The U.S. Court of International Trade on Friday extended a temporary block on the Trump administration’s bid to expand Section 201 tariffs to include two-sided solar panels.
The extension means imported bifacial solar panels can continue to enter the United States tariff-free, despite numerous attempts by the Trump administration to charge duties on those products.
The latest intrigue in the back-and-forth on Section 201 tariffs concerns a presidential proclamation released in October. That proclamation extended Section 201 tariffs to bifacial solar products and increased the level of the tariffs from 15 to 18 percent in their final year while also opening the door to a possible tariff extension.
Solar companies including Invenergy Renewables and Clearway Energy argued that the proclamation’s treatment of bifacial solar was unlawful because a separate proceeding, which challenges attempts by the U.S. Trade Representative to revoke the bifacial tariff exemption, remains ongoing in the U.S. Court of International Trade. That court placed an injunction on bifacial tariffs while the case is decided.
Though Judge Gary Katzmann has not expanded that injunction to encompass the presidential proclamation, the temporary restraining order extended on Friday keeps the administration from implementing tariffs for bifacial products.
The USTR originally excluded bifacial solar products from Section 201 tariffs in June 2019. The agency revoked the exemption only a few months later, in October of that year.
Newly released documents show industry pressure to expand tariffs
Documents obtained by Greentech Media through a Freedom of Information Act request suggest that the USTR faced pressure to update its decision from a subset of the solar industry, some lawmakers on Capitol Hill and the White House.
The day after the publication of the exclusion in the Federal Register, Kathleen Weiss, First Solar’s vice president of federal government affairs, emailed then-Deputy U.S. Trade Representative Jeffrey Gerrish with concerns about the exclusion, the documents show.
“Our decision to accelerate the timing of an [additional] U.S. facility was directly tied to First Solar’s view of a stable U.S. market with fair pricing, predicated on a level playing field as a result of the 201 tariffs,” Weiss wrote.
First Solar announced plans to expand its U.S. manufacturing in 2018 and has been among the biggest beneficiaries of the tariffs. That's because First Solar's thin-film technology, even when manufactured outside the U.S., does not fall under the tariffs' purview.
On June 17, four days after the exclusion’s publication, an adviser to Gerrish noted in an email to a colleague that the office was “now getting pressure from across the street and other agencies” related to the exclusion. The USTR is located in the Winder Building, which sits across 17th Street NW from the Eisenhower Executive Office Building, where most White House staff have their offices.
Records show the USTR also scheduled meetings with Sen. Rob Portman and Sen. Sherrod Brown, both of Ohio, to discuss the exclusion.
Republican senators, including Thom Tillis, Lindsey Graham and Cory Gardner, sent a letter to the USTR to express support for the exclusion after it was put in place.
In addition to dividing lawmakers, the bifacial exclusion has split the solar industry. While U.S. manufacturers such as First Solar and Hanwha Q Cells support it and met with the USTR after it announced the exclusion, the industry’s largest trade group, the Solar Energy Industries Association, does not back the bifacial exclusion.
SEIA is also a petitioner in the lawsuit filed with the U.S. Court of International Trade. That court is still deciding whether it will extend the injunction to cover the presidential proclamation, as SEIA and others have requested. The temporary restraining order can only be extended once, suggesting Judge Katzmann will rule on the injunction in the next two weeks.
