FTAA - Free Trade Area of the Americas
Second
Draft Agreement
Chapter on Subsidies Anti-dumping and Countervailing Duties
ARTICLE 1-17
ARTICLE 1
[GENERAL PROVISIONS]
[1.1. Except as otherwise provided in this Chapter, the Marrakesh
Agreement Establishing the World Trade Organization1 and any successor
agreements, shall govern the rights and obligations of the Parties in
respect of subsidies and the application of antidumping and countervailing
duties.2
3]
[1.1. The Parties may only initiate and conduct investigation procedures4
and apply anti-dumping and countervailing duties on goods from any other
contracting Party in conformity with the provisions of this Chapter.
Unless expressly provided for in this Chapter, the provisions of the World
Trade Organization Agreements5 and subregional and national legislation
shall be applied in addition to the above.]
[1.1 In applying antidumping and countervailing duty measures, Parties
shall abide by the rights and obligations established under the World
Trade Organization (WTO) Agreement on the Implementation of Article VI of
the General Agreement on Tariffs and Trade 1994 (Anti-Dumping Agreement)
and the WTO Agreement on Subsidies and Countervailing Measures (the SCM
Agreement).6 The procedural provisions7 set forth in this chapter shall also
apply in antidumping and countervailing proceedings conducted by one Party
with respect to imports from another Party. No provision of any other
Chapter of this Agreement shall be construed as imposing obligations on a
Party with respect to the application of anti-dumping or countervailing
duties.]
[1.2 Parties will endeavor to provide technical assistance to other
Parties, taking into consideration differing levels of development and
size, in order to assist Parties in fulfilling their WTO obligations with
respect to the application of anti-dumping and countervailing duties.]
ARTICLE 2
[DETERMINATION OF DUMPING] [OR SUBSIDIES]
[2.1 The authority may construct the normal value based on the cost of
production in the country of origin plus a reasonable quantity for
administrative, selling and general costs, and for profits, solely in
those cases where:
a. Sales of the like product in the exporting party are not made in the
normal course of trade, are
made in special market situations, or there is
a low volume of sales in the domestic market of
the exporting country, and
b. There is no comparable price to that of the like product when the like
product is exported to an
appropriate third country because they are not
made in the normal course of trade or the prices
are not representative.
The decision to construct the normal value shall be accompanied by the
legal reasoning that supports it. The reasoning must demonstrate that the
decision is clearly substantiated on positive evidence.]
[2.2. In relation with subparagraph iii) of Article 2.2.2 of the WTO
Antidumping Agreement, a greater amount of profits than that declared by
the exporter or producer in question shall not be attributed, if the
exporter or producer is operating in a competitive market, a competitive
market being understood to be a market characterized by a plural number of
companies in the relevant market for the product being investigated or the
non-existence of high barriers to access to the competition.]
[2.3. For the purpose of footnote 5 of Article 2.2.1 of the WTO
Antidumping Agreement, sales shall be considered to have been made at
prices below per unit costs in substantial quantities when:
a. the authorities establish that the weighted average sales prices of
transactions considered in determining the normal value is below the
weighted average per unit costs, or
b. the volume of sales made at prices below the per unit costs accounts
for at least 40% of the volume sold in transactions under consideration
for the determination of the normal value. If more than 40% of domestic
market sales are made at a loss, these sales may be excluded from the normal value calculation, in which case, the price of the remainder of
sales to the domestic market shall be used to determine the normal value,
as long as such sales correspond to at least 10% of the total sales of
said market, or account for at least 5% of the exports of the product under consideration to the importing Member.]
[2.3. For the purpose of determining the normal value, the investigating
authorities shall consider sales made above per-unit costs of production
when they represent at least 5% of the importing country’s total exports
of the product under investigation.]
[2.4. With regard to article 2.2 of the WTO Antidumping Agreement, when
the normal value is being constructed owing to the fact that domestic
sales have been ruled out because they are being made at a loss, no profit
should be added in the calculation of the constructed value.]
[2.5. For the purpose of article 2.2 of the Antidumping Agreement of the
WTO, normal value shall be determined on the basis of costs representative
of normal operating conditions and not on the basis of costs affected by
random events. Costs shall be adjusted appropriately to take into account
generally accepted business practices in circumstances where economies are
undergoing a programme of structural adjustment or recovering from the
impact of a natural disaster.]
[2.6. Export price may not be constructed unless the investigating
authority has determined either that there is no export price or that the
export price is unreliable because of an association or a compensatory
arrangement between the exporter and the importer or a third party. The
export price between related companies may not be ruled out solely by
virtue of this fact, but shall be examined and accepted if it is found
that the relationship does not affect the price. The investigating
authority shall provide detailed reasons in support of such a
determination.]
[2.7. For the comparison of the two prices to be considered equitable,
adjustments required by differences that influence the comparability of
the prices will be made. Such differences include, inter alia, differences
in conditions and terms of sale, levies on imports and indirect taxes,
levels of trade, quantities, physical characteristics, transportation and
storage, insurance, unloading and ancillary costs, packaging, credit,
aftersale costs, commissions paid, and currency conversions. These
adjustments shall be calculated using the data from the investigation
period. When the normal value is being constructed, the indirect taxes
shown to apply to inputs shall not be calculated, in order to guarantee an
equitable comparison with the export price, which does not include such
taxes.]
[2.8. With respect to the fair comparison referred to in paragraph 2.4.2
of the WTO Antidumping Agreement, the comparison will be made between
weighted averages. In the case where there are different types of
products, ‘zeroing’ will not be allowed.]
[2.8. For the purposes of Article 2.4.2. of the Antidumping Agreement, the
existence of margins of dumping may be established by a comparison of
normal value and export prices on a transaction-by-transaction basis,
provided that the investigating authorities present in the pertinent
determination the reasons which justify the use of this method and the
criteria for the selection of transactions involving the normal value for
the purpose of comparison with export prices.]
[2.8. With respect to the fair comparison referred to in paragraph 2.4.2
of the WTO Antidumping Agreement, the determination of the dumping margin
shall be established solely:
a) on the basis of a comparison of a weighted average normal value with a
weighted average of the export prices of all comparable transactions; or
b) by a comparison of normal value and export prices on a
transaction-to-transaction basis, in which case the investigating
authority shall give detailed reasons to justify the use of this method.
In the case of investigations that include different types of products,
‘zeroing’ shall not be allowed.]
[2.9. In those cases where the investigated imports arise from tenders or
long-term contracts, the following documents, among other elements of
evidence for determining the margin of dumping, may be considered: a) in
the case of normal value, the bid documents and the price awarded in the
exporting country in question; b) in the case of export price, the bid
documents and the award prices resulting from the tender.]
[2.10. For the purpose of determining the margin of dumping or amount of
the subsidy, the period of investigation shall normally correspond to the
twelve (12) months as near as possible to the opening date of the
investigation and shall, under no circumstances, be shorter than six (6)
months.
The examination period of below-cost sales and the investigation period
for the existence of dumping shall normally coincide. In the event that
such periods do not coincide, the investigating authorities shall explain
the reasons that justify the adoption of a different period.]
ARTICLE 3
[DETERMINATION OF INJURY]
[3.1. A determination of injury shall be based on positive evidence and
involve an objective examination of: (a) the volume of the dumped imports
and the effect of the dumped imports on prices in the domestic market for
like products; and (b) the consequent impact of these imports on domestic
producers of such products. For this purpose, [an examination that is
based on the use of statistics covering aggregate groups of products that
include the like product under investigation shall neither be allowed nor
considered objective.] [examinations based on the use of statistics on the
volume of imports covering aggregate groups of products that include the
product under investigation shall be allowed, provided that the
investigating authority uses the most disaggregated statistical
information available for the product under investigation.]]
[3.2. With regard to the accumulation of imports, the parties shall
consider the situation carefully when imports from countries with large
market shares are accumulated with those from countries with small market
shares, and shall exclude the latter from their enforcement of antidumping
duties, to the extent that they do not contribute to the injury.]
[3.3. For the purpose of determining injury, no investigating authority
may make a cumulative assessment of the effects of imports from a small
economy.]
[3.4. For the purposes of Article 3.3 of the Antidumping Agreement, in the
analysis of the conditions of competition between the imported products
and between the latter and the like domestic product, the investigating
authorities may examine, inter alia:
1) physical characteristics and uses as well as the degree of
interchangeability, fusion or substitution of those products.
Considerations such as quality, function, technical specifications,
specific requests and perceptions of consumers can be relevant;
2) levels in the volume of imports from each country of accumulation, in
absolute terms or relative to the production or consumption of the
importing country;
3) whether there exist sales of the like domestic product and imported
product through the same distribution channels, in the same geographic
areas and periods.
4) levels of prices for the like domestic product and for the imported
product from each country considered for accumulation purposes.
No one or several of these factors can necessarily give decisive guidance
on whether the accumulation of the effects of the imports is appropriate
in light of the conditions of competition between the imported products
and the conditions of competition between the imported products and the
like domestic products.]
[3.5. In order to determine the existence of material injury, there shall
normally be a requirement that the domestic industry incur losses during
the determined period. The determination of material injury in the
presence of positive earnings may be an exception, provided that it is
justified in terms of special circumstances of that domestic industry.]
[3.6. For the purposes of the determination of the causal link, the
investigating authorities shall exclude from the dumped imports those
originated in exporters for whom a de minimis or negative margin of
dumping has been determined.]
[3.7. In addition to the provisions of Article 3.5 of the WTO Antidumping
Agreement and Article 15.5 of the WTO Agreement on Subsidies and
Countervailing Measures, before antidumping or countervailing duties can
be imposed, proof shall be submitted that the dumped or subsidized imports
constitute the principal or dominant cause of the injury caused to the
domestic industry.
The investigating authority shall determine that the dumped exports cause
or threaten to cause injury if the exporters under investigation as a
whole have substantial market power in the country of origin or receive a
subsidy which enables the practice of dumping. The exporters as a whole
will be considered to have substantial market power if they have the
capacity to fix the sale price and displace their competitors in the
market of origin.]
[3.8. A determination of a threat of material injury shall be based on
facts and not merely on allegation, conjecture or remote possibility. The
change in circumstances which would create a situation in which the
dumping would cause injury must be clearly foreseen and imminent.8 In
making a determination regarding the existence of a threat of material
injury, the authorities shall consider all relevant factors, including
factors such as:
(i) a significant rate of increase of dumped imports into the domestic
market indicating the likelihood of substantially increased importation;
(ii) sufficient freely disposable, or an imminent, substantial increase
in, capacity of the exporter indicating the likelihood of substantially
increased dumped exports to the importing Member's market, taking into
account the availability of other export markets to absorb any additional
exports;
(iii) whether imports are entering at prices that will have a significant
depressing or suppressing effect on domestic prices, and would likely
increase demand for further imports; and
(iv) inventories of the product being investigated.
No one of these factors by itself can necessarily give decisive guidance
but the totality of the factors considered must lead to the conclusion
that further dumped exports are imminent and that, unless protective
action is taken, material injury would occur.]
[3.8. For the purposes of determining the existence of a threat of
material injury, the authorities shall consider, in addition to the
factors set out in Article 3.7 of the WTO Antidumping Agreement, all the
relevant factors listed in Articles 3.1, 3.2, and 3.4 of the Agreement.]
[3.9. In investigations involving products sold totally or partially
through tenders, the investigating authorities may, for purposes of
calculating the apparent consumption by the importing country, consider
the dates on which the tenders were awarded to be the effective dates on
which the product involved was sold. In such case, the product that was
the object of the tender shall, for purposes of analyzing the injury, be
considered to have been sold or imported on the date on which the tender
was awarded.]
[3.10. For the purpose of the determination of injury in antidumping or
countervailing duty investigations, the period of investigation for the
determination of injury should not be less than three (3) years and shall
include the entire period of investigation for the determination of
dumping or the amount of the subsidy.]
ARTICLE 4
[DEFINITION OF DOMESTIC INDUSTRY]
[4.1. The term "domestic industry" shall be interpreted as referring to
the totality of domestic producers of the like product, or, when this is
not possible, to those of them whose collective output of the products
constitutes a major proportion of the total domestic production of those
products.]
ARTICLE 5
[INITIATION AND SUBSEQUENT INVESTIGATION]
[5.1 (11.4 SCM) An [antidumping or subsidy] investigation shall not be
initiated unless the authorities have determined, on the basis of an
examination of the degree of support for, or opposition to, the
application expressed by domestic producers of the like product, that the
application has been made by or on behalf of the domestic industry. The
application shall be considered to have been made "by or on behalf of the
domestic industry" if it is supported by those domestic producers whose
collective output constitutes more than 50 per cent of the total
production of the like product.
In the case of fragmented domestic production that entails an extremely
high number of producers, an investigation may be initiated with the
support of at least X% of the total affected domestic production, whenever
said situation is justified and duly substantiated according to the
investigating authority.]
[5.2. After evaluating that which is established in Article 5.6 of the WTO
Antidumping Agreement, the authorities concerned may initiate an
investigation, for dumping or subsidies, without having received a written
application submitted by or on behalf of a domestic industry for the
initiation of such investigation, only if they have sufficient evidence
that the domestic industry does not have the possibility of organizing
itself and filing the petition in this respect before the competent
authority.]
[5.3. An application under paragraph 1 shall be rejected and an
investigation shall be terminated promptly as soon as the authorities
concerned are satisfied that there is not sufficient evidence of either
dumping, subsidies or of injury to justify proceeding with the case or
when there is reasonable evidence to suggest that the alleged subsidy is a
governmental measure of assistance, whether direct or indirect to
encourage rural development, upgrade productive capacity or diversify
investment in FTAA small economies.]
[5.4. In order to ensure the transparency of the proceedings, the periods
of investigation for the determination of the margin of dumping or amount
of the subsidy and the injury shall be recorded in the act opening the
investigation and in the relevant notifications to the interested parties
and Governments.
Further, if the time period for obtaining information to determine injury,
in a specific investigation, as determined by the investigating authority,
is different from that provided for in article 3.8, the reasons for such
discrepancy shall be included in the public notice or in the relevant
report.]
[5.5 For the purposes of Article 5.8 of the Antidumping Agreement, the
margin of dumping shall be considered to be de minimis when this margin is
lower than 5 (five) percent, expressed as a percentage of the export
price. The volume of dumped [or subsidized] imports shall be regarded as
negligible when it is established that those from or originating in a
particular account for less than 7 (seven) percent of imports of the like
product in the importing Party, unless the countries which individually
account for less than 7 (seven) percent of imports of the like product in
the importing Party collectively account for more than 15 (fifteen)
percent of such imports. [Injury shall be regarded as negligible if the
volume of dumped imports accounts for less than [5] [x] percent of the
domestic market.]]
[5.6 (11.11 SCM) The final determination of the anti-dumping and subsidy
investigations shall be announced, made public and enter into force within
one year of the initiation date and, in special circumstances, which shall
be made known to the interested parties, within a period of [18 (eighteen)
months,] beginning on the initiation date of the investigation. Should the
above-mentioned time periods be exceeded, the investigation shall
terminate without imposing anti-dumping or countervailing duties. [Any
provisional duties or cash deposits collected shall be refunded with
interest.]]
[5.7 (11.12 SMC) The Parties shall provide for the right of domestic
producers to desist, at any time, from [the antidumping or subsidy]
investigation. Should an abandonment take place once the investigation has
been initiated, the investigating authority shall notify the remaining
applicants. Should only a part of the domestic industry withdraw, the
remaining part shall comply with the representation requirements for
initiation, otherwise, the investigation shall not continue.]
ARTICLE 6
[EVIDENCE]
[6.1. (12.1.1 SCM) The known interested parties shall receive the
appropriate questionnaire to be used in an anti-dumping or subsidy
investigation, and shall be given at least 30 (thirty) working days for
reply once the investigation has officially been initiated. The
authorities in accepting or denying an extension of the period to provide
information, provided that the request for an extension was made in
writing 5 (five) days prior to the expiry of the time period, shall take
into account the following:
i. the time available for the conduct of the investigation and making the
necessary determinations, including the time periods established in
national legislation, regulations, and schedules governing the conduct of
the investigation at hand, and whether the information can be considered in a subsequent phase of the investigation;
ii. previous extension(s) of time granted during the investigation;
iii. the ability of the party from whom information is sought to respond
to the information questionnaire, in light of the nature and extent of the
required information, including the party's available resources,
personnel, and technological capability;
iv. any unusual burdens that will be incurred by the party being asked for
information in searching for, identifying and/or compiling the required
information;
v. whether the party requesting the extension has provided a partial
response to the questionnaire, or has previously provided information
required in the same investigation, although the absence of a partial
response alone is not an appropriate basis for denial of a request;
vi. any unforeseen circumstances affecting the ability of the party to
provide the required information within the time limit established;
vii. whether other parties have been granted extensions of time for
similar reasons during the same phase of the investigation.
The decision whether to grant or deny a request for an extension of time
to provide information should be made promptly, and if denied, the party
making such a request should be informed of the reason for its denial.
These same elements shall be weighted for granting or denying time period
extension requests made by one of the interested parties to submit
arguments, information and supplementary or complementary evidence.
The authorities, once the established time periods, and the extensions
granted, if any, have expired, shall only admit information and evidence
of a supervening nature, when this circumstance is demonstrated, provided
that it is submitted prior to the closing of the hearing or the conclusion
of the investigation.]
[6.2. (12.1.4 SCM) Each Party shall ensure that the interested parties
filing written submissions to the authorities send a copy of the public
version of what is presented, on the same date to the other interested
Parties in the investigation, to the address indicated in the territory of
the importing Party. Should this duty not be fulfilled, the authorities
shall have the power to deny the submitted information.]
[6.3 During the antidumping and countervailing duty investigations,
interested parties shall be given the opportunity to hold hearings in
order to present opposing views and offer rebuttal arguments. The date of
the hearing shall be notified to the interested parties at least [15] [30]
days in advance.]
[6.4. (12.4 SCM) The importing Party shall establish monetary and other
sanctions, in proportion to the unfavorable effects that occur in the
event of disclosure or unjustified use of confidential information to
which any person may have had access.]
[6.5 For the purposes of Article 12.7 of the WTO Agreement on Subsidies
and Countervailing Measures, the provisions of Annex II of the Antidumping
Agreement with respect to the best information available shall be applied,
mutatis mutandis to the best information supplied by the government of
exporting Parties and the interested Parties.]
[6.6 Prior to making a final determination and after having analyzed the
information and evidence collected by them, the authorities shall report
on the essential facts that were considered and used for the decision to
apply, or not, a final measure and the arguments, information and evidence
provided by the interested Parties to the investigation, in relation to:
i) The information and methodology used to determine the margin of dumping
(normal value, export price and adjustments) or the amount of the subsidy;
ii) The information and methodology used to analyze the harm or material
injury and the causal link;
iii) The arguments, information and evidence submitted by the interested
Parties.
In the disclosure of the essential facts, the authorities shall protect
the information that is, by its very nature, confidential or has been
provided by the interested Parties as such.
A reasonable time period of at least ten (10) days shall be provided to
the interested Parties, beginning on the day that they were informed of
the essential facts, to present their observations and comments.]
[6.6. The authorities shall, before a final determination is made, until
the end of the evidentiary phase, and once the information provided has
been analyzed by the authorized interested parties or interested
Governments and gathered by the investigating authority the authorities
shall inform such parties or Governments of the essential facts under
consideration which form the basis for the decision whether to apply
definitive measures relating to:
- the information and the methodology for determining the dumping margin
(normal value, export price and adjustments) or the amount of the subsidy;
- the information related to the analysis of the injury and of the causal
relationship;
and
- the arguments of the authorized interested parties and of the interested
Governments;
- and, as appropriate, of associations of consumers or users of the
product involved.
The interested parties and Governments shall be granted a reasonable
period of time, of at least ten days from the date the essential facts are
received by the interested parties and Government, to present their final
comments on such facts.
Final comments on such facts, shall deal with the essential facts, and may
include statements on any evidence involved in the proceeding and that is
provided prior to the close of the period for the presentation of
evidence, established by the investigating authority. If any interested
party or Government presents new evidence, it shall not be considered in
making the final determination, taking into account the fact that it would
be impossible for the investigating authority to verify such evidence and
for the other parties to respond accordingly. Once the time period for the
presentation of final pleadings and written submissions has expired, the
investigative stage of the proceedings shall be concluded, and subsequent
statements shall not be considered.]
[6.7. Without prejudice to Article 6.11 of the Antidumping Agreement and
of Article 12.9 of the Agreement on Subsidies and Countervailing Measures,
during antidumping and countervailing duty investigations, “interested
parties” shall also include:
i. The governments of the exporting Parties;
ii. Industrial users of the product subject to the investigation, trade
and business associations and organizations representing consumers of said
product, which have a legitimate interest.
The list above is not exhaustive and shall not preclude the authorities
from allowing nationals or foreigners other than those previously
mentioned to be included as interested parties.]
[6.8. In an investigation where a preliminary or final determination is
made on the facts available Authorities shall indicate on the record how
effect has been given to Article 6.13 of the Antidumping Agreement.]
ARTICLE 7
[PROVISIONAL MEASURES]
[7.1. With regard to article 7.1 of the WTO Antidumping Agreement, a
preliminary affirmative determination shall be based on evidence
establishing a strong prima facie case and that there is a substantial
issue to be investigated.
In principle preliminary measures shall not be imposed unless authorities
judge that the consequent injury to a domestic industry is not adequately
compensable unless interim relief is granted, and that the balance of
interests favors the granting of relief sought. In exceptional cases where
the threat of consequent injury affect a critical growth industry in an
FTAA small economy special flexibility shall be accorded.]
[7.2. The review provided for in Article 7.4 of the WTO Antidumping
Agreement [shall] [may] include, inter alia, the price of the domestic
product, the prices at which the imported product from other countries not
under investigation is sold in the domestic market, and the international
prices of the product in question [on the basis of the information
available to the investigating authority].]
ARTICLE 8
[PRICE]CR [UNDERTAKINGS]
[8.1. Price increases under price undertakings shall be less than the
margin of dumping or the amount of the subsidy if such increases would be
adequate to remove the injury to the domestic industry.]
[8.2. With respect to Article 8.3 of the WTO Antidumping Agreement, should
the case arise where an undertaking offered by a small and medium sized
exporter is not accepted authorities shall provide to the exporter the
reasons which have led them to reject the undertaking and shall give the
exporter an opportunity for a fair hearing.]
[8.2. In case the authorities decide to refuse a price undertaking offered
by an exporter, they shall provide to it the reasons which have led them
to consider acceptance of an undertaking as inadequate, and shall give
this exporter an opportunity to make comments thereon. In case the time
limit of the investigation do not allow it, the authorities shall inform
the reasons for their refusal in the public notice or in a separate report
related to the final determination.]
ARTICLE 9
[IMPOSITION AND COLLECTION OF [ANTIDUMPING] DUTIES]
[PROCEDURE FOR A NEW EXPORTER]
[9.1. The authorities shall impose a definitive anti-dumping or [countervailing] duty lower than the margin of dumping or [amount of the
subsidy] if such lesser duty would be adequate to remove the injury or
threat of injury to the domestic industry.
[The amount of the injury shall be assessed, taking into account, inter
alia, the price of the domestic product, the prices at which the imported
product from other countries not under investigation is sold in the
domestic market, as well as the international prices of the product in
question.]]
[9.1. Each Party’s domestic law shall allow for the imposition of an
antidumping or countervailing duty that is less than the full margin of
dumping or full amount of subsidy but sufficient to eliminate injury to
the domestic industry.]
[9.2. In imposing duties, in the event the margins of dumping found are
not higher than the margin of injury, the duty to be applied to
enterprises not investigated, may be, at its maximum level, equivalent to
the weighted average of the margins of dumping of the sample of the
companies investigated, without excluding negative, zero or de minimis
margins.
In cases where the margin of injury is lower than the margin of dumping,
the margin of injury shall be applied to all the companies.]
[9.3. (19.3 SCM) If a product is subject to definitive anti-dumping or
countervailing duties in the territory of an importing Party, the
exporters or producers of the exporting country who have not exported the
product to the importing Party during the period of investigation and show
that they are not related to any of the exporters or producers who are
subject to the antidumping duties, or who are subject to countervailing
duties for reasons other than having refused to cooperate, may request
that the investigating authority carry out reviews of new exporters in
order to determine individual margins of dumping for them.
The procedure for a new exporter shall be initiated at the request of a
party and must be completed within a period no longer than 6 months from
the date of publication of the public notice of initiation. During the
review, no antidumping or countervailing duties shall be levied on imports
from those exporters or producers. The authorities may, however, withhold
appraisement and/or request guarantees to ensure that, should such a
review result in a positive determination of dumping or of the amount of
the subsidy and that the exporter benefited from the subsidy, antidumping
or countervailing duties can be levied retroactively to the date of the
initiation of the review.
The investigating authority shall issue only an initial and a final
determination. The review shall comprise only an analysis of the relevant
individual margin of dumping, or of the amount of the subsidy, and whether
the exporter benefited from the subsidy. The information submitted by the
new exporter or producer shall refer to customary exports to the market of
the importing Party of the product subject to antidumping or
countervailing duties. The information submitted by the new exporter or
producer may be subject to verification by the investigating authority.
The other provisions of the Antidumping Agreement and the Agreement on
Subsidies and Countervailing Measures shall apply mutatis mutandis.]
[9.4. Antidumping or countervailing duties shall not be collected in
prospective and retrospective basis systems when the margin of dumping or
the amount of subsidy is de minimis.]
[9.5. The amounts collected due to antidumping or countervailing duties
shall not be destined to the domestic producers of the like product to the
product subject to these duties.]
ARTICLE 10
[DURATION AND REVIEW OF DEFINITIVE [ANTIDUMPING] DUTIES AND [PRICE]
UNDERTAKINGS]
[10.1 If, as a result of the review under paragraph 2 of Article 11 of the
WTO Antidumping Agreement, the authorities determine that the margin of
dumping is de minimis, or that the volume of dumped imports, actual or
potential, or the injury, is negligible, as defined in paragraph 8 of
Article 5, the antidumping duty shall be terminated immediately.]
[10.2. Any definitive anti-dumping duty shall be removed on a date not
later than XX months from its imposition, without any possibility for
extension.]
[10.2 In cases where, during the period of application of antidumping
duties, there have been no imports of a product subject to an antidumping
measure or imports thereof have been negligible, within the meaning of
paragraph 8 of Article 5 of the Antidumping Agreement, the total period of
application of the definitive antidumping duties, including the initial
period of application and all extensions, shall not exceed 8 years.]
[10.2. In respect of the duration of the measures established consistently
with this chapter, the members renounce the application of antidumping
duties for more than three years, including any extensions.]
[10.3. The provisions of articles 11.4 and 13 of the Agreement on
Subsidies and Countervailing Measures and articles 5.4 and 5.5 of the
Antidumping Agreement of the WTO shall apply to reviews undertaken in
conformity with this article. The investigating authority may initiate a
review requested by domestic producers only if the application is
supported by the domestic industry and shall notify the government of the
exporting Member on the existence of a properly documented application for
the initiation of the review before its initiation. In case of
countervailing duty reviews, the investigating authority shall provide
opportunities for the government of the exporting Member to hold
consultations prior to initiating such review and during the review.]
ARTICLE 11
[PUBLIC NOTICE AND EXPLANATION OF DETERMINATIONS]
[11.1. (11.5 SMC) The investigating authority shall notify the government
of the exporting Party that they have received a properly documented
application at least eight (8) days prior to the declaration that an
investigation is formally initiated. That notification shall be forwarded
to the diplomatic representation of the exporting Party and shall contain
information to identify the product subject to the application
investigation, the period of investigation proposed in the application,
the targeted country or countries, the date of submission of the
application, information identifying the applicant domestic producers,
known importers and producers and/or foreign exporters.
[The investigating authority shall avoid any publicizing of the
application for the initiation of an investigation. More specifically, no
investigating authority may engage in any preliminary hearings prior to
formally initiating an investigation.] In determining the initiation
and/or in the public notice the analysis undertaken to verify the accuracy
and adequacy of the information and evidence submitted to prove the
possible existence of dumping or subsidization, injury, and the causal
link shall be indicated.]
[11.2. (22.2 SCM) The public notice of the preliminary determinations
shall contain the following:
i. the name(s) of the domestic producer(s) of the like product who
submitted the application, the names of other domestic producers of the
like product, and the name(s) of the importer(s), exporter(s), and the
foreign producer(s) of the product under investigation who became parties
after initiation of the investigation.
ii. information concerning the procedural background of the investigation,
including the date that the application was received, the date that the
application was accepted as properly documented, and the date of
initiation, as appropriate under each Party’s practice.
iii. the description of the product under investigation to which the
preliminary determination applies, including the tariff classification for
Customs purposes of the product, and the country(ies) of origin or export.
iv. information concerning the like product and domestic industry,
including information regarding any exclusion of producers for the
purposes of defining the domestic industry and of the preliminary injury
determination.
v. information concerning the domestic market for the product, and a
description of the international market for the product.
vi. the periods of data collection for both the preliminary dumping
analysis and preliminary injury analysis, and an explanation of the
selection of such periods, where appropriate.
vii. information concerning the estimation of the dumping margin,
including information concerning the normal value, the export price and
the comparison of the normal values with the export prices, established
dumping margins, and the methodology used in the sampling on a
sufficiently detailed basis, as well as the justification for the
selection of the sample.
viii. information concerning the evaluation of injury, including
information concerning the effects of the dumped imports on the volume and
price of the like product in the domestic market, the impact of the
subject imports on the domestic industry and, if relevant, the evaluation
of cumulation criteria.
ix. information concerning the preliminary evaluation of the causal
relationship between the dumped imports and any injury, including the
examination of any other factors besides the dumped imports which are also
causing injury to the domestic industry at that time.
x. information concerning verification, if undertaken.
xi. information concerning the continuation of the investigation,
including such matters as time frames for the presentation of further
submissions, information, arguments and evidence, hearings, the
requirements for undertakings, if offered, and name, address, telephone
and telefax numbers and email address of the official responsible for the
investigating authority.]
[11.3. (22.8 SCM) For the purpose of preliminary or final determinations,
the investigating authority shall hold technical information meetings at
the request of any of the interested parties to explain the methodology
used in determining the margins of dumping and the calculation of the
subsidies, as well as the injury and the arguments for causality, with
information from the firm, for which purpose the investigating authority
shall duly protect confidential information.
The time period for requesting the convening of such meetings will be
within 8 (eight) days following publication of the public notice of the
preliminary or definitive determination.]
ARTICLE 12
[DEVELOPING COUNTRIES]
[12.1 (27 SCM) The Party that decides to apply a provisional or definitive
measure to products originating in developing country Parties, should
impose an antidumping or countervailing duty that is less than the margin
of dumping or the amount of the subsidy, if this lesser duty is sufficient
to remove the injury to the domestic industry (art. 9.1 FTAA).]
[12.2 Once a preliminary affirmative determination of dumping or subsidy,
of injury and its causal link has been adopted, and at least 20 days prior
to the establishment of the definitive antidumping or countervailing duty,
the investigating authority shall inform the exporters, in writing, of the
possibility of reaching voluntary price undertakings and how they could
review their prices or cease exports to the area in question at dumped or
subsidized prices, so that the authorities are satisfied that the
injurious effect of the dumping or subsidy is removed and, furthermore, in
the case of subsidies, the government of the exporting Party shall be
afforded the opportunity to remove or limit the subsidy; or any other
alternative proposed by exporters or the government of the exporting Party
that is acceptable to the investigating authority. Price increases
stipulated in these undertakings shall not be higher than necessary to
offset the margin of dumping or the amount of the subsidy. Price increases
shall be less than the margin of dumping or the amount of the subsidy if
this is sufficient to remove the injury to the domestic industry.]
[12.3. The margin of dumping for exports from developing countries shall
be considered to be de minimis when this margin is lower than five
percent, expressed as a percentage of the export price, and the volume of
dumped or subsidized imports from developing countries shall be regarded
as negligible when it is established that imports from, or originating in,
a given developing country account for less than seven percent of imports
of the like product in the importing Party, unless the developing
countries that individually account for less than seven percent of imports
of the like product in the importing Party collectively account for more
than fifteen percent of such imports. Injury shall be regarded as
negligible if the volume of dumped imports from developing countries
accounts for less than [x] percent of the domestic market of the importing
country.]
ARTICLE 13
[JOINT COMMITTEE]9
[13.1 (24 SCM) A “Joint Committee” on antidumping or subsidies composed of
representatives from each of the Parties is established. The “Joint
Committee” shall elect its own Chairman, who will be assigned to the post
for two years. The Committee shall meet not less than twice a year, and
when it is deemed necessary, to review the information and documentation
provided by the Parties under this article. The “Joint Committee” shall be
responsible for, inter alia, the receipt, control and review of documents
that the Parties submit in accordance with the following two paragraphs of
this article. This information shall be available for the Parties’
consultation.]
[13.2 Each Party shall notify the following to the “Joint Committee”: i)
information on the competent authority to initiate and carry out
investigations concerning this Chapter, including, inter alia, the name of
the authority and incumbent, address, telephone, fax and email, as well as
any changes that may arise, ii) domestic legislation applicable to the
procedures that govern the initiation and development of antidumping and
subsidies investigations and, iii) reforms to said legislation.]
[13.3 The Parties shall notify without delay to the “Joint Committee” all
preliminary or definitive antidumping or countervailing measures adopted,
including extensions or continuation, elimination or revocation of
measures; initiation of investigations, dismissal and disclaim of said
investigations; annual and five year reviews; and procedures against the
circumvention of antidumping or countervailing measures. In January and
July of each year, the Parties shall submit semi-annual reports on the
aforementioned measures or investigations carried out by the Parties
during the preceding six months. The semi-annual reports shall be
submitted in accordance with the format that the Parties approve.]
ARTICLE 14
[CONSULTATION AND DISPUTE SETTLEMENT]10
[14.1. Any dispute arising between the Parties in connection with the
interpretation or implementation of this Chapter shall be settled in
conformity with the procedures set forth in the Chapter on Dispute
Settlement of the FTAA Agreement.]
[14.2. As soon as possible after an application under Article 5 of the WTO
Antidumping Agreement is accepted, and in any event before the initiation
of any investigation, FTAA Parties the products of which may be subject to
such investigation shall be invited for consultations with the aim of
clarifying the situation as to the matters referred to in paragraph 2 of
Article 5 of the WTO Antidumping Agreement and arriving at a mutually
agreed solution.]
[14.3. Furthermore, throughout the period of investigation, FTAA Parties
the products of which are the subject of the investigation shall be
afforded a reasonable opportunity to continue consultations, with a view
to clarifying the factual situation and to arriving at a mutually agreed
solution.11]
[14.4. Without prejudice to the obligation to afford reasonable
opportunity for consultation, these provisions regarding consultations are
not intended to prevent the authorities of a Party from proceeding
expeditiously with regard to initiating the investigation, reaching
preliminary or final determinations, whether affirmative or negative, or
from applying provisional or final measures, in accordance with the
provisions of this Agreement.]
[14.5. The FTAA Parties which intend to initiate any investigation or is
conducting such an investigation shall permit, upon request, the Party or
Parties the products of which are subject to such investigation access to
non-confidential evidence, including the non-confidential summary of
confidential data being used for initiating or conducting the
investigation.]
[14.6. Each FTAA Party undertakes to accord sympathetic consideration to
and afford adequate opportunity for consultation regarding any
representations made by another Party concerning an application for
anti-dumping action on behalf of that Party in accordance with the
provision of paragraphs 2 and 3 of this Article.]
[14.7. Within three years of the entry into force of this Agreement the
Parties shall review the feasibility of establishing a binational and/or
inter-subregional mechanism to replace judicial, arbitral or
administrative tribunals or proceedings for the purpose, inter alia, of
the prompt review of administrative actions relating to the final
determinations and reviews of determinations within the meaning of Article
_ of this Chapter. The provisions of paragraph 6 of Article 17 of the
Antidumping Agreement therefore would be deleted.]
[14.8. (13 and 30 SCM) The Party that intends to carry out reforms of its
domestic legislation on antidumping or subsidies shall hold, subject to
written request of the other Party, consultations to resolve the questions
set forth regarding said reforms in order to clarify whether or not these
are contrary to the provisions of this Chapter. The consultations shall
not be an obstacle to the approval of the legislative reforms.]
[14.9. When, in the context of an antidumping or subsidy investigation,
the exporting Party considers that the investigating authority of the
importing Party adopted provisional or definitive antidumping or
countervailing measures contrary to the provisions of this Chapter, the
importing Party shall provide adequate opportunities for consultations in
this regard, prior request in writing from the exporting Party.]
[14.10. In the event that a mutually satisfactory solution is not reached
in the consultations referred to in paragraphs 8 and 9 of this article,
the exporting Party may request that the disputes be resolved in
conformity with the dispute settlement mechanism provided for in this
Agreement. Any disputes that may arise in connection with unfair practices
in international trade can only be resolved, by request of the
complainant, before one of the international dispute settlement mechanisms
provided for in trade agreements and treaties to which both the importing
and exporting State are Party. The selected dispute settlement mechanism
shall be exclusive of the others.]
[14.11. When a dispute settlement mechanism provided for under this
Agreement determines that an antidumping or countervailing measure is
incompatible with this Chapter, it may recommend to the importing Party,
the way and time in which it shall bring its measure into conformity with
the Agreement.]
[14.12. When an antidumping or countervailing duty decreases or is removed
in compliance with a decision of the challenge mechanism, the importing
Party shall proceed promptly to return, restore, modify or cancel
previously offered guarantees with their respective interests.]
ARTICLE 15
[PUBLIC INTEREST]
[15.1. After all the requirements for the imposition of an antidumping or
countervailing duty have been fulfilled, the investigating authority
shall, on its own initiative or upon request by any domestic interested
person, conduct a public interest inquiry if there are reasonable grounds
to consider that the imposition of such a duty, or the imposition of such
a duty in the full amount, might not be in the public interest. The
procedures for such inquiries shall allow the investigating authority to
take due account of the representations made by any domestic person whose
interests might be affected by the imposition of the antidumping or
countervailing duty, including industrial users of the product under
investigation and representative consumer organizations. The procedures
shall also allow the investigating authority to take due account of
representations made by the domestic competition law authority.]
[15.1 Throughout an antidumping or countervailing duty investigation, the
investigating authority shall, on its own initiative or upon the request
of any interested party, take into account a public interest analysis if
there are reasonable grounds for believing that the imposition of duties
might not be in the public interest. For the final determination, once all
requirements for the imposition of antidumping or countervailing duties
have been met, the authority shall consider the evidence presented,
including that presented by industrial users of the product under
investigation and representative consumer organizations and the analyses
conducted by the national competition-law authorities.]
[15.1. Throughout the antidumping investigations conducted in conformity
with the provisions of this Chapter, the authorities shall consider the
broader interest of other economic agents in the market for the like
product, who are not part of the domestic industry affected.]
[15.1. Throughout an antidumping investigation, the respective authorities
shall take into account for their final determination a public interest
analysis if there is evidence that the imposition of duties, or the
imposition of such duties in the full amount, might not be in such
interest. The procedures for such inquiries shall allow the investigating
authority to take due account of the evidence presented by any domestic
person whose interests might be affected by the imposition of duties,
including industrial users of the product under investigation and
representative consumer organizations. The procedures shall also allow the
investigating authority to take due account of analyses made by the
domestic competition law authority.]
[15.1. After all the prerequisites for the imposition of provisional
countervailing duties have been fulfilled, the authority shall, on its own
initiative or at the request of any directly affected part of the domestic
industry, give industrial users of the product under investigation and
representative consumer organizations, in those cases where the product is
sold retail, the opportunity to furnish any information that may be
relevant to the investigation on dumping, injury, and the causal link
between one and the other. The procedures shall also allow the
investigating authority to take due account of representations made by the
domestic competition law authority.
The procedures set forth in the preceding article shall not be considered
a requirement for the authority to proceed with the investigation.]
ARTICLE 16
[ELIMINATION OF ANTIDUMPING MEASURES]
[16.1. When the free trade area is established and goods circulate among
countries of the FTAA fundamentally free of restrictions, the countries
shall renounce the use of antidumping measures for reciprocal trade.]
ARTICLE 17
[FINAL PROVISIONS]12
[17.1 (31 and 32 SCM) The Parties may only apply antidumping or
countervailing measures in strict compliance with the provisions of this
Chapter.]
[17.2 The provisions set forth in this Chapter shall apply, mutatis
mutandis, to investigations and reviews of existing measures initiated
subsequent to this Agreement’s entry into force.]
[17.3 Each Party shall adopt all the actions and measures necessary of a
general or particular nature to ensure that, by no later than the date of
this Agreement’s entry into force, the corresponding provisions of its
laws, regulations, procedures and administrative practice applied to the
other Parties, are in conformity with the provisions of this Agreement.]
ARTICLE X
[DEFINITIONS]
[X.1. The authorities shall consider “public information”:
i) That which has been made known by whatever means of disclosure,
regardless of its coverage,
or placed at the disposal of the public by the
person presenting it, or had authorized a third
person to disclose it;
ii) The summaries of confidential information;
iii) Public information found in the verification reports;
iv) Any other information or facts considered to be public information in
accordance with the internal
legislation of each Party and other
international treaties.]]
1 This is subject to confirmation that
the reference to the Marrakesh Agreement, by virtue of Article II.2
thereof, also encompasses the annexed agreements thereto.
2 Includes review procedures.
3 The negotiating Group recognizes
that:
i. the work being undertaken in the Technical Committee on
Institutional Issues in respect of the priority of agreements will be
relevant to the ultimate need for, and content of, a Chapter-specific
General Provision in respect of this matter;
ii. the relationship between this Chapter and regional agreements
remains to be determined; and
iii. further consideration will need to be given to appropriate language
to ensure that, where a successor agreement to the Marrakesh Agreement
accords more preferential treatment than that required by this Chapter,
the more preferential treatment will apply.
4 Includes annual review or examination
procedures and antidumping and countervailing duty sunset procedures.
5 And of any other successor agreement(s).
[6 This article is not
intended to incorporate by reference the WTO agreements.]
[7 Procedural provisions
means the process by which antidumping and countervailing duty
investigations and reviews are conducted (e.g., access to information,
notice to parties, disclosure of results, opportunity to comment) and does
not include the substantive rules governing the determination or
calculation of dumping, subsidies, countervailing duties and injury.
Nothing in this Agreement is intended to modify the substantive rules of
the WTO Anti-dumping and SCM Agreements.]
8 One example, though not an
exclusive one, is that there is convincing reason to believe that there
will be, in the near future, substantially increased importation of the
product at dumped prices.
9 The negotiating Group recognizes
that the work being undertaken in the Technical Committee on Institutional
Issues (TCI) will be relevant to the content of this Article.
10 The negotiating Group recognizes that
the work being undertaken in the Negotiating Group on Dispute Settlement
will be relevant to the ultimate need for, and content of, this Article.
11 [It is particularly important, in
accordance with the provisions of this paragraph, that no affirmative
determination whether preliminary or final be made without reasonable
opportunity for consultation having been given.]
12 The negotiating Group recognizes
that the work being undertaken in the Technical Committee on Institutional
Issues (TCI) will be relevant to the content of this Article. |