On April 26, 2017, Petitioner Suniva, Inc. filed a Petition for Global Safeguard Relief Pursuant to Sections 201-202 of the Trade Act of 1974 on imports of Crystalline Silicon Photovoltaic Cells and Modules (Solar Cells).
SCOPE OF INVESTIGATION
The merchandise covered by this petition is crystalline silicon photovoltaic cells, and modules, laminates, and panels, consisting of crystalline silicon photovoltaic cells, whether or not partially or fully assembled into other products, including, but not limited to, modules, laminates, panels and building integrated materials.
This petition covers crystalline silicon photovoltaic cells of thickness equal to or greater than 20 micrometers, having a p/n junction formed by any means, whether or not the cell 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.
Included in the scope of this petition are photovoltaic cells that contain crystalline silicon in addition to other photovoltaic materials. This includes, but is not limited to, passivated emitter rear contact (“PERC”) cells, heterojunction with intrinsic thin-layer (“HIT”) cells, and other so-called “hybrid” cells.
Merchandise under consideration may be described at the time of importation as parts for final finished products that are assembled after importation, including, but not limited to, modules, laminates, panels, building-integrated modules, building-integrated panels, or other finished goods kits. Such parts that otherwise meet the definition of merchandise under consideration are included in the scope of this petition.
Excluded from petition are thin film photovoltaic products produced from amorphous silicon (a-Si), cadmium telluride (CdTe), or copper indium gallium selenide (CIGS).
Also excluded from the scope of this petition are crystalline silicon photovoltaic cells, not exceeding 10,000mm2 in surface area, that are permanently integrated into a consumer good whose function is other than power generation and that consumes the electricity generated by the integrated crystalline silicon photovoltaic cell. Where more than one cell is permanently integrated into a consumer good, the surface area for purposes of this exclusion shall be the total combined surface area of all cells that are integrated into the consumer good.
For customs purposes, the CSPV cells covered by this petition are classified under Harmonized Tariff Schedule of the United States (“HTSUS”) subheading 8541.40.6030. CSPV cells that are assembled into modules or panels are classified under HTS US subheading 8541.40.6020. CSPV panels with inverters or batteries attached can be classified under HTS US subheadings 8501.61.00.00 and 8507.20.80, respectively. In addition, CSPV cells covered by this petition may also be imported under subheading 8501.31.8000.
Suniva, Inc. 5765 Peachtree Industrial Blvd. Norcross, GA 30092
COUNSEL FOR PETITIONER
Matthew McConkey, Esq. MAYER BROWN LLP 1999 K Street NW Washington, DC 20006
For a list of the Top 25 foreign countries producing the subject merchandise, please see Attachment I.
NAMED DOMESTIC PRODUCERS
For a list of domestic producers alleged by Petitioner, please see Attachment II.
IMPORTS OF SUBJECT MERCHANDISE
For import data of subject merchandise, please see Attachment III.
SECTION 201, TRADE ACT OF 1974 (GLOBAL SAFEGUARD INVESTIGATIONS), IMPORT RELIEF FOR DOMESTIC INDUSTRIES
Under section 201, domestic industries seriously injured or threatened with serious injury by increased imports may petition the USITC for import relief. The USITC determines whether an article is being imported in such increased quantities that it is a substantial cause of serious injury, or threat thereof, to the U.S. industry producing an article like or directly competitive with the imported article. If the Commission makes an affirmative determination, it recommends to the President relief that would prevent or remedy the injury and facilitate industry adjustment to import competition. The President makes the final decision whether to provide relief and the amount of relief.
Section 201 does not require a finding of an unfair trade practice, as do the antidumping and countervailing duty laws and section 337 of the Tariff Act of 1930. However, the injury requirement under section 201 is considered to be more difficult than those of the unfair trade statutes. Section 201 requires that the injury or threatened injury be “serious” and that the increased imports must be a “substantial cause” (important and not less than any other cause) of the serious injury or threat of serious injury.
Criteria for import relief under section 201 are based on those in article XIX of the GATT, as further defined in the WTO Agreement on Safeguards. Article XIX of the GATT is sometimes referred to as the escape clause because it permits a country to “escape” temporarily from its obligations under the GATT with respect to a particular product when increased imports of that product are causing or are threatening to cause serious injury to domestic producers. Section 201 provides the legal framework under U.S. law for the President to invoke U.S. rights under article XIX.
Duration: The USITC generally must make its injury finding within 120 days (150 days in more complicated cases) of receipt of the petition, request, resolution, or institution on its own motion and must transmit its report to the President, together with any relief recommendations, within 180 days after receipt of the petition, request, resolution, or institution on its own motion.
Finding: If the USITC finding is affirmative, it must recommend a remedy to the President, who determines what relief, if any, will be imposed. Such relief may be in the form of a tariff increase, quantitative restrictions, or orderly marketing agreements.
Actions by Respondents: Respondents must organize their efforts quickly in order to prepare briefs and prepare witnesses for the ITC hearing, organize an analysis of the proper remedy to be imposed if the ITC finds injury, and determine the most compelling arguments in persuading the President not to impose relief if the ITC ultimately recommends import relief.