Trade Court Sustains Scope Ruling Excluding Glass Surface Product From AD/CVD Orders

The Court of International Trade on Sept. 20 upheld the Commerce Department's decision on remand to include importer SMA Surface's Twilight product within the scope of the antidumping and countervailing duty orders on quartz surface products from China. Judge Gary Katzmann said that SMA Surfaces waived its challenge to the remand, which said the product doesn't qualify for the crushed glass surface product exclusion, by failing to present developed arguments in response to the remand decision.

The judge added, however, that Commerce's determination properly addressed SMA Surface's "preliminary objections," ruling that the importer got "the standard backwards" in claiming that nothing on the record suggested that the photographs of its Twilight product aren't representative of the goods' entire surface. The burden is on the importer to submit better photographs that show the entire surface, Katzmann said.

SMA Surfaces originally sought exclusions for three of its products under the crushed glass surface products exclusion. The third and fourth criteria for this exclusion say that at least some of the individual crushed glass pieces visible across the surface must be longer than one centimeter wide as measured at their widest cross-section and that the distance between any single glass piece and the closest separate glass piece doesn't exceed three inches.

The trade court previously upheld Commerce's finding that two of the three products didn't qualify for the exception, though it remanded the third (see 2304120063). The court said "no reasonable mind might accept" that some of the glass pieces were more than three inches away from the nearest other glass piece on the Twilight product. On remand, Commerce said that since the pictures of the product SMA Surfaces submitted didn't include the entire surface, the importer failed to show its goods meet the criteria of the exclusion.

Katzmann sustained the scope ruling, finding that SMA Surfaces failed to present "development argumentation" leading to "waiver." The importer "offers no specific response apart from the perfunctory statement that Commerce has again erred for the same reasons, leaving it to the court and the parties to piece its arguments together."

In the arguments the judge did piece together, SMA Surfaces said the agency's "evidentiary bar for meeting the 'across the surface of the product' requirement was not made clear in a prior scope ruling." However, Katzmann said that Commerce "summarily stated" in a prior ruling, at the request of Deyuan Panmin Trading Co., that the "glass pieces did not meet criterion four's distance requirements." Since the agency acted in accordance with its past ruling, the "lack of further explanation" in Panmin's ruling "does not somehow limit Commerce's ability to explain the same 'across the surface of the product' reuqirement in more detail here."

(SMA Surfaces v. United States, Slip Op. 23-137, CIT # 21-00399, dated 09/20/23; Judge: Gary Katzmann; Attorneys: Michael Holton of Grunfeld Desiderio for plaintiff SMA Surfaces; Joshua Kurland for defendant U.S. government; Luke Meisner of Schagrin Associates for defendant-intervenor Cambria Co.)