H328752

HQ H328752 March 1, 2024 OT:RR:CTF:EPDR H328752 JW CATEGORY: Entry Center Director Electronics Center of Excellence and Expertise U.S. Customs and Border Protection 301 East Ocean Blvd. Long Beach, CA 90802 Attn: Omar De Jesus, Import Specialist Re: Application for Further Review of Protest No. 4909-21-100585; Section 201 Duties; Section 301 Duties; Antidumping Duties; Countervailing Duties; Solar Modules Dear Center Director: This letter is in response to the Application of Further Review (“AFR”) of Protest No. 4909-21-100585, filed on November 23, 2021, by Astronergy Solar (“Astronergy” or “Protestant”). Astronergy is protesting “U.S. Customs and Border Protection’s [ ] liquidation, appraisement and assessment of antidumping duty [ ], countervailing duty [ ], Section 201 Safeguard duty, and Section 301 duty” on an entry of solar modules that Astronergy claims are of Cambodian origin. This protest was designated as the lead protest by Protestant, who claims that “Protest no. 2809-21-108798 concerns the same merchandise and has been suspended[.]” FACTS: This AFR arises from a May 4, 2019 consumption entry of “solar panels” (as described on the commercial invoice) shipped from Enalex Energy (KH) Co., Ltd., located in Cambodia, and that Astronergy entered as the importer of record. Astronergy claims the solar panels are of Cambodian origin but were wrongly liquidated as Chinese origin products and, on this basis, assessed Section 201 duties, Section 301 duties, antidumping duties (“ADD”) and countervailing duties (“CVD”) (collectively, “Additional Duties”). On December 7, 2012, the Department of Commerce (“Commerce”) issued the ADD order in case A-570-979 and the CVD order in case C-570-980 on certain crystalline silicon photovoltaic cells, whether or not assembled into modules, from China. See 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 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 (Dec. 7, 2012). Further, on June 15, 2021 in response to a scope inquiry from another entity, Commerce issued a scope ruling, which noted, inter alia, that “the presence of a p/n junction is the factor which ultimately separates a non-subject solar wafer from a subject solar cell[.]” Final Scope Ruling on the Antidumping and Countervailing Duty Orders on Crystalline Silicon Photovoltaic Cells from the People’s Republic of China: ET Solar Inc., June 15, 2021, Commerce barcode 4133803-01. Prior to the assessment of these Additional Duties, U.S. Customs and Border Protection (“CBP”) issued a Request for Information to Protestant asking for documentation to substantiate the product origin. However, as noted in CBP’s Notice of Action (dated January 16, 2020), Astronergy “failed to respond to the CF28 Document Request for Information issued on 08/03/2019 and a CF29 Proposed Rate Advancement issued 10/04/19[.]” As a result, CBP found that the solar panels were subject to ADD and CVD, along with “Section 201 trade remedies for solar panels and Section 301 duties for articles from China[.]” On March 2, 2020, Commerce noted to CBP in Message No. 0062401 (pertaining to case no. A-570-979) that “Commerce has not received a request for an administrative review of the antidumping duty order for the period and on the merchandise identified below except for the firm(s) listed in paragraph 3.” The identified merchandise was: Product: Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled into Modules Country: People's Republic of China Case number: A-570-979 Period: 12/1/2018 through 11/30/2019 Commerce further instructed CBP in this Message No. 0062401 to, inter alia, “liquidate all entries for all firms except those listed in paragraph 3 and assess antidumping duties on merchandise entered, or withdrawn from warehouse, for consumption at the cash deposit or bonding rate in effect on the date of entry.” While Chint Solar (Zhejiang) Co., Ltd. and Chint Solar (Hong Kong) Company Limited were identified in paragraph 3, Astronergy was not. On March 18, 2021, Commerce Message No. 1077409 (related to case no. C-570-980) instructed CBP to liquidate all entries and assess countervailing duties for subject entries of crystalline silicone photovoltaic cells whether or not assembled into modules entered for consumption between January 1, 2019, and December 31, 2019, that were produced by firms under the listed third-country case numbers except the firms listed in paragraph 3, which included “Astronergy Solar.” For the firms listed in paragraph 3, Commerce instructed CBP that entries of merchandise from those firms should not be liquidated until specific instructions are issued and to continue to suspend liquidation. Subsequently, on August 19, 2022, Commerce Message No. 2231401 (related to case no. C-570-980) instructed CBP to “assess countervailing duties on merchandise entered, or withdrawn from warehouse, for consumption during the period 01/01/2019 through 12/31/2019, at the cash deposit rate required at the time of entry,” and liquidate all entries for the identified firms, which included “Astronergy Solar.” This entry was ultimately liquidated with the rate advances on May 28, 2021. General Background Regarding Solar Products Protestant does not provide much background on solar products generally or their production process. However, as Protestant, in part, challenges the imposition of additional duties based on the solar safeguard measure under Section 201, we refer to the background information on solar products available in the report of U.S. International Trade Commission (“ITC” or “Commission”) from Inv. No. TA-201-75, Crystalline Silicon Photovoltaic Cells (Whether or not Partially or Fully Assembled into Other Products), USITC Pub. 4739 (Nov. 2017) that explains solar products generally and their production process. In particular, the Commission explains that: “CSPV [(Crystalline Silicon Photovoltaic)] cells use crystalline silicon to convert sunlight to electricity and are the basic elements of a module[.] They have a positive layer, a negative layer and a positive negative junction (p/n junction). Electricity is generated when sunlight strikes the CSPV cell;” “CSPV laminates consist of the CSPV cells that are connected, encapsulated in an ethyl vinyl acetate [ ] film, and covered with a glass front sheet and a back sheet;” and “CSPV modules typically consist of the laminate that is typically ‘framed’ in aluminum, and then attached to a junction box.” Inv. No. TA-201-75, USITC Pub. 4739, Volume II (Nov. 2017) (Final) at I-11 to I-12. Further, with respect to the manufacturing of such solar products, the Commission describes five principal manufacturing stages: “First, polysilicon is refined, then it is formed into ingots, which are sliced into wafers, converted to CSPV cells, and assembled into the finished product, modules[.]” Id. at I-18. More specifically, the Commission describes the main steps in the cell manufacturing process (from wafers) as follows: • Cleaning and texturing: First, the wafers are cleaned, then the surface of the wafer undergoes a chemical treatment that reduces the reflection of sunlight and increases light absorption[.] • Diffusion: In the next step, “phosphorus is diffused into a thin layer of the wafer surface. The molecular level impregnation occurs as the wafer surface is exposed to phosphorus gas at a high heat, a step that gives the surface a negative potential electrical orientation. The combination of that layer and the boron?doped layer below creates a positive?negative, or P/N, junction–a critical partition in the functioning of a PV cell.” • Edge isolation: A thin layer of silicon is then removed from the edge of the CSPV cell 

As an initial matter, we note that Astronergy timely filed this protest 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). CBP liquidated the entry at issue on May 28, 2021. Astronergy filed this protest on November 23, 2021. 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).Further, we note that the analysis and role CBP plays in the Section 201 and 301 trade remedy context is different from the ADD/CVD context. See e.g., ARP Materials, Inc. v. United States, 520 F. Supp. 3d 1341, 1360 (Ct. Int’l Trade, 2021) (“Unlike in [ ] Mitsubishi [v. United States, 44 F.3d 973 (Fed. Cir., 1994) where the Federal Circuit held that because the Commerce Department determined antidumping duty rates, Customs’ role in collecting those duties was ‘ministerial’ rather than a decision under section 1514(a)], Customs here performed more than a passive or ministerial function; in classifying Plaintiffs’ entries under HTSUS subheadings subject to Section 301 duties, it made substantive legal (interpreting the HTSUS subheadings) and factual (determining whether the entries fell within those subheadings) determinations that it had the authority to make. These determinations required Customs to exercise genuine interpretive or comparable judgments.”) (citation omitted) (internal quotation marks omitted). Thus, we will address each separately in the sections below.Whether the solar panels at issue are subject to the Section 201 safeguard measure or the Section 301 duties.Section 201“Section 201 of the Trade Act of 1974, codified at 19 U.S.C. § 2251, provides the President of the United States with the power to impose ‘safeguards’ (also referred to as ‘safeguard measures’)