Daily Rules, Proposed Rules, and Notices of the Federal Government
The Department published its
Between May 28, 2012 and June 25, 2012, the Department conducted verifications of the mandatory respondents Wuxi Suntech Power Co. Ltd., Suntech America, Inc., Suntech Arizona, Inc. (collectively, “Wuxi Suntech”), Changzhou Trina Solar Energy Co., Ltd. (“Trina”), and certain of their affiliates.
Between July 9, 2012, and July 26, 2012, Wuxi Suntech, Trina, and Petitioner submitted surrogate value and rebuttal surrogate value comments.
On July 24, 2012, and July 23, 2012, respectively, Wuxi Suntech and Trina submitted revised U.S. sales and FOP databases per the Department's request to provide updated databases reflecting the results of verification.
On July 30, 2012, Wuxi Suntech Power Co., Ltd., Trina, SolarWorld Industries America, Inc. (“Petitioner”), Yingli Green Energy Holding Company Limited and Yingli Green Energy Americas, Inc. (collectively, “Yingli”), Jiangsu Jiasheng Photovoltaic Technology Co., Ltd. (“Jiasheng”), Shanghai Chaori Solar Energy Science & Technology Co., Ltd. and Shanghai Chaori International Trading Corporation Ltd. (collectively, “Chaori”), and the Government of China (“GOC”) submitted case briefs. On July 31, 2012, Small Steps Solar, Ltd. submitted a case brief, which the Department rejected because it was untimely filed.
On June 25, 2012, Wuxi Suntech, Trina, Petitioner, and Yingli requested a hearing. Based on these hearing requests, on August 14, 2012, the Department held a public hearing limited to issues raised in case briefs and rebuttal briefs.
On September 7, 2012, Petitioner requested that the Department re-open the record to consider new recently available public information which indicates that Wuxi Suntech submitted potentially fraudulent financial statements to the Department.
The period of investigation (“POI”) is April 1, 2011, through September 30, 2011. This period corresponds to the two most recent fiscal quarters prior to the month of the filing of the petition, which was October 2012.
All issues raised in the case and rebuttal briefs by parties to this investigation, as well as comments received pursuant to the Department's requests are addressed in the Issues and Decisions Memorandum. A list of the issues which the parties raised and to which the Department responded in the Issues and Decision Memorandum is attached to this notice as Appendix I. The Issues and Decision Memorandum is a public document and is on file electronically via Import Administration's Antidumping and Countervailing Duty Centralized Electronic Service System (IA ACCESS). IA ACCESS is available to registered users at
• Updated surrogate values for certain direct materials.
• Used an additional financial statement to calculate surrogate financial ratios.
• Excluded all purchases of inputs from suppliers located in South Korea from the calculation of Wuxi Suntech's weighted-average market economy purchase prices.
• Accepted the minor corrections submitted by Wuxi Suntech at verification and calculated its final margin using the revised sales and FOP databases that reflect these minor corrections.
• Adjusted Wuxi Suntech's claimed offset for broken wafers based on verification findings.
• Adjusted cell consumption based on verification findings.
• Valued two additional FOP based on verification findings and post-preliminary submissions.
• Excluded two FOP based on a determination that these inputs are properly classified as overhead items.
• Treated certain silicon wafers reportedly obtained from tollers as silicon wafer purchases.
• Classified Wuxi Suntech's recycled silicon input as a direct material and its recycled silicon byproduct as an offset.
• Excluded certain transactions from the final margin calculations.
• Revised Wuxi Suntech's indirect selling expenses and applied them to a price that is net of certain adjustments.
• Revised warranty expenses.
• Revised the net price calculation based on verification findings to account for additional expenses and revenue items.
• Revised the unit-of-measure conversion factor used to value one input based on verification findings.
• Uncapped certain per-unit expense amounts.
• Found that critical circumstances do not exist with respect to Wuxi Suntech.
• Calculated Trina's dumping margin using the invoice or rated quantity in watts rather than the maximum rated quantity in watts.
• Updated warranty expenses, rebates, and other minor corrections based on verification findings.
• Valued Trina's back sheets using Thai imports under the HTS categories that correspond to the primary materials which comprise the back sheet.
• Excluded two inputs that would be classified as overhead in the calculation of surrogate financial ratios.
• Did not apply the
• Updated the surrogate values for ocean freight and applied them to all sales on which Trina paid ocean freight.
For detailed information concerning all of the changes made, including those listed above, see the company-specific analysis and surrogate value memoranda.
The merchandise covered by this investigation is crystalline silicon photovoltaic cells, and modules, laminates, and panels, consisting of crystalline silicon photovoltaic cells, whether or not partially or fully assembled into other products, including, but not limited to, modules, laminates, panels and building integrated materials.
This investigation covers crystalline silicon photovoltaic cells of thickness equal to or greater than 20 micrometers, having a p/n junction formed by any means, whether or not the cell has undergone other processing, including, but not limited to, cleaning, etching, coating, and/or addition of materials (including, but not limited to, metallization and conductor patterns) to collect and forward the electricity that is generated by the cell.
Merchandise under consideration may be described at the time of importation as parts for final finished products that are assembled after importation, including, but not limited to, modules, laminates, panels, building-integrated modules, building-integrated panels, or other finished goods kits. Such parts that otherwise meet the definition of merchandise under consideration are included in the scope of this investigation.
Excluded from the scope of this investigation are thin film photovoltaic products produced from amorphous silicon (a-Si), cadmium telluride (CdTe), or copper indium gallium selenide (CIGS).
Also excluded from the scope of this investigation are crystalline silicon photovoltaic cells, not exceeding 10,000mm
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.
The Department received comments regarding the scope of the investigation from a number of interested parties. After analyzing the comments, the Department has made no changes to the scope of this investigation. For a complete discussion of scope issues,
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.
As a result of our analysis, we have determined that for both Wuxi Suntech and Trina there is a pattern of prices for U.S. sales of comparable merchandise that differ significantly among certain purchasers, regions, and time periods in accordance with section 777A(d)(1)(B)(i) of the Act and our practice, as discussed in
As provided in section 782(i) of the Act, the Department verified the information submitted by Wuxi Suntech and Trina for use in the final determination. The Department used standard verification procedures, including examination of relevant accounting and production records and original source documents provided by the respondents.
The Department considers the PRC to be a nonmarket economy (“NME”) country. In accordance with section 771(18)(C)(i) of the Act, any determination that a foreign country is an NME country shall remain in effect until revoked by the administering authority. The Department continues to treat the PRC as an NME for purposes of this final determination.
In proceedings involving NME countries, the Department holds a rebuttable presumption that all companies within the country are subject to government control and, thus, should be assessed a single antidumping duty rate. It is the Department's policy to assign all exporters of the subject merchandise in an NME country this single rate unless an exporter can demonstrate that it is sufficiently independent so as to be entitled to a separate rate.
In the instant investigation, the Department received timely-filed separate rate applications from 68 companies (“Separate Rate Applicants”). Interested parties have submitted a number of comments regarding some of the companies applying for separate rate status. After considering the comments, the Department has not changed its position from the
The Department continues to find that the evidence placed on the record of this investigation by the Separate Rate Applicants that were granted separate rate status in the
The separate rate is normally determined based on the weighted-average of the estimated dumping margins established for exporters and producers individually investigated, excluding zero and
Section 776(a) of the Act provides that the Department shall apply facts available (“FA”) if (1) necessary information is not on the record, or (2) an interested party or any other person (A) withholds information that has been requested, (B) fails to provide information within the deadlines established, or in the form and manner requested by the Department, subject to subsections (c)(1) and (e) of section 782 of the Act, (C) significantly impedes a proceeding, or (D) provides information that cannot be verified as provided by section 782(i) of the Act.
Section 776(b) of the Act further provides that the Department may use an adverse inference in applying FA when a party has failed to cooperate by not acting to the best of its ability to comply with a request for information. Such an adverse inference may include reliance on information derived from the petition, the final determination, a previous administrative review, or other information placed on the record.
The Department determines that, because the PRC-wide entity did not respond to our request for information, the PRC-wide entity has failed to cooperate to the best of its ability. Therefore, pursuant to section 776(b) of the Act, the Department finds that, in selecting from among the FA, an adverse inference is appropriate for the PRC-wide entity.
Because the Department begins with the presumption that all companies within an NME country are subject to government control, and because only the mandatory respondents and certain Separate Rate Applicants have overcome that presumption, the Department is applying a single antidumping rate to all other exporters of subject merchandise from the PRC. Such companies have not demonstrated entitlement to a separate rate.
In determining a rate for AFA, the Department's practice is to select a rate that is sufficiently adverse “as to effectuate the purpose of the adverse
The dumping margin for the PRC-wide entity applies to all entries of the merchandise under investigation except for entries of merchandise under investigation from the exporter/producer combinations listed in the chart in the “Final Determination” section below.
The Department determines that the following weighted-average dumping margins exist for the period April 1, 2011, through September 30, 2011.
We intend to disclose to parties the calculations performed in this proceeding within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b).
As noted above, the Department found that critical circumstances exist with respect to imports of merchandise under consideration from Trina, the Separate Rate Recipients (“SR Recipients”), and the PRC-wide entity. In accordance with section 735(c)(1)(B) of the Act, the Department will instruct CBP to continue to suspend liquidation of all appropriate entries of subject merchandise, as described in the “Scope of Investigation” section of this notice, from Trina, the SR Recipients, and the PRC-wide entity that were entered, or withdrawn from warehouse for consumption on or after the date 90 days prior of the publication of the
Further, the Department will instruct CBP to require a cash-deposit or the posting of a bond equal to the weighted-average amount by which the normal value exceeds U.S. price, adjusted where appropriate for export subsidies, as follows: (1) The rate for the exporter/producer combinations listed in the table above will be the rate we have determined in this final determination; (2) for all PRC exporters of merchandise under consideration which have not received their own rate, the cash-deposit rate will be the PRC-wide rate; and (3) for all non-PRC exporters of merchandise under consideration which have not received their own rate, the cash-deposit rate will be the rate applicable to the PRC exporter/producer combination that supplied that non-PRC exporter.
As noted above, the scope of both the AD and CVD investigations of solar cells cover modules, laminates, and panels produced in a third-country from solar cells produced in the PRC; however, modules, laminates, and panels produced in the PRC from solar cells produced in a third-country are not covered by the investigations. If an importer imports solar panels/modules that it claims do not contain solar cells that were produced in the PRC, the importer is required to maintain the importer certification in Appendix II to this notice. The importer and exporter
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.
In accordance with section 735(d) of the Act, we have notified the International Trade Commission (“ITC”) of the final affirmative determination of sales at LTFV. As the Department's final determination is affirmative, in accordance with section 735(b)(2) of the Act, the ITC will determine, within 45 days, whether the domestic industry in the United States is materially injured, or threatened with material injury, by reason of imports of subject merchandise, or sales (or the likelihood of sales) for importation, of the subject merchandise. If the ITC determines that such injury does exist, the Department will issue an antidumping duty order directing CBP to assess, upon further instruction by the Department, antidumping duties on all imports of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the effective date of the suspension of liquidation.
This notice also serves as a reminder to the parties subject to administrative protective order (“APO”) of their responsibility concerning the disposition of propriety information disclosed under APO in accordance with 19 CFR 351.305. Timely notification of return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation,
This determination is issued and published in accordance with sections 735(d) and 777(i)(1) of the Act.
I hereby certify that I am an official of
I hereby certify that I am an official of
The exports covered by this certification are