WORLD TRADE  
ORGANIZATION   
G/ADP/Q1/IDN/15 
G/SCM/Q1/IDN/15 
4 October 2012 
 (12-5381) 
Committee on Anti-Dumping Practices  
Committee on Subsidies and Countervailing Measures Original:   English 
 
 
 
NOTIFICATION OF LAWS AND REGULATIONS UNDER  
ARTICLES 18.5 AND 32.6 OF THE AGREEMENTS  
 
Questions Posed by the United States Regarding  
the Notification of INDONESIA1 
   The following communication, dated 3 October 2012, is being circulated at the request of the 
Delegation of the United States. 
 
_______________ 
 
  The United States thanks Indonesia for its notif ication and poses the following questions with 
regard to Indonesia's notification of Government Regulation Number 34 of 2011, Chapter III:  
Countervailing Measure  (CVD Regulation). 
 
Question 1 
 
 Under Article 39, Item (6), of the CVD Regulation, KADI, Indonesia's competent authority 
for CVD investigations and determinations, "may disregard the confidential nature" of confidential 
data in documents submitted in the course of a CVD investigation "where there is no reasonable 
ground to treat the confidential da ta ... on a confidential basis".  We note that under the relevant 
confidentiality obligations of Article 12.4 of the Su bsidies Agreement, if the investigating authority 
finds that a request for confidentiality is not warra nted, the authority may disregard the information 
itself, rather than "the confidential nature" of  the information.  Could Indonesia explain how 
Article 39 of the CVD Regulation is consistent with these obligations?  Moreover, could Indonesia 
explain how the CVD Regulation provides for parties to submit non-confidential summaries of 
confidential information, and how it safeguards ag ainst the improper disclosure of confidential 
information?   Question 2 
 
 Articles 43-45 and 52 provide for certain notif ications in an investigation (initiation, 
termination, final and prelimin ary determinations), but omit me ntion of the exporting Member(s) 
among the parties to notify, except indirectly as a c onduit to the exporters/producers.  We note that the 
relevant notification obligation un der Article 22 of the Subsidies Agreement calls for notifying the 
exporting Member(s) specifically and separately from other parties.  Moreover, Article 13 of the Subsidies Agreement requires the investigating au thority to promptly offer an invitation for 
consultations to the exporting Me mber(s), which does not appear to be provided for under the CVD 
Regulation.  Could Indonesia explain how the CVD Regulation provides for notification to, and 
consultations with, the exporting Member(s)? 
                                                      
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  Question  3 
 
 Article 46 sets forth the conditions for the request  of information required in the investigation 
and the treatment of confidential information, but  omits mentioning the exporting Member(s), except 
indirectly as a conduit for a request to the exporters/producers.  Could Indonesia clarify whether 
KADI is to request information separately and specifically from the exporting Member(s) under the 
CVD Regulation?  Moreover, could Indonesia e xplain how the submission of non-confidential 
summaries of confidential information and how safeguards against the improper disclosure of 
confidential information are provided for under Article 46?  
 
Question 4 
 
 Article 50, Item (1), provides that the inves tigating authority may conduct on-site verification 
"upon consent from exporters, exporter's producers,  the petitioner or the Domestic Industry, or 
importers".  Item (2) only provides that KADI shall inform the exporting Member(s) if such 
verification is to be conducted.  We note that unde r the relevant obligations of Article 12.6 of the 
Subsidies Agreement, the consent of the exporting Me mber(s) is also required.  Will KADI obtain the 
consent of the exporting Member(s) prior to  a verification under the CVD Regulation? 
 
Question 5 
 
 The provisions under Article 56 with regard  to undertakings omit any mention of the 
exporting Member(s).  Moreover, they do not speci fy when such undertakings may be sought or 
accepted.  We note that under Article 18 of the Su bsidies Agreement, the investigating authority is 
obligated to obtain the consent of the exporting Me mber(s) when seeking or accepting undertakings.  
Will KADI obtain the consent of the exporting Memb er(s) when seeking or accepting undertakings 
from the exporters?  Question 6 
 
 Further, the obligations under Article 18 of  the Subsidies Agreement include certain 
guarantees that no exporter would be forced to enter into an undertaking, that the exporter be provided 
with the reasons for declining an undertaking, and th at the rejection of an undertaking by an exporter 
will in no way prejudice the consideration of the case.  Could Indonesia explain how the CVD 
Regulation provides for these guarantees? 
 
Question 7 
 
 Article 58 states that the Minister will submit KADI's final determination "to ministers and/or 
heads of non-ministerial governmental instituti ons that are related to the Products Under 
Investigation" in order to obtain the "consideration of national interests", defined in the Elucidation 
provisions to include consideration of "the inter est of developing national industry, national food 
security and food prices stability, increasing employment, fiscal policy, etc".  Could Indonesia explain 
how this provision would factor into the final decision to impose duties?  Specifically, does this 
provision apply only when an investigation results in  an affirmative determin ation, or would it apply 
whether the result is negative or affirmative? 
 
Question 8 
 
 Article 63, Item (4), provides for retroactiv e imposition of countervailing duty up to 90 days 
prior to the date of application of the Provision M easure.  We note that the relevant obligations under 
Article 20.6 of the Subsidies Agreement specify that retroactivity would be contingent upon "critical  G/ADP/Q1/IDN/15 
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  circumstances" characterized by massive imports in  a relatively short period of time and subsidies 
inconsistent with the Subsidies Agreement.  How are the elements in Article 20.6 reflected in the 
regulations? 
 
Question 10 
 
 The "Judicial Review" segment of the CVD Re gulation, starting at Article 64, appears to 
address judicial review of the imposition of counter vailing duty, but does not define what judicial 
body or bodies would have the purview to review a CVD measure, apart from KADI, which is the 
investigating authority.  To th e extent that KADI is the only re viewing body for the purposes of 
judicial review, this segment would appear not sat isfy the relevant obligation under Article 23 of the 
Subsidies Agreement that judicial review be conduc ted independent of the investigating authority.  
Could Indonesia explain how an independent ju dicial review would be available under the 
CVD Regulation? 
 
Question 11 
  Article 99 specifies that the WTO Dispute Se ttlement Body is the only venue where "any 
objection against the imposition of Antidumping Me asures, Countervailing Measures and Safeguard 
Measures" can be addressed.  This provision appear s to contradict the provisions under Article 64 of 
the CVD Regulation and to preclude judicial review within Indonesia.  Could Indonesia explain the 
meaning or intent of this Article?  
 
 
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