President Fulfilled Procedural Requirements When Nixing Solar Panel Tariff Exemption, DOJ Says

President Donald Trump properly eliminated a tariff exemption for bifacial solar panels since a majority of the representatives of the domestic industry, by volume, filed a petition to remove the exemption, the Department of Justice said in a June 11 brief in the Court of International Trade. Responding to arguments from the Solar Energy Industries Association, the Justice Department contested the trade group's assertion that the withdrawal of the exemption was merely based on a "head count" (Solar Energy Industries Association et al. v. United States, CIT #20-03941).

In its May 7 brief, SEIA also challenged DOJ's argument that CIT isn't permitted to review a president's factual determination when determining if the tariff actions followed statute, including the requirement that the president receive a petition by a majority of industry representatives. SEIA said this claim would eviscerate judicial review (see 2105100032). But DOJ continued to argue that the president's fact-finding is not subject to review, including his assertion that he received the petition from a majority of industry representatives, DOJ said.

"At this point, the inquiry over this issue should be at an end," the DOJ brief said. "The cases that plaintiffs cite do not suggest that further inquiry into the President’s factual determinations is permitted. Rather, those decisions focused entirely on ensuring that preconditional action taken by certain actions by other officials that were preconditions to presidential action did, in fact, occur."

DOJ also fought off a claim from SEIA that said that the statute requires petitioners to assert that domestic industry has made a positive adjustment to import competition due to the tariffs in order to make an adjustment. Since the petitioners did not say they made a positive adjustment, no alterations are allowed, SEIA had said. "This reading is incorrect," DOJ countered. "... The President alone determines if 'the domestic industry has made a positive adjustment to import competition' after receiving the petition. Nothing in this provision suggests that the petition must even mention 'a positive adjustment to import competition,'" DOJ said.