While the Aluminum Extruders Council continues its legal battle with Kingtom through the Enforce and Protect Act (EAPA) process, the Department of Commerce (DOC) delivered a disappointing decision in the Reflections scope case. We will discuss both decisions in this month’s article. Additionally, imports continue to rebound after a drop during the more intense days of the global pandemic.
On May 3, 2021, Customs and Border Patrol (CBP) imposed interim measures in our EAPA case against Kingtom. The interim measures now require “China” duties to be put in place. The final determination deadline is November 29, 2021. We will have an opportunity to submit written arguments and rebuttal written arguments in advance of that deadline. This is a significant win in our mission to stop illegal and unfair trade activities by the Chinese. It also puts other Chinese-owned operations operating in third countries on notice that the AEC will take all necessary steps to stop any illegal actions.
In the other EAPA case filed by Ta Chen a month earlier than ours, the importers in that case have filed an appeal in the decision. One of the complaints noted that CBP’s administrative review determination found that the commingling of Chinese-origin and Dominican-origin extrusions was supported by substantial record evidence and constitutes more than a “mere scintilla” of evidence to support a finding of evasion. We think this is a good sign for the ongoing Administrative Review of these matters. To learn more about the EAPA process, listen to my podcast interview with our lead attorney, Robert DeFrancesco here.
Meanwhile, a hard-fought scope challenge finally came to a decision. Unfortunately, the decision did not go our way. Commerce found that Reflection Window + Wall’s window wall products qualify for the “finished goods kit” exclusion and are outside the scope of the Orders. Many resources, including a strong effort from several AEC members, were used to move this in our direction. We are convinced that this decision was lost due to the change in the administration. This matter was believed to be decided last fall, and we clearly had the momentum. However, after the election and political seats at the DOC were vacated, the decision was primarily made by career staffers who decided to go back to the way these matters were handled before the Trump administration. Sadly, even as I write this piece, appointments for these critical political posts at the Department of Commerce are still vacant. As they are filled, we will work hard to educate them about our case and how important these types of decisions are to our industry. Let there be no doubt about it, we will appeal this decision! Once in the courts, there is ample precedent set for finished vs. unfinished product that we believe will reverse this decision. Once reversed, the DOC will be tasked with re-writing their original decision and including this product in the scope of our orders. By then, we will have had a chance to meet with the DOC and let them know how important these products and the integrity of the scope of orders are to the success of our industry.
In the first three months of 2021, imports are at their highest level ever. With a strong economy driving demand for aluminum extrusions, now is the time foreign suppliers will attempt to establish a foothold into our market. Some of these imports may only be relief valves for hungry consumers, while others may be more lasting. What we need to know is whether some of these shipments are a result of Chinese transshipment. Furthermore, to the extent China is directly taking or competing for domestic orders, we need to know that as well for our upcoming sunset review. So, if your commercial people are reporting they lost orders to imports, please drill down, and learn as much as you can about why it happened. Is it 232 related? Was the order lost to a country that is on our bad actors list? Do you suspect illegal activity? We need to understand as much as we can from the field as we prepare for a deeper investigation. So, let me know all you can in this regard.
I hope you have enjoyed the podcasts we have produced this year about our case and its various elements. If you have not checked it out, click here to see what is available. Your feedback is welcome. So, let us know how we can do a better job! Thank you all for your continued support!
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