G/ADP/Q1/BRA/46  
G/SCM/Q1/BRA/46  
G/SG/Q1/BRA/15  
 
8 May 2019  
(19-3154) Page: 1/3 
Committee on Anti -Dumping Practices  
Committee on Subsidies and Countervailing Measures  
Committee on Safeguards  
 Original: English  
 
NOTIFICATIONS OF LAWS AND REGULATIONS UNDER  
ARTICLES 18.5, 32.6 AND 12.6 OF THE AGREEMENTS  
REPLIES TO QUESTIONS1 FROM THE DOMINICAN REPUBLIC  
REGARDING THE NOTIFICATION OF BRAZIL2 
The following communication, dated 28 April 2019, is being circulated at the request of the 
delegation of Brazil . 
 
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Question 1  
 
Article 1, paragraph 2, provides that in addition to the degree of pulverization of the 
national production of the product concerned and the distribution by size of national 
producers, the investigating authority may consider other factors when determining 
whether an industry is very fragmented. In this respect, will the other factors referred to 
be pre -defined or will they become known to the investigating authority on a case -by-
case basis ? 
 
Reply : 
 
According to the provisions of paragraph 2 of Article 1, the degree of pulverization of the national 
production of the product concerned and the distribution by size of national producers are factor s to 
be taken into account in the determination of whether or not the national production of a particular 
product qualifies as a fragmented industry. Among other factors that may be taken into account, 
the list established in Article 16 of Ordinance No 41,  of 2018, constitutes an indication of information 
to be considered by the Brazilian investigating authority when deciding whether the national 
production of a particular good qualifies as a fragmented industry. However, paragraph 1 of 
Article  16 establish ed that the information listed do not constitute an exhaustive list, and none of 
those factors on its own or together can necessarily provide decisive guidance. When an applicant 
in Brazil is a fragmented industry, the information submitted in the applicat ion is usually secondary 
data and the secondary data available depends on the nature of the sector, on whether there is an 
association or class entity and the number of associated companies, among other elements. 
Therefore, the analysis to be undertaken an d the factors to be considered by our investigating 
authority shall vary based on the information available in each specific case and on the nature of 
the sector requesting the trade remedy investigation.  
 
Question  2 
 
Will investigations conducted by the investigating authority to determine whether 
industries qualify as fragmented be made known to the public or will steps be taken to 
avoid publicizing them until a decision has been adopted and trade remedy proceedings 
have been initiated?  
 
                                                
1 G/ADP/Q1/BRA/42 -G/SCM/Q1/BRA/42 -G/SG/Q1/BRA/11 . 
2 G/ADP/N/1/BRA/3/Suppl.11 -G/SCM/N/1/BRA/2/Suppl.14 -G/SG/N/1/BRA/3/Suppl.5.  G/ADP/Q1/BRA/46 • G/SCM/Q1/BRA/46 • G/SG/Q1/BRA/15  
 
- 2 - 
 
  Reply : 
 
The procedure to determine whether the national production of a particular good qualifies as a 
fragmented industry shall be confidential, since, according to the relevant WTO Agreements, 
authorities should avoid any publicizin g of an application before a decision has been made to initiate 
an investigation. Therefore, the general public shall only be aware of such procedure upon initiation 
of the corresponding trade remedy investigation. However, according to Article 12 of Ordin ance 
No. 41 and its paragraph 3, in the course of the consequent trade remedy investigation, interested 
parties may submit their comments on the investigating authority 's decision to qualify the national 
production of a particular product as a fragmented i ndustry within the period of thirty days from the 
date of the public notice that initiated the investigation. The decision on whether or not to maintain 
the status of fragmented industry granted to the national production of a particular product based 
on the evidence brought by the interested parties shall be informed within sixty days from the end 
of the period established in paragraph 2 of Article 12. If such decision is reversed, the trade remedy 
investigation shall be immediately terminated.  
 
Question  3 
 
Where the qualification of an industry as fragmented is accepted and an application for a 
trade remedy investigation is made, could the investigating authority take into 
consideration the information provided during the fragmented industry qualification 
process when conducting the subsequent investigation procedure?  
 
Reply : 
 
Any determination issued by the Brazilian investigating authority in the context of a trade remedy 
investigation shall only take into account the information contained in the corresponding case file. 
Nevertheless, the basis for the investigating authority 's decision to qualify the national production 
of a certain product as a fragmented industry shall be made public in the notice of initiation of the 
relevant trade remedy inves tigation and will be part of the case file.  
 
Question  4 
 
Article 18 of Brazilian Ordinance No. 41, which establishes the conditions for Brazil's 
national production to qualify as fragmented industry, provides that " The applicant shall 
explain, based on the information indicated in article 16 and other information deemed 
relevant for the examination to be conducted by DECOM, how the fragmentary nature of 
the industry would make it difficult to file petition for a trad e remedy investigation within 
the time limits set forth in the Brazilian trade defense regulations and in SECEX acts that 
regulate trade defense procedures for non -fragmented industries. " In this regard, could 
Brazil please clarify whether a trade remedy i nvestigation for an industry qualified as 
fragmented is more expeditious than proceedings for non -fragmented industries?  
 
Reply : 
 
A trade remedy investigation requested by a fragmented industry will not necessarily be carried out 
in a shorter period of tim e than that of an investigation requested by a non -fragmented industry. 
What Brazil implies by Article 18 is actually the opposite. Since it is harder for fragmented industries 
to gather all the information requested in the application, the time limit to s ubmit such application 
may be extended if the national production of a certain good qualifies as a fragmented industry. It 
must be noted that, in the case of non -fragmented industries, petitioners must submit their 
applications within 4 months after the en d of the period of investigation defined in the application 
and the data brought in the application must be in reference to such period. Since fragmented 
industries usually use secondary data, such as studies, their applications may be submitted more 
than 4 months after the end of the period of investigation. The explanation requested in Article 18 
will help DECOM define the time limit for the submission of the application each time the national 
production of a certain good qualifies as a fragmented industr y, as foreseen in paragraph 5 of 
Article  11 of Ordinance No 41, of 2018.  
 G/ADP/Q1/BRA/46 • G/SCM/Q1/BRA/46 • G/SG/Q1/BRA/15  
 
- 3 - 
 
  Question  5 
 
Once a sector has been qualified as a fragmented industry, how often may the 
investigating authority review that qualification? Could the production sector concerned 
make  use of that qualification to bring another trade remedy investigation procedure?  
 
Reply : 
 
Article 14 of Ordinance No 41, of 2018, establishes that the investigating authority may initiate a 
review procedure to decide on the fragmentary status granted to t he national production of a 
particular good ex officio or at the request of any interested party who submits a written petition 
containing evidence that the circumstances that justified the qualification of the national production 
of a particular product a s fragmented industry have changed. The Ordinance, however, does not 
specify any time limits for such revision.  
Regarding the second part of this question, Article 13 of Ordinance No 41, of 2018, establishes the 
procedures for the use of a qualification as  a fragmented industry in the petitioning of other trade 
remedies investigations at a later date than the period provided for in paragraph 5 of article 11 of 
such Ordinance, after consulting the investigating authority. This is possible because, according to 
Article 7, the qualification of the national production of a particular product as a fragmented industry 
will remain valid until otherwise decided by the investigating authority.  
 
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