subheading 9903.45.25 and 9903.45.27 to this subchapter, the term “modules” shall include the following goods provided for in subheading 8541.43 of the tariff schedule: a module is a joined group of CSPV cells, as such cells are defined in subdivision (c) of this note, regardless of the number of cells or the shape of the joined group, that are capable of generating electricity. Also included as a “module” are goods each known as a “panel” comprising a CSPV cell that has undergone any processing, assembly, or interconnection (including, but not limited to, assembly into a laminate). Such CSPV cells assembled into modules or made up into panels include goods of a type reported for statistical purposes under statistical reporting number 8541.43.0010. Such goods also include (i) CSPV cells which are presented attached to inverters or batteries of 5 subheading 8501.80.10 or 8507.20.80, respectively; and (ii) CSPV cells classifiable as DC generators of subheading 8501.71.00 or 8501.72.10. (emphasis added). Subheading 9903.45.25 provides for “modules as defined in note 18(g) of this subchapter” so long as these are “originating…product of a country other than a country described in note 18(b).” A given CSPV product accordingly falls within the ambit of subheading 9903.45.25 where: (1) It satisfies the description of “module” set forth in Note 18(g); and (2) it is a product of a country other than those listed in Note 18(b). We assess these criteria in turn. (1) Whether the products at issue qualify as “modules” for purposes of Note 18(g) to Chapter 99 According to Note 18(g) to Chapter 99, “modules” within the meaning of subheading 9903.45.25 include, inter alia, products of subheading 8541.43, HTSUS, consisting of “a joined group of CSPV cells…capable of generating electricity.” Regarding the latter criterion, CSPV cells are defined in Note 18(c) as “crystalline silicon photovoltaic cells of a thickness equal to or greater than 20 micrometers…having a p/n junction.” Regarding the former, products of subheading 8541.43, HTSUS, include, inter alia, “photovoltaic cells assembled in modules or made up into panels.” CBP has previously determined that modules of heading 8541, and specifically of former subheading 8541.40.60, may include junction boxes equipped with bypass diodes, cables, and connectors. See Headquarters Ruling Letter (“HQ”) H084604, dated May 3, 2010, and HQ H250768, dated December 2, 2016. However, modules equipped with blocking diodes, inverters, or other components which “supply power directly to an external load” are instead classified in heading 8501, HTSUS. See HQ H255441, dated August 30, 2016; see also EN 85.41 (“The heading does not cover panels or modules equipped with elements…which supply the power directly to, for example, a motor, an electrolyser (heading 85.01)”). Here, the products at issue meet the narrative description of “modules” for purposes of Note 18(g) to Chapter 99. According to the above-referenced portions of your ruling request and its attachments, the products consist of multiple interconnected monocrystalline photovoltaic cells, each of which far exceeds 20 micrometers in thickness and, by virtue of its p/n junction, is capable of generating electricity. This is confirmed by the product literature, which even refers to the products as “solar modules.” As such, they consist of a “joined group of CSPV cells capable of generating electricity.” Moreover, the modules are “goods provided for in subheading 8541.43” for purposes of Note 1(g). The product data sheet indicates that they are equipped with junction boxes, bypass diodes, cables, and connectors, all which are permissible components for purposes of the subheading. However, there is no indication in the 6 product data sheet or elsewhere that they include blocking diodes, inverters, or any other recognized components for supplying power directly to an external apparatus. We accordingly find that the subject modules qualify as “modules as defined in note 18(g)” for purposes of subheading 9903.45.25. (2) Whether the subject merchandise is from a country other than those listed in Note 18(b) Heading 9903.45.25 applies to modules which are “the product or originating good of a country other than a country described in note 18(b).” Note 18(b) in turn provides that “for the purposes of this note and the application of subheadings 9903.45.21 through 9903.45.29,” certain enumerated “developing countries that are members of the World Trade Organization shall not be subject to the rates of duty… provided for therein.” As stated above, the modules at issue are partially produced in South Korea, which is not included in the list of countries exempt from the rates of duty appertaining to heading 9903.45.25. We therefore must determine whether the production steps undertaken in South Korea render the modules “products” or “originating goods” of South Korea, in which case they fall within the scope of the subheading. In cases involving subheadings of heading 9903 established pursuant to preside