[Federal Register Volume 87, Number 63 (Friday, April 1, 2022)]
[Notices]
[Pages 19071-19072]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-06827]


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

DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-979, C-570-980]


Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled 
Into Modules, From the People's Republic of China: Initiation of 
Circumvention Inquiry on the Antidumping Duty and Countervailing Duty 
Orders

AGENCY: Enforcement and Compliance, International Trade Administration, 
Department of Commerce.

SUMMARY: In response to a request from Auxin Solar Inc. (Auxin), the 
Department of Commerce (Commerce) is initiating country-wide 
circumvention inquiries to determine whether imports of crystalline 
silicon photovoltaic cells, whether or not assembled into modules 
(solar cells and modules), which are completed in Cambodia, Malaysia, 
Thailand, or Vietnam using parts and components from the People's 
Republic of China (China), are circumventing the antidumping duty (AD) 
and countervailing duty (CVD) orders on solar cells and modules from 
China.

DATES: Applicable April 1, 2022.

FOR FURTHER INFORMATION CONTACT: Jeff Pedersen or Paola Aleman Ordaz 
(Thailand and Vietnam), Office IV, or Chien-Min Yang (Cambodia and 
Malaysia), Office VII, AD/CVD Operations, Enforcement and Compliance, 
International Trade Administration, U.S. Department of Commerce, 1401 
Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-
2769, (202) 482-4031, and (202) 482-5484, respectively.

SUPPLEMENTARY INFORMATION: 

Background

    On February 8, 2022, pursuant to section 781(b) of the Tariff Act 
of 1930, as amended (the Act), and 19 CFR 351.226(c), Auxin filed a 
circumvention inquiry request alleging that solar cells and modules 
completed in Cambodia, Malaysia, Thailand, or Vietnam using parts and 
components manufactured in China are circumventing the Orders \1\ and, 
accordingly, should be included within the scope of the Orders.\2\ 
Parties have filed numerous letters with Commerce in which they 
explained their views concerning the requested circumvention inquiries. 
On March 9, 2022, we extended the deadline to determine whether to 
initiate these circumvention inquiries by 15 days, in accordance with 
19 CFR 351.226(d)(1).\3\
---------------------------------------------------------------------------

    \1\ See 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 73018 (December 7, 2012) and 
Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled 
Into Modules, from the People's Republic of China: Countervailing 
Duty Order, 77 FR 73017 (December 7, 2012) (Orders).
    \2\ See Auxin's Letter, ``Auxin Solar's Request for an Anti-
Circumvention Ruling Pursuant to Section 781(b) of the Tariff Act of 
1930, As Amended,'' dated February 8, 2022.
    \3\ See Memorandum, ``Extension of Time to Determine Whether to 
Initiate Anti-Circumvention Inquiry,'' dated March 9, 2022.
---------------------------------------------------------------------------

Scope of the Orders

    The merchandise covered by these Orders 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. 
Merchandise covered by these Orders is currently classified in the 
Harmonized Tariff Schedule of the United States (HTSUS) under 
subheadings 8501.71.0000, 8501.72.1000, 8501.72.2000, 8501.72.3000, 
8501.72.9000, 8501.80.1000, 8501.80.2000, 8501.80.3000, 8501.80.9000, 
8507.20.8010, 8507.20.8031, 8507.20.8041, 8507.20.8061, 8507.20.8091, 
8541.42.0010, and 8541.43.0010. Although these HTSUS subheadings are 
provided for convenience and customs purposes, the written description 
of the scope of the Orders is dispositive. For a complete description 
of the scope of the Orders, see the Initiation Memorandum.\4\
---------------------------------------------------------------------------

    \4\ See Memorandum, ``Crystalline Silicon Photovoltaic Cells, 
Whether or Not Assembled Into Modules from the People's Republic of 
China: Initiation of Circumvention Inquiries,'' dated concurrently 
with, and hereby adopted by, this notice (Initiation Memorandum).
---------------------------------------------------------------------------

Merchandise Subject to the Circumvention Inquiries

    The circumvention inquiries cover solar cells and modules that have 
been completed in Cambodia, Malaysia, Thailand, or Vietnam, using parts 
and components from China, that are then subsequently exported from 
Cambodia, Malaysia, Thailand, or Vietnam to the United States.

Initiation of Circumvention Inquiries

    Section 351.226(d) of Commerce's regulations states that if 
Commerce determines that a request for a circumvention inquiry 
satisfies the requirements of 19 CFR 351.226(c), then Commerce ``will 
accept the request and initiate a circumvention inquiry.'' Section 
351.226(c)(1) of Commerce's regulations, in turn, requires that each 
request for a circumvention inquiry allege ``that the elements 
necessary for a circumvention determination under section 781 of the 
Act exist'' and be ``accompanied by information reasonably available to 
the interested party supporting these allegations.'' Auxin alleged 
circumvention pursuant to section 781(b) of the Act (merchandise 
completed or assembled in other foreign countries).
    According to section 781(b)(1) of the Act, after taking into 
account any advice provided by the U.S. International Trade Commission 
(ITC) under section 781(e) of the Act, Commerce may find merchandise 
imported into the United States to be covered by the scope of an order 
if: (A) Merchandise imported into the United States is of the same 
class or kind as any merchandise produced in a foreign country that is 
the subject of an AD order or finding or a CVD order; (B) before 
importation into the United States, such imported merchandise is 
completed or assembled in another foreign country from merchandise 
which is subject to the order or finding or is produced in the foreign 
country with respect to which such order or finding applies; (C) the 
process of assembly or completion in the foreign country referred to in 
subparagraph (B) is minor or insignificant; (D) the value of the 
merchandise produced in the foreign country to which the AD (or CVD) 
order applies is a significant portion of the total value of the 
merchandise exported to the United

[[Page 19072]]

States; and (E) the administering authority determines that action is 
appropriate to prevent evasion of such order or finding.
    In determining whether the process of assembly or completion in a 
third country is minor or insignificant under section 781(b)(1)(C) of 
the Act, section 781(b)(2) of the Act directs Commerce to consider: (A) 
The level of investment in the foreign country; (B) the level of 
research and development in the foreign country; (C) the nature of the 
production process in the foreign country; (D) the extent of production 
facilities in the foreign country; and (E) whether the value of 
processing performed in the foreign country represents a small 
proportion of the value of the merchandise imported into the United 
States.
    In addition, section 781(b)(3) of the Act sets forth additional 
factors to consider in determining whether to include merchandise 
assembled or completed in a third country within the scope of an AD or 
CVD order. Specifically, Commerce shall take into account such factors 
as: (A) The pattern of trade, including sourcing patterns; (B) whether 
the manufacturer or exporter of the merchandise that was shipped to the 
third country for completion or assembly is affiliated with the person 
in the third country who assembles or completes the merchandise that is 
subsequently imported into the United States; and (C) whether imports 
of the merchandise into the third country that was completed or 
assembled have increased after the initiation of the investigation 
which resulted in the issuance of the order or finding.
    Based on our analysis of Auxin's circumvention request, we 
determined that Auxin satisfied the criteria under 19 CFR 351.226(c), 
and thus, pursuant to 19 CFR 351.226(d)(1)(ii), we have accepted the 
request and are initiating the requested circumvention inquiries of the 
Orders. For a full discussion of the basis for our decision to initiate 
the requested circumvention inquiries, see the Initiation 
Memorandum.\5\ Moreover, as explained in the Initiation Memorandum, 
based on the information provided by Auxin, we have initiated country-
wide circumvention inquiries. Commerce has taken this approach in prior 
circumvention inquiries where the facts warranted initiation on a 
country-wide basis.\6\
---------------------------------------------------------------------------

    \5\ See Initiation Memorandum.
    \6\ See, e.g., Certain Corrosion-Resistant Steel Products from 
the Republic of Korea and Taiwan: Initiation of Anti-Circumvention 
Inquiries on the Antidumping Duty and Countervailing Duty Orders, 83 
FR 37785 (August 2, 2018); Carbon Steel Butt-Weld Pipe Fittings from 
the People's Republic of China: Initiation of Anti-Circumvention 
Inquiry on the Antidumping Duty Order, 82 FR 40556, 40560 (August 
25, 2017) (stating at initiation that Commerce would evaluate the 
extent to which a country-wide finding applicable to all exports 
might be warranted); and Certain Corrosion-Resistant Steel Products 
from the People's Republic of China: Initiation of Anti-
Circumvention Inquiries on the Antidumping Duty and Countervailing 
Duty Orders, 81 FR 79454, 79458 (November 14, 2016) (stating at 
initiation that Commerce would evaluate the extent to which a 
country-wide finding applicable to all exports might be warranted).
---------------------------------------------------------------------------

    Consistent with the approach taken in prior circumvention inquiries 
that Commerce initiated on a country-wide basis, we intend to solicit 
information from certain companies in Cambodia, Malaysia, Thailand, and 
Vietnam concerning their production of solar cells and modules and 
their shipments thereof to the United States. A company's failure to 
completely respond to Commerce's requests for information may result in 
the application of partial or total facts available, pursuant to 
section 776(a) of the Act, which may include adverse inferences, 
pursuant to section 776(b) of the Act.

Respondent Selection

    Commerce intends to base respondent selection on responses to 
quantity and value questionnaires. Commerce intends to identify the 
companies to which it will issue the quantity and value questionnaire, 
in part, based on CBP data. Parties to which Commerce does not issue 
the quantity and value questionnaire may also respond to the quantity 
and value questionnaire, which will be available in ACCESS, by the 
applicable deadline. Commerce intends to place the CBP data on the 
record within five days of publication of the initiation notice. 
Comments regarding the CBP data and respondent selection should be 
submitted within seven days after placement of the CBP data on the 
record of the relevant inquiry.

Suspension of Liquidation

    Pursuant to 19 CFR 351.226(l)(1), Commerce will notify U.S. Customs 
and Border Protection (CBP) of its initiation of the requested 
circumvention inquiries and direct CBP to continue the suspension of 
liquidation of entries of products subject to the circumvention 
inquiries that were already subject to the suspension of liquidation 
and to apply the cash deposit rate that would be applicable if the 
products were determined to be covered by the scope of the Orders. 
Should Commerce issue preliminary or final circumvention 
determinations, Commerce will follow the suspension of liquidation 
rules under 19 CFR 351.226(l)(2)-(4).

Notification to Interested Parties

    In accordance with 19 CFR 351.226(d) and section 781(b) of the Act, 
Commerce has determined that the Auxin' request for circumvention 
inquiries satisfies the requirements of 19 CFR 351.226(c). Accordingly, 
Commerce is notifying all interested parties of the initiation of 
circumvention inquiries to determine whether U.S. imports of solar 
cells and modules that have been completed in, and exported from, 
Cambodia, Malaysia, Thailand, or Vietnam using parts and components 
manufactured in China, are circumventing the Orders. We included a 
description of the products that are subject to the circumvention 
inquiries, and an explanation of the reasons for Commerce's decision to 
initiate these inquiries, in the accompanying Initiation Memorandum.\7\ 
In accordance with 19 CFR 351.226(e)(2), Commerce intends to issue its 
preliminary determination in these circumvention proceedings no later 
than 150 days from the date of publication of this notice in the 
Federal Register.
---------------------------------------------------------------------------

    \7\ See Initiation Memorandum.
---------------------------------------------------------------------------

    This notice is published in accordance with section 781(b) of the 
Act and 19 CFR 351.226(d)(1)(ii).

    Dated: March 25, 2022.
Lisa W. Wang,
Assistant Secretary for Enforcement and Compliance.

Appendix

List of Topics Discussed in the Circumvention Initiation Memo

I. Summary
II. Background
III. Scope of the Orders
IV. Merchandise Subject to the Circumvention Inquiry
V. Statutory and Regulatory Framework for Circumvention Inquiries
VI. Statutory Analysis for the Circumvention Inquiry
VII. Comments Opposing the Initiation of a Circumvention Inquiry
VIII. Country-Wide Circumvention Inquiries
IX. Recommendation

[FR Doc. 2022-06827 Filed 3-31-22; 8:45 am]
BILLING CODE 3510-DS-P