Exporter's Cited Statute Applies to Changed Circumstance Reviews, Not All Reviews, Petitioner Says

A domestic petitioner April 19 supported the U.S. in a case involving an antidumping duty investigation on freight rail couplers, saying that the case’s plaintiff, an exporter, had misunderstood the rules of statutory interpretation. That exporter has argued that the Commerce Department is barred from beginning new investigations fewer than two years before a previous one was completed (see 2404080049), pointing to statutory language governing changed circumstances reviews that appears to apply broadly (Wabtec Corporation v. U.S., CIT # 23-00161).

The petitioner, Coalition of Freight Coupler Producers, said that the fact 19 U.S.C. 1675(b)(4)c, which covers changed circumstance reviews, says only that “reviews” cannot be initiated within two years of a prior one without good cause doesn’t mean that the clause applies to all reviews and investigations. “Changed circumstances review” is a legal term of art, it said.

“When Congress employs a term of art obviously transplanted from another legal source, it ‘brings the old soil with it,’" the coalition said

Exporter Wabtec essentially claimed the petitioner had sought a changed circumstances review, but evidence clearly showed it had sought a new investigation, the petitioner said.

Wabtec also argued that the department wrongly applied countervailing duties to its freight rail couplers attached to nonsubject freight cars, which the exporter said meant its entries had been out of scope, but Commerce correctly found that the couplers “maintained their identity” as distinct products, the coalition said.

The petitioner said it intended the couplers to be covered whether or not they were mounted, and it had “maintained this position throughout the investigation,” it said. It said that the couplers were not permanently attached to the railcars and are designed to be removed and replaced.

Commerce regularly applies duties to subject merchandise commingled with other products, it said.

And it asked the court not to be swayed by Wabtec’s allusion to Greek myths. In its motion for judgment, the exporter referenced the Greek philosophical question known as “the ship of Theseus,” which asks whether an item retains its identity even after all of its parts have been replaced. It did so in support of its argument that, when parts are assembled into one larger product, those products are no longer subject to AD/CVD orders. This applied in the current instance because the couplers were part of the overall railcars, it said.

This was not a relevant argument, the coalition argued. It said it was not advocating “that all parts of a railcar be considered as parts, rather than parts of a whole, upon import.” This situation was different because the orders, it pointed out, had specified that they covered the couplers even if they were mounted on the railcars.