. /.WORLD TRADE
ORGANIZATIONTN/RL/W/71
18 March 2003
(03-1593)
Negotiating Group on Rules Original:  English
RESPONSES BY THE UNITED STATES TO QUESTIONS FROM
AUSTRALIA ON INVESTIGATORY PROCEDURES UNDER
THE ANTI-DUMPING AND SUBSIDIES AGREEMENTS
Submission by the United States
The following communication, dated 17 March 2003, has been received from the Permanent
Mission of the United States.
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The United States appreciates Australia's interest in the issues raised in our submission on
investigatory procedures under the Anti-Dumping and Subsidies Agreements (TN/RL/W/35).  The
United States provides the following responses to certain questions posed by Australia in documentTN/RL/W/43.
Under ADA Article 6.4/SCM Article 12.3, the United States notes that there is no
definition of what is "timely" in regard to these opportunities to interested parties.  What is the
United States' view of the implication or relevance of "whenever practicable" regarding "timely
opportunities" under ADA Article 6.4/SCM Article 12.3?
The United States recognizes that the concept of "practicability" under ADA Article 6.4/SCM
Article 12.3 is an important one, particularly for small administering authorities, in order to allow
them to provide orderly access to the information.  However, the Agreements are clear that non-
confidential information is to be released.  This need for "practicability" and flexibility must not
unreasonably restrict timely access to the information which is necessary in order for a party to have a
full opportunity for the defense of its interests.  In decisions on the practicability of providing access
to the information, authorities should recognize the vital importance of "timely opportunities" for
access to the information.  Article 6.4 should be clarified on this point.
What does the United States consider is the scope of "all information that is relevant to
the presentation of their cases, that is not co nfidential as defined in paragraph 5, and that is
used by the authorities in an anti-dumping investigation" under ADA Article 6.4?  Would
non-confidential information that is made availa ble, for example, extend to the information that
investigating authorities consider in the determination of injury?
Members should consider ways in which interested parties could be granted access to all
non-confidential information regardless of whether the national authorities ultimately rely upon the
information for purposes of their determination.  Th is should include all non-confidential information
and written argument presented to or obtained by the authorities during the course of a proceeding
which relates to that proceeding, whether in connection with the determination of dumping or of
material injury.  Of particular importance, the administering authority should not decide what is
relevant to the presentation of the interested parties' cases, or otherwise necessary for a full defence ofTN/RL/W/71
Page 2
their interests.  By granting interested parties acce ss to all non-confidential information, the authority
ensures that each party will be able to obtain a ll information that the party believes is relevant.
The United States notes that ADA Article 12.2.1(iii) "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 not requi re an explanation of the methodology itself."
Given that ADA 12.2.1 provides that "sufficiently detailed explanations for the preliminary
determinations of dumping and injury" shall be set forth, does the United States consider that
"considerations relevant to the injury determination" in ADA Article 12.2.1(iv) should include
disclosure or explanation of the calculation methodology for the determination of injury?  What
factors should be disclosed?
ADA Article 12.2.1(iv) states that, in preliminary determinations of injury, authorities should
provide "considerations relevant to the injury determination as set out in Article 3."  Consequently,
the obligation to provide an explanation under Article 12.2.1(iv) relates to the requirements specified
in Article 3.  The United States is unaware of any  requirement under Article 3 for authorities to use a
"calculation methodology" to determine whether there is injury, and Australia does not identify orpropose any such requirement.  Accordingly, there appears to be no basis for an obligation to make
such disclosure or explanation under Article 12.2.1(iv).
In the second paragraph of this section, th e United States notes that "pre-verification
advice is not required under the Agreements".  Could the United States explain what it meansby "pre-verification"?  How does the United States relate this to ADA Annex I and the
provision within ADA Article 6.7/SCM Article 1 2.6 that verification investigations may be
carried out by authorities "provided they obtain the agreement of the firms concerned and
notify the representatives of the government of the Member in question"?
In the view of the United States, pre-verification preparation is an important step in ensuring a
smooth and successful verification of the accuracy of submitted information to the benefit of the firms
concerned as well as the authorities.  "Pre-verific ation" advice simply refers to advice or guidance
given by the authorities to the parties prior to verification that would help explain the process and
general nature of the information that is to be verified.  This could assist in planning to ensure that the
necessary information and personnel are on hand during the verification.  Beyond the authorities
merely obtaining the agreement of the firms concerned, this Group should consider whether providingpre-verification advice or guidance should also be a requirement.
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