G/ADP/Q1/RUS/8  
G/SCM/Q1/RUS/ 8 
G/SG/Q1/RUS/8  
 
21 April 2017  
(17-2205) Page: 1/6 
Committee on Anti -Dumping Practices  
Committee on Subsidies and Countervailing Measures  
Committee on Safeguards  
 Original: Eng lish 
 
NOTIFICATION OF LAWS  AND REGULATIONS UNDE R 
ARTICLES 18.5, 32.6 AND 12.6 OF THE AGRE EMENTS  
REPLIES TO QUESTIONS POSED BY THE UNITED STATES1 
REGARDING THE NOTIFI CATION OF THE RUSSIA N FEDERATION2 
The following communication, dated 21 April 2017 , is being circ ulated at the request of the 
Delegation of the  Russian Federation .   
 
_______________  
 
 
The Russian Federation thanks the United States for its questions and replies as follows:  
 
Question 1  
 
Paragraph 42(3) of the Protocol states that the margin of dumping  may be determined 
through a comparison of the weighted average normal value of the product with prices 
of individual export transactions provided that prices of the product differ significantly 
among different purchasers, regions, or time periods. Has the  investigating authority 
applied this methodology in an antidumping duty proceeding? If so, please identify the 
specific proceeding(s).  
 
Reply  
 
The Department for Internal Market Defenсe of the Commission  has not applied the mentioned 
methodology of calculation of the margin of dumping in the anti -dumping proceedings.  
 
Question 2  
 
Paragraph 52 of the Protocol states that, "{a}long with the determination of an 
indivi dual margin of dumping for each known exporter and (or) producer of the product 
who has submitted necessary information permitting the determination of an individual 
margin of dumping, the investigating authority may determine a single margin of 
dumping fo r all other exporters and (or) producers of the product subject to 
investigation based on the highest margin of dumping determined during the course of 
the investigation." Given this, please explain how the all others rate is calculated.  
 
Reply  
 
The "all o thers" rate may be calculated on the basis of best information available. For example, in 
some cases the "all others" rate may be equivalent to the highest margin of dumping determined 
among exporters or producers for whom an individual margin of dumping w as determined.  
 
                                                
1 G/ADP/Q1/RUS/7 -G/SCM/Q1/RUS/7 -G/SG/Q1/RUS/7.  
2 G/ADP/N/1/RUS/2 -G/SCM/N/1/RUS/2 -G/SG/N/1/RUS/2 (dated  10 May 2016).  G/ADP/Q1/RUS/8 • G/SCM/Q1/RUS/8 • G/SG/Q1/RUS/8  
 
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  Question 3  
 
Paragraph 59 of the Protocol states that, "Per unit costs of production of the like 
product plus administrative, selling and general costs shall be calculated on the basis of 
records submitted by the exporter or producer of the product, provided that such 
records are in accordance with the generally accepted accounting principles and rules of 
the exporting third country and completely  reflect the costs associated with the 
production and sale of the product", (emphasis added). Ple ase explain how this 
comports with Article 2.2.1.1 of the Antidumping Agreement, which states that, "costs 
shall normally be calculated on the basis of records kept by the exporter or producer 
under investigation, provided that such records are in accordan ce with the generally 
accepted accounting principles of the exporting country and reasonably  reflect the costs 
associated with the production and sale of the product under consideration" (emphasis 
added).  
 
Reply  
 
The Russian Federation notes that the term "completely" was used in the Protocol in the process of 
its translation from Russian into English. The concept contained in paragraph 59 of the Protocol 
should be understood as provided under Article 2.2.1.1 of the Anti -Dumping Agreement.  
 
Question 4  
 
The Protocol defines "material injury" without reference to the volume or impact of 
subject imports, while paragraphs 67 -77 of the Protocol separately discuss an 
examination of subject import volumes and impact. However, it is unclear how these 
provisions int eract Please explain (1) the purpose of the definition for "material injury," 
and how it relates to the referenced provisions in the Protocol on volume and impact; 
(2) how this definition is consistent with Articles 3.1, 3.2, and 3.4 of the Antidumping 
Agreement and Articles 15.1, 15.2, and 15.4 of the Agreement on Subsidies and 
Countervailing Measures (SCM Agreement); and (3) whether the definition of "material 
injury" would preclude a finding of injury in instances where the negative effects of 
subject im ports are inconsequential, immaterial, or unimportant.  
 
Reply  
 
The definition of material injury provides that the deterioration in the position of a domestic 
industry is confirmed by positive evidence and specifies a non -exhaustive list of economic 
indica tors that could prove the existence of such deterioration. The purpose of this definition is to 
clarify the term "material injury" that is used in the text of the Protocol. Paragraphs 67 -77 of the 
Protocol specifically deal with the determination of the ma terial injury, including examination of 
volume and price effects of dumping and the establishment of the causal link between dumping 
and injury in a manner consistent with Articles 3.1, 3.2, and 3.4 of the Anti -Dumping Agreement. 
Parallel provisions contai ned in paragraphs 132 -142 concerning determination  of injury to the 
domestic industry of Member States of the Eurasian Economic Union by subsidized imports in the 
context of countervailing duty investigations reflect the requirements under Article 15 of th e SCM 
Agreement.  
 
As regards part (3) of question 4, the Russian Federation notes that the Anti -Dumping Agreement, 
Article VI of the GATT 1994, as well as the SCM Agreement do not contain requirements 
concerning a specific determination on whether the nega tive effects of subject imports are 
inconsequential, immaterial, or unimportant .  
 
Question 5  
 
Paragraph 76 of the Protocol mandates consideration of the following factors in a threat 
determination in antidumping investigations:  
 
a. the rate of increase of  the dumped imports indicating the likelihood of  
further increased importation;  
b. sufficient freely disposable, or an imminent increase in, capacity of the  
exporter which indicates the likelihood of increased dumped imports of this  G/ADP/Q1/RUS/8 • G/SCM/Q1/RUS/8 • G/SG/Q1/RUS/8  
 
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  product, taking into ac count the availability of other export markets to  
absorb any additional exports of this product;  
c. the level of prices for the product subject to investigation, if such level of  
prices may have a depressing or suppressing effect on domestic prices for the  
like product in the Member States, and would likely further increase demand  
for the product subject to investigation;  
d. the exporter's inventories of the product subject to investigation.  
 
Similarly, paragraph 139 of the Protocol mandates consideration o f the following factors 
in a threat determination in countervailing duty investigations (emphasis added):  
 
a. nature, the amount of the subsidy or subsidies and the trade effects likely to  
arise therefrom;  
b. the rate of increase of subsidized imports into  the domestic market indicating  
the likelihood of substantially  increased importation;  
c. sufficient freely disposable, or an imminent increase in, capacity of the  
exporter indicating the likelihood of increased subsidized imports of this  
product, taking i nto account the availability of other export markets to  
absorb any additional exports;  
d. prices for the product subject of subsidized imports, whether such prices will  
have depressing or suppressing effect on the prices of the like product at the  
domestic  market of the Member States, and would likely increase demand for  
further subsidized imports;  
e. the exporter's inventories of the imported subsidized product.  
 
By contrast, Article 3.7 of the Antidumping Agreement and Article 15.7 of the SCM 
Agreement sp ecify that in a threat analysis an authority should consider whether there 
is "a significant  rate of increase of dumped imports", " substantially  increased 
importation", "an imminent, substantial  increase in, capacity of the exporter indicating 
the likeliho od of substantially  increased dumped exports", and "prices that will have a 
significant  depressing or suppressing effect on domestic prices" (emphasis added). In 
only one instance, paragraph 139(2) underlined above, does such language appear to be 
incorpor ated into the Protocol. Please explain whether paragraphs 76 and 139 of the 
Protocol are consistent with Article 3.7 of the Antidumping Agreement and Article 15.7 
of the SCM Agreement, respectively.  
 
Reply  
 
Paragraphs 76 and 139 of the Protocol oblige an i nvestigating authority to consider certain factors 
in making a determination regarding the existence of a threat of material injury in a manner 
consistent with Article 3.7 of the Anti -Dumping Agreement and Article 15.7 of the SCM Agreement, 
respectively. T he words "significant" and "substantial" in the language of Article 3.7 of the Anti -
Dumping Agreement and Article 15.7 of the SCM Agreement specify the volume, size or amount of 
a certain indicator that contributes to the overall conclusion of the investig ating authority. In the 
process of consideration of the factors listed in paragraphs 76 and 139 of the Protocol the 
investigating authority evaluates the mentioned factors in terms of significance (significant rate of 
increase of dumped imports, significan t depressing or suppressing effect on domestic prices) and 
concludes whether certain factors are substantial (substantially increased importation, substantial 
increase in capacity of the exporter indicating the likelihood of substantially increased dumped 
exports).  
 
Question 6  
 
Paragraph 78 of the Protocol indicates that the Commission shall impose provisional 
measures if there are preliminary determinations of dumping and injury. Does the 
Commission have discretion to not impose provisional measures or is it bound by the 
affirmative preliminary findings of the administering authority to impose provisional 
measures?  G/ADP/Q1/RUS/8 • G/SCM/Q1/RUS/8 • G/SG/Q1/RUS/8  
 
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Reply  
 
In case where the evidence received by the investigating authority before the conclusion of the 
investigation indicates that there are dumped imports and injury caused by dumped imports to a 
domestic industry of the EAEU Member States, the Commission, on the basis of the report of the 
investigating authority, shall take a decision to apply a preliminary anti -dumping measure to 
prevent inj ury being caused to the domestic industry of the Member States by the dumped 
imports.  
 
Pursuant to Article 18 of the Treaty on the Eurasian Economic Union the Commission takes 
decisions by a qualified majority or consensus. With regard to decisions concern ing imposition of 
anti-dumping measures a qualified majority rule is applied.  
 
Question 7  
 
If the Commission imposes provisional measures, are the duties normally set at the level 
of dumping found in the preliminary determination or at a lesser amount? How  does the 
Commission determine at what level to set the provisional duties?  
 
Reply  
 
Normally provisional duties are set at the level of the preliminary margin of dumping that is 
determined in the preliminary report of the investigating authority that conta ins a recommendation 
of the investigating authority to the Commission to impose a provisional measure as well as the 
form of the measure and the amount of the anti -dumping duty provisionally estimated.  
 
Question 8  
 
When a report is submitted to the Commiss ion by the investigating authority that 
contains proposals on the imposition or application of a provisional safeguard, or 
antidumping or countervailing measures, is there a deadline by which the Commission 
must make a decision? Also, please explain whethe r the Commission is able to modify a 
proposal from the investigating authority, or if it is required to either approve or deny 
the proposal as presented.  
 
Reply  
 
The Treaty on the Eurasian Economic Union does not establish specific deadlines for the 
Commis sion to adopt decisions to impose provisional safeguard, anti -dumping or countervailing 
measures. Therefore, the timing in which such decisions are adopted as a rule flows from the usual 
procedure of adoption of the decisions by the Commission. The Commiss ion holds weekly meetings 
and considers a list of items for discussion and supporting materials (including draft decisions) that 
are included into the agenda in 30 days prior to the meeting.  
 
In practice the Commission takes decisions on imposition of provisional safeguard, anti -dumping or 
countervailing measures at the level determined in the report of the investigating authority.  
 
Question 9  
 
Paragraph 109 of the Protocol states that the investigating authority may self -initiate an 
expiry review. Please explain the circumstances under which the investigating authority 
would self -initiate an expiry review when there has been no written application 
submitted by the domestic industry.  
 
Reply  
 
Up to the present moment there have been no cases of self -initiati on of expiry reviews by the 
Department for Internal Market Defen сe of the Commission. An expiry review of an anti -dumping 
measure can be self -initiated in case when there is evidence before the investigating authority that 
the dumped imports and the injury  to the domestic industry of the Member States would be likely 
to recur or continue if the anti -dumping measure were removed.  G/ADP/Q1/RUS/8 • G/SCM/Q1/RUS/8 • G/SG/Q1/RUS/8  
 
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Question 10  
 
Paragraph 186 of the Protocol indicates that the investigating authority may self -initiate 
antidumping and counterva iling duty investigations. Has the investigating authority ever 
self-initiated an antidumping or countervailing duty investigation? If so, what were the 
circumstances that led to the decision to initiate an investigation without an application 
from the dom estic industry? Please explain the information provided to interested 
parties regarding the basis for the authority's decision to self -initiate an investigation.  
 
Reply  
 
Up to the present moment the Department for Internal Market Defence of the Commission has not 
self-initiated an anti -dumping or countervailing duty investigation.  
 
Question 11  
 
Paragraph 189 of the Protocol describes the industry support required for a written 
application for the initiation of safeguards, antidumping, or countervailing duty  
investigations.  
 
a. Please confirm whether paragraph 189(1) of the Protocol applies to 
safeguard  
investigations alone and establishes a percentage threshold of domestic  
industry support for the initiation of safeguard investigations, which we note  
is not required under the Agreement on Safeguards.  
b. Paragraph 189(1) also states that evidence showing a "major proportion" of  
domestic producers supporting an application shall be sufficient to establish  
support of domestic producers. Please define "major prop ortion."  
 
Reply  
 
The Russian Federation confirms that paragraph 189(1) of the Protocol applies to safeguard 
investigations and establishes a percentage threshold of 25% of the total domestic production for 
domestic industry support for the initiation of sa feguard investigations.  
 
"Major proportion" is interpreted in the meaning of Article 4(c) of the WTO Agreement on 
Safeguards and the WTO jurisprudence, and it shall not be less than 25% of total domestic 
production.  
 
"Major proportion" requirement is aimed  at ensuring the representativeness of the domestic 
industry that supports the application.   
 
Question 12  
 
Paragraph 209 of the Protocol notes "Interested parties shall have the right to state 
their intention to participate in the investigation in writing within the period established 
by this Protocol. They are recognized as participants in the investigation from the date 
of the registration of their statement of intent to participate in the investigation  by the 
investigating authority" (emphasis added). Ho wever, not all interested parties in an 
investigation are necessarily parties that will participate in an investigation, and may 
be, for example, industry associations, foreign governments, etc. Please clarify whether 
parties that do not directly participa te in an investigation, such as by providing 
questionnaire responses, will still be considered interested parties to the investigation 
and may have access to the public case record.  
 
Question 13  
 
Paragraph 213 of the Protocol notes "... the investigating a uthority shall provide an 
opportunity for the participants  in the investigation to see other information relevant to 
the investigation..." (emphasis added, 'participants' is also used in paragraphs 
describing notification and access to non -confidential cas e documents). However, this G/ADP/Q1/RUS/8 • G/SCM/Q1/RUS/8 • G/SG/Q1/RUS/8  
 
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  paragraph does not address the access that "interested parties" will have to the 
information relevant to the investigation. Please confirm that all interested parties will 
have access to the information relevant to the investiga tion, and if there is a distinction 
in access between participants and interested parties. Please also explain how access to 
this information is provided to participants or interested parties, e.g., by access to case 
file in a reading room, via online case  file, etc.  
 
Replies to Questions 12 and 13  
 
Paragraph 259 of the Protocol provides a definition of interested parties. Specifically, it states as 
follows:  
 
For the purposes of an investigation, interested parties shall be:  
 
1. producer of the like or dire ctly competitive product (in the case of a safeguard 
investigation) or the like product (in the case of an anti -dumping or countervailing 
investigation) in the Member States;  
2. an association of producers a majority of the members of which are producers o f the like 
or directly competitive product (in the case of a safeguard investigation) or the like 
product (in the case of an anti -dumping or countervailing investigation) in the Member 
States;  
3. an association of producers the members of which account for  more than 25 percent of 
the total volume of production of the like or directly competitive product (in the case of a 
safeguard investigation) or the like product (in the case of an anti -dumping or 
countervailing investigation) in the Member States;  
4. an exporter, foreign producer or the importer of the product subject to investigation, and 
an association of foreign producers, exporters or importers of products a significant part 
of the members of which are producers, exporters or importers of the product in 
question from the exporting third country or the country of origin of the product;  
5. an authorized  body of the exporting third country or of the country of origin of the 
product;  
6. consumers of the product subject to investigation (if they use such pr oduct in 
production) and associations of such consumers in the Member States;  
7. public associations of consumers (if the product is mainly consumed by natural persons).  
Interested parties, including industry associations and foreign governments, that did not state 
their intention to participate in an investigation are still considered interested parties pursuant to 
paragraph 259 of the Protocol. All interested parties have the right to participate in an 
investigation and to register in order to be recogniz ed as participants in an investigation.  
Participants to an investigation are granted online access to non -confidential electronic file upon 
request.  
 
 
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