New Developments in Section 201 Solar Tariff Extension Petition: Second Petition Filed and Litigation Schedule Released

Last week, we wrote about a petition filed with the U.S. International Trade Commission (USITC) by two U.S. companies, Auxin Solar and Suniva, to extend the Section 201 safeguard tariffs/TRQs on imports of crystalline silicon photovoltaic (CSPV) cells and modules, where the threat to the U.S. industry mainly originated with imports from China. There have been two new developments in this case: (1) a second petition was filed by three additional companies (and there was an amendment to the original petition as well); and (2) the USITC set out its schedule for hearing the case.

With regard to the additional petition documents, on August 4 three domestic producers of solar modules, Hanwha Q CELLS USA, Inc., LG Electronics USA, Inc., and Mission Solar Energy, filed their own petition in the case. (To reduce the file size, we deleted many of the exhibits from this document; the full original document is available on the USITC website). In terms of the substantive arguments, this petition was similar to the initial petition.

The filing of a second petition had an impact on the issue of whether the petition could be deemed to have been filed by companies representing the domestic industry, so Auxin Solar and Suniva filed an amendment to their petition in which they argued that, "given the available data now on the record, there is no doubt that the domestic industry voicing support for extension of the safeguard action on CSPV products is representative of the domestic industry producing the like or directly competitive domestic article."

As to the schedule for the case, on August 6 the USITC issued a notice instituting the investigation, No. TA-201-075, and describing the hearing and written submission timelines as follows:

Hearing.— The Commission will hold a hearing in connection with this investigation beginning at 9:30 a.m. on November 3, 2021. ...

Requests to appear at the hearing should be filed in writing with the Secretary to the Commission on or before October 28, 2021. All persons desiring to appear at the hearing and make oral presentations should participate in a prehearing conference to be held on October 29, 2021, if deemed necessary. ... Parties must submit any request to present a portion of their hearing testimony in camera no later than 7 business days prior to the date of the hearing.

Written submissions.— Each participating party is encouraged to submit a prehearing brief to the Commission. The deadline for filing prehearing briefs is October 27, 2021. Parties may also file written testimony in connection with their presentation at the hearing and posthearing briefs. The deadline for filing posthearing briefs is November 10, 2021. In addition, any person who has not entered an appearance as a party to the investigation may submit a written statement of information on or before November 10, 2021. ...