83 FR 26654 - Crystalline Silicon Photovoltaic Products From the People's Republic of China: Notice of Court Decision Not in Harmony With Final Determination of the Less Than Fair Value Investigation
DEPARTMENT OF COMMERCE
International Trade Administration Federal Register Volume 83, Issue 111 (June 8, 2018)
International Trade Administration
Federal Register Volume 83, Issue 111 (June 8, 2018)
| Page Range | 26654-26655 | |
| FR Document | 2018-12481 |
[Federal Register Volume 83, Number 111 (Friday, June 8, 2018)] [Notices] [Pages 26654-26655] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-12481] ----------------------------------------------------------------------- DEPARTMENT OF COMMERCE International Trade Administration [A-570-010] Crystalline Silicon Photovoltaic Products From the People's Republic of China: Notice of Court Decision Not in Harmony With Final Determination of the Less Than Fair Value Investigation AGENCY: Enforcement and Compliance, International Trade Administration, Department of Commerce. SUMMARY: On May 25, 2018, the United States Court of International Trade (the Court) entered final judgment sustaining the final results of the second remand redetermination by the Department of Commerce (Commerce) pertaining to the antidumping duty (AD) investigation of certain crystalline silicon photovoltaic products 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 determination in the AD investigation of certain crystalline silicon photovoltaic products from China. DATES: Applicable June 4, 2018. FOR FURTHER INFORMATION CONTACT: Eli Lovely, 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) 482-1593. SUPPLEMENTARY INFORMATION: Background Subsequent to the December 23, 2014, publication of the Final Determination in the AD investigation of certain crystalline silicon photovoltaic products from China,\1\ and the February 18, 2015 publication of the AD order,\2\ SolarWorld Americas, Inc. (SolarWorld), the petitioner, filed a complaint with the Court challenging, among other things, Commerce's determination that South African import data under subheading 8548.10, of the United States Harmonized Tariff Schedule (HTS), constituted the best available information for valuing Changzhou Trina Solar Energy Co., Ltd.'s (Trina) byproduct offset for scrapped solar modules.\3\ --------------------------------------------------------------------------- \1\ See Certain Crystalline Silicon Photovoltaic Products from the People's Republic of China: Final Determination of Sales at Less than Fair Value, 79 FR 76970 (December 23, 2014) (Final Determination). \2\ See Certain Crystalline Silicon Photovoltaic Products from the People's Republic of China: Antidumping Duty Order; and Amended Final Affirmative Countervailing Duty Determination and Countervailing Duty Order, 80 FR 8592 (February 18, 2015). \3\ See SolarWorld's Complaint, No. 15-00086, ECF No. 10 (CIT April 17, 2015). --------------------------------------------------------------------------- In Jinko Solar I, the Court remanded Commerce's use of South African import data under HTS subheading 8548.10, to value Trina's byproduct offset for scrapped solar modules when calculating normal value. The Court found that Commerce did not adequately explain how its decision was reasonable in light of the record as a whole.\4\ Further, the Court found that two arguments made before the Court constituted post hoc rationalizations and directed Commerce to make those rationalizations explicit and identify supporting evidence for them, if either of the rationalizations informed Commerce's decision to rely on HTS subheading 8548.10 to value Trina's byproduct offset for scrapped solar modules.\5\ --------------------------------------------------------------------------- \4\ See Jinko Solar Co., Ltd. v. United States, 229 F. Supp. 3d 1333, 1353-1355 (CIT 2017) (Jinko Solar I). \5\ Id. at 1355. --------------------------------------------------------------------------- On August 2, 2017, Commerce issued its First Remand Results, in which it determined that it would continue to value Trina's byproduct offset for scrapped solar modules with South African import data under HTS 8548.10 and explained its decision to do so.\6\ The Court, in Jinko Solar II, held that Commerce's determination remained unsupported by substantial evidence and that Commerce did not explain how its selected surrogate value was a representative surrogate value for the scrapped modules.\7\ The Court directed Commerce to reconsider or further explain its decision to use South African import data under HTS subheading 8548.10 to value the byproduct offset for scrapped solar [[Page 26655]] modules when calculating normal value.\8\ --------------------------------------------------------------------------- \6\ See Final Results of Redetermination Pursuant to Court Remand, Jinko Solar Co., Ltd. v. United States, Court No. 15-00080, Slip Op. 17-62 (Court of International Trade May 18, 2017) (August 2, 2017) (First Remand Results). \7\ See Jinko Solar Co., Ltd. v. United States, 279 F. Supp. 3d 1253, 1261-1264 (CIT 2017) (Jinko Solar II). \8\ Id. at 1264. --------------------------------------------------------------------------- On March 12, 2018, Commerce issued its Second Remand Results, wherein, considering the Court's order, and under respectful protest, Commerce selected Thai import data under HTS category 2804.69 to value Trina's byproduct offset for scrapped solar modules for purposes of its normal value calculations.\9\ --------------------------------------------------------------------------- \9\ See Final Results of Second Redetermination Pursuant to Court Order, Jinko Solar Co., Ltd., et al. v. United States, Court No. 15-00080, Slip Op. 17-165 (Court of International Trade December 13, 2017) (March 12, 2018) (Second Remand Results). --------------------------------------------------------------------------- On May 25, 2018, the Court issued its decision in Jinko Solar III sustaining Commerce's Second Remand Results.\10\ --------------------------------------------------------------------------- \10\ See Jinko Solar Co., Ltd. v. United States, No. 15-00080, Slip Op. 18-61 (CIT May 25, 2018) (Jinko Solar III). --------------------------------------------------------------------------- Timken Notice In its decision in Timken,\11\ as clarified by Diamond Sawblades,\12\ the United States Court of Appeals for the Federal Circuit held that, pursuant to section 516A(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 Court's May 25, 2018, final judgment sustaining Commerce's Second Remand Redetermination constitutes a final decision of the Court that is not in harmony with Commerce's Final Determination. This notice is published in fulfillment of the publication requirements of Timken. Accordingly, Commerce will continue the suspension of liquidation of the subject merchandise pending the expiration of the period of appeal, or if appealed, pending a final and conclusive court decision. We have not amended the Final Determination because valuing Trina's scrapped solar modules using Thai import data under HTS category 2804.69 rather than South African import data under HTS subheading 8548.10 did not result in a change to the weighted average dumping margin calculated for Trina in the Final Determination. --------------------------------------------------------------------------- \11\ See Timken Co. v. United States, 893 F.2d 337, 341 (Fed. Cir. 1990). \12\ See Diamond Sawblades Mfrs. Coalition v. United States, 626 F.3d 1374 (Fed. Cir. 2010). --------------------------------------------------------------------------- Notification to Interested Parties This notice is issued and published in accordance with section 516A(e)(1) of the Act. Dated: June 4, 2018. Gary Taverman, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance. [FR Doc. 2018-12481 Filed 6-7-18; 8:45 am] BILLING CODE 3510-DS-P
![26654 Federal Register / Vol. 83, No. 111 / Friday, June 8, 2018 / Notices
this analysis, concluding that the value Based upon the foregoing, I have SolarWorld Americas, Inc. (SolarWorld),
of information produced by the ABS directed that the current mandatory the petitioner, filed a complaint with
outweighs the costs. The Census Bureau business surveys be conducted for the the Court challenging, among other
submitted a request to OMB on January purpose of collecting these data. things, Commerce’s determination that
5, 2018, formally requesting approval of Dated: May 31, 2018. South African import data under
the ABS under the Paperwork Ron S. Jarmin, subheading 8548.10, of the United
Reduction Act (PRA). The request States Harmonized Tariff Schedule
Associate Director for Economic Programs,
included information about the cost to (HTS), constituted the best available
Performing the Non-Exclusive Functions and
administer the ABS and the cost Duties of the Director, Bureau of the Census. information for valuing Changzhou
imposed on respondents in terms of Trina Solar Energy Co., Ltd.’s (Trina)
[FR Doc. 2018–12356 Filed 6–7–18; 8:45 am]
their time to respond. The request also byproduct offset for scrapped solar
BILLING CODE 3510–07–P
documented the many uses of the data. modules.3
The request demonstrated that the ABS
has practical utility, i.e., that the value In Jinko Solar I, the Court remanded
DEPARTMENT OF COMMERCE Commerce’s use of South African
of information produced outweighs the
cost. As noted in the Paperwork import data under HTS subheading
International Trade Administration 8548.10, to value Trina’s byproduct
Reduction Act section below, OMB
approved the ABS on March 7, 2018 [A–570–010] offset for scrapped solar modules when
(OMB control number 0607–1004). calculating normal value. The Court
Furthermore, the ABS will provide Crystalline Silicon Photovoltaic found that Commerce did not
data required by Executive Order 11458 Products From the People’s Republic adequately explain how its decision was
(March 5, 1969), ‘‘Prescribing of China: Notice of Court Decision Not reasonable in light of the record as a
Arrangements for Developing and in Harmony With Final Determination whole.4 Further, the Court found that
Coordinating a National Program For of the Less Than Fair Value two arguments made before the Court
Minority Business Enterprise’’ (http:// Investigation constituted post hoc rationalizations
www.presidency.ucsb.edu/ws/?pid= AGENCY: Enforcement and Compliance, and directed Commerce to make those
60475). Executive Order 11458 International Trade Administration, rationalizations explicit and identify
prompted the Census Bureau to create Department of Commerce. supporting evidence for them, if either
the Survey of Minority Business SUMMARY: On May 25, 2018, the United
of the rationalizations informed
Enterprises (SMOBE) and the Survey of States Court of International Trade (the Commerce’s decision to rely on HTS
Women Business Enterprises (SWOBE). Court) entered final judgment sustaining subheading 8548.10 to value Trina’s
The data previously collected in these the final results of the second remand byproduct offset for scrapped solar
two surveys was later collected in the redetermination by the Department of modules.5
SBO and the ASE, surveys that the ABS Commerce (Commerce) pertaining to the On August 2, 2017, Commerce issued
will now replace. Without the ABS, antidumping duty (AD) investigation of its First Remand Results, in which it
there will be no survey that complies certain crystalline silicon photovoltaic determined that it would continue to
with the executive order. The Minority products from the People’s Republic of value Trina’s byproduct offset for
Business Development Agency and China (China). Commerce is notifying scrapped solar modules with South
Small Business Administration also rely African import data under HTS 8548.10
the public that the final judgment in this
on the Census Bureau to annually
case is not in harmony with Commerce’s and explained its decision to do so.6
produce these data, including data on
final determination in the AD The Court, in Jinko Solar II, held that
business ownership by gender,
investigation of certain crystalline Commerce’s determination remained
ethnicity, race, and veteran status as
silicon photovoltaic products from unsupported by substantial evidence
well as economic characteristics of
China. and that Commerce did not explain how
businesses.
The Census Bureau has designed the DATES: Applicable June 4, 2018. its selected surrogate value was a
ABS survey to collect the required data representative surrogate value for the
FOR FURTHER INFORMATION CONTACT: Eli
while balancing the burden on scrapped modules.7 The Court directed
Lovely, AD/CVD Operations, Office IV,
businesses. The ABS is designed to Enforcement and Compliance— Commerce to reconsider or further
combine Census Bureau firm-level International Trade Administration, explain its decision to use South
collections to reduce respondent U.S. Department of Commerce, 1401 African import data under HTS
burden, increase data quality, reduce Constitution Avenue NW, Washington, subheading 8548.10 to value the
operational costs, and operate more DC 20230; telephone (202) 482–1593. byproduct offset for scrapped solar
efficiently. SUPPLEMENTARY INFORMATION:
Antidumping Duty Order; and Amended Final
Paperwork Reduction Act Background Affirmative Countervailing Duty Determination and
Countervailing Duty Order, 80 FR 8592 (February
Notwithstanding any other provision Subsequent to the December 23, 2014, 18, 2015).
of law, no person is required to respond publication of the Final Determination 3 See SolarWorld’s Complaint, No. 15–00086, ECF
to, nor shall a person be subject to a in the AD investigation of certain No. 10 (CIT April 17, 2015).
penalty for failure to comply with a crystalline silicon photovoltaic products
4 See Jinko Solar Co., Ltd. v. United States, 229
collection of information subject to the F. Supp. 3d 1333, 1353–1355 (CIT 2017) (Jinko
from China,1 and the February 18, 2015 Solar I).
requirements of the Paperwork publication of the AD order,2
amozie on DSK3GDR082PROD with NOTICES1
5 Id. at 1355.
Reduction Act (PRA) (44 U.S.C., Chapter 6 See Final Results of Redetermination Pursuant
45) unless that collection of information 1 See Certain Crystalline Silicon Photovoltaic to Court Remand, Jinko Solar Co., Ltd. v. United
displays a currently valid OMB control Products from the People’s Republic of China: Final States, Court No. 15–00080, Slip Op. 17–62 (Court
number. In accordance with the PRA, Determination of Sales at Less than Fair Value, 79 of International Trade May 18, 2017) (August 2,
FR 76970 (December 23, 2014) (Final 2017) (First Remand Results).
OMB approved the ABS under OMB Determination). 7 See Jinko Solar Co., Ltd. v. United States, 279
control number 0607–1004 on March 7, 2 See Certain Crystalline Silicon Photovoltaic F. Supp. 3d 1253, 1261–1264 (CIT 2017) (Jinko
2018. Products from the People’s Republic of China: Solar II).
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![Federal Register / Vol. 83, No. 111 / Friday, June 8, 2018 / Notices 26655
modules when calculating normal Dated: June 4, 2018. Special Accommodations
value.8 Gary Taverman, This meeting is physically accessible
On March 12, 2018, Commerce issued Deputy Assistant Secretary for Antidumping to people with disabilities. Requests for
its Second Remand Results, wherein, and Countervailing Duty Operations, sign language interpretation or other
performing the non-exclusive functions and
considering the Court’s order, and under duties of the Assistant Secretary for
auxiliary aid should be directed to M.
respectful protest, Commerce selected Enforcement and Compliance. Jan Saunders, (302) 526–5251, at least 5
Thai import data under HTS category [FR Doc. 2018–12481 Filed 6–7–18; 8:45 am]
days prior to the meeting date.
2804.69 to value Trina’s byproduct Dated: June 4, 2018.
BILLING CODE 3510–DS–P
offset for scrapped solar modules for Tracey L. Thompson,
purposes of its normal value
Acting Deputy Director, Office of Sustainable
calculations.9 DEPARTMENT OF COMMERCE Fisheries, National Marine Fisheries Service.
On May 25, 2018, the Court issued its [FR Doc. 2018–12305 Filed 6–7–18; 8:45 am]
decision in Jinko Solar III sustaining National Oceanic and Atmospheric
BILLING CODE 3510–22–P
Commerce’s Second Remand Results.10 Administration
Timken Notice RIN 0648–XG280
DEPARTMENT OF COMMERCE
In its decision in Timken,11 as Mid-Atlantic Fishery Management
clarified by Diamond Sawblades,12 the Council (MAFMC); Public Meeting National Oceanic and Atmospheric
United States Court of Appeals for the Administration
AGENCY: National Marine Fisheries
Federal Circuit held that, pursuant to Service (NMFS), National Oceanic and Submission for OMB Review;
section 516A(e) of the Tariff Act of Atmospheric Administration (NOAA), Comment Request
1930, as amended (the Act), Commerce Commerce.
must publish a notice of a court ACTION: Notice of public meeting. The Department of Commerce will
decision that is not ‘‘in harmony’’ with submit to the Office of Management and
a Commerce determination and must SUMMARY: The Mid-Atlantic Fishery Budget (OMB) for clearance the
suspend liquidation of entries pending Management Council’s (Council) following proposal for collection of
a ‘‘conclusive’’ court decision. The Mackerel-Squid-Butterfish (MSB) information under the provisions of the
Court’s May 25, 2018, final judgment Monitoring Committee will meet via Paperwork Reduction Act (44 U.S.C.
sustaining Commerce’s Second Remand webinar to develop recommendations Chapter 35).
Redetermination constitutes a final for future MSB specifications. Agency: National Oceanic and
decision of the Court that is not in DATES: The meeting will be held Atmospheric Administration (NOAA).
harmony with Commerce’s Final Monday, June 25, 2018 at 9 a.m. and Title: Atlantic Highly Migratory
Determination. This notice is published end by noon. Species Vessel and Gear Marking.
in fulfillment of the publication ADDRESSES: The meeting will be held OMB Control Number: 0648–0373.
requirements of Timken. Accordingly, via webinar with a telephone-only Form Number(s): None.
Commerce will continue the suspension Type of Request: Regular (extension of
connection option: http://
of liquidation of the subject a currently approved information
mafmc.adobeconnect.com/moncom20
merchandise pending the expiration of collection).
18plusfmat/.
the period of appeal, or if appealed, Number of Respondents: 3,282.
Council address: Mid-Atlantic Fishery
pending a final and conclusive court Average Hours per Response: Vessels,
Management Council, 800 N. State St.
decision. We have not amended the 45 minutes; gear, 15 minutes per piece.
Suite 201, Dover, DE 19901; telephone: Burden Hours: 3,894.
Final Determination because valuing (302) 674–2331. Needs and Uses: This request is for an
Trina’s scrapped solar modules using FOR FURTHER INFORMATION CONTACT: extension of a current information
Thai import data under HTS category Christopher M. Moore, Ph.D. Executive collection. These requirements apply to
2804.69 rather than South African Director, Mid-Atlantic Fishery vessel owners in the Atlantic highly
import data under HTS subheading Management Council; telephone: (302) migratory species (HMS) Fishery.
8548.10 did not result in a change to the 526–5255. The Council’s website, Under current regulations at 50 CFR
weighted average dumping margin www.mafmc.org will also have details 635.6, fishing vessels permitted for
calculated for Trina in the Final on webinar access and any background Atlantic HMS fisheries must display
Determination. materials. their official vessel numbers on their
Notification to Interested Parties SUPPLEMENTARY INFORMATION: The vessels. Flotation devices and high-
Council’s MSB Monitoring Committee flyers attached to certain fishing gears
This notice is issued and published in will develop recommendations for must also be marked with the vessel’s
accordance with section 516A(e)(1) of future MSB specifications. The MSB number to identify the vessel to which
the Act. Monitoring Committee will meet jointly the gear belongs. These requirements are
with the Fishery Management Action necessary for identification, law
8 Id. at 1264. Team (FMAT), which is developing enforcement, and monitoring purposes.
9 See Final Results of Second Redetermination analyses for the Council’s Atlantic Specifically, all vessel owners that
Pursuant to Court Order, Jinko Solar Co., Ltd., et al. mackerel rebuilding framework to set hold a valid Atlantic HMS permit under
v. United States, Court No. 15–00080, Slip Op. 17–
2019–2021 Atlantic mackerel 50 CFR 635.4, other than an Atlantic
amozie on DSK3GDR082PROD with NOTICES1
165 (Court of International Trade December 13,
2017) (March 12, 2018) (Second Remand Results). specifications. The Council will review HMS Angling permit, are required to
10 See Jinko Solar Co., Ltd. v. United States, No. previously-set 2019 longfin squid, Illex display their vessel identification
15–00080, Slip Op. 18–61 (CIT May 25, 2018) (Jinko squid, and butterfish specifications and number. Numbers must be permanently
Solar III).
11 See Timken Co. v. United States, 893 F.2d 337,
take final action on the Atlantic affixed to, or painted on, the port and
341 (Fed. Cir. 1990). mackerel rebuilding framework at its starboard sides of the deckhouse or hull
12 See Diamond Sawblades Mfrs. Coalition v. August 2018 Council Meeting (http:// and on an appropriate weather deck, so
United States, 626 F.3d 1374 (Fed. Cir. 2010). www.mafmc.org/meetings/). as to be clearly visible from an
VerDate Sep<11>2014 16:53 Jun 07, 2018 Jkt 241001 PO 00000 Frm 00015 Fmt 4703 Sfmt 4703 E:\FR\FM\08JNN1.SGM 08JNN1](https://thefederalregister.org/doc/83_FR_26765/page/2.svg)
Document Created: 2018-06-08 01:22:04
Document Modified: 2018-06-08 01:22:04
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Notices | |
| Dates | Applicable June 4, 2018. | |
| Contact | Eli Lovely, 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) 482-1593. | |
| FR Citation | 83 FR 26654 |
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