The International Trade Commission is recommending a four-year extension of Section 201 solar safeguard tariffs, with the rate of duty on solar modules and out-of-quota solar cells decreasing by 0.25% per year from its current level of 15% until it reaches 14% in the year prior to expiration in February 2026, the ITC said in a report sent to President Joe Biden, according to a notice released Dec. 13.
Section 201 Safeguards
Section 201 or “safeguard” actions are steps the President can take to provide temporary relief for an industry through the imposition of tariffs or quotas to create a more competitive environment for said industry. Section 201 actions are considered consistent with U.S. international obligations if they conform to the World Trade Organization’s Agreement on Safeguards. To enact Section 201 Safeguards, a U.S. company must first file a complaint with the International Trade Commission, which then makes a determination if the industry is injured by the importation of the goods in question. If the investigation is affirmative, the President may enact the safeguards.
The International Trade Commission will recommend an extension to Section 201 safeguard tariffs on solar cells that began in 2018, it said Nov. 24. The commission found the safeguard “continues to be necessary to prevent or remedy serious injury to the U.S. industry, and that there is evidence that the domestic industry is making a positive adjustment to import competition.” The ITC said it will submit a report by Dec. 8 to President Joe Biden, who will make a final decision on whether to extend the safeguard duties. Unless extended, the safeguard will expire Feb. 6, 2022.
The Court of International Trade again struck down the Trump administration's withdrawal of an exclusion from the Section 201 solar safeguard measures for bifacial solar panels, in its second opinion rejecting Trump administration's elimination of the exclusion as many days. Judge Gary Katzmann found that the Office of the U.S. Trade Representative's exclusion withdrawal was an "arbitrary and capricious agency decision" and represented a move with no statutory authority. Just a day earlier, Katzmann ruled against a presidential proclamation attempting to withdraw the bifacial panel exclusion, which came as a direct response to the CIT's preliminary injunction in the case over the USTR's move.
The Court of International Trade struck down the U.S. Trade Representative's attempt to withdraw an exclusion on bifacial solar panels from the Section 201 safeguard measures on solar cells in a Nov. 17 decision. Judge Gary Katzmann found that USTR lacked the statutory authority to withdraw the exclusion. The opinion is the second in as many days over the Trump administration's termination of the exclusion, following a Nov. 16 decision that struck down the presidential proclamation issued after CIT imposed a preliminary injunction on USTR's action. That Nov. 16 decision ordered refunds for tariffs paid under the safeguard on bifacial cells by the importers that filed the lawsuit.
Tariff rate quotas of 30% imposed in 2018 under a global safeguard tariff against solar cells and solar panels were legal under international trade law, a panel at the World Trade Organization announced. The Section 201 tariffs fell to 25%, then 20%, and were supposed to fall to 15% in 2021, but are at 18% instead (see 1711010040 and 2010130028).
Revisions to the tariff schedule over the past six months echoed the back and forth between the U.S. and the European Union over retaliatory tariffs under both the Airbus and digital services tax disputes. Provisions for new tariffs were added then suspended, some immediately. Other changes include updates for USMCA tariff-rate quotas, a Section 301 exclusion extension and an extension to Section 201 safeguards on large residential washers.
The day before the first USMCA Free Trade Commission meeting, U.S. Trade Representative Katherine Tai and Canada's trade minister, Mary Ng, talked about how to strengthen North American supply chains, combat forced labor and climate change, and reform the World Trade Organization.
The Tax Foundation, a nonpartisan think tank that advances right of center tax policy, issued a lengthy report how Congress might consider changing the tax code for faster growth, for income distribution, or for reducing the deficit, noting that each change requires balancing trade-offs. For instance, the Foundation says that getting rid of safeguard tariffs on washing machines and solar panels, the Section 232 tariffs on metals, making permanent the pause in Airbus tariffs, and removing and the Section 301 tariffs on $475 billion worth of Chinese imports will mean a reduction in $79.5 billion in revenue next year, though the economists at the think tank estimated that the savings would spur enough economic growth that about $7 billion of that loss would be recovered with other taxes.
U.S. trade representative nominee Katherine Tai said that despite the president's prioritizing of the domestic economy, “I don't expect, if confirmed, to be put on the back burner at all.” Tai, a veteran of the House Ways and Means Committee trade staff, faced largely friendly questioning over a more-than-three-hour hearing in the Senate Finance Committee on Feb. 25.
Importers of steel and aluminum could be facing higher antidumping duty rates, after the Court of International Trade ruled Feb. 17 that Section 232 tariffs are a form of normal import duties that should be deducted from foreign exporters' U.S. prices in AD duty rate calculations. The trade court held that, unlike Section 201 safeguard duties and AD/CV duties, which are not deducted, the national security-based Section 232 tariffs have a different purpose unrelated to remediating injury from an import surge or underpriced imports.