EAPA Intervention Challenge Continues for Alleged Transshipper; CIT Allows Affidavit to Back Motion

Aluminum extrusion producer Kingtom Aluminio requested to intervene in a Court of International Trade case over an antidumping duty evasion investigation that found it transshipped aluminum extrusions from China through the Dominican Republic to skirt the duties. A previous request was denied by Judge Richard Eaton (see 2106210059). Undeterred, Kingtom filed a motion for reconsideration in the court. Eaton permitted the producer on Aug. 5 to support its motion with an affidavit by individuals who can speak to Kingtom's interests in the case along with a brief, with a maximum of 10 pages, to explain how this affidavit satisfies the requirement for intervention (Global Aluminum Distributor LLC v. United States, CIT #21-00198).

In its motion to reconsider its right to intervene, Kingtom said the court failed to consider numerous facts and reasons to grant the intervention. Eaton had a one-word answer to this contention: "Maybe." Going through each of the producer's claims, the judge found that Kingtom failed to clearly lay out the extent of each one of them, declaring them "generally conclusory."

For instance, Kingtom attempted to establish that it had an interest in the merchandise at issue in the case -- a requirement for intervention at CIT. For starters, the producer said that its sales to the plaintiff, Global Aluminum Distributor, are enough to satisfy an interest in the merchandise. However, Eaton said that Kingtom doesn't explain "how the sales of its merchandise to Plaintiffs give Kingtom a continuing interest in any of these matters." Beyond selling to just Global Aluminum, Kingtom asserted that CBP's findings that the producer's aluminum extrusions are of Chinese origin give it reason to intervene. "While Kingtom states that it has been 'profoundly' harmed by the 'legal effects' of the final determination, it fails to state with any clarity or specificity what the harm would be," Eaton said.

Eaton also pointed to a recent CIT decision, North American Interpipe, Inc. v. United States, for "guidance on how to clear the standard for intervention." In North American Interpipe, a slew of domestic steel producers were denied the right to intervene in challenges to Section 232 steel and aluminum tariff exclusion requests (see 2105260037). The decision discussed, among other things, how a proposed intervenor must establish a legally protectable interest in the case. The decision is currently being appealed to the U.S. Court of Appeals for the Federal Circuit.