. /.   WORLD TRADE  
ORGANIZATION  TN/RL/GEN/131 
24 April 2006 
 
 (06-1909) 
Negotiating Group on Rules Original:   English 
  
 
COLLECTION OF ANTI-DUMPING DUTIES 
UNDER ARTICLE 9.3 
 
Communication from the United States
 
 
 
 The following communication, dated 20 April 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 
Negotiating Group as an informal document (JOB(06)/ 114), also be circulated as a formal document. 
 
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Article 9.3 of the Anti-Dumping Agreement (A DA) sets forth a fundamental obligation that 
anti-dumping (AD) duties shall not exceed the margin  of dumping.  The United States believes that 
the ADA should be revised to clarify the means by  which parties may ensure that AD duties assessed 
on imports after an AD duty has been imposed do not exceed the margin of dumping.   
 Members are not entitled to assess or retain excess AD duties.  It is therefore essential to 
ensure that parties have the ability to address a nd remedy the assessment of excessive AD duties.  
Discussions on this topic in the Rules negotiations, however, indicate that very few Members regularly conduct refund proceedings pursuant to Ar ticle 9.3 to ensure that the duties assessed do not 
exceed the margin of dumping.
1   
 Article 9.3 could also be clarified so that in any assessment or refund proceeding, it is clear 
that the authority must examine normal value info rmation that is contemporaneous with the export 
transaction to determine the appropriate AD duty.  Add itionally, to the extent that the results of the 
assessment or refund proceeding establish that the AD duty rate being applied does not reflect the 
current rate of dumping, there is no reason for the Memb er to continue to apply that rate, rather than 
one based on the more current information.  
 
For these reasons, to provide further clarity a nd to ensure that Members do not assess duties 
in excess of the margin of dumping, the United St ates proposes amending Article 9.3 of the ADA, as 
follows:  
9.3 The amount of the anti-dumping duty shall not exceed the margin of dumping as established 
under Article 2.  Upon request, the authorities shall estab lish the margin of dumping based upon
 
normal values contemporaneous with the export tr ansaction(s).  In cases where the number of 
                                                      
1 As the United States has proposed in prior submissions (e.g. , TN/RL/W/168), Article 9.3 should also 
be clarified and improved to require that if monies pa id or deposited exceed final liabilities, the excess monies 
refunded should include interest. 
 TN/RL/GEN/131 
Page 2  
 
  exporters, producers, importers, or transactions  involved is so large as to make such a 
determination impracticable, the authorities m ay limit their examination in accordance with 
paragraph 10 of Article 6.     
 
9.3.1   When the amount of the anti-dumping dut y is assessed on a retr ospective basis, the 
determination of the final liability for paym ent of anti-dumping duties shall take place 
as soon as possible, normally within 12 mont hs, and in no case more than 18 months, 
after the date on which a request for a final assessment of the amount of the anti-dumping duty has been made.  Any refund sha ll be made promptly and normally in 
not more than 90 days following the determ ination of final liability made pursuant to 
this subparagraph.  In any case, where a refund is not made within 90 days, the 
authorities shall provide an explanation if so requested.  The results of any refund 
proceeding pursuant to this provision shall provide the basis for the anti-
dumping duty rate imposed on imports following the completion of such 
proceeding.  
 
9.3.2 When the amount of the anti-dumping duty is assessed on a prospective basis, 
provision shall be made for a prompt refund, upon request,  of any duty paid in excess 
of the margin of dumping determined in accordance with Article 9.3 .  A refund of 
any such duty paid in excess of the actual  margin of dumping determined in 
accordance with Article 9.3  shall normally take place w ithin 12 months, and in no 
case more than 18 months, after the date on which a request for a refund, duly 
supported by evidence,  pursuant to this provision  has been made by an importer of 
the product subject to the anti -dumping duty .  The refund authorized should normally 
be made within 90 days of the above-noted decision.  The results of any refund 
proceeding pursuant to this provision shall provide the basis for the anti-
dumping duty rate imposed on imports following the completion of such 
proceeding.  
 
 To better ensure transparency and procedural fairness in such reviews, Members also should 
incorporate by reference in Article 9.3 the rules on evidence and procedure in Article 6 and the public 
notice and explanation requirements in Article 12.  
 
 Finally, we suggest that the Agreement on Subsidies and Countervailing Measures (ASCM) be similarly clarified and improved with respect to assessment and refund provisions.  Further, any 
consideration of incorporating the assessment and re fund provisions of Article 9.3 of the ADA into 
the ASCM should include application,  where appropriate, of the requirements of ASCM Articles 12 
and 22 to such proceedings. 
 
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