./.  WORLD TRADE  
ORGANIZATION  TN/RL/GEN/16 
15 September 2004 
 (04-3855) 
Negotiating Group on Rules Original:   English 
  
 
ALL-OTHERS RATE (ARTICLE 94.4 ADA) 
 
Communication from the United States
 
 
 
 The following communication, dated 13 September 2004, is being circulated at the request of 
the Delegation of the United States.   The submitting delegation has requested that th is paper, which was submitted to the Rules 
Negotiating Group as an informal document (JOB(04)/ 121), also be circulated as a formal document. 
 
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  The United States raised the issue of the "all-others" rate in a previous paper.
1  As the 
United States noted in that submission, Article 9.4 of the Antidumping Agreement sets a limitation on 
the level of any antidumping duty applied to companies that were not individually examined.  For 
example, if an authority has limited its examina tion to a subset of exporters or producers under 
Article 6.10, this maximum allowable rate (often re ferred to as the "all-others " rate ceiling) would be 
applicable to companies that were not examined i ndividually, for any reason (e.g., a new entrant into 
the market that has not yet recei ved a company-specific rate).   
 
 Article 9.4 provides that the "all-others" rate  should not exceed the weighted average of the 
dumping margins of the selected companies that have their own individual margins, excluding 
margins which are zero, de minimis , or were established on the basis of facts available in accordance 
with Article 6.8.    
 The United States interpreted Article 9.4 as pr oviding that only margins established entirely
 
on facts available were to be excluded from the ca lculation of the all-others rate ceiling.  The 
United States believed that this was a reasona ble interpretation based on the language of the 
Agreement and because, in the United States’ experien ce, the use of some level of facts available is 
often necessary to determine a company’s dumping marg in.  The "facts available" used may be small 
amounts of neutral data to fill gaps in the firm’s data, or may be more  substantial amounts of data that 
reflect an adverse inference drawn from a firm’s refu sal to provide, or to use its best efforts to 
provide, information.  In either case, however, the resulting margin represents the best estimate of the 
level of dumping by that particular company.  It is  therefore appropriate to use such a margin when 
establishing a duty rate for unexamine d firms based on the dumping found to exist for firms actually 
examined.  We therefore interpreted the Agreement as distinguishing those situations from situations 
in which a firm’s data are so flawed or unrelia ble that it is necessary to base its antidumping duty 
entirely on facts available.  
                                                     
 
1 "Identification of Certain Major Issues unde r the Anti-dumping and Subsidies Agreements", 
Submission from the United States, (TN/RL/W/72, 19 March 2003).  TN/RL/GEN/16 
Page 2  
 
  In United States – Antidumping Measures on Certai n Hot-Rolled Steel Products from Japan  
(WT/DS184/AB/R), the Appellate Body took a contra ry view, interpreting Article 9.4 as prohibiting 
an investigating authority from basing the "all-othe rs" rate ceiling on margins that were calculated 
using any facts available, regardless of the extent to wh ich facts available was used in the particular 
margin calculation, or whether the facts available used reflected an adverse inference drawn from a 
company’s lack of cooperation in the investigation.  
  The problem created by this situation can be illustrated by a simple example.  Assume an 
exporter makes 100 sales into the importing Member’s market during the period of investigation.  The exporter cooperatively provided most of the necess ary information concerning these sales, but it did 
not report verifiable data concerning packing e xpenses it incurred.  Lacking the exporter’s own 
packing expense information for th e sales, the administering author ity uses non-confidential packing 
expense information supplied by a nother respondent in calculating the exporter’s dumping margin.    
  In this example, most of the information used  to calculate the exporter’s margin of dumping 
was provided by the exporter itself.  However, beca use of the limited use of  facts available for the 
exporter’s packaging expense, Article 9.4, as inte rpreted by the Appellate Body, requires that the 
entire dumping margin for this exporter must be excl uded in determining the "a ll-others" rate ceiling.  
The United States believes that such result runs counte r to the purpose of the "all-others" rate ceiling.  
Including the partial facts available margin does not "penalize" unexamined firms; it is simply a 
natural feature of examining a subset of the producers or exporters.  In fact, excluding  the partial facts 
available margin would be more a dverse to unexamined firms if the excluded rate is lower than the 
average dumping rate.  Moreover, excluding all partial facts available dumping margins will 
significantly increase the instances in whic h the investigating authority will have no margins on which 
to base the "all-others" rate ceiling.  The A ppellate Body recognized this problem in United States – 
Hot Rolled Steel.
2  The United States believes, however, that the Appellate Body’s finding has 
exacerbated a lacuna in the Agreement, which must be addressed.3  If not, it will lead to less 
uniformity as investigating authorities grapple with various ways to address this problem. 
  To address the gap that now exists, the Unite d States believes that Article 9.4 should be 
clarified to provide that margins based, in part, on  facts available may be in cluded in the calculation 
of the all-others rate.  In additio n, Members should also consider clar ifying the language in Article 9.4 
that has given some Members the mis-impression that it only applies in situations of sampling.  An 
all-others rate is needed whenever there may be an exporter which has not been examined and given 
its own individual rate of duty.  Given that an  authority may limit the number of exporters or 
producers in other ways that are consistent with Article 6.10, and because there may be new entrants 
to the market, authorities must have a methodology fo r calculating an all-others rate in every case. 
 
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2 See United States – Antidumping Measures on Certain Hot-Rolled Steel Products from 
Japan  (WT/DS184/AB/R), at paragraphs 124-126.  
3 The United States intends to comply fully with its WTO obligations.