[Federal Register Volume 77, Number 102 (Friday, May 25, 2012)]
[Notices]
[Pages 31309-31324]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-12798]


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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: Preliminary 
Determination of Sales at Less Than Fair Value, Postponement of Final 
Determination and Affirmative Preliminary Determination of Critical 
Circumstances

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.

DATES: Effective Date: May 25, 2012.
SUMMARY: The Department of Commerce (``Department'') preliminarily 
determines that crystalline silicon photovoltaic cells, whether or not 
assembled into modules (``solar cells''), from the People's Republic of 
China (``PRC'') are being, or are likely to be, sold in the United 
States at less than fair value (``LTFV''), as provided in section 733 
of the Tariff Act of 1930, as amended (``the Act''). The estimated 
margins of sales at LTFV are shown in the ``Preliminary Determination'' 
section of this notice.

FOR FURTHER INFORMATION CONTACT: Howard Smith, 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: (202) 482-5193, (202) 482-2769, (202) 482-4037, or 
(202) 482-4406, respectively.

SUPPLEMENTARY INFORMATION:

Background

    On October 19, 2011, the Department received a petition concerning 
imports of solar cells from the PRC filed in proper form by SolarWorld 
Industries America Inc. (``Petitioner'').\1\ In October and November, 
2011, the Department issued requests for information regarding, and 
clarification of, certain areas of the petition. Petitioner timely 
filed responses to these requests. In November 2011, the Department 
received comments from interested parties both supporting and opposing 
the petition.\2\ The Department initiated an antidumping (``AD'') duty 
investigation of solar cells from the PRC on November 8, 2011.\3\
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    \1\  See Petition for the Imposition of Antidumping and 
Countervailing Duties: Crystalline Silicon Photovoltaic Cells, 
Whether or Not Assembled into Modules, from the People's Republic of 
China, dated October 19, 2011 (``Petition'').
    \2\ See Letter from the United Steel, Paper and Forestry, 
Rubber, Manufacturing, Energy, Allied Industrial and Service Workers 
International Union to the Department, regarding ``Crystalline 
Silicon Photovoltaic Cells, Whether or Not Assembled into Modules, 
from the People's Republic of China,'' dated November 7, 2011; see 
also Letter to the Department, regarding ``Crystalline Silicon 
Photovoltaic Cells, Whether or Not Assembled into Modules, from the 
People's Republic of China, DOC Inv. No. A-570-979 and C-570-980, 
USITC Investigation Nos: 701-TA-481 and 731-TA-1190: Standing 
Challenge,'' dated November 7, 2011.
    \3\ See Crystalline Silicon Photovoltaic Cells, Whether or Not 
Assembled into Modules, From the People's Republic of China: 
Initiation of Antidumping Duty Investigation, 76 FR 70960 (November 
16, 2011) (``Initiation Notice'').
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    In the Initiation Notice, the Department stated that it intended to 
issue quantity and value (``Q&V'') questionnaires to exporters/
producers named in the petition and select respondents based on Q&V 
questionnaire responses.\4\ On November 9, 2011, the Department 
requested Q&V information from 75 companies identified in the petition 
as potential producers and/or exporters of solar cells from the PRC.\5\ 
The Department received timely responses to its Q&V questionnaire from 
76 companies. After examining the responses to the Q&V questionnaire, 
in accordance with section 777A(c)(2) of the Act, the Department 
selected as mandatory respondents the two companies reporting the 
largest quantity of solar cell sales to the United States during the 
period of investigation (``POI''), namely Wuxi Suntech Power Co., Ltd. 
(``Wuxi Suntech'') and Changzhou Trina Solar Energy Co., Ltd. (``Trina 
Solar'').\6\ On December 9, 2011, the Department issued the AD 
questionnaire to both companies. In January and February 2012, Wuxi 
Suntech and Trina Solar submitted timely responses to the Department's 
AD questionnaire. Petitioner submitted comments regarding those 
responses in January and February 2012. The Department issued 
supplemental questionnaires to Wuxi Suntech and Trina Solar from 
January to May 2012. Wuxi Suntech and Trina Solar submitted timely 
responses to the Department's supplemental questionnaires, and 
Petitioner submitted comments thereon, from February through May 2012.
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    \4\ See Initiation Notice, 76 FR at 70964.
    \5\ See Memorandum to the File from Rebecca Pandolph, 
International Trade Analyst, AD/CVD Operations, Office 4, regarding, 
``Issuance of Quantity and Value Questionnaires'' (December 8, 
2011).
    \6\ See Memorandum from Drew Jackson to Abdelali Elouaradia 
regarding, ``Respondent Selection in the Antidumping Duty 
Investigation of Crystalline Silicon Photovoltaic Cells, Whether or 
Not Assembled Into Modules, from the People's Republic of China,'' 
dated December 8, 2011 (``Respondent Selection Memorandum'').
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    In the Initiation Notice, the Department notified parties that they 
had an opportunity to comment on the scope of the investigation as well 
as the appropriate physical characteristics of solar cells to be 
reported in response to the Department's AD questionnaire.\7\ In 
November and December, 2011 parties submitted comments to the 
Department regarding the scope and the physical characteristics of 
merchandise under consideration to be used for reporting purposes. On 
March 19, 2012, the Department clarified the scope language of both the 
AD and countervailing duty (``CVD'') investigations of solar cells 
stating that modules, laminates, and panels produced in a third-country 
from solar cells produced in the PRC are covered by the investigations; 
however, modules, laminates, and panels produced in the PRC from solar 
cells produced in a third-country are not covered by the 
investigations.\8\
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    \7\ See Initiation Notice, 76 FR at 70960--70961.
    \8\ See Memorandum from Jeff Pedersen to Christian Marsh, 
regarding ``Scope Clarification: Antidumping and Countervailing Duty 
Investigations of Crystalline Silicon Photovoltaic Cells, Whether or 
Not Assembled Into Modules, from the People's Republic of China,'' 
dated March 19, 2012 (``Scope Clarification Memorandum'').
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    In November 2011, CNPV Dongying Solar Power Company Limited 
(``CNPV''), Yingli Green Energy Holding Company Limited and Yingli 
Green Energy Americas, Inc. (``Yingli''), Jiangsu Green Power PV Co., 
Ltd. (``Jiangsu''), and Trina Solar requested to be treated as 
voluntary respondents in this investigation.\9\ In its Respondent

[[Page 31310]]

Selection Memorandum,\10\ the Department explained that given the large 
number of exporters involved in this investigation, it was not 
practicable to individually examine each company. Therefore, the 
Department selected for individual examination the two respondents 
accounting for the largest volume of merchandise under consideration 
that reasonably could be examined, Wuxi Suntech and Trina Solar. 
Further, the Department explained that the number of companies that 
requested to be voluntary respondents is large enough that individual 
examination of the companies requesting to be treated as voluntary 
respondents would be unduly burdensome and would inhibit timely 
completion of the investigation.\11\ Therefore, the Department 
determined that it would not individually examine non-selected 
companies that place responses on the record as long as the mandatory 
respondents continue to cooperate in this investigation.
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    \9\ See Letter from CNPV to the Department, regarding 
``Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled 
into Modules, from Peoples Republic of China: Request for Treatment 
of CNPV as a Voluntary Respondent,'' dated November 17, 2011; see 
also Letter from Yingli to the Department, regarding ``Crystalline 
Silicon Photovoltaic Cells, Whether or Not Assembled into Modules, 
from Peoples Republic of China; Entry of Appearance; Application for 
Administrative Protective Order; and Request for Voluntary 
Respondent Treatment,'' dated November 17, 2011; see also Letter 
from Jiangsu to the Department, regarding ``Scope Comments in the 
Investigation of Crystalline Silicon Photovoltaic Cells, Whether or 
Not Assembled into Modules from the People's Republic of China,'' 
dated November 28, 2011; see also Letter from Trina Solar to the 
Department, regarding ``Crystalline Silicon Photovoltaic Cells 
Whether or Not Assembled Into Modules (``Solar Cells'') from the 
People's Republic of China (``PRC''),'' dated November 29, 2011.
    \10\ See Memorandum from Abdelali Elouaradia to Christian Marsh, 
regarding ``Respondent Selection in the Antidumping Duty 
Investigation of Crystalline Silicon Photovoltaic Cells, Whether or 
Not Assembled into Modules, from Peoples Republic of China,'' dated 
December 8, 2011.
    \11\ See id., at 6.
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    On March 8, 2012, the Department again addressed the matter of 
voluntary respondents. Specifically, the Department determined that 
CNPV and Jiangsu did not submit responses to the Department's AD 
questionnaire and thus they did not qualify as voluntary respondents. 
Furthermore, the Department continued to find that, given its existing 
resources and the complexity of the case, examining Yingli as a 
voluntary respondent would be unduly burdensome and inhibit the timely 
completion of the investigation. Therefore, the Department stated that 
it did not intend to calculate an individual weighted average dumping 
margin for Yingli.\12\
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    \12\ See Memorandum from Abdelali Elouaradia to Christian Marsh, 
regarding ``Antidumping Duty Investigation of Crystalline Silicon 
Photovoltaic Cells, Whether or Not Assembled into Modules, from 
People's Republic of China; Voluntary Respondents,'' dated March 8, 
2012.
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    On December 5, 2011, the U.S. International Trade Commission 
(``ITC'') preliminary determined that there is a reasonable indication 
that an industry in the United States is materially injured by reason 
of imports from the PRC of solar cells.\13\
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    \13\ See Crystalline Silicon Photovoltaic Cells and Modules From 
China, 76 FR 78313 (December 16, 2011).
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    In the Initiation Notice, the Department notified parties that in 
order to obtain separate rate status in this investigation, exporters 
and producers must timely file a separate rate application and a timely 
response to the Q&V questionnaire. During December 2011 and January 
2012, the Department received separate rate applications from 68 
companies that it accepted. The Department issued supplemental 
questionnaires to certain companies applying for a separate rate, and 
received responses thereto, from February through May 2012. From March 
through May 2012, Petitioner commented on the issue of whether certain 
applicants should be granted a separate rate, including comments 
regarding the National People's Congress and the Chinese People's 
Political Consultative Conference. On April 10, 2012, SUMEC Hardware & 
Tools Co. Ltd, Ningbo ETDZ Holding Ltd., Hangzhou Zhejiang University 
Sunny Energy Science and Technology Co., Ltd., LDK Solar Hi-Tech 
(Nanchang) Co., Ltd., LDK Solar Hi-Tech (Suzhou) Co., Ltd., ERA Solar 
Co., Ltd., and ET Solar Industry Limited, exporters of solar cells from 
the PRC, responded to Petitioner's comments regarding separate rates. 
In May 2012, Yingli and its affiliates responded to Petitioner's 
comments regarding certain separate-rate applicants.
    On January 24, 2012, the Department identified potential surrogate 
countries for use in the investigation and invited interested parties 
to comment on surrogate country and surrogate value selection.\14\ From 
February through May 2012 interested parties submitted comments on the 
appropriate surrogate country and surrogate values.
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    \14\ See Letter to All Interested Parties, Antidumping Duty 
Investigation of Crystalline Photovoltaic Cells, Whether or Not 
Assembled into Modules, from the People's Republic of China: Request 
for Surrogate Country and Surrogate Value Comments and Information 
(``Surrogate Country Memorandum''), dated January 24, 2012.
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    On February 13, 2012, Petitioner alleged that Wuxi Suntech and 
Trina Solar engaged in targeted dumping. In the Petition, Petitioner 
alleged, based on trade statistics since August 2010 and prior 
knowledge of an impending trade case, that there is a reasonable basis 
to believe or suspect that critical circumstances exist with regard to 
imports of solar cells from the PRC. Based on this allegation, the 
Department requested, and Trina Solar and Wuxi Suntech supplied, 
shipment information regarding the merchandise under consideration for 
the periods May 2009 through March 2012 and May 2009 through April 
2012, respectively. From November 2011 through April 2012, interested 
parties submitted comments regarding Petitioner's allegation of 
critical circumstances.
    On March 2, 2012, Petitioner made a timely request pursuant to 
section 733(c)(1)(A) of the Act and 19 CFR 351.205(e) for a 30-day 
postponement of the preliminary determination.\15\ On March 13, 2012, 
the Department published a postponement fully extending the due date of 
the preliminary AD determination on solar cells from the PRC.\16\
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    \15\ See Letter from Petitioner to the Department, regarding 
``Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled 
into Modules, from the People's Republic of China: Request to Extend 
Preliminary Determination in Antidumping Duty Investigation,'' dated 
March 2, 2012.
    \16\ See Crystalline Silicon Photovoltaic Cells, Whether or Not 
Assembled into Modules, From the People's Republic of China: 
Postponement of Preliminary Determination of Antidumping Duty 
Investigation, 77 FR 14732 (March 13, 2012).
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    In April and May 2012, Petitioner, Yingli, Canadian Solar, Inc., 
and Trina Solar filed comments for the Department to consider in its 
preliminary determination. Interested parties also submitted factors of 
production (``FOP'') data from February to May 2012.

Period of Investigation

    The POI is April 1, 2011, through September 30, 2011. This period 
corresponds to the two most recent fiscal quarters prior to the month 
in which the petition was filed, October 2011.\17\
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    \17\ See 19 CFR 351.204(b)(1).
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Scope of the Investigation\18\
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    \18\  See Scope Clarification Memorandum.
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    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

[[Page 31311]]

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 10,000mm\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.\19\ 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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    \19\ 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

    In November and December 2011, parties submitted comments to the 
Department regarding the scope of the AD and CVD investigations of 
solar cells. One party requested that the scope exclude monocrystalline 
solar panels for the recreational vehicle industry. Petitioner opposed 
this request. Another party requested that the scope exclude off-grid 
modules. Several respondents jointly requested that the Department 
modify certain language in the scope which identifies the products that 
are subject to the investigations as well as language which explains 
that merchandise under consideration described as parts at the time of 
importation is also covered by the scope. After examining the comments, 
the Department has preliminarily determined not to make the requested 
exclusions or modify the scope language as requested. For a detailed 
discussion of these issues, see the memorandum from Rebecca Pandolph to 
Christian Marsh regarding ``Crystalline Silicon Photovoltaic Cells, 
Whether or Not Assembled Into Modules from the People's Republic of 
China: Scope'' dated concurrently with this notice.
    Additionally, as noted above, on March 19, 2012, the Department 
clarified the scope language of both the AD and CVD investigations of 
solar cells stating that modules, laminates, and panels produced in a 
third-country from solar cells produced in the PRC are covered by the 
investigations; however, modules, laminates, and panels produced in the 
PRC from solar cells produced in a third-country are not covered by the 
investigations.

Critical Circumstances

    In the petition filed on October 19, 2011, Petitioner alleged that 
there is a reasonable basis to believe or suspect that critical 
circumstances exist with respect to the AD investigation of solar cells 
from the PRC.\20\ Section 733(e)(1) of the Act provides that the 
Department will determine that critical circumstances exist if there is 
a reasonable basis to believe or suspect that: (A)(i) There is a 
history of dumping and material injury by reason of dumped imports in 
the United States or elsewhere of the subject merchandise; or (ii) the 
person by whom, or for whose account, the merchandise was imported knew 
or should have known that the exporter was selling the subject 
merchandise at less than its fair value and that there was likely to be 
material injury by reason of such sales; and (B) there have been 
massive imports of subject merchandise over a relatively short period. 
Section 351.206(h)(1) of the Department's regulations provide that, in 
determining whether imports of the subject merchandise have been 
``massive,'' the Department will normally examine: (i) The volume and 
value of the imports; (ii) seasonal trends; and (iii) the share of 
domestic consumption accounted for by the imports. In addition, section 
351.206(h)(2) of the Department's regulations provides that an increase 
in imports of 15 percent during the ``relatively short period'' of time 
may be considered ``massive.'' Section 351.206(i) of the Department's 
regulations defines ``relatively short period'' as normally being the 
period beginning on the date the proceeding begins (i.e., the date the 
petition is filed) and ending at least three months later (i.e., the 
comparison period). However, if the Secretary finds that importers, 
exporters, or producers had reason to believe, at some time prior to 
the beginning of the proceeding, that a proceeding was likely, the 
Secretary may consider a period of not less than three months from that 
earlier time. The comparison period is normally compared to a 
corresponding period prior to the filing of the petition (i.e., the 
base period).
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    \20\ See Petition at Volume IV, ``Information Relating to the 
People's Republic of China--Critical Circumstances,'' dated October 
19, 2011.
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    In order to determine whether there is a history of dumping 
pursuant to section 733(e)(1)(A)(i) of the Act, the Department 
generally considers current or previous AD duty orders on subject 
merchandise from the country in question in the United States and 
current orders in any other country with regard to imports of subject 
merchandise.\21\ No parties have made any claims regarding AD 
proceedings for solar cells, and the Department is not aware of the 
existence of any active AD orders on solar cells from the PRC in other 
countries. As a result, the Department does not find that there is a 
history of injurious dumping of solar cells from the PRC pursuant to 
section 733(e)(1)(A)(i) of the Act.
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    \21\ See Certain Oil Country Tubular Goods From the People's 
Republic of China: Notice of Preliminary Determination of Sales at 
Less Than Fair Value, Affirmative Preliminary Determination of 
Critical Circumstances and Postponement of Final Determination, 74 
FR 59117, 59120 (November 17, 2009) unchanged in Certain Oil Country 
Tubular Goods from the People's Republic of China: Final 
Determination of Sales at Less Than Fair Value, Affirmative Final 
Determination of Critical Circumstances and Final Determination of 
Targeted Dumping, 75 FR 20335 (April 19, 2010).
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    Nevertheless, the Department has determined that importers knew, or 
should have known that the exporters were selling the merchandise under 
consideration at LTFV and that there was likely to be material injury 
by reason of such sales. The Department generally bases its decision 
with respect to knowledge on the margins calculated in the preliminary 
AD determination and the ITC's preliminary injury determination.\22\ 
The Department

[[Page 31312]]

normally considers margins of 25 percent or more for export price 
(``EP'') sales and 15 percent or more for constructed export price 
(``CEP'') sales sufficient to impute importer knowledge of sales at 
LTFV.\23\ Wuxi Suntech and Trina Solar had both EP and CEP sales, a 
majority of which are CEP sales. The dumping margins calculated for 
Wuxi Suntech and Trina Solar exceed the threshold sufficient to impute 
knowledge of dumping (i.e., 15 percent for CEP sales). Therefore, we 
determine that there is sufficient basis to find that importers should 
have known that the exporters were selling the merchandise under 
consideration at less than its fair value.\24\ Consistent with 
Department practice, we based the margin for the separate rate 
respondents on the average of the margins calculated for the 
individually examined respondents, excluding any rates that are zero, 
de minimis, or based entirely on adverse-facts-available (``AFA'').\25\ 
Accordingly, we have preliminarily applied to the separate rate 
companies a margin of 31.18 percent. Because we calculated preliminary 
margins for Wuxi Suntech's and Trina Solar's sales in excess of 15 
percent, and the experience of the mandatory respondents has been 
applied to the separate-rate respondents, the record supports imputing 
importer knowledge of sales at LTFV with respect to these companies. 
Moreover, for the reasons discussed below, the Department has 
preliminarily determined a rate for the PRC-wide entity of 249.96 
percent. This PRC-wide rate exceeds both the 25 percent threshold for 
EP sales and the 15 percent threshold for CEP sales. Therefore, the 
Department is preliminary imputing importer knowledge of sales at LTFV 
with respect to the PRC-wide entity. Furthermore, since the ITC 
preliminarily found a reasonable indication that an industry in the 
United States is materially injured by imports from the PRC of solar 
cells, the Department has determined that there is a reasonable basis 
to believe or suspect that the importers knew or should have known that 
there was likely to be material injury by reason of sales at LTFV of 
solar cells from Wuxi Suntech, Trina Solar, the separate rate 
companies, and the PRC-wide entity.
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    \22\ See, e.g., Notice of Final Determination of Sales at Less 
Than Fair Value and Affirmative Critical Circumstances 
Determination: Bottom Mount Combination Refrigerator-Freezers From 
Mexico 77 FR 17422, 17425 (March 26, 2012).
    \23\ See id.
    \24\ See Memorandum from Drew Jackson and Heidi Schriefer to The 
File regarding, ``Analysis of the Preliminary Determination Margin 
Calculation for Wuxi Suntech Power Co., Ltd.,'' dated May 16, 2012; 
see also Memorandum from Jeff Pedersen and Krisha Hill to The File 
regarding, ``Analysis of the Preliminary Determination Margin 
Calculation for Changzhou Trina Solar Energy Co., Ltd.,'' dated May 
16, 2012 (collectively, ``Wuxi Suntech and Trina Solar Analysis 
Memoranda'').
    \25\ See, e.g., Preliminary Determination of Sales at Less Than 
Fair Value and Partial Affirmative Determination of Critical 
Circumstances: Certain Polyester Staple Fiber from the People's 
Republic of China, 71 FR 77373, 77377 (December 26, 2006) (``PSF 
Preliminary Determination''), unchanged in Final Determination of 
Sales at Less Than Fair Value and Partial Affirmative Determination 
of Critical Circumstances: Certain Polyester Staple Fiber from the 
People's Republic of China, 72 FR 19690 (April 19, 2007) (``PSF 
Final Determination''); see also ``Separate Rates'' section below.
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    In determining whether there have been massive imports of 
merchandise under consideration over a relatively short period, 
pursuant to 19 CFR 351.206(i), the Department may consider a period of 
not less than three months from the date on which this proceeding began 
if importers, exporters or producers had reason to believe, at some 
time prior to the filing of the petition, that a proceeding was likely. 
The Department has concluded that record information indicates that 
exporters, producers, and importers of solar cells from the PRC had 
reason to believe that AD and CVD proceedings were likely during 
September 2011. The petition included factual information from August 
24, 2009, through October 11, 2011. The factual information included 
commentary about the closing and/or bankruptcy of U.S. solar cell 
companies, articles discussing subsidies given to Chinese solar cell 
producers in the PRC, and articles concerning actions being taken by 
the U.S. Trade Representative. However, it is not until September 2011 
that the information submitted explicitly refers to AD and CVD 
remedies.\26\ Given the factual information in the petition, we find 
that knowledge was imputed to importers, exporters, and producers 
during September 2011.
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    \26\ See, e.g., Petition at Volume IV, Exhibit 13 (an article by 
Bloomberg, dated September 8, 2011) and Exhibit 16 (an article by 
Bloomberg, dated September 28, 2011).
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    The Department typically determines whether to include the month in 
which a party had reason to believe that a proceeding was likely in the 
base, or comparison, period depending on whether the event that gave 
rise to the reason for belief occurred in the first or second half of 
the month. However, in this case, regardless of whether knowledge was 
imputed to importers, exporters or producers in the first or second 
half of September 2011, it does not change our findings with respect to 
whether imports have been massive over a relatively short period of 
time.
    For Wuxi Suntech and Trina Solar, we first compared imports during 
a base period of February 2011 through August 2011 to imports from 
September 2011 through March 2012 (assuming knowledge was imputed in 
early September, putting that month into the comparison period). 
Second, we compared imports during a base period of April 2011 through 
September 2011 to imports from October 2011 through March 2012 
(assuming knowledge was imputed in late September, putting that month 
into the base period). It is the Department's practice to base the 
critical circumstances analysis on all available data, using base and 
comparison periods of no less than three months.\27\ The latest 
available shipment data that we were able to use for the preliminary 
determination are data up through March 2012. While Wuxi Suntech also 
submitted shipment data for April 2012, the data were submitted too 
close to the preliminary determination to be used in our analysis.
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    \27\ See, e.g., Notice of Preliminary Determination of Sales at 
Less Than Fair Value, Postponement of Final Determination, and 
Affirmative Preliminary Determination of Critical Circumstances: 
Certain Frozen and Canned Warmwater Shrimp from India, 69 FR 47111, 
47118-47119 (August 4, 2004), unchanged in Notice of Final 
Determination of Sales at Less Than Fair Value and Negative 
Determination of Critical Circumstances: Certain Frozen and Canned 
Warmwater Shrimp From India, 69 FR 76916 (December 23, 2004); and 
Notice of Final Determination of Sales at Less Than Fair Value and 
Negative Final Determination of Critical Circumstances: Certain 
Color Television Receivers From the People's Republic of China, 69 
FR 20594 (April 16, 2004), and accompanying Issues and Decision 
Memorandum at Comment 3.
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    When we compared both Wuxi Suntech's shipments and Trina Solar's 
shipments \28\ during the relevant comparison periods with the base 
periods, we found that imports of Wuxi Suntech's and Trina Solar's 
merchandise under consideration increased by more than 15 percent over 
their respective imports in the base periods in terms of watts during 
the comparison periods. Hence pursuant to section 351.206(h) of the 
Department's regulations we consider the imports of Wuxi Suntech's and 
Trina Solar's merchandise under consideration to be massive.\29\ 
Furthermore, we find that the

[[Page 31313]]

imports of Wuxi Suntech's and Trina Solar's merchandise have been 
massive over a relatively short period of time, regardless of whether 
knowledge was imputed to the importers, exporters, or producers in the 
first or second half of September 2011. Although the respondents have 
argued that the volume of shipments during the comparison period can be 
explained by reasons other than reasons relating to AD/CVD issues, the 
Department has not found that the record supports the respondents' 
arguments.\30\
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    \28\ See Crystalline Silicon Photovoltaic Cells, Whether or Not 
Assembled into Modules, from the People's Republic of China; 
Response to Critical Circumstances Questionnaire, on behalf of 
Trina, dated December 19, 2011; see also Crystalline Silicon 
Photovoltaic Cells from the People's Republic of China: Quantity & 
Value Data for May 2009 through November 2011, on behalf of Wuxi 
Suntech dated December 19, 2011.
    \29\ See memorandum from Patrick O'Connor to Christian Marsh 
regarding ``Antidumping Duty Investigation of Crystalline 
Photovoltaic Cells, Whether or Not Assembled into Modules, from the 
People's Republic of China: Preliminary Affirmative Determination of 
Critical Circumstances'', dated concurrently with this notice 
(``Preliminary Critical Circumstances Memorandum'').
    \30\ See Preliminary Critical Circumstances Memorandum.
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    In determining whether imports of merchandise under consideration 
from the respondents who were not individually examined were massive, 
we relied on the experience of the mandatory respondents. Based on the 
experience of these mandatory respondents, we find that imports by all 
other producers or exporters also increased by more than 15 percent. 
Because, as discussed below, the PRC-wide entity did not respond to the 
Department's request for information (see the section ``Application of 
Facts Available and Adverse Facts Available'' below), we have no 
shipment data regarding the PRC-wide entity,\31\ and thus we must apply 
facts available. Furthermore, as discussed below, the Department may 
use facts available with an adverse inference where a party has failed 
to cooperate by not acting to the best of its ability. The PRC-wide 
entity did not act to the best of its ability in responding to the 
Department's request for information. Therefore, the Department finds 
that the application of AFA is warranted. Consequently, we also 
preliminarily determine that imports have been massive over a 
relatively short period of time with respect to the PRC-wide entity.
---------------------------------------------------------------------------

    \31\ See, e.g., section 776(a)(1) of the Act.
---------------------------------------------------------------------------

    Based on the above analysis, we preliminarily determine that 
critical circumstances exist for Wuxi Suntech, Trina Solar, the 
separate rate respondents, and the PRC-wide entity.

Non-Market Economy Country

    In every case conducted by the Department involving the PRC, the 
PRC has been treated as a non-market economy (``NME'') country.\32\ 
Moreover, the Department's most recent examination of the PRC's NME 
status determined that such status should continue.\33\ 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 has not revoked the PRC's 
status as an NME country, and thus we have treated the PRC as an NME in 
this preliminary determination and applied our NME methodology.
---------------------------------------------------------------------------

    \32\ See, e.g., Certain Kitchen Appliance Shelving and Racks 
From the People's Republic of China: Preliminary Determination of 
Sales at Less Than Fair Value and Postponement of Final 
Determination, 74 FR 9591, 9593 (March 5, 2009), unchanged in 
Certain Kitchen Appliance Shelving and Racks From the People's 
Republic of China: Final Determination of Sales at Less Than Fair 
Value, 74 FR 36656 (July 24, 2009).
    \33\ See Memorandum for David M. Spooner, Assistant Secretary 
for Import Administration, Antidumping Duty Investigation of Certain 
Lined Paper Products from the People's Republic of China 
(``China''): China's Status as a Non-Market Economy (``NME'') 
(August 30, 2006) (memorandum is on file in the Department's Central 
Records Unit on the record of case number A-570-901).
---------------------------------------------------------------------------

Surrogate Country

    Section 773(c)(1) of the Act directs the Department to base normal 
value (``NV''), in most cases, on the NME producer's FOPs valued in a 
surrogate market-economy (``ME'') country or countries considered 
appropriate by the Department. In accordance with section 773(c)(4) of 
the Act, the Department will value FOPs using ``to the extent possible, 
the prices or costs of factors of production in one or more market 
economy countries that are--(A) at a level of economic development 
comparable to that of the nonmarket economy country, and (B) 
significant producers of comparable merchandise.'' Further, pursuant to 
19 CFR 351.408(c)(2), the Department will normally value FOPs in a 
single surrogate country.
    In its Surrogate Country Memorandum, the Department identified 
Colombia, Indonesia, the Philippines, South Africa, Thailand, Peru, and 
Ukraine as being equally comparable to the PRC in terms of economic 
development.\34\ Petitioner argues that Thailand should be selected as 
the surrogate country because there is significant production capacity, 
and production of, identical and comparable merchandise in Thailand and 
there is Thai information on the record for all of the surrogate values 
that are needed to calculate a margin.\35\ Both Wuxi Suntech and Trina 
Solar argue that India, a country not listed in the Surrogate Country 
Memorandum, is the most appropriate surrogate country primarily because 
India's solar cell industry is larger and more developed than that of 
Thailand and other countries on the surrogate country list.\36\ The 
respondents also contend that India's solar cell industry is more 
similar in size and development to that of the PRC. Further, both 
respondents note that the record contains usable financial statements 
for Indian solar cell producers. Wuxi Suntech and Trina Solar point out 
that, in its petition, Petitioner argued that the Department should 
choose India as the surrogate country for initiation purposes and it 
supported its position that India is the most appropriate surrogate 
country.
---------------------------------------------------------------------------

    \34\ See Surrogate Country Memorandum.
    \35\ See, e.g., Letter from Petitioner to the Department, 
regarding ``Crystalline Silicon Photovoltaic (``c-Si PV'') Cells 
from the People's Republic of China: Comments on Surrogate Country 
and Initial Proposed Surrogate Values for the Preliminary 
Determination,'' dated April 12, 2012.
    \36\ See, e.g., Letter from Wuxi Suntech to the Department, 
regarding ``Crystalline Silicon Photovoltaic Cells from the People's 
Republic of China: Comments of Wuxi Suntech Power Co., Ltd.--
Surrogate Country and Surrogate Value Selection,'' dated February 
21, 2012.
---------------------------------------------------------------------------

Economic Comparability

    The Department considers all seven countries listed in the 
Surrogate Country Memorandum as having satisfied the economic 
comparability prong of the surrogate country selection criteria. Unless 
we find that all of the countries determined to be equally economically 
comparable are not significant producers of comparable merchandise, do 
not provide a reliable source of publicly available surrogate data or 
are unsuitable for use for other reasons, we will rely on data from one 
of these countries.\37\
---------------------------------------------------------------------------

    \37\ See Certain Steel Wheels From the People's Republic of 
China: Notice of Preliminary Determination of Sales at Less Than 
Fair Value, Partial Affirmative Preliminary Determination of 
Critical Circumstances, and Postponement of Final Determination, 76 
FR 67703, 67708 (November 2, 2011), unchanged in Certain Steel 
Wheels From the People's Republic of China: Notice of Final 
Determination of Sales at Less Than Fair Value and Partial 
Affirmative Final Determination of Critical Circumstances, 77 FR 
17021 (March 23, 2012).
---------------------------------------------------------------------------

    Once the countries that are economically comparable to the PRC have 
been identified, we select an appropriate surrogate country by 
determining whether an economically comparable country is a significant 
producer of comparable merchandise and whether the data for valuing 
FOPs is both available and reliable.\38\
---------------------------------------------------------------------------

    \38\ See id., 76 FR at 67708-67709.
---------------------------------------------------------------------------

Producers of Identical or Comparable Merchandise

    Section 773(c)(4)(B) of the Act directs the Department, to the 
extent possible, to value FOPs in a surrogate country that is a 
significant producer of comparable merchandise. The record contains 
evidence of producers of identical or comparable merchandise in

[[Page 31314]]

Thailand, the Ukraine, and the Philippines. A market survey of 
worldwide solar cell producers identifies two producers of solar cells 
in Thailand but none in Ukraine or South Africa.\39\ Nevertheless, 
Trina Solar placed evidence on the record that there is a solar cell 
producer in Ukraine \40\ and Petitioner claims there is a solar cell 
producer in Ukraine and two in South Africa.\41\ Petitioner placed 
additional evidence on the record that Thailand has four producers of 
merchandise under consideration.\42\ Global Trade Atlas (``GTA'') 
statistics also identify exports of merchandise under consideration 
from Thailand of over $5,000,000 for the first eight months of 
2011.\43\ Export statistics for Colombia, Indonesia, the Philippines, 
South Africa and Ukraine \44\ also show exports for a HTS category that 
would include merchandise under consideration. Based on information on 
the record, the Department has determined that Colombia, Indonesia, the 
Philippines, South Africa, Thailand, and Ukraine are significant 
producers of comparable merchandise under consideration.
---------------------------------------------------------------------------

    \39\ See Volume I of the Petition at Exhibit I-10.
    \40\ See Trina Solar's April 10, 2012 Additional Surrogate Value 
Submission at Exhibit 5.
    \41\ See Petitioner's February 21, 2012 submission at 10.
    \42\ See Petitioner's February 21, 2012 submission at 10 and 
Exhibit 2. See also Petitioner's April 12, 2012 submission at 3.
    \43\ See Petitioner's October 25, 2011 supplement to its 
petition at Exhibit AD-Supp-3.
    \44\ Id.
---------------------------------------------------------------------------

Data Availability

    If more than one country satisfies the statutory requirements for 
selection as a surrogate country, the Department selects a surrogate 
country from among the potential countries based on data availability 
and quality. When evaluating surrogate value data, the Department 
considers several factors including whether the surrogate values are 
publicly available, contemporaneous with the POI, representative of a 
broad market average, from an approved surrogate country, tax and duty-
exclusive, and specific to the inputs being valued. There is no 
surrogate value information on the record for South Africa, and a very 
limited amount of information for the Philippines and Ukraine. In 
contrast, the record contains usable Thai surrogate values for almost 
every input that must be valued.
    Because Thailand is the only country listed on the Surrogate 
Country Memorandum found to be both economically comparable to the PRC 
and a significant producer of comparable merchandise for which we have 
reliable data to value almost every one of the FOPs, we have selected 
Thailand as the surrogate country. Given that one of the countries 
found to be economically comparable to the PRC satisfies the 
requirements for selection as a surrogate country, for purposes of the 
preliminary determination, there is no need for the Department to 
evaluate India as a potential surrogate country.
    In accordance with 19 CFR 351.301(c)(3)(i), for the final 
determination in an AD investigation, interested parties may submit 
publicly available information to value the FOPs within 40 days after 
the date of publication of the preliminary determination.\45\
---------------------------------------------------------------------------

    \45\ In accordance with section 351.301(c)(1) of the 
Department's regulations, for the final determination of this 
investigation, interested parties may submit factual information to 
rebut, clarify, or correct factual information submitted by any 
other interested party less than ten days before, on, or after, the 
applicable deadline for submission of such factual information. 
However, the Department notes that section 351.301(c)(1) of the 
Department's regulations permits new information only insofar as it 
rebuts, clarifies, or corrects information recently placed on the 
record. The Department generally will not accept the submission of 
additional, previously absent-from-the-record alternative surrogate 
value information. See Glycine from the People's Republic of China: 
Final Results of Antidumping Duty Administrative Review and Final 
Rescission, in Part, 72 FR 58809 (October 17, 2007), and 
accompanying Issues and Decision Memorandum at Comment 2. 
Additionally, for each piece of factual information submitted with 
surrogate value rebuttal comments, the interested party must provide 
a written explanation of what information that is already on the 
record of the ongoing proceeding the factual information is 
rebutting, clarifying, or correcting.
---------------------------------------------------------------------------

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.\46\ On February 13, 
2012, Petitioner alleged targeted dumping with respect to Wuxi 
Suntech's \47\ and Trina Solar's \48\ 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.\49\ The 
methodology employed involves a two-stage test; the first stage 
addresses the pattern requirement and the second stage addresses the 
significant-difference requirement.\50\ 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 Solar in 
our margin calculations.
---------------------------------------------------------------------------

    \46\ See section 777A(d)(1)(B) of the Act.
    \47\ 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.
    \48\ 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.
    \49\ 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.
    \50\  See section 777A(d)(1)(B)(i) of the Act and Steel Nails, 
and accompanying Issues and Decision Memorandum at Comment 2.
---------------------------------------------------------------------------

    As a result of our analysis, we preliminarily determine that for 
both Wuxi Suntech and Trina Solar 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.\51\ Accordingly, for this preliminary determination we have 
applied the standard average-to-average methodology to all of Wuxi 
Suntech's and Trina Solar's U.S. sales.\52\
---------------------------------------------------------------------------

    \51\ See Statement of Administrative Action accompanying the 
Uruguay Round Agreements Act, H.R. Doc. 103-316, vol. 1 (1994) at 
843 (``SAA'').
    \52\ 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.

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

[[Page 31315]]

Single Entity Treatment

    To the extent that the Department's practice does not conflict with 
section 773(c) of the Act, the Department has, in prior cases, treated 
certain NME exporters and/or producers as a single entity if the facts 
of the case supported such treatment.\53\ Pursuant to section 
351.401(f)(1) of the Department's regulations, the Department will 
treat producers as a single entity, or ``collapse'' them, where: (1) 
Those producers are affiliated; (2) the producers have production 
facilities for producing similar or identical products that would not 
require substantial retooling of either facility in order to 
restructure manufacturing priorities; and (3) there is a significant 
potential for manipulation of price or production.\54\ In determining 
whether a significant potential for manipulation exists, section 
351.401(f)(2) of the Department's regulations states that the 
Department may consider various factors, including: (1) The level of 
common ownership; (2) the extent to which managerial employees or board 
members of one firm sit on the board of directors of an affiliated 
firm; and (3) whether the operations of the affiliated firms are 
intertwined, such as through the sharing of sales information, 
involvement in production and pricing decisions, the sharing of 
facilities or employees, or significant transactions between the 
affiliated producers.\55\
---------------------------------------------------------------------------

    \53\ See Certain Steel Nails From the People's Republic of 
China: Preliminary Determination of Sales at Less Than Fair Value 
and Partial Affirmative Determination of Critical Circumstances and 
Postponement of Final Determination, 73 FR 3928, 3932 (January 23, 
2008), unchanged in Certain Steel Nails From the People's Republic 
of China: Amended Preliminary Determination of Sales at Less Than 
Fair Value, 73 FR 7254 (February 7, 2008) and Certain Steel Nails 
from the People's Republic of China: Final Determination of Sales at 
Less Than Fair Value and Partial Affirmative Determination of 
Critical Circumstances, 73 FR 33977 (June 16, 2008).
    \54\ See, e.g., Gray Portland Cement and Clinker From Mexico: 
Final Results of Antidumping Duty Administrative Review, 63 FR 
12764, 12774-12775 (March 16, 1998).
    \55\ See also, e.g., Notice of Final Determination of Sales at 
Less Than Fair Value: Collated Roofing Nails From Taiwan, 62 FR 
51427, 51436 (October 1, 1997).
---------------------------------------------------------------------------

    Section 771(33) of the Act identifies persons that shall be 
considered ``affiliated'' or ``affiliated persons,'' including, inter 
alia: (1) Any person directly or indirectly owning, controlling, or 
holding with power to vote, 5 percent or more of the outstanding voting 
stock or shares of any organization and such organization; (2) two or 
more persons directly or indirectly controlling, controlled by, or 
under common control with, any person; and (3) any person who controls 
any other person and such other person.\56\ Section 771(33) of the Act 
further states that a person shall be considered to control another 
person if the person is legally or operationally in a position to 
exercise restraint or direction over the other person.
---------------------------------------------------------------------------

    \56\ See sections 771(33)(E)-(G) of the Act.
---------------------------------------------------------------------------

    The Department has preliminarily determined that the producers 
Trina Solar and Trina Solar (Changzhou) Science & Technology Co., Ltd. 
are affiliated pursuant to sections 771(33)(F) of the Act and that 
these companies should be treated as a single entity for AD 
purposes.\57\ These companies are under common control and, therefore, 
are affiliated in accordance with section 771(33)(F) of the Act (which 
states that affiliated persons include two or more persons directly or 
indirectly controlling, controlled by, or under common control with, 
any person). Further, we found that these companies operate production 
facilities that produce similar or identical products that would not 
require substantial retooling of their facilities in order to 
restructure manufacturing priorities.\58\ We have also determined that 
there is a significant potential for the manipulation of price or 
production among these companies as evidenced by the level of common 
ownership, the degree of management overlap, and the intertwined nature 
of the operations of these companies.\59\ Thus we have preliminarily 
treated these companies as a single entity.
---------------------------------------------------------------------------

    \57\ See Memorandum from Lilit Astvatsatrian to Christian Marsh, 
regarding ``Affiliation and Single Entity Status of Changzhou Trina 
Solar Energy Co., Ltd. and Trina Solar (Changzhou) Science & 
Technology Co., Ltd.,'' dated May 16, 2012.
    \58\ See section 351.401(f)(1) of the Department's regulations.
    \59\ See id. and section 351.401(f)(2) of the Department's 
regulations.
---------------------------------------------------------------------------

    In addition, the Department preliminarily determines that Wuxi 
Suntech, Luoyang Suntech Power Co., Ltd., Suntech Power Co., Ltd., and 
Wuxi Sun-Shine Power Co., Ltd. are affiliated pursuant to section 
771(33)(F) of the Act and that these companies should be treated as a 
single entity for AD purposes.\60\ These companies are under common 
control and, therefore, are affiliated in accordance with section 
771(33)(F) of the Act. Further, we found that these companies operate 
production facilities that produce similar or identical products that 
would not require substantial retooling of their facilities in order to 
restructure manufacturing priorities.\61\ We have also determined that 
there is a significant potential for the manipulation of price or 
production among these companies as evidenced by the level of common 
ownership, the degree of management overlap, and the intertwined nature 
of the operations of these companies.\62\ Thus we have preliminarily 
treated these companies as a single entity.
---------------------------------------------------------------------------

    \60\ See Memorandum from Drew Jackson and Patrick O'Connor to 
Christian Marsh, regarding ``Affiliation and Single Entity Status of 
Wuxi Suntech Power Co., Ltd.; Luoyang Suntech Power Co., Ltd.; 
Suntech Power Co., Ltd.; and Wuxi Sun-Shine Power Co., Ltd.,'' dated 
May 16, 2012.
    \61\ See section 351.401(f)(1) of the Department's regulations.
    \62\ See section 351.401(f)(2) of the Department's regulations.
---------------------------------------------------------------------------

Separate Rates

    In the Initiation Notice, the Department notified parties that, in 
order to obtain separate rate status in this investigation, they must 
timely file a timely response to the Q&V questionnaire and timely file 
a separate rate application.\63\ The Department received timely-filed 
separate rate applications from 68 companies.
---------------------------------------------------------------------------

    \63\ See Initiation Notice, 76 FR at 70964.
---------------------------------------------------------------------------

    In proceedings involving NME countries, the Department has a 
rebuttable presumption that all companies within the country are 
subject to government control and thus should be assessed a single AD 
rate.\64\ It is the Department's policy to assign all exporters of 
merchandise under investigation that are 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.\65\ The Department 
analyzes whether each entity exporting the subject merchandise is 
sufficiently independent under a test arising from Sparklers,\66\ as 
further developed in Silicon Carbide.\67\ In accordance with the 
separate rates criteria, the Department assigns separate rates in NME 
cases if respondents can demonstrate the absence of both de jure and de 
facto governmental control over export activities. If, however, the 
Department determines that a company is wholly foreign owned, then a 
separate rate analysis is not necessary to

[[Page 31316]]

determine whether it is independent from government control.
---------------------------------------------------------------------------

    \64\ See, e.g., Polyethylene Terephthalate Film, Sheet, and 
Strip from the People's Republic of China: Final Determination of 
Sales at Less Than Fair Value, 73 FR 55039, 55040 (September 24, 
2008).
    \65\ See Sparklers, 56 FR at 20589, as amplified by Silicon 
Carbide.
    \66\ See Sparklers, 56 FR at 20588.
    \67\ See Silicon Carbide, 59 FR at 22585.
---------------------------------------------------------------------------

A. Separate Rate Recipients \68\
---------------------------------------------------------------------------

    \68\ All separate rate applicants receiving a separate rate are 
hereby referred to collectively as the ``SR Recipients,'' including 
the mandatory respondents.
---------------------------------------------------------------------------

Joint Ventures Between Chinese and Foreign Companies or Wholly Chinese-
Owned Companies
    Separate rate applicants in this investigation stated that they are 
either joint ventures between Chinese and foreign companies or are 
wholly Chinese-owned companies. Therefore, the Department must analyze 
whether these respondents can demonstrate the absence of both de jure 
and de facto governmental control over their export activities.
a. Absence of De Jure Control
    The Department considers the following de jure criteria in 
determining whether an individual company may be granted a separate 
rate: (1) An absence of restrictive stipulations associated with an 
individual exporter's business and export licenses; (2) any legislative 
enactments decentralizing control of the companies; and (3) other 
formal measures by the government decentralizing control of 
companies.\69\
---------------------------------------------------------------------------

    \69\ See Sparklers, 56 FR at 20589.
---------------------------------------------------------------------------

    The evidence provided by the SR Recipients supports a preliminary 
finding of de jure absence of governmental control based on the 
following: (1) An absence of restrictive stipulations associated with 
the individual exporters' business and export licenses; (2) the 
existence of applicable legislative enactments decentralizing control 
of the companies; and (3) formal measures by the government 
decentralizing control of Chinese companies.
    Petitioner argues that certain Chinese solar cell producers are 
subject to the legal control of a state-owned enterprise (``SOE'') and 
thus they have not demonstrated an absence of de jure government 
control.\70\ Petitioner claims that the Interim Regulations on 
Supervision and Management of State-owned Assets of Enterprises (State 
Council Decree 378) (``Interim Regulations'') give the government, and 
in particular the State-Owned Assets and Supervision and Administration 
Commission (``SASAC''), the responsibility and rights of an investor 
with regard to SOEs which includes the power to elect and remove 
corporate directors and managers, decide business policy, approve 
budgets and financial plans, and amend the company's articles of 
association. Additionally, Petitioner contends that the Interim 
Regulations promulgated regulations which ensure that there is no clear 
distinction between SOEs and the government. Thus, according to 
Petitioner, certain separate rate respondents owned in part by one or 
more SOEs cannot demonstrate an absence of de jure government control 
because the government has power over the equity interest of the SOEs 
in the respondent. Petitioner argues that an SOE's ownership interest 
in a respondent is effectively government property and, thus, the 
government can control the respondent.
---------------------------------------------------------------------------

    \70\ See Letter from Petitioner to the Department, regarding 
``Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled 
into Modules, from the People's Republic of China: Comments on 
Separate Rate Application Responses,'' dated March 29, 2012 
(``Petitioner Separate Rate Comments'').
---------------------------------------------------------------------------

    The Department has preliminarily determined that the Interim 
Regulations do not automatically demonstrate de jure control over the 
export activities of an SOE. Articles 1 and 2 of the Interim 
Regulations state that the law is intended to be applicable to state-
owned enterprises and assets as well as enterprises with state-owned 
equity.\71\ Article 6 further clarifies that SASACs ``perform the 
responsibilities of investors according to law, supervise and 
administer State-owned assets of enterprises according to law,'' and, 
hence, are empowered to act in the capacity of representative of the 
state's role as ``investor.''
---------------------------------------------------------------------------

    \71\ See id., at Exhibit 3.
---------------------------------------------------------------------------

    The Department notes that Article 7 of the Interim Regulations 
provides for the ``separation of government functions from enterprise 
management and separation of ownership from management.'' Further, 
Article 10 states that those companies operating under SASAC ``enjoy 
autonomy in their operation'' and that SASAC ``shall support the 
independent operation of enterprises according to law, and shall not 
interfere in their production and operation activities * * *'' The 
Department also notes that SASAC plays a role in approving the 
development of certain investment and business plans to ensure that 
these plans are in line with the PRC's industrial policy objectives as 
well in the appointment of the board and certain key senior management 
positions.\72\ Therefore, there are contradictions in the Interim 
Regulations with respect to the separation of the government from the 
enterprise management. However, while SASAC may play a role with 
overseeing the overall regulation, development and structure of a 
state-owned sector, there is nothing on the record to indicate that 
SASAC's reach extends to such day-to-day activities as export pricing.
---------------------------------------------------------------------------

    \72\ See id.
---------------------------------------------------------------------------

    In addition, Article 42 of the Interim Regulations states that 
``organizational form, organizational structure, rights and obligations 
* * * shall be governed by the Company Law'', which the Department has 
previously found to demonstrate an absence of de jure control over 
export activities, including pricing.\73\
---------------------------------------------------------------------------

    \73\ See, e.g., Freshwater Crawfish Tail Meat From the People's 
Republic of China: Preliminary Results of Antidumping Duty 
Administrative and New-Shipper Reviews, 75 FR 34100 (June 16, 2010), 
unchanged in Freshwater Crawfish Tail Meat From the People's 
Republic of China: Final Results of Antidumping Duty Administrative 
and New-Shipper Reviews, 75 FR 79337 (December 20, 2010).
---------------------------------------------------------------------------

    Therefore, although SOEs may be shareholders in certain separate 
rate respondents, even where SASAC is the ultimate representative of 
the SOE holding shares, the Department finds that there is no 
information on the record that SASAC's role would extend to control 
over export activities, including pricing, in these separate rate 
applicants. Therefore, the Department finds that the laws placed on the 
record of this investigation establish the absence of de jure control 
of respondents whose shareholders include SOEs.
b. Absence of De Facto Control
    Typically, the Department considers four factors in evaluating 
whether a respondent is subject to de facto government control of its 
export functions: (1) Whether the EPs are set by, or are subject to the 
approval of, a government agency; (2) whether the respondent has 
authority to negotiate and sign contracts and other agreements; (3) 
whether the respondent has autonomy from the government in making 
decisions regarding the selection of management; and (4) whether the 
respondent retains the proceeds of its export sales and makes 
independent decisions regarding the disposition of profits or financing 
of losses.\74\ The Department has determined that an analysis of de 
facto control is critical in determining whether the respondents are, 
in fact, subject to a degree of government control which would preclude 
the Department from assigning separate rates.
---------------------------------------------------------------------------

    \74\ See Silicon Carbide, 59 FR at 22586-87; see also Notice of 
Final Determination of Sales at Less Than Fair Value: Furfuryl 
Alcohol From the People's Republic of China, 60 FR 22544, 22545 (May 
8, 1995).
---------------------------------------------------------------------------

    Each of the SR Recipients have asserted the following: (1) Their 
EPs are

[[Page 31317]]

not set by, and are not subject to, the approval of a governmental 
agency; (2) they have authority to negotiate and sign contracts and 
other agreements; (3) they have autonomy from the government in making 
decisions regarding the selection of management; and (4) they retain 
the proceeds of their export sales and make independent decisions 
regarding the disposition of profits or financing of losses.
    Evidence placed on the record of this investigation by the SR 
Recipients demonstrates an absence of de jure and de facto government 
control with respect to their exports of the merchandise under 
investigation, in accordance with the criteria identified in Sparklers 
and Silicon Carbide.
    Petitioner argues that a number of separate rate applicants are not 
independent from the government with respect to certain activities such 
as selection of management and disposition of profits/financing losses. 
The Department has examined the record, including responses to 
supplemental questionnaires that were issued to a number of separate 
rate applicants, and preliminarily determined to grant these companies 
a separate rate.
    Also, Petitioner argues that separate-rate respondents with senior 
managers who are members of the Chinese People's Political Consultative 
Conference (``CPPCC'') have not established de facto independence from 
the Chinese government.\75\ Petitioner claims the CPPCC is under the 
control of the Chinese government and under the leadership of the 
Communist Party of the PRC. According to Petitioner, CPCC members must 
implement the decisions of the CPPCC, including its 12th Five-Year Plan 
for the solar photovoltaic industry. Hence, Petitioner contends that 
separate rate respondents with senior managers who are members of the 
CPPCC have not established de facto independence from the Chinese 
government.
---------------------------------------------------------------------------

    \75\ See Petitioner Separate Rate Comments at 37.
---------------------------------------------------------------------------

    Additionally, Petitioner asserts that separate-rate respondents 
affiliated with, or having strong ties to, Chinese universities and 
colleges under the direct supervision of the PRC's Ministry of 
Education have failed to establish independence from the Chinese 
government. Petitioner believes that the Chinese government can exert 
control and influence over solar companies through the universities by 
threatening to sever-ties between the company and the university which 
provides its research capabilities to the company or by withdrawing 
research and development funding or other assistance. Consequently, 
Petitioner believes such companies have failed to establish 
independence from the Chinese government.
    We have examined the above criteria relating to a de facto absence 
of government control for the separate-rate applicants, including those 
which Petitioner claims have managers or directors who are members of 
CPPCC or are affiliated with certain universities and found, based on 
those criteria, that these companies have demonstrated an absence of de 
jure government control. Petitioner has not demonstrated that a 
separate rate respondent's relationship with CPPCC or certain 
universities resulted in a lack of autonomy on the part of the 
respondent to set EPs, negotiate and sign agreements, select 
management, or decide how to dispose of profits or financing of losses. 
Therefore, we are preliminarily granting separate rate status to the 
entities identified in the ``Preliminary Determination'' section of 
this notice, below.

Companies Not Receiving a Separate Rate

    We have not granted a separate rate to the following companies for 
the following reasons: (1) Jiangsu Jiasheng Photovoltaic Technology 
Co., Ltd. failed to submit a timely response to the Department's Q&V 
questionnaire. The Department stated in the Initiation Notice that it 
``requires that respondents submit a response to both the quantity and 
value questionnaire and the separate rate-application by the respective 
deadlines in order to receive consideration for separate-rate status.'' 
\76\ Further, in the Q&V questionnaire the Department stated that it 
``will not give consideration to any separate-rate status application 
made by parties that fail to timely respond to the quantity and value 
questionnaire or fail to timely submit the requisite separate-rate 
status application.'' \77\ (2) Jiawei Solar (Wuhan) Co., Ltd., SunPower 
Corporation, SunPower Systems SARL, Sunenergy (S.Z.) Co., Ltd., Hanwa 
Solarone Hong Kong, and Anji DaSol Solar Energy Science and Technology 
Co., Ltd. did not sell merchandise under consideration to the United 
States. (3) Jiangyin Hareon Power Co., Ltd. and Wuxi Taichen Machinery 
& Equipment Co., Ltd. failed to submit a timely response to the 
Department's supplemental separate rate questionnaire.
---------------------------------------------------------------------------

    \76\ See Initiation Notice, 76 FR at 70964.
    \77\ See ``Quantity and Value Questionnaire for Crystalline 
Silicon Photovoltaic Cells, Whether Or Not Assembled Into Modules 
(``Solar Cells'') from the People's Republic of China (``PRC'') 
(``Q&V Questionnaire''), dated November 9, 2011.
---------------------------------------------------------------------------

Application of Facts Available and Adverse Facts Available

The PRC-Wide Entity and PRC-Wide Rate

    The record indicates that there were PRC exporters/producers of the 
merchandise under consideration during the POI that did not respond to 
the Department's request for quantity and value information. 
Specifically, the Department did not receive a response to its Q&V 
questionnaire from over 30 PRC exporters of merchandise under 
consideration named in the petition who were issued the 
questionnaire.\78\ Since these non-responsive PRC producers/exporters 
have not demonstrated that they are eligible for separate rate status, 
they are part of the PRC-wide entity. Thus, the record indicates that 
the PRC-wide entity withheld information requested by the Department.
---------------------------------------------------------------------------

    \78\ See Respondent Selection Memorandum. The Department also 
posted a copy of the Q&V questionnaire on its Web site.
---------------------------------------------------------------------------

    Section 776(a)(2) of the Act provides that, if an interested party 
(A) withholds information that has been requested by the Department, 
(B) fails to provide such information in a timely manner or in the form 
or manner requested, subject to subsections 782(c)(1) and (e) of the 
Act, (C) significantly impedes a proceeding under the AD statute, or 
(D) provides such information but the information cannot be verified, 
the Department shall, subject to subsection 782(d) of the Act, use 
facts otherwise available in reaching the applicable determination.
    We find that the PRC-wide entity withheld Q&V information requested 
by the Department; failed to provide information in a timely manner, 
and significantly impeded the proceeding by not submitting the 
requested information. The PRC-wide entity did not file documents 
indicating it was having difficulty providing the information nor did 
it request that it be allowed to submit the information in an alternate 
form. As a result, pursuant to sections 776(a)(2)(A)-(C) of the Act, we 
find that the use of facts available is appropriate to determine the 
PRC-wide rate.\79\
---------------------------------------------------------------------------

    \79\ See, e.g., Preliminary Determination of Sales at Less Than 
Fair Value, Affirmative Preliminary Determination of Critical 
Circumstances and Postponement of Final Determination: Certain 
Frozen Fish Fillets from the Socialist Republic of Vietnam, 68 FR 
4986, 4991 (January 31, 2003), unchanged in Notice of Final 
Determination of Sales at Less Than Fair Value and Affirmative 
Critical Circumstances: Certain Frozen Fish Fillets from the 
Socialist Republic of Vietnam, 68 FR 37116 (June 23, 2003).

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

[[Page 31318]]

    Section 776(b) of the Act provides that, in selecting from among 
the facts otherwise available, the Department may employ an inference 
that is adverse to a party if the party failed to cooperate by not 
acting to the best of its ability to comply with requests for 
information.\80\ The Department finds that the PRC-wide entity's 
failure to provide the requested information constitutes circumstances 
under which it is reasonable to conclude that less than full 
cooperation has been shown.\81\ Therefore, because the PRC-wide entity 
did not respond to our requests for information, it has failed to 
cooperate to the best of its ability. Therefore, the Department 
preliminarily finds that, in selecting from among the facts otherwise 
available, an adverse inference is appropriate.
---------------------------------------------------------------------------

    \80\ See also SAA at 870; Notice of Final Determination of Sales 
at Less Than Fair Value: Certain Cold-Rolled Flat-Rolled Carbon-
Quality Steel Products from the Russian Federation, 65 FR 5510, 5518 
(February 4, 2000).
    \81\ See Nippon Steel Corporation v. United States, 337 F.3d 
1373, 1383 (Fed. Cir. 2003) (noting that the Department need not 
show intentional conduct existed on the part of the respondent, but 
merely that a ``failure to cooperate to the best of a respondent's 
ability'' existed (i.e., information was not provided ``under 
circumstances in which it is reasonable to conclude that less than 
full cooperation has been shown'')).
---------------------------------------------------------------------------

    When employing an adverse inference, section 776(b) of the Act 
states that the Department may rely upon information derived from the 
petition, the final determination from the LTFV investigation, a 
previous administrative review, or any other information placed on the 
record. In selecting a rate based on AFA, the Department selects a rate 
that is sufficiently adverse to ensure that the uncooperative party 
does not obtain a more favorable result by failing to cooperate than if 
it had fully cooperated. It is the Department's practice to select, as 
an AFA margin, the higher of the: (a) Highest margin alleged in the 
petition, or (b) highest calculated margin of any respondent in the 
investigation.\82\ The petition margins are 49.88 percent and 249.96 
percent.\83\ These rates are higher than any of the weighted-average 
rates calculated for the companies individually examined. Thus, as AFA, 
the Department's has selected the rate of 249.96 percent for the PRC-
wide entity.
---------------------------------------------------------------------------

    \82\ See Certain Stilbenic Optical Brightening Agents From the 
People's Republic of China: Final Determination of Sales at Less 
Than Fair Value, 77 FR 17436, 17438 (March 26, 2012).
    \83\ See Initiation Notice, 76 FR at 70963.
---------------------------------------------------------------------------

Corroboration of Information
    Section 776(c) of the Act requires the Department to corroborate, 
to the extent practicable, secondary information used as facts 
available. Secondary information is defined as ``information derived 
from the petition that gave rise to the investigation or review, the 
final determination concerning the subject merchandise, or any previous 
review under section 751 of the Act concerning the subject 
merchandise.'' \84\
---------------------------------------------------------------------------

    \84\ See SAA at 870.
---------------------------------------------------------------------------

    The SAA clarifies that ``corroborate'' means that the Department 
will satisfy itself that the secondary information to be used has 
probative value.\85\ The SAA also states that independent sources used 
to corroborate such evidence may include, for example, published price 
lists, official import statistics and customs data, and information 
obtained from interested parties during the particular 
investigation.\86\ To corroborate secondary information, the Department 
will, to the extent practicable, determine whether the information used 
has probative value through examining the reliability and relevance of 
the information.
---------------------------------------------------------------------------

    \85\ See id.
    \86\ See id.
---------------------------------------------------------------------------

    In order to determine the probative value of the margins in the 
petition for use as AFA for purposes of this preliminary determination, 
we compared the petition margins to the margins we calculated for the 
individually examined respondents. We determined that the petition 
margin of 249.96 percent is reliable and relevant because it is within 
the range of the transaction-specific margins \87\ on the record for 
the individually examined exporters of subject merchandise. 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.
---------------------------------------------------------------------------

    \87\ See Wuxi Suntech and Trina Solar Analysis Memoranda.
---------------------------------------------------------------------------

Margin for the Separate Rate Companies

    The Department has preliminarily determined that in addition to the 
individually examined entities, 59 other companies have demonstrated 
their eligibility for separate rate status. Normally, the Department's 
practice is to assign a rate to separate rate entities not individually 
examined equal to the average of the rates calculated for the 
individually examined respondents, excluding any rates that are zero, 
de minimis, or based entirely on AFA.\88\ Thus, we are assigning the SR 
Recipients a rate equal to an average of the rate calculated for the 
mandatory respondents.\89\ The SR Recipients are listed in the 
``Preliminary Determination'' section of this notice.
---------------------------------------------------------------------------

    \88\ See, e.g., Preliminary Determination of Sales at Less Than 
Fair Value and Partial Affirmative Determination of Critical 
Circumstances: Certain Polyester Staple Fiber from the People's 
Republic of China, 71 FR 77373, 77377 (December 26, 2006), unchanged 
in Final Determination of Sales at Less Than Fair Value and Partial 
Affirmative Determination of Critical Circumstances: Certain 
Polyester Staple Fiber from the People's Republic of China, 72 FR 
19690 (April 19, 2007).
    \89\ See Memorandum from Jeff Pedersen to the File, 
``Calculation of the Preliminary Margin for Separate Rate 
Recipients,'' dated May 16, 2012.
---------------------------------------------------------------------------

Date of Sale

    Pursuant to section 351.401(i) of the Department's regulations, 
``in identifying the date of sale of the merchandise under 
consideration or foreign like product, the Secretary normally will use 
the date of invoice, as recorded in the exporter or producer's records 
kept in the normal course of business.'' The date of sale is generally 
the date on which the parties agree upon all substantive terms of the 
sale. This normally includes the price, quantity, delivery terms and 
payment terms.\90\
---------------------------------------------------------------------------

    \90\ See, e.g., Carbon and Alloy Steel Wire Rod From Trinidad 
and Tobago: Final Results of Antidumping Duty Administrative Review, 
72 FR 62824 (November 7, 2007), and accompanying Issue and Decision 
Memorandum at Comment 1; Notice of Final Determination of Sales at 
Less Than Fair Value: Certain Cold-Rolled Flat-Rolled Carbon Quality 
Steel Products from Turkey, 65 FR 15123 (March 21, 2000), and 
accompanying Issues and Decision Memorandum at Date of Sale, Comment 
1.
---------------------------------------------------------------------------

    Sales during the POI were made pursuant to short-term contracts, 
long-term contracts, and/or purchase orders. Sales were also made on 
the spot market. Petitioner maintains that Wuxi Suntech's date of sale 
should be based on contract or purchase order date because: (1) Sales 
terms are generally fixed in Wuxi Suntech's sales contracts; (2) 
certain terms under the contracts make it unlikely that changes are 
made after the contract date; (3) the solar industry uses contracts 
with fixed prices and terms that rarely change, and (4) Wuxi Suntech 
did not sufficiently demonstrate that the material terms of its 
contracts and purchase orders changed. Petitioner also contends that 
Trina Solar's date of sale should be based on contract date because: 
(1) Most long-term and short-term contracts do not allow changes in 
material terms; (2) Trina Solar has not disputed the fact that material 
terms of sale in its short-term contracts do not change; and (3) the 
sample documents purportedly

[[Page 31319]]

showing changes in contract prices do not show changes in prices but 
consist of amendments to sales contracts that establish new prices. 
According to Petitioner, these are separate sales agreements that 
firmly establish all material terms of sale.
    The relevant question in considering whether contract date or 
purchase order date better reflects the date on which the exporter or 
producer established the material terms of sale, and thus is the 
appropriate date of sale, is whether the material terms of sale were 
subject to change on the contract date or purchase order date. The date 
of sale is the date when the material terms of sale are established and 
final--that is no longer subject to change.\91\ Wuxi Suntech and Trina 
Solar provided evidence that the material terms of contracts and 
purchase orders can and do change up until issuance of the commercial 
invoice.\92\
---------------------------------------------------------------------------

    \91\ See PSF Preliminary Determination, 71 FR 77377, unchanged 
in PSF Final Determination.
    \92\ See Trina Solar's February 13, 2012 Supplemental Response 
at Exhibits SA-2 and SA-7. See also Trina Solar's April 2, 2012 
Supplemental Response at Exhibit 2SC-3. See Wuxi Suntech's March 21, 
2012 supplemental questionnaire response at 8-11 and Exhibits 3-X 
and 3-Y.
---------------------------------------------------------------------------

    In Allied Tube & Conduit Corp. v. United States, the U.S. Court of 
International Trade noted that a ``party seeking to establish a date of 
sale other than invoice date bears the burden of producing sufficient 
evidence to `satisfy' the Department that `a different date better 
reflects the date on which the exporter or producer establishes the 
material terms of sale.' '' \93\ After examining the record, the 
Department has determined that there is insufficient evidence 
demonstrating that a date other than invoice date better reflects that 
date on which the material terms of sale were established. Therefore, 
the Department has relied upon the earlier of commercial invoice date, 
or shipment date as the date of sale.
---------------------------------------------------------------------------

    \93\ See Allied Tube & Conduit Corp. v. United States, 132 F. 
Supp. 2d 1087, 1090 (CIT 2001).
---------------------------------------------------------------------------

Fair Value Comparisons

    In accordance with section 777A(d)(1) of the Act, to determine 
whether the mandatory respondents sold merchandise under consideration 
to the United States at less than fair value during the POI, we 
compared EP and CEP of the sales to NV, as described in the 
``Constructed Export Price,'' ``Export Price,'' and ``Normal Value'' 
sections of this notice.

U.S. Price

Constructed Export Price

    In accordance with section 772(b) of the Act, CEP is ``the price at 
which the subject merchandise is first sold (or agreed to be sold) in 
the United States before or after the date of importation by or for the 
account of the producer or exporter of such merchandise or by a seller 
affiliated with the producer or exporter, to a purchaser not affiliated 
with the producer or exporter, as adjusted under subsections (c) and 
(d).'' Wuxi Suntech and Trina Solar reported that during the POI, they 
made CEP sales through their respective U.S. affiliates. In accordance 
with section 772(b) of the Act, we calculated a CEP for Wuxi Suntech's 
and Trina Solar's U.S. sales where the merchandise subject to this 
investigation was sold by the U.S. affiliates on behalf of the 
respondents to unaffiliated purchasers.
    We calculated CEP for Wuxi Suntech and Trina Solar based on 
delivered prices to unaffiliated purchasers in the United States. We 
reduced the U.S. sales price by discounts and rebates. We also made 
deductions from the U.S. sales price, where applicable, for movement 
expenses in accordance with section 772(c)(2)(A) of the Act. The 
movement expenses included expenses such as inland freight from the 
plant to the port of exportation, brokerage and handling incurred in 
the country of export, international freight, marine insurance, U.S. 
duties, U.S. inland freight, U.S. inland freight, and other U.S. 
transportation and warehouse costs. In accordance with section 
772(d)(1) of the Act, we also deducted from the U.S. price, direct and 
indirect selling expenses, credit, expenses, and inventory carrying 
costs, all of which relate to commercial activity in the United States. 
Where applicable, we reduced movement expenses by freight. We also 
adjusted U.S. price by interest revenue and insurance revenue. Finally, 
we deducted CEP profit, in accordance with sections 772(d)(3) and 
772(f) of the Act.

Export Price

    In accordance with section 772(a) of the Act, we calculated an EP 
for certain U.S. sales reported by Wuxi Suntech and Trina Solar. We 
calculated EP based on the packed prices at which merchandise under 
consideration was sold to unaffiliated purchasers in the United States, 
or sold for exportation to the United States. We made deductions from 
U.S. price for movement expenses, as appropriate (e.g., foreign inland 
freight from the plant to the port of exportation, domestic brokerage, 
international freight to the port of importation), in accordance with 
section 772(c)(2)(A) of the Act. Where foreign inland freight or 
foreign brokerage and handling fees were provided by PRC service 
providers or paid for in renminbi, we based those charges on surrogate 
value rates.\94\ Where applicable, we also adjusted U.S. price by the 
value of certain materials provided free of charge.
---------------------------------------------------------------------------

    \94\ See ``Factor Valuation'' section below for further 
discussion of surrogate value rates.
---------------------------------------------------------------------------

Normal Value

    Section 773(c)(1) of the Act provides that the Department shall 
determine NV using an FOP methodology if the merchandise is exported 
from an NME and the information does not permit the calculation of NV 
using home-market prices, third-country prices, or constructed value 
under section 773(a) of the Act. The Department bases NV on FOPs 
because the presence of government controls on various aspects of NMEs 
renders price comparisons and the calculation of production costs 
invalid under the Department's normal methodologies.\95\ Thus, we 
calculated NV based on FOPs in accordance with sections 773(c)(3) and 
(4) of the Act and section 351.408(c) of the Department's regulations. 
Under section 773(c)(3) of the Act, FOPs include, but are not limited 
to: (1) Hours of labor required; (2) quantities of raw materials 
employed; (3) amounts of energy and other utilities consumed; and (4) 
representative capital costs.\96\
---------------------------------------------------------------------------

    \95\ See, e.g., Preliminary Determination of Sales at Less Than 
Fair Value, Affirmative Critical Circumstances, In Part, and 
Postponement of Final Determination: Certain Lined Paper Products 
From the People's Republic of China, 71 FR 19695, 19703 (April 17, 
2006), unchanged in Notice of Final Determination of Sales at Less 
Than Fair Value, and Affirmative Critical Circumstances, In Part: 
Certain Lined Paper Products From the People's Republic of China, 71 
FR 53079 (September 8, 2006).
    \96\ See section 773(c)(3)(A)-(D) of the Act.
---------------------------------------------------------------------------

Factor Valuation Methodology

    In accordance with section 773(c) of the Act, we calculated NV 
based on FOP data reported by the individually examined respondents for 
the POI. To calculate NV, we multiplied the reported per-unit factor-
consumption rates by publicly available surrogate values (except as 
discussed below). In selecting the surrogate values, we considered 
among other factors, the quality, specificity, and contemporaneity of 
the data.\97\ As

[[Page 31320]]

appropriate, we adjusted input prices by including freight costs to 
make them delivered prices. Specifically, we added a surrogate freight 
cost to surrogate input values using the shorter of the reported 
distance from the domestic supplier to the respondent's factory or the 
distance from the nearest seaport to the respondent's factory where 
appropriate. This adjustment is in accordance with the Court of Appeals 
for the Federal Circuit's decision in Sigma Corp. v. United States, 117 
F.3d 1401, 1407-08 (Fed. Cir. 1997). A detailed description of all 
surrogate values used for Wuxi Suntech and Trina Solar can be found in 
the factor valuation memorandum.\98\
---------------------------------------------------------------------------

    \97\ See, e.g., Certain New Pneumatic Off-the-Road Tires from 
the People's Republic of China: Final Affirmative Determination of 
Sales at Less Than Fair Value and Partial Affirmative Determination 
of Critical Circumstances, 73 FR 40485 (July 15, 2008), and 
accompanying Issues and Decision Memorandum at Comment 9.
    \98\ See Memorandum from Jeff Pedersen to The File regarding, 
``Antidumping Duty Investigation of Crystalline Silicon Photovoltaic 
Cells, Whether or Not Assembled into Modules, from the People's 
Republic of China: Factor Valuation Memorandum'' dated May 16, 2012 
(``Factor Valuation Memorandum'').
---------------------------------------------------------------------------

    For the preliminary determination, except as noted below, we used 
Thai import data, as reported by the Thai Customs Department and 
published by GTA, and other publicly available sources from Thailand in 
order to calculate surrogate values for Wuxi Suntech's and Trina 
Solar's FOPs (e.g., direct materials, packing materials) and certain 
movement expenses. In selecting the best available information for 
valuing FOPs in accordance with section 773(c)(1) of the Act, the 
Department's practice is to select, to the extent practicable, 
surrogate values which are non-export average values, contemporaneous 
with, or closest in time to, the POI, product-specific, and tax-
exclusive.\99\ The record shows that Thai import data obtained through 
GTA, as well as data used from other Thai sources are product-specific, 
tax-exclusive, and generally contemporaneous with the POI.\100\ In 
those instances where we could not obtain publicly available 
information contemporaneous with the POI with which to value FOPs, we 
adjusted the surrogate values using, where appropriate, the Thai 
Consumer Price Indexes as published in the IMF's International 
Financial Statistics.
---------------------------------------------------------------------------

    \99\ See, e.g., Notice of Preliminary Determination of Sales at 
Less Than Fair Value, Negative Preliminary Determination of Critical 
Circumstances and Postponement of Final Determination: Certain 
Frozen and Canned Warmwater Shrimp From the Socialist Republic of 
Vietnam, 69 FR 42672, 42682 (July 16, 2004), unchanged in Final 
Determination of Sales at Less Than Fair Value: Certain Frozen and 
Canned Warmwater Shrimp from the Socialist Republic of Vietnam, 69 
FR 71005 (December 8, 2004).
    \100\ See Factor Valuation Memorandum.
---------------------------------------------------------------------------

    In calculating Thai import-based per-unit surrogate values, we have 
disregarded import prices that we have reason to believe or suspect may 
be subsidized. Guided by the legislative history, it is the 
Department's practice not to conduct a formal investigation to ensure 
that such prices are not subsidized.\101\ Rather, the Department bases 
its decision on information that is available to it at the time it 
makes its determination.\102\ We have reason to believe or suspect that 
prices of inputs from India, Indonesia, South Korea, and Thailand may 
have been subsidized. We have found in other proceedings that these 
countries maintain broadly available, non-industry-specific export 
subsidies and, therefore, it is reasonable to infer that all exports 
from these countries to all markets may be subsidized.\103\ Therefore, 
we have not used prices from these countries in calculating Thailand's 
import-based surrogate values.
---------------------------------------------------------------------------

    \101\ See Omnibus Trade and Competitiveness Act of 1988, 
Conference Report, H.R. Rep. 100-576 at 590 (1988); see also 
Preliminary Determination of Sales at Less Than Fair Value and 
Postponement of Final Determination: Coated Free Sheet Paper from 
the People's Republic of China, 72 FR 30758, 30763 (June 4, 2007) 
unchanged in Final Determination of Sales at Less Than Fair Value: 
Coated Free Sheet Paper from the People's Republic of China, 72 FR 
60632 (October 25, 2007).
    \102\ See Polyethylene Terephthalate Film, Sheet, and Strip from 
the People's Republic of China: Preliminary Determination of Sales 
at Less Than Fair Value, 73 FR 24552, 24559 (May 5, 2008), unchanged 
in Polyethylene Terephthalate Film, Sheet, and Strip from the 
People's Republic of China: Final Determination of Sales at Less 
Than Fair Value, 73 FR 55039 (September 24, 2008).
    \103\ See Notice of Final Determination of Sales at Less Than 
Fair Value and Negative Final Determination of Critical 
Circumstances: Certain Color Television Receivers From the People's 
Republic of China, 69 FR 20594 (April 16, 2004), and accompanying 
Issues and Decision Memorandum at Comment 7; see also Carbazole 
Violet Pigment 23 from India: Final Results of the Expedited Five-
year (Sunset) Review of the Countervailing Duty Order, 75 FR 13257 
(March 19, 2010), and accompanying Issues and Decision Memorandum at 
pages 4-5; Certain Cut-to-Length Carbon-Quality Steel Plate from 
Indonesia: Final Results of Expedited Sunset Review, 70 FR 45692 
(August 8, 2005), and accompanying Issues and Decision Memorandum at 
4; Corrosion-Resistant Carbon Steel Flat Products from the Republic 
of Korea: Final Results of Countervailing Duty Administrative 
Review, 74 FR 2512 (January 15, 2009), and accompanying Issues and 
Decision Memorandum at 17, 19-20; Final Affirmative Countervailing 
Duty Determination: Certain Hot-Rolled Carbon Steel Flat Products 
from Thailand, 66 FR 50410 (October 3, 2001), and accompanying 
Issues and Decision Memorandum at II. Programs Determined to Confer 
Subsidies.
---------------------------------------------------------------------------

    Additionally, in calculating Thailand's import-based per-unit 
surrogate values, we disregarded prices from NME countries. Finally, we 
excluded from our calculation of Thailand's import-based per-unit 
surrogate values imports that were labeled as originating from an 
``unspecified'' country because the Department could not be certain 
that they were not from either an NME country or a country with general 
export subsidies.\104\
---------------------------------------------------------------------------

    \104\ See Notice of Preliminary Determination of Sales at Less 
Than Fair Value and Postponement of Final Determination: Chlorinated 
Isocyanurates From the People's Republic of China, 69 FR 75294, 
75301 (December 16, 2004), unchanged in Notice of Final 
Determination of Sales at Less Than Fair Value: Chlorinated 
Isocyanurates From the People's Republic of China, 70 FR 24502 (May 
10, 2005)
---------------------------------------------------------------------------

    To value polysilicon, we used world market prices from Photon 
Consulting and Energy Trend. We did not inflate the prices since they 
are contemporaneous with the POI.\105\
---------------------------------------------------------------------------

    \105\ See Factor Valuation Memorandum at Attachment XII.
---------------------------------------------------------------------------

    Pursuant to section 351.408(c)(1) of the Department's regulations, 
when a respondent sources inputs from an ME supplier in meaningful 
quantities (i.e., not insignificant quantities) and pays in an ME 
currency, the Department uses the actual price paid by the respondent 
to value those inputs, except when prices may have been distorted by 
findings of dumping in the PRC and/or subsidies.\106\ Where the 
Department finds ME purchases to be of significant quantities (i.e., 33 
percent or more), in accordance with our statement of policy as 
outlined in Antidumping Methodologies: Market Economy Inputs,\107\ the 
Department uses the actual purchase prices to value the inputs. Where 
the quantity of the reported input purchased from ME suppliers is below 
33 percent of the total volume of the input purchased from all sources 
during the POI, and where otherwise valid, the Department weight-
averages the ME input's purchase price with the appropriate surrogate 
value for the input according to their respective shares of the 
reported total volume of purchases.\108\
---------------------------------------------------------------------------

    \106\ See, e.g., Antidumping Duties; Countervailing Duties; 
Final Rule, 62 FR 27296, 27366 (May 19, 1997).
    \107\ See Antidumping Methodologies: Market Economy Inputs, 
Expected Non-Market Economy Wages, Duty Drawback; and Request for 
Comments, 71 FR 61716, 61717-61718 (October 19, 2006) (``Antidumping 
Methodologies: Market Economy Inputs'').
    \108\ See Antidumping Methodologies: Market Economy Inputs, 71 
FR at 61718.
---------------------------------------------------------------------------

    Wuxi Suntech and Trina Solar claimed that certain of their reported 
material inputs were sourced from an ME country and paid for in ME 
currencies. Information reported by Wuxi Suntech and Trina Solar 
demonstrates that for some of the inputs sourced from an ME country and 
paid

[[Page 31321]]

for in ME currencies the input was purchased in significant quantities 
(i.e., 33 percent or more) from ME suppliers; hence, the Department 
used each respondent's actual ME purchase prices to value those 
inputs.\109\ Where appropriate, freight expenses were added to the ME 
prices of the inputs.
---------------------------------------------------------------------------

    \109\ See id. See also Wuxi Suntech and Trina Solar Analysis 
Memoranda.
---------------------------------------------------------------------------

    On June 21, 2011, the Department revised its methodology for 
valuing the labor input in NME AD proceedings.\110\ In Labor 
Methodologies, the Department determined that the best methodology to 
value the labor input is to use industry-specific labor rates from the 
primary surrogate country. Additionally, the Department determined that 
the best data source for industry-specific labor rates is Chapter 6A: 
Labor Cost in Manufacturing, from the International Labor Organization 
(``ILO'') Yearbook of Labor Statistics (``Yearbook'').
---------------------------------------------------------------------------

    \110\ See Antidumping Methodologies in Proceedings Involving 
Non-Market Economies: Valuing the Factor of Production: Labor, 76 FR 
36092 (June 21, 2011) (``Labor Methodologies'').
---------------------------------------------------------------------------

    The Department valued labor using the methodology described in 
Labor Methodologies. Specifically, to value the respondents' labor the 
Department relied on data reported by Thailand to the ILO in Chapter 6A 
of the Yearbook for the total manufacturing wage data. Although the 
Department found that the two-digit description under ISIC-Revision 3.1 
(``Manufacture of Machinery and Equipment NEC'') is the best available 
information on the record with which to value labor because it is 
specific to the industry being examined, and is therefore derived from 
industries that produce comparable merchandise, Thailand has not 
reported data specific to the two-digit description since 2000. 
However, Thailand did report total manufacturing wage data in 2005. 
Accordingly, relying on Chapter 6A of the Yearbook, the Department 
calculated the labor value using total labor data reported by Thailand 
to the ILO in 2005, in accordance with section 773(c)(4) of the Act. 
Because these rates were in effect before the POI, we are adjusting the 
average value for inflation. A more detailed description of the wage 
rate calculation methodology is provided in the Factor Valuation 
Memorandum.
    The ILO data from Chapter 6A of the Yearbook, which was used to 
value labor, reflects all costs related to labor, including wages, and 
indirect labor costs such as benefits, housing, and training. The 
financial statements used to calculate the surrogate financial ratios 
do not include itemized details regarding the indirect labor costs 
incurred. Therefore, the Department has not made adjustments to the 
surrogate financial ratios.
    Because water was used by the respondents in the production of 
solar cells, the Department considers water to be a direct material 
input rather than overhead.\111\ We valued water using data from the 
Metropolitan Waterworks Authority as reported by the Thailand Board of 
Investment in its 2011 publication Costs of Doing Business in Thailand. 
We did not inflate this rate since it is contemporaneous with the 
POI.\112\
---------------------------------------------------------------------------

    \111\ See Final Determination of Sales at Less Than Fair Value 
and Critical Circumstances: Certain Malleable Iron Pipe Fittings 
From the People's Republic of China, 68 FR 61395 (October 28, 2003) 
and accompanying Issues and Decision Memorandum at Comment 11.
    \112\ See Factor Valuation Memorandum at Attachments VI and VII.
---------------------------------------------------------------------------

    We valued truck freight using Thai data published in the World Bank 
publication, Doing Business in Thailand. We did not inflate this rate 
since it is contemporaneous with the POI.\113\ We were unable to 
identify a surrogate value explicitly for inland water freight in 
Thailand or any other country on the surrogate country list. Thus, we 
valued inland water freight using the same surrogate value used for 
truck freight.
---------------------------------------------------------------------------

    \113\ See Factor Valuation Memorandum at Attachment VII.
---------------------------------------------------------------------------

    We valued ocean freight using rates from the Web site http://www.apx-ocean-freight.com/, which lists international ocean freight 
rates offered by APX Ocean Freight Forwarder (``APX''). The APX 
database is a web-based service which publishes the ocean freight rates 
of numerous carriers. These rates are publicly available and cover a 
wide range of shipping rates which are reported on a daily basis.
    We valued marine insurance using a marine insurance rate offered by 
RJG Consultants. RJG Consultants is an ME provider of marine insurance. 
The rate is a percentage of the value of the shipment; thus we did not 
inflate or deflate the rate.
    We valued brokerage and handling using a price list for export 
procedures necessary to export a standardized cargo of goods in 
Thailand in a 20-foot container. The price list was published in the 
World Bank publication, Doing Business in Thailand. We did not inflate 
this rate since it is contemporaneous with the POI.\114\
---------------------------------------------------------------------------

    \114\ See Factor Valuation Memorandum at Attachments VI and VII.
---------------------------------------------------------------------------

    We valued air freight using the rates published on the UPS Web 
site: http://www.ups.com. These rates are publicly available and cover 
a wide range of air routes which are reported on a daily basis.
    To value factory overhead, selling, general, and administrative 
expenses, and profit, we used audited financial statements from Team 
Precision Public Ltd., Hana Microelectronics Co., Ltd., and KCE 
Electronics Public Company Limited, producers of comparable merchandise 
in Thailand. These financial statements cover the fiscal year ending 
December 2011 and, therefore, are contemporaneous.

Currency Conversion

    Where necessary, we made currency conversions into U.S. dollars, in 
accordance with section 773A(a) of the Act, based on the exchange rates 
in effect on the dates of the U.S. sales as certified by the Federal 
Reserve Bank.

Verification

    As provided in section 782(i)(1) of the Act, we intend to verify 
the information submitted by Wuxi Suntech and Trina Solar.

Combination Rates

    In the Initiation Notice, the Department stated that it would 
calculate combination rates for the respondents that are eligible for a 
separate rate in this investigation.\115\ This practice is described in 
Policy Bulletin 05.1.\116\
---------------------------------------------------------------------------

    \115\ See Initiation Notice, 76 FR at 70964.
    \116\ See the Import Administration's Policy Bulletin No. 05.1, 
regarding, ``Separate-Rates Practice and Application of Combination 
Rates in Antidumping Investigations involving Non-Market Economy 
Countries,'' (April 5, 2005) (``Policy Bulletin 05.1''), available 
on the Department's Web site at http://ia.ita.doc.gov/policy/bull05-1.pdf.
---------------------------------------------------------------------------

Preliminary Determination

    The weighted-average dumping margins are as follows:

[[Page 31322]]



------------------------------------------------------------------------
                                                             Weighted-
            Exporter                     Producer             average
                                                          percent margin
------------------------------------------------------------------------
Changzhou Trina Solar Energy     Changzhou Trina Solar             31.14
 Co., Ltd. and Trina Solar        Energy Co., Ltd..
 (Changzhou) Science &
 Technology Co., Ltd.
                                 Trina Solar (Changzhou)
                                  Science & Technology
                                  Co., Ltd.
Wuxi Suntech Power Co., Ltd.,    Wuxi Suntech Power Co.,           31.22
 Luoyang Suntech Power Co.,       Ltd..
 Ltd., Suntech Power Co., Ltd.
 and Wuxi Sun-shine Power Co.,
 Ltd.
                                 Luoyang Suntech Power
                                  Co., Ltd.
                                 Suntech Power Co., Ltd.
                                 Wuxi Sun-shine Power
                                  Co., Ltd.
Baoding Tianwei Yingli New       Baoding Tianwei Yingli            31.18
 Energy Resources Co., Ltd..      New Energy Resources
                                  Co., Ltd..
                                 Yingli Energy (China)
                                  Company Limited.
Tianwei New Energy (Chengdu) PV  Tianwei New Energy                31.18
 Module Co., Ltd..                (Chengdu) PV Module
                                  Co., Ltd..
Canadian Solar International     Canadian Solar                    31.18
 Limited.                         Manufacturing
                                  (Changshu) Inc..
                                 Canadian Solar
                                  Manufacturing
                                  (Luoyang) Inc.
Canadian Solar Manufacturing     Canadian Solar                    31.18
 (Changshu) Inc..                 Manufacturing
                                  (Changshu), Inc..
Canadian Solar Manufacturing     Canadian Solar                    31.18
 (Luoyang) Inc..                  Manufacturing
                                  (Luoyang), Inc..
Hanwha Solarone (Qidong) Co.,    Hanwha Solarone                   31.18
 Ltd..                            (Qidong) Co., Ltd..
CEEG (Shanghai) Solar Science    CEEG (Shanghai) Solar             31.18
 Technology Co., Ltd..            Science Technology
                                  Co., Ltd..
                                 CEEG Nanjing Renewable
                                  Energy Co., Ltd.
CEEG Nanjing Renewable Energy    CEEG Nanjing Renewable            31.18
 Co., Ltd..                       Energy Co., Ltd..
Jiawei Solarchina Co., Ltd.....  Jiawei Solarchina                 31.18
                                  (Shenzhen) Co., Ltd..
Yingli Energy (China) Company    Yingli Energy (China)             31.18
 Limited.                         Company Limited.
                                 Baoding Tianwei Yingli
                                  New Energy Resources
                                  Co., Ltd.
LDK Solar Hi-tech (Nanchang)     LDK Solar Hi-tech                 31.18
 Co., Ltd..                       (Nanchang) Co., Ltd..
LDK Solar Hi-tech (Suzhou) Co.,  LDK Solar Hi-tech                 31.18
 Ltd..                            (Suzhou) Co., Ltd..
Jiawei Solarchina (Shenzhen)     Jiawei Solarchina                 31.18
 Co., Ltd..                       (Shenzhen) Co., Ltd..
Changzhou NESL Solartech Co.,    Changzhou NESL                    31.18
 Ltd..                            Solartech Co., Ltd..
China Sunergy (Nanjing) Co.,     China Sunergy (Nanjing)           31.18
 Ltd..                            Co., Ltd..
Chint Solar (Zhejiang) Co.,      Chint Solar (Zhejiang)            31.18
 Ltd..                            Co., Ltd..
Suzhou Shenglong PV-Tech Co.,    Suzhou Shenglong PV-              31.18
 Ltd..                            TECH Co., Ltd..
tenKsolar (Shanghai) Co., Ltd..  tenKsolar (Shanghai)              31.18
                                  Co., Ltd..
Upsolar Group, Co., Ltd........  HC Solar Power Co.,               31.18
                                  Ltd..
                                 Zhiheng Solar Inc......
                                 Zhejiang Leye
                                  Photovoltaic Science &
                                  Technology Co., Ltd.
                                 Tianwei New Energy
                                  (Chengdu) PV Module
                                  Co., Ltd.
                                 Zhejiang ZG-Cells Co.,
                                  Ltd.
                                 Zhejiang Xinshun
                                  Guangfu Science and
                                  Technology Co., Ltd.
                                 Zhejiang Jiutai New
                                  Energy Co., Ltd.
Wanxiang Import & Export Co.,    Zhejiang Wanxiang Solar           31.18
 Ltd..                            Co., Ltd..
Jinko Solar Import and Export    Jinko Solar Co., Ltd...           31.18
 Co., Ltd..
Jinko Solar International        Jinko Solar Co., Ltd...           31.18
 Limited.
CNPV Dongying Solar Power Co.,   CNPV Dongying Solar               31.18
 Ltd..                            Power Co., Ltd..
CSG PVTech Co., Ltd............  CSG PVTech Co., Ltd....           31.18
Delsolar Co., Ltd..............  Delsolar Co., Ltd......           31.18
Dongfang Electric (Yixing) MAGI  Dongfang Electric                 31.18
 Solar Power Technology Co.,      (Yixing) MAGl Solar
 Ltd.                             Power Technology Co.,
                                  Ltd.
Eoplly New Energy Technology     Eoplly New Energy                 31.18
 Co., Ltd..                       Technology Co., Ltd..
ERA Solar Co., Ltd.............  ERA Solar Co., Ltd.....           31.18
ET Solar Energy Limited........  ET Solar Industry                 31.18
                                  Limited.
Hangzhou Zhejiang University     Hangzhou Zhejiang                 31.18
 Sunny Energy Science and         University Sunny
 Technology Co., Ltd.             Energy Science and
                                  Technology Co., Ltd.
Himin Clean Energy Holdings      Himin Clean Energy                31.18
 Co., Ltd..                       Holdings Co., Ltd..
JA Solar Technology Yangzhou     JingAo Solar Co., Ltd..           31.18
 Co., Ltd..
Jetion Solar (China) Co., Ltd..  Jetion Solar (China)              31.18
                                  Co., Ltd..
Jiangsu Green Power PV Co.,      Jiangsu Green Power PV            31.18
 Ltd..                            Co., Ltd..
Jiangsu Sunlink PV Technology    Jiangsu Sunlink PV                31.18
 Co., Ltd..                       Technology Co., Ltd..
JingAo Solar Co., Ltd..........  JingAo Solar Co., Ltd..           31.18
Konca Solar Cell Co., Ltd......  Konca Solar Cell Co.,             31.18
                                  Ltd..
Leye Photovoltaic Co., Ltd.....  Leye Photovoltaic Co.,            31.18
                                  Ltd..
Lightway Green New Energy Co.,   Lightway Green New                31.18
 Ltd..                            Energy Co., Ltd..
Motech (Suzhou) Renewable        Motech (Suzhou)                   31.18
 Energy Co., Ltd..                Renewable Energy Co.,
                                  Ltd..
Ningbo ETDZ Holdings, Ltd......  Hangzhou Zhejiang                 31.18
                                  University Sunny
                                  Energy Science and
                                  Technology Co., Ltd.
Ningbo Komaes Solar Technology   Ningbo Komaes Solar               31.18
 Co., Ltd..                       Technology Co., Ltd..
Ningbo Qixin Solar Electrical    Ningbo Qixin Solar                31.18
 Appliance Co., Ltd..             Electrical Appliance
                                  Co., Ltd..
Ningbo Ulica Solar Science &     Ningbo Ulica Solar                31.18
 Technology Co., Ltd..            Science & Technology
                                  Co., Ltd..
Perlight Solar Co., Ltd........  Perlight Solar Co.,               31.18
                                  Ltd..
Risen Energy Co., Ltd..........  Risen Energy Co., Ltd..           31.18
Shanghai BYD Company Limited...  Shanghai BYD Company              31.18
                                  Limited.
Shanghai JA Solar Technology     Shanghai JA Solar                 31.18
 Co., Ltd..                       Technology Co., Ltd..
Shanghai Solar Energy Science &  Shanghai Solar Energy             31.18
 Technology Co., Ltd..            Science & Technology
                                  Co., Ltd..
Shenzhen Topray Solar Co., Ltd.  Shenzhen Topray Solar             31.18
                                  Co., Ltd..

[[Page 31323]]

 
Solarbest Energy-Tech            Solarbest Energy-Tech             31.18
 (Zhejiang) Co., Ltd..            (Zhejiang) Co., Ltd..
Sopray Energy Co., Ltd.........  Sopray Energy Co., Ltd.           31.18
Sumec Hardware & Tools Co.,      Phono Solar Technology            31.18
 Ltd..                            Co., Ltd..
Sun Earth Solar Power Co., Ltd.  Sun Earth Solar Power             31.18
                                  Co., Ltd..
Yuhuan Sinosola Science &        Yuhuan Sinosola Science           31.18
 Technology Co., Ltd..            & Technology Co., Ltd..
Yuhuan Solar Energy Source Co.,  Yuhuan Solar Energy               31.18
 Ltd..                            Source Co., Ltd..
Zhejiang Jiutai New Energy Co.,  Zhejiang Topoint                  31.18
 Ltd..                            Photovoltaic Co., Ltd..
Zhejiang Shuqimeng Photovoltaic  Zhejiang Shuqimeng                31.18
 Technology Co., Ltd..            Photovoltaic
                                  Technology Co., Ltd..
Zhejiang Sunflower Light Energy  Zhejiang Sunflower                31.18
 Science & Technology Limited     Light Energy Science &
 Liability Company.               Technology Limited
                                  Liability Company.
PRC-Wide Rate..................                                   249.96
------------------------------------------------------------------------

Disclosure

    We will disclose to parties the calculations performed in this 
investigation within five days of the date of pub`lication of this 
notice in accordance with section 351.224(b) of the Department's 
regulations.

Suspension of Liquidation

    As noted above, the Department found that critical circumstances 
exist with respect to imports of merchandise under consideration from 
Wuxi Suntech, Trina Solar, the SR Recipients, and the PRC-wide entity. 
Therefore, in accordance with section 733(e)(2) of the Act, we will 
instruct U.S. Customs and Border Protection (``CBP'') to suspend 
liquidation of all entries of merchandise under consideration from Wuxi 
Suntech, Trina Solar, the SR Recipients, and the PRC-wide entity that 
are entered, or withdrawn from warehouse, for consumption on or after 
the date 90 days prior to the date of publication of this notice in the 
Federal Register and require a cash deposit or bond for such entries as 
noted below.
    We will instruct CBP to require a cash deposit or the posting of a 
bond equal to the weighted-average amount by which NV 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 preliminary 
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.
    If importers are attempting to import solar panels/modules with 
solar cells produced in the PRC from third-countries without third-
country case numbers related to this order, the importers should 
contact CBP Headquarters immediately.
    In the companion CVD investigation, the Department preliminarily 
determined that the products under investigation exported by Trina 
Solar benefitted from an export subsidy.\117\ Therefore, for 
merchandise under consideration exported by the Trina Solar, we will 
instruct CBP to reduce Trina Solar's cash deposit rate by the export 
subsidy rate determined for Trina Solar. Because the ``all-others'' 
rate in the companion CVD investigation included an export subsidy rate 
of less than 0.005 percent, we have not adjusted the separate-rate 
companies' cash deposit rate for export subsidies. None of the separate 
rate companies in the instant investigation were selected as 
respondents in the CVD investigation. These cash deposit instructions 
will remain in effect until further notice.
---------------------------------------------------------------------------

    \117\ 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, 17453-17454 (March 26, 2012).
---------------------------------------------------------------------------

Certification Requirements

    As noted above, the Department has clarified the scope of both the 
AD and CVD investigations of solar cells by stating that modules, 
laminates, and panels produced in a third-country from solar cells 
produced in the PRC are covered by the investigations; 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 the attachment to this notice. 
The importer and exporter are also required to maintain the exporter 
certification in the attachment 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.\118\
---------------------------------------------------------------------------

    \118\ 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 concurrently with this 
notice.
---------------------------------------------------------------------------

International Trade Commission Notification

    In accordance with section 733(f) of the Act, we have notified the 
ITC of our preliminary affirmative determination of sales at LTFV. 
Section 735(b)(2) of the Act requires the ITC to make its final 
determination as to whether the domestic industry in the United States 
is materially injured, or threatened with material injury, by reason of 
imports of solar cells, or sales (or the likelihood of sales) for 
importation, of the merchandise under consideration

[[Page 31324]]

within 45 days of our final determination.

Public Comment

    Case briefs or other written comments may be submitted to the 
Department no later than seven days after the date on which the final 
verification report is issued in this proceeding, and rebuttal briefs, 
limited to issues raised in case briefs, may be submitted no later than 
five days after the deadline for case briefs.\119\ A table of contents, 
list of authorities used, and an executive summary of issues should 
accompany any briefs submitted to the Department. The executive summary 
should be limited to five pages total, including footnotes.
---------------------------------------------------------------------------

    \119\ See section 351.309(c)(1)(i) and (d) of the Department's 
regulations.
---------------------------------------------------------------------------

    In accordance with section 774 of the Act, we will hold a public 
hearing, if requested, to afford interested parties an opportunity to 
comment on arguments raised in case or rebuttal briefs. Interested 
parties, who wish to request a hearing, or to participate if one is 
requested, must submit a written request to the Assistant Secretary for 
Import Administration, U.S. Department of Commerce, filed 
electronically using Import Administration's Antidumping and 
Countervailing Duty Centralized Electronic Service System (``IA 
ACCESS''). An electronically filed document must be received 
successfully in its entirety by the Department's electronic records 
system, IA ACCESS, by 5:00 p.m. Eastern Standard Time, within 30 days 
after the date of publication of this notice.\120\ Requests should 
contain the party's name, address, and telephone number, the number of 
participants, and a list of the issues to be discussed. If a request 
for a hearing is made, we intend to hold the hearing at the U.S. 
Department of Commerce, 14th Street and Constitution Avenue NW, 
Washington, DC 20230, at a time and location to be determined. Parties 
should confirm by telephone the date, time, and location of the hearing 
two days before the scheduled date.
---------------------------------------------------------------------------

    \120\ See section 351.310(c) of the Department's regulations.
---------------------------------------------------------------------------

Postponement of Final Determination and Extension of Provisional 
Measures

    Pursuant to section 735(a)(2) of the Act, on March 29, 2012 and 
March 30, 2012, we received requests from Wuxi Suntech and Trina Solar, 
respectively, that the Department postpone its final determination by 
60 days.\121\ Additionally, consistent with section 351.210(e)(2) of 
the Department's regulations, Wuxi Suntech and Trina Solar requested 
that the Department extend the application of the provisional measures 
from a 4-month period to a 6-month period. In accordance with section 
735(a) of the Act and section 351.210(b) of the Department's 
regulations, we are granting the requests and are postponing the final 
determination until no later than 135 days after the publication of 
this notice in the Federal Register because: (1) Our preliminary 
determination is affirmative; (2) the requesting exporters account for 
a significant proportion of exports of the merchandise under 
consideration; and (3) no compelling reasons for denial exist. 
Suspension of liquidation will be extended accordingly. We are further 
extending the application of the provisional measures from a four-month 
period to a six-month period.
---------------------------------------------------------------------------

    \121\ See Letter from Wuxi Suntech to the Department, regarding 
``Crystalline Silicon Photovoltaic Cells from the People's Republic 
of China: Request to Postpone Final Determination,'' dated March 29, 
2012; see also Letter from Trina Solar to the Department, regarding 
``Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled 
into Modules, from the People's Republic of China; Extend Final 
Determination,'' dated March 30, 2012.
---------------------------------------------------------------------------

    This determination is issued and published in accordance with 
sections 733(f) and 777(i)(1) of the Act.

    Dated: May 16, 2012.
Paul Piquado,
Assistant Secretary for Import Administration.

 Attachment I

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 
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.
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
Name of Company Official

-----------------------------------------------------------------------
Title

-----------------------------------------------------------------------
Date

[FR Doc. 2012-12798 Filed 5-24-12; 8:45 am]
BILLING CODE 3510-DS-P