83 FR 6670 - Procedures To Consider Additional Requests for Exclusion of Particular Products From the Solar Products Safeguard Measure

OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE

Federal Register Volume 83, Issue 31 (February 14, 2018)

On January 23, 2018, the President imposed a safeguard measure on imports of crystalline silicon photovoltaic (CSPV) cells, whether or not partially or fully assembled into other products such as modules (other CSPV products), consisting of (1) a tariff-rate quota on imports of CSPV cells not partially or fully assembled into other products, with an unchanged rate of duty for the within-quota quantity and an increase in the rate of duty applicable to articles entered in excess of that quantity; and (2) an increase in the rate of duty on imports of other CSPV products, as provided for in the Proclamation's annex. This notice establishes the procedures to request the exclusion of a particular product from the safeguard measure, the criteria for describing a particular product for which exclusion is sought, and identifies the factors that the Office of the United States Trade Representative (USTR) may take into consideration when determining whether to exclude a particular product. It also solicits requests for exclusion of a particular product from the safeguard measure.

[Federal Register Volume 83, Number 31 (Wednesday, February 14, 2018)]
[Notices]
[Pages 6670-6672]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-03048]


=======================================================================
-----------------------------------------------------------------------

OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE

[Docket No. USTR-2018-0001]


Procedures To Consider Additional Requests for Exclusion of 
Particular Products From the Solar Products Safeguard Measure

AGENCY: Office of the United States Trade Representative.

ACTION: Notice and request for comments.

-----------------------------------------------------------------------

SUMMARY: On January 23, 2018, the President imposed a safeguard measure 
on imports of crystalline silicon photovoltaic (CSPV) cells, whether or 
not partially or fully assembled into other products such as modules 
(other CSPV products), consisting of (1) a tariff-rate quota on imports 
of CSPV cells not partially or fully assembled into other products, 
with an unchanged rate of duty for the within-quota quantity and an 
increase in the rate of duty applicable to articles entered in excess 
of that quantity; and (2) an increase in the rate of duty on imports of 
other CSPV products, as provided for in the Proclamation's annex. This 
notice establishes the procedures to request the exclusion of a 
particular product from the safeguard measure, the criteria for 
describing a particular product for which exclusion is sought, and 
identifies the factors that the Office of the United States Trade 
Representative (USTR) may take into consideration when determining 
whether to exclude a particular product. It also solicits requests for 
exclusion of a particular product from the safeguard measure.

DATES: 
    March 16, 2018, at 11:59 p.m. EST: Deadline for the submission of 
requests for exclusion of a particular product from the safeguard 
measure.
    April 16, 2018 at 11:59 p.m. EST: Deadline for the submission of 
comments in response to requests for exclusion of a particular product 
from the safeguard measure.

ADDRESSES: USTR strongly prefers electronic submissions made through 
the Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments in section III below. The docket 
number is USTR-2018-0001. For alternatives to on-line submissions, 
please contact Yvonne Jamison, Trade Policy Staff Committee, at (202) 
395-9666. All non-confidential versions of submissions will be posted 
in the docket for public inspection.

FOR FURTHER INFORMATION CONTACT: Victor Mroczka, Office of WTO and 
Multilateral Affairs, at [email protected] or (202) 395-9450, or 
Dax Terrill, Office of General Counsel, at [email protected] or 
(202) 395-4739.

SUPPLEMENTARY INFORMATION: 

I. Background

    Following receipt of a petition from Suniva, Inc., a producer of 
CSPV products in the United States, that was later joined by SolarWorld 
Americas, Inc., another producer of CPSV products in the United States 
(collectively, petitioners), the ITC instituted an investigation under 
section 202 of the Trade Act of 1974, as amended (Trade Act) (19 U.S.C. 
2252), to determine whether there were increased imports of CSPV 
products in such quantities as to be a substantial cause of serious 
injury, or the threat thereof, to the domestic industry producing like 
or directly competitive products. The ITC notice of institution (82 FR 
25331) identified the scope of the products covered by this 
investigation as CSPV cells, whether or not partially or fully 
assembled into other products, of a thickness equal to or greater than 
20 micrometers, having a p/n junction (or variant thereof) formed by 
any means, whether or not the cell has undergone other processing, 
including, but not limited to cleaning, etching, coating, and addition 
of materials (including, but not limited to metallization and conductor 
patterns) to collect and forward the electricity that is generated by 
the cell. The scope of the investigation also included photovoltaic 
cells that contain crystalline silicon in addition to other materials, 
such as passivated emitter rear contact cells, heterojunction with 
intrinsic thin layer cells, and other so-called ``hybrid'' cells.
    The notice of institution identified products covered and excluded 
by the scope of the investigation. Specifically, the scope of the 
investigation did not cover:
     Thin film photovoltaic products produced from amorphous 
silicon (``a-Si''), cadmium telluride (``CdTe''), or copper indium 
gallium selenide (``CIGS'');
     CSPV cells, not exceeding 10,000 mm\2\ in surface area, 
that are permanently integrated into a consumer good whose primary 
function is other than power generation and that consumes the 
electricity generated by the integrated CSPV cell. Where more than one 
CSPV cell is permanently integrated into a consumer good, the surface 
area for purposes of this exclusion shall be the total combined surface 
area of all CSPV cells that are integrated into the consumer good; and
     CSPV cells, whether or not partially or fully assembled 
into other products, if such CSPV cells were manufactured in the United 
States.
    On the basis of information developed during the investigation, the 
ITC determined pursuant to section 202(b) of the Trade Act (19 U.S.C. 
2252(b)) that CSPV products are being imported into the United States 
in such increased quantities as to be a substantial cause of serious 
injury to the domestic industry and made additional findings under the 
implementing statutes of certain free trade agreements or other 
statutory provisions related to certain preferential trade programs.

II. Products Excluded From the Application of the Safeguard Measure

    On October 25, 2017 (82 FR 49469), the Trade Policy Staff Committee 
(TPSC) provided details concerning the process it would use to make a 
recommendation to the President on actions he should take to facilitate 
the efforts of the domestic industry to make a positive adjustment to 
import competition and provide greater economic and social benefits 
than costs. The process included an opportunity to file initial and 
responsive comments regarding this question and a public hearing on 
December 6, 2017, during which commenters testified regarding their 
submissions and addressed the claims and arguments of others. As part 
of this process, a number of interested persons requested the exclusion 
of products from application of the safeguard measure.
    Presidential Proclamation 9693 of January 23, 2018 (83 FR 3541) 
excluded certain particular products:
     10 to 60 watt, inclusive, rectangular solar panels, where 
the panels have the following characteristics: (A) Length of 250 mm or 
more but not over 482 mm or width of 400 mm or more but not over 635 
mm, and (B) surface area of 1000 cm\2\ or more but not over 3,061 
cm\2\), provided that no such panel with those characteristics shall 
contain an

[[Page 6671]]

internal battery or external computer peripheral ports at the time of 
entry;
     1 watt solar panels incorporated into nightlights that use 
rechargeable batteries and have the following dimensions: 58 mm or more 
but not over 64 mm by 126 mm or more but not over 140 mm;
     2 watt solar panels incorporated into daylight dimmers, 
that may use rechargeable batteries, such panels with the following 
dimensions: 75 mm or more but not over 82 mm by 139 mm or more but not 
over 143 mm;
     Off-grid and portable CSPV panels, whether in a foldable 
case or in rigid form containing a glass cover, where the panels have 
the following characteristics: (a) A total power output of 100 watts or 
less per panel; (b) a maximum surface area of 8,000 cm\2\ per panel; 
(c) does not include a built-in inverter; and where the panels have 
glass covers, such panels must be in individual retail packaging (in 
this context, retail packaging typically includes graphics, the product 
name, its description and/or features, and foam for transport);
     3.19 watt or less solar panels, each with length of 75 mm 
or more but not over 266 mm and width of 46 mm or more but not over 127 
mm, with surface area of 338 cm\2\ or less, with one black wire and one 
red wire (each of type 22 AWG or 24 AWG) not more than 206 mm in length 
when measured from panel edge, provided that no such panel shall 
contain an internal battery or external computer peripheral ports;
     27.1 watt or less solar panels, each with surface area 
less than 3,000 cm\2\ and coated across the entire surface with a 
polyurethane doming resin, the foregoing joined to a battery charging 
and maintaining unit, such unit which is an acrylonitrile butadiene 
styrene (``ABS'') box that incorporates a light emitting diode 
(``LED'') by coated wires that include a connector to permit the 
incorporation of an extension cable.

III. Procedure To Request the Exclusion of Additional Particular 
Products

    The Proclamation directed the United States Trade Representative to 
publish a notice establishing procedures for requests for the exclusion 
of particular products from the safeguard measure. The Proclamation 
provides that if the Trade Representative determines, after 
consultation with the Secretaries of Commerce and Energy (the 
interagency group), that a particular product should be excluded, the 
Trade Representative can modify the Harmonized Tariff Schedule of the 
United States (HTS) provisions created in the Proclamation's annex to 
exclude that particular product from the safeguard measure upon 
publication of the determination in the Federal Register. The 
Proclamation also instructed the Trade Representative to establish 
procedures for requests for exclusion of a particular product from the 
safeguard measure.
    USTR invites interested persons to submit comments identifying a 
particular product for exclusion from the safeguard measure and 
providing reasons why the product should be excluded. USTR will 
evaluate each request on a case-by-case basis and will grant only those 
exclusions that do not undermine the objectives of the safeguard 
measures.

A. Requests for Exclusion of Particular Products

    Any request for exclusion clearly should identify the particular 
product in terms of the physical characteristics (e.g., dimensions, 
wattage, material composition, or other distinguishing characteristics) 
that distinguish it from products that are subject to the safeguard 
measures. USTR will not consider requests that identify the product at 
issue in terms of the identity of the producer, importer, or ultimate 
consumer; the country of origin; or trademarks or tradenames. USTR will 
not consider requests that identify the product using criteria that 
cannot be made available to the public.
    In evaluating requests for exclusion, the interagency group may 
consider the following factors or information:
     The names and locations of any producers, in the United 
States and foreign countries, of the particular product;
     Total U.S. consumption of the particular product, if any, 
by quantity and value for each year from 2014 to 2017, the projected 
annual consumption for each year from 2018 to 2022, and any related 
information about the types of consumers;
     Details concerning the typical use or application of the 
particular product;
     Total U.S. production of the particular product for each 
year from 2014 to 2017, if any;
     The identity of any U.S.-produced substitute for the 
particular product, total U.S. production of the substitute for each 
year from 2014 to 2017, and the names of any U.S. producers of the 
substitute;
     Whether the particular product or substitute for the 
particular product may be obtained from a U.S. producer;
     Whether qualification requirements affect the requestor's 
ability to use domestic products;
     Whether the particular product is under development by a 
U.S. producer who will imminently be able to produce it in marketable 
quantities;
     Inventories of the particular product in the United 
States;
     Whether excluding the particular product from the 
safeguard measure would result in a benefit or advantage to the long-
term competitiveness of the solar manufacturing supply chain in the 
United States, including by fostering research and development, 
supporting manufacturing innovation, or by leading to the development 
of differentiated products that command higher prices;
     The ability of U.S. Customs and Border Protection to 
administer the exclusion; and
     Any other information or data that interested persons 
consider relevant to an evaluation of the request.

As indicated above, the Trade Representative, in consultation with the 
Secretaries of Commerce and Energy, will grant only those exclusions 
that do not undermine the objectives of the safeguard measure. Any 
exclusion will be effective upon publication of the exclusion 
determination in the Federal Register.
    Where necessary, an agency participating in the interagency group 
may contact interested persons to discuss the procedures or information 
referenced above or to gain additional information.
    USTR strongly discourages the submission of business confidential 
information. Any request that contains business confidential 
information must be accompanied by a public version that does not 
contain the business confidential information, which will be posted on 
Regulations.gov.
    When interested persons identify factors in addition to those 
listed above that they consider relevant to evaluating whether a 
particular product should be excluded from the safeguard measure, they 
should explain how the factor would affect the domestic industry's 
efforts to make a positive adjustment to import competition or the 
social and economic benefits or costs associated with the safeguard 
measure.

B. Comments on Requests for Exclusions

    After the submission of requests for exclusion of a particular 
product, interested persons will have an opportunity to comment on the 
requests, indicate whether they support or oppose any of them, and 
provide reasons for their view. You can view requests for exclusions on 
www.regulations.gov by entering docket number USTR-2018-0001 in the 
search field on the home page. If an interested person submits a 
request for exclusion of a particular product and, during the

[[Page 6672]]

responsive comment period, no objection to that request is received, 
USTR may conclude there are no reasons to prevent a determination that 
the particular product should be excluded from the safeguard measure, 
and may conclude, based on the interagency group's review of the 
request, any comments on the requests, and other relevant information, 
that the product should be excluded.

C. Future Requests

    At this time, USTR will not consider requests for exclusion 
received after March 16, 2018. USTR will monitor developments in the 
U.S. market for CSPV products and, if warranted, provide for additional 
requests for exclusion at a later date.

D. Submission Instructions

    USTR seeks requests and responses to requests with respect to the 
issues described in Section III.A through a public comment process. To 
be assured of consideration, you must submit written comments by 11:59 
p.m. EST on March 16, 2018, and any written responses to those comments 
by 11:59 p.m. EST on April 16, 2018. All comments must be in English 
and must identify on the reference line of the first page of the 
submission ``Comments Regarding Requests for Product Exclusions From 
the Solar Products Safeguard Measure.''
    We strongly encourage commenters to make on-line submissions using 
the www.regulations.gov website. To submit comments via 
www.regulations.gov, enter docket number USTR-2018-0001 on the home 
page and click ``search.'' The site will provide a search-results page 
listing all documents associated with this docket. Find a reference to 
this notice and click on the link entitled ``Comment Now!'' For further 
information on using www.regulations.gov, please consult the resources 
provided on the website by clicking ``How to Use Regulations.gov'' on 
the bottom of the home page. We will not accept hand-delivered 
submissions.
    The www.regulations.gov website allows users to provide comments by 
filling in a ``Type Comment'' field, or by attaching a document using 
an ``Upload File'' field. We prefer that you provide comments as an 
attached document in Microsoft Word (.doc) or Adobe Acrobat (.pdf) 
format. If the submission is in another file format, please indicate 
the name of the software application in the ``Type Comment'' field. 
File names should reflect the name of the person or entity submitting 
the comments. Please do not attach separate cover letters to electronic 
submissions; rather, include any information that might appear in a 
cover letter in the comments themselves. Similarly, to the extent 
possible, please include any exhibits, annexes, or other attachments in 
the same file as the comment itself, rather than submitting them as 
separate files.
    As noted above, we strongly discourage the submission of business 
confidential information and its inclusion may prevent a full 
consideration of the product exclusion request. In any event, including 
business confidential information in a submission should be extremely 
circumscribed. Additionally, the filer must provide a public version 
and the file name of the business confidential version should begin 
with the characters ``BC''. Any page containing business confidential 
information must be clearly marked ``BUSINESS CONFIDENTIAL'' on the top 
of that page and the submission should clearly indicate, via brackets, 
highlighting, or other means, the specific information that is business 
confidential. A filer requesting business confidential treatment must 
certify that the information is business confidential and would not 
customarily be released to the public by the submitter.
    As indicated above, filers of submissions containing business 
confidential information must submit a public version of their 
comments. The file name of the public version should begin with the 
character ``P''. The ``BC'' and ``P'' should be followed by the name of 
the person or entity submitting the comments. Filers submitting 
comments containing no business confidential information should name 
their file using the name of the person or entity submitting the 
comments.
    We emphasize that submitters are strongly encouraged to file 
comments through www.regulations.gov. You must make arrangements for 
any alternative method of submission with Yvonne Jamison at (202) 395-
9666 in advance of transmitting a comment. You can find general 
information about USTR at www.ustr.gov.
    We will post comments in the docket for public inspection, except 
business confidential information. You can view comments on 
www.regulations.gov by entering docket number USTR-2018-0001 in the 
search field on the home page.

Edward Gresser,
Chair of the Trade Policy Staff Committee, Office of the United States 
Trade Representative.
[FR Doc. 2018-03048 Filed 2-13-18; 8:45 am]
BILLING CODE 3290-F8-P