[Federal Register Volume 87, Number 27 (Wednesday, February 9, 2022)]
[Presidential Documents]
[Pages 7357-7362]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-02906]


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  Federal Register / Vol. 87, No. 27 / Wednesday, February 9, 2022 / 
Presidential Documents  

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 Title 3--
 The President

[[Page 7357]]

                Proclamation 10339 of February 4, 2022

                
To Continue Facilitating Positive Adjustment to 
                Competition From Imports of Certain Crystalline Silicon 
                Photovoltaic Cells (Whether or Not Partially or Fully 
                Assembled Into Other Products)

                By the President of the United States of America

                A Proclamation

                1. On January 23, 2018, pursuant to section 203 of the 
                Trade Act of 1974, as amended (the ``Trade Act'') (19 
                U.S.C. 2253), the President issued Proclamation 9693, 
                imposing a safeguard measure for a period of 4 years 
                that included both a tariff-rate quota (TRQ) on imports 
                of certain crystalline silicon photovoltaic (CSPV) 
                cells, not partially or fully assembled into other 
                products, provided for in subheading 8541.40.6025 of 
                the Harmonized Tariff Schedule of the United States 
                (HTS), and an increase in duties (safeguard tariff) on 
                imports of CSPV cells exceeding the TRQ and all imports 
                of other CSPV products, including modules provided for 
                in subheading 8541.40.6015 of the HTS. Proclamation 
                9693 exempted imports from certain designated 
                beneficiary countries under the Generalized System of 
                Preferences from the application of the safeguard 
                measure.

                2. Clause (4) and Annex I of Proclamation 9693 directed 
                the United States Trade Representative (USTR) to 
                establish procedures for interested persons to request 
                the exclusion of particular products from the safeguard 
                measure. These provisions also authorized the USTR, in 
                consultation with the Secretary of Commerce and the 
                Secretary of Energy, to determine whether a particular 
                product should be excluded, and, upon publication of a 
                determination in the Federal Register, to modify the 
                HTS to implement such determination. Furthermore, they 
                authorized the USTR to modify or to terminate such 
                determinations. Effective June 13, 2019, the USTR 
                excluded bifacial solar panels that absorb light and 
                generate electricity on each side of the panel and that 
                consist of only bifacial solar cells that absorb light 
                and generate electricity on both sides of the cells 
                (bifacial modules). Exclusion of Particular Products 
                From the Solar Products Safeguard Measure, 84 FR 27684 
                (June 13, 2019).

                3. On February 7, 2020, the United States International 
                Trade Commission (USITC) issued its report, pursuant to 
                section 204(a)(2) of the Trade Act (19 U.S.C. 
                2254(a)(2)), on the results of its monitoring of 
                developments with respect to the domestic solar 
                industry (USITC, Crystalline Silicon Photovoltaic 
                Cells, Whether or Not Partially or Fully Assembled Into 
                Other Products: Monitoring Developments in the Domestic 
                Industry, No. TA-201-075 (Monitoring)). In its report, 
                the USITC found that, following imposition of the 
                safeguard measure, prices for CSPV cells and modules 
                declined in a manner consistent with historical trends, 
                but that prices were higher than they would have been 
                without the safeguard measure.

                4. On March 6, 2020, the USITC issued an additional 
                report pursuant to a request from the USTR under 
                section 204(a)(4) of the Trade Act (19 U.S.C. 
                2254(a)(4)), regarding the probable economic effect on 
                the domestic CSPV cell and module manufacturing 
                industry of modifying the safeguard measure to increase 
                the level of the TRQ on CSPV cells from the current

[[Page 7358]]

                2.5 gigawatts (GW) to 4.0, 5.0, or 6.0 GW (USITC, 
                Crystalline Silicon Photovoltaic Cells, Whether or Not 
                Partially or Fully Assembled Into Other Products: 
                Advice on the Probable Economic Effect of Certain 
                Modifications to the Safeguard Measure, No. TA-201-075 
                (Modification)). In its report, the USITC advised that 
                increasing the TRQ would help to continue growth in 
                solar module production, but that expanded access to 
                imported cells not subject to safeguard duties would 
                put downward pressure on prices for cells made in the 
                United States.

                5. After taking into account the information provided 
                in the USITC's reports, and after receiving a petition 
                from a majority of the representatives of the domestic 
                industry with respect to each of the following 
                modifications, and under section 204(b)(1)(B) of the 
                Trade Act (19 U.S.C. 2254(b)(1)(B)), the President 
                issued Proclamation 10101 on October 10, 2020, in which 
                he determined that the domestic industry has begun to 
                make a positive adjustment to import competition, as 
                shown by the increases in domestic module production 
                capacity, production, and market share. Proclamation 
                10101 also:

                    (a) revoked the exclusion of bifacial modules from 
                application of the safeguard measure on the basis that 
                it had impaired and was likely to continue to impair 
                the effectiveness of the safeguard action; and
                    (b) adjusted the safeguard tariff for the fourth 
                year of the safeguard measure from 15 percent to 18 
                percent on the basis that the exclusion of bifacial 
                modules from application of the safeguard tariffs had 
                impaired the remedial effectiveness of the 4-year 
                action proclaimed in Proclamation 9693, and to achieve 
                the full remedial effect envisaged in that action.

                6. On November 16, 2021, the United States Court of 
                International Trade held in Solar Energy Industries 
                Association et al. v. United States (SEIA) that the 
                President acted outside of his statutory authority in 
                issuing Proclamation 10101, and enjoined the Government 
                from enforcing that proclamation. This injunction had 
                the effect of reinstating the exclusion of bifacial 
                modules from the safeguard tariffs and lowering the 
                fourth year safeguard tariff to 15 percent. On January 
                14, 2022, the Government filed a notice of appeal of 
                SEIA to the United States Court of Appeals for the 
                Federal Circuit.

                7. On December 8, 2021, in response to petitions by 
                representatives of the domestic industry, the USITC 
                issued its determination and report pursuant to section 
                204(c) of the Trade Act (19 U.S.C. 2254(c)), finding 
                that safeguard action continues to be necessary to 
                prevent or remedy the serious injury to the domestic 
                industry, and that there is evidence that the domestic 
                industry is making a positive adjustment to import 
                competition (USITC, Crystalline Silicon Photovoltaic 
                Cells, Whether or Not Partially or Fully Assembled Into 
                Other Products, Investigation No. TA-201-75 
                (Extension)).

                8. Section 203(e)(1)(B) of the Trade Act (19 U.S.C. 
                2253(e)(1)(B)) authorizes the President, after 
                receiving an affirmative determination from the USITC 
                pursuant to section 204(c) of the Trade Act (19 U.S.C. 
                2254(c)), to extend the effective period of any action 
                taken under section 203 of the Trade Act if the 
                President determines that the action continues to be 
                necessary to prevent or remedy the serious injury, and 
                there is evidence that the domestic industry is making 
                a positive adjustment to import competition.

                9. After taking into account the information provided 
                in the USITC's report and the information received from 
                the public through the process published in the Federal 
                Register on September 30, 2021 (86 FR 54279), pursuant 
                to section 203(e)(1)(B) of the Trade Act (19 U.S.C. 
                2253(e)(1)(B)), I have determined that the safeguard 
                action on imports of CSPV cells, whether or not 
                partially or fully assembled into other products, 
                continues to be necessary to prevent or remedy the 
                serious injury to the domestic industry, and that there 
                is evidence that the domestic industry is making a 
                positive adjustment to import competition. I have 
                further determined to extend the safeguard measure 
                proclaimed in Proclamation 9693, as modified by 
                Proclamation 10101 (to the extent permitted by law), as 
                follows:

[[Page 7359]]

                    (a) continuation of the TRQ on imports of solar 
                cells not partially or fully assembled into other 
                products described in paragraph 1 of this proclamation 
                for an additional period of 4 years, with unchanging 
                within-quota quantities of 5.0 GW for each year and 
                annual reductions in the rates of duty applicable to 
                goods entered in excess of those quantities of cells in 
                the fifth, sixth, seventh, and eighth years, as 
                described in Annex I to this proclamation;
                    (b) continuation of the increase in duties on 
                imports of modules described in paragraph 1 of this 
                proclamation for an additional period of 4 years, with 
                annual reductions in the fifth, sixth, seventh, and 
                eighth years, as described in Annex I to this 
                proclamation; and
                    (c) exclusion of bifacial panels from the extension 
                of duties proclaimed in this paragraph.

                10. I have determined that an extension of this 
                safeguard measure will provide greater economic and 
                social benefits than costs.

                11. As provided in Proclamation 9693, this safeguard 
                measure shall continue to apply to imports from all 
                countries, except as provided in clause (4) of this 
                proclamation and paragraph 10 of Proclamation 9693.

                12. Section 204(a)(2) of the Trade Act (19 U.S.C. 
                2254(a)(2)) requires the USITC to issue a report on its 
                monitoring of developments with respect to the domestic 
                industry, including the progress and specific efforts 
                made by workers and firms in the domestic industry to 
                make a positive adjustment to import competition, no 
                later than the midpoint of the period of the extension. 
                After I receive that report, I will evaluate whether to 
                reduce, modify, or terminate the safeguard measure 
                pursuant to section 204(b)(1) of the Trade Act (19 
                U.S.C. 2254(b)(1)).

                13. As proclaimed in Proclamation 9693, the in-quota 
                quantity in each year of the TRQ described in paragraph 
                9 of this proclamation shall be allocated among all 
                countries except those countries the products of which 
                are excluded from such TRQ pursuant to clause (4) of 
                this proclamation or paragraph 10 of Proclamation 9693.

                14. In order to address certain technical errors in the 
                HTS, the HTS is modified as set forth in Annex II to 
                this proclamation.

                15. Section 604 of the Trade Act (19 U.S.C. 2483) 
                authorizes the President to embody in the HTS the 
                substance of the relevant provisions of that Act, and 
                of other acts affecting import treatment, and actions 
                thereunder, including the removal, modification, 
                continuance, or imposition of any rate of duty or other 
                import restriction.

                NOW, THEREFORE, I, JOSEPH R. BIDEN JR., President of 
                the United States of America, by the authority vested 
                in me by the Constitution and the laws of the United 
                States, including sections 203, 204, and 604 of the 
                Trade Act, do proclaim that:

                    (1) In order to extend the measure applicable to 
                imports of CSPV cells, not partially or fully assembled 
                into other products, described in paragraph 1 of this 
                proclamation, subchapter III of chapter 99 of the HTS 
                is modified as set forth in Annex I to this 
                proclamation, subject to clauses (3) and (4) below. Any 
                merchandise subject to the safeguard measure that is 
                admitted into United States foreign trade zones on or 
                after 12:01 a.m. eastern standard time on February 7, 
                2022, must be admitted as ``privileged foreign status'' 
                as defined in 19 CFR 146.41, and will be subject upon 
                entry for consumption to any tariffs or quantitative 
                restrictions related to the classification under the 
                applicable HTS subheading.
                    (2) Except as provided in clause (3) below, imports 
                of CSPV products of World Trade Organization Member 
                countries, as listed in subdivision (b) of Note 18 to 
                subchapter III of chapter 99 of the HTS (Note 18), 
                shall continue to be excluded from the safeguard 
                measure extended by this proclamation, and such imports 
                shall not be counted toward the TRQ limits that trigger 
                the over-quota rates of duties.

[[Page 7360]]

                    (3) If, after the extension proclaimed herein is in 
                effect, the USTR determines that:

(a) the share of total imports of a country listed in subdivision (b) of 
Note 18 exceeds 3 percent;

(b) imports of the product from all listed countries with less than 3 
percent import share collectively account for more than 9 percent of total 
imports of the product; or

(c) a country listed in subdivision (b) of Note 18 is no longer a 
developing country for purposes of this proclamation;

                the USTR is authorized, upon publication of a notice in 
                the Federal Register, to revise subdivision (b) of Note 
                18 to remove the relevant country from the list or 
                suspend operation of that subdivision, as appropriate.

                    (4) I instruct the USTR to enter into negotiations 
                pursuant to section 203(f) of the Trade Act (19 U.S.C. 
                2253(f)) with Canada and Mexico. In the event that the 
                USTR concludes an agreement that the USTR, in 
                consultation with the Secretary of Commerce and the 
                Secretary of Energy, determines will ensure that 
                imports of Canada or Mexico do not undermine the 
                effectiveness of the action extended through clause (1) 
                of this proclamation, the USTR is authorized, upon 
                publication of a notice in the Federal Register, to 
                revise Note 18 to suspend application of that 
                subdivision, in whole or in part, as appropriate, with 
                respect to imports of Canada or Mexico. If the USTR 
                subsequently determines, in consultation with the 
                Secretary of Commerce and the Secretary of Energy, that 
                such an agreement is not effective, the USTR is 
                authorized, pursuant to section 203(f) of the Trade 
                Act, by publication of a notice in the Federal 
                Register, to revise Note 18 to terminate any previous 
                suspension of the action with respect to imports of 
                Canada or Mexico.
                    (5) One year after the termination of the safeguard 
                measure established in this proclamation, the U.S. note 
                and tariff provisions established in Annex I to this 
                proclamation shall be deleted from the HTS.
                    (6) Any provision of previous proclamations and 
                Executive Orders that is inconsistent with the actions 
                taken in this proclamation is superseded to the extent 
                of such inconsistency.

                IN WITNESS WHEREOF, I have hereunto set my hand this 
                fourth day of February, in the year of our Lord two 
                thousand twenty-two, and of the Independence of the 
                United States of America the two hundred and forty-
                sixth.
                
                
                    (Presidential Sig.)

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[FR Doc. 2022-02906
Filed 2-8-22; 8:45 am]
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