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CBP Enforcing Oct. 25 Revocation of Bifacial Solar Panel Exemption Despite Court Decision

Posted October 27, 2020


In a Cargo Systems Messaging Service bulletin issued yesterday, U.S. Customs and Border Protection announced changes to the tariff schedule to implement a recent proclamation amending safeguard duties on crystalline silicon photovoltaic cells, including the elimination of an exemption for bifacial solar panels.
DHS (CBP) Logo Passing Between
Besides noting the administration’s hike of the Section 201 safeguard tariff on solar cells/panels for the fourth year of the safeguard measure from 15% to 18%, effective Feb. 7, 2021, according to the guidance provided, CBP indicates that the exclusion revocation will be effective for imports, or warehouse withdrawals, for consumption, on or after October 25, 2020.

“Bifacial panels entered on or after 12:01 a.m. October 25, 2020 must also be reported under HTS 9903.45.25 for safeguard duty treatment,” the CBP guidance states.  

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Court Challenges


The Presidential Proclamation published on October 10 provided a 15-day window for any potential judicial challenge of the directive.

The U.S. Trade Representative has repeatedly attempted to remove the exemption from the Section 201 duties, but has been challenged at every turn by industry groups representing U.S. importers of solar panels. Most recently, in a 2019 decision that eventually precipitated this latest move, the U.S. Court of International Trade issued a preliminary injunction on procedural grounds to stop the order.

Respecting filings made earlier this month by importers, Judge Gary S. Katzmann, an Obama appointment and also the judge who decided both prior cases in the matter, once again ruled last week against the government (within the 15-day deadline) on grounds of administrative procedure and issued yet another preliminary injunction blocking the administration, thereby allowing the 201 bifacial exemption to stand.

“For the third time in this hotly contested litigation, the court is presented with a failure to comply with foundational principles of administrative law – in this case, to act with transparency and to provide adequate, public explanation of agency decisions,” Judge Katzmann wrote in his decision. “Consequently, the court is precluded once again from conducting a full and final review of the merits of the USTR claim that its effort to withdraw the exclusion from safeguard duties should be sustained.” 

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Bifacial Solar Panels Dutiable... For Now 


In view of the fact that the USITC’s ruling was made prior to yesterday’s CSMS message, it seems reasonable to infer that CBP has, for some reason—Department of Justice attorney Stephen Tosini contends the Court’s prior rulings concerning this matter are now “moot” in light of Trump’s Oct. 10 proclamation being implemented by the administration—elected to disregard the CIT’s decision enjoining the agency in the enforcement of its prior injunction; that is to say, the one blocking the USTR from eliminating the exemption.

Considering this situation, until such time as CBP provides additional guidance to the contrary, with revocation of the exemption in effect, importers of bifacial solar panels will now be subject to additional duties under the administration’s Section 201 safeguard measures. 

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Need More Information?

 

  • Click here to listen to an audio file of the CIT teleconference held on October 19 regarding the Invenergy Renewables LLC et al v. United States case (45 minutes).

Should you have any questions about this CBP guidance or would like to discuss ways of possibly mitigating the additional duties now payable, don’t hesitate to contact one of our knowledgeable trade experts.

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