Cabinet Exporter Says No Need to Exhaust Claims on Double Counting of Trade Remedies

Exporter The Ancientree Cabinet Co. said both the government's and petitioner American Kitchen Cabinet Alliance's claims that the Commerce Department didn't need to make an export subsidy adjustment for Ancientree since the company failed to exhaust its administrative remedies "fail to properly contemplate" this requirement (The Ancientree Cabinet Co. v. United States, CIT # 23-00262).

Filing a reply brief on Sept. 25 at the Court of International Trade, Ancientree said the issue regarding its claimed export subsidy adjustment is a pure question of law, precluding the need for exhaustion, and was also "raised before the agency as a ministerial error." As a result, Commerce's "obligation was straightforward and legally compelled," the brief said.

Ancientree said that in the 2021-22 AD review on wooden cabinets and vanities, Commerce failed to raise the company's U.S. sales by the amount of a countervailed export subsidy it allegedly received under China's Export Buyer's Credit Program. The petitioner said the exporter is barred from raising the issue in court under the doctrine of judicial estoppel, since Ancientree was able to prevent much of the subsidy from being countervailed in a separate case on the underlying countervailing duty investigation (see 2408270055).

In response, Ancientree said this claim "fails to accurately portray the arguments made in each case." The exporter said when it took to the court, its goods were subject to a 10.54% CVD rate for the EBCP. "Ancientree could not possibly presume that due to that ongoing litigation, the 10.54 EBC rate would be removed such that it should not pursue this litigation," the brief said. "The principle of judicial estoppel simply does not apply to this situation."

As it stands now, "Ancientree’s second review imports are subject to the 10.54 EBC rate in its CVD margin and yet the AD margin was not adjusted for this obvious fact of the Department’s own making," the brief said. The court in the case on the CVD investigation didn't tell Commerce to drop the 10.54% subsidy rate for all customers or "dictate the complete outcome of the case." In addition, the separate suit was on the investigation and not the present review, the company noted.

Ancientree added that the exhaustion requirement shouldn't be applied, since the law makes it "per se unreasonable" for Commerce to double count trade remedies, which it did here. The exporter also said the issue is a purely legal one and not a methodological one as claimed by the U.S. "There are no disputed facts or methodological questions," the brief said. The fact that the EBCP is an export subsidy isn't in dispute, it said.