President Increases Safeguard Tariff on Solar Cells, Orders End to Bifacial Exemption

President Donald Trump issued a proclamation Oct. 10 that the Office of the U.S. Trade Representative says will end a hotly contested exemption for bifacial panels from safeguard duties on solar cells, despite a Court of International Trade injunction against its elimination that for now remains in effect (see 1912050063). The proclamation also increases the tariff applicable under the safeguard to account for bifacial panels already imported under the safeguard.

“The effective date of the proclamation order is October 25,” a USTR spokesperson said by email. “At that point bifacial solar panels will be subject to the safeguard action.” Lawyers for the bifacial panel importers that obtained the injunction didn't comment.

The bifacial panel exemption had been tagged for elimination by the USTR since October 2019 (see 1910080054). That’s when USTR issued a notice to eliminate it, only four months after the exemption was created (see 1906120019). Importers sued at the CIT and won the injunction, calling the elimination arbitrary and raising process concerns. USTR’s efforts at ending the injunction have been unsuccessful (see 2005270025), and the case is currently on appeal at the Federal Circuit.

According to the Oct. 10 proclamation, “the exclusion of bifacial panels from application of the safeguard tariff has impaired and is likely to continue to impair the effectiveness” of the solar safeguards, and “it is necessary to revoke that exclusion and to apply the safeguard tariff to bifacial panels.” The Justice Department filed a “status report” with the CIT on Oct. 12 that highlighted the proclamation.

The proclamation also increases the tariff on out-of-quota imports of all crystalline solar photovoltaic cells to 18% for year four of the safeguards, up from 15%, to account for a purported loss of effectiveness of the duties as a result of the bifacial panel exemption.

Finally, the proclamation mentions a possible increase in the quota level, under investigation since December (see 1912200013), from 2.5 gigawatts to 4, 5 or 6 gigawatts. Though it is silent as to whether the quota level will actually be changed, the annexes to the proclamation have yet to be published, so more changes to the safeguard tariffs could be coming.

The Solar Energy Industries Association complained over the administration action. “We are going to consider every option to reverse this harmful approach,” SEIA CEO Abigail Ross Hopper said. “We also will be talking with leaders in the next administration, regardless of who is president, about the harm of solar tariffs in the context of the COVID pandemic, a threatened economy and a critical need to address climate change.”