H302687

90 K Street, N.E., Washington, D.C. 20229-1177 U.S. Customs and Border Protection HQ H302687 February 22, 2021 LIQ 4-01, 4-02 OT:RR:CTF:ER H302687 CC Center Director Electronics Center of Excellence and Expertise (CEE) U.S. Customs and Border Protection 301 E. Ocean Blvd., Suite 600 Long Beach, CA 90802 Attn: Bret Ewing, Supervisory Import Specialist, Branch Chief Re: Application for Further Review of Protest number 2704-16-101531; Crystalline Silicon Photovoltaic Cells from the People’s Republic of China; Antidumping and Countervailing Duties; Tektrum Development Corporation Dear Center Director: This responds to the application for further review (“AFR”) of Protest Number 2704-16-101531 forwarded to our office on February 22, 2018. The protesting party is Tektrum Development Corp. (“Tektrum”), the importer of record on the relevant entries. Tektrum protests the reliquidation and assessment of antidumping duties (“ADs”) with respect to two entries of crystalline silicon photovoltaic cells from the People’s Republic of China (“PRC”). FACTS: On June 13 and November 20, 2013, Tektrum entered the two entries at issue in this Protest. Tektrum entered the shipments as Type 03 entries because they were subject to the U.S. Department of Commerce’s (“Commerce’s”) AD and countervailing duty (“CVD”) orders regarding certain crystalline silicon photovoltaic cells from the PRC issued on December 7, 2012, pursuant to Case Nos. A-570-979 and C-570-980. 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 Order, 77 Fed. Reg. 73,018 (Dec. 7, 2012); Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the People’s Republic of China: Countervailing Duty Order, 77 Fed. Reg. 73,017 (December 7, 2012). According to Tektrum’s entry summary information, the imported silicon photovoltaic cells were manufactured by Canadian Solar Manufacturing (Changshu) (“Canadian Solar (Changshu)”) and exported by Resun Solar Energy Co. Ltd. (“Resun Solar”). On December 11, 2012, Commerce implemented its CVD order for Case No. C-570-980 by instructing U.S. Customs and Border Protection (“CBP”) in Message No. 2346303 to collect cash deposits or the posting of bonds equal to the subsidy rate of 15.24 percent for subject silicon photovoltaic cells manufactured and/or exported by “All Others.” In accordance with Commerce’s CVD order, Message 2346303 also prescribed special CVD rates for certain manufacturers and exporters, but Canadian Solar (Changshu) and Resun Solar were not among the firms listed. Tektrum paid cash deposits at 15.24 percent for Case No. C-570-980. On December 21, 2012, Commerce implemented its AD order for Case No. A-570-979 in Message No. 2356306, which instructed CBP to collect cash deposits or the posting of bonds equal to the dumping margin of 239.42 percent for entries from the “all others” PRC-wide entity, i.e., “all PRC exporters of crystalline silicon photovoltaic cells, whether or not assembled into modules, from the PRC which have not received their own rate,” for Case No. A-570-979-000. In accordance with the Commerce AD order, Message 2356306 also included instructions for CBP to collect cash deposits or the posting of bonds equal to a dumping margin of 13.94 percent for subject silicon photovoltaic cells from certain exporter/producer combinations. One such exporter/producer combination was entries where Canadian Solar International Limited (“Canadian Solar International”) was the exporter and Canadian Solar (Changshu) was the manufacturer, Case No. A-570-979-010, and another was entries where Canadian Solar (Changshu) was both the exporter and manufacturer, Case No. A-570-979-012. Resun Solar and Canadian Solar (Changshu) was not one of the exporter/producer combinations receiving its own rate in Message No. 2356306. However, Tektrum filed its two entries under Case No. A-570-979-010 and paid cash deposits at 13.94 percent. In February 2015, Commerce published its list of Initiation of Antidumping and Countervailing Duty Administrative Reviews, announcing that it had initiated several AD and CVD administrative reviews, including one for Case No. C-570-980 for entries involving Canadian Solar (Changshu) for the period of review from January 1, 2013 through December 31, 2013. 80 Fed. Reg. 6,041, 6,046-6,047 (Feb. 4, 2015). On February 20, 2015, in accordance with its administrative review in C-570-980, Commerce instructed CBP in Message No. 5051320 to continue to suspend liquidation of all entries of crystalline silicon photovoltaic cells associated with Canadian Solar (Changshu), among other firms, and entered, or withdrawn from warehouse, for consumption during the period January 1, 2013 through December 31, 2013. CBP followed Commerce instructions and continued to suspend liquidation of Tektrum’s entries from June and November 2013. In July 2015, Commerce published its final determination and AD order for case number A-570-979, Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the People’s Republic of China; Final Results of Antidumping Duty Administrative Review and Final Determination of No Shipments; 2012-2013, 80 Fed. Reg. 40,998 (July 14, 2015). Commerce implemented its order by sending to CBP Messages No. 5219314 and 5219317 on August 7, 2015. Message No. 5219314 instructed CBP to assess antidumping liability equal to 9.67 percent for entries of subject photovoltaic cells exported by firms specified in paragraph 1; the list of exporters included Canadian Solar (Changshu), but not Resun Solar. In contrast, Message No. 5219317 instructed CBP to assess antidumping liability equal to 238.95 percent for entries of subject photovoltaic cells exported by the PRC-wide entity, i.e., the “all-others” rate; paragraphs 4 and 5 listed examples of exporters falling under the PRC-wide entity, but did not include Resun Solar. In January 2016, Commerce announced it was partially rescinding its administrative reviews in C-570-980 for certain firms, including Canadian Solar (Changshu). Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the People’s Republic of China; Preliminary Results of Countervailing Duty Administrative Review; 2013; and Partial Rescission of Countervailing Duty Administrative Review, 81 Fed. Reg. 908, 909 (Jan. 8, 2016). On February 1, 2016, Commerce sent Message No. 6032314 to CBP, instructing CBP to liquidate all entries for the firms that were no longer subject to administrative review, including Canadian Solar (Changshu) under Case No. C-570-980-022. CBP did not immediately liquidate Tektrum’s entries in accordance with Message No. 6032314, but they were recorded as deemed liquidated on August 12, 2016, and then reliquidated pursuant to Message Nos. 5219317 and 6032314 on September 2, 2016 at an AD rate of 238.95 percent and a CVD rate of 15.24 percent. ISSUES Whether CBP properly reliquidated the subject entries. Whether CBP applied the correct AD rate when it liquidated the subject entries. LAW AND ANALYSIS As an initial matter, we note that the liquidation of the two entries entered by Tektrum in June and November 2013, is a protestable matter under 19 U.S.C. § 1514(a)(5) and 19 C.F.R. § 174.11(b)(5). In this case, CBP liquidated those entries on September 2, 2016. Tektrum timely filed the protest with respect to its entries on November 29, 2016, within the 180-day filing deadline set forth by 19 U.S.C. § 1514(c)(3)(A) and 19 C.F.R. § 174.12(e)(1). The Center of Excellence and Expertise for Electronics subsequently forwarded the protest to this office for further review. The criterion for further review has been satisfied because this matter involves questions of fact which have not been ruled upon by CBP or the courts. See 19 C.F.R. §§ 174.24(b), 174.26(b)(1)(iv). Tektrum asserts in their Memorandum that t