Rail Coupler Exporter Says AD/CVD Scope in Its Case Too Broad
Exporter Wabtec filed a supplemental brief March 21 claiming that an International Trade Commission investigation was trying to reach lost export sales on behalf of the domestic industry (Wabtec Corp. v. U.S., CIT # 23-00160, -00161).
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Overall, it said in response to briefs from the U.S. and petitioner Coalition of Freight Coupler Producers, the government and the coalition both say that “Wabtec should lose” but “cannot agree on why.”
The U.S., on the one hand, “still cannot say who must address Wabtec’s argument that the scope cannot include couplers sold into Mexico for attachment to new railcars in Mexico,” it said. The primary question raised by its case is if the 1930 Tariff Act “reaches lost export sales,” it claimed. According to the government, it said, “no one” can answer that question.
“That cannot be right,” it said. “If accepted, this would grant petitioners an unlimited license to artfully draft a petition’s scope to cover lost export sales in every case -- even though, as no one seriously disputes, the Tariff Act is designed to address unfair competition in the United States.”
The Commerce Department can cure “such glaring defects in a petition” when defining an investigation’s parameters, Wabtec claimed. But the International Trade Commission, which is limited to Commerce’s scope delineations, cannot, it said.
On the other hand, it said petitioner Coalition of Freight Coupler Producers “arrives at [DOJ’s] same destination by a wholly different road.” The coalition claimed that Wabtec should have argued “attached” rail car couplers were a different domestic like product. But the exporter was not saying that “there are two domestic industries,” but rather that there is “no domestic industry,” Wabtec said.
It added that the unattached and attached rail couplers are “identical,” so there still wouldn’t have been two domestic industries for the ITC to consider.
Asking the court to “[g]o back to first principles,” it said that nobody disputes inputs can “lose their identity -- cease to exist -- in the eyes of the law when merged into a unitary article.” When this happens, however, that input can’t then be covered by an antidumping or countervailing duty order; it no longer exists, it said.
“There is a reason Defendants could not cite a single precedent in their favor,” it said. “It would upend ancient customs principles (e.g., condition of import rule), and eviscerate the limits on the trade-remedy laws, as petitioners could reach the tiniest inputs in the largest of products.”