[Federal Register Volume 84, Number 249 (Monday, December 30, 2019)]
[Notices]
[Pages 71897-71898]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-28032]
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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: Notice of Court
Decision
AGENCY: Enforcement and Compliance, International Trade Administration,
Department of Commerce.
SUMMARY: On September 6, 2019, the Court of International Trade (CIT)
entered its final judgment in Sumecht NA, Inc. v. United States, Court
No. 17-00244, finding that the United States Department of Commerce
(Commerce) erred in setting the effective date of its Notice of Court
Decision Not in Harmony with a Final Determination and Notice of
Amendment Final Determination of Investigation Pursuant to Court
Decision (Timken Notice) pertaining to the antidumping duty (AD)
investigation of certain crystalline silicon photovoltaic cells,
whether or not assembled into modules (certain solar cells), from the
People's Republic of China (China). Pursuant to the CIT's final
judgment, the effective date of Commerce's Timken Notice relative to
certain entries of subject merchandise exported by Sumec Hardware Tools
Co., Ltd.'s (Sumec Hardware) is November 23, 2015, which is the date of
publication of the Timken Notice in the Federal Register. Accordingly,
Commerce intends to instruct U.S. Customs and Border Protection (CBP)
to liquidate entries of subject merchandise exported by Sumec Hardware
and produced by Phono Solar Technology Co., Ltd., and imported by
Sumecht NA, doing business as Sumec North America (Sumecht), which were
entered, or withdrawn from warehouse, for consumption on or after
October 15, 2015, which is ten days after the CIT's decision, through
November 22, 2015, which is the day before the date of publication of
Commerce's Timken Notice in the Federal Register, at the separate rate
of 13.18 percent.
DATES: Applicable December 30, 2019.
FOR FURTHER INFORMATION CONTACT: Krisha Hill, AD/CVD Operations, Office
IV, Enforcement and Compliance, International Trade Administration,
U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington,
DC 20230; telephone: (202) 482-4037.
SUPPLEMENTARY INFORMATION:
Background
Commerce initiated an AD investigation of certain solar cells from
China on November 16, 2011.\1\ In the investigation, Commerce assigned
a separate AD rate of 24.48 percent to Sumec Hardware,\2\ and
determined a China-wide rate of 249.96 percent for exporters that did
not demonstrate eligibility for separate-rate status. Commerce amended
the Final Determination on December 7, 2012, which it published along
with the AD order.
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\1\ See Crystalline Silicon Photovoltaic Cells, Whether or Not
Assembled Into Modules, From the People's Republic of China:
Initiation of Antidumping Duty Investigation, 76 FR 70960 (November
16, 2011).
\2\ See 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, 77 FR 63791
(October 17, 2012); see also Crystalline Silicon Photovoltaic Cells,
Whether or Not Assembled Into Modules, From the People's Republic of
China: Amended Final Determination of Sales at Less Than Fair Value,
and Antidumping Duty Order, 77 FR 7,018 (December 7, 2012).
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The U.S. domestic producers challenged the Final Determination
before the CIT, including Sumec Hardware's separate-rate status. The
CIT
[[Page 71898]]
remanded the Final Determination, at Commerce's request, to re-examine
the separate rates assigned to four respondents, including Sumec
Hardware.\3\ On remand, Commerce determined that Sumec Hardware did not
meet the criteria for a separate rate and found it to be part of the
China-wide entity.\4\
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\3\ Jiangsu Jiasheng Photovoltaic Tech. Co. v. United States, 28
F. Supp. 3d 1317, 1338-43 (Ct. Int'l Trade 2014) (Jiangsu Jiasheng).
\4\ See Final Results of Redetermination Pursuant to Court
Order, Jiangsu Jiasheng Photovoltaic Technology Co., Ltd. v. United
States, Consol. Court No. 13-00012 (April 20, 2015) (Remand
Results).
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While that litigation was pending before the CIT, in response to
World Trade Organization (WTO) dispute settlement findings, and at the
direction of the United States Trade Representative, Commerce
implemented final determinations under Section 129 of the Uruguay Round
Agreements Act (URAA) in several investigations, including the AD
investigation of certain solar cells from China.\5\ Pursuant to the
Section 129 Implementation, Commerce revised Sumec Hardware's cash
deposit rate to 13.18 percent for entries made on or after August 2,
2015, the effective date of the Section 129 Implementation. Commerce
issued corresponding cash deposit instructions to CBP in October 2015.
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\5\ See Implementation of Determinations Under Section 129 of
the URAA, 80 FR 48812 (August 14, 2015) (Section 129
Implementation).
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On October 5, 2015, the CIT issued a confidential opinion
sustaining Commerce's Remand Results in the Jiangsu Jiasheng
litigation, including Commerce's determination assigning Sumec Hardware
the China-wide rate.\6\ Commerce published the Timken Notice following
the final CIT judgment in Jiangsu Jiasheng III on November 23, 2015.\7\
In the amended final determination, Commerce set the cash deposit rate
for Sumec Hardware, now part of the China-wide entity, at 238.95
percent.\8\ Commerce set the effective date for the Timken Notice as
October 15, 2015, which was the tenth day after the CIT's decision.\9\
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\6\ Jiangsu Jiasheng Photovoltaic Tech. Co. v. United States,
121 F. Supp. 3d 1263 (Ct. Int'l Trade 2015) (Jiangsu Jiasheng III).
The CIT issued the public version of its decision on December 22,
2015. See the CIT's website, ``Slip Opinions--2015'' (https://www.cit.uscourts.gov/SlipOpinions/SlipOps-2015.html).
\7\ Crystalline Silicon Photovoltaic Cells, Whether or Not
Assembled Into Modules, From the People's Republic of China: Notice
of Court Decision Not in Harmony With Final Determination of
Investigation and Notice of Amended Final Determination of
Investigation Pursuant to Court Decision, 80 FR 72950 (November 23,
2015) (Timken Notice).
\8\ Id.; see also Section 129 Implementation, 80 FR at 48818.
\9\ Id.; see also section 516A(e) of the Tariff Act of 1930, as
amended (the Act).
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On December 30, 2015, in accordance with Jiangsu Jiasheng III and
the associated Timken Notice, Commerce issued amended cash deposit
instructions to CBP, notifying CBP that Sumec Hardware was no longer
eligible for a separate rate. Commerce instructed CBP to collect cash
deposits at the China-wide entity rate, 238.95 percent, for shipments
of subject merchandise produced by Phono Solar Technology Co., Ltd. and
exported by Sumec Hardware that entered, or were withdrawn from
warehouse, for consumption on or after ``10/15/2015,'' the tenth day
after the Court's October 5, 2015 decision in Jiangsu Jiasheng III.
On March 14, 2016, because no party requested a review of the
China-wide entity or of Sumec Hardware for the period December 1, 2014
through November 30, 2015, Commerce issued automatic liquidation
instructions to CBP. Commerce instructed CBP to liquidate entries
during the specified period at the cash deposit in effect on the date
of entry. For Sumec Hardware, this rate was 238.95 percent (i.e., the
rate that resulted from this Court's decision in Jiangsu Jiasheng III).
On September 6, 2019, in a separate challenge--Sumecht NA, Inc. v.
United States--the CIT held that Commerce erred in setting the
effective date of the Timken Notice, amended cash deposit instructions,
and automatic instructions to thirty-nine days before publication of
the Timken Notice.\10\ The CIT directed Commerce to ``reliquidate''
Sumec Hardware's entries in a manner consistent with its opinion.\11\
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\10\ Sumecht NA, Inc. v. United States, 399 F. Supp. 3d 1370,
1379 (Ct. Int'l Trade 2019) (Sumecht).
\11\ Id. CBP has not yet liquidated the affected entries. The
liquidation of the entries has been enjoined as a result of an
injunction that is in place with respect to litigation before the
CIT involving a corresponding countervailing duty proceeding. See
Sumec Hardware & Tools Co., Ltd. v. United States, Court No. 18-
00186.
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Implementation of Court Decision
Consistent with the CIT's final judgment in Sumecht, Commerce
intends to instruct CBP to liquidate shipments of crystalline silicon
photovoltaic cells, whether or not assembled into modules, from the
China produced by Phono Solar Technology Co., Ltd., exported by Sumec
Hardware Tools Co., Ltd., and imported by Sumecht NA, doing business as
Sumec North America, which were entered, or withdrawn from warehouse,
for consumption on or after October 15, 2015 through November 22, 2015,
at the separate rate implemented with respect to the AD investigation,
as revised by the Section 129 Implementation, i.e., 13.18 percent.
Dated: December 17, 2019.
Jeffrey I. Kessler,
Assistant Secretary for Enforcement and Compliance.
[FR Doc. 2019-28032 Filed 12-27-19; 8:45 am]
BILLING CODE 3510-DS-P