M S Int'l, Inc. v. United States

Decision Date25 April 2022
Docket Number2021-1679, 2021-1680
Parties M S INTERNATIONAL, INC., Foshan Yixin Stone Company, Ltd., Arizona Tile LLC, Plaintiffs Bruskin International, LLC, Plaintiff-Appellant v. UNITED STATES, Cambria Company LLC, Defendants-Appellees M S International, Inc., Arizona Tile LLC, Plaintiffs Bruskin International, LLC, Plaintiff-Appellant v. United States, Cambria Company LLC, Defendants-Appellees
CourtU.S. Court of Appeals — Federal Circuit

David J. Craven, Craven Trade Law LLC, Chicago, IL, argued for plaintiff-appellant.

Joshua E. Kurland, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee United States. Also represented by Brian M. Boynton, Tara K. Hogan, Patricia M. McCarthy ; Vania Wang, Office of the Chief Counsel for Trade Enforcement & Compliance, United States Department of Commerce, Washington, DC.

Luke A. Meisner, Schagrin Associates, Washington, DC, argued for defendant-appellee Cambria Company LLC. Also represented by Benjamin Jacob Bay, Nicholas J. Birch, Christopher Cloutier, Elizabeth Drake, William Alfred Fennell, Kelsey Rule, Roger Brian Schagrin.

Before Hughes, Mayer, and Stoll, Circuit Judges.

Hughes, Circuit Judge.

In parallel antidumping and countervailing duty investigations of quartz surface products from China, the Department of Commerce amended the scope of its investigations to prevent producers and exporters in China from evading its orders by using glass in place of quartz. Bruskin International LLC challenges Commerce's authority to modify the scope of the investigation and to do so without a hearing. Bruskin also challenges the factual findings that led Commerce to modify the scope of its investigations. Because Commerce has discretion to set the scope of its investigations, Bruskin's hearing request was untimely, and substantial evidence supports Commerce's factual findings, we affirm the Court of International Trade's decision upholding Commerce's scope modification.

BACKGROUND

In 2018, Cambria Corporation filed a petition seeking antidumping and countervailing duties on certain quartz surface products from China. The petition requested the following scope:

The merchandise covered by the investigation is 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 ....

Appx103 (Petition Scope).

Commerce asked Cambria how to determine whether a product is "predominately silica." In response, Cambria clarified that "the scope of the investigation only includes products where the silica content is greater than any other single material, by actual weight." Appx118. Commerce needed further clarification. The scope expressly covered products made from quartz, a crystalline form of silica. But silica is also the primary ingredient in most glass, although glass differs from quartz in that it is amorphous rather than crystalline. Appx1186–88. Commerce asked Cambria to clarify whether "products where the silica content is greater than any other single material" includes "glass products" and to "revise the proposed scope if necessary." Appx118. Cambria responded:

The quartz surface products covered by the scope of the investigation may contain a certain quantity of crushed glass. However, the scope is not intended to cover products in which the crushed glass content of the product is greater than any other single material, by actual weight. [Cambria] has revised the scope to exclude any such crushed glass surface products ....

Appx127.

Commerce adopted Cambria's exclusion of crushed glass, providing the following statement of scope in its notices of initiation:

The merchandise covered by the investigation is 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 .... However, the scope of the investigation only includes products where the silica content is greater than any other single material, by actual weight....
....
... Specifically excluded from the scope of the investigation are crushed glass surface products. Crushed glass surface products are surface products in which the crushed glass content is greater than any other single material, by actual weight.

Initiation of Less-than-Fair Value Investigation, 83 Fed. Reg. 22,613, 22,618 (May 16, 2018) (citation omitted); Initiation of Countervailing Duty Investigation, 83 Fed. Reg. 22,618, 22,622 (May 16, 2018) (Preliminary Scope). Commerce reiterated this Preliminary Scope in its preliminary scope determination, and in its preliminary determinations in both investigations. Preliminary Affirmative Countervailing Duty Determination, 83 Fed. Reg. 47,881, 47,882 (Sept. 21, 2018) ; Preliminary Determination of Sales at Less than Fair Value, 83 Fed. Reg. 58,540, 58,542 –43 (Nov. 20, 2018). In October 2018, the parties filed briefs addressing the Preliminary Scope.

On February 14, 2019, Cambria submitted a request (Scope Request) asking Commerce to accept new factual information and further "clarify" the scope. Cambria explained that it had intended the crushed glass exclusion to cover crushed glass products that "display visible pieces of crushed glass on their surfaces, giving them a distinct aesthetic compared to other quartz surface products." Appx562–63. Cambria explained that such products "serve a niche segment of the overall countertop market— i.e., countertops made from recycled materials that prominently display in a visible manner how they are an ‘ecofriendly solution.’ " Appx563. But in November 2018 and January 2019, Cambria had received advertisements and product descriptions from Chinese producers for "quartz glass" products that are visually similar to quartz products but contain higher amounts of glass. These producers suggested that they had recently begun offering "quartz glass" in response to high tariffs and emphasized that their quartz glass was not covered by the tariffs due to its higher glass content. Cambria requested that Commerce "clarify" the scope by limiting the crushed glass exclusion to crushed glass products with large pieces of glass visible across the surface. Appx569.

On March 12, 2019, Bruskin and other respondents requested a hearing on crushed glass scope issues. Commerce denied the request for a hearing, ruling it untimely under 19 C.F.R. § 351.310(c) because more than 30 days had passed since the preliminary determinations in both investigations. The parties filed factual information, case briefs, and rebuttal comments on the issue. Commerce also held an ex parte meeting with Chinese producers and U.S. importers regarding scope.

Commerce then issued a decision modifying the crushed glass exclusion to what Cambria had requested:

Specifically excluded from the scope of the investigation{s} are crushed glass surface products. Crushed glass surface products must meet each of the following criteria to qualify for this exclusion: (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.

Appx1179 (Final Scope) (alteration in original). The same exclusion appears in Commerce's final determination and antidumping and countervailing duty orders. Final Affirmative Determination of Sales at Less than Fair Value, 84 Fed. Reg. 23,767, 23,770 –71 (May 23, 2019); Final Affirmative Countervailing Duty Determination, 84 Fed. Reg. 23,760, 23,763 (May 23, 2019) ; Antidumping and Countervailing Duty Orders, 84 Fed. Reg. 33,053, 33,055 –56 (July 11, 2019).

Bruskin appealed to the Court of International Trade. Bruskin argued that Commerce's scope modification was procedurally defective because Commerce should have considered Cambria's Scope Request to be a request to amend the petition and denied it as untimely and not properly submitted to the International Trade Commission. Bruskin asserted that it was entitled to a hearing on the crushed glass scope issue. Finally, Bruskin argued that Commerce erred in finding that crushed glass of any kind was ever within the scope of the investigation.

The court sustained Commerce's scope modification. Mem. and Order, M S Int'l, Inc. v. United States , 493 F. Supp. 3d 1346 (Ct. Int'l Trade 2021) (No. 19-140), ECF No. 68; Mem. and Order, M S Int'l, Inc. v. United States , 493 F. Supp. 3d 1349 (Ct. Int'l Trade 2021) (No. 19-141), ECF No. 65. It entered partial judgment on the scope issue under USCIT Rule 54(b). M S Int'l , 493 F. Supp. 3d 1346 ; M S Int'l , 493 F. Supp. 3d 1349.

Bruskin timely appeals the trial court's partial judgment. We have jurisdiction under 28 U.S.C. § 1295(a)(5).

ANALYSIS

"We review a decision of the Court of International Trade evaluating an antidumping determination by Commerce by reapplying the statutory standard of review .... We will uphold Commerce's determination unless it is unsupported by substantial evidence on the record or otherwise not in accordance with the law." Peer Bearing Co.- Changshan v. United States , 766 F.3d 1396, 1399 (Fed. Cir. 2014) (citation omitted); 19 U.S.C. § 1516a(b)(1)(B)(i).

I

Bruskin argues that Commerce erred in accepting Cambria's Scope Request. In Bruskin's view, Commerce should have treated the Scope Request as a request to amend the petition, and thus denied it for not being submitted to the Commission under 19 U.S.C. § 1673a(b)(2) and 19 C.F.R. § 351.202(e) and for being untimely under...

To continue reading

Request your trial
2 cases
  • SMA Surfaces, Inc. v. United States
    • United States
    • U.S. Court of International Trade
    • 12 Enero 2023
    ...challenged Commerce's scope modification as unlawful and unjustified by substantial evidence. See MS Int'l, Inc. v. United States, 32 F.4th 1145 (Fed. Cir. 2022). The Federal Circuit reasoned, in relevant part, that because "Commerce found the Preliminary Scope to be defective [where] Chine......
  • SMA Surfaces, Inc. v. United States
    • United States
    • U.S. Court of International Trade
    • 12 Enero 2023
    ...acted within its discretion when it "modified the scope to cure the defect" and gave "appropriate deference to the petitioner's intent." Id. at 1150-52. On 11, 2019, Commerce issued final antidumping and countervailing duty orders on certain quartz surface products from China. See QSP Order......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT