CBP Says Bifacial Solar Panel Safeguard Exemption Ends Oct. 25, Despite Court Block
CBP issued a CSMS message Oct. 26 announcing 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 panels (see 2010130028). The announcement came despite a last-minute court order blocking the proclamation’s withdrawal of the bifacial panel exclusion. The CSMS message does not mention the court order. A CBP spokesperson said the agency "is in the process of issuing additional guidance on this subject." The Office of the U.S. Trade Representative and the Justice Department didn’t comment.
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
The Court of International Trade issued the temporary restraining order on Oct. 24. It blocks the U.S. government from making “any modification to the Harmonized Tariff Schedule of the United States that includes or reflects Proclamation 10101 … insofar as it relates to bifacial solar panels or bifacial panels.” It specifically says CBP is “temporarily restrained from enforcing or making effective Proclamation 10101 insofar as it relates to bifacial solar panels or bifacial panels or any modifications to the Harmonized Tariff Schedule of the United States reflecting or including Proclamation 10101 insofar as it relates to bifacial solar panels or bifacial panels.”
The proclamation had been set to take effect Oct. 25. CBP’s CSMS message says the bifacial panel exclusion is withdrawn as of 12:01 a.m. on Oct. 25. The message also says that, pursuant to the proclamation, duty rates for out-of-quota solar cells and modules will rise to 18% as of Feb. 7, 2021. CIT’s temporary restraining order doesn’t cite the duty increase, though plaintiffs in the underlying court challenge have said they oppose the rate increase as well.
The International Trade Commission also recently updated the Harmonized Tariff Schedule to reflect the changes provided for in the proclamation, including the elimination of the bifacial panel exemption. The change record to new Revision 24 of the tariff schedule says the removal of U.S. note 18(c)(iii)(15), where the exclusion had previously been located, took effect on Oct. 15, though the metadata for the new chapter 99 that was issued with the revision shows it was last updated Oct. 23.
Invenergy Renewables, a bifacial panel importer that had been contesting USTR’s earlier withdrawal attempts, filed an emergency motion Oct. 22 requesting the temporary restraining order, as well as an expansion of the existing preliminary injunction against USTR’s withdrawals to also cover the Oct. 10 proclamation.
“This Court has already found two prior attempts by the government to withdraw the June 2019 bifacial panel Exclusion likely unlawful, and indeed just days ago modified its December 2019 preliminary injunction (“PI”) to explicitly bar the government from entering either of those withdrawal actions into effect or from otherwise modifying the HTS until it reached a final decision on the lawfulness of such action,” Invenergy’s emergency motion said. “The government nonetheless attempts, yet again, to withdraw the Exclusion, this time via the 2020 Proclamation. In doing so, the government plainly seeks to bypass the Court’s review -- and to circumvent the Court’s PI.”
The temporary restraining order will only remain in place until Nov. 7 at the latest, which will give the court enough time to consider Invenergy’s request to amend the preliminary injunction. The court scheduled a Nov. 5 hearing to discuss Invenergy’s motion to amend.
Invenergy also seeks to file a supplemental complaint that incorporates the proclamation into its challenges of USTR’s two withdrawal notices. “Whether the government acts via Presidential Proclamation or USTR rulemaking, the core question remains the same: is the withdrawal of the Exclusion, thereby re-imposing and increasing tariffs on bifacial solar panels, lawful,” the importer said in its Oct. 21 motion to file. “It would be inefficient, and a waste of party and Court resources, to require Plaintiffs to challenge the Proclamation in a separate suit, given that the Proclamation is unlawful for many of the same reasons as USTR’s prior withdrawal actions, which have already been briefed and argued before this Court.”
Email ITTNews@warren-news.com for a copy of the temporary restraining order.