OT:RR:CTF:EPDR H322865 CC
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,[1] 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").[2] 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. 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 within the scope of an antidumping or countervailing duty order. 19 U.S.C. 1500(c). That necessarily entails evaluating both the product and the order." Sunpreme, Inc. v. United States, 946 F.3d 1300, 1320 (Fed. Cir. 2020).
As discussed above, the Orders at issue cover crystalline silicon photovoltaic cells from China. Commerce regulations recognize that "[q]uestions sometimes arise as to whether a particular product is covered by the scope of an antidumping or countervailing duty order" and provide that Commerce "will initiate and conduct a scope inquiry and issue a scope ruling to determine whether or not a product is covered by the scope of an order at the request of an interested party" or on the agency's initiative. 19 C.F.R. 351.225(a). The determinations of what constitutes subject merchandise and whether it falls under a particular order rest squarely with Commerce.
In the case of CSPV cells, Commerce has issued several scope rulings. In a scope ruling addressing crystalline silicon photovoltaic cells imported by ET Solar Inc., Commerce asserted that the "scope language itself makes the p/n junction the defining characteristic of a 'solar cell' within the meaning of the Orders . . . ." Memorandum in "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.," at 12 (June 15, 2021). Further, Commerce determined that the "critical steps performed in China . . . include the formation of the p/n junction" and, accordingly, the cells fell within the scope of the order as CSPV cells from China despite further manufacturing processes undertaken in Vietnam. Id.
In a separate scope ruling addressing CSPV cells imported from Vietnam, Commerce determined that the importer purchased unfinished solar wafers from a Chinese producer and the imported merchandise did not fall within the scope because the p/n injunction was not created in the wafer until the manufacturing process that took place in Vietnam. Memorandum in "Antidumping and Countervailing Duty Orders on Crystalline Silicon Photovoltaic Cells from the People's Republic of China: SunSpark Technology Inc. Scope Ruling," at 6 (October 23, 2020). Since the raw material from China did not include the p/n junction, Commerce determined that the imported merchandise did not fall within the meaning of the scope of the Orders. Id.
Accordingly, the key factual question for CBP with respect to Enel's seven entries of CSPV cells is whether the "p/n junction" specified in Commerce's C-570-980 and A-570-979 Orders was manufactured in Italy and, thus, rendered the imported merchandise outside the Orders because the CSPV cells were not produced in China. Neither Enel nor the CEE disputes, as a factual matter, that the imported merchandise in the seven entries constitutes CSPV cells as described by the Orders. The question arises, however, as to whether the imported merchandise falls under the Orders as CSPV cells from China.
For Enel's single entry of thin film modules, the factual question is whether the entered merchandise is excluded from the Orders by virtue of being "thin film photovoltaic products produced from amorphous silicon (a-Si), cadmium telluride (CdTe), or copper indium gallium selenide (CIGS)" ("thin film exclusion"). C-570-980 Order, 77 Fed. Reg. at 73,017; A-570-979 Order, 77 Fed. Reg. at 73,019; Message No. 2346303 at 2; and Message 2356306 at 2. In the alternative, Enel argues that even if their thin film modules do not fall within the thin film exclusion and are considered CSPV cells like the other seven entries, they are also outside of Commerce's Orders because p/n junctions were added in Italy. We will address Enel's CSPV cells and thin film solar modules separately in the sections below.
1. CSPV Cells
As described in the original ADD and CVD petition that led to Commerce's Final Determination, a p/n junction in a CSPV cell is shorthand for a positive-negative junction, an "interface of a p-type semiconductor and an n-type semiconductor that is usually formed by dopant additions to create an intrinsic or extrinsic charge state." Petition for the Imposition of Antidumping and Countervailing Duties: Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled into Modules, from the People's Republic of China (Oct. 19, 2011), at 7-8. The p/n junction allows positive and negative charge carriers to be released into a solar cell through light radiation (i.e., the photovoltaic effect), which causes direct electrical current to flow, thereby converting sunlight into electricity. Id. According to the United States International Trade Commission ("USITC"), the p/n junction is created after a crystalline silicon wafer has been cleaned and textured when
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.
Crystalline Silicon Photovoltaic Cells (Whether or not Partially or Fully Assembled into Other Products), Inv. No. TA-201-75 (Final), USITC Pub. 4739, Vol. II, at I-22 (citations omitted).
Our review of the information submitted by Enel in their request for internal advice and in response to CBP's CF28s and CF29s substantiates their claim that their seven entries of CSPV cells are outside the scope of Commerce's C-570-980 and A-570-979 Orders because p/n junctions were added in Italy to bare "n-type" silicon wafers from the PRC. The information provided by Enel to CBP includes commercial documents (purchase orders, contracts, invoices, etc.) reflecting Enel's commercial interactions with its Chinese supplier, product brochures, written descriptions of the solar module manufacturing processes at Enel's 3SUN factory in Catania, Italy, as well as maps, photographs, graphics, and flowcharts depicting those processes. Most importantly, Enel has documented how their 3SUN factory in Italy uses plasma enhanced chemical vapor deposition ("PECVD"), a newer diffusion process that does not require high heat, to create the p/n junctions in their CSPV cells.
Enel's submission is consistent with information reviewed by Commerce in several solar cell scope rulings where the creation of the p/n junction was at issue. As discussed above, in those scope rulings Commerce applied the standard of review provided by 19 C.F.R. 351.225(k)(1) and concluded that the country where a CSPV cell has its p/n junction created determines whether it falls within the scope of Commerce's CVD and ADD orders as CSPV cells from China. See Memoranda in "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.," at 9; "Antidumping and Countervailing Duty Orders on Crystalline Silicon Photovoltaic Cells from the People's Republic of China, and Certain Crystalline Silicon Photovoltaic Products from Taiwan: The Solaria Corporation Scope Ruling," at 10-11 (April 8, 2021); and "Antidumping and Countervailing Duty Orders on Crystalline Silicon Photovoltaic Cells from the People's Republic of China: SunSpark Technology Inc. Scope Ruling," at 5-6.
In reviewing the factual information provided by Enel, we determine that the imported merchandise is not described in the Orders because Enel presented documentation that their seven entries of CSPV cells had p/n junctions created at the 3SUN factory in Italy. Accordingly, the imports are not subject merchandise within the meaning of Commerce's C-570-980 and A-570-979 Orders because they are not CSPV cells from China.
2. Thin Film Solar Modules
Based on our review of the information submitted by Enel in their request for internal advice and in response to CBP's CF28s and CF29s, it is not clear whether Enel's entry of thin film modules fall within the thin film exclusion of Commerce's C-570-980 and A-570-979 Orders, i.e., they are "thin film photovoltaic products produced from amorphous silicon (a-Si), cadmium telluride (CdTe), or copper indium gallium selenide (CIGS)." Nevertheless, we do not need to reach that determination to decide that the entry at issue does not fall within the Orders because, similar to the analysis above, the p/n junction was manufactured in Italy.
Enel acknowledges that the 3SUN factory ceased production of thin film solar panels in late 2017, which prevents them from presenting recent and extensive documentation of the manufacturing process as they have with their CSPV cells, and they argue in their request that their thin film products are "prima facie excluded" from the scope of the orders because they are "made from amorphous silicon." Request for Internal Advice, at 19. However, in one scope ruling addressing the thin film exclusion, Commerce has explicitly cautioned that "[a]utomatically excluding any and all products containing amorphous silicon, . . . as well as any and all products containing cadmium telluride or copper indium gallium, without any further analysis, would indubitably create an easy and inexpensive means of circumventing the scope of the Orders." Memorandum, "Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled into Modules, from the People's Republic of China: Final Ruling in the Triex Photovoltaic Cell Scope Inquiry," at 33 (June 17, 2016).
For a basic definition of products falling within the thin film exclusion, the ITC observed that "[t]hin film cells and modules use a several micron thick layer of either amorphous silicon (a-Si), cadmium telluride (CdTe), copper indium (gallium) (di)selenide (CIS or CIGS), or a combination of a-Si and micro-crystalline silicon (?c-Si) to convert sunlight to electricity . . . . CdTe modules are typically on glass while a-Si and CIGS can be on glass or a flexible substrate such as stainless steel or plastic . . . ." Crystalline Silicon Photovoltaic Cells and Modules From China, Inv. Nos. 701-TA-481 and 731-TA-1190 (Final), USITC Pub. 4360, at I-20 (Nov. 2012) (emphasis added); see also Certain Crystalline Silicon Photovoltaic Products from China and Taiwan, Inv. Nos. 701-TA-511 and 731-TA-1246-1247 (Final), USITC Pub. 4519, at I-32 n.86 (Feb. 2015).
In their request, Enel provided an illustrated description of an eight-step manufacturing process and two photos of the legacy production line. Request for Internal Advice, at 4-7 and Attachment G. Enel describes the second production step ("Thin Film Silicon Deposition") as using a PECVD process "in which thin layers of amorphous silicon (a-Si) and microcrystalline silicon (?-Si) are deposited" onto coated glass and doping gasses are added to form a "p/i/n junction" between those layers and creating the solar cells. Id. at 5 (emphasis added).
Based on these descriptions, Enel's thin film modules may conform with the ITC's definition of products falling within the thin film exclusion. They also appear to have an inert "non-functional substrate (e.g., glass or some other material that does not act as a semi-conductor)," unlike the hybrid CSPV/thin film products at issue in scope rulings for Triex and Sunpreme, where Commerce determined that modules composed of layers of amorphous silicon thin films deposited on an active doped crystalline silicon wafer substrates did not qualify for the thin film exclusion. See Memoranda in "Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled into Modules, from the People's Republic of China: Final Ruling in the Triex Photovoltaic Cell Scope Inquiry," at 10-14; "Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled into Modules, from the People's Republic of China: Final Ruling in the Sunpreme Scope Inquiry," at 13-14 (July 29, 2016). Commerce has acknowledged, however, that the ITC's report "does not contemplate all possible means of production" of either thin film products or CSPV cells and "provides little guidance as to the Department's analysis of the thin film exclusion . . . ." Memorandum in "Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled into Modules, from the People's Republic of China: Final Ruling in the Triex Photovoltaic Cell Scope Inquiry," at 13.
In light of the fact that Enel cannot provide relevant documentation because the thin film module production process is no longer in operation, we determine that it is not clear whether the entry at issue falls within the thin film exclusion of the Orders. The documentation provided by Enel, however, does confirm that the p/i/n junctions of the modules were manufactured in Italy. In its Triex scope ruling, Commerce stated that "the 'i' in a p/i/n junction refers to the layer of intrinsic silicon over which the electric field is extended" and found "that the term 'p/n junction formed by any means,' as used in the scope of the Orders, can be interpreted as an umbrella term that covers p/n, p/i/n, p/i/o/n, and even p/i/o/i/n junctions." Memorandum, "Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled into Modules, from the People's Republic of China: Final Ruling in the Triex Photovoltaic Cell Scope Inquiry," at 6, 32. Accordingly, Commerce held that a p/i/n junction "is simply a type of p/n junction." Id. at 17.
In this case, we conclude that even if Commerce were to determine that Enel's thin film modules constituted CSPV cells, they would not fall under Commerce's C-570-980 and A-570-979 Orders because their p/i/n junctions were manufactured in Italy.
HOLDING:
Based on the above discussion, CBP did not properly rate advance antidumping and countervailing duties on the eight entries at issue because the solar cells were outside the scope of Commerce's C-570-980 and A-570-979 Orders. Accordingly, the entries should be liquidated without ADDs or CVDs.
You are to mail this decision to the internal advice requester no later than 60 days from the date of the decision. At that time, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel, and to the public on the Customs Rulings Online Search System (CROSS) at https://rulings.cbp.gov/ which can be found on the U.S. Customs and Border Protection website at http://www.cbp.gov and other methods of public distribution.
Sincerely,
Signed March 1, 2024
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division
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[1] As described in the original ADD and CVD petition that led to Commerce's Final Determination, a p/n junction in a CSPV cell is shorthand for a positive-negative junction, an "interface of a p-type semiconductor and an n-type semiconductor that is usually formed by dopant additions to create an intrinsic or extrinsic charge state." Petition for the Imposition of Antidumping and Countervailing Duties: Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled into Modules, from the People's Republic of China (October 19, 2011), at 7-8.
[2] Enel's internal advice request and the documentation submitted with the entries at issue, such as the commercial invoices and packing lists, describe the imported merchandise as "modules." Modules are assembled from multiple solar cells. As the U.S. International Trade Commission ("ITC")[3]
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