Federal Register / Vol. 77, No. 58 / Monday, March 26, 2012 / Notices 17439 

1See Crystalline Silicon Photovoltaic Cells, 

Whether or Not Assembled Into Modules, From the 

People’s Republic of China: Initiation of 

Countervailing Duty Investigation, 76 FR 70966 

(November 16, 2011) (Initiation Notice), and 

accompanying Initiation Checklist. Public 

documents and public versions of proprietary 

Departmental memoranda referenced in this notice 

are on file electronically on Import 

Administration’s Antidumping and Countervailing 

Duty Centralized Electronic Services System (IA 

ACCESS), accessible via the Central Records Unit, 

Room 7046 of the main Commerce building and on 

the web at http://ia.ita.doc.gov/frn/. 

2See Memorandum to Christian Marsh, Deputy 

Assistant Secretary for Antidumping and 

Countervailing Duty Operations, ‘‘Crystalline 

Silicon Photovoltaic Cells, Whether or Not 

Assembled Into Modules, from the People’s 

Republic of China, Countervailing Duty 

Investigation: Respondent Selection,’’ November 29, 

2011 (Respondent Selection Memorandum). 

Disclosure 

The Department intends to disclose 

the calculations performed to parties in 

this proceeding within five days of the 

date of publication of this notice in 

accordance with 19 CFR 351.224(b). 

Continuation of Suspension of 

Liquidation 

In accordance with section 

735(c)(1)(B) of the Act, the Department 

will instruct U.S. Customs and Border 

Protection (‘‘CBP’’) to continue to 

suspend liquidation of all appropriate 

entries of stilbenic OBAs from the PRC 

as described in the ‘‘Scope of 

Investigation’’ section, entered, or 

withdrawn from warehouse, for 

consumption on or after November 3, 

2011, the date of publication of the 

Preliminary Determination in the 

Federal Register. The Department will 

instruct CBP to require a cash deposit or 

the posting of a bond equal to the 

weighted-average amount by which the 

normal value exceeds U.S. price, as 

indicated above. 

International Trade Commission 

Notification 

In accordance with section 735(d) of 

the Act, we have notified the 

International Trade Commission (‘‘ITC’’) 

of the final affirmative determination of 

sales at LTFV. As the Department’s final 

determination is affirmative, in 

accordance with section 735(b)(2) of the 

Act, the ITC will determine, within 45 

days, whether the domestic industry in 

the United States is materially injured, 

or threatened with material injury, by 

reason of imports, or sales (or the 

likelihood of sales) for importation, of 

the merchandise under consideration. If 

the ITC determines that such injury 

does exist, the Department will issue an 

antidumping duty order directing CBP 

to assess, upon further instruction by 

the Department, antidumping duties on 

all imports of the merchandise under 

consideration entered, or withdrawn 

from warehouse, for consumption on or 

after the effective date of the suspension 

of liquidation. 

Notification Regarding APO 

This notice also serves as a reminder 

to the parties subject to administrative 

protective order (‘‘APO’’) of their 

responsibility concerning the 

disposition of propriety information 

disclosed under APO in accordance 

with 19 CFR 351.305. Timely 

notification of return or distruction of 

APO materials or conversion to judicial 

protective order is hereby requested. 

Failure to comply with the regulations 

and terms of an APO is a sanctionable 

violation. 

This determination is issued and 

published in accordance with sections 

735(d) and 777(i)(1) of the Act. 

Dated: March 19, 2012. 

Paul Piquado, 

Assistant Secretary for Import 

Administration. 

Appendix I 

Issues for Final Determination 

Issue 1: Whether the Department Should 

Revise the Surrogate Value for 4,4 ́- 

Diamino-2,2 ́ Stilbenedisulfonic Acid 

Issue 2: Whether the Department Should 

Revise the Calculation of the Surrogate 

Financial Ratios 

Issue 3: Whether the Department Should 

Revise the Surrogate Value for Ice Blocks 

Issue 4: Whether the Department Should 

Revise the Surrogate Value for Ocean 

Freight 

Issue 5: Whether the Department Should 

Revise the Surrogate Value for Brokerage 

and Handling 

Issue 6: Whether the Department Should 

Revise the Surrogate Value for Labor 

[FR Doc. 2012–7215 Filed 3–23–12; 8:45 am] 

BILLING CODE 3510–DS–P 

DEPARTMENT OF COMMERCE 

International Trade Administration 

[C–570–980] 

Crystalline Silicon Photovoltaic Cells, 

Whether or Not Assembled Into 

Modules, From the People’s Republic 

of China: Preliminary Affirmative 

Countervailing Duty Determination 

AGENCY: Import Administration, 

International Trade Administration, 

Department of Commerce. 

SUMMARY: The Department of Commerce 

(the Department) preliminarily 

determines that countervailable 

subsidies are being provided to 

producers and exporters of crystalline 

silicon photovoltaic cells, whether or 

not assembled into modules (solar cells) 

from the People’s Republic of China 

(PRC). For information on the estimated 

subsidy rates, see the ‘‘Suspension of 

Liquidation’’ section of this notice. 

DATES: Effective Date: March 26, 2012. 

FOR FURTHER INFORMATION CONTACT: 

Gene Calvert, Jun Jack Zhao, or Emily 

Halle, AD/CVD Operations, Office 6, 

Import Administration, U.S. Department 

of Commerce, Room 7866, 14th Street 

and Constitution Avenue NW., 

Washington, DC 20230; telephone: (202) 

482–3586, (202) 482–1396, or (202) 482– 

0176, respectively. 

SUPPLEMENTARY INFORMATION: 

Case History 

The Department initiated a 

countervailing duty (CVD) investigation 

of solar cells from the PRC on November 

8, 2011.1 Since the initiation, the 

following events have occurred. The 

Department released U.S. Customs and 

Border Protection (CBP) entry data for 

U.S. imports of solar cells from the PRC 

for the period January 1, 2010, through 

December 31, 2010, to be used as the 

basis for respondent selection. The CBP 

entry data covered products included in 

this investigation which entered under 

the Harmonized Tariff Schedule of the 

United States (HTSUS) numbers likely 

to include subject merchandise: 

8541.40.6020 and 8541.40.6030. The 

entry data did not cover entries under 

the other HTSUS numbers included in 

the scope description below because 

those numbers represent broad basket 

categories. In the memorandum 

releasing the entry data, the Department 

stated that, because the subject 

merchandise is imported as either solar 

cells or solar cells assembled into 

modules or panels, and thus quantity is 

not recorded consistently in the entry 

data, the Department intended to select 

respondents based on the aggregate 

value (as opposed to quantity) of subject 

merchandise that was imported into the 

United States. 

On November 29, 2011, the 

Department completed its respondent 

selection analysis. Given available 

resources, the Department determined it 

could examine no more than two 

producers/exporters and selected 

Changzhou Trina Solar Energy Co., Ltd. 

(Trina Solar) and Wuxi Suntech Power 

Co., Ltd. (Wuxi Suntech) as mandatory 

respondents.2 These companies were 

the two largest producers/exporters of 

subject merchandise, based on aggregate 

value, to the United States. 

On December 5, 2011, the petitioner, 

Solar World Industries, America, Inc. 

(Petitioner), submitted an additional 

subsidy allegation, claiming that the 

government of the PRC (GOC), through 

state-owned enterprises (SOEs), 


tkelley on DSK3SPTVN1PROD with NOTICES
17440 Federal Register / Vol. 77, No. 58 / Monday, March 26, 2012 / Notices 

3See Crystalline Silicon Photovoltaic Cells, 

Whether or Not Assembled Into Modules, From the 

People’s Republic of China: Postponement of 

Preliminary Determination in the Countervailing 

Duty Investigation, 76 FR 81914 (December 29, 

2011). 

4 GPX Int’l Tire Corp. v. United States, 666 F.3d 

732 (Fed. Cir. 2011) (GPX). 

5See Crystalline Silicon Photovoltaic Cells, 

Whether or Not Assembled Into Modules, From the 

People’s Republic of China: Second Postponement 

of the Preliminary Determination in the 

Countervailing Duty Investigation, 77 FR 4764 

(January 31, 2012). 

6See Crystalline Silicon Photovoltaic Cells, 

Whether or Not Assembled Into Modules, From the 

People’s Republic of China: Postponement of 

Preliminary Determination in the Countervailing 

Duty Investigation, 77 FR 10478 (February 22, 

2012). 

provides glass to Chinese producers of 

subject merchandise for less than 

adequate remuneration (LTAR). The 

Department issued the CVD 

questionnaire to the GOC on December 

7, 2011. Copies of the questionnaire 

were also sent to the mandatory 

company respondents. On December 16, 

2011, Petitioner submitted a request to 

extend the preliminary determination 

30 days, from January 12 to February 13, 

2012. On December 19, 2011, Petitioner 

submitted an allegation that Wuxi 

Suntech was uncreditworthy from 2005 

through 2010. On December 22, 2011, 

Petitioner submitted an allegation that 

Trina Solar was uncreditworthy from 

2005 through 2010. Also on December 

22, 2011, the Department determined 

not to initiate an investigation of 

Petitioner’s December 5, 2011, 

allegation that the GOC provides glass 

for LTAR, stating that Petitioner did not 

support its allegation with reasonably 

available information, pursuant to 

section 702(b)(1) of the Tariff Act of 

1930, as amended (the Act). On 

December 29, 2011, the Department 

published in the Federal Register a 30- 

day postponement of the preliminary 

determination until February 11, 2012.3

On January 3, 2012, Wuxi Suntech 

requested an extension of the January 13 

deadline for responding to the 

Department’s December 7, 2011 

questionnaire. On January 5, 2012, the 

GOC and Trina Solar each requested an 

extension of the January 13 deadline for 

responding to the questionnaire. The 

Department extended the deadline until 

January 23, 2012. 

On January 3, 2012, the GOC 

requested that the Department terminate 

the CVD investigation, stating that, in a 

recent decision, the U.S. Court of 

Appeals for the Federal Circuit found 

that the Department does not have the 

authority to apply the CVD law to 

countries the Department considers 

non-market economies (NMEs).4 On 

January 6, 2012, Trina Solar, Wuxi 

Suntech, and other interested parties 

requested that the Department terminate 

the CVD investigation, also citing the 

GPX ruling. On January 26, 2012, 

interested parties DelSolar Co., Ltd. and 

DelSolar (Wujiang) Ltd. also requested 

that the CVD investigation be 

terminated, citing GPX. 

On January 9, 2012, Trina Solar and 

Wuxi Suntech each requested that the 

Department further extend the deadline 

for the preliminary determination by an 

additional 35 days, noting the 

Department had the authority to do so 

in extraordinary circumstances. In these 

same submissions, both Trina Solar and 

Wuxi Suntech also requested an 

additional extension of the deadline for 

responding to the Department’s 

December 7, 2011 questionnaire. Also 

on January 9, 2012, the GOC reiterated 

its January 5, 2012 request for additional 

time to respond to the Department’s 

December 7, 2011 questionnaire, 

requesting the deadline be extended to 

February 3, 2012. On January 19, 2012, 

Petitioner requested that the Department 

extend the deadline for submitting 

additional subsidy allegations. Based on 

this request from Petitioner, the 

Department extended this deadline until 

February 10, 2012. Also on January 19, 

2012, Petitioner requested that the 

preliminary determination be further 

extended until March 2, 2012. On 

January 23, Petitioner re-submitted its 

allegation that the GOC provided solar 

cells producers with glass for LTAR. On 

January 19, 2012, the Department 

extended the deadline until January 31, 

2012, for the GOC, Trina Solar, and 

Wuxi Suntech to respond to the 

Department’s December 7, 2011 

questionnaire. On January 31, 2012, the 

Department published in the Federal 

Register the second postponement of 

the preliminary determination until 

March 2, 2012.5 Also on January 31, 

2012, the GOC, Trina Solar, and Wuxi 

Suntech each submitted timely 

responses to the Department’s December 

7, 2011 questionnaire. 

On February 9, 2012, Petitioner 

submitted a request to extend further 

the deadline for submitting additional 

subsidy allegations. Based on this 

request from Petitioner, the Department 

extended the deadline until February 

14, 2012, for submitting additional 

subsidy allegations. Also on February 9, 

2012, the Department issued 

supplemental questionnaires to Trina 

Solar and Wuxi Suntech. On February 

14, 2012, Trina Solar and Wuxi Suntech 

each requested that the Department 

extend the deadline until February 29, 

2012, for responding to the February 9, 

2012 supplemental questionnaire. In its 

submission, Wuxi Suntech also 

reiterated its January 9, 2012 request to 

extend fully the deadline for the 

preliminary determination. The 

Department extended the supplemental 

questionnaire response deadline to 

February 27, 2012, for Trina Solar and 

Wuxi Suntech. On February 14, 2012, 

Petitioner submitted five additional new 

subsidy allegations. The Department has 

not yet reached a determination of 

whether to include these five additional 

allegations, or the uncreditworthiness 

allegations noted above, in the 

investigation, but intends to do so after 

the issuance of this preliminary 

determination. 

On February 15, 2012, the Department 

issued a supplemental questionnaire to 

the GOC. On February 17, 2012, the 

GOC requested an extension until 

March 5, 2012, for responding to the 

Department’s February 15, 2012 

supplemental questionnaire. The 

Department extended the deadline until 

March 1, 2012. On February 22, 2012, 

the Department published in the 

Federal Register the third 

postponement of the preliminary 

determination in the CVD investigation, 

postponing the preliminary 

determination until March 17, 2012.6

Between February 22 and February 24, 

2012, Petitioner submitted comments on 

the initial questionnaire responses 

submitted by the GOC, Trina Solar, and 

Wuxi Suntech. On February 27, 2012, 

Trina Solar and Wuxi Suntech each 

submitted timely responses to the 

Department’s February 9, 2012 

supplemental questionnaire. The GOC 

timely submitted its response to the 

supplemental questionnaire on March 1, 

2012. On March 7, 2012, Trina Solar 

submitted comments to be considered in 

the Department’s preliminary 

determination, and Petitioner submitted 

its pre-preliminary determination 

comments on March 8, 2012. Also on 

March 8, 2012, the Department initiated 

the new subsidy allegation for the 

provision of glass at LTAR. On March 9, 

2012, Petitioner submitted new factual 

information for the Department to 

consider in the preliminary 

determination. On March 12, 2012, the 

GOC submitted pre-preliminary 

comments, and Petitioner submitted 

comments in response to Trina Solar’s 

March 7, 2012 comments. On March 13, 

2012, Wuxi Suntech submitted prepreliminary comments, as well as 

comments on Petitioner’s December 19, 

2011 and February 28, 2012 letters 

regarding Wuxi Suntech’s 

creditworthiness. 


tkelley on DSK3SPTVN1PROD with NOTICES
Federal Register / Vol. 77, No. 58 / Monday, March 26, 2012 / Notices 17441 

7See Antidumping Duties; Countervailing Duties, 

62 FR 27296, 27323 (May 19, 1997); see also 

Initiation Notice, 76 FR at 70967. 

8See Memorandum to Christian Marsh, Deputy 

Assistant Secretary, Antidumping and 

Countervailing Duty Operations, from Jeff Pedersen, 

Case Analyst, ‘‘Scope Clarification: Antidumping 

and Countervailing Duty Investigations of 

Crystalline Silicon Photovoltaic Cells, Whether or 

Not Assembled Into Modules, from the People’s 

Republic of China,’’ March 19, 2012. 

9See Crystalline Silicon Photovoltaic Cells from 

China, Investigation Nos. 701 TA–481 and 731–TA– 

1190, Preliminary, 76 FR 78313 (December 16, 

2011). 

10See Coated Free Sheet Paper from the People’s 

Republic of China: Final Affirmative Countervailing 

Duty Determination, 72 FR 60645 (October 25, 

2007) (CFS from the PRC), and accompanying Issues 

and Decision Memorandum (CFS from the PRC 

Decision Memorandum). 

11See CFS from the PRC Decision Memorandum 

at Comment 6. 

12See, e.g., Circular Welded Carbon Quality Steel 

Pipe from the People’s Republic of China: Final 

Affirmative Countervailing Duty Determination and 

Final Affirmative Determination of Critical 

Circumstances, 73 FR 31966 (June 5, 2008), and 

accompanying Issues and Decision Memorandum 

(CWP from the PRC Decision Memorandum) at 

Comment 1. 

13See HR 4105, 112th Cong. § 1(b) (2012) 

(enacted). 

14See, e.g., CWP from the PRC Decision 

Memorandum at Comment 2. 

15See Countervailing Duty Investigation of 

Crystalline Silicon Photovoltaic Cells, Whether or 

Not Assembled Into Modules, From the People’s 

Republic of China: Preliminary Determination of 

Critical Circumstances, 77 FR 5487 (February 3, 

2012). 

Scope Comments 

In accordance with the preamble to 

the Department’s regulations, in our 

Initiation Notice we set aside a period 

of time for parties to raise issues 

regarding product coverage, and 

encouraged all parties to submit 

comments within 20 calendar days of 

that notice.7 Between November 23, 

2011 and March 14, 2012, we received 

numerous comments concerning the 

scope of the investigations. Based on 

these comments, the Department has 

clarified the scope of the investigation. 

The revised scope is set forth in the 

‘‘Scope of Investigation’’ section below. 

A full discussion of the Department’s 

preliminary conclusions regarding these 

scope comments are set forth in a 

memorandum issued concurrently with 

this notice.8

Scope of the Investigation 

The merchandise covered by this 

investigation are 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. 

This investigation covers crystalline 

silicon photovoltaic cells of thickness 

equal to or greater than 20 micrometers, 

having a p/n junction formed by any 

means, whether or not the cell has 

undergone other processing, including, 

but not limited to, cleaning, etching, 

coating, and/or addition of materials 

(including, but not limited to, 

metallization and conductor patterns) to 

collect and forward the electricity that 

is generated by the cell. 

Subject merchandise may be 

described at the time of importation as 

parts for final finished products that are 

assembled after importation, including, 

but not limited to, modules, laminates, 

panels, building-integrated modules, 

building-integrated panels, or other 

finished goods kits. Such parts that 

otherwise meet the definition of subject 

merchandise are included in the scope 

of this investigation. 

Excluded from the scope of this 

investigation are thin film photovoltaic 

products produced from amorphous 

silicon (a-Si), cadmium telluride (CdTe), 

or copper indium gallium selenide 

(CIGS). 

Also excluded from the scope of this 

investigation are crystalline silicon 

photovoltaic cells, not exceeding 

10,000mm2 in surface area, that are 

permanently integrated into a consumer 

good whose function is other than 

power generation and that consumes the 

electricity generated by the integrated 

crystalline silicon photovoltaic cell. 

Where more than one cell is 

permanently integrated into a consumer 

good, the surface area for purposes of 

this exclusion shall be the total 

combined surface area of all cells that 

are integrated into the consumer good. 

Modules, laminates, and panels 

produced in a third-country from cells 

produced in the PRC are covered by this 

investigation; however, modules, 

laminates, and panels produced in the 

PRC from cells produced in a thirdcountry are not covered by this 

investigation. 

Merchandise covered by this 

investigation is currently classified in 

the Harmonized Tariff System of the 

United States (HTSUS) under 

subheadings 8501.61.0000, 8507.20.80, 

8541.40.6020 and 8541.40.6030. These 

HTSUS subheadings are provided for 

convenience and customs purposes; the 

written description of the scope of this 

investigation is dispositive. 

Injury Test 

Because the PRC is a ‘‘Subsidies 

Agreement Country’’ within the 

meaning of section 701(b) of the Act, the 

U.S. International Trade Commission 

(ITC) is required to determine whether 

imports of the subject merchandise from 

the PRC materially injure, or threaten 

material injury to, a U.S. industry. On 

December 16, 2011, the ITC published 

its preliminary determination that there 

is a reasonable indication that an 

industry in the United States is 

materially injured by reason of imports 

of solar cells from the PRC.9

Application of the Countervailing Duty 

Law to Imports From the PRC 

On October 25, 2007, the Department 

published its final determination on 

coated free sheet paper from the PRC.10

In CFS from the PRC, the Department 

found that 

* * *given the substantial differences 

between the Soviet-style economies and 

China’s economy in recent years, the 

Department’s previous decision not to apply 

the CVD law to these Soviet-style economies 

does not act as a bar to proceeding with a 

CVD investigation involving products from 

China.11

The Department has affirmed its 

decision to apply the CVD law to the 

PRC in numerous subsequent 

determinations.12 Furthermore, on 

March 13, 2012, HR 4105 was enacted 

which makes clear that the Department 

has the authority to apply the CVD law 

to NMEs such as the PRC. The effective 

date provision of the enacted legislation 

makes clear that this provision applies 

to this proceeding.13

Additionally, for the reasons stated in 

the CWP from the PRC Decision 

Memorandum, we are using the date of 

December 11, 2001, the date on which 

the PRC became a member of the World 

Trade Organization (WTO), as the date 

from which the Department will 

identify and measure subsidies in the 

PRC for purposes of CVD 

investigations.14

Preliminary Determination of Critical 

Circumstances 

On January 27, 2012, the Department 

determined that critical circumstances 

exist with respect to imports of solar 

cells from the PRC for Trina Solar, Wuxi 

Suntech, and all other PRC producers or 

exporters, finding that there have been 

massive imports of subject merchandise 

over a relatively short period of time by 

these entities.15 Further, at this 

preliminary stage, the Department 

continues to have a reasonable basis to 

believe or suspect that there are 

countervailable subsidies inconsistent 

with the Subsidies and Countervailing 

Measures Agreement of the WTO. As a 

result, we will instruct CBP to suspend 

liquidation of all entries of the subject 


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17442 Federal Register / Vol. 77, No. 58 / Monday, March 26, 2012 / Notices 

16Respondent Selection Memorandum at 5. 

17 Id. at 6. 

18See Statement of Administrative Action 

accompanying the Uruguay Round Agreements Act, 

H. Doc. No. 316, 103d Cong. 2d Session, at 870 

(1994). 

merchandise from the PRC that are 

entered or withdrawn from warehouse, 

for consumption on or after the date 90 

days prior to the date of publication of 

this notice in the Federal Register, and 

to require a cash deposit or bond for 

such entities of the merchandise in the 

amounts indicated in the section 

‘‘Suspension of Liquidation,’’ below. 

Parties will have the opportunity to 

comment on the Department’s 

preliminary determination of critical 

circumstances in their case briefs for the 

final determination. 

Voluntary Respondents 

On November 17, 2011, CNPV 

Dongying Solar Power Company 

Limited requested that it be selected as 

a voluntary respondent, if the company 

was not selected as a mandatory 

respondent. Also on November 17, 

2011, Yingli Green Energy Holding 

Company Limited and Yingli Green 

Energy Americas, Inc. requested that 

they be selected collectively as a 

voluntary respondent. On November 22, 

2011, both Trina Solar and Wuxi 

Suntech requested that they be selected 

as voluntary respondents. Jiangsu Green 

Power PV Co., Ltd. requested that it be 

selected as a voluntary respondent on 

November 28, 2011. On December 23, 

2011, Motech (Suzhou) Renewable 

Energy Co., Ltd. requested that it be a 

selected as a voluntary respondent. 

In the Respondent Selection 

Memorandum, the Department 

explained that it did not have resources 

available to examine any of the several 

parties, noted above, requesting to be 

investigated as voluntary respondents.16

Therefore, we continued, we would not 

examine any voluntary respondents 

unless one of the mandatory 

respondents failed to cooperate. In such 

event, we noted, any party requesting to 

be a voluntary respondent would have 

to be in compliance with four criteria, 

one of which was the submission of 

questionnaire responses in accordance 

with deadlines established for the 

mandatory respondents.17

Subsequently, both mandatory 

respondents have cooperated and no 

voluntary respondent applicant 

submitted any questionnaire responses. 

Therefore, we are not calculating 

individual rates for any of the voluntary 

respondent applicants. 

Use of Facts Otherwise Available and 

Adverse Inferences 

Sections 776(a)(1) and (2) of the Act 

provide that the Department shall apply 

‘‘facts otherwise available’’ if necessary 

information is not on the record or if an 

interested party or any other person: (A) 

Withholds information that has been 

requested; (B) fails to provide 

information within the deadlines 

established, or in the form and manner 

requested by the Department, subject to 

subsections (c)(1) and (e) of section 782 

of the Act; (C) significantly impedes a 

proceeding; or (D) provides information 

that cannot be verified as provided by 

section 782(i) of the Act. 

Section 776(b) of the Act further 

provides that the Department may use 

an adverse inference in applying the 

facts otherwise available when a party 

has failed to cooperate by not acting to 

the best of its ability to comply with a 

request for information. Section 776(b) 

of the Act also authorizes the 

Department to use as adverse facts 

available (AFA), information derived 

from the petition, the final 

determination, a previous 

administrative review, or other 

information placed on the record. 

Section 776(c) of the Act provides 

that, when the Department relies on 

secondary information rather than on 

information obtained in the course of an 

investigation or review, it shall, to the 

extent practicable, corroborate that 

information from independent sources 

that are reasonably at its disposal. 

Secondary information is defined as 

‘‘{i}nformation derived from the 

petition that gave rise to the 

investigation or review, the final 

determination concerning the subject 

merchandise, or any previous review 

under section 751 concerning the 

subject merchandise.’’ 18 For purposes 

of this preliminary determination, we 

find it necessary to apply AFA in the 

following circumstances. However, we 

are not relying upon ‘‘secondary 

information’’ in our application of AFA 

in the following circumstances. 

Application of AFA: Polysilicon 

Producers Are ‘‘Authorities’’ 

As discussed below under the section 

‘‘Programs Preliminarily Determined to 

be Countervailable,’’ the Department is 

investigating the provision of 

polysilicon for LTAR by the GOC. We 

requested information from the GOC 

regarding the specific companies that 

produced this input product that Trina 

Solar and Wuxi Suntech purchased 

during the period of investigation (POI). 

Specifically, we sought information 

from the GOC that would allow us to 

determine whether the producers are 

‘‘authorities’’ within the meaning of 

section 771(5)(B) of the Act. In our 

original and supplemental 

questionnaires, we requested detailed 

information from the GOC that would be 

needed for this analysis. 

For each producer in which the GOC 

was a majority owner, we stated that the 

GOC needed to provide the following 

information that is relevant to our 

analysis of whether that producer is an 

‘‘authority.’’ 

• Translated copies of source 

documents that demonstrate the 

producer’s ownership during the POI, 

such as capital verification reports, 

articles of association, share transfer 

agreements, or financial statements. 

• The names of the ten largest 

shareholders and the total number of 

shareholders. 

• The identification of any 

government ownership or other 

affiliations between the ten largest 

shareholders and the government. 

• Total level of state ownership of the 

company’s shares and the names of all 

government entities that own shares in 

the producer 

• Any other relevant evidence the 

GOC believes demonstrates that the 

company is not controlled by the 

government. 

For each producer that the GOC 

claimed was privately owned by 

individuals or companies during the 

POI, we requested the following. 

• Translated copies of source 

documents that demonstrate the 

producer’s ownership during the POI, 

such as capital verification reports, 

articles of association, share transfer 

agreements, or financial statements. 

• Identification of the owners, 

members of the board of directors, or 

managers of the producers who were 

also government or Chinese Communist 

Party (CCP) officials or representatives 

during the POI. 

• A statement regarding whether the 

producer had ever been an SOE, and, if 

so, whether any of the current owners, 

directors, or senior managers had been 

involved in the operations of the 

company prior to its privatization. 

• A discussion of whether and how 

operational or strategic decisions made 

by the management or board of directors 

are subject to government review or 

approval. 

Finally, for producers owned by other 

corporations (whether in whole or in 

part) or with less-than-majority state 

ownership during the POI, we requested 

information tracing the ownership of the 

producer back to the ultimate individual 

or state owners. For such producers, we 

requested the following information. 


tkelley on DSK3SPTVN1PROD with NOTICES
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19See the GOC’s January 31, 2012 questionnaire 

response. 

20See February 15, 2012 supplemental 

questionnaire to the GOC. 

21See Memorandum to the File from Emily Halle, 

‘‘Analysis of the GOC’s Responses to the Input 

Producers Appendix,’’ March 19, 2012. 

22See the GOC’s March 1, 2012 supplemental 

questionnaire response at 34–38. 

23See the GOC’s January 31, 2012 questionnaire 

response at II–96. 

24See id. at II–98. 

25See id. at II–101. 26See id. 

27See Memorandum to the File from Emily Halle, 

‘‘Additional Documents for Preliminary 

Determination,’’ March 19, 2012 (Additional 

Documents Memorandum) at Attachments III and 

IV (which include the post-preliminary analysis 

memorandum from certain seamless carbon and 

alloy steel standard, line, and pressure pipe and a 

State Department report, both recognizing the 

significant role the CCP has in the GOC). 

28See id. at Attachment IV. 

29See id.; see also Certain Seamless Carbon and 

Alloy Steel Standard, Line, and Pressure Pipe From 

the People’s Republic of China: Final Affirmative 

Countervailing Duty Determination, Final 

Affirmative Critical Circumstances Determination, 

75 FR 57444 (September 21, 2010) (Seamless Pipe 

Final Determination), and accompanying Issues and 

Decision Memorandum (Seamless Pipe From the 

PRC Decision Memorandum) at Comment 7. 

30See Seamless Pipe from the PRC Decision 

Memorandum at 16. 

• The identification of any state 

ownership of the producer’s shares; the 

names of all government entities that 

own shares, either directly or indirectly, 

in the producer; the identification of all 

owners considered ‘‘SOEs’’ by the GOC; 

and the amount of shares held by each 

government owner. 

• For each level of ownership, 

identification of the owners, directors, 

or senior managers of the producer who 

were also government or CCP officials 

during the POI. 

• A discussion of whether and how 

operational or strategic decisions made 

by the management or board of directors 

are subject to government review or 

approval. 

• A statement regarding whether any 

of the shares held by government 

entities have any special rights, 

priorities, or privileges with regard to 

voting rights or other management or 

decision-making powers of the 

company; a statement regarding whether 

there are restrictions on conducting, or 

acting through, extraordinary meetings 

of shareholders; a statement regarding 

whether there are any restrictions on the 

shares held by private shareholders; and 

a discussion of the nature of the private 

shareholders’ interests in the company 

(e.g., operational, strategic, or 

investment-related). 

In its questionnaire response on 

January 31, 2012, the GOC provided 

incomplete ownership information for 

nearly all of the companies that 

produced polysilicon purchased by 

Trina Solar and Wuxi Suntech. For the 

vast majority of these producers, it 

provided none of the information 

requested in the standard ‘‘input 

producers’’ appendix the Department 

issues to determine the individual 

owners of producers and to determine 

the extent of GOC control, if any, over 

the producers.19 For example, for the 

vast majority of producers, it did not 

provide capital verification reports, 

articles of association, business 

registrations, or any other documents 

demonstrating the producers’ 

ownership. For other producers, it 

provided some information, but not 

enough to trace ownership back to the 

ultimate individual owners, as the 

questionnaire requested. Further, it 

provided no information at all regarding 

the identification of owners, directors, 

or senior managers who were also GOC 

or CCP officials or representatives. On 

February 15, 2012, we issued a 

supplemental questionnaire to the GOC 

requesting that it provide the remaining 

ownership information for the 

polysilicon producers. We also 

requested that the GOC respond to the 

questions above regarding the role, if 

any, that GOC and CCP officials and 

representatives had as owners, directors, 

or senior managers of the producers, or 

explain in detail the efforts it undertook 

to obtain the requested information.20

In its March 1, 2012 response, the 

GOC did not provide any information 

regarding the role of GOC and CCP 

officials and representatives, nor did the 

GOC explain the efforts it undertook to 

obtain the requested information. The 

GOC provided further ownership 

information, but the information 

provided was still incomplete in that no 

ownership information was provided for 

some companies, and, in other 

instances, the ownership information 

provided was not sufficient to 

determine the ultimate individual 

owners.21 In the GOC’s submission, 

several companies’ ownership is 

deemed ‘‘uncertain’’ by the GOC itself. 

The GOC informed the Department that 

it was still gathering the requested 

ownership information and that it 

expected to submit this information at a 

later date.22

In addition to not providing all of the 

requested information regarding 

government and CCP officials and 

representatives, the GOC also declined 

to answer questions about the CCP’s 

structure and functions that are relevant 

to our determination of whether the 

producers of polysilicon are 

‘‘authorities’’ within the meaning of 

section 771(5)(B) of the Act. In its initial 

questionnaire response, the GOC 

objected to our questions, stating that 

the CCP, along with other related 

organizations, is not a government 

organization and that the involvement 

of CCP officials in the management or 

operations of the input producers ‘‘does 

not lead to interference by the Chinese 

government in the management and 

operation of the input supplier.’’ 23

Additionally, the GOC stated that 

Chinese law prohibits GOC officials 

from taking positions in private 

companies.24 Furthermore, the GOC 

stated that ‘‘there is no central 

informational database to search for the 

requested information and the industry 

and commerce administration does not 

require the companies to provide such 

information.’’ 25 As such, the GOC 

claimed it was unable to respond to the 

Department’s questions.26

Regarding the GOC’s objection to the 

Department’s questions about the role of 

CCP officials in the management and 

operations of the polysilicon producers, 

we have explained our understanding of 

the CCP’s involvement in the PRC’s 

economic and political structure in a 

past proceeding.27 Public information 

suggests that the CCP exerts significant 

control over activities in the PRC.28 This 

conclusion is supported by, among 

other documents, a publicly available 

background report from the U.S. 

Department of State.29 With regard to 

the GOC’s claim that Chinese law 

prohibits GOC officials from taking 

positions in private companies, we have 

previously found that this particular law 

does not pertain to CCP officials.30

Because the GOC did not respond to 

our requests for information on this 

issue, we have no further basis for 

evaluating the GOC’s claim that the role 

of the CCP is irrelevant. Thus, the 

Department finds, as it has in past 

investigations, that the information 

requested regarding the role of CCP 

officials in the management and 

operations of the polysilicon producers, 

and in the management and operations 

of the producers’ owners, is necessary to 

our determination of whether these 

producers are authorities within the 

meaning of section 771(5)(B) of the Act. 

In addition, the GOC did not promptly 

notify the Department, in accordance 

with section 782(c), that it was unable 

to submit the information requested in 

the requested form and manner, nor did 

it suggest any alternative forms for 

submitting this information. Further, the 

GOC did not provide any information 

regarding the attempts it undertook to 

obtain this information, despite the fact 

that we provided the GOC with a second 

opportunity to provide the information 


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31See sections 776(a)(1) and (a)(2)(A) of the Act. 

32See Ansaldo Componenti, S.p.A. v. United 

States, 628 F. Supp. 198, 205 (CIT 1986) (stating 

that ‘‘ {i}t is Commerce, not the respondent, that 

determines what information is to be provided’’). 

The Court in Ansaldo criticized the respondent for 

refusing to submit information which the 

respondent alone had determined was not needed, 

for failing to submit data which the respondent 

decided could not be a basis for the Department’s 

decision, and for claiming that submitting such 

information would be ‘‘an unreasonable and 

unnecessary burden on the company.’’ Id. See also 

Essar Steel Ltd. v. United States, 721 F. Supp. 2d 

1285, 1298–99 (CIT 2010) (stating that ‘‘{r}egardless 

of whether Essar deemed the license information 

relevant, it nonetheless should have produced it 

{in} the event that Commerce reached a different 

conclusion’’ and that ‘‘Commerce, and not Essar, is 

charged with conducting administrative reviews 

and weighing all evidence in its calculation of a 

countervailing duty margin’’); NSK, Ltd. v. United 

States, 919 F. Supp. 442, 447 (CIT 1996) (‘‘NSK’s 

assertion that the information it submitted to 

Commerce provided a sufficient representation of 

NSK’s cost of manufacturing misses the point that 

‘it is Commerce, not the respondent, that 

determines what information is to be provided for 

an administrative review.’’’); Nachi-Fujikoshi Corp. 

v. United States, 890 F. Supp. 1106, 1111 (CIT 

1995) (‘‘Respondents have the burden of creating an 

adequate record to assist Commerce’s 

determinations.’’). 

33See section 776(b) of the Act. 

34See December 7, 2011 questionnaire to the GOC 

at II–10. 

35See the GOC’s January 31, 2012 questionnaire 

response at II–95. 

36See the GOC’s March 1, 2012 supplemental 

questionnaire response at 38. 

37See sections 776(a)(1)–(a)(2)(A) of the Act. 

38See section 776(b) of the Act. 

39See the GOC’s January 31, 2012 questionnaire 

response at II–143. 

40See the GOC’s March 1, 2012 supplemental 

questionnaire response at 42. 

and significant extensions for 

responding to both the original and 

supplemental questionnaires. Therefore, 

we have no basis to accept the GOC’s 

claim that it is unable to provide this 

information. This is particularly 

appropriate given that the GOC has 

informed the Department that such 

information regarding the CCP is 

irrelevant, when the Department has 

made it abundantly clear on the record 

of this investigation and previous 

investigations that such information is 

relevant to our analysis of whether 

input producers are ‘‘authorities’’ under 

the statute. 

Therefore, we preliminarily determine 

that the GOC has withheld necessary 

information that was requested of it and, 

thus, that the Department must rely on 

‘‘facts otherwise available’’ in making 

our preliminary determination.31

Moreover, we preliminarily determine 

that the GOC has failed to cooperate by 

not acting to the best of its ability to 

comply with our request for 

information. By stating that the 

requested information is not relevant, 

the GOC has placed itself in the position 

of the Department, and only the 

Department can determine what is 

relevant to its investigation.32

Furthermore, stating that it is unable to 

obtain the information because the CCP 

is not the government is effectively 

telling the Department it must reach the 

conclusion based on the statements of 

the GOC without any of the information 

that the Department considers necessary 

and relevant to evaluating fully the role 

of the CCP in the government and in 

input producers. Consequently, we 

determine that the GOC has withheld 

information and impeded the 

investigation, and that an adverse 

inference is warranted in the 

application of facts available.33 As AFA, 

we are finding that all of the producers 

of polysilicon purchased by the 

respondents during the POI are 

‘‘authorities’’ within the meaning of 

section 771(5)(B) of the Act. 

Application of AFA: The Provision of 

Polysilicon is Specific to Solar Cells 

Producers 

The Department asked the GOC to 

provide a list of industries in the PRC 

that purchase polysilicon directly and to 

provide the amounts (volume and value) 

purchased by each of the industries, 

including the solar cells industry.34 The 

GOC did not respond as requested, but 

instead simply stated that it did ‘‘not 

impose any limitations on the use of 

polysilicon’’ and that ‘‘polysilicon has a 

wide range of uses, including but not 

limited to use in the solar and 

semiconductor industries.’’ 35 The 

Department asked this question again in 

its supplemental to the GOC, and again 

the GOC did not provide the requested 

information, but simply stated once 

more that ‘‘polysilicon has a wide range 

of uses, including but not limited to use 

in the solar and semiconductor 

industries.’’ 36

Therefore, we preliminarily determine 

that the GOC has withheld necessary 

information that was requested of it and, 

thus, that the Department must rely on 

‘‘facts available’’ in making our 

preliminary determination.37 Moreover, 

we preliminarily determine that the 

GOC has failed to cooperate by not 

acting to the best of its ability to comply 

with our request for information. 

Consequently, an adverse inference is 

warranted in the application of facts 

available.38 In drawing an adverse 

inference, we find that the GOC’s 

provision of polysilicon to solar cells 

producers is specific within the 

meaning of section 771(5A) of the Act. 

For details regarding the remaining 

elements of our analysis, see the 

‘‘Provision of Polysilicon for LTAR’’ 

section below. 

Application of AFA: Land Provided to 

Trina Solar Is Specific to the Solar 

Cells Industry 

In the initial questionnaire, the 

Department stated that if the GOC 

claimed that the provision of land or 

land-use rights to the respondents was 

not contingent upon any particular 

status or activity (e.g., being a solar cells 

producer or residing in an industrial 

park), the GOC must provide a 

discussion of how the prices paid by the 

respondents were determined. The 

Department requested that the GOC 

provide information on the policies of 

the relevant local governments that had 

jurisdiction over the land and land-use 

rights. The GOC responded that it ‘‘does 

not direct the price of land or land-use 

rights, which were established between 

the mandatory respondents and local 

governments.’’39 In its questionnaire 

response, Trina Solar explained that its 

land-use rights had been purchased 

through a public bidding process and 

that all of its land was located in an 

industrial park. Therefore, in our 

supplemental questionnaire to the GOC, 

we asked the GOC to provide 

information regarding the public 

bidding process, demonstrating, among 

other things, the floor prices of these 

auctions, the public notices inviting 

bids, and the number of bidders for all 

of Trina Solar’s land-use rights 

purchases. The GOC provided the 

requested information for only one of 

the tracts of land provided by the local 

land bureau to Trina Solar. In providing 

this information, the GOC stated: ‘‘The 

GOC has obtained and provides 

information relating to the fifth piece of 

Trina’s land, but does not warrant that 

the information provided below 

regarding the fifth piece of land is 

representative for the other pieces of 

land for Trina.’’40

Because the GOC did not provide 

complete responses to either the 

Department’s initial or supplemental 

questions regarding the derivation of the 

prices paid by Trina Solar for land-use 

rights, the Department is unable to 

determine whether or not the provision 

of these land use rights was specific. 

Therefore, we preliminarily determine 

that the GOC has withheld necessary 

information that was requested of it and, 

thus, that the Department must rely on 

facts available in making our 

preliminary determination for all of 

Trina Solar’s tracts. Moreover, we 

preliminarily determine that the GOC 

has failed to cooperate by not acting to 


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41See, e.g., Additional Documents Memorandum 

at Attachment V (includes a public version of a 

memorandum describing a discussion with county 

officials of respondent’s land transaction as well as 

the transactions of several other nearby companies 

that were not even respondents in the proceeding; 

e.g., ‘‘We asked for and were provided * * * land 

contracts as well as the accompanying agreements 

for several companies located in the New Century 

Industrial Park.’’). 

42See section 776(b) of the Act. 

43See GOC’s March 1, 2012 supplemental 

questionnaire response at 55. 

44Memorandum to Mark Hoadley, Program 

Manager, ‘‘Preliminary Affirmative Countervailing 

Duty Determination: Crystalline Silicon 

Photovoltaic Cells, Whether or Not Assembled Into 

Modules, from the People’s Republic of China; 

Preliminary Determination Calculations for Wuxi 

Suntech Power Co., Ltd.,’’ March 19, 2012, and 

Memorandum to Mark Hoadley, Program Manager, 

‘‘Preliminary Affirmative Countervailing Duty 

Determination: Crystalline Silicon Photovoltaic 

Cells, Whether or Not Assembled Into Modules, 

from the People’s Republic of China; Preliminary 

Determination Calculations for Changzhou Trina 

Solar Energy Co., Ltd.,’’ March 19, 2012 

(collectively, Preliminary Calculations 

Memoranda). 

45See 19 CFR 351.204(b)(2). 

46See U.S. Internal Revenue Service Publication 

946 (2008), ‘‘How to Depreciate Property,’’ at Table 

B–2: Table of Class Lives and Recovery Periods. 

47As discussed above and in accordance with the 

Department’s practice, regardless of the AUL 

chosen, we will not countervail subsidies conferred 

before December 11, 2011, the date of the PRC’s 

accession to the WTO. See, e.g., Certain Magnesia 

Carbon Bricks From the People’s Republic of China: 

Final Affirmative Countervailing Duty 

Determination, 75 FR 45472 (August 2, 2010), and 

accompanying Issues and Decision Memorandum at 

‘‘Subsidies Valuation Information.’’ 

the best of its ability to comply with our 

request for information. The GOC 

refused to provide necessary 

information regarding prices paid by 

Trina Solar. In its first response, quoted 

above, the GOC appears to be suggesting 

it cannot obtain information from local 

governments regarding land 

transactions. However, such information 

has been provided in other 

proceedings,41 and some information 

from the local government was, in fact, 

provided in this investigation; e.g., 

information concerning one tract of land 

auctioned to Trina Solar by the 

Changzhou government, and the GOC’s 

confirmation that all tracts sold to the 

respondents have been reported. In its 

second response, the GOC candidly 

admits the inadequacy of its response 

when it advises the Department that it 

‘‘does not warrant that the information 

provided below regarding the fifth piece 

of land is representative for the other 

pieces of land for Trina.’’ Consequently, 

the GOC has not cooperated to the best 

of its ability and an adverse inference is 

warranted in the application of facts 

available.42 In drawing an adverse 

inference, we find that the GOC’s 

provision of land to Trina Solar is 

specific within the meaning of section 

771(5A) of the Act. For details regarding 

the remainder of our analysis for this 

program, see the ‘‘Provision of Land for 

LTAR’’ section below. 

Application of AFA: ‘‘Subsidies 

Discovered During the Investigation’’ 

In supplemental questionnaires to the 

respondents and the GOC, we identified 

a number of grants that the companies 

appeared to have received based on 

information from the financial 

statements and filings with the U.S. 

Securities and Exchange Commission 

(SEC) that parties had placed on the 

record. Respondents had not reported 

these grants nor did they complete 

appropriate appendices, despite the 

Department’s request in its initial 

questionnaire that the respondents 

should report all subsidies used during 

the POI, not merely those related to 

allegations under investigation. In the 

supplemental questionnaire, we 

requested that Trina Solar and Wuxi 

Suntech provide more information 

about these grants and that the GOC 

coordinate with the companies to 

provide information concerning the 

programs under which these grants were 

provided, including complete responses 

to the questions on specificity in our 

‘‘standard appendix.’’ While both 

companies provided a listing of their 

grants and the names of the projects or 

programs under which they themselves 

classified these grants, the GOC only 

confirmed the amounts of the grants 

reported by one respondent. The GOC 

did not provide any other information 

but instead noted: ‘‘The GOC objects to 

inquiries concerning purported 

subsidies as to which no timely 

allegations have been filed, and as to 

which the Department has not initiated 

any investigation.’’ 43

The Department, however, has the 

authority pursuant to section 775 of the 

Act to examine subsidies discovered 

during the course of an investigation. 

Because the GOC has declined to 

provide information necessary for our 

analysis of whether these grants are 

specific, we find that the GOC has 

withheld information that was 

requested and has impeded our 

investigation. Further, the GOC has not 

cooperated to the best of its ability in 

responding to our request for 

information and therefore, we find the 

use of AFA is warranted in determining 

the specificity of the grants the 

respondents reported. Accordingly, as 

AFA, we are finding all grant programs 

for these subsidies to be specific 

(hereinafter, referred to as the 

‘‘Discovered Grants’’ to distinguish 

them from other grants provided under 

programs named in the petition). A list 

of all Discovered Grants identified 

publicly by the respondents and found 

to be used in the POI is included below 

in the section ‘‘Programs Preliminarily 

Determined to be Countervailable.’’ 

Most grants provided prior to the POI 

did not pass the ‘‘0.5 percent test’’ 

provided for in 19 CFR 351.524(b)(2) 

(discussed below) and, thus, no benefit 

is allocable to the POI from these grants. 

A list of the grants provided prior to the 

POI that can be identified publicly is 

included below in the section 

‘‘Programs Preliminarily Determined to 

be Not Used By Respondents.’’ Because 

the names of some of the grants were 

bracketed by the respondents, a full list 

of the Discovered Grants can only be 

found in the business-proprietary 

Preliminary Calculations Memoranda.44

Subsidies Valuation Information 

Period of Investigation 

The POI for which we are measuring 

subsidies is January 1, 2010, through 

December 31, 2010.45

Allocation Period 

The Department normally allocates 

the benefits from non-recurring 

subsidies over the average useful life 

(AUL) of renewable physical assets used 

in the production of subject 

merchandise. The Department finds the 

AUL in this proceeding to be 10 years, 

pursuant to 19 CFR 351.524(d)(2) and 

the U.S. Internal Revenue Service’s 1977 

Class Life Asset Depreciation Range 

System.46 The Department notified the 

respondents of the 10-year AUL in the 

initial questionnaire and requested data 

accordingly.47 No party in this 

proceeding has disputed this allocation 

period. 

Furthermore, for non-recurring 

subsidies, we have applied the ‘‘0.5 

percent test,’’ as described in 19 CFR 

351.524(b)(2). Under this test, we divide 

the amount of subsidies approved under 

a given program in a particular year by 

the relevant sales value (e.g., total sales 

or export sales) for the same year. If the 

amount of the subsidies is less than 0.5 

percent of the relevant sales value, then 

the benefits are allocated to the year of 

receipt rather than across the AUL. 

Attribution of Subsidies 

In accordance with 19 CFR 

351.525(b)(6)(i), the Department 

normally attributes a subsidy to the 

products produced by the company that 

received the subsidy. However, 19 CFR 

351.525(b)(6)(ii)-(v) provides additional 

rules for the attribution of subsidies 

received by respondents with crossowned affiliates. Subsidies to the 

following types of cross-owned affiliates 


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48See Fabrique de Fer de Charleroi v. United 

States, 166 F. Supp 2d 593, 600–604 (CIT 2001). 

49See Trina Solar’s January 31, 2012 

questionnaire response at III–2. 

50The Department’s regulations at 19 CFR 

351.525(b)(6)(vi) state that cross-ownership exists 

when one corporation can use or direct the assets 

of another corporation in essentially the same way 

it can use its own. Normally, however, ‘‘this 

standard will be met where there is a majority 

voting ownership interest between two corporations 

or through common ownership of two (or more) 

corporations.’’ 

51See, e.g., Trina Solar’s January 31, 2012 

questionnaire response at Exhibits 1 and 2. 

52See Wuxi Suntech’s January 31, 2012 

questionnaire response at Exhibit 10. 

53See ‘‘Programs for Which Additional 

Information is Required,’’ below. 

54See Preliminary Calculations Memoranda. 

are covered in these additional 

attribution rules: (ii) Producers of the 

subject merchandise; (iii) holding 

companies or parent companies; (iv) 

producers of an input that is primarily 

dedicated to the production of the 

subject merchandise; or (v) an affiliate 

producing non-subject merchandise that 

otherwise transfers a subsidy to a 

respondent. 

Cross-Ownership 

According to 19 CFR 

351.525(b)(6)(vi), cross-ownership exists 

between two or more corporations 

where one corporation can use or direct 

the individual assets of another 

corporation in essentially the same ways 

it can use its own assets. This standard 

will normally be met where there is a 

majority voting interest between two 

corporations, or through common 

ownership of two (or more) 

corporations. The Court of International 

Trade (CIT) has upheld the 

Department’s authority to attribute 

subsidies based on whether a company 

could use or direct the subsidy benefits 

of another company in essentially the 

same ways it could use its own subsidy 

benefits.48

Based on information on the record, 

we preliminarily determine that crossownership exists, in accordance with 19 

CFR 351.525(b)(6)(vi), among the 

following companies. 

1. The Trina Solar Companies 

As discussed above, we selected 

Changzhou Trina Solar Energy Co., Ltd. 

(i.e., Trina Solar) as a mandatory 

respondent. Trina Solar reported that it 

is affiliated with Trina Solar 

(Changzhou) Science and Technology 

Co., Ltd. (TST), which is a producer of 

subject merchandise located in the PRC. 

Since both companies produce subject 

merchandise, Trina Solar and TST 

responded collectively to the 

Department’s questionnaires. In the 

questionnaire responses, these 

companies stated that they have the 

same board of directors and chairman. 

Both Trina Solar and TST are ultimately 

owned by Trina Solar Limited (TSL), a 

company located in the Cayman Islands 

that is publicly traded on the New York 

Stock Exchange.49 Trina Solar and TST 

have reported that the CEO of TSL is 

also their shared board chairman. 

Therefore, pursuant to 19 CFR 

351.525(b)(6)(vi), we preliminarily 

determine that Trina Solar and TST are 

cross-owned.50 Trina Solar has reported 

that both it and TST are affiliated with 

numerous companies.51 While Trina 

Solar has stated that, for various 

reasons, none of these affiliates are 

required to provide questionnaire 

responses under the Department’s 

attribution and cross-ownership 

regulations, we will be seeking further 

information and will be examining the 

relationship between and among Trina 

Solar, TST, and its affiliated companies 

during the course of this investigation. 

Because both Trina Solar and TST are 

producers of subject merchandise, we 

are attributing any subsidy received by 

either company to the combined sales of 

both companies, excluding 

intercompany sales. Hereinafter, we 

refer to Trina Solar and TST collectively 

as Trina Solar, unless otherwise 

indicated. 

2. The Wuxi Suntech Companies 

Wuxi Suntech has responded to the 

Department’s original and supplemental 

questionnaires on behalf of itself and 

five cross-owned affiliates: Luoyang 

Suntech Power Co., Ltd. (Luoyang 

Suntech), Suntech Power Co., Ltd. 

(Shanghai Suntech), Yangzhou Rietech 

Renewal Energy Co., Ltd. (Yangzhou 

Rietech), Zhenjiang Huantai Silicon 

Science & Technology Co., Ltd. 

(Zhenjiang Huantai), and Kuttler 

Automation Systems (Suzhou) Co., Ltd. 

(Suzhou Kuttler). In its annual Form 

20–F SEC filing for the year ending 

December 31, 2010,52 Suntech Power 

Holdings Co., Ltd. (Suntech Holdings), 

the holding company registered in the 

Cayman Islands and listed on the New 

York Stock Exchange, reported that it 

owns the majority (i.e., wholly owns or 

owns more than 50 percent) of the 

shares of Wuxi Suntech, Luoyang 

Suntech, Shanghai Suntech, Yangzhou 

Rietech, Zhenjiang Huantai and Suzhou 

Kuttler. As all these companies have 

common ownership through Suntech 

Holdings, we preliminarily determine 

that Wuxi Suntech, Luoyang Suntech, 

Shanghai Suntech, Yangzhou Rietech, 

Zhenjiang Huantai and Suzhou Kuttler 

are cross-owned within the meaning of 

19 CFR 351.525(b)(6)(vi). Wuxi Suntech 

has reported that it is affiliated with 

numerous companies. While Wuxi 

Suntech has stated that, for various 

reasons, none of these affiliates are 

required to provide questionnaire 

responses under the Department’s 

attribution and cross-ownership 

regulations, we will be seeking further 

information and will be examining the 

relationship between and among these 

various affiliated companies during the 

course of this investigation.53

Wuxi Suntech, Luoyang Suntech, and 

Shanghai Suntech are producers of 

subject merchandise. Accordingly, we 

are attributing subsidies received by 

Wuxi Suntech, Luoyang Suntech, and 

Shanghai Suntech to the combined sales 

of the three companies, excluding intercompany sales, in accordance with 19 

CFR 351.525(b)(6)(ii). Yangzhou 

Rietech, Zhenjiang Huantai and Suzhou 

Kuttler provide either inputs or 

equipment for the production of subject 

merchandise. With regard to the inputs, 

we preliminarily determine that these 

inputs are primarily dedicated to the 

production of solar cells in accordance 

with 19 CFR 351.524(b)(6)(iv).54

Therefore, we are attributing subsidies 

received by each of these three 

companies to the combined sales of the 

company itself and the three producers 

of subject merchandise discussed above, 

excluding inter-company sales, in 

accordance with 19 CFR 

351.525(b)(6)(iv). 

Hereinafter, we refer to Wuxi 

Suntech, Luoyang Suntech, Shanghai 

Suntech, Yangzhou Rietech, Zhenjiang 

Huantai, and Suzhou Kuttler 

collectively as Wuxi Suntech, unless 

otherwise indicated. 

Denominators 

When selecting an appropriate 

denominator for use in calculating the 

ad valorem subsidy rate, the Department 

considers the basis for the respondent’s 

receipt of benefits under each program. 

As discussed in further detail below in 

the ‘‘Programs Preliminarily Determined 

to be Countervailable’’ section, where 

the program has been found to be an 

export subsidy, we used the recipient’s 

total export sales as the denominator (or 

the total combined export sales of the 

cross-owned affiliates, as described 

above). Where the program has been 

found to be countervailable as a 

domestic subsidy, we used the 

recipient’s total sales as the 

denominator (or the total combined 

sales of the cross-owned affiliates, as 

described above). For a further 

discussion of the denominators used, 


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55 19 CFR 351.505(a)(3)(i). 

56 19 CFR 351.505(a)(3)(ii). 

57See CFS from the PRC Decision Memorandum 

at Comment 10. 

58 Id. 

59See Lightweight Thermal Paper From the 

People’s Republic of China: Final Affirmative 

Countervailing Duty Determination, 73 FR 57323 

(October 2, 2008) (LWTP from the PRC), and 

accompanying Issues and Decision Memorandum 

(LWTP from the PRC Decision Memorandum) at 

8–10. 

60See The World Bank Country Classification, 

http://econ.worldbank.org/. 

61See Additional Documents Memorandum at 

Attachment I (a Department memorandum entitled 

‘‘Consultations with Government Agencies’’). 

62As discussed below, short-term loan 

benchmarks are the basis for long-term loan 

benchmarks. Therefore, we calculated short-term 

loan benchmarks for several years other than those 

in which short-terms loans were provided that were 

outstanding in the POI. 

63Because we are countervailing loans provided 

in a number of years, for the exact details regarding 

the countries excluded in each year, see 

Memorandum regarding ‘‘Preliminary Affirmative 

Countervailing Duty Determination: Crystalline 

Silicon Photovoltaic Cells, Whether or Not 

Assembled Into Modules, from the People’s 

Republic of China—Preliminary Benchmark 

Memorandum,’’ March 19, 2012 (Preliminary 

Benchmark Memorandum). 

see the Preliminary Calculations 

Memoranda. 

Discount Rates for Allocating NonRecurring Subsidies 

Consistent with 19 CFR 

351.524(d)(3)(i)(C) and the Department’s 

practice over multiple PRC CVD 

investigations, we have used as our 

discount rates the long-term interest rate 

benchmarks calculated according to the 

methodology described below for the 

years in which the government provided 

non-recurring subsidies. 

Interest Rate Benchmarks 

1. Short-Term Interest Rate Benchmark 

Section 771(5)(E)(ii) of the Act 

explains that the benefit for loans is the 

‘‘difference between the amount the 

recipient of the loan pays on the loan 

and the amount the recipient would pay 

on a comparable commercial loan that 

the recipient could actually obtain on 

the market,’’ indicating that a 

benchmark must be a market-based rate. 

Normally, the Department uses 

comparable commercial loans reported 

by the company for benchmarking 

purposes.55 If the firm does not receive 

any comparable commercial loans 

during the relevant periods, the 

Department’s regulations provide that 

we ‘‘may use a national average interest 

rate for comparable commercial 

loans.’’56 The Department, however, has 

determined that loans provided by 

Chinese banks reflect significant 

government intervention in the banking 

sector, and do not reflect rates that 

would be found in a functioning 

market.57 Therefore, the benchmarks 

that are described under 19 CFR 

351.505(a)(3) are not appropriate 

options. The Department is, therefore, 

using an external, market-based 

benchmark interest rate. 

In past proceedings involving imports 

from the PRC, we calculated the 

external benchmark using the 

methodology first developed in CFS 

from the PRC58 and more recently 

updated in LWTP from the PRC.59

Under that methodology, we first 

determine which countries are similar 

to the PRC in terms of gross national 

income (GNI), based on the World 

Bank’s classification of countries as: 

Low income; lower-middle income; 

upper-middle income; and high income. 

As explained in CFS from the PRC, this 

pool of countries captures the broad 

inverse relationship between income 

and interest rates. For 2001 through 

2009, the PRC fell in the lower-middle 

income category.60 Beginning in 2010, 

however, the PRC is in the uppermiddle income category. Accordingly, 

as explained further below, we are using 

the interest rates of upper-middle 

income countries to construct the 2010 

benchmark. 

After identifying the appropriate 

interest rates, the next step in 

constructing the benchmark has been to 

incorporate an important factor in 

interest rate formation, the strength of 

governance. These indicators measure 

the quality of the countries’ institutions 

and they have been built into the 

analysis by using a regression analysis 

that relates the interest rates to the 

governance indicators. In each of the 

years from 2001–2009, the results of the 

regression analysis reflected the 

intended, common sense result: stronger 

institutions meant relatively lower 

interest rates, while weaker institutions 

meant relatively higher interest rates. 

For 2010, however, the regression does 

not yield that outcome for the PRC’s 

income group. 

This contrary result for a single year 

in ten does not lead us to reject the 

strength of governance as a determinant 

of interest rates. As confirmed by the 

Federal Reserve, ‘‘there is a significant 

negative correlation between 

institutional quality and the real interest 

rate, such that higher quality 

institutions are associated with lower 

real interest rates.’’ 61 However, for 

2010, incorporating the governance 

indicators in our analysis does not make 

for a better benchmark. Therefore, while 

we have continued to rely on the 

regression-based analysis used since 

CFS from the PRC to compute the 

benchmarks for loans taken out prior to 

the POI, for the 2010 benchmark we are 

using an average of the interest rates of 

the upper-middle income countries. 

Based on our experience for the 2001– 

2009 period, in which the average 

interest rate of the lower-middle income 

group did not differ significantly from 

the benchmark rate resulting from the 

regression for that group, use of the 

average interest rate for 2010 does not 

introduce a distortion into our 

calculations. 

With the following exceptions, we 

have used the interest and inflation 

rates reported in the International 

Financial Statistics (IFS), collected by 

the International Monetary Fund, for the 

countries identified as ‘‘upper middle 

income’’ by the World Bank for 2010 

and ‘‘lower-middle income’’ for 2001– 

2009.62 First, we did not include those 

economies that the Department 

considered to be NMEs for antidumping 

purposes during any part of the years in 

question, for example: Armenia, 

Azerbaijan, Belarus, Georgia, Moldova, 

and Turkmenistan. Second, the pool 

necessarily excludes any country that 

did not report lending and inflation 

rates to the IFS for those years. Third, 

we removed any country that reported 

a rate that was not a lending rate or that 

based its lending rate on foreigncurrency denominated instruments. For 

example, if a country reports a deposit 

rate, not a lending rate, or reports dollardenominated rates, not rates in its local 

currency, the rate for such a country has 

been excluded. Finally, for each year for 

which the Department calculated a 

benchmark rate, we have also excluded 

any countries with aberrational or 

negative real interest rates for the year 

in question.63 Because the resulting 

interest rate benchmarks are net of 

inflation, we adjusted the benchmarks 

to include an inflation component. 

For loans denominated in U.S. 

dollars, we are again following the 

methodology developed over a number 

of successive PRC investigations. 

Specifically, for U.S. dollar loans, the 

Department used as a benchmark the 

one-year dollar London Interbank 

Offering Rate (LIBOR), plus the average 

spread between LIBOR and the one-year 

corporate bond rates for companies with 

a BB rating. Likewise, for loans 

denominated in other foreign 

currencies, we used as a benchmark the 

one-year LIBOR for the given currency 

plus the average spread between the 

LIBOR rate and the one-year corporate 

bond rate for companies with a BB 

rating. 


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64See, e.g., Light-Walled Rectangular Pipe and 

Tube From the People’s Republic of China: Final 

Affirmative Countervailing Duty Investigation 

Determination, 73 FR 35642 (June 24, 2008) and 

accompanying Issues and Decision Memorandum 

at 8. 

65See Citric Acid and Certain Citrate Sales From 

the People’s Republic of China: Final Affirmative 

Countervailing Duty Determination, 74 FR 16836 

(April 13, 2009) and accompanying Issues and 

Decision Memorandum at Comment 14. 

66See Preliminary Benchmark Memorandum at 

Attachment 12. 

67See, e.g., Laminated Woven Sacks From the 

People’s Republic of China: Preliminary Affirmative 

Countervailing Duty Determination; Preliminary 

Affirmative Determination of Critical 

Circumstances, In Part; and Alignment of Final 

Countervailing Duty Determination With Final 

Antidumping Duty Determination, 72 FR 67893, 

67906–08 (December 3, 2007) (LWS Preliminary 

Determination), unchanged in Laminated Woven 

Sacks From the People’s Republic of China: Final 

Affirmative Countervailing Duty Determination and 

Final Affirmative Determination, in Part, of Critical 

Circumstances, 73 FR 35639 (June 24, 2008). 

68See LWS Preliminary Determination, 72 FR at 

67909. 

69See Certain New Pneumatic Off-the-Road Tires 

from the People’s Republic of China: Preliminary 

Affirmative Countervailing Duty Determination, 72 

FR 71360, 71368 (December 17, 2007). 

70See Preliminary Benchmark Memorandum at 

Attachment 5. 

71All GNI figures are from the World 

Development Report 2011, published by the World 

Bank. 

72See Additional Documents Memorandum at 

Attachment II (which includes relevant sections of 

the United Nation’s World Population Prospects: 

The 2010 Revision). 

73See Preliminary Benchmark Memorandum at 

Attachment 7. 

74The report, published by CB Richard Ellis, is 

currently entitled Asian Marketview, but older 

versions were entitled Asian Marketwatch. 

75See, e.g., LWS Preliminary Determination, 72 

FR at 67909. 

2. Long-Term Interest Rate 

The lending rates reported in the IFS 

represent short-term and medium-term 

lending, and there are not sufficient, 

publicly available long-term interest rate 

data upon which to base a robust 

benchmark for long-term loans. To 

address this problem, the Department 

previously developed an adjustment to 

the short-term rates described above to 

convert them to long-term rates using 

BB-rated corporate bond rates.64 In 

subsequent CVD investigations, this 

long-term conversion markup was 

revised to equal the difference between 

the two-year BB bond rate and the 

n-year BB bond rate, where ‘‘n’’ equals 

or approximates the number of years of 

the term of the loan in question.65 The 

resulting inflation-adjusted lending 

rates, which we are also using as 

discount rates, are provided in the 

Preliminary Benchmark 

Memorandum.66 We continue to use the 

same methodology for this case. 

Land Benchmark 

Section 351.511(a)(2) of the 

Department’s regulations sets forth the 

basis for identifying comparative 

benchmarks for determining whether a 

government good or service is provided 

for LTAR. These potential benchmarks 

are listed in hierarchical order by 

preference: (1) Market prices from actual 

transactions within the country under 

investigation; (2) world market prices 

that would be available to purchasers in 

the country under investigation; or (3) 

an assessment of whether the 

government price is consistent with 

market principles. As explained in 

detail in previous investigations, the 

Department cannot rely on the use of so 

called ‘‘first-tier’’ and ‘‘second-tier’’ 

benchmarks to assess the benefits from 

the provision of land for LTAR in the 

PRC.67

Consistent with the prior 

determinations, we have preliminarily 

determined that measuring the extent by 

which land is provided for LTAR is best 

achieved by comparing prices for landuse rights in the PRC with comparable 

market-based prices in a country at a 

comparable level of economic 

development that is within the 

geographic vicinity of the PRC. In 

previous PRC investigations,68 we 

concluded that the most appropriate 

benchmark for the respondents’ landuse rights were sales of certain 

industrial land plots in industrial 

estates, parks, and zones in Thailand. 

We relied on prices from a real estate 

market report on Asian industrial 

property that was prepared outside the 

context of any Department proceeding 

by an independent and internationally 

recognized real estate agency with a 

long-established presence in Asia. In 

relying on a land benchmark from 

Thailand, we noted that the PRC and 

Thailand had similar levels of per capita 

GNI and that population density in the 

PRC and Thailand are roughly 

comparable. Additionally, we noted that 

producers consider a number of 

markets, including Thailand, as options 

for diversifying production bases in 

Asia beyond the PRC. Therefore, we 

concluded, the same producers may 

compare prices across borders when 

deciding what land to buy. We cited to 

a number of sources which named 

Thailand as an alternative production 

base to the PRC.69

For this investigation, we have 

obtained updated data from the same 

independent and internationally 

recognized real estate agency for all four 

quarters of 2010. These are updated 

versions of the same reports, relied on 

in the prior determinations, which 

include industrial land values for plots 

in industrial estates, parks, and zones in 

Thailand, the Philippines, and other 

Asian countries. We are placing all four 

of the Asian Marketview reports, which 

are publicly available on the Internet, on 

the record of this investigation.70 In 

evaluating which of these locations is 

most appropriate to use as the source of 

the benchmark, we have focused on 

Thailand, consistent with the prior 

determinations. 

Based on our analysis, we 

preliminarily determine that a simple 

average of all land values for industrial 

property in Thailand provides the 

closest match, among options on the 

record, to the PRC in terms of per capita 

GNI and population density. The per 

capita GNI of Thailand is $3,760, 

compared to $3,590 for the PRC, while 

the per capita GNI for the Philippines is 

$2,840.71 (Asian Marketview includes 

data for other Asian nations, but all 

have either higher incomes or are 

considered NMEs by the Department; 

e.g., Singapore and Vietnam.) For 2010, 

Thailand is also a closer match in terms 

of population density with 135 people 

per square kilometer (psk) compared to 

the PRC’s 140 people psk (the 

Philippines has a population density of 

311 psk).72 The calculated average of the 

rates for Thailand is $8.21 per square 

foot.73 As explained in the Preliminary 

Benchmark Memorandum, the 

Department is deflating this value to 

calculate the benchmark for any land 

that may have been purchased in 2008 

and 2009. 

We are continuing to use the 2007 

benchmark calculated in the 

investigations of laminated woven sacks 

and new pneumatic off-the-road tires 

cited above as the land benchmark for 

any land that may have been purchased 

in 2007 or earlier years. As mentioned, 

this benchmark was calculated using the 

same source, Asian Marketview,74

discussed above, and also is a simple 

average of industrial land values 

reported in Asian Marketview for 

Thailand. The analysis relied upon in 

determining that this figure was the 

most appropriate benchmark for PRC 

land-use rights in 2007 can be found in 

those prior determinations.75

Polysilicon Benchmark 

We have selected the benchmark for 

measuring the adequacy of the 

remuneration for polysilicon in 

accordance with 19 CFR 351.511(a)(2). 

In its supplemental questionnaire 

response, the GOC confirmed that there 

were 47 producers in the PRC of 

polysilicon during the POI, but the GOC 

did not provide the production volume 


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76See the GOC’s March 1, 2012 supplemental 

questionnaire response at 36. 

77See the GOC’s January 31, 2012 questionnaire 

response at II–91. 

78See Trina Solar’s January 31, 2012 

questionnaire response at Exhibit 27; Wuxi 

Suntech’s January 31, 2012 questionnaire response 

at Exhibit S–17; Zhenjiang Huantai’s February 27, 

2012 questionnaire response at Exhibit S–19; and 

Yangzhou Rietech’s January 31, 2012 questionnaire 

response at Exhibit 5. 

79See section 776(b) of the Act. 

80The GOC reported that it maintains an 

ownership or management interest in nine 

producers. However, two of these companies were 

among the 30 already analyzed above. 

81See October 19, 2011 CVD Petition at 40, 

Exhibit 154. 

82See Trina Solar’s February 27, 2012 

supplemental questionnaire response at Exhibit 16– 

18. 

83See Preliminary Benchmark Memorandum at 

Attachment 2. 

84There appears to be no information on the 

record indicating whether Suntech purchases 

polysilicon through short-term or long-term 

contracts, the spot market, or a mixture of one or 

more of these. 

for any of these polysilicon producers, 

claiming it was prohibited from 

providing such information.76 The GOC 

provided the names of nine polysilicon 

producers in which it maintains an 

ownership or management interest 

according to the National Bureau of 

Statistics of the GOC.77 The mandatory 

respondents purchased polysilicon from 

30 polysilicon producers during the 

POI, two of which were included in the 

list of producers in which the GOC 

maintains an ownership or management 

interest.78

As explained in the ‘‘Application of 

AFA: Polysilicon Producers are 

‘Authorities’’’ section above, the 

Department has preliminarily 

determined that all the producers of 

polysilicon purchased by the 

respondents during the POI are 

‘‘authorities’’ within the meaning of 

section 771(5)(B) of the Act. Because the 

GOC did not provide the production 

volumes for any of the polysilicon 

producers in the PRC, the Department 

cannot determine, on the basis of 

production volumes, what percentage of 

total domestic production or total 

domestic consumption is accounted for 

by the producers determined to be 

‘‘authorities.’’79 Therefore, we have 

determined whether polysilicon 

consumption in the PRC is dominated 

by the GOC based on the number of 

producers that are ‘‘authorities.’’ In 

addition to the 30 producers determined 

to be ‘‘authorities,’’ the GOC reports it 

maintains an ownership or management 

interest in another seven,80 bringing to 

37 the number of producers through 

which the GOC influences and distorts 

the domestic market for polysilicon, out 

of a total universe of 47 producers in the 

PRC. 

Therefore, we determine that the GOC 

is the predominant provider of 

polysilicon in the PRC and that its 

significant presence in the market 

distorts all transaction prices. As such, 

we cannot rely on domestic prices in the 

PRC as a ‘‘tier-one’’ benchmark. For the 

same reasons, we determine that import 

prices into the PRC cannot serve as a 

benchmark. Turning to tier-two 

benchmarks, i.e., world market prices 

available to purchasers in the PRC, 

pursuant to 19 CFR 351.511(a)(2)(ii), 

Petitioner submitted monthly world 

market prices for polysilicon.81 Based 

on our review of the data, we are 

preliminarily relying on these world 

market prices, from Photon Consulting 

‘‘Silicon Price Index,’’ as a benchmark 

price for polysilicon. 

We note that Petitioner submitted 

alternative polysilicon benchmark data 

in its pre-preliminary determination 

comments. It argued that these data 

were more appropriate because they 

represent values for long-term contracts 

in 2008, which might cover shipments 

in 2010, according to the SEC filings of 

Trina Solar. Trina Solar’s SEC filings, 

however, state that it purchased 

polysilicon in 2007 and 2008 ‘‘through 

a combination of multi-year supply 

agreements, short-term supply 

arrangements and spot market 

purchases.’’82 In addition, the Web site 

for Photon Consulting states that its 

‘‘Silicon Price Index’’ is a ‘‘weighted 

index in which silicon prices reported 

by each survey participant are weighted 

to reflect the nuances found in the 

length of reported silicon contracts, 

prepayments and price digression.’’83

Therefore, it appears that the Photon 

Consulting price index is the most 

appropriate match to Trina Solar’s 

purchases.84 We intend, however, to 

gather information concerning the exact 

structure of the respondents’ purchases 

of polysilicon to evaluate whether their 

purchase terms indicate that the use of 

a different benchmark is more 

appropriate. 

Terminated Programs 

The GOC reported that six programs 

used by the respondents have been 

terminated. However, the GOC did not 

request a program wide change 

adjustment to the cash deposit rate 

under 19 CFR 351.526(a), nor did it 

provide all of the documentation 

necessary to conduct such an 

evaluation. In addition, several of the 

programs the GOC claims were 

terminated have residual benefits in the 

POI. For example, certain parties 

continue to enjoy benefits from the 

‘‘Two Free, Three Half’’ income tax 

program for Foreign Invested 

Enterprises (FIEs). Therefore, we are not 

making any adjustments to the cash 

deposit rates in this preliminary 

determination for terminated programs. 

Analysis of Programs 

Based upon our analysis of the 

petition, the responses to our 

questionnaires, and other information 

on the record, we preliminarily 

determine the following. 

I. Programs Preliminarily Determined 

To Be Countervailable 

A. Golden Sun Demonstration Program 

The Golden Sun Demonstration 

Program (Golden Sun program) is a 

combination of financial assistance, 

technological support, and market 

approaches developed to accelerate the 

industrialization and development of 

the PRC’s domestic photovoltaic power 

industry and to promote the progress of 

photovoltaic power generation. 

According to the GOC, the central 

government has allocated renewable 

energy funds to support the 

implementation of the Golden Sun 

program under Article 20 of the GOC’s 

‘‘Renewable Energy Law.’’ As detailed 

in the ‘‘Notice concerning the 

Implementation of the Golden Sun 

Demonstration Project,’’ (CaiJian {2009} 

No. 397), the program was established 

in 2009, and was designed to provide 

one-time assistance to recipients over 

the course of its two-year term. 

The GOC states that the Golden Sun 

program was created to assist 

constructive investment in photovoltaic 

electricity-generation projects, with the 

goal of narrowing the gap between the 

costs of photovoltaic electricity 

generation and the costs of fossil fuel 

electricity generation. Financial 

assistance through this program 

includes support for, inter alia, the 

following: (1) The use of large-scale 

mining, commercial enterprises, and 

public welfare institutions to construct 

the user’s side of the electrical grid for 

photovoltaic power generation 

demonstration projects; (2) increasing 

the power supply capacity in remote 

locations; and (3) construction of largescale grid-connected photovoltaic power 

generation demonstration projects in 

solar energy rich regions. 

To be eligible for financial support for 

this program, the GOC states that 

projects must: (1) Be included in the 

Golden Sun program within the local 

geographic region; (2) have an installed 

capacity of not less than 300 kWh; (3) 

have a construction period of not more 

than one year, and an operation period 


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85Besides this single grant, other grants have been 

approved for respondents but none resulted in 

disbursements during the POI. 

86See Utility Scale Wind Towers From the 

People’s Republic of China: Initiation of 

Countervailing Duty Investigation, 77 FR 3447 

(January 24, 2012), and accompanying Initiation 

Checklist at 38–39; see also the GOC’s March 1, 

2012 supplemental questionnaire response at 3. 

87See the GOC’s March 1, 2012 supplemental 

questionnaire response at 4. 

88 In addition to the documents noted by 

Petitioner, referred to above, concern with the solar 

cells industry is demonstrated in the National 

Medium- and Long-Term Program for Science and 

Technology Development (the GOC’s January 31, 

2012 questionnaire response at Exhibit O–II–A–6– 

b) and the Interim Measures for Special Fund 

Management for the Development of Renewable 

Energies (the GOC’s January 31, 2012 questionnaire 

response at Exhibit O–II–A–6–d), and specific 

projects undertaken pursuant to these plans, laws, 

and measures, such as the Golden Sun program (O– 

II–A–6–h). This concern has culminated in the 

recently issued five-year plan for the Solar Cells 

Industry (for the 12th planning period, beginning 

after the end of the POI), the first five-year plan 

issued for this industry. 

89See, e.g., Certain New Pneumatic Off-the-Road 

Tires From the People’s Republic of China: Final 

Affirmative Countervailing Duty Determination and 

Final Negative Determination of Critical 

Circumstances, 73 FR 40480 (July 15, 2008) (Tires 

Final Determination) and accompanying Issues and 

Decision Memorandum at ‘‘Government Policy 

Lending’’ section. 

of not less than 20 years; (4) the total 

assets of the owner hosting the project 

must not be less than 100 million Yuan, 

and its capital must not be less than 30 

percent of the total investment; and (5) 

the photovoltaic project must be 

technologically advanced, and the 

project’s host must be able to operate 

and protect the project. Project 

applications are then reviewed by the 

GOC’s Ministry of Finance, Ministry of 

Science, and the National Energy Board. 

According to the GOC, grid-connected 

photovoltaic power generation projects 

can receive up to 50 percent of their 

total investment from the GOC. For 

independent photovoltaic power 

generation systems located in distant 

areas without an established electrical 

grid, project operators can receive up to 

70 percent of their total investment from 

the GOC. 

To receive funding under this 

program, the GOC states that an operator 

of an eligible project must complete any 

preparation work beforehand, which 

includes inviting bids for necessary 

equipment, finalizing plans for the 

project’s construction, and submitting 

application documents to the GOC. 

Once these documents are approved by 

the GOC, the Ministry of Finance will 

allocate the funds to the project’s 

operator. 

Wuxi Suntech reported that it did not 

participate in this program in 2009 (the 

year this program was established) or 

during the POI. Trina Solar, however, 

reported that it received a grant during 

the POI from the Jiangsu Reform and 

Development Committee for installing a 

photovoltaic energy-generating 

project.85 We preliminarily determine 

that the grant received by Trina Solar 

through the Golden Sun program 

confers a countervailable subsidy. The 

grant is a financial contribution 

pursuant to section 771(5)(D)(i) of the 

Act and provides a benefit in the 

amount of the grant provided, pursuant 

to 19 CFR 351.504(a). We find that 

grants from this program are specific as 

a matter of law to certain enterprises, 

namely those involved in the 

construction of solar-powered projects, 

pursuant to section 771(5A)(D)(i) of the 

Act. In its March 1, 2012 supplemental 

questionnaire, the GOC contends that 

the Golden Sun program is similar to 

several programs alleged in the CVD 

petition for wind towers from the PRC 

that the Department determined not to 

investigate. According to the GOC, the 

Department determined the benefit 

element of a subsidy had not been 

demonstrated, despite the petition’s 

allegation that wind tower producers 

benefitted through an increase in 

demand caused by the GOC’s financial 

assistance to the operators of wind 

tower projects.86 Thus, the GOC 

contends that the Department should 

discontinue its investigation of the 

Golden Sun program because it does not 

benefit Chinese producers of solar cells, 

only those involved in the construction 

of solar power projects.87 However, in 

the instant investigation, it is not 

necessary to address this argument as 

Trina Solar benefitted directly from the 

program as the recipient of the grant. 

In accordance with 19 CFR 

351.504(c)(1) and 19 CFR 351.524(b)(2), 

we have treated the grant as a nonrecurring subsidy and performed the 

‘‘0.5 percent test’’ for the year the grant 

was provided to Trina Solar. 

Specifically, we divided the total 

amount of the grant by the appropriate 

total sales denominator, as discussed in 

the ‘‘Subsidies Valuation Information’’ 

section above, and in the Preliminary 

Calculations Memoranda. Because the 

resulting percentage was less than 0.5 

percent, we have expensed the full 

amount of the grant in the POI. To 

determine Trina Solar’s subsidy rate 

from the grant, we divided the benefit 

expensed in the POI by the appropriate 

total sales denominator, as discussed in 

the ‘‘Subsidies Valuation Information’’ 

section above, and in the Preliminary 

Calculations Memoranda. On this basis, 

we preliminarily determine a 

countervailable subsidy rate of 0.09 

percent ad valorem for Trina Solar. 

B. Preferential Policy Lending 

Petitioner alleged that the GOC 

subsidizes solar cells producers through 

the provision of policy loans. According 

to Petitioner, the GOC provides for 

preferential policy lending to solar cells 

producers through the Renewable 

Energy Law, the Medium- and LongTerm Development Plan for Renewable 

Energy in China, the ‘‘Interim Measures 

for the Administration of Financial 

Subsidy Fund for Renewable and 

Energy Saving-Building Materials,’’ and 

a ‘‘multitude of other Chinese central 

government programs and measures, 

notably including the PRC’s Twelfth 

Five-Year Plan.’’ 

Both respondents reported having 

loans outstanding during the POI. The 

Department finds that the loans to both 

respondents are countervailable. The 

information on the record indicates the 

GOC has placed great emphasis on 

targeting the renewable energy industry, 

including solar cells producers, for 

development in recent years.88 The 

Renewable Energy Law, in Article 25, 

calls specifically for the use of loans in 

implementing the GOC’s plans for 

renewable energy: ‘‘Financial 

institutions may offer favorable loans 

with a financial discount for renewable 

energy development and utilization 

projects that are listed in the renewable 

energy industry development guidance 

catalogue and meet credit 

requirements.’’ The catalogue referenced 

in the Renewable Energy Law includes 

an entire section for solar power 

projects. Among those projects, most, if 

not all, of which would require the use 

of solar cells, are three projects 

specifically for the production of solar 

cells, including subject merchandise: 

‘‘Single crystal silicon solar energy cell 

and multi-crystal silicon solar energy 

cell’’ (project 39). As Petitioner notes, 

the Renewable Energy Law is noted by 

Trina Solar in its 2010 SEC filing (form 

20–F). On page 49 of its SEC filing, 

Trina Solar notes that the law ‘‘provides 

financial incentives, such as national 

funding, preferential loans and tax 

preferences for the development of 

renewable energy projects.’’ 

Renewable energy is also among the 

projects listed in the ‘‘Directory 

Catalogue on Readjustment of Industrial 

Structure’’ of the National Development 

and Reform Commission (NDRC) 

(Catalogue No. 40), which contains a list 

of encouraged projects the GOC 

develops through loans and other forms 

of assistance,89 and which the 

Department has relied upon in prior 

specificity determinations. Catalogue 


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90Additional Documents Memorandum (which 

includes the Directory Catalogue on Readjustment 

of Industrial Structure (2005 version)) at 

Attachment VI. 

91See, e.g., Tires Final Determination, and 

accompanying Issues and Decision Memorandum at 

Comment E2. 

92See section 771(5)(E)(ii) of the Act. 

93See also 19 CFR 351.505(c). 

94The Department has concluded that these data 

do not already include delivery charges. See 

Preliminary Benchmark Memorandum. 

95See Preliminary Benchmark Memorandum for 

a full explanation of how the benchmarks were 

adjusted. 

96See 19 CFR 351.511(a). 

No. 40 includes an encouraged project 

(number IV(5)) for: ‘‘Development and 

utilization of wind energy power to 

generate electricity and such renewable 

resources as solar energy, geothermal 

energy, ocean energy, biomass energy 

and etc.’’ 90

Therefore, given the evidence 

demonstrating the GOC’s objective of 

developing the renewable energy sector, 

and solar cells producers in particular, 

through loans and other financial 

incentives, we preliminarily determine 

there is a program of preferential policy 

lending specific to solar cells producers, 

within the meaning of section 

771(5A)(D)(i) of the Act. We also 

preliminarily find that loans from state 

owned commercial banks (SOCBs) 

under this program constitute financial 

contributions, pursuant to sections 

771(5)(B)(i) and 771(5)(D)(i) of the Act, 

because SOCBs are ‘‘authorities.’’ 91 The 

loans provide a benefit equal to the 

difference between what the recipients 

paid on their loans and the amount they 

would have paid on comparable 

commercial loans.92 To calculate the 

benefit from this program, we have used 

the benchmarks discussed above under 

the ‘‘Subsidy Valuation Information’’ 

section.93 On this basis, we 

preliminarily determine a subsidy rate 

of 0.84 percent ad valorem for Trina 

Solar and 1.23 percent ad valorem for 

Wuxi Suntech. 

C. Provision of Polysilicon for LTAR 

Petitioners have alleged that the 

respondents received countervailable 

subsidies in the form of the provision of 

polysilicon for LTAR. For the reasons 

explained in the ‘‘Use of Facts 

Otherwise Available and Adverse 

Inferences’’ section above, we are basing 

our determination regarding the 

government’s provision of polysilicon, 

in part, on AFA. Specifically, we have 

determined as AFA that the producers 

of the polysilicon purchased by both 

respondents are ‘‘authorities’’ within the 

meaning of section 771(5)(B) of the Act 

and, as such, the provision of 

polysilicon constitutes a financial 

contribution under section 771(5)(D)(iii) 

of the Act. Further, we have determined 

as AFA that the provision of polysilicon 

at LTAR is specific to solar cells 

producers. Lastly, a benefit is being 

conferred because the polysilicon is 

being provided for LTAR, as explained 

below. 

As discussed above under the 

‘‘Subsidies Valuation Information’’ 

section, the Department is selecting for 

polysilicon benchmarks 

contemporaneous monthly world 

market prices from Photon Consulting’s 

‘‘Silicon Price Index.’’ This information 

was placed on the record of this 

investigation in the petition. The 

Department has adjusted the benchmark 

price to include delivery charges, 

import duties, and value added tax 

(VAT) pursuant to 19 CFR 

351(a)(2)(iv).94 Regarding delivery 

charges, we have included ocean freight 

and the inland freight charges that 

would be incurred to deliver polysilicon 

to respondents’ production facilities. 

We have added import duties as 

reported by the GOC, and the VAT 

applicable to imports of polysilicon into 

the PRC, also as reported by the GOC.95

In calculating VAT, we applied the 

applicable VAT rate to the benchmark 

after first adding amounts for ocean 

freight and import duties. We have 

compared these monthly benchmark 

prices to the respondents’ reported 

purchase prices for individual 

transactions, including VAT and 

delivery charges. 

Based on this comparison, we 

preliminarily determine that polysilicon 

was provided for LTAR and that a 

benefit exists for each respondent in the 

amount of difference between the 

benchmark prices and the prices each 

respondent paid.96 We divided the total 

benefits for each respondent by the 

appropriate total sales denominator, as 

discussed in the ‘‘Subsidies Valuation 

Information’’ section above, and in the 

Preliminary Calculations Memoranda. 

On this basis, we preliminarily 

determine a countervailable subsidy rate 

of 1.07 percent ad valorem for Trina 

Solar and 0.35 percent ad valorem for 

Wuxi Suntech. 

D. Provision of Land for LTAR 

Petitioner has alleged that Trina Solar 

and Wuxi Suntech benefited from the 

provision of land to solar cells 

producers by the GOC at either a 

discounted rate or for free. The sale of 

land-use rights constitutes a financial 

contribution from a government 

authority in the form of providing goods 

or services pursuant to section 

771(5)(D)(iii) of the Act. As discussed 

above in the ‘‘Application of AFA: Land 

Provided to Trina Solar is Specific to 

the Solar Cells Industry’’ section, the 

Department has preliminarily 

determined as AFA that the provision of 

land to Trina Solar was specific. 

In order to calculate the benefit, we 

first multiplied the Thailand industrial 

land benchmarks discussed above under 

the ‘‘Land Benchmark’’ section, by the 

total area of Trina Solar’s countervailed 

tracts. As noted above, we have 

benchmarks for 2007 and 2010. For 

other years in which land was provided, 

we deflated either the 2007 or 2010 

figure, depending on which was closer 

in time to the year of the relevant landuse agreement. We then subtracted the 

price actually paid for each tract to 

derive the total unallocated benefit. We 

next conducted the ‘‘0.5 percent test’’ of 

19 CFR 351.524(b)(2) for the year of the 

relevant land-use agreement by dividing 

the total unallocated benefit for each 

tract by the appropriate sales 

denominator. If more than one tract was 

provided in a single year, we combined 

the total unallocated benefits from the 

tracts before conducting the ‘‘0.5 

percent test.’’ As a result, we found that 

the benefits were greater than 0.5 

percent of relevant sales and that 

allocation was appropriate for all tracts. 

We allocated the total unallocated 

benefit amounts across the terms of the 

land-use agreements, using the standard 

allocation formula of 19 CFR 351.524(d), 

and determined the amount attributable 

to the POI. We then summed all of the 

benefits attributable to the POI and 

divided this amount by the appropriate 

total sales denominator, as discussed in 

the ‘‘Subsidies Valuation Information’’ 

section above, and in the Preliminary 

Calculations Memoranda, to derive a 

subsidy rate of 0.63 percent ad valorem 

for Trina Solar. 

As discussed below under the section 

‘‘Programs for Which Additional 

Information is Required,’’ we will be 

requesting additional information 

regarding land-use rights provided to 

Wuxi Suntech. 

E. ‘‘Two Free, Three Half’’ Program for 

Foreign-Invested Enterprises 

Under Article 8 of the ‘‘Income Tax 

Law of the People’s Republic of China 

for Enterprises with Foreign Investment 

and Foreign Enterprises,’’ an FIE that is 

‘‘productive’’ and scheduled to operate 

for more than ten years may be 

exempted from income tax in the first 

two years of profitability and pay 

income taxes at half the standard rate 

for the next three years. According to 

the GOC, the program was terminated 

effective January 1, 2008, by the 

Enterprise Income Tax Law, but 


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97See CFS from the PRC and CFS from the PRC 

Decision Memorandum at 11–12; see also Seamless 

Pipe Final Determination, and Seamless Pipe from 

the PRC Decision Memorandum at 25. 

98See section 771(5)(D)(ii) of the Act and 19 CFR 

351.509(a)(1). 

99The Department notes we initiated an 

investigation of a program entitled, ‘‘Preferential 

Tax Programs for FIEs Recognized as High or New 

Technology Enterprises.’’ See Initiation Notice and 

accompanying Initiation Checklist at 20. The GOC 

states that this income tax reduction program for 

FIEs was terminated, but that a replacement 

program was created in 2008 by the Enterprise 

Income Tax Law of the PRC. See the GOC’s January 

31, 2012 questionnaire response at II–65. 

100This program was described in detail in the 

GOC’s March 1, 2012 supplemental questionnaire 

response at 23–24. 

101See CFS from the PRC Decision Memorandum 

at 13–14; see also Seamless Pipe Final 

Determination, and Seamless Pipe from the PRC 

Decision Memorandum at 23–25. 

102See section 771(5)(D)(ii) of the Act and 19 CFR 

351.510(a)(1). 

companies already enjoying the 

preference were permitted to continue 

paying taxes at reduced rates. Trina 

Solar did not claim these tax 

exemptions during the POI. However, 

two of Wuxi Suntech’s cross-owned 

affiliated companies, Luoyang Suntech 

and Zhenjiang Huantai, paid taxes at a 

reduced rate under this program during 

the POI. 

The Department has previously found 

the ‘‘Two Free, Three Half’’ program to 

confer a countervailable subsidy.97

Consistent with the earlier cases, we 

preliminarily determine that the ‘‘Two 

Free, Three Half’’ income tax 

exemption/reduction confers a 

countervailable subsidy. The 

exemption/reduction is a financial 

contribution in the form of revenue 

forgone by the GOC and it provides a 

benefit to the recipient in the amount of 

the tax savings.98 We also determine 

that the exemption/reduction afforded 

by the program is limited as a matter of 

law to certain enterprises, i.e., 

productive FIEs, and, hence, is specific 

under section 771(5A)(D)(i) of the Act. 

To calculate the benefit, we treated 

the income savings by Luoyang Suntech 

and Zhenjiang Huantai as a recurring 

benefit, consistent with 19 CFR 

351.524(c)(1). To compute the amount 

of the tax savings, we compared the two 

companies’ tax rates to the rates they 

would have paid in the absence of the 

program. We divided Luoyang 

Suntech’s and Zhenjiang Huantai’s tax 

savings for their returns filed during the 

POI by the appropriate total sales 

denominator, as discussed in the 

‘‘Subsidies Valuation Information’’ 

section above, and in the Preliminary 

Calculations Memoranda, in accordance 

with 19 CFR 351.525(b)(6)(ii) and 19 

CFR 351.525(b)(6)(iv), respectively. We 

then summed the two companies’ ad 

valorem rates to compute Suntech’s 

total ad valorem rate under this 

program. On this basis, we preliminarily 

determine a countervailable subsidy rate 

for Wuxi Suntech of 0.13 percent ad 

valorem for this program. 

F. Preferential Tax Programs for High or 

New Technology Enterprises 99

According to the GOC, this program 

became effective in January 2008 as part 

of the Enterprise Income Tax Law of the 

PRC (Decree 63 of the PRC, 2007). 

Article 28.2 of the Enterprise Income 

Tax Law of the PRC provides for the 

reduction of the income tax rate to 15 

percent, from 25 percent, for enterprises 

that are recognized as high or new 

technology enterprises (HNTEs), 

regardless of whether the enterprise is 

an FIE or domestic company. The 

‘‘Circular of the Ministry of Science and 

Technology, the Ministry of Finance 

and the State Administration of 

Taxation on Printing and Distributing 

the Administrative Measures for 

Certification of New and High 

Technology Enterprises’’ (Guo Ke Fa 

Huo {2008} No. 172), of April 14, 2008, 

identifies HNTEs as enterprises that 

have been registered for more than one 

year within the PRC and that have been 

engaged in continuous research and 

development and in the transformation 

of their scientific and technological 

achievements. This circular also 

specifically identifies the HNTEs that 

qualify for key state support, which 

includes renewable, clean energy 

technologies such as solar photovoltaic 

technologies.100

To apply as an HNTE, Chinese 

companies must complete a selfassessment process regarding whether 

they can meet the criteria for an HNTE, 

and they must submit the requisite 

application form, business license and 

tax registration forms, and documents 

that establish that the company has been 

conducting high technological or 

innovative activities. Enterprises that 

meet the eligibility criteria will be 

certified as HNTEs by the approving 

GOC authority, and this designation 

remains effective for three years. Both 

Trina Solar and Wuxi Suntech were 

recognized as HNTEs by the GOC during 

the POI, and their income tax rates were 

therefore reduced from 25 percent to 15 

percent for tax returns filed during the 

POI as a result. 

We preliminarily determine that the 

reduction in income tax paid by HNTEs 

under this program confers a 

countervailable subsidy. The income tax 

reduction is a financial contribution in 

the form of revenue forgone by the 

government, and it provides a benefit to 

the recipients in the amount of the tax 

savings, pursuant to section 771(5)(D)(ii) 

of the Act and 19 CFR 351.509(a)(1). We 

also preliminarily determine that the 

income tax reduction afforded by this 

program is limited as a matter of law to 

certain enterprises, i.e., HNTEs, and, 

thus, is specific under section 

771(5A)(D)(i) of the Act. 

To calculate the benefit from this 

program to Trina Solar and Wuxi 

Suntech, we treated the income tax 

reductions claimed by Trina Solar and 

Wuxi Suntech as recurring benefits, 

consistent with 19 CFR 351.524(c)(1). 

To compute the amount of the tax 

savings, we compared their tax rates (15 

percent) to the rate that would have 

been paid by Trina Solar and Wuxi 

Suntech otherwise (the standard income 

tax rate of 25 percent). We multiplied 

the difference by the taxable income of 

each company. We then divided these 

amounts by the appropriate total sales 

denominator, as discussed in the 

‘‘Subsidies Valuation Information’’ 

section above, and in the Preliminary 

Calculations Memoranda. On this basis, 

we preliminarily determine a 

countervailable subsidy rate of 1.25 

percent ad valorem for Trina Solar and 

0.28 percent ad valorem for Wuxi 

Suntech. 

G. Import Tariff and Value Added Tax 

(VAT) Exemptions for Use of Imported 

Equipment 

Enacted in 1997, the ‘‘Circular of the 

State Council on Adjusting Tax Policies 

on Imported Equipment’’ (GUOFA No. 

37), exempts both FIEs and certain 

domestic enterprises from VAT and 

tariffs on imported equipment used in 

projects identified in related catalogues. 

The NDRC, or its provincial branch, 

provides a certificate to enterprises that 

receive the exemption. The objective of 

the program is to encourage foreign 

investment and to introduce foreign 

advanced technology equipment and 

industry technology upgrades. Trina 

Solar, Wuxi Suntech, Luoyang Suntech, 

Shanghai Suntech, Zhenjiang Huantai, 

and Suzhou Kuttler received VAT and 

tariff exemptions under this program as 

FIEs. The Department has previously 

found VAT and tariff exemptions under 

this program to confer countervailable 

subsidies.101

Consistent with the earlier cases, we 

preliminarily determine that VAT and 

tariff exemptions on imported 

equipment confer a countervailable 

subsidy. The exemptions are a financial 

contribution in the form of revenue 

forgone by the GOC and they provide a 

benefit to the recipient in the amount of 

VAT and tariff savings.102 We also 


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103See CFS from the PRC Decision Memorandum 

at Comment 16. 

104See 19 CFR 351.524(c)(2)(iii) and 19 CFR 

351.524(d)(2). 

105See 19 CFR 351.524(b). 

106See the GOC’s January 31, 2012 questionnaire 

response at II–79, and at Exhibit O–II–D–2–a. 

107See Citric Acid from the PRC Decision 

Memorandum at 20; see also CFS from the PRC 

Decision Memorandum at 13–14. 

108See section 771(5)(D)(ii) of the Act and 19 CFR 

351.510(a)(1). 

109See 19 CFR 351.524(c)(2)(iii) and 19 CFR 

351.524(d)(2). 

110See the GOC’s March 1, 2012 supplemental 

questionnaire response at Exhibit S1–1–a, Chapter 

3 of the ‘‘Measures for the Administration of 

Chinese Top-Brand Products.’’ 

preliminarily determine that the VAT 

and tariff exemptions afforded by the 

program are specific under section 

771(5A)(D)(iii)(I) of the Act because the 

program is limited to certain 

enterprises, i.e., FIEs and domestic 

enterprises involved in ‘‘encouraged’’ 

projects.103

Normally, we treat exemptions from 

indirect taxes and import charges, such 

as VAT and tariff exemptions, as 

recurring benefits, consistent with 19 

CFR 351.524(c)(1), and allocate the 

benefits to the year in which they were 

received. However, when an indirect tax 

or import charge exemption is provided 

for, or tied to, the capital structure or 

capital assets of a firm, the Department 

normally treats it as a non-recurring 

benefit and allocates the benefit to the 

firm over the AUL.104 In the instant 

investigation, Trina Solar, Wuxi 

Suntech, Luoyang Suntech, Shanghai 

Suntech, Zhenjiang Huantai, and 

Suzhou Kuttler have provided a list of 

VAT and tariff exemptions that they 

received for capital equipment imported 

after December 11, 2001. Based on this 

submitted information, we preliminarily 

determine that the VAT and tariff 

exemptions are tied to the capital 

structure or capital assets of these 

companies, and, as such, should be 

allocated over time. 

To calculate the countervailable 

subsidy, we used our standard 

methodology for non-recurring 

grants.105 In the years that the benefits 

received by each company under this 

program exceeded 0.5 percent of 

relevant sales for that year, we allocated 

the benefits over the AUL of 10 years, 

pursuant to 19 CFR 351.524(b)(1); in the 

years that the benefits received by each 

company under this program did not 

exceed 0.5 percent of relevant sales for 

that year, we expensed those benefits to 

the years that they were received, 

pursuant to 19 CFR 351.524(b)(2). We 

used the discount rates described above 

in the section ‘‘Subsidies Valuation 

Information,’’ to calculate the amount of 

the benefit allocable to the POI. We then 

divided the benefit amount by the 

appropriate sales denominators as 

discussed in the ‘‘Subsidies Valuation 

Information’’ section above. On this 

basis, we preliminarily determine that 

Trina Solar received a countervailable 

benefit of 0.45 percent ad valorem and 

Wuxi Suntech received a 

countervailable benefit of 0.55 percent 

ad valorem for this program. 

H. VAT Rebates on FIE Purchases of 

Chinese-Made Equipment 

As outlined in GUOSHUIFA (1999) 

No. 171, ‘‘Trial Administrative 

Measures on Purchase of Domestically 

Produced Equipment by FIEs,’’ the GOC 

refunds the VAT on purchases of certain 

Chinese produced equipment to FIEs if 

the equipment is used for certain 

encouraged projects identified in related 

catalogues.106 The Department has 

previously found this program to be 

countervailable.107

Trina Solar reported using this 

program from 2005 through 2009; 

Louyang Suntech reported using this 

program in 2008; and Zhenjiang Huantai 

reported using this program from 2004 

through 2008. We preliminarily 

determine that the rebate of the VAT 

paid on purchases of Chinese-made 

equipment by FIEs confers a 

countervailable subsidy. The rebates are 

a financial contribution in the form of 

revenue forgone by the GOC and they 

provide a benefit to the recipients in the 

amount of the tax savings.108 We further 

preliminarily determine that the VAT 

rebates are contingent upon the use of 

domestic over imported equipment and, 

hence, specific under section 

771(5A)(A) and (C) of the Act. 

Normally, we treat rebates from 

indirect taxes and import charges, such 

as VAT rebates, as recurring benefits, 

consistent with 19 CFR 351.524(c)(1), 

and expense these benefits in the year 

they were received. However, when an 

indirect tax or import charge exemption 

is provided for, or tied to, the capital 

structure or capital assets of a firm, the 

Department normally treats it as a nonrecurring benefit and allocates the 

benefit to the firm over the AUL.109

Because the rebates under this program 

were tied to purchased equipment, we 

preliminarily determine that the 

benefits under this program are tied to 

the capital structure or capital assets of 

the companies and that they should be 

allocated over time. 

For those companies that received 

benefits under this program, we applied 

the ‘‘0.5 percent test,’’ pursuant to 19 

CFR 351.524, for each of the years in 

which rebates were received. For the 

years in which the rebate amount was 

less than 0.5 percent of the relevant 

sales figure, we expensed the rebates in 

the year of receipt, consistent with 19 

CFR 351.524(a). For those years in 

which the VAT rebates were greater 

than or equal to 0.5 percent, we 

allocated the rebate amount over the 

AUL. We used the discount rates 

described above in the ‘‘Subsidies 

Valuation Information’’ section to 

calculate the amount of the benefit 

allocable to the POI. On this basis, we 

preliminarily determine that Trina Solar 

received a countervailable subsidy rate 

of 0.01 percent ad valorem under this 

program. As Luoyang Suntech and 

Zhenjiang Huantai did not receive 

rebates during the POI and, as none of 

the rebates they received prior to the 

POI passed the 0.5 percent test, no 

benefits for either company were 

allocated to the POI. Therefore, we 

preliminarily determine that Wuxi 

Suntech did not receive a benefit under 

this program during the POI. 

I. Sub-Central Government Subsidies for 

Development of ‘‘Famous Brands’’ and 

‘‘China World Top Brands’’ 

According to the ‘‘Implementation 

Opinion on Further Promoting the 

Development of Brand Economy’’ 

(XIZHENGFA {2006} No. l06), the 

government of Wuxi City provides a 

lump sum award to enterprises that 

receive a ‘‘famous brands’’ certificate. 

The award is jointly provided by the 

city, county, and district finance 

bureaus. Though this program is 

operated at the local level, the GOC 

issued the circular titled ‘‘Measures for 

the Administration of Chinese TopBrand Products,’’ which requires that 

firms provide information in their 

‘‘famous brands’’ applications 

concerning their export ratios as well as 

the extent to which their product 

quality meets international standards.110

During the POI, Wuxi Suntech reported 

receiving a famous brands grant under 

this program from the local government. 

We preliminarily determine that the 

grant that Wuxi Suntech received under 

this program constitutes a financial 

contribution and a benefit under 

sections 771(5)(D)(i) and 771(5)(E) of the 

Act, respectively. Regarding specificity, 

section 771(5A)(B) of the Act states that 

an export subsidy is a subsidy that is, 

in law or in fact, contingent upon export 

performance, alone or as one of two or 

more conditions. Consistent with prior 

determinations regarding grants under 


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111See, e.g., Aluminum Extrusions From the 

People’s Republic of China: Final Affirmative 

Countervailing Duty Determination, 76 FR 18521 

(April 4, 2011), and accompanying Issues and 

Decision Memorandum at the section ‘‘GOC and 

Sub-Central Government Grants, Loans, and Other 

Incentives for Development of Famous Brands and 

China World Top Brands,’’ and Pre-Stressed 

Concrete Steel Wire Strand from the People’s 

Republic of China: Final Affirmative Countervailing 

Duty Determination, 75 FR 28557 (May 21, 2010) 

(PC Strand from the PRC), and accompanying Issues 

and Decision Memorandum (PC Strand from the 

PRC Decision Memorandum) at the section 

‘‘Subsidies for Development of Famous Export 

Brands and China World Top Brands at Central and 

Sub-Central Level.’’ 

112The Department intends to seek clarification 

from the respondents regarding why most program 

names are business proprietary. 

the famous brands program,111 we 

determine that the grant provided to 

Wuxi Suntech under the ‘‘famous 

brands’’ program is contingent on export 

activity. As noted above, ‘‘Measures for 

the Administration of Chinese TopBrand Products’’ of the central 

government makes clear that one 

criterion under this program is a 

company’s export activity. As such, 

therefore, we find that the program is 

specific under section 771(5A)(B) of the 

Act. Grants are normally treated as nonrecurring subsidies under 19 CFR 

351.524(c). After conducting the ‘‘0.5 

percent test’’ of 19 CFR 351.524(b)(2), 

we determine that the grant should be 

expensed to the year of receipt (i.e., the 

POI). To calculate the subsidy, we 

divided the full amount of the grant 

received in the POI by the appropriate 

total sales denominator, as discussed in 

the ‘‘Subsidies Valuation Information’’ 

section above, and in the Preliminary 

Calculations Memoranda, to determine a 

subsidy rate less than 0.005 percent ad 

valorem. As such, this subsidy has no 

impact on the overall subsidy rate. 

J. Discovered Grants 

As explained above, the Department 

has determined that numerous grants 

provided to respondents are 

countervailable based upon AFA. 

Pursuant to 19 CFR 351.524(c) the 

Department normally treats grants as 

non-recurring subsidies. As such, the 

Department applied the ‘‘0.5 percent 

test’’ of 19 CFR 351.524(b) to each grant, 

individually, to determine whether it 

should be allocated. None of the 

Discovered Grants received during the 

POI passed the 0.5 percent test and, 

therefore, all such grants were attributed 

to the POI. In addition, some of the 

Discovered Grants received prior to the 

POI passed the 0.5 percent test and have 

been allocated to the POI. We calculated 

the subsidy from each grant separately 

by dividing the entire amount of the 

grant by the appropriate sales figure for 

the POI. Respondents’ program 

descriptions indicate certain grants were 

export contingent. We determined such 

grants were export subsidies and used 

total export sales as the denominator. If 

the subsidy rate calculated for any 

particular grant was less than 0.005 

percent ad valorem, that grant was 

determined to have no impact on the 

overall subsidy rate, and was therefore 

disregarded. After summing all the 

subsidy rates arising from the remaining 

Discovered Grants, rounded to the 

nearest one-hundredth of one percent, 

we calculated a combined subsidy rate 

of 0.39 percent ad valorem for Trina 

Solar and 0.36 percent ad valorem for 

Wuxi Suntech. The grants found to be 

used during the POI that are publicly 

identified by respondents are listed 

below. Those grants that were bracketed 

by the respondents, along with the 

individual subsidy rates for all grants, 

are listed in the business-proprietary 

Preliminary Calculations 

Memoranda.112

1. Wuxi Airport 800KW program 

2. PV Technology Research Institute of 

Jiangsu (Suntech) 

3. Fund for Solar Optoelectronic 

Application Demonstration by 

Management Committee of the New 

District 

4. Self-Research on Core Equipment of 

Solar PV and Semiconductor 

Lighting Industry—Self Research on 

New On-Line Direct Method PEVCD 

5. Demonstration Project of 300KW Roof 

Solar PV Grid Power Generation 

System 

6. Industrialization and Research of 

New Solar Cells 

7. Research and Industrialization of 

Thin Film Cells 

8. Research on Highly Efficient and 

Low-Cost Thin Film Cells 

9. Technology and Application Research 

on Glass-Base Suede Gazno 

Transparent and Electrically 

Conductive Film Manufacture 

10. Demonstration Program of 300KV 

Roof Solar PV Grid Power 

Generation System 

11. Renewable Energy of Finance of 

Bureau, Wuxi City 

12. Research on New-Style HighTransmission Solar Cell Reducing 

the Refection Film with Nano 

Structure 

13. Fund for Construction of Suntech’s 

Energy Institution by the 

Management Committee of New 

District 

14. Public Welfare Project Funding 

From Supervision and Examination 

Station of Product Quality, Wuxi 

City 

15. Provincial Export Credit Insurance 

Supporting Development Fund 

Allocation by Management 

Committee of New District from 

December 2008 to June 2009 

16. Patent Fund from Management 

Committee of New District, Wuxi 

Government 

17. Special Reward for ‘‘333’’ Program 

by Municipal Organization 

Department 

18. Science and Research Budget 

Allocation for Renewable-Energy 

Construction Application 

Technology Project of Wuxi 

Suntech’s R&D Building by 

Construction Bureau of Wuxi 

19. Photovoltaic Technology Research 

Expenses by Personnel Bureau 

20. Social Insurance Fund for 

Employers from Sichuan 

Earthquake Stricken Area 

21. Import Discount by Jiangsu 

Provincial Government 

22. Employment Expansion Planning 

Reward by Management Committee 

of New District 

23. Fund for Demonstration Company of 

2009 Provincial Intelligence 

Introduction Program 

24. The First Group of Patent Fund in 

2010 Provided by the Wuxi 

Government 

25. Research, Development and 

Industrialization of Technology and 

Key Equipment for P–Type Solar 

Power Cells with High Efficiency 

and Low Cost 

26. Award for Luoyang City Outstanding 

Private Enterprise for 2009 

27. Plan for Thousand Talents 

II. Programs Preliminarily Determined 

To Be Not Used by Respondents in the 

POI 

We preliminarily determine that Trina 

Solar and Wuxi Suntech did not apply 

for or receive benefits during the POI 

under the programs listed below. 

Because of the complicated crossownership issues in this investigation, 

we are continuing to gather information 

concerning the reported non-use of 

these programs by all companies that 

may be cross-owned within each 

company’s corporate structure. 


tkelley on DSK3SPTVN1PROD with NOTICES
Federal Register / Vol. 77, No. 58 / Monday, March 26, 2012 / Notices 17455 

113See Initiation Checklist at 12. 

114See Preliminary Calculations Memoranda for 

an analysis of the respondents’ business proprietary 

information. 

115The Department did not ask exactly the same 

questions of the GOC regarding land provided to 

both respondents. The Department had additional 

questions regarding auction sales to Trina Solar that 

were not relevant to Suntech. 

116The GOC notes that the provision providing 

this income tax reduction to FIEs was terminated 

in 2008 by the Enterprise Income Tax Law of the 

PRC. See the GOC’s January 31, 2012 submission at 

II–62. 

A. Export Product Research and 

Development Fund 

B. Subsidies for Development of 

‘‘Famous Brands’’ and ‘‘China World 

Top Brands’’ 

C. Special Energy Fund (Established by 

Shandong Province 

D. Funds for Outward Expansion of 

Industries in Guangdong Province 

E. Government Provision of Aluminum 

for LTAR 

Petitioner’s allegation focused on 

primary aluminum.113 Both respondents 

reported that they did not purchase 

primary aluminum, only aluminum 

extrusions, a downstream product 

produced from primary aluminum. 

Therefore, we are preliminarily finding 

this program to be not used by the 

respondents. 

F. Income Tax Reductions for ExportOriented FIEs 

G. Income Tax Benefits for FIEs Based 

on Geographic Location 

H. Local Income Tax Exemption and 

Reduction Programs for ‘‘Productive’’ 

FIEs 

I. Tax Refunds for Reinvestment of FIE 

Profits in Export-Oriented Enterprises 

J. Tax Reductions for High and NewTechnology Enterprises Involved in 

Designated Projects 

K. Preferential Income Tax Policy for 

Enterprises in the Northeast Region 

L. Guangdong Province Tax Programs 

M. VAT and Tariff Exemptions for 

Purchases of Fixed Assets Under the 

Foreign Trade and Development Fund 

Program 

N. Tax Reductions for FIEs Purchasing 

Chinese-Made Equipment 

Certain cross-owned affiliates of the 

respondents reported receiving tax 

reductions under this program prior to 

the POI. Because the Department has 

treated this program as a recurring 

subsidy program in prior investigations, 

we preliminarily determine the 

reductions to be recurring in this 

investigation as well. Therefore, no 

benefits were received during the POI 

by the respondents. 

O. Export Credit Subsidy Programs 

P. Export Guarantees and Insurance for 

Green Technology 

After analyzing the responses of Trina 

Solar and Wuxi Suntech, the 

Department preliminarily determines 

that neither of the respondents received 

benefits under this program during the 

POI.114

Q. Discovered Grants 

As explained above, the Department 

has determined, as AFA, that numerous 

grants provided to the respondents are 

countervailable. Pursuant to 19 CFR 

351.524(c) the Department normally 

treats grants as non-recurring subsidies. 

As such, the Department applied the 

‘‘0.5 percent test’’ of 19 CFR 351.524(b) 

to each grant, individually, to determine 

whether it should be allocated. Most of 

the Discovered Grants received prior to 

the POI failed the 0.5 percent test and 

were therefore expensed prior to the 

POI. Thus, all such grants are 

preliminarily found to have been not 

used during the POI by the respondents. 

None of these grants were publicly 

identified by the respondents. 

Therefore, these ‘‘non-used’’ grants are 

all listed in the business-proprietary 

Preliminary Calculations Memoranda. 

III. Programs for Which Additional 

Information Is Required 

The Department finds that additional 

information is needed in order to 

determine whether the following 

programs are countervailable. After 

gathering and analyzing the additional 

information, the Department intends to 

issue a post-preliminary analysis 

regarding whether these programs are 

countervailable. 

A. The Provision of Land for LTAR to 

Wuxi Suntech 

As discussed above, the GOC did not 

provide all of the information requested 

regarding how prices paid by 

respondents for land-use rights were 

determined and the information 

provided requires further 

clarification.115 The Department intends 

to request further information for land 

provided to Wuxi Suntech. The 

Department also intends to request 

additional information from the GOC 

regarding the reported private nature of 

some of the parties from which Wuxi 

Suntech purchased land-use rights. 

B. Provision of Electricity for LTAR 

The questionnaire responses were not 

complete regarding the alleged 

provision of electricity for LTAR. These 

questions requested information needed 

by the Department to determine whether 

such a provision was specific with the 

meaning of section 771(5A) of the Act, 

and whether a benefit within the 

meaning of section 771(5)(E) of the Act 

was provided. The Department intends 

to request further information from the 

GOC after the issuance of this 

preliminary determination. 

C. Enterprise Income Tax Law, Research 

and Development (R&D) Program 

According to the GOC, Article 30.1 of 

the Enterprise Income Tax Law of the 

PRC created a new program regarding 

the deduction of research and 

development expenditures for all 

enterprises.116 This provision allows 

enterprises to deduct, through tax 

credits, research expenditures incurred 

in the development of new technologies, 

products, and processes. Article 95 of 

‘‘The Release of Regulations on the 

Implementation of Enterprise Income 

Tax Law of the People’s Republic of 

China by the State Council, [2007] No. 

512,’’ December 6, 2007, provides that if 

eligible research expenditures do not 

‘‘form part of the intangible assets 

value,’’ an additional 50 percent 

deduction from taxable income may be 

taken on top of the actual accrual 

amount. Where these expenditures form 

the value of certain intangible assets, the 

expenditures may be amortized based 

on 150 percent of the intangible assets 

costs. Trina Solar and Wuxi Suntech 

both reported benefitting from this 

program during the POI. The 

Department intends to request 

additional information regarding the 

specificity of the program. 

Verification 

In accordance with section 782(i)(1) of 

the Act, the Department will verify the 

information submitted by the GOC, 

Trina Solar, and Wuxi Suntech, prior to 

making our final determination. 

Suspension of Liquidation 

In accordance with section 

705(c)(1)(B)(i)(I) of the Act, we have 

calculated an individual countervailable 

subsidy rate for each respondent. 

Section 705(c)(5)(A)(i) of the Act states 

that for companies not individually 

investigated, we will determine an all 

others rate equal to the weighted 

average of the countervailable subsidy 

rates established for exporters and 

producers individually investigated, 

excluding any zero and de minimis 

countervailable subsidy rates, and any 


tkelley on DSK3SPTVN1PROD with NOTICES
17456 Federal Register / Vol. 77, No. 58 / Monday, March 26, 2012 / Notices 

117See Memorandum to the File from Emily 

Halle, ‘‘Calculation of the All-Others Rate,’’ March 

19, 2012, providing the precise calculation and 

demonstrating the proximity of the resulting figure 

to the figure derived using the business-proprietary 

data. 

rates based entirely on AFA under 

section 776 of the Act. 

Notwithstanding the language of 

section 705(c)(5)(A)(i) of the Act, we 

have not calculated the ‘‘all others’’ rate 

by weight averaging the rates of Trina 

Solar and Wuxi Suntech, because doing 

so risks disclosure of proprietary 

information. Therefore, we have 

calculated an average rate using other 

information on the record.117 Since both 

Trina Solar and Wuxi Suntech received 

countervailable export subsidies and the 

‘‘all others’’ rate is an average based on 

the individually investigated exporters 

and producers, the ‘‘all others’’ rate 

includes export subsidies. 

We preliminarily determine the total 

countervailable subsidy rates to be as 

follows. 

Company Subsidy rate 

Changzhou Trina Solar Energy Co., Ltd. .......................................................................................................................

Trina Solar (Changzhou) Science and Technology Co., Ltd (collectively, Trina Solar) 

4.73 percent ad valorem. 

Wuxi Suntech Power Co., Ltd ........................................................................................................................................

Luoyang Suntech Power Co., Ltd 

Suntech Power Co., Ltd 

Yangzhou Rietech Renewal Energy Co., Ltd 

Zhenjiang Huantai Silicon Science & Technology Co., Ltd 

Kuttler Automation Systems (Suzhou) Co., Ltd (collectively, Wuxi Suntech) 

2.90 percent ad valorem. 

All Others Rate ............................................................................................................................................................... 3.61 percent ad valorem. 

In accordance with sections 

703(d)(1)(B) and (2), and 703(e)(2)(A) of 

the Act, in light of our preliminary 

affirmative determination of critical 

circumstances, we are directing CBP to 

suspend liquidation of all entries of the 

subject merchandise from the PRC that 

are entered or withdrawn from 

warehouse, for consumption on or after 

the date 90 days prior to the date of 

publication of this notice in the Federal 

Register, and to require a cash deposit 

or bond for such entities of the 

merchandise in the amounts indicated 

above. 

ITC Notification 

In accordance with section 703(f) of 

the Act, we will notify the ITC of our 

determination. In addition, we are 

making available to the ITC all nonprivileged and non-proprietary 

information relating to this 

investigation. We will allow the ITC 

access to all privileged and business 

proprietary information in our files, 

provided the ITC confirms that it will 

not disclose such information, either 

publicly or under an administrative 

protective order, without the written 

consent of the Assistant Secretary for 

Import Administration. 

In accordance with section 705(b)(2) 

of the Act, if our final determination is 

affirmative, the ITC will make its final 

determination within 45 days after the 

Department makes its final 

determination. 

Disclosure and Public Comment 

In accordance with 19 CFR 

351.224(b), we will disclose to the 

parties the calculations for this 

preliminary determination within five 

days of its announcement. We will 

notify parties of the schedule for 

submitting case briefs and rebuttal 

briefs, in accordance with 19 CFR 

351.309(c) and 19 CFR 351.309(d)(1), 

respectively. A list of authorities relied 

upon, a table of contents, and an 

executive summary of issues should 

accompany any briefs submitted to the 

Department. Executive summaries 

should be limited to five pages total, 

including footnotes. Section 774 of the 

Act provides that the Department will 

hold a public hearing to afford 

interested parties an opportunity to 

comment on arguments raised in case or 

rebuttal briefs, provided that such a 

hearing is requested by an interested 

party. 

Interested parties who wish to request 

a hearing, or to participate if one is 

requested, must submit a written 

request to the Assistant Secretary for 

Import Administration, U.S. Department 

of Commerce, Room 1870, within 30 

days of the publication of this notice, 

pursuant to 19 CFR 351.310(c). Requests 

should contain: (1) The party’s name, 

address, and telephone number; (2) the 

number of participants; and (3) a list of 

the issues to be discussed. Oral 

presentations will be limited to issues 

raised in the briefs. If a request for a 

hearing is made in this investigation, we 

intend to hold the hearing two days 

after the deadline for submission of the 

rebuttal briefs, pursuant to 19 CFR 

351.310(d). Any such hearing will be 

held at the U.S. Department of 

Commerce, 14th Street and Constitution 

Avenue NW., Washington, DC 20230. 

Parties should confirm by telephone, the 

date, time, and place of the hearing 48 

hours before the scheduled time. 

This determination is issued and 

published pursuant to sections 703(f) 

and 771(i) of the Act. 

Dated: March 19, 2012. 

Paul Piquado, 

Assistant Secretary for Import 

Administration. 

[FR Doc. 2012–7273 Filed 3–23–12; 8:45 am] 

BILLING CODE 3510–DS–P 

DEPARTMENT OF COMMERCE 

National Institute of Standards and 

Technology 

[Docket Number: 120216139–2138–01] 

Buy American Exception Under the 

American Recovery and Reinvestment 

Act of 2009 

AGENCY: National Institute of Standards 

and Technology, U.S. Department of 

Commerce. 

SUMMARY: The Department of 

Commerce, National Institute of 

Standards and Technology is providing 

notice of a determination of an 

exception to the Buy American 

Provisions of the American Recovery 

and Reinvestment Act of 2009 (ARRA or 

Recovery Act), for inverters necessary 

for the construction of a solar array 

system at NIST’s WWVH radio station 

in Kauai, HI. 

FOR FURTHER INFORMATION CONTACT: 

Jason Gerloff, Contracting Officer, 

Acquisition Management Division, 303– 

497–6320, National Institute of 

Standards and Technology, 325 

Broadway, Boulder, CO 80305. 

SUPPLEMENTARY INFORMATION: Section 

1605 of the Recovery Act (Pub. L. 111– 

5) prohibits use of recovery funds ‘‘for 

a project for the construction, alteration, 

maintenance, or repair of a public 

building or public work unless all of the 

iron, steel, and manufactured goods 


tkelley on DSK3SPTVN1PROD with NOTICES