Barcode : 4326250-02 A-533-889 REV - Admin Review 12 / 13 / 19 - 5 / 31 / 21
Finally , regarding arguments that Commerce should also consider the impact that assigning AFA to Antique Group in these final results will have on other parties , such as non-selected companies and importers , we note that , as we did in Comment 2 above , Commerce is tasked with administering the AD law and is bound by the law and its regulations when making decisions pertaining to a specific case . We further note that the statute and regulations do not allow for broader public policy implications to be considered when making a decision in an AD proceeding and , therefore , there is no legal basis upon which we can consider arguments about the downstream effects of any determination to apply AFA to Antique Group .
Comment 4 : Whether Commerce Should Continue to Rely on the Petition Rate for the AFA Rate
Antique Group ’ s Case Brief 153
� The 323.12 percent rate that Commerce relied on in the Preliminary Results does not reasonably reflect what the respondent ’ s actual rate would be , which the CAFC has stated must be considered . 154
� Although the statute does not require Commerce to consider the commercial reality of a party , the assigned rate is punitive where it is unjustifiably high . 155 Commerce ’ s discretion is not unlimited when selecting an AFA rate ; any selected AFA rate must have a relationship to the respondent ’ s dumping margin . 156
� AFA is intended to be a reasonably accurate estimate of the respondent ’ s actual rate , with some increase to serve as a deterrent for non-compliance and must be based on record evidence . 157
� In this case , the AFA rate assigned to Antique Group is significantly higher than in the original investigation and does not reflect its operations or export behavior . Had Commerce relied on the information submitted by Antique Group , the margin likely would have been similar to that of the original investigation . As such , the preliminary AFA rate assigned to Antique Group is aberrational and unlawful .
� At minimum , Commerce should lessen the effects of any adverse inference it makes with respect to Antique Group by considering the totality of the circumstances and the seriousness of Antique Group ’ s conduct throughout the review .
� Reliance on the petition rate from the investigation ignores issues with the way the rate was calculated , such as the products reflected in the data and the fact that the data covered 2017 . For the final results , Commerce should consider and update the petition rate . 158
153
Id . at 25-26 and 30-47 .
154
Id . at 31 ( citing Gallant Ocean ( Thai .) Co . v . United States , 602 F . 3d 1319 , 1323 ( Fed . Cir . 2010 ) ( Gallant Ocean )).
155
Id . at 32 ( citing De Cecco , 216 F . 3d at 1033 ).
156
Id . at 32-33 ( citing De Cecco , 216 F . 3d at 1032 ; NSK Ltd . v . United States , 346 F . Supp . 1312 , 1333 ( CIT 2004 ), aff ’ d 481 F . 3d 1355 ( Fed . Cir . 2007 ); and Jacobi Carbons AB v . United States , 992 F . Supp . 2d 1360 , 1369 ( CIT 2014 ), aff ’ d 619 F . App ’ x 992 ( Fed . Cir . 2015 )).
157
Id . at 25 ( citing Bonney Forge Corp . v . United States , 560 F . Supp . 3d 1303 , 1308 ( CIT 2022 ); BMW of N . Am . LLC v . United States , 926 F . 3d 1291 , 1300 ( Fed . Cir . 2019 ); and SAA at 870 and 1194 ).
158
Id . at 30-36 ( discussing Certain Quartz Surface Products from India and the Republic of Turkey : Initiation of Less-Than-Fair-Value Investigations , 84 FR 25529 ( June 3 , 2019 )).
35 Filed By : David Lindgren , Filed Date : 1 / 3 / 23 1:27 PM , Submission Status : Approved