19 U.S.C. § 1677e | Determinations on basis of facts available

(a)

In general

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)

section 1677m of this title 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 ,

(C)

significantly impedes a proceeding under this subtitle, or

(D)

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

section 1677m(d) of this titlethe administering authority and the Commission shall, subject to , use the facts otherwise available in reaching the applicable determination under this subtitle.

(b)

Adverse inferences

(1)

In general

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)

Potential sources of information for adverse inferences

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)

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

(D)

any other information placed on the record.

(c)

Corroboration of secondary information

(1)

In general

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)

Exception

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)

Subsidy rates and dumping margins in adverse inference determinations

(1)

In general

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)

Discretion to apply highest rate

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)

No obligation to make certain estimates or address certain claims

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.

June 17, 1930, ch. 497 Pub. L. 96–39, title I, § 101July 26, 197993 Stat. 186 Pub. L. 98–573, title VI, § 618Oct. 30, 198498 Stat. 3037 Pub. L. 100–418, title IAug. 23, 1988102 Stat. 1204 Pub. L. 103–465, title II, § 231(c)Dec. 8, 1994108 Stat. 4896 Pub. L. 114–27, title V, § 502June 29, 2015129 Stat. 383(, title VII, § 776, as added , , ; amended , , ; , §§ 1326(d)(1), 1331, , , 1207; , , ; , , .)

Editorial Notes

Amendments

Pub. L. 114–27, § 502(1)2015—Subsec. (b). , 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.

Pub. L. 114–27, § 502(2)Subsec. (c). , 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).

Pub. L. 114–27, § 502(3)Subsec. (d). , added subsec. (d).

Pub. L. 103–4651994— 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.

Pub. L. 100–418, § 1331(1)1988—Subsec. (a). , (3), added subsec. (a). Former subsec. (a) redesignated (b).

Pub. L. 100–418, § 1331(1)Subsec. (b). , (2), redesignated former subsec. (a) as (b) and in heading substituted “Verification” for “General rule”.

Pub. L. 100–418, § 1326(d)(1)section 1677(9) of this title section 1677(9) of this titleSubsec. (b)(3)(A). , which directed the amendment of this subtitle by substituting “subparagraph (C), (D), (E), (F), or (G) of ” for “subparagraph (C), (D), (E), or (F), of ” 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.

Pub. L. 100–418, § 1331(1)Subsec. (c). , redesignated former subsec. (b) as (c).

Pub. L. 98–573 section 1673b(b)(2) of this title1984—Subsec. (a). amended subsec. (a) generally, which prior to amendment read as follows: “Except with respect to information the verification of which is waived under , 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 Amendment

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

Effective Date of 1988 Amendment

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

Effective Date of 1984 Amendment

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