Commerce Not Required to Poll Industry to Find 50% Support for AD/CVD Petition, CIT's Gordon Says

The Commerce Department does not need to "poll the industry" to find out if over half of the domestic industry supports an antidumping or countervailing duty petition, Judge Leo Gordon of the Court of International Trade said in an Aug. 16 letter. Responding to consolidated plaintiff M S International's request for a remand directing Commerce to poll the industry or "collect additional information establishing whether there was industry support" for the contested AD/CVD petition, Gordon said this request stemmed from a misunderstanding of the law (Pokarna Engineered Stone Ltd. v. U.S., CIT Consol. #20-00127).

The case flows from a challenge to an AD/CVD petition on quartz surface products from India. M S International, along with Pokarna Engineered Stone, filed its lawsuit at CIT claiming that Commerce went beyond its authority when the agency excluded M S International's view as a countertop fabricator from the industry support determination when deciding to initiate the investigation. The Department of Justice countered, saying that the term "producer" is never defined in the statute, giving Commerce the cover to define the term. The petitioner, Cambria Company, agreed and also held that even if the countertop fabricators were to be included in the industry support determination, Commerce had enough industry support from other sources to plow ahead with the antidumping investigation (see 2106090086).

Seeking to clear up the grounds on which M S International and Pokarna may seek relief, Gordon said that "the petition must first fail to establish support of domestic producers or workers accounting for more than 50 percent of the total production. Therefore, before any obligation arises for Commerce to poll or rely on other information, Plaintiff must first demonstrate that the petition does not establish the requisite 50 percent support among total production."

Due to this standard, the plaintiffs have two problems ahead of them, Gordon said. They must succeed in including fabricators within the category of domestic producers since the petition establishes 50% support as it currently stands, which excludes fabricators. Assuming that they succeed in showing this, the plaintiffs still need to show that the petition does not establish 50% support among total production inclusive of fabricators. "Plaintiff appears to have the statute backwards (in a circular loop) when it intimates that Commerce must first poll the industry to determine whether Commerce must poll the industry," Gordon said.