USTR Pulls Notice on Bifacial Solar Panel Duty Exemption in Bid to End Injunction
In an apparent effort to get past a Court of International Trade injunction that bars the agency from ending a safeguard duty exemption for bifacial solar panels, the Office of the U.S. Trade Representative is pulling back its original attempt to end the exemption. The agency issued notice that it is rescinding its “withdrawal notice” from October 2019 that had reimposed safeguard duties on solar bifacial panels before it was blocked by the court.
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The counterintuitive move follows a CIT decision issued May 27 that declined to dissolve the preliminary injunction as moot because USTR had not withdrawn its October notice (see 2005270025). The court had been concerned that the October notice could be put back into effect if the injunction were dissolved.
USTR issued a second notice terminating the exemption in April (see 2004160027), this time after going through the notice and comment process that was absent prior to the October termination notice (see 1910080054). That failure to seek comments in October had been the reason CIT initially issued the injunction (see 1912050063). The April notice remains in effect, though USTR is temporarily blocked from implementing it by CIT’s injunction.
“The October Withdrawal is superseded by the withdrawal determination made by the U.S. Trade Representative in April 2020 that the bifacial solar panel exclusion is undermining the objectives of the safeguard measure (the April Withdrawal),” USTR said in its new notice. “With publication of the April Withdrawal, USTR no longer seeks to take any action with regard to the bifacial exclusion based upon the findings and determination in the October Withdrawal. The October Withdrawal is rescinded.”
Though the rescission of the October notice may remove one hurdle USTR faces in lifting the injunction, that was not the only reason CIT left it in place in its May 27 decision. USTR also must address CIT’s concern that the April withdrawal was arbitrary and not justified by facts on the ground. USTR subsequently issued a memo with a more detailed justification than outlined in the April notice, though the trade court declined to consider it because it was filed only two days prior to the decision.
(Federal Register 06/12/20)