WORLD TRADE  
ORGANIZATION  TN/RL/GEN/129 
24 April 2006 
 
 (06-1907) 
Negotiating Group on Rules Original:   English 
  
 
DEFINITION OF DOMESTIC INDUSTRY FOR PERISHABLE, 
SEASONAL AGRICULTURAL PRODUCTS 
 
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)/ 112), also be circulated as a formal document. 
 
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  In an earlier submission to the Negotiating Group  on Rules, the United States suggested that 
Members clarify and improve the rules as they  pertain to anti-dumping and countervailing duty 
proceedings concerning perishable and seasonal agricu ltural products, for the benefit of both domestic 
producers and exporters invol ved in such proceedings.
1  Several other Members have also raised the 
issue of perishable products.2 
 
 During the Uruguay Round, Members recognized and addressed the special characteristics of 
perishable, seasonal agricultural products in certain ag reements.  For instance, in the special safeguard 
provisions of Article 5 of the Agreement on Agricu lture, Members provided th at shorter time periods, 
and different reference prices for di fferent periods, could be used in  the analysis when determining 
whether to impose safeguard measures  on perishable and seasonal products.3  Furthermore, in the 
Understanding on Rules and Proce dures Governing the Settlement of Disputes ("DSU"), Members 
agreed to expedited dispute settlement procedures in  cases of urgency, including those that concern 
perishable goods.4 
                                                      
1 See TN/RL/W/72 dated 19 March 2003. 
2 See, e.g ., TN/RL/W/6 dated 26 April 2002, Anti-Dumping Illustrative Major Issues, Paper from 
Brazil; Chile; Colombia; Costa Rica; Hong Kong, China;  Israel; Japan; Korea; Mexico; Norway; Singapore; 
Switzerland; Thailand and Turkey. 
3 Article 5.6 of the Agreement on Ag riculture states that "[f]or peri shable and seasonal products, the 
conditions set out above shall be applied in such a manner as to take account of the specific characteristics of 
such products.  In particular, shorter time periods under subparagraph 1(a) and paragraph 4 may be used in 
reference to the corresponding periods in the base period  and different reference prices for different periods may 
be used under subparagraph 1(b)." 
4 See Understanding on Rules and Procedures Governing the Settlement of Disputes.  Article 4.8 states 
"[i]n cases of urgency, including those which concern perishable goods, Members shall enter into consultations within a period of no more than 10 days after the date of receipt of the request.  If the consultations have failed 
to settle the dispute within a period of  20 days after the date of receipt of  the request, the complaining party may 
request the establishment of a panel."  See also  Article 12.8, which states "[i]n order to make the procedures 
more efficient, the period in which the panel shall conduct its examination, from the date that the composition 
and terms of reference of the panel have been agreed upon until the date the final report is issued to the parties TN/RL/GEN/129 
Page 2  
 
   
 The Anti-Dumping Agreement ("ADA") and th e Agreement on Subsidies and Countervailing 
Measures ("ASCM") currently contain no special provisions concerning perishable, seasonal agricultural products; however, because  of their special characteristics, it can be uniquely difficult for 
the producers of these products to obtain meaningful relief from injurious dumping and/or 
countervailable subsidization.  The difficulty that ar ises is associated, in particular, with the definition 
of the domestic industry, as provided in Articles 4 and 16 of the ADA and ASCM, respectively.  In this paper, the United States addresses this pr oblem and suggests that the ADA and ASCM be 
clarified and improved to take into account the special circumstances faced by  producers of 
perishable, seasonal agricultural products, and to a llow those authorities to tailor the remedy narrowly 
to avoid affecting imports that are not compet ing with an injured domestic industry.  The 
United States reserves the right to raise additional issues that pertain to clarifying and improving the 
rules for producers of perishable, seasona l agricultural products in the future. 
 
Issue
 
  Because of distinct conditions of competition,  producers of perishable, seasonal agricultural 
products, which have short marke ting periods, can face unique challenges in obtaining timely relief 
from injuriously dumped or subsidized imports.   If an agricultural product is seasonal, produ cers in different geographical areas within the 
territory of a single Member may have different ma rketing seasons for their product.  Similarly, the 
seasonal nature of certain agricultural products can le ad to situations in which the marketing season of 
imports will only partially overlap with overa ll domestic production; thus, only those domestic 
producers whose marketing season happens to corres pond with the marketing season of the imports 
will face direct import competition.  In such cases,  the relevant domestic industry should encompass 
only those producers that seasonally compete with th e imports.  However, Articles 4 and 16 of the 
ADA and ASCM, respectively, contain no provision for authorities to examine only the affected 
segment of such an industry for purposes of confirming industry support or standing.    This situation is exacerbated by the perishab ility of certain agricultural products.  If such 
products could be stored more eff ectively, imports would likely be spread more evenly throughout the 
year in order to meet customer demand.  Simi larly, domestic producers would have the ability to 
refrain from marketing their products until a more adva ntageous time.  The uniquely short shelf-life of 
perishable products, however, precludes taking such an approach.   The ADA and the ASCM do not expressly provide  for investigating authorities to structure 
their investigations in a way that captures th ese unique circumstances where a limited universe of 
domestic producers of perishable, seasonal agricu ltural products competes with imports during a 
limited marketing season.  The ADA and the ASCM do not specifically authorize authorities to limit the pertinent industry to domestic producers that market their products only during seasons in which 
they face direct import competition.
5  By the same token, current rules do not explicitly address 
                                                                                                                                                                     
to the dispute, shall, as a general rule, not exceed six mo nths.  In cases of urgency, including those relating to 
perishable goods, the panel shall aim to issue its repor t to the parties to the dispute within three months. " 
5 It is the interrelationship between the seasonality and perishability of the agricultural products in 
question that gives rise to unique problems under the ADA and ASCM.  Therefore, this paper relates only to 
agricultural products that are both seasonal and perishab le.  To be regarded as "seasonal and perishable," 
agricultural products must meet the following conditions: (1) the products are fresh or chilled products falling under the following HS2002 tariff codes: 0701, 0702, 0703, 0704, 0705, 0706, 0707, 0708, 0709, 0803, 0804, 
0805, 0806, 0807, 0808, 0809, 0810; (2) the products are marketed in raw form for consumption without 
"further processing" ("further processing" refers to e.g. crushing, juicing, canning, or any other process that transforms the product from its raw form);  and (3) the products normally are market ed within eight weeks after 
harvesting.  TN/RL/GEN/129 
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  whether authorities may limit their analysis to relevant imports during the marketing season in 
question.    Lacking a specific rule to address the situa tion, authorities faced with an allegation of 
dumping or subsidization of a perishable, seasonal agricultural product may have little choice but to 
investigate all imports of the subject merchandise, including those imports that do not compete in any 
real commercial sense with the pe rishable, seasonal products of the domestic producers.  Thus, the 
current agreement is both too narrow and too br oad:  domestic producers of perishable, seasonal 
agricultural products find it difficult to obtain a reme dy against injurious dumping or subsidization.  
However, when they are successful, the remedy ma y include in its coverage imports that are not 
competing with the perishable, seasonal pr oducts of the injured domestic industry. 
  The Rules Group should deal with the absence  of clear rules regarding the unique issues 
raised by perishable, seasonal agricultural products .  Therefore, the United States recommends that 
the Rules Group clarify the definition of  domes tic industry in Articles 4 and 16 of the ADA and 
ASCM, respectively, to account more clearly fo r the difficulty producers of perishable, seasonal 
agricultural products have in obtaining relie f from injurious dumping and countervailable 
subsidization.    The suggested improvements may also benef it exporters by permitting an authority to 
structure any measures ultimately imposed in a manne r that will not affect imports of perishable, 
seasonal agricultural products that do not compete w ith the perishable, seasonal agricultural products 
of the injured domestic industry.  The United States recommends that the Rules Group clarify that measures may be structured in such a manner.  
Recommendation
 
  Like the Agreement on Agriculture and th e DSU, the ADA and the ASCM should more 
clearly recognize and better address the special ch aracteristics of perishable, seasonal agricultural 
products in order to make the anti-dumping and coun tervailing duty remedies more accessible to all 
producers of such products.  Specifically, the Rul es Group should clarify and improve the definition 
so administering authorities in appropriate circumstances can define the domestic industry in the 
context of particular seasonal markets.  The Ru les Group should also address any changes necessary 
to ensure that resulting measures ma y be structured in a way that reflects the seasonal nature of the 
perishable agricultural product in question.  
Proposed Amendments to the ADA and ASCM
 
 [ADA Article 4.1(iii-iv)] [ASCM Article 16.3bis] 
 (iii) Investigating authorities may interpret the term "domestic industry" as referring to a seasonal 
domestic industry if the authorities find that the following circumstances exist: 
 
 (a) the product under consideration and th e like product meet the following criteria: 
   (1) the products are fresh or chilled products falling under the following HS2002 
tariff codes:  0701, 0702, 0703, 0704, 0705, 0706, 0707, 0708, 0709, 0803, 0804, 0805, 0806, 0807, 0808, 0809, 0810;  
 
  (2) the products are marketed in raw form for consumption without "further 
processing" ("further processing" refers to e.g. crushing, juicing, canning, or any other process that transforms the product from its raw form); and   
 TN/RL/GEN/129 
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    (3) the products normally are marketed  within a discrete season (‘the marketing 
season") that concludes no later than eight weeks after the end of the period in which the crops are harvested; and  
  (b) a major proportion of all sales of the like product during the marketing season are 
made by producers that sell all or almost all of their production of the like product 
during that marketing season. 
 (iv) When the investigating authorities find that  the circumstances specifi ed in paragraph (iii) 
exist, the seasonal domestic indus try shall consist of those domestic producers that sell the 
perishable agricultural produc t during the marketing season. 
  (a) When the investigating authorities determ ine that a seasonal domestic industry exists, 
the authorities may limit the period of investigation for determining [dumping][countervailable subsidization] to  a period corresponding to the relevant 
marketing season. 
  (b) When the investigating authorities determ ine that a seasonal domestic industry exists, 
the authorities may make an affirmative in jury determination only if the authorities 
find that the [dumped][subsidized] impor ts are causing injury to the seasonal 
domestic industry. 
 
 (c) When the investigating authorities ha ve found that [dumped][subsidized] imports 
injure a seasonal domestic industry, the importing Member shall levy [anti-dumping][countervailing] duties only on products importe d during marketing 
seasons corresponding to the marketing seas on identified in the investigation. 
 
[Note: Reference to new Article 16.3 bi s to be added in ASCM Article 16.1] 
 
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