No Waiting Period Before New AD/CVD Investigations Can Be Launched, US Says

The U.S. on April 5 rejected an importer’s claim that, based on the legislation governing changed circumstances reviews, the Commerce Department may not begin any new antidumping or countervailing duty investigations on a product within two years of the prior one (Wabtec Corporation v. U.S., CIT # 23-00160, -00161).

“There is nothing unlawful with initiating a new investigation close in time to a previous one,” the U.S. said.

The legislation cited by importer Wabtec, 19 U.S.C. 1675, details the requirements Commerce must abide by to launch a changed circumstances review. However, paragraph b(4) of the statute says neither Commerce nor the International Trade Commission may review the final determinations of AD/CVD investigations within two years lacking “good cause,” without specifying that this only applies to changed circumstances reviews (see 2401230052).

Even though it doesn’t state as such explicitly, the rule only pertains to changed circumstances reviews, the government said. It said this is supported by “basic canons of statutory interpretation” that hold that “identical words used in different parts of the same act are intended to have the same meaning.” So the term “review” refers to “changed circumstances review” throughout section 1675(b), it said.

And even if the court does find that “review” in paragraph b(4) of the regulation applies broadly, Commerce’s most recent investigation of Wabtec’s products wasn't illegal, the U.S. said.

Wabtec brought two cases to the Court of International Trade to challenge both the 2021 affirmative antidumping determination and the 2021 countervailing duty and critical circumstances determination Commerce made regarding its freight rail couplers from China.

Commerce’s initiation of those investigations was legal even though ITC had reached a negative injury determination in another inquiry regarding Wabtec’s products only two months prior, the government said. The new inquiries weren't changed circumstances reviews, it said. They were “separate investigation[s]” that had “a different period of investigation and a different mix of merchandise.”

The government also said that Wabtec’s argument conflated the terms “review” and “investigation.” It said that “under any meaning of the term ‘review,’” the new investigations “did not ‘review’ the ITC’s prior negative injury determination in Freight Rail Couplers I.”

And it added that, “to the extent Wabtec attempts to rely on non-statutory finality principles,” the importer had not exhausted its administrative remedies, having not adequately developed its argument before Commerce.

“Although Wabtec raises a series of creative challenges regarding the scope, at bottom, Wabtec simply disagrees that freight rail couplers retain their distinct identity when attached to railcars -- a factual finding reviewed under the deferential substantial evidence standard,” it said.