ORR Dropped Ball When It Overturned Evasion Finding, Alleger Argues at CIT

CBP's Office of Regulations and Rulings wrongly overturned an evasion finding against Dominican company Kingtom Aluminio by CBP's Trade Remedy and Law Enforcement Directorate, the Aluminum Extrusions Fair Trade Committee (AEFTC) said in its Sept. 20 reply brief at the Court of Intenrational Trade (Aluminum Extrusions Fair Trade Committee v. U.S., CIT # 22-00236).

ORR acted arbitrarily and capriciously when it overturned TRLED's decision to apply adverse inferences, in reviewing evidence, and in its conclusions, AEFTC said. The committee asked the court to find ORR's determination to be arbitrary, capricious and an abuse of discretion, and to remand the decision for reconsideration.

Respondent Kingtom actively interfered with CBP's ability to verify information submitted by the company, the committee said. Kingtom prevented its workers from speaking with CBP officials and deleted relevant records, yet ORR then found Kingtom actively participated and was willing to provide additional information voluntarily. The issue is not whether ORR had the discretion to apply adverse inferences, AEFTC argued. The issue is whether the office acted arbitrarily and capriciously when it dismissed evidence of Kingtom's failure to cooperate.

ORR didn't reverse the evasion determination "in a vacuum," the committee said. The reversal needed to address the record of the original evasion finding, which it failed to do. AEFTC argued that the government "largely conceded" that ORR never addressed most of the "widespread discrepancies" in Kingtom's submissions, and arguments explaining the discrepancies do not cure ORR of its "failure to grapple with these issues," the committee said.

When addressing adverse inferences, ORR failed to acknowledge that TRLED had relied on Kingtom's ties to China as part of its application of AFA, the committee said. ORR also failed to find relevant Chinese exports of aluminum extrusions to the Dominican Republic shortly after Kingtom started operations in that country. Because of the discrepancies in Kingtom's submissions, CBP couldn't confirm that Kingtom didn't use Chinese-origin aluminum extrusions, and ORR wrongly dismissed those discrepancies, the brief said.

Both Kingtom and the government have attempted to provide post-hoc rationalization for ORR's determination, the committee said. "But this does not cure Regulations and Rulings' failure to grapple with the relevant issues in the first place."