Background

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA Emergency AD 2022-0169-E, dated August 12, 2022 (EASA AD 2022-0169-E), to correct an unsafe condition for Airbus Helicopters, formerly Eurocopter, Eurocopter France, Aerospatiale, Sud Aviation, Model SA 341 G and SA 342 J (Gazelle) helicopters, all serial numbers.

This AD was prompted by a report of manufacturing defects on multiple TRBs. EASA advises that an additional sample of TRBs from different manufacturing batches were visually inspected and further analysis revealed visual linear indications on approximately 75% of the TRBs inspected. EASA further advises that the visual linear indications were positioned at the aerofoil connection radius and perpendicular to the grain flow direction. EASA advises that follow-up dye penetrant inspections confirmed up to 20% of the TRBs were found to be affected and have a high risk for crack propagation.

Additionally, EASA advises that the investigation of the root cause of the unsafe condition is still on-going; therefore EASA considers EASA AD 2022-0169-E an immediate protective measure and states that further action may follow. The FAA is issuing this AD to detect linear indications on a TRB, which could result in an in-flight TRB loss, unbalance or damage to the tail or other parts of the helicopter, and subsequent loss of control of the helicopter. See EASA AD 2022-0169-E for additional background information.

EASA AD 2022-0169-E requires, before any cleaning of the TRB, using a lamp (1000 lux) to visually check (inspect) the root area of each affected TRB for the presence of any linear indication; and cleaning certain areas of each TRB and repeating the visual check (inspection) of the TRB for a linear indication. Depending on the inspection results, EASA AD 2022-0169-E requires performing a (fluorescent) dye penetrant inspection of the root area of a TRB, and if a linear indication is detected, replacing the affected TRB with a serviceable part. EASA AD 2022-0169-E also requires, if the number of flight hours accumulated on an affected part is unknown, before next flight, replacing the affected part with a serviceable part. EASA AD 2022-0169-E allows for a one-time ferry flight for an affected helicopter, in order to be moved to a location where the (fluorescent) dye penetrant inspection and/or the TRB replacement(s) can be performed, as long as there are no passengers onboard. Lastly, EASA AD 2022-0169-E prohibits installing an affected TRB on any helicopter unless certain requirements have been met.

This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA also reviewed Airbus Helicopters Emergency Alert Service Bulletin (EASB) No. SA341-65.71 for Model SA341G helicopters and non FAA-type certificated military Model SA341B, C, D, E, F, and H helicopters; and EASB No. SA342-65.71 for Model SA342J helicopters and non FAA-type certified military Model SA342 K, L, L1, M, M1, and MA helicopters, each Revision 0 and dated August 4, 2022 (co-published as one document). This service information specifies procedures for visually checking (inspecting) the TRB for presence of a linear indication; cleaning the TRB with a lint free rag and solvent and repeating the visual check (inspection); performing a (fluorescent) dye penetrant inspection if a linear indication is detected; removing and replacing any affected TRB if necessary; and recording compliance with the service information.

These helicopters have been approved by EASA and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with European Union, EASA, its technical representative, has notified the FAA of the unsafe condition described in its emergency AD. The FAA is issuing this AD after evaluating all pertinent information and determining that the unsafe condition exists and is likely to exist or develop on other helicopters of these same type designs.

This AD requires accomplishing the actions specified in EASA AD 2022-0169-E, described previously, as IBRed, except for any differences identified as exceptions in the regulatory text of this AD and except as discussed under “Differences Between this AD and the EASA AD.”

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, EASA AD 2022-0169-E is IBRed in this FAA final rule. This AD, therefore, requires compliance with EASA AD 2022-0169-E in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this AD. Using common terms that are the same as the heading of a particular section in EASA AD 2022-0169-E does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2022-0169-E. Service information referenced in EASA AD 2022-0169-E for compliance will be available at regulations.gov by searching for and locating Docket No. FAA-2022-1157 after this final rule is published.

EASA AD 2022-0169-E requires accomplishing a visual check of the root area of each affected part, whereas this AD requires accomplishing a visual inspection of the root area of each affected part. Although EASA AD 2022-0169-E does not define the phrase “a linear indication,” service information referenced in EASA AD 2022-0169-E defines this phrase as an indication for which the longest dimension is at least three times longer than the smallest one. This AD defines a linear indication as any linear indication perpendicular to the fiber direction of the blade that is detected regardless of size. Where EASA AD 2022-0169-E requires performing a dye penetrant inspection, this AD requires a fluorescent penetrant inspection (FPI) performed by a Level II or Level III inspector certified in the FAA-acceptable standards for nondestructive inspection personnel. Paragraph (5) of EASA AD 2022-0169-E allows a ferry flight to operate the helicopter to a location where the dye penetrant inspection can be performed or where an affected part can be replaced as long as no passengers are onboard, whereas this AD does not allow compliance with paragraph (5) of EASA AD 2022-0169-E; instead for this AD, a special flight permit may be issued to operate the helicopter to a location where the visual inspection or FPI can be performed, provided no passengers are onboard. This AD prohibits special flight permits if a linear indication has been detected by an FPI or a visible crack has been detected on a TRB.

The FAA considers this AD interim action. If final action is later identified, the FAA might consider further rulemaking.

Section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 U.S.C. 551 et seq. ) authorizes agencies to dispense with notice and comment procedures for rules when the agency, for “good cause,” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under this section, an agency, upon finding good cause, may issue a final rule without providing notice and seeking comment prior to issuance. Further, section 553(d) of the APA authorizes agencies to make rules effective in less than thirty days, upon a finding of good cause.

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies foregoing notice and comment prior to adoption of this rule because the affected part is critical to the control of a helicopter. In addition, failure of an affected part can cause the part to depart from the helicopter, thereby causing damage to the helicopter and subsequent loss of control of the helicopter. Also, the FAA has no information pertaining to how quickly the condition may propagate to failure. Investigation is still on-going to determine the root cause of the defect and the number of parts affected by the same condition. In light of this, the initial visual inspection must be accomplished before further flight. Accordingly, notice and opportunity for prior public comment are impracticable and contrary to the public interest pursuant to 5 U.S.C. 553(b)(3)(B).

In addition, the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days, for the same reasons the FAA found good cause to forego notice and comment.

The FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2022-1157; Project Identifier MCAI-2022-01093-R” at the beginning of your comments. The most helpful comments reference a specific portion of the final rule, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this final rule because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to regulations.gov, including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this final rule.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent to 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. Any commentary that the FAA receives that is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The requirements of the Regulatory Flexibility Act (RFA) do not apply when an agency finds good cause pursuant to 5 U.S.C. 553 to adopt a rule without prior notice and comment. Because the FAA has determined that it has good cause to adopt this rule without prior notice and comment, RFA analysis is not required.

The FAA estimates that this AD affects 22 helicopters of U.S. Registry. There may be up to 13 affected TRBs per helicopter. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates the following costs to comply with this AD.

Visually inspecting one TRB for presence of a linear indication takes about 1 work-hour for an estimated cost of $85 per inspection. Visually inspecting each additional TRB takes about 0.1 work-hour for an estimated cost of $9 per inspection. The cost for inspecting each helicopter may be up to $193 and the cost for the U.S. fleet may be up to $4,246.

If required, fluorescent penetrant inspecting a TRB for the presence of a linear indication takes about 2 work-hours for an estimated cost of $170 per inspection.

If required, removing an affected TRB and replacing it with a serviceable TRB takes about 2 work-hours and parts cost about $3,630 for an estimated cost of $3,800 per replacement. Removing each additional affected TRB and replacing it with a serviceable TRB takes about an additional 0.5 work-hour and parts cost about $3,630 for an estimated cost of $3,673 for each additional replacement.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866, and

(2) Will not affect intrastate aviation in Alaska.

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

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

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.

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.

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.

(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 § 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 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 § 351.226(l)(1) and are to be utilized in 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 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.

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:

• 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” 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 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.

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.

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 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 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.

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.

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

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 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 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 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 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 passed, in accord with the Proclamation and section 318(a) of the Act.

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.

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 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 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.

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

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 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.

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.

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 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.

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.

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.

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 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 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.

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.

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

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 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

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.

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 351.226(l)(1), rather than to any entries that were suspended pursuant to the China Solar Orders underlying the circumvention inquiries.

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.

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.

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

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.

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.

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 § 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.

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 § 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 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.

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.

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 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.

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 §§ 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.

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.

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.

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 “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.

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.

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

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.

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

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 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, 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 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 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.

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 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.

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.

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.

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.

I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

This is the third temporary rule the Coast Guard has published related to this sunken vessel. On August 18, 2022, the Coast Guard issued a temporary final rule establishing a temporary safety zone in effect through August 29, 2022 (87 FR 51909). On August 26, 2022, the Coast Guard issued a temporary final rule extending the safety zone to be in effect through September 12, 2022 (87 FR 54154). Due to the nature of the ongoing operations, additional time is needed to maintain safe navigation around response equipment and responders while additional damage assessments and salvage operations occur, and, as a result, the Coast Guard is establishing through temporary regulations a safety zone that will be in effect through September 26, 2022. The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because immediate action is needed to respond to the safety hazards associated with the response measures in product recovery of a sunken vessel. It is impracticable to publish an NPRM and hold a reasonable comment period for this rulemaking due to the emergent nature of the ongoing response and recovery operations.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be impracticable because immediate action is needed to respond to the safety hazards associated with the response and salvage operations.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Sector Puget Sound (COTP) has determined that potential hazards associated with the emergency response and recovery operations will be a safety concern for anyone within a 1000-yard radius of Sunset Point, San Juan Island, WA. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while the emergency response is ongoing and during the recovery of the sunken vessel.

This rule establishes a temporary safety zone that will be enforced from September 12, 2022, at 10 p.m., through September 26, 2022, at 10 p.m. The safety zone will cover all navigable waters within 1,000-yard radius of Sunset Point, San Juan Island, WA. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters while the emergency response of the sunken vessel are ongoing. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. The safety zone may be suspended early at the discretion of COTP Sector Puget Sound.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone. Vessel traffic will be able to safely transit around this safety zone which would impact a small designated area of Sunset Point on San Juan Island for a total of 14 days and operations may be suspended early at the discretion of the COTP Sector Puget Sound. Moreover, the Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting 14 days that will prohibit entry within 1000 yards of Sunset Point while vessels, equipment, and personnel are being used in the emergency response and removal of a sunken vessel. It is categorically excluded from further review under paragraph L60[d] of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places, or vessels.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

The Cleveland Dragon Boat Festival has occurred annually for over a decade. In past years events were held on the Cuyahoga River in conjunction with the Head of the Cuyahoga regatta, for which the Captain of the Port Buffalo initiated a rulemaking in 2015 (80 FR 51943) to protect spectators, participants, and vessels from the hazards associated with the rowing event. Due to increased participation in the Dragon Boat Festival, the dragon boat event has been relocated to the Black River Landing in Lorain, OH, to preserve the safety of spectators and vessels.

On January 31, 2022, the Cleveland Dragon Boat Association notified the Coast Guard that it would be conducting a dragon boat festival from 8 a.m. through 5 p.m. on September 18, 2022. In response to this request the Coast Guard published a notice of proposed rulemaking (NPRM) on June 17, 2022 (87 FR 36430), with zero comments submitted. Typically, the event occurs on, or around, the first through third Saturday of September between the hours of 8 a.m. and 5 p.m. The Dragon Boat Festival is to occur south of the East Erie Avenue bridge in front of the Black River Landing in Lorain, OH. Hazards from the event include, but are not limited to, sponsor operated vessels needing to transit the area during the festival. These vessels are expected to accompany the vessels competing in the rowboat style races. The Captain of the Port Buffalo (COTP) has determined that potential hazards associated with the festival will be a safety concern for anyone within this portion of the Black River.

The purpose of this rulemaking is to ensure the safety of vessels and the navigable waters within this portion of the Black River before, during, and after the scheduled event. The Coast Guard is establishing this rulemaking under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231).

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Buffalo (COTP) has determined that potential hazards associated with the festival on September 18, 2022, will be a safety concern for anyone that is not participating in the festival. The purpose of this rule is to ensure safety of vessels and the navigable waters in the safety zone before, during, and after the scheduled event.

As noted above, we received no comments on our NPRM published June 17, 2022. There are minor changes in the regulatory text of this rule from the proposed rule in the NPRM.

This rule establishes a safety zone from 8 a.m. through 5 p.m. on September 18, 2022. The safety zone will cover all navigable waters of the Black River to include south of the East Erie Avenue Bridge in front of the Black River Landing in Lorain, OH. The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the scheduled 8 a.m. through 5 p.m. festival. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on size, location, and duration of the rule. This safety zone will restrict navigation on and through a small designated portion of the Black River for nine hours on one day.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received no comments from the Small Business Administration on this rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting nine hours that will prohibit entry within the area south of the East Erie Avenue Bridge in front of the Black River Landing. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places, or vessels.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

Throughout this document “we,” “us,” and “our” means the EPA.

The background for this action is discussed in detail in our October 9, 2020, proposal (85 FR 64084). In that document we proposed to approve the Reasonable Further Progress (RFP) demonstration and associated motor vehicle emission budgets, contingency measures should the area fail to make RFP emissions reductions or attain the 2008 ozone NAAQS by the applicable attainment date, and a revised 2011 base year EI for the DFW area. In the October 2020 proposal, we also described the status of the adequacy determination for the DFW nitrogen oxides (NO X ) and volatile organic compounds (VOC) Motor Vehicle Emission Budgets (MVEBs) for 2020 in accordance with 40 CFR 93.118(f)(2).

Our October 2020 proposal provided a detailed description of the revisions and the rationale for the EPA's proposed actions, together with a discussion of the opportunity to comment. The public comment period for our October 2020 proposal action closed on November 9, 2020. We received comments during the public comment period from two sources: Air Law for All, Ltd. (ALFA), on behalf of the Center for Biological Diversity and the Sierra Club; and the North Central Texas Council of Governments (NCTCOG). The comments received from the NCTCOG were supportive of the October 2020 proposal. The comments received from ALFA were adverse and addressed all elements in the October 2020 proposal, except the 2011 revised base year EI. The comments received are available for review in the docket for this rulemaking. The EPA is only finalizing the proposed approval of revisions that address the revised 2011 base year EI at this time. The other elements described in the October 2020 proposal will be addressed in a separate rulemaking.

Executive Order 12898 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, Feb. 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. The EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.”  1 The EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”  2 For this final action, the EPA conducted screening analyses using the EJScreen (Version 2.0) tool. We conducted the analyses for the purpose of providing information to the public, not as a basis of our proposed action. The EJScreen analysis reports are available in the docket for this rulemaking. The EPA found, based on the EJScreen analyses, that this final action will not have disproportionately high or adverse human health or environmental effects on communities with EJ concerns, as the changes to the EI will result in a more accurate EI for the area upon which the State and EPA can assess the RFP Plan requirements for the DFW area.

We are approving revisions to the Texas SIP that address the base year EI requirements for the DFW serious ozone nonattainment area for the 2008 ozone NAAQS. Specifically, we are approving the revised 2011 base year EI for the DFW area. The EI we are approving is provided in the Texas Commission on Environmental Quality's (TCEQ) revisions to the Texas SIP submitted on May 13, 2020, and in Table 1 of our October 2020 proposal. 3 We are approving the EI because it contains a comprehensive, accurate, and current inventory of actual emissions for all relevant sources in accordance with CAA sections 172(c)(3) and 182(a)(1). Texas adopted the EIs consistent with the requirement for reasonable public notice and opportunity for a public hearing.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 15, 2022. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

For the reasons stated in the preamble, the Environmental Protection Agency amends 40 CFR part 52 as follows:

Table of Contents I. What is the background for this action? II. What comments were received in response to the EPA's proposed action? III. What action is the EPA taking? IV. Incorporation by Reference V. Statutory and Executive Order Reviews I. What is the background for this action?

On June 3, 2022 (87 FR 33699), the EPA published a Notice of Proposed Rulemaking that proposed to approve a State Implementation Plan (SIP) revision submitted by the State of New York on March 2, 2021, for purposes of revising Title 6 NYCRR part 235, “Consumer Products.” The SIP revision applies to a group of household and commonly used products, referred to as “consumer products,” with the goal of limiting and reducing Volatile Organic Compounds (VOC) emissions statewide.

The EPA's June 3, 2022, evaluation recognizes that the SIP revision is consistent with the Ozone Transport Commission Model Rule for consumer products and will help the State attain the NAAQS by improving air quality through reduced VOC emissions and promoting regional consumer product consistency. The revisions to 6 NYCRR part 235 are expected to reduce VOC released to the air by 5.3 tons per day statewide. Since the use of consumer products is highest in population centers, the VOC reductions in the New York City metro area alone, where the 2008 ozone standard is exceeded, is expected to be 3.4 tons per day. To achieve these emission reductions, new product categories were added with new VOC limits and existing product categories were revised to reduce their VOC limits. In addition, revisions were made in the definitions section at 6 NYCRR section 235-2.1 to provide transitional language and to cite which emission standards apply before or after the January 1, 2022, compliance date.

The specific details of New York's SIP revision submittal and the rationale for the EPA's approval action are explained in the EPA's proposed rulemaking and are not restated in this final action. For this detailed information, the reader is referred to the EPA's June 3, 2022, proposed rulemaking (87 FR 33699).

In response to the EPA's June 3, 2022, proposed rulemaking on New York's SIP revision submittal, the EPA received one comment during the 30-day public comment period. After reviewing the comment, the EPA has determined that the comment is outside the scope of our proposed action or fails to identify any material issue necessitating a response. The comment does not raise issues germane to the EPA's proposed action. For this reason, the EPA will not provide a specific response to the comment. The specific comment may be viewed under Docket ID Number EPA-R02-OAR-2021-0553 on the https://www.regulations.gov website.

The EPA is approving New York's revisions to the New York SIP and amendment to 6 NYCRR part 235, “Consumer Products” with a State effective date of February 11, 2021. Specifically, this rulemaking will add nine new product categories and two new subcategories with new VOC emission limits and reduced VOC emission limits in ten existing product categories. The revisions will help the State to comply with federal requirements pertaining to attainment and maintenance of the ozone NAAQS. The attendant revisions to 6 NYCRR section 200, “General Provisions,” section 200.9, Table 1, “Referenced material”, for 6 NYCRR part 235 has been addressed under a separate rulemaking at 87 FR 52337, effective September 26, 2022.

In this document, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the 6 NYCRR part 235, “Consumer Products,” regulations described in the amendments to 40 CFR part 52 as discussed in sections I. and III. of this preamble. The EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 2 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by the EPA for inclusion in the State Implementation Plan, have been incorporated by reference by the EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of the EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 1

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

This action is subject to the Congressional Review Act, and the EPA will submit a rule report to each House of the Congress and the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 15, 2022. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. ( See section 307(b)(2)).

For the reasons set forth in the preamble, 40 CFR part 52 is amended as follows:

I. General Information A. Does this action apply to me?

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

I. General Information A. Does this action apply to me?

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of 40 CFR part 180 through the Office of the Federal Register's e-CFR site at https://www.ecfr.gov/current/title-40.

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2021-0323 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing and must be received by the Hearing Clerk on or before November 15, 2022. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2021-0323, by one of the following methods.

• Federal eRulemaking Portal: https://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

• Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001.

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at https://www.epa.gov/dockets.

Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at https://www.epa.gov/dockets.

In the Federal Register of June 1, 2021 (86 FR 29231) (FRL-10023-95), EPA issued a document pursuant to FFDCA section 408, 21 U.S.C. 346a, announcing the receipt of a pesticide petition (PP IN-11515) filed by Spring Regulatory Sciences, 6620 Cypresswood Dr., Suite 250, Spring, TX 77379, on behalf of Nouryon Chemicals LLC, (USA), 131 S Dearborn, Suite 1000, Chicago, IL 60603-5566. The petition requested that 40 CFR 180.910 and 180.930 be amended by adding oxirane, 2-methyl-, polymer with oxirane, mono-C9-11-isoalkyl ethers, C10-rich, phosphates, potassium salts (CAS Reg. No. 2275654-37-8) for use as an inert ingredient at no more than 30% by weight of the final pesticide formulation to the current tolerance exemption for alkyl alcohol alkoxylate phosphate and sulfate derivatives (AAAPSDs). That document included a summary of the petition prepared by the petitioner and solicited comments on the petitioner's request. The Agency did not receive any public comments.