G/ADP/Q1/BRA/24  
G/SCM/Q1/BRA/24  
 
1 October 2014  
(14-5521)  Page: 1/8  
Committee on Anti-Dumping Practices 
Committee on Subsidies and Countervailing Measures  Original: English  
 
 NOTIFICATION OF LAWS AND REGULATIONS UNDER 
ARTICLES 18.5 AND 32.6 OF THE AGREEMENTS  
REPLIES TO QUESTIONS1 POSED BY THE UNITED STATES 
REGARDING THE NOTIFICATIONS OF BRAZIL2 
The following communication, dated 30 September 2014, is being circulated at the request of the 
Delegation of Brazil.  
_______________ 
 
 The United States thanks Brazil for the notifi cation of its revised laws and regulations 
pertaining to anti-dumping investigations in the form of Decree No. 8.058, 26 July 2013 
(hereinafter "Decree 8.058") and poses the following questions.  
Question 1 
 Section IV of Article 2 and Article 121 of Decree 8.058 discuss instances where Brazil's 
Department of Trade Remedies (DECOM) and/ or Council of Ministers of the Chamber of 
Foreign Trade (CAMEX) may extend the scope of  definitive anti-dumping duties. In such 
cases, what steps do DECOM and/or CAME X take to ensure the revised scope is 
consistent with the original determinations  regarding dumping and injury? Additionally, 
please explain what opportunities exist for in terested parties to defend their interests 
and comment on any proposed scope revi sions during CAMEX's deliberations. 
 
Reply 
 
Considering that circumvention is considered as a trade practice aimed at frustrating the effectiveness of an anti-dumping measure in force, it's not necessary to perform a new 
determination of dumping or injury.  
 According to Article 121 of Decree 8.058, the scope of an anti-dumping measure may be extended 
for the following imports: 
 I.  parts, pieces or components originating in  or from the country subject to the antidumping 
measure destined for the manufacturing in Brazil of the product subject to the anti-dumping 
measure; 
II.  a product from third countries whose manufacture, using parts, pieces or components 
originating in or from the country subject to the anti-dumping measure, results in the 
product subject to the anti-dumping measure; or 
III.  a product originating in or from the country  subject to the anti-dumping measure containing 
marginal modifications in relation to the product subject to the measure but that do not alter 
the final use or purpose of the product subject to the antidumping. 
 It's important to emphasize that CAMEX, among other functions, is a deliberating body that 
decides upon an eventual application, extension or  suspension of an anti-dumping duty based on a 
                                               
1 G/ADP/Q1/BRA/21-G/SCM/Q1/BRA/21. 
2 G/ADP/N/1/BRA/3 and G/ADP/N/1/BRA/3/Corr.1. G/ADP/Q1/BRA/24 • G/SCM/Q1/BRA/24 
 
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  report submitted by DECOM. Therefore, interested parties are invited to defend their interest 
during the fact finding phase of the administrative procedure conducted by DECOM.   In order to observe the right to full defense and th e principles of transparency and publicity, at the 
beginning of the review, it shall be released a public notice informing about its initiation. 
Hereupon, interested parties shall be notified and DECOM shall send out questionnaires. Throughout the review, interested parties have the right to procedural follow up of the information 
in the restricted case file, and also have the ri ght to submit evidences necessary to defend their 
interests. Nonetheless, interested parties have also the right to ask for hearings, and, soon after a decision is adopted by CAMEX, interested parties have the right to ask for a reconsideration.   
Question 2 
 Section I of Article 3 states that for reason s of public interest CAMEX may suspend the 
enforcement of a definitive anti-dumping duty or price undertaking for one year, 
extendable once for an equal period. Paragr aph 1 of this article further states that 
CAMEX may reapply the suspended anti-dumpi ng duties or price undertakings at any 
time. Please explain the circumstances under which CAMEX would reinstate an 
anti-dumping duty or price undertaking that  has been suspended. Also, please explain 
what opportunities interested parties have  to present arguments and place evidence 
onto the case record prior to the imposition of duties being reinstated. 
 
Reply 
 
In order to assess the public interest related to trade remedies, it was created in 2012 a Technical 
Group of Evaluation of Public Interest – GTIP – composed by members of the bodies represented 
at CAMEX.  
 
The purpose of GTIP is to discuss the suspension  or alteration of anti-dumping duties and 
compensatory measures adopted by CAMEX give n the public interest, taking into account 
information provided by interested parties. Whenever the public interest that supported the 
decision to suspend an anti-dumping duty ce ases to exist, CAMEX may reinstate the trade 
remedies previously adopted. However, prior to the imposition of duties being reinstated, GTIP 
submits a report to CAMEX based on information submitted by interested parties. 
 
Question 3  
Paragraph 2 of Article 12 stat es that DECOM's determination as to whether or not the 
domestic market of an exporting country is viable (i.e., domestic market sales represent 
5% or more of the sales of the product under  consideration to Brazil) is made after the 
exclusion of sales determined to be outside the ordinary course of trade. Given that a 
decision regarding whether particular domestic  market sales are outside of the ordinary 
course of trade may not be rendered until after the questionnaire responses have been submitted and the investigation is well under -way, what will DECOM use as the basis of 
normal value if, after the exclusion of sales found to be outside the ordinary course of 
trade, the domestic market is not found to be  viable? How will any change in the basis of 
normal value after the investigation has begun affect the rest of the investigation (e.g., 
effect on timing of case)? Will the respondent s be given an opportunity to submit sales 
and cost data for an alternative country?  Reply 
 DECOM requests information regarding costs of production, in all investigations, in the questionnaires it sends out. Therefore, it is always possible to turn to a constructed value, 
whenever it is necessary to do so.  
 Question 4 
 
Paragraph 6 of Article 14 states that "trans actions between associated or related parties 
shall be considered in the ordinary course of  trade if the weighted average price of sale 
from the interested party to the associated or related party is not three percent (3%) 
greater or less than the weighted-average pr ice of sale from the interested party to G/ADP/Q1/BRA/24 • G/SCM/Q1/BRA/24 
 
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  unassociated or unrelated parties." Please clarify whether the determination as to 
whether sales to a particular associated or re lated party are outside the ordinary course 
of trade is made for the customer as a whole, or on a model by-model basis.  
Reply 
 
As a general rule, whenever a product is subdivided into types, the analysis will be performed on a 
model-by-model basis, and, if the product is  homogeneous, DECOM may analyze by customer. 
Therefore, it depends on the specific situation an d a decision shall be adopted on a case-by-case 
basis.    
Question 5 
 Paragraph 7 of Article 14 states that dona tions, sample sales, sales to employees, 
captive consumption and sales to other co mpanies under manufacturing agreements 
(tolling) and product exchanges (swaps) will be  deemed outside the ordinary course of 
trade and disregarded in the calculation of normal value. Please clarify whether DECOM 
examines additional factors such as price, e.g., whether the sale is made in commercial 
quantities, whether title passes to the cust omer, and/or whether the customer is an 
associated or related party be fore determining whether it is appropriate to exclude 
these types of transactions from normal value. 
 
Reply 
 
It is the understanding of the Brazilian authority that these transactions should be deemed outside 
the ordinary course of trade and disregarded in th e calculation of normal value as a simple result 
of their definitions and specifications. 
 
Question 6  Paragraph 9 of Article 14 states that "[t] ransactions between associated or related 
parties or between parties that have made  a compensatory arrangement shall not be 
considered for computation of the costs associated with production, except when 
demonstrated that the prices of such tr ansactions are comparable to those of 
transactions between unassociated or unrelated parties." For purposes of calculating the 
cost of production, please explain how DECOM determines whether transactions 
between associated parties are comparable to  those between unassociated parties. Are 
there specific factors it examines and/or thresholds that must be met? Does the 
significance of the value of the input to the total cost of production (e.g., major versus minor input) have any effect in determining whether a demonstration of comparability is 
required? 
 
Reply 
 
As a general rule, DECOM compares the price of the transactions between associated parties with 
the general market prices. The difference between the two has to be substantial. The significance of the impact to the total cost would depend from case to case. 
 
Question 7  Article 23 states that if, in making a fair comparison, a currency conversion is necessary, 
such conversion shall take place "on the date  of sale." How does DECOM account for any 
potential effect on the dumping margin result ing merely from the difference in exchange 
rate between the date of the export  price sale and normal value sale? 
 
Reply 
 
As a general rule, exporting prices and normal value, taken at the same level of trade, are 
converted on the date of the sale to the same currency. Then, for the purpose of a fair comparison, DECOM usually considers weighted average to weighted average (W-W) for a 12 months period.  
 G/ADP/Q1/BRA/24 • G/SCM/Q1/BRA/24 
 
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  Additionally, according to Article 23, in order to determine which exchange rate shall be used, it is 
considered whether there is a variation that could be considered to be outside a fluctuation band, and it's analyzed whether there is a subs tantial movement on the exchange rate. 
 
Question 8 
 Article 31 specifies the conditions under which DECOM can engage in a cumulative 
analysis of dumped imports. According to th is provision, such analysis may take place 
only "[w]hen imports of a product from mo re than one country are simultaneously 
subject to antidumping investigations whose periods of dumping investigation coincide." 
 
(a) Does this language indicate that Braz il considers imports to be "simultaneously 
subject to investigation" as long as the periods of investigations coincide? 
 
Reply 
 
Article 31 indicates that cumulative analysis shall be performed considering the same period of 
investigation of the specific product subject to the investigation in the same administrative 
procedure, provided that the requirements  put forward in Article 31 are satisfied. 
 (b) Suppose, for example, that Brazil initiate s an anti-dumping investigation concerning 
product X from country A. Two months la ter, Brazil initiates an anti-dumping 
investigation concerning product X from count ry B. Both investigations use the same 
period of investigation. Would imports from countries A and B be eligible for cumulation 
under Article 31 of the Decree? 
 Reply 
 No. Each investigation is conducted under a completely independent administrative procedure, as explained above. In this example, there would be two independent administrative procedures.  
 
Question 9 
 Please explain how the "possibility of occurr ence" standard for threat determinations 
stated in Article 33 is consistent with the standards for threat determinations set forth 
in the Agreement on Implementation of Arti cle VI of the General Agreement on Tariffs 
and Trade ("AD Agreement"). 
 
Reply 
 Brazilian regulation, in Article 33, indicates that " the determination of a threat of material injury 
shall be based on the possibility of occurrence of clearly foreseeable and imminent facts ", which 
reflects Article 3.7 of the AD Agreement. Th erefore, as one can perceive, Article 33 of 
Decree 8.058 is consistent with Article 3.7 of the AD Agreement. 
 
Question 10  
Paragraph 2 of Article 51 states that inte rested parties which provide confidential 
information are required to submit restricted  summaries with sufficient detail to allow 
an understanding of the information provided. What steps does DECOM take to ensure that the restricted summaries of confidenti al data submitted by interested parties, 
including the domestic indust ry petitioner, are adequate? 
 Reply 
 DECOM evaluates whether the summary allows for a properly comprehension of the confidential information provided. Whenever DECOM considers necessary, it requests another restricted 
summary.  
 G/ADP/Q1/BRA/24 • G/SCM/Q1/BRA/24 
 
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  Question 11 
 Paragraph 8 of Article 51 states that "at th e discretion of DECOM documents, data and 
information submitted as confidential sh all be disregarded when the respective 
confidential treatment may result in restrictio n of the right of other interested parties to 
a full defense and to an adversarial proc eeding." Please clarify whether the term 
"disregarded" in the above sentence means the information will be excluded from the 
case record or whether it will remain on  the case record but not be treated as 
confidential. Would DECOM work with interest ed parties making submissions to ensure 
that adequate summarization of confidential data occurs so that al l interested parties 
can defend their interests? 
 
Reply 
 
According to Paragraph 1 of Article 51, information identified as confidential shall not be disclosed 
without the express authorization of the submitting  party. Therefore, when the restricted summary 
does not observe the right to full defense and to adversarial proceeding, the submitting party 
would be invited to disclose information submitted as  confidential, if it decides not to do so, the 
information will be excluded from the case record.   As explained above, DECOM would request a properly restrict summary. 
 
Question 12  
Paragraph 1 of Article 55 states that hearings shall be held with interested parties upon 
request and must be requested in writing within  a period of five months from the date of 
initiation of the investigation. Hearing reques ts must also include a list of the specific 
matters to be addressed in the hearing. Please  confirm this means there is no longer an 
opportunity for interested parties to pa rticipate in a case hearing and present 
arguments orally near the end of the investig ation (i.e., after the fact finding phase is 
complete and the statement of essential fa cts for the final determination has been 
issued). 
 Reply 
 Interested parties will have the opportunity to request a hearing within the 5 months period following the initiation of the investigation. 
 
Besides, near the end of the investigation, after the report with the essential facts has been released, interested parties will have the opportunity to submit written information.   
Question 13 
 Paragraph 7 of Article 65 states that DECO M's preliminary determ ination is prepared 
based on evidence submitted within a period of  60 days from the date of initiation of the 
investigation. Paragraph 8 of the same articl e, however, states that evidence submitted 
after this deadline may be utilized by DECOM if its analysis doesn't jeopardize timely 
completion of the preliminary determination.  Given it appears that the 60 day deadline 
is flexible and that there is no hard deadlin e for submitting information for consideration 
for the preliminary determination, please expl ain how interested parties in a particular 
proceeding will know what the cut-off da te is for submitting information for 
consideration in the pre liminary determination. 
 Reply 
 The deadline may be flexible. As a guidance, the cut-off date shall be based on the given extension of the period for interested parties to submit their responses to the questionnaire. 
 
Question 14  Article 65 states that except in cases wher e the deadline is extended, DECOM will issue 
its preliminary determination within a peri od of up to 120 days from the date of G/ADP/Q1/BRA/24 • G/SCM/Q1/BRA/24 
 
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  initiation of the investigation, and that DECOM's determination will subsequently be 
published by SECEX within three days. Para graph 6 further states that that DECOM's 
recommendations concerning the application of  provisional duties will "be forwarded to 
CAMEX, which, immediately following its decisi on on whether to apply such duties, shall 
publish the corresponding notice." Is ther e a specific deadline under which CAMEX's 
decision regarding the imposition of provis ional measures must be published? Please 
also confirm that any application of provis ional measures will be duly notified and 
published in the Diario Oficial da Uniao. 
 Reply 
 
No. There is not a specific deadline. It depends on the schedule of the monthly meetings held by 
CAMEX. All decisions are dully notified to the in terested parties and published on the Official 
Gazette.  
 
Question 15  
Article 66 states that provisional duties may only be applied if CAMEX deems such 
measures necessary to prevent injury being ca used during the investigation. In making 
this decision, does CAMEX consider fact ors beyond those presented in DECOM's 
preliminary report? If so, what are these fa ctors? What opportunities do interested 
parties have to comment on these factors and to submit information for consideration by 
CAMEX?  
Reply 
 
Yes. CAMEX assessment must consider also eventual  information provided by interested parties to 
GTIP. 
 Question 16  
Article 80 states that when the foreign re spondents selected to participate in an 
anti-dumping investigation are based on a statistical sample: (1) all the 
producers/exporters not included in the selected sample but that provided the 
necessary information during the course of the investigation will be assigned 
anti-dumping duties in the same amount based on the weighted-average margin of dumping calculated for the producers/exporter s that were included in the sample; and 
(2) all other producers and exporters (inclu ding known producers/exporters that were 
not selected in the sample and did not subm it information during the course of the 
investigation) will be assigned anti-dumping duties based on best information available. 
Please explain how the use of best information available for the known 
producers/exporters which were not includ ed in the sample is consistent with 
Article 9.4 of the AD Agreement.  
Reply 
 
It must be clarified that Article 80, and the following paragraphs, does not state that known 
producers/exporters not selected in the sample will be given the Best Information Available. 
 Known Producers/exporters not included in the sample will be given dumping margin calculated based on the dumping margin of the selected enterprises, except, zero and " de minimis" . 
 
Facts available shall be applied to the selected producers/exporters which did not respond to the 
questionnaire, and to the unknown producers/exporters. 
 
Therefore, there is no inconsistence wi th Article 9.4 of the AD Agreement. 
 
Question 17 
 Chapter VIII of Decree 8.058 discusses the various types of reviews of anti-dumping 
duties and price undertakings conducted by DE COM. None of the discussions of reviews 
refer to the issuance of a preliminary determ ination. Please confirm that DECOM plans to G/ADP/Q1/BRA/24 • G/SCM/Q1/BRA/24 
 
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  issue a preliminary determination in all of th e various types of reviews covered by this 
chapter. If not, please explain, for each ty pe of review (changed circumstance, sunset, 
new shipper, scope, anti-circumvention , refund, and redetermination) what 
opportunities interested parties will have to comment on the essential facts under 
consideration, including where applicable, the methodologies used to calculate the 
dumping margin, how the submitted information was used by DECOM, and the findings and conclusions reached by DECO M and/or CAMEX in the review. 
 
Reply 
 Article 94 of Decree 8.058 states that reviews set fo rth in this chapter (Chapter VIII) shall comply 
with the provisions of Chapters I, II, III, X to XI V, and with principles, time limits, and procedures 
established in Chapter V(Investigation). Given that in all cases covered in Chapter VIII there will already be an anti-dumping duty in place, the Decree does not make mandatory the elaboration of 
a preliminary determination in this cases. 
 In all reviews performed under Chapter VIII, the inte rested parties will be given, as appropriate, 
the rights to defense established in Subsection II (defense) of Chapter V, which include the right to 
request hearings. Interested parties have also the right to submit evidences.  Question 18 
 
Article 102, which concerns changed circ umstances reviews, states that "the 
anti-dumping duty may be terminated, wher e . . .injury is considered unlikely to 
continue or resume." By contrast, Article 106,  concerning sunset reviews, states that a 
duty "may be extended . . . if  it is determined that the te rmination of the anti-dumping 
duty would be highly  l i kel y t o  l ea d t o  a  c o nt i nua t i o n o r rec u rre nc e  o f  dumpi n g o r t h e 
injury arising therefrom." Article 11.2 of  the AD Agreement, concerning changed 
circumstances reviews, states that authorit ies should consider "whether the injury 
would be likely to continue or recur if the duty were removed or varied." Similarly, 
Article 11.3 of the AD Agreement states that in a sunset review, the authority must 
determine "that the expiry of  the duty would be likely to lead to continuation or 
recurrence of dumping and injury." Gi ven that Articles 11.2 and 11.3 of the 
AD Agreement both provide for "would be li kely" standards for making the applicable 
determination, please explai n how Brazil's differently-worde d standards in Articles 102 
and 106 are consistent with Articles 11.2 and 11.3 of the AD Agreement.  
Reply 
 
The Brazilian authority understands that the clauses of the Brazilian Decree cited in the above question only operate a grammatical reordering  of the terms of the AD Agreement, without 
absolutely changing the standards for making the applicable determination in a changed 
circumstances review or a sunset review. Theref ore, Brazil's differently-worded sentences are 
consistent with Articles 11.2 and 11.3 of the AD Agreement. 
 
Question 19  
Article 144, concerning reimbursement reviews,  states that "[t]he margin of dumping 
calculated for the period of review shall serve exclusively to calculate the possible 
reimbursement of anti-dumping duties collected in an amount above the margin of dumping established for the period of revi ew." Will the revised margin of dumping 
calculated during the reimbursement review also form the basis of the AD duty to be 
collected on future imports of the product under  investigation? If not, what will serve as 
the basis of the AD duty going forward? 
 
Reply 
 
No. The anti-dumping duty originally calculated wi ll keep being the basis for the anti-dumping duty 
going forward. In Brazil, we operate in a prospective way.  G/ADP/Q1/BRA/24 • G/SCM/Q1/BRA/24 
 
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  Question 20 
 Section II of Article 155, concerning redeterm inations, states that DECOM may initiate a 
redetermination if the domest ic producers of the like product or representative trade 
association demonstrate that the export price or resale price of the product subject to 
an anti-dumping duty in the Brazilian ma rket "decreased, remained unchanged, or 
increased in an amount less than expected up on application, modification, extension of 
the duration or extension of the scope of an anti-dumping measure." What types of 
factual data would be required to be provided  by an interested party in order for DECOM 
to consider an application for a redete rmination sufficient and to initiate a 
redetermination? 
 
Reply 
 
Considering that Brazil applies the Lesser Duty rule, applicants should provide evidence that the 
exporter absorbed the anti-dumping duty in place.  
Question 21 
 Article 159 states that if DECOM concludes th at "the application of the anti-dumping 
duty should have resulted in changes to th e prices in question which did not occur it 
may recommend that CAMEX adjust the anti-d umping measure in force." Please explain 
what factors DECOM considers in deciding wh ether the application of an anti-dumping 
d u t y  s h o u l d  h a v e  a f f e c t e d  p r i c e s .  I f  D E C O M  d e t e r m i n e s  a n  a d j u s t m e n t  t o  t h e  
anti-dumping measure is necessary, how does DECOM and/or CAMEX determine how 
much of an adjustment is appropriate? What  information/data is used by DECOM and/or 
CAMEX to calculate the adjustment? Additional ly, what opportunities exist for interested 
parties to comment on these adjustments? 
 Reply 
 
Article 155 of Decree 8.058 states that DECOM may proceed with a redetermination if the 
effectiveness of an anti-dumping measure has been compromised.  
As explained before, Brazil applies the lesser duty rule. Therefore, in this case, applicants should 
provide evidence that the exporters absorbed the duty.   
The appropriate adjust will be based on the dumping margin. 
 Question 22  
Article 194 states that "DECOM may extend th e time limits provided for in this Decree 
for one equal period, except in the cases in which this Decree specifically provides for 
such extension or prohibits it." Please clar ify the meaning of this Article by providing 
examples of instances when DECOM would be able to extend the time limits and 
instances when it could not.  
Reply 
 
That provision means that whereas the Decree is silent, the deadline may be extended, otherwise, the deadline will be dictated by the Article itself. 
 
As an example, according to the Sole Paragraph of Article 62, it is not possible to extend the time 
limit for interested parties to submit their final written statements. On the other hand, the period 
set in Paragraph 4 of Article 41, for DECOM to notify the applicant of the initiation of the 
investigation or denial of the application, may be extended for another 15 days, given that under 
Decree 8.058 there is no specific provision for extension nor a prohibition to do so. 
 
 
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