U.S. Solar Industry and Alternative Energy Market Await “Global Safeguard” Remedy Recommendations by U.S. International Trade Commission; Remedy Decision by President Trump (IRB No. 565)

by Bryan Cave

The U.S. International Trade Commission (ITC) determined on Friday, September 22, 2017, that Crystalline Silicon Photovoltaic (CSPV) cells (regardless whether they are assembled fully or partially into other products) imported into the United States are causing “serious injury” to the portion of the U.S. solar industry that produces similar articles. The ITC will send a report to the President recommending specific remedial action. However, the President has authority to impose the recommended remedy, no remedy, or a remedy different from that which is recommended in the ITC's report.

Suniva, Inc., which petitioned for this “global safeguards” investigation under Section 201 of the Trade Act of 1974, has, among other things, requested initial increased import duties (also sometimes called “tariffs”) of $0.40/watt per CSPV cell, and a minimum price floor of $0.78/watt per solar module. Global safeguard remedies are temporary, but still can be in place for four years, with the potential for extension to a total of eight years. Possible remedies include duties, quotas, trade adjustment assistance, negotiating international agreements, and submitting to Congress legislation to aid the domestic industry.

The ITC must issue its report to the President by November 13, 2017. President Trump then has 60 days to take action. Duties or quotas generally are to be implemented within 15 days thereafter. The expected time-line of developments in this case is therefore as follows: 

  • ITC public hearing on remedies (October 3, 2017);
  • ITC vote on remedies (October 31, 2017); 
  • ITC report to the President with remedy recommendations (Nov. 13, 2017);
  • Presidential action (Jan. 12, 2018);
  • Remedies (e.g., duties/price floors) implemented (Jan. 27, 2018).

This matter will be the subject of intense lobbying—given both the President’s discretion and that of Congress. Companies that rely on imports of CSPV cells and products incorporating CSPV cells from any country should begin or continue contingency planning—to the extent possible, considering the uncertainty inherent to this case. While there are a variety of measures that are frequently used to mitigate risk (such as change-of-law, indemnification, and force majeure clauses in contracts related to development projects and mergers and acquisitions), the greater uncertainty and potential for market disruption here may render such measures insufficient.

Assuming that increased duties and price floors on imported CPSV cells and related downstream products will be the primary remedies, costs to U.S. solar developers may increase significantly. Global safeguard cases, unlike Antidumping and Countervailing Duty (AD/CVD) cases, are not limited to specified countries. Cost-effective supply of CSPV cells and downstream products incorporating CSPV cells may decrease, at least in the short term, given the poor condition of the U.S. domestic industry producing CSPV cells and related articles within the scope of the investigation. Foreign manufacturers that have expressed interest in opening U.S. plants have apparently experienced delays in their attempts to do so.

The ITC’s report to the President will provide more information about what the President may do. To the extent the ITC report influences the President’s decision, it is worth noting that the initial petition to the ITC did not request only increased duties and price floors; it also requested, among other things: (i) distribution of AD/CVD collected under the two sets of AD/CVD Orders relating to solar cells and products from China and Taiwan; (ii) an economic development program that would be paid for with duties collected under orders from this § 201 investigation; and (iii) U.S. negotiations with other countries, with one goal being to reduce excess global production capacity.

We are continuing to track developments in this case, and will provide additional updates as those developments indicate the types and levels of remedies that may be imposed.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Bryan Cave | Attorney Advertising

Written by:

Bryan Cave

Bryan Cave on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.