CIT remands Commerce redeterminations on freight rail couplers from China

Slip Op. 26-

UNITED STATES COURT OF INTERNATIONAL TRADE

WABTEC CORPORATION,

Plaintiff,

and

STRATO, INC.,

Plaintiff-Intervenor,

v.

UNITED STATES,

Defendant,

and

COALITION OF FREIGHT COUPLER PRODUCERS,

Defendant-Intervenor.

Before: Gary S. Katzmann, Judge

Court No. 23-00160 &

Court No. 23-00161

OPINION AND ORDER

[ The U.S. Department of Commerce’s antidumping and countervailing redeterminations are remanded.]

Dated: October 8, 2026 C. Kevin Marshall, Jones Day, of Washington, D.C., argued for Plaintiff Wabtec Corporation. Also on the brief was Shelbie M. Rose.

Andrew T. Schutz and Ned H. Marshak, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP, of Washington, D.C. and New York, N.Y., for Plaintiff-Intervenor Strato, Inc.

Sosun Bae, Senior Trial Counsel, Commercial Litigation Branch, U.S. Department of Justice of Washington, D.C. argued for Defendant United States. Also on the brief were Brett A. Shumate, Assistant Attorney General, Patricia M. McCarthy, Deputy Director, and Claudia Burke, Deputy Director. Of counsel on the brief was Heather Holman, Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, D.C.

Daniel B. Pickard, Buchanan Ingersoll & Rooney PC, of Washington, D.C., argued for Defendant-Intervenor Coalition of Freight Coupler Producers. Also on the brief were Claire M. Webster and Carson Easterling.

Katzmann, Judge: The court considers anew a series of interlinked challenges brought by

Plaintiff Wabtec Corporation (“Wabtec”) and Plaintiff-Intervenor Strato, Inc. (“Strato”)

(collectively, “Plaintiffs”)1 related to the U.S. Department of Commerce (“Commerce”) and the

International Trade Commission’s (“the Commission”) determinations in the antidumping and

countervailing duty investigations of freight rail couplers (“FRCs”), the components that connect

freight train cars, from China and Mexico. See Compl., Wabtec Corp. v. United States, No.

23-cv-00157 (U.S. Ct. Int’l Trade filed Aug. 14, 2023) (“Wabtec I”), Sep. 13, 2023, ECF No. 9;

Compl., Wabtec Corp. v. United States, No. 23-cv-00160 (U.S. Ct. Int'l Trade filed Aug. 14, 2023)

(“Wabtec II”), Sep. 13, 2023, ECF No. 9; Compl., Wabtec Corp. v. United States, No. 23-00161

(U.S. Ct. Int'l Trade filed Aug. 14, 2023) (“Wabtec III”), Sep. 13, 2023, ECF No. 10. Like the

railcars of a train, these cases have progressed in tandem.2

This case involves two challenges3 to Commerce’s final determinations as to FRCs from

1 Wabtec and Strato are both U.S. importers of FRCs. See Pls.’ Mot. for J. on Agency R. at 1,

Wabtec II, Jan 22, 2024, ECF No. 32 (“Pls.’ Original Br.”); Consent Mot. to Intervene as of Right (Corrected) at 2, Wabtec II, Oct. 13, 2023, ECF No. 25. 2 Plaintiffs separately challenged the Commission’s material injury determination. Wabtec Corp.

v. United States, 49 CIT __, __, 805 F. Supp. 3d 1326, 1331 (2025). The court previously remanded the Commission’s determination for the Commission to reconsider or further explain its determination regarding the composition of the domestic industry. Id. at 1332, 1350. The court deferred consideration of the Commission’s ultimate affirmative injury determination at that time. Id. at 1349. After the Commission filed remand results maintaining and further explaining its original views, the court sustained the Commission’s material injury determination. Wabtec Corp. v. United States, 50 CIT __, __, 2026 WL 2690306, at *16 (Sep. 14, 2026). 3 The court joined Plaintiffs’ challenges to Commerce's antidumping and countervailing

determinations in Wabtec II and Wabtec III for hearing and decision. See generally Order Joining Cases, Wabtec II, Nov. 22, 2023, ECF No 31; Order Joining Cases, Wabtec III, Nov. 22, 2023, ECF No. 31.

China4 in both the antidumping duty investigation, Certain Freight Rail Couplers and Parts Thereof

From the People's Republic of China: Final Affirmative Determination of Sales at Less-Than-Fair

Value and Final Affirmative Determination of Critical Circumstances, 88 Fed. Reg. 34485, 34485

(Dep't Com. May 30, 2023), Wabtec II P.R. 2315 (“Final Antidumping Determination”), and the

countervailing duty investigation, Certain Freight Rail Couplers and Parts Thereof From the

People's Republic of China: Final Affirmative Countervailing Duty Determination and Final

Affirmative Critical Circumstances Determination, In Part, 88 Fed. Reg. 32184, 32184 (Dep't

Com. May 19, 2023), Wabtec III P.R. 309 (“Final Countervailing Determination”) (collectively,

“Final Determinations”).

At issue here is the scope of those investigations, which Commerce described as including

“[FRCs] . . . whether assembled or unassembled, whether mounted or unmounted, or if joined with

nonsubject merchandise, such as other nonsubject parts or a completed railcar.” Certain Freight

Rail Couplers and Parts Thereof From the People’s Republic of China and Mexico: Initiation of

Less Than-Fair-Value Investigations, 87 Fed. Reg. 64444, 64450 (Dep't Com. Oct. 25, 2022),

Wabtec II P.R. 97 (“Antidumping Initiation”); Certain Freight Rail Couplers and Parts Thereof

From the People's Republic of China: Initiation of Countervailing Duty Investigation, 87 Fed. Reg.

64440, 64441 (Dep't Com. Oct. 25, 2022) (“Countervailing Initiation”). The court previously

remanded the Final Determinations for Commerce to “reconsider[] or further expla[in] . . . its

decision not to exclude attached FRCs from the scope language.” Wabtec Corp. v. United States,

4 While the relevant investigations covered imports from both China and Mexico, Wabtec and

Strato here challenge only Commerce's antidumping and countervailing duty determinations with respect to China. See Compl. at 1, Wabtec II; Compl. at 1, Wabtec III. 5 All citations to the public and confidential records are to the joint appendices in both Wabtec II

and Wabtec III and are accordingly labeled either “Wabtec II P.R.” or “Wabtec III P.R.” Where the same documents appear in both joint appendices, P.R. numbers refer to the Wabtec II joint appendix.

49 CIT __, __, 815 F. Supp. 3d 1390, 1417 (2025) (“Remand Order”). On remand, Commerce

“continue[d] to find that attached FRCs were properly included in the scope of the Orders.” Final

Results of Redetermination Pursuant to Court Remand at 2 (Dep’t Com. Apr. 13, 2026), Apr. 13,

2026, ECF No. 74 (“Remand Results”).6

Plaintiffs now challenge Commerce’s Remand Results, renewing their argument that

“ ‘attached’ FRCs cannot be included [in the scope of the investigations], because they do not

cause injury cognizable in the United States.” Wabtec Corporation’s Rule 56.2(H) Comments on

the Department of Commerce’s Remand Determination at 1, May 13, 2026, ECF No. 78 (“Pl.’s

Br.”). For the reasons set forth below, the court finds that Commerce on remand again failed to

adequately explain its determination not to exclude attached FRCs from the scope of the

investigations and specifically failed to reasonably address Wabtec’s argument that attached FRCs

cannot cause injury that is cognizable under the antidumping and countervailing duty remedial

scheme. Accordingly, the court remands Commerce’s Remand Results for reconsideration or

further explanation of its decision not to exclude attached FRCs from the scope language.

BACKGROUND

The court presumes familiarity with the facts and legal framework underpinning this case

as set out in its Remand Order, see Remand Order, 815 F. Supp. 3d at 1399–1403, and now recounts

only that which is relevant to the court’s review of the Remand Results.

I. Legal Background

To facilitate fair trade, “[t]he Tariff Act of 1930, as amended, permits Commerce to impose

two types of duties on imports that injure domestic industries:” countervailing duties on goods that

6 Because the briefing and materials in both Wabtec II and Wabtec III are substantially identical,

all citations are to the docket in Wabtec II unless otherwise specified.

receive countervailable subsidies7 from a foreign government, and antidumping duties on goods

sold in the United States at less-than-fair value.8 Guangdong Wireking Housewares & Hardware

Co. v. United States, 745 F.3d 1194, 1196 (Fed. Cir. 2014). Commerce and the Commission have

distinct roles in antidumping and countervailing duty investigations.

First, Commerce initiates a countervailing or antidumping duty investigation either on its

own authority or when an interested party files a petition for antidumping or countervailing duty

relief. See 19 U.S.C. §§ 1673a(a)–(b), 1671a(a)–(b). After a petition is filed, Commerce

“determine[s] whether the petition alleges the elements necessary for the imposition of a duty

under [19 U.S.C. §§] 1673 [or 1671].” 19 U.S.C. §§ 1673a(c)(1)(A)(i), 1671a(c)(1)(A)(i). Where

the petition alleges the elements necessary for the imposition of antidumping or countervailing

duties, and meets other statutory requirements, Commerce “shall initiate an investigation.” Id.

§§ 1673a(c)(2), 1671a(c)(2); see also id. §§ 1673a(b)(1), 1671a(b)(1).

Commerce sets the investigation’s scope, or the subject merchandise to be covered by the

investigation. See Mitsubishi Elec. Corp. v. United States, 898 F.2d 1577, 1582 (Fed. Cir. 1990)

(Commerce has “the responsibility to determine the proper scope of the investigation . . . .”);

Kyocera Solar, Inc. v. U.S. Int’l Trade Comm’n, 844 F.3d 1334, 1339 (Fed. Cir. 2016) (“[T]he

statute vests Commerce with the role of determining the scope of the merchandise subject to

investigation.”); 19 U.S.C. § 1677(25) (“Subject merchandise” is “the class or kind of merchandise

7 “For a subsidy to be countervailable, it must meet certain requirements,” including that the

subsidy “is ‘specific’ to an enterprise or industry rather than generally available” and that “a foreign government provides a specific financial contribution to a party and that party benefits from the contribution.” Mosaic Co. v. United States, 160 F.4th 1340, 1342–43 (Fed. Cir. 2025) (citing 19 U.S.C. § 1677(5)(A)). 8 “Sales at less than fair value are those sales for which the ‘normal value’ (the price a producer

charges in its home market) exceeds the ‘export price’ (the price of the product in the United States) or ‘constructed export price.’ ” U.S. Steel Corp. v. United States, 621 F.3d 1351, 1353 (Fed. Cir. 2010) (quoting 19 U.S.C. § 1677(35)(A)).

that is within the scope of an investigation, review, . . . [or] order . . . .”). The petition is the

starting point for the scope language, and “Commerce owes deference to the petitioner’s intended

scope.” M S Int’l, Inc. v. United States, 32 F.4th 1145, 1151 (Fed. Cir. 2022). Ultimately, however,

Commerce “has inherent authority to define the scope of an . . . investigation,” NTN Bearing Corp.

of Am. v. United States, 14 CIT 623, 627, 747 F. Supp. 726, 731 (1990), and “may depart from the

scope as proposed by a petition if it determines that petition to be overly broad, or insufficiently

specific to allow proper investigation, or in any other way defective.” M S Int’l, 32 F.4th at 1151

(internal quotation marks and citation omitted); see also Duferco Steel, Inc. v. United States, 296

F. 3d 1087, 1089 (Fed. Cir. 2002) (explaining that while “[t]he petition initially determines the

scope of the investigation . . . Commerce has inherent power to establish the parameters of the

investigation, so that it would not be tied to [the] initial scope definition” within the petition

(internal quotation marks and citation omitted)).

After Commerce initiates and sets the scope of an investigation, the Commission separately

makes a determination as to “whether an industry in the United States is materially injured, or is

threatened with material injury, or the establishment of an industry in the United States is

materially retarded, by reason of imports, or sales (or the likelihood of sales) for importation . . . .”

19 U.S.C. §§ 1673b(a)(1), 1671b(a)(1); see also id. §§ 1673b(a)(2), 1671b(a)(2) (explaining

timing for the Commission’s determination). The Commission uses Commerce’s scope

determination in its investigations. Torrington Co. v. United States, 42 CIT __, __, 747 F. Supp.

744, 748 (1990), aff’d, 938 F.2d 1278 (Fed. Cir. 1991) (“[T]he [Commission] does not have the

authority to modify [Commerce’s] finding of class or kind . . . .”); Ad Hoc Shrimp Trade Action

Comm. v. United States, 515 F.3d 1372, 1381 (Fed. Cir. 2008) (“[T]he [Commission] must accept

the determination of [Commerce] as to the scope of the imported merchandise . . . .” (internal quotation marks and citation omitted)).

In an antidumping duty investigation, Commerce then “make[s] a final determination of

whether the subject merchandise is being, or is likely to be, sold in the United States at less than

its fair value.” Id. § 1673d(a)(1). In a countervailing subsidy investigation, Commerce “make[s]

a final determination of whether or not a countervailable subsidy is being provided with respect to

the subject merchandise.” Id. § 1671d(a)(1).

If the final determinations from both Commerce and the Commission are affirmative, then

Commerce “shall issue an antidumping [or countervailing] duty order.” Id. §§ 1673d(c)(2),

1671d(c)(2). If either determination is negative, “the investigation shall be terminated.” Id.

§§ 1673d(c)(2), 1671d(c)(2). Commerce thus imposes duties only where both Commerce and the

Commission have made affirmative determinations in their respective investigations. When

Commerce publishes an antidumping or countervailing duty order, that order must “include[] a

description of the subject merchandise, in such detail as the administering authority deems

necessary.” Id. §§ 1673e(a)(2), 1671e(a)(2); see also Duferco Steel, 296 F.3d at 1096

(“Commerce’s final determination reflects the decision that has been made as to which

merchandise is within the final scope of the investigation and is subject to the order.”); Hutchison

Quality Furniture, Inc. v. United States, 827 F.3d 1355, 1362 n.5 (Fed. Cir. 2016)

(“Commerce . . . determines whether a particular product falls within the scope of an antidumping

duty order.”).

II. Factual Background

A. Freight Rail Couplers (“FRCs”)

FRCs can be mounted onto the freight cars of trains and “connect two freight cars together

by automatically interlocking the knuckles of both FRCs when the freight cars are pushed together,

eliminating the need for previously required and potentially dangerous manual input.” Certain Freight Rail Couplers and Parts Thereof from China at 9, Inv. Nos. 701-TA-682, 731-TA-1592

(Final), USITC Pub. 5438 (July 2023) (“Commission Views”). In addition to connecting freight

cars, FRCs “reduce shocks when freight cars are in transit or braking.” Id. Freight cars typically

use two FRCs “to allow for coupling additional freight cars together” on both ends of the car. Id.

B. Investigation of FRCs from China and Mexico

On September 28, 2022, Defendant-Intervenor the Coalition of Freight Coupler Producers

(“the Coalition”) filed petitions for the imposition of antidumping and countervailing duties on

U.S. imports of freight rail coupler systems and components from China and Mexico. See

generally Letter from D. Pickard to G. Raimondo, Sec'y of Com., re: Certain Freight Rail Couplers

and Parts Thereof from the People's Republic of China and the United Mexican States: Petitions

for the Imposition of Antidumping and Countervailing Duties, Case No. A-570-145, Bar Code:

4289650 (Sep. 28, 2022), Wabtec II P.R. 1-44, C.R. 1-44 (“Petitions”). The Coalition’s petitions

indicated that “[s]ubject [FRCs] and parts are included within the scope . . . whether mounted or

unmounted, or if joined with nonsubject merchandise, such as other nonsubject parts or a

completed railcar.”9 Id. at 6. FRCs “joined with” completed railcars are also referred to as

“attached FRCs.” See Pls.’ Original Br. at 22–23.

On May 15, 2023, Commerce issued a final scope determination maintaining the scope as

including “[FRCs] attached to, or mounted on, freight railcars.” Mem. from E. Begnal to J.

Maeder, re: Freight Rail Couplers from Mexico and the People’s Republic of China: Final Scope

Decision Memorandum at 8 (Dep’t Com. May 15, 2023), Wabtec II P.R. 227 (“Final Scope

Mem.”). Commerce published its final affirmative determinations in May 2023. Final

Antidumping Determination, 88 Fed. Reg. at 34485; Final Countervailing Determination, 88 Fed.

9 “When a subject coupler or subject parts are mounted on or to other nonsubject merchandise,

such as a railcar, only the coupler or subject parts are covered by the scope.” Petitions at 7.

Reg. at 32184.

C. Remand

Throughout the investigations and judicial proceedings underlying this case, Wabtec has

continually argued that attached FRCs should not be included in the scope of the investigations

because “FRCs are not capable of causing a cognizable injury to the domestic FRC industry when

they are imported directly from China into a third country and mounted on and incorporated into

new rail[cars] there.” Letter from D. Morrell to G. Raimondo, re: Certain Freight Rail Couplers

and Parts Thereof from China and Mexico: Wabtec’s Scope Letter Brief at 2, Case No. A-570-145,

Bar Code: 4363875-01 (Apr. 10, 2023); see also Letter from D. Morrell to G. Raimondo, re:

Certain Freight Rail Couplers and Parts Thereof from China and Mexico: Comments on Proposed

Scope at 4, Case No. A-570-145, Bar Code: 4311522-01 (Nov. 17, 2022).

During the underlying investigation, Commerce disclaimed all authority to analyze

Wabtec’s arguments regarding the Coalition’s theory of injury, stating that “the question of injury

to the domestic [FRC] industry . . . is within the purview of the [Commission].” Mem. from E.

Begnal to J. Maeder, re: Freight Rail Couplers from Mexico and the People’s Republic of China:

Final Scope Decision Memorandum at 12 (Dep’t Com. May 15, 2023), Wabtec II P.R. 227.

On September 13, 2023, Wabtec brought two actions to challenge Commerce’s Final

Determinations. See Compl., Wabtec II, Sep. 13, 2023, ECF No. 9; Compl., Wabtec III, Sep. 13,

2023, ECF No. 10. The Coalition moved to intervene as a Defendant-Intervenor, and Strato moved

to intervene as a Plaintiff-Intervenor. See Consent Mot. to Intervene at 2, Wabtec II, Sep. 18, 2023,

ECF No. 17; Consent Mot. to Intervene at 2, Wabtec III, Sep. 18, 2023, ECF No. 18; Consent Mot.

to Intervene as of Right (Corrected) at 2, Wabtec II, Oct. 13, 2023, ECF No. 25; Consent Mot. to

Intervene as of Right (Corrected) at 2, Wabtec III, Oct. 13, 2023, ECF No. 25. The court granted

the motions to intervene. Order, Wabtec II, Sep. 18, 2023, ECF No. 18; Order, Wabtec II, Oct. 16, 2023, ECF No. 27; Order, Wabtec III, Sep. 18, 2023, ECF No. 19; Order, Wabtec III, Oct. 16, 2023,

ECF No. 28.

The court ultimately remanded Commerce’s Final Determinations and instructed

Commerce to “reconsider whether to modify the scope language to exclude attached FRCs.”

Remand Order, 815 F. Supp. 3d at 1418. Based on Commerce’s authority to “determine the scope

of the investigation, as well as the authority to modify the scope language until the final order is

issued,” Kyocera Solar, Inc. v. United States, 41 CIT __, __, 253 F. Supp. 3d 1294, 1315 (2017),

the court determined in its Remand Order that Commerce “cannot disclaim all authority to modify

the scope language simply because an argument proposing such a modification relates to injury.”

Remand Order, 815 F. Supp. 3d at 1412. The court expressed the following concern with the

Government’s position that Commerce cannot consider injury when tailoring the scope of the

investigations:

Such a conclusion would mean that petitioners could sneak products that cannot

cause injury by reason of import into duty orders simply by including them in

proposed scope language that also includes products that cause significant injury.

So long as some in-scope merchandise causes a large enough injury to result in the

Commission’s affirmative injury determination regarding the merchandise as a

whole, the in-scope merchandise causing the injury could mask the presence of

in-scope merchandise that causes no injury whatsoever. It falls to Commerce to

tailor the scope to avoid such an “overly broad” result. Id. (quoting NTN Bearing, 14 CIT at 627, 747 F. Supp. at 731). Accordingly, the court remanded

Commerce’s Final Determinations for Commerce to reconsider or further explain its decision not

to exclude attached FRCs from the scope language. Id. at 1417.

PROCEDURAL HISTORY

Commerce released draft remand results on March 12, 2026, and received administrative

comments from Wabtec, Strato, and the Coalition on March 23, 2026. See Draft Results of

Redetermination Pursuant to Court Remand, Case No. A-570-145, Bar Code: 4893829 (Dep’t Com. Mar. 12, 2026); Letter from K. Marshall to H. Lutnick, Sec’y of Com., re: Draft Remand

Comments, Case No. A-570-145, Bar Code: 4899476-01 (Mar. 23, 2026); Letter from A. Schutz

to H. Lutnick, Sec’y of Com., re: Draft Remand Comments, Case No. A-570-145, Bar Code:

4898976-01 (Mar. 23, 2026); Letter from D. Pickard to H. Lutnick, Sec’y of Com., re: Comments.

on the Draft Remand Redetermination, Case No. A-570-145, Bar Code: 4899155-01 (Mar. 23,

2026); see also Remand Results at 6. Commerce filed its final Remand Results with the court on

April 13, 2026, finding that “both attached and unattached FRCs may cause cognizable injury to

the petitioner,” and that “both types of FRCs were properly included in the scope of the Orders.”

Remand Results at 14.

Wabtec filed comments in opposition to the Remand Results on May 13, 2026. See Pl.’s

Br. Strato filed a letter in lieu of comments, indicating that it “supports, and incorporates by

reference, all arguments in [Wabtec’s briefing].” Letter in Lieu of Remand Cmts. from Andrew T.

Schutz, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP to the Ct., May 13, 2026, ECF

No. 77. The Coalition filed comments in support of the Remand Results on June 12, 2026. See

Cmts. in Supp. of the Final Results of Redetermination Pursuant to Ct. Remand, June 12, 2026,

ECF No. 83 (“Def.-Inter.’s Br.”). Defendant, the United States (“the Government”), filed its

responsive comments in support of Commerce’s Remand Results on June 12, 2026. See Def.’s

Cmts. in Supp. of Remand Redetermination, June 12, 2026, ECF No. 84 (“Gov’t Br.”).

The court issued and the Parties responded to questions in advance of oral argument. See

Ct.’s Letter re: Qs. for Oral Arg., July 7, 2026, ECF No. 87 (“OAQs”) ; Resps. to Qs. for Oral Arg.,

July 21, 2026, ECF No. 90 (“Def.-Inter.’s OAQ Resp.”); Resp. to Qs. on Com.’s Remand

Determination, July 21, 2026, ECF No. 91 (“Pls.’ OAQ Resp.”); Def.’s Resp. to Ct.’s Qs. for Oral

Arg., July 21, 2026, ECF No. 92 (“Gov’t OAQ Resp.”). With all papers filed, the court held oral argument on July 27, 2026. See Scheduling Order, July 1, 2026, ECF No. 86. As directed by the

court, the Parties filed supplemental briefs following oral argument. See Def.-Inter.’s Post-Arg.

Submission, Aug. 4, 2026, ECF No. 95; Pl.’s Post-Arg, Submission, Aug. 4, 2025, ECF No. 96;

Def. Post-Arg. Submission, Aug. 4, 2026, ECF No. 97.

JURISDICTION AND STANDARD OF REVIEW

Jurisdiction lies under 28 U.S.C. § 1581(c). The court will “hold unlawful any

determination, finding, or conclusion found . . . to be unsupported by substantial evidence on the

record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i). Substantial

evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Broadcom Corp. v. U.S. Int’l Trade Comm’n, 28 F.4th 240, 249 (Fed. Cir. 2022)

(quoting Honeywell Int’l, Inc. v. U.S. Int’l Trade Comm’n, 341 F.3d 1332, 1338 (Fed. Cir. 2003)).

“The court will find a determination unlawful where Commerce has failed to carry out its

duties properly, relied on inadequate facts or reasoning, or failed to provide an adequate basis for

its conclusions.” Rhone-Poulenc, Inc. v. United States, 20 CIT 573, 575, 927 F. Supp. 451, 454

(1996). Commerce “must examine the relevant data and articulate a satisfactory explanation for

its action including a ‘rational connection between the facts found and the choice made.’ ” Motor

Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins. Co. Farm Mut. Auto. Ins. Co., 463 U.S.

29, 43 (1983) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962))

(referring to the arbitrary and capricious standard); see also Yangzhou Bestpak Gifts & Crafts Co.

v. United States, 716 F.3d 1370, 1378 (Fed. Cir. 2013) (citing Amanda Foods (Viet.) Ltd. v. United

States, 33 CIT 1407, 1417, 647 F. Supp. 2d 1368, 1379 (2009)) (requiring the same of the agency

with respect to the substantial evidence standard). Commerce must also provide “an explanation

of the basis for its determination that addresses relevant arguments, made by interested parties who

are parties to the investigation or review.” 19 U.S.C. § 1677f(i)(3)(A).

DISCUSSION

I. Commerce Did Not Adequately Explain Why the Scope of the Investigations

Should Include Attached FRCs

On remand, Commerce “determined to maintain attached FRCs in the scope of these

investigations,” stating that this determination “follow[ed] [its] practice in investigations to

provide ample deference to the petitioner to clarify and identify the products for which it seeks

relief.” 10 Remand Results at 8.11

The court finds Commerce’s explanation of its scope determination to be inadequate

because (1) Commerce did not sufficiently address Wabtec’s arguments that attached FRCs do not

cause injury “by reason of import[,]” (2) Commerce relied on materials that do not sufficiently

support its conclusion that attached FRCs are in scope, and (3) Commerce did not adequately

address the court’s concerns about potential masking.

A. Commerce Did Not Adequately Address Wabtec’s Arguments that the

Scope of the Investigations Should Not Include Merchandise that

Cannot Cause Injury “By Reason of Import”

To justify its remand redetermination to include attached FRCs in scope, Commerce

10 As the court noted in the Remand Order, Commerce’s deference to the petitioner’s

recommended scope “does not absolve Commerce of its authority to define the scope of the investigation and any subsequent orders.” Remand Order, 815 F. Supp. 3d at 1412–13. Just as there, “[d]eference to the petitioner’s intended scope does not prevent Commerce from establishing a scope that reflects information obtained during the investigation—including relevant arguments from interested parties.” Id. at 1413. 11 The Government acknowledges that Commerce bears the “responsibility . . . to determine the

scope of merchandise . . . .” Gov’t Br. at 9. In contrast, the Coalition continues to suggest that Commerce cannot engage with the relevant inquiry regarding a cognizable theory of injury. See, e.g., Def.-Inter.’s Br. at 1–2 (arguing that “it is not the role of the scope language to put forth a ‘cognizable theory of injury.’ ”). The court previously rejected this argument, finding that “Commerce’s authority to tailor scope language to avoid . . . overly broad results does not encroach upon the Commission’s responsibility to evaluate the existence of injury.” Remand Order, 815 F. Supp. 3d at 1412; see also Mitsubishi Elec. Corp., 898 F.2d 1577, at 1582 (Fed. Cir. 1990) (Commerce has “the responsibility to determine the proper scope of the investigation . . . .”). The court declines to reconsider its position on this issue.

described the import of attached FRCs as involving two purchases: the sale of a Chinese FRC to a

Mexican railcar producer, and the sale of a Mexican railcar with an attached Chinese FRC to a

U.S. customer. See Remand Results at 18. Commerce found “that injury occurs when the FRC

enters the United States,” id. at 11, and the Government described that “it is the second purchase

in the United States that causes cognizable harm to the domestic industry,” Gov’t OAQ Resp. at 3

(emphasis added). Commerce suggested that “[t]he second purchaser of FRCs is in the United

States, and when that purchaser opts for a railcar with an attached FRC of Chinese origin, the harm

to the United States FRCs industry occurs by reason of such imports.” Remand Results at 18.

Beyond this conclusory statement, Commerce did not adequately explain how the domestic

industry could be injured by “reasons of import” of attached FRCs under 19 U.S.C. § 1673b(a)(1)

or 19 U.S.C. § 1671b(a)(1).

Wabtec repeats its challenge to Commerce’s inclusion of attached FRCs as in the scope of

the investigations. See Pl.’s Br. at 3. According to Wabtec, Commerce has still not sufficiently

addressed its argument that attached FRCs cannot cause injury “by reason of import[,]” and thus

they should be “exclude[d] from the scope of the orders.” Pl.’s Br. at 2–4. Wabtec argues that the

injury relevant to attached FRCs is the lost export sales of FRCs resulting from Mexican railcar

producers’ choice to purchase Chinese FRCs rather than American FRCs during the first purchase.

See Pl.’s Br. at 7. In Wabtec’s view, the domestic industry cannot be injured “by reason of imports”

of attached FRCs, as required by the antidumping and countervailing duty remedial schemes,

because that first purchase occurs in Mexico and does not involve importation into the United

States, and attached FRCs thus should not be included in the scope of the investigation. Id. at 7–

9; 19 U.S.C. §§ 1673b(a)(1), 1671b(a)(1).

Wabtec argues that harm caused to the U.S. domestic industry by FRCs attached to freights cars in Mexico is not a “cognizable injury under §§ 1671 and 1673.” Pl.’s Br. at 9. Instead, Wabtec

suggests the harm from attached FRCs to the U.S. domestic industry is caused by “ ‘third-country

dumping,’ ” and injuries from third-country dumping are addressed under a “narrower and

diplomatic remedial scheme” set forth in 19 U.S.C. § 1677k. Pl.’s Br. at 9–10. That provision

allows “[a] domestic industry that produces a product that is like or directly competitive with

merchandise produced by a foreign country” to file a petition if “merchandise produced by a

foreign country . . . is being dumped in [a third] country” and “such domestic industry is being

materially injured . . . by reason of such dumping.” 19 U.S.C. § 1677k(b)(1).12

Throughout these proceedings, Wabtec and Strato have argued that “[w]here the domestic

industry loses an export sale [of an FRC] to Mexico, its alleged injury is the same regardless of

whether the Chinese FRC later (1) enters the United States attached to a railcar, (2) is sent to a

third country, or (3) remains in Mexico.” Pl.’s Br. at 6 (emphasis in original); see also Pls.’ Original

Br. at 24 (“[W]here the domestic industry loses [a sale to a new railcar builder in Mexico], the

injury to the domestic industry is the same whether or not the merchandise that won the sale later

enters the United States.”).

Commerce, in its Remand Results, did not provide an adequate “explanation of the basis

for its determination that addresses [this] relevant argument[] made by interested parties.” 19

U.S.C. § 1677f(i)(3)(A).; see generally Remand Results. In the Remand Results, Commerce stated

that “[w]hether [an attached FRC] is attached in Mexico is immaterial . . . [because] the U.S.

domestic industry theoretically is losing a domestic sale of [and FRC] whenever a Chinese [FRC]

—attached or unattached to something else —is sold in the United States.” Remand Results at 11.

12 If the United States Trade Representative “determines that there is a reasonable basis for the

allegations in the petition,” then the Trade Representative “submits to the appropriate authority of the [third] country” and requests that “appropriate antidumping action” be taken in the third country on behalf of the United States. 19 U.S.C. § 1677k(c)(1).

This explanation merely states a conclusion. To adequately address Wabtec’s argument,

Commerce needs to explain how the U.S. domestic industry is injured because of an import, rather

than being injured by losing an export sale of an FRC to be attached in Mexico.13

Prior to oral argument, the court asked the Government to specifically address Wabtec’s

argument that the second sale cannot be a cause of injury by reason of import to the domestic

industry, asking: “[w]hich purchase—the first purchase in Mexico or the second purchase in the

United States—causes the harm to the domestic industry?” OAQs at 4. The Government

responded that “it is the second purchase in the United States that causes cognizable harm to the

domestic industry.” Gov’t OAQ Resp. at 3. But neither the Government nor Commerce has

persuasively explained how or why that harm would occur by reason of import. See, e.g., Remand

Results at 11 (“Whether it is attached in Mexico is immaterial . . . the U.S. domestic industry

theoretically is losing a domestic sale of a coupler . . . .”); Gov’t Br. at 11 (“the only relevant

purchaser for purposes of determining scope is the domestic purchaser of the attached FRC.”).

Instead, the Government stated that “[t]he antidumping and countervailing duty laws were

established to protect the domestic industry from unfairly priced goods entering the United States

market . . . . Accordingly, the first purchase of the subject merchandise in Mexico would not cause

harm to the domestic industry if that merchandise never enters the United States.” Gov’t OAQ

Resp. at 3. The fact that the statute was established to protect the domestic industry from unfairly

priced goods entering the United States does not address whether attached FRCs cause harm to the

domestic industry “by reason of import[].” 19 U.S.C. §§ 1673d(b)(1), 1671d(b)(1). The

13 Regardless of whether FRCs are substantially transformed via attachment, the fact that

attachment occurs outside of the United States is still relevant to the question of whether attached FRCs cause injury by reason of import. See Remand Order, 815 F. Supp. 3d at 1417; see also Bell Supply Co. v. United States, 888 F.3d 1222, 1229 (Fed. Cir. 2018) (“[S]ubstantial transformation analysis [is used] to determine country of origin . . . .”).

Government’s answer does not demonstrate that Commerce provided a reasonably discernable

response to Wabtec’s argument that attached FRCs cannot cause cognizable harm under the

relevant statute and thus should not be in scope.

B. The Materials Commerce Relied Upon Do Not Adequately Support Its

Determination that Attached FRCs Should Be in the Scope of the

Investigations

Much of Commerce’s analysis relies on materials that do not demonstrate that attached

FRCs cause cognizable injury. Specifically, Commerce relied on the Commission’s affirmative

injury determination, a subsequent Enforce and Protect Act (EAPA) allegation filed with U.S.

Customs and Border Protection (“Customs”), and its previous administrative decisions to justify

finding attached FRCs as in scope. These materials do not adequately support Commerce’s

determination.

First, Commerce refers to the Commission’s affirmative injury determination. Commerce

“[found] that the [Commission’s] injury determination is relevant to Wabtec’s arguments regarding

injury.” Remand Results at 11. Commerce suggests that its determination to maintain attached

FRCs as in scope is consistent with the Commission’s determination to “include[] all FRCs,

whether attached or unattached, in its determination that the domestic industry was injured.” Id.

This logic is a tautology.

The fact that the Commission made a final affirmative injury determination for all FRCs,

whether attached or unattached, is of no matter to Commerce’s scope determination. “It is

Commerce, not the [Commission], that determines the ‘class or kind’ of imported merchandise that

will be subject to the investigation,” Nucor Corp. v. United States, 42 CIT __, __, 296 F. Supp. 3d

1276, 1282 (2018), and “the [Commission] has the authority to make a final determination of

material injury only for ‘the merchandise with respect to which [Commerce] has made an

affirmative determination,’ ” Ad Hoc Shrimp, 515 F.3d at 1381 (emphasis added) (quoting 19 U.S.C. § 1673d(b)). In its final injury determination, the Commission itself noted that it “must

accept Commerce’s determination as to the scope of the imported merchandise . . . .” Commission

Views at 5 n.12 (first citing USEC, Inc. v. United States, 34 Fed. App’x 725, 730 (Fed. Cir. 2002);

and then citing Algoma Steel Corp. v. United States, 12 CIT 518, 522–523, 688 F. Supp. 639, 644

(1988), aff’d, 865 F.3d 240 (Fed. Cir.), cert. denied, 492 U.S. 919 (1989)).14

The Commission’s single affirmative injury determination for all FRCs does not suggest

that attached FRCs can cause injury “by reason of import[].” 19 U.S.C. §§ 1673d(b)(1),

1671d(b)(1). The scope language that Commerce set at the outset of the investigation framed the

Commission’s material injury analysis. See Commission Views at 5–8 (noting that the scope

determination “includes FRCs attached to railcars”); Duferco Steel, 296 F.3d at 1089 (“Commerce

has inherent power to establish the parameters of the investigation . . . .” (internal quotation marks

and citation omitted)). To use that affirmative material injury determination to support

Commerce’s determination of the scope is circular and unpersuasive.

Next, Commerce points to a subsequent allegation filed with Customs under EAPA that an

importer of attached FRCs is evading payment on duties. Remand Results at 13. Commerce

suggests that “the petitioner’s EAPA allegation demonstrates that: (1) dumped and subsidized

attached FRCs continue to enter the United States; and (2) the petitioner is still being injured such

that it is expending resources to ensure that all imports of attached FRCs are being appropriately

classified at entry.” Id. However, the EAPA investigation is still ongoing. Pl.’s Br. at 17–18. The

allegation alone cannot conclusively indicate anything about whether attached FRCs can cause

14 In its final injury determination, the Commission noted that its “ ‘domestic like product’ analysis

begins with the ‘article subject to an investigation,’ i.e., the subject merchandise as determined by Commerce.” Commission Views at 5. In making its final injury determination, the Commission evaluates how the imported subject merchandise affects the prices of domestic like products and producers of domestic like products. Id. at 27; 19 U.S.C. § 1677(7)(B).

injury to the domestic industry “by reason of import[].” 19 U.S.C. §§ 1673d(b)(1), 1671d(b)(1).

Additionally, Customs’s EAPA investigation addresses whether a company is evading antidumping

or countervailing duties. 19 U.S.C. § 1517(b)(1). Customs will not consider the question before

Commerce here—whether attached FRCs can cause injury “by reason of import[].” 19 U.S.C

§§ 1673d(b)(1), 1671d(b)(1).

Finally, Commerce cites other administrative determinations that include attached and

assembled products as in scope to support its analysis. See Remand Results at 11–13. Those scope

determinations are of little persuasive value here because in those administrative proceedings

Commerce did not consider whether the petitioner’s theory of injury regarding the attached or

assembled products was cognizable. See Kaptan Demir Celik Endustrisi v. Ticaret A.S., 49 CIT

__, __, 803 F. Supp. 3d 1291, 1313-14 (2025) (declining to find a practice to be permissible based

on Commerce’s past practice where an interested party in the prior proceeding “did not raise the

issue” of whether Commerce’s action was permissible); see also 19 U.S.C. § 1677f(i)(3)(A)

(Commerce must provide “an explanation of the basis for its determination that addresses relevant

arguments . . . .”); cf. Al Ghurair Iron & Steel LLC v. United States, 65 F.4th 1351, 1360 (Fed.

Cir. 2023) (“Commerce's analysis here is consistent with its prior determination.” (emphasis in

original)).

For example, Commerce points to scope language in its final duty order on brake drums

from China and Turkey, which states that “[s]ubject brake drums are included within the scope

whether imported individually or with non-subject merchandise (for example, a hub), whether

assembled or unassembled, or if joined with non-subject merchandise.” Certain Brake Drums

from the People’s Republic of China and the Republic of Turkiye: Countervailing Duty Orders, 90

Fed. Reg. 38753, 38755 (Dep’t Com. August 12, 2025). However, no party in that administrative proceeding suggested that assembled brake drums should not be included in the scope of

merchandise subject to investigation. See generally Mem. from K. Archuletta to S. Fullerton, re:

Antidumping Duty and Countervailing Duty Investigations of Certain Brake Drums from the

People’s Republic of China and the Republic of Turkiye: Final Scope Decision Memorandum at

3, Case Nos. A-570-174, C-570-175, A-489-853, C-489-854, Bar Code: 4778262-01 (Dep’t Com.

June 13, 2025).

Commerce also points to similar scope language in its final duty order on aluminum

extrusions from China, which includes extrusions “whether assembled with other parts or

unassembled.” Aluminum Extrusions From the People’s Republic of China: Final Affirmative

Determination of Sales at Less Than Fair Value, 89 Fed. Reg. 80506, 80509 (Dep’t Com. Oct. 3,

2024). Certain interested parties there argued that “aluminum extrusions that enter the United

States as an input to subassemblies and other downstream products,” do not qualify as “subject

merchandise” under the plain meaning of the definition of “merchandise.” Mem. from A.

Villanueva and S. Smith to S. Fullerton, re: Less-Than-Fair Value and Countervailing Duty

Investigations of Aluminum Extrusions from the People’s Republic of China, Colombia, Ecuador,

India, Indonesia, Italy, the Republic of Korea, Malaysia, Mexico, Taiwan, Thailand, the Republic

of Turkiye, the United Arab Emirates, and the Socialist Republic of Vietnam: Final Scope Issues

and Decision Memorandum at 28, Case No. A-570-158, Bar Code: 4638340-01 (Dep’t Com. Sep.

26, 2024). However, the interested parties in that proceeding did not suggest that aluminum

extrusions assembled with non-subject merchandise could not cause injury by reason of

importation. See id. at 17–23, 28–31. Commerce therefore did not consider that argument.

Overall, these past determinations are incongruous to this matter because the interested parties did

not present arguments that the merchandise could not cause injury by reason of importation and thus should not be included in the scope of the investigations

Regardless, the court has consistently held that Commerce’s investigations are “sui generis,

consisting of a set of variables and relative factors.” Trust Chem. Co. v. United States, 35 CIT

1012, 1024, 791 F. Supp. 2d 1257, 1268 (2011); see also U.S. Steel Corp. v. United States, 33 CIT

984, 1003, 637 F. Supp. 3d 1199, 1218 (2009) (“[E]ach agency determination is sui generis,

involving a unique combination and interaction of many variables . . . .”); Hitachi Metals, Ltd. v.

United States, 949 F.3d 710, 718 (Fed. Cir. 2020). Thus, Commerce’s past determinations, based

on different variables and factors, do not persuade the court to find Commerce adequately

explained that attached FRCs can cause injury to the domestic industry “by reason of import[,]”

and thus should be included in the scope of the investigations. 19 U.S.C. §§ 1673d(b)(1),

1671d(b)(1).15

C. Commerce Did Not Adequately Address the Court’s Concerns about

Potential Masking from Overly Broad Scope Determinations

Additionally, Commerce did not adequately address the court’s concern with masking.

Recall that in its Remand Order, the court reasoned that “[s]o long as some in-scope merchandise

causes a large enough injury to result in the Commission’s affirmative injury determination

15 Additionally, the court has previously expressed doubt that the Tariff Act of 1930 permits the

inclusion of upstream, assembled products like the FRCs assembled into railcars here. In Worldwide Door Components, Inc. v. United States, the court noted that “[Commerce’s] current interpretation of [antidumping and countervailing duty orders] can result in the assessment of antidumping and countervailing duties on products that are not sold or offered for sale in the United States but instead are upstream components in the merchandise that actually is imported and sold.” 49 CIT __, __, 787 F. Supp. 3d 1363, 1374 (2025). The court went on to state that it “is unaware of Tariff Act provisions that expressly authorize Commerce to structure or apply an antidumping or countervailing duty order in this way.” Id. Similarly, in Mosaic Co. v. United States, the court, per the same session as in Worldwide Door, contemplated a scope that includes an ingredient “when commingled (i.e., mixed or blended) with [an imported product,]” stating that “[a]rguments can be made that the Department’s inclusion of the upstream products within the scope of the Order was contrary to law.” 47 CIT __, __, 659 F. Supp. 3d 1285, 1294–1295 (2023). In neither case did the plaintiffs argue that upstream merchandise does not cause injury by reason of importation. See id.; Worldwide Door, 787 F. Supp. 3d at 1374.

regarding the merchandise as a whole, the in-scope merchandise causing the injury could mask the

presence of in-scope merchandise that causes no injury whatsoever.” Remand Order, 815

F. Supp. 3d at 1412. Wabtec argues that “[t]his case exemplifies those concerns” because “[o]nce

the Commission found unattached FRCs to cause material injury, it had no discretion to exclude

attached FRCs from the scope. . . .” Pl.’s Br. at 12.

In its Remand Results, Commerce stated that the scope does “not create an ‘overly broad

result,’ that could cause certain products causing injury to mask the lack of injury from other

products” and “note[d] that there is evidence that the entry of attached FRCs continues to cause

injury to the domestic industry.” Remand Results at 11–12. However, evidence that the domestic

industry is injured is not sufficient; what matters here is how the domestic industry is harmed.

Commerce does not sufficiently explain whether the injury related to attached FRCs is caused by

importation or a loss of export sales.

Prior to oral argument, the court asked the Government to specifically address the concern

about masking, inquiring whether “Commerce sufficiently contemplated whether its determination

could mean that ‘petitioners could sneak products that cannot cause injury by reason of import into

duty orders simply by including them in proposed scope language that also includes products that

cause significant injury . . . .’ ” OAQs at 5 (quoting Remand Order, 815 F. Supp. 3d at 1412). The

Government provided the following response:

This case, if affirmed, will not stand for the proposition that petitioners could sneak

products that cannot cause injury into an order simply by including them in

proposed scope language that also includes products causing significant injury.

This is because, in every case, Commerce analyzes the petitioner’s proposed

language and the relevant evidence to determine the scope, ensuring that the scope

language is not ‘overly broad, insufficiently specific or defective.’ Gov’t OAQ Resp. at 6– 7 (citation omitted). Nevertheless, Commerce has not provided an

adequate analysis explaining why the petitioner’s proposed scope language to include attached FRCs is not “overly broad”. M S Int’l, 32 F.4th at 1151; see generally Remand Results.

The court continues to see masking as a potential concern because Commerce’s scope

determination sets the parameters of the Commission’s material injury determination. The

Commission could not, and did not, alter the scope of the investigations when it evaluated whether

imported FRCs injured the domestic industry by reason of importation. See Commission Views

at 5, 27–28. Therefore, the inclusion of both attached and unattached FRCs in the scope underlying

the Commission’s material injury determination could mask that attached FRCs cannot cause

injury by reason of importation, as Wabtec alleges.

CONCLUSION

In sum, Commerce does not adequately address Wabtec’s argument that attached FRCs

should not be in the scope of the investigations because FRCs attached in Mexico cannot cause

injury “by reason of import[,]” and thus do not create a cognizable injury under the antidumping

and countervailing remedial schemes. 19 U.S.C. §§ 1673d(b)(1), 1671d(b)(1). Moreover, the

materials Commerce used to justify including attached FRCs in the scope of investigations do not

sufficiently support its determinations. Finally, Commerce’s Remand Results do not satisfactorily

address the court’s concern that petitioners could engage in masking by sneaking products that

cannot cause injury by reason of import into antidumping and countervailing duty orders by

including them in proposed scope language alongside products that do cause injury. Accordingly,

the court holds that Commerce’s Remand Results are not supported by substantial evidence and

not in accordance with law. The court remands Commerce’s Remand Results for reconsideration

or further explanation as to whether attached FRCs should be excluded from the scope of the

antidumping and countervailing duty investigations of FRCs from China and Mexico.16 It is

16 If Commerce alters its scope determination on remand, then the Commission may need to

reconsider its final material injury determination using the revised scope. See Ad Hoc Shrimp, hereby:

ORDERED that Commerce is instructed to reconsider or further explain whether to

modify the scope language to exclude attached FRCs, and it is further

ORDERED that Commerce shall file its second remand redetermination with the court

within ninety days of the date of this opinion. The timeline for filings and comments regarding

the remand redetermination shall proceed according to USCIT Rule 56.2(h).

SO ORDERED.

/s/ Gary S. Katzmann

Gary S. Katzmann, Judge Dated: October 8, 2026

New York, New York

515 F.3d at 1383 n.8 (“Commerce argues convincingly that the statutorily mandated procedures apply to an amended fair value determination that changes the scope of the investigation, and accordingly, that if Commerce amended its final determination to include [merchandise], the [Commission] would reconsider its final material injury determination as part of its routine obligation . . . .”).