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FTAA - Free Trade Area of the Americas

Draft Agreement

Chapter on Subsidies, Antidumping
 and Countervailing Duties


(Continuation)

[ARTICLE 7
PROVISIONAL MEASURES]

[7.1 Provisional measures may be applied only if:

i) an investigation has been initiated in accordance with the provisions of Article 5, a public notice has been given to that effect and interested parties have been given adequate opportunities to submit information and make comments; 

ii) a preliminary affirmative determination has been made of dumping and consequent injury to a domestic injury6; and 

iii) the authorities concerned judge such measures necessary to prevent injury being caused during the investigation7

[7.3 Provisional measures shall not be applied [ sooner than 60 days] [ during the first 90 days] from the date of initiation of the investigation.]

[7.4 The application of provisional measures shall be limited to as short a period as possible, not exceeding four months or, on decision of the authorities concerned, upon request by exporters representing a significant percentage of the trade involved, to a period not exceeding six months. When authorities, in the course of an investigation, [ –examine whether apply] a [provisional] duty lower than the [ preliminary] margin of dumping [ would be sufficient] to remove injury, [the provisional duty may be imposed for a period not exceeding six months.][ these periods may be six and nine months, respectively.]

ARTICLE 8
UNDERTAKINGS

[8.1 Proceedings may be suspended or terminated without the imposition of provisional measures or anti-dumping duties upon receipt of satisfactory voluntary undertakings from any exporter to revise its prices or to cease exports to the area in question at dumped prices so that the authorities are satisfied that the injurious effect of the dumping is eliminated. Price increases 
[ under such undertakings]
[ in price undertakings voluntarily entered into by exporter] shall not be higher than necessary to eliminate the margin of [ dumping][ – injury]. [ –It is desirable that the price increases be less than the margin of dumping if such increases would be adequate to remove the injury to the domestic industry] [ In any case, the investigating authority shall ensure such price increases are lower than the margin of dumping.]]

[8.3 [ Subject to the provision of Article 8.5], Undertakings offered need not be accepted if the authorities consider their acceptance impractical, for example, if the number of actual or potential exporters is too great, or for other reasons, including reasons of general policy. Should the case arise and where practicable, the authorities shall provide to the exporter the reasons which have led them to consider acceptance of an undertaking as inappropriate, and shall, to the extent possible, give the exporter an opportunity to make comments thereon.8]

[8.5 Price undertakings may be suggested by the authorities of the importing Member, but no exporter shall be forced to enter into such undertakings. The fact that exporters do not offer such undertakings, or do not accept an invitation to do so, shall in no way prejudice the consideration of the case. However, the authorities are free to determine that a threat of injury is more likely to be realized if the dumped imports continue.9]

[ARTICLE 9
IMPOSITION AND COLLECTION OF DUTIES]

[9.1 The decision whether or not to impose an anti-dumping duty in cases where all requirements for the imposition have been fulfilled, and the decision whether the amount of the anti-dumping duty to be imposed shall be the full margin of dumping or less, are decisions to be made by the authorities of the importing Member. It is desirable that the imposition be permissive in the territory of all Members [- and that the duty be less than the margin if such lesser duty would be adequate to remove the injury to the domestic injury] [The investigating authority shall impose an anti-dumping duty,] [- whether provisional or definitive][ that is less than the margin of dumping if such lesser duty would be adequate to remove the injury to the domestic industry.]

[ For this purpose, the amount of the antidumping duty shall be assessed, taking into account, inter alia, the price of the product investigated in the market of the importing Party compared with the price of the domestic product, the prices at which the imported like product imported from other countries not under investigation is sold in the domestic market, as well as the international prices of the product in question.]]

[Each Party’s domestic law shall allow for the imposition of an antidumping or countervailing duty that is less than the full margin of dumping or full amount of subsidy but sufficient to eliminate injury to the domestic industry.
]]

[9.3 The amount of the antidumping duty [ shall not exceed] [ shall be, at its maximum level, equivalent to the] margin of [ dumping] [ injury or to the margin of threat of injury.] [ as established under Article 2.]]

[9.3.1 When the amount of the anti-dumping duty is assessed on a retrospective basis, the determination of the final liability for payment of anti-dumping duties shall take place as soon as possible, normally within 12 months, 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. [ Where antidumping or countervailing duty has been estimated and secured by cash deposit, bond or other security, a final assessment of the duty liability shall be made within twelve months of the date on which a request for a final assessment was made. If the final assessment is made after the twelve-month period, such an assessment shall not result in the levying of antidumping or countervailing duties in addition to the amount of the estimated antidumping or estimated countervailing duty. The twelve-month period is subject to the normal time requirements for judicial review.] Any refund shall be made promptly and normally in not more than 90 days following the determination of final liability made pursuant to this sub-paragraph. In any case, where a refund is not made within 90 days, the authorities shall provide an explanation if so requested.]

[9.4 When the authorities have limited their examination in accordance with the second sentence of paragraph 10 of Article 6, [ and the dumping margins found do not exceed the margin of injury,] any antidumping duty applied to imports from exporters or producers not included in the examination [ shall not exceed] [ shall be, at its maximum level, equivalent to]: 

i) the weighted average margin of dumping established with respect to the selected exporters or producers or,

ii) where the liability for payment of anti-dumping duties is calculated on the basis of a prospective normal value, the difference between the weighted average normal value of the selected exporters or producers and the export prices of exporters or producers not individually examined, 

[ provided that the authorities shall disregard for the purpose of this paragraph any zero and] [ without excluding negative, zero, or] de minimis [margins] [and margins established under the circumstances referred to in paragraph 8 of Article 6.] The authorities shall apply individual duties or normal values to imports from any exporter or producer not included in the examination who has provided the necessary information during the course of the investigation, as provided for in subparagraph 10.2 of Article 610
[ In cases where the margin of injury is lower than the margin of dumping, the margin of injury shall be applied to all the companies.] 

[19.1 S If, after reasonable efforts have been made to complete consultations, a Member makes a final determination of the existence and amount of [ –the a] subsidy and that, through the effects of [ the that] subsidy, the subsidized imports are causing injury, it may impose a countervailing duty in accordance with the provisions of this Article, [ the Party may not impose or maintain countervailing duties if the exporting Party withdraws] [ –unless] the subsidy or subsidies [–are withdrawn.]

[ARTICLE 11
DURATION AND REVIEW OF DEFINITIVE DUTIES AND UNDERTAKINGS]

[11.2 The authorities shall review the need for the continued imposition of the duty, where warranted, on their own initiative or, provided that a reasonable period of time has elapsed since the imposition of the definitive anti-dumping duty, upon request by any interested party which submits positive information substantiating the need for a review. Interested parties shall have the right to request the authorities to examine whether the continued imposition of the duty is necessary to offset dumping, whether the injury would be likely to continue or recur if the duty were removed or varied, or both. If, as a result of the review under this paragraph, the authorities determine that [the antidumping duty is no longer warranted, it] [ the margin of dumping is de minimis, or that the volume of dumped imports, actual or potential, or the injury, is negligible, as defined in paragraph 8 of Article 5, the antidumping duty] shall be terminated immediately.]

[11.3 Notwithstanding the provisions of paragraphs 1 and 2, any definitive anti-dumping duty shall be terminated on a date not later than [ five years 36 months] from its imposition [ (or from the date of the most recent review under paragraph 2 if that review has covered both dumping and injury, or under this paragraph), unless the authorities determine, in a review initiated before that date on their own initiative or upon a duly substantiated request made by or on behalf of the domestic industry within a reasonable period of time prior to that date, that the expiry of the duty would be likely to lead to continuation or recurrence of dumping and injury.] [ If the duration of the measure exceeds 3 years, the importing country shall conduct a review no later than halfway through the period of enforcement, to ascertain whether it is appropriate to maintain, modify or terminate the duty for the remaining period stipulated in the paragraph above.] The duty may remain in force pending the outcome of such a review.]

[11.6 N [ The above-mentioned review shall be conducted in accordance with the provisions of this chapter and shall assess in detail the existence of dumping, injury and causal link.]]

[ARTICLE 12
PUBLIC NOTICE AND EXPLANATION OF DETERMINATIONS]

[12.4 N [ Upon request of an interested party, investigating authorities shall, upon request of any of the interested parties, hold technical information meetings in order to explain the methodology used including technical reports, spreadsheets, computer software, and any other element which may have led to the preliminary or final determination, due regard being paid to the requirement for the protection of confidential information. 

The time period for requesting the convening of technical information meetings shall be within five days following the determination notification.]]

[ARTICLE 14
ACTION ON BEHALF OF A THIRD COUNTRY]


[14.1 An application for antidumping action on behalf of a third country shall be made by the authorities of a third country requesting action. [ The parties shall provide ample opportunity to consult with those Parties considered to be importing from outside the region at dumped or subsidized prices. The purpose of such consultations shall be to identify the condition of entry for those goods, so that the consulting Party may assess whether or not to request the imposition of anti-dumping or countervailing duties upon the third country.]]

[14.2 Such an application shall be supported by price information to show that the imports are being dumped [ or subsidized] and by detailed information to show that the alleged dumping [ or subsidy] is causing injury to the domestic industry concerned in the third country. The government of the third country shall afford all assistance to the authorities of the importing country to obtain any further information which the latter may require.]


[ ARTICLE 15
DEVELOPING COUNTRY MEMBERS]

[15.1 It is recognized that special regard must be given by developed country Members to the special situation of developing country Members when considering the application of anti-dumping 
[ or countervailing]
measures under this Agreement. [ Possibilities of constructive remedies provided for by this Agreement shall be explored] Before applying anti-dumping [or countervailing] duties, [ exporters shall be offered a price undertaking or the exporting country shall be warranted the opportunity to eliminate the subsidy programs, whatever the case may be. Investigating authorities shall provide adequate opportunities for consultations to discuss the price undertaking or subsidy program elimination or any other constructive remedies provided for by this Agreement or other international agreements] [ where they would affect the essential interests of developing country Members]].

[ARTICLE 17
CONSULTATION AND DISPUTE SETTLEMENT]

[17.1 N [ Any dispute arising between and among the Parties with respect to the implementation of this Chapter shall be referred to the FTAA Dispute Settlement Mechanism and Procedures.] 
[ in this Agreement.] [ FTAA Dispute Settlement Mechanism and Procedures]. [ For this purpose, this Chapter shall be subject to the same rules governing interpretation and examination of facts and evidence that are applied to the other chapters of the FTAA.
]]

[14.1 N [ As soon as possible after an application under Article 5 is accepted, and in any event before the initiation of any investigation, FTAA Parties the products of which may be subject to such investigation shall be invited for consultations with the aim of clarifying the situation as to the matters referred to in paragraph 2 of Article 5 and arriving at a mutually agreed solution.

2. Furthermore, throughout the period of investigation, FTAA Parties the products of which are the subject of the investigation shall be afforded a reasonable opportunity to continue consultations, with a view to clarifying the factual situation and to arriving at a mutually agreed solution.
11

3. Without prejudice to the obligation to afford reasonable opportunity for consultation, these provisions regarding consultations are not intended to prevent the authorities of a Party from proceeding expeditiously with regard to initiating the investigation, reaching preliminary or final determinations, whether affirmative or negative, or from applying provisional or final measures, in accordance with the provisions of this Agreement.

4. The FTAA Parties which intends to initiate any investigation or is conducting such an investigation shall permit, upon request, the Party or Parties the products of which are subject to such investigation access to non-confidential evidence, including the non-confidential summary of confidential data being used for initiating or conducting the investigation.

5. Each FTAA Party undertakes to accord sympathetic consideration to and afford adequate opportunity for consultation regarding any representations made by another Party concerning an application for anti-dumping action on behalf of that Party in accordance with the provision of paragraphs 1 and 2 of this Article.]

[17.2 N [ Within three years of the entry into force of this Agreement the Parties shall review the feasibility of establishing a binational and/or inter-subregional mechanism to replace judicial, arbitral or administrative tribunals or proceedings for the purpose, inter alia, of the prompt review of administrative actions relating to the final determinations and reviews of determinations within the meaning of Article _ of this Chapter. 
The provisions of Article 17.6 of the Antidumping Agreement therefore would be deleted.]]


[17.1 (DS) Where a panel or the Appellate Body concludes that a measure is inconsistent with a covered agreement, it shall recommend that the [ Member Party] concerned bring the measure into conformity with that agreement. [ In addition to its recommendations, ] The panel or Appellate Body may [ suggest recommend] ways [ and time] in which the [ Member Party] concerned [ could implement the recommendations shall bring the measure into conformity with the Agreement.]


[ Where an antidumping or countervailing duty decreases or is eliminated as a result of a recommendation by a panel or the Appellate Body, the importing Party shall promptly proceed to modify any bonds that had previously offered or to reimburse any security paid in excess of the final margin, including any interest accruing therefrom.
]]


[ARTICLE 18
PUBLIC INTEREST]

[18.1 N [ No antidumping duties, including provisional duties, may be imposed before the consumers have been afforded the opportunity to voice their opinion regarding the advisability of levying said duty on the product under investigation.]

[18.1 N [ Throughout the antidumping investigations conducted in conformity with the provisions of this Chapter, the authorities shall consider the broader interest of the other economic agents in the market for the like product, who are not part of the domestic industry affected.]

[ In this regard, after an investigation has been initiated, the antidumping authorities shall invite, to the extent possible, duly organized and identified final and intermediate consumers to submit information on the impact of the imports of the like product on their business performance and the potential effects of the enforcement of antidumping measures. They shall be granted reasonable time periods and opportunity during the investigation to air their views. To this end, the antidumping authorities may submit questionnaires to the economic agents referred to in paragraph ( ).] 

The Parties undertake, to maintain, as far as possible, consistency in the implementation of their antidumping and competition policies in their trade relations. 

In this connection, the antidumping authorities shall, in order to have as many facts as possible for reaching a decision on the imposition of definitive antidumping duties, take steps to seek the opinion of the relevant authorities on the effects that a possible imposition of antidumping duties could have on the market of the importing Party.]]

[18.1 N [ After all the requirements for the imposition of an antidumping or countervailing duty have been fulfilled, the investigating authority shall, on its own initiative or upon request by any domestic interested person, conduct a public interest inquiry if there are reasonable grounds to consider that the imposition of such a duty, or the imposition of such a duty in the full amount, might not be in the public interest. The procedures for such inquiries shall allow the investigating authority to take due account of the representations made by any domestic person whose interests might be affected by the imposition of the antidumping or countervailing duty, including industrial users of the product under investigation and representative consumer organizations. The procedures shall also allow the investigating authority to take due account of representations made by the domestic competition law authority.]]

[ARTICLE 19
ELIMINATION OF ANTIDUMPING MEASURES]

[19.1 [ When the free trade area is established and goods circulate among countries of the FTAA fundamentally free of restrictions, the countries shall renounce the use of antidumping measures for reciprocal trade.]]


[ANTIDUMPING AND COUNTERVAILING DUTY MEASURES]

[1. [ No provision of any other Chapter of this Agreement shall be construed as imposing obligations on a Party with respect to the Party’s antidumping law or countervailing duty law. Each Party reserves the right to apply its antidumping law and countervailing duty law to goods imported from the territory of another Party. Antidumping law and countervailing duty law include, as appropriate for each Party, relevant statutes, legislative history, regulations, administrative practice, and judicial precedents. Each Party reserves the right to change or modify its antidumping law or countervailing duty law.]]]

 

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6 [A preliminary affirmative determination shall be based on evidence establishing a strong prima facie case and that there is a substantial issue to be investigated.]

7 [In principle preliminary measures shall not be imposed unless authorities judge that the consequent injury to a domestic industry is not adequately compensable unless interim relief is granted, and that the balance of interests favours the granting of relief sought. In exceptional cases where the threat of consequent injury affect a critical growth industry in an FTAA small economy special flexibility shall be accorded.]

8 [Should the case arise where an undertaking offered by a small and medium sized exporter is not accepted authorities shall provide to the exporter the reasons which have led them to reject the undertaking and shall give the exporter an opportunity for a fair hearing.]

9 [In investigations involving small and medium-sized exporters the authorities of the importing Member shall suggest price undertakings in preference to the imposition of provisional measures or anti-dumping duties. No small and medium-sized exporter, however, shall be forced to enter into such undertakings.]

10 [ When authorities have limited their examination in accordance with the second sentense of paragraph 10 of Article 6, any anti-dumping duty applied to imports from exporters or producers not included in the examination shall not apply to small and medium sized exporters or producers based in small economies]

11 [It is particularly important, in accordance with the provisions of this paragraph, that no affirmative determination whether preliminary or final be made without reasonable opportunity for consultation having been given.]

 

 
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