Presidential Documents

7357 

Federal Register 

Vol. 87, No. 27 

Wednesday, February 9, 2022 

Title 3— 

The President 

Proclamation 10339 of February 4, 2022 

To Continue Facilitating Positive Adjustment to Competition 

From Imports of Certain Crystalline Silicon Photovoltaic 

Cells (Whether or Not Partially or Fully Assembled Into 

Other Products) 

By the President of the United States of America 

A Proclamation 

1. On January 23, 2018, pursuant to section 203 of the Trade Act of 1974, 

as amended (the ‘‘Trade Act’’) (19 U.S.C. 2253), the President issued Proclamation 9693, imposing a safeguard measure for a period of 4 years that 

included both a tariff-rate quota (TRQ) on imports of certain crystalline 

silicon photovoltaic (CSPV) cells, not partially or fully assembled into other 

products, provided for in subheading 8541.40.6025 of the Harmonized Tariff 

Schedule of the United States (HTS), and an increase in duties (safeguard 

tariff) on imports of CSPV cells exceeding the TRQ and all imports of 

other CSPV products, including modules provided for in subheading 

8541.40.6015 of the HTS. Proclamation 9693 exempted imports from certain 

designated beneficiary countries under the Generalized System of Preferences 

from the application of the safeguard measure. 

2. Clause (4) and Annex I of Proclamation 9693 directed the United States 

Trade Representative (USTR) to establish procedures for interested persons 

to request the exclusion of particular products from the safeguard measure. 

These provisions also authorized the USTR, in consultation with the Secretary of Commerce and the Secretary of Energy, to determine whether 

a particular product should be excluded, and, upon publication of a determination in the Federal Register, to modify the HTS to implement such 

determination. Furthermore, they authorized the USTR to modify or to terminate such determinations. Effective June 13, 2019, the USTR excluded bifacial 

solar panels that absorb light and generate electricity on each side of the 

panel and that consist of only bifacial solar cells that absorb light and 

generate electricity on both sides of the cells (bifacial modules). Exclusion 

of Particular Products From the Solar Products Safeguard Measure, 84 FR 

27684 (June 13, 2019). 

3. On February 7, 2020, the United States International Trade Commission 

(USITC) issued its report, pursuant to section 204(a)(2) of the Trade Act 

(19 U.S.C. 2254(a)(2)), on the results of its monitoring of developments 

with respect to the domestic solar industry (USITC, Crystalline Silicon Photovoltaic Cells, Whether or Not Partially or Fully Assembled Into Other Products: Monitoring Developments in the Domestic Industry, No. TA–201–075 

(Monitoring)). In its report, the USITC found that, following imposition 

of the safeguard measure, prices for CSPV cells and modules declined in 

a manner consistent with historical trends, but that prices were higher 

than they would have been without the safeguard measure. 

4. On March 6, 2020, the USITC issued an additional report pursuant to 

a request from the USTR under section 204(a)(4) of the Trade Act (19 

U.S.C. 2254(a)(4)), regarding the probable economic effect on the domestic 

CSPV cell and module manufacturing industry of modifying the safeguard 

measure to increase the level of the TRQ on CSPV cells from the current 


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2.5 gigawatts (GW) to 4.0, 5.0, or 6.0 GW (USITC, Crystalline Silicon Photovoltaic Cells, Whether or Not Partially or Fully Assembled Into Other Products: Advice on the Probable Economic Effect of Certain Modifications to 

the Safeguard Measure, No. TA–201–075 (Modification)). In its report, the 

USITC advised that increasing the TRQ would help to continue growth 

in solar module production, but that expanded access to imported cells 

not subject to safeguard duties would put downward pressure on prices 

for cells made in the United States. 

5. After taking into account the information provided in the USITC’s reports, 

and after receiving a petition from a majority of the representatives of 

the domestic industry with respect to each of the following modifications, 

and under section 204(b)(1)(B) of the Trade Act (19 U.S.C. 2254(b)(1)(B)), 

the President issued Proclamation 10101 on October 10, 2020, in which 

he determined that the domestic industry has begun to make a positive 

adjustment to import competition, as shown by the increases in domestic 

module production capacity, production, and market share. Proclamation 

10101 also: 

(a) revoked the exclusion of bifacial modules from application of the 

safeguard measure on the basis that it had impaired and was likely to 

continue to impair the effectiveness of the safeguard action; and 

(b) adjusted the safeguard tariff for the fourth year of the safeguard measure 

from 15 percent to 18 percent on the basis that the exclusion of bifacial 

modules from application of the safeguard tariffs had impaired the remedial 

effectiveness of the 4-year action proclaimed in Proclamation 9693, and 

to achieve the full remedial effect envisaged in that action. 

6. On November 16, 2021, the United States Court of International Trade 

held in Solar Energy Industries Association et al. v. United States (SEIA) 

that the President acted outside of his statutory authority in issuing Proclamation 10101, and enjoined the Government from enforcing that proclamation. 

This injunction had the effect of reinstating the exclusion of bifacial modules 

from the safeguard tariffs and lowering the fourth year safeguard tariff to 

15 percent. On January 14, 2022, the Government filed a notice of appeal 

of SEIA to the United States Court of Appeals for the Federal Circuit. 

7. On December 8, 2021, in response to petitions by representatives of 

the domestic industry, the USITC issued its determination and report pursuant to section 204(c) of the Trade Act (19 U.S.C. 2254(c)), finding that 

safeguard action continues to be necessary to prevent or remedy the serious 

injury to the domestic industry, and that there is evidence that the domestic 

industry is making a positive adjustment to import competition (USITC, 

Crystalline Silicon Photovoltaic Cells, Whether or Not Partially or Fully 

Assembled Into Other Products, Investigation No. TA–201–75 (Extension)). 

8. Section 203(e)(1)(B) of the Trade Act (19 U.S.C. 2253(e)(1)(B)) authorizes 

the President, after receiving an affirmative determination from the USITC 

pursuant to section 204(c) of the Trade Act (19 U.S.C. 2254(c)), to extend 

the effective period of any action taken under section 203 of the Trade 

Act if the President determines that the action continues to be necessary 

to prevent or remedy the serious injury, and there is evidence that the 

domestic industry is making a positive adjustment to import competition. 

9. After taking into account the information provided in the USITC’s report 

and the information received from the public through the process published 

in the Federal Register on September 30, 2021 (86 FR 54279), pursuant 

to section 203(e)(1)(B) of the Trade Act (19 U.S.C. 2253(e)(1)(B)), I have 

determined that the safeguard action on imports of CSPV cells, whether 

or not partially or fully assembled into other products, continues to be 

necessary to prevent or remedy the serious injury to the domestic industry, 

and that there is evidence that the domestic industry is making a positive 

adjustment to import competition. I have further determined to extend the 

safeguard measure proclaimed in Proclamation 9693, as modified by Proclamation 10101 (to the extent permitted by law), as follows: 


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(a) continuation of the TRQ on imports of solar cells not partially or 

fully assembled into other products described in paragraph 1 of this proclamation for an additional period of 4 years, with unchanging within-quota 

quantities of 5.0 GW for each year and annual reductions in the rates 

of duty applicable to goods entered in excess of those quantities of cells 

in the fifth, sixth, seventh, and eighth years, as described in Annex I to 

this proclamation; 

(b) continuation of the increase in duties on imports of modules described 

in paragraph 1 of this proclamation for an additional period of 4 years, 

with annual reductions in the fifth, sixth, seventh, and eighth years, as 

described in Annex I to this proclamation; and 

(c) exclusion of bifacial panels from the extension of duties proclaimed 

in this paragraph. 

10. I have determined that an extension of this safeguard measure will 

provide greater economic and social benefits than costs. 

11. As provided in Proclamation 9693, this safeguard measure shall continue 

to apply to imports from all countries, except as provided in clause (4) 

of this proclamation and paragraph 10 of Proclamation 9693. 

12. Section 204(a)(2) of the Trade Act (19 U.S.C. 2254(a)(2)) requires the 

USITC to issue a report on its monitoring of developments with respect 

to the domestic industry, including the progress and specific efforts made 

by workers and firms in the domestic industry to make a positive adjustment 

to import competition, no later than the midpoint of the period of the 

extension. After I receive that report, I will evaluate whether to reduce, 

modify, or terminate the safeguard measure pursuant to section 204(b)(1) 

of the Trade Act (19 U.S.C. 2254(b)(1)). 

13. As proclaimed in Proclamation 9693, the in-quota quantity in each 

year of the TRQ described in paragraph 9 of this proclamation shall be 

allocated among all countries except those countries the products of which 

are excluded from such TRQ pursuant to clause (4) of this proclamation 

or paragraph 10 of Proclamation 9693. 

14. In order to address certain technical errors in the HTS, the HTS is 

modified as set forth in Annex II to this proclamation. 

15. Section 604 of the Trade Act (19 U.S.C. 2483) authorizes the President 

to embody in the HTS the substance of the relevant provisions of that 

Act, and of other acts affecting import treatment, and actions thereunder, 

including the removal, modification, continuance, or imposition of any rate 

of duty or other import restriction. 

NOW, THEREFORE, I, JOSEPH R. BIDEN JR., President of the United States 

of America, by the authority vested in me by the Constitution and the 

laws of the United States, including sections 203, 204, and 604 of the 

Trade Act, do proclaim that: 

(1) In order to extend the measure applicable to imports of CSPV cells, 

not partially or fully assembled into other products, described in paragraph 

1 of this proclamation, subchapter III of chapter 99 of the HTS is modified 

as set forth in Annex I to this proclamation, subject to clauses (3) and 

(4) below. Any merchandise subject to the safeguard measure that is admitted 

into United States foreign trade zones on or after 12:01 a.m. eastern standard 

time on February 7, 2022, must be admitted as ‘‘privileged foreign status’’ 

as defined in 19 CFR 146.41, and will be subject upon entry for consumption 

to any tariffs or quantitative restrictions related to the classification under 

the applicable HTS subheading. 

(2) Except as provided in clause (3) below, imports of CSPV products 

of World Trade Organization Member countries, as listed in subdivision 

(b) of Note 18 to subchapter III of chapter 99 of the HTS (Note 18), shall 

continue to be excluded from the safeguard measure extended by this proclamation, and such imports shall not be counted toward the TRQ limits 

that trigger the over-quota rates of duties. 


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

(a) the share of total imports of a country listed in subdivision (b) of 

Note 18 exceeds 3 percent; 

(b) imports of the product from all listed countries with less than 3 

percent import share collectively account for more than 9 percent of 

total imports of the product; or 

(c) a country listed in subdivision (b) of Note 18 is no longer a developing 

country for purposes of this proclamation; 

the USTR is authorized, upon publication of a notice in the Federal Register, 

to revise subdivision (b) of Note 18 to remove the relevant country from 

the list or suspend operation of that subdivision, as appropriate. 

(4) I instruct the USTR to enter into negotiations pursuant to section 

203(f) of the Trade Act (19 U.S.C. 2253(f)) with Canada and Mexico. In 

the event that the USTR concludes an agreement that the USTR, in consultation with the Secretary of Commerce and the Secretary of Energy, determines 

will ensure that imports of Canada or Mexico do not undermine the effectiveness of the action extended through clause (1) of this proclamation, the 

USTR is authorized, upon publication of a notice in the Federal Register, 

to revise Note 18 to suspend application of that subdivision, in whole 

or in part, as appropriate, with respect to imports of Canada or Mexico. 

If the USTR subsequently determines, in consultation with the Secretary 

of Commerce and the Secretary of Energy, that such an agreement is not 

effective, the USTR is authorized, pursuant to section 203(f) of the Trade 

Act, by publication of a notice in the Federal Register, to revise Note 18 

to terminate any previous suspension of the action with respect to imports 

of Canada or Mexico. 

(5) One year after the termination of the safeguard measure established 

in this proclamation, the U.S. note and tariff provisions established in Annex 

I to this proclamation shall be deleted from the HTS. 

(6) Any provision of previous proclamations and Executive Orders that 

is inconsistent with the actions taken in this proclamation is superseded 

to the extent of such inconsistency. 

IN WITNESS WHEREOF, I have hereunto set my hand this fourth day 

of February, in the year of our Lord two thousand twenty-two, and of 

the Independence of the United States of America the two hundred and 

forty-sixth. 

Billing code 3395–F2–P 


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ANNEXI 

TO MODIFY CHAPTER 99 OF THE HARMONIZED TARIFF SCHEDULE OF THE 

UNITED STATES 

Effective with respect to goods entered for consumption, or withdrawn from warehouse for 

consumption, on or after 12:01 a.m. on February 7, 2022, subchapter III of chapter 99 of the 

Harmonized Tariff Schedule of the United States is modified as set forth herein: 

1. Subdivision (c)(i) of U.S. note 18 to subchapter III is modified by deleting "8541.40.60" and 

by inserting in lieu thereof"8541.42.00", and by deleting "8541.40.6025" and by inserting in 

lieu thereof "8541.42.0010". 

2. Subdivision (c)(iii) of U.S. note 18 to subchapter III is modified by deleting the period at the 

end of subparagraph ( 16) and inserting in lieu thereof a semicolon, and by inserting at the end 

thereof the following subparagraph: 

"(17) bifacial solar panels that absorb light and generate electricity on each side of the 

panel and that consist of only bifacial solar cells that absorb light and generate 

electricity on each side of the cells." 

3. Subdivision (f) of U.S. note 18 to subchapter III is modified by deleting "8541.40.60" and by 

inserting in lieu thereof"8541.42.00", and by inserting at the end of the table therein the 

following staged reductions in rates of duty for the periods herein indicated: 

"If entered during the period from 

February 7, 2022 through February 6, 2023 ........................................ 14.75% 

If entered during the period from 

February 7, 2023 through February 6, 2024 .......................................... 14.5% 

If entered during the period from 

February 7, 2024 through February 6, 2025 .......................................... 14.25% 

If entered during the period from 

February 7, 2025 through February 6, 2026 ........................................... 14%" 

4. Subdivision (g) of U.S. note 18 to subchapter III is modified by deleting "8541.40.60" and by 

inserting in lieu thereof"8541.43.00"; by deleting "8541.40.6015" and inserting in lieu thereof 

"8541.43.0010"; by deleting "8501.61.00" and inserting in lieu thereof"8501.80.10"; and by 

deleting "8501.31.80" and inserting in lieu thereof"8501.71.00 or 8501.72.10". 

5. Subdivision (h) of U.S. note 18 to subchapter III is modified by deleting "8541.40.60" and by 

inserting in lieu thereof "8541.4 3. 00", and by inserting at the end of the table therein the 

following staged reductions in rates of duty for the period herein indicated: 

"If entered during the period from 

February 7, 2022 through February 6, 2023 ........................................ 14.75% 

If entered during the period from 

February 7, 2023 through February 6, 2024 .......................................... 14.5% 
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[FR Doc. 2022–02906 

Filed 2–8–22; 8:45 am] 

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If entered during the period from 

February 7, 2024 through February 6, 2025 .......................................... 14.25% 

If entered during the period from 

February 7, 2025 through February 6, 2026 ........................................... 14%". 

6. The article description of subheading 9903.45.21 is modified by deleting "2.5" and by 

inserting in lieu thereof "5". 

ANNEX II 

TO MAKE TECHNICAL CORRECTIONS TO THE HARMONIZED TARIFF 

SCHEDULE OF THE UNITED STATES 

Effective with respect to goods entered for consumption, or withdrawn from warehouse for 

consumption, on or after January 27, 2022, the Harmonized Tariff Schedule of the United States 

is hereby modified as follows: 

A. Additional U.S. note 1 to chapter 84 is modified by deleting "8479.89.94" and inserting 

"8479.89.95" in lieu thereof. 

B. The Harmonized Tariff Schedule of the United States is modified by inserting "S" in 

alphabetical order in the rates of duty 1 - special subcolumn of the following subheadings: 

8701.21.00 

8701.22.00 

8701.23.00 

8701.24.00 

8701.29.00 

8704.22.11 

C. U.S. note 15(b)(19) to subchapterXVofchapter 99 is modified by deleting "6303.40.75" and 

inserting "6202.40.75" in lieu thereof. 

D. Subheading 7019.90.51 is modified by deleting from the Rates of Duty I-Special subcolumn 

the symbol "A" and by inserting "A*" in lieu thereof. 

E. Subheading 2202.99.90 is renumbered as subheading 2202.99.91.