[Federal Register Volume 77, Number 201 (Wednesday, October 17, 2012)]
[Notices]
[Pages 63788-63791]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-25564]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
International Trade Administration
[C-570-980]
Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled
Into Modules, From the People's Republic of China: Final Affirmative
Countervailing Duty Determination and Final Affirmative Critical
Circumstances Determination
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce (the Department) determines that
countervailable subsidies are being provided to producers and exporters
of crystalline silicon photovoltaic cells, whether or not assembled
into modules (solar cells) from the People's Republic of China (PRC).
The Department further determines that there have been massive imports
of subject merchandise over a relatively short period of time by, and
therefore critical circumstances do exist.\1\ For information on the
estimated subsidy rates, see the ``Suspension of Liquidation'' section
of this notice.
---------------------------------------------------------------------------
\1\ See ``Critical Circumstances'' below.
---------------------------------------------------------------------------
DATES: Effective Date: October 17, 2012.
FOR FURTHER INFORMATION CONTACT: Gene Calvert, Jun Jack Zhao, or Emily
Halle, AD/CVD Operations, Office 6, Import Administration, U.S.
Department of Commerce, Room 7866, 14th Street and Constitution Avenue
NW., Washington, DC 20230; telephone: (202) 482-3586, (202) 482-1396,
or (202) 482-0176, respectively.
SUPPLEMENTARY INFORMATION:
Background
The petitioner in this investigation is Solar World Industries,
America, Inc. (Petitioner). This investigation covers 31 government
programs. In addition to the Government of the PRC (GOC), the mandatory
respondents in this investigation are: (1) Changzhou Trina Solar Energy
Co., Ltd. and its cross-owned affiliated company Trina Solar
(Changzhou) Science and Technology Co., Ltd. (collectively, Trina
Solar); and (2) Wuxi Suntech Power Co., Ltd. and its cross-owned
affiliated companies Luoyang Suntech Power Co., Ltd., Suntech Power
Co., Ltd., Yangzhou Rietech Renewal Energy Co., Ltd., Zhenjiang Huantai
Silicon Science & Technology Co., Ltd., Kuttler Automation Systems
(Suzhou) Co., Ltd., Shenzhen Suntech Power Co., Ltd., Wuxi Sunshine
Power Co., Ltd., Wuxi University Science Park International Incubator
Co., Ltd., Yangzhou Suntech Power Co., Ltd., and Zhenjiang Rietech New
Energy Science & Technology Co., Ltd. (collectively, Wuxi Suntech,
unless otherwise indicated).
Period of Investigation
The period of investigation for which we are measuring subsidies is
January 1, 2010, through December 31, 2010.
Case History
The events that have occurred since the Department published the
Preliminary Determination \2\ on March 26, 2012, are discussed in the
Memorandum to Paul Piquado, Assistant Secretary for Import
Administration, Issues and Decision Memorandum for the Final
Determination in the Countervailing Duty Investigation of Crystalline
Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, from
the People's Republic of China (Decision Memorandum).\3\
---------------------------------------------------------------------------
\2\ See Crystalline Silicon Photovoltaic Cells, Whether or Not
Assembled Into Modules, from the People's Republic of China:
Preliminary Affirmative Countervailing Duty Determination, 77 FR
17439 (March 26, 2012) (Preliminary Determination).
\3\ Public versions of all business proprietary documents and
all public documents are on file electronically via Import
Administration's Antidumping and Countervailing Duty Centralized
Electronic Service System (IA ACCESS). Access to IA ACCESS is
available to registered users at http://iaaccess.trade.gov and in
the Central Records Unit (CRU), room 7046 of the main Department of
Commerce building.
---------------------------------------------------------------------------
Scope Comments
The scope-related comments submitted by parties in the companion
antidumping duty investigation in their case and rebuttal briefs
covered the same scope arguments and issues that were submitted in the
case and rebuttal briefs in this investigation. Petitioner, the GOC,
Trina Solar, Wuxi Suntech, Small Steps Solar, Ltd., and SunPower
Corporation provided comments on the scope of the investigations and
the merchandise that is to be included in the scope.
Scope of Investigation
The merchandise covered by this investigation are crystalline
silicon photovoltaic cells, and modules, laminates, and panels,
consisting of crystalline silicon photovoltaic cells,
whether or not partially or fully assembled into other products,
including, but not limited to, modules, laminates, panels and building
integrated materials. See Appendix I for a complete description of the
scope of this investigation.
Critical Circumstances
In the Preliminary Critical Circumstances Determination,\4\ the
Department concluded that critical circumstances exist with respect to
imports of solar cells from the PRC for Wuxi Suntech, Trina Solar, and
all other producers or exporters, in accordance with section 703(e)(1)
of the Tariff Act of 1930, as amended (Act). Our analysis of the
comments submitted by interested parties has not led us to change our
findings from the Preliminary Critical Circumstances Determination. For
a complete discussion that reflects the Department's decisions
regarding critical circumstances, see the Decision Memorandum.
Therefore, in accordance with section 705(a)(2) of the Act, we continue
to find that critical circumstances exist with respect to imports from
Wuxi Suntech, Trina Solar and all other producers or exporters of solar
cells from the PRC, and we will continue to maintain the suspension of
liquidation of imports that entered the United States 90 days before
the date of publication of the Preliminary Determination, unless the
U.S. International Trade Commission (ITC) determines that critical
circumstances do not exist.
---------------------------------------------------------------------------
\4\ See Countervailing Duty Investigation of Crystalline Silicon
Photovoltaic Cells, Whether or Not Assembled Into Modules, from the
People's Republic of China: Preliminary Determination of Critical
Circumstances, 77 FR 5487 (February 3, 2012) (Preliminary Critical
Circumstances Determination).
---------------------------------------------------------------------------
Analysis of Subsidy Programs and Comments Received
The subsidy programs under investigation and the issues raised in
[[Page 63789]]
the case and rebuttal briefs by parties in this investigation are
discussed in the Decision Memorandum, which is hereby adopted by this
notice. A list of the subsidy programs and the issues that parties
raised and to which we responded in the Decision Memorandum is attached
to this notice as Appendix II. The Decision Memorandum is a public
document and is on file electronically via IA ACCESS. IA ACCESS is
available to registered users at http://iaaccess.trade.gov and in the
CRU, room 7046 of the main Department of Commerce building. In
addition, a complete version of the Decision Memorandum can be accessed
directly on the Internet at http://www.trade.gov/ia/. The signed
Decision Memorandum and the electronic versions of the Decision
Memorandum are identical in content.
Use of Facts Otherwise Available, Including Adverse Inferences
For purposes of this final determination, we have continued to rely
on facts available and have continued to apply adverse inferences in
accordance with sections 776(a) and (b) of the Act with regard to: (1)
Whether the polysilicon producers at issue are ``authorities'' that
provide polysilicon for less than adequate remuneration (LTAR); (2)
whether the provision of polysilicon is specific in accordance with
section 771(5A) of the Act; (3) whether the land provided to Trina
Solar is countervailable; (4) whether the grants discovered during the
course of this investigation are countervailable; and (5) the GOC's
provision of electricity for LTAR. In addition, for the purposes of
this final determination, we are also applying adverse facts available
(AFA) to (1) find the export buyer's credit program to be used and
countervailable, and to determine the countervailing duty (CVD) rate to
be applied for the export buyer's credit program, and (2) determine
that certain land provided to Wuxi Suntech is countervailable. A full
discussion of our decision to apply AFA is presented in the Decision
Memorandum under the section ``Use of Facts Otherwise Available and
Adverse Inferences.''
Suspension of Liquidation
In accordance with section 705(c)(1)(B)(i) of the Act, we have
calculated a rate for each individually investigated producer/exporter
of the subject merchandise. Section 705(c)(5)(A)(i) of the Act states
that for companies not investigated, we will determine an ``all-
others'' rate equal to the weighted average countervailable subsidy
rates established for exporters and producers individually
investigated, excluding any zero and de minimis countervailable subsidy
rates, and any rates determined entirely under section 776 of the Act.
Notwithstanding the language of section 705(c)(5)(A)(i) of the Act,
we have not calculated the ``all others'' rate by weight averaging the
rates of Trina Solar and Wuxi Suntech, because doing so risks
disclosure of proprietary information. Therefore, we have calculated an
average rate using other information on the record.\5\ Since both Trina
Solar and Wuxi Suntech received countervailable export subsidies and
the ``all others'' rate is an average based on the individually
investigated exporters and producers, the ``all others'' rate includes
export subsidies.
---------------------------------------------------------------------------
\5\ See Memorandum to the File from Emily Halle, ``Calculation
of the All-Others Rate,'' dated October 9, 2012, providing the
precise calculation relying on public information.
---------------------------------------------------------------------------
We determine the total countervailable subsidy rates to be as
follows.
------------------------------------------------------------------------
Company Subsidy rate
------------------------------------------------------------------------
Changzhou Trina Solar Energy Co., Ltd., 15.97 percent ad valorem.
Trina Solar (Changzhou) Science and
Technology Co., Ltd. (collectively, Trina
Solar).
Wuxi Suntech Power Co., Ltd., Luoyang 14.78 percent ad valorem.
Suntech Power Co., Ltd., Suntech Power
Co., Ltd., Yangzhou Rietech Renewal Energy
Co., Ltd., Zhenjiang Huantai Silicon
Science & Technology Co., Ltd., Kuttler
Automation Systems (Suzhou) Co., Ltd.,
Shenzhen Suntech Power Co., Ltd., Wuxi
Sunshine Power Co., Ltd., Wuxi University
Science Park International Incubator Co.,
Ltd., Yangzhou Suntech Power Co., Ltd.,
and Zhenjiang Rietech New Energy Science &
Technology Co., Ltd (collectively, Wuxi
Suntech).
All Others Rate............................ 15.24 percent ad valorem.
------------------------------------------------------------------------
As a result of our Preliminary Critical Circumstances Determination
and our Preliminary Determination and pursuant to section 703(e)(2) of
the Act, we instructed U.S. Customs and Border Protection (CBP) to
suspend liquidation of all entries of subject merchandise from the PRC
which were entered or withdrawn from warehouse, for consumption on or
after December 27, 2011, the date 90 days prior to the date of the
publication of the Preliminary Determination in the Federal Register.
In accordance with section 703(d) of the Act, we later issued
instructions to CBP to discontinue the suspension of liquidation for
CVD purposes for subject merchandise entered, or withdrawn from
warehouse, on or after July 24, 2012, but to continue the suspension of
liquidation of all entries from December 27, 2011, through July 23,
2012.
We will issue a CVD order and reinstate the suspension of
liquidation under section 706(a) of the Act if the ITC issues a final
affirmative injury determination, and will require a cash deposit of
estimated CVDs for such entries of merchandise in the amounts indicated
above. If the ITC determines that material injury, or threat of
material injury, exists, but that critical circumstances do not exist,
the Department will order the refund of all cash deposits and the
cancellation of all securities posted from December 27, 2011, to March
26, 2012. If the ITC determines that material injury, or threat of
material injury, does not exist, this proceeding will be terminated and
all estimated duties deposited or securities posted as a result of the
suspension of liquidation will be refunded or canceled.
ITC Notification
In accordance with section 705(d) of the Act, we will notify the
ITC of our determination. In addition, we are making available to the
ITC all non-privileged and non-proprietary information related to this
investigation. We will allow the ITC access to all privileged and
business proprietary information in our files, provided the ITC
confirms that it will not disclose such information, either publicly or
under an administrative protective order (APO), without the written
consent of the Assistant Secretary for Import Administration.
Return or Destruction of Proprietary Information
In the event that the ITC issues a final negative injury
determination, this notice will serve as the only reminder
[[Page 63790]]
to parties subject to an APO of their responsibility concerning the
destruction of proprietary information disclosed under APO in
accordance with 19 CFR 351.305(a)(3). Timely written notification of
the return/destruction of APO materials or conversion to judicial
protective order is hereby requested. Failure to comply with the
regulations and terms of an APO is a violation which is subject to
sanction.
This determination is issued and published pursuant to sections
705(d) and 777(i) of the Act.
Dated: October 9, 2012.
Paul Piquado,
Assistant Secretary for Import Administration.
Appendix I
Scope of the Investigation
The merchandise covered by this investigation is crystalline
silicon photovoltaic cells, and modules, laminates, and panels,
consisting of crystalline silicon photovoltaic cells, whether or not
partially or fully assembled into other products, including, but not
limited to, modules, laminates, panels and building integrated
materials.
This investigation covers crystalline silicon photovoltaic cells
of thickness equal to or greater than 20 micrometers, having a p/n
junction formed by any means, whether or not the cell has undergone
other processing, including, but not limited to, cleaning, etching,
coating, and/or addition of materials (including, but not limited
to, metallization and conductor patterns) to collect and forward the
electricity that is generated by the cell.
Merchandise under consideration may be described at the time of
importation as parts for final finished products that are assembled
after importation, including, but not limited to, modules,
laminates, panels, building-integrated modules, building-integrated
panels, or other finished goods kits. Such parts that otherwise meet
the definition of merchandise under consideration are included in
the scope of this investigation.
Excluded from the scope of this investigation are thin film
photovoltaic products produced from amorphous silicon (a-Si),
cadmium telluride (CdTe), or copper indium gallium selenide (CIGS).
Also excluded from the scope of this investigation are
crystalline silicon photovoltaic cells, not exceeding 10,000 mm\2\
in surface area, that are permanently integrated into a consumer
good whose function is other than power generation and that consumes
the electricity generated by the integrated crystalline silicon
photovoltaic cell. Where more than one 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 cells
that are integrated into the consumer good.
Modules, laminates, and panels produced in a third-country from
cells produced in the PRC are covered by this investigation;
however, modules, laminates, and panels produced in the PRC from
cells produced in a third-country are not covered by this
investigation.
Merchandise covered by this investigation is currently
classified in the Harmonized Tariff System of the United States
(``HTSUS'') under subheadings 8501.61.0000, 8507.20.80,
8541.40.6020, 8541.40.6030, and 8501.31.8000.\6\ These HTSUS
subheadings are provided for convenience and customs purposes; the
written description of the scope of this investigation is
dispositive.
---------------------------------------------------------------------------
\6\ CBP provided notification that HTSUS number 8501.31.8000
should be added to the scope of the investigation, as certain
articles under this number may fall within the scope. See Memorandum
from Gene H. Calvert through Mark Hoadley to the File, ``ACE Case
Reference File Update,'' dated May 16, 2012.
---------------------------------------------------------------------------
Appendix II
Decision Memorandum
I. Summary
II. Subsidy Valuation Information
A. Period of Investigation
B. Attribution of Subsidies
C. Allocation Period
D. Loan Benchmarks and Discount Rates for Allocating Non-
Recurring Subsidies
E. LTAR Benchmarks
F. Denominators
III. Use of Facts Otherwise Available and Adverse Inferences
Polysilicon Producers Are Authorities
Provision of Land for LTAR
Provision of Electricity for LTAR
Export Buyer's Credits
Subsidies Discovered During the Investigation
``Bonus for Employees From Government''
IV. Critical Circumstances
V. Terminated Programs
VI. Analysis of Programs
A. Programs Determined To Be Countervailable
1. Golden Sun Demonstration Program
2. Preferential Policy Lending
3. Provision of Polysilicon for LTAR
4. Provision of Land for LTAR
5. Provision of Electricity for LTAR
6. ``Two Free, Three Half'' Program for Foreign-Invested
Enterprises (FIEs)
7. Preferential Tax Program for High or New Technology
Enterprises (HNTEs)
8. Enterprise Income Tax Law, Research and Development (R&D)
Program
9. Import Tariff and Value Added Tax (VAT) Exemptions for Use of
Imported Equipment
10. VAT Rebates on FIE Purchases of Chinese-Made Equipment
11. Discovered Grants
12. Export Credit Subsidy Programs: Export Buyer's Credits
B. Programs Determined To Be Not Used by the Respondents During
the POI or To Not Provide Benefits During the POI
1. Export Product Research and Development Fund
2. Subsidies for Development of ``Famous Brands'' and ``China
World Top Brands''
3. Sub-Central Government Subsidies for Development of ``Famous
Brands'' and ``China World Top Brands''
4. Special Energy Fund (Established by Shandong Province)
5. Funds for Outward Expansion of Industries in Guangdong
Province
6. Government Provision of Aluminum for LTAR
7. Income Tax Reductions for Export-Oriented FIEs
8. Income Tax Benefits for FIEs Based on Geographic Location
9. Local Income Tax Exemption and Reduction Programs for
``Productive'' FIEs
10. Tax Refunds for Reinvestment of FIE Profits in Export-
Oriented Enterprises
11. Tax Reductions for High and New-Technology Enterprises
Involved in Designated Projects
12. Preferential Income Tax Policy for Enterprises in the
Northeast Region
13. Guangdong Province Tax Programs
14. VAT and Tariff Exemptions for Purchases of Fixed Assets
Under the Foreign Trade and Development Fund Program
15. Tax Reductions for FIEs Purchasing Chinese-Made Equipment
16. Export Guarantees and Insurance for Green Technology
17. Export Credit Subsidy Program: Export Seller's Credits
18. Discovered Grants
19. Provision of Float Glass for LTAR
20. The Over-Rebate of VAT Program
VII. Analysis of Comments
General
Comment 1: Simultaneous Application of CVD and AD NME Measures
Comment 2: Cut-Off Date for Measurement of Subsidies
Critical Circumstances
Comment 3: Critical Circumstances: Early Knowledge
Comment 4: Critical Circumstances: Other Factors Contributing to
Import Surges
Comment 5: Critical Circumstances: The Length of the Base and
Comparison Periods
Provision of Goods and Services for LTAR
Comment 6: Whether Polysilicon Producers Are Authorities
Comment 7: Whether Polysilicon Producers Were Entrusted or
Directed to Supply Polysilicon to the Solar Cells Industry for LTAR
Comment 8: Specificity of the Provision of Polysilicon for LTAR
Comment 9: Use of an In-Country Benchmark to Measure the Benefit
from the Provision of Polysilicon for LTAR
Comment 10: The Department's Determinations Not to Investigate
Aluminum Extrusions and Rolled Glass Provided at LTAR
Comment 11: The Provision of Land to Trina
Comment 12: Use of AFA to Determine an Electricity Benchmark
Preferential Policy Lending
Comment 13: Whether SOCBs Are Authorities
Comment 14: Specificity of Preferential Policy Lending
Comment 15: Use of an In-Country Benchmark to Measure the
Benefit from Preferential Policy Lending
[[Page 63791]]
Comment 16: Flaws in the Calculation of the External
Preferential Policy Lending Benchmark
Comment 17: Creditworthiness of Suntech and Trina
Export Buyer's Credits
Comment 18: Export Buyer's Credits
Comment 19: Selection of AFA Rate for Export Buyer's Credits
Comment 20: Treatment of the AFA Rate for Export Buyer's Credits
in the AD Investigation
Grants
Comment 21: Trina's Benefit from the Golden Sun Demonstration
Program
Comment 22: Whether a Local ``Famous Brands'' Program
Constitutes an Export Subsidy
Comment 23: ``Discovered Grants''
Comment 24: ``Bonus for Employees from Government'' Program
Income Taxes
Comment 25: De Jure Specificity of Four Tax Programs; Whether
Four Tax Programs Are Limited to Certain Enterprises or Groups of
Enterprises
Comment 26: Whether the Department Should Use the Tax Return
Covering POI Sales in Calculating Trina's Benefit from the HNTE
Income Tax Program
Miscellaneous
Comment 27: Rejection of the GOC's Factual Information from the
Record
Comment 28: Trina's Sales Denominator
Comment 29: Suntech's Minor Corrections
Comment 30: Negative Determinations
Comment 31: Allegations of Fraud Regarding Suntech
Scope
Comment 32: Scope of the Investigation
VIII. Recommendation
[FR Doc. 2012-25564 Filed 10-16-12; 8:45 a.m.]
BILLING CODE 3510-DS-P