[Federal Register Volume 76, Number 221 (Wednesday, November 16, 2011)]
[Notices]
[Pages 70960-70965]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-29627]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-979]


Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled 
Into Modules, From the People's Republic of China: Initiation of 
Antidumping Duty Investigation

    Dates: Effective Date: November 16, 2011.

FOR FURTHER INFORMATION CONTACT: Jeffrey Pedersen or Drew Jackson, AD/
CVD Operations, Office 4, (202) 482-2769 or (202) 482-4406, 
respectively; Import Administration, International Trade 
Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue NW., Washington, DC 20230.

SUPPLEMENTARY INFORMATION: On October 19, 2011, the Department of 
Commerce (``Department'') received a petition concerning imports of 
crystalline silicon photovoltaic cells, whether or not assembled into 
modules (``solar cells'') from the People's Republic of China (``PRC'') 
filed in proper form by SolarWorld Industries America Inc. 
(``Petitioner'').\1\ On October 21, 24, and 31, and November 4, 2011, 
the Department issued supplemental questionnaires requesting 
information and clarification of certain areas of the Petition. 
Petitioner timely filed additional information on October 25, 2011, 
(``Supplement I'') October 28, 2011, (``Supplement II-A--General 
Issues'' and ``Supplement II-B--AD Issues''), November 2, 2011, 
(``Supplement III''), November 4, 2011 (``Supplement IV''), and 
November 7, 2011 (``Supplement V-A--AD Issues'' and (``Supplement V-B--
General Issues'').
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    \1\ See Petition for the Imposition of Antidumping and 
Countervailing Duties: Crystalline Silicon Photovoltaic Cells, 
Whether or Not Assembled into Modules, from the People's Republic of 
China dated October 19, 2011 (``Petition'').
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Period of Investigation

    The period of investigation (``POI'') is April 1, 2011, through 
September 30, 2011.\2\
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    \2\ See 19 CFR 351.204(b)(1).
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The Petition

    In accordance with section 732(b) of the Tariff Act of 1930, as 
amended (``the Act''), Petitioner alleges that imports of solar cells 
from the PRC are being, or are likely to be, sold in the United States 
at less than fair value, within the meaning of section 731 of the Act, 
and that such imports are materially injuring, or threatening material 
injury to, an industry in the United States. Also, consistent with 
section 732(b)(1) of the Act, the Petition is accompanied by 
information reasonably available to Petitioner supporting its 
allegations.
    The Department finds, as an interested party, as defined in section 
771(9)(C) of the Act, that Petitioner filed the Petition on behalf of 
the domestic industry and has demonstrated sufficient industry support 
with respect to the Petition (see ``Determination of Industry Support 
for the Petition'' section below).

Scope of Investigation

    The products covered by the scope of this investigation are solar 
cells from the PRC. For a full description of the scope of the 
investigation, see ``Scope of Investigation'' in Appendix I of this 
notice.

Comments on Scope of Investigation

    During our review of the Petition, we discussed the scope with 
Petitioner to ensure that it is an accurate reflection of the products 
for which the domestic industry is seeking relief. Petitioner submitted 
revised scope language on November 4, 2011, and November 7, 2011. The 
November 7, 2011, submission included various revisions. Among these 
revisions was the following substantive provision:

    These proceedings cover crystalline silicon PV cells, whether 
exported directly to the United States or via third countries; 
crystalline silicon PV modules/panels produced in the PRC, 
regardless of country of manufacture of the cells used to produce 
the modules or panels, and whether exported directly to the United 
States or via third countries, and crystalline silicon PV modules or 
panels produced in a third country from crystalline silicon PV cells 
manufactured in the PRC, whether exported directly to the United 
States or via third countries.

The Department has not adopted this specific revision recommended by 
Petitioner for the purposes of initiation.\3\ Because Petitioner's 
November 7, 201l, scope submission was filed one day prior to the 
statutory deadline for initiation, the Department has had neither the 
time nor the administrative resources to evaluate Petitioner's proposed 
language regarding merchandise produced using inputs from third-country 
markets, or merchandise processed in third-country markets. 
Petitioner's November 7, 2011, scope submission also contained the 
following language:

    \3\ We note that the Department has independent authority to 
determine the scope of its investigations. See Diversified Products 
Corp. v. United States, 572 F. Supp. 883, 887 (CIT 1983).

    Unless explicitly excluded from the scope of these proceedings, 
crystalline silicon PV cells possessing the physical characteristics 
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of subject merchandise are covered by these proceedings.

The Department has not adopted this specific revision recommended by 
Petitioner for the purposes of initiation because this language is 
superfluous, and appears to add no additional clarification as to the 
description of merchandise covered by the scope of the Petition. 
However, as discussed in the preamble to the regulations,\4\ we are 
setting aside a period for interested parties to raise issues regarding 
product coverage. The Department encourages interested parties to 
submit such comments by Monday, November 28, 2011, which is 20 calendar 
days from the signature date of this notice. All comments must be filed 
on the records of both the PRC antidumping duty investigation as well 
as the PRC countervailing duty investigation. Comments should be filed 
electronically using Import Administration's Antidumping and 
Countervailing Duty Centralized Electronic Service System (``IA 
ACCESS''). The period of scope consultations is intended to provide the 
Department with ample opportunity to consider all comments and to 
consult with parties prior to the issuance of the preliminary 
determination.
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    \4\ See Antidumping Duties; Countervailing Duties; Final Rule, 
62 FR 27296, 27323 (May 19, 1997).
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Comments on Product Characteristics for Antidumping Duty Questionnaires

    We are requesting comments from interested parties regarding the 
appropriate physical characteristics of solar cells to be reported in 
response to the Department's antidumping questionnaires. This 
information will be used to identify the key physical characteristics 
of the merchandise under consideration in order to more

[[Page 70961]]

accurately report the relevant factors of production, as well as to 
develop appropriate product comparison criteria.
    Interested parties may provide information or comments that they 
believe are relevant to the development of an accurate listing of 
physical characteristics. Specifically, they may provide comments as to 
which characteristics are appropriate to use in defining unique 
products. We note that it is not always appropriate to use all product 
characteristics to define products. We base product comparison criteria 
on meaningful commercial differences among products. In other words, 
while there may be some physical product characteristics utilized by 
manufacturers to describe solar cells, it may be that only a select few 
product characteristics take into account commercially meaningful 
physical characteristics.
    In order to consider the suggestions of interested parties in 
developing and issuing the antidumping duty questionnaires, we must 
receive comments filed electronically using IA ACCESS by November 28, 
2011. Additionally, rebuttal comments must be received by December 5, 
2011.

Determination of Industry Support for the Petition

    Section 732(b)(1) of the Act requires that a petition be filed on 
behalf of the domestic industry. Section 732(c)(4)(A) of the Act 
provides that a petition meets this requirement if the domestic 
producers or workers who support the petition account for: (i) At least 
25 percent of the total production of the domestic like product; and 
(ii) more than 50 percent of the production of the domestic like 
product produced by that portion of the industry expressing support 
for, or opposition to, the petition. Moreover, section 732(c)(4)(D) of 
the Act provides that, if the petition does not establish support of 
domestic producers or workers accounting for more than 50 percent of 
the total production of the domestic like product, the Department 
shall: (i) Poll the industry or rely on other information in order to 
determine if there is support for the petition, as required by 
subparagraph (A); or (ii) determine industry support using a 
statistically valid sampling method to poll the industry.
    Section 771(4)(A) of the Act defines the ``industry'' as the 
producers as a whole of a domestic like product. Thus, to determine 
whether a petition has the requisite industry support, the statute 
directs the Department to look to producers and workers who produce the 
domestic like product. The U.S. International Trade Commission 
(``ITC''), which is responsible for determining whether ``the domestic 
industry'' has been injured, must also determine what constitutes a 
domestic like product in order to define the industry. While both the 
Department and the ITC must apply the same statutory definition 
regarding the domestic like product (see section 771(10) of the Act), 
they do so for different purposes and pursuant to a separate and 
distinct authority. In addition, the Department's determination is 
subject to limitations of time and information. Although this may 
result in different definitions of the like product, such differences 
do not render the decision of either agency contrary to law.\5\
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    \5\ See USEC, Inc. v. United States, 132 F. Supp. 2d 1, 8 (CIT 
2001), citing Algoma Steel Corp., Ltd. v. United States, 688 F. 
Supp. 639, 644 (CIT 1988), aff'd 865 F.2d 240 (Fed. Cir. 1989), 
cert. denied 492 U.S. 919 (1989).
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    Section 771(10) of the Act defines the domestic like product as ``a 
product which is like, or in the absence of like, most similar in 
characteristics and uses with, the article subject to an investigation 
under this title.'' Thus, the reference point from which the domestic 
like product analysis begins is ``the article subject to an 
investigation'' (i.e., the class or kind of merchandise to be 
investigated, which normally will be the scope as defined in the 
petition).
    With regard to the domestic like product, Petitioner does not offer 
a definition of domestic like product distinct from the scope of the 
investigation. Based on our analysis of the information submitted on 
the record, we have determined that solar cells constitute a single 
domestic like product and we have analyzed industry support in terms of 
that domestic like product.\6\
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    \6\ For a discussion of the domestic like product analysis in 
this case, see Antidumping Duty Investigation Initiation Checklist: 
Crystalline Silicon Photovoltaic Cells from the People's Republic of 
China (``Initiation Checklist''), at Attachment II, Analysis of 
Industry Support for the Petitions Covering Solar Cells from the 
People's Republic of China, on file in the Central Records Unit 
(CRU), Room 7046 of the main Department of Commerce building.
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    In determining whether Petitioner has standing under section 
732(c)(4)(A) of the Act, we considered the industry support data 
contained in the Petition with reference to the domestic like product 
as defined in the ``Scope of Investigation'' section above. To 
establish industry support, Petitioner provided its production volume 
of the domestic like product in 2010, and compared this to the 
estimated total production volume of the domestic like product for the 
entire domestic industry.\7\ Petitioner estimated 2010 production 
volume of the domestic like product by non-petitioning companies based 
on production data published by an industry source, Photon 
International, along with affidavits of support for the petition, and 
its knowledge of the industry. We have relied upon data Petitioner 
provided for purposes of measuring industry support.\8\
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    \7\ See Initiation Checklist at Attachment II.
    \8\ For further discussion, see Initiation Checklist at 
Attachment II.
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    On November 2, 2011, in consultations with the Department held with 
respect to the companion countervailing duty case, the Government of 
China raised the issue of industry support.\9\ In addition, on November 
8, 2011, we received two submissions on behalf of Chinese producers/
exporters and affiliated importers of Solar Cells, interested parties 
to this proceeding as defined in section 771(9)(A) of the Act, 
questioning the industry support calculation.\10\
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    \9\ See Memorandum to the File from Meredith Rutherford, dated 
November 8, 2011, titled ``Placing Consultations Memorandum on the 
AD Record''; see also Initiation Checklist at Attachment II.
    \10\ For further discussion of these submissions see Initiation 
Checklist at Attachment II.
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    Based on information provided in the Petition, supplemental 
submissions, and other information readily available to the Department, 
we determine that the Petitioner has met the statutory criteria for 
industry support under section 732(c)(4)(A)(i) of the Act because the 
domestic producers (or workers) who support the Petition account for at 
least 25 percent of the total production of the domestic like product. 
Because the Petition did not establish support from domestic producers 
(or workers) accounting for more than 50 percent of the total 
production of the domestic like product, the Department was required to 
take further action in order to evaluate industry support.\11\ In this 
case, the Department was able to rely on other information, in 
accordance with section 732(c)(4)(D)(i) of the Act, to determine 
industry support.\12\ Based on information provided in the Petition, 
supplemental submissions, and additional information obtained by the 
Department, the domestic producers and workers have met the statutory 
criteria for industry support under section 732(c)(4)(A)(ii) of the Act 
because the domestic producers (or workers) who support the Petition 
account for more than 50 percent of the

[[Page 70962]]

production of the domestic like product produced by that portion of the 
industry expressing support for, or opposition to, the Petition. 
Accordingly, the Department determines that the Petition was filed on 
behalf of the domestic industry within the meaning of section 732(b)(1) 
of the Act.\13\
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    \11\ See section 732(c)(4)(D) of the Act.
    \12\ See Initiation Checklist at Attachment II.
    \13\ See Initiation Checklist at Attachment II.
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    The Department finds that Petitioner filed the Petition on behalf 
of the domestic industry because it is an interested party as defined 
in section 771(9)(C) of the Act and it has demonstrated sufficient 
industry support with respect to the antidumping duty investigation 
that it is requesting the Department initiate.\14\
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    \14\ Id.
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Allegations and Evidence of Material Injury and Causation

    Petitioner alleges that the U.S. industry producing the domestic 
like product is being materially injured, or is threatened with 
material injury, by reason of the imports of the subject merchandise 
sold at less than normal value (``NV''). In addition, Petitioner 
alleges that subject imports exceed the negligibility threshold 
provided for under section 771(24)(A) of the Act.
    Petitioner contends that the industry's injured condition is 
illustrated by reduced market share, reduced shipments, unused 
capacity, underselling and price depression or suppression, reduced 
employment, a decline in financial performance, lost sales and revenue, 
and an increase in import penetration.\15\ We have assessed the 
allegations and supporting evidence regarding material injury, threat 
of material injury, and causation, and we have determined that these 
allegations are properly supported by adequate evidence and meet the 
statutory requirements for initiation.\16\
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    \15\ See Volume I of the Petition, at 1-4, 25-44, and Exhibits 
I-6, I-8-9, I-14-16, I-17a, I-18a, I-19-20, I-21a, I-21b, I-22 and 
I-24, and Supplement II-A--General Issues, at 1-2.
    \16\ See Initiation Checklist at Attachment III, Injury.
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Allegations of Sales at Less Than Fair Value

    The following is a description of the allegations of sales at less 
than fair value upon which the Department based its decision to 
initiate this investigation of imports of solar cells from the PRC. The 
sources of data for the deductions and adjustments relating to the U.S. 
price and the factors of production are also discussed in the 
Initiation Checklist.\17\
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    \17\ See Initiation Checklist, at 5-8.
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U.S. Price

    Petitioner calculated constructed export price (``CEP'') based on 
sales offers of three types of solar cells to unaffiliated U.S. 
customers by the U.S. affiliates of three PRC producers of solar cells. 
Petitioners substantiated the U.S. price quotes with declarations.\18\ 
Petitioners further provided a detailed description of the merchandise 
corresponding to the price quotes,\19\ and an explanation and 
declaration of why the sales prices should be considered CEPs.\20\ 
Based on stated sales and delivery terms, Petitioner adjusted these 
CEPs for discounts, freight, credit expenses, domestic brokerage and 
handling, ocean freight, CEP selling expenses, and CEP profit.\21\
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    \18\ See Volume II of the Petition, at Exhibits II-1 and II-2.
    \19\ See Volume II of the Petition, at Exhibit II-3.
    \20\ See Volume II of the Petition, at 1 and Exhibit II-1.
    \21\ See Initiation Checklist at 5-6; see also Volume II of the 
Petition, at 2-16, and Exhibits II-I through II-15; see also 
Supplement I, at 19, and Exhibits 19-20, and Supplement II-B--AD 
Issues, at 1-7 and Exhibits 1, 4-7, and 9-11; see also Supplement V-
A--AD Issues, at 1, 4, and Exhibit 1.
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Normal Value

    Petitioner claims the PRC is a non-market economy (``NME'') country 
and that this designation remains in effect today.\22\ The presumption 
of NME status for the PRC has not been revoked by the Department and, 
therefore, in accordance with section 771(18)(C)(i) of the Act, remains 
in effect for purposes of the initiation of this investigation. 
Accordingly, the NV of the product for the PRC investigation is 
appropriately based on factors of production valued in a surrogate 
market-economy country in accordance with section 773(c) of the Act. In 
the course of this investigation, all parties, including the public, 
will have the opportunity to provide relevant information related to 
the issues of the PRC's NME status and the granting of separate rates 
to individual exporters.
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    \22\ See Volume II of the Petition, at 17.
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    Petitioner contends that India is the appropriate surrogate country 
for the PRC because: (1) It is at a level of economic development 
comparable to that of the PRC and (2) it is a significant producer of 
identical merchandise and (3) that the availability and quality of data 
are good.\23\ Based on the information provided by Petitioner, we 
believe that it is appropriate to use India as a surrogate country for 
initiation purposes. After initiation of the investigation, interested 
parties will have the opportunity to submit comments regarding 
surrogate country selection and, pursuant to 19 CFR 351.301(c)(3)(i), 
will be provided an opportunity to submit publicly available 
information to value factors of production within 40 days after the 
date of publication of the preliminary determination.
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    \23\ See Volume II of the Petition, at 18-19, and Supplement I, 
at 1-12.
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    Petitioner calculated NV and the dumping margins using the 
Department's NME methodology as required by 19 CFR 351.202(b)(7)(i)(C) 
and 19 CFR 351.408. In calculating NV, Petitioner based the quantity of 
each of the inputs used to manufacture the domestic like product on 
reasonably available information, which Petitioner asserts that, to the 
best of its knowledge, is similar to the consumption of PRC 
producers.\24\
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    \24\ See Volume II of the Petition, at 20.
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    Petitioner valued most of the factors of production based on 
reasonably available, public surrogate country data, specifically, 
Indian import data from the Global Trade Atlas (``GTA'').\25\ In 
addition, Petitioner made currency conversions, where necessary, based 
on the POI-average rupees/U.S. dollar exchange rate based on Federal 
Reserve exchange rates.\26\ The Department determines that the 
surrogate values used by Petitioner are reasonably available and, thus, 
acceptable for purposes of initiation. With regard to the main input, 
Petitioner contends that solar grade polysilicon is a specialized 
product and used world market prices to value the input. Petitioner 
contends that Indian import data from the GTA did not adequately 
reflect the uniqueness of the input. Also, Petitioner valued silicon 
wafers using world market prices. The use of these data raises 
significant issues that the Department believes are better addressed in 
the context of the investigation. Therefore, for the purposes of this 
initiation, the Department finds that is more appropriate to rely on 
our standard methodology and use Indian import data to value 
polysilicon and solar wafers. During the course of the investigation, 
the Department will consider record information to determine the most 
appropriate surrogate value for polysilicon, solar wafers, and all 
other factors of production used to produce solar cells.
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    \25\ See Initiation Checklist; see also Volume II of the 
Petition, at Exhibit II-21; see also Supplement V, at Exhibit 3.
    \26\ See Initiation Checklist; see also Volume II of the 
Petition, at Exhibit II-11; see also Supplement II-B--AD Issues at 
Exhibit 9.
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    Petitioner determined energy costs using reasonably available 
information. Petitioner valued electricity using the Indian electricity 
rate for small,

[[Page 70963]]

medium, and large companies reported by the Central Electric Authority 
of the Government of India.\27\
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    \27\ See Initiation Checklist; see also Volume II of the 
Petition, at 31, and Exhibit II-25.
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    Petitioner determined labor consumption, in hours, using reasonably 
available information. Petitioner valued labor using data collected by 
the International Labor Organization (``ILO'') and disseminated in 
Chapter 6A of the ILO Yearbook of Labor Statistics.\28\ Petitioner 
adjusted labor costs using consumer price index data published by the 
International Monetary Fund.
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    \28\ See Initiation Checklist; see also Volume II of the 
Petition, at 31 and Exhibit II-26.
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    Petitioner determined packing material consumption using reasonably 
available information and valued the relevant factors using data from 
GTA.\29\
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    \29\ See Initiation Checklist; see also Volume II of the 
Petition, at Exhibit II-21; Supplement V-A--AD Issues at Exhibit 6.
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    Petitioner calculated factory overhead, selling, general and 
administrative expenses, and profit by using data from the 2009-2010 
financial statement of Bharat Heavy Electricals Ltd., an Indian 
producer of solar cells.\30\
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    \30\ See Initiation Checklist; see also Supplement I, at 19, and 
Exhibit 20; see also Supplement V-A--AD Issues, at Exhibit AD Supp--
3-3.
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Fair Value Comparisons

    Based on the data provided by Petitioner, there is reason to 
believe that imports of solar cells from the PRC are being, or are 
likely to be, sold in the United States at less than fair value. Based 
on a comparison of U.S. prices and NV calculated in accordance with 
section 773(c) of the Act, as described above, the estimated CEP 
dumping margins range from 49.88 percent and 249.96 percent.\31\
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    \31\ See Initiation Checklist; see also Supplement V-A--AD 
Issues, at Exhibit AD--Supp--3-2.
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Initiation of Antidumping Duty Investigation

    Based upon our examination of the Petition on solar cells from the 
PRC, the Department finds the Petition meets the requirements of 
section 732 of the Act. Therefore, we are initiating an antidumping 
duty investigation to determine whether imports of solar cells from the 
PRC are being, or are likely to be, sold in the United States at less 
than fair value. In accordance with section 733(b)(1)(A) of the Act and 
19 CFR 351.205(b)(1), unless postponed, we will make our preliminary 
determination no later than 140 days after the date of this initiation.

Critical Circumstances

    Petitioner alleges, 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.\32\
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    \32\ See Volume IV of the Petition, at 1, 7, and 10.
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    Section 733(e)(1) of the Act states that if a petitioner alleges 
critical circumstances, the Department will find that such 
circumstances exist, at any time after the date of initiation, when 
there is a reasonable basis to believe or suspect that under, 
subparagraph (A)(i), there is a history of dumping and there is 
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 the 
subject merchandise over a relatively short period. Section 351.206(h) 
of the Department's regulations defines ``massive imports'' as imports 
that have increased by at least 15 percent over the imports during an 
immediately preceding period of comparable duration. Section 351.206(i) 
of the Department's regulations states that a relatively short period 
will normally be defined as the period beginning on the date the 
proceeding begins and ending at least three months later. But if the 
Department finds that importers, or exporters and producers, had reason 
to believe, at some time prior to the beginning of the proceeding, that 
a proceeding was likely, then the regulation permits the Department to 
consider a period of not less than three months from that earlier time.
    With regard to the criteria of massive imports over a relatively 
short period of time, Petitioner argues that the Department should 
evaluate the level of imports during a period prior to the filing of 
the petition because importers and foreign exporters and producers had 
reason to believe that a dumping or countervailing duty proceeding was 
likely.\33\ Petitioner contends that there were newspaper articles 
beginning in August 2009 that discussed unfair pricing on behalf of 
Chinese product.\34\ Petitioner further notes that the very widely 
publicized closure of a large solar cell producer resulted in much 
media discussion of the effects of unfair trade in January 2011. 
Therefore, Petitioner states that ``the effects of any behavioral 
shifts of Chinese producers would be likely to manifest themselves in 
February 2011 as shipments of goods ordered in the days immediately 
following Evergreen's demise in January 2011 would not have reached the 
United States until February.'' \35\ Thus, Petitioner demonstrates 
massive imports over a relatively short period of time by comparing 
imports of subject merchandise between the six-month period of August 
2010 and January 2011 (base period) and the six-month period of 
February 2011 and July 2011 (comparison period). Based on Petitioner's 
calculation, imports surged 220 percent between base period and 
comparison period, which is greater than the 15 percent threshold 
defined in the Department's regulations.\36\
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    \33\ See Volume IV of the Petition, at 3-9, and Exhibits IV-1 
through IV-16; see also 19 CFR 351.206(i).
    \34\ See Volume IV of the Petition, at 4, and Exhibits IV-1 and 
IV-2.
    \35\ See Supplement II-A--General Issues, at 6.
    \36\ See Volume IV of the Petition, at 10-11; see also 19 CFR 
351.206(h).
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    With regard to the requirement of history or knowledge of dumping, 
Petitioner alleges that importers knew, or should have known, that 
solar cells were being sold at less than fair value. While there have 
been no determinations of dumping of solar cells by the Chinese in any 
foreign markets, Petitioner's claim that the margins being calculated 
in the dumping allegation are at a level high enough to impute importer 
knowledge that merchandise was being sold at less than its fair value. 
The estimated dumping margins range between 49.88 and 249.96 
percent.\37\ These margins exceed the 25 percent threshold used by the 
Department to impute knowledge of dumping.\38\ In addition, Petitioner 
references the media coverage discussing unfair pricing in the industry 
which indicates that importers had knowledge that Chinese companies 
were most likely selling at less than fair value.\39\ With regard to 
injury, Petitioner acknowledges that there is no preliminary 
determination by the ITC at this time, however, Petitioner argues that 
in the past the Department ``has considered the extent of the increase 
in the volume of imports of the subject

[[Page 70964]]

merchandise, as well as the magnitude of the dumping margins, in 
determining whether a reasonable basis exists to impute knowledge that 
material injury was likely.'' \40\ Petitioner alleges that because 
imports have increased by 220 percent from base period to comparison 
period, and because the margins alleged in the Petition exceed the 25 
percent threshold used by the Department to impute knowledge of 
dumping, there is therefore, adequate basis to determine that importers 
knew or should have known that material injury was likely due to the 
unfairly traded sales.\41\
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    \37\ See Volume IV of the Petition, at 11-12, and Volume II of 
the Petition; see also Initiation Checklist; see also Supplement V, 
at Exhibit 2.
    \38\ See e.g., Final Determination of Sales at Less than Fair 
Value and Affirmative Determination of Critical Circumstances: Small 
Diameter Graphite Electrodes from the People's Republic of China, 74 
FR 2049 (Jan. 14, 2009) and accompanying Issue and Decisions 
Memorandum at Issue 4.
    \39\ See Volume IV of the Petition, at 12, and Exhibits IV-1 and 
IV-3.
    \40\ See Volume IV of the Petition, at 12; see also Final 
Determination of Sales at Less than Fair Value: Certain Cut-to-
Length Carbon Steel Plate From the People's Republic of China, 62 FR 
61964, 61967 (Nov. 20, 1997).
    \41\ See Volume IV of the Petition, at 13.
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    Petitioner requests that the Department examine the information it 
has provided and make a preliminary finding of critical circumstances 
on an expedited basis, within 45 days of the filing of the 
Petition.\42\ Section 732(e) of the Act states that when there is a 
reasonable basis to believe or suspect (1) there is a history of 
dumping in the United States or elsewhere of the subject merchandise, 
or (2) 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, the Department may 
request Customs and Border Protection (CBP) to compile information on 
an expedited basis regarding entries of the subject merchandise.
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    \42\ See Volume IV of the Petition, at 1, 2, and 16; see also 19 
CFR 351.206(c)(2)(iii).
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    Taking into consideration the foregoing, we will analyze this 
matter further. We will monitor imports of solar cells from the PRC and 
we will request that CBP compile information on an expedited basis 
regarding entries of subject merchandise.\43\ If, at any time, the 
criteria for a finding of critical circumstances are established, we 
will issue a critical circumstances finding at the earliest possible 
date.\44\
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    \43\ See Section 732(e) of the Act.
    \44\ See Policy Bulletin 98/4, 63 FR 55364 (Oct. 15, 1998).
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Targeted Dumping Allegations

    On December 10, 2008, the Department issued an interim final rule 
for the purpose of withdrawing 19 CFR 351.414(f) and (g), the 
regulatory provisions governing the targeted dumping analysis in 
antidumping duty investigations, and the corresponding regulation 
governing the deadline for targeted dumping allegations, 19 CFR 
351.301(d)(5).\45\ The Department stated that ``{w{time} ithdrawal will 
allow the Department to exercise the discretion intended by the statute 
and, thereby, develop a practice that will allow interested parties to 
pursue all statutory avenues of relief in this area.'' \46\
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    \45\ See Withdrawal of the Regulatory Provisions Governing 
Targeted Dumping in Antidumping Duty Investigations, 73 FR 74930 
(December 10, 2008).
    \46\ Id. at 74931.
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    In order to accomplish this objective, if any interested party 
wishes to make a targeted dumping allegation in this investigation 
pursuant to section 777A(d)(1)(B) of the Act, such allegation is due no 
later than 45 days before the scheduled date of the preliminary 
determination.

Respondent Selection

    Petitioner identified 75 PRC producers/exporters of solar cells. 
The Department will issue quantity and value questionnaires to each of 
the 75 producers/exporters of solar cells named in the Petition, and 
will make its respondent selection decision based on the responses to 
the questionnaires it receives. Parties that do not receive a quantity 
and value questionnaire from the Department may file a quantity and 
value questionnaire by the applicable deadline if they wish to be 
included in the pool of companies from which the Department will select 
mandatory respondents.
    The Department requires that the 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. On the date of the publication 
of this initiation notice in the Federal Register, the Department will 
post the quantity and value questionnaire along with the filing 
instructions on the Import Administration Web site at http://ia.ita.doc.gov/ia-highlights-and-news.html. A response to the quantity 
and value questionnaire is due no later than November 29, 2011.\47\
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    \47\ See Circular Welded Austenitic Stainless Pressure Pipe From 
the People's Republic of China: Initiation of Antidumping Duty 
Investigation, 73 FR 10221, 10225 (February 26, 2008); Initiation of 
Antidumping Duty Investigation: Certain Artist Canvas From the 
People's Republic of China, 70 FR 21996, 21999 (April 28, 2005).
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    Interested parties must submit applications for disclosure under 
administrative protective order (``APO'') in accordance with 19 CFR 
351.305. Instructions for filing such applications may be found on the 
Department's Web site at http://ia.ita.doc.gov/apo.

Separate-Rate Application

    In order to obtain separate-rate status in NME investigations, 
exporters and producers must submit a separate-rate status 
application.\48\ The specific requirements for submitting the separate-
rate application in this investigation are outlined in detail in the 
application itself, which will be available on the Department's Web 
site at http://ia.ita.doc.gov/ia-highlights-and-news.html on the date 
of publication of this initiation notice in the Federal Register. The 
separate-rate application will be due 60 days after publication of this 
initiation notice. For exporters and producers who submit a separate-
rate status application and subsequently are selected as mandatory 
respondents, these exporters and producers will no longer be eligible 
for consideration for separate rate status unless they respond to all 
parts of the questionnaire as mandatory respondents. As noted in the 
``Respondent Selection'' section above, the Department 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. 
The quantity and value questionnaire will be available on the 
Department's Web site at http://ia.ita.doc.gov/ia-highlights-and-news.html on the date of the publication of this initiation notice in 
the Federal Register.
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    \48\ See Policy Bulletin 05.1: Separate-Rates Practice and 
Application of Combination Rates in Antidumping Investigations 
involving Non-Market Economy Countries, dated April 5, 2005 
(``Policy Bulletin''), available on the Department's Web site at 
http://ia.ita.doc.gov/policy/bull05-1.pdf.
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Use of Combination Rates in an NME Investigation

    The Department will calculate combination rates for certain 
respondents that are eligible for a separate rate in this 
investigation. The Policy Bulletin states:

    While continuing the practice of assigning separate rates only 
to exporters, all separate rates that the Department will now assign 
in its NME investigations will be specific to those producers that 
supplied the exporter during the period of investigation. Note, 
however, that one rate is calculated for the exporter and all of the 
producers which supplied subject merchandise to it during the period 
of investigation. This practice applies both to mandatory 
respondents receiving an individually calculated separate rate as 
well as the pool of non-investigated firms receiving the weighted-
average of the individually calculated rates. This practice is 
referred to as the application of ``combination rates'' because such 
rates apply to specific combinations of exporters and one or more

[[Page 70965]]

producers. The cash-deposit rate assigned to an exporter will apply 
only to merchandise both exported by the firm in question and 
produced by a firm that supplied the exporter during the period of 
investigation.\49\
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    \49\ See Policy Bulletin at 6 (emphasis added).
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Distribution of Copies of the Petition

    In accordance with section 732(b)(3)(A) of the Act and 19 CFR 
351.202(f), copies of the public versions of the Petition have been 
provided to the representatives of the Government of the PRC. Because 
of the large number of producers/exporters identified in the Petition, 
the Department considers the service of the public version of the 
Petition to the foreign producers/exporters satisfied by the delivery 
of the public version to the Government of the PRC, consistent with 19 
CFR 351.203(c)(2).

ITC Notification

    We have notified the ITC of our initiation, as required by section 
732(d) of the Act.

Preliminary Determinations by the ITC

    The ITC will preliminarily determine, no later than December 5, 
2011, whether there is a reasonable indication that imports of solar 
cells from the PRC are materially injuring, or threatening material 
injury to a U.S. industry. A negative ITC determination will result in 
the investigation being terminated; otherwise, this investigation will 
proceed according to statutory and regulatory time limits.

Notification to Interested Parties

    Interested parties must submit applications for disclosure under 
administrative protective orders in accordance with 19 CFR 351.305. On 
January 22, 2008, the Department published Antidumping and 
Countervailing Duty Proceedings: Documents Submission Procedures; APO 
Procedures, 73 FR 3634. Parties wishing to participate in this 
investigation should ensure that they meet the requirements of these 
procedures (e.g., the filing of letters of appearance as discussed at 
19 CFR 351.103(d)).
    Any party submitting factual information in an antidumping duty or 
countervailing duty proceeding must certify to the accuracy and 
completeness of that information.\50\ Parties are hereby reminded that 
revised certification requirements are in effect for company/government 
officials as well as their representatives in all segments of any 
antidumping duty or countervailing duty proceedings initiated on or 
after March 14, 2011.\51\ The formats for the revised certifications 
are provided at the end of the Interim Final Rule. The Department 
intends to reject factual submissions in any proceeding segments 
initiated on or after March 14, 2011, if the submitting party does not 
comply with the revised certification requirements.
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    \50\ See section 782(b) of the Act.
    \51\ See Certification of Factual Information to Import 
Administration during Antidumping and Countervailing Duty 
Proceedings: Interim Final Rule, 76 FR 7491 (February 10, 
2011)(``Interim Final Rule'') amending 19 CFR 351.303(g)(1) and (2).
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    This notice is issued and published pursuant to section 777(i) of 
the Act.

    Dated: November 8, 2011.
Paul Piquado
Assistant Secretary for Import Administration.

Appendix I

Scope of the Investigation

    The merchandise covered by this investigation are crystalline 
silicon photovoltaic cells, and modules, laminates, and panels, 
consisting of crystalline silicon photovoltaic cells, whether or not 
partially or fully assembled into other products, including, but not 
limited to, modules, laminates, panels and building integrated 
materials.
    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.
    Subject merchandise 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 subject merchandise 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.
    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 
and 8541.40.6030. These HTSUS subheadings are provided for 
convenience and customs purposes; the written description of the 
scope of this investigation is dispositive.

[FR Doc. 2011-29627 Filed 11-15-11; 8:45 am]
BILLING CODE 3510-DS-P