19 U.S.C. § 1677f — Access to information

Page 407 TITLE 19—CUSTOMS DUTIES § 1677f (ii) if there is no same or similar pro- gram, 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 pro- ceeding, use any dumping margin from any segment of the proceeding under the applica- ble antidumping order. (2) Discretion to apply highest rate In carrying out paragraph (1), the admin- istering authority may apply any of the countervailable subsidy rates or dumping mar- gins 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 admin- istering authority using an adverse inference in selecting among the facts otherwise avail- able. (3) No obligation to make certain estimates or address certain claims If the administering authority uses an ad- verse 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, title VII, § 776, as added Pub. L. 96–39, title I, § 101, July 26, 1979, 93 Stat. 186; amended Pub. L. 98–573, title VI, § 618, Oct. 30, 1984, 98 Stat. 3037; Pub. L. 100–418, title I, §§ 1326(d)(1), 1331, Aug. 23, 1988, 102 Stat. 1204, 1207; Pub. L. 103–465, title II, § 231(c), Dec. 8, 1994, 108 Stat. 4896; Pub. L. 114–27, title V, § 502, June 29, 2015, 129 Stat. 383.) Editorial Notes AMENDMENTS 2015—Subsec. (b). Pub. L. 114–27, § 502(1), inserted par. (1) designation and heading before ‘‘If the admin- istering’’, 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 in- clude’’ before ‘‘reliance on information’’, and redesig- nated former pars. (1) to (4) as subpars. (A) to (D), re- spectively, 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, sub- stituting present provisions for provisions relating to verification of information, certification of submis- sions, 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 di- rected 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 informa- tion 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 ad- ministering authority is unable to verify the accuracy of the information submitted, it shall use the best in- formation available to it as the basis for its determina- tion, which may include the information submitted in support of the petition.’’ 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 1988 AMENDMENT Amendment by Pub. L. 100–418 applicable with re- spect 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 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. § 1677f. Access to information (a) Information generally made available (1) Public information function There shall be established a library of infor- mation relating to foreign subsidy practices and countervailing measures. Copies of mate- rial in the library shall be made available to the public upon payment of the costs of pre- paring such copies. (2) Progress of investigation reports The administering authority and the Com- mission shall, from time to time upon request, inform the parties to an investigation of the progress of that investigation. (3) Ex parte meetings The administering authority and the Com- mission shall maintain a record of any ex parte meeting between— Page 408 TITLE 19—CUSTOMS DUTIES § 1677f (A) interested parties or other persons pro- viding factual information in connection with a proceeding, and (B) the person charged with making the determination, or any person charged with making a final recommendation to that per- son, in connection with that proceeding, if information relating to that proceeding was presented or discussed at such meeting. The record of such an ex parte meeting shall in- clude the identity of the persons present at the meeting, the date, time, and place of the meeting, and a summary of the matters dis- cussed or submitted. The record of the ex parte meeting shall be included in the record of the proceeding. (4) Summaries; non-proprietary submissions The administering authority and the Com- mission shall disclose— (A) any proprietary information received in the course of a proceeding if it is disclosed in a form which cannot be associated with, or otherwise be used to identify, operations of a particular person, and (B) any information submitted in connec- tion with a proceeding which is not des- ignated as proprietary by the person submit- ting it. (b) Proprietary information (1) Proprietary status maintained (A) In general Except as provided in subsection (a)(4)(A) and subsection (c), information submitted to the administering authority or the Commis- sion which is designated as proprietary by the person submitting the information shall not be disclosed to any person without the consent of the person submitting the infor- mation, other than— (i) to an officer or employee of the ad- ministering authority or the Commission who is directly concerned with carrying out the investigation in connection with which the information is submitted or any review under this subtitle covering the same subject merchandise, or (ii) to an officer or employee of the United States Customs Service who is di- rectly involved in conducting an investiga- tion regarding negligence, gross neg- ligence, or fraud under this subtitle. (B) Additional requirements The administering authority and the Com- mission shall require that information for which proprietary treatment is requested be accompanied by— (i) either— (I) a non-proprietary summary in suffi- cient detail to permit a reasonable un- derstanding of the substance of the infor- mation submitted in confidence, or (II) a statement that the information is not susceptible to summary accom- panied by a statement of the reasons in support of the contention, and (ii) either— (I) a statement which permits the ad- ministering authority or the Commis- sion to release under administrative pro- tective order, in accordance with sub- section (c), the information submitted in confidence, or (II) a statement to the administering authority or the Commission that the business proprietary information is of a type that should not be released under administrative protective order. (2) Unwarranted designation If the administering authority of the Com- mission determines, on the basis of the nature and extent of the information or its avail- ability from public sources, that designation of any information as proprietary is unwar- ranted, then it shall notify the person who submitted it and ask for an explanation of the reasons for the designation. Unless that person persuades the administering authority or the Commission that the designation is war- ranted, or withdraws the designation, the ad- ministering authority or the Commission, as the case may be, shall return it to the party submitting it. In a case in which the admin- istering authority or the Commission returns the information to the person submitting it, the person may thereafter submit other mate- rial concerning the subject matter of the re- turned information if the submission is made within the time otherwise provided for sub- mitting such material. (3) Section 1675 reviews Notwithstanding the provisions of paragraph (1), information submitted to the admin- istering authority or the Commission in con- nection with a review under section 1675(b) or 1675(c) of this title which is designated as pro- prietary by the person submitting the infor- mation may, if the review results in the rev- ocation of an order or finding (or termination of a suspended investigation) under section 1675(d) of this title, be used by the agency to which the information was originally sub- mitted in any investigation initiated within 2 years after the date of the revocation or ter- mination pursuant to a petition covering the same subject merchandise. (c) Limited disclosure of certain proprietary in- formation under protective order (1) Disclosure by administering authority or Commission (A) In general Upon receipt of an application (before or after receipt of the information requested) which describes in general terms the infor- mation requested and sets forth the reasons for the request, the administering authority or the Commission shall make all business proprietary information presented to, or ob- tained by it, during a proceeding (except privileged information, classified informa- tion, and specific information of a type for which there is a clear and compelling need to withhold from disclosure) available to in- terested parties who are parties to the pro- ceeding under a protective order described in subparagraph (B), regardless of when the in- formation is submitted during a proceeding. Page 409 TITLE 19—CUSTOMS DUTIES § 1677f Customer names obtained during any inves- tigation which requires a determination under section 1671d(b) or 1673d(b) of this title may not be disclosed by the administering authority under protective order until either an order is published under section 1671e(a) or 1673e(a) of this title as a result of the in- vestigation or the investigation is suspended or terminated. The Commission may delay disclosure of customer names under protec- tive order during any such investigation until a reasonable time prior to any hearing provided under section 1677c of this title. (B) Protective order The protective order under which informa- tion is made available shall contain such re- quirements as the administering authority or the Commission may determine by regu- lation to be appropriate. The administering authority and the Commission shall provide by regulation for such sanctions as the ad- ministering authority and the Commission determine to be appropriate, including dis- barment from practice before the agency. (C) Time limitation on determinations The administering authority or the Com- mission, as the case may be, shall determine whether to make information available under this paragraph— (i) not later than 14 days (7 days if the submission pertains to a proceeding under section 1671b(a) or 1673b(a) of this title) after the date on which the information is submitted, or (ii) if— (I) the person that submitted the infor- mation raises objection to its release, or (II) the information is unusually volu- minous or complex, not later than 30 days (10 days if the sub- mission pertains to a proceeding under section 1671b(a) or 1673b(a) of this title) after the date on which the information is submitted. (D) Availability after determination If the determination under subparagraph (C) is affirmative, then— (i) the business proprietary information submitted to the administering authority or the Commission on or before the date of the determination shall be made available, subject to the terms and conditions of the protective order, on such date; and (ii) the business proprietary information submitted to the administering authority or the Commission after the date of the de- termination shall be served as required by subsection (d). (E) Failure to disclose If a person submitting information to the administering authority refuses to disclose business proprietary information which the administering authority determines should be released under a protective order de- scribed in subparagraph (B), the admin- istering authority shall return the informa- tion, and any nonconfidential summary thereof, to the person submitting the infor- mation and summary and shall not consider either. (2) Disclosure under court order If the administering authority denies a re- quest for information under paragraph (1), then application may be made to the United States Customs Court for an order directing the administering authority or the Commis- sion to make the information available. After notification of all parties to the investigation and after an opportunity for a hearing on the record, the court may issue an order, under such conditions as the court deems appro- priate, which shall not have the effect of stop- ping or suspending the investigation, directing the administering authority or the Commis- sion to make all or a portion of the requested information described in the preceding sen- tence available under a protective order and setting forth sanctions for violation of such order if the court finds that, under the stand- ards applicable in proceedings of the court, such an order is warranted, and that— (A) the administering authority or the Commission has denied access to the infor- mation under subsection (b)(1), (B) the person on whose behalf the infor- mation is requested is an interested party who is a party to the investigation in con- nection with which the information was ob- tained or developed, and (C) the party which submitted the infor- mation to which the request relates has been notified, in advance of the hearing, of the re- quest made under this section and of its right to appear and be heard. (d) Service Any party submitting written information, in- cluding business proprietary information, to the administering authority or the Commission dur- ing a proceeding shall, at the same time, serve the information upon all interested parties who are parties to the proceeding, if the information is covered by a protective order. The admin- istering authority or the Commission shall not accept any such information that is not accom- panied by a certificate of service and a copy of the protective order version of the document containing the information. Business propri- etary information shall only be served upon in- terested parties who are parties to the pro- ceeding that are subject to protective order; however, a nonconfidential summary thereof shall be served upon all other interested parties who are parties to the proceeding. (e) Repealed. Pub. L. 103–465, title II, § 231(d)(1), Dec. 8, 1994, 108 Stat. 4897 (f) Disclosure of proprietary information under protective orders issued pursuant to the United States-Canada Agreement or the USMCA (1) Issuance of protective orders (A) In general If binational panel review of a determina- tion under this subtitle is requested pursu- ant to article 1904 of the United States-Can- ada Agreement or article 10.12 of the USMCA, or an extraordinary challenge com- Page 410 TITLE 19—CUSTOMS DUTIES § 1677f 1 So in original. mittee is convened under Annex 1904.13 of the United States-Canada Agreement or chapter 10 of the USMCA, the administering authority or the Commission, as appro- priate, may make available to authorized persons, under a protective order described in paragraph (2), a copy of all proprietary material in the administrative record made during the proceeding in question. If the ad- ministering authority or the Commission claims a privilege as to a document or por- tion of a document in the administrative record of the proceeding in question and a binational panel or extraordinary challenge committee finds that in camera inspection or limited disclosure of that document or portion thereof is required by United States law, the administering authority or the Commission, as appropriate, may restrict access to such document or portion thereof to the authorized persons identified by the panel or committee as requiring access and may require such persons to obtain access under a protective order described in para- graph (2). (B) Authorized persons For purposes of this subsection, the term ‘‘authorized persons’’ means— (i) the members of, and the appropriate staff of, the binational panel or the ex- traordinary challenge committee, as the case may be, and the Secretariat, (ii) counsel for parties to such panel or committee proceeding, and employees, and persons under the direction and control, of such counsel, (iii) any officer or employee of the United States Government designated by the administering authority or the Com- mission, as appropriate, to whom disclo- sure is necessary in order to make rec- ommendations to the Trade Representa- tive regarding the convening of extraor- dinary challenge committees under chap- ter 19 of the Agreement or chapter 10 of the USMCA, and (iv) any officer or employee of the Gov- ernment of a free trade area country (as defined in section 1516a(f)(9) of this title) designated by an authorized agency of such country to whom disclosure is nec- essary in order to make decisions regard- ing the convening of extraordinary chal- lenge committees under chapter 19 of the Agreement or chapter 10 of the USMCA. (C) Review A decision concerning the disclosure or nondisclosure of material under protective order by the administering authority or the Commission shall not be subject to judicial review, and no court of the United States shall have power or jurisdiction to review such decision on any question of law or fact by an action in the nature of mandamus or otherwise. (2) Contents of protective order Each protective order issued under this sub- section shall be in such form and contain such requirements as the administering authority or the Commission may determine by regula- tion to be appropriate. The administering au- thority and the Commission shall ensure that regulations issued pursuant to this paragraph shall be designed to provide an opportunity for participation in the binational panel pro- ceeding, including any extraordinary chal- lenge, equivalent to that available for judicial review of determinations by the administering authority or the Commission that are not sub- ject to review by a binational panel. (3) Prohibited acts It is unlawful for any person to violate, to induce the violation of, or knowingly to re- ceive information the receipt of which con- stitutes a violation of, any provision of a pro- tective order issued under this subsection or to violate, to induce the violation of, or know- ingly to receive information the receipt of which constitutes a violation of, any provision of an undertaking entered into with an au- thorized agency of a free trade area country (as defined in section 1516a(f)(9) of this title) to protect proprietary material during binational panel or extraordinary challenge committee review pursuant to article 1904 of article 1904 of 1 the United States-Canada Agreement or article 10.12 of the USMCA. (4) Sanctions for violation of protective orders Any person, except a judge appointed to a bi- national panel or an extraordinary challenge committee under section 4582(b) of this title, who is found by the administering authority or the Commission, as appropriate, after no- tice and an opportunity for a hearing in ac- cordance with section 554 of title 5 to have committed an act prohibited by paragraph (3) shall be liable to the United States for a civil penalty and shall be subject to such other ad- ministrative sanctions, including, but not lim- ited to, debarment from practice before the administering authority or the Commission, as the administering authority or the Com- mission determines to be appropriate. The amount of the civil penalty shall not exceed $100,000 for each violation. Each day of a con- tinuing violation shall constitute a separate violation. The amount of such civil penalty and other sanctions shall be assessed by the administering authority or the Commission by written notice, except that assessment shall be made by the administering authority for violation, inducement of a violation or receipt of information with reason to know that such information was disclosed in violation, of an undertaking entered into by any person with an authorized agency of a free trade area country (as defined in section 1516a(f)(9) of this title). (5) Review of sanctions Any person against whom sanctions are im- posed under paragraph (4) may obtain review of such sanctions by filing a notice of appeal in the United States Court of International Trade within 30 days from the date of the order imposing the sanction and by simulta- neously sending a copy of such notice by cer- Page 411 TITLE 19—CUSTOMS DUTIES § 1677f tified mail to the administering authority or the Commission, as appropriate. The admin- istering authority or the Commission shall promptly file in such court a certified copy of the record upon which such violation was found or such sanction imposed, as provided in section 2112 of title 28. The findings and order of the administering authority or the Commis- sion shall be set aside by the court only if the court finds that such findings and order are not supported by substantial evidence, as pro- vided in section 706(2) of title 5. (6) Enforcement of sanctions If any person fails to pay an assessment of a civil penalty or to comply with other adminis- trative sanctions after the order imposing such sanctions becomes a final and un- appealable order, or after the United States Court of International Trade has entered final judgment in favor of the administering au- thority or the Commission, an action may be filed in such court to enforce the sanctions. In such action, the validity and appropriateness of the final order imposing the sanctions shall not be subject to review. (7) Testimony and production of papers (A) Authority to obtain information For the purpose of conducting any hearing and carrying out other functions and duties under this subsection, the administering au- thority and the Commission, or their duly authorized agents— (i) shall have access to and the right to copy any pertinent document, paper, or record in the possession of any individual, partnership, corporation, association, or- ganization, or other entity, (ii) may summon witnesses, take testi- mony, and administer oaths, (iii) and may require any individual or entity to produce pertinent documents, books, or records. Any member of the Commission, and any person so designated by the administering authority, may sign subpoenas, and mem- bers and agents of the administering author- ity and the Commission, when authorized by the administering authority or the Commis- sion, as appropriate, may administer oaths and affirmations, examine witnesses, take testimony, and receive evidence. (B) Witnesses and evidence The attendance of witnesses who are au- thorized to be summoned, and the produc- tion of documentary evidence authorized to be ordered, under subparagraph (A) may be required from any place in the United States at any designated place of hearing. In the case of disobedience to a subpoena issued under subparagraph (A), an action may be filed in any district or territorial court of the United States to require the attendance and testimony of witnesses and the produc- tion of documentary evidence. Such court, within the jurisdiction of which such inquiry is carried on, may, in case of contumacy or refusal to obey a subpoena issued to any in- dividual, partnership, corporation, associa- tion, organization or other entity, issue any order requiring such individual or entity to appear before the administering authority or the Commission, or to produce documentary evidence if so ordered or to give evidence concerning the matter in question. Any fail- ure to obey such order of the court may be punished by the court as a contempt thereof. (C) Mandamus Any court referred to in subparagraph (B) shall have jurisdiction to issue writs of man- damus commanding compliance with the provisions of this subsection or any order of the administering authority or the Commis- sion made in pursuance thereof. (D) Depositions For purposes of carrying out any functions or duties under this subsection, the admin- istering authority or the Commission may order testimony to be taken by deposition. Such deposition may be taken before any person designated by the administering au- thority or Commission and having power to administer oaths. Such testimony shall be reduced to writing by the person taking the deposition, or under the direction of such person, and shall then be subscribed by the deponent. Any individual, partnership, cor- poration, association, organization or other entity may be compelled to appear and de- pose and to produce documentary evidence in the same manner as witnesses may be compelled to appear and testify and produce documentary evidence before the admin- istering authority or Commission, as pro- vided in this paragraph. (E) Fees and mileage of witnesses Witnesses summoned before the admin- istering authority or the Commission shall be paid the same fees and mileage that are paid witnesses in the courts of the United States. (g) Information relating to violations of protec- tive orders and sanctions The administering authority and the Commis- sion may withhold from disclosure any cor- respondence, private letters of reprimand, set- tlement agreements, and documents and files compiled in relation to investigations and ac- tions involving a violation or possible violation of a protective order issued under subsection (c) or (d), and such information shall be treated as information described in section 552(b)(3) of title 5. (h) Opportunity for comment by consumers and industrial users The administering authority and the Commis- sion shall provide an opportunity for industrial users of the subject merchandise and, if the mer- chandise is sold at the retail level, for represent- ative consumer organizations, to submit rel- evant information to the administering author- ity concerning dumping or a countervailable subsidy, and to the Commission concerning ma- terial injury by reason of dumped or subsidized imports. Page 412 TITLE 19—CUSTOMS DUTIES § 1677f (i) Publication of determinations; requirements for final determinations (1) In general Whenever the administering authority makes a determination under section 1671a or 1673a of this title whether to initiate an inves- tigation, or the administering authority or the Commission makes a preliminary determina- tion under section 1671b or 1673b of this title, a final determination under section 1671d of this title or section 1673d of this title, a pre- liminary or final determination in a review under section 1675 of this title, a determina- tion to suspend an investigation under this subtitle, or a determination under section 1675b of this title, the administering authority or the Commission, as the case may be, shall publish the facts and conclusions supporting that determination, and shall publish notice of that determination in the Federal Register. (2) Contents of notice or determination The notice or determination published under paragraph (1) shall include, to the extent ap- plicable— (A) in the case of a determination of the administering authority— (i) the names of the exporters or pro- ducers of the subject merchandise or, when providing such names is impracticable, the countries exporting the subject merchan- dise to the United States, (ii) a description of the subject merchan- dise that is sufficient to identify the sub- ject merchandise for customs purposes, (iii)(I) with respect to a determination in an investigation under part I of this sub- title or section 1675b of this title or in a re- view of a countervailing duty order, the amount of the countervailable subsidy es- tablished and a full explanation of the methodology used in establishing the amount, and (II) with respect to a determination in an investigation under part II of this subtitle or in a review of an antidumping duty order, the weighted average dumping mar- gins established and a full explanation of the methodology used in establishing such margins, and (iv) the primary reasons for the deter- mination; and (B) in the case of a determination of the Commission— (i) considerations relevant to the deter- mination of injury, and (ii) the primary reasons for the deter- mination. (3) Additional requirements for final deter- minations In addition to the requirements set forth in paragraph (2)— (A) the administering authority shall in- clude in a final determination described in paragraph (1) an explanation of the basis for its determination that addresses relevant ar- guments, made by interested parties who are parties to the investigation or review (as the case may be), concerning the establishment of dumping or a countervailable subsidy, or the suspension of the investigation, with re- spect to which the determination is made; and (B) the Commission shall include in a final determination of injury an explanation of the basis for its determination that address- es relevant arguments that are made by in- terested parties who are parties to the inves- tigation or review (as the case may be) con- cerning volume, price effects, and impact on the industry of imports of the subject mer- chandise. (June 17, 1930, ch. 497, title VII, § 777, as added Pub. L. 96–39, title I, § 101, July 26, 1979, 93 Stat. 187; amended Pub. L. 98–573, title VI, § 619, Oct. 30, 1984, 98 Stat. 3038; Pub. L. 99–514, title XVIII, §§ 1886(a)(13), 1889(8), Oct. 22, 1986, 100 Stat. 2922, 2926; Pub. L. 100–418, title I, § 1332, Aug. 23, 1988, 102 Stat. 1207; Pub. L. 100–449, title IV, § 403(c), Sept. 28, 1988, 102 Stat. 1884; Pub. L. 101–382, title I, §§ 134(a)(4), 135(b), Aug. 20, 1990, 104 Stat. 650, 651; Pub. L. 103–182, title IV, § 412(c), Dec. 8, 1993, 107 Stat. 2146; Pub. L. 103–465, title II, §§ 226–228, 231(b), (d)(1), Dec. 8, 1994, 108 Stat. 4886–4888, 4896, 4897; Pub. L. 114–125, title IV, § 413(a), Feb. 24, 2016, 130 Stat. 159; Pub. L. 116–113, title IV, § 422(a), Jan. 29, 2020, 134 Stat. 64; Pub. L. 116–260, div. O, title VI, § 601(f), Dec. 27, 2020, 134 Stat. 2151.) AMENDMENT OF SECTION For termination of amendment by section 501(c) of Pub. L. 100–449, see Effective and Ter- mination Dates of 1988 Amendment note below. Editorial Notes AMENDMENTS 2020—Subsec. (f). Pub. L. 116–260, § 601(f)(1), sub- stituted ‘‘to the United’’ for ‘‘to the the United’’ in heading. Pub. L. 116–113, § 422(a)(1), substituted ‘‘the United States-Canada Agreement or the USMCA’’ for ‘‘North American Free Trade Agreement or the United States- Canada Agreement’’ in heading. Subsec. (f)(1)(A). Pub. L. 116–260, § 601(f)(2), added sub- par. (A) and struck out former subpar. (A) which read as follows: ‘‘If binational panel review of a determina- tion under this subtitle is requested pursuant to article 1904 of the United States-Canada Agreement or article 10.12 of the USMCA, or an extraordinary challenge com- mittee is convened under Annex 1904.13 of the United States-Canada Agreement or chapter 10 of the USMCA, the administering authority or the Commission, as ap- propriate, may make available to authorized persons, under a protective order described in paragraph (2), a copy of all proprietary material in the administrative record made during the proceeding in question. If the administering authority or the Commission claims a privilege as to a document or portion of a document in the administrative record of the proceeding in question and a binational panel or extraordinary challenge com- mittee finds that in camera inspection or limited dis- closure of that document or portion thereof is required by United States law, the administering authority or the Commission, as appropriate, may restrict access to such document or portion thereof to the authorized persons identified by the panel or committee as requir- ing access and may require such persons to obtain ac- cess under a protective order described in paragraph (2).’’ Pub. L. 116–113, § 422(a)(2)(A), substituted ‘‘article 1904 of the United States-Canada Agreement or article 10.12 of the USMCA, or an extraordinary challenge com- mittee is convened under Annex 1904.13 of the United Page 413 TITLE 19—CUSTOMS DUTIES § 1677f States-Canada Agreement or chapter 10 of the USMCA, the administering authority’’ for ‘‘article 1904 of the NAFTA or the United States-Canada Agreement, or an extraordinary challenge committee is convened under Annex 1904.13 of the NAFTA or the United States-Can- ada Agreement, the administering authority’’. Subsec. (f)(1)(B)(iii). Pub. L. 116–113, § 422(a)(2)(B), sub- stituted ‘‘chapter 19 of the Agreement or chapter 10 of the USMCA’’ for ‘‘chapter 19 of the NAFTA or the Agreement’’. Subsec. (f)(1)(B)(iv). Pub. L. 116–113, § 422(a)(2)(B), (5), substituted ‘‘section 1516a(f)(9) of this title’’ for ‘‘sec- tion 1516a(f)(10) of this title’’ and ‘‘chapter 19 of the Agreement or chapter 10 of the USMCA’’ for ‘‘chapter 19 of the NAFTA or the Agreement’’. Subsec. (f)(3). Pub. L. 116–113, § 422(a)(3), (5), sub- stituted ‘‘section 1516a(f)(9) of this title’’ for ‘‘section 1516a(f)(10) of this title’’ and ‘‘article 1904 of the United States-Canada Agreement or article 10.12 of the USMCA’’ for ‘‘the NAFTA or the United States-Canada Agreement’’. Subsec. (f)(4). Pub. L. 116–113, § 422(a)(4), (5), sub- stituted ‘‘section 4582(b) of this title’’ for ‘‘section 3432(b) of this title’’ and ‘‘section 1516a(f)(9) of this title’’ for ‘‘section 1516a(f)(10) of this title’’. 2016—Subsec. (b)(1)(A)(ii). Pub. L. 114–125 inserted ‘‘negligence, gross negligence, or’’ after ‘‘regarding’’. 1994—Subsec. (a)(4). Pub. L. 103–465, § 231(b), sub- stituted ‘‘shall disclose’’ for ‘‘may disclose’’ in intro- ductory provisions. Subsec. (b)(1). Pub. L. 103–465, § 226(a)(1), amended par. (1) generally, designating first sentence as subpar. (A), rearranging provisions for clarity, and inserting provi- sions in cl. (i) relating to reviews under this subtitle covering same subject merchandise, and designating second sentence as subpar. (B) with corresponding re- designations of former subpars. as cls. and cls. as subcls. Subsec. (b)(2). Pub. L. 103–465, § 226(b), inserted at end ‘‘In a case in which the administering authority or the Commission returns the information to the person sub- mitting it, the person may thereafter submit other ma- terial concerning the subject matter of the returned in- formation if the submission is made within the time otherwise provided for submitting such material.’’ Subsec. (b)(3). Pub. L. 103–465, § 226(a)(2), added par. (3). Subsec. (e). Pub. L. 103–465, § 231(d)(1), struck out heading and text of subsec. (e). Text read as follows: ‘‘Information shall be submitted to the administering authority or the Commission during the course of a proceeding on a timely basis and shall be subject to comment by other parties within such reasonable time as the administering authority or the Commission shall provide. If information is submitted without an ade- quate opportunity for other parties to comment there- on, the administering authority or the Commission may return the information to the party submitting it and not consider it.’’ Subsecs. (h), (i). Pub. L. 103–465, §§ 227, 228, added sub- secs. (h) and (i). 1993—Subsec. (f). Pub. L. 103–182, § 412(c)(1), inserted ‘‘the North American Free Trade Agreement or’’ in heading. Subsec. (f)(1)(A). Pub. L. 103–182, § 412(c)(2), (3), in- serted ‘‘the NAFTA or’’ before ‘‘the United States-Can- ada Agreement’’ in two places, in second sentence in- serted ‘‘or extraordinary challenge committee’’ after ‘‘binational panel’’, and substituted ‘‘identified by the panel or committee’’ for ‘‘identified by the panel’’. Subsec. (f)(1)(B). Pub. L. 103–182, § 412(c)(4), in cl. (iii), inserted ‘‘the NAFTA or’’ before ‘‘the Agreement’’ and in cl. (iv), inserted ‘‘the NAFTA or’’ before ‘‘the Agree- ment’’ and substituted ‘‘Government of a free trade area country (as defined in section 1516a(f)(10) of this title) designated by an authorized agency of such coun- try’’ for ‘‘Government of Canada designated by an au- thorized agency of Canada’’. Subsec. (f)(2). Pub. L. 103–182, § 412(c)(5), inserted ‘‘, including any extraordinary challenge,’’ after ‘‘bina- tional panel proceeding’’. Subsec. (f)(3). Pub. L. 103–182, § 412(c)(6), (7), sub- stituted ‘‘agency of a free trade area country (as de- fined in section 1516a(f)(10) of this title)’’ for ‘‘agency of Canada’’ and inserted ‘‘or extraordinary challenge com- mittee’’ after ‘‘binational panel’’ and ‘‘the NAFTA or’’ before ‘‘the United States-Canada Agreement’’. Subsec. (f)(4). Pub. L. 103–182, § 412(c)(7), (8), inserted ‘‘, except a judge appointed to a binational panel or an extraordinary challenge committee under section 3432(b) of this title,’’ after ‘‘Any person’’ and sub- stituted ‘‘agency of a free trade area country (as de- fined in section 1516a(f)(10) of this title)’’ for ‘‘agency of Canada’’. 1990—Subsec. (c)(1)(A). Pub. L. 101–382, § 135(b)(1), in- serted at end ‘‘Customer names obtained during any in- vestigation which requires a determination under sec- tion 1671d(b) or 1673d(b) of this title may not be dis- closed by the administering authority under protective order until either an order is published under section 1671e(a) or 1673e(a) of this title as a result of the inves- tigation or the investigation is suspended or termi- nated. The Commission may delay disclosure of cus- tomer names under protective order during any such investigation until a reasonable time prior to any hear- ing provided under section 1677c of this title.’’ Subsec. (d). Pub. L. 101–382, § 134(a)(4), redesignated subsec. (d), relating to disclosure of proprietary infor- mation, etc., as (f). Subsec. (f). Pub. L. 101–382, § 134(a)(4), redesignated subsec. (d), relating to disclosure of proprietary infor- mation, etc., as (f). Subsec. (f)(1)(A). Pub. L. 101–382, § 134(a)(4)(A), struck out ‘‘(but not privileged material as defined by the rules of procedure referred to in article 1904(14) of the United States-Canada Agreement)’’ after ‘‘all propri- etary material’’ and inserted at end ‘‘If the admin- istering authority or the Commission claims a privi- lege as to a document or portion of a document in the administrative record of the proceeding in question and a binational panel finds that in camera inspection or limited disclosure of that document or portion thereof is required by United States law, the administering au- thority or the Commission, as appropriate, may re- strict access to such document or portion thereof to the authorized persons identified by the panel as re- quiring access and may require such persons to obtain access under a protective order described in paragraph (2).’’ Subsec. (f)(1)(B)(ii) to (iv). Pub. L. 101–382, § 134(a)(4)(B), inserted ‘‘, and persons under the direc- tion and control,’’ after ‘‘employees’’ in cl. (ii), sub- stituted ‘‘make recommendations to the Trade Rep- resentative regarding the convening of extraordinary challenge committees under chapter 19 of the Agree- ment, and’’ for ‘‘implement the United States-Canada Agreement with respect to such proceeding.’’ in cl. (iii), and added cl. (iv). Subsec. (f)(3). Pub. L. 101–382, § 134(a)(4)(C), struck out ‘‘or’’ after ‘‘violate,’’ in two places and inserted ‘‘or knowingly to receive information the receipt of which constitutes a violation of,’’ after ‘‘the violation of,’’ in two places. Subsec. (f)(4). Pub. L. 101–382, § 134(a)(4)(D), inserted provisions relating to receipt of information with rea- son to know the information was disclosed in violation. Subsec. (g). Pub. L. 101–382, § 135(b)(2), added subsec. (g). 1988—Subsec. (b)(1)(B)(ii). Pub. L. 100–418, § 1332(1), amended cl. (ii) generally. Prior to amendment, cl. (ii) read as follows: ‘‘a statement that the information should not be released under administrative protective order.’’ Subsec. (c)(1)(A). Pub. L. 100–418, § 1332(2)(A), amended subpar. (A) generally. Prior to amendment, subpar. (A) read as follows: ‘‘Upon receipt of an application, (before or after receipt of the information requested) which de- scribes with particularity the information requested and sets forth the reasons for the request, the admin- istering authority and the Commission may make pro- prietary information submitted by any other party to Page 414 TITLE 19—CUSTOMS DUTIES § 1677f the investigation available under a protective order de- scribed in subparagraph (B).’’ Subsec. (c)(1)(C) to (E). Pub. L. 100–418, § 1332(2)(B), added subpars. (C) to (E). Subsec. (c)(2). Pub. L. 100–418, § 1332(3), struck out ‘‘or the Commission denies a request for proprietary infor- mation submitted by the petitioner or an interested party in support of the petitioner concerning the do- mestic price or cost of production of the like product,’’ after ‘‘information under paragraph (1),’’. Subsec. (d). Pub. L. 100–449 temporarily added subsec. (d) relating to disclosure of proprietary information, etc. See Effective and Termination Dates of 1988 Amendment note below. Pub. L. 100–418, § 1332(4), added subsec. (d) relating to service. Subsec. (e). Pub. L. 100–418, § 1332(4), added subsec. (e). 1986—Subsec. (a)(4). Pub. L. 99–514, § 1886(a)(13)(A), substituted ‘‘non-proprietary’’ for ‘‘nonconfidential’’ in heading, and ‘‘proprietary’’ for ‘‘confidential’’ in two places in text. Subsec. (b). Pub. L. 99–514, § 1886(a)(13)(A), substituted ‘‘Proprietary’’ for ‘‘Confidential’’ in heading. Subsec. (b)(1). Pub. L. 99–514, § 1886(a)(13)(A), sub- stituted ‘‘Proprietary status’’ for ‘‘Confidentiality’’ in heading, ‘‘proprietary’’ for ‘‘confidential’’ in two places in introductory provisions, and ‘‘non-proprietary’’ for ‘‘nonconfidential’’ in subpar. (A)(i). Pub. L. 99–514, § 1889(8), made technical correction to directory language of Pub. L. 98–573, § 619(3), requiring no change in text. See 1984 Amendment note below. Subsec. (b)(1)(B)(i). Pub. L. 99–514, § 1886(a)(13)(B), in- serted ‘‘or the Commission’’ after ‘‘authority’’. Subsec. (b)(2). Pub. L. 99–514, § 1886(a)(13)(A), sub- stituted ‘‘proprietary’’ for ‘‘confidential’’. Subsec. (c). Pub. L. 99–514, § 1886(a)(13)(A), substituted ‘‘proprietary’’ for ‘‘confidential’’ in heading and in pars. (1)(A) and (2). 1984—Subsec. (a)(3). Pub. L. 98–573, § 619(1), amended par. (3) generally, substituting in provisions preceding subpar. (A) ‘‘of any ex parte meeting’’ for ‘‘of ex parte meetings’’, in subpar. (A) ‘‘a proceeding’’ for ‘‘an inves- tigation’’, in subpar. (B) ‘‘or any person’’ for ‘‘and any person’’ and ‘‘that proceeding,’’ for ‘‘that investiga- tion,’’ and, in provisions following subpar. (B), ‘‘if in- formation relating to that proceeding was presented or discussed at such meeting. The record of such an’’ for ‘‘The record of the’’. Subsec. (b)(1). Pub. L. 98–573, § 619(2), in first sentence, inserted provision referring to an officer or employee of the United States Customs Service who is directly in- volved in conducting an investigation regarding fraud under this subtitle. Pub. L. 98–573, § 619(3), as amended by Pub. L. 99–514, § 1889(8), amended second sentence generally, and there- by substituted ‘‘the Commission shall require’’ for ‘‘the Commission may require’’, designated existing provi- sions as subpar. (A) and, in subpar. (A) as so designated, substituted ‘‘either— (i) a nonconfidential summary’’ for ‘‘a non-confidential summary’’, inserted designa- tion ‘‘(ii)’’, substituted ‘‘summary accompanied’’ for ‘‘summary, accompanied’’, and added subpar. (B). Subsec. (c)(1)(A). Pub. L. 98–573, § 619(4), inserted ‘‘(be- fore or after receipt of the information requested)’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2020 AMENDMENT Amendment by Pub. L. 116–260 effective July 1, 2020, see section 601(h) of div. O of Pub. L. 116–260, set out as a note under section 81c of this title. Amendment by Pub. L. 116–113 effective on the date on which the USMCA enters into force (July 1, 2020), but not applicable to certain determinations under sec- tion 1516a of this title or binational panel reviews under NAFTA, see section 432 of Pub. L. 116–113, set out as a note under section 1516a of this title. 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 1993 AMENDMENT Amendment by Pub. L. 103–182 effective on the date the North American Free Trade Agreement enters into force with respect to the United States [Jan. 1, 1994], but not applicable to any final determination described in section 1516a(a)(1)(B) or (2)(B)(i), (ii), or (iii) of this title, notice of which is published in the Federal Reg- ister before such date, or to a determination described in section 1516a(a)(2)(B)(vi) of this title, notice of which is received by the Government of Canada or Mexico be- fore such date, or to any binational panel review under the United States-Canada Free-Trade Agreement, or to any extraordinary challenge arising out of any such re- view that was commenced before such date, see section 416 of Pub. L. 103–182, formerly set out as an Effective Date note under former section 3431 of this title. EFFECTIVE AND TERMINATION DATES OF 1988 AMENDMENT Amendment by Pub. L. 100–449 effective on date the United States-Canada Free-Trade Agreement enters into force (Jan. 1, 1989), and to cease to have effect on date Agreement ceases to be in force, see section 501(a), (c) of Pub. L. 100–449, set out in a note under section 2112 of this title. Amendment by Pub. L. 100–418 applicable with re- spect 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 an Effective Date of 1988 Amend- ment 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. TRANSFER OF FUNCTIONS For transfer of functions, personnel, assets, and li- abilities of the United States Customs Service of the Department of the Treasury, including functions of the Secretary of the Treasury relating thereto, to the Sec- retary of Homeland Security, and for treatment of re- lated references, see sections 203(1), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of Novem- ber 25, 2002, as modified, set out as a note under section 542 of Title 6. For establishment of U.S. Customs and Border Protection in the Department of Homeland Se- curity, treated as if included in Pub. L. 107–296 as of Nov. 25, 2002, see section 211 of Title 6, as amended gen- erally by Pub. L. 114–125, and section 802(b) of Pub. L. 114–125, set out as a note under section 211 of Title 6. EFFECT OF TERMINATION OF USMCA COUNTRY STATUS For provisions relating to effect of termination of USMCA country status on sections 401 to 432 of Pub. L. 116–113, see section 4601 of this title. PLAN AMENDMENTS NOT REQUIRED UNTIL JANUARY 1, 1989 For provisions directing that if any amendments made by subtitle A or subtitle C of title XI [§§ 1101–1147 and 1171–1177] or title XVIII [§§ 1801–1899A] of Pub. L. 99–514 require an amendment to any plan, such plan amendment shall not be required to be made before the first plan year beginning on or after Jan. 1, 1989, see section 1140 of Pub. L. 99–514, as amended, set out as a note under section 401 of Title 26, Internal Revenue Code. Page 415 TITLE 19—CUSTOMS DUTIES § 1677f–1 § 1677f–1. Sampling and averaging; determination of weighted average dumping margin and countervailable subsidy rate (a) In general For purposes of determining the export price (or constructed export price) under section 1677a of this title or the normal value under section 1677b of this title, and in carrying out reviews under section 1675 of this title, the admin- istering authority may— (1) use averaging and statistically valid sam- ples, if there is a significant volume of sales of the subject merchandise or a significant num- ber or types of products, and (2) decline to take into account adjustments which are insignificant in relation to the price or value of the merchandise. (b) Selection of averages and samples The authority to select averages and statis- tically valid samples shall rest exclusively with the administering authority. The administering authority shall, to the greatest extent possible, consult with the exporters and producers regard- ing the method to be used to select exporters, producers, or types of products under this sec- tion. (c) Determination of dumping margin (1) General rule In determining weighted average dumping margins under section 1673b(d), 1673d(c), or 1675(a) of this title, the administering author- ity shall determine the individual weighted average dumping margin for each known ex- porter and producer of the subject merchan- dise. (2) Exception If it is not practicable to make individual weighted average dumping margin determina- tions under paragraph (1) because of the large number of exporters or producers involved in the investigation or review, the administering authority may determine the weighted aver- age dumping margins for a reasonable number of exporters or producers by limiting its exam- ination to— (A) a sample of exporters, producers, or types of products that is statistically valid based on the information available to the administering authority at the time of selec- tion, or (B) exporters and producers accounting for the largest volume of the subject merchan- dise from the exporting country that can be reasonably examined. (d) Determination of less than fair value (1) Investigations (A) In general In an investigation under part II of this subtitle, the administering authority shall determine whether the subject merchandise is being sold in the United States at less than fair value— (i) by comparing the weighted average of the normal values to the weighted average of the export prices (and constructed ex- port prices) for comparable merchandise, or (ii) by comparing the normal values of individual transactions to the export prices (or constructed export prices) of in- dividual transactions for comparable mer- chandise. (B) Exception The administering authority may deter- mine whether the subject merchandise is being sold in the United States at less than fair value by comparing the weighted aver- age of the normal values to the export prices (or constructed export prices) of individual transactions for comparable merchandise, if— (i) there is a pattern of export prices (or constructed export prices) for comparable merchandise that differ significantly among purchasers, regions, or periods of time, and (ii) the administering authority explains why such differences cannot be taken into account using a method described in para- graph (1)(A)(i) or (ii). (2) Reviews In a review under section 1675 of this title, when comparing export prices (or constructed export prices) of individual transactions to the weighted average price of sales of the foreign like product, the administering authority shall limit its averaging of prices to a period not exceeding the calendar month that cor- responds most closely to the calendar month of the individual export sale. (e) Determination of countervailable subsidy rate (1) General rule In determining countervailable subsidy rates under section 1671b(d), 1671d(c), or 1675(a) of this title, the administering authority shall determine an individual countervailable sub- sidy rate for each known exporter or producer of the subject merchandise. (2) Exception If the administering authority determines that it is not practicable to determine indi- vidual countervailable subsidy rates under paragraph (1) because of the large number of exporters or producers involved in the inves- tigation or review, the administering author- ity may— (A) determine individual countervailable subsidy rates for a reasonable number of ex- porters or producers by limiting its exam- ination to— (i) a sample of exporters or producers that the administering authority deter- mines is statistically valid based on the information available to the administering authority at the time of selection, or (ii) exporters and producers accounting for the largest volume of the subject mer- chandise from the exporting country that the administering authority determines can be reasonably examined; or (B) determine a single country-wide sub- sidy rate to be applied to all exporters and producers. The individual countervailable subsidy rates determined under subparagraph (A) shall be