Proposed Rule2022-14241
Procedures Covering Suspension of Liquidation, Duties and Estimated Duties in Accord With Presidential Proclamation 10414
Primary source
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Published
July 1, 2022
Issuing agencies
Commerce DepartmentInternational Trade Administration
Abstract
On June 6, 2022, the President signed Presidential Proclamation 10414 (Proclamation). The Proclamation declares an emergency to exist and states that immediate action is needed to ensure access to a sufficient supply of solar cells and modules to assist in meeting the United States' electricity generation needs. Accordingly, the Proclamation authorizes the Secretary of Commerce (Secretary) to exercise authority under section 318(a) of the Tariff Act of 1930, as amended (the Act), to extend during the course of such emergency the time to perform any act. The Proclamation also authorizes the Secretary to allow the importation of certain solar cells and modules from certain Southeast Asian countries free of the collection of duties and estimated duties under the antidumping and countervailing duty laws until 24 months after the date of the Proclamation, or until the emergency is declared terminated, whichever occurs first. In accordance with the Proclamation and the authority granted to the Department of Commerce (Commerce), Commerce is issuing a proposed rule to postpone and waive the application of certain regulations, if otherwise applicable, to solar cells and modules, exported from the identified Southeast Asian countries, that are subject to certain circumvention inquiries currently before Commerce. This proposed rule would provide that, in the event of an affirmative preliminary or final determination in the circumvention inquiries, Commerce would not instruct U.S. Customs and Border Protection (CBP) to suspend liquidation of entries of these cells and modules, collect cash deposits on those entries, or apply antidumping or countervailing duties to those entries, so long as the entries of the cells or modules were entered, or withdrawn from warehouse, for consumption before June 6, 2024 or before the date the emergency has terminated, whichever occurs first (in either case, the Date of Termination).
Full Text
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<title>Federal Register, Volume 87 Issue 126 (Friday, July 1, 2022)</title>
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[Federal Register Volume 87, Number 126 (Friday, July 1, 2022)]
[Proposed Rules]
[Pages 39426-39432]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-14241]
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DEPARTMENT OF COMMERCE
International Trade Administration
19 CFR Part 362
[Docket No. 220629-0144]
RIN 0625-AB21
Procedures Covering Suspension of Liquidation, Duties and
Estimated Duties in Accord With Presidential Proclamation 10414
AGENCY: Enforcement and Compliance, International Trade Administration,
Department of Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: On June 6, 2022, the President signed Presidential
Proclamation 10414 (Proclamation). The Proclamation declares an
emergency to exist and states that immediate action is needed to ensure
access to a sufficient supply of solar cells and modules to assist in
meeting the United States' electricity generation needs. Accordingly,
the Proclamation authorizes the Secretary of Commerce (Secretary) to
exercise authority under section 318(a) of the Tariff Act of 1930, as
amended (the Act), to extend during the course of such emergency the
time to perform any act. The Proclamation also authorizes the Secretary
to allow the importation of certain solar cells and modules from
certain Southeast Asian countries free of the collection of duties and
estimated duties under the antidumping and countervailing duty laws
until 24 months after the date of the Proclamation, or until the
emergency is declared terminated, whichever occurs first. In accordance
with the Proclamation and the authority granted to the Department of
Commerce (Commerce), Commerce is issuing a proposed rule to postpone
and waive the application of certain regulations, if otherwise
applicable, to solar cells and modules, exported from the identified
Southeast Asian countries, that are subject to certain circumvention
inquiries currently before Commerce. This proposed rule would provide
that, in the event of an affirmative preliminary or final determination
in the circumvention inquiries, Commerce would not instruct U.S.
Customs and Border Protection (CBP) to suspend liquidation of entries
of these cells and modules, collect cash deposits on those entries, or
apply antidumping or countervailing duties to those entries, so long as
the entries of the cells or modules were entered, or withdrawn from
warehouse, for consumption before June 6, 2024 or before the date the
emergency has terminated, whichever occurs first (in either case, the
Date of Termination).
DATES: Written comments must be received by August 1, 2022.
ADDRESSES: Submit comments through the Federal eRulemaking Portal at
<a href="http://www.Regulations.gov">http://www.Regulations.gov</a>, Docket No. ITA-2022-0006. Comments may also
be submitted by mail or hand delivery/courier, addressed to Lisa W.
Wang, Assistant Secretary for Enforcement and Compliance, Room 1870,
Department of Commerce, 1401 Constitution Ave. NW, Washington, DC
20230.
Commerce will consider all comments received before the close of
the comment period. All comments responding to this document will be a
matter of public record and will generally be available on the Federal
eRulemaking Portal at <a href="http://www.Regulations.gov">http://www.Regulations.gov</a>. Commerce will not
accept comments accompanied by a request that part or all of the
material be treated confidentially because of its business proprietary
nature or for any other reason. Therefore, do not submit confidential
business information or otherwise sensitive or protected information.
Any questions concerning the process for submitting comments should
be submitted to Enforcement & Compliance (E&C) Communications office at
(202) 482-0063 or <a href="/cdn-cgi/l/email-protection#420701010d0f0f110236302326276c252d34"><span class="__cf_email__" data-cfemail="1f5a5c5c5052524c5f6b6d7e7b7a31787069">[email protected]</span></a>.
FOR FURTHER INFORMATION CONTACT: Dana Moreland, Enforcement &
Compliance (E&C) Communications office at (202) 482-0063 or
<a href="/cdn-cgi/l/email-protection#ffbabcbcb0b2b2acbf8b8d9e9b9ad1989089"><span class="__cf_email__" data-cfemail="a7e2e4e4e8eaeaf4e7d3d5c6c3c289c0c8d1">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Presidential Proclamation 10414
On June 6, 2022, President Joseph R. Biden signed Proclamation
10414, ``Declaration of Emergency and Authorization for Temporary
Extensions of Time and Duty-Free Importation of Solar Cells and Modules
from Southeast Asia'' (87 FR 35067) (the Proclamation). As part of the
Proclamation, the President declared an emergency to exist for purposes
of section 318(a) of the Act (19 U.S.C. 1318(a)) and made that
section's authority available to the Secretary according to the
section's terms. The Proclamation directs the Secretary to ``consider
taking appropriate action under section 1318(a) of title 19, United
States Code, to permit, until 24 months after the date of this
proclamation or until the emergency declared herein has terminated,
whichever occurs first, under such regulations and under such
conditions as the Secretary may prescribe, the importation, free of the
collection of duties and estimated duties, if applicable, under
sections'' 701, 731, 751 and 781 of the Act (19 U.S.C. 1671, 1673,
1675, 1677j) with respect to certain solar cells and modules exported
from the Kingdom of Cambodia (Cambodia), Malaysia, the Kingdom of
Thailand (Thailand), and the Socialist Republic of Vietnam (Vietnam),
and that are not already subject to an antidumping or countervailing
duty order as of the date of the Proclamation. Further, the
Proclamation directs the Secretary to consider taking action to
``temporarily extend during the course of the emergency the time
therein prescribed for the performance of any act related to such
imports.'' \1\
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\1\ Section 318(a) of the Act (19 U.S.C. 1318(a)) gives the
Secretary of the Treasury authority, on a temporary basis, to take
certain actions to respond immediately where the President declares
the existence of an emergency. This authority, insofar as it
encompasses antidumping and countervailing duties, was delegated to
the Secretary of Commerce in 1979, to be exercised in consultation
with the Secretary of Treasury. Section 5(a)(1)(e) of the Reorg.
Plan No. 3 of 1979. Consistent with the Reorganization Plan, we have
consulted with the Department of Treasury. Consistent with the
Proclamation, we have consulted with the Department of Homeland
Security.
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As the Proclamation states, electricity is an essential part of
modern life that powers homes, business, and industry. It is critical
to the function of hospitals, schools, public transportation, and the
[[Page 39427]]
defense industrial base. It is key to the country's infrastructure, as
well as to national security and defense. A robust and reliable
electric power system is therefore a basic human necessity--vital to
the function and sustainability of major sectors of the economy.
Currently, the United States is faced with threats to its ability
to generate sufficient electricity, including energy market disruptions
caused by Russia's invasion of Ukraine and extreme weather events
exacerbated by climate change. For example, in parts of the country,
drought conditions coupled with heatwaves are simultaneously causing
projected electricity supply shortfalls and record electricity demand.
Utilities and grid operators must engage in planning at this time to
build adequate capacity to address expected demand, including in the
face of these threats and others.
Solar energy is among the fastest-growing sources of new electric
generation in the United States and is increasingly relied upon by
utilities and grid operators to ensure sufficient resources and
maintain reliable service. In fact, additions of solar capacity and
batteries were expected to account for over half of new electric sector
capacity in 2022 and 2023.
The Proclamation states that ``[i]n recent years, the vast majority
of solar modules installed in the United States were imported, with
those from Southeast Asia making up approximately three-quarters of
imported modules in 2020.'' Against this backdrop, the Proclamation
states that U.S. entities have been unable to import solar modules
recently in sufficient quantities to achieve energy goals. Across the
country, solar projects are being postponed or canceled, and an
insufficient supply of solar modules jeopardizes planned capacity
additions, which in turn threatens the availability of sufficient
electricity generation to meet customer demands.
Moreover, electricity produced using solar energy is critical to
reducing the United States' dependence on electricity generated through
burning fossil fuels, which drives climate change, a recognized threat
to the United States' national security. If U.S. entities cannot import
sufficient quantities of solar materials for the foreseeable future,
the United States will be unable to ensure sufficient electricity grid
resources and meet climate and clean energy goals.
In light of these concerns, the Proclamation seeks to ensure that
the United States has access to a sufficient supply of certain solar
cells and modules to help meet the nation's electricity needs while
efforts to expand domestic solar manufacturing capacity continue.
This proposed rule is intended to provide relief from the emergency
declared in, and in accordance with, the Proclamation.
Existing Procedures for Suspension of Liquidation and Cash Deposits in
Circumvention Inquiries
Commerce's regulations governing circumvention inquiries can be
found at 19 CFR 351.226. Section 351.226(l)(1) provides that, when
Commerce publishes a notice of initiation of a circumvention inquiry,
Commerce will notify CBP of the initiation and will direct CBP to
continue to suspend liquidation of entries of products subject to the
circumvention inquiry that were already subject to suspension of
liquidation, and to apply the cash deposit rate that would be
applicable if the product were determined to be covered by the scope of
the order (i.e., estimated duties). Section 351.226(l)(2) provides
that, if Commerce conducts the circumvention inquiry and subsequently
issues an affirmative preliminary circumvention determination, Commerce
will direct CBP to (i) continue suspension of liquidation of previously
suspended entries and apply the applicable cash deposit rate; (ii)
begin the suspension of liquidation of unliquidated entries not yet
suspended that are entered, or withdrawn from warehouse, for
consumption on or after the date of publication of the notice of
initiation of the inquiry, and require the collection of cash deposits
of estimated duties for those entries; and (iii) potentially apply its
affirmative determination to unliquidated entries entered, or withdrawn
from warehouse, for consumption prior to the date of publication of the
notice of initiation of the inquiry based on certain allegations and
information. Section 351.226(l)(3) provides similar directions if
Commerce subsequently issues an affirmative final circumvention
determination.
New Procedures in Accord With Presidential Proclamation 10414
Commerce is currently conducting circumvention inquiries to
determine whether imports of crystalline silicon photovoltaic cells,
whether or not assembled into modules, which are completed in Cambodia,
Malaysia, Thailand, or Vietnam using parts and components manufactured
in the People's Republic of China (China) and exported to the United
States, are circumventing the antidumping and countervailing duty
orders on solar cells and modules from China.\2\ To respond to the
emergency declared in the Proclamation, and pursuant to the
Proclamation and section 318(a) of the Act, in this proposed rule,
Commerce would add Part 362 to extend the time for, and waive, the
actions provided for in 19 CFR 351.226(l)(1), (2), and (3), if
applicable, in the ongoing circumvention inquiries covering SA-
Completed Cells and Modules \3\ that are not already subject to an
antidumping or countervailing duty order as of June 6, 2022 (the date
the Proclamation was signed). Furthermore, this proposed rule provides
that, in the event of an affirmative final determination of
circumvention, no resulting antidumping or countervailing duties would
be applied to SA-Completed Cells and Modules before the Date of
Termination.
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\2\ See Crystalline Silicon Photovoltaic Cells, Whether or Not
Assembled Into Modules, From the People's Republic of China:
Initiation of Circumvention Inquiry on the Antidumping Duty and
Countervailing Duty Orders, 87 FR 19071 (April 1, 2022)
(Circumvention Inquiries Initiation).
\3\ Southeast Asian-Completed Cells and Modules (SA-Completed
Cells and Modules) are the products subject to certain circumvention
inquiries currently before Commerce. See Circumvention Inquiries
Initiation, 87 FR at 19071. Specifically, SA-Completed Cells and
Modules are crystalline silicon photovoltaic cells, whether or not
assembled into modules (solar cells and modules), which are
completed in Cambodia, Malaysia, Thailand, or Vietnam using certain
parts and components from China, and subsequently exported from
Cambodia, Malaysia, Thailand or Vietnam to the United States. In
addition to SA-Completed Cells and Modules, there may be other cells
and modules using Chinese solar cells completed in and exported from
those four countries and already subject to certain antidumping and
countervailing duty orders covering Chinese merchandise because, for
purposes of those orders, they are considered to be of Chinese
origin. See Crystalline Silicon Photovoltaic Cells, Whether or Not
Assembled Into Modules from the People's Republic of China: Amended
Final Determination of Sales at Less Than Fair Value, and
Antidumping Duty Order, 77 FR 73018 (December 7, 2012); Crystalline
Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules,
from the People's Republic of China: Countervailing Duty Order, 77
FR 73017 (December 7, 2012) (collectively, Chinese Solar Orders).
There likewise may be cells and modules completed in Cambodia,
Malaysia, Thailand, and Vietnam using Taiwanese solar cells that are
already subject to a certain antidumping duty order covering
Taiwanese merchandise because, for purpose of that order, they are
considered to be of Taiwanese origin. See Certain Crystalline
Silicon Photovoltaic Products from Taiwan: Antidumping Duty Order,
80 FR 8596 (February 18, 2015) (this Taiwan solar order, along with
the Chinese Solar Orders are herein collectively referred to as,
Certain Solar Orders). Such cells and modules are not considered SA-
Completed Cells and Modules for purposes of this proposed rule.
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As explained above, this proposed rule would apply only to SA-
Completed Cells and Modules. This proposed rule would not apply to
solar cells and modules that are manufactured and exported from China
and are subject to
[[Page 39428]]
the existing antidumping or countervailing duty orders on solar cells
and modules from China (A-570-979; C-570-980). Nor would it apply to
solar cells and modules that are exported from Cambodia, Malaysia,
Thailand, and Vietnam that are already subject to the Chinese Solar
Orders.\4\ In addition, this proposed rule would not apply to certain
solar products that are manufactured and exported from Taiwan and are
subject to the existing antidumping duty order on solar products from
Taiwan (A-583-853), as well as certain solar products that are exported
from Cambodia, Malaysia, Thailand, and Vietnam but are (already)
subject to the order covering Taiwanese merchandise (i.e., the country
of origin is considered Taiwan).
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\4\ Commerce has determined under the Chinese Solar Orders that
the country-of-origin is determined by where the solar cell is
manufactured. If solar cells from China are sent to Cambodia,
Malaysia, Thailand and Vietnam, and then incorporated into solar
modules and panels, the solar products incorporating such cells and
exported from those four countries remain subject to the Chinese
Solar Orders.
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Commerce would continue to use the certification requirements in
place as an enforcement tool to monitor imports of solar cells and
modules that are either Chinese or Taiwanese in origin and covered by
the current antidumping and countervailing duty orders. Consistent with
the Proclamation, the extension and waiver described in this proposed
rule would apply only to entries of SA-Completed Cells and Modules that
were entered into the United States, or withdrawn from warehouse, for
consumption before the Date of Termination.
Under this proposed rule, the following would apply:
(1) Where, in connection with initiation of the circumvention
inquiries, pursuant to Sec. 351.226(l)(1), Commerce has already
directed CBP to continue suspension of liquidation of entries that were
already subject to suspension and to collect cash deposits, Commerce
would issue instructions to CBP to discontinue the suspension of
liquidation and collection of cash deposits of estimated antidumping
and countervailing duties for those entries on the basis of the
circumvention inquiries. If, at the time Commerce issues instructions
to CBP, the entries are suspended only for purposes of the
circumvention inquiries, Commerce would direct CBP to liquidate those
entries without regard to antidumping and countervailing duties and
refund those cash deposits collected pursuant to the circumvention
inquiries.
(2) If, before the Date of Termination, Commerce issues an
affirmative preliminary determination in a circumvention inquiry
covering SA-Completed Cells and Modules, Commerce would not, at that
time, direct CBP to suspend liquidation and collect cash deposits of
estimated antidumping and countervailing duties for entries of that
merchandise entered, or withdrawn from warehouse, for consumption
before, on, or after the date of initiation of that circumvention
inquiry, notwithstanding Sec. 351.226(l)(2).
(3) If, before the Date of Termination, Commerce issues an
affirmative final determination in a circumvention inquiry covering SA-
Completed Cells and Modules, Commerce would not, at that time, direct
CBP to suspend liquidation and collect cash deposits of estimated
antidumping and countervailing duties for entries of that merchandise
entered, or withdrawn from warehouse, for consumption before, on, or
after the date of initiation of that circumvention inquiry and before
the Date of Termination, notwithstanding Sec. 351.226(l)(3).
(4) If, before or after the Date of Termination, Commerce issues an
affirmative final determination in a circumvention inquiry covering SA-
Completed Cells and Modules:
a. Commerce would direct CBP to liquidate without regard to
antidumping or countervailing duties entries of those SA-Completed
Cells and Modules entered, or withdrawn from warehouse, for consumption
before the Date of Termination if liquidation instructions were issued
to CBP pursuant to a different segment of the proceeding in accordance
with section 751 of the Act.
b. Commerce would direct CBP to commence suspension of liquidation
of the SA-Completed Cells and Modules, as applicable, and collect cash
deposits of estimated antidumping and countervailing duties at the
applicable rate only on SA-Completed Cells and Modules entered, or
withdrawn from warehouse, for consumption, on or after the Date of
Termination.
Consistent with the authority granted by the Proclamation, Commerce
notes that these proposed actions would ensure that duties or estimated
duties would not be collected on entries of SA-Completed Cells and
Modules that entered the United States both before and after the
signing of the Proclamation, so long as they enter, or are withdrawn
from warehouse, for consumption, before the Date of Termination. This
treatment of pre-Proclamation entries is merited because the President
has determined that an emergency exists that affects both current and
potential future energy projects dependent on solar module imports.
Consistent with the purpose of the Proclamation, entities that use SA-
Completed Cells and Modules should not be financially restricted from
investing in near-term or future solar capacity additions because they
had to pay cash deposits on merchandise that entered the United States
just a few months, or even days, before the signing of the
Proclamation. Indeed, there may be ongoing projects that would use some
modules imported before the Proclamation's signing and other modules
imported afterwards. It would create market confusion and dissuade
investment in future solar projects if this proposed rule were to treat
such entries differently. An intent of the Proclamation is to help
increase the supply of United States solar energy for electricity
generation purposes, and the applicability of this proposed rule to
imports of SA-Completed Cells and Modules that entered the United
States both before and after the signing of the Proclamation furthers
that goal.
Furthermore, under section 781 of the Act and Sec. 351.226, for
the circumvention inquiries at issue, both the preliminary and final
determinations will post-date the signing of the Proclamation. In the
normal course under Commerce's procedures, there would be no collection
of duties or estimated duties until those actions take place. Indeed,
for now, so long as they were not already suspended for other reasons,
entries of SA-Completed Cells and Modules following the issuance of the
Circumvention Inquiries Initiation are still not subject to suspension
of liquidation and antidumping and countervailing duty cash deposit
requirements. Under Commerce's regulations and normal proceedings, a
change to the status of those entries would occur only if Commerce made
an affirmative finding in a preliminary or final circumvention
determination.
Accordingly, in keeping with Commerce's equal treatment of
merchandise covered by a circumvention inquiry, if Commerce makes a
determination or determinations of circumvention after the signing of
the Proclamation, then the postponement of these actions should be
consistent across all entries of SA-Completed Cells and Modules, as
long as those entries are before the Date of Termination. To do
otherwise would be inconsistent with both the purpose of the
Proclamation and the normal application of circumvention determinations
to entries that precede a preliminary or final circumvention
[[Page 39429]]
determination under 19 CFR 351.226(l). Merchandise that is otherwise
considered the same under Commerce's circumvention laws and regulations
is treated the same.
Commerce is invoking all authorities provided for in the
Proclamation, pursuant to section 318(a) of the Act, as well as
Commerce's authority to issue regulations under section 781 of the Act
(19 U.S.C. 1677j), to take these proposed steps to respond to the
emergency declared in the Proclamation. Section 351.226(l) governs when
merchandise found to be circumventing an antidumping or countervailing
duty order should be subject to suspension of liquidation and cash
deposit requirements. Thus, in light of the emergency, Commerce is
proposing to extend the time period established by regulation for
Commerce to instruct CBP to begin suspension of liquidation and cash
deposit requirements and the date on which suspension of liquidation
and cash deposit requirements will begin, including for entries of SA-
Completed Cells and Modules that Commerce previously instructed CBP to
continue to suspend pursuant to the initiation of the circumvention
inquiries.\5\
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\5\ The implementation of this proposed rule in no way would
affect CBP's ability to act pursuant to its own independent
authorities, including its ability to determine if the declared
country of origin of merchandise upon importation has been
misidentified and suspend liquidation and collect deposits of
estimated AD/CVD duties on entries subject to the Certain Solar
Orders.
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In addition, Commerce is proposing to permit, for the duration
provided for in the Proclamation, the importation, free of the
collection of antidumping or countervailing duties and estimated
duties, if applicable, of SA-Completed Cells and Modules that are not
already subject to an existing antidumping or countervailing duty order
as of the date the Proclamation was signed, i.e., June 6, 2022. Cash
deposit requirements would not apply to SA-Completed Cells and Modules
that were entered, or withdrawn from warehouse, for consumption before
the Date of Termination.
Finally, it should be noted that Commerce has determined that,
although there is an emergency declared by the Proclamation, the
existing regulations at 19 CFR part 358 (``Supplies for Use in
Emergency Relief Work''), which set out procedures for the duty-free
importation of certain merchandise to be used in emergency relief work,
would not apply to the solar cells and modules that are the subject of
this proposed rule. This is because none of the merchandise addressed
by the Proclamation was subject to an existing antidumping or
countervailing duty order as of the date the Proclamation was signed.
By its terms, part 358 applies only to merchandise already subject to
an antidumping or countervailing duty order. Instead, this proposed
rule, rather than part 358, would temporarily govern the importation
free of collection of certain duties and estimated duties, if
applicable, for SA-Completed Cells and Modules, which were not subject
to an existing antidumping or countervailing duty order as of the date
the Proclamation was signed. Importers of merchandise subject to this
proposed rule would not need to comply with the requirements of part
358, including the requirement for the submission of prior written
requests.
As set forth in the Proclamation and described in greater detail
above, immediate action is needed. Drought conditions coupled with
heatwaves are simultaneously causing projected electricity supply
shortfalls and record electricity demand. The United States has been
unable to import solar modules in sufficient quantities to achieve our
climate and clean energy goals, help combat rising energy prices, and,
most immediately, ensure electricity grid resource adequacy. As
explained above, imports of solar modules from Southeast Asia account
for approximately three-quarters of all solar module imports, so it is
vital that we address this issue. Roughly half of solar deployment that
had been anticipated over the next year is currently in jeopardy, with
solar projects being postponed or canceled.
Therefore, with the President having proclaimed that immediate
action is needed to ensure that the United States has access to a
sufficient supply of solar cells and modules, as authorized in the
Proclamation, Commerce would, if applicable, do the following: (1)
issue instructions to CBP to cease suspending liquidation of entries
already suspended pursuant to the circumvention inquiries at issue. If,
at the time Commerce issues its instructions, the entries are suspended
only for purposes of the circumvention inquiries, Commerce would direct
CBP to liquidate those entries and refund any cash deposits thus far
collected from those entries; \6\ (2) in the event of an affirmative
preliminary and/or final determination of circumvention, postpone
instructing CBP to suspend liquidation and to collect cash deposits of
estimated duties on entries of SA-Completed Cells and Modules; and (3)
permit the importation of those SA-Completed Cells and Modules free of
collection of antidumping and countervailing estimated duties and
duties until the Date of Termination. Furthermore, (4) in the event of
an affirmative final determination of circumvention, if Commerce
subsequently issues instructions to CBP that cover certain SA-Completed
Cells and Modules entered, or withdrawn from warehouse, for consumption
before the Date of Termination, in accordance with section 751 of the
Act, Commerce would direct CBP to liquidate entries of that merchandise
without regard to antidumping or countervailing duties. Commerce would
continue to conduct the circumvention inquiries at issue under its
normal procedures and, in the event of an affirmative final
determination, would direct CBP to begin suspension of liquidation and
require cash deposits for each unliquidated entry of SA-Completed Cells
and Modules that is entered, or withdrawn from warehouse, for
consumption on or after the Date of Termination. Taken together, these
proposed actions would help ensure that the United States has a
sufficient supply of solar cells and modules to assist in meeting our
electricity generation needs while domestic solar manufacturing
capacity continues to expand. This proposed rule therefore responds
directly and appropriately to the emergency that is the subject of the
Proclamation.
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\6\ CBP will only cease suspension of liquidation and collection
of cash deposits for entries on the basis of the circumvention
inquiries. If the entries at issue continue to be suspended on
another basis at the time Commerce issues its instructions to CBP,
no liquidation or refunding of cash deposits will occur.
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In addition, if Commerce issues an affirmative final determination
of circumvention, Commerce would instruct CBP to suspend liquidation
and collect cash deposits on SA-Completed Cells and Modules that are
entered, or are withdrawn from warehouse, for consumption on or after
the Date of Termination. This proposed action would ensure that once
this emergency has passed, suspension of liquidation and collection of
cash deposits of antidumping and countervailing estimated duties and
duties would be instituted and applied prospectively, to post-Date of
Termination entries, as set forth by statute and regulation.
Commerce is interested in hearing from the public concerning this
proposed rule and will accept comments for 30 days after the date of
publication of this proposed rule.
[[Page 39430]]
Classification
Executive Order 12866
The Office of Management and Budget has determined that this
proposed rule is economically significant for purposes of Executive
Order 12866.
Regulatory Impact
The Proclamation explains that, in recent years, the vast majority
of solar modules installed in the United States were imported, with
approximately three-quarters of those imports in 2020 coming from
Southeast Asia. The Proclamation states, however, that recently the
United States has been unable to import solar modules in sufficient
quantities to ensure solar capacity additions necessary to ensure
electricity grid resource adequacy. The supply constraints on solar
modules and module components have put at risk near-term solar capacity
additions that could otherwise have the potential to help ensure the
sufficiency of electricity generation to meet customer demand, and
solar projects across the country are being postponed or canceled.
Furthermore, the Proclamation states that roughly half of the domestic
deployment of solar modules anticipated over the next year is currently
in jeopardy due to insufficient supply. Accordingly, Commerce is taking
action pursuant to the Proclamation under section 318(a) of the Act.
The Proclamation identifies certain threats to the ability of the
United States to provide sufficient electricity generation to serve
expected demand, declares an emergency to exist, and states that
immediate action is needed to ensure access to a sufficient supply of
solar modules to assist in meeting the United States' electricity
generation needs. This proposed regulatory action supports the
Proclamation. Multiple government publications describe the expansive
growth of the solar sector in the United States, the rapid pace of
solar installations, and the critical role that this sector plays in
meeting the Nation's energy needs and addressing the climate crisis.
For example, the U.S. Energy Information Administration (EIA)
estimated in January 2022 that solar power would account for nearly
half of new U.S. electric generating capacity for the year based on its
expectation that U.S. utility-scale solar generating capacity would
grow by 21.5 gigawatts in 2022.\7\ The EIA projects that the share of
U.S. power generation from renewables will increase from 21% in 2021 to
44% by 2050, and that solar will account for 51% of renewable energy
generation.\8\
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\7\ U.S. Energy Information Administration, Solar Power Will
Account for Nearly Half of New U.S. Electric Generating Capacity in
2022 (Jan. 10, 2022), <a href="https://www.eia.gov/todayinenergy/detail.php?id=50818">https://www.eia.gov/todayinenergy/detail.php?id=50818</a>.
\8\ U.S. Energy Information Administration, EIA Projects that
Renewable Generation Will Supply 44% of U.S. Electricity by 2050
(Mar. 18, 2022), <a href="https://www.eia.gov/todayinenergy/detail.php?id=51698">https://www.eia.gov/todayinenergy/detail.php?id=51698</a>.
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Additionally, in September 2021, the U.S. Department of Energy
released the Solar Futures Study \9\ detailing the significant role
solar will play in decarbonizing the nation's power grid. The study
shows that, by 2035, solar energy has the potential to power 40% of the
nation's electricity, drive deep decarbonization of the grid, and
employ as many as 1.5 million people--without raising electricity
prices. Decarbonizing the entire energy system could result in as much
as 3,000 GW of solar power by 2050 due to increased electrification in
the transportation, buildings, and industrial sectors.
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\9\ U.S. Department of Energy, Solar Futures Study (Sept. 2021),
<a href="https://www.energy.gov/eere/solar/solar-futures-study">https://www.energy.gov/eere/solar/solar-futures-study</a>.
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In taking the proposed actions described in this proposed rule,
Commerce would act to respond to the emergency identified in the
Proclamation. The proposed actions would remove uncertainty concerning
potential antidumping and countervailing estimated duties or duties
that might otherwise be owed on merchandise subject to the
circumvention inquiries and entered before the Date of Termination. The
uncertainty surrounding the potential antidumping and countervailing
estimated duties or duties may be contributing to the circumstances
surrounding the insufficient imports of modules from Southeast Asia.
Given the strong interest in ensuring access to a sufficient supply of
solar modules to assist in meeting the United States' electricity
generation needs, we would remove this source of market uncertainty in
order to encourage sufficient imports of modules from these Southeast
Asian countries until the Date of Termination and while domestic
capacity expands. However, we lack data to quantify these effects, and
we seek public comment on these impacts.
While this proposed regulatory action might result in decreased
totals of antidumping or countervailing duties collected, the
quantification of any such decrease would be speculative. At the time
of publication of this notice, Commerce is conducting circumvention
inquiries involving certain cells and modules exported from the
Southeast Asian countries of Cambodia, Malaysia, Thailand, and Vietnam.
Commerce has not yet made any determinations regarding whether these
cells and modules are circumventing existing antidumping and
countervailing duty orders. Accordingly, whether antidumping or
countervailing duties will apply to these cells and modules is unknown
at the time of publication of this notice. Further, even if there is a
final determination that circumvention is taking place, the total
antidumping and countervailing duties that would be collected from any
such imports cannot, at this time, be calculated with any degree of
precision.
Finally, this rule would provide for an exemption from the
collection of cash deposits and duties, if applicable, on imports of
certain SA-Completed Cells and Modules, and Commerce assesses that the
affected importers would not need to take additional action to come
into compliance with this rule were it to be put into effect.
Regulatory Flexibility Act
Pursuant to section 603 of the Regulatory Flexibility Act (5 U.S.C.
601 et seq.), Commerce has prepared this Initial Regulatory Flexibility
Analysis. A statement of the objectives of, and legal basis for, the
proposed rule is provided earlier in this preamble and are not repeated
here.
This proposed rule is intended to temporarily encourage sufficient
imports of solar cells and modules from these Southeast Asian countries
in order to respond to the emergency declared in the Proclamation. It
would be in effect for a limited time (24 months from the date of the
Proclamation or until the emergency is terminated, whichever occurs
first). The proposed rule would postpone and waive the application of
certain regulations related to circumvention inquiries, if otherwise
applicable, to certain SA-Completed Cells and Modules exported from the
identified Southeast Asian countries. Additionally, it would permit the
importation of those SA-Completed Cells and Modules free of collection
of antidumping and countervailing estimated duties and duties. In doing
so, it would directly affect importers of certain SA-Completed Cells
and Modules exported from the identified Southeast Asian Countries. The
number of importers that are classified as small entities is unknown.
The proposed rule would provide a benefit to regulated entities,
including small entities, by removing uncertainty concerning potential
antidumping and countervailing estimated duties or
[[Page 39431]]
duties that might otherwise be owed on merchandise subject to the
circumvention inquiries and entered before the Date of Termination.
Were there to be a final determination in the inquiries involving
certain cells and modules exported from the four Southeast Asian
countries that circumvention is taking place, the rule could also
potentially provide a benefit by allowing importers, including small
entities, to receive an exemption from the collection of antidumping
and countervailing cash deposits and duties, if applicable, on imports
of certain SA-Completed Cells and Modules. As a result, it would not
place a substantial number of small entities who are importers, or any
segment of these small entities, at a significant competitive
disadvantage. But any benefit resulting from such an exemption would be
entirely speculative at this point. As noted in the regulatory impact
analysis above, Commerce has not yet made any determinations regarding
whether these cells and modules are circumventing existing antidumping
and countervailing duty orders. Accordingly, whether antidumping or
countervailing duties will apply to these cells and modules, much less
the value of those duties, is not currently known. The proposed rule
has no projected reporting, recordkeeping and other compliance
requirements and does not duplicate, overlap, or conflict with other
Federal rules.
Because the rule would not result in direct adverse impacts on
small entities and because the benefits it would provide to importers,
including those who are small entities, are not readily quantifiable
(i.e., reducing uncertainty) or are merely speculative insofar as they
depend on an unknown outcome of an ongoing inquiry, Commerce does not
expect the proposed action to have a significant economic impact on a
substantial number of small entities for the purposes of the Regulatory
Flexibility Act. Therefore, Commerce believes there are no regulatory
alternatives for reducing burdens on small entities.
Commerce invites comments on this Initial Regulatory Flexibility
Analysis, including information about the direct impact on small
entities, including importers and members of other industries directly
affected by this proposed rule.
Paperwork Reduction Act
This proposed rule contains no information collection subject to
the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.).
List of Subjects in 19 CFR Part 362
Administrative practice and procedure, Antidumping duties,
Countervailing duties, Emergency powers.
Lisa W. Wang,
Assistant Secretary for Enforcement and Compliance.
0
For the reasons stated in the preamble, the Department of Commerce
proposes to amend 19 CFR chapter III by adding part 362 as follows:
PART 362--PROCEDURES COVERING SUSPENSION OF LIQUIDATION, DUTIES AND
ESTIMATED DUTIES IN ACCORD WITH PRESIDENTIAL PROCLAMATION 10414
Sec.
362.101 Scope.
362.102 Definitions.
362.103 Actions.
362.104 Certifications.
Authority: Proc. 10414, 87 FR 35067; 19 U.S.C. 1318.
Sec. 362.101 Scope.
This part sets forth the actions the Secretary is taking to respond
to the emergency declared in Presidential Proclamation 10414.
Sec. 362.102 Definitions.
For purposes of this part:
Act means the Tariff Act of 1930, as amended (19 U.S.C. 1202 et
seq.).
Applicable Entries means the entries of Southeast Asian-Completed
Cells and Modules subject to the Solar Circumvention Inquiries that are
entered into the United States, or withdrawn from warehouse, for
consumption, before the Date of Termination.
CBP means United States Customs and Border Protection of the United
States Department of Homeland Security.
Certain Solar Orders means Crystalline Silicon Photovoltaic Cells,
Whether or Not Assembled Into Modules from the People's Republic of
China: Amended Final Determination of Sales at Less Than Fair Value,
and Antidumping Duty Order; Crystalline Silicon Photovoltaic Cells,
Whether or Not Assembled Into Modules, from the People's Republic of
China: Countervailing Duty Order; and Certain Crystalline Silicon
Photovoltaic Products from Taiwan: Antidumping Duty Order.
Date of Termination means June 6, 2024 or the date the emergency
described in Presidential Proclamation 10414 has been terminated,
whichever occurs first.
Secretary means the Secretary of Commerce or a designee.
Solar Circumvention Inquiries means some or all of the inquiries at
issue in Crystalline Silicon Photovoltaic Cells, Whether or Not
Assembled Into Modules, From the People's Republic of China: Initiation
of Circumvention Inquiry on the Antidumping Duty and Countervailing
Duty Orders.
Southeast Asian-Completed Cells and Modules means crystalline
silicon photovoltaic cells, whether or not assembled into modules
(solar cells and modules), which are completed in the Kingdom of
Cambodia, Malaysia, the Kingdom of Thailand, or the Socialist Republic
of Vietnam using parts and components manufactured in the People's
Republic of China, and subsequently exported from Cambodia, Malaysia,
Thailand or Vietnam to the United States. Southeast Asian-Completed
Cells and Modules does not mean solar cells and modules that, on June
6, 2022, the date Proclamation 10414 was signed, were already subject
to Certain Solar Orders.
Sec. 362.103 Actions Being Taken Pursuant to Presidential
Proclamation 10414 and Section 318(a) of the Act.
(a) Importation of applicable entries free of duties. The Secretary
will permit the importation of Applicable Entries free of the
collection of antidumping and countervailing estimated duties under
sections 701, 731, 751 and 781 of the Act until the Date of
Termination. Part 358 of this chapter shall not apply to these imports.
(b) Suspension of liquidation and collection of cash deposits. (1)
To facilitate the importation of Southeast Asian-Completed Cells and
Modules without regard to estimated antidumping and countervailing
duties, notwithstanding Sec. 351.226(l) of this chapter, Commerce
shall do the following with respect to estimated duties:
(i) Where, based on initiation of the Solar Circumvention
Inquiries, Commerce previously instructed CBP to continue to suspend
liquidation of entries of Southeast Asian-Completed Cells and Modules
that were already subject to suspension and to continue to collect cash
deposits of estimated duties, the Secretary will instruct CBP to
discontinue such suspension of liquidation and collection of cash
deposits based on the circumvention inquiry. If at the time
instructions are conveyed to CBP the entries at issue are suspended and
cash deposits collected only on the basis of the circumvention
inquiries, then Commerce will direct CBP to liquidate the entries
without
[[Page 39432]]
regard to antidumping and countervailing duties and to refund cash
deposits collected on that basis.
(ii) In the event of an affirmative preliminary or final
determination of circumvention in the Solar Circumvention Inquiries
before the Date of Termination, the Secretary will not, at that time,
direct CBP to suspend liquidation and collect cash deposits of
estimated duties in connection with the affirmative determination for
Applicable Entries.
(2) In the event of an affirmative final determination of
circumvention in the Solar Circumvention Inquiries, notwithstanding
Sec. 351.226(l) of this chapter, the Secretary will direct CBP to
begin suspension of liquidation and require a cash deposit of estimated
antidumping and countervailing duties, at the applicable rate, for each
unliquidated entry of Southeast Asian-Completed Cells and Modules that
is entered, or withdrawn from warehouse, for consumption on or after
the Date of Termination.
(c) Waiver of assessment of duties. In the event the Secretary
issues an affirmative final determination of circumvention in the Solar
Circumvention Inquiries and thereafter, in accordance with other
segments of the proceedings, pursuant to section 751 of the Act and
Sec. 351.212(b) of this chapter, issues liquidation instructions to
CBP, the Secretary will direct CBP to liquidate Applicable Entries
without regard to antidumping and countervailing duties that would
otherwise apply pursuant to an affirmative final determination of
circumvention.
Sec. 362.104 Certifications.
Nothing in this section shall preclude the Secretary from requiring
a certification for Southeast Asian-Completed Cells and Modules
pursuant to Sec. 351.228 of this chapter in the event of an
affirmative preliminary or final determination in the Solar
Circumvention Inquiries.
[FR Doc. 2022-14241 Filed 6-30-22; 4:15 pm]
BILLING CODE 3510-DS-P
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</html>Indexed from Federal Register on July 1, 2022.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.