EAPA Petitioner Says CBP Didn't Explain Use of Same Evidence to Reverse Evasion Finding

CBP did not adequately justify treating the same evidence differently when it reversed a recent finding on aluminum extrusions from China, the Aluminum Extrusions Fair Trade Committee told the Court of International Trade. In CBP's remand decision that reversed its finding that six companies evaded antidumping and countervailing duties on the extrusions, the industry organization said CBP used most, if not all, the same evidence "without providing a rational explanation" (H&E Home Inc., et al. v. United States, CIT Consol. # 21-00337).

The Aluminum Extrusions Fair Trade Committee added that CBP acted arbitrarily in not using adverse facts available against the parties that refused to provide public summaries of their confidential information despite multiple chances to do so. "Despite this clear failure to cooperate, CBP did not apply adverse inferences against these parties," the organization said. "CBP's refusal to do so, while requiring the other parties to expend the resources to submit the requested documents, was arbitrary, capricious, and an abuse of discretion."

In the Enforce and Protect Act investigation, CBP pointed to a "wide range of critical issues" that undermined the reliability of Dominican manufacturer Kingtom Aluminio's submissions, allegedly indicating that Kingtom did not actually make the aluminum extrusions in the Dominican Republic. These discrepancies involved Kingtom's production capacity, supplier information, invoices and payments. CBP used this information, paired with evidence of Kingtom's ties to China, to find that Chinese extrusion imports were transshipped or commingled in the Dominican Republic.

While initially using this evidence to find evasion, CBP took the same information and reversed its finding. CBP's Rulings and Regulations office "changed its mind and now broadly characterizes Kingtom's production records as complete and indicating that Kingtom had the capacity and capability to produce all the extrusions exported, citing daily production records, videos, and photographs, among other records," the Aluminum Extrusions Fair Trade Committee said. "But R&R previously found Kingtom's records, including daily production records, videos, and photographs, to be unreliable or to show minimal production."