Commerce Flips Position, Finds Composite Tile Not Covered by AD/CVD on Ceramic Tile
After a second remand by the Court of International Trade (see 2503110034), the Commerce Department said it analyzed five additional (k)(2) factors, as ordered, and as a result determined that exporter Elysium Tiles’ composite tiles weren't actually covered by antidumping duty and countervailing duty orders on ceramic tiles from China (Elysium Tiles v. United States, CIT # 23-00041).
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Elysium initially brought its challenge to the trade court arguing that its marble-topped tiles weren’t covered by the AD/CVD orders on ceramic tile; it claimed that those marble tops were more than merely “decorative” (see 2309060036). CIT Judge Jane Restani found that the parties were all too focused on whether or not the marble was decorative, ordering Commerce instead to consider whether the inclusion of the marble made production intensive enough to be more than minor processing. She also told it to consider all five (k)(2) factors in its scope decision.
After considering the (k)(2) factors, Commerce reversed course in its newest ruling.
First, it said that Elysium’s composite tile does share some physical characteristics with the ceramic tile described in the AD/CVD orders, but that its other physical characteristics are unique -- especially its marble layer.
Second, the ultimate end users of tiles do have different expectations, depending on whether they are purchasing ceramic or marble-topped tile, it said. It found that a general expectation that the products “function in construction and home projects” wasn’t enough because “this expectation is true of users of tile in general, regardless of the type of tile.”
It distinguished users of ceramic tile and Elysium’s marble-topped tile, saying that the latter expect “to interact with a natural stone surface.”
Third, it found that the products’ ultimate uses are similar -- in fact, that “the end use of tile is the same across many different types of tile of different materials” -- but again noted that Elysium’s tile is intended to look like marble.
Fourth, it reached a similar finding regarding channels of trade. It said that ceramic tile and Elysium’s tile are sold via the same channels, but added again that this is true of many kinds of tile, not just ceramic or composite.
And fifth, it said that Elysium advertised its tile with a heavy emphasis on the marble layer. Its product brochure offers, for instance, examples of different marble patterns and a description of the “advantages of ‘laminated marble tile.’”