Pokarna Engineered Stone Ltd. v. United States

• Decision Date: 07 October 2021
• Docket Number: Slip Op. 21-138,Consol. Court No. 20-00127
• Citation: 547 F.Supp.3d 1300
• Parties: POKARNA ENGINEERED STONE LIMITED, Plaintiff, and M S International, Inc., Consolidated Plaintiff, v. UNITED STATES, Defendant, and Cambria Company LLC, Defendant-Intervenor.
• Court: U.S. Court of International Trade

547 F.Supp.3d 1300

POKARNA ENGINEERED STONE LIMITED, Plaintiff,

and

M S International, Inc., Consolidated Plaintiff,

v.UNITED STATES, Defendant,andCambria Company LLC, Defendant-Intervenor.

Slip Op. 21-138

Consol. Court No. 20-00127

United States Court of International Trade.

October 7, 2021

Jonathan T. Stoel, Jared R. Wessel, and Nicholas R. Sparks, Hogan Lovells US LLP, of Washington, D.C., for Consolidated Plaintiff M S International, Inc.

Joshua E. Kurland, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., for Defendant United States. With him on the brief were Brian M. Boynton, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Tara K. Hogan, Assistant Director. Of counsel were Vania Wang and W. Mitch Purdy, Attorneys, U.S. Department of Commerce, Office of Chief Counsel for Trade Enforcement and Compliance, of Washington, D.C.

Luke A. Meisner and Roger B. Schagrin, Schagrin Associates, of Washington, D.C., for Defendant-Intervenor Cambria Company LLC.

Gordon, Judge:

This action involves a challenge to the final affirmative determination by the U.S. Department of Commerce ("Commerce") in the antidumping duty ("AD") investigation of certain quartz surface products ("QSPs") from India. See Certain Quartz Surface Products from India, 85 Fed. Reg. 25,391 (Dep't of Commerce May 1, 2020) (final affirm. determ.) ("Final Determination"), and the accompanying Issues & Decision Memorandum, A-533-889 (Dep't of Commerce Apr. 27, 2020), https://enforcement.trade.gov/frn/summary/india/2020-09407-1.pdf (last visited this date) ("Decision Memorandum"). Before the court is the motion for judgment on the agency record of consolidated Plaintiff M S International, Inc. ("MSI"). See Pl. MSI's R. 56.2 Mot. for J. on the Agency R., ECF No. 39 ("MSI Br."); see also Def.’s Resp. in Opp'n to Pls.’ R. 56.2 Mots. for J. on the Agency R., ECF No. 45 ("Def.’s Resp."); Def-Intervenor's Resp. in Opp'n to R. 56.2 Mots. for J. on the Agency R., ECF No. 47 ("Def.-Int.’s Resp."); MSI's Reply Brief, ECF No. 54 ("MSI Reply"). The court has jurisdiction pursuant to Section 516A(a)(2)(B)(i) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(i) (2018)¹ , and 28 U.S.C. § 1581(c) (2018). To facilitate the efficient disposition of this action, this opinion focuses only on the industry support challenge raised by MSI. See Scheduling Order, ECF No. 33 (bifurcating briefing in this matter).² For the reasons set forth below, the court sustains the Final Determination with respect to Commerce's industry support determination.

I. Standard of Review

The court sustains Commerce's "determinations, findings, or conclusions" unless they are "unsupported by substantial evidence on the record, or otherwise not in accordance with law." 19 U.S.C. § 1516a(b)(1)(B)(i). More specifically, when reviewing agency determinations, findings, or conclusions for substantial evidence, the court assesses whether the agency action is reasonable given the record as a whole. Nippon Steel Corp. v. United States, 458 F.3d 1345, 1350–51 (Fed. Cir. 2006). Substantial evidence has been described as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." DuPont Teijin Films USA v. United States, 407 F.3d 1211, 1215 (Fed. Cir. 2005) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) ). Substantial evidence has also been described as "something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." Consolo v. Fed. Mar. Comm'n, 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966). Fundamentally, though, "substantial evidence" is best understood as a word formula connoting reasonableness review. 3 Charles H. Koch, Jr., Administrative Law and Practice § 9.24[1] (3d ed. 2021). Therefore, when addressing a substantial evidence issue raised by a party, the court analyzes whether the challenged agency action "was reasonable given the circumstances presented by the whole record." 8A West's Fed. Forms, National Courts § 3.6 (5th ed. 2021).

Separately, the two-step framework provided in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842–45, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), governs judicial review of Commerce's interpretation of the antidumping statute. See United States v. Eurodif S.A., 555 U.S. 305, 316, 129 S.Ct. 878, 172 L.Ed.2d 679 (2009) (Commerce's "interpretation governs in the absence of unambiguous statutory language to the contrary or unreasonable resolution of language that is ambiguous.").

II. Background

Once Commerce receives a petition, it has 20 days to initiate an investigation. 19 U.S.C. § 1673a(c)(1)(A). In determining whether to commence an investigation, the agency must:

(i) after examining, on the basis of sources readily available to the administering authority, the accuracy and adequacy of the evidence provided in the petition, determine whether the petition alleges the elements necessary for the imposition of a duty under [ 19 U.S.C. § 1673 ] and contains information reasonably available to the petitioner supporting the allegations, and (ii) determine if the petition has been filed by or on behalf of the industry.

Id. As part of that process, Commerce must determine if the petition has the support of the domestic industry. Commerce makes that calculus in one of two ways. Commerce is required first to look at the evidence contained within the petition itself, and determine whether:

(i) the domestic producers or workers who support the petition account for at least 25 percent of the total production of the domestic like product, and (ii) the domestic producers or workers who support the petition account for more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for or opposition to the petition.

19 U.S.C. § 1673a(c)(4)(A). When the petition is unable to demonstrate support on its face, Commerce must then poll the relevant industry or rely on other information to determine whether support exists. See 19 U.S.C. § 1673a(c)(4)(D).

In May 2019, Commerce received a petition from Cambria Company LLC ("Cambria"), a domestic producer of QSPs, to impose antidumping duties on certain QSPs from India. Petition from Schagrin Associates to Sec'y of Commerce, PR 1–5, CR 1–5 ("Petition").³ MSI challenged Cambria's standing to bring the petition for lack of industry support, arguing that domestic fabricators of QSPs are "producers" for industry support purposes and that several fabricators opposed initiation. See Letter from Hogan Lovells US LLP to Sec'y of Commerce Pertaining to MSI Comments on Lack of Standing at pts. 1–2, PR 39–40 ("MSI Standing Comments"). Despite MSI's challenge, Commerce initiated an antidumping investigation into the subject merchandise. See Initiation Checklist, PR 46, CR 34, ECF No. 30-7. In deciding to initiate, Commerce did not include fabricators as domestic producers for the purpose of determining industry support. Id. at Attach. II, pp. 9–16.

Later in the investigation, MSI renewed its objection to the exclusion of fabricators from Commerce's industry support analysis. See Decision Memorandum at 36. Commerce declined to revise its affirmative industry support determination, explaining that 19 U.S.C. § 1673a(c)(4)(E) did not permit reconsideration of the industry support determination after initiation of an investigation. Id. at 37 ("Commerce is statutorily precluded from reconsidering its industry support determination at this stage of the investigation."); see also 19 U.S.C. § 1673a(c)(4)(E) ("After the administering authority makes a determination with respect to initiating an investigation, the determination regarding industry support shall not be reconsidered.").

III. Discussion

A. Commerce's Interpretation of the Statutory Term "Producers"

MSI challenges Commerce's interpretation of the term "producers" in determining whether industry support exists to justify the initiation of an antidumping investigation. MSI Br. at 3–19. MSI contends that the plain meaning of "producers" includes the totality of an industry, which in its view includes fabricators. Id. at 5–11. The Government maintains that the statute is silent as to the meaning of "producers," and that Commerce is entitled to deference for its reasonable interpretation of the term under Chevron step two. Def.’s Resp. at 9–13. Accordingly, the question before the court is whether "producers" is defined broadly so as to include fabricators for the purposes of Commerce's industry support analysis under § 1673a(c)(4).

MSI maintains that the plain language of the statute (in conjunction with a contextual analysis of the relevant statutory provisions and the attendant legislative history) conveys a clear Congressional intent as to the meaning of "producers"—namely that fabricators are producers. See MSI Br. at 7–16. MSI therefore contends that Commerce's narrow interpretation is unlawful under Chevron step one, and that remand is required for Commerce to redo its industry support analysis. Id.

As described above, § 1673a(c)(4) sets forth how Commerce is to determine whether a petition to initiate an antidumping investigation was filed "by or on behalf of the industry." 19 U.S.C. § 1673a(c)(4). MSI contends that the "unambiguously expressed intent" of Congress was for Commerce to include all producers of the domestic like product in its industry determination, not "a subset of producers handpicked by a petitioner." MSI Br. at 10 (citing S. Rep. No. 103-412 (1994), joint report of several Senate Committees on Uruguay Round Agreements Act); see also Uruguay Round Agreements Act, Statement of Administrative Action, H.R. Doc. No. 103-316, vol. 1 (1994), reprinted in 1994 U.S.C.C.A.N. 4040....