[Federal Register Volume 77, Number 201 (Wednesday, October 17, 2012)]
[Notices]
[Pages 63788-63791]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-25564]


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DEPARTMENT OF COMMERCE

International Trade Administration

[C-570-980]


Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled 
Into Modules, From the People's Republic of China: Final Affirmative 
Countervailing Duty Determination and Final Affirmative Critical 
Circumstances Determination

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

SUMMARY: The Department of Commerce (the Department) determines that 
countervailable subsidies are being provided to producers and exporters 
of crystalline silicon photovoltaic cells, whether or not assembled 
into modules (solar cells) from the People's Republic of China (PRC). 
The Department further determines that there have been massive imports 
of subject merchandise over a relatively short period of time by, and 
therefore critical circumstances do exist.\1\ For information on the 
estimated subsidy rates, see the ``Suspension of Liquidation'' section 
of this notice.
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    \1\ See ``Critical Circumstances'' below.

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DATES: Effective Date: October 17, 2012.

FOR FURTHER INFORMATION CONTACT: Gene Calvert, Jun Jack Zhao, or Emily 
Halle, AD/CVD Operations, Office 6, Import Administration, U.S. 
Department of Commerce, Room 7866, 14th Street and Constitution Avenue 
NW., Washington, DC 20230; telephone: (202) 482-3586, (202) 482-1396, 
or (202) 482-0176, respectively.

SUPPLEMENTARY INFORMATION:

Background

    The petitioner in this investigation is Solar World Industries, 
America, Inc. (Petitioner). This investigation covers 31 government 
programs. In addition to the Government of the PRC (GOC), the mandatory 
respondents in this investigation are: (1) Changzhou Trina Solar Energy 
Co., Ltd. and its cross-owned affiliated company Trina Solar 
(Changzhou) Science and Technology Co., Ltd. (collectively, Trina 
Solar); and (2) Wuxi Suntech Power Co., Ltd. and its cross-owned 
affiliated companies Luoyang Suntech Power Co., Ltd., Suntech Power 
Co., Ltd., Yangzhou Rietech Renewal Energy Co., Ltd., Zhenjiang Huantai 
Silicon Science & Technology Co., Ltd., Kuttler Automation Systems 
(Suzhou) Co., Ltd., Shenzhen Suntech Power Co., Ltd., Wuxi Sunshine 
Power Co., Ltd., Wuxi University Science Park International Incubator 
Co., Ltd., Yangzhou Suntech Power Co., Ltd., and Zhenjiang Rietech New 
Energy Science & Technology Co., Ltd. (collectively, Wuxi Suntech, 
unless otherwise indicated).

Period of Investigation

    The period of investigation for which we are measuring subsidies is 
January 1, 2010, through December 31, 2010.

Case History

    The events that have occurred since the Department published the 
Preliminary Determination \2\ on March 26, 2012, are discussed in the 
Memorandum to Paul Piquado, Assistant Secretary for Import 
Administration, Issues and Decision Memorandum for the Final 
Determination in the Countervailing Duty Investigation of Crystalline 
Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, from 
the People's Republic of China (Decision Memorandum).\3\
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    \2\ 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 (March 26, 2012) (Preliminary Determination).
    \3\ Public versions of all business proprietary documents and 
all public documents are on file electronically via Import 
Administration's Antidumping and Countervailing Duty Centralized 
Electronic Service System (IA ACCESS). Access to IA ACCESS is 
available to registered users at http://iaaccess.trade.gov and in 
the Central Records Unit (CRU), room 7046 of the main Department of 
Commerce building.
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Scope Comments

    The scope-related comments submitted by parties in the companion 
antidumping duty investigation in their case and rebuttal briefs 
covered the same scope arguments and issues that were submitted in the 
case and rebuttal briefs in this investigation. Petitioner, the GOC, 
Trina Solar, Wuxi Suntech, Small Steps Solar, Ltd., and SunPower 
Corporation provided comments on the scope of the investigations and 
the merchandise that is to be included in the scope.

Scope of 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. See Appendix I for a complete description of the 
scope of this investigation.

Critical Circumstances

    In the Preliminary Critical Circumstances Determination,\4\ the 
Department concluded that critical circumstances exist with respect to 
imports of solar cells from the PRC for Wuxi Suntech, Trina Solar, and 
all other producers or exporters, in accordance with section 703(e)(1) 
of the Tariff Act of 1930, as amended (Act). Our analysis of the 
comments submitted by interested parties has not led us to change our 
findings from the Preliminary Critical Circumstances Determination. For 
a complete discussion that reflects the Department's decisions 
regarding critical circumstances, see the Decision Memorandum. 
Therefore, in accordance with section 705(a)(2) of the Act, we continue 
to find that critical circumstances exist with respect to imports from 
Wuxi Suntech, Trina Solar and all other producers or exporters of solar 
cells from the PRC, and we will continue to maintain the suspension of 
liquidation of imports that entered the United States 90 days before 
the date of publication of the Preliminary Determination, unless the 
U.S. International Trade Commission (ITC) determines that critical 
circumstances do not exist.
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    \4\ See Countervailing Duty Investigation of Crystalline Silicon 
Photovoltaic Cells, Whether or Not Assembled Into Modules, from the 
People's Republic of China: Preliminary Determination of Critical 
Circumstances, 77 FR 5487 (February 3, 2012) (Preliminary Critical 
Circumstances Determination).
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Analysis of Subsidy Programs and Comments Received

    The subsidy programs under investigation and the issues raised in

[[Page 63789]]

the case and rebuttal briefs by parties in this investigation are 
discussed in the Decision Memorandum, which is hereby adopted by this 
notice. A list of the subsidy programs and the issues that parties 
raised and to which we responded in the Decision Memorandum is attached 
to this notice as Appendix II. The Decision Memorandum is a public 
document and is on file electronically via IA ACCESS. IA ACCESS is 
available to registered users at http://iaaccess.trade.gov and in the 
CRU, room 7046 of the main Department of Commerce building. In 
addition, a complete version of the Decision Memorandum can be accessed 
directly on the Internet at http://www.trade.gov/ia/. The signed 
Decision Memorandum and the electronic versions of the Decision 
Memorandum are identical in content.

Use of Facts Otherwise Available, Including Adverse Inferences

    For purposes of this final determination, we have continued to rely 
on facts available and have continued to apply adverse inferences in 
accordance with sections 776(a) and (b) of the Act with regard to: (1) 
Whether the polysilicon producers at issue are ``authorities'' that 
provide polysilicon for less than adequate remuneration (LTAR); (2) 
whether the provision of polysilicon is specific in accordance with 
section 771(5A) of the Act; (3) whether the land provided to Trina 
Solar is countervailable; (4) whether the grants discovered during the 
course of this investigation are countervailable; and (5) the GOC's 
provision of electricity for LTAR. In addition, for the purposes of 
this final determination, we are also applying adverse facts available 
(AFA) to (1) find the export buyer's credit program to be used and 
countervailable, and to determine the countervailing duty (CVD) rate to 
be applied for the export buyer's credit program, and (2) determine 
that certain land provided to Wuxi Suntech is countervailable. A full 
discussion of our decision to apply AFA is presented in the Decision 
Memorandum under the section ``Use of Facts Otherwise Available and 
Adverse Inferences.''

Suspension of Liquidation

    In accordance with section 705(c)(1)(B)(i) of the Act, we have 
calculated a rate for each individually investigated producer/exporter 
of the subject merchandise. Section 705(c)(5)(A)(i) of the Act states 
that for companies not investigated, we will determine an ``all-
others'' rate equal to the weighted average countervailable subsidy 
rates established for exporters and producers individually 
investigated, excluding any zero and de minimis countervailable subsidy 
rates, and any rates determined entirely under section 776 of the Act.
    Notwithstanding the language of section 705(c)(5)(A)(i) of the Act, 
we have not calculated the ``all others'' rate by weight averaging the 
rates of Trina Solar and Wuxi Suntech, because doing so risks 
disclosure of proprietary information. Therefore, we have calculated an 
average rate using other information on the record.\5\ Since both Trina 
Solar and Wuxi Suntech received countervailable export subsidies and 
the ``all others'' rate is an average based on the individually 
investigated exporters and producers, the ``all others'' rate includes 
export subsidies.
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    \5\ See Memorandum to the File from Emily Halle, ``Calculation 
of the All-Others Rate,'' dated October 9, 2012, providing the 
precise calculation relying on public information.
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    We determine the total countervailable subsidy rates to be as 
follows.

------------------------------------------------------------------------
                  Company                            Subsidy rate
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Changzhou Trina Solar Energy Co., Ltd.,      15.97 percent ad valorem.
 Trina Solar (Changzhou) Science and
 Technology Co., Ltd. (collectively, Trina
 Solar).
Wuxi Suntech Power Co., Ltd., Luoyang        14.78 percent ad valorem.
 Suntech Power Co., Ltd., Suntech Power
 Co., Ltd., Yangzhou Rietech Renewal Energy
 Co., Ltd., Zhenjiang Huantai Silicon
 Science & Technology Co., Ltd., Kuttler
 Automation Systems (Suzhou) Co., Ltd.,
 Shenzhen Suntech Power Co., Ltd., Wuxi
 Sunshine Power Co., Ltd., Wuxi University
 Science Park International Incubator Co.,
 Ltd., Yangzhou Suntech Power Co., Ltd.,
 and Zhenjiang Rietech New Energy Science &
 Technology Co., Ltd (collectively, Wuxi
 Suntech).
All Others Rate............................  15.24 percent ad valorem.
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    As a result of our Preliminary Critical Circumstances Determination 
and our Preliminary Determination and pursuant to section 703(e)(2) of 
the Act, we instructed U.S. Customs and Border Protection (CBP) to 
suspend liquidation of all entries of subject merchandise from the PRC 
which were entered or withdrawn from warehouse, for consumption on or 
after December 27, 2011, the date 90 days prior to the date of the 
publication of the Preliminary Determination in the Federal Register. 
In accordance with section 703(d) of the Act, we later issued 
instructions to CBP to discontinue the suspension of liquidation for 
CVD purposes for subject merchandise entered, or withdrawn from 
warehouse, on or after July 24, 2012, but to continue the suspension of 
liquidation of all entries from December 27, 2011, through July 23, 
2012.
    We will issue a CVD order and reinstate the suspension of 
liquidation under section 706(a) of the Act if the ITC issues a final 
affirmative injury determination, and will require a cash deposit of 
estimated CVDs for such entries of merchandise in the amounts indicated 
above. If the ITC determines that material injury, or threat of 
material injury, exists, but that critical circumstances do not exist, 
the Department will order the refund of all cash deposits and the 
cancellation of all securities posted from December 27, 2011, to March 
26, 2012. If the ITC determines that material injury, or threat of 
material injury, does not exist, this proceeding will be terminated and 
all estimated duties deposited or securities posted as a result of the 
suspension of liquidation will be refunded or canceled.

ITC Notification

    In accordance with section 705(d) of the Act, we will notify the 
ITC of our determination. In addition, we are making available to the 
ITC all non-privileged and non-proprietary information related to this 
investigation. We will allow the ITC access to all privileged and 
business proprietary information in our files, provided the ITC 
confirms that it will not disclose such information, either publicly or 
under an administrative protective order (APO), without the written 
consent of the Assistant Secretary for Import Administration.

Return or Destruction of Proprietary Information

    In the event that the ITC issues a final negative injury 
determination, this notice will serve as the only reminder

[[Page 63790]]

to parties subject to an APO of their responsibility concerning the 
destruction of proprietary information disclosed under APO in 
accordance with 19 CFR 351.305(a)(3). Timely written notification of 
the return/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 violation which is subject to 
sanction.
    This determination is issued and published pursuant to sections 
705(d) and 777(i) of the Act.

    Dated: October 9, 2012.
Paul Piquado,
Assistant Secretary for Import Administration.

Appendix I

Scope of the Investigation

    The merchandise covered by this investigation is crystalline 
silicon photovoltaic cells, and modules, laminates, and panels, 
consisting of crystalline silicon photovoltaic cells, whether or not 
partially or fully assembled into other products, including, but not 
limited to, modules, laminates, panels and building integrated 
materials.
    This investigation covers crystalline silicon photovoltaic cells 
of thickness equal to or greater than 20 micrometers, having a p/n 
junction formed by any means, whether or not the cell has undergone 
other processing, including, but not limited to, cleaning, etching, 
coating, and/or addition of materials (including, but not limited 
to, metallization and conductor patterns) to collect and forward the 
electricity that is generated by the cell.
    Merchandise under consideration may be described at the time of 
importation as parts for final finished products that are assembled 
after importation, including, but not limited to, modules, 
laminates, panels, building-integrated modules, building-integrated 
panels, or other finished goods kits. Such parts that otherwise meet 
the definition of merchandise under consideration are included in 
the scope of this investigation.
    Excluded from the scope of this investigation are thin film 
photovoltaic products produced from amorphous silicon (a-Si), 
cadmium telluride (CdTe), or copper indium gallium selenide (CIGS).
    Also excluded from the scope of this investigation are 
crystalline silicon photovoltaic cells, not exceeding 10,000 mm\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.\6\ These HTSUS 
subheadings are provided for convenience and customs purposes; the 
written description of the scope of this investigation is 
dispositive.
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    \6\ 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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Appendix II

Decision Memorandum

I. Summary
II. Subsidy Valuation Information
    A. Period of Investigation
    B. Attribution of Subsidies
    C. Allocation Period
    D. Loan Benchmarks and Discount Rates for Allocating Non-
Recurring Subsidies
    E. LTAR Benchmarks
    F. Denominators
III. Use of Facts Otherwise Available and Adverse Inferences
    Polysilicon Producers Are Authorities
    Provision of Land for LTAR
    Provision of Electricity for LTAR
    Export Buyer's Credits
    Subsidies Discovered During the Investigation
    ``Bonus for Employees From Government''
IV. Critical Circumstances
V. Terminated Programs
VI. Analysis of Programs
    A. Programs Determined To Be Countervailable
    1. Golden Sun Demonstration Program
    2. Preferential Policy Lending
    3. Provision of Polysilicon for LTAR
    4. Provision of Land for LTAR
    5. Provision of Electricity for LTAR
    6. ``Two Free, Three Half'' Program for Foreign-Invested 
Enterprises (FIEs)
    7. Preferential Tax Program for High or New Technology 
Enterprises (HNTEs)
    8. Enterprise Income Tax Law, Research and Development (R&D) 
Program
    9. Import Tariff and Value Added Tax (VAT) Exemptions for Use of 
Imported Equipment
    10. VAT Rebates on FIE Purchases of Chinese-Made Equipment
    11. Discovered Grants
    12. Export Credit Subsidy Programs: Export Buyer's Credits
    B. Programs Determined To Be Not Used by the Respondents During 
the POI or To Not Provide Benefits During the POI
    1. Export Product Research and Development Fund
    2. Subsidies for Development of ``Famous Brands'' and ``China 
World Top Brands''
    3. Sub-Central Government Subsidies for Development of ``Famous 
Brands'' and ``China World Top Brands''
    4. Special Energy Fund (Established by Shandong Province)
    5. Funds for Outward Expansion of Industries in Guangdong 
Province
    6. Government Provision of Aluminum for LTAR
    7. Income Tax Reductions for Export-Oriented FIEs
    8. Income Tax Benefits for FIEs Based on Geographic Location
    9. Local Income Tax Exemption and Reduction Programs for 
``Productive'' FIEs
    10. Tax Refunds for Reinvestment of FIE Profits in Export-
Oriented Enterprises
    11. Tax Reductions for High and New-Technology Enterprises 
Involved in Designated Projects
    12. Preferential Income Tax Policy for Enterprises in the 
Northeast Region
    13. Guangdong Province Tax Programs
    14. VAT and Tariff Exemptions for Purchases of Fixed Assets 
Under the Foreign Trade and Development Fund Program
    15. Tax Reductions for FIEs Purchasing Chinese-Made Equipment
    16. Export Guarantees and Insurance for Green Technology
    17. Export Credit Subsidy Program: Export Seller's Credits
    18. Discovered Grants
    19. Provision of Float Glass for LTAR
    20. The Over-Rebate of VAT Program
VII. Analysis of Comments
    General
    Comment 1: Simultaneous Application of CVD and AD NME Measures
    Comment 2: Cut-Off Date for Measurement of Subsidies
    Critical Circumstances
    Comment 3: Critical Circumstances: Early Knowledge
    Comment 4: Critical Circumstances: Other Factors Contributing to 
Import Surges
    Comment 5: Critical Circumstances: The Length of the Base and 
Comparison Periods
    Provision of Goods and Services for LTAR
    Comment 6: Whether Polysilicon Producers Are Authorities
    Comment 7: Whether Polysilicon Producers Were Entrusted or 
Directed to Supply Polysilicon to the Solar Cells Industry for LTAR
    Comment 8: Specificity of the Provision of Polysilicon for LTAR
    Comment 9: Use of an In-Country Benchmark to Measure the Benefit 
from the Provision of Polysilicon for LTAR
    Comment 10: The Department's Determinations Not to Investigate 
Aluminum Extrusions and Rolled Glass Provided at LTAR
    Comment 11: The Provision of Land to Trina
    Comment 12: Use of AFA to Determine an Electricity Benchmark
    Preferential Policy Lending
    Comment 13: Whether SOCBs Are Authorities
    Comment 14: Specificity of Preferential Policy Lending
    Comment 15: Use of an In-Country Benchmark to Measure the 
Benefit from Preferential Policy Lending

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    Comment 16: Flaws in the Calculation of the External 
Preferential Policy Lending Benchmark
    Comment 17: Creditworthiness of Suntech and Trina
    Export Buyer's Credits
    Comment 18: Export Buyer's Credits
    Comment 19: Selection of AFA Rate for Export Buyer's Credits
    Comment 20: Treatment of the AFA Rate for Export Buyer's Credits 
in the AD Investigation
    Grants
    Comment 21: Trina's Benefit from the Golden Sun Demonstration 
Program
    Comment 22: Whether a Local ``Famous Brands'' Program 
Constitutes an Export Subsidy
    Comment 23: ``Discovered Grants''
    Comment 24: ``Bonus for Employees from Government'' Program
    Income Taxes
    Comment 25: De Jure Specificity of Four Tax Programs; Whether 
Four Tax Programs Are Limited to Certain Enterprises or Groups of 
Enterprises
    Comment 26: Whether the Department Should Use the Tax Return 
Covering POI Sales in Calculating Trina's Benefit from the HNTE 
Income Tax Program
    Miscellaneous
    Comment 27: Rejection of the GOC's Factual Information from the 
Record
    Comment 28: Trina's Sales Denominator
    Comment 29: Suntech's Minor Corrections
    Comment 30: Negative Determinations
    Comment 31: Allegations of Fraud Regarding Suntech
    Scope
    Comment 32: Scope of the Investigation
VIII. Recommendation

[FR Doc. 2012-25564 Filed 10-16-12; 8:45 a.m.]
BILLING CODE 3510-DS-P