Chinese Exporter, Customer Attack Another Recent Application of AFA for EBCP by Commerce
Exporter The Ancientree Cabinet Co. and importer Craft33 Products said in two July 7 motions for judgment that the Commerce Department had again wrongly applied adverse facts available claiming potential use of China’s Export Buyer’s Credit Program (The Ancientree Cabinet Co. v. United States, CIT # 24-00223).
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
Ancientree was a mandatory respondent in Commerce’s 2022 administrative review of the countervailing duty order on wooden cabinets and vanities from China. Although the exporter said it provided non-use certificates from all of its customers, Commerce found that the Chinese government and Ancientree hadn’t adequately verified importers’ non-use of the program because not all customers provided complete supplemental questionnaire responses.
The exporter called this an “unreasonable” requirement.
Craft33, a customer of Ancientree, described the EBCP non-use questionnaire as “burdensome” and a “great expense,” in its own brief. It said it itself has provided “substantial evidence showing non-use of the program, but is “being penalized” for the refusal of other Ancientree customers to cooperate. It asked the court to require Commerce to reduce Ancientree’s CVD rate proportionate to the number of its customers who had participated in the review.
Both Ancientree and Craft33 emphasized the many previous cases involving EBCP. Ancientree listed a large number of cases that it said saw the Court of International Trade rejected Commerce’s use of AFA for the program from 2018 to the present, including Risen Energy (see 2412190006), Yama Ribbons & Bows, (see 2408060009), Guizhou Tyre (see 2105270080), Changzhou Trina Solar Energy (see 2205190032) and others. And Craft33 said that “[t]his litigation is all the more frustrating as Commerce has persisted in the same policy, despite numerous court decisions and multiple remands.”
In all of the cases it cited, the rationale “is the same,” Ancientree said: “the Department must explain what necessary information is actually missing to prevent verification of the record information of non-use.”
It said Commerce hasn’t done so in this case. Ancientree provided non-use certificates for all of its importers, and the Chinese government conducted a search of each importer’s name in its Export-Import Bank database, providing printouts, the exporter said.
Nothing on the record indicated use of the program by any customer, it claimed. On the other hand, it argued, the record evidence it had provided clearly demonstrated that it hadn’t used the program. More than half of its customers offered Commerce “very expansive and highly confidential information,” it said.
Ancientree also said that the department has been able to verify non-use using the EXIM Bank database, as it did in a countervailing duty investigation on 2,4-dichlorophenoxyacetic acid from China. In its final determination, Commerce explained that use of the program could be identified by “the disbursement of funds by the EXIM Bank to the respondent as payment for shipments to U.S. customers,” or otherwise by “the existence of an EXIM Bank account in the respondent’s chart of accounts, trial balance, or general ledger.”