[Federal Register Volume 77, Number 201 (Wednesday, October 17, 2012)]
[Notices]
[Pages 63791-63798]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-25580]


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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: Final Determination 
of Sales at Less Than Fair Value, and Affirmative Final Determination 
of Critical Circumstances, in Part

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

DATES: Effective Date: October 17, 2012.
SUMMARY: On May 25, 2012, the Department of Commerce (``Department'') 
published its preliminary determination of sales at less than fair 
value (``LTFV''), postponement of final determination and affirmative 
preliminary determination of critical circumstances in the antidumping 
investigation of crystalline silicon photovoltaic cells, whether or not 
assembled into modules (``solar cells''), from the People's Republic of 
China (``PRC'').\1\ On June 25, 2012, the Department published its 
Preliminary Determination Correction in this antidumping 
investigation.\2\ The Department invited interested parties to comment 
on the Preliminary Determination. Based on the Department's analysis of 
the comments received, the Department has made changes from the 
Preliminary Determination. The Department determines that solar cells 
from the PRC are being, or are likely to be, sold in the United States 
at LTFV, as provided in section 735 of the Tariff Act of 1930, as 
amended (the ``Act''). The final dumping margins for this investigation 
are listed in the ``Final Determination'' section below.
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    \1\ See 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,77 FR 31309 (May 25, 2012) 
(``Preliminary Determination'').
    \2\ See Crystalline Silicon Photovoltaic Cells, Whether or Not 
Assembled Into Modules, From the People's Republic of China: 
Preliminary Determination Correction, 77 FR 37877 (June 25, 2012) 
(``Preliminary Determination Correction'').

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

SUPPLEMENTARY INFORMATION:

Background

    The Department published its Preliminary Determination on May 25, 
2012.\3\ On May 22 and 25, 2012, Delsolar Co., Ltd./DelSolar (Wujiang) 
Ltd. and JinkoSolar International Limited, respectively submitted 
requests that the Department correct errors in their company names that 
appeared in the Preliminary Determination.\4\ The Department made the 
requested corrections and published its Preliminary Determination 
Correction notice on June 25, 2012.
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    \3\ See Preliminary Determination.
    \4\ See Letter from JinkoSolar International Limited to the 
Department regarding, ``Crystalline Silicon Photovoltaic Cells, 
Whether or Not Assembled into Modules, from the People's Republic of 
China; Ministerial Error in Preliminary Determination,'' dated May 
25, 2012. See also Letter from DelSolar Co., Ltd. and DelSolar 
(Wujiang) Ltd. to the Department regarding, ``Crystalline Silicon 
Photovoltaic Cells, Whether or Not Assembled Into Modules, from the 
People's Republic of China: Request for Correction,'' dated May 22, 
2012.
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    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.\5\
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    \5\ See the ``Verification'' section below.
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    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.\6\ Subsequently, the Department rejected Yingli's case 
brief because it contained certain new factual information.\7\ Yingli 
resubmitted its redacted case brief on August 3, 2012.\8\ On August 6, 
2012, Wuxi Suntech Power Co., Ltd., Trina, Petitioner, tenKsolar 
(Shanghai) Co., Ltd. and tenKsolar, Inc. (collectively ``tenKsolar''), 
SunPower Corporation, and Sumec Hardware & Tools Co., Ltd. et al.\9\ 
submitted rebuttal briefs. Further,

[[Page 63792]]

Wuxi Suntech, Trina Solar and Trina Solar (U.S.), Inc., and Yingli 
jointly submitted a rebuttal brief on August 6, 2012.
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    \6\ See Letter from the Department to Small Steps Solar, Ltd., 
regarding ``Crystalline Silicon Photovoltaic Cells, Whether or Not 
Assembled Into Modules, from the People's Republic of China: Small 
Steps Solar, Ltd.'s July 31, 2012 Submission,'' dated August 3, 
2012.
    \7\ See Letter from the Department to Yingli, regarding 
``Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled 
Into Modules, from the People's Republic of China: July 30, 2012 
Case Brief of Yingli Green Energy Holding Company Limited and Yingli 
Green Energy Americas, Inc.,'' dated August 2, 2012.
    \8\ See Letter from Yingli to the Department, regarding 
``Crystalline Silicon Photovoltaic Celis, Whether or Not Assembled 
into Modules, from the People's Republic of China: Resubmission of 
Yingli's Case Brief,'' dated August 3, 2012.
    \9\ The following separate rate companies jointly submitted a 
rebuttal brief: Sumec Hardware & Tools Co., Ltd., Ningbo Etdz 
Holdings Ltd., LDK Solar Hi-Tech (Nanchang) Co., Ltd., LDK Solar Hi-
Tech (Suzhou) Co., Ltd., Ningbo Qixin Solar Electrical Appliance 
Co., Ltd., Ningbo Komaes Solar Technology Co., Ltd., Zhejiang Jiutai 
New Energy Co., Ltd., ET Solar Industry Limited, JingAo Solar Co., 
Ltd., Dongfang Electric (Yixing) MAGI Solar Power Technology Co., 
Ltd., Shanghai JA Solar Technology Co., Ltd., Jiangsu Sunlink PV 
Technology Co., Ltd., and JA Solar Technology Yangzhou Co., Ltd.
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    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.\10\ On September 11, 2012, the 
Department reopened the record for parties to comment on Petitioner's 
allegation of fraud. On September 14, 2012 and September 18, 2012, Wuxi 
Suntech and Petitioner filed comments and rebuttal comments, 
respectively, regarding the fraud issue raised by Petitioner.
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    \10\ See Letter from Petitioner to the Department, regarding 
``Crystalline Silicon Phototovoltaic Cells, Whether or Not Assembled 
into Modules, from the People's Republic of China: Request to Reopen 
the Records to New Factual Information,'' dated September 7, 2012.
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Period of Investigation

    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.\11\
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    \11\ See 19 CFR 351.204(b)(1).
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Analysis of Comments Received

    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 http://iaaccess.trade.gov and in the Central 
Records Unit (``CRU''), room 7046 of the main Department of Commerce 
building. In addition, a complete version of the Issues and Decision 
Memorandum can be accessed directly on the internet at http://www.trade.gov/ia/. The signed Issues and Decision Memorandum and the 
electronic versions of the Issues and Decision Memorandum are identical 
in content.

Changes Since the Preliminary Determination

Changes Applicable to Multiple Companies
     Updated surrogate values for certain direct materials.
     Used an additional financial statement to calculate 
surrogate financial ratios.
Changes Specific to Wuxi Suntech
     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.
Changes Specific to Trina
     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 Sigma cap to certain suppliers' 
distances where the surrogates used to value the input are not based on 
import statistics.
     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.

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).

[[Page 63793]]

    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.\12\ 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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    \12\ U.S. Customs and Border Protection (``CBP'') provided 
notification that HTSUS number 8501.31.8000 should be added to the 
scope of the investigation, as certain articles under this number 
may fall within the scope. See Memorandum from Gene H. Calvert 
through Mark Hoadley to the File, ``ACE Case Reference File 
Update,'' dated May 16, 2012.
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Scope Comments

    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, see the 
Issues and Decision Memorandum at Comment 1.

Critical Circumstances

    In the Preliminary Determination, we determined that critical 
circumstances exist for Wuxi Suntech, Trina, the separate rate 
respondents, and the PRC-wide entity, based on two comparisons. We 
examined two comparison periods starting either September 2011 or 
October 2011 based on imputing knowledge that a proceeding was likely 
in either early or late September 2011. Due to data availability in the 
Preliminary Determination we ended both comparison periods in March 
2012. Specifically, we compared imports during a base period of 
February 2011 through August 2011 to imports from September 2011 
through March 2012, and imports during a base period of April 2011 
through September 2011 to imports from October 2011 through March 2012. 
For the final determination we have shipment data for both Wuxi Suntech 
and Trina for April 2012 and May 2012. Based on our practice, we have 
included data in our comparison period through the month of the 
Preliminary Determination, May 2012. For the final determination, we 
have determined that critical circumstances do not exist for Wuxi 
Suntech. However, critical circumstances continue to exist for Trina, 
the separate rate respondents, and the PRC-wide entity. For a complete 
discussion of critical circumstances issues see the Issues and Decision 
Memorandum at Comment 10.

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.\13\ On February 13, 
2012, Petitioner alleged targeted dumping with respect to Wuxi 
Suntech's \14\ and Trina's \15\ 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.\16\ The 
methodology employed involves a two-stage test; the first stage 
addresses the pattern requirement and the second stage addresses the 
significant-difference requirement.\17\ 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 in our 
margin calculations.
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    \13\ See section 777A (d)(1)(B) of the Act.
    \14\ 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.
    \15\ 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.
    \16\ 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.
    \17\  See section 777A(d)(1)(B)(i) of the Act and Steel Nails, 
and accompanying Issues and Decision Memorandum at Comment 2.
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    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 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.\18\ Accordingly, we have applied the standard average-to-
average methodology to all of Wuxi Suntech's and Trina's U.S. 
sales.\19\
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    \18\ See Statement of Administrative Action accompanying the 
Uruguay Round Agreements Act, H.R. Doc. 103-316, vol. 1 (1994) at 
843 (``SAA'').
    \19\ 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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Verification

    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.

[[Page 63794]]

Nonmarket Economy Country

    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.

Surrogate Country

    In the Preliminary Determination, the Department stated that it 
selected Thailand as the appropriate surrogate country to use in this 
investigation pursuant to section 773(c)(4) of the Act based on the 
following: (1) It is at a similar level of economic development; (2) it 
is a significant producer of comparable merchandise; and (3) we have 
reliable data from Thailand that we can use to value the factors of 
production. In their case briefs, Wuxi Suntech and Trina state that 
India should be selected as surrogate country because India's solar 
cell industry and population resembles that of the PRC, Thai surrogate 
value data are deficient for certain inputs, and the record lacks 
financial statements for Thai producers of identical merchandise. 
Petitioner argues that India is not economically comparable to the PRC, 
and that the Department should continue to use Thailand as the 
surrogate country. As discussed in the Issues and Decision Memorandum, 
the Department continues to find that Thailand is the appropriate 
surrogate country for this investigation. For a complete discussion of 
surrogate country issues, see the Issues and Decision Memorandum at 
Comment 4.

Separate Rate Companies

    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 Preliminary Determination with respect to the 
companies seeking separate rate status.
    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 Preliminary Determination 
demonstrates both de jure and de facto absence of government control 
with respect to each company's respective exports of the merchandise 
under investigation. Further, the Department has continued to deny 
certain companies separate rate status as was the case in the 
Preliminary Determination. For a complete discussion of separate rate 
issues, see the Issues and Decision Memorandum at Comment 6.
    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 de minimis 
margins or margins based entirely on adverse facts available 
(``AFA'').\20\ In this investigation, both Wuxi Suntech and Trina have 
estimated weighted-average dumping margins which are above de minimis 
and which are not based on total AFA. Because there are only two 
relevant weighted-average dumping margins for this final determination, 
using a weighted-average of these two margins risks disclosure of 
business proprietary information (``BPI'') data. Therefore, the 
Department has calculated both a simple average and a weighted-average 
of the two final dumping margins calculated for the mandatory 
respondents using public values for sales of subject merchandise 
reported by respondents and used the average that provides a more 
accurate proxy for the weighted-average margin of both companies 
calculated using BPI data, which in this investigation is 25.96 
percent.\21\
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    \20\ See section 735(c)(5)(A) of the Act.
    \21\ See the October 9, 2012, memorandum from Jeff Pedersen to 
the File entitled ``Calculation of the Final Margin for Separate 
Rate Recipients.''
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Use of Facts Available and Adverse Facts Available

    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.
PRC-Wide Entity
    In the Preliminary Determination, the Department determined that 
certain PRC exporters/producers did not respond to the Department's 
requests for information and did not establish that they were separate 
from the PRC-wide entity. Thus, the Department has found that these PRC 
exporters/producers are part of the PRC-wide entity and the PRC-wide 
entity has not responded to our requests for information. Because the 
PRC-wide entity did not provide the Department with requested 
information, pursuant to section 776(a)(2)(A) of the Act, the 
Department continues to find it appropriate to base the PRC-wide rate 
on FA.
    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.\22\
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    \22\ See, e.g., Notice of Final Determination of Sales at Less 
Than Fair Market Value: Synthetic Indigo From the People's Republic 
of China, 65 FR 25706, 25707 (May 2, 2000).
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Selection of the Adverse Facts Available Rate for the PRC-Wide Entity
    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

[[Page 63795]]

facts available rule to induce respondents to provide the Department 
with complete and accurate information in a timely manner.'' \23\ 
Further, it is the Department's practice to select a rate that ensures 
``that the party does not obtain a more favorable result by failing to 
cooperate than if it had cooperated fully.'' \24\ Thus, it is the 
Department's practice to select as AFA the higher of the (a) highest 
margin alleged in the petition or (b) the highest calculated rate of 
any respondent in the investigation.\25\ In order to determine the 
probative value of the margins in the petition for use as AFA for 
purposes of this final determination, we analyzed the U.S. prices and 
normal values for each of the individually investigated parties. Based 
on this analysis, we determined that the price and normal value used to 
derive the highest margin contained in the petition are within the 
range of the U.S. prices and normal values for the respondents in this 
investigation.\26\ 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.
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    \23\ See Notice of Final Determination of Sales at Less than 
Fair Value: Static Random Access Memory Semiconductors From Taiwan, 
63 FR 8909, 8932 (February 23, 1998).
    \24\ See Brake Rotors from the People's Republic of China: Final 
Results and Partial Rescission of the Seventh Administrative Review; 
Final Results of the Eleventh New Shipper Review, 70 FR 69937, 69939 
(November 18, 2005)(quoting the Statement of Administrative Action 
accompanying the Uruguay Round Agreements Act, H. Doc. No. 316, 103d 
Cong., 2d Session at 870 (1994)).
    \25\ See, e.g., Seamless Refined Copper Pipe and Tube From the 
People's Republic of China: Final Determination of Sales at Less 
Than Fair Value, 75 FR 60725, 60729 (October 1, 2010).
    \26\ See Wuxi Suntech and Trina Solar Analysis Memoranda.
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    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.

Combination Rates

    In the Initiation Notice, the Department stated that it would 
calculate combination rates for respondents that are eligible for a 
separate rate in this investigation. This practice is described in 
Policy Bulletin 05.1, available at http://www.trade.gov/ia/.

Final Determination

    The Department determines that the following weighted-average 
dumping margins exist for the period April 1, 2011, through September 
30, 2011.

------------------------------------------------------------------------
                                                             Weighted-
            Exporter                     Producer             average
                                                          percent margin
------------------------------------------------------------------------
Changzhou Trina Solar Energy     Changzhou Trina Solar             18.32
 Co., Ltd. and Trina Solar        Energy Co., Ltd.
 (Changzhou) Science &
 Technology Co., Ltd.
                                 Trina Solar (Changzhou)           18.32
                                  Science & Technology
                                  Co., Ltd.
Wuxi Suntech Power Co., Ltd.,    Wuxi Suntech Power Co.,           31.73
 Luoyang Suntech Power Co.,       Ltd.
 Ltd., Suntech Power Co., Ltd.
 and Wuxi Sun-shine Power Co.,
 Ltd.
                                 Luoyang Suntech Power             31.73
                                  Co., Ltd.
                                 Suntech Power Co., Ltd.           31.73
                                 Wuxi Sun-shine Power              31.73
                                  Co., Ltd.
Baoding Tianwei Yingli New       Baoding Tianwei Yingli            25.96
 Energy Resources Co., Ltd.       New Energy Resources
                                  Co., Ltd.
                                 Yingli Energy (China)             25.96
                                  Company Limited.
Tianwei New Energy (Chengdu) PV  Tianwei New Energy                25.96
 Module Co., Ltd.                 (Chengdu) PV Module
                                  Co., Ltd.
Canadian Solar International     Canadian Solar                    25.96
 Limited.                         Manufacturing
                                  (Changshu) Inc.
                                 Canadian Solar                    25.96
                                  Manufacturing
                                  (Luoyang) Inc.
Canadian Solar Manufacturing     Canadian Solar                    25.96
 (Changshu) Inc.                  Manufacturing
                                  (Changshu), Inc.
Canadian Solar Manufacturing     Canadian Solar                    25.96
 (Luoyang) Inc.                   Manufacturing
                                  (Luoyang), Inc.
Hanwha Solarone (Qidong) Co.,    Hanwha Solarone                   25.96
 Ltd.                             (Qidong) Co., Ltd.
CEEG (Shanghai) Solar Science    CEEG (Shanghai) Solar             25.96
 Technology Co., Ltd.             Science Technology
                                  Co., Ltd.
                                 CEEG Nanjing Renewable            25.96
                                  Energy Co., Ltd.
CEEG Nanjing Renewable Energy    CEEG Nanjing Renewable            25.96
 Co., Ltd.                        Energy Co., Ltd.
Jiawei Solarchina Co., Ltd.....  Jiawei Solarchina                 25.96
                                  (Shenzhen) Co., Ltd.
Yingli Energy (China) Company    Yingli Energy (China)             25.96
 Limited.                         Company Limited.
                                 Baoding Tianwei Yingli            25.96
                                  New Energy Resources
                                  Co., Ltd.
LDK Solar Hi-tech (Nanchang)     LDK Solar Hi-tech                 25.96
 Co., Ltd.                        (Nanchang) Co., Ltd.
LDK Solar Hi-tech (Suzhou) Co.,  LDK Solar Hi-tech                 25.96
 Ltd.                             (Suzhou) Co., Ltd.
Jiawei Solarchina (Shenzhen)     Jiawei Solarchina                 25.96
 Co., Ltd.                        (Shenzhen) Co., Ltd.
Changzhou NESL Solartech Co.,    Changzhou NESL                    25.96
 Ltd.                             Solartech Co., Ltd.
China Sunergy (Nanjing) Co.,     China Sunergy (Nanjing)           25.96
 Ltd.                             Co., Ltd.
Chint Solar (Zhejiang) Co., Ltd  Chint Solar (Zhejiang)            25.96
                                  Co., Ltd.
Suzhou Shenglong PV-Tech Co.,    Suzhou Shenglong PV-              25.96
 Ltd.                             TECH Co., Ltd.
tenKsolar (Shanghai) Co., Ltd..  tenKsolar (Shanghai)              25.96
                                  Co., Ltd.
Upsolar Group, Co., Ltd........  HC Solar Power Co., Ltd           25.96
                                 Zhiheng Solar Inc......           25.96
                                 Zhejiang Leye                     25.96
                                  Photovoltaic Science &
                                  Technology Co., Ltd.
                                 Tianwei New Energy                25.96
                                  (Chengdu) PV Module
                                  Co., Ltd.
                                 Zhejiang ZG-Cells Co.,            25.96
                                  Ltd.
                                 Zhejiang Xinshun                  25.96
                                  Guangfu Science and
                                  Technology Co., Ltd.
                                 Zhejiang Jiutai New               25.96
                                  Energy Co., Ltd.
Wanxiang Import & Export Co.,    Zhejiang Wanxiang Solar           25.96
 Ltd.                             Co., Ltd.
Jinko Solar Import and Export    Jinko Solar Co., Ltd...           25.96
 Co., Ltd.
JinkoSolar International         Jinko Solar Co., Ltd...           25.96
 Limited.
CNPV Dongying Solar Power Co.,   CNPV Dongying Solar               25.96
 Ltd.                             Power Co., LTD.
CSG PVTech Co., Ltd............  CSG PVTech Co., Ltd....           25.96
Delsolar Co., Ltd..............  DelSolar (Wujiang) Ltd.           25.96

[[Page 63796]]

 
Dongfang Electric (Yixing) MAGI  Dongfang Electric                 25.96
 Solar Power Technology Co.,      (Yixing) MAGl Solar
 Ltd.                             Power Technology Co.,
                                  Ltd.
Eoplly New Energy Technology     Eoplly New Energy                 25.96
 Co., Ltd.                        Technology Co., Ltd.
ERA Solar Co., Ltd.............  ERA Solar Co., Ltd.....           25.96
ET Solar Energy Limited........  ET Solar Industry                 25.96
                                  Limited.
Hangzhou Zhejiang University     Hangzhou Zhejiang                 25.96
 Sunny Energy Science and         University Sunny
 Technology Co., Ltd.             Energy Science and
                                  Technology Co., Ltd.
Himin Clean Energy Holdings      Himin Clean Energy                25.96
 Co., Ltd.                        Holdings Co., Ltd.
JA Solar Technology Yangzhou     JingAo Solar Co., Ltd..           25.96
 Co., Ltd.
Jetion Solar (China) Co., Ltd..  Jetion Solar (China)              25.96
                                  Co., Ltd.
Jiangsu Green Power PV Co., Ltd  Jiangsu Green Power PV            25.96
                                  Co., Ltd.
Jiangsu Sunlink PV Technology    Jiangsu Sunlink PV                25.96
 Co., Ltd.                        Technology Co., Ltd.
JingAo Solar Co., Ltd..........  JingAo Solar Co., Ltd..           25.96
Konca Solar Cell Co., Ltd......  Konca Solar Cell Co.,             25.96
                                  Ltd.
Leye Photovoltaic Co., Ltd.....  Leye Photovoltaic Co.,            25.96
                                  Ltd.
Lightway Green New Energy Co.,   Lightway Green New                25.96
 Ltd.                             Energy Co., Ltd.
Motech (Suzhou) Renewable        Motech (Suzhou)                   25.96
 Energy Co., Ltd.                 Renewable Energy Co.,
                                  Ltd.
Ningbo ETDZ Holdings, Ltd......  Hangzhou Zhejiang                 25.96
                                  University Sunny
                                  Energy Science and
                                  Technology Co., LTD.
Ningbo Komaes Solar Technology   Ningbo Komaes Solar               25.96
 Co., Ltd.                        Technology Co., Ltd.
Ningbo Qixin Solar Electrical    Ningbo Qixin Solar                25.96
 Appliance Co., Ltd.              Electrical Appliance
                                  Co., Ltd.
Ningbo Ulica Solar Science &     Ningbo Ulica Solar                25.96
 Technology Co., Ltd.             Science & Technology
                                  Co., Ltd.
Perlight Solar Co., Ltd........  Perlight Solar Co., Ltd           25.96
Risen Energy Co., Ltd..........  Risen Energy Co., Ltd..           25.96
Shanghai BYD Company Limited...  Shanghai BYD Company              25.96
                                  Limited.
Shanghai JA Solar Technology     Shanghai JA Solar                 25.96
 Co., Ltd.                        Technology Co., Ltd.
Shanghai Solar Energy Science &  Shanghai Solar Energy             25.96
 Technology Co., Ltd.             Science & Technology
                                  Co., Ltd.
Shenzhen Topray Solar Co., Ltd.  Shenzhen Topray Solar             25.96
                                  Co., Ltd.
Solarbest Energy-Tech            Solarbest Energy-Tech             25.96
 (Zhejiang) Co., Ltd.             (Zhejiang) Co., Ltd.
Sopray Energy Co., Ltd.........  Sopray Energy Co., Ltd.           25.96
Sumec Hardware & Tools Co., Ltd  Phono Solar Technology            25.96
                                  Co., Ltd.
Sun Earth Solar Power Co., Ltd.  Sun Earth Solar Power             25.96
                                  Co., Ltd.
Yuhuan Sinosola Science &        Yuhuan Sinosola Science           25.96
 Technology Co., Ltd.             & Technology Co., Ltd.
Yuhuan Solar Energy Source Co.,  Yuhuan Solar Energy               25.96
 Ltd.                             Source Co., Ltd.
Zhejiang Jiutai New Energy Co.,  Zhejiang Topoint                  25.96
 Ltd.                             Photovoltaic Co., Ltd.
Zhejiang Shuqimeng Photovoltaic  Zhejiang Shuqimeng                25.96
 Technology Co., Ltd.             Photovoltaic
                                  Technology Co., Ltd.
Zhejiang Sunflower Light Energy  Zhejiang Sunflower                25.96
 Science & Technology Limited     Light Energy Science &
 Liability Company.               Technology Limited
                                  Liability Company.
PRC-Wide Rate..................  .......................          249.96
------------------------------------------------------------------------

Disclosure

    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).

Continuation of Suspension of Liquidation

    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 Preliminary Determination in the Federal 
Register. Since critical circumstances do not exist for Wuxi Suntech, 
the Department will instruct CBP to suspend liquidation of all 
appropriate entries of subject merchandise from Wuxi Suntech that were 
entered, or withdrawn from warehouse for consumption on or after May 
25, 2012, the publication date of the Preliminary Determination in the 
Federal Register. We will also instruct CBP to issue a refund for all 
appropriate entries of subject merchandise from Wuxi Suntech that were 
suspended up to 90 days prior to the publication date of the 
Preliminary Determination.
    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.

Certification Requirements

    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

[[Page 63797]]

are also required to maintain the exporter certification in Appendix II 
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.\27\
---------------------------------------------------------------------------

    \27\ 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 May 16, 2012.
---------------------------------------------------------------------------

ITC Notification

    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.

Notification Regarding APO

    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.

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

Appendix I--Issues for Final Determination

General Issues

Comment 1: Scope of the Investigation
Comment 2: Selection of Surrogate Financial Statements
Comment 3: Date of Sale
Comment 4: Surrogate Country
Comment 5: Labor Rate
Comment 6: Separate Rates
Comment 7: Overhead Items
Comment 8: Exclusion of Import Data with Values but Quantities of 
Zero
Comment 9: Surrogate Value for Wafers
Comment 10: Critical Circumstances
Comment 11: Allegations of Fraud
Comment 12: Application of Sigma
Comment 13: Double Remedies and Concurrent AD and CVD Investigations
Comment 14: Collection of Antidumping Duties
Comment 15: Surrogate Value for Quartz Crucibles
Comment 16: Surrogate Value for Aluminum Frames
Comment 17: Surrogate Value for Tin Ribbon
Comment 18: Surrogate Value for Glass Plate for Wafer Slicing

Issues Relating To Trina

Comment 19: Unreported FOPs by Cell Suppliers and Tollers
Comment 20: Ocean Freight Expenses
Comment 21: Errors Identified at Trina U.S.'s Verification
Comment 22: Source for Barge Freight
Comment 23: Whether to Apply NME Freight Charges to All of Trina's 
Sales
Comment 24: Surrogate Value for Polysilicon
Comment 25: Surrogate Value for Suspension
Comment 26: Surrogate Value for Trina's Back Sheet

Issues Relating to Wuxi Suntech

Comment 27: Whether Partial AFA Should be Used in Place of 
Unreported FOPs for Modules Assembled Under Back-to-Back Agreements
Comment 28: Whether Suntech America's Product Recall Expenses Should 
be Included In Indirect Selling Expenses
Comment 29: Exclusion of South Korean MEP Data
Comment 30: Acceptance of Minor Corrections Submitted at 
Verification
Comment 31: Exclusion of Sample Sales from the Margin Calculation
Comment 32: Valuing Inputs from NME Suppliers When the Inputs Were 
Used in Further Manufacturing
Comment 33: Whether Partial AFA Should be Applied to Value Labor and 
Energy for Tolled Modules
Comment 34: Whether the ISE Rate Should be Applied to Gross Unit 
Price Less Billing Adjustments and Early Payment Discounts
Comment 35: Suntech Arizona Financial Expense Rate
Comment 36: Whether Suntech America's Bad Debt Expense Should be 
Included
Comment 37: Verification Findings
Comment 38: Whether Certain Reported Market Economy Purchases Were 
Purchased from a Market Economy Supplier
Comment 39: Surrogate Value for PEG
Comment 40: Surrogate Value for Silica Purge of Liquid (IPA)
Comment 41: Surrogate Value for Hydrochloric Acid
Comment 42: Diamond Wire Saw Blade Surrogate Value
Comment 43: Whether Back-to-Back Arrangements Should be Considered 
Purchases or Tolling

Issues Relating to Other Respondents

Comment 44: Voluntary Respondent Treatment of Yingli
Comment 45: Treatment of Jiasheng's Separate Rate Application
Comment 46: Treatment of Chaori's Separate Rate Application

Appendix II--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

[[Page 63798]]

applicable, a bond, on those entries equal to the PRC-wide rate in 
effect at the time of the entry and a CVD cash deposit, or where 
applicable, a bond rate equal to the all-others rate in effect at 
the time of the entry.

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

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

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

Date

Exporter Certification

    I hereby certify that I am an official of insert name of company 
exporting solar panels/modules, that I have knowledge of the facts 
regarding the exportation of the solar panels/modules or other 
products containing solar panels/modules identified below, and that 
these solar panels/modules do not contain solar cells produced in 
the People's Republic of China. By signing this certificate, I also 
hereby certify that insert name of company exporting solar panels/
modules maintains sufficient documentation supporting this 
certification for all solar cells used to produce the solar panels/
modules identified below. I am aware that records pertaining to this 
certification may be subject to verification by Department of 
Commerce officials and I consent to verification with respect to 
this certification and these records. I understand that this 
certification should be completed at the time of shipment. I also 
understand that failure to maintain the required certification or 
failure to substantiate the claim that the panels/modules do not 
contain solar cells produced in the People's Republic of China will 
result in suspension of all unliquidated entries for which these 
requirements were not met and the requirement that the importer post 
an AD cash deposit or, where applicable, a bond, on those entries 
equal to the PRC-wide rate in effect at the time of the entry and a 
CVD cash deposit, or where applicable, a bond rate equal to the all-
others rate in effect at the time of the entry.
    The exports covered by this certification are insert invoice 
numbers, purchase order numbers, export documentation, etc. to 
identify the exports covered by the certification.

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

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

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

Date

[FR Doc. 2012-25580 Filed 10-16-12; 8:45 am]
BILLING CODE 3510-DS-P