PRO 4
OT:RR:CTF:ER
H289831 TP
Port Director
U.S. Customs and Border Protection
555 Battery Street
San Francisco, CA 94111
RE: Application for Further Review of Protest No. 3303-16-100005 concerning crystalline silicon photovoltaic cells from the People's Republic of China under Antidumping Order A-570-979
Dear Port Director:
This is in response to the application for further review ("AFR") of Protest 3303-16-100005, filed by Lexon Insurance Company ("Lexon"), on September 29, 2016. We are returning the protest to you because further review is not warranted. The issue raised by Lexon is not a protestable decision under 19 U.S.C. 1514.
The above-referenced protest and AFR involves the liquidation of entry xxx-xxx6376-0, filed on September 29, 2016, for a shipment of crystalline silicon photovoltaic cells from the People's Republic of China ("PRC") that was manufactured by Jiangsu Sunlink PV Technology Co. Ltd., ("Jiangsu"). Crystalline silicon photovoltaic cells from PRC are subject to Antidumping Duty Order A-570-979. 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). On August 7, 2015 Commerce issued liquidation instructions for U.S. Customs and Border Protection ("CBP") to liquidate the entry at issue. See Administrative Message No. 5219317 (Aug. 7, 2015). Pursuant to the liquidation instructions, CBP assessed antidumping duties for the entry at issue by applying the PRC-wide rate as instructed by Commerce.
In its protest, Lexon asserts that pursuant to 19 C.F.R. 351.212(d), which applies to provisional measures deposit cap, the entry at issue should have been liquidated at the rate of 13.94% ad valorem because the entry was entered on June 19, 2012 before Commerce published its final determination, and the provisional rate of 13.94% was less than the final duties. However, as explained in 19 C.F.R. 351.212(b)(1), Commerce may calculate an assessment rate for each importer of subject merchandise covered by an administrative review. Here, Commerce revoked Jiangsu's importer specific assessment rate assigned in the Notice of Amended Final Determination and instructed CBP to apply the PRC-wide rate of 238.95% to Jiangsu's entries in its liquidation instructions. See Administrative Message No. 5202302 (July 21, 2015) and Administrative Message No. 5219317 (Aug. 7, 2015). On January 8, 2016, CBP liquidated the subject entry at the PRC-wide rate of 238.95%. Therefore, even if the rates were different and the provisional duties were less than the final duties, pursuant to 19 C.F.R. 351.212(d), CBP is instructed to disregard the difference. Here, CBP simply followed instructions from Commerce when it applied the PRC-wide rate to the entry at issue.
While both CBP and Commerce play a part in the enforcement of the antidumping laws, their roles are separate and distinct. It is well settled that when assessing and collecting antidumping duties, CBP merely follows Commerce instructions. See Mitsubishi Electronics America, Inc. v. United States, 44 F.3d 973, 977 (Fed. Cir. 1994) (holding that "CBP has a merely ministerial role in liquidating antidumping duties"). CBP simply takes the dumping margin determined by Commerce and applies it to the entries as directed by Commerce instructions. Courts have consistently held that CBP's role in the antidumping process is simply to follow Commerce's instructions in collecting deposits of estimated duties and in assessing antidumping duties, together with interest, at the time of liquidation. See, e.g., Fujitsu Ten Corporation of America v. United States, 957 F. Supp. 245, 249 (Ct. Int'l Trade 1997) (holding that Fujitsu's protest of antidumping duties fell "outside the exclusive statutory categories of protestable matters" even though Commerce had determined that its merchandise was not subject to the antidumping duty order); and American Hi-Fi International, Inc. v. United States, 19 C.I.T. 1340, 1342 (1995) (holding that Customs assessment of antidumping duties is not protestable because "Commerce, not Customs, calculates and determines antidumping duty rates . . . Commerce investigates allegations of dumping, determines whether there are sales at less than fair value, and if it so finds, issues an antidumping duty order. It then directs Customs to collect the antidumping duties and any interest thereon.").
Based upon CBP's obligation to simply follow Commerce's instructions when administering the antidumping statute, the liquidation of entries and assessment of antidumping duties in accordance with Commerce's instructions is generally not protestable. As Commerce's determinations are not protestable under 19 U.S.C. 1514, Lexon's claim that CBP should have applied an individual rate of 13.94 percent ad valorem instead of the PRC-wide rate is not a protestable decision because CBP applied the proper rate as instructed by Commerce. See Administrative Message No. 5219317 (Aug. 07, 2015).
Because there is no CBP decision that is protestable under 19 U.S.C. 1514, the terms of further review under 19 C.F.R. 174.24 and 174.26 are not satisfied. The protest is returned to you for final disposition of this matter. If we can be of any further assistance in this matter, please contact the undersigned or Tebsy Paul at (202) 325-0195.
Sincerely,
Gail G. Kan, Branch Chief
Entry Process and Duty Refunds Branch