Commerce Correctly Applied AFA to Fill in Record in Truck and Bus Tires Case, DOJ Says

The Commerce Department correctly applied adverse facts available when it decided to countervail the Chinese Export Buyer’s Credit Program (EBCP) in its second administrative review of the countervailing duty order on truck and bus tires from China, DOJ argued in a May 22 response to respondent Qingdao Ge Rui Da Rubber Co.'s (GRT's) motion for judgment (Qingdao Ge Rui Da Rubber Co., Ltd., v. United States, CIT # 22-00229).

The Chinese government failed to cooperate to the best of its ability in the review when it refused to provide requested information and so Commerce was unable to verify claims of non-use of the EBCP by GRT, DOJ said. By failing to submit a declaration of non-use by its affiliate and only U.S. customer, GRT failed to fill in gaps in the record caused by the Chinese government's noncooperation. Because of these record gaps, Commerce correctly applied AFA and found the EBCP to be countervailable, argued the government.

If a mandatory respondent provides non-use certifications for all of its U.S. customers, Commerce has adopted a practice of issuing supplemental questionnaires to verify the certifications instead of simply applying an adverse inference. However, DOJ argued that GRT did not provide non-use certifications for any customer, forcing Commerce to skip additional information gathering that may have backed up GRT's assertions.

Finally, DOJ argued that GRT failed to raise a non-use certification argument at the administrative level and instead argued that the Chinese government had cooperated fully. Because GRT did not exhaust its argument that it provided a certification administratively, the court should not entertain it, DOJ said.