The U.S. International Trade Commission (“ITC”) held its injury hearing in the safeguard investigation into U.S. imports of solar cells and modules on Tuesday, August 15. Petitioners Suniva and SolarWorld filed for relief under Section 201 of the Trade Act of 1974 in May 2017. The petition has generated considerable attention, so it came as no surprise that the injury hearing attracted several hundred attendees and included testimony by more than two dozen State legislators, foreign government officials and industry representatives.

If the ITC finds injury, then the case will rapidly proceed to a remedy phase (schedule below), which would result in the ITC making a recommendation to President Trump on import measures and other adjustment relief. Such measures could include a tariff increase, quantitative restrictions, or orderly marketing agreements. The President would then have the option to accept, reject, or change the ITC’s proposed remedy.

The investigation, captioned Crystalline Silicon Photovoltaic Cells (Whether or Not Partially or Fully Assembled into Other Products) [USITC Inv. No. TA-201-75], will determine whether solar panels are being imported into the United States in such increased quantities as to be a substantial cause of serious injury, or threat, to the domestic industry producing a like or directly competitive product. Safeguard investigations differ from the more common antidumping or countervailing duty investigations in several ways: they apply a heightened injury and causation standard; they permit import restrictions without a finding of an unfair trade practice, as long as the increase in imports are causing or threatening serious injury; and the remedies differ and are potentially much broader. Perhaps most significantly, the statute permits a “global safeguard,” which, if implemented, provides for a remedy against all U.S. imports of solar cells and modules, irrespective of the country of origin.

In opposition to the petition, the Solar Energy Industries Association (SEIA) gained the support of 16 U.S. senators and 53 Members of the House of Representatives, who sent open letters to the ITC Chairman in opposition. If the case proceeds to a recommended remedy, then President Trump will have to consider not only the ITC’s recommendations and report, but also the domestic industry’s efforts to make a positive adjustment to import competition, the economic and social costs on taxpayers and workers, the benefits of the proposed relief, and U.S. economic and security interests.

Next Steps

Because the ITC determined that the investigation was “extraordinarily complicated,” the final report is due to the President within 180 days from when the petition was filed. That deadline is November 13, 2017. To meet that deadline, the ITC has set forth the following schedule:

Injury

Post-Hearing Briefs: August 22, 2017

Staff Report to Commission: September 11, 2017

Commission Vote: September 22, 2017

Remedy (if necessary)

Pre-Hearing Briefs: September 27, 2017

Remedy Hearing: October 3, 2017

Post-Hearing Briefs: October 10, 2017

Staff Report to Commission: October 23, 2017

Commission Vote: October 31, 2017