Barcode : 4326250-02 A-533-889 REV - Admin Review 12 / 13 / 19 - 5 / 31 / 21
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� the Eighth Amendment of the U . S . Constitution , as an AFA-based duty is a payment based on punishment for an offense . While it is settled that ordinary ADs are remedial in nature , the application of AFA rates is adverse in nature and intended to serve as a deterrent . 209 Wherever an assessment has any penal component intended to serve as a deterrent , as is the case with AFA rates , it is subject to an Eighth Amendment analysis to ensure that it is not excessive in nature . 210 The U . S . Supreme Court established in United States v . Bajakajian that the amount of forfeiture must bear some relationship to the gravity of the offense that it is designed to punish . In this case , the preliminary non-selected company rate is excessive and bears no relationship to the gravity of the offense . Because the non-selected companies fully cooperated and there is no evidence to the contrary , the preliminary rate assigned to them is unnecessarily disproportionate . While the courts have not directly addressed this issue , in Mueller , SKF USA , and Changzhou Wujin , the CAFC concluded that where a cooperative party is unable to compel an uncooperative party to participate , application of AFA to the cooperative party is potentially unfair or improper . 211 Therefore , it is impermissible for Commerce to use an AFA rate to calculate a rate for non-selected respondents because there is no evidence that they could have influenced the non-cooperative mandatory respondent , Antique Group , to participate . On the basis that AFA is intended to deter , it includes a penal component which must be reasonable under the Eighth Amendment of the U . S . Constitution . However , because the non-selected respondents fully cooperated , no deterrence is warranted . Commerce has the discretion to accept the untimely questionnaire response as a means of easing the stress on outside parties and their workloads .
Federation ’ s Case Brief 212
� As the CAFC explains in De Cecco , the purpose of AFA in the statute is to provide mandatory respondents with an incentive to cooperate and meet essential deadlines ; neither cooperation nor deadlines are relevant to non-selected companies . 213
� The non-selected respondents in this case were not involved in the failure of Antique Group to submit its response on time and , as such , should not be penalized for the errors of Antique Group .
� While the expected method under section 735 ( c )( 5 )( B ) of the Act is to calculate a weighted average of the zero , de minimis , and AFA rates using volume , the SAA cautions that this rate may not be reasonable if it is not reflective of potential dumping margins for non-investigated exporters or producers . 214 In Thai Pineapple , the CAFC noted that it is
209
Id . at 44-48 ( citing De Cecco , 216 F . 3d at 1032 ; and Mueller Com . De Mex ., S . De RL De CV v . United States , 753 F . 3d 1227 , 1233 ( Fed . Cir . 2014 ) ( Mueller )).
210
Id . at 41-42 ( citing States v . Halper , 490 U . S . 435 ( 1989 ) ( Supreme Court ); Austin v . United States , 509 U . S . 602 ( 1993 ) ( Supreme Court ); United States v . Bajakajian , 524 U . S . 321 ( 1998 ) ( Supreme Court )).
211
Id . at 47-48 ( citing Mueller , 753 F . 3d at 1235 ; SKF USA Inc . v . United States , 630 F . 3d 1365 , 1375 ( Fed . Cir . 2011 ) ( SKF ); and Changzhou Wujin Fine Chemical Factory Co ., Ltd v . United States , 701 F . 3d . 1367 ( Fed . Cir . 2012 ) ( Changzhou Wujin )).
212
See Federation ’ s Case Brief at 2-10 .
213
Id . at 4 ( citing De Cecco ).
214
Id . at 2 ( citing SAA at 873 ).
48 Filed By : David Lindgren , Filed Date : 1 / 3 / 23 1:27 PM , Submission Status : Approved