ITC Begins Section 201 Safeguard Investigation on Solar Cells

If imposed, the safeguard duties would apply to all imported modules, laminates and panels, regardless of origin, including those produced in any third country from cells produced in any third country, but would not cover modules, laminates and panels produced in a third country from cells produced in the U.S., Suniva said. Suniva’s petition says two antidumping and countervailing duty orders recently imposed on solar cells and modules from China and Taiwan have been ineffective. Chinese and Taiwanese companies covered by the AD/CV duty orders have avoided them by opening up factories or working with contract manufacturers in Southeast Asia, India and Eastern Europe, it said.

Though safeguard investigations are not country-specific, and duties would apply to all countries, ITC commissioners who find injury to U.S. industry must make additional separate injury findings for certain countries with which the U.S. has free trade agreements, the ITC has said. “These include the NAFTA countries (Canada and Mexico), Jordan, Australia, Colombia, Korea, Panama, Peru, Singapore, the CAFTA-DR countries, and Israel,” it said.

Revised Scope of Safeguard Investigation

According to the pre-publication version of the ITC’s initiation notice, the scope of the safeguard duty investigation, as revised from Suniva’s original petition, is as follows:

“The articles covered by this investigation are CSPV cells, whether or not partially or fully assembled into other products, including, but not limited to, modules, laminates, panels, and building-integrated materials. The investigation covers 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 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 the investigation 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 ('HIIT') cells, and other so-called 'hybrid' cells.

“Articles under consideration also may be described at the time of importation as components for final finished products that are assembled after importation, including, but not limited to, modules, laminates, panels, and building-integrated materials.

“Excluded from the investigation are CSPV cells, whether or not partially or fully assembled into other products, if the CSPV cells were manufactured in the United States.

“Also excluded from the investigation 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 the investigation 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 the investigation are provided for under Harmonized Tariff Schedule of the United States (‘HTSUS’) subheading 8541.40.60. Within that 8-digit subheading, CSPV cells that are assembled into modules or panels are imported under HTSUS statistical reporting number 8541.40.6020, while CSPV cells that are not assembled into modules and are presented separately are imported under statistical reporting number 8541.40.6030. Inverters or batteries with CSPV cells attached can be imported under HTSUS subheadings 8501.61.00 and 8507.20.80, respectively. In addition, CSPV cells covered by the investigation may also be classifiable as DC generators of subheading 8501.31.80, when such generators are imported with CSPV cells attached. While HTSUS provisions are provided for convenience, the written description of the scope is dispositive.”

ITC Says Investigation ‘Extraordinarily Complicated,’ Extends Deadlines

After finding the investigation is “extraordinarily complicated” by various issues, including the existing AD/CVD orders, the ITC says it will take an additional eight days to make its injury determination. The ITC will issue its determination by Sept. 22, 2017, it said. The commission will submit its final report to the president by Nov. 13, 2018, it said.

ITC to Hold Hearings on Injury, Remedy

Interested parties that want to participate in the investigation must file an entry of appearance within 21 days after the ITC publishes its initiation notice in the Federal Register, the ITC said. The commission will hold two separate hearings in connection with the injury and remedy phases of the investigation, it said. A hearing on injury will be held on Aug. 15. If the ITC finds injury, it will hold another hearing on Oct. 3 on what remedies should be imposed. Requests to appear are due Aug. 9 and Sept. 27, respectively. Non-parties to the investigation will be allowed only a short statement. Written comments from interested parties on injury are due Aug. 8, and briefs on remedy are due Sept. 27. Post-hearing briefs on injury are due Aug. 22, and post-hearing comments on remedy are due Oct. 10.