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 Antidumping Duty Administrative Review; Notice of Amended Final Results

AGENCY:

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

SUMMARY:

On May 5, 2021, the United States Court of International Trade (the Court) issued its final judgment in Risen Energy Co., Ltd. et al. v. United States, Consol. Court No. 19-00153, sustaining the Department of Commerce (Commerce)'s first remand redetermination pertaining to the 2016-2017 antidumping duty (AD) administrative review of 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 Court's final judgment in this litigation is not in harmony with Commerce's final results in the 2016-2017 AD administrative review of solar cells from China, and that Commerce is amending the final results with respect to the mandatory respondent Risen Energy Co., Ltd. (Risen) and three non-individually examined companies.

DATES:

Applicable May 15, 2021.

FOR FURTHER INFORMATION CONTACT:

Jeff Pedersen, 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) 482-2769.

SUPPLEMENTARY INFORMATION:

Background

On July 30, 2019, Commerce published its Final Results of the 2016-2017 AD administrative review of solar cells from China. Risen appealed Commerce's Final Results. On October 30, 2020, the Court remanded Commerce's Final Results for Commerce to reconsider or further explain its application of partial adverse facts available (AFA) in valuing unreported factors of production (FOPs) for merchandise sourced from Risen's unaffiliated suppliers, which were necessary for calculating Risen's dumping margin.

In its Remand Redetermination, pursuant to the Court's holding in Risen I, Commerce determined, under respectful protest, to base Risen's unreported FOP consumption on partial facts available rather than partial AFA. Specifically, Commerce based the unreported FOP consumption on the average of the consumption that was reported for certain of Risen's FOPs. Commerce assigned the margin calculated for Risen to those respondents eligible for a separate rate and which participated in the litigation. On May 5, 2021, the Court sustained Commerce's Remand Redetermination.

Timken Notice

In its decision in Timken, as clarified by Diamond Sawblades, the Court of Appeals for the Federal Circuit held that, pursuant to section 516A(c) and (e) 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 May 5, 2021, judgment constitutes a final decision of the Court that is not in harmony with Commerce's Final Results. Thus, this notice is published in fulfillment of the publication requirements of Timken.

Amended Final Results

Because there is now a final court decision, Commerce is amending its Final Results. The amended weighted-average dumping margin for the respondents which participated in this litigation is as follows:

Because the cash deposit rates for all of the respondents listed above have a superseding cash deposit rate, i.e., there have been final results published in a subsequent administrative review, this notice does not affect the current cash deposit rates of these respondents and we will not issue revised cash deposit instructions to U.S. Customs and Border Protection (CBP).

Liquidation of Suspended Entries

At this time, Commerce remains enjoined by CIT order from liquidating entries that: Were exported by all of the respondents listed above and were entered, or withdrawn from warehouse, for consumption during the period December 1, 2016, through November 30, 2017. These entries will remain enjoined pursuant to the terms of the injunction during the pendency of any appeals process.

In the event the Court's ruling is not appealed, or, if appealed, upheld by a final and conclusive court decision, Commerce intends to instruct CBP to assess antidumping duties on unliquidated entries of subject merchandise exported by all of the respondents listed above in accordance with 19 CFR 351.212(b). We will instruct CBP to assess antidumping duties on all appropriate entries covered by this review when the importer-specific ad valorem assessment rate is not zero or de minimis. Where an import-specific ad valorem assessment rate is zero or de minimis, we will instruct CBP to liquidate the appropriate entries without regard to antidumping duties.

Notification to Interested Parties

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