In a March 21 letter to Commerce Secretary Penny Pritzker, a bipartisan group of 20 senators expressed concern that the Department of Commerce is not applying the Leveling the Playing Field Act, which was signed into law in June 2015, as Congress intended. Specifically, the senators urged the DOC to apply adverse facts available in antidumping and countervailing duty cases in which a foreign company or government does not cooperate.

According to the letter, foreign respondents have litigated the use of AFA in recent years, making the DOC more reluctant to employ it. In response, Section 502 of Public Law 114-27 seeks to restore the strength and effectiveness of AFA and protect it from legal challenge by (a) establishing that the DOC is not required to try to determine what an AD or CV duty rate would be if a respondent had provided information in the investigation, (b) explicitly stating that the DOC does not have to corroborate any AD or CV duty applied and has the discretion to apply the highest AD or CV duty rates in a proceeding, and (c) making clear that the DOC is not required to prove that the AD or CV duty rate used in the investigation reflects the commercial reality of the respondent. 

Congress enacted these provisions to ensure that domestic manufacturers and their employees “get the relief they deserve from unfair trading practices,” the senators said, and the DOC “should use AFA when foreign producers or governments do not cooperate in preliminary or final investigations, including the use of dilatory tactics.” Failure to do so, they warned, “allows trade cheats to get away with violating international trade law and prevents American manufacturers from competing on a level playing field.”

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