Evasion Finding Reversed by ORR Can't Be Overcome by 'Self-Serving' Arguments, Importer Says

CBP's Office of Regulations & Rulings correctly overturned the Trade Remedy & Law Enforcement Directorate's (TRLED) evasion finding against Dominican company Kingtom Aluminio in an Enforce and Protect Act administrative review, Kingtom said in an Aug. 23 brief at the Court of International Trade. Kingtom is intervening in a suit by the Aluminum Extrusions Fair Trade Committee (AEFTC), which seeks to overturn CBP's final determination of no evasion (Aluminum Extrusions Fair Trade Committee v. U.S., CIT # 22-00236).

Kingtom's brief came in specific response to an April motion for judgment from the AEFTC, which argued that Kingtom failed to cooperate to the best of its ability on the EAPA investigation and the TRLED correctly applied adverse inferences. AEFTC argued that ORR's conclusion on review that discrepancies in Kingtom's records didn't have "sufficient bearing" on its production capabilities shouldn't have overcome record evidence of Kingtom's alleged noncooperation (see 2304270035).

The AEFTC's entire argument is simply that CBP's Trade Remedy office was right and that Regulations & Rulings was wrong, Kingtom said. TRLED's conduct of the investigation showed that it was willing to use "any available basis" to show that two previous EAPA decisions against Kingtom were correct, the company argued. TRLED applied adverse inferences instead of admitting that its previous findings were incorrect, Kingtom said.

ORR found that the record didn't contain any instances of Kingtom withholding requested information and instead showed Kingtom's "active participation" in the investigation and the decision not to apply adverse inferences on review was a "reasonable exercise of discretion by ORR, Kingtom said.

The AEFTC's argument relies on its own "self-serving allegations" and cites since-reversed EAPA decisions in investigations where Kingtom wasn't even a party, the importer argued. Those arguments wouldn't hold up under the court's standard of review even if the alleged discrepancies were true, Kingtom said. Discrepancies in submissions likely wouldn't justify a finding of evasion, "let alone require the reversal of a finding of no evasion under the narrow arbitrary and capricious standard of review," Kingtom said.