CIT Leaves Injunction in Place Despite New USTR Notice Ending Safeguard Exemption for Bifacial Solar Panels

The termination of an exemption from solar safeguard duties for bifacial solar panels will not yet proceed, after the Court of International Trade on May 27 refused to dissolve an injunction blocking its withdrawal, despite the government’s claims that a recent request for comments resolved the court’s concerns.

The Office of the U.S. Trade Representative had attempted to eliminate the exemption in October (see 1910080054), just four months after creating it (see 1906120019). The trade court shortly thereafter issued an injunction blocking the resumption of Section 201 safeguard duties on the bifacial panels, citing the government’s failure to follow notice-and-comment procedures before withdrawing the exemption, as well as the arbitrariness of USTR’s decision as a result of USTR’s failure to explain its decision (see 1912050063).

Though USTR then sought comments in January before issuing a second withdrawal notice in April (see 2001240046 and 2004160027), CIT found there are still several unresolved issues related to the withdrawal, declining the government’s motion to dissolve the injunction and dismiss the case as moot.

Namely, the government did not adequately address the court’s concern that the withdrawal was arbitrary. Invenergy still contends the April withdrawal notice “provided only conclusory statements to justify USTR’s determination,” CIT said. And a USTR memorandum justifying the withdrawal was made available only days before oral argument in the case, leaving no time to address its arguments, CIT said. As a result, the court said it could not dissolve the injunction based on changed circumstances.

Nor could it dissolve the injunction as moot because the October withdrawal notice upon which it was based no longer applied. “The Government has not confessed error, requested remand, or indicated that its position regarding the October Withdrawal has changed in any way,” CIT said. “[T]he Government has not conclusively shown that USTR has rescinded the October Withdrawal, or that the October Withdrawal would not go into effect should the court dissolve” the injunction, CIT said.

“The court acknowledges the Government and Defendant-Intervenors’ concern that domestic industries may face a threat of material injury due to USTR’s decision to exclude bifacial solar products from safeguard duties,” CIT said. “The court also acknowledges the concerns of Plaintiffs (consumers, purchasers and importers of utility-grade bifacial solar panels), who oppose safeguard duties that they claim increase the cost of bifacial solar panels. ...

“At this stage of the proceedings, the court takes no position on the efficacy of the Exclusion or a decision to withdraw the Exclusion in providing protection to the domestic solar industry,” CIT said. “Instead, the court merely continues to require the Government to follow its own laws when it acts.” The court set a deadline of June 17, 2020, for the parties to submit a proposed schedule for next steps in the case.

(Invenergy Renewables LLC v. U.S., Slip Op. 20-73, CIT # 19-00192, dated 05/27/20, Judge Katzmann)