Application for Further Review of Protest No. 460121129775; Antidumping Duties; Countervailing Duties; Solar Modules

HQ H332966 February 14, 2024 OT:RR:CTF:EPDR H332966 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: Matthew Gay, Import Specialist Re: Application for Further Review of Protest No. 460121129775; Antidumping Duties; Countervailing Duties; Solar Modules Dear Center Director: This letter is in response to the Application for Further Review (“AFR”) of Protest No. 460121129775, filed on November 3, 2021, which included Exhibits A to O,1 by HT Solar Enerji AS (“HT Solar” or “Protestant”) of Istanbul, Turkey. HT Solar argues “that the subject merchandise is manufactured in Turkey and not China, and therefore not subject to the payment of [antidumping and countervailing] duties.” HT Solar states that “Protest No. 460121129775 is the lead protest and other protests [i.e., Protest Nos. 460122130398 and 140123107208] have the same issues presented to it (as they all involve the same issue and merchandise at hand)[.]” HT Solar has asked that certain information submitted in connection with this AFR be treated as confidential. Inasmuch as this request conforms to the requirements of 19 C.F.R. § 177.2(b)(7), the request for confidentiality is approved. The information contained within double 1 HT Solar provided supplemental submissions on February 7, 2022; July 29, 2022, which included Exhibits A and B; June 28, 2023; December 7, 2023, which included Exhibits A to D; and January 11, 2024. brackets will not be released to the public and will be withheld from published versions of this response. FACTS: This AFR arises out of four entries of “solar module[s]” (as described on the respective commercial invoices) with entry dates of May 17, 2018; June 8, 2018; August 3, 2018; and August 16, 2018. The solar modules were entered as type “01” entries under subheadings 8541.40.60; 8541.40.60; or 8541.40.60, Harmonized Tariff Schedule of the United States (“HTSUS”). HT Solar was identified as the importer of record. U.S. Customs and Border Protection (“CBP”) found that HT Solar did not provide adequate information to establish that the solar cells used in the solar modules were made in a country other than the People’s Republic of China (“PRC” or “China”). Thus, the entries were rate advanced pursuant to the U.S. Department of Commerce’s (“Commerce”) antidumping and countervailing duty orders issued pursuant to case nos. A-489-988 and C-489-989, which respectively have the principal case nos. A-570-979 and C-570-980. The antidumping and countervailing duty orders issued in case nos. A-570-979 and C-570-980 were published by Commerce on December 7, 2012 and involved 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 FR 73018 (December 7, 2012) and Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled into Modules, from the People's Republic of China: Countervailing Duty Order, 77 FR 73017 (December 7, 2012). The entries were liquidated on May 7, 2021 as type “03” entries. HT Solar’s Protest Subsequently, this protest and AFR were filed on November 3, 2021. CBP denied the protest on January 3, 2021, but simultaneously forwarded the protest and request for AFR to CBP Headquarters (“HQ”). In the protest, HT Solar claims that “the subject merchandise was in fact manufactured in Turkey” and as such, Turkey is the country of origin of the merchandise. HT Solar states that it “is a manufacturer of solar cells and solar modules headquartered in Istanbul, Turkey” and “is a subsidiary of HT-SAAE, a Chinese state-owned enterprise.” HT Solar notes that the address of its manufacturing facility is: ?stanbul Endüstri Ve Ticaret Serbest Bölgesi Ayd?nl? S.B. Mah. 1.Sok. Desbas 7 Binas? No:1 - Tuzla, Istanbul, Turkey. HT Solar explains in its protest that “[h]ere, the solar cells/modules were manufactured at HT Solar’s manufacturing plant in Istanbul, Turkey.” (emphasis in the original). HT Solar states that it sourced the “wafers” from China but that the “doping” of the wafers occurred in Turkey. HT Solar details the manufacturing processes of the solar cells and solar modules, which HT Solar claims occurred at its manufacturing facility in Istanbul, Turkey, as outlined below. For the solar cells, HT Solar states that “[t]he cell manufacturing process included several steps, including (1) texturing, (2) diffusion, (3) PSG [(which stands for phosphosilicate glass)] removing, (4) PECVD [(which stands for plasma enhanced chemical vapour deposition)], and (5) screen printing.” In greater detail, HT Solar explains these steps as follows: Texturing: removes (a) the mechanical damage layer on the surface of the silicon wafer; and (b) surface oil and metal impurities; and forms an undulating suede surface to increase the absorption of sunlight by the silicon wafers and to improve the short- circuit electricity stream and photoelectric conversion efficiency of the battery. Diffusion: the silicon wafer used is P-type silicon and the purpose of diffusion is to diffuse phosphorous atoms into the silicon, forming a very thin layer of N-type silicon on the surface of the silicon wafer: in this step the p/n junction is formed. Edge Isolation and PSG Removing: during diffusion all surfaces of the silicon wafer will inevitably diffuse phosphorus and thus the unwanted diffusion around the edges of the cell need to be removed to electrically isolate the front and rear surfaces. PECVD: this uses microwave or radio frequency power to ionize the gas containing the film components (Si, N), locally forms plasma, and deposits the desired SixNy film on the substrate. Screen Printing: this ensures that the positive and negative electrodes of the battery and current collectors and other components can conduct electricity normally, thereby ensuring the conversion efficiency of the battery. HT Solar also notes in its supplemental submission dated February 7, 2022 that “[t]exturing and diffusion (collectively known as ‘doping’) are key value-added processes that occur entirely in Turkey.” To support its allegation that the solar cells were manufactured at HT Solar’s manufacturing plant in Istanbul, Turkey, HT Solar, provided in Exhibit B to the protest, inter alia, alleged “[r]eal-time, wide angle and close up photographs of the cell production machinery in process [and] [s]pecfically, identify[ing] where the texturing and diffusion process takes place and [ ] photographs of those machines.” HT Solar later confirmed in its December 7, 2023 supplemental submission that “the pictures of the factory in Exhibit B, the solar module factory in Tuzla, Istanbul, of the Protest are of the same factory that was filmed in the [[ ]] video provided in the Protest.” (emphasis added). The factory that was filmed in the [[ ]] video provided in the protest was HT Solar’s manufacturing facility located in Istanbul, Turkey. For the solar modules, HT Solar states that “[t]he module manufacturing process involves several steps, including[[ ]]” In support, HT Solar, provided in the protest, inter alia, a [[ ]] video (i.e., the one mentioned above) showing the solar module manufacturing process at its manufacturing facility in Istanbul, Turkey.2 2 This [[ ]] video did not show the cell manufacturing process, it only showed the module manufacturing process. As such, HT Solar argues that “the subject merchandise was ‘substantially manufactured’ at HT Solar’s Turkey factory” and the final manufactured solar cell and solar module “contained a new and different character and use that the raw material inputs [thus] the country of origin for the subject merchandise in the instant case is Turkey.” In addition to the pictures and [[ ]] video mentioned previously, as evidentiary support, HT Solar also generally provided the entry documentation of the four entries at issue in the protest, high level flowcharts of the cell manufacturing process and module manufacturing process, PowerPoints discussing in greater detail each of the cell and module manufacturing steps, a list of the equipment used in the manufacturing of the cells, a list of the raw materials and their country of origin(s), a country of origin certification and importer/exporter certificate from the Turkish government, a copy of the scope ruling request submitted to Commerce, and various “manufacturing process documents” that tie to the manufacture of similar goods and used to describe an exemplary production batch, but not the specific articles in the four entries at issue in the Protest. Documents related to the specific articles in the four entries at issue in the protest were later submitted as part of HT Solar’s December 7, 2023 submission. HT Solar’s Scope Ruling from Commerce On November 2, 2021, HT Solar also submitted a scope ruling request to Commerce. In its request,3 HT Solar stated that “[i]n this case, HT Solar is confident that its operations, and the nature of the materials that it is using in processing, are sufficient to convey to the solar modules produced by HT Solar in Turkey and solar cells produced by [[ ]], also produced in Turkey a country of origin for purposes of the solar cell and module order of Turkey.” Further, HT Solar notes in its request that “[t]he module manufacturing plant is located in Istanbul, Turkey” and “HT Solar’s manufacturing facility is located at ?stanbul Endüstri Ve Ticaret Serbest Bölgesi Ayd?nl? S.B. Mah. 1.Sok. Desbas 7 Binas? No:1 - Tuzla, Istanbul, Turkey.” With respect to the cell, HT Solar states that “HT Solar sources its solar cells from [[ ]].” (emphasis added). As part of its scope ruling request, HT Solar also provided a number of exhibits, including an Exhibit A, which purports to depict the cell production process and a [[ ]] link to a video that “captures the cell production process at [[ ]].” On June 15, 2022, Commerce issued a scope ruling to HT Solar in response to this request, which found “that HT Solar’s modules and cells, produced in the manner described [in the scope ruling], do not fall within the scope of the Orders” issued in case numbers A-570-010/C-570-011. In the scope ruling, Commerce described the production as follows: Record information indicates that the solar cells at issue are manufactured in Turkey by HT Solar’s unaffiliated supplier that incorporates raw materials, 3 A copy of this scope ruling request (the redacted version) was provided to us by HT Solar as Exhibit O to its protest. The unredacted version was later provided as part of the supplemental submission of January 11, 2024. including wafers, sourced from countries including Turkey, the Republic of Korea, China, the Socialist Republic of Vietnam (Vietnam), and Malaysia. This unaffiliated solar cell supplier processes these raw materials and solar wafers into solar cells by using processes that include texturing, diffusion, plasma enhanced chemical vapor disposition, and screen printing. With respect to HT Solar’s solar modules, HT Solar uses raw materials such as frames, solar glass, J-boxes, and various other materials to manufacture solar panels in its facilities in Turkey that will be used to incorporate the solar cells provided by its unaffiliated Turkish supplier. The establishment of the p/n junctions, which are necessary to convert solar energy into electrical currents, take place in Turkey. (footnotes omitted). Commerce further noted in the scope ruling that: In its scope request, HT Solar submitted a production flowchart and accompanying narrative describing the various processes, including chemical etching, gas diffusion, and metallic screen-printing that are used by its unaffiliated solar cell supplier in Turkey to process solar wafers (a raw silicon input for solar cells) and transform these solar wafers into photovoltaic solar cells, which are then assembled in Turkey by HT Solar into solar modules/panels. HT Solar also submitted pictures and videos of the products at issue, flowcharts and written definitions of the solar cell and solar module production processes, workshop production forms, commercial invoices, packing lists, a bill of lading, and a country-of- origin certificate stating that “Solar Cells Used in Modules are Made in Turkey.” (footnotes omitted). Thus, Commerce found that: Because the record information submitted by HT Solar indicates that the company’s solar panels are produced in Turkey using solar modules that are assembled in Turkey using Turkish solar cells, and because the Orders only cover photovoltaic panels/modules that are assembled in China, Commerce has determined that the solar products at issue (as described in HT Solar’s Scope Request) do not fall under the scope of the Orders. Only if the solar panels/modules had been assembled in China (from solar cells originating outside of China) would the Orders become relevant. The only involvement of China in this instance is the country of origin of certain raw materials (not cells) that are used to manufacture HT Solar’s solar panels in Turkey. Commerce Message Nos. 2208406 and 2208407 On July 17, 2002, CBP issued Message Nos. 2208406 and 2208407, respectively related to principal case nos. A-570-010 and C-570-011, which contained instructions from Commerce noting, inter alia, “[f]or all entries of HT Solar's solar cells and modules meeting the description of merchandise discussed in paragraph 2 above that are not within scope and remain unliquidated on or after [07/31/2014 for message no. 2208406; and 06/10/2014 for message no. 2208407], CBP shall terminate suspension and liquidate entries of products not within scope which were entered, or withdrawn from warehouse, for consumption.” Paragraph 2 provided, Commerce determined that HT Solar's solar cells and modules that are assembled in Turkey using solar cells that are manufactured in Turkey are outside the scope of the order because they are assembled in Turkey and therefore differ from subject merchandise, which is assembled in China from solar cells originating outside of China. Therefore, HT Solar's solar cells and modules that are assembled in Turkey using solar cells that are manufactured in Turkey are not within the scope of the countervailing duty order on certain crystalline silicon photovoltaic products from China. ISSUES: Whether the solar modules at issue are subject to antidumping duties (“ADD”) and countervailing duties (“CVD”). LAW AND ANALYSIS: As an initial matter, we note that this protest was timely filed. Pursuant to 19 U.S.C. § 1514(c)(3)(A), a party must file a protest within 180 days after the date of liquidation. CBP liquidated the entries at issue on May 7, 2021. HT Solar filed its protest on November 3, 2021, which is within the 180-day deadline. This protest also meets the criteria for further review because “the protest involves questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee, or by the Customs courts.” See 19 C.F.R. § 174.24(b). Specifically, the primary questions we will address are (A) the applicability of the HT Solar’s scope ruling from Commerce to the instant facts; and (B) whether HT Solar has come forward with evidence to overcome CBP’s presumption of correctness and establish a prima facie case to support HT Solar’s assertion that the wafers sourced from China did not have a p/n junction prior to arrival in Turkey where HT Solar alleges that the p/n junction was later added at its facility in Istanbul, Turkey. In addition, we also note that the factual determination by CBP in the assessment of the CVD and the ADD in this instance is protestable under 19 U.S.C. § 1514(a). See Xerox Corp. v. United States, 289 F.3d 792, 795 (Fed. Cir. 2002) (“Xerox persuasively argues that correcting such a ministerial, factual error of Customs is not the province of Commerce. Instead, an importer may file a protest with Customs. In cases such as this, where the scope of the antidumping duty order is unambiguous and undisputed, and the goods clearly do not fall within the scope of the order, misapplication of the order by Customs is properly the subject of a protest under 19 U.S.C. § 1514(a)(2).”). Specifically, the question of fact that is at issue here is whether the p/n junction was added to the wafers sourced from China in HT Solar’s facility in Istanbul, Turkey. The Applicability of HT Solar’s Scope Ruling From Commerce As noted above, the entries at issue were rate advanced pursuant to the Commerce’s ADD/CVD Orders issued in case nos. A-489-988 and C-489-989, which respectively have the principal case nos. A-570-979 and C-570-980. The scope ruling that HT Solar received from Commerce pertained to the ADD/CVD Orders issued in case nos. A-570-010 and C-570-011. However, CBP never found that the articles at issue were within the scope of the Orders issued in case nos. A-570-010 and C-570-011. In other words, it has always been undisputed that Commerce’s ADD/CVD Orders issued in case nos. A-570-010 and C-570-011 are not applicable to the articles at issue. Indeed, as noted, in these investigations: [E]xcluded from the scope of this investigation are any products covered by the existing antidumping and countervailing duty orders on crystalline silicon photovoltaic cells, whether or not assembled into modules, laminates and/or panels, from the PRC. 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 FR 73018 (December 7, 2012); Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the People's Republic of China: Countervailing Duty Order, 77 FR 73017 (December 7, 2012). See Certain Crystalline Silicon Photovoltaic Products From the People’s Republic of China: Final Determination of Sales at Less Than Fair Value, 79 FR 76972 (December 23, 2014); Countervailing Duty Investigation of Certain Crystalline Silicon Photovoltaic Products From the People’s Republic of China: Final Affirmative Countervailing Duty Determination, 79 FR 76963 (December 23, 2014). As a result, HT Solar’s scope ruling from Commerce related to the Orders issued in case nos. A-570-010 and C-570-011 has little applicability here because CBP did not assess ADD and CVD pursuant to these Orders. Moreover, the facts underlying the solar cell production process as articulated in HT Solar’s scope ruling request (and later relied on by Commerce in its scope ruling) are distinguishable from the facts underlying the solar cell production process at issue in this protest. Significantly, (1) HT Solar’s Commerce scope ruling request articulates that the solar cells are produced by an entity other than HT Solar, and at a manufacturing facility located at a different address (i.e., in [[ ]]) than HT Solar’s manufacturing facility in Istanbul Turkey; and (2) the scope ruling states that “the solar cells at issue are manufactured in Turkey by HT Solar’s unaffiliated supplier[.]” This is in contrast to HT Solar’s representations in the protest that (1) “the solar cells/modules were manufactured at HT Solar’s manufacturing plant in Istanbul, Turkey” (emphasis in the original); and (2) the pictures of the cell manufacturing factory provided as Exhibit B of the protest, which HT Solar confirmed in its December 7, 2023 supplemental submission, were of HT Solar’s manufacturing facility located in Istanbul, Turkey.4 4 HT Solar notes for the first time in its December 7, 2023 supplemental submission that “HT Solar uses a different factory in [[ ]] for cell production. Cells are used in solar module production. HT Solar provides this vi