RESTRICTEDWORLD TRADE
ORGANIZATIONG/ADP/AHG/W/61
21 October 1998
(98-4097)
Committee on Anti-Dumping Practices
Ad Hoc Group on ImplementationOriginal:  English
TOPIC 1* - ARTICLE 6.5:  TREATMEN T OF CONFIDENTI AL INFORMATION
TOPIC 5* - ARTICLE 5.5:  NOTIFICAT ION TO THE EXPO RTING MEMBERS
TOPIC 8* - ARTICLE 12:  PUBLIC NOTICES
TOPIC 9* - CONTENTS OF PRELIMINARY AFFIRMATIVE DETERMINATIONS
Paper by the United States
The following communication, dated 19 October 1998, has been received from the Permanent
Mission of the United States.
_______________
Topic 1 - Article 6.5:  Treatment of Confidential Information
The United States has previously submitted three papers on the treatment of confidential
information:  G/ADP/AHG/W/3 (21 March 1997); G/ADP/AHG/W/26 (13 October 1997); and
G/ADP/AHG/W/41 (16 April 1998).  The United States submitted information regarding what it
considers to be “confidential by nature” in its previous papers and now responds to the  Secretariat’s
invitation to answer the additional questions c ontained in document WTO/ AIR/900 (12 August 1998).
The Commerce Department (the Department) and the United States International Trade
Commission (the Commission) have statutory authority  to release confidential or business proprietary
information (BPI) submitted by parties during the course of an anti-dumping proceeding.  The statute
authorizes both the Department and the Commission to release BPI to representatives of interested
parties pursuant to an Administrative Protective Order (APO), which governs how BPI is to beprotected and used.  The Department and the Co mmission issue and administer APOs independently
in accordance with detailed regulations.
1
How Should Confidential Information Be Submitted To The Investigating Authorities?
Persons submitting BPI to both the Department and the Commission must indicate on the
front of the proprietary document that it contains protected information and list on the front of the
document those pages on which that information is contained.2  Each page containing BPI within the
document must also be marked (usually with a bl ack or red stamp) which reads, “contains business
proprietary information”, or “business proprietary treatment requested”.  Protected information withinthe document must be contained within brackets, such as [       ].   Information which a party seeks to
exempt from disclosure under an APO before the Department (e.g ., customer names in an
                                                     
*See document G/ADP/W/401 for description of the topics.
1 The Department's regulations are set forth at 19 C.F.R.351.105 and 351.303-306.  The Commission's
regulations are set forth at 19 C.F.R.207.7.
2 The marking requirements are contained in 19 C.F.R. §351.303.G/ADP/AHG/W/61
Page 2
investigation) must be enclosed in double brackets , such as [[        ]], and information which a
submitter seeks to exempt from disclosure under an APO before the Commission  must be enclosed in
triple brackets, such as [[[    ]]].
How Should The Non-Confidential Version Of  The Confidential Information Be Submitted?
Public versions of business proprietary documents submitted to the Department or the
Commission are required by section 777(b)(1)(B) of  the statute and Article 6.5.1 of the Agreement on
Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (Anti-Dumping
Agreement).  The public version must contain a summary of the bracketed information in sufficient
detail to permit a reasonable understanding of the substance of the information submitted in
confidence.3  The public version must be filed no later than one business day after the due date of the
business proprietary version of the document.  This practice is known as the “one-day lag” rule by the
Department and the “24-hour rule” by the Commission.   In public versions of documents filed with
the Commission, parties simply redact (delete from the brackets) any BPI.  In public versions of
documents filed with the Department, parties may choose either to range or index business proprietary
numerical data.  If parties choose to range numerical data, the figures provided must be within a rangeof 10 per cent of the actual number.  Where the number is so small that a range of 10 per cent would
be impractical, a range of 20 per cent may be used upon receipt of approval by the Department.
Voluminous data, such as computer printouts, may be summarized by ranging at least 1 per cent of the
data included.  A party must be consistent in its use of ranged or indexed data.
What Are The Criteria Applied By The Investigation Authorities In Deciding Whether To Accept Or
Reject A Request For Confidentiality?
A  person submitting proprietary information must identify the information for which it
claims business proprietary treatment in brackets and must provide with the information anexplanation of why each item of bracketed information is entitled to business proprietary treatment.
The authority’s determination of whether to accept a request for proprietary treatment turns on
whether the bracketed information is BPI (or, what the Commission refers to as confidential business
information), meaning information the disclosure of which the Department or Commission has
decided is limited under its regulations.
4
The Department will grant a request for proprietary treatment if the information covered by
the request satisfies the Department’s definition of “business proprietary information”.  The
Department generally considers the following factual information to be BPI, 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 ofdistribution);  (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 suppliers
5;
(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
                                                     
3 Under Section 777(b)(1)(B)(II) of the Tariff Act of 1930, as amended, if the information cannot be
summarized, the submission must be accompanied by a statement that the information is not susceptible to
summary and a statement of the reasons in support of that contention.
4 See 19 C.F.R.351.105(c) and 19 C.F.R.201.6(a)(1).
5 But 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.
   G/ADP/AHG/W/61
Page 3
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".6
Similarly, the Commission will grant a request for proprietary or confidential treatment if the
information covered by the request satisfies its definition of  “confidential business information”.  TheCommission defines “confidential business information” as “information 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, partnership, 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, unless
the Commission is required by law to disclose such information".
7
If the Department or the Commission determines that the designation of any information as
business proprietary or confidential is unwarranted, it will notify the person who submitted it and askfor a more detailed explanation of the reasons for the designation.  If the Department or the
Commission ultimately finds that the designation is unwarranted, and the submitter declines to
withdraw its designation of the information submitte d,  the agency denying the request must return the
information to the submitter.
8
The Department may exempt certain information from disclosure under APO if such
information is deemed to be privileged (e.g., protected by the attorney-client privilege or submitted by
a government informant) or classified (relating to US national security or military secrets).9
Moreover, in some extraordinary circumstances, BPI may also be withheld from disclosure under
APO based on a determination by the Department that there is a clear and compelling need towithhold such information.
The Commission will also exempt information from disclosure under APO if the submitter
requests such exemption and establishes that the information in question is “nondisclosable
confidential business information,” which encompasses “privileged information, classified
information, or specific information (e.g. trade secrets) of a type for which there is a clear and
compelling need to withhold from disclosure".
10
How Is The Confidential Information Handled By The Authority?
The Department and the Commission each maintain one office that is responsible for the
entire APO process in all anti-dumping proceedings.  The Department or Commission APOs prohibit
a representative who acquires BPI subject to APO fr om disclosing that BPI to any person not subject
to the APO.  This means the representative may not reveal such BPI to officials of the interested partythat it represents.  The Department or the Commi ssion may also not disclose BPI to any person not
subject to the APO without the consent of the person who submitted it.  However, the agencies may
disclose BPI to an officer or employee of the Department or the Commission, respectively, who is
directly concerned with conducting the investigation or review in connection with which the
information is submitted, or officers or employees of the US Customs Service who are directlyinvolved in conducting a fraud investigation relating to an anti-dumping proceeding.
                                                     
6 See 19 C.F.R.351.105(c).
7 See 19 C.F.R.201.6(a)(1).
8 See 19 C.F.R.351.304(d);  Section 777(B)(2) of the Tariff Act of 1930, as amended.
9 See 19 C.F.R.351.105(d)-(e).
10 See 19 C.F.R.201.6(a)(2), 207.7(g).G/ADP/AHG/W/61
Page 4
The Department will release proprietary information to outside parties within the employ or
control of a representative who has acquired APO access to BPI, only if the employee or independent
contractor within the control of the representative presents identification including a picture and a
letter of identification from the firm of the interested party  authorizing the agency to release theproprietary information to that particular individual.  The Commission will release proprietary
information to outside parties within the employ or control of a representative who has acquired APO
access to BPI, only if the employee or independent contractor within the control of the representative
presents picture identification, and the firm of the interested party has previously submitted written
authorization permitting the Commission to release proprietary information to that particular
individual.
In The Event That A Member Provides Access To Confidential Information, How Should The
Confidential Information Be Accessed?
Only an authorized representative of an interested party (such as a US or foreign producer,
importer, exporter, US labour union, or foreign government) may access the BPI of another party.The representative is usually a lawyer, economist or trade specialist.  Representatives are typically
from private law or consulting firms; a representative who is involved in competitive decision-making
for an interested party is ineligible to obtain acces s to BPI under an APO.  The representative  files an
application with each agency from which it desires to obtain BPI, asking to receive all BPI filed with
that agency in a particular proceeding.  If the representative’s application is approved, the Departmentand/or Commission authorizes the representative to use the information only as authorized by the
APO, to adopt office procedures to prevent unauthorized disclosure of the information, and to report
to the agency any violation of the terms of the APO.
Interested parties are required to serve BPI they have submitted to the Department or the
Commission on representatives to other parties to the proceeding that are authorized by the
Department or the Commission to receive such information under APO.
Interested parties themselves are provided timely access to the non-proprietary public file of
each proceeding at both the Department and the Commission, permitting them to defend their interests
throughout the pendency of the actions.  The file contains all information presented by parties and any
reactions of the authorities to such information, either  in the form as written or in the form of a proper
public summary of the proprietary information.
Topic 5 - Article 5.5:  Notification to the Exporting Members
The United States previously submitted two papers on this topic in G/ADP/AHG/W/3
(21 March 1997) and G/ADP/AHG/W/41 (16 April 1998).  In those documents, the United States
provided information on how it implements Arti cle 5.5 of the Agreement on Implementation of
Article VI of the General Agreement on Tariffs and Trade 1994 (Anti-Dumping Agreement). This
paper responds to the Secretariat’s invitation in WTO/AIR/900 (12 August 1998) for information on(1) points of contact for Article  5.5 notifications, and (2) content of Article 5.5 notifications.
1. Points of Contact
In the case of the United States, notifications under Article 5.5 normally are transmitted to the
Embassy of the United States in the investigating country.  The Office of the US Trade Representative
and the US Department of Commerce monitor anti-dumping investigations initiated by other countries
on imports of merchandise from the United States.  It would be useful if a copy of Article 5.5
notifications could be sent to the following points of contact in the United States Government:G/ADP/AHG/W/61
Page 5
Audrey Winter Jeffrey A. May
Associate General Counsel Director, Office of Policy
Office of the US Trade Representative Import Administration
Room 223 US Department of Commerce, Room #3713600 17th Street, N.W. 14th Street and Constitution Avenue, N.W.
Washington, D.C.  20508 Washington, D.C. 20230
2. Contents of a Notification
On the question of the appropriate content of Article 5.5 notifications, the names, addresses
and phone numbers (if available) of exporters or producers who might be the object of an
investigation should be included in the notification to the extent these are known to the authorities.
Topic 8 – Article 12:  Public Notices
In WTO/AIR/900 (12 August 1998), Members were invited to submit their relevant Internet
addresses to the Secretariat, along with informa tion concerning how their public notices are issued,
and the contents of the various public notices issued at different points of the investigative process.
Internet Addresses
The relevant Internet address of Import Administration, the authority within the US
Department of Commerce (Department) which determines whether sales of allegedly dumped imports
have been made at less than fair value, is as follows:
http://www.ita.doc.gov/import_admin/records/
The relevant Internet address of the US  International Trade Commission (Commission),
which determines whether a domestic industry in the United States is materially injured,  threatened
with material injury, or the establishment of a domestic industry is materially retarded by reason of
dumped imports, is as follows:
http://www.usitc.gov/
Common Practices Regarding Article 12 Public Notices
Public notices issued by both the Departme nt and the Commission are published in the
Federal Register of the United States, normally within approximately seven days of issuance.   The
Federal Register, which is the official daily publication containing rules, proposed rules, and notices
of US Government agencies and organizations, may be accessed on the Internet at
http://www.access.gpo.gov/su_docs/aces/aces140.html.  Notices issued by the Department or the
Commission may also be accessed at their respective Internet sites, provided above.
The Department and the Commission both issue public notices of the initiation or institution
of their respective investigations.11  (The Commission issues notices instituting both the preliminary
and final phases of its investigations, respectively, while the Department issues one notice initiating
its anti-dumping investigation in its entirety.)  Both agencies also issue public notices of their
                                                     
11 19 C.F.R.351.203(c);  19 C.F.R.207.12.  (The Department also issues and publishes in the Federal
Register notices of the initiations of its administrative reviews and the preliminary and final results of those
reviews.)G/ADP/AHG/W/61
Page 6
respective preliminary and final determinations (and amendments or postponements thereof).  Each
public notice of a relevant determination sets forth, or, in the case of the Commission’s preliminary
and final determinations, otherwise makes available in a separate report, in sufficient detail, the
findings and conclusions reached on all issues of fact and law that are considered material by the
agencies.
The US Department of Commerce
Notices of Initiation
As mentioned above, the Department publishes notices initiating its investigations in the
Federal Register.12  Consistent with Article 12.1.1 of the Agreement on Implementation of Article VI
of the GATT 1994 (Anti-Dumping Agreement), the Department’s notice of initiation includes the
name(s) of the exporting country or countries and the product involved; the date of initiation of its
investigation; the basis on which dumping is alleged in the application; a summary of the factors on
which the allegation of injury is based; the Department’s address, to which representations by
interested parties should be directed; and the time  limits for comment by in terested parties.  The
published initiation notices also contain a description of the scope of the investigation(s); a
description of the Department's findings conc erning industry support for the petition; and a
description of the initiation of a concurrent cost in vestigation (if necessary).  They also reference the
Department’s notification of the initiation to the Commission.13
If a petition is deemed insufficient, and the Department’s decision to initiate an investigation
is negative, a notice to that effect will also be published in the  Federal Register.14
Preliminary Determinations
The Department’s regulations require that it publish in the Federal Register public notice of
any affirmative or negative preliminary anti-dumping determination, including applicable anti-
dumping duty rates, if any, along with an invitation for argument (both written - in the form of case or
rebuttal briefs - and oral in the form of hearings).15  The argument is taken into consideration by the
Department in making its final determination.  Consistent with Article 12.2.1 of the Anti-Dumping
Agreement, the Department’s notices of preliminary determinations provide sufficiently detailed
explanations of the Department’s determination on dumping and refer to the matters of fact and lawthat have led to the Department’s decisions.
16  The preliminary determination may also include a
preliminary finding concerning critical circumstances, if appropriate.17
The Department’s notices of preliminary determinations reference applicable statutes and
regulations, and they provide a summary history of the proceeding.  They provide a definition of thescope of the  investigation and the relevant period of investigation.  Consistent with Article 12.2.1,
they provide the names of the exporters and/or producers of the subject merchandise and the exporting
nations involved; a description of the product under investigation identified by tariff numbers
sufficient for customs purposes; preliminary margins of dumping; a full explanation of the reasons for
the methodology used in the establishment and comparison of  the export price and the normal valueunder Article 2 of the Anti-Dumping Agreement; and the main reasons leading to the determinations.
                                                     
12 See 19 C.F.R.351.203(c).
13 Section 732(d) of the Tariff Act of 1930, as amended.
14 See 19 C.F.R.351.203(d).
15 See 19 C.F.R.351.205.
16 Section 777(i) of the Tariff Act of 1930, as amended.
17 See 19 C.F.R.351.205(c) (critical circumstances may be alleged in certain situations involving
massive imports of the subject merchandise over a relatively short period).G/ADP/AHG/W/61
Page 7
The notice will also state that the Department either has conducted a verification or will verify the
information utilized by the Department in its final determination.
In affirmative preliminary determination notices, the Department determines an estimated
weighted-average dumping margin for each exporter and producer individually investigated, and anestimated all-others rate for all exporters and producers not individually investigated.  The
Department also orders the posting of a cash deposit, bond, or other security, as it deems appropriate,
for each entry of the subject merchandise in an amount based on the estimated weighted-average
dumping margin or the estimated all-others rate, whichever is applicable.  In addition, in an
affirmative preliminary determination, the Department orders the suspension of liquidation of all
entries of merchandise subject to the determination which are entered or withdrawn from warehouse
on or after the later of the date on which notice of the determination is published in the Federal
Register, or the date that is 60 days after the date on which notice of the determination to initiate the
investigation is published in the Federal Register.18
The preliminary determination may be postponed for up to 190 days from initiation if the
petitioner makes a timely request for an extension, or if the Department concludes that the partiesconcerned are cooperating but the case is extraordinarily complicated by reason of (1) the number and
complexity of the transactions to be investigated or adjustments to be considered; (2) the novelty of
the issues presented; or (3) the number of firms whose activities must be investigated.  If the
Department decides to postpone the preliminary determination based on its own initiative or upon the
request of the petitioner, it must notify parties to the investigation and publish notice of thepostponement in the Federal Register.
19
Final Determinations
The Department also publishes in the Federal Register notices of affirmative or negative final
anti-dumping determinations.20  Affirmative notices contain all relevant information on matters of fact
and law; the reasons which have led to the imposition of final measures; and the reasons that led to
decisions by the acceptance or rejection of rele vant arguments considered by the Department,
consistent with Article 12.2.2.
The Department's notice of its final determination, if affirmative, again includes the
Department's determination of an estimated weighted-average dumping margin for each exporter andproducer individually investigated, and an estimated all-others rate for all exporters and producers not
individually investigated.
21  The Department, in its notice of final determination, will again order the
posting of a cash deposit, bond, or other security, as it deems appropriate, for each entry of the subject
merchandise in an amount based on the estimated weighted-average dumping margin or the estimated
all-others rate, whichever is applicable.
In cases where the Department’s preliminary determination is negative but the final
determination is affirmative, the Department, in its notice of final determination, will order the
suspension of liquidation consistent with its practice with regard to an affirmative  preliminary
determination made under Section 733(d) of the statute.22  The final affirmative determination may
also include a finding concerning critical circumstances, if appropriate.23
                                                     
18 Section 773(d) of the Tariff Act of 1930, as amended.
19 Section 733(c) of the Tariff Act of 1930, as amended.
20 Section 735(d) of the Tariff Act of 1930, as amended.
21 Section 735(c)(1) of the Tariff Act of 1930, as amended.
22 Section 735(c)(1)(C) of the Tariff Act 1930, as amended.
23 Section 735(a)(3) of the Tariff Act of 1930, as am ended, (critical circumstances may be alleged in
certain situations involving massive imports of the subject merchandise over a relatively short period).G/ADP/AHG/W/61
Page 8
If the Department’s final determination is negative, the Department will terminate any
suspension of liquidation which was imposed pursuant to an affirmative preliminary determination,
and it will release any bond or other security, or refund any cash deposits, that were required with
respect to entries of the merchandise on which liquidation was suspended as a result of the affirmative
preliminary determination.24  The Department will also publish notice of its final negative
determination in the Federal Register.25
If the Department decides to postpone the final determination, it will publish notice of the
postponement in the Federal Register, along with the reasons for the postponement.26  Where a
proposed suspension agreement is submitted in an anti-dumping investigation, an investigation may
be postponed upon the request of an exporter, producer (or the government, in the case of an
investigation involving a non-market economy country).  If the Department subsequently decides to
accept an agreement to suspend an investigation, it will publish notice of the suspension in the Federal
Register, along with the text of the agreement, consistent with Article 12.2.3.27
The Department may terminate an investigation it has initiated at any time, after providing
notice to all parties to the investigation.  If the investigation is terminated, the Department will publish
notice of the termination in the Federal Register.28
Imposition of Final Measures (Order)
The Department publishes an anti-dumping duty order in the Federal Register within seven
days of being notified by the Commission of an affirmative determination of injury.  The order directs
customs officers to assess an anti-dumping duty upon further advice by the Department regarding theassessment amount; includes a description of the subject merchandise in such detail as the Department
finds necessary; and requires the deposit of estimated anti-dumping duties pending liquidation of
entries of merchandise at the same time as estimated normal customs duties on the merchandise are
deposited.
29
Related Notices For The Correction of Ministerial Errors
If necessary, the Department will publish in the Federal Register corrections of ministerial
errors found in a preliminary or final determination, in the preliminary or final results of an
administrative review, or in the notice of the anti-dumping duty order.30
The US International Trade Commission
Notice of Institution of Preliminary Phase Investigations
The Commission also publishes notice of the institution of its preliminary investigations in
the Federal Register.31  Consistent with Article 12.1.1 of the Anti-Dumping Agreement, the
Commission's notice instituting and scheduling its preliminary phase investigation includes the nameof the exporting country or countries and the product involved; the date of institution of the
investigation; the basis on which dumping is alleged in the application; a summary of the factors on
                                                     
24 Section 735(c)(3) of the Tariff Act of 1930, as amended.
25 Section 735(d) of the Tariff Act of 1930, as amended.
26 See 19 C.F.R.351.210(g);  Section 735(a)(2) of the Tariff Act of 1930, as amended.
27 See 19 C.F.R.351.208(g)(2).
28 See 19 C.F.R.351.207;  Section 734(k) of the Tariff Act of 1930, as amended.
29 Section 736 of the Tariff Act of 1930, as amended.
30 See 19 C.F.R.351.224(e).
31 See 19 C.F.R.207.12.G/ADP/AHG/W/61
Page 9
which the allegation of injury is based; the Commission’s address, to which representations by
interested parties should be directed; and the time limits for comment and participation in a staff
conference by interested parties.
Preliminary Determinations
The Commission makes a preliminary determination of injury within 45 days of the filing of
an anti-dumping duty petition with both the Commission and the Department. The Commission, based
on information available to it at the time, determines whether there is a reasonable indication that an
industry in the United States is materially injure d, threatened with material injury or materially
retarded by reason of imports of the allegedly dumped merchandise.32
Prior to the Commission’s preliminary determination, the Commission’s Director of
Operations will submit to the full Commission a staff report.33  Once the preliminary determination is
made, copies of the preliminary determination and a public version of the staff report are served by
the Commission on the petitioner, other parties to  the investigation, and the Department.  The
Commission also publishes notice of its determination in the Federal Register.34   The contents of the
Commission's notice, published in the Federal Register or provided in the separate report, include the
main reasons leading to its determination.  The notice contains a definition of the domestic industryproducing the relevant like product (described in a manner sufficient for customs purposes); the
names of the producing or exporting countries involved; preliminary findings on the conditions of
competition in the domestic industry, including the volume and/or price effects of the allegedlydumped imports; and the impact of the allegedly dumped imports on domestic producers of the
domestic like product(s).
35 The Commission, if applicable, also references in its preliminary
determination its cumulation of imports from all countries subject to investigation, so long as the
imports compete with each other and with the domestic like product.36
In assessing whether there is a reasonable indication that the domestic industry is materially
injured by reason of allegedly dumped imports, the Commission in its preliminary determination
notice, or in a separate report, will describe its consideration of all relevant economic factors that it
has found bear on the state of the industry in the United States.  The factors can include, among
others, output, sales, inventories capacity utilization, market share, employment, wages, productivity,
profits, cash flow, return on investment, the abil ity to raise capital, and research and development.37
In its preliminary determination, the Commission also explains its analysis of each of these
relevant factors and identifies any other factors which it has determined are relevant to the
determination.38  In the absence of evidence of material injury, the Commission will describe evidence
leading to a preliminary finding of threat of injury, or of material retardation of the establishment of
an industry.  In any preliminary determination, the Commission will also provide preliminary
evidence demonstrating whether there is a clear causal link between dumped imports and material
injury.
                                                     
32 Section 733(a)(1) of the Tariff Act of 1930, as amended.
33 See 19 C.F.R.207.17.
34 See 19 C.F.R.207.18.
35 Section 771(7)(B)(i) of the Tariff Act of 1930, as amended.
36Section 771(7)(G)(i) of the Tariff Act of 1930, as amended.
37 Section 771(7)(C)(iii) of the Tariff Act of 1930, as amended.
38 Section 771(7)(B)(ii) of the Tariff Act of 1930, as amended.G/ADP/AHG/W/61
Page 10
Final Phase Notice of Scheduling
Upon receipt of the Department's notice of a preliminary determination (affirmative or
negative), the Commission publishes in the Federal Register a public notice scheduling the final phase
of its investigation.39   The Commission holds a hearing during its final phase investigation and, prior
to the hearing, a non-public prehearing staff report, which may  contain proprietary information on the
subject matter of the investigation, is prepared a nd placed in the record of the proceeding. (A public
version of the prehearing staff report is also placed in the public record.)40  After the hearing, the
prehearing staff report is revised and submitted as a final staff report for the consideration of the
Commission in making its final determination.  The final report is intended to supplement and correct
the information contained in the preliminary staff report.  A public version of the final staff report is
also made available to the public.41
Final Determination
The Commission makes a final determination as to whether an industry in the United States is
materially injured, threatened with material inju ry, or the establishment of an industry in the
United States is materially retarded by reasons of allegedly dumped imports.42  If the Commission
determines that imports of the subject merchandis e are negligible, the investigation is terminated.43  If
the final determination of the Commission is that there is no material injury but there is threat of
material injury, its final determination will include a finding as to whether material injury by reason of
the subject imports found by the Department to be dumped would have been found but for anysuspension of liquidation of the merchandise.
44  Once the Commission has made a final determination,
it publishes public notice of the determination in the Federal Register,45 and copies of the
determination and non-business proprietary versions of the final staff report are served on thepetitioner, other parties to the investigations, and the Department.  In this manner, the Commission's
public notice of its final determination sets forth, or otherwise makes available in a separate report, allrelevant information on matters of fact and law and the reasons that led to the acceptance or rejection
of relevant arguments considered by the Commission consistent with Article 12.2.2.
An anti-dumping investigation may be terminated by the Commission at any time by its
providing notice to all parties to the investigation in the Federal Register..
46 In addition, upon receipt
of notice of suspension of an investigation by th e Department, the Commission will issue a notice of
suspension of the Commission’s investigation.47
Topic 9 – Contents of Preliminary Affirmative Determinations
The US International Trade Commission (the Comm ission) and the US Depa rtment of Commerce (the
Department) each issue notices of their respective preliminary determinations in accordance with
Articles 7 and 12 of the Anti-Dumping Agreement.48 Each notice sets forth, or otherwise makes
                                                     
39 19 C.F.R.207.21(b).
40 19 C.F.R.207.22(a).
41 19 C.F.R.207.22(b).
42 Section 735(b)(1) of the Tariff Act of 1930, as amended.
43 Section 735(b)(1)(B) of the Tariff Act of 1930, as amended.
44 Section 735(b)(4)(B) of the Tariff Act of 1930, as amended.
45 See 19 C.F.R.207.29;  Section 735(d) of the Tariff Act of 1930, as amended.
46 See 19 C.F.R.207.40(a).
47 See 19 C.F.R.207.40(b).
48 The notices also include considerations relevant to injury determinations, as set out in the Anti-
Dumping Agreement at Article 3 and referenced by Article 12.2.1(iv).G/ADP/AHG/W/61
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available in a separate report, in sufficient detail , the preliminary findings and conclusions reached on
all issues of fact and law that are considered material by the respective authorities.
The Commission
The Commission makes a preliminary determination of injury within 45 days of the filing of
an anti-dumping duty petition with both the Commission and the Department.  The Commission,
based on information available to it at the time, determines whether there is a reasonable indication
that an industry in the United States is materia lly injured, threatened with material injury, or the
establishment of an industry is materially retarded by reason of imports allegedly sold at less than fair
value.49  If the Commission makes a preliminary affirmative finding of injury, it must also find that
the injurious imports are not negligible; if the impor ts are determined to be negligible, or if the
Commission otherwise makes a negative preliminary determination of injury, the investigation is
terminated.50
The contents of a preliminary affirmative dete rmination issued by the Commission  include a
description of the product under investigation sufficient for customs purposes; the names of theexporting nations involved; and the main reasons leading to the determination.  Considerations
relevant to the injury determination as set out in Article 3 of the Anti-Dumping Agreement are
included in the determination, along with a definition of the domestic industry producing the relevant
like product; preliminary findings on the conditions of competition in the domestic industry, including
the volume and/or price effects of the allegedly dumped imports; and the impact of the allegedlydumped imports on domestic producers of the domestic like product(s).
51 The Commission, if
applicable, will also reference in its preliminary affirmative determination its cumulation of imports
from all countries subject to investigation, so long as the imports compete with each other and with
the domestic like product.52
In assessing whether there is a reasonable indication that the domestic industry is materially
injured by reason of allegedly dumped imports, the Commission in its preliminary affirmative
determination will describe its consideration of all relevant economic factors that it has found bear on
the state of the industry in the United States.  The factors can include, among others, output, sales,
inventories capacity utilization, market share, em ployment, wages, productivity, profits, cash flow,
return on investment, the ability to raise capital, and research and development.53
In its preliminary affirmative determination, the Commission explains its analysis of each of
these relevant factors and identifies any other factors which it has determined are relevant to the
determination.54  In the absence of evidence of material injury, the Commission will describe evidence
leading to a preliminary finding of threat of injury, or of material retardation of the establishment of
an industry.  In any preliminary affirmative determination, the Commission will also provide
preliminary evidence demonstrating a clear causal link between dumped imports and material injury.
                                                     
49 Section 733(a)(1) of the Tariff Act of 1930, as amended.  (If the Department extends the time in
order to determine support for the petition, the preliminary determination of the Commission is due within
25 days after the date on which the Commission receives notice from the Department of initiation of theinvestigation, pursuant to Section 733(a)(2)(A)(ii) of the Tariff Act of 1930, as amended.)
50 Section 733(a)(1)(B) of the Tariff Act of 1930, as amended.
51 Section 771(7)(B)(i) of the Tariff Act of 1930, as amended.
52 Section 771(7)(G)(i) of the Tariff Act of 1930, as amended.
53 Section 771(7)(C)(iii) of the Tariff Act of 1930, as amended.
54 Section 771(7)(B)(ii) of the Tariff Act of 1930, as amended.G/ADP/AHG/W/61
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Prior to the Commission’s preliminary determination, the Commission’s Director of
Operations will submit to the full Commission a staff report.55  Once the preliminary determination is
made, copies of the preliminary determination and a public version of the staff report are served by
the Commission on the petitioner, other parties to the investigation, and the Department.  The
Commission will also publish notice of its determination in the Federal Register.56  I f  t h e
Commission’s preliminary determination of injury is affirmative, the next stage of the investigation
takes place before the Department, which  subsequently issues its preliminary determination of
whether sales of the subject merchandise are being sold at less than fair value in the United States.
The Department
The Department normally makes its preliminary determination of whether there is a
reasonable basis to believe or suspect that merchandise is being sold, or is likely to be sold, at less
than fair value, within 140 days of the date of initiation of the anti-dumping duty investigation.57
Consistent with Article 12 of the Anti-Dumping Agreement,  a preliminary affirmative determinationby the Department is published in a public notice in the Federal Register and provides a sufficiently
detailed explanation for the determination on dumping and refers to the matters of fact and law that
led to decisions by the Department. [Audrey:  12.2.1 language, with a slight modification by
Mike Rill.]  The preliminary affirmative determ ination may also include a preliminary finding
concerning critical circumstances, if appropriate.
The Department’s notices of preliminary affirmative determinations reference applicable
statutes and regulations, and they provide a su mmary history of the proceeding (not including
confidential information).  They provide a definition of the scope of the investigation and the relevant
period of investigation.  Consistent with Article 12.2.1, they also contain the names of the exporters
and/or producers of the subject merchandise and the exporting nations involved; a description of the
product under investigation identified by tariff numbers sufficient for customs purposes; preliminarymargins of dumping; a full explanation of the reasons for the methodology used in the establishment
and comparison of  the export price and the normal value under Article 2 of the Anti-Dumping
Agreement; the main reasons leading to the determin ations; and notice that the Department either has
conducted a verification or will verify the information utilized by the Department in its final
determination.  The preliminary determination also contains an invitation for argument (both written -
in the form of case or rebuttal briefs - and oral in the form of hearings).  The argument is taken into
consideration by the Department in making its final determination.
A preliminary affirmative determination by the Department, which occurs subsequent to the
Commission's preliminary affirmative determination of injury, results in the Department's finding an
estimated weighted-average dumping margin for each exporter and producer individually
investigated, and an estimated all-others rate for all exporters and producers not individuallyinvestigated.  Consistent with Article 7 of the Anti-Dumping Agreement, the Department in its
preliminary affirmative determination orders the posting of a cash deposit, bond, or other security, for
each entry of the subject merchandise in an amount based on the estimated weighted-average
dumping margin or the estimated all-others rate, whichever is applicable.  (The security provided
cannot be greater than the provisionally estimated margin of dumping.)   In its preliminary affirmativedetermination, the Department also orders the suspension of liquidation of all entries of merchandise
subject to the determination that are entered for co nsumption on or after the later of the date on which
                                                     
55 See 19 C.F.R.207.17.
56 See 19 C.F.R.207.18.
57 Section 733(b)(1) of the Tariff Act of 1930, as amended.  (However, under section 733(c), the
preliminary determination may be postponed for up to 190 days from initiation if the petitioner makes a timely
request for an extension, or the Department concludes that the parties concerned are cooperating and the case is
extraordinarily complicated.G/ADP/AHG/W/61
Page 13
notice of the determination is published in the Federal Register, or the date that is 60 days after the
date on which notice of the determination to initiate the investigation is published in the Federal
Register.  At that time, the Department makes available to the Commission all information upon
which its preliminary affirmative determination was based, and which the Commission considers
relevant to its final injury determination (except for confidential or business proprietary informationsubject to protective order).
58
Under US law and the Anti-Dumping Agreement, no provisional measures can be  applied
prior to 60 days from the date of initiation of an investigation, and the requirements of the
Department's preliminary affirmative determination cannot be maintained for over four months,
except in response to a request from exporters representing a significant proportion of exports of the
subject merchandise.  In receipt of such a request, the Department may extend the period ofprovisional measures from four to six months.
59
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58 Section 773(d) of the Tariff Act of 1930, as amended.
59 Section 733(d)(3) of the Tariff Act of 1930, as amended.