Building Materials Company Takes Procedural AD Scope Challenge to Federal Circuit

Building materials company Bruskin International made its first arguments to the Federal Circuit in a challenge to a change to the scope during an antidumping duty investigation, claiming that the Commerce Department made numerous and significant procedural errors in the scope modification in question, in an opening brief filed May 14.

Bruskin challenges a purported expansion to the scope of antidumping and countervailing duty investigations of quartz surface products from China to include crushed glass, made in response to allegations of evasion. Bruskin, one of the plaintiffs in the CIT case on appeal, had been met with a strong rebuke by Judge Leo Gordon in the trade court's opinion. "Plaintiffs demonstrate remarkable chutzpah in arguing that they were somehow treated unreasonably or unfairly by a scope modification that directly addresses open and blatant evasion of antidumping and countervailing duties on quartz surface products," Gordon said.

Bruskin's argument is centered on the claim that Commerce made "numerous significant procedural errors" in modifying the scope. Bruskin says the request to expand the AD/CVD investigation to cover crushed glass was a request to expand and not just to clarify. According to the brief, the Federal Circuit has long held that Commerce cannot expand the scope "absent prior procedures." The company also argues that Commerce requires the filing of any scope amendments before the preliminary determination is published, and since the petitioner for the scope determination did not do so, the entire scope decision should be thrown out.

Bruskin's brief also says Commerce's scope determination was substantively defective. Crushed glass was not within the petitioner's modified scope language before the start of the investigation, and should not be considered quartz because crushed glass products are distinct from silica. Also, even though crushed glass may use silica as an ingredient, "the silica undergoes a significant change when made into glass and becomes part of an amorphous mass," thus losing its identity. Further, "the record is replete with examples of Crushed Glass product produced prior to the filing of the investigation which would not qualify under the crushed glass exemption ultimately adopted by the Department," the brief said.