./.  WORLD TRADE  
ORGANIZATION  TN/RL/GEN/25 
20 October 2004 
 (04-4413) 
Negotiating Group on Rules Original:   English 
   
PRELIMINARY DETERMINATIONS 
(ARTICLE 6 ADA & ARTICLE 12 ASCM)  
 
Communication from the United States
 
  
 The following communication, dated 18 October 2004, 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(04)/ 155), also be circulated as a formal document. 
 
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 Investigatory procedures in anti-dumping and countervailing duty investigations should 
promote openness, opportunity for effective particip ation, consistency, accu racy, predictability, and 
accountability.  The United States believes a preliminary de termination is one of the best tools to help 
promote these goals.
1  They give the parties a very good idea of the view the authorities take of the 
facts before them.  Although preliminary determina tions are subject to modification in the final 
determination, they provide both authorities and the interested parties the mean s to identify issues that 
warrant further development, argument and or r econsideration for the final determination.  
  Preliminary determinations trigger several pr ovisions of the current Agreements, such as 
Articles 7.1, 8.2 and 12.2 of the Anti-dumping Agreement (ADA) and Articles 17.1, 18.2, 22.3 and 
22.4 of the Subsidies Agreement (ASCM).  Yet, not withstanding such references, no provision in 
either Agreement actually describes or mandates preliminary determinations.    The United States issues preliminary determin ations in all anti-dumping and countervailing 
duty investigations.  Besides permitting the impos ition of provisional measures in the event of 
affirmative determinations, these preliminary decisi ons provide a vital contribution to procedural 
fairness.  By informing parties of how the authorities weigh the facts on the record at a particular time and apply the law to those facts, interested par ties may assess where, in their view, the authority 
requires additional facts, may have misinterpreted the facts, or possibly misapplied the law.  The interested parties may also deduce which issues had the greatest impact on their interests.  In this way, 
interested parties are presented with a framework that  can be the basis for the defence of their interests 
in the phase of the investigation pr ior to the final determination. 
  This procedural fairness function of prelimin ary determinations is implicitly recognized by 
Article 12.2 of the ADA and Article 22.3 of the AS CM.  Both Agreements require a public notice 
providing an explanation of the findings in sufficient detail, which set forth all relevant facts and 
analysis, that may inform the interested parties’  future participation in the investigation.  
 
                                                     
 
1 The United Stated identified this issue for possible clarification and improvement consistent with this 
Group’s negotiating mandate in document TN/RL/W/130. TN/RL/GEN/25 
Page 2  
 
 While the ADA and ASCM provide for certain actions if a Member issues preliminary 
determinations, the Agreements do not mandate preliminary determ inations.  The United States 
believes that this creates a number of problems th at should be addressed.  For example, given the 
stipulation in Articles 8.2 of the ADA and 18.2 of  the ASCM that price undertakings shall not be 
sought or accepted absent an affirmative preliminary determination, it is unclear whether a Member 
should consider, or is even permitted to consider, a price undertaking if it has chosen not to issue a 
preliminary determination.  Furthe r, variations in each Member’s vi ews of the appropriate practices 
for issuing affirmative preliminary determinations  may result in differing practices for imposing 
provisional measures.  
 For the reasons outlined above, Members should consider whether the Agreements should be 
clarified and improved as follows:  1. Clarify that preliminary determinations of dumping or countervailable  subsidization and of 
injury must be issued in all anti-dumping a nd countervailing duty investigations, and that 
interested parties must be informed of the scheduled date of preliminary determinations; 
 2. Clarify that a preliminary determination may not  be issued prior to the time when responses 
from interested parties to questionnaires pe rtaining to that determination are due; 
 3. Clarify that those questionnaire responses shoul d be taken into account by the authorities in 
making a preliminary determination, bearing in mind the provisions of Article 6.8 of the ADA 
and Article 12.7 of the ASCM; 
 4. Clarify that the provisions of Article 6.2 of the ADA, or any equivalent provisions of the ASCM
2 shall continue to apply after issuance of a pr eliminary determination and that authorities shall 
provide sufficient time between the preliminary and final determinations in order that interested 
parties may have a reasonable opportunity to exercise their rights under those provisions.  
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2 Separately, the United States has suggested that this Group take up harmonization of the ADA and 
ASCM, which may include consideration of adding provis ions to the ASCM corresponding to the provisions of 
Article 6 of the ADA.