CBP Illegally Initiated EAPA Investigation on Door Thresholds Already Outside of Scope, Importer Argues

Finished door thresholds already found to be outside the scope of antidumping and countervailing duty orders on aluminum extrusions from China cannot constitute covered merchandise for the purposes of an Enforce and Protect Act evasion investigation, Columbia Aluminum said in an April 6 brief at the Court of International Trade (Columbia Aluminum Products v. U.S., CIT Consol. # 19-00185).

CBP's partial reversal on remand in a different case to find the thresholds are finished merchandise excluded from the AD/CVD orders should have resulted in a similar reversal of its EAPA evasion determination, Columbia said.

Indeed, CBP in its administrative review correctly found that merchandise is subject to an AD/CVD order only if it is the type of merchandise described in the order and from the particular country covered by the order. According to CBP’s administrative review, evidence demonstrates Columbia’s assembled thresholds were completed in Vietnam and exported from Vietnam, not China.

Commerce's decision to instead sustain its EAPA evasion finding based on a separate anti-circumvention inquiry conducted by Commerce was "irrational," Columbia said. "Commerce’s circumvention determination had nothing to do with the merchandise at issue -- a fact the Government appears to acknowledge," the brief said.

CBP reasoned that the circumvention determination, when combined with the scope ruling, meant that Columbia’s thresholds imported from Vietnam were still covered merchandise. That circumvention determination only involved remelting Chinese aluminum extrusions in Vietnam, not the merchandise under investigation in the EAPA case, Columbia said.

Columbia previously claimed that CBP illegally started the investigation since the physical characteristics of the imported merchandise were clearly outside the scope of the orders. Its door thresholds have never been subject to the orders, which were imposed in 2011, since they are finished merchandise. Even if the thresholds were covered merchandise, CBP did not have the basis to launch an EAPA case until the date of the scope ruling, Columbia said.

The government had asked the court to stay final judgment pending an appeal of the scope remand but the government still has not made any appeal and the court rejected "a similar attempt by Endura," Columbia argued.