Barcode : 4326250-02 A-533-889 REV - Admin Review 12 / 13 / 19 - 5 / 31 / 21
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Commerce must make its determinations based on record evidence and the CIT has stated that Commerce is required to resort to other sources of information where a respondent fails to furnish requested information . 177 In addition , the CAFC has explained that an AFA rate must be a reasonably accurate estimate of the respondent ’ s actual rate . 178 The CAFC , in De Cecco , stated that the purpose of applying AFA is to incentivize respondents to cooperative , rather than to impose punitive , aberrational , or uncorroborated margins . 179 By applying the preliminary AFA rate of 323.12 percent to Antique Group , Commerce applied a punitive rate that has no relation to Antique Group ’ s dumping margin . Moreover , the application of AFA in this instance is unnecessary because Antique Group has submitted substantial information on the record which can be used to calculate a dumping margin .
Petitioner ’ s Rebuttal Brief 180 � Commerce properly selected and corroborated an AFA rate to apply to Antique Group and should continue to apply this rate in the final results . � Section 776 ( b ) of the Act permits Commerce to use information from other segments or the petition so long as that information is corroborated with other sources but also relieves Commerce of the need to demonstrate how the AFA rate has any relation to what the outcome would have been , had the company subject to AFA acted to the best of its ability .
� Commerce should not apply its discretion by changing its methodology for determining the AFA rate for the final results . Commerce ’ s practice of selecting the highest rate sets a uniform and predictable pattern that informs parties of the likely consequences of their actions . Allowing parties to negotiate for lower AFA rates only encourages companies to provide less than maximum cooperation in proceedings .
� Ozdemir established that Commerce has the power to craft methodologies , and once it has demonstrated that an AFA rate has probative value , no more is required . 181 In this case , Commerce followed its standard practice by comparing the petition rate to transaction-specific margins of the cooperative respondent PESL , confirming that the AFA rate was within the range of actual margins during the POR . By showing that the petition rate lies within the realm of selling practices , as the CAFC noted as sufficient in KYD , it has probative value and nothing more is required . 182
� While parties argue that the corroboration to PESL ’ s transaction-specific margins should be rejected based on the nature of the sales that have similar or higher margins , the CAFC in Ta Chen found that , providing that the rate has a relationship with actual sales information , Commerce acts within its discretion . 183
177
Id . at 9 ( citing GODACO Seafood Joint Stock Co . v . United States , 494 F . Supp . 3d 1294 , 1299 ( CIT 2021 ) ( GODACO )).
178
Id . ( citing GODACO ; and De Cecco ).
179
Id . at 9-10 ( citing De Cecco , 216 F . 3d at 1032 ).
180
See Petitioner ’ s Rebuttal Brief at 21-35 .
181
Id . at 24 ( citing Ozdemir Boru San . v . Tic . Ltd . Sti . V . United States , 273 F . Supp . 3d 1225 ( CIT 2017 ) ( Ozdemir )).
182
Id . at 25 ( citing KYD , Inc . v . United States , 607 F . 3d 760 , 767 ( Fed . Cir . 2010 ) ( KYD )).
183
Id . at 26 ( citing Ta Chen Stainless Steel Pipe , Inc . v . United States , 298 F . 3d 1330 ( Fed . Cir . 2002 ) ( Ta Chen )).
39 Filed By : David Lindgren , Filed Date : 1 / 3 / 23 1:27 PM , Submission Status : Approved