CAFC Says 'Strong' Need Required for Commerce to Assign Drastically High AFA Rates
The U.S. Court of Appeals for the Federal Circuit held Jan. 7 that the Commerce Department can't significantly depart from accuracy when setting adverse facts available rates without showing a "particularly strong need to deter noncompliance." Rejecting the department's single-sentence justification for a 154.33% AFA AD rate, it said Commerce was required to look to record evidence and evaluate "common factors" such as intent, recidivism or unreasonable carelessness when setting an unusually high rate.
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The holding responded to a petitioner's appeal of the Court of International Trade-ordered reversal of an AFA antidumping rate assigned to steel nail exporter Oman Fasteners. The exporter was hit with AFA rate because, facing issues with Commerce's electronic filing system, it submitted a response 16 minutes after its deadline. The appeals court also considered and rejected Oman Fastener's own challenge to one of the department's selected surrogates for the review.