Commerce 'Mischaracterized' Respondent's EBCP Non-Use Evidence, CIT Brief Says
The Commerce Department "explicitly mischaracterized record evidence" when it said countervailing duty respondent Qingdao Ge Rui Da Rubber Co.'s (GRT's) only U.S. customer didn't certify that it had not used China's Export Buyer's Credit Program, the respondent argued in a Feb. 17 motion for judgment at the Court of International Trade. Commerce also failed to properly use adverse facts available over the EBCP, since the agency is required to find whether any information on the record could fill the gap that renders AFA unnecessary, but did not, the motion said (Qingdao Ge Rui Da Rubber Co., Ltd., v. United States, CIT # 22-00229).
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The case concerns the 2020 review of the countervailing duty order on truck and bus tires from China in which GRT was assigned a 1.78% CVD rate for allegedly benefiting from the EBCP -- a program under which China's Export-Import Bank pays U.S. businesses to buy Chinese exports. Commerce used AFA for the program after the Chinese government refused to provide two pieces of information about the program. The agency claims the information was key to certifying whether CVD respondents used the program. While the trade court has repeatedly struck down this position, a few judges have recently upheld the use of AFA in this way as reasonable.
Commerce justified its use of AFA, in part, by claiming GRT's sole U.S. customer did not submit a certificate showing it did not use the EBCP. "This is false," GRT responded. The customer said in its questionnaire response that it did not use the EBCP program, and certified that the information it provided in the questionnaire response was accurate. That should cover all responses in the questionnaire, including the statement of EBCP non-use, GRT said.
"Although Commerce purported to identify missing information in an effort to justify using adverse facts available, nothing identified creates a material gap in the issue of whether GRT used the EBC program," GRT said. "On that point the record is clear: all of the evidence submitted to Commerce supports a finding that GRT, and [the U.S. customer], did not benefit from the EBC program. Commerce cannot turn away from the complete record evidence supporting a finding of non-use and instead resort to adverse facts available to impute that GRT benefitted from the program."