Best Information Available Standard
/bɛst ɪnfərˈmeɪʃən əˈveɪləbəl ˈstændərd/
Best information available (BIA) is a historical U.S. antidumping (AD) and countervailing duty (CVD) term. The Uruguay Round Agreements Act (URAA) replaced it in 1995 with the 'facts otherwise available' standard under 19 U.S.C. § 1677e. Under current law, the Department of Commerce (Commerce) or the International Trade Commission (ITC) uses facts otherwise available when a party fails to submit requested information in a timely, complete, or verifiable manner. It may select an adverse inference only after finding that an interested party failed to cooperate to the best of its ability. Secondary information used under the statute is corroborated to the extent practicable, subject to statutory exceptions.
In Detail
The Best Information Available (BIA) standard is a historical term, primarily used in U.S. Antidumping (AD) and Countervailing Duty (CVD) investigations and administrative reviews prior to 1995. The Uruguay Round Agreements Act (URAA) replaced BIA with the 'facts otherwise available' standard, codified in 19 U.S.C. § 1677e. This statutory provision now empowers the Department of Commerce or the International Trade Commission (ITC) to rely on 'facts otherwise available,' which may include information from the petition, prior determinations, or other secondary sources, when an interested party fails to submit requested information in a timely, complete, or verifiable manner. This ensures that investigations can proceed and determinations can be made even when full cooperation is lacking.
Under the current framework, simply invoking 'facts otherwise available' does not automatically lead to an adverse outcome. A distinct second step allows agencies to draw an 'adverse inference' in conjunction with the facts otherwise available when a party subject to an AD/CVD investigation fails to cooperate 'to the best of its ability.' This adverse inference means the agency may assume that the missing or unverified information would be unfavorable to the non-cooperating party, potentially leading to higher dumping margins or duty rates. It is critical to distinguish between the application of facts otherwise available (which may or may not be adverse) and the specific decision to draw an adverse inference due to a lack of cooperation.
When secondary information is used as 'facts otherwise available,' it is subject to a corroboration rule, meaning it must be corroborated to the extent practicable from independent sources that are reasonably at the agency's disposal, subject to statutory exceptions. This prevents agencies from relying on unverified or inherently unreliable data. To avoid the potentially punitive consequences of an adverse inference, importers and their representatives must demonstrate a concerted, good-faith effort to comply fully and accurately with all information requests. This includes ensuring submissions are complete, timely, verifiable, and in the requested format.
While the specific 'facts otherwise available' and 'adverse inference' provisions apply to AD/CVD, the general administrative principle of making decisions based on available information when primary sources are inadequate extends to other U.S. customs contexts. For example, in a CBP audit or protest review, if an importer fails to provide sufficient documentation to substantiate a claim or classification, CBP will proceed based on the 'information at hand,' which may be unfavorable to the importer. This underscores the critical importance of meticulous record-keeping and robust documentation for all import transactions to support claims and classifications.
Classification Significance
Misunderstanding or failing to comply with information requests under the 'facts otherwise available' standard can lead to severe financial repercussions for importers, particularly through significantly increased AD/CVD rates if an adverse inference is applied. While this specific standard does not directly dictate HTSUS classification, the broader principle of agencies relying on the 'information at hand' due to insufficient documentation can profoundly impact classification-related disputes during CBP audits or protests. In such scenarios, inadequate documentation can result in CBP making classification decisions that increase duties, potentially incurring penalties and creating a competitive disadvantage due to unforeseen costs.
How Kanon Handles This
Kanon's deterministic GRI traversal engine and Classification Support Package are designed to proactively address the need for robust information. By providing a comprehensive, legally defensible audit trail for every HTSUS classification, Kanon ensures that importers have all necessary documentation readily available. This mitigates the risk of agencies applying adverse inferences under the 'facts otherwise available' standard in AD/CVD investigations, and generally helps importers provide sufficient documentation to avoid unfavorable classification or duty decisions in other customs proceedings.
Frequently Asked Questions
What agencies primarily use the Best Information Available Standard?
While Best Information Available (BIA) is a historical term, the Department of Commerce (DOC) and the International Trade Commission (ITC) are the agencies that currently apply the 'facts otherwise available' standard (including adverse inferences) in antidumping and countervailing duty investigations and reviews. U.S. Customs and Border Protection (CBP) applies similar principles in other administrative proceedings, relying on information at hand when primary documentation is insufficient.
Can 'facts otherwise available' be applied even if I tried to provide information?
Yes, under the 'facts otherwise available' standard, information may still be disregarded if it is incomplete, untimely, unverifiable, or not submitted in the required format. An 'adverse inference' may be applied if the agency finds that an interested party failed to cooperate to the best of its ability, meaning even attempting to submit information might not prevent adverse treatment if the cooperation is not sufficient.