No Circumvention Inquiries for Products With Negative AD/CVD Determinations, Exporter Says
Vietnamese circular welded steel pipe exporter SeAH Steel Vina denied in a Jan. 13 brief that it was confusing antidumping and countervailing duty reviews with circumvention inquiries. Leaning on Loper Bright, it again argued that circumvention inquiries can’t be conducted into the same products from the same countries if they were previously found not to have been dumped or subsidized (SeAH Steel Vina Corp. v. United States, CIT Consol. # 23-00256, -00257, -00258).
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SeAH argued that the department couldn’t reach an affirmative finding of circumvention for the exporter with respect to its products because, in 2011 and 2015, respectively, it had calculated de minimis subsidies and a zero percent dumping margin for circular welded steel pipe from Vietnam. The governing statute instead requires Commerce to open a new investigation, it claimed.
Pushing back against opposition to its motion for judgment (see 2409230051 and 2410180053), SeAH said neither the U.S. nor defendant-intervenors had addressed the fact that the trade court must review the case under the Loper Bright standard, even though each claimed to have done so.
It also called the government’s understanding of the circumvention inquiry law a “syllogism." Commerce’s own regulations establish the same criteria for initiating circumvention inquiries as the statute itself, and the statute doesn’t “explicitly state that Commerce must consider previous negative investigation determinations in a circumvention inquiry,” so Commerce didn’t have to look to negative investigation determinations in a circumvention inquiry, the brief said.
But this “rests on the false assumption that the statute identifies the criteria for initiating a circumvention inquiry,” SeAH said.
It said that Congress “has been explicit whenever it identified the criteria for initiating proceedings under the Trade Act.” Because it was silent, however, on explicit criteria for initiating circumvention inquiries, that meant the law as written for circumvention inquiries isn’t exhaustive.
“Indeed, this Court has specifically noted that Commerce should consider factors not listed in the statute before initiating a circumvention inquiry,” it said.
The government also contradicted its own position by admitting that if SeAH’s products had been earlier subjected to antidumping or countervailing duties, Commerce wouldn’t have been able to conduct a circumvention inquiry, the exporter said. But this doesn’t appear explicitly in the statue, either.
It also disagreed that its interpretation of the statute would render circumvention inquiries “superfluous,” as the U.S. had argued. It said that, to the best of its knowledge, Commerce had never reached a circumvention finding for a product previously subject to an antidumping or countervailing duty investigation.
And it pushed back on opposing claims that Commerce’s prior negative AD/CVD determinations regarding SeAH’s products were irrelevant because they covered a different review period. Under law, those determinations should continue to apply until a new investigation is initiated, the exporter said.