US, EAPA Petitioner Fail to Address Challenges in Aluminum Sheet EAPA Case, Importer Argues
The U.S. and Enforce and Protect Act petitioner Texarkana Aluminum "failed to address the determinations challenged by" plaintiff AA Metals "in any meaningful way, often ignoring or misconstruing the issues" in the case and playing a "game of gotcha," AA Metals argued in a Dec. 1 reply brief at the Court of International Trade. In particular, the U.S. pushed "the same flawed analysis" from the Commerce Department's scope finding by arguing that certain [redacted] temper products are subject to the antidumping and countervailing duty orders on common alloy aluminum sheet from China (AA Metals v. United States, CIT #22-00051).
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The case stems from an EAPA investigation CBP began in May 2021 to find out if goods imported by AA were evading the AD/CVD orders on CAAS from China by way of Turkey. Unable to find whether certain products in two different scenarios were in the scope of the orders, CBP then asked Commerce for a scope ruling. The goods described in "Scenario 2" are defined as “Chinese-origin aluminum sheet of a thickness covered by the scope re-rolled in Turkey to a thickness covered by the scope."
During the scope proceeding, AA Metals defined the product as "continuous cast coil with a thickness of 3-20 mm, which is considered primary unwrought aluminum." AA Metals said that the Chinese product that's shipped to Turkey is not subject to the orders since the input is continuous cast coil, which is unwrought aluminum made by casting without hot- or cold-rolling, and that a "certain temper product is non-subject merchandise."
Nevertheless, Commerce said that the goods under Scenario 2 are subject to the orders since the goods shipped to Turkey are within the scope of the orders "as flat-rolled aluminum sheet having a thickness of 6.3 mm or less, but greater than 0.2 mm, in coils or cut-to-length, regardless of width." The Scenario 2 products were not excluded based on their temper. AA Metals then took to the trade court, arguing that the scope decision violated the law since it found that the Scenario 2 products were not continuous cast coil goods, among other things (see 2202280045).
Replying to arguments from the U.S. and Texarkana, AA Metals said that the defendant and defendant-intervenor simply reiterated the rationale of the final scope finding and that their arguments should be dismissed. The U.S., for instance, argued that certain temper products are subject to the orders since distinctions in mechanical properties don't appear in the orders. "However, Defendant misconstrues AA Metals’ arguments on the discussion of mechanical properties and demonstrates a fundamental misunderstanding of the merchandise subject to the China CAAS Orders," the brief said. "Defendant appears to argue that [ ] temper is a common alloy sheet without pointing to any administrative evidence to support such an assertion and ignores the basic principle that mechanical properties are physical properties that a material exhibits upon the application of forces."
Commerce's actions in the case "are particularly troublesome" considering this is a covered merchandise referral, "meaning that CBP has a record before it and CBP is unable to determine whether this clearly defined product is subject to the China CAAS Orders for purposes of making an evasion determination," AA Metals said.