H296834

 HQ H296834 November 25, 2024 OT:RR:CTF:ER H296834 KF Category: Entry U.S. Customs and Border Protection Port of Newark/New Jersey 1100 Raymond Blvd. Newark, NJ 07102 Re: Protest No. 4601-17-103148; Fulfill Your Packages, Inc. Dear Port Director: This is in response to the application for further review of protest no. 4601-17-103148, received by our office on May 8, 2018. Fulfill Your Packages, Inc. (“FYP”) protests your office’s liquidation of entry no. xxx-xxxxx80-9 pursuant to the country-wide rate for certain crystalline silicon photovoltaic cells used for solar panels (“solar cells”) from the People’s Republic of China (“China”) established in antidumping case no. A-570-979-000. We have considered the points raised by your office and the protestant. Our decision is set forth below. We note that FYP initially protested the liquidation of entry no. xxx-xxxxx89-0. However, on October 3, 2017, FYP timely amended its protest to request that CBP “amend the entry number in this protest as follows: From: xxx-xxxxx89-0 TO xxx-xxxxx80-9.” Accordingly, our decision only concerns the liquidation of entry no. xxx-xxxxx80-9 and the liquidation of entry no. xxx-xxxxx89-0 is therefore final and conclusive. FACTS: On December 8, 2015, FYP filed entry no. xxx-xxxxx80-9 for solar cells and other merchandise from China. The entry was made as a type “03 consumption entry, utilized for merchandise that is subject to an antidumping and/or countervailing duty order. On the entry summary, FYP reported the applicable antidumping duty order as case no. A-570-979-072, which is a company specific case number for Yuhuan Solar Energy Source Co., Ltd. (“YSES”) in the antidumping duty case for solar cells from China. See Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From China: Amended Final Determination of Sales at Less Than Fair Value, and Antidumping Duty Order, 77 Fed. Reg. 73,018 (Dec. 7, 2012) (hereinafter “Antidumping Duty Order”). As part of the antidumping duty case, the U.S. Department of Commerce (“Commerce”) assigned YSES a company specific cash deposit rate of 13.18% in circumstances where YSES is an exporter and producer/manufacturer, jointly, of solar cells entered for consumption on or after August 4, 2015. See Commerce Message No. 5296304 (Oct. 23, 2015). According to the entry summary, FYP relied on this rate to pay cash deposits of 13.18% upon entry. Moreover, the entry summary indicates that YSES is the manufacturer of the solar cells, while Shenzhen Mingjin Import & Export Co., Ltd. (“SMIE”) is the manufacturer of the other merchandise identified on the remaining five line items on the entry summary. The documents accompanying the entry summary consisted of: an invoice from the shipper, a packing list from the shipper, and a bill of lading. All the documents identify SMIE as the shipper, and FYP as the consignee, for the entry. FYS additionally provided an arrival notice which names Parcel Pack Express as the consignee for the shipment and matches the bill of lading number on the associated bill of lading but duplicates the address and phone number listed for FYP on the other documents accompanying the entry. None of these documents make any reference to YSES. On May 30, 2017, CBP issued a Notice of Action (CBP Form 29) informing FYP that various entries, including entry no. xxx-xxxxx80-9, were being rate advanced because “[i]nsufficient documentation was received to substantiate the specific antidumping case/rate of A-570-979-072/13.18%. The documentation provided did not show that [YSES] manufactured and exported the subject goods. The entry documents received . . . show an exporter of [SMIE], which is subject to the country wide case of A-570-979-000, which has a deposit rate of 238.5%.” CBP determined that although FYP listed the manufacturer on the entry summary as YSES for each line item of solar cells on these entries, FYP had failed to substantiate that YSES had any relation to the cells based on the accompanying entry documentation. Consequently, FYP had failed to establish that YSES both manufactured and exported these solar cells, as required by Commerce to render the cells subject to YSES’ company specific rate. The Notice of Action also informed FYP that CBP determined the solar cells were additionally subject to a countervailing duty order under case no. C-570-980-000. See Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the People's Republic of China: Countervailing Duty Order, 77 Fed. Reg. 73017 (Dec. 7, 2012) (hereinafter “Countervailing Duty Order”); Commerce Message No. 7058306 (Feb. 27, 2017). FYP does not contest CBP’s assessment of countervailing duties. CBP liquidated the entry on June 16, 2017, subject to the country-wide antidumping duty rate of 238.95% under case no. A-570-979-000, and the country-wide countervailing duty rate of 15.24% under case no. C-570-980-000. See Initiation of Antidumping and Coutervailing Duty Administrative Reviews, 82 Fed. Reg. 10,457 (Feb. 13, 2017); Commerce Message Nos. 7058306 (Feb. 27, 2017); 7065306 (Mar. 6, 2017). FYP filed this protest on September 15, 2017. We note that FYP did not contest CBP’s assessment of countervailing duties under case no. C-570-980- 000, nor question the timeliness of liquidation for entry no. xxx-xxxxx80-9. Rather, FYP alleges that the solar cells qualified for YSES’ company specific antidumping duty rate. FYP claims that YSES “produced and manufactured the solar [cells] and transferred them to [SMIE] . . . a trading company in China, for export to the United States.” To substantiate this claim, FYP provided CBP with a document described as the “invoice for the transfer of the solar panels” between YSES and SMIE. The document that FYP provided is titled “Industrial Bank Online receipt,” identifying SMIE as a “Payer” and YSES as a “Beneficiary” or party receiving payment and is dated October 15, 2015. However, the receipts make no mention of what the underlying purchase entails. FYP further claims that YSES “is the exporter of this shipment because it was the principal party in interest of this shipment [who] benefitted by the exportation of the solar” cells. To substantiate this claim, FYP cites to International Trade Administration (“ITA”) regulations defining various terms, to include “principal party in interest” as defined in 15 C.F.R. § 30.3. FYP concludes that CBP improperly assessed the country-wide antidumping rate at liquidation, because the solar cells in both entries were subject to YSES’ company specific rate as a manufacturer and exporter of these cells. On August 14, 2018, our office requested additional documentation from FYP to verify that YSES both manufactured the solar cells at issue, and that YSES transferred these cells to SMIE for shipment. In response, FYP submitted a purchase order (“PO”) issued to SMIE by YSES and resubmitted the invoice which originally accompanied entry no. xxx-xxxxx80-9. The PO, dated September 3, 2015, evidences that YSES manufactured various solar panels and cells, and related parts, purchased by SMIE. The PO lists 22 categories of articles purchased by SMIE in varying quantities and at various prices. The PO does not indicate that any of the articles purchased by SMIE were sold to FYP. The PO lacks any data which specifically identifies the solar cells in entry no. xxx-xxxxx80-9 by quantity or any other designation. On September 20, 2018, our office sought clarification from Commerce as to the criteria which render a party an exporter for purposes of a company specific rate. Commerce stated that “[m]erely transferring the goods to a party that ultimately sells the goods to the United States is not sufficient on its face to” render a party an exporter. ISSUE: Whether entry no. xxx-xxxxx80-9 was properly liquidated pursuant to the country-wide antidumping duty rate for case no. A-570-979-000. LAW AND ANALYSIS: As an initial matter, we find that, pursuant t

As an initial matter, we find that, pursuant to 19 U.S.C. § 1514(c)(3)(A), this protest was timely filed on September 15, 2017, within 180 days after the June 16, 2017, liquidation date for entry no. xxx-xxxxx80-9. Moreover, the protest was timely and properly amended on October 3, 2017, pursuant to 19 C.F.R. § 174.14, to substitute entry number xxx-xxxxx89-0 with xxx- xxxxx80-9. We also find that, pursuant to 19 U.S.C. § 1514(a), a protestable issue was raised by challenging CBP’s decision regarding the applicable rate of antidumping duties. Finally, pursuant to 19 C.F.R. § 174.24(b), we find that further review of this protest is warranted because it involves a question of fact which has not previously been ruled upon, specifically whether the YSES is a manufacturer and exporter for the solar cells at issue.CBP has a “statutory responsibility to fix the amount of duty owed on imported goods. As part of that responsibility, C[BP] is both empowered and obligated to determine … whether goods are subject to existing antidumping or countervailing duty orders.” Sunpreme Inc. v.United States, 946 F.3d 1300, 1317 (Fed. Cir. 2020). As part of fulfilling this obligation, CBP assumes a ministerial role in liquidating entries subject to instructions received from Commerce. See Mitsubishi Elecs. Am., Inc. v. United States, 44 F.3d 973, 977 (Fed. Cir. 1994). The instructions relevant to this protest required CBP to liquidate all entries of solar cells subject to the Antidumping Duty Order, other than cells exported by certain enumerated companies, that were entered for consumption from December 1, 2015, through November 30, 2016. See 82 Fed.Reg. 10,457 (Feb. 13, 2017); Commerce Message No. 7065306 (March 6, 2017) (“liquidate all entries for all firms except those listed”). Neither YSES nor SMIE were among the enumerated exporters for which liquidation continued to be suspended, therefore CBP appropriately determined that Commerce lifted suspension of liquidation for the solar