Rule2022-19953
Procedures Covering Suspension of Liquidation, Duties and Estimated Duties in Accord With Presidential Proclamation 10414
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
September 16, 2022
Effective
November 15, 2022
Issuing agencies
Commerce DepartmentInternational Trade Administration
Abstract
In accordance with Presidential Proclamation 10414 and pursuant to its authority under section 318(a) of the Tariff Act of 1930, as amended (the Act), the Department of Commerce (Commerce) is issuing this final rule to implement Proclamation 10414. Specifically, Commerce is issuing a new rule that, in the event of an affirmative preliminary or final determination in the antidumping and countervailing duty (AD/CVD) circumvention inquiries described below, under Title VII of the Act, extends the time for, and waives, the suspension of liquidation, the application of certain AD/CVD duties, and the collection of cash deposits on applicable entries of certain crystalline silicon photovoltaic cells, whether or not assembled into modules, that are completed in the Kingdom of Cambodia (Cambodia), Malaysia, the Kingdom of Thailand (Thailand), and the Socialist Republic of Vietnam (Vietnam) using parts and components manufactured in the People's Republic of China (China), and that are not already subject to an antidumping or countervailing duty order.
Full Text
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<title>Federal Register, Volume 87 Issue 179 (Friday, September 16, 2022)</title>
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[Federal Register Volume 87, Number 179 (Friday, September 16, 2022)]
[Rules and Regulations]
[Pages 56868-56887]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-19953]
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DEPARTMENT OF COMMERCE
International Trade Administration
19 CFR Part 362
[Docket No. 220909-0189]
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: Final rule.
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SUMMARY: In accordance with Presidential Proclamation 10414 and
pursuant to its authority under section 318(a) of the Tariff Act of
1930, as amended (the Act), the Department of Commerce (Commerce) is
issuing this final rule to implement Proclamation 10414. Specifically,
Commerce is issuing a new rule that, in the event of an affirmative
preliminary or final determination in the antidumping and
countervailing duty (AD/CVD) circumvention inquiries described below,
under Title VII of the Act, extends the time for, and waives, the
suspension of liquidation, the application of certain AD/CVD duties,
and the collection of cash deposits on applicable entries of certain
crystalline silicon photovoltaic cells, whether or not assembled into
modules, that are completed in the Kingdom of Cambodia (Cambodia),
Malaysia, the Kingdom of Thailand (Thailand), and the Socialist
Republic of Vietnam (Vietnam) using parts and components manufactured
in the People's Republic of China (China), and that are not already
subject to an antidumping or countervailing duty order.
DATES: This rule is effective on November 15, 2022.
FOR FURTHER INFORMATION CONTACT: Dana Moreland, Enforcement &
Compliance (E&C) Communications
[[Page 56869]]
office at (202) 482-0063 or <a href="/cdn-cgi/l/email-protection#622721212d2f2f372c2b2123362b2d2c312216100306074c050d14"><span class="__cf_email__" data-cfemail="d89d9b9b9795958d96919b998c9197968b98acaab9bcbdf6bfb7ae">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
General Background
Presidential Proclamation 10414
On June 6, 2022, the President 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.'' \1\ 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 318(a) . . . 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
Cambodia, Malaysia, Thailand, and 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.'' \2\
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\1\ Declaration of Emergency and Authorization for Temporary
Extension of Time and Duty-Free Importation of Solar Cells and
Modules from Southeast Asia, 87 FR 35067, 35068 (June 9, 2022)
(Proclamation).
\2\ 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. With respect to AD/CVD, this
authority was delegated to the Secretary of Commerce in 1979, to be
exercised in consultation with the Secretary of the Treasury.
Section 5(a)(1)(e) of the Reorg. Plan No. 3 of 1979. Consistent with
the Reorganization Plan and the Proclamation, we have consulted with
the Department of Treasury and the Department of Homeland Security.
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On July 1, 2022, Commerce published a proposed rule to implement
Presidential Proclamation 10414, with public comments due August 1,
2022.\3\ Sixteen comments were submitted, with eleven generally
supportive of the Proposed Rule and five generally opposed.
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\3\ Procedures Covering Suspension of Liquidation, Duties and
Estimated Duties in Accord with Presidential Proclamation 10414, 87
FR 39426 (July 1, 2022) (Proposed Rule).
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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 China and exported to the United States (hereinafter ``Southeast
Asian-Completed Cells and Modules'' or ``SA-Completed Cells and
Modules''), are circumventing the AD and CVD orders on solar cells and
modules from China.\4\ To respond to the emergency declared in the
Proclamation, and pursuant to the Proclamation and section 318(a) of
the Act, in this final rule, Commerce is adding 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. SA-Completed Cells and Modules
are by definition not covered by the scope of the AD and CVD orders on
solar cells and modules from China, and consistent with the
Proclamation, the extension and waiver described in this final rule
will apply only to imports of SA-Completed Cells and Modules that enter
into the United States, or are withdrawn from warehouse, for
consumption, before the Date of Termination (defined as June 6, 2024,
or the date the emergency described in Presidential Proclamation 10414
has been terminated, whichever occurs first). In addition, this rule
applies only to SA-Completed Cells and Modules that are utilized in the
United States by the Utilization Expiration Date, which is 180 days
after the Date of Termination. The final rule defines ``utilization''
and ``utilized'' to mean that the SA-Completed Cells and Modules will
be used or installed in the United States. Furthermore, this final rule
provides that, in the event of an affirmative determination of
circumvention, no resulting AD/CVD estimated duties or duties will be
applied to SA-Completed Cells and Modules that have been entered into
the United States, or withdrawn from warehouse, for consumption before
the Date of Termination and for use by the Utilization Expiration Date.
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\4\ 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).
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As explained above, this final rule applies to SA-Completed Cells
and Modules. This rule does not apply to solar cells and modules which
are manufactured and exported from China and are subject to the
existing antidumping or countervailing duty orders on solar cells and
modules from China (A-570-979; C-570-980) (China Solar Orders). Nor
does it apply to solar cells and modules that are exported from
Cambodia, Malaysia, Thailand, and Vietnam that are already subject to
the China Solar Orders.\5\ In addition, this rule does 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) (Taiwan Solar Order), 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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\5\ Commerce has determined under the China 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 China Solar
Orders. 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).
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Commerce will 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 AD/CVD duty orders.
Under this regulation, Commerce takes the following actions:
(1) Commerce shall instruct U.S. Customs and Border Protection
(CBP) to discontinue the suspension of liquidation and collection of
cash deposits for any SA-Completed Cells and Modules that were
suspended, in connection with initiation of the circumvention
inquiries, pursuant to Sec. 351.226(l)(1). If, at the time Commerce
issues instructions to CBP, the entries are suspended only for purposes
of the circumvention inquiries, Commerce will direct CBP to liquidate
those entries without regard to AD/CVD duties and refund those cash
deposits collected pursuant to the circumvention inquiries.
[[Page 56870]]
(2) If, before the Date of Termination, Commerce issues an
affirmative preliminary determination in a circumvention inquiry
covering SA-Completed Cells and Modules, Commerce will not, at that
time, direct CBP to suspend liquidation and collect cash deposits of
estimated AD/CVD 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 that are to be utilized
in the United States by the Utilization Expiration Date,
notwithstanding Sec. 351.226(l)(2). In the event there are such
entries of SA-Completed Solar Cells and Modules before, on, or after
the date of initiation of the circumvention inquiry that will not be
utilized in the United States by the Utilization Expiration Date,
Commerce will direct CBP to suspend liquidation and collect cash
deposits of estimated AD/CVD duties for those entries.
(3) If, before the Date of Termination, Commerce issues an
affirmative final determination in a circumvention inquiry covering SA-
Completed Cells and Modules, Commerce will not, at that time, direct
CBP to suspend liquidation and collect cash deposits of estimated AD/
CVD 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 that are to be utilized in the United
States by the Utilization Expiration Date, notwithstanding Sec.
351.226(l)(3). In the event there are such entries of SA-Completed
Solar Cells and Modules before, on, or after the date of initiation of
the circumvention inquiry that will not be utilized in the United
States by the Utilization Expiration Date, Commerce will direct CBP to
suspend liquidation and collect cash deposits of estimated AD/CVD
duties for those entries.
(4) If, after the Date of Termination, Commerce issues an
affirmative final determination in a circumvention inquiry covering SA-
Completed Cells and Modules and entries of SA-Completed Cells and
Modules that will not be utilized in the United States by the
Utilization Expiration Date, Commerce will direct CBP to order
suspension of liquidation of those entries and the collection of cash
deposits on those entries.
(5) If, before or after the Date of Termination, Commerce issues an
affirmative final determination in a circumvention inquiry covering SA-
Completed Cells and Modules and those SA-Completed Cells and Modules
will be utilized by the Utilization Expiration Date:
a. Commerce will direct CBP to liquidate entries of those SA-
Completed Cells and Modules entered, or withdrawn from warehouse, for
consumption before the Date of Termination without regard to AD/CVD
duties if liquidation instructions were issued to CBP pursuant to a
different segment of the proceeding in accordance with section 751 of
the Act that would have otherwise applied to those entries.
b. Commerce will direct CBP to commence suspension of liquidation
of the SA-Completed Cells and Modules, as applicable, and collect cash
deposits of estimated AD/CVD 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 actions ensure that duties or estimated duties will
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. Furthermore, all
entries following the effective date of the final rule must be utilized
in the United States by the Utilization Expiration Date, which is 180
days following the Date of Termination, to benefit from this rule.
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 pertaining to section 781 of
the Act (19 U.S.C. 1677j), to take these steps to respond to the
emergency declared in the Proclamation. Section 351.226(l) governs when
merchandise found to be circumventing an AD or CVD order should be
subject to suspension of liquidation and cash deposit requirements.
Thus, in light of the emergency, Commerce is extending the time period
established by regulation for Commerce to instruct CBP to begin
suspension of liquidation and cash deposit requirements for SA-
Completed Cells and Modules entered, or withdrawn from warehouse, for
consumption, as well as the date on which suspension of liquidation and
cash deposit requirements will begin, including for entries of SA-
Completed Cells and Modules that may have continued to be suspended
under Sec. 351.226(l)(1) and are to be utilized in the United States
by the Utilization Expiration Date.\6\
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\6\ This rule in no way affects 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 to suspend liquidation and collect
deposits of estimated AD/CVD duties on entries subject to the China
Solar Orders or Taiwan Solar Order.
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In addition, Commerce is permitting, for the duration provided for
in the Proclamation, the importation, free of the collection of AD/CVD
duties and estimated duties, if applicable, on SA-Completed Cells and
Modules that are to be utilized in the United States by the Utilization
Expiration Date. Under this final rule, cash deposits will not be
collected on imports of SA-Completed Cells and Modules that were
entered, or withdrawn from warehouse, for consumption before the Date
of Termination and that are to be used in the United States by the
Utilization Expiration Date.
Finally, if Commerce issues a final determination of circumvention,
Commerce will 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 action will ensure that, once this emergency has passed,
suspension of liquidation and collection of cash deposits of any AD/CVD
estimated duties and duties will be instituted and applied
prospectively, to post-Date of Termination entries, as set forth by
statute and regulation.
Explanation of Changes From the Proposed Rule to the Final Rule and
Responses to Comments
In the Proposed Rule, Commerce invited the public to submit
comments,\7\ and received 16 submissions from interested parties,
including domestic producers, exporters, importers, non-profit
organizations, and trade associations. We considered the merits of each
submission. In response, Commerce is implementing the following
modifications to the Proposed Rule:
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\7\ Proposed Rule, 87 FR at 39426.
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<bullet> Several definitions are clarified. The definition of
``Applicable Entries'' is amended to clarify that such entries must be
utilized in the United States by the ``Utilization Expiration Date,'' a
new term. ``Utilization'' and ``utilized'' are also new terms, included
to address comments concerning stockpiling. The phrase ``subject to the
Solar Circumvention Inquiries'' previously located in the ``Applicable
Entries''
[[Page 56871]]
definition now appears in the definition of ``Southeast Asian-Completed
Cells and Modules'' as this location more clearly indicates the
merchandise covered by the circumvention inquiries.
<bullet> The heading of Sec. 362.103(a) now reads ``Importation of
applicable entries free of duties and estimated duties.'' The words
``estimated duties'' have been added to better reflect the Proclamation
and what the Secretary intends to cover, consistent with the request of
commenters.
<bullet> Section 362.103(a) now reads ``antidumping and
countervailing duties and estimated duties.'' The words ``duties and''
have been added in light of the previous change and the Secretary's
intention to apply the waiver to both duties and estimated duties.
<bullet> Portions of Sec. 362.103(b)(1) and 362.103(b)(1)(i) now
reference the Secretary, in place of Commerce, to conform with
statutory and regulatory language. Further, the first sentence of Sec.
362.103(b)(1)(i) has been revised to indicate that the Secretary shall
instruct CBP to discontinue the suspension of liquidation of entries
and collection of cash deposits for any SA-Completed Cells and Modules
that were suspended pursuant to Sec. 351.226(l) of this chapter in
connection with the initiation of the Solar Circumvention Inquiries.
<bullet> Section 362.103(b)(1)(iii) has been added to outline the
Secretary's subsequent instructions to CBP in the event of an
affirmative preliminary or final determination of circumvention in the
Solar Circumvention Inquiries.
<bullet> Section 362.103(b)(2) now addresses the steps the
Secretary will take in the event that the emergency is terminated prior
to June 6, 2024, but following an affirmative preliminary or final
determination of circumvention in the Solar Circumvention Inquiries.
Under this section, in that event, the Secretary will inform CBP of the
Date of Termination and issue suspension of liquidation and cash
deposit instructions. Further, under that scenario, Commerce would be
able to order the suspension of liquidation and collection of cash
deposits on merchandise that entered on an alternative date following
the Date of Termination, if the use of an alternative entry date were
appropriate, depending on the direction of the implementation of the
termination of the emergency.
<bullet> Section 362.103(b)(3) now addresses the steps the
Secretary will take in the event that the emergency is terminated on
June 6, 2024, following affirmative preliminary or final determinations
of circumvention in the circumvention inquiries. Under this section as
well, the Secretary will inform CBP of the Date of Termination and
issue suspension of liquidation and cash deposit instructions.
<bullet> Section 362.104 changes the singular term
``certification'' to the plural ``certifications'' as the Secretary may
require that entities other than the importer provide a certification.
The preamble to the Proposed Rule provides extensive background,
analysis, and explanation which are relevant to these final
regulations. Accordingly, to the extent that the public seeks a more
detailed and comprehensive understanding of these regulations, we
advise not only considering the preamble to these final regulations,
but also the analysis and explanations in the preamble to the Proposed
Rule.
The following contains a summary of the comments we received and
Commerce's responses to those comments. In addition, Commerce provides
explanations of any changes from the Proposed Rule, either in response
to comments or that it deemed appropriate.
1. AD/CVD Duties Waived Under Section 318 of the Tariff Act of 1930
Some commenters assert that Commerce does not have the authority to
waive duties imposed pursuant to AD/CVD laws. One commenter writes, for
instance, that ``once antidumping and countervailing duty orders are
issued, the duties are to remain in effect for at least five years,
when they undergo a five-year review by Commerce and the International
Trade Commission.'' The commenter adds that, under Commerce's
regulations, if an affirmative circumvention determination is made,
Commerce ``will direct the Customs Service to begin the suspension of
liquidation and require a cash deposit of estimated duties'' on the
goods found to be circumventing (emphasis in original). The commenter
thus concludes that the proposed temporary waiver of duties and
estimated duties is ``inconsistent with the law and agency
regulations.''
Another commenter makes the related argument that section 318 does
not authorize ``interfere[ence]'' in AD/CVD proceedings or the
``dictat[ion]'' of the remedies that result from those proceedings,
claiming, ``it is ultra vires for the President to authorize across-
the-board duty relief for any product'' (emphasis in original).
Response: Commerce disagrees with these commenters. Section 318 of
the Tariff Act of 1930, as amended, states that, in appropriate
circumstances, the President may authorize the Secretary to admit goods
``free of duty.'' The provision's text gives no indication that AD/CVD
duties are excluded from this encompassing language. More than that,
section 5(a)(1)(E) of the Reorg. Plan No. 3 of 1979 explicitly
transferred section 318 functions related to AD/CVD duties from the
Secretary of the Treasury to the Secretary of Commerce--indicating that
it was clearly contemplated that section 318 could be applied to AD/CVD
duties.
As noted in the preamble to the Proposed Rule, Commerce is
continuing to conduct the circumvention inquiries at issue under its
normal procedures.\8\ By its terms, section 318 permits the waiver of
duties that would otherwise apply under law. While Commerce is
continuing its circumvention inquiries under its normal procedures,
section 318 extends to any duties that may result from those inquiries
that would otherwise apply before the period of emergency concludes.
Furthermore, as discussed, there is no reason in the text or the
surrounding history to think AD/CVD duties are beyond the scope of
section 318; to the contrary, Reorg. Plan No. 3 of 1979 indicates that
section 318 can apply to AD/CVD duties.
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\8\ See Proposed Rule, 87 FR at 39429.
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2. Solar Cells and Modules as ``Other Supplies for Use in Emergency
Relief Work'' Within the Meaning of 318(a)
Four commenters contend that Commerce is not permitted to provide
for duty-free entry of SA-Completed Cells and Modules because solar
cells and modules do not constitute the types of ``supplies for use in
emergency relief work'' contemplated by section 318(a) of the Act. They
assert instead that such supplies are limited to goods necessary to
sustain health and survival during times of war or natural disasters.
One commenter states that the Proposed Rule is consistent with the
authorities given to Commerce through the Proclamation.
Response: Commerce disagrees with certain commenters' assertions
that solar cells and modules cannot be considered ``supplies for use in
emergency relief work'' within the meaning of section 318(a).
Commerce has previously rejected arguments that this term, as
contemplated by section 318(a), is narrowly limited to humanitarian
goods provided on a short-term basis. Rather, ``[w]hat supplies might
be needed for use in emergency relief work will depend on the
circumstances of a specific declared emergency and the particular needs
of persons affected by
[[Page 56872]]
that emergency.'' \9\ Nor does section 318(a)'s text limit the duration
that an emergency may continue or the time to respond to it.
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\9\ Procedures for Importation of Supplies for Use in Emergency
Relief Work, 71 FR 63230, 63231, 63233 (October 30, 2006).
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Here, through the Proclamation, the President has declared an
emergency exists ``with respect to the threats to the availability of
sufficient electricity generation capacity to meet expected customer
demand.'' \10\ Consistent with the Proclamation, this rule provides for
the temporary importation free of AD/CVD duties and estimated duties,
if otherwise applicable, for certain SA-Completed Cells and Modules.
Electricity is a basic necessity of life in the United States similar
to housing, food, and water. It enables necessary medical care,
national defense, and provides for essential communications, and for
health and safety in extreme temperatures. The Proclamation declares
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. The waiver of AD/CVD duties on the specified goods
will provide relief to this emergency by encouraging imports and
increasing solar energy capacity. Accordingly, the specified goods
qualify as ``other supplies for use in emergency relief work'' in
connection with the emergency declared such that Commerce may permit
the temporary importation of such products free of AD/CVD duties and
estimated duties.
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\10\ See Proclamation, 87 FR 35067, 35068 (June 9, 2022).
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Moreover, there is historical precedent for invoking the statute to
permit the duty-free importation of a broader variety of goods than
certain commenters' proposed limitation. For example, President Truman
invoked section 318 to permit ``the importation free of duty of . . .
timber, lumber, or the products suitable for the construction or
completion of housing accommodations,'' after proclaiming ``an
unprecedented shortage of housing, particularly for veterans of World
War II and their families'' in Proclamation No. 2708.\11\ The waiver of
the duties was designed to ``increase the available supplies'' of such
goods and thereby facilitate construction. Like housing, electricity is
a basic necessity of life in the United States, and the present action
to ensure sufficient electricity generating capacity parallels the
prior waiver of duties on the importation of housing construction
supplies to ensure sufficient housing.
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\11\ Proclamation No. 2708, 11 FR 12695 (October 29, 1946)
(Emergency Due to Housing Shortage-Free Importation of Timber,
Lumber, and Lumber Products).
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3. Whether There Is a Clearly Defined Emergency for Which Commerce
Could Provide a Remedy
Two commenters cite import statistics from select periods and
countries to argue that imports of solar products have increased, and
that therefore there is no emergency with regard to such products.
Further, relying on data from the National Renewable Energy Laboratory,
one commenter alleges declining prices for solar panels provides
evidence that there is no shortage.
Eight commenters agree that there is an emergency as declared by
the President's Proclamation. Three commenters emphasize that there is
undoubtably an electricity emergency, exacerbated by drought
conditions, heatwaves, the war in Ukraine, and other factors stretching
the United States' electricity supply. Eight commenters highlight that
electricity is a basic utility essential for modern life through, for
example, the operation of schools, hospitals, transportation, defense,
and businesses. Many of these commenters also assert that solar energy,
including access to a sufficient supply of solar cells and modules, is
critical in addressing this emergency. In addition, several commenters
provided data on how uncertainty and delays have significantly impacted
the overall solar energy market.
Response: Whether there is an emergency is not the subject of
Commerce's rulemaking--the declaration of emergency is committed by
section 318 to the President's discretion, and the President exercised
that discretion in issuing the Proclamation. In any event, Commerce
disagrees with commenters who argue the Proclamation lacks a defined
emergency. The Proclamation details that multiple factors including
disruptions to electricity markets as a result of the war in Ukraine
and extreme weather events exacerbated by climate change are
threatening the United States' ability to provide sufficient
electricity generation to consumers.\12\ The Proclamation discusses
drought conditions and heatwaves that are simultaneously causing
projected electricity supply shortfalls and record electricity
demand.\13\ And it further notes that, as a result, the Federal Energy
Regulatory Commission and the North American Electric Reliability
Corporation have both warned of near-term electricity reliability risks
in their recent summer reliability assessments.\14\
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\12\ Proclamation, 87 FR at 35067.
\13\ Id.
\14\ Id.; see also generally North American Electric Reliability
Corporation, 2022 Summer Reliability Assessment (May 5, 2022),
available at <a href="https://www.nerc.com/pa/RAPA/ra/Reliability%20Assessments%20DL/NERC_SRA_2022.pdf">https://www.nerc.com/pa/RAPA/ra/Reliability%20Assessments%20DL/NERC_SRA_2022.pdf</a>; Federal Energy
Regulatory Commission, Summer Energy Market and Reliability
Assessment, at 13-16 (2022), available at <a href="https://www.ferc.gov/media/report-summer-assessment-2022">https://www.ferc.gov/media/report-summer-assessment-2022</a>.
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In drafting this final rule, Commerce also considered a Department
of Energy (DOE) report released in June 2022 entitled ``Acute Shortage
of Solar Equipment Poses Risks to the Power Sector'' (DOE Report) and
other documentation identified and cited in this Preamble.\15\ The DOE
Report concluded, based on multiple citations and sources, that ``trade
and supply-chain frictions have resulted in an acute shortage of solar
photovoltaic (PV) equipment in the United States that risks abruptly
slowing the rate of solar PV installation.'' \16\ The DOE Report
explained that DOE ``estimates that solar equipment shortages could
reduce solar PV deployment by 12-15 gigawatts (GW) over the next year,
equivalent to the electricity needs of more than 2 million homes.''
\17\ Further, the DOE
[[Page 56873]]
Report explained that the reliability risks referenced above relate
``to the lack of sufficient generation capacity combined with the
growing prevalence of extreme weather in the form of heat waves,
drought, and wildfires.'' \18\
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\15\ See U.S. Dept. of Energy, Acute Shortage of Solar Equipment
Poses Risks to the Power Sector, at 2 (June 2022), available at
<a href="https://www.energy.gov/sites/default/files/2022-06/June%202022%20DOE%20Solar%20Market%20Update.pdf">https://www.energy.gov/sites/default/files/2022-06/June%202022%20DOE%20Solar%20Market%20Update.pdf</a>.
\16\ Id. at 1.
\17\ Id. Since the DOE Report was written, three additional
months of data have been reported, revealing two offsetting effects.
First, electric utilities are delaying solar projects. Over the
first six months of 2022, capacity additions were less than half of
what the industry had previously planned to install in those months.
See U.S. Energy Information Administration (EIA), Utility-Scale
Solar Projects Report Delays (Aug. 11, 2022), <a href="https://www.eia.gov/todayinenergy/detail.php?id=53400">https://www.eia.gov/todayinenergy/detail.php?id=53400</a>. As a result, EIA's anticipated
demand for utility-scale solar capacity additions for the next year
(July 2022 through June 2023) has increased to 23 GW. See EIA Short-
Term Energy Outlook, Table 8b (August 9, 2022), <a href="http://www.eia.gov/outlooks/steo/">http://www.eia.gov/outlooks/steo/</a>. This is higher than the 22 GW in 2022 and 19 GW in
2023 assumed in the DOE Report, which cited an earlier EIA report
based on December 2021 data. This change increases the anticipated
annual capacity shortfall by 2 GW. Second, solar equipment imports
have not dropped by as much as anticipated in the DOE Report.
Including three additional months of data (April-June 2022) from the
same Census-corrected data set used in the DOE Report gives imports
averaging 1.8 GW per month for the 12 months ending June 2022 and
2.2 GW per month for the previous 12-month period. That is a 0.4 GW
per month reduction in imports instead of the 0.6 GW per month
reduction used in the DOE Report (See DOE Report's Figure 1). This
change decreases the annual solar capacity shortfall by 2 GW. The
updated estimates of supply and demand offset each other, supporting
continued applicability of the 12-15 GW shortage reported in the DOE
Report when including the demand for small-scale solar and the need
for roughly 1.3 GW of solar panels for every 1 GW of solar plant
capacity installed on the grid.
\18\ DOE Report at 1.
---------------------------------------------------------------------------
In the same document, DOE explained that ``domestic solar
manufacturing capability is simply not sufficient to meet demand. The
nation's 7.5 GW of current domestic module production capacity
comprises less than one-fourth of near-term market demand and less than
one-tenth what would be required to meet the country's climate targets
and energy security needs.'' \19\ DOE explained that ``establishing a
solar component manufacturing facility, whether polysilicon production,
ingots, cells, wafers, mounting structures or inverters, requires
time--from one to four years,'' spotlighting that even under the best
of conditions, today's current solar energy demands cannot be satisfied
solely by domestic solar production and will not be satisfied by
domestic solar production in at least the immediate future.\20\ Thus,
DOE concluded that meeting ``near-term demand will, by necessity,
require reliance on both domestic and international supply chains.
Absent an ability to access both sources of supply, PV project
cancellations and delays will pose risks to the provision of reliable,
affordable electricity supply while also imperiling achievement of the
nation's energy security and climate objectives.'' \21\
---------------------------------------------------------------------------
\19\ Id.
\20\ Id. at 2.
\21\ Id.
---------------------------------------------------------------------------
Despite previous anticipated estimates that ``solar PV was
anticipated to account for approximately 50% of newly installed
generation capacity this year and next,'' DOE explained that ``PV
module (i.e., panel) imports have been falling abruptly rather than
increasing to meet'' America's solar PV demand.\22\ Pointing to data
from the United States International Trade Commission (USITC), DOE
explained that from ``July 2021 through March 2022, imports fell to 1.7
GW per month down from a prior average of 2.3 GW per month.'' \23\ DOE
explained that ``[t]wo-third of imports (an average of 1.5 GW per month
in 2020 and 2021) were crystalline silicon modules form Cambodia,
Malaysia, Thailand and Vietnam.'' \24\
---------------------------------------------------------------------------
\22\ Id.
\23\ Id. (citing module import data from the United States
International Trade Commission. 2022. ``DataWeb.USITC.GOV.'' May 16,
2022).
\24\ Id.
---------------------------------------------------------------------------
DOE explained that the ``equipment shortage'' was also ``hitting
domestic module production,'' explaining that in 2021, ``there was 5 GW
of domestic module production, of which 3 was crystalline silicon
modules that depend on imported solar cells for production,'' with
``over 1 GW of solar cells'' imported from Cambodia, Malaysia, Thailand
and Vietnam.'' \25\ Thus, DOE concluded that ``[c]easing cell imports
from those countries would threaten at least 1 GW of domestic module
production.'' \26\
---------------------------------------------------------------------------
\25\ Id.
\26\ Id.
---------------------------------------------------------------------------
DOE further pointed to the conclusions reached by the North
American Electric Reliability Corporation (NERC) that warned that
because of ``extreme weather in the form of heat waves, drought, and
wildfires,'' ``the entirety of the central and western United States is
at a high or elevated risk.'' \27\ In addition, DOE pointed to various
problems faced by Arizona, New Mexico, California and Texas that lead
to energy-related problems because of ``solar installation delays.''
\28\
---------------------------------------------------------------------------
\27\ Id. at 4 (citing the North American Electric Reliability
Corporation, 2022 Summer Reliability Assessment (May 5, 2022),
available at <a href="https://www.nerc.com/pa/RAPA/ra/Reliability%20Assessments%20DL/NERC_SRA_2022.pdf">https://www.nerc.com/pa/RAPA/ra/Reliability%20Assessments%20DL/NERC_SRA_2022.pdf</a>).
\28\ DOE Report at 5.
---------------------------------------------------------------------------
Further, DOE explained that the ``war in Ukraine, in addition to
the end of many COVID-19 restrictions, has led to significant increases
in natural gas and coal prices that have in turn increased electricity
prices. Average wholesale electricity prices since the start of the war
have been roughly double those of the same months in 2021.'' \29\
---------------------------------------------------------------------------
\29\ Id.
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In addition, information provided by several commenters confirms
the electricity emergency declared by the Proclamation.\30\ That
information indicates an increasing frequency of extreme weather
presenting a public health and safety risk and serious challenges the
United States faces with regard to its electricity supply.\31\ In the
conclusion to its report, DOE explained that ``most of the polysilicon,
ingots, wafers, solar glass and cells for those modules come from
imports'' and that ``today's domestic module production capacity
comprises less than one-fourth of near-term market demand and less than
one-tenth what would be required to meet the country's climate and
energy security needs.'' \32\ Thus, to address America's energy needs,
DOE concluded that for the ``next several years,'' the United States
``will, by necessity, require both domestic and international supply
chains.'' \33\
---------------------------------------------------------------------------
\30\ See, e.g., Building a Better Grid Initiative To Upgrade and
Expand the Nation's Electric Transmission Grid To Support
Resilience, Reliability, and Decarbonization, 87 FR 2769, 2769 (U.S.
Dept. of Energy, Jan. 19, 2022); see also FERC Acts to Boost Grid
Reliability Against Extreme Weather Conditions (June 16, 2022),
available at <a href="https://www.ferc.gov/news-events/news/ferc-acts-boost-grid-reliability-against-extreme-weather-conditions">https://www.ferc.gov/news-events/news/ferc-acts-boost-grid-reliability-against-extreme-weather-conditions</a> (the chairman of
the U.S. Federal Energy Regulatory Commission, Richard Glick,
explained, ``[i]ncreasingly frequent cold snaps, heat waves, drought
and major storms continue to challenge the ability of our nation's
electric infrastructure to deliver reliable affordable energy to
consumers.''); Scott Disavino, US. Power Companies Face Supply-Chain
Crisis this Summer, Reuters (June 29, 2022), available at <a href="https://www.reuters.com/business/energy/us-power-companies-face-supply-chain-crisis-this-summer-2022-06-29/">https://www.reuters.com/business/energy/us-power-companies-face-supply-chain-crisis-this-summer-2022-06-29/</a> (``U.S. power companies are
facing supply crunches that may hamper their ability keep the lights
on as the nation heads into the heat of summer and the peak
hurricane season.''); see also Robinson Meyer, America 's Approach
to Energy Security Is Broken, The Atlantic (March 19, 2022)
available at <a href="https://www.theatlantic.com/science/archive/2022/03/energy-independence-gas-prices/627117/">https://www.theatlantic.com/science/archive/2022/03/energy-independence-gas-prices/627117/</a> (``For the first time in many
years, America has no credible plan for how maintain its energy
security in a geopolitical crisis.'').
\31\ See Tim McLaughlin, Creaky U.S. Power Grid Threatens
Progress on Renewables, EVs, Reuters (May 12, 2022), available at
<a href="https://www.reuters.com/investigates/special-report/usa-renewables-electric-grid/">https://www.reuters.com/investigates/special-report/usa-renewables-electric-grid/</a> (indicating that extreme weather events have caused
widespread failures in power systems, including Gulf Coast
hurricanes, West Coast wildfires, Midwest heatwaves, and devastating
winter weather in Texas); see also June 2022: U.S. Dominated by
Remarkable Heat, Dryness, National Oceanic and Atmospheric
Administration(July 11, 2022), available at <a href="https://www.noaa.gov/news/june-2022-us-dominated-by-remarkable-heat-dryness">https://www.noaa.gov/news/june-2022-us-dominated-by-remarkable-heat-dryness</a> (explaining
that the U.S. has experienced nine separate billion-dollar weather
disasters in 2022, including extreme drought, tornadoes, severe
weather, and hail storms).
\32\ Id.
\33\ Id.
---------------------------------------------------------------------------
Considering DOE's conclusions in the DOE Report, as well as the
various other documents identified and cited in this Preamble and the
resources provided by several of the parties who filed comments in
response to the proposed rule, the record supports the conclusions of
the President that an electricity supply emergency exists in the United
States, and that to address the energy supply emergency with solar
energy technology, the United States must rely, in part, on imported
solar modules for the immediate future.
As noted above, some commenters disagree with the conclusions that
an emergency exists, but Commerce finds that certain data used by those
critics are unpersuasive. For example, one commenter points to
decreasing prices to argue that there is not a solar panel shortage.
The National Renewable Energy Laboratory report upon which this
commenter relied indicates that the dollar value of imported panels
decreased, but this total dollar value reflects both unit price and the
volume of imported units, which decreased. In
[[Page 56874]]
actuality, the same report shows that the price per watt of imported
solar panels, which is the more relevant price metric because it
reflects per unit costs, has been increasing since mid-2020.\34\
---------------------------------------------------------------------------
\34\ See David Feldman et al., Spring 2022 Solar Industry
Update, National Renewable Energy Laboratory (Apr. 26, 2022) at
slide 62, available at <a href="https://www.nrel.gov/docs/fy22osti/82854.pdf">https://www.nrel.gov/docs/fy22osti/82854.pdf</a>
(NREL Spring Update).
---------------------------------------------------------------------------
Moreover, in response to commenters' assertions regarding
increasing imports of solar modules, Commerce has reviewed the trade
data available from the U.S. Census as of August 2022 and determined
that imports (in watts) for crystalline-silicon modules in the first
half of 2022 were down by roughly 25 percent from the first half of
2021.\35\ In addition, combined imports of crystalline-silicon solar
modules specifically from Malaysia, Vietnam, Thailand and Cambodia--the
four countries at issue in the circumvention inquiries--were down by
over 30 percent from the first half of 2021.\36\ To the extent
commenters referenced select import data, such as import data from only
one or two countries, such discussion offers a limited picture of the
broader electricity emergency threatening the United States industry as
described in the Proclamation.
---------------------------------------------------------------------------
\35\ See U.S. Census Bureau data for HTS codes 8541.40.60.15 and
8541.43.00.10, Second Unit of Quantity (watts), available at <a href="https://usatrade.census.gov">https://usatrade.census.gov</a>. A commenter's assertion that imports of solar
modules are higher for the first five months of 2022 compared to the
same period in 2021 is potentially based on erroneous Census data
for Turkey and Thailand that has since been corrected. See U.S.
Census Bureau, Corrections to 2022 Data, available at <a href="https://www.census.gov/foreign-trade/statistics/corrections/index.html">https://www.census.gov/foreign-trade/statistics/corrections/index.html</a>.
\36\ See U.S. Census Bureau data for HTS 8541.40.60.15,
8541.43.00.10, available at <a href="https://usatrade.census.gov">https://usatrade.census.gov</a>, Second Unit
of Quantity (watts). Considering imports of all modules, i.e., CSPV
and thin-film, the data show a reduction of about 20 percent in
imports from these four countries and a reduction of about 15
percent for imports from all countries between the same two half-
year periods. Id. for HTS codes 8541.40.60.15, 8541.43.00.10,
8541.40.60.35 and 8541.43.00.80. Considering imports of CSPV cells,
the data show that while imports from these four countries has
risen, total imports from all countries declined slightly over the
same time. Id. for HTS codes 8541.40.60.25, 8541.42.00.10.
Encouraging imports of solar cells is expected to address the
electricity emergency by improving the supply of components needed
for solar products.
---------------------------------------------------------------------------
Thus, in sum, Commerce agrees with DOE's assessments of the nature
of the emergency declared by the Proclamation. Commerce also finds it
appropriate that this final rule provides a remedy that addresses that
emergency and allows for importation of certain SA-Completed Cells and
Modules without requiring the suspension of liquidation and the
collection of cash deposits until the emergency has passed, in accord
with the Proclamation and section 318(a) of the Act.
4. Link Between the Declared Emergency and Remedy Provided
Three commenters assert that the Proclamation and Commerce's
Proposed Rule do not make any effort to link the proposed remedy of
tariff relief to an actual emergency and ``emergency relief work'' as
required by section 318(a). One commenter argues that the Proclamation
makes broad references to potential drought conditions and strain on
the electricity grid but fails to establish which imports are necessary
for use in such ``emergency relief work'' in accordance with section
318(a). Three commenters argue that the Proposed Rule is not
sufficiently tailored because it provides duty relief to a broad
category of products and relates little to the emergency in the
Proclamation. One commenter also argues that solar energy cannot solve
the current emergency crisis in the short term because solar energy
accounted for only 2.8 percent of total U.S. energy generation capacity
in 2021. This commenter also argues that even if solar cells and
modules are ``emergency relief items'' within the meaning of section
318(a), the relief provided in the Proposed Rule extends beyond that
needed to address the alleged emergency of ``solar projects being
postponed or cancelled'' because the duty relief provided in the
Proposed Rule would apply to solar cells and modules imported for a
project that may not be completed for years after the Date of
Termination and have no specific intended use. Accordingly, the
commenter contends, any emergency duty relief afforded should relate
only to imported SA-Completed Cells and Modules designated for stalled
projects. In addition, one commenter claims that solar products subject
to the inquiries should not be encouraged because they are produced
predominantly by fossil fuels.
Seven commenters assert that there have been significant project
delays including halted shipments, idled factories, and losses in
electricity capacity which increase costs for consumers and reliance on
fossil fuel. For example, one commenter provided that 24 GWs of solar
installations and $30 billion in investments from 2022-2023 are in
jeopardy without the final rule. This commenter relied on a letter from
twenty-two U.S. senators and surveys from industry groups to support
its assertion that tariffs from affirmative circumvention
determinations would threaten the solar industry. Another commenter,
citing a survey of investors and developers in solar energy, asserts
that if the final rule is not promulgated, U.S. solar projects would
face a crisis, and the United States would not meet its electricity
generation needs while also achieving its clean energy goals to address
the climate crisis. Many of these commenters explain that the rule
would allow for necessary projects to move forward and increase the
amount of energy generated through solar power to meet United States'
electricity generation needs and clean energy goals.
Response: As a preliminary matter, as explained above, the DOE
Report indicates that two-thirds of imports of solar modules in 2020
and 2021 to the United States were exported from Cambodia, Malaysia,
Thailand, and Vietnam.\37\ Furthermore, the DOE Report also indicates
that today's domestic module production capacity comprises less than
one-fourth of near-term market demand, and less than one-tenth of what
would be required to meet the country's climate and energy needs.\38\
So to the extent that certain commenters claim that there is an
inadequate link between claims of a need for a greater number of
imported solar modules in the near-term, and this final rule, which
allows for the temporary importation of certain solar modules without
AD or CVD duties and estimated duties from the countries that have
recently provided two-thirds of the imports of solar modules, Commerce
disagrees with that assessment.
---------------------------------------------------------------------------
\37\ DOE Report at 2.
\38\ Id. at 8.
---------------------------------------------------------------------------
The Proclamation describes the need for robust and reliable
electric power as a basic necessity in the United States and as
critical for national defense. It explains that to address the
electricity emergency detailed above and ensure electric resource
adequacy, utilities and grid operators must build new capacity through
new solar installations. While solar power accounted for 4 percent of
total electricity generation in 2021,\39\ according to an Energy
Information Administration (EIA) publication upon which DOE relied for
part of its analysis in the DOE Report, that data also shows that solar
power was the largest source of new generating capacity in 2021 \40\
and that added solar capacity was expected to account for over half of
new
[[Page 56875]]
electric sector capacity in 2022 and 2023.\41\ The Proclamation states
that ``[t]he unavailability of solar cells and modules jeopardizes
those planned additions, which in turn threatens the availability of
sufficient electricity generation capacity to serve expected customer
demand.'' \42\ As discussed above, DOE has estimated ``that solar
equipment shortages could reduce solar [photovoltaic] deployment by 12-
15 gigawatts (GW) over the next year, equivalent to the electricity
needs of more than 2 million homes.'' \43\
---------------------------------------------------------------------------
\39\ See EIA Short Term Energy Outlook, available at <a href="https://www.eia.gov/outlooks/steo/archives/May22.pdf">https://www.eia.gov/outlooks/steo/archives/May22.pdf</a>. Table 8b lists 113.9
billion kWh of utility-scale solar and 49.8 billion kWh from small-
scale solar in 2021. Table 7b lists 3962.8 billion kWh total
generation in 2021. (113.9 + 49.8)/3962.8 = 4.1%. One commenter
asserted that solar power produced 2.8% of U.S. electricity
generation in 2021; however, this figure is only for utility scale
plants.
\40\ See NREL Spring Update at slide 26.
\41\ See U.S. Energy Information Administration, Short Term
Energy Outlook (May 10, 2022), available at <a href="https://www.eia.gov/outlooks/steo/archives/May22.pdf">https://www.eia.gov/outlooks/steo/archives/May22.pdf</a>.
\42\ See Proclamation, 87 FR at 35067.
\43\ U.S. Dept. of Energy, Acute Shortage of Solar Equipment
Poses Risks to the Power Sector, at 1 (June 2022), available at
<a href="https://www.energy.gov/sites/default/files/2022-06/June%202022%20DOE%20Solar%20Market%20Update.pdf">https://www.energy.gov/sites/default/files/2022-06/June%202022%20DOE%20Solar%20Market%20Update.pdf</a>.
---------------------------------------------------------------------------
Furthermore, in response to the arguments made by certain
commenters that the breadth of the proposed rule was not sufficiently
tailored, Commerce disagrees. This final rule is calibrated in multiple
ways. The rule applies only to solar cells and modules: (1) exported
from the four Southeast Asian countries at issue that have been
manufactured using certain Chinese inputs; (2) which will be utilized
in the United States within 180 days after the Date of Termination
(i.e., the Utilization Expiration Date); and (3) which enter the United
States no later than June 6, 2024, if not earlier.
With respect the duration of the rule, in particular, as the
Proclamation notes, ``The Federal Government is working with the
private sector to promote the expansion of domestic solar manufacturing
capacity, including our capacity to manufacture modules and other
inputs in the solar supply chain, but building that capacity will take
time.'' \44\ As DOE explained in its Report, the timelines for
establishing a solar component manufacturing facility can range from
``one to four years.'' \45\ Accordingly, this relief is not open-
ended--rather it is temporary and calibrated to align with the timeline
necessary for new domestic solar production plants to get set up and
begin production.
---------------------------------------------------------------------------
\44\ See Proclamation, 87 FR at 35067. DOE has stated that
``today's domestic module capacity comprises less than one-fourth of
near-term market demand and less than one-tenth of what would be
required to meet the country's climate and energy security needs.''
U.S. Dept. of Energy, Acute Shortage of Solar Equipment Poses Risks
to the Power Sector, at 8 (June 2022), available at <a href="https://www.energy.gov/sites/default/files/2022-06/June%202022%20DOE%20Solar%20Market%20Update.pdf">https://www.energy.gov/sites/default/files/2022-06/June%202022%20DOE%20Solar%20Market%20Update.pdf</a>.
\45\ DOE Report at 8.
---------------------------------------------------------------------------
With respect to the claim that the regulations should apply only to
stalled solar projects, the Proclamation not only discussed concerns
with stalled solar projects, but discussed the electricity emergency
broadly, including that solar capacity additions could help ensure
sufficient electricity generation to ensure electricity grid resource
adequacy, achieve U.S. climate and clean energy goals, and help combat
rising energy prices.\46\ Accordingly, Commerce does not find it
appropriate to limit the remedy, as one commenter suggests, only to
imports of SA-Completed Cells and Modules that are designated for
stalled projects. More than that, such a proposed remedy would be
difficult to administer.\47\
---------------------------------------------------------------------------
\46\ See Proclamation, 87 FR at 35067.
\47\ Moreover, limiting the remedy only to stalled projects
could create perverse incentives by effectively encouraging
additional projects to stall, thereby undercutting the aims of the
remedy.
---------------------------------------------------------------------------
In addition, Commerce disagrees with the commenter that asserts
importation of these certain solar cells and modules should not be
promoted because they are produced using fossil fuels. The
International Energy Agency has stated that solar panels produced by
fossil fuels only need to operate for several months to offset their
manufacturing emissions, whereas the average solar panel has a lifetime
of around 25-30 years.\48\
---------------------------------------------------------------------------
\48\ See International Energy Agency, Special Report on Solar PV
Global Supply Chains at 8 (July 2022), available at <a href="https://iea.blob.core.windows.net/assets/4eedd256-b3db-4bc6-b5aa-2711ddfc1f90/SpecialReportonSolarPVGlobalSupplyChains.pdf">https://iea.blob.core.windows.net/assets/4eedd256-b3db-4bc6-b5aa-2711ddfc1f90/SpecialReportonSolarPVGlobalSupplyChains.pdf</a>.
---------------------------------------------------------------------------
As identified by a number of commenters, the tariff relief provided
in the Proposed Rule could stimulate United States' solar projects and
assist the United States in meeting its electricity generation needs
while also achieving clean energy goals to address the climate crisis.
These commenters, several of whom are or represent investors and
developers of solar projects in the United States, explained that
collectively billions of dollars in solar energy projects are in
jeopardy without the tariff relief provided in the Proposed Rule.\49\
Commerce believes that this final rule will provide stability and
commercial certainty for its duration. Accordingly, Commerce continues
to find that the remedy provided by this final rule is consistent with
the emergency declared by the Proclamation and is sufficiently tailored
to target imports of cells and modules that can help address the
identified emergency.
---------------------------------------------------------------------------
\49\ See Tomich, Jeffrey, Solar Market Turmoil Delays Ind. Coal
Shutdown (May 5, 2022), available at <a href="https://www.eenews.net/articles/solar-market-turmoil-delays-ind-coal-shutdown/">https://www.eenews.net/articles/solar-market-turmoil-delays-ind-coal-shutdown/</a>; Salt River
Project, Coolidge Expansion Project FAQ, How does growing demand
contribute to resource constraints?, available at <a href="https://www.srpnet.com/grid-water-management/grid-management/improvement-projects/coolidge-expansion-project-faq">https://www.srpnet.com/grid-water-management/grid-management/improvement-projects/coolidge-expansion-project-faq</a>. Office of the Governor of
California, Letter to U.S. Department of Commerce Secretary Gina M.
Raimondo (April 27, 2022), available at <a href="https://s3.documentcloud.org/documents/21761581/newsom-letter.pdf">https://s3.documentcloud.org/documents/21761581/newsom-letter.pdf</a>.;
Mangieri, Gina, Power Cost Hike, Supply Crunch Ahead as Last Hawaii
Coal Plant Closes (June 24,2022), available at <a href="https://www.khon2.com/always-investigating/power-cost-hike-supply-crunch-ahead-as-last-hawaii-coal-plant-closes/">https://www.khon2.com/always-investigating/power-cost-hike-supply-crunch-ahead-as-last-hawaii-coal-plant-closes/</a>.
---------------------------------------------------------------------------
5. Proclamation 10414 and the National Emergencies Act
One commenter notes that Proclamation 10414 potentially fails to
conform with the requirements of the National Emergencies Act (citing
50 U.S.C. 1601 et seq).
Response: As an initial matter, 19 U.S.C. 1318(a) recognizes that
the President has authority to declare emergencies arising under the
Tariff Act of 1930, as amended. As explained elsewhere in our response
to comments, the President has declared an emergency under that
provision and the remedies available under that provision are being
applied here. We do not agree that Proclamation 10414 fails to conform
with the requirements of the National Emergencies Act. Pursuant to 50
U.S.C. 1621, the President is permitted to exercise any special or
extraordinary powers as authorized by the Acts of Congress. Pursuant to
50 U.S.C. 1631, the President must specify the provisions of law under
which he proposes that he, or other officers, will act, and such
provision must be made in either the declaration of a national
emergency, or by subsequent executive orders published in the Federal
Register and transmitted to Congress. The President explicitly invoked
19 U.S.C. 1318(a) in the Proclamation and identified it as the
provision of law pursuant to which Commerce officials were to take
action.
6. The President's Actions as They Relate to the Injury Determination
by the U.S. International Trade Commission
One commenter argues that 19 U.S.C. 1318(a) does not authorize the
President to invalidate the USITC's injury determinations and that the
President cannot use 19 U.S.C. 1318(a) to control the Commission or its
determinations.
Response: The President's authority over the USITC and its
determinations is not at issue in this final rule. The actions Commerce
has taken pursuant to
[[Page 56876]]
19 U.S.C. 1318(a) and Commerce's regulatory authority, including
promulgating this final rule, in no way affect the Commission's injury
determination with respect to the China Solar Orders. As discussed in
more detail above, these authorities coexist with the Commission's
authority to issue an injury determination. Moreover, as explained
above, by its terms, section 318(a) permits the waiver of duties that
would otherwise apply under law.
7. Short Supply
One commenter asserts that the Proposed Rule appears to be an
iteration of the ``short supply'' amendments to exclude from the scope
of an order products that the domestic industry did not produce, or did
not produce in sufficient quantities, that have been rejected both
administratively and in Congress in the past. This commenter argues
that because U.S. lawmakers have opted not to include ``short supply''
exemptions in trade laws, Commerce should not do so through the
Proposed Rule.
Response: Neither the Proclamation nor the preamble to the Proposed
Rule indicate that this regulation is a ``short supply'' rule. The
Proposed Rule has been developed pursuant to the Proclamation, which
invoked section 318(a) and declared a national emergency. The final
rule is not amending the statute; rather, it is a temporary remedy
provided in response to the Proclamation issued pursuant to the
statute.
8. Declining To Use Part 358 of Commerce's Regulations in Addressing
the Declared Emergency
Four commenters argue that instead of adopting the Proposed Rule,
Commerce should use the regulations at 19 CFR part 358, which also
address section 318. Commenters advanced arguments on policy grounds--
such as arguing that applying Part 358 would better support the
existing United States trade regime--and some also argued that Commerce
should use Part 358 based upon prior statements Commerce made when
originally promulgating Part 358. Commenters also critiqued the
rationale offered in the Proposed Rule for declining to apply Part
358--that Part 358 applied only to goods to which an existing AD/CVD
order applied, whereas the relevant goods here are presently subject to
no such order. Some commenters argued that an affirmative determination
in the circumvention inquiries would mean that the goods under
consideration were always subject to the relevant order, likening a
circumvention determination to a scope ruling. Further, some commenters
argued that even if the goods were not presently subject to the order,
in the event of a final affirmative determination they would then
become subject to an order, and so Part 358 should at least be used
from that time onward. Another commenter argued goods cannot both be
treated as not subject to an order but also need to be permitted to be
entered free of duty. In addition, a commenter suggested that, in
declining to use Part 358, Commerce failed to avoid duplicative
regulations, contrary to Executive Order 12866.
Response: Commerce believes its use of this final rule, rather than
Part 358, to be both lawful and appropriate.
First, Commerce reiterates its view that Part 358, by its terms,
applies to goods that are already subject to an order.\50\ The goods at
issue in these final regulations are not presently subject to any such
order, even if they could become subject to an order later. Further,
even if Part 358 might otherwise apply, Commerce is not prohibited from
using different procedures, promulgated via notice-and comment-
rulemaking, when those procedures are better-suited to address the
emergency at hand; and Commerce concludes the procedures articulated in
the final rule are indeed better suited to address the instant
emergency.
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\50\ For instance, Part 358 requires parties requesting duty-
free treatment state the AD/CVD order case number, indicating that
these goods are already subject to an order.
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As noted above, commenters who contend that Part 358 should apply
make different arguments. One such argument is that under Commerce's
recent modifications to its scope regulations, Commerce has explained
that if Commerce determines that a product is in-scope as part of a
scope determination under 19 CFR 351.225, then that product has always
been within the scope of the order.\51\ They argue that because
circumvention proceedings under 19 CFR 351.226 are similar to scope
determinations, the same understanding applies to circumventing
merchandise.
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\51\ See Regulations To Improve Administration and Enforcement
of Antidumping and Countervailing Duty Laws, 86 FR 52300, 52312
(September 20, 2021).
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Contrary to this assertion, Commerce's reasoning with respect to
scope rulings does not apply to circumvention determinations.\52\
Relying on the same rationale would conflate the basis for a scope
ruling under 19 CFR 351.225 and a circumvention determination under 19
CFR 351.226. While scope rulings under 19 CFR 351.225 determine whether
a product ``has always been covered by the scope of'' an order,\53\
circumvention inquiries seek to determine whether, under section 781,
it is appropriate to expand the scope of the order to include
merchandise which was originally not covered by the scope.\54\ As a
result, circumvention determinations typically limit the inclusion of
that merchandise in the scope to the date of initiation of the
circumvention inquiry. We acknowledge there are exceptions to the
applicable date in the regulations for both scope rulings and
circumvention determinations, but the general rules reflect the
differences between the two findings that products should be covered by
the scope of an order (or orders).
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\52\ See Regulations to Improve Administration and Enforcement
of Antidumping and Countervailing Duty Laws, 86 FR 52300, 52344
(September 20, 2021) (stating that the circumvention framework,
under 19 [CFR] 352.226(l) ``differs from the scope framework'' under
19 CFR 351.225(l)).
\53\ 19 CFR 351.225(a).
\54\ See Deacero S.A. de C.V. v. United States, 817 F.3d 1332,
1337-38 (Fed. Cir. 2016) (``In order to effectively combat
circumvention of antidumping duty orders, Commerce may determine
that certain types of articles are within the scope of a duty order,
even when the articles do not fall within the order's literal scope.
The Tariff Act identifies four articles that may fall within the
scope of a duty order without unlawfully expanding the order's
reach[.]'').
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Even assuming arguendo Commerce's reasoning about scope
determinations were to apply to circumvention determinations, entries
would not actually be covered by the order until Commerce makes an
affirmative circumvention determination. Prior to an affirmative
determination, entries of merchandise subject to the circumvention
inquiry are not subject to an order. In the present case, Commerce has
not issued a preliminary affirmative circumvention determination, much
less a final affirmative circumvention determination. Thus, entries of
allegedly circumventing SA-Completed Cells and Modules are not covered
by any order at this time.
In addition, contrary to one commenter's assertion, our reliance on
section 318(a) to promulgate this rule is consistent with our reasoning
not to use Part 358. This rule provides a remedy aligned with the
Proclamation's call for duty-free entry of certain solar cells and
modules and the temporary extension of action related to such imports.
Should Commerce make affirmative determinations in the circumvention
proceedings, such entries would be subject to AD/CVD estimated duties
and duties absent this rule. Thus, although the applicable solar cells
and modules were not subject to duties as of the date
[[Page 56877]]
of the Proclamation, this rule creates certainty and provides for a
remedy up until the Date of Termination in accordance with the
Proclamation in the event these products may be subject to estimated
duties and duties in the future.
Another argument advanced in the comments is that, in the event of
an affirmative final determination of circumvention, Part 358 should at
least apply to any imported SA-Completed Cells and Modules that are
imported between that date and the Date of Termination. Again, Commerce
disagrees, concluding that Part 358 applies to supplies that are
subject to an existing AD/CVD order at the time the Secretary
determines to permit importation of those supplies free of AD/CVD
duties. A different reading, whereby two sets of section 318 protocols
would apply to the same set of goods at different points in time, would
complicate the consistent and efficient administration of regulations
designed to address an emergency.
In any event, while Commerce promulgated Part 358 as a method to
address emergencies declared pursuant to section 318(a), Commerce is
not prohibited from using different procedures, promulgated via notice-
and-comment rulemaking, when those procedures would be better suited to
address emergencies. The products at issue were not covered by an AD/
CVD order on the date of the Proclamation, and Commerce has determined
that in light of the emergency declared in the Proclamation, the
procedures outlined in the final rule are better suited than, and not
duplicative of, those outlined in Part 358.\55\ The electricity
emergency requires immediate relief as it is impacting an entire
industry and a significant number of Americans. The final rule more
efficiently and appropriately addresses the emergency declared in the
Proclamation.
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\55\ The use of Part 358 would also unduly limit the scope of
goods that would be eligible for relief. Part 358 requires that a
party mail an advance request, in triplicate, to the Secretary
asking for approval to import goods free of duty. If the Secretary
approves the request, then any goods must be imported within 60 days
of the party's notification of the Secretary's approval. 19 CFR
358.103(a), (b). So presumably any solar cells and modules that have
entered up to this point--even cells and modules that entered after
the Proclamation--would not be eligible for relief because they were
not approved as duty-free prior to entry. Such an outcome here would
upset the industry's reasonable reliance that at least post-
Proclamation imports would be free of AD/CVD duties--and such
reliance was an important policy objective of the Proclamation.
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9. Application of the Final Rule to Pre-June 6, 2022 Entries
Multiple commenters criticize the application of the proposed rule
to pre-June 6, 2022 entries--that is, to entries which entered prior to
the Proclamation's signing date, arguing that the Proclamation does not
permit ``retroactive'' effect. For example, some commenters contend
that any relief must be limited to goods that entered on or after the
date the Proclamation was signed, while others assert the opposite,
i.e., that the agency may lift suspension on pre-Proclamation entries
without collecting cash deposits or duties based on principles of
consistency, fairness, and certainty.
Response: Commerce disagrees that it is exercising section 318
authority outside the period of the emergency, or that its actions are
``retroactive'' as typically understood. The pre-Proclamation goods at
issue are unliquidated--that is, there has yet to be a ``final
computation or ascertainment of duties.'' \56\ In this final rule,
Commerce is taking action now (i.e., during the period of the
emergency) to extend the period before it directs CBP to suspend
liquidation and collect cash deposits and to waive any AD/CVD estimated
duties and duties for these unliquidated goods.\57\ In other words, the
final rule is stating, ahead of any imposition of such duties, that
there will be no such duties. Such a decision is prospective in its
application.
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\56\ See 19 CFR 159.1.
\57\ With respect to the extension of actions, under section
318, whereby the Secretary of Commerce is authorized to ``extend . .
. the time . . . for the performance of any act,'' Commerce is
effectively extending the time period established by regulation to
begin suspension of liquidation and cash deposit requirements. See
Proposed Rule, 87 FR at 39429.
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In any event, Commerce believes that it has authority under section
318 and its general rulemaking authority to apply this final rule to
relevant entries that entered the country prior to the date the
Proclamation was signed, but that remain unliquidated today. The AD/CVD
system in the United States is a retrospective one, under which ``final
liability for [AD/CVD] duties is determined after merchandise is
imported.'' \58\ Under this retrospective system, if Commerce makes an
affirmative preliminary determination as part of a circumvention
inquiry, it will direct CBP to suspend liquidation of entries that
entered on or after the date of publication of the initiation notice of
the circumvention inquiry and to collect cash deposits on those
entries, pending the final outcome of the circumvention inquiry.\59\
Prior to a preliminary determination, upon initiation, Commerce also
notifies CBP to continue suspending entries of products subject to the
circumvention inquiry that were already suspended, 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.\60\
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\58\ 19 CFR 351.212(a); sections 703(d), 705(c), 706, 733(d),
735(c), and 736 of the Act (discussing suspension, collection of
cash deposits, and assessment of duties).
\59\ See 19 CFR 351.226(l)(2).
\60\ See 19 CFR 351.226(l)(1).
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In the ordinary course, if there is an affirmative final
determination in a circumvention inquiry, suspension and collection of
cash deposits will continue on the merchandise at issue until such time
as there are affirmative final results issued in connection with an
administrative review or on an annual basis, if no administrative
review is requested, assessing duties on the relevant entries.\61\ In
other words, entries are suspended and cash deposits are collected to
liquidate the entries (i.e., the final ascertainment of duties) at a
later point in time. Accordingly, because the declaration of an
emergency in the Proclamation authorizes the waiver of ``duties and
estimated duties'' under the AD and CVD laws, it also authorizes, as
relief for the emergency, the waiver of the suspension of liquidation
and collection of cash deposits and permits liquidation of entries
without regard to AD and CVD duties.
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\61\ See section 751 of the Act.
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In addition to the AD and CVD laws being part of the Tariff Act of
1930, as amended, so too is the emergency statute at issue--section
318. Therefore, if the President determines that an emergency exists
under section 318 (as is the case here), and empowers agencies to take
certain actions to alleviate the emergency under the AD and CVD laws,
the passage by Congress of these provisions under the same Act supports
reading them in harmony.\62\ Accordingly, just as Commerce could take
action today, under the AD/CVD system established under the Tariff Act,
to affect the duty status of goods that previously entered the country
but that are still unliquidated, section 318 of the Tariff Act likewise
allows Commerce to take action today to affect the duty status of those
same unliquidated
[[Page 56878]]
entries.\63\ Moreover, the ``retrospective'' application of duties and
estimated duties, as it relates specifically to circumvention
proceedings under section 781 of the Tariff Act, is authorized by
Commerce's implementing regulations.\64\ Thus, Commerce may also use
notice-and-comment rulemaking to address the declared emergency.\65\
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\62\ See FDA v. Brown & Williamson Tobacco, 529 U.S. 120, 132-
133 (2000) (``It is a fundamental canon of statutory construction
that the words of a statute must be read in their context and with a
view to their place in the overall statutory scheme. . . . A court
must therefore interpret the statute as a symmetrical and coherent
regulatory scheme, . . . and fit, if possible, all parts into an
harmonious whole.'').
\63\ Notably, because there has not been any determination of
circumvention, all of the SA-Completed Solar Cells and Modules,
entering the United States post-initiation of the circumvention
inquiries, are entering free of AD and CVD estimated duties and are
not being suspended. This rule will maintain that status quo--
whether it be through the non-collection of cash deposits and not
ordering suspension in the first place or permitting liquidation,
should all other reasons for suspension expire, for entries
suspended under earlier instructions Commerce issued to CBP at the
initiation of the circumvention inquiries. Thus, the rule avoids
some of the typical concerns that can accompany ``retroactive''
applications of law.
\64\ See Regulations to Improve Administration and Enforcement
of Antidumping and Countervailing Duty Laws, 86 FR 52300, 52344,
52346 (September 20, 2021).
\65\ Inasmuch as some commenters argue that the Proclamation did
not intend to reach pre-Proclamation entries, Commerce notes that
the President directed the Secretary to consider permitting duty-
free importation of the relevant goods ``until 24 months after the
date of this proclamation or until the emergency declared herein has
terminated.'' While this language specifies an end date to consider
for duty-free treatment, it does not specify a start date, and
Commerce believes it is appropriate, as well as consistent with the
usual operation of our circumvention proceedings, to treat the goods
in a uniform fashion until the Date of Termination.
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10. Market Certainty
In the Proposed Rule, Commerce offered multiple policy reasons for
applying the rule to pre-Proclamation entries, one of which was that it
would help avoid market uncertainty and confusion. Three commenters
dispute this rationale.
Three different commenters, who generally support the Proposed
Rule, maintain that subjecting pre-June 6th entries to duties based on
the Solar Circumvention Inquiries, would ``sow confusion in the
market'' and discourage solar product production. Nine commenters
generally indicate prevalent uncertainty in the solar market.
Response: The purpose of the Proclamation is to increase the supply
of United States solar energy for electricity generation purposes.
Commerce has determined that applying the final rule to pre-
Proclamation entries will further that goal.
As noted in the Proposed Rule, the President has determined that an
emergency exists that affects both current and potential future energy
projects that depend on solar module imports. Consistent with the
purpose of the Proclamation to allow for more imports, 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, as mentioned in the Proposed Rule, there may be
ongoing projects that use some modules imported before the
Proclamation's signing and other modules imported afterwards. It is
consistent with the aims of the Proclamation to take steps to ensure
that such firms have the capital needed to complete these projects and
to otherwise build capacity.
Commerce acknowledges that concerns about potential market
uncertainty or confusion are inherently speculative, but these concerns
are not its only reason for its decision, and three commenters concur
that applying duties to pre-Proclamation entries would ``sow confusion
in the market'' and otherwise discourage production of crystalline
silicon photovoltaic solar products. Given that the final assessment of
duties may not be calculated immediately, firms that imported prior to
the Proclamation might reasonably be uncertain as to how much they will
ultimately owe, and this uncertainty might discourage further
investment. Commerce thus agrees with commenters who argued that the
application of the final rule to pre-Proclamation entries is likely to
``promot[e] the market stability that the President sought to achieve
when he issued the Proclamation.''
Additionally, Commerce finds that the uniform treatment of
merchandise covered by a circumvention inquiry is desirable because it
is consistent with the broader trade system. Even as the invocation of
section 318 is an unusual event, the application of the final rule to
pre-Proclamation entries ensures that merchandise that is otherwise
considered the same under the circumvention laws and regulations is
treated the same.
Ultimately, based on the comments and submissions provided by
commenting parties, Commerce concludes that applying this final rule to
pre-Proclamation entries is reasonable considering the emergency
declared by the President and as further discussed in the Preambles to
the Proposed Rule and this final rule.
11. Merchandise That Entered Before Initiation of the Solar
Circumvention Inquiries
Under 19 CFR 351.226(l)(1), upon notice of the initiation of a
circumvention inquiry, Commerce is to also notify CBP of the initiation
of the inquiry and ``direct the Customs Service to continue the
suspension of liquidation of entries of products subject to the
circumvention inquiry that were already subject to the 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.'' One commenter observes that, at the time of the initiation
of the circumvention inquiries, Commerce instructed CBP only to
continue to suspend entries that were already suspended according to
the China Solar Orders underlying the circumvention inquiries. Its
comments elaborate that, although 19 CFR 362.103(b)(1)(i) indicates
that Commerce ``will instruct CBP to discontinue such suspension of
liquidation and collection of cash deposits based on the circumvention
inquiry,'' because Commerce sent its original instructions only with
respect to entries that were already suspended pursuant to AD/CVD
orders, directing CBP to lift suspension pursuant to 19 CFR
362.103(b)(1)(i), as formulated in the Proposed Rule, could create
confusion and inadvertently result in CBP liquidating entries that
should remain suspended under the AD/CVD orders. Accordingly, the
commenter claims there is no need for 19 CFR 362.103(b)(1)(i).
Response: Section 19 CFR 351.226(l)(1) speaks to continuing the
suspension of liquidation of, and collecting deposits on, entries
subject to the circumvention inquiries that ``were already subject to
suspension.'' \66\ Consistent with the Proclamation, it is appropriate
that Commerce notify CBP, pursuant to the final rule, that, if entries
at this point are suspended solely as a result of the circumvention
inquiries, then there is no longer a reason to continue suspension of
the relevant entries.
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\66\ See 19 CFR 351.226(l)(1) (``[Commerce] will notify [CBP] to
continue suspension of liquidation of entries of products subject to
a circumvention inquiry that were already subject to the suspension
of liquidation'').
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After consideration of this commenter's concern, however, Commerce
has clarified the final rule in 19 CFR 362.103(b)(1)(i) to reflect that
the instructions Commerce issues to CBP will address only entries
currently suspended pursuant to 19 CFR
[[Page 56879]]
351.226(l)(1), rather than to any entries that were suspended pursuant
to the China Solar Orders underlying the circumvention inquiries.
12. Commerce's Mission
Several commenters contend that this rulemaking is counter to
Commerce's mission to ensure a level playing field for U.S. industries
and establishes dangerous precedent for Commerce and potentially other
agencies.
Response: We disagree that this rulemaking is counter to Commerce's
mission or creates a dangerous precedent for the enforcement of AD/CVD
laws or for other agencies. Separate from its usual administration of
the AD/CVD laws under the Act, the same Act also authorizes Commerce to
take steps in response to an emergency declaration by the President.
More broadly, Commerce's administration of the AD/CVD laws pursuant
to the Act is robust, and enforcement is the key focus for each of the
more than 650 AD/CVD orders in place. This final rule is limited to
extending and waiving the application of certain regulations, if
otherwise applicable, to certain solar cells and modules subject to
circumvention inquiries currently before Commerce. The circumvention
proceedings themselves continue uninterrupted, and if Commerce finds
the existence of circumvention when the inquiries conclude, the
remedies to the declared emergency will apply under this final rule
only during the emergency period. In addition, as detailed above, we
have made certain modifications to the regulations that require SA-
Completed Cells and Modules that benefit from this rule be utilized
(i.e., will be used or installed in the United States) by the
Utilization Expiration Date, which is 180 days following the Date of
Termination.
13. Impact on Other Policies
Several commenters assert that the Proposed Rule undermines U.S.
policies to counter China's harmful and predatory trade practices, such
as violations of intellectual property rights and human rights abuses.
One commenter also asserts that the Proposed Rule undermines the U.S.
climate goal agenda because it allows unfairly traded Chinese solar
modules and cells to dominate the U.S. market, and because China uses
significant quantities of fossil fuels to produce solar modules and
cells.
Response: We disagree that the final rule undermines U.S. policy
with respect to China trade practices. U.S. trade policy reflects
numerous initiatives to address unfairly traded imports, injurious
import surges, intellectual property theft, human rights abuses, and
forced labor practices. The final rule is a limited step to extend and
waive the application of certain regulations, if otherwise applicable,
to solar cells and modules, exported from identified Southeast Asian
countries, that are subject to certain circumvention inquiries
currently before Commerce. Even with respect to trade in solar cells
and modules from these Southeast Asian countries, Commerce's conduct of
the circumvention proceedings themselves continues uninterrupted.
With respect to U.S. climate agenda goals, the final rule is a
temporary measure designed to address the Proclamation's declared
electricity emergency by encouraging the further importation of solar
cells and modules. Commerce would note that insofar as commenters argue
that a strong domestic solar manufacturing industry will further the
climate agenda over the long run, and that this final rule could
detrimentally affect the development of the industry, Commerce believes
that the final rule is tailored to provide the necessary remedy the
United States needs to address the energy supply emergency at this
moment in time, for the immediate future. The measure has been
calibrated in both scope and duration and it is a part of a broader
group of government actions designed to support the domestic solar
manufacturing industry, while still pursuing climate-friendly energy
goals.\67\ In addition, we note, as discussed above, that even solar
panels that are created using fossil fuels will offset their emissions
within months of operation, while the average solar panel is expected
to last decades.
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\67\ Several commenters incorporate evidence showing that much
needed progress in solar panel deployment is critical to achieving
the government's goals of decarbonization and addressing climate
change. See U.S. Dept. of Energy, Solar Futures Study, (Sept. 2021),
pages 1-22 (detailing the Biden Administration's goal of
decarbonizing the electricity grid by 2035 and how solar plays a
major role due to its uniquely modular characteristics with high
deployment rates estimated to have long-term benefits in the
trillions of dollars from climate change mitigation and avoided
public health costs) <a href="https://www.energy.gov/eere/solar/solar-futures-study">https://www.energy.gov/eere/solar/solar-futures-study</a>; see also American Clean Power, Clean Power Annual
Market Report 2021 (2022) (including diagrams showing that a 100 MW
solar project avoids 139,000 metric tons of emissions each year and
can power 20,000 American homes, and that all wind and solar
capacity installed in 2021 can reduce annual emissions by an
estimated 398 million metric tons) <a href="https://cleanpower.org/wpcontent/uploads/2022/05/2021-ACP-Annual-Report-FinalPublic.pdf">https://cleanpower.org/wpcontent/uploads/2022/05/2021-ACP-Annual-Report-FinalPublic.pdf</a>.
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Insofar as commenters express concerns regarding China's labor
practices, those comments are outside the scope of this rulemaking. The
application and enforcement of the Uyghur Forced Labor Prevention Act
is unaffected by the invocation of section 318 or this final rule, as
is CBP's broader authority to prevent merchandise produced using forced
labor from being imported into the United States.\68\
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\68\ See 19 U.S.C. 1307.
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14. Stockpiling
Three commentators expressed concerns that Commerce's decision to
impose estimated duties prospectively has broad ramifications that
could allow for unfairly traded imports to be stockpiled in the U.S.
Response: It is not Commerce's goal to have merchandise that enters
before the Date of Termination be used in projects long into the
future, as the emergency declared by the President exists at this very
moment. Accordingly, Commerce has decided to make certain modifications
to the regulations to address this issue.
First, Commerce has added a requirement that all merchandise that
benefits from this rule must be utilized in the United States by the
Utilization Expiration Date, which is 180 days following the Date of
Termination. The final rule defines ``utilization'' and ``utilized'' to
mean the SA-Completed Cells and Modules will be used or installed in
the United States. The addition of this requirement to the definition
of ``Applicable Entries'' makes clear that this rule is not intended to
benefit those who would stockpile SA-Completed Cells and Modules for an
extended period of time.
Furthermore, the final rule includes a provision which directs
Commerce to issue instructions to CBP directing it to suspend
liquidation and collect cash deposits following affirmative preliminary
and final circumvention determinations if certain entries are subject
to the Solar Circumvention Inquiries but will not be utilized in the
United States by the Utilization Expiration Date. Only merchandise that
is covered by the Solar Circumvention Inquiries, is utilized by the
Utilization Expiration Date, and in most cases, enters before the Date
of Termination, should benefit from this rule.
15. Certifications
One commenter expresses concern that the Proposed Rule imposes no
certification or other documentation requirements to ensure that the
duty-exempted imports of solar products qualify as supplies for use in
emergency relief work.
[[Page 56880]]
Response: Consistent with the President's Proclamation and to
provide relief from the emergency identified by the President, the
final rule provides for the duty-free importation of SA-Completed Cells
and Modules until the Date of Termination and extends the time for
certain actions provided for in Commerce's regulations pertaining to
circumvention inquiries. However, as detailed above, Commerce is making
certain modifications to the regulations that now require the SA-
Completed Cells and Modules that benefit from this rule to be utilized
(i.e., to be used or installed in the United States) by the Utilization
Expiration Date, which is 180 days following the Date of Termination.
In addition, this final rule at Sec. 362.104 does not preclude
Commerce from requiring a certification for SA-Completed Cells and
Modules pursuant to Sec. 351.228 in the event of an affirmative
preliminary or final determination in the solar circumvention
inquiries. Accordingly, Commerce does not find it necessary to impose
the certification requirements requested by this commenter in this
final rule.
16. Termination Before a Final Circumvention Inquiry, Early
Termination, and Notice to CBP
Multiple commenters point out that the Proposed Rule did not
address the scenario in which the President determines that the
emergency is over before Commerce issues a final circumvention
determination, following an affirmative preliminary circumvention
determination.
One commenter requests Commerce clarify that, should the Date of
Termination occur after publication of an affirmative preliminary
determination, but before the publication of a final determination,
Commerce should immediately instruct CBP to suspend liquidation of
entries of merchandise determined to be circumventing the China Solar
Orders and begin collecting cash deposits.
Five other commenters request that Commerce's final rule provide
additional predictability in the event of an early termination of the
emergency. They argue that the 24-month period to address the emergency
is unlikely to change, because solar manufacturing and deployment
require years of advance deployment, and the industry will not be able
to solve the crisis in only two years. Still, they request that
Commerce provide a ``wind down'' period to give purchasers time to
adjust to a sudden change and avoid market uncertainty. They say that
such a wind down period will help in an industry with long and complex
project timelines. Specifically, they request that Commerce clarify in
the final rule that in the event of a termination prior to June 6,
2024, no AD/CVD cash deposit requirements or duty liability would
become effective as to entries made during the four months following
the Date of Termination.
Finally, one commenter notes that the Proposed Rule does not speak
to how CBP would be notified of the Date of Termination. They argue
that a final rule should clarify that Commerce would be responsible for
immediately notifying CBP of the Date of Termination and instructing
CBP to take appropriate action triggered by the Date of Termination.
Response: Commerce has taken the concerns expressed by the
commenters into consideration, and in Sec. 362.103(b) has added a new
subsection (3) and revised subsection (2). Section 362.103(b)(2) now
addresses the scenario in which the emergency is declared terminated
``early,'' following an affirmative preliminary or final circumvention
determination, while Sec. 362.103(b)(3) addresses the scenario in
which the emergency terminates on June 6, 2024, following an
affirmative preliminary or final circumvention determination. Commerce
agrees that whenever the emergency terminates, it should notify CBP as
to the Date of Termination. Accordingly, in the final rule, Sec.
362.103(b)(2) states that if the emergency described in the
Proclamation is terminated before June 6, 2024, Commerce will direct
CBP to suspend liquidation and collect cash deposits on merchandise
that enter on or after an appropriate date which is on or after the
Date of Termination.
Under that provision, Commerce would consider the implementation
and direction of the President in terminating the emergency for
purposes of determining an appropriate entry date on or after the Date
of Termination for which liquidation of entries will be suspended and
on which cash deposits will be collected on unliquidated entries of SA-
Completed Cells and Modules.
Furthermore, in the final rule, Sec. 362.103(b)(3) states that if
the emergency is not terminated earlier than June 6, 2024, and there is
an affirmative preliminary or final circumvention determination,
Commerce will issue instructions to CBP informing it that June 6, 2024
is the Date of Termination, and directing CBP to begin suspending
liquidation and requiring cash deposits for unliquidated entries of SA-
Completed Cells and Modules that are entered, or withdrawn from
warehouse, for consumption on or after that date.
With respect to the request for a ``grace period'' when an
emergency is declared terminated on a date earlier than June 6, 2024,
Commerce understands the need for market certainty and predictability
for exporters and importers, but Commerce finds that this request is
premature. The President determined in the Proclamation that an
emergency exists, and we do not know at this time if the emergency will
continue to exist through June 6, 2024 or will be terminated earlier
than that date.
Furthermore, even if the emergency is terminated earlier than that
date, we do not know the means by which the President would implement
and direct such a termination. For example, six months after issuing
Presidential Proclamation 2708, which declared an emergency and allowed
for the duty-free importation of timber, lumber, and lumber products,
President Truman subsequently issued Presidential Proclamation 2735 on
June 28, 1947, which terminated the emergency.\69\ Although he issued
the Emergency Termination Proclamation on June 28, the Proclamation did
not provide for the termination of the emergency until August 15,
1947--6 weeks later. In other words, President Truman granted the
lumber industry 6 weeks to prepare for the end of duty-free
importation. We understand that some commenters are requesting a
similar type of notification ahead of time to get their affairs in
order, should the President declare the emergency terminated before
June 6, 2024.
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\69\ Proclamation No. 2735, 12 FR 4255 (July 2, 1947)
(Importation of Timber, Lumber and Lumber Products) (Emergency
Termination Proclamation).
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If the President decides that the emergency should be terminated on
a date before June 6, 2024, as explained above, Commerce has adjusted
the language of Sec. 362.103(b)(2) so that Commerce has greater
flexibility to issue instructions to CBP that provide for an
appropriate alternative date of entry for the application of suspension
of liquidation and collection of cash deposits, if necessary, depending
on the President's execution of any termination of the emergency.
17. Waiver of Both Duties and Estimated Duties
Three commenters request the final rule expressly waive both duties
and estimated duties imposed under 19 U.S.C. 1671, 1673, 1675, and
1677j, consistent with the direction of the Proclamation.
Response: Upon consideration of these technical comments, Commerce
[[Page 56881]]
acknowledges that the heading to proposed Sec. 362.103(a) was titled
``importation of applicable entries free of duties,'' but the text of
the proposed provision itself speaks to ``the importation of Applicable
Entries free of the collection of antidumping and countervailing
estimated duties . . . .'' and the Proclamation says that Commerce may
allow importation ``free of the collection of duties and estimated
duties.'' In light of the inconsistent terms in the proposed Sec.
362.103(a), Commerce has amended the header of Sec. 362.103(a) in this
final rule to read ``Importation of applicable entries free of duties
and estimated duties'' (emphasis added). Furthermore, Commerce has also
amended the text of Sec. 362.103(a) to apply to both ``duties and
estimated duties,'' consistent with the terms used in the Proclamation.
Waive All Duties and Estimated Duties, Including From Future
Investigations
Three commenters support Commerce's Proposed Rule but argue that
the final rule should more broadly and expressly waive duties and
estimated duties under 19 U.S.C. 1671, 1673, 1675, and 1677j. These
commenters argue that because the Proclamation expressly cited these
authorities, the extension and waiver must apply to all AD/CVD measures
and not only circumvention findings. These commenters also argue that
because the Proclamation cited these authorities, it necessarily also
means that the waiver must apply to any requirements resulting from new
AD/CVD petitions on solar products from the four subject countries.
Response: In the Proposed Rule, and this final rule, Commerce has
interpreted the Proclamation to call for action in connection with SA-
Completed Cells and Modules. The Proclamation stated that immediate
action is needed to ensure that the United States has access to a
sufficient supply of solar modules to assist in meeting electricity
generation needs. In that light, the Proclamation directed the
Secretary to consider taking certain appropriate actions with respect
to solar cells and modules exported from Cambodia, Malaysia, Thailand,
and Vietnam that are not already subject to an antidumping or
countervailing duty order as of the date of the Proclamation. At the
time of the Proclamation, Commerce had, and continues to have, ongoing
circumvention inquiries covering certain solar cells and modules
exported from these Southeast Asian countries that were not already
subject to an AD/CVD duty order as of the date of the Proclamation.
There were not, and currently are not, AD and/or CVD petitions before
Commerce involving certain solar cells and modules exported from these
Southeast Asian countries. Accordingly, Commerce finds the question of
hypothetical AD/CVD petitions to be beyond the scope of this final
rule.
Additionally, Commerce disagrees that the inclusion of 19 U.S.C.
1671, 1673, 1675, and 1677j in the Proclamation requires the express
waiver of duties related to all measures, including new investigations.
The Proclamation directs Commerce to consider the waiver of ``duties
and estimated duties, if applicable, under Sec. Sec. 1671, 1673, 1675
and 1677j.'' The only duties and estimated duties that are potentially
applicable in this circumstance--at least as more than a hypothetical--
are those in connection with the ongoing circumvention inquiries,
pursuant to section 1677j. Commerce does not believe that a citation to
those provisions in the Proclamation necessitates addressing
hypotheticals in the final rule.
19. Rules of Origin for CSPV Cells and Modules
Three commenters support Commerce's Proposed Rule, but specifically
requested clarification and confirmation as to the applicable rules of
origin for crystalline silicon photovoltaic cells and modules. They
request that Commerce explicitly cite to existing precedent to avoid
any confusion as to the correct rules. As the commenters note, Commerce
has already analyzed the issue with respect to what stage of the
manufacturing process is key for determining the ``essential
character'' of a crystalline silicon photovoltaic cell and module. The
commenters quote from Commerce's past scope rulings on the issue, which
state that the ``positive/negative junction that is needed for the
conversion of sunlight into electricity'' forms ``the essential
component of the solar cell,'' which means that wafers are not solar
cells. The commenters assert that industry reasonably relies on
predictability in the interpretation and administration of AD/CVD
orders, including with respect to rules of origin and scope.
Response: Commerce finds this summary to be an accurate
representation of its practice with respect to the country-of-origin
rules for Chinese crystalline silicon photovoltaic cells and modules,
and we see no reason to otherwise restate our country-of-origin
analysis for purposes of this final rule.
20. Expedited Liquidation
Two commenters state that the Proposed Rule should allow importers
to request that Commerce instruct CBP to liquidate entries on an
expedited basis. These commenters argue that, prior to liquidation,
importers will be unsure of their final duty liability, causing
uncertainty when investing in solar projects, and that requiring firms
to wait 314 days or more for confirmation that these imports will not
be retroactively subject to duties fails to address this need.
Response: Commerce disagrees with these commenters. To provide
relief for the emergency declared by the Proclamation, the final rule
makes clear that duties and estimated duties will not be collected on
entries of SA-Completed Cells and Modules that entered the United
States before the Date of Termination and that are used in the United
States by the Utilization Expiration Date. It thus will provide
sufficient certainty to market participants. The liquidation of any
relevant entries will occur in the normal course, and there is no
reason to expedite such liquidation.
21. Shipment Through Intermediary Countries
One commenter requests that the Proposed Rule clarify that duty-
free treatment applies to the identified solar cells from the subject
countries even if shipped through or assembled into modules in an
intermediary country before importation to the United States. This
commenter expressed concern that if imports from Cambodia, Malaysia,
Thailand or Vietnam are shipped through or assembled in an intermediary
country, they would not be considered ``exported from'' or ``completed
in'' one of those four countries.
Response: The final rule provides for duty-free treatment 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 China, and
subsequently exported from Cambodia, Malaysia, Thailand or Vietnam to
the United States and not already covered by the China Solar Orders.
For merchandise to benefit from this rule, it must be exported from
those four countries. If a product is completed in one country and
exported through an intermediary country, it may retain the country of
origin of the country in which it was completed. However, if it is
further assembled in another country, that merchandise will not be
considered
[[Page 56882]]
``exported from Cambodia, Malaysia, Thailand or Vietnam to the United
States.'' Consistent with the normal course, CBP may request
clarification of Commerce's instructions should questions about a
particular entry arise. As such, Commerce does not find it necessary to
revise the Proposed Rule. To be clear, if a SA-Completed Cell or Module
is further assembled in a third country, that product will not be
considered a SA-Completed Cell or Module for purposes of this final
rule.
Classification
Executive Order 12866
The Office of Management and Budget has determined that this final
rule is economically significant for purposes of Executive Order 12866.
Commerce has considered the economic impact of this rulemaking,
including information from commenters, as summarized below.
Regulatory Impact Analysis
The purpose of this final rule is to take 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.
To address that need, this final rule is temporarily extending the
time period for Commerce to direct CBP to suspend liquidation and
collect cash deposits if there is a preliminary or final circumvention
determination and is also temporarily removing the requirement that
importers of SA-Completed Cells and Modules deposit estimated
antidumping and countervailing duties, if otherwise applicable as a
result of the circumvention inquiries. Further, this rule temporarily
permits the importation of the SA-Completed Cells and Modules free of
duties that may result from the ongoing circumvention inquiries under
the antidumping and countervailing duty laws.
The 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 GW in 2022.\70\ The EIA projects that the
share of U.S. power generation from renewables will increase from 21
percent in 2021 to 44 percent by 2050, and that solar will account for
approximately 50 percent of renewable energy generation.\71\
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\70\ 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>.
\71\ U.S. Energy Information Administration, EIA Projects that
Renewable Generation Will Supply 44% of U.S. Electricity by 2050
(Mar. 18, 2022), https://www.eia.gov/todayinenergy/
detail.php?id=51698#:~:text=In%20our%20Annual%20Energy%20Outlook,new%
20wind%20and%20solar%20power.; see also DOE report at 2.
---------------------------------------------------------------------------
Additionally, in September 2021, the DOE released the Solar Futures
Study \72\ 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 percent of the nation's
electricity, drive deep decarbonization of the grid, and employ as many
as 1.5 million people--without raising electricity prices. These
longer-term projections, although not accounting for the additional
effects of the Inflation Reduction Act, illustrate the growing
importance of solar power. The new capacity additions provided by solar
are essential to meeting the resource adequacy needs for the
electricity system. However, the sum of domestic solar manufacturing
plus solar imports is well below what the EIA predicts is necessary for
electric utilities in the United States to meet the anticipated demand
while domestic solar manufacturing scales up. According to the
Department of Energy, continued shortage of solar equipment could
reduce domestic solar deployment over the next year by 12-15 GW, enough
to power over 2 million homes.\73\ Most other power generation
technologies cannot fill this void within such a short timeframe--for
example, the time to build a natural gas plant ranges from 2 to 10
years.\74\ Nor would conventional fossil-fuel plants provide the
climate-impact benefits of solar power.
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\72\ U.S. Dept. 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>.
\73\ U.S. Dept. of Energy, Acute Shortage of Solar Equipment
Poses Risks to the Power Sector, 1 (June 2022), available at <a href="https://www.energy.gov/sites/default/files/2022-06/June%202022%20DOE%20Solar%20Market%20Update.pdf">https://www.energy.gov/sites/default/files/2022-06/June%202022%20DOE%20Solar%20Market%20Update.pdf</a>.
\74\ See, e.g., Seth Blumsack, Basic Economies of Power
Generation, Transmission and Distribution, The Pennsylvania State
University, available at <a href="https://www.e-education.psu.edu/eme801/node/530">https://www.e-education.psu.edu/eme801/node/530</a>.
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The United States is currently dependent on imports to enable solar
capacity additions. As the Proclamation notes, the vast majority of
solar modules installed in the United States in recent years were
imported, with those from Southeast Asia making up approximately three-
quarters of imported modules in 2020 alone \75\ and two-thirds in 2020
and 2021 combined.\76\ The nation's current domestic module production
capacity comprises less than one-fourth of near-term market demand and
less than one-tenth what would be required to meet the country's
climate targets and energy security needs.\77\
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\75\ U.S. Dept. of Energy, Solar Photovoltaics: Supply Chain
Deep Dive Assessment, 2-3 (Feb. 24, 2022), available at <a href="https://www.energy.gov/sites/default/files/2022-02/Solar%20Energy%20Supply%20Chain%20Report%20-%20Final.pdf">https://www.energy.gov/sites/default/files/2022-02/Solar%20Energy%20Supply%20Chain%20Report%20-%20Final.pdf</a>.
\76\ See DOE Report at 2.
\77\ U.S. Dept. of Energy, Acute Shortage of Solar Equipment
Poses Risks to the Power Sector, 1 (June 2022), available at <a href="https://www.energy.gov/sites/default/files/2022-06/June%202022%20DOE%20Solar%20Market%20Update.pdf">https://www.energy.gov/sites/default/files/2022-06/June%202022%20DOE%20Solar%20Market%20Update.pdf</a>.
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A public report by the USITC, Publication 5266, published in
December \78\ provides useful information about importers of CSPV solar
cells and modules, including information about the class of entities
directly regulated by this final rule. USITC Publication 5266 further
estimated the total value of imports of CSPV cells and modules from all
sources at over $9 billion in 2020.\79\ Information from USITC
Publication 5266 shows that the leading sources of imported modules in
both 2020 and 2021 were Malaysia, Vietnam, and Thailand.\80\
Furthermore, USITC Publication 5266 and Census Bureau data show that
Korea was the top source for imported CSPV cells in both 2020 and 2021,
but CSPV cell imports from Malaysia, Vietnam and Thailand nearly
doubled in 2021 compared to 2020,\81\ indicating that U.S. panel
manufacturers became more reliant on solar cells from those countries.
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\78\ U.S. International Trade Commission (December 2021),
Crystalline Silicon Photovoltaic Cells, Whether or Not Partially or
Fully Assembled Into Other Products (hereinafter, USITC Publication
5266). <a href="https://www.usitc.gov/publications/other/pub5266.pdf">https://www.usitc.gov/publications/other/pub5266.pdf</a>.
\79\ USITC Publication 5266 at I-42. Note that these figures
pertained to imports from all sources and were not specific to
imports from the four Southeast Asian countries at issue in this
final rule.
\80\ USITC Publication 5266 at page V-8.
\81\ USITC Publication at page V-1 (2020 data only); <a href="https://usatrade.census.gov/">https://usatrade.census.gov/</a> for HS Code 8541.40.60.25 for 2020 and 2021.
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A recent decline in imports of CSPV modules from Southeast Asia has
exacerbated the discrepancy between available components and projected
needs. Census Data indicate that total imports of modules from the four
Southeast Asian countries that are the subject of this rule declined
over 30 percent over January to June 2022 compared to the same time
frame in 2021.\82\ Supply constraints on solar
[[Page 56883]]
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 demands while
domestic manufacturing capacity scales up. As noted previously, several
large-scale solar installation projects have already reportedly been
delayed due to an insufficient supply of components.\83\ Although some
commenters disputed the existence of an emergency, a number of other
commenters representing the U.S. solar industry also reported that
their or their members' projects had been delayed or that future
projects were threatened.
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\82\ Census Bureau data available at <a href="https://usatrade.census.gov">https://usatrade.census.gov</a>
for HTS codes 8541.40.60.15 and 8541.43.00.10, Second Unit of
Quantity (watts) for the four selected countries.
\83\ See response to Comment 4 and the cited sources: Tomich,
Jeffrey, Solar Market Turmoil Delays Ind. Coal Shutdown (May 5,
2022), available at <a href="https://www.eenews.net/articles/solar-market-turmoil-delays-ind-coal-shutdown/">https://www.eenews.net/articles/solar-market-turmoil-delays-ind-coal-shutdown/</a>; Salt River Project, Coolidge
Expansion Project FAQ, How does growing demand contribute to
resource constraints?, available at <a href="https://www.srpnet.com/grid-water-management/grid-management/improvement-projects/coolidge-expansion-project-faq">https://www.srpnet.com/grid-water-management/grid-management/improvement-projects/coolidge-expansion-project-faq</a>. Office of the Governor of California, Letter
to U.S. Department of Commerce Secretary Gina M. Raimondo (April 27,
2022), available at <a href="https://s3.documentcloud.org/documents/21761581/newsom-letter.pdf">https://s3.documentcloud.org/documents/21761581/newsom-letter.pdf</a>.; Mangieri, Gina, Power Cost Hike, Supply Crunch
Ahead as Last Hawaii Coal Plant Closes (June 24,2022), available at
<a href="https://www.khon2.com/always-investigating/power-cost-hike-supply-crunch-ahead-as-last-hawaii-coal-plant-closes/">https://www.khon2.com/always-investigating/power-cost-hike-supply-crunch-ahead-as-last-hawaii-coal-plant-closes/</a>.
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USITC Publication 5266 provides information about solar projects
that may be affected by difficulties in obtaining solar components and,
more positively, by the measures in this final rule to address such
difficulties. Based on questionnaire responses, purchasers of domestic
and imported solar cells and modules were identified as utility
companies/developers, commercial installers, residential installers,
distributors, module assemblers, and ``other'' firms.\84\ Among end
user purchasers of solar cells and modules (i.e., installers or utility
firms), 84.5 percent of their total projects completed in 2020 were
estimated to be in the utility sector, while 8.6 percent were in the
commercial sector, and 6.1 percent were in the residential sector. For
purchasers that were distributors, an estimated 48.7 percent of their
2020 resales were to residential installers, 35.0 percent were to
commercial installers, and 16.3 percent were to utility installers/
developers.\85\ Moreover, as commenters pointed out, the solar projects
that may be indirectly impacted by this final rule account for a
significant amount of employment. According to the National Solar Jobs
Census 2021 published by the Interstate Renewable Energy Council
(IREC), a total of 255,038 full time jobs exist in the solar sector. Of
these, IREC identified 168,960 in the category ``Installation and
Project Development'' and 33,099 in ``Manufacturing.'' The majority of
installation jobs, 85,305 jobs, are in the residential sector, while
commercial and utility-scale each represent about 20 percent of the
total installation and development jobs with 34,329 and 33,808 jobs,
respectively.\86\
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\84\ USITC Publication 5266 at page I-45. ``Other'' firms
included a developer/owner of commercial, residential, industrial
and small-scale utility projects, a developer/owner of commercial,
industrial and small-scale utility projects, a utility company/
developer/financier, a solar project developer, a commercial an
distributed generation developer, an end user and retailer, an
engineering corporation, an ``operator,'' a module manufacturer, an
importer/distributor, and an ``EPC of utility scale and rooftop
solar.''
\85\ Id. at page I-46.
\86\ National Solar Jobs Census 2021, at page 19, available at
<a href="https://irecusa.org/programs/solar-jobs-census/">https://irecusa.org/programs/solar-jobs-census/</a>. A recent DOE study
provides similar employment information for 2021, estimating 253,052
solar workers who spent 50 percent or more of their time on solar
and 333,887 workers who spent any of their time on solar. See U.S.
Dept. of Energy, United States Energy and Employment Report (June
2022) at 20, available at <a href="https://www.energy.gov/sites/default/files/2022-06/USEER%202022%20National%20Report_1.pdf">https://www.energy.gov/sites/default/files/2022-06/USEER%202022%20National%20Report_1.pdf</a>.
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The intended impact of this final rule, with its temporary
duration, is to encourage continued progress on such solar projects. In
taking the actions in this final rule, Commerce is responding to the
emergency declared by the Proclamation and removing 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 insufficient
imports of modules from Southeast Asia for future installations; DOE
estimates that the current shortage of solar equipment could
potentially reduce domestic solar deployment over the next year by 12-
15 GW.\87\ EIA data indicate that in the first half of 2022 only 4.2 GW
of capacity for large-scale (1 megawatt or greater) solar photovoltaic
installations became operational compared to 9.5 GW that were expected
as of the end of 2021. The same data indicate that over 13 GW of large-
scale solar PV is scheduled to be commissioned in the second half of
2022.\88\ Meanwhile, in 2023 the capacity of solar additions could be
over 25 GW, according to the data reported to the EIA.\89\ Given the
strong interest in ensuring access to a sufficient supply of solar
modules to assist in meeting the United States' electricity generation
needs in a manner that addresses the threat of climate change and
reduces dependence on fossil fuels, this final rule removes 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 efforts are made to expand domestic capacity.
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\87\ See DOE Report at 3.
\88\ Preliminary Monthly Electric Generator Inventory (based on
Form EIA-860M as a supplement to Form EIA-860), June 2022 (published
July 26, 2022) and December 2021 (published February 24, 2022),
available at <a href="https://www.eia.gov/electricity/data/eia860m/">https://www.eia.gov/electricity/data/eia860m/</a>.
\89\ Id.
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Thus, Commerce assesses that the benefits of this final rule derive
from the need for immediate action to ensure access to a sufficient
supply of solar modules to assist in meeting the United States'
electricity generation needs while reducing the burning of fossil
fuels, which drives climate change and presents a threat to national
security. Helping ensure that planned solar projects can proceed also
supports the jobs required for those projects.
Commerce has also assessed the anticipated costs that may accompany
adoption of the rule.
The direct costs of this final rule on regulated entities, Commerce
has concluded, are minimal. The rule provides for an exemption from the
collection of cash deposits and duties, if applicable, on imports of
certain SA-Completed Cells and Modules. The affected importers would
not need to take additional action to come into compliance with this
rule.
This final rule might result in decreased totals of AD or CVD
duties collected, but the quantification of any such decrease would be
speculative. At the time of publication of this final rule, 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 final rule. 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.
[[Page 56884]]
Commerce also recognizes that there are likely to be costs
associated with indirect impacts of this final rule, in particular
those that may affect domestic producers of cells and modules, whose
products compete with the imports at issue in this rule. Based on
responses from 14 firms reporting domestic production of solar cells
and/or modules, USITC Publication 5266 identified domestic
manufacturers located across 11 states.\90\ At the time of publication
in 2021, there were approximately 20 domestic plants manufacturing
solar modules, with nine additional plants having been publicly
announced; \91\ in addition, plans for three plants to manufacture
solar cells had been announced or were under consideration.\92\ A
number of commenters pointed out the potential harm to domestic
producers from allowing imports to enter the United States without
otherwise applicable AD/CVD duties, including the possible loss of U.S.
jobs.
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\90\ Id. at page I-37.
\91\ Id. at page I-26 to I-28.
\92\ Id. at page I-23 to I-24.
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The rule, however, has been crafted to limit these indirect costs.
The rule's scope is constrained, applying only to solar cells and
modules exported from the four identified countries that may be the
subject of affirmative preliminary or final determinations in certain
circumvention inquiries currently before Commerce. At least as
significantly, the rule only temporarily extends the period for
Commerce to direct CBP to suspend liquidation and collect cash deposits
and further only temporarily lifts the requirements of importers to
make deposits on relevant items and to pay otherwise applicable duties
that may result from the ongoing circumvention inquiries; these
measures will be in place for a maximum of 24 months from the date of
the Proclamation, may be ended earlier if the emergency has terminated
before that date. More than that, for entries that enter after the
effective date of this rule, these measures will not apply if the
entries are not used by the Utilization Expiration Date. These
limitations reflect an effort to ensure a needed supply of solar
components in the short-term while at the same time limiting costs to
domestic producers and supporting efforts to expand domestic production
capacity by the Date of Termination.
In conclusion, in evaluating the overall impact of this final rule,
Commerce assesses that the benefits of the rule, which provides for
immediate action to ensure access to a sufficient supply of solar
modules, will help meet U.S. electricity generation needs while
addressing threats posed by climate change and are likely to
significantly outweigh the anticipated costs that may accompany
adoption of the rule.
Final Regulatory Flexibility Analysis
The Regulatory Flexibility Act (RFA) requires agencies to consider
the impact of their rules on small entities and to evaluate
alternatives that would accomplish the objectives of the rule without
unduly burdening small entities when the rules impose a significant
economic impact on a substantial number of small entities.
In the Proposed Rule, Commerce prepared an initial regulatory
flexibility analysis, concluding that the proposed action was not
expected to have a significant economic impact on a substantial number
of small entities for purposes of the Regulatory Flexibility Act.
Additionally, Commerce concluded there were no regulatory alternatives
for reducing burdens on small entities. After considering the comments
received in response to the initial regulatory flexibility analysis,
Commerce's conclusions on these points remain unchanged in this final
regulatory flexibility analysis.
Need for and Objectives of the Rule
A summary of the need for, objectives of, and legal basis for this
rule is provided in the preamble of this final rule and is not repeated
here.
Number of Small Entities to Which the Rule Will Apply
Commerce continues to expect that this rule will not have a
significant economic impact on a substantial number of small entities
directly regulated by the final rule. The direct economic impacts of
the actions described in this rule are for importers of SA-Completed
Cells and Modules for which certain regulations, if applicable, are
extended and waived and who for a limited period of time need not pay
AD/CVD duties and estimated duties, if otherwise owed as a result of
the circumvention inquiries.
At the time the Proposed Rule was published, Commerce was unable to
estimate the number of small entities to which the rule would apply. In
this final regulatory flexibility analysis, Commerce relies on
information about importers of solar CSPV cells and modules in USITC
Publication 5266 to describe the class of entities directly regulated
by the final rule.
Based on that report, Commerce has determined that importers of
solar cells or modules may be classified as operating in one of the
following industries as described by the 2020 North American Industry
Classification System (NAICS): Power and communication line and related
structures construction (NAICS code 237130); Semiconductor and related
device manufacturing (NAICS code 334413); or Miscellaneous Electrical
Component Manufacturing (NAICS code 335999).
Commerce reviewed the list of 50 importers in Table I-15 of USITC
Publication 5266, and was able to identify the NAICS code for 48
importers as shown in Table 1 below, based on publicly available
information about the companies. According to the USITC, the importers
in Table I-15 accounted for 66.5 percent of total imports of cells and
modules but were a subset of 264 firms identified as possible importers
by the USITC.
Table 1--Industries of Importers of CSPV Cells and Modules
----------------------------------------------------------------------------------------------------------------
NAICS codes 334413 237130 335999
----------------------------------------------------------------------------------------------------------------
Miscellaneous
electrical
Manufacturer Developer component
manufacturer
----------------------------------------------------------------------------------------------------------------
Large.................................................. 23 6 1
Small.................................................. 13 0 5
--------------------------------------------------------
Total.............................................. 36 6 6
----------------------------------------------------------------------------------------------------------------
Source: Department of Commerce, International Trade Administration analysis of USITC Publication 5266 Table I-
15.
[[Page 56885]]
The Small Business Administration has determined that the size
standard for identifying small entities in the Power and communication
line and related structures construction industry (NAICS code 237130)
is maximum annual receipts of $39.5 million. The small entity size
standard for Semiconductor and related device manufacturing (NAICS code
3334413) is a maximum of 1,250 employees. The small entity size
standard for Miscellaneous Electrical Component Manufacturer is 500
employees. When the parent company was a large entity, Commerce
classified those importers as large entities.
As shown in Table 2 below, a breakdown of the comparison of large
and small entities based on which products they imported shows that 30
were large entities and 18 were small entities. Importers of modules,
had the lowest share of small entities, with roughly two-thirds of the
importers being large companies.
Table 2--Large and Small Importers, by Products Imported
------------------------------------------------------------------------
Importers
Products imported ---------------------
Large Small
------------------------------------------------------------------------
Cells and Modules................................. 4 2
Cells only........................................ 5 6
Modules only...................................... 21 10
------------------------------------------------------------------------
Source: Department of Commerce, International Trade Administration
analysis of USITC Publication 5266 Table I-15.
In addition to the 18 small entities Commerce identified in Table
I-15, Commerce assumes that the remaining 214 importers initially
identified by USITC as possible importers but not included in Table I-
15 were all importers and accounted for the remaining 33.5 percent of
imports of cells or modules. Commerce further assumes that all of these
importers are small entities, bringing the total to 232 small entities,
around 88 percent of all importers that USITC may have identified.
Commerce believes that the estimate of small entities directly affected
by this rule is based on conservative assumptions and that the actual
number is likely to be smaller, as some of the 214 importers may not be
importers of cells or modules and, among those who were importers, some
may not be small entities.
Furthermore, the information in USITC Publication 5266 pertains to
importers of cells and modules from all sources, while the entities
directly affected by this rule are importers of cells and modules from
the four Southeast Asian countries at issue and may be a subset of all
importers.
To compare the USITC list to the total possible universe of
importers for CSPV cells and modules, Commerce obtained from CBP a
count of the importers during the same time frame. This information is
summarized in Table 3 below:
Table 3--Number of Importers
[Harmonized tariff schedule data]
------------------------------------------------------------------------
Number of
Product description importers
------------------------------------------------------------------------
CSPV Assembled Modules/Panels.............................. 397
CSPV Cells................................................. 147
CSPV Modules and Cells..................................... 45
------------
Total Importers........................................ 499
------------------------------------------------------------------------
Source: U.S. Customs and Border Protection analysis of Harmonized Tariff
Schedule data Harmonized System Product Codes 8541406015 and
8541406025, Entry Date 2020.
In Table 3, the number of importers listed for the three categories
does not sum to the total number of importers, because of the need to
avoid double counting. Those who import both CPSV Modules and Cells are
included in both ``CSPV Assembled Modules/Panels'' importers and ``CSPV
Cells'' importers. Thus, the total number of importers is (397 + 147)-
45.
Taking into account that some companies imported both cells and
modules, the total number of importers in 2020 for the two products
combined is 499 entities. Assuming that, as for the importers
identified in USITC Publication 5266, 88 percent of the importers are
small businesses, approximately 440 of these importers would be small
entities. Therefore, using both the analysis of importers from USITC
Publication 5266 and the analysis of Harmonized Tariff Schedule data,
Commerce estimates that the number of small entities directly impacted
by this final rule ranges from 232 to 440 importers.
Description of Reporting, Recordkeeping and Other Compliance
Requirements
This rule has no reporting, recordkeeping, and other compliance
requirements and does not duplicate, overlap, or conflict with other
Federal Rules.
Steps the Agency Has Taken To Minimize the Significant Economic Impact
on Small Entities
Under this rule, Commerce will temporarily waive and extend the
application of certain regulations, if otherwise applicable, involving
SA-Completed Cells and Modules. Specifically, by temporarily removing
the requirement that importers deposit estimated AD/CVD duties, if
otherwise applicable as a result of the circumvention inquiries,
Commerce removes actions that would otherwise be required from
entities, including small entities, that are importing SA-Completed
Cells and Modules. Further, this rule would temporarily permit the
importation of certain solar cells and modules from the four Southeast
Asian countries at issue free of duties that may result from the
ongoing circumvention inquiries under the AD/CVD duty laws. In this
way, until the Date of Termination, the rule provides importers with
relief from possible AD/CVD duties and estimated duties that might
otherwise be owed as a result of the ongoing circumvention inquiries.
These benefits are speculative at this point, but even if they come to
fruition, Commerce believes that there is no significant competitive
disadvantage to importers of the products at issue in this rule,
including importers that are small entities.
These actions under this rule do not add burden on importers,
including importers that are small entities, in connection with their
importation of certain solar cells and modules from the four Southeast
Asian countries. Rather, they remove requirements that might otherwise
be applicable and, therefore, do not result in significant economic
impact to them. Further, this rule removes uncertainty as to whether
AD/CVD duties may apply before the Date of Termination as a result of
the ongoing circumvention inquiries. For all of these reasons, Commerce
continues to believe that there is no significant, adverse economic
impact on importers of the merchandise, including importers that are
small entities.
The actions in this rule to respond to the emergency declared by
the Proclamation apply specifically to SA-Completed Cells and Modules,
which are the certain cells and modules identified in the Proclamation.
Accordingly, Commerce is appropriately responding to the emergency
declared in the Proclamation and uses the authorities provided in the
Proclamation, as well as its own authorities, in a way tailored to the
Proclamation and emergency declared therein. Commerce has taken
appropriate steps to minimize any significant economic impact on small
entities consistent with the stated objectives of the Proclamation and
believes that there is no regulatory alternative that would reduce any
such impact. Further, in the event that there
[[Page 56886]]
are impacts on small entities due to the importation free of AD/CVD
duties or estimated duties, or due to the extension of time to perform
any act, any such impact is provided for and contemplated in the
relevant statutory authority, section 318(a) of the Act, and the
Proclamation.
Significant Issues Raised by Comments on the Initial Regulatory
Flexibility Analysis
1. Impact on small entities other than importers: Several
commenters stated that the small entity analysis in the proposed rule
failed to properly consider the impact of the rule on small entities
other than importers and should have considered the impact on domestic
producers of cells and modules or others in the supply chain. These
commenters also suggested that Commerce failed to consider alternatives
that would be less burdensome to such small entities, in particular,
the use of the procedures set out in the regulations at 19 CFR part
358.
Response: The RFA's requirement to conduct initial and final
regulatory flexibility analyses, including the requirements to
``describe the projected reporting, recordkeeping and other compliance
requirements of the rule, including an estimate of the classes of small
entities which will be subject to the requirements'' and to describe
``the steps the agency has taken to minimize the significant economic
impact on small entities'' \93\ has been held to apply only to those
small entities that are subject to the requirements of the rule and not
to other entities on which the rule may have indirect effects.\94\ In
the case of this final rule, the directly regulated entities are
importers of cells and modules, for whom this final rule represents the
potential for relief from duties. Thus, the RFA does not require
Commerce to consider in this Final Regulatory Flexibility Analysis the
indirect effects on domestic producers of cell and modules or other
small entities or whether regulatory alternatives such as application
of the provisions at 19 CFR part 358 regulation would be less
burdensome for such entities.
---------------------------------------------------------------------------
\93\ 5 U.S.C. 603-604.
\94\ Mid-Tex Elec. Co-op, Inc. v. FERC, 777 F.2d 327, 342 (D.C.
Cir. 1985); see also American Trucking Associations, Inc., v. EPA,
175 F.3d 1027, 1044 (D.C. Cir. 1999), aff'd in part and rev'd in
part on other grounds, Whitman v. American Trucking Ass'ns, 531 U.S.
457 (2001).
---------------------------------------------------------------------------
Nevertheless, Commerce has included a discussion of indirect
impacts in the Regulatory Impact Analysis.
2. Number of small entities who are importers: Several commenters
also suggested that Commerce failed to conduct a sufficient analysis of
the impact on small importers by stating that the number of small
importers was unknown and by failing to recognize that some importers
are large entities.
Response: In the proposed rule, Commerce requested information
about the impact of the proposed rule on small entities, and several
commenters provided additional information. In this Final Regulatory
Flexibility Analysis, Commerce has provided an estimate of the number
of small importers who may be directly impacted by this final rule.
Congressional Review Act
Pursuant to the Congressional Review Act provisions of the Small
Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 801-808,
the Office of Information and Regulatory Affairs has determined that
this final rule is a major rule, as defined in 5 U.S.C. 804(2).
Commerce is therefore delivering a report containing the rule and
associated information to each House of Congress and to the Comptroller
General and delaying the effective date of the rule for 60 days. See 5
U.S.C. 801(a).
Paperwork Reduction Act
This final rule contains no information collection subject to the
requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.).
Unfunded Mandates Reform Act
This final rule will not produce a Federal mandate under the
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.).
List of Subjects in 19 CFR Part 362
Administrative practice and procedure, Antidumping duties,
Countervailing duties, Emergency powers.
Dated: September 12, 2022.
Lisa W. Wang,
Assistant Secretary for Enforcement and Compliance.
0
For the reasons stated in the preamble, the Department of Commerce
amends 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 being taken pursuant to Presidential Proclamation
10414 and Section 318(a) of the Act.
362.104 Certifications.
Authority: 19 U.S.C. 1318; Proc. 10414, 87 FR 35067.
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 that are entered into the United States, or withdrawn
from warehouse, for consumption before the Date of Termination and, for
entries that enter after November 15, 2022, are used in the United
States by the Utilization Expiration Date.
CBP means U.S. 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.
Utilization and utilized means the Southeast Asian-Completed Cells
and Modules will be used or installed in the United States. Merchandise
which remains in inventory or a warehouse in the United States, is
resold to another party, is subsequently exported, or is destroyed
after importation is not considered utilized for purposes of these
provisions.
Utilization Expiration Date means the date 180 days after the Date
of Termination.
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
[[Page 56887]]
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. These are cells and modules
subject to the Solar Circumvention Inquiries. 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 and estimated
duties. The Secretary will permit the importation of Applicable Entries
free of the collection of antidumping and countervailing duties and
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 certain Southeast Asian-Completed
Cells and Modules without regard to estimated antidumping and
countervailing duties, notwithstanding Sec. 351.226(l) of this
chapter, the Secretary shall do the following with respect to estimated
duties:
(i) The Secretary shall instruct CBP to discontinue the suspension
of liquidation of entries and collection of cash deposits for any
Southeast Asian-Completed Cells and Modules that were suspended
pursuant to Sec. 351.226(l) of this chapter. 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 the Secretary will direct CBP to liquidate the entries
without 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 of Applicable Entries and collect
cash deposits of estimated duties on those Applicable Entries.
(iii) In the event of an affirmative preliminary or final
determination of circumvention in the Solar Circumvention Inquiries,
the Secretary will direct CBP to suspend liquidation of entries of, and
collect cash deposits of estimated duties on, imports of Southeast
Asian-Completed Cells and Modules that are not Applicable Entries.
(2) In the event that the Secretary makes an affirmative
preliminary or final determination of circumvention in the Solar
Circumvention Inquiries, as applicable, and the emergency described in
Presidential Proclamation 10414 is terminated before June 6, 2024,
notwithstanding Sec. 351.226(l) of this chapter, upon notification of
the termination of the emergency the Secretary will thereafter issue
instructions to CBP informing it of the Date of Termination and
directing it 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 an appropriate date that is on
or after the Date of Termination. For purposes of this paragraph,
Applicable Entries may also include certain entries of Southeast Asian-
Completed Cells and Modules that are entered on or after the Date of
Termination, as appropriate.
(3) In the event that the Secretary makes an affirmative
preliminary or final determination of circumvention in the Solar
Circumvention Inquiries, as applicable, and the Date of Termination is
June 6, 2024, notwithstanding Sec. 351.226(l) of this chapter, the
Secretary will issue instructions to CBP informing it that the Date of
Termination is June 6, 2024, and 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
certifications 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. 2022-19953 Filed 9-15-22; 4:15 pm]
BILLING CODE 3510-DS-P
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