G/ADP/Q1/BRA/21  
G/SCM/Q1/BRA/21  
 
7 April 2014  
(14-2175)  Page: 1/4  
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  
QUESTIONS POSED BY THE UNITED STATES 
REGARDING THE NOTIFICATIONS OF BRAZIL1 
The following communication, dated 4 April 2014, is being circulated at the request of the 
Delegation of the United States.  
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 The United States thanks Brazil for the notification  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. 
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 CAMEX take to ensure the revised scope is consistent with the original determinations regarding du mping and injury? Additionally, please explain 
what opportunities exist for interested parties to defend their interests and comment on any 
proposed scope revisions during CAMEX's deliberations. 
 
2. Section I of Article 3 states that for reasons 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. Paragraph 1 of this article further states that CAMEX may reapply 
the suspended anti-dumping 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, pl ease explain what opportunities interested 
parties have to present arguments and place evidence onto the case record prior to the 
imposition of duties being reinstated. 
 3. Paragraph 2 of Article 12 states 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 consid eration to Brazil) is made after the exclusion 
of sales determined to be outside the ordina ry 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 outsid e 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 in vestigation (e.g., effect on timing of case)? 
Will the respondents be given an opportunity to submit sales and cost data for an alternative 
country? 
 4. Paragraph 6 of Article 14 states that "transactions between associated or related parties 
shall be considered in the ordinary course of tr ade if the weighted average price of sale from 
the interested party to the associated or related party is not three percent (3%) greater or 
                                               
1 G/ADP/N/1/BRA/3 (20 September 2013) and G/ADP/N/1/BRA/3/Corr.1 (27 September 2013). G/ADP/Q1/BRA/21 • G/SCM/Q1/BRA/21 
 
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  less than the weighted-average price of sale from the interested party to unassociated or 
unrelated parties." Please clarify whether the determination as to whether sales to a particular associated or related party are outside the ordinary course of trade is made for the customer as a whole, or on a model-by-model basis. 
 
5. Paragraph 7 of Article 14 states that donati ons, sample sales, sales to employees, captive 
consumption and sales to other companies under manufacturing agreements (tolling) and 
product exchanges (swaps) will be deemed outside the ordinary course of trade and 
disregarded in the calculation of normal va lue. 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 customer, and/or whether the customer is an associated or 
related party before determining whether it is appropriate to exclude these types of 
transactions from normal value. 
 
6. Paragraph 9 of Article 14 states that "[t]rans actions 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 transactions 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 spec ific 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?   
 
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 resulting merely from the difference in exchange 
rate between the date of the export price sale and normal value sale? 
 8. Article 31 specifies the conditions under which DECOM can engage in a cumulative analysis 
of dumped imports. According to this provision, such analysis may take place only "[w]hen 
imports of a product from more than one country are simultaneously subject to antidumping investigations whose periods of dumping investigation coincide." 
 
a. Does this language indicate that Brazil considers imports to be "simultaneously subject 
to investigation" as long as the periods of investigations coincide? 
b. Suppose, for example, that Brazil initiates an anti-dumping investigation concerning 
product X from country A. Two months later, Brazil initiates an anti-dumping investigation concerning product X from country 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? 
9. Please explain how the "possibility of occurre nce" standard for threat determinations stated 
in Article 33 is consistent with the standards for threat determinations set forth in the 
Agreement on Implementation of Article VI of  the General Agreement on Tariffs and Trade 
("AD Agreement"). 
 
10. Paragraph 2 of Article 51 states that in terested 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 confidential data submitted by interested parties, including the 
domestic industry petitioner, are adequate? 
 11. Paragraph 8 of Article 51 states that "a t the discretion of DECOM documents, data and 
information submitted as confidential shall be disregarded when the respective confidential 
treatment may result in restriction of the right of other interested parties to a full defense and to an adversarial proceeding." 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 G/ADP/Q1/BRA/21 • G/SCM/Q1/BRA/21 
 
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  interested parties making submissions to ensure that adequate summarization of 
confidential data occurs so that all interested parties can defend their interests?   
 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 requests 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 participate in a case hearing and present arguments 
orally near the end of the investigation (i.e., after the fact finding phase is complete and the statement of essential facts for the final determination has been issued). 
 
13. Paragraph 7 of Article 65 states that DECOM' s preliminary determination 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 deadline for submitting information for consideration for 
the preliminary determination, please explain how interested parties in a particular 
proceeding will know what the cut-off date is for submitting information for consideration in the preliminary determination. 
 
14. Article 65 states that except in cases wher e the deadline is extended, DECOM will issue its 
preliminary determination within a period of up to 120 days from the date of initiation of the 
investigation, and that DECOM's determination will subsequently be published by SECEX 
within three days. Paragraph 6 further states that that DECOM's recommendations 
concerning the application of provisional du ties will "be forwarded to CAMEX, which, 
immediately following its decision on whethe r to apply such duties, shall publish the 
corresponding notice." Is there a specific de adline under which CAMEX's decision regarding 
the imposition of provisional measures must be published? Please also confirm that any application of provisional measures will be duly notified and published in the Diario Oficial da Uniao.  
 
15. Article 66 states that provisional duties may only be applied if CAMEX deems such measures 
necessary to prevent injury being caused during  the investigation. In making this decision, 
does CAMEX consider factors beyond those presented in DECOM's preliminary report? If so, 
what are these factors? What opportunities do interested parties have to comment on these factors and to submit information for consideration by CAMEX?  
 
16. Article 80 states that when the foreign respondents 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/exporters that were included in the sample; and (2) all other producers and exporters (including known 
producers/exporters that were not selected in the sample and did not submit information 
during the course of the investigation) will be  assigned anti-dumping duties based on best 
information available. Please explain how the us e of best information available for the known 
producers/exporters which were not included in the sample is consistent with Article 9.4 of 
the AD Agreement. 
 17. Chapter VIII of Decree 8.058 discusses the variou s types of reviews of anti-dumping duties 
and price undertakings conducted by DECOM. None of the discussions of reviews refer to the 
issuance of a preliminary determination. Please confirm that DECOM plans to issue a preliminary determination in all of the various types of reviews covered by this chapter. If 
not, please explain, for each type 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 DECOM and/or CAMEX in the review. 
 G/ADP/Q1/BRA/21 • G/SCM/Q1/BRA/21 
 
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  18. Article 102, which concerns changed circumstances reviews, states that "the anti-dumping 
duty may be terminated, where . . .injury is co nsidered 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 termination of the anti-dumping duty would be highly  likely to lead 
to a continuation or recurrence of dumping or the injury arising therefrom." Article 11.2 of 
the AD Agreement, concerning changed circum stances reviews, states that authorities 
should consider "whether the injury would be li kely 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." Given that Articles 11.2 and 11.3 of the AD Agreement both provide for "would be likely" standards for making the applicable 
determination, please explain how Brazil's differently-worded standards in Articles 102 and 
106 are consistent with Articles 11.2 and 11.3 of the AD Agreement. 
 
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 collecte d in an amount above the margin of dumping 
established for the period of review." 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? 
 
20. Section II of Article 155, concerning redeterminations, states that DECOM may initiate a 
redetermination if the domestic 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 market "d ecreased, remained unchanged, or increased in 
an amount less than expected upon application, modification, extension of the duration or 
extension of the scope of an anti-dumping me asure." 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 redetermination sufficient and to initiate a redetermination? 
 
21. Article 159 states that if DECOM concludes that "the application of the anti-dumping duty 
should have resulted in changes to the prices in question which did not occur it may recommend that CAMEX adjust the anti-dumping  measure in force." Please explain what 
factors DECOM considers in deciding whether the application of an anti-dumping duty should 
have affected prices. If DECOM determines an  adjustment to the 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? Additionally, what opportunities exist for interested parties to comment on these adjustments? 
 
22. Article 194 states that "DECOM may extend the 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 clarify 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.  
 
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