Importer Again Argues Commerce Can’t Launch New Investigations Within 2 Years of Old One

In reply briefs May 17, a rail coupler importer refused to back down on its argument before the Court of International Trade that the Commerce Department can’t begin new investigations fewer than two years before completion of a previous one due to statutory language governing changed circumstances reviews (Wabtec Corporation v. U.S., CIT #s 23-00160, -00161).

The importer, Wabtec, argued in a motion for judgment for two cases in January that 19 U.S.C. 1675(b)(4), which falls into a section that covers changed circumstances reviews, clearly states that Commerce cannot review any final determinations in antidumping or countervailing duty investigations within two years without “good cause” (see 2401230052). In response, the U.S. (see 2404080049) and a petitioner (see 2404230059) argued that that paragraph only applies to changed circumstances reviews, even though it doesn’t say so explicitly.

But their reading “has no basis in text, structure, history or precedent,” Wabtec said. It argued that the U.S. was insisting that the section “means something other than what it says when read against the previous three paragraphs of subsection (b).”

The importer also argued that its freight rail couplers, which are imported attached to freight cars, cannot be within the scope of the relevant AD order -- as Commerce found in a recent review -- because the petitioner “proposed including attached [freight rail couplers] in scope based on a noncognizable theory of injury.” The only injury the petitioner claimed was loss of export sales, for which the sale of attached freight rail couplers were not a but-for cause of injury, Wabtec said.

Finally, it again took aim at Commerce’s interpretation of the AD order itself, saying that its attached freight rail couplers did not fall within the scope of the orders because products must be assessed for classification in the condition in which they are imported. Therefore, Commerce should have only asked whether railcars, not the attached couplers, fell under the scope of the orders, it said.