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 August 10, 2021, the U.S. Court of International Trade (CIT) issued its final judgment in Changzhou Trina Solar Energy Co., Ltd. et al. v. United States, Consol. Court No. 18-00176, sustaining the Department of Commerce's (Commerce) second remand redetermination pertaining to the 2015-2016 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 CIT's final judgment in this litigation is not in harmony with the final results reached by Commerce in the 2015-2016 AD administrative review of solar cells from China, and that Commerce is amending the final results of that review with respect to the dumping margin calculated for Trina and certain separate rate respondents.

DATES:

Applicable August 20, 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 27, 2018, Commerce published the Final Results of its 2015-2016 AD administrative review of solar cells from China. Trina appealed Commerce's Final Results. On May 13, 2020, the CIT remanded to Commerce for further explanation or reconsideration its decision to use Maersk Line (Maersk) data, rather than Xeneta XS (Xeneta) data, to value ocean freight expenses. The CIT also held that Commerce's decision to not adjust Trina's U.S. prices to account for countervailing duties related to the Export Buyer's Credit Program (EBCP) was contrary to law.

In its first remand redetermination, Commerce continued to value Trina's ocean freight expenses using Maersk data, rather than Xeneta data; however, under protest, Commerce increased Trina's U.S. prices by the amount of countervailing duty imposed to offset the export subsidy provided by the Ex-Im Bank of China's EBCP. In its second remand order, the CIT again directed Commerce to reconsider or further explain its valuation of ocean freight expenses, but it sustained Commerce's adjustment of Trina's U.S. prices to account for the Ex-Im Bank of China's EBCP.

In its second remand redetermination, Commerce valued Trina's ocean freight expenses using Xeneta data, recalculated Trina's dumping margin based on this change, and assigned Trina's recalculated dumping margin to the separate rate respondents which participated in the litigation that led to the remand redetermination. On August 10, 2021, the CIT sustained Commerce's second remand redetermination.

Timken Notice

In its decision in Timken, as clarified by Diamond Sawblades, the United States 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 a court decision that is not “in harmony” with a Commerce determination and must suspend liquidation of entries pending a “conclusive” court decision. The CIT's August 10, 2021, judgment constitutes a final court decision 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 judgment, Commerce is amending its Final Results. The amended weighted-average dumping margin for the respondents which participated in the litigation is as follows:

Cash Deposit Requirements

Because the cash deposit rates for all of the companies listed above have a superseded by subsequent cash deposit rates (i.e., cash deposit rates have been established for these companies in subsequent final results of reviews), this notice does not affect the current cash deposit rates of these companies. Accordingly, we will not issue revised cash deposit instructions to U.S. Customs and Border Protection (CBP) for these companies.

Liquidation of Suspended Entries

At this time, Commerce remains enjoined by CIT order from liquidating entries of subject merchandise that was exported by any of the companies listed above and that was entered into the United States, or withdrawn from warehouse, for consumption during the period December 1, 2015, through November 30, 2016. These entries will remain enjoined pursuant to the terms of the injunction during the pendency of any appeals process.

In the event the CIT'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 the companies listed above in accordance with 19 CFR 351.212(b). We will instruct CBP to assess antidumping duties on all appropriate entries covered by the review when the importer-specific ad valorem assessment rate is not zero or de minimis. Where an importer-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), 751(a)(1), and 777(i)(1) of the Act.