./.   WORLD TRADE  
ORGANIZATION  TN/RL/GEN/105 
6 March 2006 
 (06-0948) 
Negotiating Group on Rules Original:   English 
  
 
FURTHER SUBMISSION ON FACTS AVAILABLE 
 
Paper from the United States
 
  
 The following communication, dated 2 March 2006, is being circulated at the request of the 
Delegation of the United States   The submitting delegation has requested that th is paper, which was submitted to the Rules 
Negotiation Group as an informal document (JOB(06)/45), also be circulated as a formal document. 
 
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  The United States and other Members have suggested that the rules concerning the application of facts available in antidumping and countervailing duty proceedings be clarified and 
improved.
1,2 Article 6.8 of the Anti-Dumping Agreement (ADA) provides that determinations may be 
made on the basis of facts available if any interest ed party significantly impedes an investigation or 
refuses access to, or otherwise does not provide, ne cessary information within a reasonable period of 
time.  Annex II of the ADA provides further guidance as to when facts available should be applied.  In 
particular, Annex II provides that submitted inform ation should be taken into account as long as it is 
verifiable, submitted in a timely fashion, and can be used without undue difficulties.  The ADA does 
not define “undue difficulty”, and the question of wh ether information submitted can be used in the 
investigation without undue difficulties is a highly fact-specific issue.   These provisions intentionally strike a car eful but necessary balance between the 
responsibility of interested parties to provide all in formation that is required and necessary for an anti-
dumping determination, and the affirmative duty of an  investigating authority to make efforts to use 
such verifiable and timely submitted information, if the interested party has acted to the best of its 
ability.  However, it may be appropriate to clarify that not all submitted information must be used in 
all circumstances.  In particular, the balance of ri ghts and obligations would be upset if a respondent 
party can pick and choose the pieces of informa tion it submits, depending on whether or not it 
perceives the actual information to be beneficial to its interests.  In such a situation, it is the view of 
the United States that the ADA should clarify that an investigating authority is not required to use information that otherwise satisfies the requirements of paragraph 3 of Annex II where the use of such 
information would be unduly difficult, particularly in  light of the relationship of such information to 
the missing information. 
 
                                                     
 
1 See Three Issues Identified for Discussion by the Negotiating Group on Rules, Communication from 
the United States , TN/RL/W/153 (26 April 2004). 
2 See Further Submission on Facts Available, Paper from Chile; Hong Kong, China; Israel; Korea; 
Norway; the Separate Customs Territory of Taiwan, Penghu, Kinmen, and Matsu; and Thailand , 
TN/RL/GEN/64 (16 September 2005). TN/RL/GEN/105 
Page 2  
 
   It is beyond dispute that various component s of information necessary to an anti-dumping 
determination are interconnected, and a failure by an  interested party to provide certain information 
may have ramifications for an investigating author ity’s ability to use other information submitted by 
that party.
3  It should, therefore, be recognized that investigating authorities have both the authority 
and the responsibility to consider the relations hip between the missing information and the 
information submitted and, in light of that relations hip, assess whether the fact that a crucial element 
of information was not submitted by a party justifi es the conclusion that other information which was 
submitted by that party neverthel ess does not satisfy the criterion of usability contained in paragraph 3 
of Annex II.  In connection with the responsible exercise of such authority, however, it must be 
further recognized that an investigating authorit y may disregard submitted information where, based 
on an unbiased and objective evaluation of the facts,  it concludes that it would be unduly difficult to 
use such information given the relationship of th e submitted information to necessary information that 
was not submitted by the same party.  Of cour se, such a conclusion must be accompanied and 
supported by a reasoned explanation by the authority.  
 Maintaining a balance of rights and obliga tions between importing and exporting Members 
that encourages responding parties of an exporting Member to provide all necessary information for 
the importing Member to conduct the investigation, and determine the rate of dumping, in the manner 
called for by the Agreement is important to the preser vation of the effectiveness of the ADA.  In order 
to maintain this balance, the United States propo ses amending paragraph three of Annex II of the 
ADA
4, as follows: 
 
3. All information which is verifiable, which is appropriately submitted so that it can be used in 
the investigation without undue difficulties25, which is supplied in a timely fashion, and, where 
applicable, which is supplied in a medium or com puter language requested by authorities, should be 
taken into account when determinations are made.  It is recognized that the failure by an interested 
party to provide certain information necessary for the determination, or the submission by an 
interested party of  such information that c annot be verified or is unusable, may cause an 
investigating authority to conclude th at it is unduly difficult to use other information that is submitted 
by that party, and to disregard such submitted information, either entirely or in part.   If a party does 
not respond in the preferred medium or computer language but the authorities find that the circumstances set out in paragraph 2 have been satisfied, the failure to respond in the preferred 
medium or computer language shoul d not be considered to significantly impede the investigation.  
 
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3 See, for example, Panel Report, United States - Anti-Dumping and Countervailing Measures on Steel 
Plate from India , WT/DS206/R (adopted 29 July 2002), at para. 7.62 et seq .   
4 We note and agree with the view expressed by other Members ( e.g., in TN/RL/GEN/93) that the 
Agreement on Subsidies and Countervailing Measures would benefit from an annex similar to Annex II of the 
ADA, appropriately modified for use in countervailing duty proceedings. 
  
25 The question of whether information submitted ca n be used in the investigation without undue 
difficulties is a highly fact-specific issue .