WORLD TRADE  
ORGANIZATION  TN/RL/W/147 
16 March 2004 
 (04-1146) 
Negotiating Group on Rules Original:   English 
  
 
REPLIES TO THE QUESTIONS FROM  
INDIA ON TN/RL/W/35 
 
Submission by the United States
 
 
 
 The following communication, dated 15 March 2004, is being circulated at the request of the Delegation of the United States.  
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  The United States thanks India for its questions and comments on TN/RL/W/35 regarding investigatory procedures under the Anti-Dumping a nd Subsidies Agreements.  India presented its 
questions and comments in TN/RL/W/80.  Adding to its oral response during the formal meetings of 
the Negotiating Group on Rules in May 2003, the Unite d States responds to these questions in writing 
to provide further clarity with respect to its prac tices.  The United States encourages other Members to 
share their experiences and ideas for implementi ng and improving investig atory procedures and 
procedural fairness rules at the national level.  
Access to All Information and Decision Memoranda 
  The United States’ paper suggests that Members sh ould maintain a public record that includes 
" all memoranda adopted or approved by the pertin ent authority that explain the factual or legal 
bases for its determination or provide pertinent findings and conclusions in support of that 
determination. "   India requested that the United States pr ovide clarification on the issue of providing 
public access to memoranda.  Specifically, India aske d that the United States elaborate on what is 
meant by "access to memoranda adopted" and what  is sought to be covered by "all memoranda 
adopted."     First, with respect to "access," the United St ates simply suggests in its paper that Members 
should maintain a public record where the public would have the ability to review all
, with no 
exceptions provided, non-confidential informatio n that has been submitted by parties to an 
investigation.  Second, the referenc e to "memoranda adopted" refers to any document in which the 
administering authority explains its determination,  including what information it used in making its 
determination.  In US practice, such a document takes the form of a decision memorandum issued by 
the decision maker or decision-making body.  For the Department of Commerce, the decision maker 
is normally the Assistant Secretary for Import Administration.  For all determinations, the Assistant 
Secretary issues a memorandum that explains the de termination and addresses the information used to 
make that determination.  Some interim decisions may also be recorded in a memorandum adopted by 
the Assistant Secretary.   For the International Trade Commission, each  Commissioner explains the factual and legal 
bases of his or her determination and the Commission formally approves a Staff Report containing 
information used in making its determination. TN/RL/W/147 
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 A non-confidential version of each of these docum ents is normally made available promptly 
in the agencies’ public records rooms and on their Internet websites.  Non-confidential versions of 
these documents for earlier proceedings are also main tained in the agencies’ public records rooms.  
This provides a high level of transparency in our system and promotes public accountability, 
consistency, and predictability.  We believe that all Members w ould benefit from such levels of 
transparency.  
Pre-verification Outlines 
 
 India raised some concerns with the United St ates’ suggestion that verification procedures be 
made clearer through the use of detailed verifica tion outlines.  In particular, India expressed concern 
that such outlines could be used as the basis for resorting to the use of  facts available.  India believes 
that a detailed outline should be used to make th e verification more clear and not for imposing more 
obligations on the exporter.  
 
 In fact, the United States agrees that verificati on outlines should help reduce the need to resort 
to the use of facts available.  Verification out lines inform investigated exporting companies and 
governments, in advance, what the importing Member  needs to review during verification.  This 
provides the exporter the opportunity to prepare proper ly for the verification, thus reducing likelihood 
of problematic or failed verifications.  The Unite d States’ experience shows that providing a detailed 
verification outline in advance of verification serve s to help exporters meet obligations currently 
mandated by the Agreements, not add new ones.   
APO System 
 
 On the topic of the sharing of confidential in formation, India has expressed several concerns 
and has asked a number of questions about the US system that provides for the protection and 
disclosure of confidential information.     The US system of granting interested parties access to confidential information is administered under the Administrative Protective Order (APO) system.  Under the APO system, 
specific procedures and safeguards have been estab lished that protect the confidential information 
from unauthorized disclosure while providing ac cess to that information to independent 
representatives of interested parties that need it in order to participate fully in an anti-dumping or 
countervailing duty proceeding.  The United States’  experience shows that such procedures are 
administrable.  To try and respond more specifically to some of India’s concer ns and questions on this 
topic, a further explanation of the US APO system may prove useful. 
  First, the APO systems used by the United States’ Department of Commerce and the International Trade Commission are unique to admi nistration of the trade remedy laws.  The 
procedures Commerce and the ITC follow for gran ting access to confidential information have 
evolved over time and have been tailored specifically  to meet the needs and requirements of the US 
legal system.  These procedures are spelled out in  detail in regulations; therefore, the rights and 
obligations of all interested parties are clear a nd known to all.  Moreover, having such procedures 
codified in regulations provides transparency to  the system and helps make the system easy to 
administer.    
 In addition, the regulations provide means to  enforce obligations by providing a series of 
penalties to those who violate their obligations; how ever, considering the large amount of confidential 
information gathered under trade remedy proceedings, su ch violations have been relatively infrequent.  
This provides safeguards to protect the confidentiality of the information, while still ensuring the full 
participation of interested parties by permitting their appropriate representatives access to the  TN/RL/W/147 
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 information.  The United States believes, based on its own experience, that all Members should be 
able to develop and implement procedures to perm it access to confidential information while ensuring 
that the information is protected and not disclosed inappropriately.  It is important to note that such procedures would obviously have to be tailored to the administrative and legal systems of each 
Member. 
 
Conclusion 
 
 As elaborated more extensively in our investig atory procedures paper, procedural fairness is 
central to the "rule of law" in the legal and admini strative systems of civil societies.  This ensures a 
fair and open decision-making process that benefits and contributes to the effective participation by 
all WTO Members, developed and de veloping alike, while maintaini ng the strength and effectiveness 
of the instruments.  The United States appreciates India’s interest in these topics and looks forward to 
discussing these topics further with all Members to help fulfil the Ministers’ mandate.  
 
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