30 November 1992

I. INTRODUCTION

1. In a communication to the Committee on Anti-Dumping Practices ("the Committee") circulated on 17 June 1991 (ADP/57), Norway informed the Committee that on 2 May 1991 consultations had taken place under Article XXIII:1 of the General Agreement between the United States and Norway on the imposition of anti-dumping duties by the United States on imports of fresh and chilled Atlantic salmon from Norway. This communication stated that it was the understanding of Norway that these consultations were also to be considered as consultations under Article 15:2 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade (hereinafter referred to as "the Agreement"). This understanding was confirmed by the United States in a communication circulated in document ADP/58, dated 17 June 1991.

2. A request by Norway for conciliation under Article 15:3 of the Agreement in this matter was circulated to the Committee on 11 July 1991 (ADP/61). The Committee held a meeting to examine this matter under Article 15:3 on 19 July 1991 (ADP/M/33).

3. On 24 September 1991, Norway requested that the Committee establish a panel in this dispute under Article 15:5 of the Agreement (ADP/65). On 16 October 1991, Norway supplemented its initial request for the establishment of a panel with a list of issues to be examined by the panel (ADP/65/Add.1).

4. At its regular meeting held on 21 October 1991, the Committee decided to establish a panel in the matter referred to the Committee by Norway in documents ADP/65 and Add.1. The Committee authorized its Chairman to decide, in consultation with the parties to the dispute, on the terms of reference of the Panel, and to decide, after obtaining the agreement of the two parties, on the composition of the Panel. The EEC reserved its right to present its views to the Panel as an interested third party (ADP/M/35).

5. On 6 November 1991, the Committee was informed by the Chairman in document ADP/69 that the terms of reference of the Panel established in this dispute were the following:

In the same communication, the Chairman informed the Committee that the composition of the Panel was as follows:

Chairman: Mr. Janus Kaczurba

Members:

Mr. Peter Gulbransen

Mr. Meinhard Hilf

6. The Panel met with the parties to the dispute on 22 and 24 January, 4 and 6 March and 1 October 1992. The Panel heard the delegation of the EEC on 22 January 1992.

7. The Panel submitted its findings and conclusions to the parties on 23 October 1992.¹

8. The dispute before the Panel concerned the imposition by the United States on 12 April 1991 of an anti-dumping duty order on imports of fresh and chilled Atlantic salmon from Norway. The imposition of this order followed an affirmative final determination of dumping by the United States Department of Commerce and an affirmative final determination of injury by the United States International Trade Commission (USITC) with respect to these imports.

9. The anti-dumping duty investigation which led to the above-noted determinations was initiated by the Department of Commerce on 20 March 1990 after the Department had on 28 February 1990 received a petition for the initiation of an investigation from The Coalition for Fair Atlantic Salmon Trade, comprised of domestic producers of fresh and chilled Atlantic salmon. Also on 20 March 1990 the Department initiated a countervailing duty investigation with respect to these imports.

10. As indicated in the public notice of the initiation of this investigation, the product covered by the investigation was the species Atlantic salmon. All other species of salmon were excluded. The notice explains that "Atlantic salmon is a whole or nearly whole fish, typically (but not necessarily) marketed gutted, bled and cleaned, with the head on. The subject merchandise is typically packed in freshwater ice ("chilled"). Excluded from the subject merchandise are fillets, steaks, and other cuts of Atlantic salmon. Also excluded are frozen, canned, smoked or otherwise processed Atlantic salmon".²

11. This notice also explains that, while the petitioner had requested the Department to examine whether sales of salmon took place at prices below costs of production, at the time of the initiation of the investigation the Department of Commerce found the information provided by petitioner insufficient to warrant the initiation of a sales below costs of production investigation.

12. On 16 April 1990, the USITC issued a preliminary affirmative determination of injury in the anti-dumping duty investigation of imports of fresh and chilled Atlantic salmon from Norway. An affirmative preliminary determination of dumping by the Department of Commerce was published on 3 October 1990. As a result of this affirmative preliminary determination, the US Customs Service was instructed by the Department of Commerce to suspend liquidation of all entries of fresh and chilled Atlantic salmon from Norway³ which were entered, or withdrawn from warehouse, for consumption, on or after 3 October 1990⁴ and to require a cash deposit or bond for all entries of this product corresponding to the preliminarily estimated margins of dumping, ranging from 1.90 to 4.76 per cent ad valorem.

13. The Federal Register Notice of the affirmative preliminary determination of dumping explains that, for seven out of the eight investigated exporters, the volume of home market sales was insufficient to constitute a viable basis for the calculation of the normal value. For these exporters, the provisional normal value was established on the basis of export prices to EEC countries⁵. The Notice also indicates that, at the time of the preliminary determination, the Department of Commerce was investigating an allegation by the petitioner that the export sales to the EEC markets used as a basis for the calculation of the provisional normal value were made at prices below costs of production and that, for the purpose of its investigation of this allegation, the Department had on 21 August 1990 "delivered cost of production questionnaires to eleven fish farmers who reportedly supplied the eight exporters with the subject merchandise during the period of investigation". ⁶

14. An affirmative final determination of dumping ("sales at less than fair value") in this investigation was issued by the Department of Commerce on 25 February 1991.⁷ The Department found margins of dumping for the eight Norwegian exporters of salmon under investigation, ranging from 15.65 to 31.81 per cent ad valorem, and established an "all others" margin of dumping of 23.80 per cent ad valorem.

15.As explained in the Federal Register Notice of the final affirmative determination of dumping, the normal value used for comparison with export prices was determined as follows. Following the allegation by the petitioner that export sales of Atlantic salmon to EEC markets were made at prices below the costs of production, the Department compared the prices of the third country sales to the costs of production of salmon. These costs of production were calculated as the sum of (1) the simple average of the costs of production of farmers from whom the Department had obtained cost of production information through a sampling procedure, and (2) the exporter's selling general and administrative expenses.⁸ Generally, where the Department found for an individual exporter that more than 90 per cent of the third country sales were at prices below cost of production, the normal value was established on the basis of a constructed value.⁹

16. The constructed normal value for salmon sold by each exporter was calculated as the sum of (1) the simple average of the farmers' costs of productionand (2) the exporter's selling, general and administrative expenses, profit and packing. The Notice explains that "for all exporters, profit equal to the statutory minimum 8 per cent of the cost of production was applied" and that "In all cases, for salmon sold on or after January 1, 1990, a five NOK/kg. cost was added to the CV before profit".¹⁰

17. A more detailed description of aspects of the process of selecting the respondents and of the method of determining the normal value applied by the Department of Commerce in this investigation is appropriate for a better understanding of the issues in dispute before the Panel with respect to the determination of dumping.

18. On 30 April 1990, the Department of Commerce issued Section A questionnaires to eight exporters of Norwegian salmon who accounted for more than 60 per cent of imports of Atlantic salmon from Norway during the period of investigation. Included in these Section A questionnaires was a request to the exporters "to provide the name and address of each salmon farm from whom you purchased salmon for export to the United States during the POI." (period of investigation) This information was requested in order for the Department of Commerce to be able to quickly identify these farmers as respondents, if it turned out that the farmers rather than the exporters should be the principal respondents in the investigation. Responses from the exporters to the Section A questionnaires, including lists of the farms with which each exporter had dealt during the period of investigation, were received on 16 May 1990. Responses to Sections B and C of the questionnaire, issued to the exporters on 15 June 1990, were received on 27 July 1990.

19. On 30 April 1990, the Department of Commerce also issued a special questionnaire to three entities involved in the production and sale of salmon in Norway for purposes of determining whether salmon farmers had knowledge, at the time of their sales to exporters, of the ultimate destination of the salmon. Information about the possible knowledge of farmers of the ultimate destination of the product was considered necessary to determine whether the farmers or the exporters were to be treated as respondents in the investigation. It should be noted in this respect that Norwegian salmon exporters generally do not farm salmon and that Norwegian salmon farmers generally do not export salmon. Responses to this special questionnaire were received on 16 May 1990.

20. In order to obtain further information on the farmers' possible knowledge about the ultimate destination of the salmon sold to the exporters, the Department of Commerce on 12 June 1990 issued a supplemental questionnaire to the Norwegian fish farmers' organization, Fiskeoppdretternes Salgslag (FOS). Based on data provided by the FOS in response to this questionnaire, the Department selected a sample of eight farms which were provided with a modified Section A questionnaire on 25 June 1990. On 25 July 1990, the Department determined, based on a review of the responses by these eight farms and other information collected up to that point in the investigation, that Norwegian salmon farmers did not generally know the ultimate market into which their product was sold. The Department concluded that the farmers should be excused from responding to the remaining sections of the questionnaire and that it should continue to consider the exporters as the proper respondent in this case.

21. On 3 August 1990, the petitioner in the investigation requested the Department of Commerce to determine whether export sales of Norwegian salmon to the EEC were at prices below costs of production. In support of this request, the petitioner alleged that actual Norwegian sales prices (the prices submitted by the exporters in their Section B responses) were below the average costs of production reported by a Norwegian Government study. The Department of Commerce accepted this request on 20 August 1990. Because of the structure of the Norwegian industry and the close interrelationship between the exporters and the farms, the Department decided to investigate the farms' costs of production. For the purpose of the investigation of the farms' costs of production, it was decided to develop a sample of farms for each exporter, each sample to be drawn from a universe of farms with which the exporter had actually dealt during the period of investigation. The farms were selected for each exporter from the list of farms submitted by the exporters in their responses to Section A of the questionnaire issued on 30 April 1990. Eleven firms had thus been selected.

22. On 30 August 1990, counsel for the Norwegian respondents reported that several of the farms selected by the Department for purposes of its costs of production investigation had not sold any salmon during the period of investigation to the exporters to which they had been linked. The Department determined that it could not develop new samples of farms for each exporter because it was not possible to determine from the lists provided by the exporters in response to the Section A questionnaire issued on 30 April 1990 which farms actually had sold salmon to the individual exporters during the period of investigation and there was insufficient time left in the investigation to develop a new sample, present questionnaires to new farms and analyze and verify the responses. The Department instead decided to proceed to collect costs of production information from the remaining fish farms selected for the survey, i.e. the seven farms which actually had supplied salmon to the exporters during the period of investigation, and to develop an average cost of production from these remaining farms. A Department of Commerce memorandum dated 13 February 1991 dealt with the question of whether this average costs of production figure should be calculated as a simple, or a weighted average of the costs of production of these famrs (i.e. whether the individual costs of production figures should be assigned a weight proportional to the share in total production volume in Norway of the different size categories of the farms in the sample). The Department found that no basis to weight costs of farms of different sizes and accordingly decided to use a simple average of the costs of production figures of the farms in the sample.

23. A discussion of several aspects of the methodology used by the Department of Commerce to calculate normal value in this investigation appears in the "Interested Party Comments" Section of the Federal Register Notice of the affirmative final determination of dumping.¹¹ Particularly relevant to the matter before the Panel are the interested party comments, and responses by the Department of Commerce to such comments, with respect to the inclusion of a "freezing charge" in the cost of production of the farmers; the use of the highest verified cost of production of any farmer for one farmer, Nordsvalaks, which allegedly had failed to provide certain information, the methodology used to calculate cost of production of the farmers on the basis of the sample used by the Department of Commerce, the issue of whether Atlantic salmon should be treated as a perishable product for purposes of cost of production analysis and for purposes of comparing the normal value to the export prices, and the determination of the amount of certain processing costs.

24. On 2 April 1991, the USITC issued one final determination for the purpose of both the anti-dumping and countervailing duty investigations of imports of fresh and chilled Atlantic salmon from Norway¹², in which it concluded that an industry in the United States was materially injured by reason of imports from Norway of fresh and chilled Atlantic salmon which had been found by the Department of Commerce to be subsidized by the Government of Norway and sold in the United States at less than fair value.

25. Norway requested the Panel to find that the imposition by the United States of an anti-dumping duty order on imports of fresh and chilled Atlantic salmon from Norway was inconsistent with the obligations of the United States under the Agreement. In particular, Norway requested the Panel to find that:

26. Norway initially requested the Panel to recommend to the Committee on Anti-Dumping Practices that it request the United States to revoke the anti-dumping duty order on imports of fresh and chilled Atlantic salmon from Norway or otherwise bring it promptly into conformity with the obligations of the United States under the Agreement. At a later stage, Norway requested the Panel to recommend to the Committee that it request the United States to revoke the anti-dumping duty order and reimburse any anti-dumping duties paid. Norway noted that this request was consistent with previous Panel Reports.¹³

27. The United States requested the Panel to find that the affirmative final determinations of the Department of Commerce and the USITC in the anti-dumping proceeding on imports of fresh and chilled Atlantic salmon from Norway comported with the obligations of the United States under the Anti-Dumping Code. In particular, the United States requested the Panel to find that:

28. The United States also requested the Panel to give a ruling that certain matters raised by Norway were not properly before the Panel (infra, Section IV).

29. However, at the request of the Panel, the United States presented its views on the merits of each of the issues raised by Norway which it considered were not properly before the Panel. The Panel indicated that this request to the United States was without prejudice to the Panel's ultimate decision on the preliminary objections of the United States. On this basis, the United States requested the Panel to find that (i) the initiation of the anti-dumping duty investigation was in accordance with Article 5:1 of the Agreement; (ii) the calculation by the Department of Commerce of the exporters' processing costs was consistent with Articles 6:5 and 6:8 of the Agreement, the inclusion of an eight per cent profit rate in the constructed normal values was consistent with Articles 2:4 and 6:8 of the Agreement, the comparison of an average normal value with individual export prices was consistent with Article 2:6 of the Agreement, and the Norwegian respondents had not been denied national treatment; and (iii) the arguments of Norway based on Article 9:1 of the Agreement were factually incorrect and without a legal basis in the Agreement.

30. The United States requested the Panel to give a preliminary ruling that certain issues raised by Norway were not properly before the Panel. Some of these issues had not been raised by the Norwegian respondents in the administrative proceedings before the investigating authorities in the United States. Other issues were not covered by the Panel's terms of reference and/or had not been raised by Norway during the consultations under Article 15:2 of the Agreement and during the conciliation process which had taken place under Article 15:3 of the Agreement in this dispute.

31. The United States argued that the issues raised by Norway concerning the standing of the petitioner to request the initiation of an investigation on behalf of the domestic Atlantic salmon industry and concerning the comparison of an average normal value to individual export prices had not been raised by the Norwegian respondents before the investigating authorities in the United States and were therefore not admissible in the proceedings before the Panel.

32. The United States argued that the principle that a party must raise an issue, and present all facts, evidence and arguments on that issue before the investigating authorities and may not present any facts, evidence or arguments in the first instance to a reviewing body was manifest in the Agreement. The Agreement provided domestic investigating authorities with the exclusive authority to gather and consider evidence and make findings of fact and law concerning dumping and injury issues (Articles 3-6). The determinations of the investigating authorities must be made on the basis of the information before the agency (Article 6). The investigating authorities must complete their investigation in one year (Article 5:5). In addition, before the administering authorities took final action, they must give all interested parties, including the foreign respondents, "ample opportunity to present in writing all evidence that they consider useful in respect of the anti-dumping investigation in question" (Article 6:1). Interested parties also had the right to present evidence orally (Article 6:1) and had the right "to see all [non-confidential] information that is relevant to the presentation of their cases" and to present their cases in response (Article 6:2). Finally, Article 6:7 mandated that "all parties shall have a full opportunity for the defence of their interests" through an oral hearing. Throughout the investigative process, therefore, the Agreement required that all parties have the opportunity to state all their arguments in order to influence the investigating authorities. Unless the investigating authorities had all the facts and information (and arguments as to how to interpret those facts and information) they could not take "final action" consistent with the procedural prerequisites of the Agreement. Accordingly, not only was there no provision in the Agreement for presentations ex post facto to a Panel of facts or arguments which had not been raised before the investigating authorities, but the terms of the Agreement, in fact, precluded this. Such untimely presentation of arguments would prevent the investigating authorities from conducting a full investigation, thus denying those authorities the opportunity to consider all the evidence and arguments and render determinations on that basis. In specific, untimely arguments would also deny the other parties their rights under Articles 6:1, 6:2 and 6:7 to present evidence to comment on information in the investigation and to confront parties with opposing views.

33. The United States argued that the principle at issue here, called "exhaustion of administrative remedies" in United States legal parlance, was closely akin to the notion of exhaustion of local remedies, which was well-settled in international law. The exhaustion doctrine had two components, a procedural component and a public policy component. The procedural component was that a party must advance through the appropriate fora in sequence. This was reflected in the requirements of Article 15 of the Agreement that consultations be concluded before a Party could resort to conciliation and that the Committee could not convene a panel until the consultation had ended. Procedurally, the administering authorities must also complete their work before a Party could refer the matter to a panel. Other rationales for the doctrine were that it preserved the integrity of the administrative process and allowed all parties to the administrative proceeding an opportunity to consider and address the facts and arguments raised by other parties. The doctrine prevented a reviewing tribunal from usurping the function of the administrative body which had the expertise to rule in the matter. Another purpose was to avoid duplication of effort and waste of resources by the reviewing tribunal. The public policies behind the doctrine of exhaustion of administrative remedies were virtually identical to the rationales underlying the international law rule of exhaustion of local remedies. Under that rule, if a country offered a remedy under its local laws and procedures, the local remedy should be pursued before the country could be haled before an international tribunal for denying such a remedy.

34. The United States noted in this context that, while in the proceedings before the Panel Norway had claimed that the Agreement required investigating authorities, before initiating an investigation, to take steps to satisfy themselves that a request for the initiation of an investigation was filed on behalf of the domestic industry affected, in the case at hand the Norwegian respondents had never asked the Department of Commerce to take such "steps" either during the period before the initiation of the anti-dumping duty investigation or at any time after the initiation of the investigation. In its notice of the initiation of the anti-dumping duty investigation, the Department had invited interested parties to bring to its attention any information related to the petitioner's claim that it had filed the petition "on behalf" of the domestic industry. Yet the Norwegian respondents (all of whom had been represented by the same counsel) had not responded to this invitation. The Department had in recent years rescinded its initiation of investigations after having determined that the petition in question had not been filed on behalf of the relevant domestic industry in the United States.¹⁴ However, the Norwegian participants had never once, during nearly a year of investigation and thousands of pages of filings, given any sign, or made any representation, which could have alerted the Department to the concern belatedly expressed by Norway in the proceedings before this Panel. Had any of the Norwegian participants done so, the Department could have addressed the situation.

35. The United States also argued that the issue raised by Norway concerning the comparison of an ave rage normal value to individual export prices had not been raised before the investigating authorities in the United States and was therefore not admissible in the proceedings before the Panel. Norway had argued before the Panel that export prices should have been segregated by fish size and/or quality. This issue, which would involve the collection and evaluation of facts and arguments from all the parties to the investigation, had not been raised by the Norwegian exporters during the investigation. What had been raised by the exporters was the completely unrelated question of whether export prices should be averaged because of price fluctuations common to all salmon from Norway, regardless of size and quality. As the Federal Register Notice of the affirmative final determination of dumping made clear, the basis for the argument of the exporters that average export prices should be used was the existence of price fluctuations due to the alleged perishability of salmon; the exporters had not addressed the question of quality and size differences.

36. Norway contested that the doctrines of exhaustion of local remedies and of exhaustion of administrative remedies applied to dispute settlement proceedings under the Agreement.

37. With respect to the doctrine of exhaustion of local remedies, Norway submitted the following. First, under public international law, the rule of exhaustion of local remedies applied only to cases of diplomatic protection, as distinguished from cases involving "direct injury" to a state. In dispute settlement proceedings under the Agreement, a Party was not bringing a claim on behalf of one of its nationals: the cause of action in such proceedings was the "direct injury" to a Party in the form of nullification or impairment of benefits accruing to that Party or in the form of the impedance of the achievement of any of the objectives of the Agreement. Second, there was no basis in the text of the Agreement for the application of the doctrine of exhaustion of local remedies. Unlike many other international agreements which included an exhaustion of local remedies requirement, the Agreement did not include such a requirement. Had the Parties intended to include such a requirement (which would have drastically changed the procedural steps delineated in the dispute settlement provisions of the Agreement), they would have done so explicitly. Third, there was no GATT practice recognizing the local remedies doctrine. No GATT Panel had even hinted that exhaustion of local remedies was required. In fact, as demonstrated by recent Panel Reports, GATT practice was contrary to such a requirement.¹⁵ The Vienna Convention on the Law of Treaties directed in Article 31:3(b) that subsequent practice was to be taken into account when interpreting the provisions of an international agreement. In the case of the General Agreement, such subsequent practice clearly did not require the exhaustion of local remedies. The Vienna Convention did not support the incorporation of unexpressed principles of international law. It did allow parties to rely on supplementary means of when interpreting ambiguous terms of a treaty. However, it was one thing to use customary international law to intepret ambiguous terms of an international agreement; it was quite another to read into the Agreement such a major modification as the local remedies doctrine. If this principle was to be required, the decision had to come through reflective consideration and negotiation by all Parties at the multilateral level.

38. Norway also submitted that the exhaustion of local remedies requirement was a narrow rule in public international law, applicable only to international adjudication, unless otherwise explicitly directed in an international agreement. There was no customary international law rule which required the exhaustion of local remedies in any other kind of international dispute fora. For example, international arbitration agreements were not subject to the requirement of exhaustion of local remedies. Furthermore, international tribunals which had applied the exhaustion of local remedies doctrine had taken a flexible approach in its application and had required exhaustion only after carefully balancing the practical and political pros and cons of doing so. In particular, public international law made the application of the exhaustion of local remedies dependent on criteria of reasonableness and did not require such exhaustion where local remedies were inadequate and ineffective.¹⁶ No adequate remedy was available for Norway in the courts of the United States for a breach by the United States of its GATT obligations. US domestic law did "not provide a meaningful legal requirement that GATT law be observed".¹⁷ In fact, a US trade statute specifically commanded that no provision of any trade agreement, nor the application of any such provision to any person or circumstance, in conflict with any United States statute, shall be given effect under the laws of the United States.¹⁸ In addition, many courts in the United States refused to give full legal effect to the General Agreement.¹⁹ Thus, there were no effective local remedies to exhaust in the United States in case of a breach of the General Agreement by the United States.

39. Norway further argued that strong policy considerations dictated that a local remedies doctrine not be applied to dispute settlement proceedings under the Agreement. The imposition of an exhaustion of local remedies requirement would result in years of delay in the dispute settlement process and would therefore be inconsistent with the Agreement's purpose of the effective and timely resolution of disputes. Finally, even if one were to apply the requirement of exhaustion of local remedies to dispute settlement proceedings under the Agreement, account had to be taken of the fact that, as confirmed in a recent judgement of the International Court of Justice, international law permitted the use of a rule of reason in the interpretation of the requirement; under this approach, the exhaustion requirement did not mean that each and every minute aspect of a claim had to be raised in the local fora before the claim could be raised at the international level.²⁰

40. Regarding the principle referred to by the United States of exhaustion of administrative remedies, Norway submitted that this principle was a requirement of US administrative law but not a principle of public international law. Since this principle did not originate in public international law, the reasons for not applying it to dispute settlement proceedings under the Agreement were even stronger than in the case of the exhaustion of local remedies doctrine. In any event, the exceptions established under US jurisprudence to the application of the requirement of exhaustion of administrative remedies weighed against the application of this requirement to dispute settlement under the Agreement. Thus, US courts enjoyed a degree of discretion in the application of this requirement and did not apply it when the administrative remedy was inadequate and when resort to agency proceedings would be futile. Given that US trade law was not required to be in conformity with relevant international agreements (supra, paragraph 38) there were no "effective" administrative remedies to exhaust in cases involving an action of the United States inconsistent with its obligations under the General Agreement. Since the United States Department of Commerce and other relevant agencies often did not apply GATT law on any consistent basis, it was also often futile for a contracting party to raise GATT related issues before these agencies.

41. Norway also observed in this context that a major rationale for the application of the requirement of administrative remedies was that it was inefficient and inappropriate to have courts review factual issues which could more effectively be considered by an agency having expertise in that area. In light of this, courts had often excused the exhaustion requirement when reviewing issues of law, as opposed to issues of fact. The issues raised by Norway before this Panel similarly concerned issues of law, not of fact. The questions before the Panel concerned not what the facts were but whether the interpretation and consideration of the facts by the United States were in conformity with the obligations of the United States under the Agreement.

42. Norway did not contest that the issue of the standing of the petitioner in the anti-dumping duty investigation had not been raised before the investigating authorities in the United States by the Norwegian respondents. However, the question of whether the petitioner was acting on behalf of the domestic industry had been raised in a letter to the Department of Commerce from a domestic producer, prior to the initiation of the investigation. The Department had ignored this letter. More importantly, the Panel established by the Committee on Anti-Dumping Practices in the dispute between Sweden and the United States in "United States - Imposition of Anti-Dumping Duties on Imports of Seamless Stainless Steel Hollow Products from Sweden"²¹ had held that, before initiating an investigation, investigating authorities were required to satisfy themselves that a written request for the initiation of the investigation was filed on behalf of the domestic industry. To satisfy themselves as to industry support, the investigating authorities must take affirmative steps. The Panel had found that it was not sufficient to rely upon statements by petitioners claiming to be acting on behalf of the domestic industry. Thus, the question of the standing of a petitioner did not need to be raised by any party: investigating authorities were under an affirmative obligation to satisfy themselves that a petition was filed on behalf of the domestic industry. Indeed, in the case considered by the Panel in the dispute between Sweden and the United States, there had been no challenge of the petitioner's standing prior to the initiation of the investigation.

43. Norway further argued that it was consistent practice of the United States to assume that a petitioner was acting on behalf of a domestic industry until such time as a substantial proportion of the domestic industry come forth to oppose the petition.²² The United States would not investigate the standing of a petitioner if the challenge came from foreign private respondents or from a foreign government. There had therefore been no reason for the Norwegian respondents to raise this issue during the investigation.

44. Norway argued that the issue of the comparison of an average normal value to individual export prices had, in fact, been raised in the proceedings before the Department of Commerce. In support, Norway referred to comments by the Norwegian respondents reflected in the Federal Register Notice of the affirmative final determination of dumping.²³ In response to these comments, the Department of Commerce had stated that it had used its "... normal practice of comparing individual US prices to weight-average home market or third country prices".²⁴ This response illustrated the futility of raising in the administrative proceedings issues contesting normal US practice or legislation. Since the United States would continue to apply its "normal practice", it was futile to raise such issues.

TO CONTINUE WITH UNITED STATES - IMPOSITION OF ANTI-DUMPING DUTIES ON IMPORTS OF FRESH AND CHILLED ATLANTIC SALMON FROM NORWAY

¹ See also Annex 4.

² 55 Fed.Reg. 28 March 1990, p.11419

³ Fresh and Chilled Atlantic Salmon from Norway: Determination of the Commission in Investigation No. 731-TA-454 (Preliminary) Under the Tariff Act of 1930, Together with the Information Obtained in the Investigation, USITC Publication 2272, April 1990.

⁴ 55 Fed Reg. 3 October 1990, p.40418

⁵ 55 Fed.Reg, 3 October 1990, pp.40419-40420

⁶ 55 Fed.Reg., 3 October 1990, p.40418.

⁷ 56 Fed.Reg., 25 February 1991, pp.7661-7678.

⁸ 56 Fed.Reg., 25 February 1991, p.7662.

⁹ 56 Fed.Reg., 25 February 1991, p.7664.

¹⁰ 56 Fed.Reg., 25 February 1991, pp.7663-7664.

¹¹ 56 Fed.Reg., 25 February 1991, pp.7664-7678.

¹² USITC Publication 2371 Fresh and Chilled Atlantic Salmon from Norway: Determination of the Commission in Investigation No. 731-TA-454 (Final) Under the Tariff Act of 1930, Together with the Information Obtained in the Investigation, USITC Publication 2371, April 1991 (hereinafter: "USITC Determination").

¹³ e.g. "United states - Imposition of Anti-Dumping Duties on Seamless Stainless Steel Hollow Products from Sweden", ADP/47, paragraph 5.24; "United States - Countervailing duties on fresh, chilled and frozen pork from Canada", DS7/R, 38S/30, paragraph 5.2; "Canada - Imposition of countervailing duties on imports of manufacturing beef from the EEC", SCM/85, paragraph 5.6; and "New Zealand - Imports of electrical transformers from Finland", BISD 32S/55, paragraph 4.11.

¹⁴ e.g. Gilmore Steel Corp. v. United States, 585 F Supp. 670 (CIT 1984), aff'd sub nom. Oregon Steel Mills v. United States, 862 F 2d 1541 (Fed. Cir. 1988).

¹⁵ "United States - Imposition of Duties on Imports of Seamless Stainless Steel Hollow Products from Sweden", ADP/47 and "United States - Definition of Industry Concerning Wine and Grape Products", SCM/71, adopted on 28 April 1982.

¹⁶ Norwegian Loans Case, ICJ Reports (1957), p.9.

¹⁷ Hudec, "The Legal Status of GATT in the Domestic Law of the United States", in: Hilf, Jacobs, Petersmann, (eds.) The European Community and GATT (1986) p.193.

¹⁸ 19 U.S.C. S2504(a) (1983 & Suppl. 1991).

¹⁹ e.g. Algoma Steel Corp. v. United States, 865 F.2d 240 (Fed.Cir. 1989) cert. denied, 492 U.S. 919 (1989).

²⁰ Elettronica Sicula S.p.A. Case, 1989 I.C.J. Reports, p.94.

²¹ ADP/47.

²² e.g. Certain Electrical Conductor Aluminium Redraw Rod from Venezuela, 53 Fed.Reg. p.24764 (1989).

²³ 56 Fed.Reg., 25 February 1991, pp.7673-7674.

²⁴ 56 Fed.Reg., 25 February 1991, p.7674.