Opportunity for Safeguard Exemptions:
USTR has announced that it will accept requests for exemptions from solar duties. To obtain an exemption, one would have to clearly distinguish the proposed product from other products that are within the scope of safeguard measures.
Applications are due by March 16; interested companies need to immediately seek qualified counsel.
Criteria that Might Support an Exclusion Request
Examples of criteria identified by USTR as relevant to securing an exemption, include the following:
- The names and locations of any producers, in the United States and foreign countries, of the particular product;
- Total U.S. consumption of the particular product, if any, by quantity and value for each year from 2014 to 2017, the projected annual consumption for each year from 2018 to 2022, and any related information about the types of consumers;
- Details concerning the typical use or application of the particular product;
- Total U.S. production of the particular product for each year from 2014 to 2017, if any;
- The identity of any U.S.-produced substitute for the particular product, total U.S. production of the substitute for each year from 2014 to 2017, and the names of any U.S. producers of the substitute;
- Whether the particular product or substitute for the particular product may be obtained from a U.S. producer;
- Whether qualification requirements affect the requestor's ability to use domestic products;
- Whether the particular product is under development by a U.S. producer who will imminently be able to produce it in marketable quantities;
- Inventories of the particular product in the United States;
- Whether excluding the particular product from the safeguard measure would result in a benefit or advantage to the long-term competitiveness of the solar manufacturing supply chain in the United States, including by fostering research and development, supporting manufacturing innovation, or by leading to the development of differentiated products that command higher prices;
- The ability of U.S. Customs and Border Protection to administer the exclusion; and
- Any other information or data that interested persons consider relevant to an evaluation of the request.
The current scope of coverage can be confusing due to the detailed nature of both the investigation and the current safeguard exemptions. Below we provide further general information related to the current coverage of products.
SCOPE OF SAFEGUARD INVESTIGATION
The ITC notice of institution (82 FR 25331) identified the scope of the products covered by this investigation as CSPV cells, whether or not partially or fully assembled into other products, of a thickness equal to or greater than 20 micrometers, having a p/n junction (or variant thereof) formed by any means, whether or not the cell has undergone other processing, including, but not limited to cleaning, etching, coating, and addition of materials (including, but not limited to metallization and conductor patterns) to collect and forward the electricity that is generated by the cell. The scope of the investigation also included photovoltaic cells that contain crystalline silicon in addition to other materials, such as passivated emitter rear contact cells, heterojunction with intrinsic thin layer cells, and other so-called “hybrid” cells.
ITEMS THAT WERE EXCLUDED FROM THE SAFEGUARD INVESTIGATION
The scope of the investigation did not cover:
- Thin film photovoltaic products produced from amorphous silicon (“a-Si”), cadmium telluride (“CdTe”), or copper indium gallium selenide (“CIGS”);
- CSPV cells, not exceeding 10,000 mm2 in surface area, that are permanently integrated into a consumer good whose primary function is other than power generation and that consumes the electricity generated by the integrated CSPV cell. Where more than one CSPV cell is permanently integrated into a consumer good, the surface area for purposes of this exclusion shall be the total combined surface area of all CSPV cells that are integrated into the consumer good; and
- CSPV cells, whether or not partially or fully assembled into other products, if such CSPV cells were manufactured in the United States.
ITEMS EXCLUDED FROM SAFEGUARD DUTIES
Presidential Proclamation 9693 of January 23, 2018 (83 FR 3541) excluded certain specific products:
- 10 to 60 watt, inclusive, rectangular solar panels, where the panels have the following characteristics: (A) Length of 250 mm or more but not over 482 mm or width of 400 mm or more but not over 635 mm, and (B) surface area of 1000 cm2 or more but not over 3,061 cm2), provided that no such panel with those characteristics shall contain an internal battery or external computer peripheral ports at the time of entry;
- 1 watt solar panels incorporated into nightlights that use rechargeable batteries and have the following dimensions: 58 mm or more but not over 64 mm by 126 mm or more but not over 140 mm;
- 2 watt solar panels incorporated into daylight dimmers, that may use rechargeable batteries, such panels with the following dimensions: 75 mm or more but not over 82 mm by 139 mm or more but not over 143 mm;
- Off-grid and portable CSPV panels, whether in a foldable case or in rigid form containing a glass cover, where the panels have the following characteristics: (a) A total power output of 100 watts or less per panel; (b) a maximum surface area of 8,000 cm2 per panel; (c) does not include a built-in inverter; and where the panels have glass covers, such panels must be in individual retail packaging (in this context, retail packaging typically includes graphics, the product name, its description and/or features, and foam for transport);
- 3.19 watt or less solar panels, each with length of 75 mm or more but not over 266 mm and width of 46 mm or more but not over 127 mm, with surface area of 338 cm2 or less, with one black wire and one red wire (each of type 22 AWG or 24 AWG) not more than 206 mm in length when measured from panel edge, provided that no such panel shall contain an internal battery or external computer peripheral ports;
- 27.1 watt or less solar panels, each with surface area less than 3,000 cm2 and coated across the entire surface with a polyurethane doming resin, the foregoing joined to a battery charging and maintaining unit, such unit which is an acrylonitrile butadiene styrene (“ABS”) box that incorporates a light emitting diode (“LED”) by coated wires that include a connector to permit the incorporation of an extension cable.
Our customs lawyers are known nationally and internationally for their work in customs and international trade law. The firm's offices are located in San Francisco, California, Seattle, Washington, and Los Angeles, California. Our practice areas include classification, valuation, admissibility, customs detentions, seizures and penalty proceedings, and customs audits. We bring litigation, and handle numerous other types of issues arising in international trade. See our services listings. To schedule an appointment, please contact our offices at (415) 498-0070.