M S International, Inc. v. United States

Slip Op. 21-138
UNITED STATES COURT OF INTERNATIONAL TRADE
Before: Leo M. Gordon, Judge
Consol. Court No. 20-00127
OPINION
[Commerce’s Final Determination sustained.]
Dated: 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.
POKARNA ENGINEERED STONE LIMITED,
Plaintiff,
and
M S INTERNATIONAL, INC.,
Consolidated Plaintiff,
v.
UNITED STATES,
Defendant,
and
CAMBRIA COMPANY LLC,
Defendant-Intervenor.
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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
1 Further citations to the Tariff Act of 1930, as amended, are to the relevant portions of
Title 19 of the U.S. Code, 2018 edition.
2 Commerce’s underlying industry support determination in this matter was also the basis
for the agency’s decision to initiate a countervailing duty (“CVD”) investigation as to QSPs
from India, as well as both AD and CVD investigations into QSPs from the Republic of
Turkey. 	See MSI Br. at 3. 	The court has stayed consideration of MSI’s substantively
similar challenges to Commerce’s final determinations in these other proceedings until
(footnote continued)
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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 (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
(1966). 	Fundamentally, though, “substantial evidence” is best understood as a word
formula connoting reasonableness review. 3 Charles H. Koch, Jr., Administrative Law and
30 days after the issuance of a final decision in this matter. See Order in Court No. 20-
00137 (Dec. 23, 2020), ECF No. 27 (Turkey AD Challenge); Order in Court No. 20-00138
(Dec. 23, 2020), ECF 27 (India CVD Challenge); Order in Court No. 20-00139 (Dec. 23,
2020), ECF No. 28 (Turkey CVD Challenge).
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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 (1984), governs judicial review of
Commerce’s interpretation of the antidumping statute. See United States v. Eurodif S.A.,
555 U.S. 305, 316 (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
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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
3 “PR” refers to a document contained in the public administrative record. 	See ECF
No. 31-2. “CR” refers to a document contained in the confidential administrative record.
See ECF No. 31-3.
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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).
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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. The joint Senate Report notes that the industry support test
is satisfied “if the authorities determine that domestic producers accounting for more than
25 percent of total domestic production of the like product expressly support the petition.”
See MSI Br. at 10 (quoting S. Rep. No. 103-412 at 35 with added emphasis).
MSI’s central argument is that “‘industry’ means the producers as a whole of a
domestic like product, or those producers whose collective output of a domestic like
product constitutes a major proportion of the total domestic production of the like product.”
See id. at 11 (citing 19 U.S.C. § 1677(4)(A)). 	MSI contends that, taken together,
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Consol. Court No. 20-00127 	Page 8
the statute 	and 	joint 	Senate 	Report 	clearly 	demonstrate 	that 	Congress 	intended
Commerce consider all producers of the domestic like product when calculating industry
support. Id. at 10–11.
The U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”) and this Court
have rejected MSI’s argument on this issue. See Eurodif S.A. v. United States, 411 F.3d
1355, 1360 (Fed. Cir. 2005) (“Eurodif”); USEC Inc. v. United States, 27 CIT 489, 507–09,
259 F. Supp. 2d 1310, 1327 (2003) (“USEC I”); and USEC Inc. v. United States, 27 CIT
1419, 1431–33, 281 F. Supp. 2d 1334, 1345–46 (2003) (“USEC II”). 	In Eurodif,
the Federal Circuit similarly addressed the breadth of the term “producers” in Commerce’s
industry support analysis. 	Eurodif, 411 F.3d at 1360–61. 	In affirming the trial court,
the Federal Circuit determined that, under Chevron step two, “Commerce’s interpretation
of the word ‘producer’ was reasonable and, thus, in accordance with law.” Id., 411 F.3d
at 1360. 	The Federal Circuit observed that Commerce’s determination to qualify as
a “producer” for industry support analysis purposes, “an entity must have a ‘stake’ in
the domestic industry in question” was reasonable. 	Id. (noting that “Commerce then
defined having a ‘stake’ as undertaking the ‘actual production of the domestic like product’
within the United States.”); see also USEC I & USEC II (underlying decisions containing
reasoning affirmed in Eurodif).
MSI’s efforts to distinguish this action from Eurodif are misplaced. 	It is unable to
demonstrate why the Federal Circuit’s legal analysis of Commerce’s interpretation of
the term “producers” does not have equal application here. It is evident to the court that
the term “producers” is not defined in § 1673a(c)(4). Without a definition, there is no clear
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Consol. Court No. 20-00127 	Page 9
statutory answer as to whether “producers” is broadly defined so as to include QSP
fabricators for purposes of Commerce’s industry support analysis.
MSI next contends that the statutory scheme provides only two methods for
excluding 	the 	opinions 	of 	“producers.” 	MSI 	Br. 	at 	11–16. 	Under 	19 	U.S.C.
§ 1673a(c)(4)(B), Commerce shall disregard producers that are “related to foreign
producers” unless their interests “would be adversely affected by the imposition of
antidumping duties.” 	19 U.S.C. § 1673a(c)(4)(B)(i). 	Alternatively, Commerce may
disregard domestic producers of the domestic like product that also are importers of the
subject merchandise. 19 U.S.C. § 1673a(c)(4)(B)(ii). MSI argues that Commerce acted
unlawfully by refusing to consider the position of domestic QSP fabricators without first
finding that either of these statutory provisions applied. MSI Br. at 12. MSI maintains that,
in light of the expressio unius exclusion alterius canon, Congress would have provided
for alternative methods of excluding the opinion of domestic producers if it intended to do
so. Id. MSI, however, misses a step: 19 U.S.C. § 1673a(c)(4)(B) applies to those parties
considered “producers” of the domestic like product and prescribes limited circumstances
for exclusion of their opinions. The statute does not address if or how Commerce should
consider the opinions of parties that Commerce finds are not “producers” of the relevant
domestic like product. MSI’s reliance on § 1673a(c)(4)(B) is therefore misplaced.
MSI also argues that Commerce was required to poll the industry prior to initiating
the investigation as mandated by the “applicable statutory and regulatory requirements.”
MSI Br. at 4. 	MSI’s argument appears to be that Commerce violated 19 U.S.C.
§ 1673a(c)(4)(D) when it initiated the underlying investigation without polling the industry.
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Section 1673a(c)(4)(D) directs Commerce to poll or sample the industry 4 “if the petition
does not establish support of domestic producers or workers accounting for more than
50 percent 	of 	the 	total 	production 	of 	the 	domestic 	like 	product.” 	19 	U.S.C.
§ 1673a(c)(4)(D). 	Where Commerce determines that a petition has met the industry
support threshold, no such polling is required. 	See id. 	Because Commerce found
the requisite industry support within the petition, it was not required to poll the industry
to confirm support. 	See Decision Memorandum at 37 (“As stated in the Initiation
Checklist, for India, the information contained in the petition met the requirements
of sections 732(c)(4)(A)(i) and (ii) of the Act. 	Therefore, it was unnecessary for
Commerce to poll the industry or rely on other information to determine industry support
for the India Petitions.”). 	MSI fails to identify any legal authority that would require
Commerce to poll the industry upon request, despite a finding of sufficient industry
support. Accordingly, Plaintiff’s Chevron step one arguments fail.
The court therefore will consider whether Commerce’s interpretation of the term
“producers” is “based on a permissible construction” (Chevron step two) of 19 U.S.C.
§ 1673a(c). See Chevron, 467 U.S. at 843.
To guide its interpretation of “producers” for purposes of its industry support
analysis, 	Commerce 	employed 	the 	“sufficient 	production-related 	activities 	test.” 5
4 The statute also permits Commerce to “rely on other information” to determine that
industry support exists in such circumstances. See 19 U.S.C. § 1673a(c)(4)(D)(i).
5 As Commerce explained, the “sufficient production-related activities” test focuses on six
“factors typically examined by Commerce and the ITC to determine whether an entity has
sufficient production-related activities to qualify as a domestic producer, including capital
(footnote continued)
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Defendant maintains that Commerce’s interpretation of the statute was reasonable,
explaining that “the statute neither defines the term ‘producer’ nor instructs Commerce
on how to determine who qualifies, [and] Commerce has filled the statutory gap by
analyzing the extent of entities’ production-related activities.” 	Def.’s Resp. at 11.
Defendant 	emphasizes 	that 	“Congress 	intended 	that 	the 	standing 	requirement
[for industry support determinations] ‘provide an opportunity for relief for an adversely
affected industry and to prohibit petitions filed by persons with no stake in the result of the
investigation.’” Def.’s Resp. at 14 (quoting S. Rep. No. 96-249, at 47 (1979)). The court
agrees. 	Commerce may reasonably interpret “producers” in the industry support
provision to mean entities that have a "stake" in the industry. 	See Eurodif, 411 F.3d
at 1361. 	Plaintiff fails to point to any basis on which the court could conclude that
Commerce’s interpretation of who constitutes a producer is unreasonable. Accordingly,
the court sustains Commerce’s use of the “sufficient production-related activities” test
as a reasonable interpretation of the term “producers” in § 1673a(c)(4).
B. Substantial Evidence Challenges to Commerce’s
Industry Support Determination
1. Commerce’s Decision to Exclude Fabricators from its
Industry Support Determination
MSI argues that, even if Commerce’s interpretation of “producers” is permissible
under Chevron, Commerce’s application of the “sufficient production-related activities”
test in the underlying industry support determination was unreasonable. MSI Br. at 16-26.
investment, training and technical expertise, value added, employment levels, input
sourcing, and other production activities.” See Initiation Checklist at Attach. II, p. 10.
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MSI 	argued 	below 	that 	QSP 	fabricators 	qualify 	as 	“producers,” 	emphasizing
the fabricators’ role in the market, their technology input, and the complexity of the
products they produce, as well as promotional materials from Cambria detailing the role
of fabricators in QSP finishing. 	MSI Br. at 16–17; see also MSI Standing Comments
at 3–6. MSI maintains that Commerce’s finding that “fabricators do not perform sufficient
production-related activities to be included in the domestic industry for industry support
purposes” is not supported by substantial evidence. MSI Br. at 16.
In applying the “sufficient production-related activities” test, Commerce observed
that quartz surface product producers create QSPs by “(1) mixing raw materials,
(2) combining, (3) dispensing and molding, (4) pressing, (5) curing, (6) cooling, and
(7) polishing.” Initiation Checklist at Attach. II, p. 15 (citing Petition Volume 1 at 7, PR 1,
CR 1). 	Whereas, Commerce noted that quartz surface product slab fabricators use
producer-made QSPs and “(1) consult with customers, (2) develop engineering diagrams,
(3) 	perform 	intricate 	cutting, 	and 	(4) 	perform 	various 	edge 	and 	surface 	finishing
operations” on existing QSPs. 	Id. (citing MSI Standing Comments). 	Commerce also
found that fabricators did not engage in the same complex processes as QSP slab
producers. 	See id. at Attach. II, pp. 14–15. 	Commerce concluded that the six factors
of the test did not support the conclusion that fabricators were “producers” of the domestic
like product. Id. Specifically, Commerce explained:
We have analyzed the information provided by the petitions
and find there is reason again to conclude that fabricators do
not 	perform 	sufficient 	production-related 	activities 	to 	be
included 	in 	the 	domestic 	industry 	for 	industry 	support
purposes. 	The 	petitioner 	provided 	detailed 	information
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to support 	its 	argument 	that 	fabricators 	should 	not 	be
considered part of the domestic industry for standing, making
it clear that there are significant differences in the level
of complexity and capital investment, employment, training
and 	technical 	expertise, 	production 	processes, 	and 	type
of equipment, 	between 	quartz 	and 	surface 	product 	slab
producers and fabricators. Based on the information provided
by 	the 	petitioner, 	quartz 	slab 	production 	involves 	highly
complex 	and 	interconnected 	machinery 	and 	engineering
process, and, as a result, requires specialized equipment
dedicated 	to 	quartz 	surface 	products 	production 	and
a significantly greater amount of capital investment, training
and technical expertise, and number of employees than
the fabrication process. 	In contrast, information provided
by the 	petitioner 	indicates 	that 	the 	fabrication 	process
requires 	limited 	equipment 	that 	is 	not 	dedicated 	solely
to quartz 	surface 	products, 	fewer 	employees, 	much 	less
technical expertise, and significantly less capital investment.
Information provided by the petitioner further indicates that
the fabrication process does not change the fundamental
physical characteristics imparted during the slab production
process, as fabricators simply convert an existing slab into
a geometrical form for its end use or application. In addition,
many fabricators rely on imported slabs to produce final
fabricated products.
Decision Memorandum at 37–38 (quoting Initiation Checklist at Attach. II, p. 14).
When MSI renewed its objections to Commerce’s industry support analysis prior
to the Final Determination, Commerce explained that it is not permitted to revisit its
industry 	support 	determination 	after 	initiation. 	See 	Decision 	Memorandum 	at 	37
(“Commerce is statutorily prohibited from reconsidering its industry support determination
at this stage of the investigation. 	As a result, we continue to rely on our determination
of industry 	support 	provided 	in 	the 	Initiation 	Checklist.”); 	see 	also 	19 	U.S.C.
§ 1673a(c)(4)(E) (“After the administering authority makes a determination with respect
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to initiating an investigation, the determination regarding industry support shall not be
reconsidered.” (emphasis added)).
MSI 	contends 	that 	Commerce 	“only 	meekly 	referenced” 	the 	materials 	MSI
submitted, arguing that Commerce failed to consider MSI’s comments and to “articulate
a satisfactory explanation for its [finding that fabricators are not “producers” for industry
support purposes].” 	MSI Br. at 17, 20. 	The court disagrees. 	MSI maintains that
Commerce’s conclusion under the “sufficient production-related activities” test cannot be
reasonable given that the record details the extensive capital investment and value added
by QSP fabricators. 	Id. at 16–18. 	While MSI emphasizes certain metrics under
the “sufficient production-related activities” test by which fabricators could reasonably be
found to be “producers,” its arguments ignore Commerce’s findings and conclusions
in the context of a comparison of fabricators to slab producers. 	See Initiation Checklist
at Attach. II, p. 14 (noting that “information provided by the petitioner indicates that
the fabrication process requires limited equipment that is not dedicated solely to quartz
surface products, fewer employees, much less technical expertise, and significantly less
capital investment.”). 	Despite MSI’s contention that Commerce did not consider MSI’s
information on the record, Plaintiff is unable to point to anything other than Commerce’s
adverse finding that fabricators are not “producers” as evidence of Commerce’s alleged
failure to consider the evidence. Consequently, Commerce’s finding that fabricators are
not “producers” is reasonable.
MSI also maintains that none of the individual exhibits submitted by Cambria
“reveals a rational connection between Commerce’s facts found and the choice made.”
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MSI Br. at 21. For each exhibit provided by Cambria and relied upon by Commerce in its
industry support determination, MSI provides an explanation for why that exhibit does not
support Commerce’s findings. 	See MSI Br. at 21–23. 	Almost all of MSI’s purported
explanations, however, challenge the weight Commerce assigned to that evidence. While
Commerce could have reasonably reached an alternative finding (i.e., Commerce could
reasonably have found fabricators to be producers), Plaintiff fails to demonstrate that its
preferred alternative was the one and only reasonable finding that could be reached
on the record.
A party’s ability to point to an alternative, reasonable finding on the agency record
does 	not 	provide 	a 	basis 	for 	the 	court 	to 	set 	aside 	an 	agency’s 	determination.
See Mitsubishi Heavy Indus. Ltd. v. United States, 275 F.3d 1056, 1062 (Fed. Cir. 2001)
(“the possibility of drawing two inconsistent conclusions from the evidence does not
prevent an administrative agency’s finding from being supported by substantial evidence.”
(quoting Consolidated Edison, Co. v. NLRB, 305 U.S. 197, 229 (1938))). While this issue
presents a close question, for MSI to establish that Commerce’s industry support
determination was unreasonable, MSI must demonstrate that its preferred outcome was
the “one and only reasonable” conclusion Commerce could reach in light of the record.
See Tianjin Wanhua Co. v. United States, 41 CIT ___, ___, 253 F. Supp. 3d 1318, 1328
(2017). 	MSI has failed to meet this burden. 	Accordingly, the court sustains the Final
Determination.
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2. Challenges to Commerce’s and ITC’s Differing Findings Regarding the
Fabricators’ “Production-Related Activities”
MSI 	further 	challenges 	Commerce’s 	determination 	on 	the 	basis 	that 	it
unreasonably deviates from the findings reached by the U.S. International Trade
Commission (“ITC”). 	See MSI Br. at 17–20, 24–26. 	MSI highlighted, in its initial
comments to Commerce, the fact that the ITC released U.S. 	Producer questionnaires
to fabricators as part of its preliminary investigation into QSPs from India, indicating that
the ITC considered fabricators to be within the scope of domestic producers. 	MSI Br.
at 18, 24-25; see also MSI Standing Comments at 3–4. MSI also emphasizes that since
Commerce’s 	decision 	that 	fabricators 	do 	not 	qualify 	as 	“producers” 	for 	purposes
of the industry support analysis in the underlying investigation, “the ITC has contradicted
Commerce on three occasions.” MSI Br. at 24 (referencing ITC’s findings that U.S. QSP
industry should be defined to include fabricators in final determination of investigation
of QSPs from China, as well as preliminary and final determinations in investigations
of QSPs from India and Turkey). 	Thus, MSI contends, Commerce’s conclusion to the
contrary is not supported by substantial evidence.
Commerce explained that although the ITC and Commerce both apply the terms
“industry,” “producer,” and “domestic like product” under the statute, “they do so for
different purposes and pursuant to a separate and distinct authority.” 	See Initiation
Checklist at Attach. II, pg. 1 (further noting that “[a]lthough this may result in different
definitions of the like product, such differences do not render the decision of either agency
contrary to law”). Indeed, “[t]his Court has long recognized the division of labor between
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[ITC and Commerce] ‘even where it has resulted in decisions which are difficult
to reconcile.’” 	Consol. Fibers, Inc., v. United States, 32 CIT 855, 860 n.3, 574 F. Supp.
2d 1371 (2008) (quoting Algoma Steel Corp., Ltd. v. United States, 12 CIT 518, 523, 688
F. Supp. 639 (1988)); see also Asociacion Colombiana de Exportadores de Flores v.
United States, 12 CIT 634, 693 F. Supp. 1165 (1988). 	Even when ITC reaches its own
conclusion, Commerce may not reconsider its industry support determination after
an investigation has been initiated. 	See 19 U.S.C. § 1673a(c)(4)(E). 	The court agrees
with Defendant that “MSI’s arguments that the ITC subsequently determined to include
fabricators in the domestic industry for purposes of evaluating injury does not alter
the reasonableness of Commerce’s determination based on the record at initiation.”
Def.’s Resp. at 24–25.
Additionally, MSI’s argument suffers from a chronological fallacy: for Commerce
to rely upon the ITC’s fact findings, Commerce would have to know ITC’s determination
before reaching its own conclusions. 	However, it is only after Commerce determines
industry support and decides to initiate an investigation that Commerce then notifies ITC
of its decision. 	See 19 U.S.C. § 1673a(d). 	The ITC then proceeds with its phase
of the investigation, which does not occur in concert with that of Commerce. 	See
19 U.S.C. § 1673b(a). Therefore, the court sustains as reasonable Commerce’s industry
support determination in the underlying investigation.
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3. Challenge to Commerce’s Decision Not to Extend Its Deadline
to Initiate an Investigation
Finally, MSI challenges Commerce’s failure to extend the deadline to initiate,
arguing 	that 	“serious 	factual 	disagreements 	among 	interested 	parties” 	made
it unreasonable for Commerce to initiate its investigation after only 20 days. 	MSI Br.
at 25-26.
Upon determining that industry support meets the threshold for petitioner standing,
Commerce proceeds with an investigation. The investigation must generally commence
within 20 days of the petition’s filing. 19 U.S.C. § 1673a(c)(1)(A). However, Commerce
retains the discretion to extend this deadline where it requires more time to determine
industry support:
In any case in which the administering authority is required
to poll or otherwise determine support for the petition by the
industry under paragraph (4)(D), the administering authority
may, in exceptional circumstances, apply subparagraph (A)
by substituting “a maximum of 40 days” for “20 days”.
19 U.S.C. § 1673a(c)(1)(B).
In the underlying investigation, Commerce determined that an extension of the
industry support deadline was not necessary, as the agency found sufficient evidence
of industry support within the petition. 	See Initiation Checklist at Attach. II. 	MSI’s
argument that Commerce should have extended the industry support determination
deadline fails for two reasons. 	First, Commerce found the necessary industry support
to proceed without polling, thus making the option for a deadline extension irrelevant. See
Decision Memorandum at 37 (“There was no need for Commerce to poll the industry,
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as Commerce properly found that the petition was supported by domestic producers and
workers which account for more than 50 percent of the total production of the domestic
like product.”).
Second, even assuming Commerce could have extended its deadline, doing or not
doing 	so 	was 	within 	the 	agency’s 	discretion. 	See 	19 	U.S.C. 	§ 	1673a(c)(1)(B)
(“the administering authority may, in exceptional circumstances,” extend investigation
initiation deadline to forty days (emphasis added)); see also United States v. Rodgers,
461 U.S. 677 (1983) (“The word ‘may,’ when used in a statute, usually implies some
degree of discretion.”). 	As the statute expressly provides, Commerce’s discretion
to extend its deadline is reserved for “exceptional circumstances,” not for “serious factual
disagreements among interested parties.” 	Compare 19 U.S.C. § 1673a(c)(1)(B), with
MSI Br. at 26. 	MSI has failed to demonstrate that Commerce acted unreasonably
in finding that there were no “exceptional circumstances” to justify an extension under
§ 1673a(c)(1)(B). 	Accordingly, Commerce’s decision not to extend its deadline is
sustained.
IV. Conclusion
For the foregoing reasons, the court sustains the Final Determination as to
the challenges raised by MSI. Judgment will be entered accordingly.
/s/ Leo M. Gordon
Judge Leo M. Gordon
Dated: October 7, 2021
New York, New York
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