[Federal Register Volume 77, Number 201 (Wednesday, October 17, 2012)]
[Notices]
[Pages 63791-63798]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-25580]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-979]
Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled
into Modules, from the People's Republic of China: Final Determination
of Sales at Less Than Fair Value, and Affirmative Final Determination
of Critical Circumstances, in Part
AGENCY: Import Administration, International Trade Administration,
Department of Commerce
DATES: Effective Date: October 17, 2012.
SUMMARY: On May 25, 2012, the Department of Commerce (``Department'')
published its preliminary determination of sales at less than fair
value (``LTFV''), postponement of final determination and affirmative
preliminary determination of critical circumstances in the antidumping
investigation of crystalline silicon photovoltaic cells, whether or not
assembled into modules (``solar cells''), from the People's Republic of
China (``PRC'').\1\ On June 25, 2012, the Department published its
Preliminary Determination Correction in this antidumping
investigation.\2\ The Department invited interested parties to comment
on the Preliminary Determination. Based on the Department's analysis of
the comments received, the Department has made changes from the
Preliminary Determination. The Department determines that solar cells
from the PRC are being, or are likely to be, sold in the United States
at LTFV, as provided in section 735 of the Tariff Act of 1930, as
amended (the ``Act''). The final dumping margins for this investigation
are listed in the ``Final Determination'' section below.
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\1\ See Crystalline Silicon Photovoltaic Cells, Whether or Not
Assembled Into Modules, From the People's Republic of China:
Preliminary Determination of Sales at Less Than Fair Value,
Postponement of Final Determination and Affirmative Preliminary
Determination of Critical Circumstances,77 FR 31309 (May 25, 2012)
(``Preliminary Determination'').
\2\ See Crystalline Silicon Photovoltaic Cells, Whether or Not
Assembled Into Modules, From the People's Republic of China:
Preliminary Determination Correction, 77 FR 37877 (June 25, 2012)
(``Preliminary Determination Correction'').
FOR FURTHER INFORMATION CONTACT: Jeffrey Pedersen, Krisha Hill, or Drew
Jackson, AD/CVD Operations, Office 4, Import Administration,
International Trade Administration, U.S. Department of Commerce, 14th
Street and Constitution Avenue NW, Washington, DC 20230; telephone:
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(202) 482-2769, (202) 482-4037, or (202) 482-4406, respectively.
SUPPLEMENTARY INFORMATION:
Background
The Department published its Preliminary Determination on May 25,
2012.\3\ On May 22 and 25, 2012, Delsolar Co., Ltd./DelSolar (Wujiang)
Ltd. and JinkoSolar International Limited, respectively submitted
requests that the Department correct errors in their company names that
appeared in the Preliminary Determination.\4\ The Department made the
requested corrections and published its Preliminary Determination
Correction notice on June 25, 2012.
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\3\ See Preliminary Determination.
\4\ See Letter from JinkoSolar International Limited to the
Department regarding, ``Crystalline Silicon Photovoltaic Cells,
Whether or Not Assembled into Modules, from the People's Republic of
China; Ministerial Error in Preliminary Determination,'' dated May
25, 2012. See also Letter from DelSolar Co., Ltd. and DelSolar
(Wujiang) Ltd. to the Department regarding, ``Crystalline Silicon
Photovoltaic Cells, Whether or Not Assembled Into Modules, from the
People's Republic of China: Request for Correction,'' dated May 22,
2012.
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Between May 28, 2012 and June 25, 2012, the Department conducted
verifications of the mandatory respondents Wuxi Suntech Power Co. Ltd.,
Suntech America, Inc., Suntech Arizona, Inc. (collectively, ``Wuxi
Suntech''), Changzhou Trina Solar Energy Co., Ltd. (``Trina''), and
certain of their affiliates.\5\
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\5\ See the ``Verification'' section below.
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Between July 9, 2012, and July 26, 2012, Wuxi Suntech, Trina, and
Petitioner submitted surrogate value and rebuttal surrogate value
comments.
On July 24, 2012, and July 23, 2012, respectively, Wuxi Suntech and
Trina submitted revised U.S. sales and FOP databases per the
Department's request to provide updated databases reflecting the
results of verification.
On July 30, 2012, Wuxi Suntech Power Co., Ltd., Trina, SolarWorld
Industries America, Inc. (``Petitioner''), Yingli Green Energy Holding
Company Limited and Yingli Green Energy Americas, Inc. (collectively,
``Yingli''), Jiangsu Jiasheng Photovoltaic Technology Co., Ltd.
(``Jiasheng''), Shanghai Chaori Solar Energy Science & Technology Co.,
Ltd. and Shanghai Chaori International Trading Corporation Ltd.
(collectively, ``Chaori''), and the Government of China (``GOC'')
submitted case briefs. On July 31, 2012, Small Steps Solar, Ltd.
submitted a case brief, which the Department rejected because it was
untimely filed.\6\ Subsequently, the Department rejected Yingli's case
brief because it contained certain new factual information.\7\ Yingli
resubmitted its redacted case brief on August 3, 2012.\8\ On August 6,
2012, Wuxi Suntech Power Co., Ltd., Trina, Petitioner, tenKsolar
(Shanghai) Co., Ltd. and tenKsolar, Inc. (collectively ``tenKsolar''),
SunPower Corporation, and Sumec Hardware & Tools Co., Ltd. et al.\9\
submitted rebuttal briefs. Further,
[[Page 63792]]
Wuxi Suntech, Trina Solar and Trina Solar (U.S.), Inc., and Yingli
jointly submitted a rebuttal brief on August 6, 2012.
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\6\ See Letter from the Department to Small Steps Solar, Ltd.,
regarding ``Crystalline Silicon Photovoltaic Cells, Whether or Not
Assembled Into Modules, from the People's Republic of China: Small
Steps Solar, Ltd.'s July 31, 2012 Submission,'' dated August 3,
2012.
\7\ See Letter from the Department to Yingli, regarding
``Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled
Into Modules, from the People's Republic of China: July 30, 2012
Case Brief of Yingli Green Energy Holding Company Limited and Yingli
Green Energy Americas, Inc.,'' dated August 2, 2012.
\8\ See Letter from Yingli to the Department, regarding
``Crystalline Silicon Photovoltaic Celis, Whether or Not Assembled
into Modules, from the People's Republic of China: Resubmission of
Yingli's Case Brief,'' dated August 3, 2012.
\9\ The following separate rate companies jointly submitted a
rebuttal brief: Sumec Hardware & Tools Co., Ltd., Ningbo Etdz
Holdings Ltd., LDK Solar Hi-Tech (Nanchang) Co., Ltd., LDK Solar Hi-
Tech (Suzhou) Co., Ltd., Ningbo Qixin Solar Electrical Appliance
Co., Ltd., Ningbo Komaes Solar Technology Co., Ltd., Zhejiang Jiutai
New Energy Co., Ltd., ET Solar Industry Limited, JingAo Solar Co.,
Ltd., Dongfang Electric (Yixing) MAGI Solar Power Technology Co.,
Ltd., Shanghai JA Solar Technology Co., Ltd., Jiangsu Sunlink PV
Technology Co., Ltd., and JA Solar Technology Yangzhou Co., Ltd.
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On June 25, 2012, Wuxi Suntech, Trina, Petitioner, and Yingli
requested a hearing. Based on these hearing requests, on August 14,
2012, the Department held a public hearing limited to issues raised in
case briefs and rebuttal briefs.
On September 7, 2012, Petitioner requested that the Department re-
open the record to consider new recently available public information
which indicates that Wuxi Suntech submitted potentially fraudulent
financial statements to the Department.\10\ On September 11, 2012, the
Department reopened the record for parties to comment on Petitioner's
allegation of fraud. On September 14, 2012 and September 18, 2012, Wuxi
Suntech and Petitioner filed comments and rebuttal comments,
respectively, regarding the fraud issue raised by Petitioner.
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\10\ See Letter from Petitioner to the Department, regarding
``Crystalline Silicon Phototovoltaic Cells, Whether or Not Assembled
into Modules, from the People's Republic of China: Request to Reopen
the Records to New Factual Information,'' dated September 7, 2012.
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Period of Investigation
The period of investigation (``POI'') is April 1, 2011, through
September 30, 2011. This period corresponds to the two most recent
fiscal quarters prior to the month of the filing of the petition, which
was October 2012.\11\
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\11\ See 19 CFR 351.204(b)(1).
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Analysis of Comments Received
All issues raised in the case and rebuttal briefs by parties to
this investigation, as well as comments received pursuant to the
Department's requests are addressed in the Issues and Decisions
Memorandum. A list of the issues which the parties raised and to which
the Department responded in the Issues and Decision Memorandum is
attached to this notice as Appendix I. The Issues and Decision
Memorandum is a public document and is on file electronically via
Import Administration's Antidumping and Countervailing Duty Centralized
Electronic Service System (IA ACCESS). 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. In addition, a complete version of the Issues and Decision
Memorandum can be accessed directly on the internet at http://www.trade.gov/ia/. The signed Issues and Decision Memorandum and the
electronic versions of the Issues and Decision Memorandum are identical
in content.
Changes Since the Preliminary Determination
Changes Applicable to Multiple Companies
Updated surrogate values for certain direct materials.
Used an additional financial statement to calculate
surrogate financial ratios.
Changes Specific to Wuxi Suntech
Excluded all purchases of inputs from suppliers located in
South Korea from the calculation of Wuxi Suntech's weighted-average
market economy purchase prices.
Accepted the minor corrections submitted by Wuxi Suntech
at verification and calculated its final margin using the revised sales
and FOP databases that reflect these minor corrections.
Adjusted Wuxi Suntech's claimed offset for broken wafers
based on verification findings.
Adjusted cell consumption based on verification findings.
Valued two additional FOP based on verification findings
and post-preliminary submissions.
Excluded two FOP based on a determination that these
inputs are properly classified as overhead items.
Treated certain silicon wafers reportedly obtained from
tollers as silicon wafer purchases.
Classified Wuxi Suntech's recycled silicon input as a
direct material and its recycled silicon byproduct as an offset.
Excluded certain transactions from the final margin
calculations.
Revised Wuxi Suntech's indirect selling expenses and
applied them to a price that is net of certain adjustments.
Revised warranty expenses.
Revised the net price calculation based on verification
findings to account for additional expenses and revenue items.
Revised the unit-of-measure conversion factor used to
value one input based on verification findings.
Uncapped certain per-unit expense amounts.
Found that critical circumstances do not exist with
respect to Wuxi Suntech.
Changes Specific to Trina
Calculated Trina's dumping margin using the invoice or
rated quantity in watts rather than the maximum rated quantity in
watts.
Updated warranty expenses, rebates, and other minor
corrections based on verification findings.
Valued Trina's back sheets using Thai imports under the
HTS categories that correspond to the primary materials which comprise
the back sheet.
Excluded two inputs that would be classified as overhead
in the calculation of surrogate financial ratios.
Did not apply the Sigma cap to certain suppliers'
distances where the surrogates used to value the input are not based on
import statistics.
Updated the surrogate values for ocean freight and applied
them to all sales on which Trina paid ocean freight.
For detailed information concerning all of the changes made,
including those listed above, see the company-specific analysis and
surrogate value memoranda.
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).
[[Page 63793]]
Also excluded from the scope of this investigation are crystalline
silicon photovoltaic cells, not exceeding 10,000mm\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.\12\ These HTSUS subheadings are provided for convenience
and customs purposes; the written description of the scope of this
investigation is dispositive.
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\12\ U.S. Customs and Border Protection (``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.
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Scope Comments
The Department received comments regarding the scope of the
investigation from a number of interested parties. After analyzing the
comments, the Department has made no changes to the scope of this
investigation. For a complete discussion of scope issues, see the
Issues and Decision Memorandum at Comment 1.
Critical Circumstances
In the Preliminary Determination, we determined that critical
circumstances exist for Wuxi Suntech, Trina, the separate rate
respondents, and the PRC-wide entity, based on two comparisons. We
examined two comparison periods starting either September 2011 or
October 2011 based on imputing knowledge that a proceeding was likely
in either early or late September 2011. Due to data availability in the
Preliminary Determination we ended both comparison periods in March
2012. Specifically, we compared imports during a base period of
February 2011 through August 2011 to imports from September 2011
through March 2012, and imports during a base period of April 2011
through September 2011 to imports from October 2011 through March 2012.
For the final determination we have shipment data for both Wuxi Suntech
and Trina for April 2012 and May 2012. Based on our practice, we have
included data in our comparison period through the month of the
Preliminary Determination, May 2012. For the final determination, we
have determined that critical circumstances do not exist for Wuxi
Suntech. However, critical circumstances continue to exist for Trina,
the separate rate respondents, and the PRC-wide entity. For a complete
discussion of critical circumstances issues see the Issues and Decision
Memorandum at Comment 10.
Targeted Dumping
The statute allows the Department to employ an alternative dumping
margin calculation methodology in an AD investigation under the
following circumstances: (1) There is a pattern of EPs or CEPs for
comparable merchandise that differ significantly among purchasers,
regions, or periods of time; and (2) the Department explains why such
differences cannot be taken into account using the standard average-to-
average or transaction-to-transaction methodology.\13\ On February 13,
2012, Petitioner alleged targeted dumping with respect to Wuxi
Suntech's \14\ and Trina's \15\ sales to certain U.S. customers and
regions, and in certain time periods. In order to determine whether the
respondents engaged in targeted dumping, the Department conducted a
targeted dumping analysis established in Steel Nails.\16\ The
methodology employed involves a two-stage test; the first stage
addresses the pattern requirement and the second stage addresses the
significant-difference requirement.\17\ We made all price comparisons
in the test using prices for comparable merchandise (i.e., by control
number or CONNUM). The test procedures are the same for targeted-
dumping allegations involving customers, regions, and time periods. We
based all of our targeted-dumping calculations on the net U.S. price
that we determined for U.S. sales by Wuxi Suntech and Trina in our
margin calculations.
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\13\ See section 777A (d)(1)(B) of the Act.
\14\ See Letter from Petitioner to the Department, regarding
``Crystalline Silicon Photovoltaic (``CPSV'') Cells, Whether or Not
Assembled into Modules, from the People's Republic of China:
Targeted Dumping Allegation for Suntech,'' dated February 13, 2012.
\15\ See Letter from Petitioner to the Department, regarding
``Crystalline Silicon Photovoltaic (``CPSV'') Cells, Whether or Not
Assembled into Modules, from the People's Republic of China:
Targeted Dumping Allegation for Trina,'' dated February 13, 2012.
\16\ See Certain Steel Nails from the United Arab Emirates:
Notice of Final Determination of Sales at Not Less Than Fair Value,
73 FR 33985 (June 16, 2008) (``Steel Nails'') and accompanying
Issues and Decision Memorandum at Comments 1-9.
\17\ See section 777A(d)(1)(B)(i) of the Act and Steel Nails,
and accompanying Issues and Decision Memorandum at Comment 2.
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As a result of our analysis, we have determined that for both Wuxi
Suntech and Trina there is a pattern of prices for U.S. sales of
comparable merchandise that differ significantly among certain
purchasers, regions, and time periods in accordance with section
777A(d)(1)(B)(i) of the Act and our practice, as discussed in Steel
Nails and as modified in Wood Flooring. We find, however, that the
pattern of price differences can be taken into account using the
standard average-to-average methodology because, based on the data
before us, the average-to-average methodology does not mask differences
in the patterns of prices between the targeted and non-targeted groups.
Here, we determine that the standard average-to-average methodology
takes into account the price differences because the alternative
average-to-transaction methodology yields a difference in the margin
that is not meaningful relative to the size of the resulting
margin.\18\ Accordingly, we have applied the standard average-to-
average methodology to all of Wuxi Suntech's and Trina's U.S.
sales.\19\
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\18\ See Statement of Administrative Action accompanying the
Uruguay Round Agreements Act, H.R. Doc. 103-316, vol. 1 (1994) at
843 (``SAA'').
\19\ See e.g., Certain Coated Paper Suitable for High-Quality
Print Graphics Using Sheet-Fed Presses From Indonesia: Preliminary
Determination of Sales at Less Than Fair Value and Postponement of
Final Determination, 75 FR 24885, 24888 (May 6, 2010) unchanged in
Certain Coated Paper Suitable for High-Quality Print Graphics Using
Sheet-Fed Presses From Indonesia: Final Determination of Sales at
Less Than Fair Value, 75 FR 59223 (September 27, 2010) and
Polyethylene Retail Carrier Bags From Indonesia: Final Determination
of Sales at Less Than Fair Value, 75 FR 16431 (April 1, 2010) and
accompanying Issues and Decision Memorandum at Comment 1.
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Verification
As provided in section 782(i) of the Act, the Department verified
the information submitted by Wuxi Suntech and Trina for use in the
final determination. The Department used standard verification
procedures, including examination of relevant accounting and production
records and original source documents provided by the respondents.
[[Page 63794]]
Nonmarket Economy Country
The Department considers the PRC to be a nonmarket economy
(``NME'') country. In accordance with section 771(18)(C)(i) of the Act,
any determination that a foreign country is an NME country shall remain
in effect until revoked by the administering authority. The Department
continues to treat the PRC as an NME for purposes of this final
determination.
Surrogate Country
In the Preliminary Determination, the Department stated that it
selected Thailand as the appropriate surrogate country to use in this
investigation pursuant to section 773(c)(4) of the Act based on the
following: (1) It is at a similar level of economic development; (2) it
is a significant producer of comparable merchandise; and (3) we have
reliable data from Thailand that we can use to value the factors of
production. In their case briefs, Wuxi Suntech and Trina state that
India should be selected as surrogate country because India's solar
cell industry and population resembles that of the PRC, Thai surrogate
value data are deficient for certain inputs, and the record lacks
financial statements for Thai producers of identical merchandise.
Petitioner argues that India is not economically comparable to the PRC,
and that the Department should continue to use Thailand as the
surrogate country. As discussed in the Issues and Decision Memorandum,
the Department continues to find that Thailand is the appropriate
surrogate country for this investigation. For a complete discussion of
surrogate country issues, see the Issues and Decision Memorandum at
Comment 4.
Separate Rate Companies
In proceedings involving NME countries, the Department holds a
rebuttable presumption that all companies within the country are
subject to government control and, thus, should be assessed a single
antidumping duty rate. It is the Department's policy to assign all
exporters of the subject merchandise in an NME country this single rate
unless an exporter can demonstrate that it is sufficiently independent
so as to be entitled to a separate rate.
In the instant investigation, the Department received timely-filed
separate rate applications from 68 companies (``Separate Rate
Applicants''). Interested parties have submitted a number of comments
regarding some of the companies applying for separate rate status.
After considering the comments, the Department has not changed its
position from the Preliminary Determination with respect to the
companies seeking separate rate status.
The Department continues to find that the evidence placed on the
record of this investigation by the Separate Rate Applicants that were
granted separate rate status in the Preliminary Determination
demonstrates both de jure and de facto absence of government control
with respect to each company's respective exports of the merchandise
under investigation. Further, the Department has continued to deny
certain companies separate rate status as was the case in the
Preliminary Determination. For a complete discussion of separate rate
issues, see the Issues and Decision Memorandum at Comment 6.
The separate rate is normally determined based on the weighted-
average of the estimated dumping margins established for exporters and
producers individually investigated, excluding zero and de minimis
margins or margins based entirely on adverse facts available
(``AFA'').\20\ In this investigation, both Wuxi Suntech and Trina have
estimated weighted-average dumping margins which are above de minimis
and which are not based on total AFA. Because there are only two
relevant weighted-average dumping margins for this final determination,
using a weighted-average of these two margins risks disclosure of
business proprietary information (``BPI'') data. Therefore, the
Department has calculated both a simple average and a weighted-average
of the two final dumping margins calculated for the mandatory
respondents using public values for sales of subject merchandise
reported by respondents and used the average that provides a more
accurate proxy for the weighted-average margin of both companies
calculated using BPI data, which in this investigation is 25.96
percent.\21\
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\20\ See section 735(c)(5)(A) of the Act.
\21\ See the October 9, 2012, memorandum from Jeff Pedersen to
the File entitled ``Calculation of the Final Margin for Separate
Rate Recipients.''
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Use of Facts Available and Adverse Facts Available
Section 776(a) of the Act provides that the Department shall apply
facts available (``FA'') if (1) necessary information is not on the
record, or (2) an interested party or any other person (A) withholds
information that has been requested, (B) fails to provide information
within the deadlines established, or in the form and manner requested
by the Department, subject to subsections (c)(1) and (e) of section 782
of the Act, (C) significantly impedes a proceeding, or (D) provides
information that cannot be verified as provided by section 782(i) of
the Act.
Section 776(b) of the Act further provides that the Department may
use an adverse inference in applying FA when a party has failed to
cooperate by not acting to the best of its ability to comply with a
request for information. Such an adverse inference may include reliance
on information derived from the petition, the final determination, a
previous administrative review, or other information placed on the
record.
PRC-Wide Entity
In the Preliminary Determination, the Department determined that
certain PRC exporters/producers did not respond to the Department's
requests for information and did not establish that they were separate
from the PRC-wide entity. Thus, the Department has found that these PRC
exporters/producers are part of the PRC-wide entity and the PRC-wide
entity has not responded to our requests for information. Because the
PRC-wide entity did not provide the Department with requested
information, pursuant to section 776(a)(2)(A) of the Act, the
Department continues to find it appropriate to base the PRC-wide rate
on FA.
The Department determines that, because the PRC-wide entity did not
respond to our request for information, the PRC-wide entity has failed
to cooperate to the best of its ability. Therefore, pursuant to section
776(b) of the Act, the Department finds that, in selecting from among
the FA, an adverse inference is appropriate for the PRC-wide entity.
Because the Department begins with the presumption that all
companies within an NME country are subject to government control, and
because only the mandatory respondents and certain Separate Rate
Applicants have overcome that presumption, the Department is applying a
single antidumping rate to all other exporters of subject merchandise
from the PRC. Such companies have not demonstrated entitlement to a
separate rate.\22\
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\22\ See, e.g., Notice of Final Determination of Sales at Less
Than Fair Market Value: Synthetic Indigo From the People's Republic
of China, 65 FR 25706, 25707 (May 2, 2000).
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Selection of the Adverse Facts Available Rate for the PRC-Wide Entity
In determining a rate for AFA, the Department's practice is to
select a rate that is sufficiently adverse ``as to effectuate the
purpose of the adverse
[[Page 63795]]
facts available rule to induce respondents to provide the Department
with complete and accurate information in a timely manner.'' \23\
Further, it is the Department's practice to select a rate that ensures
``that the party does not obtain a more favorable result by failing to
cooperate than if it had cooperated fully.'' \24\ Thus, it is the
Department's practice to select as AFA the higher of the (a) highest
margin alleged in the petition or (b) the highest calculated rate of
any respondent in the investigation.\25\ In order to determine the
probative value of the margins in the petition for use as AFA for
purposes of this final determination, we analyzed the U.S. prices and
normal values for each of the individually investigated parties. Based
on this analysis, we determined that the price and normal value used to
derive the highest margin contained in the petition are within the
range of the U.S. prices and normal values for the respondents in this
investigation.\26\ Thus the highest petition margin has probative
value. Accordingly, we have corroborated the petition margin to the
extent practicable within the meaning of section 776(c) of the Act.
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\23\ See Notice of Final Determination of Sales at Less than
Fair Value: Static Random Access Memory Semiconductors From Taiwan,
63 FR 8909, 8932 (February 23, 1998).
\24\ See Brake Rotors from the People's Republic of China: Final
Results and Partial Rescission of the Seventh Administrative Review;
Final Results of the Eleventh New Shipper Review, 70 FR 69937, 69939
(November 18, 2005)(quoting the Statement of Administrative Action
accompanying the Uruguay Round Agreements Act, H. Doc. No. 316, 103d
Cong., 2d Session at 870 (1994)).
\25\ See, e.g., Seamless Refined Copper Pipe and Tube From the
People's Republic of China: Final Determination of Sales at Less
Than Fair Value, 75 FR 60725, 60729 (October 1, 2010).
\26\ See Wuxi Suntech and Trina Solar Analysis Memoranda.
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The dumping margin for the PRC-wide entity applies to all entries
of the merchandise under investigation except for entries of
merchandise under investigation from the exporter/producer combinations
listed in the chart in the ``Final Determination'' section below.
Combination Rates
In the Initiation Notice, the Department stated that it would
calculate combination rates for respondents that are eligible for a
separate rate in this investigation. This practice is described in
Policy Bulletin 05.1, available at http://www.trade.gov/ia/.
Final Determination
The Department determines that the following weighted-average
dumping margins exist for the period April 1, 2011, through September
30, 2011.
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Weighted-
Exporter Producer average
percent margin
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Changzhou Trina Solar Energy Changzhou Trina Solar 18.32
Co., Ltd. and Trina Solar Energy Co., Ltd.
(Changzhou) Science &
Technology Co., Ltd.
Trina Solar (Changzhou) 18.32
Science & Technology
Co., Ltd.
Wuxi Suntech Power Co., Ltd., Wuxi Suntech Power Co., 31.73
Luoyang Suntech Power Co., Ltd.
Ltd., Suntech Power Co., Ltd.
and Wuxi Sun-shine Power Co.,
Ltd.
Luoyang Suntech Power 31.73
Co., Ltd.
Suntech Power Co., Ltd. 31.73
Wuxi Sun-shine Power 31.73
Co., Ltd.
Baoding Tianwei Yingli New Baoding Tianwei Yingli 25.96
Energy Resources Co., Ltd. New Energy Resources
Co., Ltd.
Yingli Energy (China) 25.96
Company Limited.
Tianwei New Energy (Chengdu) PV Tianwei New Energy 25.96
Module Co., Ltd. (Chengdu) PV Module
Co., Ltd.
Canadian Solar International Canadian Solar 25.96
Limited. Manufacturing
(Changshu) Inc.
Canadian Solar 25.96
Manufacturing
(Luoyang) Inc.
Canadian Solar Manufacturing Canadian Solar 25.96
(Changshu) Inc. Manufacturing
(Changshu), Inc.
Canadian Solar Manufacturing Canadian Solar 25.96
(Luoyang) Inc. Manufacturing
(Luoyang), Inc.
Hanwha Solarone (Qidong) Co., Hanwha Solarone 25.96
Ltd. (Qidong) Co., Ltd.
CEEG (Shanghai) Solar Science CEEG (Shanghai) Solar 25.96
Technology Co., Ltd. Science Technology
Co., Ltd.
CEEG Nanjing Renewable 25.96
Energy Co., Ltd.
CEEG Nanjing Renewable Energy CEEG Nanjing Renewable 25.96
Co., Ltd. Energy Co., Ltd.
Jiawei Solarchina Co., Ltd..... Jiawei Solarchina 25.96
(Shenzhen) Co., Ltd.
Yingli Energy (China) Company Yingli Energy (China) 25.96
Limited. Company Limited.
Baoding Tianwei Yingli 25.96
New Energy Resources
Co., Ltd.
LDK Solar Hi-tech (Nanchang) LDK Solar Hi-tech 25.96
Co., Ltd. (Nanchang) Co., Ltd.
LDK Solar Hi-tech (Suzhou) Co., LDK Solar Hi-tech 25.96
Ltd. (Suzhou) Co., Ltd.
Jiawei Solarchina (Shenzhen) Jiawei Solarchina 25.96
Co., Ltd. (Shenzhen) Co., Ltd.
Changzhou NESL Solartech Co., Changzhou NESL 25.96
Ltd. Solartech Co., Ltd.
China Sunergy (Nanjing) Co., China Sunergy (Nanjing) 25.96
Ltd. Co., Ltd.
Chint Solar (Zhejiang) Co., Ltd Chint Solar (Zhejiang) 25.96
Co., Ltd.
Suzhou Shenglong PV-Tech Co., Suzhou Shenglong PV- 25.96
Ltd. TECH Co., Ltd.
tenKsolar (Shanghai) Co., Ltd.. tenKsolar (Shanghai) 25.96
Co., Ltd.
Upsolar Group, Co., Ltd........ HC Solar Power Co., Ltd 25.96
Zhiheng Solar Inc...... 25.96
Zhejiang Leye 25.96
Photovoltaic Science &
Technology Co., Ltd.
Tianwei New Energy 25.96
(Chengdu) PV Module
Co., Ltd.
Zhejiang ZG-Cells Co., 25.96
Ltd.
Zhejiang Xinshun 25.96
Guangfu Science and
Technology Co., Ltd.
Zhejiang Jiutai New 25.96
Energy Co., Ltd.
Wanxiang Import & Export Co., Zhejiang Wanxiang Solar 25.96
Ltd. Co., Ltd.
Jinko Solar Import and Export Jinko Solar Co., Ltd... 25.96
Co., Ltd.
JinkoSolar International Jinko Solar Co., Ltd... 25.96
Limited.
CNPV Dongying Solar Power Co., CNPV Dongying Solar 25.96
Ltd. Power Co., LTD.
CSG PVTech Co., Ltd............ CSG PVTech Co., Ltd.... 25.96
Delsolar Co., Ltd.............. DelSolar (Wujiang) Ltd. 25.96
[[Page 63796]]
Dongfang Electric (Yixing) MAGI Dongfang Electric 25.96
Solar Power Technology Co., (Yixing) MAGl Solar
Ltd. Power Technology Co.,
Ltd.
Eoplly New Energy Technology Eoplly New Energy 25.96
Co., Ltd. Technology Co., Ltd.
ERA Solar Co., Ltd............. ERA Solar Co., Ltd..... 25.96
ET Solar Energy Limited........ ET Solar Industry 25.96
Limited.
Hangzhou Zhejiang University Hangzhou Zhejiang 25.96
Sunny Energy Science and University Sunny
Technology Co., Ltd. Energy Science and
Technology Co., Ltd.
Himin Clean Energy Holdings Himin Clean Energy 25.96
Co., Ltd. Holdings Co., Ltd.
JA Solar Technology Yangzhou JingAo Solar Co., Ltd.. 25.96
Co., Ltd.
Jetion Solar (China) Co., Ltd.. Jetion Solar (China) 25.96
Co., Ltd.
Jiangsu Green Power PV Co., Ltd Jiangsu Green Power PV 25.96
Co., Ltd.
Jiangsu Sunlink PV Technology Jiangsu Sunlink PV 25.96
Co., Ltd. Technology Co., Ltd.
JingAo Solar Co., Ltd.......... JingAo Solar Co., Ltd.. 25.96
Konca Solar Cell Co., Ltd...... Konca Solar Cell Co., 25.96
Ltd.
Leye Photovoltaic Co., Ltd..... Leye Photovoltaic Co., 25.96
Ltd.
Lightway Green New Energy Co., Lightway Green New 25.96
Ltd. Energy Co., Ltd.
Motech (Suzhou) Renewable Motech (Suzhou) 25.96
Energy Co., Ltd. Renewable Energy Co.,
Ltd.
Ningbo ETDZ Holdings, Ltd...... Hangzhou Zhejiang 25.96
University Sunny
Energy Science and
Technology Co., LTD.
Ningbo Komaes Solar Technology Ningbo Komaes Solar 25.96
Co., Ltd. Technology Co., Ltd.
Ningbo Qixin Solar Electrical Ningbo Qixin Solar 25.96
Appliance Co., Ltd. Electrical Appliance
Co., Ltd.
Ningbo Ulica Solar Science & Ningbo Ulica Solar 25.96
Technology Co., Ltd. Science & Technology
Co., Ltd.
Perlight Solar Co., Ltd........ Perlight Solar Co., Ltd 25.96
Risen Energy Co., Ltd.......... Risen Energy Co., Ltd.. 25.96
Shanghai BYD Company Limited... Shanghai BYD Company 25.96
Limited.
Shanghai JA Solar Technology Shanghai JA Solar 25.96
Co., Ltd. Technology Co., Ltd.
Shanghai Solar Energy Science & Shanghai Solar Energy 25.96
Technology Co., Ltd. Science & Technology
Co., Ltd.
Shenzhen Topray Solar Co., Ltd. Shenzhen Topray Solar 25.96
Co., Ltd.
Solarbest Energy-Tech Solarbest Energy-Tech 25.96
(Zhejiang) Co., Ltd. (Zhejiang) Co., Ltd.
Sopray Energy Co., Ltd......... Sopray Energy Co., Ltd. 25.96
Sumec Hardware & Tools Co., Ltd Phono Solar Technology 25.96
Co., Ltd.
Sun Earth Solar Power Co., Ltd. Sun Earth Solar Power 25.96
Co., Ltd.
Yuhuan Sinosola Science & Yuhuan Sinosola Science 25.96
Technology Co., Ltd. & Technology Co., Ltd.
Yuhuan Solar Energy Source Co., Yuhuan Solar Energy 25.96
Ltd. Source Co., Ltd.
Zhejiang Jiutai New Energy Co., Zhejiang Topoint 25.96
Ltd. Photovoltaic Co., Ltd.
Zhejiang Shuqimeng Photovoltaic Zhejiang Shuqimeng 25.96
Technology Co., Ltd. Photovoltaic
Technology Co., Ltd.
Zhejiang Sunflower Light Energy Zhejiang Sunflower 25.96
Science & Technology Limited Light Energy Science &
Liability Company. Technology Limited
Liability Company.
PRC-Wide Rate.................. ....................... 249.96
------------------------------------------------------------------------
Disclosure
We intend to disclose to parties the calculations performed in this
proceeding within five days of the date of publication of this notice
in accordance with 19 CFR 351.224(b).
Continuation of Suspension of Liquidation
As noted above, the Department found that critical circumstances
exist with respect to imports of merchandise under consideration from
Trina, the Separate Rate Recipients (``SR Recipients''), and the PRC-
wide entity. In accordance with section 735(c)(1)(B) of the Act, the
Department will instruct CBP to continue to suspend liquidation of all
appropriate entries of subject merchandise, as described in the ``Scope
of Investigation'' section of this notice, from Trina, the SR
Recipients, and the PRC-wide entity that were entered, or withdrawn
from warehouse for consumption on or after the date 90 days prior of
the publication of the Preliminary Determination in the Federal
Register. Since critical circumstances do not exist for Wuxi Suntech,
the Department will instruct CBP to suspend liquidation of all
appropriate entries of subject merchandise from Wuxi Suntech that were
entered, or withdrawn from warehouse for consumption on or after May
25, 2012, the publication date of the Preliminary Determination in the
Federal Register. We will also instruct CBP to issue a refund for all
appropriate entries of subject merchandise from Wuxi Suntech that were
suspended up to 90 days prior to the publication date of the
Preliminary Determination.
Further, the Department will instruct CBP to require a cash-deposit
or the posting of a bond equal to the weighted-average amount by which
the normal value exceeds U.S. price, adjusted where appropriate for
export subsidies, as follows: (1) The rate for the exporter/producer
combinations listed in the table above will be the rate we have
determined in this final determination; (2) for all PRC exporters of
merchandise under consideration which have not received their own rate,
the cash-deposit rate will be the PRC-wide rate; and (3) for all non-
PRC exporters of merchandise under consideration which have not
received their own rate, the cash-deposit rate will be the rate
applicable to the PRC exporter/producer combination that supplied that
non-PRC exporter.
Certification Requirements
As noted above, the scope of both the AD and CVD investigations of
solar cells cover modules, laminates, and panels produced in a third-
country from solar cells produced in the PRC; however, modules,
laminates, and panels produced in the PRC from solar cells produced in
a third-country are not covered by the investigations. If an importer
imports solar panels/modules that it claims do not contain solar cells
that were produced in the PRC, the importer is required to maintain the
importer certification in Appendix II to this notice. The importer and
exporter
[[Page 63797]]
are also required to maintain the exporter certification in Appendix II
to this notice if the exporter of the panels/modules for which the
importer is making the claim is located in the PRC. We note that while
importers and PRC-exporters will be required to maintain the
aforementioned certifications and documentation, they will not have to
provide this information to CBP as part of the entry documents, unless
the certification or documentation is specifically requested by CBP.
If it is determined that the certification or documentation
requirements noted in the certification have not been met, the
Department intends to instruct CBP to suspend all unliquidated entries
for which these requirements were not met and require the posting of a
cash deposit or bond on those entries equal to the PRC-wide rate in
effect at the time of the entry. If a solar panel/module contains some
solar cells produced in the PRC, but the importer is unable or
unwilling to identify the total value of the panel/module subject to
the order, the Department intends to instruct CBP to suspend all
unliquidated entries for which the importer has failed to supply this
information and require the posting of a cash deposit or bond on the
total entered value of the panel/module equal to the PRC-wide rate in
effect at the time of the entry.\27\
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\27\ See memorandum from Maisha Cryor to Christian Marsh
regarding ``Crystalline Photovoltaic Cells, Whether or Not Assembled
into Modules, from the People's Republic of China: Third-Country
Case Numbers and Certifications'', dated May 16, 2012.
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ITC Notification
In accordance with section 735(d) of the Act, we have notified the
International Trade Commission (``ITC'') of the final affirmative
determination of sales at LTFV. As the Department's final determination
is affirmative, in accordance with section 735(b)(2) of the Act, the
ITC will determine, within 45 days, whether the domestic industry in
the United States is materially injured, or threatened with material
injury, by reason of imports of subject merchandise, or sales (or the
likelihood of sales) for importation, of the subject merchandise. If
the ITC determines that such injury does exist, the Department will
issue an antidumping duty order directing CBP to assess, upon further
instruction by the Department, antidumping duties on all imports of the
subject merchandise entered, or withdrawn from warehouse, for
consumption on or after the effective date of the suspension of
liquidation.
Notification Regarding APO
This notice also serves as a reminder to the parties subject to
administrative protective order (``APO'') of their responsibility
concerning the disposition of propriety information disclosed under APO
in accordance with 19 CFR 351.305. Timely notification of return or
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 sanctionable violation,
This determination is issued and published in accordance with
sections 735(d) and 777(i)(1) of the Act.
Dated: October 9, 2012.
Paul Piquado,
Assistant Secretary for Import Administration.
Appendix I--Issues for Final Determination
General Issues
Comment 1: Scope of the Investigation
Comment 2: Selection of Surrogate Financial Statements
Comment 3: Date of Sale
Comment 4: Surrogate Country
Comment 5: Labor Rate
Comment 6: Separate Rates
Comment 7: Overhead Items
Comment 8: Exclusion of Import Data with Values but Quantities of
Zero
Comment 9: Surrogate Value for Wafers
Comment 10: Critical Circumstances
Comment 11: Allegations of Fraud
Comment 12: Application of Sigma
Comment 13: Double Remedies and Concurrent AD and CVD Investigations
Comment 14: Collection of Antidumping Duties
Comment 15: Surrogate Value for Quartz Crucibles
Comment 16: Surrogate Value for Aluminum Frames
Comment 17: Surrogate Value for Tin Ribbon
Comment 18: Surrogate Value for Glass Plate for Wafer Slicing
Issues Relating To Trina
Comment 19: Unreported FOPs by Cell Suppliers and Tollers
Comment 20: Ocean Freight Expenses
Comment 21: Errors Identified at Trina U.S.'s Verification
Comment 22: Source for Barge Freight
Comment 23: Whether to Apply NME Freight Charges to All of Trina's
Sales
Comment 24: Surrogate Value for Polysilicon
Comment 25: Surrogate Value for Suspension
Comment 26: Surrogate Value for Trina's Back Sheet
Issues Relating to Wuxi Suntech
Comment 27: Whether Partial AFA Should be Used in Place of
Unreported FOPs for Modules Assembled Under Back-to-Back Agreements
Comment 28: Whether Suntech America's Product Recall Expenses Should
be Included In Indirect Selling Expenses
Comment 29: Exclusion of South Korean MEP Data
Comment 30: Acceptance of Minor Corrections Submitted at
Verification
Comment 31: Exclusion of Sample Sales from the Margin Calculation
Comment 32: Valuing Inputs from NME Suppliers When the Inputs Were
Used in Further Manufacturing
Comment 33: Whether Partial AFA Should be Applied to Value Labor and
Energy for Tolled Modules
Comment 34: Whether the ISE Rate Should be Applied to Gross Unit
Price Less Billing Adjustments and Early Payment Discounts
Comment 35: Suntech Arizona Financial Expense Rate
Comment 36: Whether Suntech America's Bad Debt Expense Should be
Included
Comment 37: Verification Findings
Comment 38: Whether Certain Reported Market Economy Purchases Were
Purchased from a Market Economy Supplier
Comment 39: Surrogate Value for PEG
Comment 40: Surrogate Value for Silica Purge of Liquid (IPA)
Comment 41: Surrogate Value for Hydrochloric Acid
Comment 42: Diamond Wire Saw Blade Surrogate Value
Comment 43: Whether Back-to-Back Arrangements Should be Considered
Purchases or Tolling
Issues Relating to Other Respondents
Comment 44: Voluntary Respondent Treatment of Yingli
Comment 45: Treatment of Jiasheng's Separate Rate Application
Comment 46: Treatment of Chaori's Separate Rate Application
Appendix II--Importer Certification
I hereby certify that I am an official of insert name of company
importing solar panels/modules, that I have knowledge of the facts
regarding the importation of the solar panels/modules or other
products containing solar panels/modules that entered under entry
number(s) insert entry number(s) covered by the certification, and
that these solar panels/modules do not contain solar cells produced
in the People's Republic of China. By signing this certificate, I
also hereby certify that insert name of company importing solar
panels/modules maintains sufficient documentation supporting this
certification for all solar cells used to produce the solar panels/
modules imported under the above-referenced entry number(s). I
understand that agents of the importer, such as brokers, are not
permitted to make this certification. Also, I am aware that records
pertaining to this certification may be requested by CBP. I
understand that this certification should be completed at the time
of the entry. Also, I understand that failure to maintain the
required certification or failure to substantiate the claim that the
panels/modules do not contain solar cells produced in the People's
Republic of China will result in suspension of all unliquidated
entries for which these requirements were not met and the
requirement that the importer post an AD cash deposit or, where
[[Page 63798]]
applicable, a bond, on those entries equal to the PRC-wide rate in
effect at the time of the entry and a CVD cash deposit, or where
applicable, a bond rate equal to the all-others rate in effect at
the time of the entry.
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Name of Company Official
-----------------------------------------------------------------------
Title
-----------------------------------------------------------------------
Date
Exporter Certification
I hereby certify that I am an official of insert name of company
exporting solar panels/modules, that I have knowledge of the facts
regarding the exportation of the solar panels/modules or other
products containing solar panels/modules identified below, and that
these solar panels/modules do not contain solar cells produced in
the People's Republic of China. By signing this certificate, I also
hereby certify that insert name of company exporting solar panels/
modules maintains sufficient documentation supporting this
certification for all solar cells used to produce the solar panels/
modules identified below. I am aware that records pertaining to this
certification may be subject to verification by Department of
Commerce officials and I consent to verification with respect to
this certification and these records. I understand that this
certification should be completed at the time of shipment. I also
understand that failure to maintain the required certification or
failure to substantiate the claim that the panels/modules do not
contain solar cells produced in the People's Republic of China will
result in suspension of all unliquidated entries for which these
requirements were not met and the requirement that the importer post
an AD cash deposit or, where applicable, a bond, on those entries
equal to the PRC-wide rate in effect at the time of the entry and a
CVD cash deposit, or where applicable, a bond rate equal to the all-
others rate in effect at the time of the entry.
The exports covered by this certification are insert invoice
numbers, purchase order numbers, export documentation, etc. to
identify the exports covered by the certification.
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Name of Company Official
-----------------------------------------------------------------------
Title
-----------------------------------------------------------------------
Date
[FR Doc. 2012-25580 Filed 10-16-12; 8:45 am]
BILLING CODE 3510-DS-P