Importer Says CBP Used 'Unreasonably Difficult Standard' in Reviewing If Solar Modules Made in Xinjiang
CBP unlawfully excluded importer Maxeon Americas' solar module entries on the basis that the goods were made, in whole or in part, in Xinjiang or by a company on the Uyghur Forced Labor Prevention Act Entity List, Maxeon argued in a July 15 complaint at the Court of International Trade. The importer said the agency ignored "substantial and persuasive" evidence showing the company's Max6 model solar modules weren't made in Xinjiang or by a listed company, adding that the agency appears to be using an "unreasonably difficult standard" in reviewing whether goods are made in Xinjiang (Maxeon Americas v. United States, CIT # 25-00074).
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Maxeon imported the solar modules in July 2024. A day after they were entered, CBP issued a detention notice, invoking the UFLPA as the basis for the detention and assigning the matter to its Electronics Center of Excellence and Expertise for review. The importer said this center didn't provide it with information regarding "any forced-labor suspicion by the agency," only referring the company to the type of traceability records CBP suggests should be submitted in response to detention under UFLPA.
The center and Maxeon determined they would trace the supply chain for "one representative model" from the completed module back to its raw material to show the supply chain is free of Xinjiang ties and forced labor. The importer said it submitted hundreds of documents, including purchase, production and employment records, showing it didn't source products made with forced labor. Maxeon said it went to great lengths to provide documents the center demanded, including records that were "irrelevant to or outside the scope of an applicability petition," including employment records for Maxeon's Taiwanese supplier.
Nevertheless, CBP excluded the modules in September 2024 on the basis that Maxeon "failed to request an exception or to provide evidence to demonstrate the merchandise was not produced in whole or in part in the Xinjiang Uyghur Autonomous Region or by an entity on the UFLPA Entity List within 30 days from which the cargo was detained.”
After the importer said it would protest the decision, the center asked Maxeon to trace all 750 modules in the excluded entry, which the company did. Maxeon then protested the exclusion, including a 39-page narrative showing how the supporting documentation traces the sample module's supply chain and doesn't involve a Xinjiang-based company or forced labor.
Maxeon's protest centered on the modules' polysilicon supply chain as "is typical," the company said, forgoing tracing of the non-polysilicon-based parts, such as the glass, frame or electrical components of the modules. The importer said, in any event, the non-polysilicon parts also aren't made with forced labor.
Maxeon said it makes the modules in Mexico using solar cells bought from Malaysian company SunPower Malaysia Manufacturing, which is wholly owned by Maxeon Solar Technologies, the importer's parent company. Maxeon said that due to "maquiladora regulations in Mexico," SunPower Systems, a Swiss entity wholly owned by Maxeon Solar Technologies, "holds title to the materials used to manufacture the solar modules."
The solar cells were made in Malaysia using wafers procured from AUO Crystal Corporation, a Taiwanese manufacturer, the brief said. The polysilicon is sourced from Michigan-based Hemlock Semiconductor from its Michigan factory. Meanwhile, Hemlock sources its metallurgical-grade silicon from Dow Silicones Corporation, another Michigan company, which procures the silicon from the U.S., Brazil and Canada.
None of the products in the supply chain come from Xinjiang or were made with forced labor, the brief said. The importer argued that, despite its extensive efforts to detail its supply chain and work with CBP, the center didn't "specify its concerns in any meaningful level of detail."
Instead, the center referred the protest to the Office of Regulations & Rulings for further review, noting that the "additional wafers do not have inventory reports to support the supply chain origination, only unverified screenshots." The center added that the protest "shows the match of wafer/cell count with no breakage/waste documented; a large amount of inventory previously not referenced to complete the modules leading to inconsistencies with documentation and traceability." In addition, the center said Maxeon's addition of the Swiss supply chain entity on protest "changed the corporate structure and supply chain from the previous submission."
Maxeon said the center's feedback left the company "with little understanding of why the UFLPA was supposedly implicated by its supply chain," adding that at no point did CBP indicate the modules' supply chain included an entity located in Xinjiang or found on the UFLPA Entity List. The importer also said all the center's issues are "without merit."
During its review, OR&R had four additional questions for Maxeon concerning its alternative sources of solar wafers, whether other modules were made in the same SunPower Mexico facility, how market conditions affected module production times and AUO's polysilicon sources. Maxeon responded to the questions, though OR&R ultimately declined review and sent the issue back to the center.
The importer found this development "puzzling," since "Maxeon articulated clear grounds for further review." The center then denied the protest, giving the importer the exact same explanation it gave earlier in the review.
Maxeon said it proved that its goods aren't made in Xinjiang or with forced labor, adding that "CBP wrongfully applied the rebuttable presumption under the UFLPA even though it has no relevance in this case." Its supply chain doesn't include an entity located in Xinjiang or one found on the UFLPA Entity List, meaning the UFLPA's presumption doesn't prohibit the import of its modules, the brief said.