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Federal Register / Vol. 83, No. 17 / Thursday, January 25, 2018 / Presidential Documents
3541
Presidential Documents
Proclamation 9693 of January 23, 2018
To Facilitate Positive Adjustment to Competition From Imports of Certain Crystalline Silicon Photovoltaic Cells
(Whether or Not Partially or Fully Assembled Into Other
Products) and for Other Purposes
By the President of the United States of America
A Proclamation
1. On November 13, 2017, the United States International Trade Commission
(ITC) transmitted to the President a report (the ‘‘ITC Report’’) on its investigation under section 202 of the Trade Act of 1974, as amended (the ‘‘Trade
Act’’) (19 U.S.C. 2252), with respect to imports of certain crystalline silicon
photovoltaic (CSPV) cells, whether or not partially or fully assembled into
other products (including, but not limited to, modules, laminates, panels,
and building-integrated materials) (‘‘CSPV products’’). These products exclude certain products described in the ITC Notice of Institution, 82 FR
25331 (June 1, 2017), and listed in subdivision (c)(ii) of Note 18 in Annex
I to this proclamation.
2. The ITC reached an affirmative determination under section 202(b) of
the Trade Act (19 U.S.C. 2252(b)) that CSPV products are being imported
into the United States in such increased quantities as to be a substantial
cause of serious injury, or threat of serious injury, to the domestic industry
producing a like or directly competitive article.
3. Pursuant to section 311(a) of the North American Free Trade Agreement
Implementation Act (the ‘‘NAFTA Implementation Act’’) (19 U.S.C. 3371(a)),
the ITC made findings as to whether imports from Mexico and Canada,
considered individually, account for a substantial share of total imports
and contribute importantly to the serious injury, or threat thereof, caused
by imports. The ITC made affirmative findings of contribution to injury
with respect to imports of CSPV products from Mexico but made negative
findings with respect to imports of CSPV products from Canada.
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4. On November 27, 2017, the United States Trade Representative (USTR)
requested additional information from the ITC under section 203(a)(5) of
the Trade Act (19 U.S.C. 2253(a)(5)). On December 27, 2017, the ITC provided
a response that identified unforeseen developments that led to the importation of CSPV products into the United States in such increased quantities
as to be a substantial cause of serious injury (the ‘‘supplemental report’’).
5. The ITC commissioners transmitted to the President their individual
recommendations with respect to the actions that each of them considered
would address the serious injury, or threat of serious injury, to the domestic
industry and be most effective in facilitating the efforts of the industry
to make a positive adjustment to import competition. The ITC did not
recommend an action within the meaning of section 202(e) of the Trade
Act (19 U.S.C. 2252(e)).
6. Pursuant to section 203 of the Trade Act (19 U.S.C. 2253), and after
taking into account the considerations specified in section 203(a)(2) of the
Trade Act (19 U.S.C. 2253(a)(2)), the ITC Report, and the supplemental
report, I have determined to implement action of a type described in section
203(a)(3) of the Trade Act (19 U.S.C. 2252(a)(3)) (a ‘‘safeguard measure’’),
with regard to the following CSPV products:
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(a) solar cells, whether or not assembled into modules or made up into
panels provided for in subheading 8541.40.60 in Annex I to this proclamation;
(b) parts or subassemblies of solar cells provided for in subheadings
8501.31.80, 8501.61.00, and 8507.20.80 in Annex I to this proclamation;
(c) inverters or batteries with CSPV cells attached provided for in subheadings 8501.61.00 and 8507.20.80 in Annex I to this proclamation; and
(d) DC generators with CSPV cells attached provided for in subheading
8501.31.80 in Annex I to this proclamation.
7. Pursuant to section 312(a) of the NAFTA Implementation Act (19 U.S.C.
3372(a)), I have determined after considering the ITC Report that imports
of CSPV products from each of Mexico and Canada, considered individually,
account for a substantial share of total imports and contribute importantly
to the serious injury or threat of serious injury found by the ITC.
8. Pursuant to section 203 of the Trade Act, the action I have determined
to take shall be a safeguard measure in the form of:
(a) a tariff-rate quota on imports of solar cells not partially or fully assembled into other products as described in paragraph 6 of this proclamation,
imposed for a period of 4 years, with unchanging within-quota quantities
and annual reductions in the rates of duty applicable to goods entered
in excess of those quantities in the second, third, and fourth years, as
provided in Annex I to this proclamation; and
(b) an increase in duties on imports of modules, imposed for a period
of 4 years, with annual reductions in the rates of duty in the second,
third, and fourth years, as provided in Annex I to this proclamation.
I have determined to exclude from this action the products listed in subdivision (c)(ii) and (c)(iii) of Note 18 in Annex I to this proclamation.
9. This safeguard measure shall apply to imports from all countries, except
as provided in paragraph 10 of this proclamation.
10. This safeguard measure shall not apply to imports of any product described in paragraph 6 of this proclamation of a developing country that
is a Member of the World Trade Organization (WTO), as listed in subdivision
(b) of Note 18 in Annex I to this proclamation, as long as such a country’s
share of total imports of the product, based on imports during a recent
representative period, does not exceed 3 percent, provided that imports
that are the product of all such countries with less than 3 percent import
share collectively account for not more than 9 percent of total imports
of the product. If I determine that a surge in imports of a product described
in paragraph 6 of this proclamation of a developing country that is a WTO
Member results in imports of that product from that developing country
exceeding either of the thresholds described in this paragraph, the safeguard
measure shall be modified to apply to such product from such country.
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11. The in-quota quantity in each year under the tariff-rate quota described
in paragraph 8 of this proclamation shall be allocated among all countries
except those countries the products of which are excluded from such tariffrate quota pursuant to paragraph 10 of this proclamation.
12. Pursuant to section 203(a)(1)(A) of the Trade Act (19 U.S.C. 2253(a)(1)(A)),
I have determined that this safeguard measure will facilitate efforts by the
domestic industry to make a positive adjustment to import competition
and provide greater economic and social benefits than costs. If I determine
that further action is appropriate and feasible to facilitate efforts by the
domestic industry to make a positive adjustment to import competition
and to provide greater economic and social benefits than costs, or if I
determine that the conditions under section 204(b)(1) of the Trade Act
(19 U.S.C. 2254(b)(1)) are met, I shall reduce, modify, or terminate the
action established in this proclamation accordingly. In addition, if I determine
within 30 days of the date of this proclamation, as a result of consultations
between the United States and other WTO Members pursuant to Article
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12.3 of the WTO Agreement on Safeguards, that it is necessary to reduce,
modify, or terminate the safeguard measure, I shall proclaim the corresponding reduction, modification, or termination of the safeguard measure
within 40 days.
13. Section 502 of the Trade Act (19 U.S.C. 2462) authorizes the President
to designate countries as beneficiary developing countries for purposes of
the Generalized System of Preferences (GSP).
14. Proclamation 9687 of December 22, 2017, ended the suspension of Argentina’s designation as a GSP beneficiary developing country. That proclamation
made corresponding modifications to the Harmonized Tariff Schedule of
the United States (HTS). Those modifications included technical errors, and
I have determined that modifications to the HTS are necessary to correct
them.
15. Section 604 of the Trade Act (19 U.S.C. 2483), authorizes the President
to embody in the HTS the substance of the relevant provisions of that
Act, and of other acts affecting import treatment, and actions thereunder,
including the removal, modification, continuance, or imposition of any rate
of duty or other import restriction.
NOW, THEREFORE, I, DONALD J. TRUMP, President of the United States
of America, acting under the authority vested in me by the Constitution
and the laws of the United States, including but not limited to sections
203, 502, and 604 of the Trade Act, and section 301 of title 3, United
States Code, do proclaim that:
(1) In order to establish increases in duty and a tariff-rate quota on imports
of the CSPV products described in paragraph 6 of this proclamation (other
than excluded products), subchapter III of chapter 99 of the HTS is modified as provided in Annex I to this proclamation. Any merchandise subject
to the safeguard measure that is admitted into U.S. foreign trade zones
on or after 12:01 a.m. eastern standard time on February 7, 2018, must
be admitted as ‘‘privileged foreign status’’ as defined in 19 CFR 146.41,
and will be subject upon entry for consumption to any quantitative restrictions or tariffs related to the classification under the applicable HTS
subheading.
(2) Except as provided in clause (3) below, imports of CSPV products
of WTO Member developing countries, as listed in subdivision (b) of
Note 18 in Annex I to this proclamation, shall be excluded from the
safeguard measure established in this proclamation. Imports of solar cells
of those countries that are not partially or fully assembled into other
products shall not be counted toward the tariff-rate quota limits that
trigger the over-quota rates of duties.
(3) If, after the safeguard measure established in this proclamation takes
effect, the USTR determines that:
(a) the share of total imports of the product of a country listed in subdivision (b) of Note 18 in Annex I to this proclamation exceeds 3 percent,
(b) imports of the product from all listed countries with less than 3
percent import share collectively account for more than 9 percent of total
imports of the product, or
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(c) a country listed in subdivision (b) of Note 18 in Annex I to this
proclamation is no longer a developing country for purposes of this proclamation;
the USTR is authorized, upon publication of a notice in the Federal
Register, to revise subdivision (b) of Note 18 in Annex I to this proclamation
to remove the relevant country from the list or suspend operation of that
subdivision, as appropriate.
(4) Within 30 days after the date of this proclamation, the USTR shall
publish in the Federal Register procedures for requests for exclusion of
a particular product from the safeguard measure established in this proclamation. If the USTR determines, after consultation with the Secretaries
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of Commerce and Energy, that a particular product should be excluded,
the USTR is authorized, upon publishing a notice of such determination
in the Federal Register, to modify the HTS provisions created by Annex
I to this proclamation to exclude such particular product from the safeguard
measure described in paragraph 8 of this proclamation.
(5) In order to make technical corrections necessary to reflect the end
of the suspension of Argentina’s designation as a GSP beneficiary developing country, the HTS is modified as set forth in Annex II to this
proclamation.
(6) Any provision of previous proclamations and Executive Orders that
is inconsistent with the actions taken in this proclamation is superseded
to the extent of such inconsistency.
(7) Except as provided for in clause (8) of this proclamation, the modifications to the HTS made by this proclamation, including Annex I, shall
be effective with respect to goods entered, or withdrawn from warehouse
for consumption, on or after 12:01 a.m. eastern standard time on February
7, 2018, and shall continue in effect as provided in Annex I to this
proclamation, unless such actions are earlier expressly reduced, modified,
or terminated. Any modifications to the HTS made pursuant to clause
(3) or (4) of this proclamation shall take effect as indicated in a Federal
Register notice published in accordance with those clauses. One year
from the termination of the safeguard measure established in this proclamation, the U.S. note and tariff provisions established in Annex I to this
proclamation shall be deleted from the HTS.
(8) The modifications to the HTS set forth in Annex II to this proclamation
shall be effective with respect to the articles entered, or withdrawn from
warehouse for consumption, on or after the dates set forth in the relevant
sections of Annex II.
Billing code 3295–F8–P
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IN WITNESS WHEREOF, I have hereunto set my hand this twenty-third
day of January, in the year of our Lord two thousand eighteen, and of
the Independence of the United States of America the two hundred and
forty-second.
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3545
ANNEX I
MODIFICATIONS TO CHAPTER 99 OF THE HARMONIZED TARIFF SCHEDULE
OF THE UNITED STATES
Effective with respect to goods entered, or withdrawn from warehouse for consumption,
on or after 12:01 a.m. eastern standard time on February 7, 2018, and through 11:59 p.m. eastern
standard time on February 6, 2022, subchapter III of chapter 99 of the Harmonized Tariff
Schedule of the United States (HTS) is hereby modified by inserting in numerical sequence the
following new U.S. note and provisions:
"18. (a)
Subheadings 9903.45.21 through 9903.45.25 and any superior texts thereto establish
temporary modifications applicable to entries of goods described herein and
classified in the enumerated provisions of chapter 85 of the tariff schedule.
Whenever any such subheading specifies that the annual aggregate quantity of such
goods shall not exceed the quantity established under the terms of this note, when
such goods are not the product of a country enumerated in subdivision (b) of this
note, any entry of such goods that is in excess of the quantity specified for such
provision shall be entered under the over-quota subheading set forth herein for such
goods. All such goods shall be subject to duty as provided herein; and such duties
shall be cumulative and imposed in addition to the rate of duty established for any
such goods in chapter 85 of the tariff schedule, except as may be specified for duties
imposed under the Rates of Duty 2 column.
(b)
For the purposes of this note and the application of subheadings 9903.45.21 through
9903.45.25, inclusive, the following developing countries that are members of the
World Trade Organization shall not be subject to the rates of duty and tariff-rate
quotas provided for therein:
Afghanistan, Albania, Algeria, Angola, Armenia, Azerbaijan, Belize, Benin, Bhutan,
Bolivia, Bosnia and Herzegovina, Botswana, Brazil, Burkina Faso, Burma, Burundi,
Cambodia, Cameroon, Cape Verde, Central African Republic, Chad, Comoros,
Congo (Brazzaville), Congo (Kinshasa), Cote d'Ivoire, Djibouti, Dominica, Ecuador,
Egypt, Eritrea, Ethiopia, Fiji, Gabon, The Gambia, Georgia, Ghana, Grenada,
Guinea, Guinea-Bissau, Guyana, Haiti, India, Indonesia, Iraq, Jamaica, Jordan,
Kazakhstan, Kenya, Kiribati, Kosovo, Kyrgyzstan, Lebanon, Lesotho, Liberia,
Macedonia, Madagascar, Malawi, Maldives, Mali, Mauritania, Mauritius, Moldova,
Mongolia, Montenegro, Mozambique, Namibia, Nepal, Niger, Nigeria, Pakistan,
Papua New Guinea, Paraguay, Rwanda, Saint Lucia, Saint Vincent and the
Grenadines, Samoa, Sao Tome and Principe, Senegal, Serbia, Sierra Leone, Solomon
Island, Somalia, South Africa, South Sudan, Sri Lanka, Suriname, Swaziland,
Tanzania, Timor-Leste, Togo, Tonga, Tunisia, Turkey, Tuvalu, Uganda, Ukraine,
Uzbekistan, Vanuatu, Yemen (Republic of), Zambia and Zimbabwe.
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(i)
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For the purposes of subheadings 9903.45.21 and 9903.45.22, except as
otherwise provided herein, the term "crystalline silicon photovoltaic cells"
("CSPV cells") means crystalline silicon photovoltaic cells of a thickness equal
to or greater than 20 micrometers, having a p/n junction (or variant thereof)
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(c)
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Annexes, page 2
formed by any means, whether or not the cell (or subassemblies thereof
provided for in subheading 8541.40.60 and imported under statistical reporting
number 8541.40.6030) has undergone other processing, including, but not
limited to, cleaning, etching, coating, and/or addition of materials (including,
but not limited to, metallization and conductor patterns) to collect and forward
the electricity that is generated by the cell. Such cells include photovoltaic
cells that contain crystalline silicon in addition to other photovoltaic materials.
This includes, but is not limited to, passivated emitter rear contact cells,
heterojunction with intrinsic thin-layer cells, and other so-called hybrid cells.
Subheadings 9903.45.21 and 9903.45.22 include goods presented in cell form
and which at the time of importation are not presented assembled into circuits,
laminates or modules or made up into panels.
(ii)
Subheadings 9903.45.21 and 9903.45.22 shall not cover(1)
thin film photovoltaic products produced from amorphous silicon
("a-Si"), cadmium telluride ("CdTe"), or copper indium gallium selenide
("CIGS");
(2)
CSPV cells, not exceeding 10,000 mm2 in surface area, that are
permanently integrated into a consumer good whose primary function is
other than power generation and that consumes the electricity generated
by the integrated CSPV cell. Where more than one CSPV cell is
permanently integrated into a consumer good, the surface area for
purposes of this exclusion shall be the total combined surface area of all
CSPV cells that are integrated into the consumer good; and
(3)
CSPV cells, whether or not partially or fully assembled into other
products, if such CSPV cells were manufactured in the United States.
(iii) Subheadings 9903.45.21 and 9903.45.22 shall likewise not cover the following
goods, whether or not separate statistical reporting numbers therefor may
appear in chapters 1 through 97 of the tariff schedule:
2 watt solar panels incorporated into daylight dimmers, that may use
rechargeable batteries, such panels with the following dimensions:
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1 watt solar panels incorporated into nightlights that use rechargeable
batteries and have the following dimensions: 58 rom or more but not
over 64 rom by 126 rom or more but not over 140 rom;
(3)
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10 to 60 watt, inclusive, rectangular solar panels, where the panels have
the following characteristics: (A) length of250 rom or more but not over
482 rom or width of 400 rom or more but not over 635 rom, and
(B) surface area of 1000 cm2 or more but not over 3,061 cm2), provided
that no such panel with those characteristics shall contain an internal
battery or external computer peripheral ports at the time of entry;
(2)
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(1)
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3547
Annexes, page 3
75 mm or more but not over 82 mm by 139 mm or more but not over
143 mm;
(4)
off-grid and portable CSPV panels, whether in a foldable case or in rigid
form containing a glass cover, where the panels have the following
characteristics:
(A)
a total power output of 100 watts or less per panel;
(B)
a maximum surface area of 8,000 cm2 per panel;
(C)
do not include a built-in inverter;
(D)
where the panels have glass covers, such panels must be in
individual retail packaging (for purposes of this provision, retail
packaging typically includes graphics, the product name, its
description and/or features, and foam for transport);
(5)
(6)
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27.1 watt or less solar panels, each with surface area less than 3,000 cm2
and coated across the entire surface with a polyurethane doming resin,
the foregoing joined to a battery charging and maintaining unit, such unit
which is an acrylonitrile butadiene styrene ("ABS") box that
incorporates a light emitting diode ("LED") by coated wires that include
a connector to permit the incorporation of an extension cable.
Any goods covered by this note may also be excluded from the application of relief
if they are covered by a determination by the United States Trade Representative
("USTR") published in the Federal Register that such goods should be exempt from
the application of any rate of duty or tariff-rate quota otherwise imposed on goods
described in the provisions of this note. Such a determination by the USTR under
this subdivision may exempt specific additional CSPV cells or modules when
entered from all countries or when entered from enumerated countries only, or may
modify the product descriptions in subdivision (c) of this note. The USTR is
authorized to modify or terminate any such determination during the effective period
of the subheadings specified in the first sentence of subdivision (a) of this note and to
specify, subsequent to the effective date specified in this note, that such CSPV cells
and modules will be considered "goods excluded from the application of relief' upon
publication by the USTR of a notice in the Federal Register. Such "goods excluded
from the application of relief' shall not be counted toward any tariff-rate quota
quantities specified for any quota period.
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(d)
3.19 watt or less solar panels, each with length of75 mm or more but not
over 266 mm and width of 46 mm or more but not over 127 mm, with
surface area of338 cm2 or less, with one black wire and one red wire
(each of type 22 A WG or 24 AWG) not more than 206 mm in length
when measured from panel edge, provided that no such panel shall
contain an internal battery or external computer peripheral ports;
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Annexes, page 4
(e)
For purposes of subheading 9903.45.21, the aggregate annual quantity of
goods eligible to enter during any period enumerated herein shall not exceed
the volume level set forth in such subheading, where 1 gigawatt equals 1,000
megawatts.
(ii)
(f)
(i)
Any importer entering CSPV cells under subheading 9903.45.21 shall report
the electricity power output attributable to such cells to the satisfaction of U.S.
Customs and Border Protection ("Customs") and shall provide such
information as Customs may require in order to permit the administration of
this subheading. Such an entry shall constitute a certification by that importer
of the power output attributable to the CSPV cells described therein. Importers
are likewise directed to report the electricity power output attributable to CSPV
cells entered under subheading 9903.45.22 to the extent that and in such form
as Customs may require.
For purposes of subheading 9903.45.22 to this subchapter, the duty rate in the Rates
of Duty !-General subcolumn and the Rates of Duty 2 column for all goods entered
under such subheading, and not the product of a country enumerated in subdivision
(b) ofthis note, shall be as follows, with the duty rates set forth herein applied in
addition to those applicable under subheading 8541.40.60:
If entered during the period from
February 7, 2018 through February 6, 2019 ..................................... 30%
If entered during the period from
February 7, 2019 through February 6, 2020 ..................................... 25%
If entered during the period from
February 7, 2020 through February 6, 2021 ..................................... 20%
If entered during the period from
February 7, 2021 through February 6, 2022 .................................... 15%.
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For purposes of subheading 9903.45.25 to this subchapter, the term "modules" shall
include the following goods provided for in subheading 8541.40.60 of the tariff
schedule: a module is a joined group ofCSPV cells, as such cells are defined in
subdivision (c) of this note, regardless of the number of cells or the shape of the
joined group, that are capable of generating electricity. Also included as a "module"
are goods each known as a "panel" comprising a CSPV cell that has undergone any
processing, assembly, or interconnection (including, but not limited to, assembly into
a laminate). Such CSPV cells assembled into modules or made up into panels
include goods of a type reported for statistical purposes under statistical reporting
number 8541.40.6020. Such goods also include (i) CSPV cells which are presented
attached to inverters or batteries of subheading 8501.61.00 or 8507.20.80,
respectively; and (ii) CSPV cells classifiable as DC generators of subheading
8501.31.80.
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(g)
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Annexes, page 5
(h)
For purposes of subheading 9903.45.25 to this subchapter, the duty rate in the Rates
of Duty 1-General subcolurnn and the Rates of Duty 2 column in any of the periods
enumerated below shall be as follows, with the duty rates set forth herein applied in
addition to those applicable under subheading 8541.40.60:
If entered during the period from
February 7, 2018 through February 6, 2019 ..................................... 30%
If entered during the period from
February 7, 2019 through February 6, 2020 ..................................... 25%
If entered during the period from
February 7, 2020 through February 6, 2021 ..................................... 20%
If entered during the period from
February 7, 2021 through February 6, 2022 .................................... 15%.
Such duty shall be imposed on the declared value of such modules, including the cost
or value of the non-cell portions thereof (such as aluminum frames), as Customs in
its regulations or instructions may require.
Rates of Duty
Article description
I
General
9903.45.21
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9903.45.22
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Crystalline silicon photovoltaic cells, as defined in note 18(c)
to this subchapter, when the product or originating good of
a country other than a country described in note 18(b) to
this subchapter:
If entered in an annual aggregate quantity not
exceeding 2.5 gigawatts, under the terms of such
note ....................................................................................
Other ..................................................................................
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Rates of Duty
Article description
1
General
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9903.45.25
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Modules as defined in note 18(g) to this subchapter, when
the product or originating good of a country other than a
country described in note 18(b) to this subchapter...............
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3551
Annexes, page 7
ANNEX II
MODIFICATIONS ON THE ELIGIBILITY OF CERTAIN ARTICLES THE
PRODUCT OF ARGENTINA FOR PURPOSES OF THE GENERALIZED
SYSTEM OF PREFERENCES
Section A. Effective with respect to articles entered, or withdrawn from warehouse for
consumption, on or after January 1, 2018, general note 4(d) to the HTS is modified by:
(1) adding, in numerical sequence, the following subheading numbers and country set out
opposite such subheading numbers:
0202.30.10
0711.20.18
1007.10.00
1007.90.00
1202.30.40
1202.42.40
1702.60.22
Argentina
Argentina
Argentina
Argentina
Argentina
Argentina
Argentina
1901.20.45
2007.99.48
2008.30.37
2305.00.00
2306.30.00
4107.11.80
Argentina
Argentina
Argentina
Argentina
Argentina
Argentina
(2) deleting from the numerical sequence, the following subheading number and country
set out opposite such subheading number:
8523.29.50
Argentina
(3) adding, in alphabetical order, the country set out opposite the following subheadings:
1602.50.08
1702.30.22
2008.50.20
3824.99.41
3826.00.10
Argentina
Argentina
Argentina
Argentina
Argentina
Section B. Effective with respect to articles entered, or withdrawn from warehouse for
consumption, on or after January 1, 2018, the HTS is modified as provided in this
section. For each of the following subheadings, the Rates of Duty !-Special subcolumn
is modified by deleting the symbol "A" and inserting the symbol "A*" in lieu thereof:
1901.20.45
2007.99.48
2008.30.37
2305.00.00
2306.30.00
4107.11.80
[FR Doc. 2018–01592
Filed 1–24–18; 2: pm]
Billing code 7020–02–C
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0202.30.10
0711.20.18
1007.10.00
1007.90.00
1202.30.40
1202.42.40
1702.60.22
]]>Agencies
[Federal Register Volume 83, Number 17 (Thursday, January 25, 2018)]
[Presidential Documents]
[Pages 3541-3551]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-01592]
[GRAPHIC] [TIFF OMITTED] TD25JA18.037
[FR Doc. 2018-01592
Filed 1-24-18; 2: pm]
Billing code 7020-02-C
