A global safeguard investigation, launched by the U.S. International Trade Commission (USITC) on May 17, may provide the President with the opportunity to apply a trade law that has not been used for 15 years. The investigation is based on Sections 201-202 of the Trade Act of 1974, which the Trump Administration called “a vital tool for industries needing temporary relief from imports to become more competitive”. The investigation responds to a petition by Suniva, Inc. for import relief for crystalline silicon photovoltaic (CSPV) cells and modules. This post examines the potential use of Section 201 to provide relief to the solar industry and looks at the last use of this law in 2002, when the U.S. withdrew increased tariffs to avoid retaliation following an adverse WTO ruling.
Section 201 authorizes domestic industries that are seriously injured or threatened with serious injury by increased imports to petition the USITC for temporary relief from imports. Following a Section 201 investigation, the Commission determines whether an article is being imported in such increased quantities that it is a substantial cause of serious injury, or a threat of serious injury, to the U.S. industry producing an article like or directly competitive with the imported article. Unlike other trade remedy laws, Section 201 does not require a finding of an unfair trade practice.
If the agency finds that the domestic industry is seriously injured or threatened with serious injury by increased imports, it recommends to the President relief that would prevent or remedy the injury and facilitate industry adjustment to import competition. The President makes the final decision of whether to provide relief and the amount of relief needed to protect American producers from a surge of imports. The relief available to the President includes a tariff increase, quantitative restrictions or orderly marketing agreements. Any relief must be limited initially to four years, but may be extended to a maximum of eight years.
The United States provided the following summary of the allegations in Suniva, Inc.’s petition, in a May 25 filing with the WTO:
- Increased imports of CSPV cells and modules over the past five years.
- Serious injury or threat of serious injury to the domestic industry, including that “increasing imports have taken market share from domestic producers and have led to bankruptcies, plant shutdowns, layoffs, and a severe deterioration of the financial performance of the domestic industry”, noting that Suniva, Inc. had filed for Chapter 11 bankruptcy in April 2017.
- Developments that were unforeseen by the domestic industry, including that “foreign producers, in response to the various antidumping and countervailing duty orders that were imposed on imports from China and Chinese Taipei, have opened new production facilities in third countries”.
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