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

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

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Source file: Laws/federal/codes/united-states-code/title-19/section-1677e-determinations-on-basis-of-facts-available--c45f948543.md
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Source location: Title 19, Chapter 4, § 1677e; chapter-004-tariff-act-of-1930.md

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**(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) 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](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title19-section1677m&num=0&edition=prelim), (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](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title19-section1677m/i&num=0&edition=prelim), the administering authority and the Commission shall, subject to [section 1677m(d) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title19-section1677m/d&num=0&edition=prelim), 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) any previous review under [section 1675 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title19-section1675&num=0&edition=prelim) or determination under [section 1675b of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title19-section1675b&num=0&edition=prelim), 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.

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Federal law — U.S. Code and appendices · legal_authorities

19 U.S.C. § 1675b — Special rules for injury investigations for certain section 1303 or section 1671(c) countervailing duty orders and investigations

**(a) In general** (1) **Investigation by the commission upon request** — In the case of a countervailing duty order described in paragraph (2), which— (A) applies to merchandise that is the product of a Subsidies Agreement country, and (B) (i) is in effect on the date on which such country becomes a Subsidies Agreement country, or (ii) is issued on a date that is after the date described in clause (i) pursuant to a court order in an action brought under [section 1516a of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title19-section1516a&num=0&edition=prelim), the Commission, upon receipt of a request from an interested party described in section 1677(9)(C), (D), (E), (F), or (G) of this title for an injury investigation with respect to such order, shall initiate an investigation and shall determine whether an industry in the United States is likely to be materially injured by reason of imports of the subject merchandise if the order is revoked. (2) **Description of countervailing duty orders** — A countervailing duty order described in this paragraph is an order issued under section 1303 11 See References in Text note below. of this title or [section 1671(c) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title19-section1671/c&num=0&edition=prelim) with respect to which the requirement of an affirmative determination of material injury was not applicable at the time such order was issued. (3) **Requirements of request for investigation** — A request for an investigation under this subsection shall be submitted— (A) in the case of an order described in paragraph (1)(B)(i), within 6 months after the date on which the country described in paragraph (1)(A) becomes a Subsidies Agreement country,

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Federal law — U.S. Code and appendices · legal_authorities

19 U.S.C. § 1671 — Countervailing duties imposed

**(a) General rule** If— (1) the administering authority determines that the government of a country or any public entity within the territory of a country is providing, directly or indirectly, a countervailable subsidy with respect to the manufacture, production, or export of a class or kind of merchandise imported, or sold (or likely to be sold) for importation, into the United States, and (2) in the case of merchandise imported from a Subsidies Agreement country, the Commission determines that— (A) an industry in the United States— (i) is materially injured, or (ii) is threatened with material injury, or (B) the establishment of an industry in the United States is materially retarded, by reason of imports of that merchandise or by reason of sales (or the likelihood of sales) of that merchandise for importation, then there shall be imposed upon such merchandise a countervailing duty, in addition to any other duty imposed, equal to the amount of the net countervailable subsidy. For purposes of this subsection and [section 1671d(b)(1) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title19-section1671d/b/1&num=0&edition=prelim), a reference to the sale of merchandise includes the entering into of any leasing arrangement regarding the merchandise that is equivalent to the sale of the merchandise. **(b) Subsidies Agreement country** For purposes of this subtitle, the term “Subsidies Agreement country” means— (1) a WTO member country, (2) a country which the President has determined has assumed obligations with respect to the United States which are substantially equivalent to the obligations under the Subsidies Agreement, or (3) a country with respect to which the President determines that— (A) there is an agreement i

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Federal law — U.S. Code and appendices · legal_authorities

19 U.S.C. § 1675 — Administrative review of determinations

**(a) Periodic review of amount of duty** (1) **In general** — At least once during each 12-month period beginning on the anniversary of the date of publication of a countervailing duty order under this subtitle or under section 1303 11 See References in Text note below. of this title, an antidumping duty order under this subtitle or a finding under the Antidumping Act, 1921, or a notice of the suspension of an investigation, the administering authority, if a request for such a review has been received and after publication of notice of such review in the Federal Register, shall— (A) review and determine the amount of any net countervailable subsidy, (B) review, and determine (in accordance with paragraph (2)), the amount of any antidumping duty, and (C) review the current status of, and compliance with, any agreement by reason of which an investigation was suspended, and review the amount of any net countervailable subsidy or dumping margin involved in the agreement, and shall publish in the Federal Register the results of such review, together with notice of any duty to be assessed, estimated duty to be deposited, or investigation to be resumed. (2) **Determination of antidumping duties** (A) *In general* — For the purpose of paragraph (1)(B), the administering authority shall determine— (i) the normal value and export price (or constructed export price) of each entry of the subject merchandise, and (ii) the dumping margin for each such entry. (B) *Determination of antidumping or countervailing duties for new exporters and producers* (i) *In general* — If the administering authority receives a request from an exporter or producer of the subject merchandise establishing that— (I) such exporter or producer did not export the merc

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Federal law — U.S. Code and appendices · legal_authorities

19 U.S.C. § 1677m — Conduct of investigations and administrative reviews

**(a) Treatment of voluntary responses in countervailing or antidumping duty investigations and reviews** (1) **In general** — In any investigation under part I or II of this subtitle or a review under [section 1675(a) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title19-section1675/a&num=0&edition=prelim) in which the administering authority has, under [section 1677f–1(c)(2) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title19-section1677f–1/c/2&num=0&edition=prelim) or [section 1677f–1(e)(2)(A) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title19-section1677f–1/e/2/A&num=0&edition=prelim) (whichever is applicable), limited the number of exporters or producers examined, or determined a single country-wide rate, the administering authority shall establish an individual countervailable subsidy rate or an individual weighted average dumping margin for any exporter or producer not initially selected for individual examination under such sections who submits to the administering authority the information requested from exporters or producers selected for examination, if— (A) such information is so submitted by the date specified— (i) for exporters and producers that were initially selected for examination, or (ii) for the foreign government, in a countervailing duty case where the administering authority has determined a single country-wide rate; and (B) the number of exporters or producers subject to the investigation or review is not so large that any additional individual examination of such exporters or producers would be unduly burdensome to the administering authority and inhibit the timely completion of the investigation or review. (2) **Determination of und

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Federal law — U.S. Code and appendices · legal_authorities

19 U.S.C. § 1671d — Final determinations

**(a) Final determination by administering authority** (1) **In general** — Within 75 days after the date of the preliminary determination under [section 1671b(b) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title19-section1671b/b&num=0&edition=prelim), the administering authority shall make a final determination of whether or not a countervailable subsidy is being provided with respect to the subject merchandise; except that when an investigation under this part is initiated simultaneously with an investigation under part II of this subtitle, which involves imports of the same class or kind of merchandise from the same or other countries, the administering authority, if requested by the petitioner, shall extend the date of the final determination under this paragraph to the date of the final determination of the administering authority in such investigation initiated under part II of this subtitle. (2) **Critical circumstances determinations** — If the final determination of the administering authority is affirmative, then that determination, in any investigation in which the presence of critical circumstances has been alleged under [section 1671b(e) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title19-section1671b/e&num=0&edition=prelim), shall also contain a finding as to whether— (A) the countervailable subsidy is inconsistent with the Subsidies Agreement, and (B) there have been massive imports of the subject merchandise over a relatively short period. Such findings may be affirmative even though the preliminary determination under [section 1671b(e)(1) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title19-section1671b/e/1&num=0&edition=prelim) was negative. (3) **

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19 U.S.C. § 1673d — Final determinations

**(a) Final determination by administering authority** (1) **General rule** — Within 75 days after the date of its preliminary determination under [section 1673b(b) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title19-section1673b/b&num=0&edition=prelim), the administering authority shall make a final determination of whether the subject merchandise is being, or is likely to be, sold in the United States at less than its fair value. (2) **Extension of period for determination** — The administering authority may postpone making the final determination under paragraph (1) until not later than the 135th day after the date on which it published notice of its preliminary determination under [section 1673b(b) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title19-section1673b/b&num=0&edition=prelim) if a request in writing for such a postponement is made by— (A) exporters who account for a significant proportion of exports of the merchandise which is the subject of the investigation, in a proceeding in which the preliminary determination by the administering authority under [section 1673b(b) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title19-section1673b/b&num=0&edition=prelim) was affirmative, or (B) the petitioner, in a proceeding in which the preliminary determination by the administering authority under [section 1673b(b) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title19-section1673b/b&num=0&edition=prelim) was negative. (3) **Critical circumstances determinations** — If the final determination of the administering authority is affirmative, then that determination, in any investigation in which the presence of critical circumstances has be

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Federal law — U.S. Code and appendices · legal_authorities

19 U.S.C. § 1677e — Determinations on basis of facts avail-

Page 406 TITLE 19—CUSTOMS DUTIES § 1677e Editorial Notes AMENDMENTS 1994—Pub. L. 103–465 substituted ‘‘Countervailable subsidy’’ for ‘‘Subsidy’’ in section catchline and amend- ed text generally. Prior to amendment, text read as fol- lows: ‘‘If, in the course of a proceeding under this sub- title, the administering authority discovers a practice which appears to be a subsidy, but was not included in the matters alleged in a countervailing duty petition, then the administering authority— ‘‘(1) shall include the practice in the proceeding if it appears to be a subsidy with respect to the mer- chandise which is the subject of the proceeding, or ‘‘(2) shall transfer the information concerning the practice (other than confidential information) to the library maintained under section 1677f(a)(1) of this title, if the practice appears to be a subsidy with re- spect to any other merchandise.’’ 1986—Pub. L. 99–514 substituted ‘‘a proceeding’’ for ‘‘an proceeding’’ in introductory provisions. 1984—Pub. L. 98–573 substituted ‘‘proceeding’’ for ‘‘in- vestigation’’ wherever appearing. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1994 AMENDMENT Amendment 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 in- vestigations, reviews, and inquiries initiated and peti- tions 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 1984 AMENDMENT Amendment 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. PLAN A

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