Countertop Importer Says US Illegitimately Cited Extra-Record Information
In response to a U.S. opposition to its motion for judgment that included an accusation that it had fabricated a lab test (see 2410300052) -- after it itself claimed CBP had put the wrong test on the record (see 2406240048) -- an importer said Nov. 23 that DOJ had illegally “cited to matters from outside the record” (Vanguard Trading Co. v. U.S., CIT # 23-00253).
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This information, a scope ruling, had initially been provided by importer Vanguard Trading Co. in the administrative proceeding and rejected, Vanguard attorney David Craven claimed.
Vanguard brought its case to the Court of International Trade challenging an Enforce and Protect Act ruling that its mineral-based “FriTech” countertops fell under antidumping and countervailing duty orders on Chinese quartz surface products (see 2312050025). In its motion for judgment, it said that there was a legitimate classification question as to the countertops and that the issue should have been left to the Commerce Department, not CBP, to resolve.
Vanguard said it requested a scope ruling from the department and claimed CBP refused to put any information on the record about it.
That scope ruling, which Vanguard received “months before [it] filed its opening brief,” found that the FriTech countertops were subject to the AD/CVD orders, the U.S. said in its response. Vanguard hadn’t sought judicial review of the ruling, making it final, it said.
“[T]he attempt to place this on record is contrary to law, and critically, reverses the decisions made by CBP in the underlying administrative matter where CBP refused to allow plaintiff to place the scope ruling process on record and refused to allow plaintiff to make argument on this matter,” Vanguard said Nov. 23.
Because the U.S. had “found it necessary to cite to ‘extra-record information,’” it was “effectively conceding the record is not adequate to support the administrative action,” the importer said.
Saying it had been prevented from citing the scope ruling in earlier filings due to the ruling’s absence from the record, Vanguard took the chance to discuss it in its response.
The ruling stated that “Commerce finds that the lab reports on record are inconclusive regarding whether silica is the primary input by weight,” and that the department then moved on to examine a patent, it said.
“Such language confirms that the product which is made of materials other than chief weight Silica are outside the scope of the order and also confirms plaintiff’s surmise that had this matter been properly sent by CBP during the EAPA process to the Department, the fact that the slab at issue was not quartz slab within the scope of the order would have ultimately been found,” it said.
It explained that the reason the scope ruling itself had gone the other way was because “the lab tests submitted with the particular product were unclear.” Commerce moved on to the patent “notwithstanding that the formulation of the product in the patent would be adjusted, when the lab test was not conclusive,” it said.
“In this matter, we have different and more conclusive, lab tests,” it claimed.