Countertop Fabricators Don't Have 'Stake' Enough to Count for AD/CVD Industry Support, DOJ Tells CAFC

The Commerce Department had to draw a line somewhere, and its use of a test to distinguish the production activities of producers and fabricators to determine industry support in antidumping duty and countervailing duty investigations on quartz surface products from India is in line with the law and prior court precedent, DOJ said in a reply brief filed April 6 with the U.S. Court of Appeals for the Federal Circuit.

Responding to a brief filed in December by M S International (see 2112290047), an importer appealing a Court of International Trade decision that upheld Commerce’s industry support finding (see 2110080035), DOJ said Commerce correctly required an entity to have a “’stake’ in the domestic industry through some important or substantial manufacturing operation,” excluding countertop fabricators from its determination on whether domestic industry supported the petition.

“The statute does not define ‘producers,’ Commerce’s interpretation flows from the statute’s history, and Commerce’s reliance on a sufficient production-related activities test to draw the line -- which even MSI concedes must exist -- between entities who produce and those who process the domestic like product is both reasonable and consistent with this Court’s jurisprudence previously addressing this legal question,” DOJ said in the reply brief.

And periodicals, testimony, photographs and other evidence submitted in the case “demonstrated significant differences in the level of complexity and capital investment, employment, training and technical expertise, processes, and type of equipment fabricators employ compared to QSP slab producers who produce the domestic like product,” DOJ said.

The fact that the International Trade Commission found differently in its injury analysis makes no difference to Commerce’s industry support analysis, DOJ said. “Commerce and the ITC make determinations for different purposes based on separate timelines and administrative records,” DOJ said.