Concerning the Investigation of Evasion of the Antidumping Duty Order on Hydrofluorocarbon Blends from the People’s Republic of China (A-570-028)
On September 5, 2017, CBP initiated its EAPA investigation based on a properly filed allegation that reasonable suggested that LM Supply had entered merchandise into the customs territory of the United States through evasion of the AD Order. The alleger, RMS of Georgia d/b/a Choice Refrigerants, holds exclusive patent rights to Patent No. US 8,197,706 B2, “Refrigerant with Lubricating Oil for Replacement of R-22 Refrigerant” (June 12, 2002). The patented refrigerant has been designated by the American Society of Heating, Refrigerating and Air-Conditioning Engineers (“ASHRAE”) as refrigerant blend R-421A. See Standards, Research and Technology, ASHRAE Refrigerants Designation, Standard 34, 2013. Choice Refrigerants (“Choice”) markets the blend as Choice® R-421A.
The scope of the AD Order has an exclusion for:
…patented HFC blends, such as ISCEON® blends, including MO99™ (R-438A), MO79 (R-422A), MO59 (R-417A), MO49Plus™ (R-437A) and MO29™ (R-422D), Genetron® Performax™ LT (R-407F), and Choice® R-421A and Choice® R-421B. See AD Order, 81 Fed. Reg. at 55,436-37.
Choice contends that the merchandise imported by LM Supply and entered into the United States as R-421A is a generic blend that is chemically similar to, but not identical to, its patented blend. Therefore, Choice contends that the generic blend imported by LM Supply does not satisfy the criteria of the scope exclusion. Moreover, on November 30, 2017, Choice filed a scope ruling request with the U.S. Department of Commerce (Commerce) seeking clarification as to this exclusion from the scope of the AD Order. See “Application for Scope Ruling on Exclusion of Patented HFC Blends from Antidumping Duty Order A-570-028: Hydrofluorocarbon Blends and Components Thereof from the People’s Republic of China,” filed by Kenneth Ponder and Choice Refrigerants (Nov. 30, 2017).
CBP is unable to determine whether the merchandise imported by LM Supply, entered as R-421A, is subject to the AD Order. Accordingly, pursuant to the EAPA, we referred this matter to Commerce for a determination as to whether the merchandise at issue is within the scope of the AD Order. Specifically, CBP inquired on the following two questions:
- Is the scope exclusion referenced above limited to only that merchandise that is licensed by the rights holder or does it apply to any HFC blends that satisfy the terms of the patents?
- Is the scope exclusion limited to only that merchandise that also carries the trademarks indicated in the scope exclusion? For example, would the refrigerant need to be labeled as “Choice® R-421A” to be excluded from the order, or would it be sufficient for the refrigerant to simply be labeled as “R-421A” for it to fall within the exclusion from the order?
As a result of this referral, the deadlines in EAPA investigation 7212 have been stayed pending Commerce’s issuance of a determination.
If you have any questions specific to the EAPA Investigation 7212, please contact CBP at eapallegations@cbp.dhs.gov, and please include the EAPA investigation number 7212 in the subject line of the message. For any questions specific to the scope referral and its procedures, please contact Commerce at the Customs and Border Protection Liaison Unit, Enforcement and Compliance, International Trade Administration, at (202) 482-0984.
