Procedures To Consider Retention or Withdrawal of the Exclusion of Bifacial Solar Panels From the Safeguard Measure on Solar Products, 4756-4758 [2020-01260]

Agencies

• Office of the United States Trade Representative

[Federal Register Volume 85, Number 17 (Monday, January 27, 2020)]
[Notices]
[Pages 4756-4758]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-01260]


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OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE

[Docket No. USTR-2020-0001]


Procedures To Consider Retention or Withdrawal of the Exclusion 
of Bifacial Solar Panels From the Safeguard Measure on Solar Products

AGENCY: Office of the United States Trade Representative.

ACTION: Notice and request for comments.

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SUMMARY: On January 23, 2018, the President imposed a safeguard measure 
on imports of certain solar products pursuant to a Section 201 
investigation. On February 14, 2018, the U.S. Trade Representative 
established procedures for interested persons to request product-
specific exclusions from application of the safeguard measure and 
comment on the submitted requests. Based on the requests and comments 
received, the U.S. Trade Representative granted certain requests on 
June 13, 2019, including a request to exclude from the safeguard 
measure bifacial solar panels that consist only of bifacial solar 
cells. This notice establishes procedures for interested persons to 
submit comments, and respond to comments, on whether the U.S. Trade 
Representative should maintain the exclusion of bifacial solar panels 
from the safeguard measure, withdraw the exclusion, or take some other 
action within his authority with respect to this exclusion.

DATES: February 17, 2020, at 11:59 p.m. EST: Submission of comments on 
whether the U.S. Trade Representative should maintain the exclusion of 
bifacial solar panels from the safeguard measure, withdraw the 
exclusion, or take some other action within his authority with respect 
to this exclusion.
    February 27, 2020, at 11:59 p.m. EST: Submission of responses to 
comments.

FOR FURTHER INFORMATION CONTACT: Victor Mroczka, Office of WTO and 
Multilateral Affairs, at [email protected] or (202) 395-9450, or 
Dax Terrill, Office of General Counsel, at [email protected] or 
(202) 395-4739.

SUPPLEMENTARY INFORMATION: 

A. Background

    On January 23, 2018, the President issued Proclamation 9693 (83 FR 
3541) to impose a safeguard measure under section 201 of the Trade Act 
of 1974 (19 U.S.C. 2251) with respect to certain crystalline silicon 
photovoltaic (CSPV) cells and other products (CSPV products) containing 
these cells. The Proclamation directed the U.S. Trade Representative to 
establish procedures for interested persons to request product-specific 
exclusions from the safeguard measure. It also authorized the U.S. 
Trade Representative, after consultation with the Secretaries of 
Commerce and Energy, to exclude products by modifying the Harmonized 
Tariff Schedule of the United States (HTSUS) with publication of a 
determination in the Federal Register to exclude such products.
    On February 14, 2018, the U.S. Trade Representative issued a notice 
setting out the procedures to request a product exclusion and opened a 
public docket. See 83 FR 6670 (the February 2018 notice). Under the 
February 2018 notice, requests for exclusion were to identify the 
particular product in terms of its physical characteristics (such as 
dimensions, wattage, material composition, or other distinguishing 
characteristics) that differentiate it from other products subject to 
the safeguard measure. The February 2018 notice provided that the U.S. 
Trade Representative would not consider requests identifying the 
product at issue in terms of the identity of the producer, importer, or 
ultimate consumer; the country of origin; or trademarks or tradenames. 
The notice also confirmed that the U.S. Trade Representative would only 
grant exclusions that did not undermine the objectives of the safeguard 
measure.
    Based on the February 2018 notice, the Office of the U.S. Trade 
Representative (USTR) received 48 product exclusion requests and 213 
subsequent comments responding to the various requests. The exclusion 
requests generally fell into seven categories, one of which concerned 
bifacial solar panels.
    On September 19, 2018, and June 13, 2019, the U.S. Trade 
Representative granted certain product exclusion requests and modified 
the HTSUS accordingly. See 83 FR 47393 and 84 FR 27684. The notice 
published on June 13, 2019 (the June 2019 notice) excluded from 
application of the safeguard measure ``bifacial solar panels that 
absorb light and generate electricity on each side of the panel and 
that consist of only bifacial solar cells that absorb light and 
generate electricity on each side of the cells.''
    On October 9, 2019, the U.S. Trade Representative concluded, based 
on an evaluation of newly available information and after consultation 
with the Secretaries of Commerce and Energy, that maintaining the 
exclusion would undermine the objectives of the safeguard measure. 
Accordingly, the U.S. Trade Representative published a notice 
withdrawing the exclusion of bifacial solar panels, effective as of 
October 28, 2019. See 84 FR 54244.
    On October 21, 2019, Invenergy Renewables LLC filed a complaint 
with the U.S. Court of International Trade alleging that USTR failed to 
provide notice and comment required under the Administrative Procedure 
Act (APA), 5 U.S.C. 551 et seq., before withdrawing the exclusion of 
bifacial solar panels. Invenergy filed a motion for a preliminary 
injunction to prevent the withdrawal from entering into effect. The 
Court issued a preliminary injunction on December 5, 2019, enjoining 
the U.S. Trade Representative from withdrawing the exclusion on 
bifacial solar panels from the safeguard measure. If the U.S. Trade 
Representative determines after receipt of comments pursuant to this 
notice that it would be appropriate to withdraw the bifacial exclusion 
or take some other action with respect to this exclusion, the U.S. 
Trade Representative will request that the Court lift the injunction.

B. Comments on the Retention or Withdrawal of the Exclusion of Bifacial 
Solar Panels

    USTR is concerned that: (1) The bifacial solar panel exclusion will 
result in significant increases in imports of bifacial solar panels and 
therefore will undermine the objectives of the safeguard measure; (2) 
the precise definition of bifacial solar panels excluded from the 
safeguard measure may require clarification; and (3) the exclusion in 
the June 2019 notice is broader than the category of products described 
in the exclusion requests submitted as of March 16, 2018.
    For these reasons, USTR is seeking public comment on whether the 
U.S. Trade Representative should maintain the exclusion of bifacial 
solar panels from the safeguard measure, withdraw the exclusion, or 
take some other action within his authority with respect to this 
exclusion.
    The U.S. Trade Representative specifically requests information or 
views regarding the following, with sufficient evidence to support a 
particular position:

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     Global and United States production and production 
capacity for bifacial solar panels prior to and following the exclusion 
of these products in the June 2019 notice, along with any information 
on expected changes in production and production capacity for the 
remaining term of the safeguard measure (i.e., until February 6, 2022).
     Projections for the production and importation into the 
United States of bifacial solar panels for the remaining term of the 
safeguard measure.
     Import data and entry documentation to establish the level 
of bifacial solar panels imported into the United States prior to and 
following the exclusion of these products in the June 2019 notice.
     Projections of demand for bifacial solar panels by 
companies building or planning to build solar facilities or otherwise 
to install bifacial solar panels.
     Contracts, purchase orders, or other agreements that 
establish sales or other transactions, including those between 
suppliers and customers, regarding bifacial solar panels that have been 
or will be imported into the United States and such agreements 
regarding bifacial solar panels that have been or will be produced in 
the United States.
     Production cost and price differential between the 
manufacture and distribution of monofacial and bifacial solar panels.
     Substitutability or competitiveness between monofacial and 
bifacial solar panels in the United States.
     Domestic production and production capacity of bifacial 
solar cells or bifacial solar panels in the United States.
     Whether the U.S. Trade Representative should modify the 
exclusion to implement a tariff-rate quota (TRQ) on the importation of 
bifacial solar panels that enter with no additional duty and, if so, 
the level (e.g., in megawatts) of that TRQ.
     The potential impact, if any, on the domestic workforce 
and economy in general should the exclusion be withdrawn.
     Any other information or data that interested persons 
consider relevant to the U.S. Trade Representative's evaluation.

C. Responses to Comments on the Exclusion of Bifacial Solar Panels

    After the submission of comments on whether the U.S. Trade 
Representative should maintain the exclusion of bifacial solar panels 
from the safeguard measure, withdraw the exclusion, or take some other 
action within his authority with respect to this exclusion, interested 
persons will have an opportunity to respond to comments. Interested 
persons can view the submitted comments on www.regulations.gov by 
entering docket number USTR-2020-0001 in the search field on the home 
page.
    Responses to comments should indicate whether they support or 
oppose a particular view and provide reasons for that position. As with 
the initial round of comments, responses should address the information 
or factors identified above with sufficient evidence to support or 
oppose the particular view in question. If a supporter or opponent of a 
particular view fails to provide evidence in its control that is 
relevant to one of the factors listed above, USTR may conclude, that 
the omitted evidence would not support the supporter or opponent's 
position.

D. Consultation With Other Government Agencies

    As with the initial determination to exclude bifacial solar panels 
from the safeguard measure, the U.S. Trade Representative will consult 
with the Secretaries of Commerce and Energy regarding the comments, 
responses, and supporting evidence received in response to this notice 
to determine what, if any, action to take regarding the exclusion of 
bifacial solar panels from the safeguard measure.

E. No Other Exclusion Determinations, Additional Requests for 
Exclusion, or Additional Requests for Withdrawal of Exclusions

    At this time, USTR is not evaluating any other exclusion 
determinations and is not accepting additional requests for exclusion 
from the safeguard measure or requests to withdraw exclusions. USTR 
will continue monitoring developments in the U.S. market for CSPV 
products and, if warranted, provide for additional exclusion requests 
at a future date.

F. Submission Instructions

    USTR seeks comments and responses to comments with respect to the 
issues described in Sections B and C through a public comment process. 
To be assured of consideration, you must submit written comments by 
11:59 p.m. EST on February 17, 2020, and any written responses to those 
comments by 11:59 p.m. EST on February 27, 2020. All comments must be 
in English and must identify on the reference line of the first page of 
the submission ``Comments or Responses on the Exclusion of Bifacial 
Solar Panels From the Safeguard Measure on Solar Products.''
    We strongly encourage commenters to make on-line submissions using 
the www.regulations.gov website. To submit comments via 
www.regulations.gov, enter docket number USTR-2020-0001 on the home 
page and click `search.' The site will provide a search-results page 
listing all documents associated with this docket. Find a reference to 
this notice and click on the link entitled `comment now!' For further 
information on using www.regulations.gov, please consult the resources 
provided on the website by clicking `how to use regulations.gov' on the 
bottom of the home page. We will not accept hand-delivered submissions.
    The www.regulations.gov website allows users to provide comments by 
filling in a `type comment' field, or by attaching a document using an 
`upload file' field. We prefer that you provide comments as an attached 
document in Microsoft Word (.doc) or Adobe Acrobat (.pdf) format. If 
the submission is in another file format, please indicate the name of 
the software application in the `type comment' field. File names should 
reflect the name of the person or entity submitting the comments. 
Please do not attach separate cover letters to electronic submissions; 
rather please, include any information that might appear in a cover 
letter in the comments themselves. Similarly, to the extent possible, 
please include any exhibits, annexes, or other attachments in the same 
file as the comment itself, rather than submitting them as separate 
files.
    Comments or responses based on this notice may entail the 
submission of business confidential information. In that event, the 
submitter must provide both a public version for publication and a 
confidential version. The file name for the business confidential 
version should begin with the characters `BC.' The first page of the 
confidential version, and each subsequent page that actually contains 
business confidential information, must be clearly marked `BUSINESS 
CONFIDENTIAL' on the top of the page. Moreover, the submission should 
clearly indicate, via brackets, highlighting, or other means, the 
specific information that is business confidential. The submitter also 
must certify that the information is business confidential and would 
not customarily be released to the public.
    As indicated above, a submitter that provides a version containing 
business confidential information also must provide a public version of 
the submission with the relevant information redacted. The file name of 
the public version should begin with the character `P.' The `BC' and 
`P' should be followed by the name of the person or

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entity submitting the comments. Submissions that do not contain 
business confidential information should have a file name identifying 
the person or entity submitting the comments.
    We emphasize that submitters are strongly encouraged to file 
comments through www.regulations.gov. You must make arrangements for 
any alternative method of submission with Yvonne Jamison at (202) 395-
9666 in advance of transmitting a comment. You can find general 
information about USTR at www.ustr.gov.
    As noted, we will publish non-confidential versions of submissions 
in the docket for public inspection. You can view submissions on 
www.regulations.gov by entering the relevant docket number in the 
search field on the home page.

Jeffrey Gerrish,
Deputy United States Trade Representative, Office of the U.S. Trade 
Representative.
[FR Doc. 2020-01260 Filed 1-24-20; 8:45 am]
 BILLING CODE 3290-F0-P