US Claims Importer's Lab Test for EAPA Case Tested Different Product
Responding to a June 20 motion for judgment by an importer of mineral-based countertops, the U.S. said Oct. 28 that the importer’s products were covered by antidumping and countervailing duties on quartz surface products from China that the importer was allegedly attempting to evade (Vanguard Trading Co. v. U.S., CIT # 23-00253).
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A lab test the importer provided was "misleading" and "appear[ed] to be different" than the one being investigated, it said.
CBP launched an Enforce and Protect Act investigation on importer Vanguard Trading Co.’s mineral-based “FriTech” countertops and found, after lab testing, that its products fell within the scope of AD/CVD duties on quartz countertops (see 2406240048). Vanguard made two main arguments: first, that the tests CBP placed on the record came from an unrelated proceeding and, second, that the agency shouldn’t even have initiated the evasion investigation in the first place without asking the Commerce Department for a scope ruling.
But, regarding the latter point, “what Vanguard fails to mention is that on January 25, 2024, in response to Vanguard’s own scope request and months before Vanguard filed its opening brief, Commerce issued a final scope ruling that determined that Vanguard’s FriTech countertop surface product is within the scope of the AD/CVD orders,” the government said
It said that because Vanguard didn’t seek judicial review of this scope ruling, the ruling is final.
The record also contains “substantial evidence of evasion,” the U.S. said. Vanguard made “material false statements and material omissions” by shipping its products as type 01, not type 03, entries, it said.
The orders cover quartz countertops that are predominantly silica and include a resin binder, it noted. Vanguard argues that its countertops aren’t made up of mainly silica -- but the patents that describe FriTech indicate they do, “even taking the most conservative approach with respect to silica content,” it said.
Vanguard claimed that the patents were meaningless because they were “theoretical,” pointing instead to a lab test it gave CBP “purporting to demonstrate that the imported merchandise is not predominantly silica.”
But the lab test was not reliable, it said, coming only after “repeated refusals on the part of Vanguard and its suppliers” to cooperate with the EAPA investigation. And the product tested, which contained only 30% silica, “appear[ed] to be different from the product subject to this EAPA investigation” and didn’t “match the product content listed in the patent descriptions.”
So the importer “can point to no evidence in the record that these patents ... did not properly describe the merchandise’s formulation,” the government said.
The government also defended the lab tests CBP placed on the record, saying that the agency hadn’t actually used them to reach its evasion determination.