H333263

HQ H333263 November 29, 2023 OT:RR:CTF:EPDR H333263 IPW CATEGORY: ENTRY Center Director Machinery 109 Shiloh Dr., Ste. 300 Laredo, TX 78045 Attn.: Derrick M. Logan, Import Specialist RE: Application for further review of Protest No. 4601-22-132081; Golden Spectrum LLC.; scope of antidumping and countervailing order; certain quartz surface products Dear Center Director: The above-referenced Protest was forwarded to this office for further review and was received on September 27, 2022. We have considered the points raised by your office and the Protestant. Our decision follows. FACTS: From February 24, 2020, through October 30, 2020, Golden Spectrum LLC (“Golden Spectrum” or “Protestant”) entered 26 shipments of slabs from the People’s Republic of China (“China”). Pursuant to instructions from the Department of Commerce (“Commerce”), Customs and Border Protection (“CBP”) assessed antidumping and countervailing duties (“AD/CVD”) on the slabs and liquidated the entries on April 1, 2022. Golden Spectrum now protests CBP’s assessment of antidumping and countervailing duties. CBP determined the goods to be subject to AD/CVD orders on certain quartz surface products from China (Case No. A-570-504 and C-570-085) (“Orders”). Certain Quartz Surface Products From the People's Republic of China: Antidumping and Countervailing Duty Orders, 84 FR 33053 (July 11, 2019). The scope of the orders covers certain quartz surface products. Quartz surface products “consist of slabs and other surfaces created from a mixture of materials that includes predominately silica (e.g., quartz, quartz powder, cristobalite) as well as a resin binder (e.g., an unsaturated polyester).” Id. Specifically excluded from the scope of the orders are crushed glass surface products. To be excluded from the orders as crushed glass surface products, the merchandise must meet each of the following criteria: (1) The crushed glass content is greater than any other single material, by actual weight; (2) there are pieces of crushed glass visible across the surface of the product; (3) at least some of the individual pieces of crushed glass that are visible across the surface are larger than one centimeter wide as measured at their widest cross-section (glass pieces); and (4) the distance between any single glass piece and the closest separate glass piece does not exceed three inches. Id. To verify if the merchandise fell into the exception, CBP’s Laboratories and Scientific Services Division (“LSSD”) conducted a series of tests on a sample of the entered merchandise. The sample was a slab measuring 52 inches (in.) by 4 in. by .75, with item number QBP007. LSSD broke up the sample into smaller pieces and tested the sample as follows: LSSD conducted an ignition test for plastic binders, whereby a piece of the sample was heated over a Bunsen burner, which caused it to burn leading to the conclusion that the sample contained organic binders. LSSD performed an ash test on three 5-gram pieces, whereby the pieces were heated in a crucible at 595 degrees Celsius for one hour. Between the three pieces, the average loss by weight on ignition was 10.92%, leading to the conclusion that the sample consisted of 10.92% organic material, which another test concluded to be plastic. One gram of the ashed sample was mixed with one gram of Corundum in a ball chamber for one minute and loaded into a sample holder three times to be analyzed for its phase composition through X-ray diffraction. The composition of the ashed sample was calculated to be 62.83% quartz, 36.27% amorphous Silicon Dioxide (“SiO2”) (“crushed glass”) and .9% Titanium Dioxide (“TiO2”). Factoring in that 10.92% of the sample was plastic, the overall composition of the sample was found to be 55.97% quartz, 32.31% amorphous SiO2, 10.92% plastic, and .8% TiO2. Other remnants of the ashed sample were ground in a ball chamber for 10 minutes and then pressed into a pellet to be analyzed under an X-ray fluorescence spectrometer. The purpose of the test was to check the X-ray diffraction test by also determining the sample’s composition. The sample was found to be predominantly composed of silicon with lesser amounts of calcium, magnesium, aluminum, iron, titanium, and sulfur. A crushed piece of the sample, along with some of the ashed sample that had been ground, underwent a Fourier Transform Infrared Spectroscopy (FTIR) analysis to identify organic, polymeric, and inorganic materials. Analysis of the crushed piece indicated presence of polydiallyl phthalate (plastic), and the analysis of the ashed sample indicated presence of silica. Lastly, the sample was cut into smaller sections for examination under a microscope. A steel ruler was used to measure the diameters of the glass pieces. Two pieces were found to exceed 1 centimeter. Because the Orders exclude crushed glass surface products when the crushed glass content is greater than any other single material, by actual weight, and the tests determined that quartz was greater than the crushed glass, at 55.97%, LSSD found the sample to be within the scope of the orders. On September 27, 2022, Golden Spectrum protested CBP’s determination of AD/CVD liability on the grounds that LSSD’s determination is erroneous and the merchandise is exempt from the orders as crushed glass surface products According to Golden Spectrum in its protest, LSSD made the following errors in its determination: Not Incorporating the Large Glass Chips – The sample obtained by CBP to run the analysis was a 1-gram sieved sample. The size of the sample obtained means it is impossible for CBP to consider the glass chips when measuring the glass content as a whole. This significantly understates the percentage of glass as the large chip contains no quartz at all. Sample Size – As stated above, the sample obtained to run the analysis was comprised of 1 gram of a sieved sample. However, CBP’s report / methodology was silent on how the 1 gram was obtained. CBP did not obtain multiple 1-gram samples and test for repeatability. Due to variations in particular distribution, it is possible and very likely that any given 1-gram sample has a different quartz and glass percentage content even if no large glass pieces are present in the samples. Incorrect Interpretation of the Scope – CBP’s reports determined that the sample contains 55.97% quartz, 32.31% amorphous SiO2, 10.92% plastic, and 0.9% TiO2. Furthermore, CBP’s reports found that quartz is the primary ingredient. CBP obtained an incorrect ultimate result because it ignored all of the components of the glass that are not amorphous SiO2. Golden Spectrum’s manufacturer uses recycled float glass or soda-lime glass, which is the most prevalent type of glass manufactured. A typical composition of soda-lime glass is 70% SiO2 (in the form of amorphous silica), 15% Sodium Dioxide (“Na2O”), 9% Calcium Oxide (“CaO”), and smaller amounts of other oxides. Assuming amorphous SiO2 is 70% of glass, the addition of the other components would change the results to 49% quartz, 41% glass, 10% plastic and 1% TiO2. This in combination with the below points greatly throws CBP’s methodology into question. Incorrect Presumption of 0% Na20 Level – CBP’s laboratory assumed that there is no Na2O in the glass. However, it is well known in the industry that float glass contains Na20. CBP’s laboratory report stated that the instrument used by CBP did not measure any sodium in the samples, and assumed a 0% Na20 content in the mixture. However, this would lower the amount of glass detected in CBP’s calculations by 15% assuming a typical composition of soda-lime glass. Normalization of Results – The results describe how the values were normalized in order for the percentages of SiO2 to be converted into quartz and glass contents. However, these calculations are not shown and in their expert analysis, Golden Spectrum could not recreate the results shown given the data provided. Accordingly, Golden Spectrum doubts the calculation

As an initial matter, we find that this protest meets the criteria for further review. Pursuant to 19 C.F.R. § 174.24(b), this protest involves questions of law and fact which have not previously been ruled upon. We also find that, pursuant to 19 U.S.C. § 1514(c)(3)(A), this protest was timely filed on September 27, 2022, within 180 days after the liquidation date of April 1, 2022.Antidumping and countervailing duties properly assessed by CBP are generally not protestable because CBP’s role in liquidating entries of merchandise subject to an AD/CVD order is “merely ministerial.” See Mitsubishi Electronics America, Inc. v. United States, 44 F.3d 973, 977 (Fed. Cir. 1994). However, the factual findings made by CBP to determine whether merchandise is subject to an AD/CVD order, and the amount of duty owed, fall within CBP’s protestable ministerial role. See Xerox Corp. v. United States, 289 F.3d 792, 794 (Fed. Cir. 2002); HQ H192395 (January 6, 2014); HQ H189455 (February 19, 2014). CBP’s factual findings receive a presumption of correctness pursuant to 28 U.S.C. § 2639(a)(1). Consequently, a protestant bears the “burden to prove by a preponderance of the evidence” that CBP’s findings were incorrect. Ford Motor Company v. United States, 157 F.3d 849, 855 (Fed. Cir. 1998); see also Aluminum Co. of America v. United States, 477 F.2d 1396, 1398 (C.C.P.A. 1973) (“the methods of weighing, measuring, and testing merchandise used by customs officers and the results obtained are presumed to be correct”). The challenging party can rebut this presumption “by showing that such methods or results are erroneous” or if they submit “evidence of analysis they applied to the merchandise which gave a result different from that claimed by the Government.” Aluminum Co., 477 F.2d at 1398-99. In both situations, whether there is a showing of error or of contrary evidence, a prima facie case is established that destroys the presumption of correctness and the Government bears the burden of go