Best Information Available (BIA)
/bɛst ˌɪnfərˈmeɪʃən əˈveɪləbəl biː aɪ eɪ/
Best Information Available (BIA) is the former U.S. antidumping (AD) and countervailing duty (CVD) terminology for agency reliance on record information when a party's response was deficient or unavailable. The Uruguay Round Agreements Act replaced that standard with 19 U.S.C. § 1677e, which establishes the current framework: Commerce first uses facts otherwise available when the conditions of subsection (a) are met and may apply an adverse inference under subsection (b) only after finding a party failed to cooperate to the best of its ability. Secondary information used under the current statute must be corroborated to the extent practicable.
In Detail
Best Information Available (BIA) was the standard used by the Department of Commerce (Commerce) in antidumping and countervailing duty proceedings prior to the Uruguay Round Agreements Act (URAA) of 1995. Under BIA, Commerce could rely on secondary information if a party failed to provide requested information. The URAA replaced BIA with the 'facts otherwise available' standard, codified in Section 776 of the Tariff Act of 1930 (19 U.S.C. § 1677e).
Under the current statutory framework, 19 U.S.C. § 1677e(a) permits Commerce to use 'facts otherwise available' (FOA) if necessary information is not available on the record or if an interested party or any other person: 1) withholds requested information; 2) fails to provide requested information in a timely manner or in the form and manner requested; 3) significantly impedes an investigation; or 4) provides inaccurate information. When Commerce relies on secondary information under this subsection, it must corroborate that information to the extent practicable with information from independent sources that are reasonably available on the record.
Furthermore, 19 U.S.C. § 1677e(b) allows Commerce to apply an adverse inference if it 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. This is often referred to as 'adverse facts available' (AFA). AFA is a punitive measure designed to deter non-cooperation and typically results in higher dumping margins or countervailable subsidy rates, serving as a strong incentive for parties to provide complete and accurate data diligently.
Classification Significance
Misunderstanding or failing to comply with Commerce's information requests under the current 'facts otherwise available' (FOA) standard can have severe consequences for importers and foreign producers. If Commerce determines a party failed to cooperate to the best of its ability, the application of adverse facts available (AFA) can lead to significantly higher antidumping or countervailing duty rates—potentially even the petition rate or the 'all-others' rate. Such outcomes can render imports economically unviable, expose the importer to substantial liability for underpaid duties, and severely impact competitive standing.
How Kanon Handles This
While the 'facts otherwise available' standard (including adverse inferences) is specific to AD/CVD determinations by Commerce, Kanon focuses on HTSUS classification. However, Kanon's commitment to providing a transparent, deterministic audit-defense package aligns with the need for meticulous record-keeping and data submission that is critical for compliance in any trade context, including AD/CVD proceedings. By generating legally sound classification reasoning, Kanon helps importers understand and document their goods, reducing classification errors that could inadvertently trigger scrutiny or misinterpretations in related trade remedies contexts.
Frequently Asked Questions
What is the difference between the former Best Information Available (BIA) standard and Adverse Facts Available (AFA)?
Best Information Available (BIA) was the pre-1995 standard allowing Commerce to use secondary information when a party failed to provide requested data. Under the current statute (19 U.S.C. § 1677e), the overarching principle is 'facts otherwise available' (FOA). Adverse Facts Available (AFA) is a specific application of FOA under 19 U.S.C. § 1677e(b), where Commerce draws an adverse inference (e.g., using a high rate from the petition or a prior review) as a punitive measure when a party fails to cooperate to the best of its ability.
Can Commerce's application of BIA be challenged?
Yes, a party can challenge Commerce's decision to apply facts otherwise available (including AFA) through administrative appeals within Commerce and ultimately before the U.S. Court of International Trade (CIT) or the Court of Appeals for the Federal Circuit (CAFC). The courts review whether Commerce's decision to apply FOA/AFA was supported by substantial evidence on the record and otherwise in accordance with law.