CIT Rejects Bid to Block Implementation of Solar Cell Safeguard Duties
The Court of International Trade on March 5 declined to block implementation of recently announced Section 201 safeguard duties on solar cells. The court said it would not issue an injunction against imposition of the tariff-rate quotas, which took effect Feb. 7 (see 1801240036), finding arguments from Canadian exporters and a U.S. importer in favor of the block unlikely to prevail in a final decision on the safeguards.
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The Canadians and the U.S. importer had argued the ITC’s failure to agree on remedy recommendations to the president meant that the president could not impose any remedies under Section 201. Provisions of that law require three commissioners to agree on a remedy for it to be treated as the “remedy finding of the commission.” Only two commissioners agreed on any particular recommendation for solar cells, with another two commissioners issuing their own solo opinions (see 1711010040).
CIT disagreed, finding only the ITC’s injury determination is required for the president to impose safeguard duties. Once that bar is passed, Section 201 gives the president discretion to put in place a remedy of his choosing. Courts “may not review a decision by the President that Congress has committed to the President’s discretion,” CIT said.
The Canadian exporters and U.S. importer also argued that imposition of the safeguards on Canada violated the NAFTA implementation act because the TRQs are a “quantitative restriction” that doesn’t allow imports of a quantity “representative” of imports in recent years, and that Canada should have been excluded because the ITC found that Canada did not account for a substantial share of imports or “contribute importantly” to the injury to U.S. industry.
CIT was similarly unpersuaded, noting that TRQs are not quantitative restrictions because they don’t set a hard limit on imports. The court also ruled that, while the ITC did not find substantial imports or a contribution to injury from Canada, the president has the discretion to make those determinations on his own regardless of the ITC’s recommendation. “Those findings did not bind the President,” CIT said.
(Silfab Solar v. U.S., Slip Op. 18-15, CIT # 18-00023, dated 03/05/18, Judge Stanceu)