[Federal Register Volume 87, Number 126 (Friday, July 1, 2022)]
[Proposed Rules]
[Pages 39426-39432]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-14241]


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DEPARTMENT OF COMMERCE

International Trade Administration

19 CFR Part 362

[Docket No. 220629-0144]
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: Proposed rule; request for comments.

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SUMMARY: On June 6, 2022, the President signed Presidential 
Proclamation 10414 (Proclamation). The Proclamation declares an 
emergency to exist and states that immediate action is needed to ensure 
access to a sufficient supply of solar cells and modules to assist in 
meeting the United States' electricity generation needs. Accordingly, 
the Proclamation authorizes the Secretary of Commerce (Secretary) to 
exercise authority under section 318(a) of the Tariff Act of 1930, as 
amended (the Act), to extend during the course of such emergency the 
time to perform any act. The Proclamation also authorizes the Secretary 
to allow the importation of certain solar cells and modules from 
certain Southeast Asian countries free of the collection of duties and 
estimated duties under the antidumping and countervailing duty laws 
until 24 months after the date of the Proclamation, or until the 
emergency is declared terminated, whichever occurs first. In accordance 
with the Proclamation and the authority granted to the Department of 
Commerce (Commerce), Commerce is issuing a proposed rule to postpone 
and waive the application of certain regulations, if otherwise 
applicable, to solar cells and modules, exported from the identified 
Southeast Asian countries, that are subject to certain circumvention 
inquiries currently before Commerce. This proposed rule would provide 
that, in the event of an affirmative preliminary or final determination 
in the circumvention inquiries, Commerce would not instruct U.S. 
Customs and Border Protection (CBP) to suspend liquidation of entries 
of these cells and modules, collect cash deposits on those entries, or 
apply antidumping or countervailing duties to those entries, so long as 
the entries of the cells or modules were entered, or withdrawn from 
warehouse, for consumption before June 6, 2024 or before the date the 
emergency has terminated, whichever occurs first (in either case, the 
Date of Termination).

DATES: Written comments must be received by August 1, 2022.

ADDRESSES: Submit comments through the Federal eRulemaking Portal at 
http://www.Regulations.gov, Docket No. ITA-2022-0006. Comments may also 
be submitted by mail or hand delivery/courier, addressed to Lisa W. 
Wang, Assistant Secretary for Enforcement and Compliance, Room 1870, 
Department of Commerce, 1401 Constitution Ave. NW, Washington, DC 
20230.
    Commerce will consider all comments received before the close of 
the comment period. All comments responding to this document will be a 
matter of public record and will generally be available on the Federal 
eRulemaking Portal at http://www.Regulations.gov. Commerce will not 
accept comments accompanied by a request that part or all of the 
material be treated confidentially because of its business proprietary 
nature or for any other reason. Therefore, do not submit confidential 
business information or otherwise sensitive or protected information.
    Any questions concerning the process for submitting comments should 
be submitted to Enforcement & Compliance (E&C) Communications office at 
(202) 482-0063 or [email protected].

FOR FURTHER INFORMATION CONTACT: Dana Moreland, Enforcement & 
Compliance (E&C) Communications office at (202) 482-0063 or 
[email protected].

SUPPLEMENTARY INFORMATION:

Presidential Proclamation 10414

    On June 6, 2022, President Joseph R. Biden 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'' (87 FR 35067) (the Proclamation). 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 1318(a) of title 19, United 
States Code, 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 the Kingdom of Cambodia (Cambodia), Malaysia, the Kingdom of 
Thailand (Thailand), and the Socialist Republic of Vietnam (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.'' \1\
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    \1\ 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. This authority, insofar as it 
encompasses antidumping and countervailing duties, was delegated to 
the Secretary of Commerce in 1979, to be exercised in consultation 
with the Secretary of Treasury. Section 5(a)(1)(e) of the Reorg. 
Plan No. 3 of 1979. Consistent with the Reorganization Plan, we have 
consulted with the Department of Treasury. Consistent with the 
Proclamation, we have consulted with the Department of Homeland 
Security.
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    As the Proclamation states, electricity is an essential part of 
modern life that powers homes, business, and industry. It is critical 
to the function of hospitals, schools, public transportation, and the

[[Page 39427]]

defense industrial base. It is key to the country's infrastructure, as 
well as to national security and defense. A robust and reliable 
electric power system is therefore a basic human necessity--vital to 
the function and sustainability of major sectors of the economy.
    Currently, the United States is faced with threats to its ability 
to generate sufficient electricity, including energy market disruptions 
caused by Russia's invasion of Ukraine and extreme weather events 
exacerbated by climate change. For example, in parts of the country, 
drought conditions coupled with heatwaves are simultaneously causing 
projected electricity supply shortfalls and record electricity demand. 
Utilities and grid operators must engage in planning at this time to 
build adequate capacity to address expected demand, including in the 
face of these threats and others.
    Solar energy is among the fastest-growing sources of new electric 
generation in the United States and is increasingly relied upon by 
utilities and grid operators to ensure sufficient resources and 
maintain reliable service. In fact, additions of solar capacity and 
batteries were expected to account for over half of new electric sector 
capacity in 2022 and 2023.
    The Proclamation states that ``[i]n recent years, the vast majority 
of solar modules installed in the United States were imported, with 
those from Southeast Asia making up approximately three-quarters of 
imported modules in 2020.'' Against this backdrop, the Proclamation 
states that U.S. entities have been unable to import solar modules 
recently in sufficient quantities to achieve energy goals. Across the 
country, solar projects are being postponed or canceled, and an 
insufficient supply of solar modules jeopardizes planned capacity 
additions, which in turn threatens the availability of sufficient 
electricity generation to meet customer demands.
    Moreover, electricity produced using solar energy is critical to 
reducing the United States' dependence on electricity generated through 
burning fossil fuels, which drives climate change, a recognized threat 
to the United States' national security. If U.S. entities cannot import 
sufficient quantities of solar materials for the foreseeable future, 
the United States will be unable to ensure sufficient electricity grid 
resources and meet climate and clean energy goals.
    In light of these concerns, the Proclamation seeks to ensure that 
the United States has access to a sufficient supply of certain solar 
cells and modules to help meet the nation's electricity needs while 
efforts to expand domestic solar manufacturing capacity continue.
    This proposed rule is intended to provide relief from the emergency 
declared in, and in accordance with, the Proclamation.

Existing Procedures for Suspension of Liquidation and Cash Deposits in 
Circumvention Inquiries

    Commerce's regulations governing circumvention inquiries can be 
found at 19 CFR 351.226. Section 351.226(l)(1) provides that, when 
Commerce publishes a notice of initiation of a circumvention inquiry, 
Commerce will notify CBP of the initiation and will direct CBP to 
continue to suspend liquidation of entries of products subject to the 
circumvention inquiry that were already subject to 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 (i.e., estimated duties). Section 351.226(l)(2) provides 
that, if Commerce conducts the circumvention inquiry and subsequently 
issues an affirmative preliminary circumvention determination, Commerce 
will direct CBP to (i) continue suspension of liquidation of previously 
suspended entries and apply the applicable cash deposit rate; (ii) 
begin the suspension of liquidation of unliquidated entries not yet 
suspended that are entered, or withdrawn from warehouse, for 
consumption on or after the date of publication of the notice of 
initiation of the inquiry, and require the collection of cash deposits 
of estimated duties for those entries; and (iii) potentially apply its 
affirmative determination to unliquidated entries entered, or withdrawn 
from warehouse, for consumption prior to the date of publication of the 
notice of initiation of the inquiry based on certain allegations and 
information. Section 351.226(l)(3) provides similar directions if 
Commerce subsequently issues an affirmative final circumvention 
determination.

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 the People's Republic of China (China) and exported to the United 
States, are circumventing the antidumping and countervailing duty 
orders on solar cells and modules from China.\2\ To respond to the 
emergency declared in the Proclamation, and pursuant to the 
Proclamation and section 318(a) of the Act, in this proposed rule, 
Commerce would add 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 \3\ that are not already subject to an 
antidumping or countervailing duty order as of June 6, 2022 (the date 
the Proclamation was signed). Furthermore, this proposed rule provides 
that, in the event of an affirmative final determination of 
circumvention, no resulting antidumping or countervailing duties would 
be applied to SA-Completed Cells and Modules before the Date of 
Termination.
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    \2\ 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) 
(Circumvention Inquiries Initiation).
    \3\ Southeast Asian-Completed Cells and Modules (SA-Completed 
Cells and Modules) are the products subject to certain circumvention 
inquiries currently before Commerce. See Circumvention Inquiries 
Initiation, 87 FR at 19071. Specifically, SA-Completed Cells and 
Modules are crystalline silicon photovoltaic cells, whether or not 
assembled into modules (solar cells and modules), which are 
completed in Cambodia, Malaysia, Thailand, or Vietnam using certain 
parts and components from China, and subsequently exported from 
Cambodia, Malaysia, Thailand or Vietnam to the United States. In 
addition to SA-Completed Cells and Modules, there may be other cells 
and modules using Chinese solar cells completed in and exported from 
those four countries and already subject to certain antidumping and 
countervailing duty orders covering Chinese merchandise because, for 
purposes of those orders, they are considered to be of Chinese 
origin. 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) (collectively, Chinese Solar Orders). 
There likewise may be cells and modules completed in Cambodia, 
Malaysia, Thailand, and Vietnam using Taiwanese solar cells that are 
already subject to a certain antidumping duty order covering 
Taiwanese merchandise because, for purpose of that order, they are 
considered to be of Taiwanese origin. See Certain Crystalline 
Silicon Photovoltaic Products from Taiwan: Antidumping Duty Order, 
80 FR 8596 (February 18, 2015) (this Taiwan solar order, along with 
the Chinese Solar Orders are herein collectively referred to as, 
Certain Solar Orders). Such cells and modules are not considered SA-
Completed Cells and Modules for purposes of this proposed rule.
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    As explained above, this proposed rule would apply only to SA-
Completed Cells and Modules. This proposed rule would not apply to 
solar cells and modules that are manufactured and exported from China 
and are subject to

[[Page 39428]]

the existing antidumping or countervailing duty orders on solar cells 
and modules from China (A-570-979; C-570-980). Nor would it apply to 
solar cells and modules that are exported from Cambodia, Malaysia, 
Thailand, and Vietnam that are already subject to the Chinese Solar 
Orders.\4\ In addition, this proposed rule would 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), 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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    \4\ Commerce has determined under the Chinese 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 Chinese 
Solar Orders.
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    Commerce would 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 antidumping and countervailing duty orders. Consistent with 
the Proclamation, the extension and waiver described in this proposed 
rule would apply only to entries of SA-Completed Cells and Modules that 
were entered into the United States, or withdrawn from warehouse, for 
consumption before the Date of Termination.
    Under this proposed rule, the following would apply:
    (1) Where, in connection with initiation of the circumvention 
inquiries, pursuant to Sec.  351.226(l)(1), Commerce has already 
directed CBP to continue suspension of liquidation of entries that were 
already subject to suspension and to collect cash deposits, Commerce 
would issue instructions to CBP to discontinue the suspension of 
liquidation and collection of cash deposits of estimated antidumping 
and countervailing duties for those entries on the basis of the 
circumvention inquiries. If, at the time Commerce issues instructions 
to CBP, the entries are suspended only for purposes of the 
circumvention inquiries, Commerce would direct CBP to liquidate those 
entries without regard to antidumping and countervailing duties and 
refund those cash deposits collected pursuant to the circumvention 
inquiries.
    (2) If, before the Date of Termination, Commerce issues an 
affirmative preliminary determination in a circumvention inquiry 
covering SA-Completed Cells and Modules, Commerce would not, at that 
time, direct CBP to suspend liquidation and collect cash deposits of 
estimated antidumping and countervailing 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, notwithstanding Sec.  351.226(l)(2).
    (3) If, before the Date of Termination, Commerce issues an 
affirmative final determination in a circumvention inquiry covering SA-
Completed Cells and Modules, Commerce would not, at that time, direct 
CBP to suspend liquidation and collect cash deposits of estimated 
antidumping and countervailing 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 before 
the Date of Termination, notwithstanding Sec.  351.226(l)(3).
    (4) If, before or after the Date of Termination, Commerce issues an 
affirmative final determination in a circumvention inquiry covering SA-
Completed Cells and Modules:
    a. Commerce would direct CBP to liquidate without regard to 
antidumping or countervailing duties entries of those SA-Completed 
Cells and Modules entered, or withdrawn from warehouse, for consumption 
before the Date of Termination if liquidation instructions were issued 
to CBP pursuant to a different segment of the proceeding in accordance 
with section 751 of the Act.
    b. Commerce would direct CBP to commence suspension of liquidation 
of the SA-Completed Cells and Modules, as applicable, and collect cash 
deposits of estimated antidumping and countervailing 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 proposed actions would ensure that duties or estimated 
duties would 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. This 
treatment of pre-Proclamation entries is merited because the President 
has determined that an emergency exists that affects both current and 
potential future energy projects dependent on solar module imports. 
Consistent with the purpose of the Proclamation, 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, there may be ongoing projects that would use some 
modules imported before the Proclamation's signing and other modules 
imported afterwards. It would create market confusion and dissuade 
investment in future solar projects if this proposed rule were to treat 
such entries differently. An intent of the Proclamation is to help 
increase the supply of United States solar energy for electricity 
generation purposes, and the applicability of this proposed rule to 
imports of SA-Completed Cells and Modules that entered the United 
States both before and after the signing of the Proclamation furthers 
that goal.
    Furthermore, under section 781 of the Act and Sec.  351.226, for 
the circumvention inquiries at issue, both the preliminary and final 
determinations will post-date the signing of the Proclamation. In the 
normal course under Commerce's procedures, there would be no collection 
of duties or estimated duties until those actions take place. Indeed, 
for now, so long as they were not already suspended for other reasons, 
entries of SA-Completed Cells and Modules following the issuance of the 
Circumvention Inquiries Initiation are still not subject to suspension 
of liquidation and antidumping and countervailing duty cash deposit 
requirements. Under Commerce's regulations and normal proceedings, a 
change to the status of those entries would occur only if Commerce made 
an affirmative finding in a preliminary or final circumvention 
determination.
    Accordingly, in keeping with Commerce's equal treatment of 
merchandise covered by a circumvention inquiry, if Commerce makes a 
determination or determinations of circumvention after the signing of 
the Proclamation, then the postponement of these actions should be 
consistent across all entries of SA-Completed Cells and Modules, as 
long as those entries are before the Date of Termination. To do 
otherwise would be inconsistent with both the purpose of the 
Proclamation and the normal application of circumvention determinations 
to entries that precede a preliminary or final circumvention

[[Page 39429]]

determination under 19 CFR 351.226(l). Merchandise that is otherwise 
considered the same under Commerce's circumvention laws and regulations 
is treated the same.
    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 under section 781 of the Act 
(19 U.S.C. 1677j), to take these proposed steps to respond to the 
emergency declared in the Proclamation. Section 351.226(l) governs when 
merchandise found to be circumventing an antidumping or countervailing 
duty order should be subject to suspension of liquidation and cash 
deposit requirements. Thus, in light of the emergency, Commerce is 
proposing to extend the time period established by regulation for 
Commerce to instruct CBP to begin suspension of liquidation and cash 
deposit requirements and the date on which suspension of liquidation 
and cash deposit requirements will begin, including for entries of SA-
Completed Cells and Modules that Commerce previously instructed CBP to 
continue to suspend pursuant to the initiation of the circumvention 
inquiries.\5\
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    \5\ The implementation of this proposed rule in no way would 
affect 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 suspend liquidation and collect deposits of 
estimated AD/CVD duties on entries subject to the Certain Solar 
Orders.
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    In addition, Commerce is proposing to permit, for the duration 
provided for in the Proclamation, the importation, free of the 
collection of antidumping or countervailing duties and estimated 
duties, if applicable, of SA-Completed Cells and Modules that are not 
already subject to an existing antidumping or countervailing duty order 
as of the date the Proclamation was signed, i.e., June 6, 2022. Cash 
deposit requirements would not apply to SA-Completed Cells and Modules 
that were entered, or withdrawn from warehouse, for consumption before 
the Date of Termination.
    Finally, it should be noted that Commerce has determined that, 
although there is an emergency declared by the Proclamation, the 
existing regulations at 19 CFR part 358 (``Supplies for Use in 
Emergency Relief Work''), which set out procedures for the duty-free 
importation of certain merchandise to be used in emergency relief work, 
would not apply to the solar cells and modules that are the subject of 
this proposed rule. This is because none of the merchandise addressed 
by the Proclamation was subject to an existing antidumping or 
countervailing duty order as of the date the Proclamation was signed. 
By its terms, part 358 applies only to merchandise already subject to 
an antidumping or countervailing duty order. Instead, this proposed 
rule, rather than part 358, would temporarily govern the importation 
free of collection of certain duties and estimated duties, if 
applicable, for SA-Completed Cells and Modules, which were not subject 
to an existing antidumping or countervailing duty order as of the date 
the Proclamation was signed. Importers of merchandise subject to this 
proposed rule would not need to comply with the requirements of part 
358, including the requirement for the submission of prior written 
requests.
    As set forth in the Proclamation and described in greater detail 
above, immediate action is needed. Drought conditions coupled with 
heatwaves are simultaneously causing projected electricity supply 
shortfalls and record electricity demand. The United States has been 
unable to import solar modules in sufficient quantities to achieve our 
climate and clean energy goals, help combat rising energy prices, and, 
most immediately, ensure electricity grid resource adequacy. As 
explained above, imports of solar modules from Southeast Asia account 
for approximately three-quarters of all solar module imports, so it is 
vital that we address this issue. Roughly half of solar deployment that 
had been anticipated over the next year is currently in jeopardy, with 
solar projects being postponed or canceled.
    Therefore, with the President having proclaimed that immediate 
action is needed to ensure that the United States has access to a 
sufficient supply of solar cells and modules, as authorized in the 
Proclamation, Commerce would, if applicable, do the following: (1) 
issue instructions to CBP to cease suspending liquidation of entries 
already suspended pursuant to the circumvention inquiries at issue. If, 
at the time Commerce issues its instructions, the entries are suspended 
only for purposes of the circumvention inquiries, Commerce would direct 
CBP to liquidate those entries and refund any cash deposits thus far 
collected from those entries; \6\ (2) in the event of an affirmative 
preliminary and/or final determination of circumvention, postpone 
instructing CBP to suspend liquidation and to collect cash deposits of 
estimated duties on entries of SA-Completed Cells and Modules; and (3) 
permit the importation of those SA-Completed Cells and Modules free of 
collection of antidumping and countervailing estimated duties and 
duties until the Date of Termination. Furthermore, (4) in the event of 
an affirmative final determination of circumvention, if Commerce 
subsequently issues instructions to CBP that cover certain SA-Completed 
Cells and Modules entered, or withdrawn from warehouse, for consumption 
before the Date of Termination, in accordance with section 751 of the 
Act, Commerce would direct CBP to liquidate entries of that merchandise 
without regard to antidumping or countervailing duties. Commerce would 
continue to conduct the circumvention inquiries at issue under its 
normal procedures and, in the event of an affirmative final 
determination, would direct CBP to begin suspension of liquidation and 
require cash deposits for each unliquidated entry of SA-Completed Cells 
and Modules that is entered, or withdrawn from warehouse, for 
consumption on or after the Date of Termination. Taken together, these 
proposed actions would help ensure that the United States has a 
sufficient supply of solar cells and modules to assist in meeting our 
electricity generation needs while domestic solar manufacturing 
capacity continues to expand. This proposed rule therefore responds 
directly and appropriately to the emergency that is the subject of the 
Proclamation.
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    \6\ CBP will only cease suspension of liquidation and collection 
of cash deposits for entries on the basis of the circumvention 
inquiries. If the entries at issue continue to be suspended on 
another basis at the time Commerce issues its instructions to CBP, 
no liquidation or refunding of cash deposits will occur.
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    In addition, if Commerce issues an affirmative final determination 
of circumvention, Commerce would 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 proposed action would ensure that once 
this emergency has passed, suspension of liquidation and collection of 
cash deposits of antidumping and countervailing estimated duties and 
duties would be instituted and applied prospectively, to post-Date of 
Termination entries, as set forth by statute and regulation.
    Commerce is interested in hearing from the public concerning this 
proposed rule and will accept comments for 30 days after the date of 
publication of this proposed rule.

[[Page 39430]]

Classification

Executive Order 12866

    The Office of Management and Budget has determined that this 
proposed rule is economically significant for purposes of Executive 
Order 12866.
Regulatory Impact
    The Proclamation explains that, in recent years, the vast majority 
of solar modules installed in the United States were imported, with 
approximately three-quarters of those imports in 2020 coming from 
Southeast Asia. The Proclamation states, however, that recently the 
United States has been unable to import solar modules in sufficient 
quantities to ensure solar capacity additions necessary to ensure 
electricity grid resource adequacy. The supply constraints on solar 
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 demand, and 
solar projects across the country are being postponed or canceled. 
Furthermore, the Proclamation states that roughly half of the domestic 
deployment of solar modules anticipated over the next year is currently 
in jeopardy due to insufficient supply. Accordingly, Commerce is taking 
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. This proposed regulatory action supports the 
Proclamation. Multiple government publications describe the expansive 
growth of the solar sector in the United States, the rapid pace of 
solar installations, and the critical role that this sector plays in 
meeting the Nation's energy needs and addressing the climate crisis.
    For example, the U.S. Energy Information Administration (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 gigawatts in 2022.\7\ The EIA projects that the share of 
U.S. power generation from renewables will increase from 21% in 2021 to 
44% by 2050, and that solar will account for 51% of renewable energy 
generation.\8\
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    \7\ 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.
    \8\ 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.
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    Additionally, in September 2021, the U.S. Department of Energy 
released the Solar Futures Study \9\ 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% of the 
nation's electricity, drive deep decarbonization of the grid, and 
employ as many as 1.5 million people--without raising electricity 
prices. Decarbonizing the entire energy system could result in as much 
as 3,000 GW of solar power by 2050 due to increased electrification in 
the transportation, buildings, and industrial sectors.
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    \9\ U.S. Department of Energy, Solar Futures Study (Sept. 2021), 
https://www.energy.gov/eere/solar/solar-futures-study.
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    In taking the proposed actions described in this proposed rule, 
Commerce would act to respond to the emergency identified in the 
Proclamation. The proposed actions would remove 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 circumstances 
surrounding the insufficient imports of modules from Southeast Asia. 
Given the strong interest in ensuring access to a sufficient supply of 
solar modules to assist in meeting the United States' electricity 
generation needs, we would remove 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 domestic 
capacity expands. However, we lack data to quantify these effects, and 
we seek public comment on these impacts.
    While this proposed regulatory action might result in decreased 
totals of antidumping or countervailing duties collected, the 
quantification of any such decrease would be speculative. At the time 
of publication of this notice, 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 notice. Further, 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.
    Finally, this rule would provide for an exemption from the 
collection of cash deposits and duties, if applicable, on imports of 
certain SA-Completed Cells and Modules, and Commerce assesses that the 
affected importers would not need to take additional action to come 
into compliance with this rule were it to be put into effect.

Regulatory Flexibility Act

    Pursuant to section 603 of the Regulatory Flexibility Act (5 U.S.C. 
601 et seq.), Commerce has prepared this Initial Regulatory Flexibility 
Analysis. A statement of the objectives of, and legal basis for, the 
proposed rule is provided earlier in this preamble and are not repeated 
here.
    This proposed rule is intended to temporarily encourage sufficient 
imports of solar cells and modules from these Southeast Asian countries 
in order to respond to the emergency declared in the Proclamation. It 
would be in effect for a limited time (24 months from the date of the 
Proclamation or until the emergency is terminated, whichever occurs 
first). The proposed rule would postpone and waive the application of 
certain regulations related to circumvention inquiries, if otherwise 
applicable, to certain SA-Completed Cells and Modules exported from the 
identified Southeast Asian countries. Additionally, it would permit the 
importation of those SA-Completed Cells and Modules free of collection 
of antidumping and countervailing estimated duties and duties. In doing 
so, it would directly affect importers of certain SA-Completed Cells 
and Modules exported from the identified Southeast Asian Countries. The 
number of importers that are classified as small entities is unknown.
    The proposed rule would provide a benefit to regulated entities, 
including small entities, by removing uncertainty concerning potential 
antidumping and countervailing estimated duties or

[[Page 39431]]

duties that might otherwise be owed on merchandise subject to the 
circumvention inquiries and entered before the Date of Termination. 
Were there to be a final determination in the inquiries involving 
certain cells and modules exported from the four Southeast Asian 
countries that circumvention is taking place, the rule could also 
potentially provide a benefit by allowing importers, including small 
entities, to receive an exemption from the collection of antidumping 
and countervailing cash deposits and duties, if applicable, on imports 
of certain SA-Completed Cells and Modules. As a result, it would not 
place a substantial number of small entities who are importers, or any 
segment of these small entities, at a significant competitive 
disadvantage. But any benefit resulting from such an exemption would be 
entirely speculative at this point. As noted in the regulatory impact 
analysis above, 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, much less 
the value of those duties, is not currently known. The proposed rule 
has no projected reporting, recordkeeping and other compliance 
requirements and does not duplicate, overlap, or conflict with other 
Federal rules.
    Because the rule would not result in direct adverse impacts on 
small entities and because the benefits it would provide to importers, 
including those who are small entities, are not readily quantifiable 
(i.e., reducing uncertainty) or are merely speculative insofar as they 
depend on an unknown outcome of an ongoing inquiry, Commerce does not 
expect the proposed action to have a significant economic impact on a 
substantial number of small entities for the purposes of the Regulatory 
Flexibility Act. Therefore, Commerce believes there are no regulatory 
alternatives for reducing burdens on small entities.
    Commerce invites comments on this Initial Regulatory Flexibility 
Analysis, including information about the direct impact on small 
entities, including importers and members of other industries directly 
affected by this proposed rule.

Paperwork Reduction Act

    This proposed rule contains no information collection subject to 
the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.).

List of Subjects in 19 CFR Part 362

    Administrative practice and procedure, Antidumping duties, 
Countervailing duties, Emergency powers.

Lisa W. Wang,
Assistant Secretary for Enforcement and Compliance.


0
For the reasons stated in the preamble, the Department of Commerce 
proposes to amend 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.
362.104 Certifications.

    Authority: Proc. 10414, 87 FR 35067; 19 U.S.C. 1318.


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 subject to the Solar Circumvention Inquiries that are 
entered into the United States, or withdrawn from warehouse, for 
consumption, before the Date of Termination.
    CBP means United States 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.
    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 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. 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. The Secretary 
will permit the importation of Applicable Entries free of the 
collection of antidumping and countervailing 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 Southeast Asian-Completed Cells and 
Modules without regard to estimated antidumping and countervailing 
duties, notwithstanding Sec.  351.226(l) of this chapter, Commerce 
shall do the following with respect to estimated duties:
    (i) Where, based on initiation of the Solar Circumvention 
Inquiries, Commerce previously instructed CBP to continue to suspend 
liquidation of entries of Southeast Asian-Completed Cells and Modules 
that were already subject to suspension and to continue to collect cash 
deposits of estimated duties, the Secretary will instruct CBP to 
discontinue such suspension of liquidation and collection of cash 
deposits based on the circumvention inquiry. 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 Commerce will direct CBP to liquidate the entries 
without

[[Page 39432]]

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 and collect cash deposits of 
estimated duties in connection with the affirmative determination for 
Applicable Entries.
    (2) In the event of an affirmative final determination of 
circumvention in the Solar Circumvention Inquiries, notwithstanding 
Sec.  351.226(l) of this chapter, the Secretary 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 
a certification 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. 2022-14241 Filed 6-30-22; 4:15 pm]
BILLING CODE 3510-DS-P