Presidential Document2022-02906
To Continue Facilitating Positive Adjustment to Competition From Imports of Certain Crystalline Silicon Photovoltaic Cells (Whether or Not Partially or Fully Assembled Into Other Products)
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
February 9, 2022
Signed
February 4, 2022
Issuing agencies
Executive Office of the President
Full Text
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<title>Federal Register, Volume 87 Issue 27 (Wednesday, February 9, 2022)</title>
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[Federal Register Volume 87, Number 27 (Wednesday, February 9, 2022)]
[Presidential Documents]
[Pages 7357-7362]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-02906]
Presidential Documents
Federal Register / Vol. 87, No. 27 / Wednesday, February 9, 2022 /
Presidential Documents
___________________________________________________________________
Title 3--
The President
[[Page 7357]]
Proclamation 10339 of February 4, 2022
To Continue Facilitating Positive Adjustment to
Competition From Imports of Certain Crystalline Silicon
Photovoltaic Cells (Whether or Not Partially or Fully
Assembled Into Other Products)
By the President of the United States of America
A Proclamation
1. On January 23, 2018, pursuant to section 203 of the
Trade Act of 1974, as amended (the ``Trade Act'') (19
U.S.C. 2253), the President issued Proclamation 9693,
imposing a safeguard measure for a period of 4 years
that included both a tariff-rate quota (TRQ) on imports
of certain crystalline silicon photovoltaic (CSPV)
cells, not partially or fully assembled into other
products, provided for in subheading 8541.40.6025 of
the Harmonized Tariff Schedule of the United States
(HTS), and an increase in duties (safeguard tariff) on
imports of CSPV cells exceeding the TRQ and all imports
of other CSPV products, including modules provided for
in subheading 8541.40.6015 of the HTS. Proclamation
9693 exempted imports from certain designated
beneficiary countries under the Generalized System of
Preferences from the application of the safeguard
measure.
2. Clause (4) and Annex I of Proclamation 9693 directed
the United States Trade Representative (USTR) to
establish procedures for interested persons to request
the exclusion of particular products from the safeguard
measure. These provisions also authorized the USTR, in
consultation with the Secretary of Commerce and the
Secretary of Energy, to determine whether a particular
product should be excluded, and, upon publication of a
determination in the Federal Register, to modify the
HTS to implement such determination. Furthermore, they
authorized the USTR to modify or to terminate such
determinations. Effective June 13, 2019, the USTR
excluded bifacial solar panels that absorb light and
generate electricity on each side of the panel and that
consist of only bifacial solar cells that absorb light
and generate electricity on both sides of the cells
(bifacial modules). Exclusion of Particular Products
From the Solar Products Safeguard Measure, 84 FR 27684
(June 13, 2019).
3. On February 7, 2020, the United States International
Trade Commission (USITC) issued its report, pursuant to
section 204(a)(2) of the Trade Act (19 U.S.C.
2254(a)(2)), on the results of its monitoring of
developments with respect to the domestic solar
industry (USITC, Crystalline Silicon Photovoltaic
Cells, Whether or Not Partially or Fully Assembled Into
Other Products: Monitoring Developments in the Domestic
Industry, No. TA-201-075 (Monitoring)). In its report,
the USITC found that, following imposition of the
safeguard measure, prices for CSPV cells and modules
declined in a manner consistent with historical trends,
but that prices were higher than they would have been
without the safeguard measure.
4. On March 6, 2020, the USITC issued an additional
report pursuant to a request from the USTR under
section 204(a)(4) of the Trade Act (19 U.S.C.
2254(a)(4)), regarding the probable economic effect on
the domestic CSPV cell and module manufacturing
industry of modifying the safeguard measure to increase
the level of the TRQ on CSPV cells from the current
[[Page 7358]]
2.5 gigawatts (GW) to 4.0, 5.0, or 6.0 GW (USITC,
Crystalline Silicon Photovoltaic Cells, Whether or Not
Partially or Fully Assembled Into Other Products:
Advice on the Probable Economic Effect of Certain
Modifications to the Safeguard Measure, No. TA-201-075
(Modification)). In its report, the USITC advised that
increasing the TRQ would help to continue growth in
solar module production, but that expanded access to
imported cells not subject to safeguard duties would
put downward pressure on prices for cells made in the
United States.
5. After taking into account the information provided
in the USITC's reports, and after receiving a petition
from a majority of the representatives of the domestic
industry with respect to each of the following
modifications, and under section 204(b)(1)(B) of the
Trade Act (19 U.S.C. 2254(b)(1)(B)), the President
issued Proclamation 10101 on October 10, 2020, in which
he determined that the domestic industry has begun to
make a positive adjustment to import competition, as
shown by the increases in domestic module production
capacity, production, and market share. Proclamation
10101 also:
(a) revoked the exclusion of bifacial modules from
application of the safeguard measure on the basis that
it had impaired and was likely to continue to impair
the effectiveness of the safeguard action; and
(b) adjusted the safeguard tariff for the fourth
year of the safeguard measure from 15 percent to 18
percent on the basis that the exclusion of bifacial
modules from application of the safeguard tariffs had
impaired the remedial effectiveness of the 4-year
action proclaimed in Proclamation 9693, and to achieve
the full remedial effect envisaged in that action.
6. On November 16, 2021, the United States Court of
International Trade held in Solar Energy Industries
Association et al. v. United States (SEIA) that the
President acted outside of his statutory authority in
issuing Proclamation 10101, and enjoined the Government
from enforcing that proclamation. This injunction had
the effect of reinstating the exclusion of bifacial
modules from the safeguard tariffs and lowering the
fourth year safeguard tariff to 15 percent. On January
14, 2022, the Government filed a notice of appeal of
SEIA to the United States Court of Appeals for the
Federal Circuit.
7. On December 8, 2021, in response to petitions by
representatives of the domestic industry, the USITC
issued its determination and report pursuant to section
204(c) of the Trade Act (19 U.S.C. 2254(c)), finding
that safeguard action continues to be necessary to
prevent or remedy the serious injury to the domestic
industry, and that there is evidence that the domestic
industry is making a positive adjustment to import
competition (USITC, Crystalline Silicon Photovoltaic
Cells, Whether or Not Partially or Fully Assembled Into
Other Products, Investigation No. TA-201-75
(Extension)).
8. Section 203(e)(1)(B) of the Trade Act (19 U.S.C.
2253(e)(1)(B)) authorizes the President, after
receiving an affirmative determination from the USITC
pursuant to section 204(c) of the Trade Act (19 U.S.C.
2254(c)), to extend the effective period of any action
taken under section 203 of the Trade Act if the
President determines that the action continues to be
necessary to prevent or remedy the serious injury, and
there is evidence that the domestic industry is making
a positive adjustment to import competition.
9. After taking into account the information provided
in the USITC's report and the information received from
the public through the process published in the Federal
Register on September 30, 2021 (86 FR 54279), pursuant
to section 203(e)(1)(B) of the Trade Act (19 U.S.C.
2253(e)(1)(B)), I have determined that the safeguard
action on imports of CSPV cells, whether or not
partially or fully assembled into other products,
continues to be necessary to prevent or remedy the
serious injury to the domestic industry, and that there
is evidence that the domestic industry is making a
positive adjustment to import competition. I have
further determined to extend the safeguard measure
proclaimed in Proclamation 9693, as modified by
Proclamation 10101 (to the extent permitted by law), as
follows:
[[Page 7359]]
(a) continuation of the TRQ on imports of solar
cells not partially or fully assembled into other
products described in paragraph 1 of this proclamation
for an additional period of 4 years, with unchanging
within-quota quantities of 5.0 GW for each year and
annual reductions in the rates of duty applicable to
goods entered in excess of those quantities of cells in
the fifth, sixth, seventh, and eighth years, as
described in Annex I to this proclamation;
(b) continuation of the increase in duties on
imports of modules described in paragraph 1 of this
proclamation for an additional period of 4 years, with
annual reductions in the fifth, sixth, seventh, and
eighth years, as described in Annex I to this
proclamation; and
(c) exclusion of bifacial panels from the extension
of duties proclaimed in this paragraph.
10. I have determined that an extension of this
safeguard measure will provide greater economic and
social benefits than costs.
11. As provided in Proclamation 9693, this safeguard
measure shall continue to apply to imports from all
countries, except as provided in clause (4) of this
proclamation and paragraph 10 of Proclamation 9693.
12. Section 204(a)(2) of the Trade Act (19 U.S.C.
2254(a)(2)) requires the USITC to issue a report on its
monitoring of developments with respect to the domestic
industry, including the progress and specific efforts
made by workers and firms in the domestic industry to
make a positive adjustment to import competition, no
later than the midpoint of the period of the extension.
After I receive that report, I will evaluate whether to
reduce, modify, or terminate the safeguard measure
pursuant to section 204(b)(1) of the Trade Act (19
U.S.C. 2254(b)(1)).
13. As proclaimed in Proclamation 9693, the in-quota
quantity in each year of the TRQ described in paragraph
9 of this proclamation shall be allocated among all
countries except those countries the products of which
are excluded from such TRQ pursuant to clause (4) of
this proclamation or paragraph 10 of Proclamation 9693.
14. In order to address certain technical errors in the
HTS, the HTS is modified as set forth in Annex II to
this proclamation.
15. Section 604 of the Trade Act (19 U.S.C. 2483)
authorizes the President to embody in the HTS the
substance of the relevant provisions of that Act, and
of other acts affecting import treatment, and actions
thereunder, including the removal, modification,
continuance, or imposition of any rate of duty or other
import restriction.
NOW, THEREFORE, I, JOSEPH R. BIDEN JR., President of
the United States of America, by the authority vested
in me by the Constitution and the laws of the United
States, including sections 203, 204, and 604 of the
Trade Act, do proclaim that:
(1) In order to extend the measure applicable to
imports of CSPV cells, not partially or fully assembled
into other products, described in paragraph 1 of this
proclamation, subchapter III of chapter 99 of the HTS
is modified as set forth in Annex I to this
proclamation, subject to clauses (3) and (4) below. Any
merchandise subject to the safeguard measure that is
admitted into United States foreign trade zones on or
after 12:01 a.m. eastern standard time on February 7,
2022, must be admitted as ``privileged foreign status''
as defined in 19 CFR 146.41, and will be subject upon
entry for consumption to any tariffs or quantitative
restrictions related to the classification under the
applicable HTS subheading.
(2) Except as provided in clause (3) below, imports
of CSPV products of World Trade Organization Member
countries, as listed in subdivision (b) of Note 18 to
subchapter III of chapter 99 of the HTS (Note 18),
shall continue to be excluded from the safeguard
measure extended by this proclamation, and such imports
shall not be counted toward the TRQ limits that trigger
the over-quota rates of duties.
[[Page 7360]]
(3) If, after the extension proclaimed herein is in
effect, the USTR determines that:
(a) the share of total imports of a country listed in subdivision (b) of
Note 18 exceeds 3 percent;
(b) imports of the product from all listed countries with less than 3
percent import share collectively account for more than 9 percent of total
imports of the product; or
(c) a country listed in subdivision (b) of Note 18 is no longer a
developing country for purposes of this proclamation;
the USTR is authorized, upon publication of a notice in
the Federal Register, to revise subdivision (b) of Note
18 to remove the relevant country from the list or
suspend operation of that subdivision, as appropriate.
(4) I instruct the USTR to enter into negotiations
pursuant to section 203(f) of the Trade Act (19 U.S.C.
2253(f)) with Canada and Mexico. In the event that the
USTR concludes an agreement that the USTR, in
consultation with the Secretary of Commerce and the
Secretary of Energy, determines will ensure that
imports of Canada or Mexico do not undermine the
effectiveness of the action extended through clause (1)
of this proclamation, the USTR is authorized, upon
publication of a notice in the Federal Register, to
revise Note 18 to suspend application of that
subdivision, in whole or in part, as appropriate, with
respect to imports of Canada or Mexico. If the USTR
subsequently determines, in consultation with the
Secretary of Commerce and the Secretary of Energy, that
such an agreement is not effective, the USTR is
authorized, pursuant to section 203(f) of the Trade
Act, by publication of a notice in the Federal
Register, to revise Note 18 to terminate any previous
suspension of the action with respect to imports of
Canada or Mexico.
(5) One year after the termination of the safeguard
measure established in this proclamation, the U.S. note
and tariff provisions established in Annex I to this
proclamation shall be deleted from the HTS.
(6) Any provision of previous proclamations and
Executive Orders that is inconsistent with the actions
taken in this proclamation is superseded to the extent
of such inconsistency.
IN WITNESS WHEREOF, I have hereunto set my hand this
fourth day of February, in the year of our Lord two
thousand twenty-two, and of the Independence of the
United States of America the two hundred and forty-
sixth.
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(Presidential Sig.)
Billing code 3395-F2-P
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[FR Doc. 2022-02906
Filed 2-8-22; 8:45 am]
Billing code 7020-02-C
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</html>Indexed from Federal Register on February 9, 2022.
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