RESTRICTEDWORLD TRADE
ORGANIZATIONG/ADP/Q1/BRA/7
G/SCM/Q1/BRA/7
8 May 1998
(98-1833)
Committee on Anti-Dumping Practices
Committee on Subsidies and Countervailing MeasuresOriginal:  English
NOTIFICATION OF LAWS AND REGULATIONS UNDER
ARTICLES 18.5 AND 32.6 OF THE AGREEMENTS
Replies of BRAZIL1  to Questions Posed by
CANADA2 , JAPAN3, TURKEY4, the UNITED STATES5 and VENEZUELA6
The following communication, dated 4 May 1998, has been received from the Permanent
Mission of Brazil.
_______________
CONTENTS
Page No.
Replies of Brazil to Questions Posed by Canada ................................................................. 2
Replies of Brazil to Questions Posed by Japan .................................................................... 2
Reply of Brazil to Ques tion Posed by Turkey ..................................................................... 4
Replies of Brazil to Questions Posed by the United States .................................................. 4
Replies of Brazil to Questions Posed by Venezuela ............................................................ 12
                                                     
1 G/ADP/N/1/BRA/2 and G/SCM/N/1/BRA/2.
2G/ADP/Q1/BRA/4-G/SCM/Q1/BRA/4 , 3
G/ADP/Q1/BRA/5-G/SCM/Q1/BRA/5, 4G/ADP/Q1/BRA/2-
G/SCM/Q1/BRA/2 , 5
G/ADP/Q1/BRA/3-G/SCM/Q1/BRA/3, 6
G/ADP/Q1/BRA/6-G/SCM/Q1/BRA/6.G/ADP/Q1/BRA/7
G/SCM/Q1/BRA/7
Page 2
Replies of Brazil to Questions Posed by Canada
Q.1. The notification in WTO document G/ADP/N/1/BRA/2 does not appear to include
provisions for judicial review of decisions and incorporation of any required actions arising
from such reviews or incorporation of WTO Panel decisions.  Could Brazil please explain the
manner in which judicial reviews and WTO Panel reports will be adopted?
A.1. The right to recourse to the Brazilian judicial system is guaranteed by the Brazilian
Constitution as established by Art. 5.XXXV:  "The law will not exclude from appreciation of the
judicial system damages or threats to a right".  For this reason the possibility of judicial review of
ADP and CVD actions was not included in the text of the Decrees, since this right is already
guaranteed by the Federal Constitution, which is hierarchically superior to any legal regulation.
In case any interested party considers that his rights were not duly respected, the party may
have recourse to the Brazilian judicial system.
In relation to the manner in which WTO Panel reports are adopted, the complete text of the
Final Act of the Uruguay Round was incorporated into the Brazilian legal system by means of a
Presidential Decree (Dec. 1.355/94).  Accordingly,  the WTO Agreements have the same hierarchical
level as laws.  As such, Decree No. 1.355/94 has a distinct character from other subsequent legal
instruments (Decree, Ministerial Orders) and has precedence over them.
For this reason, the provisions of the WTO co ncerning dispute settlement proceedings and
obligations as established by the "Understanding on Rules and Procedures Governing the Settlement
of Disputes" and by Art. 17 of the A-D Agreement ar e incorporated in Brazilian legislation as laws.
Q.2. Article 58.5 mentions that restitution will be made when a review reveals that the
amount of duty being collected is higher than necessary for neutralizing the injurious effects ofthe dumping.  Could Brazil please explain how far back in time it will review importations to
see if a refund is warranted?
A.2. As established in Art. 58.3 of the AD Decree the review procedures shall adhere to Section III
of Chapter V of the Decree.  This means that, with respect to the period for data collection, the
provisions of Arts. 25.1 and 25.2 of the Decree shall apply.  That is:  the period for ascertaining theexistence of dumping must include the 12 previous months as close as possible to the initiation of the
review and must never be less than six months;  the period for examination of data regarding injury
shall include the period during which dumping was examined and shall be not less than three years.
Replies of Brazil to Questions Posed by Japan
Q.1. Article 2.2 of the A-D Agreement provides that "the margin of dumping shall be
determined by comparison ... with the cost of production in the country of origin plus a
reasonable amount for administrative, selling an d general costs and for profits".  Could Brazil
explain the reason why general costs are excluded from the normal value in Article 6 and 6.1 of
the "Decree No. 1602 of 23 August 1995" (hereinafter "the Decree")?
A.1. In Brazilian accounting practice, general costs are included in administrative and selling
costs.
Q.2. Article 3.6 of the A-D Agreement provides that "[t]he effect of the dumped imports shall
be assessed in relation to the domestic production of the like product".  How does Brazil explainG/ADP/Q1/BRA/7
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the difference between "the domestic production" above and "the domestic industry" stated in
Article 15.2 of the Decree?
A.2. There was an error in the translation from the Portuguese to the English version.  The original
text in Portuguese reads:  "(...) shall be assessed in relation to the production of the domestic industry,
when available data permit separate identification of such production, based on criteria such as the
productive process, producers' sales and profits".
It is the understanding of the Brazilian authorities that the expression "production of the
domestic industry" in Art. 15.2 of the A-D Decree has the same meaning as "domestic production of
the like product" (Art. 3.6 of the A-D Agreement), since the expression "domestic industry" has been
defined in Art. 17 of the AD Decree as referring to the production of the like product.
Q.3. Article 16 of the Decree provides that "[t]he determination of the existence of a threat of
material injury shall be based on facts and on a convincing reason".  Does it mean that "a
convincing reason" is derived from "facts"?  If not, what can be a "convincing reason" to
determine the existence of a threat of material injury?
A.3. The "convincing reason" should be supported by the facts analysed.  Besides being based on
the available facts, the determination of threat of material injury must include an explanation of why
those facts would result in a situation of material injury.
Q.4. As to Article 17.3 of the Decree, what is the criteria on "control operationally"?  In
which cases is control considered to exist opera tionally, and in which cases not?  Please show
them concretely and comprehensively.
It is the understanding of the Brazilian authorities that the concept of "related parties"
encompasses any kind of relationship between parties which implies dependency or a significantinfluence of one party upon the other, be it expressed in a legal document or not.  Consequently, this
relationship is of such a nature that negotiations between the two parties are different from what they
would be if the parties were independent (non-related).
For the purpose of determining if parties are related, it is necessary to examine if one party
influences the activities of the other in such a way and in such a degree that the second one would not
take decisions autonomously.  Besides the legal aspect of the relationship between the parties, one of
the main elements to be examined is the nature of this relationship.  Examples of situations in which
"operational control" may occur are economic, financial or technological linkages between the
company and its customers, suppliers or financing agencies.
It should be noted that the language of Art. 17.3 of the AD Decree follows that of Footnote 11
of the A-D Agreement.
Q.5. Article 21.3(a) of the Decree provides that "domestic producers of the like product and
the association that represents them".  Could Brazil show numerical criteria to define
"represent"?
No, there are no numerical criteria.  Nevertheless, Brazilian authorities would interpret this
expression in a non-restrictive way.
Q.6. As to Article 59 of the Decree, please explain the procedure for "an immediate summary
review" and its consistency with the A-D Agreement.G/ADP/Q1/BRA/7
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Art. 59 refers to the provisions of Art. 9.5 of the A-D Agreement and the procedures are
equivalent to those of the other types of revision, except for its expeditious nature and for the fact that
during the summary review anti-dumping duties will  not be levied on imports originating from the
exporters or producers cited in this review, as established by Art. 59.1 of the AD Decree.
Reply of Brazil to Question Posed by Turkey
Q. Is there any specific domestic provision regulating the anti-dumping duty that is
implemented in isolated markets?  Does your Constitutional Law permit the levying of anti-
dumping duties on such a basis?
A. The domestic provision regulating the application of anti-dumping duties in the exceptional
circumstances established by Article 4.1(ii) of th e A-D Agreement is Article 47 of Decree 1602/95.
The Constitutional Law does not restrict the levying of anti-dumping duties on such basis.
Replies of Brazil to Questions Posed by the United States
I. Questions regarding Decree No.1602 (Anti-Dumping Decree) and Decree No. 1751
(SCM Decree)
Q.1. Could Brazil clarify whether Decree No. 1602 and Decree No. 1751 supersede the anti-
dumping and countervailing duty countervailing provisions of Provisional Measure No. 926 of
1 March 1995 (G/ADP/N/1/BRA/1); (G/SCM/N/1/BRA/ 1), or whether those measures remain in
effect?
A.1. Decree No. 1602/95 and Decree No. 1751/ 95 do not supersede Provisional Measure
No. 926/95 (Law 9019/95).
The Provisional Measure No. 926 of 1 March 1995 has been republished as Law No. 9019
dated 30 March 1995.  This republication is part of the Brazilian legislative process and there havebeen no modifications to the contents of the Pr ovisional Measure No. 926.  So Provisional Measure
No. 926 remains presently in force as Law 9019.
Law 9019 establishes the juridical nature of anti-dumping and countervailing duties, defines
the competent authorities entitled to conduct investigations and to apply anti-dumping and
countervailing measures and establishes general principles concerning the application and collectionof A-D and CVD duties, subject to Presidential Decree 1.355/94 which promulgated the complete text
of the Final Act of the Uruguay Round.
When Law 9.019/95 was promulgated the Brazilian Congress had already approved the
complete text of the Final Act of the Uruguay Round by Legislative Decree No. 30/1994, dated
15 December 1994, which was promulgated by a Presidential Decree (Decree No. 1355/94, dated31 December 1994).  Having been incorporated into the Brazilian legal system by means of this
Presidential Decree, the WTO Agreements have the same hierarchical level as laws.  As such, the
Decree No. 1.355/94 has a distinct character fro m other subsequent legal instruments (Decree,
Ministerial Orders) having precedence over them.
The "Anti-Dumping Agreement" and the "Agreement on Subsidies and Countervailing
Measures - GATT 1994", which were introduced in Brazilian legislative system by Decree No.
1.355/94, were implemented by Decree No. 1602/95 and Decree No. 1.751/95.
Q.2. In response to an earlier question regar ding judicial review of anti-dumping and
countervailing duty actions, the Brazilian Government advised that judicial review of suchG/ADP/Q1/BRA/7
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Page 5
actions is guaranteed by means of recourse to the Brazilian judicial system.  (G/ADP/W/279;
G/SCM/W/289).  Neither the Anti-Dumping Decree nor the SCM Decree provides for judicial
review of anti-dumping and countervailing duty determinations as required by Article 13 of the
Agreement on the Implementation of Article VI of the General Agreement on Tariffs and Trade
1994 (A-D Agreement) and Article 23 of the Agreement on Subsidies and CountervailingMeasures (SCM Agreement).  Where else in Braz ilian law is such a right provided and how is
that law consistent with Article 13 of the A-D Agreement and Article 23 of the SCM
Agreement?
A.2. The right to recourse to the Brazilian judicial system is guaranteed by the Brazilian
Constitution as established by Art. 5.XXXV:  "The law will not exclude from appreciation of thejudicial system damages or threats to a right".  For this reason the possibility of judicial review of
ADP and CVD actions  was not included in the text of the Decrees, since this right is already
guaranteed by the Federal Constitution, which is hierarchically superior to any legal regulation.
In case any interested party considers that his rights were not duly respected, the party may
have recourse to the Brazilian judicial system.
Q.3. (a) While both Article 14.4 of the Anti-Dumping Decree and Article 3.2 of the A-D
Agreement refer to “significant” price depression, instead of also referring to
preventing domestic price increases “to a significant degree” as in the A-D
Agreement, Article 14.4 of the Anti-Dum ping Decree requires consideration of
whether prices of the dumped imports are "impeding in a relevant way price
increases which would have occurred in the absence of such imports".  Explain
whether impeding price increases “in a relevant way” is consistent with theobligation to consider whether price increases which would otherwise have
occurred, are prevented “to a significant degree”?
A.3. (a) It is the understanding of the Brazilian authorities that the expression "in a relevant
way" implies, as the expression "to a significant degree" of Art. 3.2 of the AD
Agreement also does, a quantitative evaluation of actual and potential changes in
prices.
Q.3. (b) Explain how the reference to import pr ices that “prevent price increases, which
would otherwise have occurred” without any modifier in Article 21.5 of the SCM
Decree is consistent with Article 15.2 of the SCM Agreement.
A.3. (b) There was an omission in the translation from the Portuguese to the English version.
The original text in Portuguese contains the expression "in a relevant way".  Art. 21.5of the Decree No. 1751 in English should read:  "(...) to prevent price increases in a
relevant way , which otherwise would have occurred."  It is the understanding of the
Brazilian authorities that this language implies, as the expression of Art. 15.2 of the
SCM Agreement also does, a quantitative evaluation of actual and potential changes
in prices.
Q.4. In addition to the known factors other than dumped or subsidized imports that must be
examined pursuant to Article 3.5 of the A-D Agreement and Article 15.5 of the SCM Agreement
in determining the causal relationship between dumped or subsidized imports and injury to thedomestic industry, Article 15.1 of the Anti-Dumping Decree lists the “impact of the process of
liberalization of imports on domestic prices” and Article 22.1 of the SCM Decree lists “the
impact of alterations in import tariffs on the domestic prices”.  Please define the “process of
liberalization of imports” and explain whether it  has the same meaning as “alterations in import
tariffs”.  Please explain how Brazil analyses these factors.G/ADP/Q1/BRA/7
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A.4. "Process of liberalization of imports" means the process of reduction on the general level of
protection imposed on imported goods.
By the time Brazilian authorities were elaborating the Decrees, the import liberalization
programme was being implemented.  So the reason to specify this factor as "other factors" was to
guarantee that the impact of tariff reduction upon domestic industry would not be attributed todumped imports.  Although the SCM Decree and AD Decree have different wording, both have
similar meaning and imply the same kind of analysis.
To evaluate the impact of tariff reductions upon the domestic industry, the authorities
calculate the decrease in prices of imported goods entered for consumption, resulting from tariff
reductions.  The decrease in domestic prices resulting from the reduction of import costs would not be
attributed to dumped imports.
Q.5. Are the “appropriate steps which ... will provide for the imposition of the definitive”
duties referred to in Article 22 of the Anti-Dumping Decree and Article 31 of the SCM Decree to
be taken prior to the issuance of preliminary determinations of dumping and injury, and, if so,
how are they consistent with Article 7.1 paragraphs (ii) and (iii) of the A-D Agreement and
Article 17.1 paragraphs (b) and (c) of the SCM Agreement?
A.5. Arts. 7.1(ii) and (iii) of the A-D Agreement correspond to Arts. 34.II and III of the AD
Decree.  Arts. 17.1(b) and (c) of the SCM Agreement correspond to Arts. 44.II and III of the SCM
Decree.  Those articles  establish the requirements that must be fulfilled for the application of anti-
dumping and countervailing provisional measures.
Art. 22 of the AD Decree and Art. 31 of the SCM Decree refer to a procedure of notification
to the customs authorities about the initiation of an A-D and CVD investigation.  The purpose of thisnotification is to ensure that these authorities adopt the necessary customs procedures that would
permit the collection of eventual retroactive A-D and CVD duties, taking into account the conditions
established by Arts.10.6, 10.7 and 10.8 of the A-D Ag reement (Art. 54 of the AD Decree) and by Art.
20.6 of the SCM Agreement (Art. 64 of the SCM Decree).
This notification is made as soon as the init iation of the investigation is published in the
"Diário Oficial" (Official Gazette).  It has an exclusively informative nature and does not result in any
specific procedure referring to an application of provisional measures, which is necessarily subject to
the conditions of Art. 7 of the A-D Agreement (A rt. 34 of the AD Decree) and Art. 17 of the SCM
Agreement (Art. 44 of the SCM Decree).  As established by Art. 22 of the AD Decree and by Art. 31
of the SCM Decree, the arrangements adopted by the Secretary of the Federal Revenue pursuant tothese articles shall not hinder the procedures of customs clearance.
Q.6. How do the Anti-Dumping Decree and SCM Decree incorporate the requirement in
Article 6 note 18 of the A-D Agreement and Article 12 note 43 of the SCM Agreement that
requests for confidentiality shall not be arbitrarily denied?
A.6. This requirement was incorporated as a general principle in the Brazilian legislation by
Decree No. 1355/94 and it is consequently observed by the investigating authorities.G/ADP/Q1/BRA/7
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Q.7. What are the “internal Government documents” referred to in Article 32 of the Anti-
Dumping Decree and Article 42.2 of the SCM Decree?  How is their unavailability to interested
parties consistent with (1) the obligation imposed by Article 6.4 of the A-D Agreement and
Article 12.3 of the SCM Agreement to make avai lable all non-confidential information “that is
used by the authorities” and (2) the obligation imposed by Article 6.9 of the A-D Agreement andArticle 12.8 of the SCM Agreement to “inform all interested parties of the essential facts under
consideration”?
A.7. "Internal Government documents" refer to notifications or communications among
governmental agencies referring to the situation of the investigation and to technical reports (opinions
which set forth in detail the findings and conclusions reached on all issues of fact and law considered
by the investigating authorities.  The non-confidential version of these technical reports are made
public to all interested parties once the relevant decisions are made and the respective notice ispublished in the "Diário Oficial" (Official Gazette).
The obligation imposed by Art. 6.9 of the A-D Agreement and Art. 12.8 of the SCM
Agreement is complied by the procedures established in Art. 33 of the AD Decree and Art. 43 of the
SCM Decree.  These articles determine that before the preparation of the technical report which will
lead to the final determination, SECEX will hold a hearing in which the interested parties will be
informed of the essential facts under examination that form the basis of the opinion.
Q.8. Explain whether public notices provided for in the ‘Diário Oficial’ will include the
information set forth in Articles 12.1.1, 12.2.1, 12.2.2 and 12.2.3 of the A-D Agreement and
Articles 22.2, 22.4, 22.5 and 22.6 of the SCM Agreement.
A.8. Brazilian public notices include a summary of the technical report and contain detailed
information about the conclusions reached regarding each matter of fact and of law considered
pertinent, in keeping with the terms of Arts. 12.1, 12.2.1, 12.2.2, 12.2.3 of the A-D Agreement and of
Art. 22 of the SCM Agreement.  Besides, the parties have access to the non-confidential version of the
technical report once the relevant decision has been made.
Q.9. Explain how Article 61 of the Anti-Dumping Decree and Article 71 of the SCM Decree,
which do not state that decisions in anti-dumping and countervailing duty investigations will
include reasons for the acceptance or rejection of principal arguments made by exporters and
importers, are consistent with the requireme nts of Article 12.2.2 of the A-D Agreement and
Article 22.5 of the SCM Agreement?
A.9. Art. 61 of the AD Decree and Art. 71 of the SCM Decree refer to the obligation of giving
public notices about the decisions taken by the authorities.  As stated by these articles, the public
notices shall contain detailed information about the conclusions  reached regarding each matter of fact
and of law considered to be pertinent.
In Art. 71 of the SCM Decree an explicit mention is made to the obligation to comply with
the terms of Art. 22 of the SCM Agreement.  In the AD Decree the equivalent reference is not made.
Nevertheless, the requirements established by Art. 12 of the A-D Agreement must be observed since
they are contained in Decree No. 1.355/94.  This Decree includes the complete text of the A-D and
SCM Agreements of the WTO and has precedence ov er the AD Decree (Decree No. 1602/95) and the
SCM Decree (Decree No. 1751/95).G/ADP/Q1/BRA/7
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II. Questions regarding specific provisions of Decree 1602 (Anti-Dumping Decree)
Q.10. Article 1 refers to, but does not define , “primary and non-primary dumped products.”
Does the use of this term expand or reduce the applicability of the A-D Agreement to all goods?
A.10. The use of the term "primary and non-primary dumped products" neither expands nor reduces
the applicability of the A-D Agreement.  This expression was adopted to make clear that all types ofproduct are subject to the same procedures in A-D investigations.
Q.11. Are the provisions of Article 17.4 of the Anti-Dumping Decree paragraphs (a) and (b)
with respect to the establishment of a regional industry consistent with the requirements of
Article 4.1 of the A-D Agreement in light of their failure to include the connector “and”
indicating that both paragraphs must be satisfied?
A.11. There was an omission in the translation from the Portuguese to the English version.  The
original text in Portuguese contains the connector "and".
Q.12. Article 21.2 of the Anti-Dumping Decree provides that, upon initiation of an
investigation and publication of such notice in the Diário Oficial, “the known involved parties
shall be notified and shall be granted a period of twenty days ... for an application requesting
the qualifying of other parties that are consid ered as being interested, with the respective
indication of their legal representatives, pursuant to the provision of relevant legislation.”Please clarify whether this refers to a deadline for entry of appearance by counsel for all parties
and/or for parties not named in the petition to identify themselves as interested parties.  What is
the “relevant legislation” referred to and what does it provide?
A.12. This provision refers to a deadline for all parties not named in the petition to identify
themselves as interested parties.  The"relevant legislation" is "Código Civil Brasileiro" (LawNo. 3.071, of 1 January 1916), Chapter "Mandato", Arts. 1288 to 1323.  It establishes that a formal
representation must have its legal mandate formalized by the specific legal document.
Q.13. Article 21.4 of the Anti-Dumping Decree provides that as soon as the investigation is
initiated, the complete text of the petition shall be provided to the known foreign producers and
exporters and to the authorities of the exportin g country.  Please clarify by what means the
administering authority will normally prov ide the petition copies to these parties.
A.13. By regular mailing services, as for all notifications.
Q.14. Is the provision in Article 21.4 of the An ti-Dumping Decree to make the text of the
application upon which the anti-dumping investigation is based available to other interested
parties “if required” consistent with the obligation of Article 6.1.3 of the A-D Agreement tomake the request for investigation available to other interested parties “upon request”?
A.14. The translation from the original text in Portuguese may have introduced undesirable nuances
in the English version.  In Portuguese the expression "if required" has the same meaning as "upon
request", that is:  a copy of the petition is provided to other interested parties upon request.
Q.15. Article 30.3 of the Anti-Dumping Decree provides that the results of verifications will be
“attached to the process”.  In addition to becomi ng part of the official record, will these reports
be made available to the parties whose data were verified, and if so, under what procedures?G/ADP/Q1/BRA/7
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A.15. The reports are part of the official record and their non-confidential versions are available to
the parties, upon request, pursuant to Art. 32 of the AD Decree and according to Art. 6.7 of the A-D
Agreement which establishes that "(...) Subject to the requirement to protect confidential information
the authorities shall make the results of  any such investigations available ...".
Q.16. Article 32 of Anti-Dumping Decree provides that the interested parties may “examine”
information on the record, with the exception  of confidential information and internal
government documents, and Article 63.3 of the Anti-Dumping Decree refers to the right to
request a “certificate regarding the progress of the investigation”.  May parties also obtain
copies of public information and of non-confidential summaries of confidential information?
How does the Brazilian government fulfil the requirement of Article 6.5.1 of the A-D Agreementthat parties submitting confidential informat ion provide non-confidential summaries thereof
sufficient to permit a reasonable understanding of the confidential data?
A.16. I. Parties may, at any time, obtain copies of the public version of the process.
II. During the course of an investigation, in the communications sent to the interested
parties, the right for confidentiality is clearly pointed out as well as the conditions that
must be observed when exercising this right, namely:  due justification for the request
of confidential treatment and the requirement of a non-confidential summary thereofsufficient to permit a reasonable understanding of the confidential data.
Q.17. Does Brazil intend to issue preliminary de terminations in most cases?  Under what
circumstances would it not do so?
A.17. It would depend on the circumstances of each case.  There are no mandatory requirements for
the issuance of preliminary determinations in the Brazilian Decree.  Nonetheless, the Brazilian
authorities consider that preliminary determinations constitute an important phase of the investigation
since they are the basis for decisions on application of provisional measures.
Q.18. Article 45.3 of the Anti-Dumping Decree calls for anti-dumping duties to be set in US
dollars and converted to Brazilian currency “und er the terms of the relevant legislation”.  What
will be the date for such conversion?  Has the relevant legislation been notified to the Anti-
Dumping Committee?
A.18. The exchange rate used to convert counterv ailing duties set in US dollars to Brazilian
currency would be based on the rate for US dolla r sales on the last working day of the preceding
month.  The legislation that regulates this procedure is Portaria No. 295/95 from the Minister of
Finance, which has not been notified to the A-D Committee, since it pertains to exchange rateregulations.
Q.19. Article 61 of the Anti-Dumping Decree provides for a copy of both the act resulting from
the joint ministerial decision to impose provisi onal or definitive measures and the findings of
SECEX to be sent to the government of the exporting country or countries and to other
interested parties.  Does the Brazilian Govern ment interpret this regulation to mean, in
situations in which no joint ministerial decision to impose provisional measures issues, the
underlying SECEX finding would still be notified to interested parties and the relevantgovernment?
A.19. In cases where there is no joint ministerial decision on the application of provisional
measures, the SECEX preliminary finding would not be notified to any parties.G/ADP/Q1/BRA/7
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Q.20. Article 62.1 of the Anti-Dumping Decree appe ars to indicate that the showing of injury
necessary to support a request for a third country dumping investigation must be based on
“price information”.  Is this more restrictive th an the “detailed information” referred to in
Article 14.2 of the A-D Agreement and, if so, how is it consistent with that Article?
A.20. Art. 62.1 of the AD Decree has never been in voked by a third country.  The AD Decree omits
the reference to "detailed information" mentioned in Art. 14.2 of the A-D Agreement.  However the
language of Art. 14.2 is fully reproduced in Decree 1355/94.  In receiving the application the
investigating authorities would compare it to the requirements established by Decree 1355/94.
Q.21. Article 72 of the Anti-Dumping Decree calls for the Minister of State for Industry,
Trade and Tourism and the Minister of State for Finance to pass “complementary norms for
executing this Decree”.  Could Brazil elaborate on the areas in which it intends to provide
further regulation, and whether it intends to notify such complementary norms to theCommittee?  What is the estimated date for the completion of these measures?
A.21. The purpose to include this provision is to allow the competent Ministers to introduce
amendments to the Decree without th e need for presidential promulgation.  Therefore, changes to the
Decree can be swiftly implemented.  Obviously any amendment to the present legislation would be
notified to the Committee, as established by Art. 18.5 of the A-D Agreement.
III. Questions regarding specific provisions of Decree 1751
Q.22. Article 23 of the SCM Decree states that th e existence of the threat of material injury
shall be based on “facts and a convincing motive”.  Given that Article 15.7 requires that a
determination of a threat of material injury shall be based on “facts and not merely on
allegation, conjecture or remote possibility”.  Please explain how “motive” is to be understood
and ascertained in the context of a determination of threat of material injury.
A.22. The expression "convincing motive" implies that besides being based on the available facts,
the determination of threat of material injury must explain why those facts would result in a situation
of material injury.  This language in fact adds a further element to be examined by the authorities.
Q.23. Article 30.2 of the SCM Decree provides that  upon initiation of an investigation and
publication of such notice in the Diário Oficial, interested parties and governments “shall be
notified and given a time limit of twenty days ... in order to request qualification of other parties
who manifest interest, along with their legal rep resentatives, as per the pertinent legislation.”
Please clarify whether this refers to a deadline for entry of appearance by counsel for all parties
and/or for parties not named in the petition to identify themselves as interested parties.  What isthe “pertinent legislation” referred to and what does it provide?
A.23. This provision refers to a deadline for all parties not named in the petition to identify
themselves as interested parties.  The "relevan t legislation" is "Código Civil Brasileiro" (Law
No. 3.071, of 1 January 1916), Chapter "Mandato", Arts. 1288 to 1323.  It establishes that a formal
representation must have its legal mandate formalized by the specific legal document.
Q.24. Article 30.3 of the SCM Decree provides th at an “interested party” can include “the
association which represents” domestic producers, importers/consignees, or foreignexporters/producers.  Does Brazil intend to limi t the associations considered  “interested
parties” to those referred to in Article 12.9 of the Agreement, i.e. associations the majority of
the members of which are producers, exporters or importers of the product at issue?G/ADP/Q1/BRA/7
G/SCM/Q1/BRA/7
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A.24. The expression "which represents them" in Art. 30.3(a), (b) and (c) includes the concept of
associations the majority of the members of which are producers, exporters or importers of the
product at issue.
Q.25. Article 30.4 of the SCM Decree provides that as  soon as the investigation is initiated, the
complete text of the petition shall be provided to the known producers and exporters and to theauthorities of the exporting country.  Could the Brazilian delegate please clarify by what means
and within which time deadline the administer ing agency will normally provide the petition
copies to the known exporters?
A.25. By regular mailing services, as for all notifications.  As soon as possible, generally not later
than one week after the initiation of the investigation.
Q.26. Article 40.3 of the SCM Decree provides that the results of verifications shall be
“attached to the process”.  In addition to becomi ng part of the official record, will these reports
be made available to the parties whose data were verified, and if so, under what procedures?
A.26. The reports are part of the official record and their non-confidential versions are available to
the parties, upon request, pursuant to Art. 42.2 of the SCM Decree and according to Art. 12.6 of the
SCM Agreement which establishes that "(...) Subject to the requirement to protect confidential
information the authorities shall make the results of any such investigations available ...".
Q.27. Article 42.2 of the SCM Decree  provides that the interested parties may request, in
writing, to “see” information on the record, which shall be “placed at their disposition” with the
exception of confidential information and in ternal government documents, and Article 72.3
refers to the right to “consult the minutes” and request “certificates about the proceeding.”
May parties also obtain copies of public information and of non- confidential summaries of
confidential information?  How does the Br azilian government fulfil the requirement of
Article 12.4.1 of the SCM Agreement that parties submitting confidential information provide
non-confidential summaries thereof sufficient to permit a reasonable understanding of the
confidential data?
A.27. I. Parties may, at any time, obtain copies of the public version of the process.
II. During the course of an investigation, in the communications sent to the interested
parties, the right for confidentiality is clearly pointed out as well as the conditions that
must be observed when exercising this right, namely:  due justification for the request
of confidential treatment and the requirement of a non-confidential summary thereof
sufficient to permit a reasonable understanding of the confidential data.
Q.28. Does Brazil intend to issue preliminary determinations in most countervailing duty
cases?  Under what circumstances would it not do so?
A.28. It would depend on the circumstances of each case.  There are no mandatory requirements for
the issuance of preliminary determinations in the Brazilian Decree.  However, the Brazilian
authorities consider that preliminary determinations constitute an important phase of the investigation
since they are the basis for decisions on application of provisional measures.
Q.29. Article 55.3 of the SCM Decree calls for countervailing duties to be set in US dollars and
converted to Brazilian currency “in terms of the pertinent legislation”.  What will be the date
for such conversion?  Has the pertinent legislation been notified to the Subsidies Committee?G/ADP/Q1/BRA/7
G/SCM/Q1/BRA/7
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A.29. The exchange rate used to convert counterv ailing duties set in US dollars to Brazilian
currency is based on the rate for US dollar sales on the last working day of the preceding month.  The
legislation that regulates this procedure is Portaria No. 295/95 from the Minister of Finance, which
has not been notified to the A-D Committee, since it pertains to exchange rate regulations.
Q.30. Article 64 of the SCM Decree does not limit imposition of retroactive duties to situations
involving imports benefitting from subsidies paid or bestowed inconsistently with the provisions
of GATT 1994 and of the SCM Agreement.  Explain how this Article is consistent with
Article 20.6 of the SCM Agreement.
A.30. Art. 64 of the SCM Decree establishes that retroactive duties may be imposed if it is
determined that injury is caused by massive imports within a relative short-period of time of a product
benefitting from actionable subsidies, as defined in Art. 5 of the Decree 1751/95, that is:  a specific
subsidy, with the exception of the specific subsidies included in Part IV of the Subsidies Agreement(Section III, Chapter II of the Decree 1751/95).
Replies of Brazil to Questions Posed by Venezuela
Q.1. Degree of support for or opposition to the application
Could Brazil explain at what moment and in  what way the competent authority verifies
the degree of support for or opposition to the ap plication for an investigation submitted by the
domestic industry, in accordance with the provisions of Article 20.2 of its legislation?
A.1. Brazil examines the level of support or rejection to the application after the petition is
considered properly documented and before the initiation of the investigation.  After identifying
existing domestic producers other than the petitioners, the investigating authorities proceed to consult
them about their support or opposition.
Q.2. Supply of the text of the application for investigation
Could Brazil explain the meaning of the expres sion "shall be furnished" in Article 21.4
of its legislation so as to clarify whether the authority will send the complete text of the
application to the exporters or producers or will make it available to them?
A.2. There was an error in the translation from the Portuguese to the English version.  The text in
English should read:  "As soon as the investigation is initiated and without prejudice to the right to
confidentiality, the complete text of the application which requested it  shall be furnished  provided to
the known foreign producers and exporters and to the authorities of the exporting country and must be
made available to other interested parties, if required".  In Portuguese the expression "if required" has
the same meaning as "upon request".
The complete text of the petition is automatically sent by mail to the known foreign producers
and exporters and to the authorities of the exporting country.
Q.3. Initiation of ex officio investigations
Could Brazil indicate what the "exception al circumstances" are that the competent
authority would take into account when initiating an ex officio investigation, in accordance with
the provisions of Article 24 of its legislation?
A.3. As "exceptional circumstances" are by their nature unpredictable, there are no definitions in
the AD Decree.
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