Domestic Trade Group Says CBP's Recent Reversal in EAPA Case Puts Enforcement 'in Jeopardy'

CBP’s reversal in an antidumping and countervailing duty evasion case at the Court of International Trade case puts the agency’s entire Enforce and Protect Act program “in jeopardy,” the domestic industry group Aluminum Extruders Council said in a blog post July 13.

The agency’s new finding that a Dominican manufacturer, Kingtom, didn't evade AD/CVD on aluminum extrusions from China may mark a shift away from EAPA’s robust enforcement and back to the slow and opaque e-allegations process in place prior to EPA’s enactment, AEC said. CBP originally found Kingtom evaded AD/CVD by way of transshipment in its final EAPA determination, but in June, on voluntary remand at CIT, found Kingtom had enough production capacity to produce the goods it purportedly exported to the United States.

CBP’s “recent voluntary reversal of its decisions in all three EAPA filings against Kingtom indicate that the program may have slid back into the traditional E-Allegation program used by Customs for years,” AEC said. “That program has been dubbed the ‘Black Box.’ Once you file your claim, you never hear a word.”

AEC will now turn to forced labor allegations in its “fight” against Kingtom, it said. “Kingtom has been found guilty of worker abuse, and we have filed a Withhold Release Order with Customs demanding that they apply U.S. law and forbid Kingtom from selling their merchandise in the U.S.,” it said. “We are hoping Customs sees that as a new and legitimate path to addressing the illegal activities of this Chinese plant born out of China’s Belt and Road program.”

Reached for comment, David Craven, Kingtom's lawyer in the CIT case, emailed: "The AEC is upset because the U.S. Justice system worked. The AEC made an allegation. The allegation was examined. The purpose of the EAPA statute is not to allow a U.S. industry to eliminate its competition based on an un-examined 'trust me' allegation. If this were the 'approach' of the statute, it would not provide for administrative and judicial review of the initial determination. At the conclusion of the examination process, the AEC allegation was found not to have merit and was rejected. CBP and the Courts did their job."

"This is America, where we have legal processes that protect both those that file allegations and those against whom allegations are filed," Craven said. "Frankly, claims that allegations that are fully examined and rejected at the end of the process somehow place the law in jeopardy are un-American and weaken the entire system of Justice. Entities that make such claims should take a long and hard look at their patriotism."

Meanwhile, AEC also will seek reinstatement of Section 232 duties on aluminum extrusions at upcoming hearings on the tariffs, AEC said. The domestic trade group also will ask for “changes to the exclusion process that make us eligible to object to exclusion requests, and allow the AEC to speak on behalf of the industry and empowered to file objections itself,” it said. “If Commerce will allow our requests, all aluminum extrusion shipments will once again be subject to the 10% tariff on the total value of the imported extrusions. Unfortunately, the duty would not extend to countries that have been given a permanent exclusion, such as Mexico. However, it will address several other countries whose imports continue to grow.”