Commerce Can't Defer to CBP EAPA Determination to 'Defer' Scope Request, Exporter Says
The Commerce Department can’t deny a Dominican aluminum extrusions exporter’s scope ruling request on the basis that CBP has already ruled on the merchandise in an Enforce and Protect Act evasion investigation, the exporter, Kingtom Aluminum, said in a letter filed with Commerce in early August.
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Commerce had days earlier “deferred” Kingtom’s request that Commerce find its aluminum extrusions are not subject to antidumping and countervailing duties. The merchandise at issue was the subject of CBP EAPA determinations that U.S. importers are importing Chinese aluminum extrusions from Kingtom in the Dominican Republic, claiming Dominican origin in a transshipment scheme intended to evade AD/CV duties (see 2104280032).
Kingtom had requested the scope ruling be conducted in conjunction with the 2019-20 AD duty administrative review on aluminum extrusions from China. Commerce, noting that CBP’s EAPA determinations encompass all entries during that period, said it “must consider these [EAPA] determinations conclusive.”
“Consequently, for entries covered by completed or ongoing EAPA proceedings, or appeals or litigation arising from them, we defer initiation of this scope inquiry until such time as there are entries not subject to EAPA proceedings or until the parties to the EAPA proceedings have exhausted all other administrative and legal remedies,” Commerce said. The EAPA determinations are now the subject of litigation at the Court of International Trade (see 2108050069).
In its letter, Kingtom said that the agency has no authority to “defer” a scope inquiry, and may only rule on the scope request or reject it if not properly filed. “The Department neither followed these regulations with respect to Kingtom's scope ruling request nor identified any deficiencies in Kingtom's scope ruling request to warrant not addressing it,” Kingtom said.
And Commerce’s “assertion that somehow it is legally bound to defer to CBP’s determinations when addressing Kingtom’s scope ruling request is unsupported,” Kingtom said. “It is well established that the Department, not CBP, is the ‘master’ of the antidumping law,” the letter said. Commerce “is obligated to make its own factual findings on scope pursuant to the statute of which the Department, not CBP, is the administering authority.”