[Federal Register Volume 89, Number 193 (Friday, October 4, 2024)]
[Notices]
[Pages 80861-80864]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-22997]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

International Trade Administration

[C-557-831]


Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled 
Into Modules, From Malaysia: Preliminary Affirmative Countervailing 
Duty Determination and Alignment of Final Determination With Final 
Antidumping Duty Determination

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

SUMMARY: The U.S. Department of Commerce (Commerce) 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 Malaysia. The 
period of investigation is January 1, 2023, through December 31, 2023. 
Interested parties are invited to comment on this preliminary 
determination.

DATES: Applicable October 4, 2024.

FOR FURTHER INFORMATION CONTACT: Preston Cox or Scarlet Jaldin, AD/CVD 
Operations, Office VI, Enforcement and Compliance, International Trade 
Administration, U.S. Department of Commerce, 1401 Constitution Avenue 
NW, Washington, DC 20230; telephone: (202) 482-5041 or (202) 482-4275, 
respectively.

SUPPLEMENTARY INFORMATION:

[[Page 80862]]

Background

    This preliminary determination is made in accordance with section 
703(b) of the Tariff Act of 1930, as amended (the Act). Commerce 
published the notice of initiation of this investigation on May 20, 
2024.\1\ On July 3, 2024, Commerce postponed the preliminary 
determination of this investigation until September 23, 2024.\2\ On 
July 22, 2024, Commerce tolled certain deadlines in this administrative 
proceeding by seven days.\3\
---------------------------------------------------------------------------

    \1\ See Crystalline Silicon Photovoltaic Cells, Whether or Not 
Assembled into Modules, from Cambodia, Malaysia, Thailand, and the 
Socialist Republic of Vietnam: Initiation of Countervailing Duty 
Investigations, 89 FR 43816 (May 20, 2024) (Initiation Notice).
    \2\ See Crystalline Silicon Photovoltaic Cells, Whether or Not 
Assembled into Modules, from Cambodia, Malaysia, Thailand, and the 
Socialist Republic of Vietnam: Postponement of Preliminary 
Determinations in the Countervailing Duty Investigations, 89 FR 
55231 (July 3, 2024).
    \3\ See Memorandum, ``Tolling of Deadlines for Antidumping and 
Countervailing Duty Proceedings,'' dated July 22, 2024.
---------------------------------------------------------------------------

    The deadline for the preliminary determination is now September 30, 
2024.
    For a complete description of the events that followed the 
initiation of this investigation, see the Preliminary Decision 
Memorandum.\4\ A list of topics discussed in the Preliminary Decision 
Memorandum is included as Appendix II to this notice. The Preliminary 
Decision Memorandum is a public document and is on file electronically 
via Enforcement and Compliance's Antidumping and Countervailing Duty 
Centralized Electronic Service System (ACCESS). ACCESS is available to 
registered users at https://access.trade.gov. In addition, a complete 
version of the Preliminary Decision Memorandum can be accessed directly 
at https://access.trade.gov/public/FRNoticesListLayout.aspx.
---------------------------------------------------------------------------

    \4\ See Memorandum, ``Decision Memorandum for the Preliminary 
Affirmative Determination in the Countervailing Duty Investigation 
of Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled 
into Modules, from Malaysia,'' dated concurrently with, and hereby 
adopted by, this notice (Preliminary Decision Memorandum).
---------------------------------------------------------------------------

Scope of the Investigation

    The product covered by this investigation is solar cells from 
Malaysia. For a complete description of the scope of this 
investigation, see Appendix I.

Scope Comments

    In accordance with the Preamble to Commerce's regulations,\5\ the 
Initiation Notice set aside a period of time for parties to raise 
issues regarding product coverage, (i.e., scope).\6\
---------------------------------------------------------------------------

    \5\ See Antidumping Duties; Countervailing Duties, Final Rule, 
62 FR 27296, 27323 (May 19, 1997).
    \6\ See Initiation Notice.
---------------------------------------------------------------------------

    We received several comments concerning the scope of this 
investigation, as well as in the companion less-than-fair-value (LTFV) 
and countervailing duty (CVD) investigations of solar cells, as it 
appeared in the Initiation Notice. We are currently evaluating the 
scope comments filed by interested parties. We intend to issue our 
preliminary decision regarding the scope of the LTFV and CVD 
investigations in the preliminary determinations of the companion LTFV 
investigations, the deadline for which is November 27, 2024.\7\ We will 
incorporate the scope decisions from the LTFV investigations into the 
scope of the final CVD determination for this investigation after 
considering any relevant comments submitted in scope case and rebuttal 
briefs.\8\
---------------------------------------------------------------------------

    \7\ See Crystalline Silicon Photovoltaic Cells, Whether or Not 
Assembled Into Modules, from Cambodia, Malaysia, Thailand, and the 
Socialist Republic of Vietnam: Postponement of Preliminary 
Determinations in the Less-Than Fair-Value Investigations, 89 FR 
77473 (September 23, 2024) (LTFV Preliminary Postponement).
    \8\ The deadline for interested parties to submit scope case and 
rebuttal briefs will be established in the preliminary scope 
decision memorandum.
---------------------------------------------------------------------------

Methodology

    Commerce is conducting this investigation in accordance with 
section 701 of the Act. For each of the subsidy programs found 
countervailable, Commerce preliminarily determines that there is a 
subsidy, i.e., a financial contribution by an ``authority'' that gives 
rise to a benefit to the recipient, and that the subsidy is 
specific.\9\ For a full description of the methodology underlying our 
preliminary determination, see the Preliminary Decision Memorandum.
---------------------------------------------------------------------------

    \9\ See sections 771(5)(B) and (D) of the Act regarding 
financial contribution; section 771(5)(E) of the Act regarding 
benefit; and section 771(5A) of the Act regarding specificity.
---------------------------------------------------------------------------

    In making these findings, Commerce relied, in part, on facts 
available and, because it finds that one or more respondents did not 
act to the best of their ability to respond to Commerce's requests for 
information, it drew an adverse inference, where appropriate, in 
selecting from among the facts otherwise available.\10\ For further 
information, see the ``Use of Facts Otherwise Available and Adverse 
Inferences'' section in the Preliminary Decision Memorandum.
---------------------------------------------------------------------------

    \10\ See sections 776(a) and (b) of the Act.
---------------------------------------------------------------------------

Alignment

    In accordance with section 705(a)(1) of the Act and 19 CFR 
351.210(b)(4), Commerce is aligning the final determination in this 
investigation with the final determination in the companion LTFV 
investigation of solar cells from Malaysia based on a request made by 
the petitioner.\11\ Consequently, the final CVD determination will be 
issued on the same date as the final LTFV determination, which is 
currently scheduled to be issued no later than February 10, 2025.\12\
---------------------------------------------------------------------------

    \11\ See Petitioner's Letter, ``Request to Align Countervailing 
Duty Investigation Final Determinations with Antidumping Duty 
Investigation Final Determinations,'' dated September 23, 2024.
    \12\ See LTFV Preliminary Postponement.
---------------------------------------------------------------------------

All-Others Rate

    Sections 703(d) and 705(c)(5)(A) of the Act provide that in the 
preliminary determination, Commerce shall determine an estimated all-
others rate for companies not individually examined. This rate shall be 
an amount equal to the weighted average of the estimated subsidy rates 
established for those companies individually examined, excluding any 
zero and de minimis rates and any rates based entirely under section 
776 of the Act.
    In this investigation, Commerce calculated individual estimated 
countervailable subsidy rates for Hanwha Q CELLS Malaysia Sdn. Bhd. 
(Hanwha Q CELLS) and Jinko Solar Technology Sdn Bhd (Jinko Solar) that 
are not zero, de minimis, or based entirely on facts otherwise 
available. However, because publicly ranged sales values for all 
mandatory respondents are not on the record of this investigation, for 
the preliminary determination, we are unable to weight average the 
subsidy rates of Hanwha Q CELLS and Jinko Solar derive an estimated 
all-others rate for companies not individually examined. Therefore, we 
calculated a simple average of the subsidy rates calculated for Hanwha 
Q CELLS and Jinko Solar for application to the all-others rate.

Rate for Non-Responsive Companies

    Three exporters and/or producers of solar cells from Malaysia 
(Baojia New Energy, Pax Union Resources SDN BHD, and SunMax Energy SDN 
BHD, collectively, the non-responsive companies) did not respond to 
Commerce's quantity and value (Q&V) questionnaire. We find that, by not 
responding to the Q&V questionnaire, these companies withheld requested 
information and significantly impeded

[[Page 80863]]

this proceeding. Thus, in reaching our preliminary determination, 
pursuant sections 776(a)(2)(A) and (C) of the Act, we are basing the 
CVD subsidy rate for the non-responsive companies on facts otherwise 
available.
    In addition, we preliminary determine that an adverse inference is 
warranted, pursuant to section 776(b) of the Act. By failing to submit 
responses to Commerce's Q&V questionnaire, these companies did not 
cooperate to the best of their ability in this investigation. 
Accordingly, we preliminarily find that an adverse inference is 
warranted to ensure that the non-responsive companies will not obtain a 
more favorable result than had they fully complied with our request for 
information. For more information on the application of adverse facts 
available, see ``Use of Facts Otherwise Available and Adverse 
Inferences'' in the Preliminary Decision Memorandum.

Preliminary Determination

    Commerce preliminarily determines that the following estimated 
countervailable subsidy rates exist:

------------------------------------------------------------------------
                                                               Subsidy
                                                                 rate
                          Company                              (percent
                                                             ad valorem)
------------------------------------------------------------------------
Hanwha Q CELLS Malaysia Sdn. Bhd...........................        14.72
Jinko Solar Technology Sdn Bhd and its cross-owned                  3.47
 companies: Jinko Solar (Malaysia) Sdn. Bhd. and Omega
 Solar Sdn. Bhd............................................
Baojia New Energy..........................................     * 123.94
Pax Union Resources SDN BHD................................     * 123.94
SunMax Energy SDN BHD......................................     * 123.94
All Others.................................................         9.13
------------------------------------------------------------------------
* Rate based on facts available with adverse inferences.

Suspension of Liquidation

    In accordance with section 703(d)(1)(B) and (d)(2) of the Act, 
Commerce will direct U.S. Customs and Border Protection (CBP) to 
suspend liquidation of entries of subject merchandise as described in 
Appendix I of this notice entered, or withdrawn from warehouse, for 
consumption on or after the date of publication of this notice in the 
Federal Register. Further, pursuant to 19 CFR 351.205(d), Commerce will 
instruct CBP to require a cash deposit equal to the rates indicated 
above.

Disclosure

    Commerce intends to disclose its calculations and analysis 
performed in this preliminary determination to interested parties 
within five days of its public announcement of the preliminary 
determination, or if there is no public announcement, within five days 
of the date of publication of this notice in the Federal Register, in 
accordance with 19 CFR 351.224(b).
    Consistent with 19 CFR 351.224(e), Commerce will analyze and, if 
appropriate, correct any timely allegations of significant ministerial 
errors by amending the preliminary determination. However, consistent 
with 19 CFR 351.224(d), Commerce will not consider incomplete 
allegations that do not address the significance standard under 19 CFR 
351.224(g), following the preliminary determination. Instead, Commerce 
will address such allegations in the final determination together with 
issues raised in the case briefs or other written comments.

Verification

    As provided in section 782(i)(1) of the Act, Commerce intends to 
verify the information relied upon in making its final determination.

Public Comment

    All interested parties will have the opportunity to submit scope 
case and rebuttal briefs on the preliminary decision regarding the 
scope of the CVD and LTFV investigations. The deadlines to submit scope 
case and rebuttal briefs will be provided in the preliminary scope 
decision memorandum. For all scope case and rebuttal briefs, parties 
must file identical documents simultaneously on the records of the 
ongoing CVD and LTFV investigations. No new factual information or 
business proprietary information may be included in either scope case 
or rebuttal briefs.
    Case briefs or other written comments not related to the scope of 
this investigation may be submitted to the Assistant Secretary for 
Enforcement and Compliance no later than seven days after the date on 
which the last verification report is issued in this investigation. A 
timeline for the submission of case briefs and written comments will be 
notified to interested parties at a later date. Rebuttal briefs, 
limited to issues raised in the case briefs, may be filed not later 
than five days after the date for filing case briefs.\13\ Interested 
parties who submit case briefs or rebuttal briefs in this proceeding 
must submit: (1) a table of contents listing each issue; and (2) a 
table of authorities.\14\
---------------------------------------------------------------------------

    \13\ See 19 CFR 351.309(d); see also Administrative Protective 
Order, Service, and Other Procedures in Antidumping and 
Countervailing Duty Proceedings, 88 FR 67069, 67077 (September 29, 
2023) (APO and Service Final Rule).
    \14\ See 19 351.309(c)(2) and (d)(2).
---------------------------------------------------------------------------

    As provided under 19 CFR 351.309(c)(2) and (d)(2), in prior 
proceedings we have encouraged interested parties to provide an 
executive summary of their brief that should be limited to five pages 
total, including footnotes. In this investigation, we instead request 
that interested parties provide at the beginning of their briefs a 
public, executive summary for each issue raised in their briefs.\15\ 
Further, we request that interested parties limit their public, 
executive summary of each issue to no more than 450 words, not 
including citations. We intend to use the public, executive summaries 
as the basis of the comment summaries included in the issues and 
decision memorandum that will accompany the final determination in this 
investigation. We request that interested parties include footnotes for 
relevant citations in the public, executive summary of each issue. Note 
that Commerce has amended certain of its requirements pertaining to the 
service of documents in 19 CFR 351.303(f).\16\
---------------------------------------------------------------------------

    \15\ We use the term ``issue'' here to describe an argument that 
Commerce would normally address in a comment of the Issues and 
Decision Memorandum.
    \16\ See APO and Service Final Rule.
---------------------------------------------------------------------------

    Pursuant to 19 CFR 351.310(c), interested parties who wish to 
request a hearing, limited to issues raised in the case and rebuttal 
briefs, must submit a written request to the Assistant Secretary for 
Enforcement and Compliance, U.S. Department of Commerce within 30 days 
after the date of publication of this notice in the Federal Register. 
Requests should contain the party's name, address, and telephone 
number, the number of participants, whether any participant is a 
foreign national, and a list of the issues to be discussed. If a 
request for a hearing is made, Commerce intends to hold the hearing at 
a time and date to be determined. Parties should confirm by telephone 
the date, time, and location of the hearing two days before the 
scheduled date.

U.S. International Trade Commission Notification

    In accordance with section 703(f) of the Act, Commerce will notify 
the U.S. International Trade Commission (ITC) of its determination. If 
the final determination is affirmative, the ITC will determine before 
the later of 120 days after the date of this preliminary determination 
or 45 days after the final determination whether imports of solar

[[Page 80864]]

cells from Malaysia are materially injuring, or threaten material 
injury to, the U.S. industry.

Notification to Interested Parties

    This determination is issued and published pursuant to sections 
703(f) and 777(i) of the Act and 19 CFR 351.205(c).

    Dated: September 30, 2024.
Ryan Majerus,
Deputy Assistant Secretary for Policy and Negotiations, performing the 
non-exclusive functions and duties of the Assistant Secretary for 
Enforcement and Compliance.

Appendix I

Scope of the Investigation

    The merchandise covered by this investigation is 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.
    Merchandise under consideration 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 merchandise under consideration are included in 
the scope of the investigation.
    Excluded from the scope of the 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 the investigation are 
crystalline silicon photovoltaic cells, not exceeding 10,000 mm\2\ 
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.
    Additionally, excluded from the scope of the investigation are 
panels with surface area from 3,450 mm\2\ to 33,782 mm\2\ with one 
black wire and one red wire (each of type 22 AWG or 24 AWG not more 
than 206 mm in length when measured from panel extrusion), and not 
exceeding 2.9 volts, 1.1 amps, and 3.19 watts. For the purposes of 
this exclusion, no panel shall contain an internal battery or 
external computer peripheral ports.
    Also excluded from the scope of the investigation are:
    (1) Off grid CSPV panels in rigid form with a glass cover, with 
the following characteristics: (A) a total power output of 100 watts 
or less per panel; (B) a maximum surface area of 8,000 cm\2\ per 
panel; (C) do not include a built-in inverter; (D) must include a 
permanently connected wire that terminates in either an 8 mm male 
barrel connector, or a two-port rectangular connector with two pins 
in square housings of different colors; (E) must include visible 
parallel grid collector metallic wire lines every 1-4 millimeters 
across each solar cell; and (F) must be in individual retail 
packaging (for purposes of this provision, retail packaging 
typically includes graphics, the product name, its description and/
or features, and foam for transport); and
    (2) Off grid CSPV panels without a glass cover, with the 
following characteristics: (A) a total power output of 100 watts or 
less per panel; (B) a maximum surface area of 8,000 cm\2\ per panel; 
(C) do not include a built-in inverter; (D) must include visible 
parallel grid collector metallic wire lines every 1-4 millimeters 
across each solar cell; and (E) each panel is (1) permanently 
integrated into a consumer good; (2) encased in a laminated material 
without stitching, or (3) has all of the following characteristics: 
(i) the panel is encased in sewn fabric with visible stitching, (ii) 
includes a mesh zippered storage pocket, and (iii) includes a 
permanently attached wire that terminates in a female USB-A 
connector.
    In addition, the following CSPV panels are excluded from the 
scope of the investigation: off-grid CSPV panels in rigid form with 
a glass cover, with each of the following physical characteristics, 
whether or not assembled into a fully completed off-grid hydropanel 
whose function is conversion of water vapor into liquid water: (A) a 
total power output of no more than 80 watts per panel; (B) a surface 
area of less than 5,000 square centimeters (cm\2\) per panel; (C) do 
not include a built-in inverter; (D) do not have a frame around the 
edges of the panel; (E) include a clear glass back panel; and (F) 
must include a permanently connected wire that terminates in a 
twoport rectangular connector.
    Additionally excluded from the scope of this investigation are 
off-grid small portable crystalline silicon photovoltaic panels, 
with or without a glass cover, with the following characteristics: 
(1) a total power output of 200 watts or less per panel; (2) a 
maximum surface area of 16,000 cm\2\ per panel; (3) no built-in 
inverter; (4) an integrated handle or a handle attached to the 
package for ease of carry; (5) one or more integrated kickstands for 
easy installation or angle adjustment; and (6) a wire of not less 
than 3 meters either permanently connected or attached to the 
package that terminates in an 8 mm diameter male barrel connector.
    Also excluded from the scope of this investigation are off-grid 
crystalline silicon photovoltaic panels in rigid form with a glass 
cover, with each of the following physical characteristics, whether 
or not assembled into a fully completed off-grid hydropanel whose 
function is conversion of water vapor into liquid water: (A) a total 
power output of no more than 180 watts per panel at 155 degrees 
Celsius; (B) a surface area of less than 16,000 square centimeters 
(cm\2\) per panel; (C) include a keep-out area of approximately 
1,200 cm\2\ around the edges of the panel that does not contain 
solar cells; (D) do not include a built-in inverter; (E) do not have 
a frame around the edges of the panel; (F) include a clear glass 
back panel; (G) must include a permanently connected wire that 
terminates in a two-port rounded rectangular, sealed connector; (H) 
include a thermistor installed into the permanently connected wire 
before the twoport connector; and (I) include exposed positive and 
negative terminals at opposite ends of the panel, not enclosed in a 
junction box.
    Modules, laminates, and panels produced in a third-country from 
cells produced in a subject country are covered by the 
investigation; however, modules, laminates, and panels produced in a 
subject country from cells produced in a third-country are not 
covered by the investigation.
    Also excluded from the scope of this investigation are all 
products covered by the scope of the antidumping and countervailing 
duty orders on Crystalline Silicon Photovoltaic Cells, Whether or 
Not Assembled into Modules, from the People's Republic of China: 
Amended Final Determination of Sales at Less Than Fair Value, and 
Antidumping Duty Order, 77 FR 73018 (December 7, 2012); and 
Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled 
into Modules, from the People's Republic of China: Countervailing 
Duty Order, 77 FR 73017 (December 7, 2012).
    Merchandise covered by the investigation is currently classified 
in the Harmonized Tariff System of the United States (HTSUS) under 
subheadings 8541.42.0010 and 8541.43.0010. Imports of the subject 
merchandise may enter under HTSUS subheadings 8501.71.0000, 
8501.72.1000, 8501.72.2000, 8501.72.3000, 8501.72.9000, 
8501.80.1000, 8501.80.2000, 8501.80.3000, 8501.80.9000, 
8507.20.8010, 8507.20.8031, 8507.20.8041, 8507.20.8061, and 
8507.20.8091. These HTSUS subheadings are provided for convenience 
and customs purposes; the written description of the scope of the 
investigation is dispositive.

Appendix II

List of Topics Discussed in the Preliminary Decision Memorandum

I. Summary
II. Background
III. Scope Comments
IV. Injury Test
V. Use of Facts Available and Adverse Inferences
VI. Subsidies Valuation Information
VII. Benchmarks and Interest Rates
VIII. Analysis of Programs
IX. Recommendation

[FR Doc. 2024-22997 Filed 10-3-24; 8:45 am]
BILLING CODE 3510-DS-P