The Office of the U.S. Trade Representative is considering whether to maintain, withdraw, or take some other action regarding the exclusion of bifacial solar panels from a safeguard on solar products. Comments are due by Feb. 17 and responses to any such comments are due by Feb. 27.

The Section 201 safeguard on crystalline silicon photovoltaic cells and other CSPV products containing these cells consists of (1) a tariff-rate quota on CSPV cells not partially or fully assembled into other products, with an unchanged duty rate for the in-quota quantity and a higher duty rate for over-quota articles, and (2) a higher duty rate on other CSPV products. In June 2019 USTR excluded from this safeguard bifacial solar panels that absorb light and generate electricity on each side of the panel and that consist of only bifacial solar cells that absorb light and generate electricity on each side of the cells.

This exclusion was withdrawn as of Oct. 28 after USTR received information demonstrating that global production of bifacial solar panels is increasing, that the exclusion would likely result in significant increases in imports of these goods, and that such imports likely would compete with domestically produced monofacial and bifacial CSPV products in the U.S. market. However, the Court of International Trade subsequently found that USTR had not completed the proper procedures for withdrawing the exclusion and issued a preliminary injunction against it.

USTR is therefore requesting information or views on the following issues to aid in its determination of what further action to take.

- global and U.S. production and production capacity for bifacial solar panels prior to and following the exclusion, along with any information on expected changes in production and production capacity for the remaining term of the safeguard (i.e., until Feb. 6, 2022)

- projections for the production and importation of bifacial solar panels for the remaining term of the safeguard

- import data and entry documentation to establish the level of bifacial solar panels imported prior to and following the exclusion

- projections of demand for bifacial solar panels by companies building or planning to build solar facilities or otherwise to install bifacial solar panels

- contracts, purchase orders, or other agreements that establish sales or other transactions regarding bifacial solar panels that are imported into or produced in the U.S.

- production cost and price differential between the manufacture and distribution of monofacial and bifacial solar panels

- substitutability or competitiveness between monofacial and bifacial solar panels in the U.S.

- domestic production and production capacity of bifacial solar cells or panels

- whether the exclusion should be modified to implement a TRQ on bifacial solar panels that enter with no additional duty and, if so, the level (in megawatts) of that TRQ

- the potential impact, if any, on the domestic workforce and economy in general should the exclusion be withdrawn

USTR states that if it determines, after considering any comments received, that it would be appropriate to withdraw the exclusion or take some other action, it will request that the CIT lift its preliminary injunction.

For more information, please contact trade attorney Kristen Smith at (202) 730-4965.

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