RESTRICTEDWORLD TRADE
ORGANIZATIONG/ADP/AHG/W/41
16 April 1998
(98-1523)
Committee on Anti-Dumping Practices
Ad Hoc Group on ImplementationOriginal:  English
TOPIC * - ARTICLE 6.5 TREATMENT OF CONFIDENTIAL INFORMATION
TOPIC 2* - PERIOD OF DATA COLLECTION
TOPIC 5* - ARTICLE 5.5 "NOTIFICATION TO THE EXPORTING MEMBER"
TOPIC 7* - ARTICLE 6.9 DISCLOSURE OF ESSENTIAL FACTS
TOPIC 10* - ARTICLE 9 "DUTY ASSESSMENTS"
Paper by the United States
The following communication, has been received on 14 April 1998 from the Permanent
Mission of the United States.
_______________
Topic 1, Article 6.5 - "Treatment of Confidential Information"
The United States has previously submitted two papers on this t opic:  G/ADP/AHG/W/3
(21 March 1997) and G/ADP/AHG/W/ 26 (13 October 1997).  Following discussions held at the last
meeting of the Ad Hoc Group in October 1997, it was decided that the Secretariat would compile a
list of types of information Members have identified as being "confidential by nature" in response to
the request for information in WTO/AIR/643.  The United States submits the following regardingwhat it considers to be "confidential by nature".
As described in its earlier submissions, under the US anti-dumping duty law, a petition
alleging "dumping" must be filed on the same da y with both the US Department of Commerce (the
Commerce Department or the Department) and the US International Trade Commission (the
Commission).  The Commerce Department determ ines dumping while the Commission determines
whether a domestic industry in the United States is materially injured, threatened with material injury,
or the establishment of an industry is materially retarded by reason of imports sold at less than fairvalue.  Each agency has its own definition of "confidential information".  A description of the types of
information which each agency considers to be "confidential" is provided below.
US Department of Commerce
The Commerce Department uses the term "business proprietary information" to describe
information that is "confidential" within the meaning of Article 6.5 of the Agreement onImplementation of Article VI of the General Agreement on Tariffs and Trade 1994 (Anti-Dumping
Agreement).  Under its regulations, the Department recognizes four categories of information which
can be relevant in an anti-dumping proceeding:  public, business proprietary, privileged (such as
internal agency documents covered by the attorney-client privilege), and classified information
                                                     
*See document G/ADP/W/401 for description of topics.G/ADP/AHG/W/41
Page 2
(meaning information protected for purposes of national security).1  In general, public information is
information which is made available to the public, whereas business proprietary information is
submitted by private parties to an anti-dumping proceeding and may be disclosed (if at all) only to
authorized applicants under a valid administrative protective order (APO).2  Unlike business
proprietary information, privileged and classified information cannot be released even under an APO.
Business Proprietary Information Releasable Under APO
The Department generally considers the following factual information to be business
proprietary information, if it is so designated by the submitter:  (1) business or trade secrets
concerning the nature of a product or production process;  (2) production costs (but not the identity of
the production components, e.g. parts and equipment, unless a particular component is a trade secret);
(3) distribution costs (but not channels of distribution);  (4) terms of sale (but not terms of sale offered
to the public); (5) prices of individual sales, likely sales, or other offers;  (6) names of particular
customers, distributors or suppliers3;  (7) the dumping margin on individual sales;  (8) the names of
particular persons from whom business proprietary information was obtained;  (9) the position of a
domestic producer or workers regarding support for a petition;  and (10) any other specific business
information which, if released to the public, would cause substantial harm to the competitive position
of the submitter.4
US International Trade Commission
Like the Commerce Department, the Commissi on uses the term "business proprietary
information" to describe confidential or protected information.  The Commission considers business
proprietary information, by regulation, to be that "which concerns or relates to the trade secrets,
processes, operations, style of works, or apparatus, or to the production, sales, shipments, purchases,
transfers, identification of customers, inventories, or amount or source of any income, profits, losses,or expenditures of any person, firm, partnershi p, corporation, or other organization, or other
information of commercial value, the disclosure of  which is likely to have the effect of either
impairing the Commission's ability to obtain such information as is necessary to perform its statutory
functions, or causing substantial harm to the competitive position of the person, firm, partnership,
corporation, or other organization from which the information was obtained".
5  The Commission will
release business proprietary information to specified representatives of interested parties who are
parties to the proceeding and have applied for and received access to such information under an APO
issued by the agency.  The Commission will agree to release such information under protective order,
unless the information is privileged, classified, or specific information of a type that must be withheld
from disclosure based on a clear and compelling need.6
                                                     
1See 19 C.F.R.351.105.
2The submitter of the proprietary information must also file a redacted or "public" version of the same
document with the Department.
3But not the destination of the sale or the designation of the type of customer, distributor, or supplier,
unless the destination or designation would reveal the name of the customer.
4See 19 C.F.R. 351.105(c).
5See 19 C.F.R. 201.6(a)(1)
6See 19 C.F.R. 207.7(g)(2)G/ADP/AHG/W/41
Page 3
Topic 2 - "Period of Data Collection"
The United States previously submitted a paper regarding its own practice on this topic in
G/ADP/AHG/W/28 (8 October 1997).  Per discussions at the last meeting of the Ad Hoc Group in
October 1997, it was decided that the Secretariat would invite Members to submit the additional
information described in WTO/AIR/750 (8 January 1998).
Introduction
The anti-dumping laws of the United States are administered jointly by the US  Department of
Commerce (the Department) and the US Internat ional Trade Commission (the Commission).  Each
agency conducts its own, separate investigation using different periods of  data collection.  The
Department investigates whether sales have been made at less than fair value, while the Commission
investigates whether a domestic industry in the United States is materially injured, threatened with
material injury, or the establishment of an industry is materially retarded by reason of imports sold at
less than fair value.
US Department of Commerce
Guidance regarding the time periods for data collection is set out in the Department’s
regulations7, which provide that the Department normally will examine transactions for merchandise
sold during the four most recently completed fiscal quarters as of the month preceding the month in
which the petition was filed, or in which the Department self-initiated the investigation.  Fornon-market economies, the period of investigation normally covers the two most recently completed
fiscal quarters as of the month preceding the month in which the petition was filed, or in which the
Department has self-initiated an investigation.
8
One of the questions that was raised during the discussion of this topic at the Ad Hoc Group
meeting in October 1997 was the difference betwee n the "period of data collection" for the
investigation and what was called the "profitability analysis period" in Canada’s paper
(G/ADP/AHG/30).  Canada had noted in its paper that the Anti-Dumping Agreement does not define
explicitly the period of data collection for purposes of an anti-dumping investigation, but it does make
one related reference to the period of time in Article 2.2.1 of the Agreement.9
                                                     
7See 19 C.F.R. 351.204
8See 19 C.F.R. 351.204(b)(1)
9Article 2.2.1 reads as follows:
2.2.1  Sales of the like product in the domestic market of the exporting country or sales to a
third country at prices below per unit (fixed and variable) costs of production plus administrative, selling and
general costs may be treated as not being in the ordi nary course of trade by reason of price and may be
disregarded in determining normal value only if the authorities determine that such sales are made within anextended period of time ** in substantial quantities and are at prices which do not provide for the recovery of all
costs within a reasonable period of time.  If prices which are below per unit costs at the time of sale are aboveweighted average per unit costs for the period of investiga tion, such prices shall be considered to provide for
recovery of costs within a reasonable period of time.  [** Footnote 4:  The extended period of time should
normally be one year but shall in no case be less than six months . (emphasis added.)]G/ADP/AHG/W/41
Page 4
The Department complies with Article 2.2.1 by collecting data on the exporter’s home market sales
for purposes of determining whether the sales price in the exporter’s home market may be used as the
basis for normal value.  If the sales are determined to be made at prices which represent less than the
cost of production of that product, such sales are considered to be outside the ordinary course of trade
and are disregarded in the calculation of normal value.   In this regard, US law incorporates the
requirements of Article 2.2.1 and requires that when so-called “below-cost” sales are made (1) withinan extended period of time in substantial quantities, and (2) at prices which do not permit the recovery
of costs within a reasonable period of time, they must be disregarded for consideration of determining
normal value.
10  In accordance with the Agreement, an extended period of time for an investigation or
review is normally one year, but not less than six months.11  Costs are considered to be recovered
when the sales price which may have been below the cost of production at the time of sale is above
the weighted-average per-unit cost of production for the whole period of investigation or period of
review.
US International Trade Commission
The Commission determines whether an industry in the United States is materially injured,
threatened with material injury, or whether the establishment of an industry in the United States is
materially retarded by reason of imports of the merchandise that is subject to the anti-dumping duty
investigation.12
In order to compile a record upon which it may make its determination of material injury by
reason of dumped imports, the Commission issues questionnaires to solicit information from US
producers, US importers, and foreign producers.  Separate questionnaires are sent during the
preliminary and final phases of the Commission investigations, in part, so that its determinations are
made based on current information regarding subject imports and the domestic industry.  Thesequestionnaires generally seek information from a period covering the past three calendar years and
partial year data pertaining to those calendar quarters that are complete at the time of the issuance of
the questionnaires.  However, the Commission may vary the length of the period of investigation if a
different period would more accurately reflect the seasonal production or business cycles of the
industry.  Financial information is collected from each firm using that firm’s fiscal years and theintervening calendar quarters since the end of the last fiscal year.
The following questions have been proposed by the Secretariat:
(1) “What happens if the original period chosen is found to be inadequate or in-
appropriate?”
The Commission
As stated previously, the Commission maintains discretion to vary the length of its  period of
investigation if a different period would more accurately reflect the unique circumstances of the
particular industry under investigation.
The Department
                                                     
10See Section 773(b) of the Tariff Act of 1930, as amended.
11See 19 C.F.R. 351.406(b) (the extended period of  time "normally will coincide with the period in
which the sales under consideration for the determination of normal value were made".)
12See 19 U.S.C. 1673(2).G/ADP/AHG/W/41
Page 5
The Department under its regulations also retains discretion to examine transactions regarding
merchandise sold during any additional or alternative period that the Department determines is
appropriate to address long-term contracts, and circumstances involving special order or customized
sales.13  However, it is generally not the Department’s practice to change the period of investigation
after a preliminary determination has been made, because parties would have an entirely new set of
data and issues on which to comment. Informa tion submitted after the preliminary determination
regarding a period of investigation different than that originally determined by the Department would
amount to a new, unsolicited questionnaire response.
(2) “How is the period determined in review investigations and refund situations?”
The Commission
The Commission does not undertake administrati ve reviews of anti-dumping duty orders and
is not involved in refund situations.
The Department
The Department conducts annual administrative reviews which may result in refunds.  US law
requires that at least once during each 12-month pe riod beginning on the anniversary of the date of
publication of an anti-dumping duty order, if a request for an annual review is received (and upon
publication of notice of such review), the Departme nt shall review and determine the amount of any
anti-dumping duty.14  The period of review for a "first" annual review is usually 16-18 months, and
12 months for all subsequent reviews.  The period of data collection for the first annual review is
longer, because it normally includes the investigative time period between the suspension of
liquidation of entries of the merchandise at the preliminary determination and the anti-dumping duty
order, as well as the 12 months following the anti-dumping duty order.  As stated, the period of
review for subsequent reviews is 12 months, and alte rnative periods of data collection in reviews are
extremely rare.
(3) "How is the review period determined in cases involving fluctuating exchange rates?"
Since the Commission normally employs a comp aratively lengthy (i.e. three-year) period of
review, issues involving exchange rate fluctuations are generally dealt with  by the Department.  The
Department does not alter its period of data collection to account for exchange rate fluctuations orsustained movements in exchange rates.  Instead, consistent with Article 2.4.1 of the Anti-Dumping
Agreement, it is the practice of the Department to ig nore an exchange rate fluctuation and  substitute,
in its place, the exchange rate that prevailed at th e time of the fluctuation (i.e. the "benchmark" rate).
The benchmark rate is the average rate for the past 40 reporting days.  In cases involving sustained
movements in exchange rates, US law contains a provision similarly  consistent with Article 2.4.1which states that, if during an anti-dumping investigation, there is a sustained movement in the value
of a foreign currency relative to the United States dollar, the administering authority shall allow
exporters at least 60 days to adjust their export prices to reflect such sustained movement.
15
Consequently,  the Department provides exporters with the opportunity to adjust their prices duringthe period of investigation to ensure that sustained movements do not distort dumping margin
calculations.
                                                     
13See 19 C.F.R. 351.204(b)(1).
14See Section 751 of the Tariff Act of 1930, as amended.
15See Section 773A(b) of the Tariff Act of 1930, as amended.G/ADP/AHG/W/41
Page 6
Topic 5, Article 5.5 - "Notification to the Exporting Country"
The United States previously submitted a paper on this topic in G/ADP/AHG/W/3
(21 March 1997), in which it provided information on how it implements Article 5.5 of the
Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994
(Anti-Dumping Agreement).  Upon discussions held  at the last meeting of the Ad Hoc Group in
October 1997, it was decided that the Secretaria t in WHO/AIR/643 would invite Members to submit
further information on how they implement Article  5.5 and how they view paragraph 10 of Norway’s
paper (G/ADP/AHG/W/33) on "preliminary conclusions".  The United States submits the following as
further clarification of how it implements Article 5.5 (based on its previous paper) and its views on
paragraph 10 of Norway’s paper.
Article 5.5 of the WTO Anti-Dumping Agreement requires that, "after receipt of a properly
documented application and before proceeding to initiate an investigation, the authorities shall notify
the government of the exporting Member concerned".  At the same time, the administering agencyshall avoid publicizing the application unless a decision has been made to initiate the investigation.
The United States has included provisions in both its anti-dumping law
16 and regulations17 to
ensure that these WTO requirements are met.  US law provides that the Department of Commerce (the
Department) shall notify the government concerned.18  In practice, as soon as the new petition is
properly filed (with both the Department and the International Trade Commission (the Commission)),
the Department contacts the local embassy of the exporting country.
The United States is sensitive to the impact that disclosure of a pending petition could have
on trade in the product which could be the subject of the investigation.  Both the domestic industry
and parties that might become involved in the anti -dumping investigation might be affected.  In this
regard, as is consistent practice, the agencies make every effort to limit knowledge of and access to
pending or draft petitions.19  Therefore, in compliance with the WTO constraint on publicizing a
pending petition, the Department will not discuss the matter with parties other than the petitioner(s).
The Department accepts no unsolicited oral or written communications from any person other than an
interested party representing the domestic industry before it makes its decision whether to initiate aninvestigation, except for enquiries regarding the status of its consideration of the petition.
20  However,
before the Department makes its decision with respect to initiating an investigation, it will accept
                                                     
16See Section 732(b)(3) of the Tariff Act of 1930, as amended.
17See 19 C.F.R. 351.202(f).
18See Section 732(b)(3)(A) of the Tariff Act of 1930, as amended.
19In practice, a potential petitioner may file questions and/or a draft petition for comment and review by
the Department and the Commission, prior to filing the official petition.  This early review helps to ensure that
the official petition will meet the legal sufficiency required for initiating an investigation.  During the time ofreview of both the draft and, ultimately, the official petition, the agencies assign only a limited number of staffmembers to determine the sufficiency of the petition.  These procedures ensure the confidential nature of thepetition.
20See Section 732(b)(3)(B) of the Tariff Act of 1930, as amended.G/ADP/AHG/W/41
Page 7
comments  on the issue of industry support    from those who would qualify as interested parties if an
investigation were initiated.21
In the April 1997 meeting of the Ad Hoc Group, Norway agreed to make a summary of points
with respect to Topic 2 concerning notifications under Article 5.5.  In paragraph 10 of  its paper,
G/ADP/AHG/W/33, Norway provided the following preliminary conclusions for purposes of movingthe discussion forward:
- Article 5.5, second sentence, should be read as an exception to the first sentence;
- To clarify its purpose, Article 5.5 should be read in conjunction with Article 12.1; and- The notification under Article 5.5 should be done before "the procedural action by
which a Member formally commences an investigation as provided for in Article 5
(see footnote 1 of the Anti-Dumping Agreement)."
Regarding Norway’s first preliminary conclusion, the United States understands that some
could read the second sentence of Article 5.5 to be an exception to the first sentence.  Article 5.5 reads
as follows:
The authorities shall avoid, unless a decision has been made to initiate an
investigation, any publicizing of the applica tion for the initiation of an investigation.
However, after receipt of a properly documented application and before proceeding to
initiate an investigation, the authorities shall notify the government of the exporting
Member concerned.
However, in the opinion of the United States, the act of notifying the government of the exporting
Member under Article 5.5, second sentence does not constitute   “publicizing” the application under
Article 5.5, first sentence.  Therefore, the second sentence of Article 5.5 is not an exception to thefirst.  Instead, both sentences presume that the au thorities shall avoid publicizing the application prior
to a decision to initiate  an investigation.  The United States therefore suggests that the following
conclusion could be drawn regarding this point:  The notification required by Article 5.5, second
sentence is not an act of publicizing within the meaning of Article 5.5, first sentence.
With regard to the second   preliminary  conclusion discussed in Norway’s paper, the
United States agrees  Articles 5.5 and 12.1 should be read in conjunction with one another to clarify
their different purposes.  Article 5.5 specifically provides for notification of only the government of
the exporting Member concerned (which does not constitute "publicizing" the application for
initiation); it does not propose public notification.   In contrast, Article 12.1 clearly provides for publicnotice.  Therefore, in reading the two Articles in conjunction, it appears that Article 5.5 was intended
to provide for notification of the government of the exporting Member prior to initiation, and prior to
public notice of such initiation.  Consistent with Article 5.5, the authorities should avoid any
publicizing of the application for the initiation of  an investigation until they have decided to initiate
the investigation.  However, once the authorities ha ve decided to initiate the investigation, in the
words of Article 12.1, "the Member or Members the products of which are subject to such
                                                     
21See Section 732(c)(4)(E) of the Tariff Act of 1930, as amended.  (The term "interested party" within
this context includes the government of the exporters of the subject merchandise, as well as the exporters and
importers of the subject merchandise.)G/ADP/AHG/W/41
Page 8
investigation and other interested parties known to the investigating  authorities  to have an interest
therein shall be notified and a public notice shall be given."
Finally, in respect of the third preliminary  conclusion contained in Norway’s paper, the
United States supports the view that the Article 5.5 obligation to notify “after receipt of a properly
documented application and before proceeding to initiate” requires that the act of notification must
occur sufficiently in advance of the procedural action by which a Member formally commences aninvestigation.  Such advance notification is necess ary to inform the exporting Member that a properly
documented application has been received (see paragraph 6 of Norway’s paper).  Where the internal
procedures of a Member are such that a decision to initiate is taken prior to the date on which that
decision is published and/or takes effect, for notification to be made “after receipt of a properly
documented application and before proceeding to initiate,” it must be made prior to the date on which
the decision is taken, regardless of the date on which the decision is published or takes effect.  The
United States suggests that the third conclusion be revised so as to reflect these points which wereraised by other Members and also taken up in paragraphs 6-8 of Norway’s paper.
Topic 7, Article 6.9 - Disclosure of Essential Facts
Following discussions held at the last meeting of the Ad Hoc Group in October 1997, it was
decided that the Secretariat would invite Members to submit additional information on this topic as
described in WTO/AIR/750 (8 January 1998).  Member s were invited to submit their views on what is
the minimum information they consider "essential" th at must be disclosed.  The Secretariat stated that
this list of minimum information might eventually serve as the basis for an illustrative list of
information to be disclosed as "essential facts" in preliminary determinations.
The United States previously submitted its views on this topic of what constitutes "essential
facts" in G/ADP/AHG/W/27.  The US Department of Commerce (the Department) and the USInternational Trade Commission (the Commission), in the interests of transparency, have long
maintained procedures for disclosing to parties the essential facts underlying their anti-dumping
determinations.  Those procedures, described in detail in G/ADP/AHG/W/27, address the disclosure
of essential facts and calculations leading to definitive measures in anti-dumping duty proceedings.
The United States believes that all information provided during the course of an anti-dumping
proceeding is "essential" and must be disclosed.  For this reason, information that is submitted on a
timely basis to the Department or the Commission is subject to comment by other parties to the
proceeding within such reasonable time as the De partment or the Commission may provide.  Both the
Department and the Commission cease collecting information and provide the parties with
opportunities for comment on information obtained.
22
While the United States believes all information provided during the course of an
investigation is "essential", Article 12 of the Agreement on Implementation of Article VI of theGeneral Agreement on Tariffs and Trade 1994 (the Anti-Dumping Agreement) clarifies the facts that
must be disclosed in a public notice of the imposition of provisional measures.
23   In this regard,
                                                     
22See Section 782(g) of the Tariff Act of 1930, as amended.
23Article 12.2 reads as follows:
Public notice shall be given of any preliminary or final determination, whether affirmative or
negative, of any decision to accept an undertaking pursuant to Article 8, of the termination of such anG/ADP/AHG/W/41
Page 9
Article 12 provides guidance in response to the Secretariat’s specific request for  information that
"might eventually serve as the basis of an illustrati ve list of information to be disclosed as `essential
facts’ in a preliminary determination".
Both the Commerce Department24 and the Commission25 provide detailed notices or separate
reports of determinations reached in the preliminary phase of their investigations.26  These notices and
reports provide the bases for the imposition of provisional measures and include those facts which
must be disclosed regarding the imposition of provisional measures as required by the Anti-Dumping
Agreement.
Topic 10, Article 9, "Duty Assessments"
Following discussions held at the last meeting of the Ad Hoc Group in October 1997, it was
decided that the Secretariat would invite Members to submit additional information on this topic asdescribed in WTO/AIR/750 (8 January 1998).  Memb ers who had not yet done so were invited to
submit information describing their application of the lesser duty rule.  Members were also requested
                                                                                                                                                                    
undertaking, and of the termination of a definitive anti-dumping duty.  Each such notice shall set forth, or
otherwise make available through a separate report, in sufficient detail the findings and conclusions reached on
all issues of fact and law considered material by the i nvestigating authorities.  All such notices and reports shall
be forwarded to the Member or Members the products of which are subject to such determination or undertaking
and to other interested parties known to have an interest therein.
Article 12.2.1 reads as follows:
A public notice of the imposition of provisional measures shall set forth, or otherwise make
available through a separate report, sufficiently detailed explanations for the preliminary determinations ondumping and injury and shall refer to the matters of fact and law which have led to arguments being accepted orrejected.  Such a notice or report shall, due regard being paid to the requirement for the protection ofconfidential information contain in particular:
(i) the names of the suppliers, or when this is impracticable, the supplying countries
involved;
(ii) a description of the product which is sufficient for customs purposes;
(iii) the margins of dumping established and a full explanation of the reasons for the
methodology used in the establishment and comparison of the export price and thenormal value under Article 2;
(iv) considerations relevant to the injury determination as set out in Article 3;
(v) the main reasons leading to the determination.
24See 19 C.F.R. 351.303 (requirement of parties to serve information submitted on other parties),
351.305, 306 (release of business proprietary information under administrative protective order), 351.205
(notice of preliminary determination published), 351.309 (invitation to comment) and 351.310 (hearings).
25See 19 C.F.R. 207.3 (requirement of parties to serve information submitted on other parties),
207.7(a)(1) (release of business proprietary information under administrative protective order), 207.12 (notice of
preliminary phase of investigation published), and 207.15 (provision for written briefs and conference);  and207.18 (notice of preliminary determination).
26See Section 733(f) of the Tariff Act of 1930, as amended.G/ADP/AHG/W/41
Page 10
to submit information explaining their refund procedures and how the judicial review process
intersects with refund procedures, as a basis for further discussions.  It was expressed that, in  general,
factual information from Members on how they handle duty assessments, and whether their systems
are retrospective or prospective, would be useful to the Group.
Under the retrospective assessment system of the United States, final liability for anti-
dumping duties is determined after the subject merchandise is imported.  There are several stages inan anti-dumping duty proceeding.  First is the initia l investigation that determines whether an anti-
dumping duty order will be imposed.  Second is the administrative review procedure, which
determines the amount of duties to be collected.  The final stage involves judicial review of all final
determinations previously made in the process,  as described below.
Investigations
If, during its initial investigation of dumping, the Commerce Department (the Department)
renders a final affirmative determination of dumping and the US International Trade Commission (theCommission) also renders a final affirmative determination of material injury, threat of material
injury, or material retardation of an industry in the United States by reason of dumped imports, a final
anti-dumping duty order will be issued by the Department.
27   During its investigation,  the
Department "estimates" the amount of anti-dumping  duties owed.  (The actual amount of duties owed
is determined at the conclusion of the administrativ e review process, discussed below.)  Security for
future duties due, which is collected on merchandise that enters the United States between the date of
the Department’s preliminary affirmative determination and the publication date of the Department’s
anti-dumping duty order (the "provisional period"), may be collected in the form of either bonds or
cash deposits.28  Importers of subject merchandise that enters the United States after the
Commission’s final affirmative injury determination in the investigation must pay an anti-dumpingduty deposit equal to the dumping margin established in the Department’s final affirmative
determination.  Subsequent to the order, the amount  deposited with the US Government  must be in
cash rather than bonds.
29
Administrative Reviews
At least once during each 12-month period, beginning on the anniversary of the month of
publication of the anti-dumping duty order, the Depart ment, only at the request of an interested party,
will conduct an administrative review to determine the actual amount of dumping (and duties owed)
for the previous period.30  Once the Department has conducted its administrative review of the anti-
dumping order for the preceding period, it normally will calculate an assessment rate for each
interested party whose sales were subject to review.  The Department normally calculates theassessment rate by dividing the dumping duties due on the sales of the subject merchandise by the
entered value of such merchandise.   The Department then instructs the Customs Service to assess
anti-dumping duties by applying the assessment rate to the entered value of the merchandise.
31
                                                     
27See Section 736(a) of the Tariff Act of 1930, as amended.
28See Section 733(c) of the Tariff Act of 1930, as amended.
29See 19 C.F.R. 351.211(a).
30See Section 751 of the Tariff Act of 1930, as amended.
31See 19 C.F.R. 351.212(b)(1).G/ADP/AHG/W/41
Page 11
Once the duty is assessed, importers will receive  a refund if the amount deposited in the
previous period was too high (plus interest) or pay an additional sum (plus interest) if it was too low.32
The amount of anti-dumping duty collected on merchandise as a result of an administrative reviewwhich entered  the US during the period between the Department’s preliminary affirmative
determination and the Commission’s final affirmative determination is capped by the amount of
estimated duty established in the Department’s preliminary determination in the investigation.
33
Therefore, if the duty determined in the administrative review exceeds the estimate established  in the
Department’s preliminary determination in the investigation, the shortfall is disregarded  for entries
during the provisional period; if the duty determin ed in an administrative review is less than the
estimate established in the preliminary determination of the investigation for those provisional-period
entries, the excess is refunded without interest.34
   Requests for administrative reviews are made in approximately 50 to 60 per cent of all US
anti-dumping cases.  In those cases where no review is requested, duties are assessed at the rate ofdeposit that is required at the time of entry
35 and the statutory cap on duties for the provisional-period
entries does not apply.
Judicial Review
United States law provides for appeals from final determinations of the Department or the
Commission to the US Court of International Trade (CIT).36  Decisions by the Department not to
initiate an investigation and negative preliminary determinations by the Commission are reviewed by
the CIT to determine if they are "arbitrary, capricious, or an abuse of discretion or otherwise not in
accordance with law".  Final determinations by the Department and the Commission are reviewed  to
determine whether they are "unsupported by substa ntial evidence on the record, or otherwise not in
accordance with law".  From the CIT, cases are appealable first to the US Court of Appeals for theFederal Circuit (CAFC) and then to the US Supr eme Court on writ of certiorari (although review of
anti-dumping cases by the Supreme Court is extremely rare).  Parties involved in disputes involving
products from Canada or Mexico may, instead, request binational panel review as permitted under the
North American Free Trade Agreement.
Generally, when a court or a NAFTA Panel determines that either the Department or the
Commission’s determination was incorrect, it will "remand" or send the proceeding back to the
agency to correct the error.  Errors can be those of fact (a factual determination not supported by
substantial evidence in the record) or of law (i.e. that the determination was not in accordance with
law).  A remand is an order from the court, which requires the agency to reopen the administrative
process and make a decision consistent with the court’s decision.  In remanding its decision in anadministrative review, the court will sometimes order the Department to recalculate the anti-dumping
duty rate to be assessed when entries (which are en joined from liquidation during the pendency of the
court proceedings for administrative reviews) are finally liquidated.  Once again, if  the amount
deposited on entries during the review period was higher than the actual duties determined in the
                                                     
32See Section 737(b) of the Tariff Act of 1930, as amended.
33See Section 737(a) of the Tariff Act of 1930, as amended.
34Id.
35See 19 C.F.R. 351.212(c).
36See Section 516A of the Tariff Act of 1930, as amended.G/ADP/AHG/W/41
Page 12
administrative review,  importers receive a refund plus interest.  If the amount deposited was lower
than the actual duties determined in the review,  importers pay an additional sum plus interest.37
Lesser Duty Rule
The United States does not apply the lesser duty rule.  However, we are interested to learn
more about how the lesser duty rule is utilized by other Members.  For example, do Members which
have a lesser duty rule apply it in all anti-dumping proceedings?  If not, why not?  When Membersapply the rule, is it always applied at both the preliminary and final phases of the proceeding?  How
do interested parties know that a Member is examining whether a lesser duty should be applied?  If a
provisional determination is taken which contains no indication that an examination was conducted as
to whether to apply a lesser duty at the preliminary phase (whether or not the examination actually
was undertaken), how would interested parties know  (1) that the Member was intending to examine
whether to apply a lesser duty at the final phase and (2) whether the Member is also intending to leave
the provisional measures in place for more than four months pursuant to Article 7.4 of the Anti-Dumping Agreement and, if so, for how long, i.e. five months? the maximum allowed time of six
months?  Do the final determinations of Members which apply the lesser duty rule contain a decision
whether the amount of the anti-dumping duty to be imposed shall be the full margin of dumping or
less?
__________
                                                     
37See Section 737(b) of the Tariff Act of 1930, as amended.