Compendium of Antidumping and Countervailing Duty Laws
in the Western Hemisphere
- Steps of the Investigation
- Best Information Available (or "Facts Available")
WTO Standard: In cases in which any interested Member or interested party refuses access to, or otherwise does not provide, necessary information within a reasonable period or significantly impedes the investigation, preliminary and final determinations, affirmative or negative, may be made on the basis of the facts available. (AD Agreement, Art. 6.8; SCM Agreement 12.7)
The cited standards of the WTO are complemented by Decree 2121/94. When the implementing authority does not receive a reply to its requests for information, it may use the best information available. (Decree No. 2121/94, Art. 42).
If a firm or government does not authorize verification or does not cooperate with the investigation, the competent implementing authority must use the best information available in order to complete its investigation and produce its recommendations to the Minister for the Economy and Public Works and Services. (Id., Art. 43).
The investigating authority shall base its decision on the information provided, which can be verified, is appropriate and presented in timely fashion.
When the authority does not accept evidence or information, it shall so inform the party which has supplied the information or evidence and shall allow the party to provide further explanations. Bi-ministerial Decision, Art. 24.
In the event that any of the parties bars access to the necessary information, does not submit it within the time-limits established or, even, hinders the investigation, the decision on preliminary or final determinations may be reached on the basis of the facts available, including the information contained in the petition, but the outcome may be less favorable than it might have been had they cooperated. (Dec. 1602/95 - Art. 27.3, 66.1, and 66.4, Dec. 1751/95 - Art. 37.3). Parties shall be informed of this possibility. (Dec. 1602/95 - Art. 66.1, Dec. 1751/95 - Art. 79.1).
If SECEX does not accept a response, they will immediately communicate to the respondent the reason for the rejection.
The respondent may provide a new information within the established period keeping in mind the limited duration of the investigation.
If the explanation is not acceptable the reasons for the rejection of the response will be included in any published determination. (Dec. 1602/95 - Art. 66.3, Dec. 1751/95 - Art. 79.6).
In formulating the determinations, if information from secondary sources is used, including the information provided in the petition, it should be compared with information from independent sources or other parties. (Dec. 1602/95 - Art. 66.5, Dec. 1751/95 - Art. 79.8).
Section 29 of the Special Import Measures Act (SIMA) states that: Where, in the opinion of the Deputy Minister of National Revenue, sufficient information has not been furnished or is not available to enable the determination on normal value or export price, as provided in sections 15 to 28, the normal value or export price, as the case may be, shall be determined in such manner as the Minister of National Revenue specifies.
In applying section 29 of the SIMA, Revenue Canada makes a distinction between information that is not available because it does not exist and information that is not available because of non-cooperation of a party.
In the former case, substitute information such as weighted average margin of dumping determined for other cooperative exporters or importers of the goods in question may be used.
In the latter case, the highest margin of dumping or the highest amount of subsidy found in the investigation may be used.
In cases where an interested party refuses access to necessary information, or fails to provide it within a reasonable period of time, or otherwise causes significant delay to the investigation, preliminary or final determinations may be issued, either positive or negative, on the basis of the facts and knowledge at hand. (Supreme Decree No. 16, Ministry of External Relations, published in the Diario Oficial on May 17, 1995).
All decisions taken in the course of investigation shall be based on the best information available.
When, for the purposes of verification of the information duly submitted for the investigation, INCOMEX requires the participation of the complainant or the interested party, it shall first advise them accordingly.
If they do not allow the verification to be made, the information shall be regarded as correct, in the absence of convincing evidence to the contrary. (Decree 299, Chapter 6, Art. 28).
In cases in which any interested party refuses access to, or otherwise does not provide, necessary information within a reasonable period or significantly impedes the investigation, preliminary and final determinations, affirmative or negative, may be made on the basis of the facts available.
If the information received by the Board is not furnished to its satisfaction, the Board can make a determination as to the facts of the investigation on the basis of the information available before it. (Sec. 20(4)).
If the Ministry's request for information is not satisfied, the Ministry shall decide on the basis of the information available. (I/54).
In cases where the authorities of the exporting countries or the interested parties deny access to the necessary information, do not provide it within a reasonable period of time, or significantly obstruct the investigation, preliminary or final conclusions may be issued based on the facts available, including those provided in the request for the initiation of proceedings presented by the domestic industry or production sector. Article 157.
When any of the interested parties denies access to the information needed, does not facilitate it within a reasonable time, or significantly hinders provision of the information, preliminary or final determinations may be made based on the best information available.
Trinidad and Tobago
If the Minister determines that any interested person refuses to or other does duty not provide necessary information within a reasonable period or significantly impedes the investigation or sufficient information has not been furnished or is not available to enable the normal value or export price of goods to be ascertained, then the normal value and/or the export price will be the amount determined by the Minister having regard to such information as is available. (Sec. 14).
Commerce uses "facts available" (previously referred to as "best information available") whenever:
(1) a complete, accurate, and timely response to a request for factual information is not received; or
(2) Commerce is unable to verify the accuracy and completeness of the factual information submitted within the specified time period.
The Commission typically uses the facts available in making determination by weighing all of the available evidence regarding a multiplicity of factors relating to the domestic industry as a whole and by drawing reasonable inferences from the evidence if finds most persuasive.
"Facts available" includes the factual information submitted in support of the petition or submitted by interested parties.
The statute requires that whenever Commerce or the ITC relies on secondary information rather than information obtained in the course of an investigation or review, Commerce or the ITC must, to the extent practicable, corroborate that information from independent sources.
"If a party or a third country refuses to provide the necessary information or does not do so within the time-limit fixed by the Technical Secretariat or in any other way hinders the investigation, preliminary or definitive decisions may be adopted on the basis of the information available.
If the Commission finds that the information submitted is false or misleading, it shall disregard the information and reject the applications by the person who submitted it". (1992 Law, Art. 46).