Commerce Backs Industry Support Finding in AD/CVD Petition Over Indian Quartz Surface Goods

The Commerce Department had more than half of the domestic industry's support when it considered an antidumping and countervailing duty petition, the Department of Justice said in an Aug. 26 reply brief at the Court of International Trade. Responding to a brief from consolidated plaintiff M S International (MSI), DOJ said that none of the company's arguments excuses “its failure to proffer evidence on the record sufficient to upset Commerce's industry support determination” (Pokarna Engineered Stone Ltd. v. U.S., CIT Consol. #20-00127).

Most recently, Judge Leo Gordon of CIT issued a letter in the case claiming that Commerce does not have to poll the industry or collect more information to establish industry support for the contested AD/CVD petition on quartz surface products from India (see 2108160054). DOJ built on this letter, arguing that MSI's brief is a “misguided attempt” to trigger the law's polling requirement.

MSI's lawsuit alleges that Commerce, in deciding to begin the antidumping investigation, went beyond its authority when it excluded the company's view as a countertop fabricator from the industry support determination. The U.S. responded, saying that the term “producer” is never defined in the statute, allowing Commerce to define the term.

MSI said that a lack of industry support was “obvious” once countertop fabricators were included in the calculation. However, this finding has no basis in facts or law, the U.S. said in its reply. “In contrast, MSI’s contention did not evolve from Commerce’s analysis of MSI’s data, but instead involved MSI’s strategic decision to place only limited information regarding certain fabricators’ production and views on the record,” the brief said. “MSI offered no evidence on the record regarding the position, production volume, or even the existence, of its purported 9,730 fabricators and, thus, these fabricators would be treated as neutral, consistent with Commerce’s longstanding practice, even if they did exist.”

The main issue over industry support is whether certain fabricators qualify as domestic producers, the U.S. conceded. But given Gordon's letter, this issue is decided, the brief said. “Given the record evidence showing that fabricators do not meet the standard for being domestic producers, the Court need not address the sufficiency of MSI’s submission regarding fabricators.”