Curtis, Mallet-Prevost, Colt & Mosle LLP

Almaty Houston Telephone +1 202 452 7373

Ashgabat London Facsimile +1 202 452 7333
1717 Pennsylvania Avenue, N.W.
Astana Mexico City www.curtis.com
Washington, D.C. 20006
Beijing Milan
Buenos Aires Muscat
Dubai New York Daniel L. Porter
Frankfurt Paris Tel: +1 202 452 7340
Geneva Rome Fax: +1 202 452 7333
E-Mail: dporter@curtis.com

Public Version

Confidential BPI has been deleted from the following

pages: iv, 10, 12, 13, 15, 16, 18, 20, 21, 29 and in
Exhibits 3 and 5.
September 28, 2017

The Honorable Lisa R. Barton

Secretary
U.S. International Trade Commission
500 E Street, S.W.
Washington, D.C. 20436

Re: Pre-Hearing Brief for Remedy Phase of Korea Photovoltaic Industry

Association (KOPIA)
Crystalline Silicon Photovoltaic CELLS, Whether or Not Partially or Fully
Assembled into Other Products
USITC Investigation No. TA-201-75

Dear Secretary Barton:

Enclosed please find the Public Version of the Pre-Hearing Brief for Remedy
Phase of Korea Photovoltaic Industry Association (KOPIA) for filing in the above-
referenced investigations.

In accordance with Section 206.8 of the Commissions rules, as amended, as well

as the Commissions Guidance on Paper Copy Requirements, an original and two copies
of this submission are enclosed. Pursuant to Section 777(b)( 1) of the Tariff Act of 1930,
as amended, and in accordance with Section 201.6 of the Commissions rules, we request
confidential treatment for the bracketed business proprietary information in the enclosed
brief. The pages on which the confidential bracketed information appears are listed on
the cover page of the enclosed brief.

29863331v1
 _CURTib September 28, 2017
Curtis, Mallet-Prevost, Colt & Mosie LLP
Page 2

The bracketed business proprietary information pertains to production, shipment

and financial information ofthe domestic industry. All of the bracketed information was
provided to undersigned counsel under administrative protective order. The terms of that
order prohibit us from making such information public. The remainder of the bracketed
information consists of confidential information provided by our client in confidence.
The public disclosure of this information would cause harm to the competitive position of
the providers of the information.

The requisite certifications are enclosed in accordance with Sections 201.6 and
207.3 of the Commission's rules. Also in accordance with Section 201.16 of the
Commission's rules, the enclosed Pre-Hearing Brief has been served by hand delivery,
on all parties entitled to receive it.

We are submitting and serving the public version of this response on the next
business day, in accordance with Section 207.3(c) ofthe Commission' s rules.

Please contact one of the undersigned should you have any questions.

Respectfully submitted,

Counsel to KOPIA

29863331vl
Crystalline Silicon Photovoltaic Cells (Whether or Not TA-201-75
Partially or Fully Assembled into Other Products)

COUNSEL CERTIFICATION

I, Daniel L. Porter of Curtis, Mallet-Prevost, Colt & Mosie LLP, counsel to Korea

Photovoltaic Industry Association ("KOPIA"), hereby certify that (1) I have read the attached

submission, and (2) based on the information made available to me by these companies, I have

no reason to believe that this submission contains any material misrepresentation or omission of

fact, and (3) the confidential information contained in this submission is not available in

substantial form to the public.

In addition, in accordance with 19 C.P.R. 201.6(b)(3)(iii), I hereby certify that

information substantially identical to the information for ~which we are requesting proprietary

treatment in the attached submission is not available to the public.

Daniel L. Porter
Curtis, Mallet-Prevost, Colt & Mosie LLP
1717 Pennsylvania Avenue, NW
Washington, DC 20006

District of Columbia: SS
Subscribed and Sworn to before me on this 28th day of September 2017

September 28, 2017

LORETHA ANN BROO~IA
NOTARY PUBUC DISTRICT,.~ 30 2018
My eomm\SSIO!l ExpireS ,.,... ..
Crystalline Silicon Photovoltaic Cells (Whether or Not TA-201-75
Partially or Fully Assembled into Other Products)

PUBLIC
CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing submission has been served this day
by hand delivery, upon the following persons:

Matthew J. McConkey, Esq. John Gurley, Esq.

On behalf of Suniva, Inc. On behalf of Goal Zero, LLC; Hanwha Q CELLS
MAYER BROWN LLP America Inc.
1999 K Street, NW ARENT FOX LLP
Washington, DC 20006 1717 K Street, NW
Washington, DC 20006
H. Deen Kaplan, Esq. Timothy C. Brightbill, Esq.
On behalf of Canadian Solar; NextERA Energy, Inc., et al On behalf of SolarWorld Americas, Inc.
HOGAN LOVELLS US LLP WILEY REIN LLP
555 Thirteenth Street, NW 1776 K Street, NW
Washington, DC 20004 Washington, DC 20006
Bernd G. Janzen, Esq. Aluisio Gomien de Lima Campos
On behalf of Sunrun Inc. On behalf of The Government of Brazil:
AKIN GUMP STRAUSS HAUER & FELD LLP EMBASSY OF BRAZIL
1333 New Hampshire Avenue, NW 3006 Massachusetts Ave., N.W.
Washington, DC 20036 Washington, DC 20008
Kelly A. Slater, Esq. Robert G. Gosselink
On behalf of REC Solar Pte. Ltd. and REC Americas, On behalf of Changzhou Trina Solar Energy Co., Ltd.;
LLC CCCME-Solar Energy and Photovoltaic Products
APPLETON LUFF PTE LTD TRADE PACIFIC PLLC
1025 Connecticut Avenue, NW 660 Pennsylvania Avenue, SE
Suite 1000 Suite 401
Washington, DC 20036 Washington, DC 20003
Kenneth G. Weigel Aristeo Lopez
On behalf of Tesla, Inc. and SolarCity Corporation EMBASSY OF MEXICO
ALSTON BIRD LLP 1911 Pennsylvania Avenue, NW
950 F Street, N.W. Washington, DC 20006
Washington, DC 20004
Colin Bird Matthew R. Nicely, Esq.
Minister Counsellor On behalf of Solar Energy Industries Association and its
EMBASSY OF CANADA member SunPower Corporation (collectively SEIA)
501 Pennsylvania Avenue, NW HUGHES HUBBARD & REED LLP
Washington, DC 20001 1775 I Street, NW
Washington, DC 20006-2401

Kristin H. Mowry, Esq. Fang Liu, First Secretary

On behalf of JA Solar International Co., Ltd., JingAo EMBASSY OF THE PEOPLES REPUBLIC OF
Solar Co., et al CHINA
MOWRY & GRIMSON, PLLC 2133 Wisconsin Avenue, NW
5335 Wisconsin Avenue, NW Washington, DC 20001
Suite 810
Washington, DC 20015
Crystalline Silicon Photovoltaic Cells (Whether or Not TA-201-75
Partially or Fully Assembled into Other Products)

Mohd Zahid Bin Abdullah Kristen Smith, Esq.

Director On behalf of Sunforce Products, Inc.
MINISTRY OF INTERNATIONAL TRADE AND SANDLER, TRAVIS & ROSENBERG, P.A.
INDUSTRY (MITI) 1300 Pennsylvania Ave., NW
No. 7, Jalan Sultan Haji Ahmad Shan Suite 400
50480 Kuala Lumpur Washington, DC 20004
MALAYSIA
Richard L.A. Weiner, Esq. William J. Clinton, Esq.
On behalf of Mission Solar Energy LLC, Jinko Solar On behalf of Boviet Solar Technology Co., Ltd. and
Technology SDN. BDN., Jinko Solar Co., Ltd., et al Boviet Solar USA, Ltd.
SIDLEY AUSTIN LLP WHITE & CASE LLP
1501 K Street, NW 701 Thirteenth Street, NW
Washington, DC 20005 Washington, DC 20005
Lindsay B. Meyer, Esq. Daniel J. Gerkin, Esq.
On behalf of The Solaria Corporation On behalf of SunPower Corporation, SunPower
VENABLE LLP Corporation, Systems, SunPower North America LLC,
600 Massachusetts Avenue, N.W. et al
Washington, DC 20001 VINSON & ELKINS LLP
2200 Pennsylvania Avenue, N.W.
Suite 500 West
Washington, D.C. 20037
John P. Smirnow, Esq. Stephen J. Orava, Esq.
On behalf of 8minuteenergy Renewables LLC On behalf of Hemlock Semiconductor Operations LLC
SMIRNOW LAW KING & SPALDING
1717 K Street, NW 1700 Pennsylvania Avenue, N.W.
Suite 1120 Washington, DC 20006
Washington, DC 20006
Kevin M. OBrien, Esq. Donald B. Cameron, Esq.
On behalf of Depcom Power Inc. On behalf of Red Sun Energy JSC and Renewable
BAKER MCKENZIE LLP Energy Systems America Inc.
815 Connecticut Ave., N.W. MORRIS, MANNING & MARTIN, LLP
Washington, DC 20006 1401 Eye Street, NW
Suite 600
Washington, DC 20005
Ratheesh Malottu Jim Won Choi, Counsellor
On behalf of Vikram Solar On behalf of The Government of the Republic of Korea
M.S. POTHAL & ASSOCIATES EMBASSY OF THE REPUBLIC OF KOREA
F-12/4, 1st Floor 2450 Massachusetts Ave., NW
Malviyanagar Washington, DC 20008
New Delhi-110017
Deep Patel, Founder & CEO Nguyen Phuong Nam, Deputy Director General
On behalf of GigaWatt, Inc. On behalf of Vietnam Competition Authority
GIGAWATT, INC. VIETNAM COMPETITION AUTHORITY
310 E Orangethorpe Ave. No. 25, Ngo Quyen Str. Hoan Kiem Dist.
Suite D Ha Noi, Vietnam
Placentia, CA 92870
Dr. Sibylle Zitko, Esq. Prayoth Benyasut, Minister(Commercial)
On behalf of the European Commission On behalf of Royal Thai Government
THE EUROPEAN COMMISSION Office of Commerical Affairs
Delegation of the European Union to the United States of ROYAL THAI EMBASSY
America 1024 Wisconsin Avenue, NW
2175 K Stret, NW Suite 202
Washington, DC 20037 Washington, DC 20007
Crystalline Silicon Photovoltaic Cells (Whether or Not TA-201-75
Partially or Fully Assembled into Other Products)

Mardjoko, Act. Director of Trade Defense Chien Chi CHAO, Economic Officer
On behalf Government of Indonesia On behalf of the Government of Taiwan, Taipei
Jalan M.1 Ridwan Rais NO.5 Economic and Cultural Representative Office In The
Jakarta 10110 INDONESIA United States:
TAIPEI ECONOMIC AND CULTURAL
REPRESENTATIVE OFFICE IN THE UNITED
STATES
4301 Connecticut Avenue, NW
Washington, DC 20008
Brian L Eftink, Esq. Reza Pehlevi Chairul
On behalf of Wacker Polysilicon North America LLC and On behalf of the Republic of Indonesis.
Wacker Chemie AG EMBASSY OF INDONESIA
WACKER POLYSILICON NORTH AMERICA LLC 2020 Massachusetts Ave., NW
553 Wacker Boulevard, NW Washington, DC 20036
Charleston, TN 37310
Jeannie Kao Hsiao-Chun, Lu
On behalf of Solartech Energy Corp.: On behalf of LOF Solar Corp.:
SOLARTECH ENERGY CORP. LOF SOLAR CORP.
8F., No. 760, Sec. 4, Bade Rd., Songshan Dist., 2F, No.6, Prosperity Rd. 2
Taipei 105, Taiwan Hsinchu Science Park
Hsinchu 30078
Taiwan, R.O.C.
H. R. Gupta, Managing Director Thomas M. Beline, Lead Attorney
On behalf of Indo Solar Ltd.: On behalf of Auxin Solar Inc.
INDOSOLAR LIMITED CASSIDY LEVY KENT (USA) LLP
M/s M.S. Pothal & Associates, F-12/4, 1st Floor 2000 Pennsylvania Avenue, NW
Malvyanagar, New Delhi-110017 Suite 3000
Washington, DC 20006

_________________________________
Daniel L. Porter
Curtis, Mallet-Prevost, Colt & Mosle LLP
1717 Pennsylvania Avenue, NW
Washington, DC 20006

Dated: September 28, 2017

 BEFORE THE UNITED STATES INTERNATIONAL TRADE COMMISSION

In the Matter of Public Version

Crystalline Silicon Photovoltaic Cells,

Whether Or Not Partially or Fully Confidential BPI has been deleted from the
Assembled Into Other Products following pages: iv, 10, 12, 13, 15, 16, 18, 20,
21, 29, and in Exhibits 3 and 5.
Investigation No. TA-201-75

Pre-Hearing Brief for Remedy Phase Of

Korea Photovoltaic Industry Association
(KOPIA)

Daniel L. Porter
James P. Durling
Gina Colarusso
Kimberly Reynolds
Nereus Joubert, Trade Analyst

Curtis, Mallet-Prevost, Colt & Mosle LLP

1717 Pennsylvania Avenue, N.W.
Washington, DC 20006
(202) 452-7373

September 28, 2017

 Public Version

Table of Contents

INTRODUCTION AND SUMMARY OF ARGUMENT ........................................................ 1

I. THE COMMISSIONS REMEDY RECOMMENDATION MUST ADHERE TO

SPECIFIC STATUTORY REQUIREMENTS .................................................................. 4

II. GIVEN THE UNIQUE CONDITIONS OF COMPETITION FOR THIS INDUSTRY,

THE PROBLEMS FACING U.S. PRODUCERS ARE BETTER ADDRESSED
THROUGH ADJUSTMENT ASSISTANCE RATHER THAN IMPORT
RESTRICTIONS ................................................................................................................ 9

A. Import Restrictions Will Not Be Effective in Helping U.S. Producers .............. 9

1. High tariffs will not help U.S. producers ................................................... 11

2. Restrictive quotas will not help U.S. producers......................................... 11

3. Customers agree that trade restrictions will be

counterproductive....................................................................................... 14

B. U.S. Producers Need Cash To Support Immediate Investment

Projects And A Mechanism Exists To Generate The Needed Cash ................. 17

III. SHOULD THE COMMISSION INSIST ON RECOMMENDING IMPORT

RESTRICTIONS, KOREA SHOULD BE EXCLUDED BECAUSE THE COSTS
OF IMPOSING OUTWEIGH THE BENEFIT TO U.S. PRODUCERS ......................... 19

IV. THE COMMISSION SHOULD EXCLUDE N-TYPE SOLAR MODULES FROM

ITS RECOMMENDED IMPOSITION OF ANY IMPORT RESTRICTION
SAFEGUARD MEASURE .............................................................................................. 22

CONCLUSION ....................................................................................................................... 30
 Public Version

Table of Authorities

Statutes
19 U.S.C. 2251(a) ........................................................................................................ 6
19 U.S.C. 2253(a)(3)(D) ............................................................................................. 17
19 U.S.C. 2253(e)(2) .................................................................................................... 4
19 U.S.C. 2253(e)(4) .................................................................................................. 13
19 U.S.C. 2253(a)(1)(A) ........................................................................................ 19, 23
19 U.S.C. 2252(e)( 1) ............................................................................................ 4, 5, 22
9 U.S.C. 2253(a)(2)(E) ................................................................................................. 23
9 U.S.C. 2252(e)(3) ...................................................................................................... 4
USITC Decisions
Bicycle Tires and Tubes,
USITC Pub. 910, Inv. No. TA-201-33 (Sept. 1978) ....................................................... 7
Bolt, Nuts, and Large Screws of Iron or Steel,
USITC Pub. 847, Inv. No. TA-201-27 (Dec. 1977) ........................................................ 7
Carbon and Certain Alloy Steel Products,
USITC Pub. 1553, Inv. No. TA-201-51 (Jul. 1984) ...................................................... 23
Certain Stainless Steel Flatware,
USITC Pub. 884, Inv. No. TA-201-30 (May 1978) ........................................................ 7
Certain Steel Wire Rod,
USITC Pub. 3207, Inv. No. TA-201-69 (Jul. 1999) .................................................. 5, 23
Extruded Rubber Thread,
USITC Pub. 2563, Inv. No. TA-201-63 (Dec. 1992) .................................................... 7
High-Carbon Ferrochromium,
USITC Pub. 845, Inv. No. TA-201-28 (Dec. 1977) ........................................................ 7
Honey,
USITC Pub. 781, Inv. No. TA-201-14 (Jun. 1976) ......................................................... 7
Lamb Meat,
USITC Pub. 3176, Inv. No. TA-201-68 (Apr. 1999) ..................................................... 5
Mushrooms,
USITC Pub. 798, Inv. No. TA-201-17 (Jan. 1977) ......................................................... 7

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Nonrubber Footwear,
USITC Pub. 1717, Inv. No. TA-201-55 (Jul. 1985) ........................................................ 7
Stainless Steel and Alloy Tool Steel Steel,
USITC Pub. 1377, Inv. No. TA-201-48 (May 1983) .................................................... 24
Steel,
USITC Pub. 3479, Inv. No. TA-201-73 (Dec. 2001) .............................................. 19, 24
Unalloyed, Unwrought Copper,
USITC Pub. 905, Inv. No. TA-201-32 (Aug. 1978) ....................................................... 7
Unwrought Copper,
USITC Pub. 1549, Inv. No. TA-201-52 (Jul. 1984) ........................................................ 8
Wheat Gluten,
USITC Pub. 3088, Inv. No. TA-201-67 (Mar. 1998) ................................................... 5
Other Authorities
45 Fed. Reg. 19,543 (1980) ............................................................................................. 9
49 Fed. Reg. 35,609 (1984) ............................................................................................. 8
50 Fed. Reg. 35,205 (1985) ............................................................................................. 7
Proclamation No. 7273, 65 Fed. Reg. 8621 (Feb. 18, 2000) ......................................... 23
Proclamation No. 7529, 67 Fed. Reg. 10551 (Mar. 5, 2002) ........................................ 19
Technical Correction to the Harmonized Tariff Schedule of the United States, 65 Fed.
Reg. 13,815 (USTR Mar. 14, 2000) .............................................................................. 23

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Exhibit List
Exhibit 1 Customer Declaration of Ken Driscoll of Solect Energy

Exhibit 2 Customer Declaration of Matthew Skidmore of Conti Solar

Exhibit 3 Customer Declaration of [ ] (BPI)

Exhibit 4 Customer Declaration of Matthew McGovern of Cypress Creek

Renewables

Exhibit 5 Customer Declaration of Erik Schiemann of Current GE (BPI)

Exhibit 6 Product Brochures and Specification for LGEs N-type Technology Solar
Modules

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INTRODUCTION AND SUMMARY OF ARGUMENT

Unlike the more common Title VII cases, a Section 201 case requires more

judgement. Import restrictions are not automatic. Instead, any relief must reflect a

careful balancing of competing interests. Although the ultimate decision lies with the

President, the Commissions work and recommendations are an important part of that

process. If a proposed remedy will be counterproductive and actually hurt the U.S.

domestic industry and impose huge costs on the broader economy, the Commissions

report and recommendations should reflect that reality.

That is precisely why the statute imposes specific conditions on any recommended

relief. The relief cannot be excessive. The relief must facilitate and promote adjustment

to import competition. The benefits must exceed the costs. Unlike Title VII, the Section

201 statute makes clear that any relief should respect the basic principle lets not shoot

ourselves in the foot. Yet for the CSPV industry, restrictions on imports would fail all

of these tests. Severe restrictions on imports would be much worse than shooting

ourselves in the foot; it would be more akin to cutting off a leg.

The U.S. producers remedy requests to date for a minimum price, or for import

restrictions to achieve that objective by raising prices simply reflect their fundamental

misunderstanding of the CSPV market and its competitive dynamics. The demand for

CSPV and the growth of the market depends critically on how effectively CSPV can

compete with alternative sources of energy. No one has to buy solar panels the price of

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solar generated energy has to make sense to them to make that purchase decision.

Moreover, there is an equally important point that current supply is overwhelming from

foreign supply sources. This current reality means that any significant restrictions on

imports that reduced the quantity of imported CSPV would create shortages perhaps

severe shortages in the U.S. market. Lower prices have been the key to the growing

demand for CSPV and the longer term health and prospects for this industry. Efforts to

restrict that volume or increase those prices would be short sighted and would be

counterproductive to the long-term health of the domestic industry.

That is why the better course of action is to find ways to support funding to the

domestic industry to help them invest and become more competitive. Remedies that help

that process by using a remedy to fund investment rather than restrict imports make

far more sense than punitive import restrictions. For that reason, KOPIA supports the

proposal being made by SEIA to use licensing fees or some other mechanism to raise

funds to support reinvestment. Trade restrictions to create significantly higher prices

will not achieve this objective, and will instead kill off the market. It will help U.S.

producers of other sources of energy natural gas, wind, and others but it will not help

U.S. producers of CSPV.

If the Commission nevertheless recommends import restrictions, it should

recognize that imports from Korea are different, and should be treated differently in any

remedy. Korea imports particularly the larger volume in 2016 were almost entirely

products that the domestic industry could not produce and supply to the market. Since

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the costs of restrictions on these Korean imports would exceed any possible benefits, any

restrictions should be minimized. If fact, continued imports from Korea would help

mitigate the potentially severe shortages that might occur from broader import

restrictions. One way to minimize such restrictions would be to exclude from any

remedy highly specialized products using technologies only available from Korean

suppliers.

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ARGUMENT

I. THE COMMISSIONS REMEDY RECOMMENDATION MUST ADHERE

TO SPECIFIC STATUTORY REQUIREMENTS

Import restrictions on fairly traded imports are anathema to the free trade

principles of the WTO and the post-war U.S. approach to international trade. It is for this

reason that the underlying U.S. legislation for safeguard investigations makes such

actions exceptional, and imposes specific and strict criteria for the imposition of any such

safeguard remedies.

Any remedy must be tailored to the injury from imports found and may not

"exceed the amount necessary to prevent or remedy the injury. The statute

provides that any remedy must "address the serious injury, or threat thereof, to the

domestic industry." 19 U.S.C. 2252(e)(l). In other words, the Commission is

prohibited from recommending any remedy that would reach beyond actions bearing

directly on the actual injury found.

Additionally, any recommended relief is permitted "only to the extent the

cumulative impact of such action does not exceed the amount necessary to prevent or

remedy such serious injury." 19 U.S.C. 2253(e)(2), referred to by 19 U.S.C.

2252(e)(3). Section 201 relief is not punitive in nature, and may restrict free trade

only to the extent that imports have caused serious injury to the domestic industry.

Although the Commission may be presented with many possible remedies, it is bound

to recommend the least restrictive relief that will address the problem. The

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Commission has acknowledged this very limitation in many of its past safeguard

cases.1

Any recommended remedy must be narrowly tailored to be the "most

effective in facilitating the efforts of the domestic industry to make a positive

adjustment to import competition." The statute additionally requires that the selected

remedy must be the "most effective in facilitating the efforts of the domestic industry

to make a positive adjustment to import competition." 19 U.S.C. 2252(e)(l).

Section 201 is a safeguard provision designed to assist a domestic industry in adjusting

to imports of fairly traded goods. It represents a narrowly drawn exception to the

fundamental principles of the WTO trading system, which otherwise favor the free

flow of fairly traded goods. Unfairly traded imports are properly addressed through

Title VII relief.2

Despite the impression that the domestic producers h a v e attempted to convey,

this case is not a Title VII case, in which the petitioners seeking relief have no

1
See, e.g., Certain Steel Wire Rod, USITC Pub. 3207, Inv. No. TA-201-69, at I-54, I-55 (Jul. 1999)
(The tariff increase that we are recommending will address the serious injury to the domestic steel wire
rod industry . . . It also does not exceed the amount necessary to remedy such serious injury.); Lamb
Meat, USITC Pub. 3176, Inv. No. TA-201-68, at I-30 (Apr. 1999) (We sought to develop a remedy that
would not disrupt the U.S. lamb market more than is necessary to provide the domestic lamb industry an
opportunity to make adjustments and successfully compete with import competition.); Wheat Gluten,
USITC Pub. 3088, Inv. No. TA-201-67, at I-25-26 (Mar. 1998) (As a general matter, we prefer a
simple tariff increase over tariff-rate quotas and quantitative restrictions (quotas) because a tariff
tends to be least distortive of trade and easiest to administer.).
2
Indeed, many of the flat products subject to this Section 201 investigation are also subject to
antidumping or countervailing duty orders. Regular administrative reviews performed by the Commerce
Department ensure the fairness of prices for those products. Allegations of unfairly traded goods are
irrelevant to a section 201 remedy.

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affirmative obligation to change their own behavior. Indeed, Section 201 is based on

the concept that temporary relief is justified because of the need for the domestic

industry to restructure. Any remedy imposed by the Commission thus must be closely

related to the plans of the domestic industry to make itself more competitive.

In this investigation, however, the Commission is handicapped in determining an

appropriate remedy because U.S. producers have not yet supplied an adjustment plan,

despite its promise to do so within 120 days of the date the petition for this

investigation was filed; that is, by September 14, 2017.3

The fact that the U.S. producers have not submitted an adjustment plan at this

late stage in the investigation evidences their lack of recognition of the importance of

the remedial action needed in a safeguard proceeding. Because the domestic industry

apparently has no real adjustment goals beyond avoiding competition with fairly traded

imports, the Commission should recommend a narrow remedy that avoids harm to

U.S. solar module customers.

Any remedy ultimately adopted by the President must "provide greater

economic and social benefits than costs." 19 U.S.C. 2251(a). If the Commission

is to provide a useful remedy recommendation in its report to the President, it should

3
See SolarWorlds Prehearing Injury Brief at 103 (SolarWorld intends to submit a plan to facilitate
positive adjustment to import competition, as referenced in 19 U.S.C. 2252(a)(4), within 120 days of the
date the petition for this investigation was filed.); Injury Hearing Tr. at 151 (Testimony of Mr.
Brightbill) (We'll also put forward an adjustment plan and consult with USTR on it.), 210 (Testimony
of Mr. Brightbill) (Again I think were going to put forward an adjustment plan").

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structure its proposal with this limitation in mind: any recommendation failing to meet
4
this requirement would have to be rejected by the Administration.

The President indeed has refused to grant relief in several past cases where he

determined that the possible benefits of relief would be outweighed by the cost to

consumers and international trade.5

In Nonrubber Footwear the volume of subject imports nearly doubled over the

POI, growing from 366 million imports to 726 million.6 Despite the USITCs

determination that nonrubber footwear being imported into the United States in such

increased quantities as to be a substantial cause of serious injury, the President

determined that import relief would not be within the national economic interest.7 The

4
The Commission explicitly recognized that it is limited by this requirement in Extruded Rubber
Thread, USITC Pub. 2563, Inv. No. TA-201-63, at 39 (Dec. 1992).
5
See Bicycle Tires and Tubes, USITC Pub. 910, Inv. No. TA-201-33 (Sept. 1978) (President denied
recommended import relief despite Commissions finding that imports had greatly increased both in
actual and relative terms); Unalloyed, Unwrought Copper, USITC Pub. 905, Inv. No. TA-201-32, at A-
15(Aug. 1978) (President denied recommended import relief despite Commissions finding that imports
had increased by an average annual rate of 17 percent during the POI); Certain Stainless Steel Flatware,
USITC Pub. 884, Inv. No. TA-201-30, at 9-10 (May 1978) (President denied recommended import relief
despite Commissions finding that imports had greatly increased both in actual and relative terms); High-
Carbon Ferrochromium, USITC Pub. 845, Inv. No. TA-201-28, at 5 (Dec. 1977) (President denied
recommended import relief despite Commissions finding that in relation to U.S. production, imports rose
from 39 percent to 100 percent during the POI); Bolt, Nuts, and Large Screws of Iron or Steel, USITC
Pub. 847, Inv. No. TA-201-27, at A-14 (Dec. 1977) (President denied recommended import relief despite
Commissions finding that imports had an average annual growth rate of 9.5 percent during the POI);
Mushrooms, USITC Pub. 798, Inv. No. TA-201-17, at 6 (Jan. 1977) (President denied recommended
import relief despite Commissions finding that imports had increased by almost 80 percent over the
POI) ; Honey, USITC Pub. 781, Inv. No. TA-201-14, at A-31 (Jun. 1976) (President denied
recommended import relief despite Commissions finding that imports had increased from 11 million to
46 million over the POI).
6
Nonrubber Footwear, USITC Pub. 1717, Inv. No. TA-201-55, at A-20 (Jul. 1985).
7
50 Fed. Reg. 35,205 (1985).

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President denied relief for three important reasons: (1) import relief would place a costly

and unjustifiable burden on U.S. consumers and the U.S. economy; (2) import relief

would result in serious damage to U.S. trade through compensatory tariff reductions or

retaliatory actions by foreign suppliers; and (3) the President did not believe that

providing relief would promote industry adjustment to increased import competition.8

In Unwrought Copper 9 the USITC found that subject imports had increased over

the POI by 125 percent.10 Despite the Commissions affirmative injury determination,

the President concluded that import relief was not an appropriate remedy for several

reasons. Namely, the imposition of import restrictions would create a differential

between U.S. and world copper prices, which would seriously disadvantage the copper-

fabricating industry in the United States vis-a-vis foreign competitors, thus shrinking

domestic demand for copper over time.11

In Leather Wearing Apparel the President denied the Commissions recommended

import relief and instead imposed expedited adjustment assistance because he viewed it

as the only positive action that would aid the adjustment process of the industry without

being inflationary or causing further erosion in consumer demand by increasing prices.

In this case, adjustment assistance would facilitate purchases of new equipment and new

8
Id.
9
49 Fed. Reg. 35,609 (1984).
10
Unwrought Copper, USITC Pub. 1549, Inv. No. TA-201-52, at A-20 (Jul. 1984).
11
49 Fed. Reg. 35,609 (1984).

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marketing techniques that the industry stated would be the primary actions if relief was

granted.12 The President denied import relief in Leather Wearing Apparel despite the

Commissions finding that imports of leather coats and jackets, for which relief was

recommended, had increased by about 145 percent over the POI.13

All of these past cases recognize that the effects of any import restrictions that

the Commission recommends are potentially severe. The Commission therefore needs

to ensure that its remedy recommendation does not impose disproportionate c o s t s on

the rest of the economy.

II. GIVEN THE UNIQUE CONDITIONS OF COMPETITION FOR THIS

INDUSTRY, THE PROBLEMS FACING U.S. PRODUCERS ARE BETTER
ADDRESSED THROUGH ADJUSTMENT ASSISTANCE RATHER THAN
IMPORT RESTRICTIONS

A. Import Restrictions Will Not Be Effective in Helping U.S. Producers

The U.S. producers remedy requests to date for a minimum price, or for import

restrictions to raise prices simply reflect their fundamental misunderstanding of the

CSPV market and its competitive dynamics.

On the demand side, the demand for CSPV and the growth of the market depends

critically on how effectively CSPV can compete with alternative sources of energy. The

Prehearing Report recognizes that demand for CSPV is derived demand,14 and the injury-

12
45 Fed. Reg. 19,543 (1980).
13
Leather Wearing Apparel, USITC Pub. 1030, Inv. No. TA-201-40, at 2 (Jan. 1980).
14
Prehearing Report, page. V-5.

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phase briefs of the parties stressed the importance of grid parity the ability of CSPV

generated electricity to compete with electricity generated by other means. For the utility

segment, grid parity is critical if the CSPV prices do not allow the generation of energy

that is competitive with other means of generating energy, the project will not use CSPV.

Even for the commercial/residential sector, the price will affect the demand business

owners and individuals have to make a decision about whether to install solar panels to

replace the current sources of electricity. No one must buy solar panels the price of

solar generated energy has to make sense to them to make that purchase decision.

On the supply side, there is an equally important point that current supply is

overwhelming from foreign supply sources. The Commissions Prehearing Report shows

that for the past two years, about [ ] percent of total CSPV supply in the U.S. market

came from foreign supply sources.15 The current U.S. capacity to supply the market is

very limited. The Prehearing Report shows that excess capacity by the U.S. industry

could supply only [ ] percent of the total U.S. market.16 This means that any

significant restrictions in imports that reduced the quantity of CSPV imports would create

shortages perhaps severe shortages in the U.S. market.

Lower prices have been the key to the growing demand for CSPV. Moreover, the

virtuous cycle of larger volumes at lower prices has allowed solar energy to become

15
Prehearing Report, Table C-1, page C-3.
16
Prehearing Report, Table C-1, page C-4. The excess capacity in 2015 was only [ ] percent of total
consumption, and the excess capacity in 2016 was only [ ] percent of total consumption.

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competitive with other sources of energy. Efforts to restrict that volume or increase those

prices will be counterproductive to the long-term health of the domestic industry.

1. High tariffs will not help U.S. producers

Tariffs are about raising prices, but higher prices will not help the domestic

producers in this case. Higher prices will simply drive down demand, and the lower

volumes will lead to even higher prices over time.

As discussed above, the demand for CSPV is very sensitive to price. Higher prices

will simply lead to lower demand. Indeed, at significantly higher prices the market for

CSPV to the utility segment will largely disappear, and the market for CSPV to

commercial/residential applications will be sharply reduced. CSPV modules to generate

solar energy are largely discretionary items utilities can design their project around

other energy sources, and business/individual purchasers can simply decide not to buy

solar panels at all. Unlike an automobile manufacturer that must buy some amount of

steel to make a car, buyers of solar panels do not need to buy solar panels. Someone

considering the purchase of CSPV can simply decide not to buy any CSPV at all.

2. Restrictive quotas will not help U.S. producers

High tariffs are not the solution, but neither are restrictive quotas. Like tariffs,

restrictive quotas are more likely to prove counterproductive than helpful to the domestic

producers.

One problem is that quotas if binding will themselves also have price effects.

In all markets, limiting supply will generally lead to increasing prices. A sharp reduction

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in supply will lead to much higher prices. Yet as discussed above, those higher prices

will just reduce demand for CSPV, and will be counterproductive.

Another problem is that U.S. producers have only limited existing excess capacity

to increase production, and therefore cannot take advantage of quotas over the short term

or medium term. As discussed above, the Prehearing Report shows that excess capacity

by the U.S. industry could supply only [ ] percent of the total U.S. market.17 The

small size of the domestic industry has important implications for the analysis of

remedies. In the short term, the domestic industry could realistically supply only another

[ ] percent of the market. Even if the domestic industry somehow managed to double

in size in the next 2-3 years and consistently operate at 100 percent of that expanded

capacity, that would still represent only [ ] million kW of supply.18 But even that

dramatically expanded capacity is only [ ] percent of 2016 apparent consumption,

assuming no growth in consumption at all. More realistically, over the next 1-2 years the

domestic industry could supply about [ ] percent of the market.19

Given this asymmetry between the small U.S. industry and the much larger import

supply, it will be extremely difficult to calibrate quotas to provide room for the U.S.

industry without creating supply shortages. Even moderate reductions in import supply

17
Prehearing Report, Table C-1, page C-4. The excess capacity in 2015 was only [ ] percent of total
consumption, and the excess capacity in 2016 was only [ ] percent of total consumption.
18
Prehearing Report, Table C-1, page C-4. 2016 capacity of [ ] kW doubled is [ ]
kW.
19
Prehearing Report, Table C-1, pages C-3, C-4. 100 percent of 2016 capacity of [ ] kW is
[ ] percent of 2016 apparent consumption of [ ] kW.

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will create shortfalls that the domestic industry cannot meet. For example, a 5 percent

reduction in 2016 imports supply would represent a reduction of [ ] kW in total

supply to the market.20 Yet the domestic industry in 2016 had only [ ] kW of

excess capacity and could thus supply only half of the shortfall.

Finally, any quota remedy will be difficult to administer given the AD/CVD

restrictions on some large historical supply sources. As if the calibration task were not

difficult enough, the intersection of the existing AD/CVD orders and the operation of

U.S. law will compound the problem. Under the statute, the quota quantities cannot be

less than the average of the past three years of supply,21 and WTO rules prevent

discrimination against different countries.22 This means that China must be allocated no

less than 2.43 million kW, and Taiwan must be allocated no less than 1.35 million kW.23

But it is not at all clear how much of this 3.78 million kW about [ ] percent of total

imports in 2016 would enter the market even in the face of AD/CVD orders. The

AD/CVD orders are likely to create supply issues anyway, that further quantitative

restrictions will only make worse.

20
Prehearing Report, Table C-1, page C-3. Total imports of [ ] kW times 0.5 equals
[ ] kW.
21
19 U.S.C. 2253(e)(4).
22
Article 5.2 of the Agreement on Safeguards.
23
Prehearing Report, Table C-1, page C-3. Average of actual quantity over the 2014, 2015, 2016 period
for each country.

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3. Customers agree that trade restrictions will be

counterproductive

Nor is this just economic theory. Customers have confirmed the very real threat to

the growth in the market posed by higher prices of CSPV.

Take Solect Energy. Solect Energy is a leading commercial solar company in

Massachusetts that has doubled the amount of megawatts installed since they began in

2009, and views this growth and industry growth as a result of decreasing costs (75%

since 2009) caused by innovations in solar technologies (specifically panel efficiency)

and related equipment.24 However, Solect Energy states that any additional cost

imposed by an import restriction will cause a dramatic decrease in demand. In fact they

provide that Solect Energy currently has 100+ projects in its pipeline to be built over the

next 12 months, which accounts for approximately 16 mW of projects aligned to the

States current incentive plan. If a remedy is imposed, 80% of these projects will go

away due to the lack of alignment with the current state incentives!25

Another customer, Conti Solar is an industry-leading, integrated, renewable

energy firm executing turnkey-projects across the nation. Conti Solar went from 10 mW

per year to150 mW per year, from 2007 to 2017 and has a 1,500 mW pipeline for future

projects.26 Conti states that it has been the industrys relentless focus in cost reduction

and system efficiency through increased innovation and technology that has most

24
Exhibit 1 Customer Declaration of Ken Driscoll of Solect Energy at paras. 2 & 5.
25
Id. at para 9.
26
Exhibit 2, Customer Declaration of Matthew Skidmore of Conti Solar, at paras. 1-2.

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contributed to driving the market to grid parity in many regions, and which has allowed

the industry to thrive and now compete with other traditional energy sources.27 When

speaking to the impact of import restrictions, and thus increase in cost, Conti Solar notes

that many of our prospective and existing customers would not be able to financially

justify construction of these solar arrays, and instead would continue to rely on those

traditional energy sources. As a result, our firm would lose most of our prospective and

existing customers, causing our revenues to be greatly affected and we would be forced

to downsize all aspects of our workforce.28

27
Id. at para. 3.
28
Id. at para. 6.
29
Exhibit 3, Customer Declaration of [ ], at para. 1.
30
Id.
31
Id. at para. 2.

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]32

An additional customer, GE Current, is a first-of-its-kind startup within the walls

of GE that blends advanced energy technologies (like LED and solar) with networked

sensors and software to make commercial buildings and industrial facilities more energy

efficient and productive.33 Their solar business started as an experiment in 2014 and

today has grown to nearly 100 mW of projects which they attribute to {t}he increase in

demand for solar solutions for commercial and industrial customers {as} a result of the

decreasing costs of solar through innovations and increased efficiency in modules, as

well as global competition which helps drive these innovations.34 As for the impact of

an import restriction on their business, they echo the sentiment of many other in stating

that [

].there is little doubt more American workers will

lose their jobs than if there were no import restrictions...{and} the impact would likely

disrupt what is the fastest growing energy segment in America.35

In short, actual customers in the day-to-day world of buying and selling solar

energy wholeheartedly confirm that the virtuous cycle of larger volumes at lower prices

32
Id. at para. 9.
33
Exhibit 5 Customer Declaration of Erik Schiemann of Current GE, at para 1.
34
Id. at para 2.
35
Id. at paras 5, 8-9.

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has allowed solar energy to become competitive with other sources of energy, and that

such fact has led to tremendous growth for solar energy, and therefore tremendous

growth in demand for CSPV. These customers also confirm that efforts to restrict that

volume or increase those prices will be counterproductive, leading to immediate loss of

business.

B. U.S. Producers Need Cash To Support Immediate Investment Projects

And A Mechanism Exists To Generate The Needed Cash

All available evidence demonstrates that what U.S. producers most need is cash to

invest to expand capacity. The current capacity is too limited both the amount of

capacity and its ability to use the latest technologies to product CSPV that is competitive

in the market. And so, the most pertinent question is finding the best mechanism to

generate cash to support U.S. producers.

The statute does not limit the Commission to actions that restrict imports. To the

contrary, the statute expressly contemplates the Commission recommending one or

more appropriate adjustment measures.36 This provision specifically mentions

adjustment assistance as one example, but adjustment assistance is not the only

possible adjustment measure.

SEIA has proposed to use an import license fee mechanism, which is explicitly

authorized by law, that would use fees raised from solar module imports to generate cash

36
19 U.S.C. 2253(a)(3)(D).

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for U.S. solar cell producers.37 KOPIA supports SEIAs proposal as an appropriate

safeguard measure to facilitate U.S. producers positive adjustment to import

competition, and believes this idea should be seriously explored. Although such an idea

might require the creative use of existing and perhaps new legal authorities, the idea best

marries the true need of this domestic industry with the unique features of the CSPV

market.

In particular, this idea best leverages the current asymmetry between the size of

import supply and the size of the domestic industry. Even a very small licensing fee

could generate large amounts of revenue. In 2016, CSPV imports were [ ]

kW.38 Thus a fee of US$ 0.01 per watt would generate approximately US$ [ ]

million in additional revenue. A fee of US$ 0.02 per watt would generate approximately

US$ [ ] million in revenue. These sums could provide a significant source of

assistance to the domestic industry. Even if there are limitations on any direct transfer,

the source of additional revenue would allow other solutions that would maintain overall

revenue neutrality for the U.S. government.

37
SEIA Prehearing Remedy Brief, Section VIII.C.
38
Prehearing Report, Table C-1, page C-3.

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III. SHOULD THE COMMISSION INSIST ON RECOMMENDING IMPORT

RESTRICTIONS, KOREA SHOULD BE EXCLUDED BECAUSE THE
COSTS OF IMPOSING OUTWEIGH THE BENEFIT TO U.S.
PRODUCERS

The Section 201 statute provides very broad discretion to the President in

fashioning whatever actions are considered appropriate to remedy the serious injury to

U.S. producers. In particular, Section 203(a) of the Trade Act of 1974 provides a broad

mandate to the President for fashioning an appropriate remedy:

After receiving a report under . . . this title containing an affirmative finding

regarding serious injury, or the threat thereof, to a domestic industry, the
President shall take all appropriate and feasible action within his power
which the President determines will facilitate efforts by the domestic
industry to make a positive adjustment to import competition and provide
greater economic and social benefits than costs.39

Importantly, the statute does not require that the same remedy be applied to all

countries covered by the Commissions affirmative injury determination. And indeed, in

past cases, the President has specifically excluded certain countries with which the

United States has a free trade agreement from the imposition of any safeguard remedy,

notwithstanding that such countries were explicitly covered by the Commissions

affirmative injury determination. For example, in the Steel case, the Commissions

affirmative serious injury determination covered imports of carbon and alloy hot-rolled

bar, carbon alloy steel flanges and stainless steel bar from Canada and multiple categories

of steel products from Mexico.40 However, the President ultimately decided to exclude

39
19 U.S.C. 2253(a)(1)(A) (emphasis added).
40
See Steel, USITC Pub. 3479, Inv. No. TA-201-73, 358, 369-71, 378-79, 393 (Dec. 2001).

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all steel imports from Canada and all steel imports from Mexico from his imposition of

import restrictions remedy.41

The Commission certainly has the discretion to recommend a remedy that the

President is authorized under law to impose. And so, we respectfully urge the

Commission to exercise its discretion to exclude imports from Korea from any

Commission recommendation for an import restriction remedy. Excluding imports from

Korea will foster the overall objective of the U.S. safeguard legislation to ensure that

whatever remedy is imposed, the costs do not outweigh the benefits. As detailed below,

given the substantial quantity of Korean solar modules that are sold to U.S. customers

that have never (or rarely) purchased from U.S. producers, restricting imports from

Korea will cause much more harmful effects than any benefit that might accrue to U.S.

producers.

There can be little question that restricting imports from Korea would impose

greater costs than benefits on the United States. Trade restrictions sufficient to allow the

current domestic industry to return to profitability would have a devastating impact. As

shown in the report by Professor Prusa provided with the SEIA prehearing remedy brief,

the legally permitted levels of trade restrictions would not restore the domestic industry

to profitability. Indeed, the fundamental problem can be seen in the Commissions

Prehearing Report. The domestic industry has per unit costs of [ ] per watt.42 To

41
See Proclamation No. 7529, 67 Fed. Reg. 10551, paras. 5, 8, 11 (Mar. 5, 2002).
42
Prehearing Report, Table C-1, page C-4. Per unit COGS of [ ] per watt and per unit SGA of
[ ] per watt.

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earn a 10 percent operating income, that means average prices need to be about [ ]

per watt. But that level of U.S. prices would imply overall average import prices increase

from the [ ] per watt in 2016. Such an increase of [ ] per watt an increase of

about [ ] percent would be crippling. Such an increase applied to imports from

Korea would impose huge costs -- both economic costs and non-economic costs on the

United States.

The economic costs would include strangling the future growth of solar power

more generally, but also shutting off the high technology products shipped by Korean

suppliers that meet distinctive needs in the U.S. market. As KOPIA explained in its briefs

during the injury phase,43 the imports from Korea consisted almost entirely of products

not made by the U.S. producers. Eliminating those imports therefore will make little

contribution to the health of the domestic industry, but would impose costs on those

utility customers who would need to cancel projects for lack of cost-competitive

solutions. It would also impose costs on those customers of n-type solar panels, many of

whom could not use other types of solar panels for the limited space available to install

solar panels.

The economic costs would also include the inability of Korean imports to help

make up the severe shortage that will be caused by eliminating other imports from the

market, particularly imports from China and Taiwan now subject to AD/CVD duties.

Eliminating China and Taiwan means eliminating what was about [ ] percent of the

43
KOPIA Prehearing Injury Brief, pages 14-25.

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total market in 2016 a gap that will be difficult to fill. The domestic industry cannot

possibly fill that gap. The only way to close that gap is to drive down demand and shrink

the market dramatically. Instead of the healthy growth in demand that has characterized

the past five years, the market would crash. Solar power would go from a promising

engine of future economic growth to a niche product purchased by only a handful of

customers willing to pay for solar power at any price. Although this vision of the

industry future may appeal to the current domestic producers, this future is a major set

back for the United States as a whole.

Beyond these economic costs, there would also be non-economic costs. At a time

when U.S.-Korea relations are already being frayed by other trade disputes, and at a time

when the importance of a strong relationship between the two countries has never been

more important, the last thing the United States needs is another trade dispute with Korea.

The pursuance of some relief for the domestic industry does not require trade restrictions

against Korea.

IV. THE COMMISSION SHOULD EXCLUDE N-TYPE SOLAR MODULES

FROM ITS RECOMMENDED IMPOSITION OF ANY IMPORT
RESTRICTION SAFEGUARD MEASURE

As we detail above, the underlying U.S. safeguard legislation indicates that the

Commission should not recommend remedies that are more protectionist to remedy the

serious injury sustained by U.S. producers.44 Moreover, in undertaking its remedy

44
See 19 U.S.C. 2252(e)( 1) (the Commission shall.. . recommend the action that would address the
serious injury, or threat thereof, to the domestic industry.. .).

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recommendation, the Commission must be cognizant of the Presidents obligation to

consider the short and long-term benefits of any remedies on the U.S. economy and take

care not to implement remedies that bestow greater social and economic harm on

consumers than benefits on U.S. producers.45

Recommending exclusions for those specialty products not produced by U.S.

producers is one way for the Commission to achieve the balancing objectives required by

the law. And indeed, product exclusions are a common occurrence in Section 201 cases.

The Commission has recognized in past Section 201 investigations that certain imported

specialty products should be excluded from any remedy.

For example, in Certain Steel Wire Rod, Commissioners recommended that certain

specialty products should be excluded because purchasers would be needlessly affected

by relief on products that were not available from domestic producers or in sufficient

quantities to satisfy demand.46 The President agreed, excluding several specialty

products from the relief.47

In Carbon and Certain Alloy Steel Products the Commission excluded handsaw

steel, razor blade steel, shoe die knife steel, and bread knife steel from its proposed

import relief, explaining that "{t}here is either no domestic production or insufficient

45
See 19 U.S.C. 2253(a)(2)(E) and 19 U.S.C. 2253(a)(l)(A).
46
Certain Steel Wire Rod, USITC Pub. 3207, Inv. No. TA-201-69, at I-56 (Jul. 1999) (separate views of
Chairman Miller and Commissioner Koplan).
47
See Proclamation No. 7273, 65 Fed. Reg. 8621 (Feb. 18, 2000); Technical Correction to the
Harmonized Tariff Schedule of the United States, 65 Fed. Reg. 13,815 (USTR Mar. 14, 2000).

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domestic production of these products to meet consumers' demand "48

Similarly, in Stainless and Alloy Tool Steel, the Commission recommended that

nine types or grades of specialty steel be exempted from import quotas, and that the first

6,000 short tons of a tenth category be exempt, on the ground that such grades were not

domestically produced, were produced only periodically, or were produced in insufficient

quantities.49

Finally, in Steel, the Commission explicitly noted that the Commission has

recommended the exclusion of particular {steel} products from its remedy, but only when

the record indicated that such products are not available from the domestic industry or

were unavailable in commercially significant volumes.50

Thus, the Commission has the demonstrated authority, consistent with its statutory

obligations, to craft a remedy that excludes those imported products which are not

produced by U.S. producers and for which customers require for their needs.

LGEs NeON 2 solar modules with Cello Technology completely satisfy the

criteria that the Commission has utilized in past cases to exclude specialty products from

the imposition of safeguard measures. Specifically, LGEs NeON 2 solar modules

with Cello Technology are entirely physically difficult from the solar modules produced

by U.S. producers because they utilize an entirely different technology (called n-type

technology) for converting sunlight into energy. Such different technology generates

48
USITC Pub. 1553, Inv. No. TA-201-51, at 79, (Jul. 1984).
49
USITC Pub. 1377, Inv. No. TA-201-48, at 47-52 (May 1983).
50
See Steel, USITC Pub. 3479, 355 (December 2001).

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specific performance attributes that some, limited U.S. customers require.51 And there is

no dispute that U.S. producers do not offer any solar modules with n-type technology.

We detail below how solar modules with n-type technology differ from U.S.

produced solar modules with p-type technology and how the evidentiary record confirms

the fact that no U.S. producers offer solar modules with n-type technology.

Specifically, the power output and electrical properties of the photovoltaic

modules depend on characteristics of solar cells. The characteristics of silicon solar

cells, in turn, are mainly determined by the type of wafer and the structure of the cell. The

term p-type refers to the fact that the cell is built on a positively charged (hence p-type)

silicon base. The wafer is doped with boron, which has one electron less than silicium.

The top of the wafer is then negatively doped with phosphorous, which has one electron

more than silicium. This helps form the p-n junction that will enable the flow of

electricity in the cell. N-type solar cells are built the other way around, with the n-type

doped side serving as the basis of the solar cell. (Interestingly, the first solar cell

produced by the Bell Laboratories in 1954 was an n-type, back contact, solar cell.)

The p-type solar cell has held the biggest size of the market for the last four

decades. Such fact stems from the primary early backer of solar technology: space

exploration. In the early days of its development, solar technology was mainly used for

space applications, and it turned out that p-type structure had better resistance to

51
We provide in Exhibit 6 a product brochure for LGEs n-type technology solar modules that details
the differences between n-type and p-type technologies.

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radiations for space applications. Consequently, the p-type solar cell enjoyed the benefits

of economies of scale.

However, n-type technology solar cells have certain physical differences that

cause LGEs solar modules to provide enhanced performance attributes. Specifically,

there are two key physical differences between n-type and p-type technologies. The first

key physical difference is that n-type technology has a better free flow of electrons.

The better free flow results from the different chemical that must be added to the silicon

wafer in order to facilitate the free flow of electrons.52 For p-type technology, boron is

the chemical that is added. However, when boron is combined with oxygen, there is

increased likelihood of rusting, which negatively affects free flow or electrons. In

contrast, for n-type technology, the chemical that is added is phosphorous. No rusting

occurs when phosphorous is combined with oxygen, and so there is not negative impact

on the free flow of electrons. Better free flow of electrons means better generation of

electricity and therefore higher power output.

The second key physical difference is that n-type technology allows more

vertical electrical paths on the cell (known as busbas). As can be seen in the diagram

on page 3 of the LG brochure (provided in Exhibit 6), all solar modules have both

horizontal and vertical electrical paths. However, whereas p-type technology typically

has only 3 - 5 vertical paths, n-type technology has 12 vertical paths. The increase in

52
Silicon wafers are nonconductors; that is, they cannot facilitate the free flow of electrons.
This is why a chemical must be added; to facilitate the free flow of electrons. Such procedure is
called doping.

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vertical paths lessens the normal degradation or power drop that occurs from natural

micro-cracking and thereby allows for longer term operation of the solar module.

These key physical differences, along with other physical differences, generate the

following enhanced performance attributes.

Double-sided capability: N-type technology has a double side cell structure base.

On the other hand, most conventional modules use a p-type wafer with a single sided cell

structure. The rear side of the conventional P-type cell cannot absorb the light because it

is fully covered with metal electrode. But the double-sided N-type technology cells are

structured in a manner that can generate the electrons, both in front and in back. This

increases the efficiency by absorbing the light that comes through a cells backside. Or

stated differently, the bifacial cell structure essentially allows the solar module to work

from both sides, rather than just one. Needless to say, such attribute increases the power

output from a single module.

Better temperature coefficient: Another benefit of the n-type technology is that

it has an improved temperature coefficient. Silicon solar cells have a tendency to have

lower power performance as the temperature rises above a certain level. The level of

power performance loss depends on the raw material and structure of the cell. LGs N-

type technology has a better temperature coefficient, which means it can generate more

electricity compared to p-type.

Increased longevity: Another benefit of the n-type technology is much reduced

light induced degradation (LID). P-type technology cells have boron-oxygen pairs in

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their structure. However, when exposed to the ultraviolet rays of the sun, the presence of

the boron-oxygen pair actually gets rid of some of the generated electricity. It is because

of LID that p-type solar modules literally start to degrade immediately after installation.

In contrast, because n-type technology cells do not utilize boron in the same way. they do

not have the boron-oxygen defect. This means that n-type solar modules initial power

degradation is very small.

Efficient space management: The increased efficiency and higher power output

means that n-type technology is particularly useful in those applications that require

efficient space management. N-type technology allows higher power output for 60 cell

modules.

All of the physically different attributes of n-type technology solar modules have

allowed certain limited customers to employ solar modules in those situations for which

U.S. produced solar modules using p-type technology would not work. Or stated

differently, many customers purchasing LGEs solar modules with n-type technology

only decided to proceed with installing solar modules because of the unique performance

attributes offered by n-type technology.53

And these customers are willing to pay a higher price for the enhanced attributes

of LGEs n-type technology solar modules. Data compiled by the ITC Staff demonstrate

53
See Final Staff Report at I-44 (n-type cells can be more expensive to produce, but have a number of
benefits, such as higher conversion efficiencies, no light induced degradation and they can be made using
less pure wafers.).

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that in 2016 the average unit price of LGEs n-type technology solar modules was

[ ]54; whereas the AUV of Petitioners solar modules was [ ]55.

Such higher prices have meant and will continue to mean, the LGEs solar

modules with n-type technology will occupy a relatively small share of total U.S.

consumption of solar modules. Indeed, LG estimates that the total expected quantity of

n-type technology solar modules sold in the US market will be just [ ] out of a

12,000 MW market; [ ].

Again, we note that LGE is the only supplier in the U.S. market to offer 6 inch n-

type technology solar modules in commercial quantities. U.S. Petitioners do not offer

any n-type technology solar modules.56

In short, the evidentiary record amply justified the Commission recommending to

exclude n-type technology solar modules from the imposition of any safeguard measure.

54
From Attachment to Importers Questionnaire of LG Electronics USA Inc. at table Backup data for
Question II-25.
55
Calculated from U.S. Producers Questionnaire of [ ] and [ ] at
Table II-15.
56
See Final Staff Report at I-44 (As of 2012, there were a relatively small number of producers of n
type mono products, including LG, Panasonic, SunPower, and Yingli. See also Declaration of Aaron
Hall, provided in Exhibit 2 of KOPISs Pre-Hearing Brief for Injury Phase, dated August 8, 2017.

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CONCLUSION

For all the foregoing reasons, we respectfully urge the Commission to adopt the

following approach in its remedy recommendation:

Recognize that, given the unique conditions of competition for this industry, the
problems facing U.S. producers are better addressed through adjustment assistance
rather than import restrictions;

Recommend to the President that imports from Korea should be excluded from
any import restriction remedy; and

Recommend a product exclusion to the President; namely, imports of solar

modules of n-type technology.

Curtis, Mallet-Prevost, Colt & Mosie LLP

Counsel for KOPIA

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