[Code of Federal Regulations]
[Title 19, Volume 3]
[Revised as of April 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 19CFR351.308]

[Page 251-252]
 
                        TITLE 19--CUSTOMS DUTIES
 
            CHAPTER III--INTERNATIONAL TRADE ADMINISTRATION,
                         DEPARTMENT OF COMMERCE
 
PART 351--ANTIDUMPING AND COUNTERVAILING DUTIES--Table of Contents
 
                   Subpart C--Information and Argument
 
Sec. 351.308  Determinations on the basis of the facts available.

    (a) Introduction. The Secretary may make determinations on the basis 
of the facts available whenever necessary information is not available 
on the record, an interested party or any other person withholds or 
fails to provide information requested in a timely manner and in the 
form required or significantly impedes a proceeding, or the Secretary is 
unable to verify submitted information. If the Secretary 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,'' the Secretary 
may use an inference that is adverse to the interests of that party in 
selecting from among the facts otherwise available. This section lists 
some of the sources of information upon which the Secretary may base an 
adverse inference and explains the actions the Secretary will take with 
respect to corroboration of information.
    (b) In general. The Secretary may make a determination under the Act 
and this part based on the facts otherwise available in accordance with 
section 776(a) of the Act.
    (c) Adverse Inferences. For purposes of section 776(b) of the Act, 
an adverse inference may include reliance on:
    (1) Secondary information, such as information derived from:
    (i) The petition;
    (ii) A final determination in a countervailing duty investigation or 
an antidumping investigation;
    (iii) Any previous administrative review, new shipper review, 
expedited antidumping review, section 753 review, or section 762 review; 
or
    (2) Any other information placed on the record.
    (d) Corroboration of secondary information. Under section 776(c) of 
the Act, when the Secretary relies on secondary information, the 
Secretary will, to the extent practicable, corroborate that information 
from independent sources that are reasonably at the Secretary's 
disposal. Independent sources may include, but are not limited to, 
published price lists, official import statistics and customs data, and 
information obtained from interested parties during the instant 
investigation or review. Corroborate means that the Secretary will 
examine whether the secondary information to be used has probative 
value. The fact that corroboration may not be practicable in a given 
circumstance will not prevent the Secretary from applying an adverse 
inference as appropriate and using the secondary information in 
question.
    (e) Use of certain information. In reaching a determination under 
the Act and this part, the Secretary will not decline to consider 
information that is submitted by an interested party and is necessary to 
the determination but does not meet all the applicable requirements 
established by the Secretary if the conditions listed under section 
782(e) of the Act are met.
    (f) Use of facts available in a sunset review. Where the Secretary 
determines to issue final results of sunset review on the basis of facts 
available, the Secretary normally will rely on:
    (1) Calculated countervailing duty rates or dumping margins, as 
applicable, from prior Department determinations; and

[[Page 252]]

    (2) Information contained in parties' substantive responses to the 
Notice of Initiation filed under Sec. 351.218(d)(3), consistent with 
section 752(b) or 752(c) of the Act, as applicable.

[62 FR 27379, May 19, 1997, as amended at 63 FR 13524, Mar. 20, 1998]