Pea Protein Exporters Challenge Commerce's Application of AFA With Regard to EBCP
Pea protein exporters filed their motion for judgment March 4 in their case challenging the use of adverse facts available for China's Export Buyer's Credit Program in a countervailing duty investigation (Zhaoyuan Junbang Trading Co. v. United States, CIT # 24-00180).
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In 2021, Court of International Trade Judge Timothy Reif likened litigation regarding the Export Buyer's Credit Program to the film Groundhog Day (see 2105270080), although since then the court and the department have settled on allowing exporters to verify non-use of the program by providing Commerce certificates from all of their U.S. customers (see 2306140032).
Junbang alleged in its motion that Commerce ignored the fact that some of its customers provided certifications of non-use. It instead assigned AFA “based on a 100% non-response rate," the exporter claimed.
It cited prior cases in which a similar decision by Commerce in a review was reversed by the court. Acknowledging that the issue at present involves an investigation -- in which “the information must be verified” -- rather than a review, it said that the precedent still applied. It said that Commerce hadn’t asked to examine “this element” during verification, although it could have.
“The Department should follow precedent, particularly where as here the precedent is on all fours with the facts in this case, and must, at a bare minimum, adjust the rate downward to reflect the established nonuse,” it said.
It also argued that Commerce hadn’t alerted Junbang to its deficiency, even though it is required to do so. Although the department issued multiple supplemental questionnaires, none mentioned the Export Buyer’s Credit Program, it said.