RESTRICTEDWORLD TRADE
ORGANIZATIONG/ADP/Q1/USA/22
G/SCM/Q1/USA/22
20 October 2000
(00-4363)
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 to Additional Questions from BRAZIL1
Regarding the Notification of the UNITED STATES2
The following communication, dated 19 October 2000, has been received from the Permanent
Mission of the United States.
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Questions regarding G/SCM/N/1/USA/1/Suppl.5
Q1. Section 351.218 refers to the procedures for sunset reviews.  Apparently, it does not
establish any obligation for the investigating auth ority to notify interested parties about the
initiation of a sunset review.  The time-limit established for a substantive response to the
information specified in paragraph 351.218(d)(3)(i) is 30 days after the date of publication in the
Federal Register of the Notice of Initiation.
- Could the US indicate whether, at the time  of initiation of the sunset review, the
investigating authority will notify interested parties as established by Articles 12.1 and
12.3 of the Anti-Dumping Agreement and Articles 22.1 and 22.7 of the SCM
Agreement?
- Could the US indicate whether interested parties will be notified of the required
information established in paragraph 351.218(d)(3)?  Will they receive a questionnaire?
- In case a questionnaire is sent to interested parties, what will be the time-limit for
response:  30 days counted from the receipt of the questionnaire, as established by
Article 6.1.1 of the Anti-Dumping Agreement and Article 12.1.1 of the SCM Agreement,or 30 days after the date of publication of the Notice of Initiation, as established by
Section 351.218(d)(3)(i)?
- In case the time-limit for response is 30 days after the date of publication of the Notice,
could the US explain how this time-limit complies with the obligation established byArticle 6.1 of the Anti-Dumping Agreement and Article 12.1 of the SCM Agreement,
that is:  all interested parties shall be given ample opportunity to present in writing all
evidence which they consider rele vant in respect of the review?
                                                     
1 G/ADP/Q1/USA/21-G/SCM/Q1/USA/21
2 G/ADP/N/1/USA/1/Suppl.5-G/SCM/N/1/USA/1/Suppl.5G/ADP/Q1/USA/22
G/SCM/Q1/USA/22
Page 2
- Could the US clarify if the investigatin g authority would consider a request for an
extension of the 30 days time-limit for response?  Does the relevant legislation or any
other implementing regulation have any provision related to this matter?
Reply
The United States automatically self-initiates s unset reviews of all orders prior to the fifth
anniversary of such orders.  A sunset review is initiated on the date the Notice of Initiation is
published in the Federal Register.  The Department’s final month-by-month schedule for initiation of
all sunset reviews of transition orders (i.e., orders in place as of 1 January 1995) was published in theFederal Register on 14 May 1998 (63 Fed. Reg. 26779) (republished on 29 May 1998, due to
typesetting errors (63 Fed. Reg. 29372)) (“Sunset Review Schedule”).  The Department publishes the
Notices of Initiation in the Federal Register in accordance with the monthly schedule set forth the
Sunset Review Schedule.  In addition, as a courtesy, during the month preceding the sunset review’s
scheduled automatic initiation date, the Department notifies, by registered mail, all parties that have
participated previously before the Department in a particular anti-dumping or countervailing dutyproceeding, as well as the embassy of the order country, of the imminent automatic initiation of a
sunset review on that order.
The Department does not send or transmit questionnaires in sunset reviews.  Rather, as stated
in each Notice of Initiation of Sunset Review published in the Federal Register, and as stated in the
letters sent to potential interested parties and embassies, the Department’s sunset review information
requirements are contained in its sunset regulations.  The sunset regulations were published in the
Federal Register on 20 March 1998 (63 Fed. Reg. 13516), and were codified at 19 CFR Part 351 in
April 1998.  The information requirements do not vary from case to case.  As the regulations makeclear, normally this is the only information required from interested parties.   See 19 CFR
351.218(d)(3).
A complete substantive response is due not later than 30 days after the date of publication in
the Federal Register of the Notice of Initiation of a sunset review.  19 CFR 351.218(d)(3)(i).
Article 6.1.1 of the WTO A-D Agreement provides that exporters be given at least 30 days to reply toa questionnaire.  Footnote 15 of Article 6.1.1 provides, “as a general rule,” for an additional seven
days to account for mail or transmittal time.  As stated above, the Department does not send ortransmit questionnaires in sunset reviews; rather, the Department’s sunset review information
requirements are contained in its sunset regulations. Given the significant advance public notice and
availability of the sunset information requirements (published in March 1998) and the sunset review
initiation schedule (published in May 1998), the United States believes that the 30 day deadline for
submission of substantive responses is appropriate.
The Department would consider a request to extend the 30-day deadline for filing substantive
responses.  Section 351.302 of the Department’s regulations (19 CFR 351.302) sets forth procedures
for requesting an extension of a time limit.  Section 351.302(b) provides that the Department may
extend a time limit for good cause.  The request must be in writing and state the reasons for therequest.
Comments by Brazil
(a) The US mentioned that the sunset regulations were published in the Federal Register
on 20 March 1998 (63 Fed. Reg. 13516).  Brazil would like to know if this regulation
has been notified to the WTO?  If yes, could the US please inform the symbol of the
WTO document?  If not, could the US please  circulate a copy of those regulations to
Members?G/ADP/Q1/USA/22
G/SCM/Q1/USA/22
Page 3
Reply
Yes, the regulation was notified to the WTO (G/ADP/N/1/USA/1/Suppl.5 and
G/SCM/N/1/USA/1/Suppl.5 (26 March 1999)).
(b) In the reply to this question, the US stated that information requirements do not vary
from case to case.  Brazil would like to know if the US legislation establishes the
possibility to request additional information if necessary (for instance, in cases where
there may be slight variations of the physical characteristics of the product under
review).  In cases in which additional information is requested, what is the time-limitfor responses?
Reply
The Department’s regulations allow the Department to request additional information at any
time during a proceeding.  See 19 C.F.R. 351.301(c)(2)(i).  If additional information is requested, the
Department will specify the time limit for response.  See 19 C.F.R. 351.301(c)(2)(ii).
Question 2 – No comments.
Question 3 – No comments
Q4. Paragraph 351.218(e)(1)(ii)(A) establishes that:
"(…) the Secretary normally will conclude that respondent interested parties have
provided adequate response to a Notice of Initiation where it receives complete
substantive responses under paragraph (d)(3) of this section from respondent
interested parties accounting on average for more than 50 per cent, on a volume
basis (or value basis, if appropriate), of the total exports of subject merchandise to
the United States over the five calendar years preceding the year of publication of
the Notice of Initiation."
Could the US clarify:
- Whether the above-mentioned percentage of 50 per cent of "total exports of subject
merchandise" refers to each investigated origin  of exports or to the total exports to the
US?
- If only one individual exporter presents a complete substantive response and its exports
account for less than 50 per cent of "total exports of subject merchandise" to the
United States, and it has demonstrated that:
- its exports have not been dumped over the five calendar years preceding the
year of publication of the Notice of Initiation;  and
- the revocation of the order to this expo rter would not lead to a recurrence of
dumping
will a full sunset review be conducted for this exporter?  If not, what procedure would be
adopted?  Could this exporter be excluded from the order?G/ADP/Q1/USA/22
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Reply
The Department conducts sunset reviews on a product and country-specific basis.  Therefore,
determinations concerning which exports are considered for purposes of evaluating adequacy ofrespondent participation ( i.e., the 50 per cent threshold) are made on an order-specific basis (i.e ., a
product and country-specific basis).
There is no requirement  that respondent interested parties account for 50 per cent of exports.
Rather, as a general rule the Department established a threshold  of 50 per cent for use in determining
whether there was sufficient respondent participation to warrant a full sunset review by the
Department.  Determinations concerning adequacy are made on a case-by-case basis.  Normally,however, if the Department receives substantive responses from exporters representing less that
50 per cent of exports of the subject merchandise to the United States, it will conduct an expedited
review.
In its sunset reviews (of orders on dumping),  the Department essentially determines two
things: (1) whether revocation of the order is likely to lead to continuation or recurrence of dumping;
and (2) if so, at what rate.  The Department’s determination concerning likelihood of continuation or
recurrence of dumping is made on an order-wide    basis.  In your hypothetical, therefore, if other
exporters subject the order, for example, conti nue to dump, the Department probably would find
likelihood of continuation or recurrence of dumping.  It is possible, however, that the Department
would report to the International Trade Commission a margin of zero for your hypothetical exporter.
The International Trade Commission may consider this information in its determination of whether
revocation of the order would likely lead to cont inuation or recurrence of material injury to the
domestic industry.  We also would point out that your hypothetical exporter could have sought (and
could still seek) revocation of the order in part (i.e., for itself) under section 351.222 of theDepartment’s regulations, which allows exporters to seek revocation if they have sold the subject
merchandise at not less than normal value for a period of three consecutive years.  See 19 CFR
351.222.
Comments by Brazil
(a) Could the US please clarify the actual differences between "full sunset review" and
the "expedited review"?  In the case of an expedited sunset review, what is the
treatment given to the exporters' replies?  Are on-the-spot verifications also carried
out?
Reply
The Department conducts a “full sunset review ” when both domestic interested parties and
respondent interested parties provide adequate response to a Notice of Initiation.  The Department
normally will issue its preliminary results within 110 days after initiation of the sunset review and its
final results within 240 days after initiation o f the sunset review.  Parties participating in the sunset
review may file case and rebuttal briefs after the preliminary results.  Furthermore, the Department
will conduct verification normally only if, in its preliminary results, the Department determines that
revocation of the order (or termination of the suspended investigation) is not likely to lead to
continuation or recurrence of dumping or a countervailable subsidy.
The Department conducts an “expedited sunset review” when respondent interested parties
provide inadequate response to a Notice of Initiation.  In an expedited sunset review, the Department
normally will issue its final results within 120 days after initiation of the sunset review; the
Department normally does not issue preliminary results in an expedited sunset review.  PartiesG/ADP/Q1/USA/22
G/SCM/Q1/USA/22
Page 5
participating in the sunset review may file comments on the Department’s initial determination of the
inadequacy of response.  Timely filed submissions from all interested parties are considered and
addressed in the Department’s final results – this includes submissions from exporters, even where
the Department finds “inadequate” response from respondent interested parties (see above discussionof “adequacy”), so long as the submitted informati on is complete.  The Department normally does not
conduct verification in expedited sunset reviews.
(b) In reference to the example presented by Brazil, the US also commented that the
hypothetical exporter could seek revocation of the order for itself under
section 351.222.  Could the US clarify the following points:
- at which stage of the expedited sunset review the hypothetical exporter may request a
specific procedure under section 351.222?
- in case he requests a specific procedure under section 351.222, would the authorities
have to initiate a whole new procedure or would the information that he has alreadyprovided under the sunset review procedure be considered?
- what are the differences for the hypothetical exporter between being analysed under
expedited sunset review or under section 351.222 procedures?
Reply
Section 351.222 of the Department’s regulations allows exporters to seek revocation if they
have sold the subject merchandise at not less than normal value for a period of three consecutive
years.  A revocation  review, under section 351.222, is separate and apart from a sunset review andhas different evidentiary and procedural requirements.  See 19 C.F.R. 351.222, notified in
G/ADP/N/USA/ 1/Suppl.2 and G/SCM/ N/1/USA/1/Suppl.2.
* * * * *
Brazil would also like to ask for clarification on the US reply to EC – question 1:
Q1. A
DEQUACY OF RESPONSE
§ 351.218 (e)(1)(ii)(A) stipulates that the ' Secretary normally will conclude that
respondent interested parties have provided adequ ate response to a Notice of Initiation where it
receives complete substantive responses (…) from respondent interested parties accounting (…) formore than 50 per cent (…) of the total exports of subject merchandise to the US (…). ' The
corresponding level for domestic interested pa rties appears to be different. According to § 
351.218 (e)(1)(i)(A), the '  Secretary normally will conclude that domestic interested parties have
provided adequate response to a Notice of Initiation where it receives a  complete substantive
response (…) from at least one domestic interested party  (emphasis added).'
§ 351.218 (e)(2)(i) provides that a full sunset review is only carried out if there is an
adequate response as defined above from both domestic interested parties and respondent
interested parties. We note that there is an im balance in the extent of co-operation necessary
from domestic interested parties and respondent interested parties in ord er to carry out such a
full review.G/ADP/Q1/USA/22
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Could the United States explain why appa rently different standards have been chosen
for domestic interested parties and respondent interested parties in order to carry out a full
review?
Reply
United States law requires that anti-dumping and countervailing duty orders be revoked after
five years unless revocation of the order would be likely to lead to a continuation or recurrence of
(1) dumping or a countervailable subsidy, and (2) material injury to a domestic industry.  Sections
752(b) and (c) of the Tariff Act of 1930, as amended (“the Act” ) (19 USC 1675a(b) and (c)), assign
to the Department of Commerce (“the Department”) the responsibility of determining whetherrevocation of an order would be likely to lead to continuation or recurrence of dumping  or a
countervailable subsidy .  In accordance with sections 752(b)(1) and (c)(1) of the Act, and as described
in Policy Bulletin 98:3 (63 Fed. Reg. 18871 (16 April 1998)), the Department’s likelihood
determination normally is based on respondent interested parties’  behaviour over the life of the order,
i.e., do respondent interested parties’ continue to sell in the United States at dumped prices?  The
number (or percentage) of  domestic interested partie s that participate in a sunset review before the
Department
3 has no impact on the fact that the Department considers data related to respondent
interested parties’ behaviour in determining likelihood of continuation or recurrence of dumping or a
countervailable subsidy.4
Our determinations with respect to adequacy of respondent interested party responses,
therefore, are made only for the purposes of determining whether to conduct an expedited or fullsunset review.  We note that the Department considers the evidence and arguments submitted by all
participating parties in the course of both an ex pedited review and a full review.  However, because
we make our determinations of likelihood of conti nuation or recurrence of dumping on an order-wide
basis, response from less than a significant percentage of respondent interested parties could result in
the conduct of needless full sunset reviews.
Comments by Brazil
Considering that a sunset review should also  analyse if the revocation of the order would be
likely to lead to a continuation or recurrence of in jury to the domestic industr y, in the case that only
one domestic producer provides adequate response to a Notice of Initiation and the other domestic
producers do not respond to this Notice, how will the ITC conduct the injury analysis?  Would the ITC
consider only the data related to this respondent producer?  Or would it search for up-to-date data of
the other domestic producers?  Are these other dom estic producers allowed to respond to the Notice
of Initiation after the time-limit of 30 days from the publication of this Notice?
Reply
The nature of the data that the US International Trade Commission (“the Commission”)
would consider in its five-year review would vary depending whether the Commission conducted an
expedited review or a full review.  US law authorizes the Commission to conduct expedited
proceedings in five-year reviews “[i]f  interested parties provide inadequate responses to a notice of
                                                     
3 At least one domestic interested party must participate in a sunset review or the Department will
automatically revoke the order.  See section 751(c)(3)(a) of the Act.
4 In contrast, the International Trade Commission (“Commission”) is responsible for determining
whether revocation of an order would be likely to lead to continuation or recurrence of material injury to a
domestic industry .  The Commission has its own separate standard for determining adequacy of domestic and
respondent interested party responses.G/ADP/Q1/USA/22
G/SCM/Q1/USA/22
Page 7
initiation.”  19 U.S.C. § 1675(c)(3)(B).  If responses are adequate, the Commission conducts full
reviews.  As indicated in the US reply to the original EC question, the Commission makes adequacy
decisions independently from the Department of  Commerce, and uses separate criteria.  The
Commission does not use different criteria in evaluating the adequacy of responses from domesticinterested parties such as domestic producers and labour unions, on the one hand, and from
respondent interested parties such as US importers, foreign producers and exporters, and foreign
country governments, on the other.  Moreover, its criteria take into account several factors, including
the interested party’s willingness to supply information requested by the Commission in any full
review.
Consequently, in the hypothetical posed in the question, in which a single domestic producer
has responded to the Commission’s notice of institution, one cannot presume either that the
Commission will conduct a full review or that it will conduct an expedited review.  In its notice of
final rulemaking (NOFR) concerning procedures in five-year reviews, the Commission specifically
rejected proposals that it find interested party response to be adequate and conduct a full review
whenever a single interested party fully responded to its notice of institution.   63 Fed. Reg. 30599,30603 (5 June 1998).  (Both the NOFR and the Commission regulations discussed below were
notified to the WTO in G/ADP/N/ 1/USA/1/Suppl.3 (30 June 1998).)
If the Commission decides to conduct an expedited review, it will make its determination on the
basis of the facts available, pursuant to US law.  19 U.S.C. § 1675(c)(3)(B).  As the Commissionexplained in the NOFR,“[t]he facts available may in clude information submitted on the record in the
five-year reviews by parties and non-parties, other information the Commission may compile before
the record closes, material from the record of th e original investigation and subsequent Commission
reviews, if any, and available information from Commerce proceedings.”  63 Fed. Reg. at 30606.
Once the Commission decides to expedite a review, interested parties that did not file a completeresponse to the notice of institution within the required response period (which is 50 days,
see 19 C.F.R. § 207.61(a), not 30 days as stated in the question) may not file any additional
information with the Commission.
By contrast, if the Commission decides to conduct a full review, parties that did not file
entries of appearance in the 21-day period following the publication of the notice of institution of the
five-year review will have another opportunity to do so after the Commission has published its noticeof scheduling for the full review.  19 C.F.R. § 201.11(b)(5).  In a full review, the Commission will
typically issue questionnaires to US producers of  the domestic like product, US importers of the
subject merchandise, foreign producers of the subject merchandise, and US purchasers of the
domestic like product and subject merchandise.  (In a full five-year review, the Commission will
generally issue questionnaires to the same market participants as it would in an originalinvestigation.  The Commission ordinarily sends que stionnaires both to market participants who are
parties in an investigation and to participants who are not parties.) The Commission also receives
briefs from the parties and generally conducts a hearing.
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