Two U.S. companies in the solar industry filed a petition yesterday with the International Trade Commission to extend for another four years the Section 201 safeguard tariffs on crystalline silicon photovoltaic (CSPV) cells and modules. The current tariffs are due to expire on February 6, 2022. The ITC will now decide whether to carry out an investigation in which it will consider whether to make a recommendation to extend them. The ultimate decision on whether to extend the tariffs, however, rests with President Biden.

This piece describes the companies behind the new petition, and lays out the background on: the original Section 201 tariffs; the petition's arguments under the statutory criteria; the relevant WTO obligations in this area; and some political factors that may come into play.

The U.S. companies behind the extension petition

The two companies that filed the extension petition are Suniva Inc. and Auxin Solar Inc. Suniva was founded in 2007 and is a Georgia-based company that was the original petitioner for safeguard relief. Auxin Solar was founded in 2008 and is a California-based producer that participated in the original safeguard investigation.

The petition notes that "Auxin Solar has been in a continuously productive state since its founding," but "Suniva is not currently producing." However, it notes that Suniva's "productive assets still exist at the same facility in Norcross, Georgia and Suniva’s investment plans will allow it to quickly resume production if the economic headwinds that have stifled these investment plans subside." It further states that "following Suniva’s emergence from bankruptcy under the safeguard, investments are being made to resume cell production under an extended safeguard remedy."

The original Section 201 proceeding

As explained by Auxin Solar and Suniva in the petition, the threat to the U.S. industry mainly originated with imports from China. In the early 2000s, they said, the U.S. industry "saw hundreds of companies raise billions of dollars to enter the solar power market." But then Chinese companies entered the market and by 2011 "had taken over 60 percent share of the U.S. market." The domestic industry filed anti-dumping/countervailing duty (AD/CVD) cases against these imports, and duties were imposed on CSPV cells and modules in 2012. However, Chinese firms were able to continue to sell in the U.S. market by "exloit[ing] loopholes" (e.g. shifting production to other countries) in the AD/CVD orders, and import market penetration increased, according to the petition. In 2015, additional AD/CVD duties were imposed to patch the loopholes, but again they failed to solve the problem, the petition states.  

The original safeguard investigation was intended as a more powerful remedy to address injury to the domestic industry, by restricting imports globally and therefore limiting the ability of foreign producers to shift production and evade the duties. In the investigation, the ITC concluded that "absent safeguard relief," "the domestic industry, including both CSPV cell and module producers, would likely cease to exist in the short term," and that "the loss of the domestic industry . . . could have significant long-term consequences for U.S. economic and national security interests."

As set out in the petition, pursuant to the original Section 201 proceeding, the ITC recommended, and President Trump imposed, safeguard relief on February 7, 2018 in the form of tariffs and tariff-rate quotas. The ITC commissioners did not agree on a recommendation, as different commissioners made different proposals. The specific relief imposed by President Trump was as follows:

This relief matched the recommendation from USTR, which led an interagency team that solicited the views of all participants in the solar industry, conducted a public hearing, and had consultation with the interagency Trade Policy Staff Committee (TPSC).

According to the petition, during an ITC monitoring review of the safeguard relief, it was found that "the domestic industry did not fully realize the promise of the safeguard remedy due to a number of unanticipated events." This ITC  report identified several factors that "hindered domestic module producers’ adjustment efforts and limited the impact of the safeguard measure, including: (1) stockpiling of imports prior to implementing the safeguard; (2) the stepdown of tax credit incentives in 2019; (3) tariff cost absorption by exporters; 4) increased input and transportation costs; (5) the exclusion of bifacial CSPV modules; and (6) tariffs on imported components." At this time, the majority of imports came from Malaysia, Korea, Thailand, and Vietnam, which had replaced imports from China and Taiwan following the imposition of the AD/CVD orders.

In October 2020, President Trump adjusted the year 4 tariffs to 18% in an effort to "further facilitate positive adjustment to competition" from imports.

China challenged these tariffs in a WTO complaint. China argued, among other things, that the United States "failed to establish the required 'causal link' between the increased imports and the serious injury found to exist"; the United States "failed to ensure that injury caused by other factors was not attributed to increased imports"; and the United States "did not provide the interested parties with sufficient opportunities to participate in the investigation." In its latest update on the timing of this proceeding, the WTO panel hearing the case said that it "expects to issue its final report to the parties around the middle of 2021."

The petition's arguments

Through the petition (Inv. No. TA-201-075), Auxin Solar and Suniva requested an extension of the safeguard remedy because "continuing the safeguard remains necessary to prevent or remedy serious injury to the domestic CSPV industry." They said that the industry has experienced "unanticipated challenges," and that "[w]ithout extension of the safeguard, the domestic industry will not have the breathing room necessary to complete its adjustment to import competition." Import data for the last several years provided in the petition is as follows:

Therefore, they requested that the ITC "recommend that the President continue the safeguard action for CSPV cells and modules for up to four additional years, or until February 6, 2026, with only minimal liberalization of the tariff rates applicable to out-of-quota CSPV cells and CSPV modules and maintenance of the in-quota volume for CSPV cells at the current level."

The companies explained that they are filing this petition pursuant to Section 204(c) of the Trade Act of 1974, seeking an extension of the current safeguard and requesting a determination by the Commission that "(1) there is evidence that the domestic industry is making a positive adjustment to import competition, and (2) action under section 203 of the Trade Act continues to be necessary to prevent or remedy serious injury to the domestic CSPV industry." The petition sets out arguments on each point in turn.

A preliminary issue here is whether the companies filing the petition represent the domestic industry. On this issue, the petition states that "Suniva is a 100 percent U.S.-owned, -operated, and -headquartered CSPV cell manufacturer in the United States" and "Auxin Solar is a 100 percent U.S.-owned, -operated, and -headquartered CSPV manufacturer in the United States." The petition explains that Auxin Solar and Suniva "are qualitatively representative of the domestic industry … because they were seriously injured by CSPV imports and are working diligently to make a positive adjustment to import competition under the safeguard." And while "Suniva’s CSPV operations are currently suspended and Auxin Solar’s production activities account for less than half of all of the production of the domestic industry in the most recently completed calendar year (i.e., 2020)," they "understand that other domestic producers — namely, Hanwha Q-Cells, LG Electronics, and Mission Solar — also support extension of the safeguard through public statements made to the Commission previously." Taken together with these companies, the petition contends, the ITC "can readily determine that domestic producers supporting extension of the safeguard account for the vast majority of domestic industry production in 2020."

With regard to evidence that the domestic industry is making a positive adjustment, Auxin Solar and Suniva said that "[w]hile significant challenges persist, positive adjustment to import competition continues to be evident." In this regard, they pointed to "expanding module capacity," and "investments in solar supply chains" including that "Auxin Solar and Suniva are actively making significant investments to produce and incentivize the production of the upstream solar supply chain domestically."

As to whether action continues to be necessary to prevent or remedy serious injury to the domestic CSPV industry, the petition argues that "several unanticipated events have inhibited the domestic industry’s adjustment to import competition," and therefore "the Commission’s observation that the domestic industry might 'cease to exist in the short-term' is very much still a risk." The petition sets out the following "factors justifying an extension of the safeguard": "the exclusion in June 2019 of bifacial CSPV modules from the safeguard measure, stockpiling of imports prior to the implementation of the safeguard measure and again before the stepdown of tax credit incentives at year‐end 2019, continued underselling by imports, COVID 19, and Chinese producers relocating to Cambodia to ship to the United States unencumbered by the safeguard on cells and modules."

On the last point, the petition notes that "imports from Cambodia, which were zero in 2018, increased substantially in the period January-May 2021" (although they are still less than 3 percent of total imports). This rise, it says, "is entirely attributable to Chinese firms taking advantage of Cambodia’s status as a developing country under the safeguard law." According to the petition, "[s]ince entering into a Comprehensive Strategic Partnership with China in 2010, Cambodia has become captive to the Government of China and the Chinese Communist Party." As a result, Cambodia has allowed for extensive Chinese development, including that of Cambodia’s infrastructure and special economic zones ("SEZs), and these SEZs "are filled with Chinese laborers, Chinese capital equipment, CCP direction, and Chinese raw materials." As a result of the Belt and Road Initiative, the petition states, China has become Cambodia’s "largest economic influencer, being the largest foreign investor, largest bilateral donor, largest trading partner, largest buyer of Cambodian rice, and the largest source of foreign tourists in the country." And with respect to solar, solar power "capacity has been on a sharp ascent in Cambodia recently, increasing at a 10% annual rate." The petition concludes that "Chinese investment and other support in developing Cambodia’s solar industry appears to be a concerted effort to circumvent the safeguard remedy."

WTO obligations

The WTO's Safeguards Agreement sets out rules for extensions of safeguard measures that investigating authorities must follow to ensure the decision is WTO-consistent.

Pursuant to Article 8.2, the initial period "may be extended provided that the competent authorities of the importing Member have determined, in conformity with the procedures set out in Articles 2, 3, 4 and 5, that the safeguard measure continues to be necessary to prevent or remedy serious injury and that there is evidence that the industry is adjusting, and provided that the pertinent provisions of Articles 8 and 12 are observed."

Under Article 8.3, "[t]he total period of application of a safeguard measure including the period of application of any provisional measure, the period of initial application and any extension thereof, shall not exceed eight years."

Article 8.4 further clarifies that "[a] measure extended under paragraph 2 shall not be more restrictive than it was at the end of the initial period, and should continue to be liberalized."

Political factors

Beyond the specifics of the U.S. statute and WTO obligations, given the discretion of the president to act on these matters, it is worth pointing out certain political factors related to how the petitioners have tried to tie their case to the Biden administration’s domestic agenda.

The petitioners invoked environmental issues and other aspects of Biden's domestic agenda in their submission, noting that: "As the United States recovers from the COVID-19 pandemic and President Biden and Congress continue working on initiatives to build a modern, sustainable infrastructure and an equitable clean energy future, the need for continuing the safeguard — and fulfilling its original promise — could not be more apparent. The need for extending the safeguard and allowing these new green energy policies and initiatives to take hold is necessary to secure America’s solar energy independence, since far too much of the value of the production of solar cells and modules is accounted for by imports." They further stated: "Auxin Solar’s and Suniva’s plans require continuation of the safeguard, which should dovetail with the renewable energy policies that are a centerpiece of President Biden’s 'Build Back Better' agenda."

In addition, during testimony before the Senate Finance Committee in April, U.S. Trade Representative Katherine Tai had the following response when asked about the Section 201 tariffs:

The issue of the solar tariffs are very much on my mind, both in terms of the impacts, and the dilemmas that they present to our economy right now, and the different stakeholders in our economy, specific to the solar tariffs, the role that solar panels play in a future where we are running cleaner energy. But also for me, the story of the solar panel industry in the United States really gets at a fundamental issue that we need to confront in our competition with China.

First thing that I'd like to say is Section 201, this particular Section 201 set of tariffs, were sought by an industry here in the United States, so that there are producers who petition for relief from the United States government. And today, we have a sole producer left in the United States for solar panels, when 10-12 years ago, we had quite a few in this burgeoning industry. Given the role that we think these types of products are going to play, this is actually a very sad story that we are in right now where we are struggling with the application of these tariffs that are meant to save, maybe the last producer that we have here in the United States.

And so, stepping aside a little bit, what I would say is that I recognize the nuance and the complexity that is presented by the solar tariffs question in particular. I do want to raise the profile of the overall bigger picture so that we don't lose it, which is, if we don't keep our eye on the ball, we will continue to experience these types of fights over the last scraps of an industry that we have lost to a competitor, and in particular to the Chinese. It is a pattern that we see over and over again. I will say that, steel, and aluminum are a leading contender here, solar, and we can see where this pattern will play out again and again, if we are not ready to anticipate the loss of industries to anti competitive practices and massive subsidies that are coming from our biggest competitor ...