Under 19 U.S.C. § 1677e(b), Congress has granted the Department of Commerce (“Commerce”) discretion to apply adverse facts available (“AFA”) against foreign respondents in dumping and subsidies investigations. Commerce exercises this authority when the agency finds that a respondent has provided missing or otherwise deficient information and that it has failed to cooperate by responding to Commerce’s questions to the “best of its ability.” When this occurs, Commerce will replace the missing or otherwise deficient information with information that it considers adverse enough to deter non- cooperation. Oftentimes, this information results in ad valorem dumping and countervailing duty margins over 100%, and as a result, is one of the most hotly contested United States trade practices today. This Article argues that the AFA law must strike a balance between the need for Commerce to use inferences that may at times be adverse to respondents in order to conduct effective investigations and the need for rules that protect against even the appearance of an abuse of discretion. In order to understand the issue, Part I will offer a brief introduction while Part II will explore arguments for and against the application of AFA in order to understand the policy rationales and concerns behind the rules. Part III will then analyze the limits that U.S. courts have placed both on when and how Commerce uses AFA. In turn, Part IV will analyze the limits that the WTO places on when and how Commerce and the national investigating authorities of other WTO Member states use AFA. Part V will conclude by addressing how Commerce’s current “AFA approach” fails to strike a balance between necessity and fairness in applying adverse inferences and how Commerce’s current practices may be reformed to strike such a balance.

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