Dominican Aluminum Extrusion Co. Challenges AD/CVD Reviews Based on EAPA Determinations
The Commerce Department's conclusion that Dominican manufacturer Kingtom Aluminio had exports subject to the antidumping duty order on aluminum extrusions from China based on CBP's Enforce and Protect Act investigation is an "abdication of its legal responsibility" to conduct administrative reviews, Kingtom said in an April 8 complaint. Taking its grievance to the Court of International Trade, Kingtom also said that the decision to find that the exporter had goods subject to the AD order based on adverse facts available is a due process violation (Kingtom Aluminio v. U.S., CIT #22-00072 to -00079).
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CBP, in the EAPA investigation into aluminum extrusions from China transshipped through the Dominican Republic, found that Kingtom evaded the antidumping duties, although Kingtom says CBP "cited absolutely no evidence" in finding that its extrusions originated in China. Following this, Commerce initiated the 2019-2020 administrative review of the AD order on aluminum extrusions from China. Commerce used the EAPA investigation to pick Kingtom as the sole mandatory respondent in the review. Commerce used subsequent EAPA investigations, which were based on AFA, to guide its determinations in the review.
During proceedings, Kingtom requested a scope ruling so that Commerce could decide whether Kingtom's aluminum extrusions are subject to the AD and countervailing duty orders on aluminum extrusions from China. The exporter requested that the scope inquiry take place in conjunction with the administrative review. Commerce, though, said that the EAPA determinations conclusively find that Kingtom's entries are subject to the orders, deferring the scope inquiry "until such time as there are entries not subject to the EAPA proceedings" or all other legal remedies are exhausted.
Kingtom argues that Commerce's finding that the exporter had shipments of subject merchandise based on the EAPA investigations is an "abdication" of its responsibility to conduct AD administrative reviews. "By making its determination based only on the CBP EAPA determinations while ignoring the vast majority of submitted evidence," Commerce violated the law, the complaint said.
Commerce also violated Kingtom's due process rights since neither the exporter nor its counsel was able to see the evidence in its entirety for the administrative review's conclusion since its results were based on the EAPA investigations, the complaint said. The exporter also went on to challenge Commerce's "virtually complete reliance on the AFA CBP EAPA determinations" as a violation of the substantial evidence standard.
Kingtom filed a second complaint at CIT contesting Commerce's administrative review of the countervailing duty order on aluminum extrusions from China. While Commerce did not pick Kingtom as a mandatory respondent in the review, the agency did use AFA on Kingtom and denied it a scope inquiry. "Commerce’s deferral of Kingtom’s scope inquiry constitutes 'agency action unlawfully withheld or unreasonably delayed' that the Court should compel pursuant to the Administrative Procedure Act," the complaint said.