[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]
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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\
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\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.
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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\
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\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).
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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\
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\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).
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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.
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\7\ See Initiation Memorandum.
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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