WORLD TRADE
ORGANIZATIONTN/RL/W/35
3 December 2002
(02-6640)
Negotiating Group on Rules Original:  English
INVESTIGATORY PROCEDURES UNDER THE ANTI-DUMPING
AND SUBSIDIES AGREEMENTS
Submission by the United States
The following communication, dated 25 November 2002, has been received from the
Permanent Mission of the United States.
_______________
The United States submits this paper to raise a number of topics for further consideration by
the Rules Negotiating Group pertaining to the fairness of investigatory procedures in anti-dumping
and countervailing duty investigations.  Procedural  fairness is a key principle of both the Agreement
on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (the “Anti-
Dumping Agreement” or “ADA”) and the Agreement on Subsidies and Countervailing Measures (the“Subsidies Agreement” or “ASCM ”), and of the WTO system generally.  Effective implementation
of this principle in the rules-based trading system promotes openness, opportunity for effective
participation, consistency, accuracy, predictability and accountability.  Strengthening these
Agreements to ensure procedural fairness must figure prominently in the Rules negotiations if we are
to fulfill our mandate from the Ministers at Doha.
Attention to procedural fairness in the conduct of trade remedy actions enhances the
confidence of all interested parties that decisions on whether or not to impose measures are based on a
full and evenhanded consideration of the facts.  Where provisions for procedural fairness are
inadequate, interested parties may confront a number of problems in anti-dumping and countervailing
duty investigations.  They may be unaware of important deadlines and other procedural requirements,
and accordingly may inadvertently forfeit the opportunity to present their views and otherwise protecttheir interests.  They may not have timely access, or in some cases any access, to important
information submitted by other interested parties or to information from the administering authority
itself, and thus may lose the opportunity to offer co mments to ensure that the information before the
authority is correct.  They may fear participating and providing information in the investigation if they
are not sure that the authority will safeguard the confidentiality of proprietary information submittedto it.  They may be unaware of what recourse is available for judicial review of decisions by the
administering authority.  These problems should be addressed in the Rules negotiations.
This paper is intended only to begin the dialogue by raising a few of the important issues
related to procedural fairness.  The United States will supplement this submission in the future.  Thetopics identified cover both the Anti-Dumping Agreement and the Subsidies Agreement.TN/RL/W/35
Page 2
1. Articles 6.4 ADA & 12.3 ASCM
Availability of Relevant Information From National Authorities
Articles 6.4 and 12.3 of the ADA and ASCM, respectively, provide that national authorities
shall give interested parties timely opportunities to see all non-confidential information used by the
authorities in anti-dumping and countervailing duty investigations.  The purpose of these provisions is
to enable interested parties to prepare any presentations they deem necessary to defend their interests.
However, there is no definition of what is timely, and there is no specific guidance for national
authorities.  Ensuring timely access to relevant information is important not only to responding
parties, but also to administering authorities who must base their decisions on sound and accurate
information.  The provisions concerning timely information and feedback are ones that could beenhanced to the benefit of all Members.
In order to ensure that interested parties are able to defend themselves to the fullest extent
possible and that national authorities have complete and accurate information upon which to base
their determinations, Members should discuss the issue of providing access to non-confidentialinformation.  For example, Members should consider ways in which interested parties could be
granted access to all non-confidential information as soon as it is submitted to national authorities,
regardless of whether the national authorities ultimately rely upon the information for purposes of
their determination.
2. Articles 6.4 ADA  & 12.3 ASCM
Maintenance of a Public Record
As noted above, Articles 6.4 and 12.3 of the ADA and ASCM, respectively, provide that
interested parties must be given access to non-confidential information used by national authorities in
an investigation; however, they are unclear as to any specific mechanism for providing access to this
information.  Members should evaluate how such a mechanism could operate, such as by maintaining
a public record of all non-confidential information submitted by the parties to an investigation, and all
memoranda adopted or approved by the pertinent authority that explain the factual or legal bases for
its determination or provide pertinent findings and conclusions in support of that determination.
National authorities could place such information on the record upon its receipt, and such memorandaon the record upon their adoption or approval.  The public could be granted access to the information
during normal business hours, at a convenient location, and maintained in an organized manner that
facilitates ease of access.  This could help to ensure that interested parties are able to defend their
interests adequately, and to promote public accountability, consistency and predictability.
3. Articles 12 ADA & 22 ASCM
Sufficient Detail in Determinations
Articles 12 and 22 of the ADA and ASCM, respectively, provide that investigating authorities
must disclose in sufficient detail in a public notice the findings and conclusions they reach on issues
of fact and law used in their determinations.  The Articles provide no definition of what sufficient
detail is, and limited guidance on what some aspects of the public notice should contain.  For instance,
Article 12.2.1(iii) of the ADA provides that the public notice should contain, inter alia , an explanation
of the reasons for the methodology used to determine the dumping margin; however, it does notrequire an explanation of the methodology itself.  This makes it difficult for interested parties to
effectively defend themselves throughout the course of an investigation, as they may be unaware of
the methodologies being employed to determine the dumping margin.TN/RL/W/35
Page 3
Members should consider ways to promote greater disclosure of decisions and calculations
performed.  For example, investigating authorities co uld be required to give detailed descriptions of
decisions made, the facts on which those decisions were based and the calculation methodology
applied to determine the dumping margin or countervailing duty rate.  This detail would be helpful for
informed comment by interested pa rties.  The national authorities would benefit from this comment,
as they may be making errors in the calculations of dumping margins and countervailing duty rates of
which they are unaware.  Members should recognize that the disclosure of such information will
likely vary in the level of detail as between public notices for preliminary determinations and those
for final determinations, given the differences in  the information available to the administering
authorities as of the times of those respective determinations.
4. Article  6.7 & Annex I ADA and Article 12.6 and Annex VI ASCM
Conduct of Verifications
Article 6.7 and Annex I of the ADA and Article 12.6 and Annex VI of the ASCM govern
verifications.  These Articles provide for the verification of information submitted to the authoritiesand for verification in order to obtain further detail.  ADA Article 6.7 has a general requirement that
“results” of verification investigations be made available; however, there is no explicit requirement in
the Agreement that verification reports be disclosed, or that specifies the level of detail in the
disclosure of the results of verifications.  Additi onally, as to the pre-verification process, Annex I
provides only that investigating authorities shou ld advise firms of the general nature of the
information to be verified; it does not require such advice.
Because there is no specific requirement in the ADA and ASCM to issue reports on
verification findings, the practice concerning the use of verification reports varies widely among
Members.  Often times verification reports are not provided, and in other cases are treated as internaldocuments.  Additionally, since pre-verification advice is not required under the Agreements, there
may be insufficient notice for verification, which creates an unnecessary burden on exporting
Members and their firms.
Members could discuss steps to make verification procedures clearer.  For instance, the
authorities could provide exporting Members and their firms with detailed outlines prior to
verification specifying what topics will be covere d and what type of supporting documentation will be
required.  Another suggestion might be that, as soon as possible after verification, a report on the
verification findings should be issued to all interested parties pursuant to Articles 6.7 and 12.6 of the
ADA and the ASCM, respectively.  This process wo uld provide parties with adequate notice for
preparation ahead of time, and an understanding of the results of the verification afterwards.
5. Articles 6 ADA & 12 ASCM
Protection and Disclosure of Confidential Information
Article 6 and 12 of the ADA and the ASCM, respectively, provide for the protection and
disclosure of confidential information.  ADA Article 6.5, for example, requires that any information
which is by its nature confidential, or which is provided on a confidential basis by parties to an
investigation, be treated as such by the authorities.  Such information must not be disclosed without
specific permission given by the submitting parties.  As the existing Agreements stand, however, there
is no requirement for Members to maintain any specif ic procedures to protect confidential information
from unauthorized disclosure.  This is an area in which enhancement is needed in order to ensure
procedural fairness for all Members.TN/RL/W/35
Page 4
While not required by the current Agreements, Members should discuss whether each
Member country should also have in place a system to allow access for appropriate persons to this
type of information.  Such a system must incorporate appropriate measures to ensure the proper
protection of confidential information.  Having effective access procedures with strict safeguards on
the use of proprietary information is critical to en abling parties to participate fully in the proceedings.
These procedures can be easily administered and allow for access to confidential information by
appropriate representatives of relevant parties, with strict safeguards to protect the confidentiality of
that information.
6. Articles 18 ADA & 32 ASCM
Detailed National Legislation/Regulation
Article 18 of the ADA and Article 32 of the ASCM provide that Members must ensure that
their laws, regulations and administrative procedures conform to the provisions of the Agreements.  In
addition, the Articles provide that Members must notify the WTO of any changes in their laws and
regulations relevant to the Agreements, and in the administration of such laws and regulations.
There may be a number of ways for Members to provide additional detail on their procedures
and policies that would benefit interested parties.  Members could post current and complete versions
of their laws, regulations and policies on the Internet.  It would be beneficial if Members have
national implementing legislation that is sufficiently detailed so as to provide predictability and dueprocess to exporters while restricting the possibility of arbitrary action by administering authorities.
We recognize that some Members implement the Agreements by adopting them by reference into
their national legislation.  Under such circumstances, in lieu of implementing legislation, Members
should be encouraged to provide binding regulations or other administrative guidelines that give the
necessary details about the procedures their authorities use to conduct investigations.  This wouldprovide the necessary detail to ensure predictability and due process.
The United States would find it a helpful first step in addressing this issue if Members could
provide a comprehensive overview of how they have applied the procedural fairness provisions of the
Agreements in their national laws, regulations and practices.  This would provide a useful and
necessary starting point for further discussions on specific principles and procedures that could be
adopted into the Agreements.
7. Articles 13 ADA & 23 ASCM
Judicial Review
As discussed above, Article 13 of the ADA and Article 23 of the ASCM provide that each
Member whose national legislation contains prov isions on anti-dumping and countervailing measures
shall maintain judicial, arbitral or administrative tribunals or procedures for the purpose of the prompt
review of administrative actions relating to final determinations and reviews of determinations.
In order to promote openness and procedural fairness, Members should discuss whether it
would be helpful for Members to provide additional information on procedures within their respective
countries for pursuing legal recourse in an anti-dumping or countervailing duty case.  For example,
Members could identify the court or other judicial system they have put into place and explain how
that legal system operates.  Such information could be updated regularly so that all parties are awareof the current legal regime and process.TN/RL/W/35
Page 5
8. Article 6.2 ADA
Hearing and Meetings
Article 6.2 of the ADA provides that authorities shall provide opportunities for interested
parties to meet to discuss opposing views and defend their interests.  The purpose of the provision is
to allow the presentation of opposing views and rebuttal arguments.  The Agreement, however, does
not provide specific guidelines for implementing this provision or address the role of the
administering authority.  Members should discuss whether further enhancement is necessary.  A
related issue for discussion could be whether administering authorities should be required to provide
notice and a summary of all meetings that they have with outside parties when the discussions pertain
to proceedings under the Agreements.
9. Reducing the Cost of Investigations
In the Doha mandate, Ministers directed the Rules Group to take into account the needs of
developing and least-developed participants.  The United States recognizes that improving proceduralfairness under the Agreements could impose a cost burden on some Members.  Therefore, we would
like to identify areas where we believe increased procedural fairness could reduce costs.  For instance,
as a cost saving measure, the Rules Group should explore standardizing verification outlines and the
structure of the verification report.  This will ensure that Members are conducting similar verifications
that are designed to obtain the necessary information required to properly conduct thoroughinvestigations.  Moreover, a standard outline will provide interested parties with a better
understanding of what to expect and more certainty on verification procedures, which will help to
alleviate potential conflict resulting from mis-communication during what is arguably the most
critical phase of the proceeding.
The United States is interested to hear Members' views on other cost reduction ideas.  We
note that a proposal to create a regional trade authority has been proposed in the context of the Work
Programme on Small Economies.  This proposal, which was presented on behalf of 19 small
economies, raised the resource problems certain Members have in fully exercising their rights and
obligations under the ADA and ASCM.  We understand that the regional trade authority proposed
would conduct trade remedy cases on behalf of individual Members.  The United States is interested
in exploring this proposal in greater detail and welcomes any other suggestions Members have to helpreduce costs.
10. Technical Assistance/Capacity Building
The United States also encourages Members to participate in and support capacity building
efforts within the Membership through regularly scheduled training sessions on trade remedy rules.
Developing a standardized training programme would create greater economies of scale in educating
and building capacity throughout the Membership.  This approach would not only help to reduce
costs, but also provide greater certainty for Members when budgeting annual expenditures.  The
training would be conducted by AD/CVD administ rators for AD/CVD administrators.  Having all
administrators together to learn and discuss the technical issues being addressed by the Membership
could provide a tremendous benefit to the organization.  A recent seminar for capital-based officials
regarding subsidy notifications proved to be very successful.  Regular training sessions would
establish a set forum where multilateral training and discussions would help not only to build
capacity, but also to create an environment for greater understanding by all Members – non-users,new users and existing users alike.TN/RL/W/35
Page 6
Conclusion
Procedural fairness is central to the “rule of law” in the legal and administrative systems of
civil societies to ensure a fair and open decision-making process.  Enhanced rules on procedural
fairness matters are something that will benefit and contribute to the effective participation by allWTO Members, developed and developing alike, while maintaining the strength and effectiveness of
the instruments, in accordance with the Ministers’ mandate.  Towards this end, the United States
encourages Members to consider and evaluate the extent to which proposals tabled in the Rules
negotiations further these goals.  We would welcome and encourage input from other Members on
their experiences and ideas for implementing and improving procedural fairness rules at the national
level.
__________