 
  WORLD TRADE  
ORGANIZATION  TN/RL/W/153 
26 April 2004 
 (04-1849) 
Negotiating Group on Rules Original:   English 
  
 
THREE ISSUES IDENTIFIED FOR DISCUSSION BY 
THE NEGOTIATING GROUP ON RULES 
 
Communication from the United States
 
 
 
 Trade remedies form an integral part of the current rules-based international trading system.1  
In Doha, the Ministers stressed the importance of the trade remedy rules by mandating that Members 
should clarify and improve the rules while "preservi ng the basic concepts, principles and effectiveness 
of these Agreements and their instruments and obj ectives, and taking into account the needs of 
developing and least-d eveloped participants.2  The United States is using these principles to guide its 
participation in the Rules negotiating process.     The United States believes that the Rul es Negotiating Group may usefully explore 
clarification and improvement of the rules with respect to the following issues under the Agreement 
on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (the "ADA") 
and the Agreement on Subsidies and Countervailing Measures (the "ASCM").  We reserve the right to 
identify additional areas for clarifica tion and improvement in the future. 
 
1. Small Economies – Regional Authorities 
  In previous submissions to the Rules Negotiating Group
3 the United States raised the issue of 
establishing regional trade remedy authorities in orde r to take into account the needs of developing 
and least-developed Members.  The United States note d that a proposal was raised within the Work 
Programme on Small Economies of the Committee on Trade and Development, recognizing that small 
economies that do not have the resources to maintain a "competent authority" can designate a regional 
body as their competent authority4  
 
 In identifying this issue, the United States suggested that the Group consider how such a 
regional authority might function, and discuss any changes to the ADA and the ASCM that may be 
necessary.  The idea of explicitly authorizing Members to designate regional authorities to help reduce 
the costs involved in investigations, and assist deve loping and least-developed Members, is an issue 
                                                      
1 See TN/RL/W/27, Communication from the United States, Basic Concepts and Principles of the 
Trade Remedy Rules , 22 October 2002. 
2  WT/MIN(01)/DEC//1 (paragraph 28). 
3 See TN/RL/W/35, Investigatory Procedures Under the Anti-Dumping and Subsidies Agreements , 3 
December 2002; see also , TN/RL/W/72,  Identification of Certain Major Issues Under the Anti-Dumping and 
Subsidies Agreements, 19 March 2003. 
 4 See, Concrete proposals to address certain specific concerns and problems affecting the Trade of 
Small Economies , Communication from Barbados, Belize, Bolivia , Dominican Republic, Guatemala, Honduras, 
Mauritius and Sri Lanka, WT/COMTD/SE/W/3 (28 June 2002) .  At the formal sessions of the Dedicated Work 
Programme on Small Economies, Cuba, El Salvador, Fiji, Nicaragua and Paraguay added their delegations to the list of Members co-sponsoring the paper.  See WT/COMTD/44 (9 December 2003),  at Paragraph 29.  At that 
time, the United States suggested that this would be an important issue to be addressed by the Rules Group.  WT/COMTD/SE/W/7 (4 November 2002). TN/RL/W/153 
Page 2  
 
 that deserves further consideration.  The United States believes this Group can benefit from a greater 
understanding of how regional authorities might function and would look to other Members’ experience to help provide that understanding.    The United States offers some initial questions  to the Group in hopes of gaining a greater 
understanding of how a regional authority might fu nction.  Would the regional authorities conduct all 
aspects of trade remedy proceedings on behalf of in dividual Members?  Do re gional trade  authorities 
collect the duties for all Members or are the natio nal authorities responsible for collection?  Would 
investigations filed with such an authority examin e imports and the domestic industry with respect to 
a single Member or with respect to all regional Members?  If measures are taken, do they apply to 
imports into a single Member or into all regional Me mbers?  These are just a few questions that may 
help to prompt constructive discussions as to how regional authorities should function and what 
changes to the ADA and ASCM, if any, would be required.  
2. Distribution of Monies Collected From Antidumping and Countervailing Duties 
 
 Another important issue that this Group should address is the right of WTO Members to distribute monies collected from antidumping and countervailing duties.  This has been a concern of both developed and developing countries
5  It has been addressed in WTO dispute settlement6 and in 
the reviews of Members’ legislation in the WT O Anti-Dumping and Subsidies Committees, in which 
some Members indicated uncertainty as to th e applicability of WTO rules on this issue7 
 
 While it is beyond question that countries have the sovereign right to distribute government 
revenues as they deem appropriate, various WTO agreements impose certain disciplines as to the 
manner in which such revenues are distributed.  The na ture and extent of such disciplines is in large 
measure the subject of the Agreement on Subsid ies and Countervailing Measures.  One important 
question is whether, as indicated by the Appe llate Body, monies collected from antidumping and 
countervailing duties should be subject to special cons traints that are not applicable to government 
revenues collected from other sources.  In light of the foregoing, the United States believes that this 
Group should discuss the recognition of the right of Members to distribute monies collected from antidumping and countervailing duties.  
3. Facts Available 
  Article 6.8 of the ADA provides that determin ations may be made on the basis of facts 
available if any interested party significantly im pedes an investigation or refuses access to, or 
otherwise does not provide, necessary information within a reasonable period of time.  Annex II of the ADA provides further guidance as to when best in formation available should be applied. The 
United States believes that the best source of inform ation for any determinati on is the actual data of 
responding parties; however, those data are within the control of those parties, who may choose 
whether and to what extent to participate in a dumping investigation.  Thus, the ADA contains a 
delicate balance of rights and obligations betwee n importing and exporting Members that encourages 
responding parties of an exporting Member to pr ovide all necessary information for the importing 
Member to conduct the investigation, and determine the rate of dumping, in the manner called for by 
the Agreement.  
                                                     
 
5 See G/ADP/N/1/DOM/3, G/SCM/N/1/DOM/2 (22 May 2002) (Article 56). 
6 United States – Continued Dumping and Subsidy Offset Act of 2000 , WT/DS217/AB/R, 
WT/DS234/AB/R (16 January 2003).  The United States expressed its disagreement with some of the findings 
in the Appellate Body report concerning funds disbursed under the CDSOA at the meeting of the Dispute 
Settlement Body at which the report was adopted, and continues to disagree with these findings.  The United 
States intends to comply fully with its WTO obligations. 
7 See G/ADP/Q1/DOM/3, G/SCM/Q1/DOM/3 (6 May 2003) (response to question 19).  TN/RL/W/153 
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 Maintenance of this balance between the ri ghts of responding parties and the informational 
needs of administering authorities is important to  the preservation of the effectiveness of the ADA.  
The text is clear that when a responding party submits the necessary information in a timely manner 
and in a verifiable form, such information is to be used by the administering authorities.  On the other 
hand, the text may be less clear as to whether an administering authority must use timely provided, 
verifiable information that is only selectively provided.     In particular, the balance of rights and obliga tions would be upset if a respondent party can 
pick and choose the pieces of information it subm its, depending on whether or not it perceives the 
actual information to be beneficial to its interests.  
  Members should consider whether the ADA provi sions governing the use of facts available 
need to be clarified to ensure that responding parties have an incentive to provide all necessary 
information, and not to do so selectively or to mi srepresent the significance of information.  As has 
been raised by other Members
8 consideration should also be given to the harmonization of the rules in 
this area between the ADA and the ASCM.     
__________ 
 
 
                                                     
 
8 See TN/RL/W/19, Countervailing Measures: Illustrative Major Issues , 7 October 2002. 