Procedures Covering Suspension of Liquidation, Duties and Estimated Duties in Accord With Presidential Proclamation 10414, 56868-56887 [2022-19953]

Download as PDF 56868 Federal Register / Vol. 87, No. 179 / Friday, September 16, 2022 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES actions and compliance times specified in, and in accordance with, European Union Aviation Safety Agency Emergency AD 2022– 0169–E, dated August 12, 2022 (EASA AD 2022–0169–E). (h) Exceptions to EASA AD 2022–0169–E (1) Where EASA AD 2022–0169–E requires compliance in terms of flight hours, this AD requires using hours time-in-service. (2) Where EASA AD 2022–0169–E refers to its effective date, this AD requires using the effective date of this AD. (3) Where paragraph (1) of EASA AD 2022– 0169–E states to ‘‘accomplish a visual check of the root area of each affected part,’’ for this AD, replace that text with ‘‘accomplish a visual inspection of the root area of each affected part.’’ (4) Where paragraph (2) of EASA AD 2022– 0169–E states, ‘‘linear indication,’’ for the purposes of this AD, a linear indication is any linear indication perpendicular to the fiber direction of the blade that is detected regardless of size. (5) Where paragraph (2) of EASA AD 2022– 0169–E states to ‘‘accomplish a dye penetrant inspection of the root area of each discrepant part in accordance with the instructions of the ASB,’’ for this AD replace that text with ‘‘perform a fluorescent penetrant inspection (FPI) of the root area of each affected part that has any linear indication (perpendicular to the fiber direction of the blade and regardless of size), in accordance with the Accomplishment Instructions, paragraph 3.B.3. of the ASB. This FPI must be accomplished by a Level II or Level III inspector certified in the FAA-acceptable standards for nondestructive inspection personnel.’’ Note 1 to paragraph (h)(5): Advisory Circular 65–31B contains examples of FAAacceptable Level II and Level III qualification standards criteria for inspection personnel doing nondestructive test inspections. (6) This AD does not mandate paragraph (3) of EASA AD 2022–0169–E; instead, for this AD, if as a result of the action required by paragraph (2) of EASA AD 2022–0169–E, there is any linear indication (perpendicular to the fiber direction of the blade and regardless of size), before further flight, remove the affected TRB from service and replace it with a serviceable part as defined in EASA AD 2022–0169–E. (7) This AD does not allow paragraph (5) of EASA AD 2022–0169–E, instead for this AD use paragraph (j) of this AD. (8) Where the service information referenced in EASA AD 2022–0169–E specifies to discard the TRB if a linear indication is detected, this AD requires before further flight, removing that part from service. (9) Where the service information referenced in EASA AD 2022–0169–E specifies to use tooling, this AD allows the use of equivalent tooling. (10) This AD does not mandate compliance with the ‘‘Remarks’’ section of EASA AD 2022–0169–E. (i) No Reporting Requirement Although the service information referenced in EASA AD 2022–0169–E VerDate Sep<11>2014 16:02 Sep 15, 2022 Jkt 256001 specifies to submit certain information to the manufacturer, this AD does not include that requirement. (j) Special Flight Permit A special flight permit may be issued in accordance with 14 CFR 21.197 and 21.199 to operate the helicopter to a location where the visual inspection or FPI can be performed, provided no passengers are onboard. Special flight permits are prohibited if a linear indication has been detected by an FPI or a visible crack has been detected on a TRB. (k) Alternative Methods of Compliance (AMOCs) (1) The Manager, International Validation Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the International Validation Branch, send it to the attention of the person identified in paragraph (l) of this AD. Information may be emailed to: 9-AVS-AIR730-AMOC@faa.gov. (2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/ certificate holding district office. (l) Related Information For more information about this AD, contact Dan McCully, Program Manager, COS Program Management Section, Operational Safety Branch, Compliance & Airworthiness Division, FAA, 1701 Columbia Ave., Mail Stop: ACO, College Park, GA 30337; telephone (404) 474–5548; email william.mccully@faa.gov. (m) Material Incorporated by Reference (1) The Director of the Federal Register approved the incorporation by reference of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51. (2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise. (i) European Union Aviation Safety Agency (EASA) Emergency AD 2022–0169–E, dated August 12, 2022. (ii) [Reserved] (3) For EASA AD 2022–0169–E, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 8999 000; email ADs@easa.europa.eu; internet easa.europa.eu. You may find the EASA material on the EASA website at ad.easa.europa.eu. (4) You may view this service information at the FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy., Room 6N–321, Fort Worth, TX 76177. For information on the availability of this material at the FAA, call (817) 222–5110. This material may be found in the AD docket at regulations.gov by searching for and locating Docket No. FAA–2022–1157. (5) You may view this material that is incorporated by reference at the National PO 00000 Frm 00004 Fmt 4700 Sfmt 4700 Archives and Records Administration (NARA). For information on the availability of this material at NARA, email fr.inspection@nara.gov, or go to: www.archives.gov/federal-register/cfr/ibrlocations.html. Issued on September 6, 2022. Christina Underwood, Acting Director, Compliance & Airworthiness Division, Aircraft Certification Service. [FR Doc. 2022–20152 Filed 9–14–22; 11:15 am] BILLING CODE 4910–13–P 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 Enforcement and Compliance, International Trade Administration, Department of Commerce. ACTION: Final rule. AGENCY: 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. SUMMARY: This rule is effective on November 15, 2022. DATES: FOR FURTHER INFORMATION CONTACT: Dana Moreland, Enforcement & Compliance (E&C) Communications E:\FR\FM\16SER1.SGM 16SER1 Federal Register / Vol. 87, No. 179 / Friday, September 16, 2022 / Rules and Regulations office at (202) 482–0063 or ECCOMMUNICATIONS@trade.gov. SUPPLEMENTARY INFORMATION: eleven generally supportive of the Proposed Rule and five generally opposed. General Background 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 AsianCompleted Cells and Modules’’ or ‘‘SACompleted 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 SACompleted Cells and Modules. SACompleted 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 SACompleted 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 SACompleted 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 SACompleted 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 khammond on DSKJM1Z7X2PROD with RULES 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 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 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. 3 Procedures Covering Suspension of Liquidation, Duties and Estimated Duties in Accord with Presidential Proclamation 10414, 87 FR 39426 (July 1, 2022) (Proposed Rule). VerDate Sep<11>2014 16:02 Sep 15, 2022 Jkt 256001 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). PO 00000 Frm 00005 Fmt 4700 Sfmt 4700 56869 Termination and for use by the Utilization Expiration Date. 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). 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 § 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. 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). E:\FR\FM\16SER1.SGM 16SER1 khammond on DSKJM1Z7X2PROD with RULES 56870 Federal Register / Vol. 87, No. 179 / Friday, September 16, 2022 / Rules and Regulations (2) If, before the Date of Termination, Commerce issues an affirmative preliminary determination in a circumvention inquiry covering SACompleted 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 § 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 § 351.226(l)(3). In the event there are such entries of SACompleted 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 SACompleted 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 SACompleted Cells and Modules and those SA-Completed Cells and Modules will VerDate Sep<11>2014 16:02 Sep 15, 2022 Jkt 256001 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 SACompleted 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 § 351.226(l)(1) and are to be utilized in PO 00000 Frm 00006 Fmt 4700 Sfmt 4700 the United States by the Utilization Expiration Date.6 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 SACompleted 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, nonprofit organizations, and trade associations. We considered the merits of each submission. In response, Commerce is implementing the following modifications to the Proposed Rule: • 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’’ 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. 7 Proposed Rule, 87 FR at 39426. E:\FR\FM\16SER1.SGM 16SER1 khammond on DSKJM1Z7X2PROD with RULES Federal Register / Vol. 87, No. 179 / Friday, September 16, 2022 / Rules and Regulations 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. • The heading of § 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. • 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. • Portions of § 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 § 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 § 351.226(l) of this chapter in connection with the initiation of the Solar Circumvention Inquiries. • 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. • 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. • 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 VerDate Sep<11>2014 16:02 Sep 15, 2022 Jkt 256001 inform CBP of the Date of Termination and issue suspension of liquidation and cash deposit instructions. • 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-theboard 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 PO 00000 Frm 00007 Fmt 4700 Sfmt 4700 56871 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. 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 8 See E:\FR\FM\16SER1.SGM Proposed Rule, 87 FR at 39429. 16SER1 56872 Federal Register / Vol. 87, No. 179 / Friday, September 16, 2022 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES 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. 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 SACompleted 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. 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 9 Procedures for Importation of Supplies for Use in Emergency Relief Work, 71 FR 63230, 63231, 63233 (October 30, 2006). 10 See Proclamation, 87 FR 35067, 35068 (June 9, 2022). 11 Proclamation No. 2708, 11 FR 12695 (October 29, 1946) (Emergency Due to Housing Shortage-Free Importation of Timber, Lumber, and Lumber Products). VerDate Sep<11>2014 16:02 Sep 15, 2022 Jkt 256001 waiver of duties on the importation of housing construction supplies to ensure sufficient housing. 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 12 Proclamation, 87 FR at 35067. 13 Id. PO 00000 Frm 00008 Fmt 4700 Sfmt 4700 Corporation have both warned of nearterm electricity reliability risks in their recent summer reliability assessments.14 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 supplychain 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 14 Id.; see also generally North American Electric Reliability Corporation, 2022 Summer Reliability Assessment (May 5, 2022), available at https:// www.nerc.com/pa/RAPA/ra/Reliability%20 Assessments%20DL/NERC_SRA_2022.pdf; Federal Energy Regulatory Commission, Summer Energy Market and Reliability Assessment, at 13–16 (2022), available at https://www.ferc.gov/media/reportsummer-assessment-2022. 15 See U.S. Dept. of Energy, Acute Shortage of Solar Equipment Poses Risks to the Power Sector, at 2 (June 2022), available at https:// www.energy.gov/sites/default/files/2022-06/ June%202022%20DOE%20Solar %20Market%20Update.pdf. 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), https://www.eia.gov/todayinenergy/detail. php?id=53400. 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), https:// www.eia.gov/outlooks/steo/. 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. E:\FR\FM\16SER1.SGM 16SER1 Federal Register / Vol. 87, No. 179 / Friday, September 16, 2022 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES 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 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 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 DOE explained that the ‘‘equipment shortage’’ was also ‘‘hitting domestic 18 DOE Report at 1. 19 Id. 20 Id. at 2. 21 Id. 22 Id. 23 Id. (citing module import data from the United States International Trade Commission. 2022. ‘‘DataWeb.USITC.GOV.’’ May 16, 2022). 24 Id. VerDate Sep<11>2014 16:02 Sep 15, 2022 Jkt 256001 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 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 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 In addition, information provided by several commenters confirms the electricity emergency declared by the Proclamation.30 That information 25 Id. 26 Id. 27 Id. at 4 (citing the North American Electric Reliability Corporation, 2022 Summer Reliability Assessment (May 5, 2022), available at https:// www.nerc.com/pa/RAPA/ra/Reliability%20 Assessments%20DL/NERC_SRA_2022.pdf). 28 DOE Report at 5. 29 Id. 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 https://www.ferc.gov/news-events/news/ferc-actsboost-grid-reliability-against-extreme-weatherconditions (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 SupplyChain Crisis this Summer, Reuters (June 29, 2022), available at https://www.reuters.com/business/ energy/us-power-companies-face-supply-chaincrisis-this-summer-2022-06-29/ (‘‘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 https:// www.theatlantic.com/science/archive/2022/03/ PO 00000 Frm 00009 Fmt 4700 Sfmt 4700 56873 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 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 energy-independence-gas-prices/627117/ (‘‘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 https:// www.reuters.com/investigates/special-report/usarenewables-electric-grid/ (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 https:// www.noaa.gov/news/june-2022-us-dominated-byremarkable-heat-dryness (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. E:\FR\FM\16SER1.SGM 16SER1 56874 Federal Register / Vol. 87, No. 179 / Friday, September 16, 2022 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES 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 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. 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 34 See David Feldman et al., Spring 2022 Solar Industry Update, National Renewable Energy Laboratory (Apr. 26, 2022) at slide 62, available at https://www.nrel.gov/docs/fy22osti/82854.pdf (NREL Spring Update). 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 https:// usatrade.census.gov. 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 https://www.census.gov/ foreign-trade/statistics/corrections/. 36 See U.S. Census Bureau data for HTS 8541.40.60.15, 8541.43.00.10, available at https:// usatrade.census.gov, 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. VerDate Sep<11>2014 16:02 Sep 15, 2022 Jkt 256001 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 PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 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 nearterm market demand, and less than onetenth 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. 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 37 DOE Report at 2. at 8. 39 See EIA Short Term Energy Outlook, available at https://www.eia.gov/outlooks/steo/archives/ May22.pdf. Table 8b lists 113.9 billion kWh of utility-scale solar and 49.8 billion kWh from smallscale 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. 38 Id. E:\FR\FM\16SER1.SGM 16SER1 Federal Register / Vol. 87, No. 179 / Friday, September 16, 2022 / Rules and Regulations 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 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 openended—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. 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 SACompleted Cells and Modules that are designated for stalled projects. More than that, such a proposed remedy would be difficult to administer.47 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 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 46 See khammond on DSKJM1Z7X2PROD with RULES 41 See U.S. Energy Information Administration, Short Term Energy Outlook (May 10, 2022), available at https://www.eia.gov/outlooks/steo/ archives/May22.pdf. 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 https://www.energy.gov/ sites/default/files/2022-06/ June%202022%20DOE%20Solar%20Market %20Update.pdf. 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 https:// www.energy.gov/sites/default/files/2022-06/ June%202022%20DOE%20Solar%20Market %20Update.pdf. 45 DOE Report at 8. VerDate Sep<11>2014 16:02 Sep 15, 2022 Jkt 256001 Proclamation, 87 FR at 35067. 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. 48 See International Energy Agency, Special Report on Solar PV Global Supply Chains at 8 (July 2022), available at https:// iea.blob.core.windows.net/assets/4eedd256-b3db4bc6-b5aa-2711ddfc1f90/SpecialReportonSolar PVGlobalSupplyChains.pdf. 49 See Tomich, Jeffrey, Solar Market Turmoil Delays Ind. Coal Shutdown (May 5, 2022), available at https://www.eenews.net/articles/solar-marketturmoil-delays-ind-coal-shutdown/; Salt River Project, Coolidge Expansion Project FAQ, How does growing demand contribute to resource constraints?, available at https://www.srpnet.com/ grid-water-management/grid-management/ improvement-projects/coolidge-expansion-projectfaq. Office of the Governor of California, Letter to U.S. Department of Commerce Secretary Gina M. Raimondo (April 27, 2022), available at https:// s3.documentcloud.org/documents/21761581/ 47 Moreover, PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 56875 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. 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 newsom-letter.pdf.; Mangieri, Gina, Power Cost Hike, Supply Crunch Ahead as Last Hawaii Coal Plant Closes (June 24,2022), available at https:// www.khon2.com/always-investigating/power-costhike-supply-crunch-ahead-as-last-hawaii-coalplant-closes/. E:\FR\FM\16SER1.SGM 16SER1 56876 Federal Register / Vol. 87, No. 179 / Friday, September 16, 2022 / Rules and Regulations 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. khammond on DSKJM1Z7X2PROD with RULES 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 VerDate Sep<11>2014 16:02 Sep 15, 2022 Jkt 256001 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. 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. Contrary to this assertion, Commerce’s reasoning with respect to scope rulings does not apply to circumvention determinations.52 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. 51 See Regulations To Improve Administration and Enforcement of Antidumping and Countervailing Duty Laws, 86 FR 52300, 52312 (September 20, 2021). 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)). PO 00000 Frm 00012 Fmt 4700 Sfmt 4700 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). 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 53 19 CFR 351.225(a). 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[.]’’). 54 See E:\FR\FM\16SER1.SGM 16SER1 Federal Register / Vol. 87, No. 179 / Friday, September 16, 2022 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES 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-andcomment 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. 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 postProclamation imports would be free of AD/CVD duties—and such reliance was an important policy objective of the Proclamation. VerDate Sep<11>2014 16:02 Sep 15, 2022 Jkt 256001 9. Application of the Final Rule to PreJune 6, 2022 Entries Multiple commenters criticize the application of the proposed rule to preJune 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 preProclamation 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. 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 56 See 19 CFR 159.1. 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. 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). 57 With PO 00000 Frm 00013 Fmt 4700 Sfmt 4700 56877 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 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. 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 59 See 19 CFR 351.226(l)(2). 19 CFR 351.226(l)(1). 61 See section 751 of the Act. 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.’’). 60 See E:\FR\FM\16SER1.SGM 16SER1 56878 Federal Register / Vol. 87, No. 179 / Friday, September 16, 2022 / Rules and Regulations 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-andcomment rulemaking to address the declared emergency.65 khammond on DSKJM1Z7X2PROD with RULES 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 63 Notably, because there has not been any determination of circumvention, all of the SACompleted 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 preProclamation 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. VerDate Sep<11>2014 16:02 Sep 15, 2022 Jkt 256001 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 preProclamation 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. PO 00000 Frm 00014 Fmt 4700 Sfmt 4700 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. 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 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’’). E:\FR\FM\16SER1.SGM 16SER1 Federal Register / Vol. 87, No. 179 / Friday, September 16, 2022 / Rules and Regulations 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. 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. Insofar as commenters express concerns regarding China’s labor practices, those comments are outside 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 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) https:// www.energy.gov/eere/solar/solar-futures-study; 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) https://cleanpower.org/wpcontent/uploads/2022/ 05/2021-ACP-Annual-Report-FinalPublic.pdf. khammond on DSKJM1Z7X2PROD with RULES 351.226(l)(1), rather than to any entries that were suspended pursuant to the China Solar Orders underlying the circumvention inquiries. VerDate Sep<11>2014 16:02 Sep 15, 2022 Jkt 256001 PO 00000 Frm 00015 Fmt 4700 Sfmt 4700 56879 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 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 dutyexempted imports of solar products qualify as supplies for use in emergency relief work. 68 See E:\FR\FM\16SER1.SGM 19 U.S.C. 1307. 16SER1 56880 Federal Register / Vol. 87, No. 179 / Friday, September 16, 2022 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES 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 SACompleted 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 § 362.104 does not preclude Commerce from requiring a certification for SA-Completed Cells and Modules pursuant to § 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 VerDate Sep<11>2014 16:02 Sep 15, 2022 Jkt 256001 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 § 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 § 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, § 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, § 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 SACompleted Cells and Modules that are entered, or withdrawn from warehouse, for consumption on or after that date. PO 00000 Frm 00016 Fmt 4700 Sfmt 4700 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. 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 § 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 69 Proclamation No. 2735, 12 FR 4255 (July 2, 1947) (Importation of Timber, Lumber and Lumber Products) (Emergency Termination Proclamation). E:\FR\FM\16SER1.SGM 16SER1 Federal Register / Vol. 87, No. 179 / Friday, September 16, 2022 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES acknowledges that the heading to proposed § 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 § 362.103(a), Commerce has amended the header of § 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 § 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 SACompleted 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, VerDate Sep<11>2014 16:02 Sep 15, 2022 Jkt 256001 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 §§ 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-oforigin analysis for purposes of this final rule. PO 00000 Frm 00017 Fmt 4700 Sfmt 4700 56881 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 E:\FR\FM\16SER1.SGM 16SER1 56882 Federal Register / Vol. 87, No. 179 / Friday, September 16, 2022 / Rules and Regulations ‘‘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 khammond on DSKJM1Z7X2PROD with RULES 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 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), https://www.eia.gov/todayinenergy/ detail.php?id=50818. VerDate Sep<11>2014 16:02 Sep 15, 2022 Jkt 256001 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 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 climateimpact benefits of solar power. 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 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%20 Annual%20Energy%20Outlook,new%20wind% 20and%20solar%20power.; see also DOE report at 2. 72 U.S. Dept. of Energy, Solar Futures Study (Sept. 2021), https://www.energy.gov/eere/solar/solarfutures-study. 73 U.S. Dept. of Energy, Acute Shortage of Solar Equipment Poses Risks to the Power Sector, 1 (June 2022), available at https://www.energy.gov/sites/ default/files/2022-06/June%202022%20DOE%20 Solar%20Market%20Update.pdf. 74 See, e.g., Seth Blumsack, Basic Economies of Power Generation, Transmission and Distribution, The Pennsylvania State University, available at https://www.e-education.psu.edu/eme801/node/ 530. PO 00000 Frm 00018 Fmt 4700 Sfmt 4700 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 nearterm market demand and less than onetenth what would be required to meet the country’s climate targets and energy security needs.77 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. 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 75 U.S. Dept. of Energy, Solar Photovoltaics: Supply Chain Deep Dive Assessment, 2–3 (Feb. 24, 2022), available at https://www.energy.gov/sites/ default/files/2022-02/Solar%20Energy%20 Supply%20Chain%20Report%20-%20Final.pdf. 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 https://www.energy.gov/sites/ default/files/2022-06/June%202022%20DOE%20 Solar%20Market%20Update.pdf. 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). https://www.usitc.gov/publications/other/ pub5266.pdf. 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); https://usatrade.census.gov/ for HS Code 8541.40.60.25 for 2020 and 2021. 82 Census Bureau data available at https:// usatrade.census.gov for HTS codes 8541.40.60.15 E:\FR\FM\16SER1.SGM 16SER1 Federal Register / Vol. 87, No. 179 / Friday, September 16, 2022 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES 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. 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, 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 https://www.eenews.net/articles/solar-marketturmoil-delays-ind-coal-shutdown/; Salt River Project, Coolidge Expansion Project FAQ, How does growing demand contribute to resource constraints?, available at https://www.srpnet.com/ grid-water-management/grid-management/ improvement-projects/coolidge-expansion-projectfaq. Office of the Governor of California, Letter to U.S. Department of Commerce Secretary Gina M. Raimondo (April 27, 2022), available at https:// s3.documentcloud.org/documents/21761581/ newsom-letter.pdf.; Mangieri, Gina, Power Cost Hike, Supply Crunch Ahead as Last Hawaii Coal Plant Closes (June 24,2022), available at https:// www.khon2.com/always-investigating/power-costhike-supply-crunch-ahead-as-last-hawaii-coalplant-closes/. 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.’’ VerDate Sep<11>2014 16:02 Sep 15, 2022 Jkt 256001 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 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 85 Id. at page I–46. Solar Jobs Census 2021, at page 19, available at https://irecusa.org/programs/solar-jobscensus/. 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 https:// www.energy.gov/sites/default/files/2022-06/ USEER%202022%20National%20Report_1.pdf. 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 86 National PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 56883 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. 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 SACompleted 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. (published February 24, 2022), available at https:// www.eia.gov/electricity/data/eia860m/. 89 Id. E:\FR\FM\16SER1.SGM 16SER1 56884 Federal Register / Vol. 87, No. 179 / Friday, September 16, 2022 / Rules and Regulations 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. 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 shortterm 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 khammond on DSKJM1Z7X2PROD with RULES NAICS codes 334413 237130 335999 Manufacturer Developer Miscellaneous electrical component manufacturer Large .......................................................................................................................... Small .......................................................................................................................... 23 13 6 0 1 5 Total .................................................................................................................... 36 6 6 Source: Department of Commerce, International Trade Administration analysis of USITC Publication 5266 Table I–15. 90 Id. at page I–37. VerDate Sep<11>2014 16:02 Sep 15, 2022 91 Id. Jkt 256001 PO 00000 at page I–26 to I–28. Frm 00020 Fmt 4700 92 Id. Sfmt 4700 E:\FR\FM\16SER1.SGM at page I–23 to I–24. 16SER1 Federal Register / Vol. 87, No. 179 / Friday, September 16, 2022 / Rules and Regulations 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 SACompleted Cells and Modules. Further, TABLE 3—NUMBER OF IMPORTERS this rule would temporarily permit the importation of certain solar cells and [Harmonized tariff schedule data] modules from the four Southeast Asian countries at issue free of duties that may Number of Product description importers result from the ongoing circumvention inquiries under the AD/CVD duty laws. CSPV Assembled Modules/ In this way, until the Date of Panels ................................... 397 CSPV Cells ............................... 147 Termination, the rule provides CSPV Modules and Cells ......... 45 importers with relief from possible AD/ CVD duties and estimated duties that Total Importers .................. 499 might otherwise be owed as a result of the ongoing circumvention inquiries. Source: U.S. Customs and Border Protection analysis of Harmonized Tariff Schedule These benefits are speculative at this data Harmonized System Product Codes point, but even if they come to fruition, 8541406015 and 8541406025, Entry Date Commerce believes that there is no 2020. significant competitive disadvantage to importers of the products at issue in this In Table 3, the number of importers rule, including importers that are small listed for the three categories does not TABLE 2—LARGE AND SMALL entities. sum to the total number of importers, IMPORTERS, BY PRODUCTS IMPORTED because of the need to avoid double These actions under this rule do not add burden on importers, including counting. Those who import both CPSV Importers importers that are small entities, in Modules and Cells are included in both Products imported connection with their importation of ‘‘CSPV Assembled Modules/Panels’’ Large Small certain solar cells and modules from the importers and ‘‘CSPV Cells’’ importers. Cells and Modules .... 4 2 Thus, the total number of importers is four Southeast Asian countries. Rather, Cells only .................. 5 6 (397 + 147)¥45. they remove requirements that might Modules only ............ 21 10 otherwise be applicable and, therefore, Taking into account that some do not result in significant economic Source: Department of Commerce, Inter- companies imported both cells and impact to them. Further, this rule national Trade Administration analysis of modules, the total number of importers USITC Publication 5266 Table I–15. removes uncertainty as to whether AD/ in 2020 for the two products combined is 499 entities. Assuming that, as for the CVD duties may apply before the Date In addition to the 18 small entities of Termination as a result of the ongoing importers identified in USITC Commerce identified in Table I–15, circumvention inquiries. For all of these Publication 5266, 88 percent of the Commerce assumes that the remaining reasons, Commerce continues to believe importers are small businesses, 214 importers initially identified by that there is no significant, adverse approximately 440 of these importers USITC as possible importers but not economic impact on importers of the would be small entities. Therefore, included in Table I–15 were all merchandise, including importers that using both the analysis of importers importers and accounted for the are small entities. from USITC Publication 5266 and the remaining 33.5 percent of imports of The actions in this rule to respond to analysis of Harmonized Tariff Schedule cells or modules. Commerce further the emergency declared by the data, Commerce estimates that the assumes that all of these importers are Proclamation apply specifically to SAnumber of small entities directly small entities, bringing the total to 232 Completed Cells and Modules, which impacted by this final rule ranges from small entities, around 88 percent of all are the certain cells and modules 232 to 440 importers. importers that USITC may have identified in the Proclamation. identified. Commerce believes that the Description of Reporting, Recordkeeping Accordingly, Commerce is appropriately estimate of small entities directly and Other Compliance Requirements responding to the emergency declared affected by this rule is based on in the Proclamation and uses the This rule has no reporting, conservative assumptions and that the authorities provided in the recordkeeping, and other compliance actual number is likely to be smaller, as requirements and does not duplicate, Proclamation, as well as its own some of the 214 importers may not be authorities, in a way tailored to the overlap, or conflict with other Federal importers of cells or modules and, Proclamation and emergency declared Rules. among those who were importers, some therein. Commerce has taken Steps the Agency Has Taken To may not be small entities. appropriate steps to minimize any Minimize the Significant Economic Furthermore, the information in significant economic impact on small Impact on Small Entities USITC Publication 5266 pertains to entities consistent with the stated Under this rule, Commerce will importers of cells and modules from all objectives of the Proclamation and temporarily waive and extend the sources, while the entities directly believes that there is no regulatory application of certain regulations, if affected by this rule are importers of alternative that would reduce any such otherwise applicable, involving SAcells and modules from the four impact. Further, in the event that there 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. khammond on DSKJM1Z7X2PROD with RULES 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: 56885 VerDate Sep<11>2014 16:02 Sep 15, 2022 Jkt 256001 PO 00000 Frm 00021 Fmt 4700 Sfmt 4700 E:\FR\FM\16SER1.SGM 16SER1 56886 Federal Register / Vol. 87, No. 179 / Friday, September 16, 2022 / Rules and Regulations 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. khammond on DSKJM1Z7X2PROD with RULES 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. Nevertheless, Commerce has included a discussion of indirect impacts in the Regulatory Impact Analysis. 93 5 U.S.C. 603–604. 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). 94 Mid-Tex VerDate Sep<11>2014 16:02 Sep 15, 2022 Jkt 256001 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. 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. 362.101 362.102 PO 00000 Scope. Definitions. Frm 00022 Fmt 4700 Sfmt 4700 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. § 362.101 Scope. This part sets forth the actions the Secretary is taking to respond to the emergency declared in Presidential Proclamation 10414. § 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 E:\FR\FM\16SER1.SGM 16SER1 Federal Register / Vol. 87, No. 179 / Friday, September 16, 2022 / Rules and Regulations 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. khammond on DSKJM1Z7X2PROD with RULES § 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 § 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 AsianCompleted Cells and Modules that were suspended pursuant to § 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 VerDate Sep<11>2014 16:02 Sep 15, 2022 Jkt 256001 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 § 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 AsianCompleted 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 § 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 § 351.212(b) of this chapter, issues liquidation instructions to CBP, the Secretary will direct CBP to liquidate Applicable Entries without PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 56887 regard to antidumping and countervailing duties that would otherwise apply pursuant to an affirmative final determination of circumvention. § 362.104 Certifications. Nothing in this section shall preclude the Secretary from requiring certifications for Southeast AsianCompleted Cells and Modules pursuant to § 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 DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG–2022–0722] RIN 1625–AA00 Safety Zone; Sunset Point, San Juan Island, WA Coast Guard, Department of Homeland Security (DHS). ACTION: Temporary final rule. AGENCY: The Coast Guard is establishing a temporary safety zone for navigable waters within a 1000-yard radius of Sunset Point on San Juan Island, WA. This rule supplement a safety zone expiring on September 12, 2022. This safety zone is needed to protect personnel, vessels, and the marine environment from potential hazards associated with the emergency response efforts and the recovery of a sunken vessel. Entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port Sector Puget Sound. DATES: This rule is effective without actual notice from September 16, 2022, through September 26, 2022, at 10 p.m. For the purposes of enforcement, actual notice will be used from September 12, 2022, at 10 p.m., until September 16, 2022. SUMMARY: To view documents mentioned in this preamble as being available in the docket, go to https:// www.regulations.gov, type USCG–2022– 0722 in the search box and click ‘‘Search.’’ Next, in the Document Type column, select ‘‘Supporting & Related Material.’’ ADDRESSES: If you have questions on this rule, call or FOR FURTHER INFORMATION CONTACT: E:\FR\FM\16SER1.SGM 16SER1

Agencies

[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 [www.gpo.gov]
[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 [email protected].

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.
---------------------------------------------------------------------------

    \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:
---------------------------------------------------------------------------

    \7\ Proposed Rule, 87 FR at 39426.
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     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.
     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.
     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.
     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.
     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.
     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.
     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.
     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.
---------------------------------------------------------------------------

    \8\ See Proposed Rule, 87 FR at 39429.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \9\ Procedures for Importation of Supplies for Use in Emergency 
Relief Work, 71 FR 63230, 63231, 63233 (October 30, 2006).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \10\ See Proclamation, 87 FR 35067, 35068 (June 9, 2022).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \11\ Proclamation No. 2708, 11 FR 12695 (October 29, 1946) 
(Emergency Due to Housing Shortage-Free Importation of Timber, 
Lumber, and Lumber Products).
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \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 https://www.nerc.com/pa/RAPA/ra/Reliability%20Assessments%20DL/NERC_SRA_2022.pdf; Federal Energy 
Regulatory Commission, Summer Energy Market and Reliability 
Assessment, at 13-16 (2022), available at https://www.ferc.gov/media/report-summer-assessment-2022.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \15\ See U.S. Dept. of Energy, Acute Shortage of Solar Equipment 
Poses Risks to the Power Sector, at 2 (June 2022), available at 
https://www.energy.gov/sites/default/files/2022-06/June%202022%20DOE%20Solar%20Market%20Update.pdf.
    \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), https://www.eia.gov/todayinenergy/detail.php?id=53400. 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), https://www.eia.gov/outlooks/steo/. 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 https://www.nerc.com/pa/RAPA/ra/Reliability%20Assessments%20DL/NERC_SRA_2022.pdf).
    \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.
---------------------------------------------------------------------------

    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 https://www.ferc.gov/news-events/news/ferc-acts-boost-grid-reliability-against-extreme-weather-conditions (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 https://www.reuters.com/business/energy/us-power-companies-face-supply-chain-crisis-this-summer-2022-06-29/ (``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 https://www.theatlantic.com/science/archive/2022/03/energy-independence-gas-prices/627117/ (``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 
https://www.reuters.com/investigates/special-report/usa-renewables-electric-grid/ (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 https://www.noaa.gov/news/june-2022-us-dominated-by-remarkable-heat-dryness (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 https://www.nrel.gov/docs/fy22osti/82854.pdf 
(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 https://usatrade.census.gov. 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 https://www.census.gov/foreign-trade/statistics/corrections/.
    \36\ See U.S. Census Bureau data for HTS 8541.40.60.15, 
8541.43.00.10, available at https://usatrade.census.gov, 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 https://www.eia.gov/outlooks/steo/archives/May22.pdf. 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 https://www.eia.gov/outlooks/steo/archives/May22.pdf.
    \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 
https://www.energy.gov/sites/default/files/2022-06/June%202022%20DOE%20Solar%20Market%20Update.pdf.
---------------------------------------------------------------------------

    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 https://www.energy.gov/sites/default/files/2022-06/June%202022%20DOE%20Solar%20Market%20Update.pdf.
    \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 https://iea.blob.core.windows.net/assets/4eedd256-b3db-4bc6-b5aa-2711ddfc1f90/SpecialReportonSolarPVGlobalSupplyChains.pdf.
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    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 https://www.eenews.net/articles/solar-market-turmoil-delays-ind-coal-shutdown/; Salt River 
Project, Coolidge Expansion Project FAQ, How does growing demand 
contribute to resource constraints?, available at https://www.srpnet.com/grid-water-management/grid-management/improvement-projects/coolidge-expansion-project-faq. Office of the Governor of 
California, Letter to U.S. Department of Commerce Secretary Gina M. 
Raimondo (April 27, 2022), available at https://s3.documentcloud.org/documents/21761581/newsom-letter.pdf.; 
Mangieri, Gina, Power Cost Hike, Supply Crunch Ahead as Last Hawaii 
Coal Plant Closes (June 24,2022), available at https://www.khon2.com/always-investigating/power-cost-hike-supply-crunch-ahead-as-last-hawaii-coal-plant-closes/.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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[.]'').
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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'').
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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) https://www.energy.gov/eere/solar/solar-futures-study; 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) https://cleanpower.org/wpcontent/uploads/2022/05/2021-ACP-Annual-Report-FinalPublic.pdf.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \68\ See 19 U.S.C. 1307.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \69\ Proclamation No. 2735, 12 FR 4255 (July 2, 1947) 
(Importation of Timber, Lumber and Lumber Products) (Emergency 
Termination Proclamation).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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), https://www.eia.gov/todayinenergy/detail.php?id=50818.
    \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.
---------------------------------------------------------------------------

    \72\ U.S. Dept. of Energy, Solar Futures Study (Sept. 2021), 
https://www.energy.gov/eere/solar/solar-futures-study.
    \73\ U.S. Dept. of Energy, Acute Shortage of Solar Equipment 
Poses Risks to the Power Sector, 1 (June 2022), available at https://www.energy.gov/sites/default/files/2022-06/June%202022%20DOE%20Solar%20Market%20Update.pdf.
    \74\ See, e.g., Seth Blumsack, Basic Economies of Power 
Generation, Transmission and Distribution, The Pennsylvania State 
University, available at https://www.e-education.psu.edu/eme801/node/530.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \75\ U.S. Dept. of Energy, Solar Photovoltaics: Supply Chain 
Deep Dive Assessment, 2-3 (Feb. 24, 2022), available at https://www.energy.gov/sites/default/files/2022-02/Solar%20Energy%20Supply%20Chain%20Report%20-%20Final.pdf.
    \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 https://www.energy.gov/sites/default/files/2022-06/June%202022%20DOE%20Solar%20Market%20Update.pdf.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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). https://www.usitc.gov/publications/other/pub5266.pdf.
    \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); https://usatrade.census.gov/ for HS Code 8541.40.60.25 for 2020 and 2021.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \82\ Census Bureau data available at https://usatrade.census.gov 
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 https://www.eenews.net/articles/solar-market-turmoil-delays-ind-coal-shutdown/; Salt River Project, Coolidge 
Expansion Project FAQ, How does growing demand contribute to 
resource constraints?, available at https://www.srpnet.com/grid-water-management/grid-management/improvement-projects/coolidge-expansion-project-faq. Office of the Governor of California, Letter 
to U.S. Department of Commerce Secretary Gina M. Raimondo (April 27, 
2022), available at https://s3.documentcloud.org/documents/21761581/newsom-letter.pdf.; Mangieri, Gina, Power Cost Hike, Supply Crunch 
Ahead as Last Hawaii Coal Plant Closes (June 24,2022), available at 
https://www.khon2.com/always-investigating/power-cost-hike-supply-crunch-ahead-as-last-hawaii-coal-plant-closes/.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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 
https://irecusa.org/programs/solar-jobs-census/. 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 https://www.energy.gov/sites/default/files/2022-06/USEER%202022%20National%20Report_1.pdf.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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 https://www.eia.gov/electricity/data/eia860m/.
    \89\ Id.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \90\ Id. at page I-37.
    \91\ Id. at page I-26 to I-28.
    \92\ Id. at page I-23 to I-24.
---------------------------------------------------------------------------

    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