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 their protest should be suspended pending resolution of their FOIA request for liquidation worksheets and their having an opportunity to review the documentation. CBP does not have statutory or regulatory authority to suspend a protest pending a FOIA request or appeal. Generally, 19 U.S.C. § 1515 provides the statutory authority for CBP to review protests filed under 19 U.S.C. § 1514, but it does not provide any authority to stay or suspend a protest pending a FOIA request or appeal. Likewise, CBP protest regulations in Part 174 of Title 19 of the C.F.R. do not provide CBP the authority to suspend action on a protest pending a FOIA request. See 19 C.F.R. §§ 174.0–174.32. Even with respect to rulings, CBP’s regulatory authority only provides that CBP will not issue a ruling when there is pending litigation before the CIT or U.S. Court of Appeals for the Federal Circuit. 19 C.F.R. § 177.7(b).
Accordingly, Tektrum’s request to suspend action on this protest pending its FOIA request must be denied, because, as we stated in HQ 966932, dated March 10, 2004, “there is no provision under which CBP has the authority to ‘stay’ or suspend action on a protest pending the receipt of a response to a request under the Freedom of Information Act (‘FOIA’).” Therefore, CBP lacks the authority to suspend action on Tektrum’s protest pending their FOIA request.
Whether CBP properly reliquidated the entries.
In the Memorandum filed by Tektrum to support their protest, they argue that the subject entries “were not properly reliquidated following deemed liquidation, and further that the calculation of additional duties may be inaccurate.” There is no dispute that the subject entries were deemed liquidated. Under 19 U.S.C. § 1504(d), once a suspension of liquidation required by statute or court order is removed, entries subject to the suspension must be liquidated within six months after CBP receives notice of the lifting of suspension, unless such entries are properly extended. If an entry is not liquidated within the six-month period, and CBP does not extend the liquidation, then the entry is deemed liquidated at the rate of duty, value, quantity and amount of duty asserted at the time of entry by the importer of record. See 19 U.S.C. § 1504(d). In addition, relevant case law has established that “publication of the final results [of Commerce’s administrative review in an AD or CVD case] in the Federal Register constitutes notice to Customs within the meaning of section 1504(d).” Int’l Trading Co. v. United States, 281 F.3d 1268, 1275 (Fed. Cir. 2002).
In this case, as described in the facts, CBP received notice of the lifting of the suspension regarding Tektrum’s entries when Commerce published notice of its Partial Rescission of Countervailing Duty Administrative Review in the Federal Register on January 8, 2016 (81 Fed. Reg. 908, 909) and later received specific instructions from Commerce in Message No. 6032314 on February 1, 2016. Because Tektrum’s entries were among those whose liquidation was still suspended by Message No. 5051320 for Case No. C-570-980, CBP did not liquidate them pursuant when it received Message 5219317 in August 2015. Entry summary records in CBP’s Automated Commercial Environment (“ACE”) system show that the subject entries were deemed liquidated on August 12, 2016, which is incorrect under 19 U.S.C. § 1504(d) as interpreted by Int’l Trading because it appears to be derived from six months after CBP received Commerce’s instructions on February 1, 2016, not six months after the publication of Commerce’s notice on January 8, 2016. The correct date is that the subject entries deemed liquidated on July 8, 2016, as calculated by Tektrum, but Tektrum accepts the underlying fact that the subject entries were deemed liquidated by operation of law in accordance with 19 U.S.C. § 1504(d).
However, although CBP’s ACE records show that subject entries reliquidated on September 2, 2016, and Tektrum acknowledges receiving notice of reliquidation, Tektrum asserts that the liquidations “do not appear to have been structured as ‘reliquidation’ of the deemed liquidated entries” and that “[n]otice of liquidation of the protested entries received by Tektrum . . . does not identify the liquidation as a reliquidation of already liquidated entries.” Section 1501 of Title 19 U.S.C. provides CBP with the specific authority to voluntarily reliquidate “any liquidation made in accordance with [19 U.S.C. §§ 1500 or 1504] or any reliquidation thereof made in accordance with this section, . . . notwithstanding the filing of a protest, within ninety days from the date of the original liquidation. Notice of such reliquidation shall be given or transmitted in the manner prescribed with respect to original liquidations under [19 U.S.C. § 1500(e)].” See also HQ H215035 (April 18, 2014). In this case, information recorded in ACE reflects that CBP reliquidated the subject entries on September 2, 2016, well within 90 days of the original deemed liquidations as prescribed by 19 U.SC. § 1504, using the correct July 8, 2016 date calculated by Tektrum.
Despite CBP’s compliance with 19 U.SC. § 1504, Tektrum argues that the reliquidation of the subject entries was not “structured” as such because the notices of liquidation did not identify the liquidations as a reliquidation. This argument has no basis in the law as CBP is not required to identify a reliquidation in a liquidation notice. As noted above, 19 U.SC. § 1504 requires that CBP provide notice of voluntary reliquidations “in the manner prescribed” by 19 U.S.C. § 1500(e). That subsection provides that “[t]he appropriate customs officer shall, under the rules and regulations prescribed by the Secretary . . . (e) give notice of such liquidation to the importer . . . in such a form and manner as the Secretary shall prescribe in such regulations.” 19 U.S.C. § 1500(e).
At the time of the liquidation of Tektrum’s entries, 19 C.F.R. § 159.9 mandated that “[n]otice of liquidation of formal entries shall be made on a bulletin notice of liquidation, Customs Form 4333 or 4335 . . .” The regulation further provided that the “bulletin notice of liquidation shall be posted for the information of importers in a conspicuous place in the customshouse at the port of entry . . . .” 19 C.F.R. § 159.9(b) (2016). The regulation also added that “Customs will endeavor to provide importers or their agents with Customs Form 4333-A, ‘Courtesy Notice,’ for entries . . . scheduled to be liquidated . . . .” Id.
Tektrum does not argue that CBP did not properly post notice of liquidation at the customs house, nor that it did not receive a mailed, electronic, or courtesy notice of the liquidation, only that the notice did not identify the liquidations as reliquidations. Since there is no legal requirement for CBP to identify a reliquidation in a liquidation notice, the record can only support a conclusion that CBP properly reliquidated the subject entries under 19 U.SC. § 1501 and provided adequate notice of those reliquidations to Tektrum as required by 19 C.F.R. § 159.9.
Whether CBP applied the correct AD rate when it reliquidated the subject entries.
In their Memorandum, Tektrum also argues that “the protested entries were entitled to liquidation pursuant to the final duty rate calculated for case number A-570-979-010, and that Tektrum is entitled to a refund of cash deposits for the protested entries. Tektrum asserts that “[a]t the time of entry, Tektrum and its broker consulted with CBP regarding proper application of the case numbers, and were informed that case number A-570-979-010 applied to merchandise manufactured by [Canadian Solar (Changshu)], as well as merchandise exported by Canadian Solar International Limited. On the basis of that advice, Tektrum imported the subject merchandise, which was manufactured by [Canadian Solar (Changshu)], under case number A-570-979-010, and paid the appropriate cash deposits. The subject entries were released by CBP with no issues regarding the ADD case number.”
Aside from the fact that Tektrum provides no information to substantiate its broker’s alleged “consultation” with CBP, this argument fails because even if CBP had provided Tektrum with incorrect information, 19 U.S.C. § 1484 placed the burden on Tektrum, as the importer of record, to use reasonable care. Tektrum was obliged to use reasonable care to make entry by filing such information as was necessary to enable CBP to determine whether merchandise may be released from CBP custody, and using reasonable care, complete the entry by submitting with CBP the declared value, classification and rate of duty and such other documentation or information as is necessary to enable CBP to properly assess duties (including AD/CVD), collect accurate statistics, and determine whether any other applicable requirement of law is met. 19 U.S.C. § 1484; see also 19 U.S.C. § 1485, 19 CFR Parts 141 and 142. The fact that CBP may have released Tektrum’s entries at the incorrect AD cash deposit rate does not render that rate correct.
Tektrum also claims that they “correctly utilized case number A-570-979-010 for the protested entries at the time of entry.” In their description of the facts in their Memorandum, Tektrum incorrectly described Case No. A-570-979-010 as having “established a 13.94% cash deposit rate for merchandise that was either exported by [Canadian Solar International] or manufactured by [Canadian Solar (Changshu)].” To the contrary, when Tektrum filed its entries in June and November 2013, both the Commerce AD order for A-570-979 published on December 7, 2012 (77 Fed. Reg. 73,018, 73,020) and its instructions to CBP in Message No. 2356306 issued on December 21, 2012, clearly provided that only a specific exporter/producer combination was entitled to a special rate under A-570-979-010: Canadian Solar International/Canadian Solar (Changshu). The exporter/producer combination for Tektrum’s entries, Resun Solar/Canadian Solar (Changshu), did not qualify for any of the special rates and thus Tektrum’s entries fell under the all others PRC-wide rate.
Finally, Tektrum “respectfully submits that if an entry is entitled to a particular case number at entry, Commerce and CBP cannot later change the criteria for use of that case number.” In addition to mischaracterizing the facts, which show that Tektrum was not entitled to entering its merchandise under Case No. A-570-979-010, it also reflects a lack of understanding of the AD and CVD laws. While both CBP and Commerce play a part in the enforcement of the AD laws, Congress gave them separate and distinct roles. Pursuant to 19 U.S.C. §§ 1673-1673e and Commerce regulations, Commerce calculates and determines the AD rate and then directs CBP to collect the estimated duties. See 19 U.S.C. § 1673e(a)(1); 19 C.F.R. § 351.12(b)(1). Under this broad authority, Commerce can certainly change the criteria applied in any AD case number it has assigned prior to making its final determination. In contrast to Commerce’s primary role in enforcing the AD laws, “CBP’s role in assessing antidumping duties is ministerial. CBP only liquidates entries pursuant to Commerce’s instructions.” HQ H097501 (July 14, 2014). See Mitsubishi Elecs. Am., Inc. v. United States, 44 F.3d 973, 976-77 (Fed. Cir. 1994) (“Customs has a merely ministerial role in liquidating antidumping duties under 19 U.S.C. § 1514(a)(5).”). CBP executes its ministerial role in the collection of AD/CVD duties by following Commerce’s instructions to compute and collect duties by applying rates set by Commerce. Consequently, the AD laws do not provide CBP with any role in evaluating or altering the criteria used by Commerce for a particular case number. “[CBP] merely follows Commerce's instructions in assessing and collecting duties. [CBP] does not determine the ‘rate and amount’ of antidumping duties under 19 U.S.C. § 1514(a)(2).” Mitsubishi, 44 F.3d at 977.
In conclusion, we find that CBP properly reliquidated Tektrum’s entries of June 13 and November 20, 2013, on September 2, 2016, and fulfilled its ministerial role by applying the correct AD rate in accordance with Commerce instructions.
HOLDING
Based on the above discussion, CBP properly reliquidated the entries and applied the correct AD rate in accordance with Commerce’s instructions. Accordingly, Protest 2704-16-101531 should be DENIED.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the Protestant no later than 60 days from the date of this letter. Sixty days from the date of the decision, the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Craig T. Clark, Director
Commercial and Trade Facilitation Division