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, 31309-31324 [2012-12798]
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Federal Register / Vol. 77, No. 102 / Friday, May 25, 2012 / Notices
Dated: May 22, 2012.
Andrew McGilvray,
Executive Secretary.
[FR Doc. 2012–12805 Filed 5–24–12; 8:45 am]
BILLING CODE P
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
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:
AGENCY:
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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
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’’).
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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
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
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’’).
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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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.
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
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
7 See
Initiation Notice, 76 FR at 70960—70961.
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’’).
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.
8 See
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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.
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
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
In the Initiation Notice, the
Department notified parties that in order
to obtain separate rate status in this
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.
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.
13 See Crystalline Silicon Photovoltaic Cells and
Modules From China, 76 FR 78313 (December 16,
2011).
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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 HiTech (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.
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
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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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
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
Scope of the Investigation18
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
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).
17 See 19 CFR 351.204(b)(1).
18 See Scope Clarification Memorandum.
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to, modules, laminates, panels,
building-integrated modules, buildingintegrated 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
10,000mm2 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 thirdcountry 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.
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
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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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
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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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).
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.
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
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).
22 See, e.g., Notice of Final Determination of Sales
at Less Than Fair Value and Affirmative Critical
Circumstances Determination: Bottom Mount
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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 adversefacts-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
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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17:55 May 24, 2012
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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.
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.
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
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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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.
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
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.
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
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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
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 PRCwide 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.
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
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In every case conducted by the
Department involving the PRC, the PRC
has been treated as a non-market
economy (‘‘NME’’) country.32 Moreover,
concurrently with this notice (‘‘Preliminary Critical
Circumstances Memorandum’’).
30 See Preliminary Critical Circumstances
Memorandum.
31 See, e.g., section 776(a)(1) of the Act.
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:
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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.
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
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).
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.
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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.
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
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
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
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.
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).
38 See id., 76 FR at 67708–67709.
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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.
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 dutyexclusive, 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
mstockstill on DSK4VPTVN1PROD with NOTICES
39 See
Volume I of the Petition at Exhibit I–10.
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.
40 See
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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
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 averageto-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.
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-fromthe-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.
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.
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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 twostage test; the first stage addresses the
pattern requirement and the second
stage addresses the significantdifference 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.
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-toaverage methodology because, based on
the data before us, the average-toaverage 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
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.
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
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Single Entity Treatment
mstockstill on DSK4VPTVN1PROD with NOTICES
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
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
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.
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).
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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.
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.
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
56 See
sections 771(33)(E)–(G) of the Act.
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.
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 SunShine Power Co., Ltd.,’’ dated May 16, 2012.
57 See
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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.
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.
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
61 See section 351.401(f)(1) of the Department’s
regulations.
62 See section 351.401(f)(2) of the Department’s
regulations.
63 See Initiation Notice, 76 FR at 70964.
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.
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determine whether it is independent
from government control.
A. Separate Rate Recipients 68
Joint Ventures Between Chinese and
Foreign Companies or Wholly ChineseOwned 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.
mstockstill on DSK4VPTVN1PROD with NOTICES
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
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 Stateowned 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
68 All separate rate applicants receiving a separate
rate are hereby referred to collectively as the ‘‘SR
Recipients,’’ including the mandatory respondents.
69 See Sparklers, 56 FR at 20589.
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’’).
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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.
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.’’
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
71 See
72 See
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id.
Frm 00027
Fmt 4703
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structure of a state-owned sector, there
is nothing on the record to indicate that
SASAC’s reach extends to such day-today activities as export pricing.
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
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.
Each of the SR Recipients have
asserted the following: (1) Their EPs are
73 See, e.g., Freshwater Crawfish Tail Meat From
the People’s Republic of China: Preliminary Results
of Antidumping Duty Administrative and NewShipper 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 NewShipper Reviews, 75 FR 79337 (December 20, 2010).
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).
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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 separaterate 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.
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
75 See
Petitioner Separate Rate Comments at 37.
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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
76 See
Initiation Notice, 76 FR at 70964.
‘‘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.
77 See
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31317
response to the Department’s
supplemental separate rate
questionnaire.
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.
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
78 See Respondent Selection Memorandum. The
Department also posted a copy of the Q&V
questionnaire on its Web site.
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
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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.
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.
Critical Circumstances: Certain Frozen Fish Fillets
from the Socialist Republic of Vietnam, 68 FR
37116 (June 23, 2003).
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’’)).
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.
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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
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.
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.
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
84 See
SAA at 870.
id.
86 See id.
87 See Wuxi Suntech and Trina Solar Analysis
Memoranda.
85 See
PO 00000
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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.
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
Sales during the POI were made
pursuant to short-term contracts, longterm 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 shortterm contracts do not change; and (3)
the sample documents purportedly
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.
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.
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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
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.
Fair Value Comparisons
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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.
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.
93 See Allied Tube & Conduit Corp. v. United
States, 132 F. Supp. 2d 1087, 1090 (CIT 2001).
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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,
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31319
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.
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
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
94 See ‘‘Factor Valuation’’ section below for
further discussion of surrogate value rates.
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.
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
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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
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, taxexclusive, 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
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’’).
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.
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Jkt 226001
Indexes as published in the IMF’s
International Financial Statistics.
In calculating Thai import-based perunit 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.
Additionally, in calculating
Thailand’s import-based per-unit
surrogate values, we disregarded prices
from NME countries. Finally, we
excluded from our calculation of
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 HotRolled 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.
PO 00000
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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
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
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
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
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)
105 See Factor Valuation Memorandum at
Attachment XII.
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.
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mstockstill on DSK4VPTVN1PROD with NOTICES
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.
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 industryspecific 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’’).
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
109 See id. See also Wuxi Suntech and Trina Solar
Analysis Memoranda.
110 See Antidumping Methodologies in
Proceedings Involving Non-Market Economies:
Valuing the Factor of Production: Labor, 76 FR
36092 (June 21, 2011) (‘‘Labor Methodologies’’).
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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
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.
We valued ocean freight using rates
from the Web site http://www.apxocean-freight.com/, which lists
international ocean freight rates offered
by APX Ocean Freight Forwarder
(‘‘APX’’). The APX database is a webbased 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
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.
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.
113 See Factor Valuation Memorandum at
Attachment VII.
114 See Factor Valuation Memorandum at
Attachments VI and VII.
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.
PO 00000
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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
Preliminary Determination
The weighted-average dumping
margins are as follows:
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Federal Register / Vol. 77, No. 102 / Friday, May 25, 2012 / Notices
Weightedaverage
percent margin
Exporter
Producer
Changzhou Trina Solar Energy Co., Ltd. and Trina Solar
(Changzhou) Science & Technology Co., Ltd.
Changzhou Trina Solar Energy Co., Ltd. ..................................
31.14
Trina Solar (Changzhou) Science & Technology Co., Ltd.
Wuxi Suntech Power Co., Ltd. ..................................................
31.22
Wuxi Suntech Power Co., Ltd., Luoyang Suntech Power Co.,
Ltd., Suntech Power Co., Ltd. and Wuxi Sun-shine Power
Co., Ltd.
Baoding Tianwei Yingli New Energy Resources Co., Ltd. .........
Tianwei New Energy (Chengdu) PV Module Co., Ltd. ...............
Canadian Solar International Limited .........................................
Canadian Solar Manufacturing (Changshu) Inc. ........................
Canadian Solar Manufacturing (Luoyang) Inc. ...........................
Hanwha Solarone (Qidong) Co., Ltd. .........................................
CEEG (Shanghai) Solar Science Technology Co., Ltd. .............
CEEG Nanjing Renewable Energy Co., Ltd. ..............................
Jiawei Solarchina Co., Ltd. .........................................................
Yingli Energy (China) Company Limited ....................................
LDK Solar Hi-tech (Nanchang) Co., Ltd. ....................................
LDK Solar Hi-tech (Suzhou) Co., Ltd. ........................................
Jiawei Solarchina (Shenzhen) Co., Ltd. .....................................
Changzhou NESL Solartech Co., Ltd. ........................................
China Sunergy (Nanjing) Co., Ltd. .............................................
Chint Solar (Zhejiang) Co., Ltd. ..................................................
Suzhou Shenglong PV–Tech Co., Ltd. .......................................
tenKsolar (Shanghai) Co., Ltd. ...................................................
Upsolar Group, Co., Ltd. .............................................................
mstockstill on DSK4VPTVN1PROD with NOTICES
Wanxiang Import & Export Co., Ltd. ...........................................
Jinko Solar Import and Export Co., Ltd. .....................................
Jinko Solar International Limited ................................................
CNPV Dongying Solar Power Co., Ltd. ......................................
CSG PVTech Co., Ltd. ...............................................................
Delsolar Co., Ltd. ........................................................................
Dongfang Electric (Yixing) MAGI Solar Power Technology Co.,
Ltd.
Eoplly New Energy Technology Co., Ltd. ...................................
ERA Solar Co., Ltd. ....................................................................
ET Solar Energy Limited .............................................................
Hangzhou Zhejiang University Sunny Energy Science and
Technology Co., Ltd.
Himin Clean Energy Holdings Co., Ltd. ......................................
JA Solar Technology Yangzhou Co., Ltd. ..................................
Jetion Solar (China) Co., Ltd. .....................................................
Jiangsu Green Power PV Co., Ltd. ............................................
Jiangsu Sunlink PV Technology Co., Ltd. ..................................
JingAo Solar Co., Ltd. .................................................................
Konca Solar Cell Co., Ltd. ..........................................................
Leye Photovoltaic Co., Ltd. .........................................................
Lightway Green New Energy Co., Ltd. .......................................
Motech (Suzhou) Renewable Energy Co., Ltd. ..........................
Ningbo ETDZ Holdings, Ltd. .......................................................
Ningbo Komaes Solar Technology Co., Ltd. ..............................
Ningbo Qixin Solar Electrical Appliance Co., Ltd. ......................
Ningbo Ulica Solar Science & Technology Co., Ltd. ..................
Perlight Solar Co., Ltd. ...............................................................
Risen Energy Co., Ltd. ...............................................................
Shanghai BYD Company Limited ...............................................
Shanghai JA Solar Technology Co., Ltd. ...................................
Shanghai Solar Energy Science & Technology Co., Ltd. ..........
Shenzhen Topray Solar Co., Ltd. ...............................................
VerDate Mar<15>2010
18:06 May 24, 2012
Jkt 226001
PO 00000
Frm 00033
Luoyang Suntech Power Co., Ltd.
Suntech Power Co., Ltd.
Wuxi Sun-shine Power Co., Ltd.
Baoding Tianwei Yingli New Energy Resources Co., Ltd. ........
Yingli Energy (China) Company Limited.
Tianwei New Energy (Chengdu) PV Module Co., Ltd. ..............
Canadian Solar Manufacturing (Changshu) Inc. .......................
Canadian Solar Manufacturing (Luoyang) Inc.
Canadian Solar Manufacturing (Changshu), Inc. ......................
Canadian Solar Manufacturing (Luoyang), Inc. .........................
Hanwha Solarone (Qidong) Co., Ltd. ........................................
CEEG (Shanghai) Solar Science Technology Co., Ltd. ............
CEEG Nanjing Renewable Energy Co., Ltd.
CEEG Nanjing Renewable Energy Co., Ltd. .............................
Jiawei Solarchina (Shenzhen) Co., Ltd. ....................................
Yingli Energy (China) Company Limited ...................................
Baoding Tianwei Yingli New Energy Resources Co., Ltd.
LDK Solar Hi-tech (Nanchang) Co., Ltd. ...................................
LDK Solar Hi-tech (Suzhou) Co., Ltd. .......................................
Jiawei Solarchina (Shenzhen) Co., Ltd. ....................................
Changzhou NESL Solartech Co., Ltd. .......................................
China Sunergy (Nanjing) Co., Ltd. ............................................
Chint Solar (Zhejiang) Co., Ltd. .................................................
Suzhou Shenglong PV–TECH Co., Ltd. ....................................
tenKsolar (Shanghai) Co., Ltd. ..................................................
HC Solar Power Co., 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.
Zhejiang Wanxiang Solar Co., Ltd. ............................................
Jinko Solar Co., Ltd. ..................................................................
Jinko Solar Co., Ltd. ..................................................................
CNPV Dongying Solar Power Co., Ltd. .....................................
CSG PVTech Co., Ltd. ..............................................................
Delsolar Co., Ltd. .......................................................................
Dongfang Electric (Yixing) MAGl Solar Power Technology Co.,
Ltd.
Eoplly New Energy Technology Co., Ltd. ..................................
ERA Solar Co., Ltd. ...................................................................
ET Solar Industry Limited ..........................................................
Hangzhou Zhejiang University Sunny Energy Science and
Technology Co., Ltd.
Himin Clean Energy Holdings Co., Ltd. .....................................
JingAo Solar Co., Ltd. ................................................................
Jetion Solar (China) Co., Ltd. ....................................................
Jiangsu Green Power PV Co., Ltd. ...........................................
Jiangsu Sunlink PV Technology Co., Ltd. .................................
JingAo Solar Co., Ltd. ................................................................
Konca Solar Cell Co., Ltd. .........................................................
Leye Photovoltaic Co., Ltd. ........................................................
Lightway Green New Energy Co., Ltd. ......................................
Motech (Suzhou) Renewable Energy Co., Ltd. .........................
Hangzhou Zhejiang University Sunny Energy Science and
Technology Co., Ltd.
Ningbo Komaes Solar Technology Co., Ltd. .............................
Ningbo Qixin Solar Electrical Appliance Co., Ltd. .....................
Ningbo Ulica Solar Science & Technology Co., Ltd. .................
Perlight Solar Co., Ltd. ..............................................................
Risen Energy Co., Ltd. ..............................................................
Shanghai BYD Company Limited ..............................................
Shanghai JA Solar Technology Co., Ltd. ..................................
Shanghai Solar Energy Science & Technology Co., Ltd. .........
Shenzhen Topray Solar Co., Ltd. ..............................................
Fmt 4703
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E:\FR\FM\25MYN1.SGM
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Federal Register / Vol. 77, No. 102 / Friday, May 25, 2012 / Notices
Weightedaverage
percent margin
Exporter
Producer
Solarbest Energy-Tech (Zhejiang) Co., Ltd. ...............................
Sopray Energy Co., Ltd. .............................................................
Sumec Hardware & Tools Co., Ltd. ............................................
Sun Earth Solar Power Co., Ltd. ................................................
Yuhuan Sinosola Science & Technology Co., Ltd. ....................
Yuhuan Solar Energy Source Co., Ltd. ......................................
Zhejiang Jiutai New Energy Co., Ltd. .........................................
Zhejiang Shuqimeng Photovoltaic Technology Co., Ltd. ...........
Zhejiang Sunflower Light Energy Science & Technology Limited Liability Company.
PRC–Wide Rate ..........................................................................
Solarbest Energy-Tech (Zhejiang) Co., Ltd. ..............................
Sopray Energy Co., Ltd. ............................................................
Phono Solar Technology Co., Ltd. ............................................
Sun Earth Solar Power Co., Ltd. ...............................................
Yuhuan Sinosola Science & Technology Co., Ltd. ...................
Yuhuan Solar Energy Source Co., Ltd. .....................................
Zhejiang Topoint Photovoltaic Co., Ltd. ....................................
Zhejiang Shuqimeng Photovoltaic Technology Co., Ltd. ..........
Zhejiang Sunflower Light Energy Science & Technology Limited Liability Company.
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.
mstockstill on DSK4VPTVN1PROD with NOTICES
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 PRCwide 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 thirdcountries without third-country case
VerDate Mar<15>2010
18:06 May 24, 2012
Jkt 226001
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
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).
Frm 00034
31.18
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249.96
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.
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Fmt 4703
Sfmt 4703
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
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
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.
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31324
Federal Register / Vol. 77, No. 102 / Friday, May 25, 2012 / Notices
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.
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.
mstockstill on DSK4VPTVN1PROD with NOTICES
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
119 See
section 351.309(c)(1)(i) and (d) of the
Department’s regulations.
120 See section 351.310(c) of the Department’s
regulations.
121 See Letter from Wuxi Suntech to the
Department, regarding ‘‘Crystalline Silicon
VerDate Mar<15>2010
19:45 May 24, 2012
Jkt 226001
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.
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
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.
PO 00000
Frm 00035
Fmt 4703
Sfmt 4703
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.
lllllllllllllllllllll
Name of Company Official
lllllllllllllllllllll
Title
lllllllllllllllllllll
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.
lllllllllllllllllllll
Name of Company Official
lllllllllllllllllllll
Title
lllllllllllllllllllll
Date
[FR Doc. 2012–12798 Filed 5–24–12; 8:45 am]
BILLING CODE 3510–DS–P
E:\FR\FM\25MYN1.SGM
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]]>Agencies
[Federal Register Volume 77, Number 102 (Friday, May 25, 2012)]
[Notices]
[Pages 31309-31324]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-12798]
-----------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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'').
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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'').
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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'').
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\13\ See Crystalline Silicon Photovoltaic Cells and Modules From
China, 76 FR 78313 (December 16, 2011).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\17\ See 19 CFR 351.204(b)(1).
---------------------------------------------------------------------------
Scope of the Investigation\18\
---------------------------------------------------------------------------
\18\ See Scope Clarification Memorandum.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------
\20\ See Petition at Volume IV, ``Information Relating to the
People's Republic of China--Critical Circumstances,'' dated October
19, 2011.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.
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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\
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\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.
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[[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\
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\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.
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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.
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Name of Company Official
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Title
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Date
Exporter Certification
I hereby certify that I am an official of insert name of company
exporting solar panels/modules, that I have knowledge of the facts
regarding the exportation of the solar panels/modules or other
products containing solar panels/modules identified below, and that
these solar panels/modules do not contain solar cells produced in
the People's Republic of China. By signing this certificate, I also
hereby certify that insert name of company exporting solar panels/
modules maintains sufficient documentation supporting this
certification for all solar cells used to produce the solar panels/
modules identified below. I am aware that records pertaining to this
certification may be subject to verification by Department of
Commerce officials and I consent to verification with respect to
this certification and these records. I understand that this
certification should be completed at the time of shipment. I also
understand that failure to maintain the required certification or
failure to substantiate the claim that the panels/modules do not
contain solar cells produced in the People's Republic of China will
result in suspension of all unliquidated entries for which these
requirements were not met and the requirement that the importer post
an AD cash deposit or, where applicable, a bond, on those entries
equal to the PRC-wide rate in effect at the time of the entry and a
CVD cash deposit, or where applicable, a bond rate equal to the all-
others rate in effect at the time of the entry.
The exports covered by this certification are insert invoice
numbers, purchase order numbers, export documentation, etc. to
identify the exports covered by the certification.
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Name of Company Official
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Title
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Date
[FR Doc. 2012-12798 Filed 5-24-12; 8:45 am]
BILLING CODE 3510-DS-P
