RESTRICTEDWORLD TRADE
ORGANIZATIONG/SCM/W/498
26 February 2002
(02-0954)
Committee on Subsidies
and Countervailing MeasuresOriginal:  English
IMPLEMENTATION-RELATED ISSUES REFERRED TO THE
COMMITTEE BY MINISTERS
Review by the SCM Committee of the Provisions of the Agreement on Subsidies
and Countervailing Measures Regarding Countervailing Duty Investigations
Communication from Canada
The following communication, dated 22 February 2002, has been received from the
Permanent Mission of Canada.
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Questions from Canada relating to Facts Available, Review Procedures and Definition of Domestic
Industry and Industry Analysis Issues raised by Brazil1 and India2 concerning Countervailing Duty
Investigations
Topic 2 - Facts Available
1. Brazil makes reference to the "facts available" as per Annex II of the AD Agreement as a
possible model for the SCM Agreement.  Would Braz il modify the provisions found at Annex II of
the AD Agreement for purposes of the SCM Agreement and, if so, what changes would they propose?
2. Does Brazil have any suggestions as to what would constitute reliable sources for ascertaining
the existence and amount of subsidy in situations wh ere an interested Member or an interested party
refuses access to, or otherwise does not provide, the information necessary to make these
determinations?
3. India proposes that if a portion of information is not verifiable or timely submitted, facts
available may be used for that portion of the information.  Does India have any suggested guidelinesas to the extent to which investigating authorities would be required to attempt to use the information
when there are significant portions of information wh ich have not been provided (i.e. when would the
investigating authority be justified in rejecting the entire submission rather than having to deal with
the missing portions)?
4. In terms of "facts available", would Brazil and India make any distinction between
information provided to the investigating authorities by producers and exporters versus the
government of the country of export?  Would the same rules apply to both types of information where
it was not properly provided to the investigating authorities?
                                                     
1 G/SCM/W/464
2 G/SCM/W/465G/SCM/W/498
Page 2
Topic 4 - Review Procedures
1. As a point of clarification, does the Brazilian proposal regarding "standing" apply to all
reviews conducted pursuant to Article 21 or just to "sunset" reviews conducted pursuant toArticle 21.3 of the SCM Agreement?
2. For purposes of determining the degree of industry support for a review conducted pursuant
to Article 21.3 of the SCM Agreement, is Brazil suggesting the adoption of the same "standing" test in
Article 11.4 of the SCM Agreement or would Brazil modify this test in any way?
3. If the "standing" test were adopted for reviews,  should the investigating authorities retain the
right under Article 21.3 to initiate a review on their own initiative if the request made by or on behalf
of domestic industry did not have an adequate level of support?
4. Brazil is proposing that "interested parties" be offered the opportunity for consultations prior
to the initiation of a review under Article 21 and throughout the period of the review.  Brazil alsomakes reference to the consultation process outlined in Article 13 of the SCM Agreement.  Could
Brazil indicate how it might, for example, adopt or modify Article 13 to make it applicable to the
conduct of reviews carried out under Article 21?  Could Brazil also indicate whether the right of
consultation should be available to all "interested parties" or just to Members as provided for in
Article 13 of the Agreement?
5. Brazil is proposing that the provisions of Article 19.3 in respect of expedited reviews require
more details.  Could Brazil delineate the current deficiencies with this provision and indicate what
additional details would be required.
6. India is suggesting that a review should be undertaken regarding the need for the continued
imposition of countervailing duties when an interested party submits positive information regarding
procedural mistakes or a manifest error of appreciation committed by the investigating authorities.
Could India address the following questions:
(a) In such a situation, would the purpose of the review be to amend the determination
that was affected by these errors or only to review whether the continued impositionof the duty is necessary (assuming the determination is still based on these alleged
errors)?
(b) This proposal appears to presuppose that the administering authorities have been
unwilling for some reason to remedy the alleged errors.  As such, this would appearto represent a dispute between the investig ating authority and the parties involved in
the investigation.  Accordingly, is a review under Article 21 the appropriate
mechanism by which to resolve such disputes or would a more appropriate remedy be
available to the aggrieved party pursuant to judicial review provided by Members
under Article 23 or the dispute settlement process provided for under Article 30 of theSCM Agreement?
(c) India is suggesting that Article 21.2 of the SCM Agreement be clarified so that
investigating authorities would be required to "automatically" adjust the
countervailing duty corresponding to the subsidy margins for any subsidy schemeswhich have been withdrawn by the government of the exporting country.  Could India
address the following questions in this regard:G/SCM/W/498
Page 3
(d) Are we correct in assuming that investigat ing authorities would have the right to first
investigate whether the subsidy scheme in question has been withdrawn and that it
has not otherwise been reformulated or reintroduced under the provisions of another
programme?
(e) In some cases, even though a subsidy scheme may have been withdrawn, there is a
continuing benefit stream to producers and exporters arising out of previously-
bestowed subsidies.  This would typically occur in cases where the subsidy has been
amortized over time.  Could India confirm that this benefit stream would still
constitute a countervailable subsidy even though the programme has been
withdrawn?
Topic 5 - Definition of Domestic Industry and Injury Analysis
1. Could India expand on its suggestion that “major proportion of total domestic production”
be clarified.  Does this proposal only relate to its proposal clarifying that the industry should not bedefined as only those producers that supported the petition, or is India suggesting further
clarifications?
2. Is India proposing a list to give guidance to authorities in determining whether goods that
are not identical may still be “like products”?  If so, what other factors would India suggest as beingappropriate?
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