Guizhou Tyre Co., Ltd. v. United States, 415 F.Supp.3d 1335

Plaintiffs Guizhou Tyre Co., Ltd. and Guizhou Tyre Import & Export Co. challenged Commerce’s countervailing-duty (CVD) determinations for 2015 imports of off‑the‑road tires from the PRC.
Commerce’s Amended Final Results treated the Chinese Export Buyer’s Credit Program (EBCP) as used/beneficial to respondents via adverse facts available (AFA) and found the Chinese synthetic‑rubber market not distorted in 2015, using Tier 1 benchmarks for imports.
The Court remanded, instructing Commerce to explain how the synthetic‑rubber market changed from 2014 to 2015 and to justify any AFA reliance concerning the EBCP.
On remand Commerce emphasized a 33.36% increase in import penetration and decreased GOC production share, reaffirming its no‑distortion finding, and again applied AFA imputed use of the EBCP because the GOC refused to produce certain 2013 EBCP materials.
The Court sustained Commerce’s revised distortion analysis as supported by the record, but held Commerce’s AFA finding unlawful because Commerce failed to identify a record gap, did not attempt reasonable verification of submitted non‑use declarations, and did not explain why the allegedly missing GOC materials were necessary to verify non‑use.
Remedy: Court orders Commerce on remand to attempt verification of the non‑use affidavits using all reasonable tools, detail its verification process, and file a new redetermination within 90 days.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Chinese synthetic‑rubber market was "distorted" in 2015 for benchmark selection	Guizhou: market conditions in 2015 were nearly identical to 2014; Commerce cannot change its distortion finding without stronger justification	Commerce: import penetration rose sharply and GOC production share fell, showing loss of government dominance and no distortion in 2015	Court: Sustained Commerce’s 2015 no‑distortion finding based on the explained increase in imports and changed market composition
Whether Commerce permissibly applied AFA to impute Plaintiffs’ use of the EBCP	Guizhou: submitted non‑use declarations and customer affidavits; Commerce failed to show any gap or attempt verification	Commerce: GOC withheld 2013 rule changes and sample documents; without those materials Commerce cannot verify non‑use and may apply AFA	Court: Remanded — Commerce unlawfully applied AFA because it did not identify a necessary gap or attempt reasonable verification; ordered Commerce to verify non‑use using all reasonable methods and explain its process

Zhejiang DunAn Hetian Metal Co. v. United States, 652 F.3d 1333 (Fed. Cir. 2011) (Commerce may use facts otherwise available only to fill a gap in the record)
Nippon Steel Corp. v. United States, 337 F.3d 1373 (Fed. Cir. 2003) (discusses use of facts available and verification principles)
CS Wind Vietnam Co. v. United States, 832 F.3d 1367 (Fed. Cir. 2016) (agency must consider record evidence that detracts from adverse inference)
Peer Bearing Co.-Changshan v. United States, 853 F. Supp. 2d 1365 (Ct. Int’l Trade 2012) (Commerce must communicate requests clearly before invoking adverse inferences)
Shandong Huarong Machinery Co. v. United States, 435 F. Supp. 2d 1261 (Ct. Int’l Trade 2006) (AFA may be used only where a respondent failed to act to the best of its ability)
Hussey Copper v. United States, 834 F. Supp. 413 (Ct. Int’l Trade 1993) (agency must explain departures from prior determinations for consistency)
SolarWorld Ams., Inc. v. United States, 229 F. Supp. 3d 1362 (Ct. Int’l Trade 2017) (remand results reviewed for compliance with court orders)