NAFTA Trade Remedies Working Groups
Statements by the Governments of Canada,
Mexico, and the United States
In 1993, the governments of Canada, Mexico, and the United States, to further their strong and mutually beneficial trading relationship, agreed to establish the Trade Remedies Working Groups to seek solutions that reduce the possibility of disputes concerning the issues of subsidies, dumping, and the operation of trade remedy laws regarding such practices.
At that time, the NAFTA governments noted that these issues were under negotiation in the Uruguay Round and agreed that a satisfactory result in those negotiations would be an important step in addressing their concerns in this area. The governments also agreed that the successful completion of the Uruguay Round and the implementation of the new multilateral rules through domestic legislation would be a top priority.
The Uruguay Round agreements resulted in significant improvements to disciplines on subsidies and established uniform rules on antidumping measures. The NAFTA governments agree that these agreements alleviated a number of the concerns that led to the creation of the Working Groups.
The Working Groups have agreed on additional ways to reduce trade irritants among the NAFTA countries. The NAFTA governments have agreed to adopt measures that will create greater transparency and predictability in the administration of the antidumping and countervailing duty laws, and they have agreed to adopt procedural changes that will simplify the trade remedy regimes in all three countries. All of these initiatives will reduce burdens on exporters and domestic industries alike.
The NAFTA Governments also agreed to make changes to the operation of the Code of Conduct and Rules of Procedure regarding Chapter 19, which provides for the review of national antidumping and countervailing duty decisions. These changes will assist in identifying and resolving potential conflicts of interest as well as address delays in the panel process.
The importance of having private sector input concerning matters related to trade remedies was fully recognized by the NAFTA Governments throughout the Working Group exercise. Accordingly, the Governments will seek input from their private sectors regarding trade remedy issues, as they affect an increasingly integrated North American market, and will be open to private sector initiatives to reduce trade irritants.
The discussions within the Working Groups have been completed, in accordance with their mandate. In order to deepen their strong trading relationship, the Governments will continue to consult, as appropriate under the NAFTA, on issues related to trade remedies with the objective of promoting fair trade and reducing the possibility of disputes.
The technical groups propose that the Trade Remedies Working Groups endorse the following measures to reduce trade irritants.
The Parties agree that increased notification of government actions related to antidumping (AD) and countervailing duty (CVD) cases will allow the NAFTA governments to stay informed of progress on cases and to assist parties directly by informing them of case schedules and deadlines. The Parties agree to designate a contact person to whom the case-related information listed below should be sent directly. The Parties also agree to send relevant non-case-related documents to the official contact person, including amendments and proposed amendments to the antidumping and countervailing duty statutes and regulations, as well as any other public invitations to comment on policy or procedural matters related to the conduct of antidumping and countervailing duty proceedings. This system of notification will apply to all proceedings initiated after September 30, 1997.
The Parties further agree that this system of notification will supplement, not replace, any existing notification requirements provided for in the WTO Agreements and the NAFTA. The Parties will exchange, by September 30, 1997, lists of the information to be provided based on the milestones in their respective systems.
Accessibility of Public Records
The Parties agree that interested parties and the public should be able to view public documents filed by other parties or generated by government agencies so that they may keep abreast of developments in their case and defend their interests. The Parties agree that public records should be accessible at designated times, or upon appointment, that public information should be complete and up-to-date, and that public versions of all private party filings as well as public versions, where available, of documents produced by the investigating authority should be included in the public record. The Parties agree to identify, by September 30, 1997, the types of documents, appropriate to their respective systems, that should be included in the public file, or otherwise made available to the public.
The Parties agree to consider comments, submitted within applicable deadlines, by all interested parties on the issue of industry support, including the methods and data used to make the determination. All interested parties will also have the opportunity to comment, within applicable deadlines, on polling and sampling methods, if used. Further, the Parties agree that petitions must contain sufficient information regarding the identity of thepetitioner(s), and the volume and value of the like product accounted for by the petitioner(s), such that the investigating authority can make its industry support determination. The Parties also agree that petitioners must provide certification attesting to the accuracy and completeness of the information contained in the petition.
In circumstances where there is a high degree of integration, the Parties agree to exercise discretion whether to include as part of the domestic industry producers who are also importers or who are related to importers. Accordingly, in making this determination, the Parties agree that they will consider the percentage of foreign ownership in the industry and the extent to which members of the domestic industry import subject merchandise or are related to importers of subject merchandise.
The Parties agree not to resort to facts available without giving, to the fullest extent practicable, an opportunity to comment within the applicable deadlines. The use of adverse facts available will be limited to those instances where parties have failed to cooperate by not acting to the best of their ability. In determining whether resort to adverse facts available is appropriate, the Parties agree to consider whether an exporter's failure to respond is due to practical difficulties or lack of cooperation. In the case of a partial response due to practical difficulties, the Parties agree to use the partial response, to the extent it meets the criteria established under applicable national law.
The Parties agree that the use of sampling and averaging techniques in dumping calculations could reduce the complexity of investigations and reduce burdens on all interested parties, while maintaining effective enforcement of unfair trade laws. The Parties agree that, where it is not feasible to report transaction-specific information, average adjustments may be reported, as long as average adjustments do not cause inaccuracies or distortions that would make reporting of average adjustments unrepresentative.
The Parties agree that, as a general matter, merchandise which does not meet prime standards, or "seconds," should not be compared with prime merchandise in making dumping determinations. To the extent possible, prime merchandise should be compared with prime merchandise, and seconds should becompared with seconds. Where only prime merchandise is sold in one market, and only seconds are sold in the other market, the Parties agree to conduct the dumping calculations in a way that is non-distortive.
The Parties agree that suspension agreements (undertakings) may be considered as early as possible after a preliminary determination.
Timely Administrative Reviews
The Parties agree that administrative reviews of outstanding antidumping and countervailing duty orders will, to the extent they conduct such reviews, be completed as expeditiously as possible, in accordance with statutory deadlines.
All Others Rate
The Parties agree to calculate dumping and subsidy margins for all exporters and producers affected by an AD/CVD investigation, unless calculating individual margins would be unduly burdensome and would inhibit the timely completion of the investigation.
The Parties further agree, where practicable, to calculate on request, and within applicable deadlines, individual margins for exporters and producers who had sought but did not receive individual rates in the investigation.
Determination of Profit
The Parties agree to rely on a company's financial statements as much as possible in determining profit for purposes of calculating dumping margins.
The Parties agree that, in the interest of reducing burdens, investigating authorities should, where practicable, accept the product coding systems used by the companies under investigation. The Parties recognize that, in order to match products sold in the exporting and importing countries, it may be necessary to classify products in a manner that is different from that used by companies in the normal course of business. The Parties agree to accept comments, within applicable deadlines, on product matching methods.
The Parties agree to make a best efforts commitment to issue liquidation instructions to their respective customs agencies within 45 days of completion of an investigation, administrative review, final redetermination pursuant to court remand, or a final panel decision.
The Parties agree that it is important that their investigating authorities give full consideration to information which indicates that the harm being suffered by a domestic industry is caused by factors other than the unfairly traded imports, such as the volume and price of imports sold at fair value, contraction in demand or changes in the pattern of consumption, trade restrictive practices of (and competition between) the foreign and domestic producers, developments in technology, and the export performance and productivity of the domestic industry. The Parties agree that investigating authorities must ensure that they do not attribute injury from other sources to the subject imports. In particular, the Parties agree that there should be a sufficient causal link between the dumped or subsidized imports and the requisite injury.
The Parties agree to work towards developing a common approach with respect to anticircumvention measures.
Duty Assessment Systems
The Parties will evaluate various duty assessment systems and agree to consult on their respective systems.
The technical groups propose that the Working Groups endorse the following measures to enhance the functioning of Chapter 19 of the NAFTA and to strengthen support for it in all three NAFTA countries:
- Improvements Concerning Operation of the Code of Conduct
The NAFTA Parties have agreed:
- To obtain certain common information from candidates (as this term is defined in the NAFTA Code of Conduct), which information will be included in the CVs. The Parties agree to exchange the CVs of candidates at the time of appointment to the roster, and to make such information as the Parties may agree upon under paragraph A.5. available to the public. The information collected shall relate to the candidate's suitability for service, and collection of this information will enhance confidence in the binational panel system by making more transparent the qualifications of candidates.
- To amend the NAFTA Code of Conduct to include a statement, pursuant to Annex 1901.2(1) of the NAFTA, that candidates shall not be affiliated with a Party and, further, to revise the disclosure statements to include a new item designed to elicit information concerning a candidate's relationships with a Party(ies). These additions are designed to alert candidates to the express prohibition in the NAFTA against Party affiliation, and also to provide guidance for disclosure in this regard.
- To develop a joint list of types of past conflicts of interest issues that have arisen in panel proceedings, and their resolution, and to update this list periodically (annually). The joint list will serve to better inform all three NAFTA Parties of conflicts issues arising in this binational panel system, and will also facilitate uniformity of resolution of conflicts issues among the NAFTA Parties.
- To facilitate conflict searches through exercising their best efforts to identify interested parties, while respecting confidentiality considerations, and to provide such information to candidates completing the Initial Disclosure Statement, in accordance with paragraph A.7.
The NAFTA Parties have agreed that, through their appropriate representatives involved in the administration of Chapter 19, and in consultation with their respective sections of the Secretariat, as appropriate, they will finalize the details concerning implementation of the above areas of agreement and, in so doing, will give further consideration to:
- Identification of the common information that would be required of all candidates at the time they are selected for the roster, and what information would be made available to the public.
- Whether the joint list developed pursuant to paragraph A.3. should be made available to candidates or to the public.
- The manner in which each Party will implement paragraph A.4.
- Procedural Improvements
The NAFTA Parties have agreed:
- To implement, on a trial basis, a system of alternate pre-cleared candidates by which each Party involved in a panel proceeding would "pre-clear" for panel service two additional candidates. The two alternate pre-cleared candidates would submit completed Initial Disclosure Statements but would not be informed of their status as alternate pre-cleared candidates until such time as the need for substitution is imminent. The NAFTA Parties undertake to use best efforts to select one of the alternate pre-cleared candidates for service before seeking other candidates. Any selection of a replacement panelist would be made within 30 days of the date on which the Secretariat receives notification of the panelist's withdrawal.
The NAFTA Parties have agreed that, through their appropriate representatives involved in the administration of Chapter 19, and in consultation with their respective sections of the Secretariat, as appropriate, they will finalize the details concerning:
- Amendment of the Rules of Procedure for Article 1904 Binational Panel Review to extend the time period for a final panel decision following an agency's submission of a remand determination where the case is extraordinarily complicated.