H322865

HQ H322865 March 1, 2024 OT:RR:CTF:EPDR H322865 CC CATEGORY: ENTRY Center Director Electronics Center of Excellence and Expertise U.S. Customs and Border Protection 1 World Trade Center Long Beach, California 90831 Attn: Elias Garcia-Martinez, Import Specialist Re: Request for Internal Advice Filed on Behalf of Enel Green Power North America Inc. and EGP Stillwater Solar PV II LLC Dear Center Director: This is in response to an internal advice request, dated August 6, 2021, and filed by Sidley Austin LLP, on behalf of their clients, Enel Green Power North America Inc. and EGP Stillwater Solar PV II LLC (collectively “Enel”), regarding the application of antidumping and countervailing duties (“ADDs” and “CVDs”) to their entries under the orders for crystalline silicon photovoltaic cells (“solar cells” or “CSPV cells”) from the People’s Republic of China (“PRC” or “China”). FACTS: On December 7, 2012, the U.S. Department of Commerce (“Commerce”) made a final determination and issued a CVD order in Case No. C-570-980. Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the People’s Republic of China: Countervailing Duty Order (“C-570-980 Order”), 77 Fed. Reg. 73,017 (Dec. 7, 2012). On the same day, Commerce made an amended final determination and issued an ADD order in Case No. A-570-979. 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 (“A-570-979 Order”), 77 Fed. Reg. 73,018 (Dec. 7, 2012). Collectively, these determinations will be referred to as the “Orders.” Commerce implemented its C-570-980 Order on December 11, 2012, by issuing Message No. 2346303 to U.S. Customs and Border Protection (“CBP”) and implemented its A-570-979 Order on December 21, 2012, by issuing Message No. 2356306 to CBP. In its ADD and CVD orders and messages to CBP, Commerce used identical language to describe the scope of products covered by the orders, i.e., “crystalline silicon photovoltaic cells [from the PRC] 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.” C-570-980 Order, 77 Fed. Reg. at 73,017; A-570-979 Order, 77 Fed. Reg. at 73,018; Message No. 2346303 at ¶ 2; and Message 2356306 at ¶ 2 (emphasis added). The Orders and messages also described specific goods that were excluded from the scope of the orders, including “thin film photovoltaic products produced from amorphous silicon (a-Si), cadmium telluride (CdTe), or copper indium gallium selenide (CIGS).” Id. Between March 21 and November 13, 2020, Enel entered the eight entries that are the subject of this request for internal advice, including seven entries of CSPV cell modules and one entry of thin film photovoltaic modules (“thin film modules”). On all the entry summaries, Enel declared the country of origin of the solar cells as Italy. On December 7, 2020, CBP’s Electronics Center of Excellence and Expertise (“CEE”) sent emails to Enel requesting invoice information regarding values, quantities, and totals, and Enel provided invoice information and contract documents that referenced production in Italy. Enel also uploaded the documents to CBP’s Automated Commercial Environment (“ACE”) via the Document Imaging System (“DIS”) between December 16 and 18, 2020. On January 8 and January 12, 2021, CBP issued Requests for Information (CBP Form 28s or “CF28s”) to Enel to confirm the country of origin, value, quantity, entry type, and classification for each of the eight identified entries. On February 3, 2021, Enel responded to CBP’s CF28s by providing documents to the Electronics CEE via email. These documents included graphics and photographs depicting Enel’s production process in Italy. At CBP’s request, Enel also uploaded the documents to DIS the next day. On February 8, 2021, CBP issued Notices of Action (“CBP Form 29s” or “CF29s”) to Enel stating that CBP had: [R]eviewed the information provided and has determined that you failed to provide an adequate depiction of the solar module and solar cell manufacturing processes. CBP requires wide angle real-time photographs of all solar module and solar cell manufacturing processes. The photographs need to depict the extent of the manufacturing facility, illustrate the number of lines dedicated to the manufacturing of the solar modules and the solar cells. In the documentation you provided, it indicated that the texturing and diffusion processes occurred in Catania (Italy). You did not specify the manufacturing entity conducting these processes. Please provide the name of the entity performing the processes and wide angle real-time photographs of the texturing and diffusion machinery/equipment in operation. Also, provide photos of the specification placard attached to these machines. The CF29s notified Enel that if they did not supply the additional information requested, CBP would rate advance the eight entries at issue (i.e., collect cash deposits of ADDs and CVDs pursuant to the Commerce Orders) 20 days after the notice. Enel admits that it did not file its response to the CF29s within the 20-day limit (though some additional information may have been uploaded to DIS), but did request an extension of time on April 9, 2021, which was not granted or denied by CBP. On August 6, 2021, Enel filed the instant request that the Electronics CEE seek internal advice from CBP Headquarters pursuant to 19 C.F.R. § 177.11(b)(2) and (b)(3). Enel asserts that the solar cells in the identified eight entries were clearly outside the scope of Commerce’s orders for Cases Nos. A-570-979 and C-570-980 and therefore not subject to ADDs and CVDs. ISSUE: Whether CBP correctly assessed ADDs and CVDs on Enel’s eight entries under the terms of Commerce’s C-570-980 and A-570-979 Orders on CSPV cells from China. LAW AND ANALYSIS: While both CBP and Commerce play a part in the enforcement of the ADD and CVD laws, Congress gave them separate and distinct roles. Pursuant to 19 U.S.C. §§ 1671-71e and §§ 1673-73e and Commerce regulations, Commerce is the primary agency that calculates and determines the CVD and ADD rate applicable to specific imported merchandise and then directs CBP to collect the estimated ADDs and CVDs on entries of the subject merchandise. See 19 U.S.C. §§ 1671e(a) and 1673e(a); 19 C.F.R. § 351.211(b)(1); Title VII of the Tariff Act of 1930, added by the Trade Act of 1979, Pub. L. No. 96-39, Title I § 101, 93 Stat. 144, 150 (July 26, 1979). In contrast, “CBP’s role in assessing antidumping duties is ministerial. CBP only liquidates entries pursuant to Commerce’s instructions.” Headquarters Ruling (“HQ”) H097501 (July 14, 2014). Consequently, the ADD and CVD laws do not provide CBP with any role in evaluating or altering the criteria used by Commerce to determine whether an ADD or CVD order applies to certain merchandise. Rather, CBP executes its ministerial role by following Commerce’s instructions to compute and collect ADDs and CVDs by applying rates set by Commerce to merchandise described by Commerce. Mitsubishi Elecs. Am., Inc. v. United States, 44 F.3d 973, 977 (Fed. Cir. 1994) (“[CBP] merely follows Commerce's instructions in assessing and collecting duties.”). CBP, “incident to its ‘ministerial’ function of fixing the amount of duties chargeable, must make factual findings to determine ‘what the merchandise is, and whether it is described in an order’ and must decide whether to apply the order to the merchandise.” LDA Incorporado v. United States, 79 F. Supp. 3d 1331, 1339 (Ct. Int’l Trade 2015) citing Xerox Corp. v. United States, 289 F.3d 792, 794-95 (Fed. Cir. 200

While both CBP and Commerce play a part in the enforcement of the ADD and CVD laws, Congress gave them separate and distinct roles. Pursuant to 19 U.S.C. §§ 1671-71e and §§ 1673-73e and Commerce regulations, Commerce is the primary agency that calculates and determines the CVD and ADD rate applicable to specific imported merchandise and then directs CBP to collect the estimated ADDs and CVDs on entries of the subject merchandise. See 19 U.S.C. §§ 1671e(a) and 1673e(a); 19 C.F.R. § 351.211(b)(1); Title VII of the Tariff Act of 1930, added by the Trade Act of 1979, Pub. L. No. 96-39, Title I § 101, 93 Stat. 144, 150 (July 26, 1979). In contrast, “CBP’s role in assessing antidumping duties is ministerial. CBP only liquidates entries pursuant to Commerce’s instructions.” Headquarters Ruling (“HQ”) H097501 (July 14, 2014). Consequently, the ADD and CVD laws do not provide CBP with any role in evaluating or altering the criteria used by Commerce to determine whether an ADD or CVD order applies to certain merchandise. Rather, CBP executes its ministerial role by following Commerce’s instructions to compute and collect ADDs and CVDs by applying rates set by Commerce to merchandise described by Commerce. Mitsubishi Elecs. Am., Inc. v. United States, 44 F.3d 973, 977 (Fed. Cir. 1994) (“[CBP] merely follows Commerce's instructions in assessing and collecting duties.”).CBP, “incident to its ‘ministerial’ function of fixing the amount of duties chargeable, must make factual findings to determine ‘what the merchandise is, and whether it is described in an order’ and must decide whether to apply the order to the merchandise.” LDA Incorporado v. United States, 79 F. Supp. 3d 1331, 1339 (Ct. Int’l Trade 2015) citing Xerox Corp. v. United States, 289 F.3d 792, 794-95 (Fed. Cir. 2002). However, CBP cannot “affect the scope of the order” while performing its ministerial function. Id. Specifically, CBP “is tasked with determining, for every imported product, whether the product falls wi