Solar Panels Were Subject to Duties Imposed by Unlawful Presidential Proclamation, Importer Argues

CBP unlawfully imposed 20% additional duties on bifacial solar panels given that the Court of International Trade found the underlying presidential proclamation to be "null and void," argued Trina Solar in a Dec. 7 complaint at the Court of International Trade (Trina Solar (U.S.), Inc. v. U.S., CIT # 22-00321).

The case challenges one denied protest concerning 234 entries of bifacial solar panels, which Trina says should have been exempted from duties stemming from two presidential proclamations. The entries at issue were subjected to duties found to have been unlawfully imposed by Proclamation 10101 and were already excluded from duties imposed by Proclamation 9693. The company has asked the court to order that entries be reliquidated without those duties, which Trina said were "a continuing financial burden," and that the duty payments be refunded with interest.

Alternatively, Trina argued that two of its entries should not have been liquidated at 20% because they were entered after Feb. 7, 2021, when the lesser 15% rate under Proclamation 9693 was in effect. In yet another alternative, Trina argued that CBP should refund the 2% difference between the 20% rate, as entered, and the 18% safeguard duty rate in effect for the same period as stated in Proclamation 10101.

Proclamation 9693, issued in January 2018, imposed annually decreasing safeguard measures on certain solar products and authorized USTR to establish an exclusion process, which USTR implemented on a "case-by-case basis.” In June 2019, USTR issued a prospective exclusion for “bifacial solar panels that absorb light and generate electricity on each side of the panel... ." USTR attempted to withdraw the exclusion in October 2019 and again in April 2020, both of which were successfully challenged at CIT, with the court ruling the withdrawal attempts violated the Administrative Procedure Act.

President Trump then issued Proclamation 10101 on Oct. 10, 2020, which again withdrew the bifacial module exclusion and reimposed safeguard duties with increases from 15% to 18% in the fourth year of the safeguard measure. CIT in November 2021 ruled that the proclamation illegally violated Section 204 of the Trade Act and set aside the entire proclamation as "null and void," and issued an injunction to CBP to cease liquidation of entries pending any appeals of the case. The government appealed CIT's ruling in January. During that appeal, CBP notified the Federal Circuit Court that it had inadvertently liquidated entries despite the injunction, including some entries that were subject to protests by Trina.