Background

The Court of International Trade has reinstated the exclusion of bifacial solar panels from a safeguard on solar products and lowered from 18 percent to 15 percent the additional duty on goods subject to the safeguard’s tariff-rate quota.

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 that declines each year, and (2) a higher duty rate on other CSPV products. This safeguard is currently slated to expire Feb. 6, 2022, but the Office of the U.S. Trade Representative is accepting comments through Dec. 15 on whether to extend it.

USTR had 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. A presidential proclamation subsequently revoked this exclusion and increased the duty rate on over-quota products 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.

In a Nov. 16 decision, the CIT said the proclamation “constituted both a clear misconstruction of the statute and action outside the president’s delegated authority,” noting among other things that the statute permits only trade-liberalizing modifications to existing safeguard measures. As a result, the over-quota duty rate will be lowered from 18 percent back down to 15 percent and duties collected at the higher rate will be refunded.

For more information on this safeguard, please contact attorney Kristen Smith at (202) 730-4965 or via email.

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