In another win for the solar industry, the U.S. Court of International Trade (CIT) re-instated the exclusion of bifacial solar modules from the Section 201 tariffs. Originally granted in June 2019, the exclusion for bifacial modules was revoked by the Trump Administration in October 2020.
The court found that while Trump’s proclamation complied with procedural requirements of the safeguard statute, the action was outside of the president’s delegated authority.
The court in its 32-page decision prohibited further enforcement of the proclamation, which was numbered 10101. The court order effectively reinstated an earlier exemption from tariffs for bifacial modules.
In addition to the exclusion, the CIT reduced the Section 201 tariff rate from 18% to 15% after it was raised to 18% in Proclamation 10101. Both actions will result in refunds of the tariffs that had been collected under the proclamation.
The Solar Energy Industries Association (SEIA) called the decision a win for the solar industry.
SEIA President & CEO, Abigail Ross Hopper said “The decision by the U.S. Court of International Trade to strike down an order by President Trump to change the step-down rate for the Section 201 tariffs and reverse the bifacial module exclusion was clearly the right conclusion. Both actions were an unlawful attempt to harshen the Section 201 tariffs”.
The Trump administration’s main argument was that bifacial modules were likely to account for a greater share of the market in the future and could substitute for mono facial products in a range of market segments. It continued that exempting imports of bifacial modules from the safeguard tariff would apply “significant downward pressure” on prices of domestically produced modules.
Counsel from Customs and Border Protection had argued in favour of upholding Trump’s action, marking a rare area of accord on the energy between the two presidents. Trump had “acted lawfully and fully within his authority,” said CBP counsel in a March court filing. CBP counsel also cited a U.S. International Trade Commission review of solar tariffs’ effectiveness last year that concluded the bifacial panels’ exclusion had put “significant price pressure” on U.S. panel producers.
On February, 17 U.S. clean energy CEOs urged President Biden to repeal the solar tariff proclamation, which the leaders called “punitive” and “ill-conceived.” In a letter to Biden, the CEOs said that the proclamation increased the 2021 trade tariff rate for imported solar cells and modules and argued that the decision “arbitrarily” revoked the exclusion for bifacial solar panels.
Led by SEIA and supported by the American Clean Power Association, the letter called attention to the proclamation’s impact on existing solar contracts and discussed how harmful the Section 201 tariffs are to the U.S. economy and the industry’s ability to address climate change. The CEOs asked Biden to return the tariffs to the status quo and restore business certainty.
The ruling also was criticized by domestic solar manufacturers, several of which have cited Trump’s bifacial tariffs as a necessary protection for U.S.-based production.
Over that, SEA President CEO Commented that “We are committed to building the U.S. solar manufacturing supply chain and we believe there are policies in the Build Back Better Act that will help grow American manufacturing. We look forward to working with the Biden administration and Congress to get these critical policies, including Senator John Ossoff’s Solar Energy Manufacturing for America Act, over the finish line.”
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