WT/DS295/R 
 Page B-1 
 
 
  
ANNEX B 
  
Parties' and Third Parties'  Responses to questions  
posed in the context of the first substantive meeting of the Panel 
  
Content Page 
Annex B-1 Responses of the United States B-2 
Annex B-2 Responses of Mexico B-25 
Annex B-3 Responses of the European Communities B-37 
  
 WT/DS295/R 
Page B-2  
 
ANNEX B-1 
 
 
RESPONSES OF THE UNITED STATES 
  
Questions concerning the period of investigation 
 1. The United States points (for example, in paragraph 57 of its first submission) to the use of the present tense in various provisions of the Anti-Dumping Agreement (the 
"AD Agreement") to support its claim that the POI mu st be as close to the date of initiation as 
practicable.  (a) Could the US elaborate on this view in light of the fact that it is inevitable that an 
investigation has to consider events that ha ppened in the past.  Does the US argue that 
there is any specific length of time beyond which the POI becomes inconsistent with the 
AD Agreement? 
 (b) For example, in view of the US, would a PO I that ended 12 months prior to the initiation 
be inconsistent with the AD Agreement? 
 Answer
: 
 1. The United States agrees that an investig ation of dumping and injury must necessarily 
consider events that happened in the past.  For this  reason, we are not arguing that there is a specific 
length of time beyond which the POI becomes per se  inconsistent with the AD Agreement.  However, 
the purpose of an anti-dumping investigation is to determine whether a domestic industry is presently
 
injured (or threatened with injury) by dumping that is presently  occurring.1  Therefore, an 
investigating authority must seek to base its dete rminations of dumping and injury on the most recent 
available information.  If an investigating authority chooses instead to base its analyses on 
information that is not the most recent available info rmation, it must be able to justify its approach 
and explain why, despite its approach, its dete rminations are objective, unbiased, and based on 
positive evidence. 
 2. In the rice investigation, Economía provided no
 explanation for its decision to base its 
determinations on stale data, other than that the PO I it selected was the one the petitioner asked for.  
For example, Economía provided no explanation of its decision to base its dumping analysis on data 
for March to August 1999 , when it did not even initiate its investigation until December 2000 . 
 3. Similarly, Economía provided no explanation for its decision to base its injury determination 
on data that was already
 fifteen months to three years old on the date of initiation, in lieu of collecting 
the most recent injury information that was avai lable at that time.  Economía also provided no 
explanation for its failure to update its injury data  during the course of its investigation, with the 
consequence that the data was three to five years ol d at the time of the final determination.  Economía 
also failed to explain how its injury analysis ha d any relevance to the situation of the domestic 
industry at the time of the final determination (or even at the time of initiation), given that the import 
volumes, price effects, and economic factors that it analyzed were for a period of time that was well before the initiation of the investigation, and years before the final injury determination. 
 
4. The necessity for an investigating authority to  consider events that happened in the past does 
not give an authority free rein to choose which part of  the past to consider.  Rather, the authority must 
                                                     
 
1 As the Panel notes, the United States pointed to numerous provisions in the AD Agreement 
supporting this conclusion in its first written submission.  See US First Written Submission, para. 57.  WT/DS295/R 
 Page B-3 
 
 
evaluate the most recent information that is available.2  Economía made no effort to collect 
information for September 1999 to December 2000, and it ma de no effort to update its data thereafter.  
As a consequence of its failure to collect recen t information, Economía had no idea whether dumped 
imports were causing injury to the domestic  industry as of the date that it initiated  its investigation, 
much less on the date that it published its final determination. 
 
2. Mexico argues that "there is no provis ion in the AD Agreement which indicates how 
remote an anti-dumping period of analysis must be" (para 49 of its first submission).   (a) In Mexico's view, is there no limit in th e AD Agreement on how "old" the data can be on 
which the dumping and injury analysis may be based ?  If Mexico is of the view that 
there are certain limits, please explain what, in Mexico's views, are the criteria for 
determining whether a POI is consistent with the AD Agreement or not?  
 (b) What is the Mexican practice in respect of the POI? 
 
Answer
: 
 5. In evaluating Mexico’s response to this qu estion, the Panel may wish to consider the 
following information relating to th e anti-dumping investigations that Economía  initiated on US 
products in 2003-2004:
3 
 
Investigation Initiation Date Length of POI Gap Between End of 
POI and Initiation Date 
Epoxidized Soybean Oil 17 May 2004 10 months (January to 
October 2003) 6.5 months 
Crystal Polystyerene 13 January 2004 12 months (July 2002 to 
June 2003) 6.5 months 
Newsprint 25 November 2003 12 months (January to 
December 2002) 11 months 
Carbon Steel Line Pipe 29 August 2003 12 months (January to 
December 2001) 20 months 
Hydrogen Peroxide 17 July 2003 12 months (January to 
December 2002) 6.5 months 
Triple-Pressed Stearic 
Acid 11 June 2003 12 months (August 2001 
to July 2002) 10 months 
Fatty Acid 6 June 2003 19 months (January 2001 
to July 2002) 10 months 
Certain Pork Products 7 January 2003 6 months (April to 
September 2002) 3 months 
 
6. The POIs that Economía  established in these investigations suggests that it has no consistent 
approach with respect to the length of the POI it uses, other than that it uses the POI that the 
petitioners suggest in their petitions (even when, as in the rice investigation, the exporters object).  It 
also suggests that Mexico often bases its determinations on stale data.  Evidence of Economía’s 
willingness to allow the petitioner  to craft the POI can be seen in pa rticular in the investigations of 
                                                      
2 Compare  Appellate Body Report, European Communities Anti-Dumping Duties on Imports of 
Cotton-Type Bed Linen from India, Recourse to Article 21.5 of the DSU by India , WT/DS141/AB/R, adopted 
24 April 2003, para. 113 (“ EC – Bed Linen 21.5 AB ”) (stating that the absence of  a specified methodology for 
calculating the volume of the “dumped imports” does not give an investigating authority unfettered discretion to 
“pick and choose whatever methodolog y they see fit . . . ”.  Rather, th e methodology must ensure that the 
determination is made on the basis of “positive evidence” and involves an “objective examination”.). 
3 The United States is attaching the relevant pages of each of the initiation notices as Exhibit US-21.  
The notices are in Spanish, as the United States does not have English-language translations. WT/DS295/R 
Page B-4  
 
Triple-Pressed Stearic Acid  and Fatty Acid .  Although the two investigations were filed by the same 
Mexican producer (Quimic S.A. de C.V.) on the sam e day, and initiated within a few days of each 
other, the POIs in the two inv estigations differ substantially. 
 
(c) Are there particular reasons why more recen t data were not used in this case?  Is 
Mexico of the view that the POI used in this case was the one closest to the initiation as 
far as "practicability" is concerned?  If so, please elaborate. 
 
Answer
: 
 
7. The only rationale that Economía provided in its  published determinations for its decision to 
use stale data in conducting its analyses of dumping and injury was that the petitioner requested the 
March to August 1999 time period, and that im ports were concentrated during that period.4  
Economía’s decision to conduct its investigation in  accordance with the pe titioner’s wishes, over the 
objections of the foreign exporters5, belies any suggestion that Economía’s choice of POI was 
objective or unbiased. 
 8. Furthermore, it is not factually accurate that the POI that Economía used in its investigation 
was the closest practicable to th e date of initiation.  By December 2000, dumping and injury data 
would have been available for all of 1999 and most of  2000.  By the time of the final determination, 
injury data would have existed for all of  2000 and 2001 and possibly for 2002 as well. 
 
3. Could Mexico explain the reason why it considered that the March - August 6 month 
period was appropriate for the injury analysis, including whether "seasonality" was one of the 
reasons.  
 Answer
: 
 9. As the Panel will recall, Mexico clarified during the first panel meeting that “seasonality” was 
not a reason for its decision to limit its analysis to the March to August period.   Furthermore, although 
Mexico argued in paragraph 55 of  its first written submission that its choice of POI was designed in 
part to eliminate distortions in production levels, it  argued in paragraph 60 of that same submission 
that production levels were  constant throughout the year.  Mexico ’s shifting rationales further confirm 
that Economía’s choice of POI in this inv estigation was neither objective nor unbiased. 
 
4. Could Mexico clarify whether the Panel is  correct to understand that the investigating 
authority had the data necessary to perform an injury analysis for the full three year period, 
but chose not to use this data as it considered th at the period should correspond to the period on 
which the analysis for dumping was made?  Please elaborate.  
 
                                                     
 
4 In particular, in paragraph 111 of the Notice of Initiation, Economía stated that, according to the 
petitioners: 
[T]he main importing activity of  the finished product [milled rice] takes place in the period 
that goes from March thorough August in which there are no harvests of paddy rice and that 
for this reason such period ade quately reflects importing activities. 
Rice Initiation Notice, Exhibits US-1&2, para. 111 .  Economía repeated this statement in 
paragraph 64 of the Preliminary Determination and reached the conclusion that, according to 
the information provided by the petitioners: 
[I]mports tend to concentrate in the period from March through August of each year, which corresponds to the period of investigation proposed by the petitioners. 
Exhibits US-14&15, para. 65. 
5 See, e.g., Preliminary Determination, para. 66 (Exhibits US-14 & 15).  WT/DS295/R 
 Page B-5 
 
 
Answer : 
 10. The United States understands that Economía did in fact collect data for each month between 
March 1997 and August 1999, even though it only ex amined the data for the March to August time 
periods.  However, Economía did not attempt to collect any data for the time period between 
September 1999 and December 2000, and it did not attemp t to collect any additional injury data after 
it initiated the investigation.  
5. Could Mexico explain why it considered that this particular 6 month period was 
adequate in terms of a dumping analysis.  Was the fact that that was the period which the 
petitioners cited the sole reason?    
Answer
: 
 11. The United States has been able to find only two places in Economía’s  published 
determinations where it addresses its use of a six month period for the dumping
 analysis (other than 
the discussion of the concentration of imports in the March to August time period).  First, Economía  
stated at paragraph 2 of its initiation notice that “the petitioner stated that during the period that 
includes March through August 1999 imports of long-grain milled rice, originating from the 
United States, were made at discriminatory pri ces, which caused injury to the domestic industry 
producing like goods”.  Second, Economía stated in paragraph 150 of the initiation notice that it had 
resolved to accept the petition and initiate an anti-dumping investigation on long-grain milled rice 
imports from the United States, “setting as the peri od of investigation the period encompassed from 
1 March through 31 August 1999”.  
6. Is the United States of the view that an in vestigating authority is always precluded from 
choosing a POI for the injury analysis other than a full-year (12 months) period?  If not, please 
explain specifically why the case at  issue is not permissible.  
 
Answer
: 
 12. In the rice investigation, Economía’s focu s on the March-August time period was neither 
objective nor unbiased because at least half of domestic production occurred during the  
September-February time frame, and yet Economía focused on the March to August period because 
the petitioner argued that imports were concentrated in that period.  13. The problems arising from an examination of only partial year data are particularly acute 
when the domestic industry has production during all 12 months of a year.  In order to comply with 
the requirements of Articles 3.1, 3.4, and 4.1 of the AD Agreement, the investigating authority must 
examine the impact of the dumped imports on the do mestic producers as a whole.  Therefore, the POI 
for injury should include all months of the year  in which there is domestic production (assuming the 
data is reasonably available).  
14. If the product under investigation is truly “seasona l” in character, an investigating authority 
might be justified in focusing its analysis on certa in seasonal segments, provided that it does not fail 
to consider the other segments in the year.  During  the first panel meeting, however, Mexico denied 
that the production of long-grain milled white rice is seasonal, or that seasonality is relevant to this 
dispute. 
 
7. The petitioners appear to have suggested this particular POI (March- August 6 month 
period), for reasons relating to the alleged seasonal character of the product, and as this period 
was representative of the increased import penetr ation.  Precisely that, it seems, is the reason 
why the US objects to this period of investigation as it represents only that part of the year 
during which imports are at a high.  In the US  view, what are the facts on the record which WT/DS295/R 
Page B-6  
 
demonstrate that imports of the subject product were concentrated in the March - August 
period, other than the petitioner's statement re ferred to in para. 65 of  the preliminary 
determination?  What other basis, if any, does the US have for its view that imports were at a 
high during this period?   
 Answer
: 
 15. To be clear, the United States does not contest Economía’s  findings that imports were 
concentrated in the March to August time period.  At least five paragraphs in Economía’s  published 
determinations, in addition to pa ragraph 65 of the preliminary determination, indicate that imports 
were in fact concentrated in this way: 
 
• Paragraph 112 of the initiation notice states that  “the petitioner indicated that major import 
activity in the finished product occurs in the period from March to August when there are no harvests of paddy rice and thus the peri od adequately reflects import activity.” 
 
• Paragraph 113 of the same notice states that “[ f]or its part, the Secretariat noted that 
according to the information provided by th e petitioner, the production of paddy rice is 
concentrated in early October and early Februa ry of each year and that imports tend to be 
concentrated in the period between March and August of each year, which corresponds to the 
period proposed for investigation by the petitioner.” 
 
• Paragraph 43(D) of the preliminary determina tion cites the petitioner’s argument that “the 
main importing activity of white rice is carried out in the period in which there are not crops 
of “paddy” rice, therefore the period from March to August of each year reflects such activity 
. . . .” 
 
• Paragraph 64 of the preliminary determin ation repeats the discussion contained in 
paragraph 112 of the initiation notice. 
 
• Paragraph 67 of the preliminary determination c ites the petitioner’s argument that “the chosen 
period is the one in which the paddy rice harvest s are not performed and therefore it is the one 
that reflects the import activity.” 
 16. In any event, the United States is objecting per se  to Economía’s  decision to limit its injury 
analysis to only half of the POI,  and not only to the fact that Economía  limited its analysis to the 
period when imports were concentrated.  Mexico has conceded that seasonality was not relevant in 
this investigation, and it is indisputable that Economía  failed to examine at least half of the domestic 
industry’s production over the course of the entire POI.  Thus, Economía’s  injury analysis would 
have been inconsistent with WTO rules even if imports had not
 been concentrated in the March to 
August time period. 
 
17. First , Article 3.2 of the AD Agreement requires an investigating authority to consider whether 
there has been a significant increase in dumped impor ts or significant price effects.  Nothing in 
Article 3.2 suggests that it is permissible for an in vestigating authority to conduct this analysis by 
considering evidence for only half of the three-year POI.  
18. Second
, Article 3.4 of the AD Agreement requires an investigating authority to evaluate all  
relevant economic factors and indices having a bearing on the state of the industry, and Article 3.5 of 
the AD Agreement requires an invest igating authority to examine all  relevant evidence before it.  
Neither provision permits an investigating authority to establish a three-year POI and then ignore the 
evidence for half of that period. 
  WT/DS295/R 
 Page B-7 
 
 
19. Third , Article 4.1 of the AD Agreement normall y requires an investigating authority to 
examine the domestic producers “as a whole”, or those producers whose collective output constitutes 
a “major proportion of total domestic production.”  In  the rice investigation, domestic production of 
milled long-grain white rice spanned the entire year, yet Economía  only examined the production for 
half of that period.  If a Member only examines the ev idence for half of the POI, there is no way to be 
certain that it is, in fact, meeti ng its obligations under Article 4.1. 
 20. Finally
, Article 3.1 of the AD Agreement requires a determination of injury to be based on 
“positive evidence” and involve an “objective examina tion” of volume, price effects, and the impact 
of the dumped imports on the domestic producers of th e like product.  If an investigating authority 
only considers the evidence for half of the POI, th ere is simply no way for the authority to determine 
the true state of the domestic industry over the course of the entire  POI, and thus no way to conclude 
that the authority’s examination is consistent with Article 3.1.  
Questions concerning the injury analysis  
 
8. What, according to the parties, is the definition of the domestic industry allegedly injured by the dumped imports?  Does the domest ic industry considered in the injury analysis 
include producers of paddy rice or only of milled rice?  
 
Answer
: 
 
21. The product under investigation was defined as long-grain milled rice.  Therefore, the 
domestic industry should have been comprised of  the “domestic producers as a whole” of long-grain 
milled rice (that is, the Mexican millers of padd y rice) or the domestic producers whose collective 
output of long-grain milled rice constituted a major proportion of the total domestic production of that 
product.6 
 22. In actuality, however, Economía  failed to examine a consistent set of producers of long-grain 
milled rice when it conducted its injury analysis.  To the contrary, Economía  repeatedly shifted its 
analysis from one subset of producers to another,  as it examined various factors.  For example: 
 
• Economía  based its analysis of the effect of the imports on domestic prices on seven 
producers’ data:  IPACPA, Schettino, GEVSA, Mexicana de Arroz, Arrocera de Occidente, 
Arrocera del Bajio, and Covadonga.
7 
 
• Economía  based its analysis of production volumes on eight producers’ data:  IPACPA, 
Schettino, GEVSA, Mexicana de Arroz, Arrocera de Occidente, Arrocera del Bajio, Industrias COREREPE, and Molino La Chontalpa.
8 
 
• Economía  based its analysis of sales on eleven producers’ data:  IPACPA, Schettino, 
GEVSA, Mexicana de Arroz, Arrocera de Oc cidente, Arrocera del Bajio, Industrias 
COREREPE, Molino La Chontalpa, Champoton, Molino Trapiche de Labra, and Covadonga.9 
• Economía  based its analysis of inventories on si x producers’ data:  IPACPA, Schettino, 
GEVSA, Mexicana de Arroz, Arrocera del Bajio, and Champoton.10 
 
• Economía  based its analysis of capacity utilizati on on three to five producers’ data:  
IPACPA, Schettino, GEVSA, Champoton, and Industrias COREREPE.11  
                                                      
6 AD Agreement, Art. 4.1. 
7 Final Determination, para. 278 (Exhibits US-6&7). 
8 Id., para. 303. 
9 Id., paras. 305, 307. 
10 Id., para. 317. WT/DS295/R 
Page B-8  
 
• Economía  based its analysis of employment on seven  producers’ data (but not the same seven 
used for the analysis of prices):  IPACPA, Sc hettino, GEVSA, Mexicana de Arroz, Arrocera 
del Bajio, Champoton, and Covadonga.
12 
 
• Economía  based its analysis of wages on three producers’ data:  IPACPA, Schettino, and 
GEVSA.13 
 
• Economía  based its analysis of financial perform ance (in terms of profitability, return on 
investment, cash flow, and capacity to raise capital) on seven producers’ data:  IPACPA, Schettino, GEVSA, Mexicana de Arroz, Arrocera de Occidente, Arrocera del Bajio, and Covadonga.
14 
 23. Thus, Economía’s  injury analysis did not constitute an “objective examination” of the 
domestic industry as defined in Ar ticle 4.1 of the AD Agreement, and its conclusions were not 
supported by the positive evidence that Article 3.1 requires.  
9. Could Mexico clarify whether the import da ta also include data relating to imports of 
paddy rice or is the "rice" referred to in the Fi nal Determination always "milled" rice?  Are the 
terms "rice", "white rice" and "long grain whit e rice" as they appear throughout the Final 
Determination used as synonyms? 
 
Answer
: 
 
24. Depending upon the issues involve d, the public notices of the inve stigation make reference to 
imports of paddy rice, imports of milled rice, and imports of long-grain milled rice (the product under 
investigation).  Even references to imports of “l ong grain white rice” should more properly refer to 
“imports deemed to be  long grain white rice”, however, given the absence of record data 
distinguishing between subject and non-subject me rchandise.  The United States discusses this point 
further in response to question 10 below. 
 
10. Could Mexico clarify whether paddy rice also enters the Mexican market under tariff 
heading 1006.30.01?  More in general, which categories of rice fall under this tariff heading? 
 
Answer : 
 
25. Under the Harmonized System, imports of padd y rice and imports of milled rice are classified 
under different tariff headings.  At the time of initiati on of the rice investigation, imports of paddy rice 
were classified under heading 1006.10.01 of the Mexican Tariff Schedule while imports of 
semi-milled and milled rice were cl assified under heading 1006.30.01. 
 
26. Heading 1006.10.01 applies (and applied at th e time) only to imports of paddy rice.  In 
contrast, heading 1006.30.01 included semi-milled and milled rice, irrespective of the grain length and 
irrespective of whether the rice had been polished (“ pulido ”), glazed (“ glaseado ”), or parboiled 
(“precocido ”).15  Inasmuch as the Customs classifications did not indicate which white rice imports 
were imports of long-grain white rice, the data that Economía  used for its determinations of dumping 
(prices) and injury (volumes and prices) were based on estimates. 
 
                                                                                                                                                                     
11 Id., paras. 326, 328. 
12 Id., para. 333. 
13 Id., para. 334. 
14 Id., para. 338. 
15 See, e.g.,  Notice of Initiation, para. 19 (Exhibits US-1&2 ); Preliminary Determination, paras. 9, 22 
(Exhibits US-14&15).  WT/DS295/R 
 Page B-9 
 
 
27. On 18 May 2001, while the investigation was ongoing, heading 1006.30.01 was modified to apply only to imports of long-grain milled rice.  Other imports previously classified under that 
heading were shifted to a new heading 1006.30.99.
16  This modification post-dated the August 1999 
end of the POI, and the United States is not aware of any evidence suggesting that Economía  took 
any steps to examine the new, more precise data. 
 
11. Could the parties clarify whether the ri ce imported into Mexico under tariff heading 
1006.30.01 covers rice in any or all of the 5 stage s of processing mentioned in para.161 of the 
Final Determination and that, therefore, some of  the rice imported under this tariff heading will 
need to undergo further processing in Mexico  before entering the consumer market as a 
finished product?  
Answer
: 
 28. Paragraph 161 of the final determination re ferences paddy rice, husked rice (rice with husk 
removed), milled rice, and broken rice.  During th e POI, paddy rice, husked rice, milled rice, and 
broken rice were classified, respectively, under headings 1006.10.01, 1006.20.01, 1006.30.01, and 
1006.40.01 of the Mexican Tariff Schedule.  29. Broken rice is not rice at a particular “stage  of processing”, but rather a lower-value type of 
milled rice resulting from breakage of grains duri ng the milling process.  Product consisting entirely 
of broken rice entered under tariff heading 1006 .40.01.  The milled rice entered under tariff heading 
1006.30.01, however, normally also contains some broken grains.
17  Milled rice containing higher 
percentages of broken grains corresponds to lower “g rades” of milled rice, and sells for lower prices.18 
 30. The United States explained in its fi rst written submission that the margin Economía  took 
from the petition and applied to Producers Rice and the unexamined producers and exporters was 
adverse.
19  This “adverseness” was due in part to the f act that the petitioner compared an export price 
based on all  imports designated as long grain white rice to a normal value based solely on prices for 
high grade rice with few broken grains, thus overstating the dumping margin.20 
 
12. If it is correct that both subject and non-subject imports of rice from the United States 
entered the Mexican market under the above ment ioned tariff heading, could Mexico explain 
the methodology that was used by the investigatin g authority to separate the subject imports of 
long grain white rice that came in under this heading from the non-subject imports of other types of rice (short grain, etc.)? 
 Answer
: 
 31. As the United States explained in response to question 11, imports of paddy rice, husked rice, 
and broken rice were classified under headings ot her than 1006.30.01 (to be specific, headings 
1006.10.01, 1006.20.01 and 1006.40.01, respectively).  However, heading 1006.30.01 applied to both 
subject and non-subject imports ( i.e., semi-milled and milled rice, irrespective of the grain length and 
irrespective of whether the rice was polished, glazed or parboiled).
21  Therefore, for purposes of its 
                                                      
16 Preliminary Determination, para. 23 (Exhibits US-14&15). 
17 See US First Written Submission, footnotes 167-68. 
18 Id. 
19 Id., paras. 159-165. 
20 See id., paras. 163-64 and footnotes 166-68. 
21 The petitioners specifically defined the subject product as “long-grain milled rice.”  Initiation Notice, 
para. 1 (Exhibits US-1&2).  Economía did not modify this definition in any way and it initiated the investigation 
with respect to “long-grain milled rice.”  Id., para. 150.  Moreover, the pe titioners explicitly excluded glazed WT/DS295/R 
Page B-10  
 
injury determination, Economía  needed to separate imports of lo ng-grain milled rice from imports of 
the other types of rice also classified under heading 1006.30.01.  32. The United States noted in its first written submission that Economía  could have separately 
identified imports of long-grain milled rice on th e basis of the information provided in the pedimentos  
for all the shipments that entered under heading 1006.30.01 during the POI.  Instead, Economía  relied 
on a flawed statistical procedure that focused on is olating imports of short-grain and medium-grain 
rice, and that did not even address the question of how to separate out imports of glazed rice and parboiled rice, which were also not part of the s ubject product.  In fact, paragraphs 229-232 of the 
final determination, setting out Economía’s  methodology, make no reference to any attempt to 
separate out glazed rice and parboiled rice.
22 
 
13. Could Mexico clarify whether its statement that the domestic industry kept production 
of long grain white rice stable throughout the ye ar by importing rice during the off-season, is a 
reference to the imports of paddy rice, or whethe r such imports are also of semi-processed rice? 
 
Answer : 
 33. If the Panel is referring to  paragraphs 60-62 of Mexico’s  first written submission, the 
United States notes again that Mexico has provided no  citations to the administrative record of the 
rice investigation for the referenced table.  To the contrary, Mexico’s reference to “common 
knowledge” suggests that the table is a non-record document that Mexico prepared for purposes of 
this dispute.  34. Furthermore, it is also important to reiterate Economía’s  finding in the investigation that 
Covadonga, one of the major Mexican producers, lo wered its prices by mixing low-priced imports of 
milled
 rice from Argentina with its own production.  The Argentine imports were priced below the 
prices of the US imports.  Economía  failed to explain in its publis hed determinations how it could 
have found any causal relationship between the a llegedly dumped imports from the United States and 
Covadonga’s sales prices, given that Covadonga’s sales prices increased  when its imports from 
Argentina were excluded from the calculation.23 
 14. In para. 265 of the Final Determinatio n, the Investigating Authority discusses the 
ex-factory price difference between Argentinian rice and US rice when exported to Mexico. 
Could Mexico indicate how high the Mexican import duty for rice from non-NAFTA countries 
like Argentina is?  Was all the rice referred to as "rice imported from Argentina" fully processed long grain white rice ready for domestic consumption?  
 
15. Could Mexico clarify whether the inform ation contained in the "pedimentos" would 
have allowed the investigating authority to determine with certainty the precise amount of imports of the subject product, long grain white rice, from the United States and from other countries, without any need to apply a methodology to distinguish subject from non-subject imports?  
 
                                                                                                                                                                    
 
rice, parboiled rice, short-grain rice, and medium-grain rice from the scope of the investigation, on the grounds 
that these types of rice did not compete with domestic long-grain milled rice.  Id., paras.  10-15. 
22 Paragraph 239 of the final determination indicates that Economía used the methodology described in 
paragraphs 229-232 for its analysis of 1999.  For 1997 and 1998, Economía simply guessed that imports of long-grain white rice entered in proportions equal to all imports of white rice from the United States.  See id . 
23 See Final Determination, paras. 286 and 290 (Exh ibits US-6&7); US First Written Submission,  
para. 125.  WT/DS295/R 
 Page B-11 
 
 
Answer : 
 35. The United States explained in its first written submission that the pedimentos  provide a 
wealth of information for each import shipment.
24  Moreover, Exhibit US-12 reproduces the format 
for the pedimentos  that was applicable during 1999.  As the instruction sheet for that document 
indicates (the instruction sheet is also set out in Exhibit US-12), there are 57 specific fields in the 
pedimentos , including fields for reporting a full descrip tion of the imported goods (field 32), the unit 
price of the goods (field 33), and the quantity of goods involved (field 53), as reported in the invoice.  The instruction sheet also notes that field 32 sh ould contain “the nature and the technical and 
commercial characteristics needed and sufficien t for determining customs classification”. 
 
36. Therefore, if Economía  had so chosen, it could have collected the pedimentos  for the 
shipments of the subject product during the POI, and thus would have been in a position to separate 
the subject imports (imports of long-grain milled rice) from non-subject imports (imports of short-grain rice, medium-grain rice, glazed rice, and parboiled rice), and calculate precisely the price 
and the quantity of the subject imports. 
 37. The United States notes in its response to question 17 below that Mexico has shown a willingness to use the pedimentos  where doing so will benefit domestic industries seeking the 
imposition of anti-dumping measures.  It also explains that Mexican petitioners have used pedimentos  
released to them by the Mexican government to separate subject products from non-subject products 
imported under the same tariff heading. 
 
16. (a) Could the parties comment on the following argument made by China in its oral 
statement (page 5): 
 
"Given that both Article 5.2 and Article 6.1.3 use the same wording "known 
exporter", the "known exporters" under Article 6.1.3 refer to "each known 
exporter" under Article 5.2.  Theref ore, the AD Agreement suggests that 
investigating authorities shall rely on the petitioners to identify "known" exporters in their petition(s)".  
Answer
: 
 
38. The United States does not agree with Chin a’s interpretation of Article 6.1.3 of the 
AD Agreement.  Article 6.1.3 places obliga tions on the investigating authority , not on the petitioner.  
There is no textual link to Article 5.2 or any other la nguage in the text of Article 6.1.3 suggesting that 
the authority is only required to send a copy of th e petition to the exporters known to the petitioner, 
and not to the exporters known to itself.  If the draf ters of the AD Agreement had intended to limit the 
obligation in Article 6.1.3 in such a manner, they presumably would have said so.  39. The broader context of Article 6.1 supports  the conclusion that the reference to “known” 
exporters in Article 6.1.3 is to those exporters known to the inv estigating authority.  The first sentence 
of Article 6.1 states that “[a]ll interested parties in an anti-dumping investigation shall be given notice 
of the information which the authorities require and ample opportunity to present in writing all 
evidence which they consider relevant. . . .”  Given the requirement to notify “all” interested parties, 
there is no logical basis for limiting the obligati on to send the petition to only those exporters known 
to the petitioner if the investigating authority knows of other exporters.  
40. In addition, Article 6.2 of the AD Agreement st ates that “all” interested parties shall have a 
full opportunity for the defence of their interests, and Article 6.4 states that authorities shall provide 
opportunities for “all” interested parties to see rele vant information.  These provisions illustrate the 
                                                     
 
24 US First Written Submission, n. 25 and accompanying text. WT/DS295/R 
Page B-12  
 
emphasis that Article 6 places on ensuring that the inte rests of all interested parties involved in an 
anti-dumping investigation are protected, and militate against an interpretation of Article 6.1.3 that 
would lead to fewer parties receiving the in formation they need to defend themselves. 
 41. Finally, China’s interpretation (like Mexico’s  interpretation of Article 6.10 and its overall 
approach to assigning margins to uninvestigated firms) is illogical, because it would create an 
incentive for petitioners to under-report the range of exporters known to them, because doing so 
would allow them to manipulate the investigation to the detriment of the investigated parties. 
 
(b) Is it Mexico's view that the term "kno wn" exporters in Article 6.1.3 AD Agreement, 
only relates to the exporters that are "mad e known" to it by the petitioner ?   
 (c) Could the US explain why it considers that it was so unreasonable of the authority to 
assume, given the nature of the industry, that by making its public initiation notification, by sending the questionnaires to  the two known exporters and by notifying 
the US authorities in Mexico, all exporters would be informed of the initiation of the 
investigation and of the need to provide in formation?  Is this not confirmed by the 
behaviour of the USA Rice Federation (see also question 18 below)? 
 
Answer
: 
 
42. The issue before the Panel is whether Economía  was under an obligation with respect to the 
AD Agreement to take certain steps in the conduct of  its investigation, and whether it failed to take 
those steps.  43. In order to act consistently  with Mexico’s WTO obligations, Economía  could have, on one 
hand, investigated and made an effort to calcula te an individual margin of dumping for each known 
exporter or producer.  Taking this  approach would have required Economía  to send a copy of the 
anti-dumping questionnaire to each firm that was include d in the investigation and to ensure that each 
firm understood the consequences of not replying before Economía  could apply a facts  
available-based margin to it.
25  On the other hand, Economía  could have limited its investigation to a 
subset of exporters and producers.26  Taking this other approach would have required Economía  to 
apply a neutral margin, calculated in accordance w ith Article 9.4 of the AD Agreement, to the 
unexamined firms.  44. However, Economía  chose instead to take a third appro ach that is not consistent with the 
AD Agreement: it limited its investigation by onl y sending its anti-dumping questionnaire to the two 
firms that the petitioner designated as “known” expor ters in the petition.  Then, having made this 
decision, it applied an adverse, facts-available b ased margin, instead of a neutral margin, to the 
unexamined firms.  Economía’s  approach served both to minimize  the investigative burden on itself 
and to maximize the anti-dumping margins applied to  the foreign exporters and producers.  But under 
the AD Agreement, Economía  cannot have it both ways. 
 
45. First
, Economía  limited its investigation by choosing to only send its questionnaire to the two 
exporters specifically identified as “known” exporte rs in the petition, and by failing to send its 
                                                      
25 The Appellate Body noted in United States – Japan Sunset AB that Article 6.1 is one of several 
provisions in Article 6 that, either explicitly or by imp lication, create obligations w ith respect to each individual  
exporter or producer.  Appellate Body Report, United States – Sunset Review of Anti-Dumping Duties on 
Corrosion-Resistant Carbon Steel Flat Products from Japan , DS/244/AB/R, adopted 9 January 2004, para. 152 
(“United States – Japan Sunset AB ”). 
26 Specifically, a reasonable number of interested partie s using statistically valid samples, or the largest 
percentage of the volume of the exports which could reasonably be investigated.  AD Agreement, Art. 6.10, 
second sentence.  WT/DS295/R 
 Page B-13 
 
 
questionnaire to The Rice Company, a known expor ter mentioned repeatedly in the petition and 
described in Annex H of the petition as “one of the largest US exporters as regards paddy rice and 
white milled rice”.27  It also limited its investiga tion by choosing not to consult the pedimentos , which 
were in the possession of the Mexican government and identified every exporter of the subject 
merchandise to Mexico during the POI, thus making them known to Mexico.  Economía  also limited 
its investigation by taking no steps to review public ly available information that would have provided 
names and contact information for every US producer in the United States.28  T h e n ,  Economía  
increased the difficulty for any firm not identified by  the petitioner to participate in the investigation 
by requiring it to appear in Mexico City to obtain a copy of the questionnaire.29 
 
46. Second , Economía  did not apply a neutral margin calculated in accordance with Article 9.4 
of the AD Agreement to the unexamined producers and exporters.  Rather, it applied an adverse, facts 
available-based margin to them.  There are numer ous provisions of the AD Agreement, however, that 
place limitations on the ability of a Member to a pply margins based on the facts available.  The 
United States discussed these provisions at length in its first written submission and in its oral 
statement at the first panel meeting.30  Economía  failed to comply with any of them. 
 47. Third
, Article 12.1 of the AD Agreement requires an investigating authority initiating an  
anti-dumping investigation to give public notice and  notify the interested parties known to the 
investigating authorities.  Therefore, it is not enough for a Member to simply publish a notice of initiation of an investigation and thereby meet its ob ligations under Article 12.1.  The fact that the 
USA Rice Federation (the “Federation”) came forwar d and asked to participate in the investigation 
proves only that the Federation subsequently learned of  the investigation.  It does not prove that any 
other firm knew that it had been “deemed” included in  the investigation, or that the Federation or any 
other firm was aware of Economía’s  plan to breach its WTO obligations by applying an adverse, facts 
available-based margin to firms that were never even sent a questionnaire.  The initiation notice says 
nothing of the sort. 
 48. The Panel’s question suggests that Economía  might have taken the approach that it did 
because of the “nature of the industry” that it was investigating.  The United States is not aware of any evidence on the record of the rice investigation s upporting this assumption.  If anything, the record 
evidence suggests instead that Economía’s  approach reflected a conscious decision to favour the 
interests of the petitioner by ignoring readily ava ilable information, shifting the burden for providing 
the requisite notice from itself to the US exporters  and producers, as well as to the US government, 
and ensuring that a prohibitive facts available-b ased anti-dumping margin would be applied to as 
many US exporters and producers as possible.  
49. If Economía  had not deemed every
 producer and exporter of the subject merchandise in the 
country to be “in the investigation” when it only sen t its questionnaire to two of them, and if it had 
applied a neutral “all others” margin calculated in accordance with Article 9.4 to the uninvestigated 
exporters and producers, then Economía’s  failure to provide the unexamined exporters and producers 
the notice that Article 6.1 and paragraph 1 of An nex II require would not have been an issue.  
Economía  did claim that it was investigating every US exporter and producer in the United States, 
                                                      
27 Petition Annex H, at 2. (Exhibit US-10).  Econom ía’s failure to send the questionnaire to The Rice 
Company demonstrates that it is  not accurate to state that Econom ía sent its questionnaire to the “known” 
exporters. 
28 See Exhibits US-18 and 19 (excerpts from the industry publication Rice Journal  for 1999 and 2000, 
respectively, providing contact information). 
29 Initiation Notice, para. 153.  (E xhibits US-1&2).  The Panel shou ld also recall Mexico’s argument 
that it would be “illogical” to provide such firms the full 30 days to respond to the questionnaire that the AD Agreement requires.  See Mexico’s First Written Submission, para. 220-21. 
30 See, e.g.,  US First Written Submission, paras. 142-148, 174-183, 192-195;  US oral statement at the 
first panel meeting, paras. 45-51. WT/DS295/R 
Page B-14  
 
however, and it applied an adverse, facts availabl e-based margin taken from the petition to all but 
three of them.  As the United States dem onstrated in its first written submission, Economía’s  
approach breached numerous provisions of the AD Agreement and the GATT 1994. 
 
17. The US argues that all the Mexican investigating authority had to do was to look into 
the "pedimentos" to find out who the other US exporters were. 
 (a) Could Mexico indicate whether this assertion is correct, do the "pedimentos" identify all 
the exporters? 
 Answer
: 
 50. Exhibit US-12 reproduces the format for the pedimentos  that was applicable during 1999.  As 
the United States noted in its first written submission, field 19 in the pedimentos  requests the name of 
the foreign supplier involved, together with its business address.
31 
 
(b) Could Mexico clarify whether the investigating authority attempted to obtain the 
"pedimentos"?  If so, what was the reason why such information was not obtained, or 
could not be used? 
 
Answer : 
 
51. In evaluating Mexico’s respon se to the Panel’s questions on the pedimentos , the Panel may 
wish to also take into account Mexico’s willingness to use the pedimentos  to benefit domestic 
industries seeking the imposition of anti-dumping measu res.  For example, on 17 May 2004 (the day 
of the first panel meeting in this dispute), Economía  published an initiation notice in its anti-dumping 
investigation of Epoxidized Soybean Oil from the United States .32  The notice indicates that Mexico’s 
Ministry of the Treasury released actual pedimentos  to the petitioners in that case and that the 
petitioners used data taken from the pedimentos  to support their allegations of dumping and injury.33 
                                                      
31 US First Written Submission, n. 25 (final sentence). 
32 Resolucion por la que se acepta la solicitud de parte interesada y se declara el inicio de la 
investigación antidumping sobre las importaciones de aceite epoxidado de soya, mercancía actualmente 
clasificada en la fracción arancelaria 1518.00.02 de la Tarifa de la Ley de los Impuestos Generales de 
Importación y de Exportación, originarias de los Estados Unidos de América, independientemente del país de 
procedencia , Diario Oficial de la Federacion (segunda seccion) 11 (17 May 2004) (“ Soybean Oil Initiation 
Notice ”) (Exhibit US-22).  The attached exhibit is the Span ish-language original, because the United States does 
not have an English-language translation of the notice. 
33 In paragraph 16 of the initiation notice, Economía takes stock of all of the information that the 
petitioners submitted in their petition.  Economía notes in particular that the petitioners provided: 
 
Customs declarations [ pedimentos ] from 2002 through October 2003 accompanied by their 
[corresponding] invoices, cer tificates of analysis and the translation of the latter. 
Soybean Oil Initiation Notice, para. 16(C).  Ec onomía then notes in paragraph 24 that: 
To document the export price, the comp anies EIQSA and RYMSA [the two petitioners] 
provided customs declarations [ pedimentos ] which establish the price at which epoxidized 
soybean oil was exported from the United States  of America to Mexico during the period of 
investigation.  The petitioners obtained this information from the Ministry of the Treasury 
through ANIQ . 
Id., para. 24 (ANIQ is the acronym for Asociacion Nacional de la Industria Quimica  or the 
National Association of the Chemical Industry) (emphasis added).  Finally, in assessing the 
petitioners’ allegations of injury, the initiation notice states that: The petitioners obtained statistics of definitive imports corresponding to the tariff heading 
1518.00.02 of Mexico’s Import Tariff Schedule at the level of customs declarations provided 
by the General Customs Administration for the period of investigation.  WT/DS295/R 
 Page B-15 
 
 
52. Similarly, in Economía’s  anti-dumping investigation of Crystal Polystyrene from the 
United States , the petitioners obtained copies of pedimentos  from the Mexican government and used 
them to support their allegations of dumping and injury.34  Moreover, the petitioners in the  
Crystal Polystyrene  investigation used the pedimentos  to separate out the imports of the subject 
product from other, non-subject merchandise imported under the same tariff heading.35 
 
53. In sum, Mexico’s willingness to allow petitioners to use the pedimentos  to support dumping 
and injury claims in other investigations illustrates (1) that the pedimentos  can be used to obtain value 
and volume information for products subject to an ti-dumping investigations; and (2) that Economía’s 
failure to use them in the investigation at issue to  identify “known” exporters or to use them in its 
injury analyses was neither objective nor unbiased.36 
 
(c) Could Mexico explain whether the Mexica n investigating authority in its normal 
practice verifies the information provided by  the petitioners concerning the exporters 
mentioned in the petition?  If so, how does the authority go about checking this 
information? 
 
                                                                                                                                                                     
. . . The petitioners stated that the customs declarations were obtained through ANIQ and that 
the totality of such declarations referred to epoxidized soybean oil. 
According to the foregoing, the petitioners presented an import database that refers 
exclusively to epoxidized soybean oil originating in the United States of America for the period under review. 
Id., paras. 64(A), 64(C), 64(D). 
 
34 Resolucion por la que se acepta la solicitud de parte interesada y se declara el inicio de la 
investigación antidumping sobre las importaciones de po liestireno cristal, mercancía actualmente clasificada 
en la fraccionnes arancelarias 3903.19.02 y 3903.19.99 de la Tarifa de la Ley de los Impuestos Generales de 
Importación y de Exportación, originarias de los Estados Unidos de América, independientemente del país de 
procedencia , Diario Oficial de la Federaci on (primera seccion) 25  (13 January 2004) (“ Crystal Polystyrene 
Initiation Notice”) (Exhibit US-23).  Th e attached exhibit is the Spanis h-language original, because the 
United States does not have an English-language translation of the notice. 
35 Economía noted at paragraph 29A of the Initiation Notice that: 
 
[Petitioners] obtained a representative sample of copies of pedimentos from the General 
Administration of Customs for the period of investigation and identified the type of product that each importer buys, the terms of sale
, the means of transportation, and the presentation of 
the product (in bags or in bulk), inter-alia. Subsequently, they eliminated the shipments that do 
not correspond to crystal polystyrene [the subject product]. The sample of pedimentos 
accounts for 73.6 per cent of the total volume imported under tariff headings 3903.19.02 and 
3903.19.99 of the TIGIE [Schedule of the General Import Tax, which is the formal name for 
Mexico’s Harmonized Tariff Schedule] during the period under investigation . 
 
Id., para. 29A (emphasis added) (Exhibit US-23). 
36  In addition, paragraph XXVI of Article 144 of  Mexico’s Customs Law provides that Mexico’s 
Ministry of the Treasury shall: 
 
[r]elease the information contained in the pedimentos  to Industrial Chambers and Industry 
Associations grouped in Confederations, as pr ovided in the Law of Business Chambers and 
Confederations thereof, that participate with the Tax Administration Service [Mexico's IRS] in 
the Program on Customs and Tax Control by Industrial Sector . . . .  
This is yet another example of Mexico’s w illingness to allow its domestic industries to use 
pedimento  data to support their cases in anti-dumping proceedings. WT/DS295/R 
Page B-16  
 
Answer
: 
 54. The United States has been una ble to identify any evidence in Economía’s  initiation notice 
suggesting that Economía  took any steps to verify the accuracy and adequacy of the information that 
the petitioner submitted with respect to the “known” exporters in the investigation at issue.  For 
example, Economía  did not question the petitioner’s omission of The Rice Company as a known 
exporter, notwithstanding that the petitioner used in formation from The Rice Company’s web site to 
support the petition.
37 
 
18. Could the United States provide more information on the "USA Rice Federation", 
which according to the Final Determination made itself known to the investigating authority.  
Which and how many producers does it represent? 
 
Answer : 
 
55. The Federation is a rice industry organiza tion that serves as a national advocate for all 
segments of the US rice industry.  It conducts activities to influence government programs, develops and initiates programmes to increase worldwide dema nd for US rice, and provides other services to 
increase industry profitability for all industry segme nts.  The Federation has three charter members:  
the US Rice Producers’ Group, the Rice Millers’ Asso ciation, and the USA Rice Council.  Each of 
those organizations has a distinct identity and serves its own segment of the US rice industry. 
 
56. The Federation was in existence when the petiti oner filed its petition, and it was one source 
among many that the petitioner and Economía  could have contacted to  obtain publicly available 
information on the names and contact information of  US producers and exporters of long-grain white 
rice.  However, neither the petitioner nor Economía  contacted the Federation.
38  In the context of this 
dispute, the AD Agreement required Economía  to calculate a margin for each known exporter and 
producer, to send a copy of the anti-dumping questi onnaire to each firm that was included in the 
investigation, and to ensure that each such firm  understood the consequences of not replying before 
Economía  could apply a facts availa ble-based margin to it.39  Mexico therefore cannot cite the fact 
that the Federation subsequently came forward on its own and asked to participate in the anti-dumping 
investigation as a means of relieving Mexico of its WT O obligations or of “curing” its failure to meet 
those obligations. 
 
19. Could the US explain why it considers that  the Mexican authority failed to separate the 
dumped from the non-dumped imports while the Final Determination on numerous occasions 
refers to dumped imports separately and explicitly? 
 
Answer : 
 57. As the Appellate Body stated in EC Bed Linen 21.5 AB , Article 3.1 of the AD Agreement 
requires investigating authorities to ensure that their injury determinations are: 
 
                                                     
 
37 See Initiation Notice, para. 28(y) (Exhibits US-1&2). 
38 For example, Economía did not send the Federation a copy of the petition or its anti-dumping 
questionnaire or otherwise ask it for assistance in identifying members of the US rice industry.  The Federation obtained the questionnaire by coming forward on its own and appearing at Economía’s offices in Mexico City. 
39 The Appellate Body noted in United States – Japan Sunset AB that Article 6.1 is one of several 
provisions in Article 6 that, either explicitly or by imp lication, create obligations w ith respect to each individual  
exporter or producer.  Appellate Body Report, United States – Sunset Review of Anti-Dumping Duties on 
Corrosion-Resistant Carbon Steel Flat Products from Japan , DS/244/AB/R, adopted 9 January 2004, para. 152 
(“United States – Japan Sunset AB ”).  WT/DS295/R 
 Page B-17 
 
 
made on the basis of “positive evidence” a nd an “objective examination” of the 
volume and effect of imports that are dumped  – and to the exclusion of the volume 
and effect of imports that are not dumped .40 
Thus, an investigating authority must focus its analysis on the dumped imports.  Economía , by 
contrast, made its determinations on the basis of an examination of the volume and effect of all 
imports, including both the dumped and the non-dump ed imports.  The US first written submission 
lists several examples of this point.41 
 58. For example, Economía  looked at all imports from the United States, and not just dumped 
imports, in determining whether import levels ha d increased during the period of investigation.
42  
Economía  examined the import levels for Riceland and Farmers Rice – two companies that were 
found not to be dumping – and based its overall c onclusions on data for the non-dumping Farmers 
Rice.43 
 59. Similarly, Economía compared the fall in domestic prices to the fall in prices of all imports 
(including third country imports), and not just the dumped imports.
44  Economía  specifically included 
in its analysis the prices of Farmers Rice and Riceland, neither of which were dumped, imports of non-subject merchandise, and imports from Argen tina (which were priced below the dumped 
imports).
45 
 60. Moreover, Economía  stated that the “dumped imports” did not register an increase in their 
share of domestic consumption, and that they maintained their share of internal consumption.
46  These 
statements are only accurate, however, if they were based on data for all  of the investigated imports, 
and not just the dumped imports.  The data for the dumped  imports actually showed that: 
 
• The dumped imports’ share of apparent  domestic consumption actually fell  – from  
5.7 per cent in March – August 1997 to  4.8 per cent in March–August 1999.47 
 
• Similarly, the dumped imports’ shar e of internal consumption fell  – from 6.9 per cent in 
March–August 1997 to 6.5 pe r cent in March–August 1999.48 
 
• Finally, the share of the dumped imports  in comparison with domestic production fell  – from 
10.2 per cent in March–August 1997 to  10.1 per cent in March–August 1999.49 
 
                                                      
40 EC – Bed Linen 21.5 AB,  para. 111. 
41 See US First Written Submission, paras. 120-124. 
42 See, e.g., Final Determination, para. 217 (Exhibit US-6&7). 
43 Id., para. 228. 
44 Id., paras. 262-296. 
45 Id., paras. 281-82, 291.  As the United States noted in its first written submission, Mexico failed to 
explain how it could have found any causal relations hip between the allegedly dumped imports from the 
United States and Covadonga’s sales price, given that Covadonga’s sales price increased  when its sales of its 
imports from Argentina were ex cluded from the calculation.  See id., paras. 286 and 290; US First Written 
Submission, para. 125. 
46 Final Determination, para. 261 (Exhibit US-6&7). 
47 Id., para. 248.  By comparison, the investigated imports as a whole constituted 6.6 per cent of 
apparent consumption in March to August 1997, and 6.5 per cent in March to August 1999.  Id., para. 247. 
48 Id., para. 254.  By comparison, the investigated imports as a whole constituted 8.1 per cent of 
internal consumption in March to August 1997, and 8.7 per cent in March to August 1999.  Id., para. 247. 
49 Id., para. 259.  By comparison, the share of the inve stigated imports as a whole was 11.8 per cent in 
March to August 1997, and 13.5 per cent in March to August 1999.  Id., para. 258. WT/DS295/R 
Page B-18  
 
61. In sum, Articles 3.1., 3.2, and 3.5 of the AD Agreement required Economía  to conduct an 
objective examination of the volume, price effects, and impact of the dumped imports, and Economía  
failed to do so.  
Questions concerning Article 5.8 AD Agreement  
 
20. In Mexico's view, does it suffice for one exporter to have been found to be dumping 
above de minimis  levels for all other exporters to be included in the application of the measure 
under Article 5.8 AD Agreement or does Mexico co nsider that some sort of country-wide rate 
needs to be established and that, only if that country-wide rate is above de minimis , will all 
exporters from that country be covered by the measure?  Could Mexico clarify whether an 
exporter for which a below de minimis , but more than zero margin of dumping was found, 
would receive a 0 per cent duty or would a duty be imposed on such an exporter equal to the de minimis  margin? 
 Answer
: 
 62. In the rice investigation, Economía  did find only one company to be dumping.  The other 
three exporters that Economía  examined either had margins of ze ro (Farmers Rice and Riceland) or 
did not export to Mexico during the POI (Producers Rice).
50  Nevertheless, Economía  applied the 
anti-dumping measure to every producer or exporter in the United States, including Farmers Rice and 
Riceland.  Economía  took no steps to examine whether the we ighted average margin of all exporters 
was greater than de minimis  when it decided to impose the anti-dumping measure.51 
 63. It is important to note that the consequence of (1) Economía’s  refusal to apply Article 5.8 on 
a firm-specific basis;  (2) its practice of “deemi ng” every exporter and producer in the investigated 
country as being included in the investigation;  and (3 ) its application of adverse, facts available-based 
margins to the unexamined exporters and producers, is that Economía  will almost certainly find at 
least one firm to be dumping, and thus never fi nd a basis to terminate an investigation due to 
“de minimis ” dumping margins.  The only case where the language will have meaning for Mexico is 
the exceedingly rare one where Economía  individually investigates every
 exporter and producer of 
the subject product in the country under investigation and calculates a zero or de minimis  margin of 
dumping for each of them.  By effectively reading the de minimis  dumping margins language out of 
the AD Agreement, Mexico’s interpretation of Artic le 5.8 breaches the principle of effectiveness of 
treaty interpretation.  
21. Could Mexico clarify whether this is a correct understanding of the way in which the 
Mexican system operates: if an exporter wa s not dumping during the POI, but a dumping 
margin was found for other exporters of the pr oduct, this non-dumping exporter will be 
included in the measure, but a 0% duty will be imposed.  If later the review shows that the 
exporter had since engaged in dumping, a duty will be imposed on him equivalent to the new margin of dumping. 
 
(a) Is this a correct understanding of the system?  (b) Will a new injury analysis be required before such duties may be imposed?   22. Could the US please react to the European Communities suggestion (in para. 8 in fine of 
its written submission) that the US interpret ation of Article 5.8 AD Agreement raises the 
practical problem of the possibility of two para llel proceedings against imports from the same 
country? 
                                                     
 
50 See Final Determination, para. 400  (Exhibits US-6&7). 
51 Id., paras. 398-404.  WT/DS295/R 
 Page B-19 
 
 
Answer : 
 64. It is not clear to the United States what  the European Communities (EC) means when it 
suggests that the US interpretation of Article 5.8 ma y lead to “parallel” proceedings against imports 
from the same country, or how such an outcome would differ from the normal situation in an anti-
dumping investigation.  In a sense, the “dumping”  side of an anti-dumping investigation is always
 a 
series of “parallel” investigations, because the inv estigating authority examines the export prices and 
normal values of each individual fi rm under investigation, and it dete rmines an individual margin of 
dumping for each such firm.  It is this very asp ect of the dumping calculation that makes it possible 
for an investigating authority to  exclude from the anti-dumping measure those individual firms that 
are investigated and found not to be dumping. 
 65. Furthermore, there is no reason to assume that a firm that is found not to be dumping in an 
investigation, and excluded from the measure, would s ubsequently begin to dump.  Unlike a firm that 
is investigated and found to be dumping, a firm that is investigated and found not
 to be dumping has 
demonstrated that it is able to sell in the export mark et without engaging in such practices.  If the firm 
is able to sell without dumping when there is no anti-dumping measure in place, it will presumably be 
able to continue doing so thereafter (particularly if  its competitors are subject to the measure).  Thus, 
there is no reason to assume that there would be an y need for an investigating authority to conduct a 
new investigation.  
66. Finally, the United States has excluded i ndividual firms from anti-dumping measures in the 
past without encountering “practical problems” or “parallel proceedings”.  67. In sum, if a firm is investigated during the investigation and found not to be dumping, there is 
no basis under the AD Agreement to apply the anti-dumping measure to that firm. 
 
Questions concerning the use of facts available and the all others rate 
 23. In para. 176 of its submission, and para. 61. (c) of its oral statement, Mexico argues that para. 6 of Annex II was complied with as the information of the non-shipping exporter, 
Producers Rice, was "accepted". 
 
(a) Could Mexico clarify what information th is company provided which was accepted by 
the authority?  
 (b) Is Mexico of the view that para. 6 does not apply to situations in which the information 
is not provided, or is not provided within a reasonable period of time, but only to 
situations in which information which was provided is rejected?  
 24. Article 68 of the Foreign Trade Act mentions three categories of exporters to which the highest margin shall be applied.  One of these categories seems to cover the situation provided 
for in Article 6.8 AD Agreement.  
 
(a) Does Mexico consider that the two ot her categories (non-appearing exporters and 
non-shipping exporters) are not covered by  the situation described in Article 6.8 
AD Agreement? 
 
(b) What is the view of the US on the relevance, if any, of the fact that Article 68 of the 
Foreign Trade Act provides for these three separate categories?   
 WT/DS295/R 
Page B-20  
 
Answer
: 
 68. Subparagraph II of Article 64 appears to address the application of the facts available in the 
situation set out in Article 6.8 of the AD Agreemen t.  The fact that subparagraphs I and III require 
Economía  to apply the facts available in two additional situations is evidence that Article 64 requires 
Economía  to apply the facts available when the n ecessary prerequisites for doing so in accordance 
with Article 6.8 and Annex II of the AD Agreement are absent.  69. Furthermore, subparagraph II of Article 64 is  also inconsistent with WTO rules.  The 
United States noted this point, for example, in paragraphs 237-329 of its first written submission. 
 
(c) Is Mexico of the view that the AD Agreement does not provide any rules on how to 
calculate an all others rate for non-appearin g parties and non-shipping exporters, or is 
Mexico arguing that the maximum duty th at can be imposed on such exporters under 
the Agreement is a facts available margin? 
 
Answer
: 
 70. Even if one were to interpret the AD Agreem ent as not providing rules on how to calculate an 
all others rate for non-appearing parties and non-ship ping exporters, the fact remains that Articles 6.1 
and 6.8 and Annex II of the AD Agreement do pr ovide rules that Members must follow when 
applying margins based on the facts available.  For the reasons set out in our first written 
submission
52, Economía’s  application of the facts available to Producers Rice and the unexamined 
exporters and producers breached these rules.  
25. In Mexico's view, does para. 7 of Annex II allow for unfavourable results only in case of 
non-cooperative parties or in all cases in whic h the necessary information is not provided?  
 Questions concerning the challenge of the law as such  26. According to the parties, to what extent  is the distinction mandatory / discretionary 
legislation still applicable in WTO law after th e Appellate Body statement in para. 93 of its 
decision in the US - Corrosion Resistant Steel case (DS 244)? Answer
: 
 71. In paragraph 93 of the relevant report, the A ppellate Body stated that it had not, “as yet, been 
required to pronounce generally upon the contin uing relevance or significance of the 
mandatory/discretionary distinction.  Nor do we consid er that this appeal calls for us to undertake a 
comprehensive examination of this distinction.”
53  Therefore, the Appellate Body’s statements do not 
provide grounds to conclude that the doct rine is no longer applicable in WTO law. 
 72. As the United States discusses in greater deta il in responding to question 27, Mexico has 
alleged that there is no conflict between its WT O obligations and the ch allenged Mexican legal 
provisions.  Indeed, Mexico’s enactment of the chal lenged provisions is premised upon its view that 
no such conflict exists.  Therefore, the issue of whether Mexico has “discr etion” to ignore an FTA 
provision that conflicts with the AD Agreement does not arise.  
                                                     
 
52 US First Written Submission, paras. 174-183, 192-195. 
53 Appellate Body Report, United States – Sunset Review of Anti-Dumping Duties on  
Corrosion-Resistant Carbon Steel Flat Products from Japan , DS/244/AB/R, adopted January 9, 2004, para. 93 
(“United States – Japan Sunset AB ”) (footnote omitted).  WT/DS295/R 
 Page B-21 
 
 
27. Could the US explain to what extent it considers the challenged Mexican legal provisions 
to be mandatory in nature in light of the argument by Mexico of the direct effect of the WTO Agreements in Mexican municipal law?  
 
Answer
: 
 
73. The so-called “mandatory/discretionary” doctr ine applies when a law is capable of being 
applied in both a WTO-consistent a nd a WTO-inconsistent manner.  Each of the legal provisions at 
issue in this dispute, by contrast, requires  Economía  to act in a particular manner.  For example, 
Article 64 of the FTA does not say that Economía  may  apply the highest facts available to firms that 
did not export to Mexico during the POI; it requires  Economía  to do so.  Mexico has not alleged 
otherwise.  Mexico’s suggestion that it is require d to apply its laws in a WTO-consistent manner 
cannot insulate those laws from chal lenge if the laws themselves grant Economía  no discretion to 
apply them in a WTO-consistent manner.  
74. Furthermore, Economía  is the administrator of Mexico’s anti-dumping laws, and Economía  
views each of the challenged provis ions as in itself consistent with WTO rules, without any need to 
somehow override these laws through application of  WTO rules under municipal law.  Mexico has 
made this point repeatedly during this dispute.  In  other words, as a matter of Mexican municipal law, 
Mexico has been interpreting its WTO obligations as not precluding the challenged laws from requiring actions which are, in fact, WTO-inconsis tent.  Mexico has therefore not considered it 
necessary to test whether, under Mexican municipal law, the direct effect of the WTO Agreements 
could actually override a law which on its face mandat es what is, in fact, WTO-inconsistent action.  
Moreover, given Mexico’s view that, as a matte r of Mexican municipal law, WTO rules do not 
preclude the challenged laws from operating as provide d in the laws themselves, Mexico does not, as 
a matter of municipal law, have discretion to disregard their otherwise mandatory aspects. 
 
75. Thus, the issue of “discretion” might only ar ise with respect to the challenged laws in the 
event that this Panel finds the laws to be inconsis tent with Mexico’s WTO obligations.  At that point, 
it would fall to Mexico to explain in the implemen tation phase of the dispute what steps it would need 
to take to reconcile its WTO-incons istent laws with its WTO obligati ons, just as it would for any other 
Member whose domestic law was found to be inconsistent on its face with WTO rules. 
 
28. Could Mexico explain whether, in case the DSB were to adopt a panel report finding an 
inconsistency of a Mexican law with the WTO Agreements, it considers that it would be obliged to amend the law to bring the law into co nformity with the WTO Agreement?    
 
29. Could Mexico clarify whether private parties may be successful when they file a suit 
against the administration before the domestic co urts of Mexico in case the administration 
failed to comply with a statutory obligation, even  if this obligation is inconsistent with the 
WTO Agreement, requiring the administrati on to comply with such obligations? 
 30. Is it Mexico's view that if a certain provision is somehow found to be inconsistent with 
the WTO Agreements, that is, in case a conflic t is found between the Foreign Trade Act and the 
WTO Agreements, then the WTO Agreements would prevail by virtue of Article 133 of the Political Constitution and Article 2 of the Foreign Trade Act?   31. In para. 263 - 266 of its submission, Me xico argues that the "representativeness" 
requirement in Article 68 of the Foreign Trade Act is only a tool, and that the US is wrong in 
suggesting that it is a condition sine qua non  for the initiation of a review. 
 (a) Could Mexico clarify whether a review may be initiated if the party concerned cannot 
demonstrate that its sales volume for the period was representative?  
 WT/DS295/R 
Page B-22  
 
(b) What in the Mexican practice is considered to be a "representative" volume? 
 
Answer
: 
 76. The United States has noted previously that the plain language of Article 68 imposes a 
condition for exporters seeking reviews to demonstr ate that the volume of exports of the subject 
merchandise during the review period was representative.  In the event that Mexico contests this fact, 
the Panel may wish to refer to the attached initiati on notice for a Mexican “Article 68” review that is 
currently ongoing, which demonstrat es that Mexico does in fact require exporters seeking reviews to 
make such a demonstration.
54 
 
77. The review in question involves several expor ters.  According to the initiation notice, each 
exporter stated that “the volume exported in the period under investigation [the review period] was 
representative, given that its shipments were made  in commercial volumes and in a regular fashion 
throughout such period”, and provided supporting data on export sales to Economía .55 
 
78. Furthermore, paragraphs 38-42 of the attached initiation notice are entitled “Legal 
Requirements for the Review”.  Paragraph 38 stat es that, according to Article 68 of the FTA and 
Article 99 of the Regulation, reviews of definitiv e anti-dumping duties are subject to the substantive 
and procedural rules set forth in those articles.  Therefore, inasmuch as the “representative exports” 
requirement is set forth in Article 68, reviews are subject to that requirement. 
79. Paragraph 47 of the initiation notice states that Economía  applied two tests to determine 
whether the exports of the various firms during the review period were representative.  First, 
Economía  compared the export volumes of the firms ag ainst the volumes of their domestic (US) 
sales.  Second, Economía  compared the export volumes of the firms against the average volume of 
exports for all of the companies that were involved in  the original investigation.  At paragraph 48 of 
the notice, Economía  concludes that six of the firms pass ed both tests and, at paragraph 49, it 
concludes that the volume of exports during the revi ew period by such firms was representative, “in 
conformity with Article 68 of the Foreign Trade Law ” (emphasis added).56 
 80. Finally, paragraph 92A of the notice states that , “in conformity with Article 68 of the [FTA], 
the volume of exports made in the period that goes from January through July 2003 by [the companies 
qualifying for the review] was representative.” 
 81. In sum, Mexico did require the exporters se eking the reviews to demonstrate that the volume 
of their exports of the subject merchandise during the review period was representative. 
 32. Is it the view of Mexico that, with regard to new shippers (Article 89 D of the Foreign Trade Act), the representativeness requirement is not inconsistent with the AD Agreement or 
the Subsidies and Countervailing Measures ("SCM") Agreement because it is the only logical 
and sensible way of ensuring that the Authorit y can make a proper price comparison for the 
establishment of an individual margin (as Mexico seems to be saying in para. 270 of its written 
submission) or is Mexico's arguments simply that it is not a condition sine qua non , and is this 
                                                     
 
54 Resolucion por la que se declara el inicio de la revision de la cuota compensatoria definitiva 
impuesta a las importaciones de manzanas de mesa de las variedades Red Delicious y sus mutaciones y Golden 
Delicious, mercancia clasificada actualmente en la fraccion arancelaria 0808.10.01 de la Tarifa de la Ley de 
los Impuestos Generales de Importacion y de Exportacion, originarias de los Estados Unidos de America, 
independientemente del pais de prodedencia , Diario Oficial de la Federacion (primera seccion) 16 
(21 October 2003).  (Exhibit US-24). 
55 Id. at paras. 11C and 12A (Chelan), 15B and 16A (Dovex), 17C and 18A (Holtzinger), 19D and 20A 
(L&M), 21B and 22A (Manson), 23B and 24A (Northern Fruit), 25C and 26A (Nuchief), 27F and 28A (Oneonta), 29C and 30A (PAC), 31C and 32A (Rainer Fruit), 33D and 34A (Sage), and 35C and 36A (Stemilt) 
(Exhibit US-24). 
56 Mexico rejected the requests of the other exporters on unrelated grounds.  WT/DS295/R 
 Page B-23 
 
 
"requirement" for that reason not inconsis tent with the AD and SCM Agreements (as 
paras. 263-266 of the written submission seem to  suggest with regard to the similar requirement 
in Article 68 of the Foreign Trade Act)? 
 
Answer : 
 
82. The United States has noted previously that the plain language of Article 89D imposes a condition for exporters seeking reviews to demonstr ate that the volume of exports of the subject 
merchandise during the review period was representative.  In the event that Mexico contests this fact, 
the Panel may wish to refer to the attached initiatio n notice for a Mexican “new shipper” review that 
was initiated on the same date as the “Article 68" review discussed in response to question 31.  
Paragraph 16 of the initiation notice states as follows:  
In accordance with Article 89D of the FTL and Article 9.5 of the Anti-Dumping Agreement, an expedited review will be  undertaken to determine an individual 
dumping margin for exporters or producers . . . , provided that such exporters 
demonstrate that they have made export sales to Mexico of the subject merchandise, 
in representative volumes, subsequent to the period of investigation in the proceeding 
that gave rise to the anti-dumping duty at issue  . . . .57 
83. The document also notes the exporter’s assertion that it had exported a representative volume 
of the subject merchandise to Mexico after the imposition of the anti-dumping measure, and that the 
firm had provided evidence documenting its assertion.58 
 84. Thus, Economía  did require the exporter seeking the review to demonstrate that the volume 
of its exports of the subject merchandise dur ing the review period was representative. 
 33. In its submission and oral statement, Mexi co does not directly reply to the US argument 
in para. 261 of the US submission that Articl e 89 D of the Foreign Trade Act only applies to 
producers, but clearly asserts that it will apply its laws in accordance with the Agreement.  
Could Mexico clarify whether Article 89 D of the Foreign Trade Act also applies to exporters?  
 34. Could Mexico clarify whether, pending a judicial review, no definitive duties will be 
imposed or collected as it seems to be arguing in paras. 301 - 302 of its written submission?  
 35. Could Mexico clarify whether the importation of "identical or like goods" on which fines may be imposed under certain circumstances in Article 93 V of the Foreign Trade Act also 
                                                     
 
57 Resolucion por la que se acepta la solicitud de parte interesada y se declara el inicio del 
procedimiento de nuevo exportador, en relacion con la resolucion definitiva sobre las importaciones de manzanas de mesa de las variedades  Red Delicious y sus mutaciones y Golden Delicious, mercancia clasificada 
actualmente en la fraccion arancelaria 0808.10.01 de la Tarifa de la Ley de los Impuestos Generales de 
Importacion y de Exportacion, originarias de los Estados Unidos de America, independientemente del pais de prodedencia , Diario Oficial de la Federacion (primera secci on) 29, at para. 16 (21 October 2003) (emphasis 
added).  (Exhibit US-25). 
58 Id., paras. 13(C), 14(G). WT/DS295/R 
Page B-24  
 
refers to imports of the products from third co untries, i.e. from countries other than the one 
investigated in the anti-dumping investigation?  WT/DS295/R 
 Page B-25 
 
 
ANNEX B-2 
  
RESPONSES OF MEXICO 
 
Questions concerning the period of investigation 
 
1. UNITED STATES 
 2. Mexico argues that "there is no provis ion in the AD Agreement which indicates how 
remote an anti-dumping period of analysis must be" (para. 49 of its first submission). 
  (a) In Mexico's view, is there no limit in the AD Agreement on how "old" the data 
can be on which the dumping and injury an alysis may be based?  If Mexico is of 
the view that there are certain limits, please explain what, in Mexico's views, are 
the criteria for determining whether a POI is consistent with the AD Agreement 
or not? 
 
Answer
: 
  The AD Agreement establishes no limit rega rding the remoteness of the period of 
investigation (POI). 
 
(b) What is the Mexican practice in respect of the POI?  
Answer
: 
 
 The petitioners in an investigation suggest a POI in their application for initiation;  the 
investigating authority analyses th e information and evidence contained in the application and decides 
what POI it will use, which is reflected in the determination concerning the initiation of the 
investigation.  
 (c) Are there particular reasons why more recent data were not used in this case?  
Is Mexico of the view that the POI used in this case was the one closest to the 
initiation as far as "practicability" is concerned? If so, please elaborate.   
 
Answer
: 
 
 Mexico considers that an investigating aut hority is not required under the AD Agreement to 
gather the data that are most recent in relation to  the initiation of the investigation.  As regards 
agricultural products, Mexico notes that in its practi ce there may be an interval of several months 
between the end of the period of investigati on and the initiation of the investigation.  
 
3. Could Mexico explain the reason why it considered that the March - August 6 month 
period was appropriate for the injury analysis, including whether "seasonality" was one of the 
reasons.  
Answer
: 
 
 The basic idea behind the periods of comparison used in the injury analysis in the rice case 
was the following:   The petitioner in the anti-dumping investigati on provided information on the unfair dumping 
practice for the period March-August 1999.  The inves tigating authority ("IA") conducted an analysis WT/DS295/R 
Page B-26  
 
to determine whether the unfair practice had ha d any effects during the period selected by the 
petitioners and hence whether it had had any impact  on the economic and financial indicators for the 
domestic industry over the period in question.  Th at six-month period was therefore defined as the 
"period of investigation".  
 In order to confirm the initial hypothesis,  it w as considered that the period in question should 
be distinct from previous periods in which the unfai r practice either did not ex ist or had had no impact 
on industry indicators.  The IA acco rdingly gathered all the inform ation available over a period of 
three years ("period analysed"), including the year c overed by the "period of investigation";  however, 
it limited its comparison to strictly comparable periods, i.e. the periods in the preceding two years that 
covered exactly the same months as those of the "period of investigation". 
  The "period of investigation" over which the adverse effects of the unfair practice were allegedly observed was thus compared with "comparabl e" periods in which the practice did not occur.  
The hypothetical expectation was that the domestic industry would be found to be healthy in the 
preceding comparable periods whereas unfavourable indicators would be observed in the "period of 
investigation".    The above approach was adopted to ensure stri ct comparability of the periods analysed;  even 
if it had been necessary in the long-grain white rice investigation to consider the seasonality factor – 
which was not the case – comparing the "period of i nvestigation" with previous comparable periods 
would eliminate any possible distortions in the market under analysis. 
  The March-August period in this case is not mo re appropriate in the strict sense than any 
other period that might have been selected.  On th e other hand, as has already been pointed out, it is 
the period for which the petitioners had information on the unfair practice and hence that which must 
be compared against similar periods. 
  
4. Could Mexico clarify whether the Panel is  correct to understand that the investigating 
authority had the data necessary to perform an injury analysis for the full three year period, 
but chose not to use this data as it considered th at the period should correspond to the period on 
which the analysis for dumping was made?  Please elaborate. 
 Answer
: 
 Indeed, the IA had before it information c overing the period January 1997 to December 1999 
and, for the reasons explained in the preceding reply, the comparison was made between the "period of investigation" and similar peri ods over the preceding two years. 
 
5. Could Mexico explain why it considered that this particular 6 month period was 
adequate in terms of a dumping analysis. Was the fact that that was the period which the 
petitioners cited the sole reason?    
Answer
: 
 
 Generally speaking, the IA considers that in pr inciple the "period of investigation" proposed 
by a petitioner is adequate in terms of performing th e dumping analysis and that it can serve as a basis 
for the injury analysis.  However, the IA has author ity to modify the initial "period of investigation" 
provided that it receives relevant arguments, accomp anied by pertinent evidence, which lead it to 
consider that the period is not adequate.  This is why a simple, unsubstantiated allegation cannot serve 
as a basis for modifying the period of investigation.   It is important to note that the AD Agreemen t stipulates in footnote 4 that "[t]he extended 
period of time should normally be one year but shall in no case be less than six months".  The IA  WT/DS295/R 
 Page B-27 
 
 
considered that the period of investigation suggest ed by the petitioner fulfilled that obligation, and 
hence accepted it for the purposes of  initiating the investigation. 
 
6. UNITED STATES 
 
7. UNITED STATES  
Questions concerning the injury analysis 
 
 8. What, according to the parties, is the definition of the domestic industry allegedly 
injured by the dumped imports? Does the domest ic industry considered in the injury analysis 
include producers of paddy rice or only of milled rice?  
Answer
: 
 
 The domestic industry covers only producers of long-grain white rice.  It does not include 
producers of paddy rice. 
   
9. Could Mexico clarify whether the import da ta also include data relating to imports of 
paddy rice or is the "rice" referred to in the Fi nal Determination always "milled" rice?  Are the 
terms "rice", "white rice" and "long grain whit e rice" as they appear throughout the Final 
Determination used as synonyms? 
 
Answer : 
  The entire injury analysis refers exclusively to long-grain white rice. 
 
10. Could Mexico clarify whether paddy rice also enters the Mexican market under tariff 
heading 1006.30.01? More in general, which categories of rice fall under this tariff heading?  
Answer
: 
 
 No.  Only polished white rice enters under tari ff heading 1006.30.01.  Paddy rice is imported 
under heading 1006.10.01 and husked rice under heading 1006.20.01.  Over the period of investigation, several types of polished white ri ce in addition to long-grain white rice entered under 
the first tariff heading, i.e. glutinous short-grain ri ce, parboiled rice, etc.;  however, all of these share 
the characteristics of white rice.  11. Could the parties clarify whether the ri ce imported into Mexico under tariff heading 
1006.30.01 covers rice in any or all of the 5 stage s of processing mentioned in para. 161 of the 
Final Determination and that, therefore, some of  the rice imported under this tariff heading will 
need to undergo further processing in Mexico  before entering the consumer market as a 
finished product? 
 Answer
: 
  Rice is generally sold in large quantities and in bulk, and is transported by rail or ship over 
vast distances.  It is therefore practically impossible to export semi-processed rice from the 
United States to Mexico – that is, in any of the five stages of processing – because in view of adverse 
climate conditions or possible pest contamination (weevils, insects, fungus, bacteria, etc.), the only 
forms in which rice can be imported are paddy rice,  with its natural protective husk, and white or 
polished rice, which has already undergone all th e stages of processing and from which the husk and 
bran (the part most susceptible to pests) have been removed. 
 WT/DS295/R 
Page B-28  
 
12. If it is correct that both subject and non-subject imports of rice from the United States 
entered the Mexican market under the above ment ioned tariff heading, could Mexico explain 
the methodology that was used by the investigatin g authority to separate the subject imports of 
long grain white rice that came in under this heading from the non-subject imports of other types of rice (short grain, etc.)? 
 Answer
: 
  It was impossible to make an exact separati on, and various methodologies (volume of imports 
from the United States, exporter/importer methodol ogy, methodology based on verifiable exporter 
data and Mexican Rice Council (CMA) methodology) were therefore used to estimate the volume of 
imports of the product.  The methodologies are expl ained in paragraphs 217 to 244 of the Final 
Determination. 
  
13. Could Mexico clarify whether its statement that the domestic industry kept production 
of long grain white rice stable throughout the ye ar by importing rice during the off-season, is a 
reference to the imports of paddy rice, or whethe r such imports are also of semi-processed rice? 
 
Answer
: 
  The domestic industry is able to keep up production throughout the year by importing paddy 
rice from the United States.  As explained abov e, the importation of semi-processed rice is 
complicated.  
14. In para. 265 of the Final Determination,  the Investigating Authority discusses the  
ex-factory price difference between Argentinean ri ce and US rice when exported to Mexico. 
Could Mexico indicate how high the Mexican import duty for rice from non-NAFTA countries 
like Argentina is? Was all the rice referred to as "rice imported from Argentina" fully processed long grain white rice re ady for domestic consumption? 
 
Answer
: 
 
 A 10 per cent duty is paid on white rice im ported from Argentina and other countries with 
which Mexico has no trade treaty.   The reference in the Final Determination to  imports from Argentina concerns long-grain 
white rice.  As stated in paragraph 365 of th e document, the product was purchased by a Mexican 
producer of white rice and mixed with its own production for marketing purposes. 
  
15. Could Mexico clarify whether the inform ation contained in the "pedimentos" would 
have allowed the investigating authority to determine with certainty the precise amount of imports of the subject product, long grain white rice, from the United States and from other countries, without any need to apply a methodology to distinguish subject from non-subject 
imports?  
 
Answer
: 
 
 The document known as the pedimento de importación  (import declaration) includes various 
types of information such as the volume and valu e of the imports, the exporting enterprise, the 
importing enterprise, the duties and other taxes paid, the date of the transaction, the customs point of 
entry of the goods, the type of transport used to ship them to Mexico, the tariff heading under which 
the transaction was conducted, and so forth.   WT/DS295/R 
 Page B-29 
 
 
 However, the field for entering the product description does not necessarily contain all the 
details of the product covered by the pedimento .  Sometimes the imported product is simply described 
as "white rice", without any specification as to whether it is long grain, short grain or parboiled.  Since 
the sole purpose of this field is to ensure that the product corresponds to its description in the tariff 
heading and the latter covers many types of white rice, any white rice will come under that heading. 
 
 The type of rice most extensively produced a nd sold in Mexico and the United States and 
common to both markets is long-grain white rice, so it may reasonably be assumed that the majority of imports concern this particular product.  On th e other hand, it is not said that even if all the 
pedimentos  had been available it would have been possi ble to determine with certainty the total 
amount of imports of the subject product. 
  In addition, the rice trade involves a larg e number of operations.  For example,  
1,183 transactions were recorded in 1997, 1,088 in 1998 and 1,207 in 1999.  It would have been 
impractical, therefore, to request access to every single pedimento  under tariff heading 1006.30.01 for 
the three years covered by the "period analysed" a nd to single out the transactions that concerned 
long-grain white rice.  Where a pedimento  merely stated that white rice was being imported, without 
specifying whether it was long grain, short grain or of any other type, the investigation regarding that particular pedimento would have required referring to additional documents such as the invoices 
issued by the exporter, bills of lading, and so fo rth, in the hope that any of these would provide a 
precise description of the product. 
 
 This is why in such cases the IA relies on reasonable estimates of import volumes and prices of the subject product.  It also asks the exporters themselves to provide specific data on their exports 
to Mexico.  Replies from exporters are normally e xpected to cover the ma jor share of estimated 
exports, thus ensuring the accuracy of the IA's calculations.  In the long-grain white rice case, for 
instance, the data for the "period of investigati on" received from the exporters cover 59.8 per cent of 
the estimated imports (as indicated in paragraph 207  of the Final Determination).  Unfortunately, the 
exporters, despite having been requested to supply data covering the entire period analysed, failed to 
do so.  
16. (a) Could the parties comment on the following argument made by China in its oral 
statement (page 5): 
 
"Given that both Article 5.2 and Article 6.1.3 use the same wording "known exporter", the "known exporters" under Article 6.1.3 refer to "each known 
exporter" under Article 5.2. Therefo re, the AD Agreement suggests that 
investigating authorities shall rely on the petitioners to identify "known" 
exporters in their petition(s)".  
Answer
: 
 
 Mexico agrees with China's interpretation that  the investigating authorities should rely on 
known exporters identified by the pe titioners in an investigation. 
 
(b) Is it Mexico's view that the term "known" exporters in Article 6.1.3 
AD Agreement, only relates to the exporters that are "made known" to it by the 
petitioner? 
 WT/DS295/R 
Page B-30  
 
Answer
: 
  In the specific case of the notification under Article 6.1.3 of the AD Agreement, only exporters notified by the petitioner are deemed to be known exporters. 
   
(c)  UNITED STATES  
 17. The US argues that all the Mexican investigating authority had to do was to look into the "pedimentos" to find out who the other US exporters were.  
 (a) Could Mexico indicate whether this assertion is correct, do the "pedimentos" 
identify all the exporters ? 
 
Answer
: 
 
 The IA does not have the pedimentos , which are in the hands of the Ministry of Finance and 
Public Credit.  To request and await reception of these documents would significantly delay the 
initiation of the investigation.  Instead, the IA has an electronic list of the documents, which does not 
contain all the information set out in the pedimentos . 
 
 (b) Could Mexico clarify whether the invest igating authority attempted to obtain the 
"pedimentos"? If so, what was the reason why such information was not 
obtained, or could not be used? 
 
Answer : 
 
 For the purposes of initiating an investig ation, Mexico sees no requirement in the 
AD Agreement to obtain the pedimentos  or to identify all of the expor ters.  The IA therefore did not 
attempt to obtain them, because it considered that it was under no obligation to do so.  To have sought 
to obtain them would have considerably delayed th e initiation of the investigation (by approximately 
40 days), because as many as 1,183 transactions we re conducted in 1997, 1, 088 in 1998 and 1,207 in 
1999.  As stated in the preceding reply, the IA relied on the list of pedimentos  to initiate the 
investigation. 
 
 (c) Could Mexico explain whether the Mexican investigating authority in its normal 
practice verifies the information provided by the petitioners concerning the exporters mentioned in the petition? If so, how does the authority go about 
checking this information ?  
 
Answer
: 
  The IA verifies the information provided in the petition using the list of pedimentos  to check 
the value and volume of exports.  It cannot, howe ver, determine the number of exporters that 
performed the transactions. 
 
18. UNITED STATES  19. UNITED STATES 
 
Questions concerning Article 5.8 AD Agreement 
 
 20. In Mexico's view, does it suffice for one exporter to have been found to be dumping 
above de minimis  levels for all other exporters to be included in the application of the measure 
under Article 5.8 AD Agreement or does Mexico co nsider that some sort of country-wide rate  WT/DS295/R 
 Page B-31 
 
 
needs to be established and that, only if that country-wide rate is above de minimis , will all 
exporters from that country be covered by th e measure? Could Mexico clarify whether an 
exporter for which a below de minimis , but more than zero margin of dumping was found, 
would receive a 0 per cent duty or would a duty be imposed on such an exporter equal to the  de minimis  margin? 
 Answer
: 
  Mexico considers that it does suffice for one e xporter to have found to  be dumping above the 
de minimis  level for all exporters to be included in the application of the measure.  Each enterprise 
will be assigned the anti-dumping duty corresponding to its individual margin, provided that the total 
volume of imports from the country in question is above the de minimis  level. 
   Any exporter for which the IA finds a more than zero and below de minimis margin of 
dumping would receive a zero per cent duty.  
 
21. Could Mexico clarify whether this is a correct understanding of the way in which the 
Mexican system operates: if an exporter wa s not dumping during the POI, but a dumping 
margin was found for other exporters of the pr oduct, this non-dumping exporter will be 
included in the measure, but a 0 per cent duty will be imposed. If later the review shows that the exporter had since engaged in dumping, a duty will be imposed on him equivalent to the new 
margin of dumping. 
  (a) Is this a correct understanding of the system?  
Answer
: 
 
 Yes.  If the IA determines that an exporter h as not been engaged in dumping, the exporter will 
be assigned a zero per cent duty, which de facto does not constitute an anti-dumping duty.  If a later 
review shows that the exporter is engaged in  dumping and its volume of exports exceeds the 
de minimis  level, the exporter will indeed be imposed a duty equivalent to the new margin of 
dumping.   (b) Will a new injury analysis be required before such duties may be imposed?   
Answer
: 
 
 Mexico has not conducted any reviews of exporte rs with a zero per cent margin of dumping.  
Were it to do so, however, a new injury analysis  would probably be carried out before an  
anti-dumping duty was imposed. 
 
22. UNITED STATES  
Questions concerning the use of facts available and the all others rate
 
 23. In para. 176 of its submission, and para. 61. (c) of its oral statement, Mexico argues that para. 6 of Annex II was complied with as the information of the non-shipping exporter, 
Producers Rice, was "accepted". 
 
 (a) Could Mexico clarify what information this company provided which was 
accepted by the authority?  
 WT/DS295/R 
Page B-32  
 
Answer
: 
 
 Paragraph 176 of Mexico's first written submissi on states that paragraph 6 of Annex II to the 
AD Agreement addresses the case where the IA does not accept information or evidence from an 
interested party.  In the specific case of Producers Rice Mill, Inc. , the circumstances are different 
because the IA did accept the information submitted by  that company.  In its various submissions, 
Producers Rice Mill, Inc.  explained that it had had no exports of  the subject product during the period 
of investigation and presented arguments in r espect of the injury alleged by the CMA. 
  As mentioned earlier, the IA thus took account in its investigation of  the company's assertion 
that it had had no exports of the subject product duri ng the period of investigation.  Moreover, the IA 
examined the information and evidence submitted by Producers Rice Mill, Inc.  in the light of the 
allegations of injury made by the petitioner, as stat ed in paragraphs 62, 138,  157 and 226 of the Final 
Determination. 
 
 (b) Is Mexico of the view that para. 6 does not apply to situations in which the 
information is not provided, or is not provided within a reasonable period of time, but only to situation in which information which was provided is rejected?  
 
Answer
: 
 
 Mexico considers that paragraph 6 of A nnex II to the AD Agreement does not apply to 
situations in which information is  not provided.  On the other hand, it notes that the paragraph does 
apply where the information provided has been rejected. 
 
24. Article 68 of the Foreign Trade Act mentions three categories of exporters to which the 
highest margin shall be applied.  One of these categories seems to cover the situation provided 
for in Article 6.8 AD Agreement.    (a) Does Mexico consider that the two other categories (non-appearing exporters 
and non-shipping exporters) are not c overed by the situation described in 
Article 6.8 AD Agreement?  
 Answer
: 
  Mexico considers it necessary to clarify that Article 68 of the Foreign Trade Act (FTA) does 
not address the three situations referred to in the qu estion.  In any event, the relevant provision is 
Article 64 of the FTA. 
  The cases covered by Article 64 concern the s ituation where exporters or foreign producers 
fail to provide the information needed to determine margins of dumping, if any.  This corresponds to 
the second situation described in Article 6.8 of the AD Agreement. 
 
 (b) What is the view of the US on the relevance, if any, of the fact that Article 68 of 
the Foreign Trade Act provides for th ese three separate categories?   
   (c) Is Mexico of the view that the AD Ag reement does not provide any rules on how 
to calculate an all others rate for no n-appearing parties and non-shipping 
exporters, or is Mexico arguing that the maximum duty that can be imposed on 
such exporters under the Agreement  is a facts available margin? 
  WT/DS295/R 
 Page B-33 
 
 
Answer : 
 
 Indeed, Mexico considers that the AD Agreem ent does not regulate how the anti-dumping 
duty should be calculated for exporters that did not appear in the investigation and had no exports 
during the period of investigation.   
 
25. In Mexico's view, does para. 7 of Annex II allow for unfavourable results only in case of 
non-cooperative parties or in all cases in whic h the necessary information is not provided? 
 
Answer : 
 
 In the case of the long-grain white rice an ti-dumping investigation, the fact that  
Producers Rice Mill, Inc.  did or did not cooperate bears no relationship to the fact that the Mexican 
IA calculated a facts-available dumping margin for that company, since Article 6.8 of the AD Agreement stipulates – as mentioned earlier – that its provisions apply when an interested party 
does not provide the necessary information.  The IA  therefore did not apply paragraph 7 of Annex II 
to the AD Agreement.  Instead, it applied paragraph 1 of the Annex, which clearly establishes that if a 
party does not provide the information requested by the IA, the authority will be free to make 
determinations on the basis of the facts available,  including those contained in the application for 
initiation.  Questions concerning the challenge of the law as such
 
 26. According to the parties, to what exte nt is the distinction mandatory/discretionary 
legislation still applicable in WTO law after th e Appellate Body statement in para. 93 of its 
decision in the US – Corrosion Resistant Steel  case (DS 244)? 
 Answer
: 
  We note that in paragraph 93 of its report in US – Corrosion-Resistant Steel Sunset Review  
(WT/DS244/AB/R), the Appellate Body recognizes the importance of distinguishing between the 
mandatory and the discretionary nature of legislati on.  It emphasizes that the distinction varies from 
case to case and should not be applied in a mechanisti c fashion.  This is why we believe that when a 
petitioner and a respondent argue over the mandatory or discretionary na ture of challenged provisions, 
it is crucial for the Panel to analyse and, if n eed be, distinguish between the mandatory and the 
discretionary nature of a law or of its various provi sions in the light of the particular circumstances of 
each case. 
 
 Mexico notes that in this dispute all of the United States' complaints concerning the alleged inconsistency of a number of FTA Articles as such ar e premised on the fact that the provisions are 
mandatory.  Hence, the United States tacitly recogni zes that if those provisions were not mandatory 
there would be no inconsistency whatsoever.  In vi ew of the foregoing, Mexico considers it essential 
to determine the discretionary or mandatory na ture of the FTA provisions challenged by the 
United States.  This will have to be done in the lig ht of the particular circumstances of the case, as 
explained in Mexico's first written submission and Mexico's oral statement to the Panel. 
 
27. UNITED STATES 
 
28. Could Mexico explain whether, in case the DSB were to adopt a panel report finding an 
inconsistency of a Mexican law with the WTO Agreements, it considers that it would be obliged to amend the law to bring the law into  conformity with the WTO Agreement? 
 WT/DS295/R 
Page B-34  
 
Answer
: 
  If the DSB were to adopt a final Panel report finding inconsistencies between the FTA and the 
WTO Agreements, Mexico would be obliged  to remedy those inconsistencies.  
  29. Could Mexico clarify whether private parties may be successful when they file a suit against the administration before the domestic co urts of Mexico in case the administration 
failed to comply with a statutory obligation, even  if this obligation is inconsistent with the 
WTO Agreement, requiring the administrati on to comply with such obligations? 
 
Answer:
 
 
 It is our understanding that this question of th e Panel concerns a hypothetical case which in 
no way prejudges the consistency of the FTA provisi ons challenged by the United States.  Mexico 
therefore requests that its reply be considered in that light. 
 
 No.  In proceedings before the domestic c ourts, the Mexican administration would in its 
defence argue the application of Mexican law in a manner consistent with th e country's international 
commitments, such as the WTO Agreement.  C onsequently the Mexican courts, basing their 
interpretation on the structure a nd characteristics of the Mexican legal system, would be under the 
obligation to rule in favour of the administration.  This would be the case if the country investigated 
were a WTO Member;  if not, domestic legislation prevails. 
 
30. Is it Mexico’s view that if a certain provision is somehow found to be inconsistent with 
the WTO Agreements, that is, in case a conflic t is found between the Foreign Trade Act and the 
WTO Agreements, then the WTO Agreements would prevail by virtue of Article 133 of the 
Political Constitution and Article 2 of the Foreign Trade Act? 
 
Answer : 
  Yes. 
 
31. In para. 263 – 266 of its submission, Mexico argues that the "representativeness" 
requirement in Article 68 of the Foreign Trade Act is only a tool, and that the US is wrong in suggesting that it is a condition  sine qua non  for the initiation of a review. 
  (a) Could Mexico clarify whether a review  may be initiated if the party concerned 
cannot demonstrate that its sales volum e for the period was representative?  
  
Answer
: 
  As indicated on previous occasions, a demonstr ation that trade operations were made in 
representative volumes is not a sine qua non  requirement for initiating a review.  Nevertheless, the 
interested party will be required in the course of the review to demonstrate such representativeness so 
that it can be assigned a margin of dumping. 
 
 (b) What in the Mexican practice is considered to be a "representative" volume ?   
Answer
: 
 
 For the purposes of determining the representativ eness of volumes of exports to Mexico, the 
Ministry does not use restrictive criteria but anal yses information provided by the exporters which 
demonstrates that their volumes of exports are re gular and representative of their sales policies.  WT/DS295/R 
 Page B-35 
 
 
 It is important to emphasize that exporters ar e required to demonstrate that their export sales 
have not been intermittent during the period of anal ysis and that the volumes involved are consistent 
with their trade practices.   In order that the foregoing should not be not interpreted as the only means for enterprises to 
demonstrate the representativeness of their volumes of  export sales, the following are cited as further 
examples:    
• A comparison between the volumes of their export sales to Mexico during the period 
of investigation and during the period under review; 
 
• a comparison between the volumes of their domestic sales and export sales to Mexico 
during the period under review; 
 
• a comparison between the volumes of their e xport sales to Mexico and sales to other 
markets during the period under review. 
 
32. Is it the view of Mexico that, with regard to new shippers (Article 89 D of the Foreign 
Trade Act), the representativeness requirement is not inconsistent with the AD Agreement or 
the Subsidies and Countervailing Measures ("SCM") Agreement because it is the only logical 
and sensible way of ensuring that the Authorit y can make a proper price comparison for the 
establishment of an individual margin (as Mexico seems to be saying in para. 270 of its written 
submission) or is Mexico's argument simply that it is not a condition sine qua non , and is this 
"requirement" for that reason not inconsis tent with the AD and SCM Agreements (as 
paras. 263 – 266 of the written submission se em to suggest with regard to the similar 
requirement in Article 68 of the Foreign Trade Act)?  
Answer
: 
 
 Mexico supports both arguments cited by the Panel in its question regarding new shippers. 
 
33. In its submission and oral statement, Mexi co does not directly reply to the US argument 
in para. 261 of the US submission that Articl e 89 D of the Foreign Trade Act only applies to 
producers, but clearly asserts that it will apply its laws in accordance with the Agreement. 
Could Mexico clarify whether Article 89 D of th e Foreign Trade Act also  applies to exporters? 
 
Answer : 
  In the case of new shippers, Mexico applies Article 89.D of the FTA concurrently with 
Article 47 of the FTA Regulations, as duly notifie d to the WTO and circulated to Members on 
18 May 1995 in document G/ADP/N/1/MEX/1, for revi ews of exporters or traders that so request. 
 
34. Could Mexico clarify whether, pending a judicial review, no definitive duties will be 
imposed or collected as it seems to be arguing in paras. 301 - 302 of its written submission?  
Answer
: 
  As stated in paragraph 302 of Mexico's firs t written submission and pursuant to Article 98.III 
of the FTA, interested parties are not require d to pay anti-dumping duties and may provide a 
guarantee of payment while the ch allenge procedure is under way. 
 35. Could Mexico clarify whether the importation of "identical or like goods" on which fines may be imposed under certain circumstances in Article 93 V of the Foreign Trade Act also WT/DS295/R 
Page B-36  
 
refers to imports of the products from third co untries, i.e. from countries other than the one 
investigated in the anti-dumping investigation?  
Answer
: 
 
 The fine provided for in Article 93.V of the FTA would apply, where appropriate, to imports 
of identical or like goods from the country under investigation, regardless of the country of provenance.  It would not apply to imports from third countries.   WT/DS295/R 
 Page B-37 
 
 
ANNEX B-3 
 
RESPONSES OF THE EUROPEAN COMMUNITIES 
 
2 June 2004 
 
1. Question (a) 
  Could the EC provide a detailed reasoning on why it considers that the “investigation” in Article 5.8 AD Agreement unambiguously refers to a country-wide investigation? 
 
1. A country-wide approach to an anti-dumping investigation can be deduced from a number of both substantial and procedural provisions of the Anti-Dumping Agreement . 
 2. Article 2 Anti-Dumping Agreement  defines dumping.  Article 2.1 Anti-Dumping Agreement  
refers to the word “country” three times – and speci fically to the product exported “from one country 
to another”.  The word “country” is used a fu rther five times in Article 2.2 and footnote 2 Anti-
Dumping Agreement .  These provisions reflect the language  of Article VI GATT 1994, which also 
repeatedly refers to imports from one country to another.  They indicate that the concept of dumping involves a strong connotation of a country-wide assessm ent, which will inevitably have an impact on 
the scope of the investigation.  Thus, absent particular provisions requiring a company specific 
approach, a country-wide approach will refl ect a permissible interpretation of the Agreement .   
 3. Article 5.2(ii) Anti-Dumping Agreement  requires the provision of the “names of the country 
or countries of origin or export in question”.  This  is the primary obligation, in the sense that it is 
mentioned first in this provision, and is not qualified in any way – a complainant cannot state that it 
does not know the country or countries of origin.  There is a secondary obligation – to describe known 
exporters or producers and impor ters.  This obligation is, howe ver, subject to the important 
qualification of the word “known” – if the names of the exporters or producers are not known, they do 
not need to be indicated in the complaint.  It would be a permissible interpretation of the Anti-
Dumping Agreement  to initiate an original investigation ev en in circumstances where only the country 
of origin would be known – even if there were no known exporters or producers.  Thus, the country-
wide nature of the investigation is also reflected in  the complaint, right from the start, that being the 
very basis of a possible subsequent investigation.  4. Such an approach is confirmed by Article 12.1.1 Anti-Dumping Agreement , which requires 
that the public notice of the initiation of an origin al investigation states the name of the exporting 
country or countries.  There is no obligation to state the names of known exporters or producers.  
Thus, what is clear from both Article 5.2 (ii) and Article 12.1.1. Anti-Dumping Agreement  is that the 
investigating authority is not obliged to pick-out particular exporters from a given country of origin 
for the purposes of the initiation of an investigation.  The initiation of an anti-dumping investigation 
may thus lawfully be country-specific.  
5. In addition to these strong textual argumen ts, one may observe that the country-wide 
approach to the initiation of an original investig ation is common sense.  The primary objective of an 
anti-dumping proceeding is to address the economic problem (injury) caused by dumped imports from a particular source.  The legal structures of expor ters and producers in the exporting country are, in 
terms of the scope of the investigation, incidental and may be difficult or impossible to ascertain.  If 
the investigation were initiated in the first place only in relation to known exporters and producers, 
then each time a further exporter or producer b ecame known, it would presumably be necessary to 
extend the investigation.  An investigating authorit y has no real means of ascertaining with complete 
certainty the full list of exporters or pr oducers in the exporting country, and the  
Anti-Dumping Agreement  imposes no obligation on an investigating authority to actively seek out that 
information. WT/DS295/R 
Page B-38  
 
6. The first part of the first sentence of Article 5.8 Anti-Dumping Agreement  refers to the 
rejection of an application under paragraph 1, an application which, we have just observed, could 
lawfully be country-wide only – and indeed is likel y to be so.  In order for this sentence to be 
interpreted in an internally c onsistent manner, it necessarily follows that the ensuing obligation to 
terminate the investigation contained in the sec ond part of the first sentence of Article 5.8 Anti-
Dumping Agreement  refers to the same types of investigati on as those referred to in the first part of 
the sentence, that is, including an investigation with a country-wide scope.  Members may go further, 
by considering such matters on a company specific b asis, but they are not obliged to do so by the 
terms of Article 5.8 Anti-Dumping Agreement . 
 2. Question (b)   What, if any, is the significance of the wording used in the second sentence of Article 5.8 that there shall be immediate termination “in cases” where the authorities determine that the margin of dumping is de minimis ?  In the view of the EC, would one not expect the Agreement 
to have used the singular “in such a case” in the second sentence of Article 5.8 as well, if, as the 
EC argues, the investigation in the first  sentence was a reference to a country-wide 
investigation? 
 
7. The European Communities understands the fina l words “the case” in the first sentence of 
Article 5.8 Anti-Dumping Agreement  to refer to the case as reflected in the application – which may 
lawfully be country-wide, as explained above.  Furthermore, the European Communities understands 
the words “the cases” in the second sentence of Article 5.8 Anti-Dumping Agreement  to have the same 
meaning (except that the plural is used) as the word s “the case” in the first sentence of Article 5.8.  
The European Communities agrees th at the text might have read : “in a case”.  However, the 
European Communities does not attach any significan ce to the use of the plural in the second sentence 
of Article 5.8.  It is common when drafting an ab stract and normative piece of legislation to have in 
mind its future application in concrete terms to many individual cases (plural), and that may often be 
reflected in the drafting.  8. The European Communities would find it unpers uasive to suggest that by using the plural 
“the cases” the drafters intended to refer to sever al company specific cases or investigations, as 
opposed to “the case” referred to in the first sentence of Article 5.8  Anti-Dumping Agreement  – that 
being a country-wide case.  It seems to the Europ ean Communities that had the drafters wished to 
write such a distinction into this provision, they would have done so more clearly – choosing, for 
example, a difference abstract noun, rather than re lying on an over-subtle distinction between the 
singular and the plural. 
 
9. The European Communities finds further support for this view in the fact that the French 
language version of the first sentence of Article 5.8 Anti-Dumping Agreement  does not use the word 
“cas”.  That strongly militates in favour of rejecting the notion that the drafters intended to build on a 
distinction between the singular and the plural – had they so intended they wo uld surely have ensured 
that the text had the same meaning in all the language versions. 
 
10. Finally, the European Communities would ob serve that the second sentence of Article 5.8 
Anti-Dumping Agreement  refers both to de minimis  dumping margins and to a negligible volume of 
imports.  Both of these are linked to the words “in cases where”.  The import threshold factor is 
clearly country-wide, as reflected, for example, in the fourth sentence of Article 5.8.  It follows that 
the words “in cases where” cannot, in themselves, l ead to the conclusion that the investigating 
authority must conduct a co mpany specific assessment.  WT/DS295/R 
 Page B-39 
 
 
Question (c) 
  Is the EC of the view that its interpretation requires an authority to calculate a country-wide margin to examine whether th is country-wide margin is above de minimis ?  If not, why 
not? 
 11. The European Communities considers that Article 5.8 Anti-Dumping Agreement  imposes an 
obligation on an investigating authority to calculate a country-wide dumping margin when the investigating authority has reasons to believe that such a margin could be de minimis  and the case 
would thus have to be termin ated (even though individual expor ters might have dumping margins 
above de minimis ).  Where it is obvious from the company specific dumping margin calculations that 
the country-wide dumping margin is well above de minimis , no precise calculation is required. 
 
Question (d) 
 
 Is it the EC practice to calculate such a country-wide margin?  
12. The answer to question (c) reflects th e practice of the European Communities. 
 
_______________