2020-23959. 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 Results of Countervailing Duty Administrative Review and Notice of ...

AGENCY:

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

SUMMARY:

On October 19, 2020, the United States Court of International Trade (the Court) entered final judgment sustaining the final results of remand redetermination pursuant to court order by the Department of Commerce (Commerce) pertaining to the 2015 countervailing duty (CVD) administrative review of the order on crystalline silicon photovoltaic cells, whether or not assembled into modules (solar cells), from the People's Republic of China (China). Commerce is notifying the public that the final judgment in this case is not in harmony with Commerce's final results in the 2015 administrative review of solar cells from China, and that Commerce is amending the final results.

DATES:

Applicable: October 29, 2020.

FOR FURTHER INFORMATION CONTACT:

Caitlin Monks, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: [phone].

SUPPLEMENTARY INFORMATION:

Background

On July 23, 2018, Commerce published its final results of the 2015 administrative review of solar cells.^[1] Commerce reached affirmative determinations for mandatory respondents Canadian Solar Inc. and its cross-owned affiliates (collectively, Canadian Solar) and Changzhou Trina Solar Energy Co., Ltd. and its cross-owned affiliates (collectively, Trina Solar), as well as numerous other producers and exporters not selected for individual review. Commerce requested a voluntary remand regarding four issues before the Court: (1) Its finding, based on adverse facts available, that the respondents used the Export Buyer's Credit Program; (2) its determination that China's provision of aluminum extrusions is a specific subsidy; (3) the decision to average two datasets from IHS technology and U.N. Comtrade in calculating the benchmark for aluminum extrusions; and (4) the determination that China's provision of electricity is a specific subsidy.

On February 25, 2020, the Court granted Commerce's requests for voluntary remands, and remanded additional aspects of Commerce's Final Results.^[2] Specifically, the Court concluded that Commerce did not adequately explain how the polysilicon market in China is distorted through GOC intervention and how that distortion affects prices for imported products.^[3] Additionally, the Court found that Commerce had misinterpreted evidence regarding the inclusion of terminal handling charges in the Xeneta ocean freight data,^[4] and that Commerce had erred in not fixing an allegedly mistranslated heading on the GOC's electricity tariff schedules.^[5]

Commerce issued its final remand redetermination in June 2020.^[6] In its final remand redetermination, Commerce explained that, although it continues to believe that it is not possible to verify whether respondents used the Export Buyer's Credit Program without the cooperation of the Government of China (GOC), it found the program not used, under protest, to comply with the Court's order in the third administrative review.^[7] For aluminum extrusions, Commerce offered additional explanation regarding the specificity of aluminum extrusions provided at less than adequate remuneration (LTAR) and revised its benefit calculations to use the more product-specific annual data from IHS exclusively rather than averaging them with less specific monthly Comtrade data.^[8] For electricity, Commerce also fixed a translation error in the electricity tariff schedules on the record ^[9] and offered additional explanation regarding its conclusion that the provision of electricity for LTAR is specific, and thus, countervailable.^[10] Commerce also solicited new information regarding the polysilicon industry in China and placed additional information on the record that supported its finding that the polysilicon market in China is distorted by government involvement, such that we cannot rely on prices for polysilicon imported into China.^[11] Regarding international freight costs, Commerce revised its benchmark calculations to include the Xeneta data on the record, in compliance with the Court's order.^[12]

The Court sustained Commerce's remand redetermination in full.^[13] Specifically, the Court found that Commerce's determinations regarding the Export Buyer's Credit Program, as well as the aluminum extrusions and polysilicon benchmarks, complied with the options the Court provided in previous remand orders.^[14] For polysilicon, the Court explained that Commerce reasonably identified further evidence supporting its finding of market distortion.^[15] The Court also concluded that Commerce's decision to average the Xeneta data with the Maersk data in computing an ocean freight benchmark, and its decision to correct the translation error on the electricity schedules complied with the Court's order.^[16] Finally, the Court found that Commerce appropriately identified the missing information and facts that, when combined with an adverse inference, supported finding that the provision of electricity is regionally specific.^[17]

Timken Notice

In its decision in Timken,^[18] as clarified by Diamond Sawblades,^[19] the Court of Appeals for the Federal Circuit held that, pursuant to section 516A(c) of the Tariff Act of 1930, as amended (the Act), Commerce must publish a notice of court decision that is not “in harmony” with a Commerce determination and must suspend liquidation of entries pending a “conclusive” court decision. The Court's October 19, 2020 judgment constitutes a final decision of that court that is not in harmony with Commerce's Final Results and Amended Final Results. This notice is published in fulfillment of the publication requirements of Timken. Accordingly, Commerce will continue suspension of liquidation of subject merchandise pending expiration of the period of appeal or, if appealed, pending a final and conclusive court decision.

Amended Final Results

Because there is now a final court decision, Commerce is amending the Amended Final Results with respect to Canadian Solar, Trina Solar, and all other producers and exporters subject to this review. The revised total subsidy rates for the period January 1, 2015 through December 31, 2015 are as follows: ^[20]

Exporter or producer	Subsidy rate (percent ad valorem)
Canadian Solar Inc. and its Cross-Owned Affiliates 21	5.02
Changzhou Trina Solar Energy Co., Ltd. and its Cross-Owned Affiliates 22	2.93
Baoding Jiasheng Photovoltaic Technology Co., Ltd	4.22
Baoding Tianwei Yingli New Energy Resources Co., Ltd	4.22
Beijing Tianneng Yingli New Energy Resources Co., Ltd	4.22
Canadian Solar International, Ltd	4.22
Chint Solar (Zhejiang) Co., Ltd	4.22
Dongguan Sunworth Solar Energy Co., Ltd	4.22
ERA Solar Co., Ltd	4.22
ET Solar Energy Limited	4.22
ET Solar Industry Limited	4.22
Hainan Yingli New Energy Resources Co., Ltd	4.22
Hangzhou Sunny Energy Science and Technology Co., Ltd	4.22
Hangzhou Zhejiang University Sunny Energy Science and Technology Co., Ltd	4.22
Hengdian Group DMEGC Magnetics Co., Ltd	4.22
Hengshui Yingli New Energy Resources Co., Ltd	4.22
JA Solar Technology Yangzhou Co., Ltd	4.22
Jiangsu High Hope Int'l Group	4.22
Jiawei Solarchina Co., Ltd	4.22
Jiawei Solarchina (Shenzhen) Co., Ltd	4.22
JingAo Solar Co., Ltd	4.22
Jinko Solar Co., Ltd	4.22
Jinko Solar Import and Export Co., Ltd	4.22
Jinko Solar International Limited	4.22
Jinko Solar (U.S.) Inc	4.22
Lightway Green New Energy Co., Ltd	4.22
Lixian Yingli New Energy Resources Co., Ltd	4.22
Luoyang Suntech Power Co., Ltd	4.22
Ningbo Qixin Solar Electrical Appliance Co., Ltd	4.22
Risen Energy Co., Ltd	4.22
Shanghai JA Solar Technology Co., Ltd	4.22
Shenzhen Glory Industries Co., Ltd	4.22
Shenzhen Topray Solar Co., Ltd	4.22
Sumec Hardware & Tools Co. Ltd	4.22
Systemes Versilis, Inc	4.22
Taizhou BD Trade Co., Ltd	4.22
tenKsolar (Shanghai) Co., Ltd	4.22
Tianjin Yingli New Energy Resources Co., Ltd	4.22
Toenergy Technology Hangzhou Co., Ltd	4.22
Wuxi Suntech Power Co., Ltd	4.22
Yingli Energy (China) Co., Ltd	4.22
Zhejiang Era Solar Technology Co., Ltd	4.22
Zhejiang Jinko Solar Co., Ltd	4.22
Zhejiang Sunflower Light Energy Science & Technology Limited Liability Company	4.22

Amended Cash Deposit Rates

Commerce will issue revised cash deposit instructions to U.S. Customs and Border Protection, based on the rates indicated above, for all firms that do not have a superseding cash deposit rate (e.g., from a subsequent administrative review).

Notification to Interested Parties

This notice is issued and published in accordance with sections 516A(e)(1), 751(a)(1), and 777(i)(1) of the Act.

Dated: October 23, 2020.

Jeffrey I. Kessler,

Assistant Secretary for Enforcement and Compliance.

Footnotes

1.  See Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled into Modules, from the People's Republic of China: Final Results of Countervailing Duty Administrative Review; 2015, 83 FR 34828 (July 23, 2018) (Final Results), and accompanying Issues and Decision Memorandum, as amended by Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled into Modules, from the People's Republic of China: Amended Final Results of Countervailing Duty Administrative Review; 2015, 83 FR 54566 (October 30, 2018) (Amended Final Results).

2.  See Canadian Solar Inc., et al. v. United States, Slip Op. 20-23 (CIT February 25, 2020) (Remand Order).

3.  Id. at 6 (citing Changzhou 3rd Review 2nd Remand Order, Slip Op. 19-137 at 20).

4.  Id. at 9.

5.  Id. at 11.

6.  See Canadian Solar Inc., et al. v. United States, Consol. Court No. 18-00184; Slip Op. 20-23 (CIT February 25, 2020), “Final Results of Redetermination Pursuant to Court Remand,” dated June 26, 2020 (Final Remand Redetermination).

7.  Id. at 11-12.

8.  Id. at 12-13.

9.  Id. at 30.

10.  Id. at 2.

11.  Id. at 20-30.

12.  Id. at 30.

13.  See Changzhou Trina Solar Energy Co., Ltd. v. United States, Slip Op. 20-108 (October 19, 2020).

14.  Id. at 5-6 (Export Buyer's Credit Program) and 6-10 (aluminum extrusions) (citing, e.g., Changzhou Trina Solar Energy Co., Ltd. v. United States, Slip Op. 20-108 (CIT 2020)).

15.  Id. at 13-15.

16.  Id. at 15-16.

17.  Id. at 12-13.

18.  See Timken Co. v. United States, 893 F.2d 337 (Fed. Cir. 1990) (Timken).

19.  See Diamond Sawblades Mfrs. Coalition v. United States, 626 F.3d 1374 (Fed. Cir. 2010).

20.  See Second Remand Redetermination at 48.

21.  See Amended Final Results, 83 FR at 54567. Cross-owned affiliates are: Canadian Solar Inc.; Canadian Solar Manufacturing (Luoyang) Inc.; Canadian Solar Manufacturing (Changshu) Inc.; CSI Cells Co., Ltd.; CSI Solar Power (China) Inc.; CSI Solartronics (Changshu) Co., Ltd.; CSI Solar Technologies Inc.; CSI Solar Manufacture Inc. (name was changed to CSI New Energy Holding Co., Ltd. in July 2015); CSI-GCL Solar Manufacturing (Yancheng) Co., Ltd.; Changshu Tegu New Materials Technology Co., Ltd.; Changshu Tlian Co., Ltd.; and Suzhou Sanysolar Materials Technology Co., Ltd.

22.  Id. Cross-owned affiliates are: Changzhou Trina Solar Energy Co., Ltd.; Trina Solar (Changzhou) Science and Technology Co., Ltd.; Yancheng Trina Solar Energy Technology Co., Ltd.; Changzhou Trina Solar Yabang Energy Co., Ltd.; Hubei Trina Solar Energy Co., Ltd.; Turpan Trina Solar Energy Co., Ltd.; and Changzhou Trina PV Ribbon Materials Co., Ltd.