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 Department of Commerce International Trade Administration [C-557-831]
 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:
                    ( print 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] 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.* 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] 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] 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. 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. 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] 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 
                    ( print 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: Company
Subsidy
                             rate 
                             (percent  
                             
                                *ad valorem*)Hanwha Q CELLS Malaysia Sdn. Bhd
14.72Jinko Solar Technology Sdn Bhd and its cross-owned companies: Jinko Solar (Malaysia) Sdn. Bhd. and Omega Solar Sdn. Bhd
3.47Baojia New Energy
* 123.94Pax Union Resources SDN BHD
* 123.94SunMax Energy SDN BHD
* 123.94All 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] 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] 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 
                    ( print 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 mm2
                         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 mm2
                         to 33,782 mm2
                         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 cm2
                         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 cm2
                         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 (cm2
                        ) 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 cm2
                         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 (cm2
                        ) per panel; (C) include a keep-out area of approximately 1,200 cm2
                         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


# Footnotes

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*). Back to Citation
 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). Back to Citation
 3.
    
                         
                        *See*
                         Memorandum, “Tolling of Deadlines for Antidumping and Countervailing Duty Proceedings,” dated July 22, 2024. Back to Citation
 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). Back to Citation
 5.
    
                         
                        *See Antidumping Duties; Countervailing Duties, Final Rule,*62 FR 27296, 27323 (May 19, 1997). Back to Citation
 6.
    
                         
                        *See Initiation Notice.* Back to Citation
 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*). Back to Citation
 8.
    
                         The deadline for interested parties to submit scope case and rebuttal briefs will be established in the preliminary scope decision memorandum. Back to Citation
 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. Back to Citation
 10.
    
                         
                        *See*
                         sections 776(a) and (b) of the Act. Back to Citation
 11.
    
                         
                        *See*
                         Petitioner's Letter, “Request to Align Countervailing Duty Investigation Final Determinations with Antidumping Duty Investigation Final Determinations,” dated September 23, 2024. Back to Citation
 12.
    
                         
                        *See LTFV Preliminary Postponement.* Back to Citation
 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*). Back to Citation
 14.
    
                         
                        *See*
                         19 351.309(c)(2) and (d)(2). Back to Citation
 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. Back to Citation
 16.
    
                         
                        *See APO and Service Final Rule.* Back to Citation


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