• ITC Holds Section 201 Hearing on Solar Imports
  • August 18, 2017 | Authors: Dorothy Black Franzoni; Mark D. Herlach; Samina M. Bharmal
  • Law Firms: Eversheds Sutherland (US) LLP - Washington Office; Eversheds Sutherland (US) LLP - Atlanta Office; Eversheds Sutherland (US) LLP - Washington Office
  • On August 15, 2017, the US International Trade Commission (ITC) held a hearing to consider whether solar panels are being imported in such increased quantities that they are the “substantial cause” of serious injury or the threat of serious injury to the domestic industry producing solar panels. The highly anticipated hearing was the latest step in the ITC’s investigation of solar panel imports under Section 201 of the Trade Act of 1974. As noted in prior alerts,1 the outcome of this proceeding could profoundly affect the market and existing supply chains for solar projects throughout the United States.

    Over sixty witnesses testified at the day-long hearing, representing a wide range of interests. US panel producers Suniva and SolarWorld Americas, along with others, argued in favor of imposing relief. These parties noted that between 2012 and 2017, nearly all domestic solar cell and module producers had gone out of business. They explained that notwithstanding a significant increase in domestic demand for solar installations, growing global overcapacity for solar panel production resulted in a glut of imports that destroyed the domestic solar industry.

    These arguments met strong opposition from other participants in the domestic solar industry, several state governments and US trading partners. The Solar Energy Industries Association (SEIA) led the opposition, arguing that imposing relief in this case would amount to a subsidy for Suniva and SolarWorld. SEIA contended that imports represent normal market competition and argued that Suniva and SolarWorld had failed due to poor business planning and the inferior quality of their products. SEIA also argued that domestic producers did not have the capacity to meet rising demand, which made it essential for imports to increase. Representatives of seven nations testified in opposition to the petition, urging the ITC to refrain from recommending “protectionist” measures and arguing for individual country exemptions if relief were to be imposed.

    If the ITC makes an affirmative injury finding, it will hold a second hearing on October 3 to hear testimony on what type of relief to recommend to the President. The President would ultimately decide whether and what type of relief to impose. Not surprisingly, jobs played a prominent role in the hearing, with state representatives testifying about the large number of solar jobs that they feared would be lost if relief were imposed.

    Four ITC Commissioners—Chairman Rhonda K. Schmidtlein, Vice Chairman David S. Johanson, Commissioner Meredith M. Broadbent and Commissioner Irving A. Williamson—presided over the hearing. At least two of the Commissioners must support an affirmative injury finding for the case to continue. The ITC continues to accept further input from interested persons that are not parties to the proceeding. Below is a list of relevant action dates:

    • August 22, 2017. Deadline to submit written statements to the ITC on injury issues.
    • September 22, 2017. ITC issues its injury determination.

    If the ITC makes an affirmative finding that imports of solar panels have injured domestic producers, there will be additional opportunities to participate in the ITC’s deliberations on possible remedies, which could include higher tariffs on imported solar panels:

    • September 27, 2017. Deadline to request permission to testify during the ITC’s October 3 remedy hearing.
    • October 3, 2017. ITC hearing on remedy issues in Washington, DC.
    • October 10, 2017. Deadline to submit written statements to the ITC on proposed remedies.
    The Eversheds Sutherland international trade and renewable energy teams will continue to monitor and report on any further developments regarding the international trade risks posed by the Suniva Section 201 petition and other import relief measures.

    1 For more information on the ITC’s investigation, see the Eversheds Sutherland alerts: Solar Industry Import Drama Continues (May 23, 2017); ITC Opens Section 201 Investigation of Imported Solar Cells (May 26, 2017).