./.RESTRICTEDWORLD TRADE
ORGANIZATIONG/ADP/Q1/USA/16
G/SCM/Q1/USA/16
12 October 1999
(99-4282)
Committee on Anti-Dumping Practices
Committee on Subsidies and Countervailing MeasuresOriginal:  English
NOTIFICATION OF LAWS AND REGULATIONS UNDER
ARTICLES 18.5 AND 32.6 OF THE AGREEMENTS
Questions  from JAPAN
Regarding the Notification of the UNITED STATES1
The following communication, dated 8 October 1999, has been received from the Permanent
Mission of Japan
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1. "Policy bulletin"
The Commerce Department published "Policy Bulletin 98:3" which states policies regarding
sunset reviews in the Federal Register on 16 April 1998.
We recognize that the "Policy Bulletin 98:3" is a complement to the Commerce Department
sunset reviews regulation and should be discussed at review of notifications of legislation or
regulations under Article 18.5 of the Agreement.
Could the United States explain why the "Policy Bulletin 98:3" has not been notified for
review among Members?
2. Section 351.218
Section 351.218 states that all interested parties including exporters may submit their
substantive response if the Notice of Intent to Participate is submitted by US industry not later than
15 days after the date of publication of the Federal Register.  The regulation forces exporters to
submit their substantive response before the DOC's determination of completeness and adequacy of
US industry's substantive response.
In this regard, Article 11.3 of the Anti-Dumping Agreement stipulates that "…, unless the
authorities determine, in a revi ew initiated before that date on their initiative or upon duly
substantiated request made by or on behalf of the domestic industry within a reasonable period of time
prior to that date, that the expiry of the duty woul d be likely to lead to continuation or recurrence of
dumping and injury.".
Japan would like to clarify the US implementation of sunset review based on this provision.
                                                     
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The Commerce Department explains that the initiation of sunset reviews is automatic.  At the
time of publication of the Federal Register, does the Commerce Department possess evidence which
demonstrates that dumping would continue or recur if the order is revoked?
Does the Commerce Department consider the publication of the Federal Register as the
initiation of a review "on their own initiative" in the meaning of Article 11.3 of the Anti-Dumping
Agreement?
If no, i.e. in case the Commerce Department does not initiate the reviews on its initiative,
(i) when is each review "initiated" in the meaning of Article 11.3?
(ii) according to the Commerce Department regulation, how does the Commerce Department
obtain "duly substantiated request", which is required by the Agreement when the domestic
industry makes a request of sunset reviews by the time of the initiation?
If the Commerce Department considers the Notice or intent to Participate as a "duly substantiated
request", it seems to be inconsistent with Article 11.3, because there is no provision in the Commerce
Department regulation which requires the Notice of Intent to Participate to be "duly substantiated".
3. Section 351.222(i)(1)(ii)
DOC's sunset regulations provide, at section 351.222(i)(1)(ii), that an order shall be revoked
if DOC determines that "revocation … is not likely to lead to continuation or recurrence of …
dumping …".
In contrast, Article 11.3 stipulates "any definitive anti-dumping duty shall be terminated on a
date not later than five years from its imposition …, unless the authorities determine … that the expiry
of the duty would be likely to lead to continuation or recurrence of dumping and injury.".  That means
an order shall be continued only if the authoritie s determine "that the expiry of the duty would be
likely to lead to continuation or recurrence of dumping …".
Thus, if domestic industry fails to demonstrate the necessity of continuation of an order, the
order should be revoked pursuant to Article 11.3.  However, the DOC's sunset regulation has reversedthis standard by allowing revocation only if enough evidence demonstrates that dumping would not
occur in case of revocation of the order.  In other words, if exporters fail to demonstrate that an order
is unnecessary, the order would be continued under DOC's regulation.
In the light of these concerns, please explain the consistency of Section 351.222(i)(1)(ii) with
Article 11.3.  In addition, please address the issue in view of WTO Panel Report, United States –
Anti-Dumping Duty on Dynamic Random Access Memory Semiconductors (DRAMs) of One
Megabit or Above from Korea, WT/DS99/R, at 6.43-6.68 (4 December 1998).  The Panel found, in
constructing directly analogous provisions of Article 11.2, that "a failure to find that an event is "not
likely" is not equivalent to finding that the event is "likely" …" Id. at 6.53.  It concluded that the DOCregulation at issue was not consistent with the Anti-Dumping Agreement, and made similar
observations concerning Article 11.3 a nd sunset reviews.  Id. at 6.48 n. 494.
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