§1677e — Title 19 Customs Duties | U.S. Code

Summary

The agency running an antidumping or countervailing duty case can use the facts it has when needed information is missing. That can happen if someone withholds requested information, misses deadlines or sends it in the wrong form, blocks the investigation, or gives information that can’t be verified. If the agency finds a party did not try its best to comply, it can draw a negative conclusion about that party when picking from the available facts. The agency does not have to guess what the party would have said if it had cooperated. The agency may rely on things like the original petition, past final decisions, earlier reviews, or any other record evidence when making that negative inference. If it uses secondary sources instead of new investigation data, it should try to check that information against independent sources when possible, but it does not have to check dumping margins or subsidy rates already used in another part of the same case. The agency may use rates or margins from similar programs or other segments of the proceeding, even the highest ones, and it does not have to calculate what the rate would have been if the party had cooperated or show that the rate matches the party’s actual commercial situation.

Title 19, §1677e

Customs Duties — Source: USLM XML via OLRC

(a)If—

(1)necessary information is not available on the record, or

(2)an interested party or any other person—

(A)withholds information that has been requested by the administering authority or the Commission under this subtitle,

(B)fails to provide such information by the deadlines for submission of the information or in the form and manner requested, subject to subsections (c)(1) and (e) of section 1677m of this title,

(C)significantly impedes a proceeding under this subtitle, or

(D)provides such information but the information cannot be verified as provided in section 1677m(i) of this title,

(b)(1)If the administering authority or the Commission (as the case may be) finds that an interested party has failed to cooperate by not acting to the best of its ability to comply with a request for information from the administering authority or the Commission, the administering authority or the Commission (as the case may be), in reaching the applicable determination under this subtitle—

(A)may use an inference that is adverse to the interests of that party in selecting from among the facts otherwise available; and

(B)is not required to determine, or make any adjustments to, a countervailable subsidy rate or weighted average dumping margin based on any assumptions about information the interested party would have provided if the interested party had complied with the request for information.

(2)An adverse inference under paragraph (1)(A) may include reliance on information derived from—

(A)the petition,

(B)a final determination in the investigation under this subtitle,

(C)any previous review under section 1675 of this title or determination under section 1675b of this title, or

(D)any other information placed on the record.

(c)(1)Except as provided in paragraph (2), when the administering authority or the Commission relies on secondary information rather than on information obtained in the course of an investigation or review, the administering authority or the Commission, as the case may be, shall, to the extent practicable, corroborate that information from independent sources that are reasonably at their disposal.

(2)The administrative authority and the Commission shall not be required to corroborate any dumping margin or countervailing duty applied in a separate segment of the same proceeding.

(d)(1)If the administering authority uses an inference that is adverse to the interests of a party under subsection (b)(1)(A) in selecting among the facts otherwise available, the administering authority may—

(A)in the case of a countervailing duty proceeding—

(i)use a countervailable subsidy rate applied for the same or similar program in a countervailing duty proceeding involving the same country; or

(ii)if there is no same or similar program, use a countervailable subsidy rate for a subsidy program from a proceeding that the administering authority considers reasonable to use; and

(B)in the case of an antidumping duty proceeding, use any dumping margin from any segment of the proceeding under the applicable antidumping order.

(2)In carrying out paragraph (1), the administering authority may apply any of the countervailable subsidy rates or dumping margins specified under that paragraph, including the highest such rate or margin, based on the evaluation by the administering authority of the situation that resulted in the administering authority using an adverse inference in selecting among the facts otherwise available.

(3)If the administering authority uses an adverse inference under subsection (b)(1)(A) in selecting among the facts otherwise available, the administering authority is not required, for purposes of subsection (c) or for any other purpose—

(A)to estimate what the countervailable subsidy rate or dumping margin would have been if the interested party found to have failed to cooperate under subsection (b)(1) had cooperated; or

(B)to demonstrate that the countervailable subsidy rate or dumping margin used by the administering authority reflects an alleged commercial reality of the interested party.

Notes & Related Subsidiaries

Editorial Notes

Amendments

2015—Subsec. (b). Pub. L. 114–27, § 502(1), inserted par. (1) designation and heading before “If the administering”, substituted “under this subtitle—” for “under this subtitle, may use”, inserted “(A) may use” before “an inference that is adverse”, substituted “facts otherwise available; and” for “facts otherwise available. Such adverse inference may include”, added subpar. (B), inserted par. (2) designation, heading, and “An adverse inference under paragraph (1)(A) may include” before “reliance on information”, and redesignated former pars. (1) to (4) as subpars. (A) to (D), respectively, of par. (2) and realigned margins. Subsec. (c). Pub. L. 114–27, § 502(2), designated existing provisions as par. (1) and inserted heading, substituted “Except as provided in paragraph (2), when the” for “When the”, and added par. (2). Subsec. (d). Pub. L. 114–27, § 502(3), added subsec. (d). 1994—Pub. L. 103–465 amended section generally, substituting present provisions for provisions relating to verification of information, certification of submissions, and determinations required to be made on best information available. 1988—Subsec. (a). Pub. L. 100–418, § 1331(1), (3), added subsec. (a). Former subsec. (a) redesignated (b). Subsec. (b). Pub. L. 100–418, § 1331(1), (2), redesignated former subsec. (a) as (b) and in heading substituted “Verification” for “General rule”. Subsec. (b)(3)(A). Pub. L. 100–418, § 1326(d)(1), which directed the amendment of this subtitle by substituting “subparagraph (C), (D), (E), (F), or (G) of section 1677(9) of this title” for “subparagraph (C), (D), (E), or (F), of section 1677(9) of this title” was executed to subsec. (b)(3)(A) of this section by substituting “section 1677(9)(C), (D), (E), (F), or (G) of this title” for “section 1677(9)(C), (D), (E), or (F) of this title” to reflect the probable intent of Congress. Subsec. (c). Pub. L. 100–418, § 1331(1), redesignated former subsec. (b) as (c). 1984—Subsec. (a). Pub. L. 98–573 amended subsec. (a) generally, which prior to amendment read as follows: “Except with respect to information the verification of which is waived under section 1673b(b)(2) of this title, the administering authority shall verify all information relied upon in making a final determination in an investigation. In publishing such a determination, the administering authority shall report the methods and procedures used to verify such information. If the administering authority is unable to verify the accuracy of the information submitted, it shall use the best information available to it as the basis for its determination, which may include the information submitted in support of the petition.”

Statutory Notes and Related Subsidiaries

Effective Date

of 1994 AmendmentAmendment by Pub. L. 103–465 effective, except as otherwise provided, on the date on which the WTO Agreement enters into force with respect to the United States (Jan. 1, 1995), and applicable with respect to investigations, reviews, and inquiries initiated and petitions filed under specified provisions of this chapter after such date, see section 291 of Pub. L. 103–465, set out as a note under section 1671 of this title.

Effective Date

of 1988 AmendmentAmendment by Pub. L. 100–418 applicable with respect to investigations initiated after Aug. 23, 1988, and to reviews initiated under section 1673e(c) or 1675 of this title after Aug. 23, 1988, see section 1337(b) of Pub. L. 100–418, set out as a note under section 1671 of this title.

Effective Date

of 1984 AmendmentAmendment by Pub. L. 98–573 effective Oct. 30, 1984, see section 626(a) of Pub. L. 98–573, set out as a note under section 1671 of this title.

§1677e Determinations on basis of facts available

Summary

Title 19, §1677e

Notes & Related Subsidiaries

Editorial Notes

Amendments

Statutory Notes and Related Subsidiaries

Effective Date

Effective Date

Effective Date

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