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 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. § 1677e. Determinations on basis of facts avail- able (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 informa- tion or in the form and manner requested, subject to subsections (c)(1) and (e) of sec- tion 1677m of this title, (C) significantly impedes a proceeding under this subtitle, or (D) provides such information but the in- formation cannot be verified as provided in section 1677m(i) of this title, the administering authority and the Commis- sion shall, subject to section 1677m(d) of this title, use the facts otherwise available in reach- ing the applicable determination under this sub- title. (b) Adverse inferences (1) In general If the administering authority or the Com- mission (as the case may be) finds that an in- terested party has failed to cooperate by not acting to the best of its ability to comply with a request for information from the admin- istering authority or the Commission, the ad- ministering 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 sub- sidy rate or weighted average dumping mar- gin based on any assumptions about infor- mation the interested party would have pro- vided if the interested party had complied with the request for information. (2) Potential sources of information for ad- verse inferences An adverse inference under paragraph (1)(A) may include reliance on information derived from— (A) the petition, (B) a final determination in the investiga- tion 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) Corroboration of secondary information (1) In general Except as provided in paragraph (2), when the administering authority or the Commis- sion 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, corrobo- rate that information from independent sources that are reasonably at their disposal. (2) Exception The administrative authority and the Com- mission shall not be required to corroborate any dumping margin or countervailing duty applied in a separate segment of the same pro- ceeding. (d) Subsidy rates and dumping margins in ad- verse inference determinations (1) In general If the administering authority uses an infer- ence that is adverse to the interests of a party under subsection (b)(1)(A) in selecting among the facts otherwise available, the admin- istering authority may— (A) in the case of a countervailing duty proceeding— (i) use a countervailable subsidy rate ap- plied for the same or similar program in a countervailing duty proceeding involving the same country; or 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—