Importer Says Commerce Can't Start New AD Investigation Two Months After Finishing Old One

The Commerce Department is barred by law from beginning any new antidumping duty investigations less than two years after it completed an AD investigation on the same product, an importer argued Jan. 22 in the Court of International Trade (Wabtec Corporation v. U.S., CIT # 23-00160).

Wabtec, a freight rail coupler importer, sought summary judgment in its case to derail the Commerce Department’s AD investigation regarding freight rail couplers from China.

Commerce illegally launched the recent investigation only two months after it reached a negative determination in a previous one that covered the same merchandise, the importer said.

In its argument, the importer relied on 19 U.S.C. 1675(b)(4). That section details the requirements for Commerce to initiate a changed circumstances review, but paragraph (b)(4) says that Commerce and the International Trade Commission can't review their final determinations in AD/CVD investigations within two years without "good cause." Wabtec argued that the two-year clause’s language covers all investigations and reviews, not just those for changed circumstances.

“The sole basis for Commerce’s refusal to terminate the investigation was the flawed assumption that Section 751(b) applied only to ‘a changed circumstances review,’” it said. “Commerce rested this interpretation solely on the subsection title.”

Because the domestic petitioners that sought the second investigation couldn't show any “new developments” had occurred to justify it, Wabtec argued, nor make any claims of good cause, Commerce’s new investigation was barred by the statute.

“In particular, because the scope and periods of investigation for the two investigations overlapped, the Commission could not make an affirmative finding" in its second freight rail couplers investigation "without finding injurious the very same imports it found non-injurious" in the first, it said.

Wabtec also argued that Commerce improperly included freight rail couplers that were attached to railcars in the scope of its final determination.

The petitioners asked Commerce to consider freight rail couplers imported into both the U.S. and Mexico, the importer said. Even if the products were dumped in Mexico, any injury suffered by U.S. industries would be by U.S. exporters, not importers, and therefore be out of the scope of a less than adequate remuneration investigation, it said.

Wabtec also claimed that freight rail couplers attached to rail cars had experienced a “substantial transformation,” again falling out of scope.