On November 16, 2021, the U.S. Court of International Trade (CIT) reinstated the exclusion of bifacial solar modules from the Section 201 tariffs.[1] As the name suggests, bifacial modules can produce solar power from both sides of the panel, and while they make up a modest percentage of the overall market, they are becoming more popular with developers due to their efficiency. In June 2019, former President Trump decided to exclude bifacial modules from import tariffs on solar panels due to their limited role in the market. However, in October 2020, Trump reversed this decision in Proclamation 10101, subjecting bifacial panels to the same tariff as other solar panels. The proclamation also raised the Section 201 tariff rate on solar panels from 15% to 18%. The Solar Energy Industries Association (SEIA) and three solar developers subsequently filed a lawsuit, which argued that President Trump’s actions were against trade laws. In its decision, the CIT agreed with the solar groups, writing that the president had acted “outside of the President’s delegated authority” in Proclamation 10101.[2] The court stated that the proclamation was a “misconstruction” of Section 204 of the Trade Act of 1974, which allows a sitting president to lift tariffs, but not enact new restrictions. In addition to the exclusion, the CIT reduced the Section 201 tariff rate back down to 15%. Both actions will result in refunds of the tariffs collected under Proclamation 10101.

[1] https://www.cit.uscourts.gov/sites/cit/files/21-154.pdf

[2] Under the Constitution, Congress has the legal authority to set tariffs. However, in the last century, Congress has shifted some authority to the president, especially during wartime.