Document: WT/DS295/R Page C-1 ANNEX C Parties' Responses to questions posed in the context of the second substantive meeting of the Panel Content Page
Document codes: WT/DS295/R
Complainant: U.S.
Respondent: Mexico
Third parties: China, EU, Turkey
Dispute stage: Appellate Body
Agreements cited: Art. 12.5, 12.7, 19.3, 11.9, 21.1, 21.2, 32.1, 12.1.1  Subsidies and Countervailing Measures (SCM)Art. VI:2  GATT 1994Art. 1, 3.1, 3.2, 3.4, 3.5, 4.1, 5.8, 6.1, 6.2, 6.4, 6.8, 6.9, 6.10, 9.3, 9.4, 9.5, 11.1, 12.1, 12.2, 11.9, 18.1, 19.3, 21.1, 21.2, 32.1  Anti-dumping

ANNEX C

Parties' Responses to questions
posed in the context of the second substantive meeting of the Panel

Content Page
Annex C-1 Responses of the United States C-2
Annex C-2 Responses of Mexico C-14

ANNEX C-1

RESPONSES OF THE UNITED STATES

Questions concerning the period of investigation (the "POI")

1. In its answer to question number 2 (b) of Panel's questions in relation to the first
substantive meeting with the parties (the "Panel's questions"), Mexico replies that "the
petitioners in an investigation suggest a POI in th eir application for initiation; the investigating
authority analyses the information and evidence co ntained in the application and decides what
POI it will use, which is reflected in the determination concerning the initiation of the
investigation". Could Mexico further explai n what the criteria are for reviewing the POI
suggested by the petitioners? In other words, in which case would Mexico consider the POI as
suggested by the petitioner to be inappropriate?

Answer

1. During the second Panel meeting, Mexico st ated that Economía examines whether the
petitioner has provided export price (“EP”) and normal value (“NV”) information, as well as injury
information for at least a six month period. Mexi co also stated that Ec onomía ensures that the
petitioner has provided the dumping information for a period that overlaps with (“corresponds to”) the
injury information. Mexico stated that the AD Agreement requires a petitioner to provide evidence of
dumping and injury, but it disclaimed any obligation to obtain updated data.

2. Mexico’s response demonstrates that Economía’s analysis is with respect to the adequacy of
the information that the petitioners submit within
 the suggested period of investigation (“POI”); it
does not analyze whether the particular POI itself – i.e., the suggested time period – is proper, or
whether it includes the most recent av ailable information. This conclusion is further illustrated by
Mexico’s response to question 5 from the Panel, where Mexico said “in principle the period of
investigation proposed by a petitioner is adequate in terms of performing a dumping analysis and that
it can serve as a basis for the injury analysis.” The United States discusses this issue further in
response to question 2 below.

2. In its answer to question 5 of the Panel's questions, Mexico is saying that "in principle
the period of investigation proposed by a petitioner is adequate in terms of performing a
dumping analysis and that it can serve as a basis for the injury analysis", but that "the IA has
the authority to modify the initial period of investigation provided that it receives relevant
arguments, accompanied by pertinent evidence, whic h lead it to consider that the period is not
adequate".

(a) Could Mexico explain this apparent contradiction between the process as
explained in its answer to question 2(b) in which it stated that it is the IA which
analyses and decides whether the POI is appropriate and its answer to
question 5 ( i.e. petitioners suggest a POI which is accepted unless the other
interested parties come up with convincing arguments supported by pertinent
evidence that this POI is inappropriate)?

(b) Could Mexico explain how this process of changing the POI after initiation
works in practice (e.g. will new questionna ires have to be sent to interested
parties in light of the changed POI?)? Has this ever happened in Mexican
practice?

Answer

3. Mexico stated during the second Panel mee ting that Economía can “extend” the POI if the
importers provide sufficient evidence to justify such a change. It also stated that the types of evidence
that might lead to a modification of the POI would include economic factors that might have had an
effect on prices, or cyclical problems.

4. Mexico’s response illustrates again that Economía accepts the POI that the petitioners
propose, and it places the burden on the importers a nd foreign producers and exporters to demonstrate
that an alternative POI should be used instead. Economía does not appear to place any burden on the
petitioners to justify the use of a period that is no t as close to the initiation date as practicable. In
addition, the idea that Economía would merely “ex tend” the POI suggests that it would still use the
petitioners’ selected POI, even if it also included some more recent data.

5. Mexico also stated at the second Panel meeting that it has extended the POI that the
petitioners requested in very few cases. The Unit ed States is not aware of any such cases. The
United States is also unaware of any cases where Ec onomía has used a POI different than the one the
petitioners requested. As the United States noted in its response to question 2 in the first set of Panel
questions, Economía accepted the POI suggested by the petitioners in all of the anti-dumping
investigations initiated against US products in 2004. Moreover, the lengths of the POIs varied widely,
and the gap between the end of the POI and the date of initiation was as long as 20 months.
1

3. The United States argues on various occasions that the purpose of an anti-dumping
investigation is to determine whether a domestic industry is presently injured by dumping that
is presently occurring (see e.g. United States answer to question 1 of the Panel's questions), and
refers in support of this argument to the use of the present tense in inter alia Article 2 and 3.4,
3.5, and 5.8 Anti-Dumping Agreement (the "AD Agreement"). What would be the
United States view on the argument that it is the definitional nature of these provisions which
explains the use of the present tense and that this use of the present tense in such definitional
provisions is thus uninformative of the alleged requirement of the closeness in time between the
application of a measure and the conditions for application of the measure?

Answer

6. The United States does not agree with the a bove-referenced argument. Article 1 of the
AD Agreement states that an anti-dumping measure “shall be applied only under the circumstances
provided for in Article VI of GATT 1994 . . . .” Article VI:2 of the GATT 1994 states, in turn, that
“[i]n order to offset or prevent dumping, a contracting party may levy on any dumped product an anti-
dumping duty not greater in amount than the margin of dumping in respect of such product.” The
ordinary meaning of the term “offset” is “set off as an equivalent against; cancel out by, balance by
something on the other side or of contrary nature; counterbalance, compensate.”
2 The ordinary
meaning of the term “prevent” is “[a]ct or do in ad vance. . . . Act before, in anticipation of, or in
preparation for (a future event, a point in time).”3 An investigating authority will only be in a position
to “cancel out” or “balance” or “act in preparation for” dumping if it imposes a measure with respect
to activity that is presently occurring or that has not yet occurred.

7. Similarly, Article VI:1 of the GATT 1994 states that dumping is to be condemned if it
“causes or threatens” material in jury to a domestic industry. The term “causes” indicates that the
dumping and injury is occurring in the present, and th e term “threatens” indicates that the injury may

1 See US Response to First Panel Question 2.
2 New Shorter Oxford English Dictionary, 1985 (1993) (emphasis in original).
3 New Shorter Oxford English Dictionary, 2348 (1993).

occur in the future. If the drafters had intende d instead to permit the imposition of anti-dumping
measures when the conditions for doing so only existe d in the past, they could have used the terms
“caused or threatened” material injury. They did not.

8. An investigating authority may impose an anti-dumping measure on another Member’s
exports only if it is able to make an objective determination, based on positive evidence, that the
conditions for doing so are present at the time it imposes the measure. Although this determination
will inevitably have to consider information that pert ains to the past, simply because there is a lag in
the availability of current information, this “past” information is serving as a proxy for the present.
Therefore, the investigating authority must collect and examine a data set that includes the most
recent available information.

9. In the rice investigation, there was a nine month gap between the end of the petitioners’
suggested POI and the date the petition was filed. The gap stretched to 15 months by the time
Economía initiated its investigation. By the time of the final determination, the injury information
that Economía was using for its de termination was three to five y ears old. Economía’s failure to
collect or examine recent data, and its failure to u pdate its injury information over the course of its
investigation, left it with no basis for an objective evaluation of present dumping and injury.

4. In paragraph 23 of its second submission, Mexico asserts that it is desirable that the POI
ends as closely as possible to the date of init iation of the investigation, but that no such
obligation exists. Could Mexico explain why it co nsiders that this closeness in time is desirable
in light of its argument that the purpose of an anti-dumping investigation is not to offset or
prevent dumping presently causing injury, but to offset dumping that caused injury in the past
or threatened to cause injury in the past (as ar gued e.g. in Mexico's second oral statement,
para. 18)?

Answer

10. At the second Panel meeting, Mexico stated th at, while it is desirable to have the POI end as
closely to the initiation date as practicable, its i ndustries are not always sufficiently organized to
provide more recent data. The United States is confused by Mexico’s statement. Once an
investigating authority initiates an investigation, it sends its own questionnaires to the foreign
producers and exporters, and to the domestic pr oducers and importers. Given this fact, the
organization of the domestic industry when it prep ares the petition would not seem relevant to the
selection of a proper POI, and it would not seem to justify using a stale POI when the exporters and
producers are able to supply more recent data.

11. Furthermore, while it is to be expected that the dumping POI would end prior to the initiation
of the investigation (otherwise, the foreign expo rters and producers could avoid the imposition of an
anti-dumping order by temporarily raising their ex port prices or lowering their home market prices),
an objective investigating authority should collect updated injury
 information during the investigation,
to ensure that the data used includes the most recent available data.

12. In its second written submission, Mexico stated that it would be “preposterous” for a Member
to base its findings on information that is ten years old. 4 In the rice investigation, however, Economía
based its findings on data that was three to five years old. The United States fails to see why, if it
would be “preposterous” to use data that was ten year s old, it is acceptable to use information that is
three to five years old. In either case, an i nvestigating authority that failed to collect recent
information would have 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.

4 Mexico’s Second Written Submission, para. 21.

Questions concerning the use of facts available and the all others rate

5. In its answer to question 17 (b) of the Panel's questions, Mexico argues that it was under
no obligation to obtain the pedimentos to identi fy all of the exporters. At the same time, it
argues that "to have sought to obtain them would have considerably delayed the initiation of the
investigation". Can Mexico explain whether th e investigating authority considered obtaining
the pedimentos but decided in the end not to do so because of the delay it would cause ? If so,
would it not have been possible for the author ity to consult a small number of pedimentos,
simply to check whether such a sample would lead to more exporters being identified, without
unnecessarily delaying the investigation?

Answer:

13. Mexico confirmed at the second Panel meeting that the listados name the volume and value of
each shipment, the pedimento number, and the name of the importer of record. Therefore, if
Economía had so chosen, it could have used the listados to identify a sample of shipments from a
sample of importers (such as the largest percentage of the volume of exports that it could reasonably
investigate), requested just those pedimentos, and in that way could have obtained the contact
information for those known exporters and producers.

14. Mexico also stated at the second Panel meeti ng that there is a 40-day lag between the date of
entry of a particular shipment and the date that the shipment appears in the listados. If this is true,
then in June 2000, when the petitioners filed the pe tition, Economía would ha ve had information as
current as April, 2000. Similarly, by the December 2000 initiation of the investigation, Economía
would have had information current to October 2000. In either case, it would have had access to data
that was substantially more current than August 1999, which is the final month of its dumping and
injury POIs.

6. Could Mexico explain what happens if the petitioners do not mention any known
exporters in their petition (a possibility envisaged by the US in its second submission, para 66):
will no questionnaires be sent and no individual ma rgin of dumping be calculated for anyone?
Does the authority verify whether an exporter me ntioned by the petitioner in the application
actually exists?

Answer

15. At the second Panel meeting, Mexico stated that it would not initiate an investigation if the
petitioners identified no k nown exporters, because the AD Agreem ent requires petitioners to identify
the known exporters. Mexico’s answer does not explain, however, what it would do if the petitioners
claimed not to know the identity of any of the exporters, or if Economía would take any steps to
verify such an assertion. For example, there is no evidence in the record of the rice investigation
suggesting that Economía took any steps at all to ve rify the petitioners’ identification of only two
“known” exporters in the petition (or to question th eir failure to identify the Rice Company as a
known exporter). The record does, however, show that Economía is perfectly willing to apply the
facts available in setting dumping margins for exporters and producers that the petitioners do not
identify, and that are never sent the questionnaire. Mexico has not satisfactorily explained why it is
willing to take this approach when the petitioners identify only two exporters, but would not do the
same if the petitioners identified none.

7. The United States on various occasions me ntions the fact that apart from the two
exporters listed as "known exporters" by the peti tioner in the application, the application also
contained information and referred for exampl e in Annex H to another exporter, the Rice
Corporation, which later appeared and took part in the investigation out of its own initiative.

(See e.g. para. 13 United States first submission.) According to the United States, did the
application contain any other names of United States exporters, in addition to these three?

Answer

16. In addition to the numerous references to The Rice Company in the petition, petition annex M
contains contact information for the USA Rice Council and the Rice Millers’ Association. The
description of the Rice Millers’ Association states th at its members represent 97 per cent of all US
milled rice production. 5 Therefore, Economía had contact information for US industry associations
that could have provided it with a virtually comp lete listing of US exporters and producers of long-
grain white rice.

17. Petition Annex M (as well as the petition itself) also notes that long-grain white rice is grown
in Arkansas, Mississippi, Missouri, Texas, and Louisiana.
6 Rice millers are located in each of those
states.7 Nevertheless, the petitioners limited their lis ting of the “known” exporters to Producers Rice
and Riceland, two Arkansas corporations.8

8. Could Mexico indicate whether the "Official form for exporting companies investigated
for price discrimination" (MEX-5) is the same as the actual questionnaire that was sent to the
known exporters or is it a form which exporting companies who have not been identified by the
petitioners need to return to the authority in order to be sent the questionnaire and to be
examined individually?

9. The United States notes in its first submission with regard to the listados that "These
abstracts are known as "listings" ("listados"), and they provide import values and import
volumes, along with the identity of the im porter of record. Even these abstracts were
apparently considered to be confidential informat ion, and they were not placed on the public
record of the investigation." (United States first written submission, para. 15.) Could Mexico
confirm that this is all the information containe d in the listados? In Mexico, are these listados
as well as the pedimentos themselves considered as confidential information?

Answer

18. Mexico stated during the second Panel meeting that the listados as well as the pedimentos are
confidential information. It also stated, wrongly, that it did not disclose the listados to the domestic
industry. As the United States noted during the sec ond Panel meeting, the petitioners explicitly state
in their petition that they obtained the export pri ce that they used for the petition margin from the
listados.9 Therefore, contrary to Mexico’s suggesti on, Mexico did in fact provide confidential
customs valuation information to its domestic industry for use in the anti-dumping case.

19. Furthermore, in its second submission, Me xico made the remarkable admission that the
Mexican Customs Service enters into agreements with certain Mexican industry associations to
provide pedimentos to them.
10 The United States does not understand how Mexico can possibly
justify its practice of sharing this customs valuati on information with its domestic industries, in light
of its admission that the information is confidential.

5 Petition Annex M at 4 (Exhibit US-17).
6 Petition Annex M at 2 (Exhibit US-17); Petition at 10 (Exhibit US-8).
7 See Exhibits US-18&19 (excerpts from Rice Journal).
8 See Petition at 17 (Exhibit US-8).
9 See, e.g., Petition at 21 (final sentence), 23, 44 (referencing Annex F) (Exhibit US-8).
10 Mexico’s Second Written Submission, para. 57.

10. In its answer to question 17 (b) of the Pa nel's questions, Mexico stated that "For the
purposes of initiating an investigation, Mexico sees no requirement in the AD Agreement to
obtain the pedimentos or to identify all of the exporters. The IA therefore did not attempt to
obtain them, because it considered that it was und er no obligation to do so. To have sought to
obtain them would have considerably delaye d the initiation of the investigation (by
approximately 40 days), because as many as 1, 183 transactions were 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."

(a) Could Mexico clarify that the 40 days delay referred to in this answer relates to
the time it would have taken to obtain the information from the Ministry
actually holding the pedimentos? Or does this delay include the time it would
have taken to go through the pedimentos to find e.g. the names of exporters?

Answer

20. Mexico has previously stated that obtaining the pedimentos would delay initiation of the
investigation by approximately 40 days. If this peri od did not include the time needed to examine the
pedimentos, Mexico would have stated a period longer than 40 days.

21. Moreover, as the United States noted in its second written submission, Mexico’s “40-day”
estimate is almost certainly overstated, because the dumping POI only covered the period
March – August 1999.
11 Therefore, Economía would not have needed to obtain the pedimentos for
1997 and 1998 for purposes of identifying the contact information for the “known” exporters.

22. In any event, if Mexico’s position is that it would have taken 40 days to obtain the
pedimentos, then there is no basis for its assertion that obtaining them would have delayed the
initiation of the investigation. Although the pe titioner filed its petition in June 2000, Economía did
not initiate the investigation until December 2000. 12 Therefore, if Economía had requested the
pedimentos in June after the petition was filed, it would have received them almost five months prior
to the date of initiation. Even if it had waited to request them until October, Economía still would
have received the pedimentos well in advance of the initiation date.

23. On the other hand, Mexico also stated during the second Panel meeting that there is a 40-day
lag between the date of entry of a particular shipme nt and the date that the shipment appears in the
listados. If Mexico’s response to this question 10(a) abandons its previous explanations and asserts
instead that the 40-day delay only refers to the alleged time lag, then the United States refers the Panel
to its response to question 5 above.

(b) Could Mexico indicate whether the only two relevant documents in this respect
are (i) the pedimentos in which all of the information including the identity of
the exporter is included, and (ii) the listados, an abstract of the pedimentos
containing only limited information, or does there exist a third type of document
which is also called a listado and which is actually an electronic version of the
pedimentos?
Answer

24. The United States noted in response to question 17(b) in the first set of Panel questions that
the petitioners in the Crystal Polystyrene case used pedimentos that they obtained from the Mexican
Government to separate out imports of the subj ect product from other, non-subject merchandise

11 See US Second Written Submission, para. 58 and n.43.
12 See US First Written Submission, paras. 12, 18.

imported under the same tariff heading.
13 The reason for the US comment was to illustrate that the
pedimentos could in fact be used to obtain accurate vol ume and value data that Economía could have
used in its investigation.

25. On 30 July 2004, Economía published its preliminary determination in the
Crystal Polystyrene case. The foreign respondents in that case challenged the anti-dumping margin in
the petition on the grounds that the export price component of the petition margin was based on
imports of both subject and non-subject merchandi se. Economía rejected the respondents’ argument
on the grounds that the petitioners had obtained detailed information from the pedimentos.
14 Thus, the
Crystal Polystyrene preliminary determination demonstrates again that, contrary to Mexico’s
arguments, it is possible to use the pedimentos to obtain detailed volume and value data.

26. Furthermore, in its response to question 15 in the first set of Panel questions, Mexico justified
its refusal to examine the pedimentos by arguing that it would not have been possible to identify with
precision the precise amount of imports of long-grain white rice. But in Crystal Polystyrene ,
Economía accepted the use of pedimentos, when they accounted for 73.6 per cent of total imports of
the subject merchandise during the POI.
15 Thus, Economía is clearly willing to use information from
pedimentos that represent less than 100 percent of tota l imports during the POI, when it suits the
interests of its domestic industry.

27. As the United States has previously stated, we are noting Mexico’s use of pedimentos that it
supplied to its petitioners as a way of illustrating Mexico’s willingness to use them in a way that
favours the interests of its domestic industries. Th e United States does not mean to suggest, however,
that releasing the pedimentos to private industry is appropriate.

Questions concerning the non-shipping exporter

11. (a) What is the view of the parties concerning the reference in the last sentence of
Article 9.5 AD Agreement to the term "g uarantees" rather than anti-dumping
"duties"?
Answer:

28. The third sentence of Article 9.5 prohibits an investigating authority from levying anti-
dumping duties on the entries of an exporter or producer seeking an expedited review while the
review is underway. The fourth sentence of Article 9.5 permits the authority to withhold
appraisement of those entries, or request a guara ntee, to preserve the possibility of retroactively
levying duties on the entries if the authority reaches an affirmative finding of dumping. The
guarantees might take the form of bonds or cash deposits, for example.

13 See US Reply to First Panel Question 17(b), para. 52 and accompanying footnotes.
14 The preliminary determination states in pertinent part:
The Ministry considers invalid the argument of Atofina Petroc hemicals [one of the foreign
respondents] given that the sample of the import pedimentos [ pedimentos fisicos de
importacion] provided by the petitioners accounted for 73.6 percent of the total volume
imported during the period of investigation under headings 3903.19.02 and 3903.19.99 of
Mexico's Tariff Schedule, and for this reason [this sample] was considered representative. On
the basis of this information, petitioners were capable of identifying the type of product
bought by each purchaser, the terms of sale, the means of transportation, the way in which the
product was packed (bags or bulk) as well as the value and volume of the imports . . . ."
See Preliminary Determination of the Antidumping Inve stigation on Imports of Crystal Polystyrene,
Currently Classifiable under Headings 3903.19.02 and 3903.19.99 of the Schedule of the Law on the
General Tax on Import and Exports, Originating from the United States of America, Independently of
the Country of Export, paras 75-76 (emphasis added) (Exhibit US-27).
15 See id.

(b) In the view of the parties, is the appropriate level of the guarantee that may be
requested from a new shipper under Article 9.5 AD Agreement in any way
limited by the AD Agreement, and, if so, where in the AD Agreement is this limit
to be found ?

Answer

29. Article 9.4 of the AD Agreement states th at “the antidumping duty applied to imports from
exporters or producers not included in the examination shall not exceed:

(i) the weighted average margin of du mping established with respect to the
selected exporters or producers or,

(ii) where the liability for payment of antidumping duties is calculated on the
basis of a prospective normal value, the difference between the weighted
average normal value of the selected exporters or producers and the export
prices of the exporters or producers not individually examined.”

30. Thus, for example, if an authority were to i nvestigate the largest volume of exports that could
reasonably be investigated under Article 6.10, it w ould be under an obligation to apply a duty rate
calculated in accordance with Article 9.4 to any
 exporter or producer not included in the examination.
The text does not distinguish between firms that were known and firms that were unknown, or firms
that had shipments during the POI and firms that did not. On the contrary, Article 9.4 creates an
across-the-board ceiling on the permissible margin that may be assigned to any
 exporter or producer
that “is not included” in the initial investigation.

31. Article 9.5 of the AD Agreement provides a basis for an exporter or producer that did not
export during the POI to obtain an individua l margin. Nothing in Article 9.5 requires
 an exporter or
producer to seek an individual margin, however. The producer or exporter may choose instead to
accept the imposition of anti-dumping duties on its exports at the “all others” rate established in
accordance with Article 9.4. In asmuch as the neutral “all others” margin would apply to the
exporter’s or producer’s exports in the absence of an expedited review, there is no logical basis to
interpret Article 9.5 as allowing an authority to require guarantees during the expedited review at a
level higher than the all other’s margin.

32. Furthermore, Article 9.3 of the AD Agreement states that “[t]he amount of the antidumping
duty shall not exceed the margin of dumping as establi shed under Article 2.” Although the all other’s
margin is not directly established under Article 2, it is indirectly established under that article, because
it is a weighted average of the calculated margins. Thus, Article 9.3 of the AD Agreement also
supports the conclusion that the margin assigned to exporters and producers that did not ship during
the POI (and thus the guarantees for those margins) may not exceed the neutral all other’s margin.

33. In addition, the chausette in Article 9. 4 requires authorities to disregard any margins
established under Article 6.8 when calculating the all other’s margin. This fact also supports the
conclusion that the all other’s margin (and thus any gu arantee of that margin) is meant to be a neutral
number, and not adverse.

34. Finally, Article 7.2 of the AD Agreement lim its the cash deposit or bond that an authority
may apply as a provisional measure to an amount “not greater than the provisionally estimated
measure of dumping.” This text provides further s upport for the conclusion that the appropriate level
for an Article 9.5 guarantee would be not greater than the estimated measure of dumping for the
company at issue - i.e., the neutral all other’s margin from the investigation.

(c) According to the parties, are non-shi pping exporters to be considered as an
interested party in the sense of Article 6.11 (i) AD Agreement, i.e. an exporter or
foreign producer or the importer of a product subject to investigation?

Answer

35. Non-shipping exporters are “e xporters or producers” of the product subject to investigation,
even if they are not exporting the product during the investigation. Therefore, they are interested
parties within the meaning of Article 6.11(i) of the AD Agreement. It is important to note, however,
that an investigating authority may choose to limit its investigation in accordance with Article 6.10 of
the AD Agreement, and not include a particular exporter or producer in its investigation. In that case,
it may only apply a neutral “all others” rate, ca lculated in accordance with Article 9.4 of the
AD Agreement, to the unexamined exporters and producers. As the panel stated in Argentina –
Definitive Anti-dumping Measures on Imports of Ceramic Floor Tiles from Italy, “an investigating
authority may not fault an interested party for not providing information it was not clearly requested
to submit.”16

(d) Are the parties of the view that "non-shipping exporters" and "new shippers"
are one and the same thing under the AD Ag reement? If so, why? If not, are
they in the parties' view nevertheless en titled to the same treatment? What is
the basis for this view in the Agreement?

Answer:

36. The United States has used the term “new sh ipper” as shorthand for exporters that did not
export the subject merchandise to the importing Memb er during the POI, that subsequently do export
the merchandise and then seek an expedited review under Article 9.5 of the AD Agreement. In this
sense, “new shippers” are a subset of “non-shipping exporters.” As the United States discussed in
response to the Panel’s question 11(b) above, Article 9.4 of the AD Agreement creates an across-the-
board ceiling on the permissible margin that may be assigned to any
 exporter or producer that “is not
included” in the initial investigation. The Un ited States is not aware of any basis in the
AD Agreement for concluding that “new shipper s” should be treated differently than other
non-shipping exporters merely because they seek an expedited review under Article 9.5.

16 Report of the Panel, WT/DS189/R, adopted 5 November 2001, para. 6.54 (“ Argentina – Ceramic
Tiles”). The Panel also stated that “the inclusion, in an Annex relating specifically to the use of best information
available under Article 6.8, of a requirement to specify in detail the information required, strongly implies that
investigating authorities are not entitled to resort to best information available in a situation where a party does
not provide certain information if the authorities failed to specify in detail the information which was required.”
Id., para. 6.55.

Questions concerning the law as such

12. With regard to Article 2 of Mexico's Foreign Trade Act (the "FTA"):

(a) Could Mexico explain whether the admini stration has the discretion to apply the
law in a manner which goes against the clear meaning of the law if it considers
that this is what is required in or der for Mexico to comply with the
AD Agreement?

(b) In the view of Mexico, is it relevant for the application of Article 2 FTA that
some of the amendments to the FTA challenged by the United States in the
current proceedings were introduced after the end of the Uruguay Round and
the entry into force of the Anti-Dumping Agreement?

(c) Is it the view of Mexico that the provisions of the FTA challenged by the
United States in the present case are all consistent with the WTO Anti-Dumping
Agreement?

Answer

37. The fact that each of the challenged pr ovisions was introduced after the end of the
Uruguay Round is evidence that, in Mexico’s vi ew, the provisions are consistent with the
AD Agreement, the SCM Agreement, and the GATT 1994. Mexico’s repeated insistence before this
Panel that the challenged provisions are not contrary to its WTO obligations provides further evidence
that Mexico sees no conflict between these provisions and the WTO Agreements. Given Mexico’s
view that, as a matter of Mexican municipal law, the actions that the challenged laws require are
consistent with WTO rules, Mexico does not, as a matter of municipal la w, have discretion to
disregard their mandates. Therefore, Article 2 of the FTA cannot shield Mexico from claims that the
challenged provisions of its domestic law are, in fact, in breach of its WTO obligations.

38. Mexico’s approach throughout this dispute has been to try to interpret its WTO obligations in
a way that is consistent with what its laws require, and not the reverse. The fact that it is taking this
approach suggests that Mexico may have been misinterpreting its WTO obligations when it drafted its
law. Thus, it is all the more important for the Pa nel to clarify the WTO provisions at issue in this
dispute, and determine whether Mexico’s laws are consistent with these WTO provisions as clarified.

13. The Mexican law provides that interested parties shall submit their arguments and
evidence within a period of 28 days from the day following the publication of the initiating
resolution. (Article 53 FTA). How many days are given to exporters that appear following
initiation?

Answer

39. The panel in the Argentina Poultry dispute concluded that Argentina breached Article 6.1.1 of
the AD Agreement when it provided only 20 days for a group of respondents to respond to
questionnaires that it sent for the first time approximately eight months after initiation.
17 The same
panel stressed that the 30-day period provided for in the first sentence of Article 6.1.1 “is an absolute
minimum that must be granted to exporters from th e outset,” and that the extensions provided for in
the second sentence of that provision are in addition to , not in lieu of, the 30-day period provided for

17 R e p o r t o f t h e P a n e l , Argentina–Definitive Anti-Dumping Duties on Poultry from Brazil ,
WT/DS241/R, paras. 7.134 (when questionnaires sent), 7.136-7.147.

in the first sentence.
18 Article 53 of the FTA, however, when applied to companies not identified as
“known” exporters in the petiti on (and thus not sent the questionnaire immediately following
initiation), legally forecloses both the 30-day respon se period and an opportunity for an extension of
that period. Therefore, Article 53 is inconsistent as such with Article 6.1.1 of the AD Agreement and
Article 12.1.1 of the SCM Agreement.

14. In its answer to question 31 of the Panel's questions, Mexico replies in the first sentence
that "representativeness" is not a requirement fo r initiating a review. In the second sentence,
Mexico adds that the interested party will be required in the course of the review to
demonstrate such representativeness so that it ca n be assigned a margin of dumping. Is it the
argument of Mexico that it is not a requirement for initiating a review, but it is a requirement in
order to be successful in obtaining a review? Could Mexico explain to what extent it considers
this distinction to be relevant?

Answer:

40. As the United States has previously noted, Mexico’s argument is form over substance.
Whether one characterizes it as a requirement to initia te a review of the margin, or a requirement to
conduct a review of the margin, or a requirement to obtain a new individual margin, the fact remains
that Articles 68 and 89D of the FTA require expor ters and producers to demonstrate a representative
volume of sales in order to change the level of duties levied against them. The AD and SCM
Agreements do not permit authorities to impose such a condition.

15. On page 19 of its second submission, the United States argues that an investigating
authority may not apply facts available to expo rters that were never sent a questionnaire and
asked to respond. Does this imply that in the United States view a facts available duty can be
applied only to known exporters? Or would th e United States argue that a residual rate based
on the facts available for unknown exporters is possible?

Answer:

41. Articles 6.10 and 9.4 of the AD Agreement establish two approaches for calculating anti-
dumping margins: either the authority examines and calculates an individual margin for every
exporter or producer of the subject merchandise in the country under investigation, or it examines
fewer than all exporters and producers. In the la tter case, the maximum permissible margin that may
be applied to the unexamined expor ters or producers is the neutral all other’s margin calculated in
accordance with Article 9.4 of the AD Agreement. This limitation applies regardless of whether the
exporter or producer is known or unknown, and wh ether it had exports during the POI or not.
Although the all other’s margin would apply to the unknown exporters, it would not be a facts
available margin, because it would be calculated under Article 9.4, and not under Article 6.8.

42. The obligations of Articles 6.1, 6.8, a nd Annex II of the AD Agreement apply to those
individual exporters and producers that an investigati ng authority includes in its investigation. If an
investigating authority fails to provide an exporter or producer the individual notice that those
provisions require, then the authority cannot claim to be including the exporter or producer “in the
investigation,” and it will not have the ability to apply a margin based on the facts available to that
exporter or producer. Nothing in Articles 6.1 or 6.8, or Annex II, suggests that the applicability of the
facts available rules varies depending on whether a par ticular exporter is “known” to the investigating
authority.

43. Therefore, it would not normally be permissibl e for an authority to apply a margin based on
the facts available to an unknown exporter. Rather , that firm would be entitled to the neutral all

18 Argentina Poultry, para. 7.140.

other’s margin calculated in accordance with Article 9.4 of the AD Agreement. If the domestic
industry would prefer instead that the exporter r eceive an individual margin, it could simply do a
better job of identifying the known exporters in the first place.

44. It is possible to imagine a situation where every investigated exporter is assigned a margin
based on the facts available. In th at case, an investigating authority would not be able to apply one of
the methods listed in Article 9.4(i) and (ii) in determining the all other’s rate.
19 The present case does
not involve such a scenario, however.

19 See Appellate Body Report, United States – Hot-Rolled Steel from Japan , WT/DS184/AB/R,
adopted 23 August 2001, paras. 125-126.

ANNEX C-2

RESPONSES OF MEXICO

Questions concerning the period of investigation (the "POI"

1. In its answer to question number 2(b) of Pane l's questions in relation to the first substantive
meeting with the parties (the "Panel's questions "), Mexico replies that "the petitioners in an
investigation suggest a POI in their application fo r initiation; the investigating authority analyses the
information and evidence contained in the applica tion and decides what POI it will use, which is
reflected in the determination concerning the initia tion of the investigation". Could Mexico further
explain what the criteria are for reviewing the POI suggested by the petitioners? In other words, in
which case would Mexico consider the POI as suggested by the petitioner to be inappropriate?

Answer

 With regard to the first question, in exam ining the POI suggested by the petitioner, the
investigating authority checks that: (a) the peri od suggested by the domestic producers is at least
six months; (b) together with their applicati on the petitioners submit information and evidence
pertaining to the period they suggest; (c) the pe titioner's information and evidence concerning normal
value and export price correspond to the suggested POI.

 With regard to the second question, a POI w ould be deemed inappropriate in the event of
failure to meet all the conditions set out above.

2. In its answer to question 5 of the Panel's qu estions, Mexico is saying that "in principle the
period of investigation proposed by a petitioner is adequate in terms of performing a dumping analysis
and that it can serve as a basis for the injury analysis", but that "the IA has the authority to modify the
initial period of investigation provided that it recei ves relevant arguments, accompanied by pertinent
evidence, which lead it to consider that the period is not adequate".

 (a) Could Mexico explain this apparent cont radiction between the process as explained in
its answer to question 2(b) in which it st ated that it is the IA which analyses and
decides whether the POI is appropriate and its answer to question 5 (i.e. petitioners
suggest a POI which is accepted unless the other interested parties come up with
convincing arguments supported by per tinent evidence that this POI is
inappropriate)?

Answer

 In our view there is no contradiction. When the investigating authority receives an
application for initiation of an anti-dumping investigation, it checks compliance with the requirements
listed in the answer to question 1. If the inform ation submitted by the petitio ners is adequate, then
 – as stated in the answer to question 5 of the Pa nel's questions in relation to the first substantive
meeting – the POI proposed by the petitioners is deem ed adequate for initiation of an investigation.
However, in the course of the investigation impor ters and exporters may propose changing the period
of investigation provided they submit relevant ar guments and supporting evidence. In other words,
Mexico's point is that an assertion alone without an y evidence (as was submitted by the exporters in
the investigation concerning long-grain white rice) will not suffice for the POI to be changed.

 (b) Could Mexico explain how this process of changing the POI after initiation works in
practice (e.g. will new questionnaires have to be sent to interested parties in light of
the changed POI?)? Has this ever happened in Mexican practice?

Answer

 In Mexican administrative practice there ha ve been no cases of importers and exporters
showing a need for a change of POI.

3. The United States argues on various occasi ons that the purpose of an anti-dumping
investigation is to determine whether a domestic industry is presently
 injured by dumping that is
presently occurring (see e.g. United States answer to question 1 of the Panel's questions), and refers in
support of this argument to the use of the present tense in inter alia Article 2 and 3.4, 3.5, and 5.8
Anti-Dumping Agreement (the "AD Agreement"). What would be the United States view on the
argument that it is the definitional nature of these provisions which explains the use of the present
tense and that this use of the pr esent tense in such definitional provi sions is thus uninformative of the
alleged requirement of the closeness in time betwee n the application of a measure and the conditions
for application of the measure?

Answer:

 It is important to bear in mind that so fa r the United States has made only bald assertions and
has not explained how it is possible in an anti-dum ping investigation to determine whether a domestic
industry is being presently injured by dumping that is presently occurring

 Mexico further observes that Articles 2, 3.4, 3.5 and 5.8 of the AD Agreement make use of
the present tense because of the natu re of the concepts they set forth. The same Articles also make
use of the future, without this necessarily implying th at the tense of the verb is to be read in the
narrow and literal sense, as the following examples illustrate:

 (a) The Spanish and French versions of Article 2.2.1 of the AD Agreement state:

 " ... Si los precios inferiores a los costos unitarios ... son superiores ... se
considerará [English version: "shall be considered"] que esos precios
added.)

raisonnable." (Emphasis added.)

 (b) The Spanish and French versions of 3.4 of the AD Agreement read as follows:

rama de producción nacional de que se trate incluirá [English version: "shall
enumeración no es exhaustiva, y ninguno de estos factores aisladamente ni
varios de ellos juntos bastarán [English version: "can … necessarily give"]
seul ni même plusieurs de ces facteurs ne constitueront pas nécessairement
une base de jugement déterminante." (Emphasis added.)

 (c) The Spanish and French versions of Article 3.5 of the AD Agreement state:

 "Habrá de demostrarse
factores de que tengan conocimiento, di stintos de las importaciones objeto de
dumping ... y los daños causados por esos otros factores no se habrán de
atribuir [English: "must not be attributed] a las importaciones objeto de
dumping." (Emphasis added.)
autres facteurs ne devront pas être imputés aux importations faisant l'objet
 (d) The Spanish and French versions of Article 5.8 of the AD Agreement read:

 "La autoridad competente rechazará [Eng lish version: "shall be rejected"] la
solicitud presentada con arreglo al párrafo 1 y pondrá fin [English version:
 Consequently, the United States' arguments based on the use of the present tense in the above
Articles are without merit since, as shown above, the same Articles also use verbs in the future tense
which are not necessarily to be construed in a narrow and literal sense.

4. In paragraph 23 of its second subm ission, Mexico asserts that it is desirable that the POI ends
as closely as possible to the date of initiation of the investigation, but that no such obligation exists.
Could Mexico explain why it considers that this clo seness in time is desirable in light of its argument
that the purpose of an anti-dumping investigation is not to offset or prevent dumping presently
causing injury, but to offset dumping that caused injury in the past or threatened to cause injury in the
past (as argued e.g. in Mexico's second oral statement, paragraph 18)?

Answer

 First, it should be made clear that in paragra ph 18 of its second oral statement, Mexico did not
assert that the purpose of an anti-dumping investigation is to offset dumping that caused or threatened
to cause injury in the past. What Me xico said is that the purpose of such investigations is to offset or
prevent dumping – which does not necessarily have to occur in the present – th at causes or threatens
to cause injury to the domestic industry.

 Secondly, in Mexico's view the very nature of investigations precludes any finding of present
dumping because the period set for investigation is boun d to be a period that has already elapsed and
that precedes the initiation of the i nvestigation. For example, no inv estigating authority in fact asks
importers and exporters to provide information on transactions they carry out between the initiation of
the investigation and the date of the final determination with a view to basing the latter on the present.
In other words, it is impossible to set a POI to be updated over time so that at the end of the
investigation the authority is in a position to de termine the existence of present dumping. Indeed,
recognizing this to be the case, the AD Agreement pr ovides for the possibility of yearly reviews of
anti-dumping duties which determine the new margin of dumping to be applied to a period subsequent
to the one considered in the investigation.

 Thus, for injury to be determined it must be found that dumping causes or threatens to cause
injury to the domestic industry in the period in whic h it occurs and not necessarily afterwards. In the
case of threat of injury, it must be found that a thr eat exists at the time when the dumping occurs. On
this basis the authority in the investigation concerning long-grain white rice found dumping to be the
cause of the injury to the domestic industry. In other words, it was determined that dumping caused
injury in the period in which the United States expo rters carried out their transactions and that the
injury was caused by the dumped exports.

 It is desirable for the POI to be as close as pr acticable to the initiation of the investigation
because that period having already elapsed, the closer it is to the date of initiation the greater the
likelihood that the circumstances prevailing during the POI will still obtain. But Mexico maintains
that this is not mandatory, since no rule in the AD Agreement so provides.

Questions concerning the use of facts available and the all other rate

5. In its answer to question 17(b) of the Pane l's questions, Mexico argues that it was under no
obligation to obtain the pedimentos to identify all of the exporters. At the same time, it argues that "to
have sought to obtain them would ha ve considerably delayed the initia tion of the investigation". Can
Mexico explain whether the investigating authorit y considered obtaining the pedimentos but decided
in the end not to do so because of the delay it woul d cause? If so, would it not have been possible for
the authority to consult a small number of pediment os, simply to check whether such a sample would
lead to more exporters being identified, without unnecessarily delaying the investigation?

Answer

 It must first be pointed out that in its reply to question 17(b) of the Panel, Mexico did not state
that it was under no obligation to obtain the pedimentos to identify all of the exporters. What Mexico
said is that it was not required under the AD Agreemen t to identify all the exporters or to obtain the
pedimentos; in other words, the Agreement lays down no such obligation. Consequently, the
United States cannot plead breach of the Agreement on the basis of a non-existent obligation. And
there is no point in taking up the United States' ar guments as to whether Mexico planned to consult
them and decided in the end not to because of th e delay it would cause, since the AD Agreement does
not require Mexico to do so.

 As to consulting a small number of pedi mentos without unnecessarily delaying the
investigation, the time it takes to obtain the pediment os is what largely causes the delay. As occurs
with many WTO Members, import declarations are in the hands of the customs authority, not the
investigating authority. In Mexico, they therefore have to be obtained through the Ministry of
Finance and Public Credit, which can take several w eeks or perhaps months, even if only a sample is
requested, in addition to the tim e needed to examine them. As explained in the reply to
question 17(b), it would have taken more than 40 days to obtain the pedimentos, for the sake of
complying with the United States' wishes and not out of any obligation under the AD Agreement.

6. Could Mexico explain what happens if the petitioners do not mention any known exporters in
their petition (a possibility envisaged by the US in its second submission, paragraph 66): will no
questionnaires be sent and no individual margin of dumping be calculated for anyone? Does the
authority verify whether an exporter mentioned by the petitioner in the application actually exists?

Answer

 It must first be pointed out that a petition that does not specify the identity of the exporters
has never been submitted to the Mexican authority . In the 200 or more cases dealt with by the

Ministry there has never been such a petition; a nd this holds good for the investigations concerning
long-grain white rice and beef.

 Failure to mention any exporters in a petitio n would be treated as inconsistent with
Article 5.2(ii) of the AD Agreement and Article 75(X) of the Regulations of the Foreign Trade Act,
and the investigating authority would advise the pe titioner under Article 78 of the Regulations that it
had 20 days within which to notify known exporters . The question is purely hypothetical and we
confirm that the Mexican authority has never b een faced with such a situation, including in
investigations concerning exports from the United States. It is our view, generally speaking, that it is
virtually impossible for a domestic producer not to know its foreign competitors.

 As to the question whether the authority verifi es the existence of exporters mentioned by the
petitioner, Mexico is of the view that this is not part of the requirement laid down in Article 5.3 of the
AD Agreement. That provision requires the exam ination of the accuracy and adequacy of the
evidence to ascertain whether it is sufficient to ju stify initiation, and cove rs not the identity of
exporters known to the petitioner but the information and evidence on dumping, injury and causal link
submitted to justify initiation of an investigation.

7. The United States on various occasions mentions the fact that apart from the two exporters
listed as "known exporters" by the petitioner in the application, the application also contained
information and referred for example in Annex H to another exporter, the Rice Corporation, which
later appeared and took part in the investigation out of its own initiative. (See e.g. paragraph 13
United States first submission). According to the United States, did the application contain any other
names of United States exporters, in addition to these three?

Answer

 Apart from the exporters listed as known expor ters and the company mentioned in "Annex H"
of the application for initiation of an investigati on, the application mentions no other United States
companies that can be deemed to be exporters.

8. Could Mexico indicate whether the "Official form for exporting companies investigated for
price discrimination" (MEX-5) is the same as th e actual questionnaire that was sent to the known
exporters or is it a form which exporting companies who have not b een identified by the petitioners
need to return to the authority in order to be sent the questionnaire and to be examined individually?

Answer

 Mexico confirms that exhibit MEX-5 is a questionnaire like the one sent to the known
exporters and the United States Embassy in Mexico . It should also be noted that when unknown
exporters request the questionnaire for exporters from the Mexican authority, it is sent to them with no
prior formalities and they are allowed to participate in the investigation with no restrictions.

9. The United States notes in its first submission w ith regard to the listados that "These abstracts
are known as "listings" ("listados"), and they prov ide import values and import volumes, along with
the identity of the importer of record. Even th ese abstracts were apparently considered to be
confidential information, and they were not placed on the public record of the investigation."
(United States first written submission, paragraph 15) . Could Mexico confirm that this is all the
information contained in the listados? In Mexico , are these listados as well as the pedimentos
themselves considered as confidential information?

Answer

 We confirm that the listings of pedimentos contain information on the value and volume of
the imports. They also contain data on the tariff he ading, country of origin, country of consignment,
freight, gross weight, exchange rate, identity of the importers (name and federal taxpayers'
registration), inter alia.

 In Mexico, both the listings of pedimentos and the pedimentos themselves are treated as
confidential information under Mexican law.

10. In its answer to question 17(b ) of the Panel's questions, Mexico stated that "For the purposes
of initiating an investigation, Mexico sees no re quirement in the AD Agreement to obtain the
pedimentos or to identify all of the exporters. 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 the initiation of the i nvestigation (by approximately 40 days), because as
many as 1,183 transactions were c onducted 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."

 (a) Could Mexico clarify that the 40 days' dela y referred to in this answer relates to the
time it would have taken to obtain the inform ation from the Ministry actually holding
the pedimentos? Or does this delay incl ude the time it would have taken to go
through the pedimentos to find e.g. the names of exporters?

Answer

 Mexico confirms that the 40 days referred to in its reply to question 17(b) of the Panel
correspond to the time it would have taken just to ob tain the pedimentos from the Ministry of Finance
and Public Credit.

 (b) Could Mexico indicate whether the only tw o relevant documents in this respect are
(i) the pedimentos in which all of the information including the identity of the
exporter is included, and (ii) the listados, an abstract of the pedimentos containing
only limited information, or does there exist a third type of document which is also
called a listado and which is actually an electronic version of the pedimentos?

Answer

 The only relevant documents are the pedime ntos and the listings of pedimentos. The
investigating authority has electronic access to the latter. There is no electronic version of the
pedimentos, which Customs handles only in paper form.

Questions concerning the non-shipping exporter

11. (a) What is the view of the parties conc erning the reference in the last sentence of
Article 9.5 AD Agreement to the term "guarantees" rather than anti-dumping
"duties"?

Answer:

 It is our understanding that under Article 9.5 of the AD Agreement, during the new shipper
procedure petitioners are not bound to pay anti-dum ping duties and may instead provide guarantees.
Thus, the term "guarantees" implies that the authorities of the importing Member may ask the

exporter to provide for the duration of the above -mentioned procedure guarantees sufficient to cover
any anti-dumping duties the new shipper may have to pay as a result of the review.

 We further observe that the term "guarantees" is not limited to the cash deposits or bonds
referred to in Articles 7.2, 10.3, 10.4 and 10.5 of the AD Agreement, but allows that there may be
other forms of guaranteeing the payment of anti-dumping duties.

 It should nonetheless be noted that although th e English version of the AD Agreement makes
a distinction between "security" (Article 7.2) a nd "guarantees" (Article 9.5), in the Spanish and
French versions there is no such difference. Th e Spanish version uses "garantías" and the French
version, "garantie", in both those Articles (7.2 and 9.5) and in Articles 10.3, 10.4 and 10.5 as well.
Thus, for the purpose of the grant of guarantees under Article 9.5 of the Agreement, cash deposits and
bonds will be allowed.

(b) In the view of the parties, is the appropriate level of the guarantee that may be requested from
a new shipper under Article 9.5 of the AD Agreement in any way limited by the
AD Agreement, and, if so, where in the AD Agreement is this limit to be found?

Answer

 Mexico is of the view that the AD Agreem ent sets no guidelines for determining the amount
of the guarantee that may be requested of a new sh ipper and that this will be dealt with on case-by-
case basis.

 (c) According to the parties, are non-shipping exporters to be considered as an interested
party in the sense of Article 6.11(i) of the AD Agreement, i.e. an exporter or foreign
producer or the importer of a product subject to investigation?

Answer

 In Mexico's view, a non-shipping exporter is an in terested party in the sense of Article 6.11(i)
of the AD Agreement, since in establishing that in terested parties are to include exporters or
foreign producers, this provision does not exclude or limit participation by any exporter in the
investigation.

 (d) Are the parties of the view that "non-sh ipping exporters" and "new shippers" are one
and the same thing under the AD Agreement? If so, why? If not, are they in the
parties' view nevertheless entitled to the same treatment? What is the basis for this
view in the Agreement?

Answer

 Mexico believes that, from a purely conceptual standpoint, a non-shipping exporter is not the
same thing as a new shipper. A non-shipping exporter is an exporter that did not export during the
POI to the WTO Member conducting the anti-dumping i nvestigation. A new shipper is an exporter
that did not export during the POI but has exported since the POI, which may be before the end of the
investigation or once the anti-dumping duties have been imposed. Thus, a non-shipping exporter may
become a new shipper if it exports after the POI.

 Under Article 6.11(i) of the AD Agreement, both are interested parties in that both are
exporters of the product subject to investigati on and therefore have the same rights under the
Agreement. However, for the purposes of le vying anti-dumping duties the Agreement does not
require the investigating authority to afford them different treatme nt. Mexico accordingly takes the
view that if a non-shipping exporter and a new shi pper fail to provide adequate information for the

determination of their individual margins of dum ping, the investigating authority will base its
preliminary or final determination on Article 6.8 of the Agreement.

Questions concerning the law as such

12. With regard to Article 2 of Mexi co's Foreign Trade Act (the "FTA"):

 (a) Could Mexico explain whether the administration has the discretion to apply the law
in a manner which goes against the clear meaning of the law if it considers that this is
what is required in order for Mexico to comply with the AD Agreement?

Answer

 In Mexico federal laws are general in natu re and mandatory, being acts of parliament.
Federal laws – including the FTA – accordingly appl y nationwide. If Mexico has undertaken through
an international treaty to fulfil certain obligations, the provisions of the FTA must obviously apply to
the country with which the treaty was signed, in accord ance with what is stipulated in that treaty.
Consequently, for WTO Members the FTA must be a pplied – as its Article 2 provides – consistently
with the provisions of the Marrakesh Agreement a nd the Agreements it encompasses. In other words
it must not go against them, which on no account means that the investigating authority may breach
the FTA at its discretion.

 Accordingly, Mexico emphasises that in the case of the FTA, Article 2 of the latter serves as
the guide for interpreting all other articles of the Act. Consequently, since the FTA establishes that all

its articles must be applied in accordance with intern ational treaties to which Mexico is a party, there
is no possibility whatever of the authority going against the meaning of the FTA at its discretion.

 (b) In the view of Mexico, is it relevant fo r the application of Article 2 of the FTA that
some of the amendments to the FTA cha llenged by the United States in the current
proceedings were introduced after the end of the Uruguay Round and the entry into
force of the AD Agreement?

Answer

 No. This has no relevance for the application of Article 2 of the FTA.

 (c) Is it the view of Mexico that the provisions of the FTA challenged by the
United States in the present case are all consistent with the WTO AD Agreement?

Answer

 Yes. Mexico considers that the provisions of the FTA impugned by the United States are
consistent with the WTO Agreements as demonstrat ed by the claims and arguments, both oral and
written, that Mexico has submitted to the Panel.

13. The Mexican law provides that interested pa rties shall submit their arguments and evidence
within a period of 28 days from the day following the publication of the initiating resolution
(Article 53 FTA). How many days are given to exporters that appear following initiation?
Answer

 Article 53 of the FTA must be read in conjuncti on with the last paragraph of Article 3 of the
FTA, which states: "Where this Act refers to ti me-limits in days, these shall be understood to mean

working days and where it refers to months or years, these shall be understood to mean calendar
months or years".

 Thus, calculated in calendar days the period of 28 working days is longer than the period of
30 days prescribed in Article 6.1.1 of the AD Ag reement, even including the week specified in
footnote 15 of the Agreement. Mexican practice t hus allows all exporters, known and unknown alike,
a period of 28 working days after the initiation of the investigation in which to submit a duly
completed exporters' questionnaire. This does not impa ir their right to apply for an extension of the
deadline.
1

 Article 6.1.1 of the AD Agreement and Article 12.1.1 of the SCM Agreement, on the other
hand, are very emphatic: "Exporters or foreig n producers (or interested Members) receiving
questionnaires used in an … investigation shall be given at least 30 days for reply … ". (Emphasis
added).

 Consequently, according to the rules of interpre tation of international treaties and agreements
described by Mexico in earlier submissions, there is no requirement to grant the 30 days to exporters
that are not sent a questionnaire.

 This is borne out by the report of the Appellate Body in Argentina – Poultry Anti-Dumping
Duties, which said:

"7.145 … We read the first sentence of Article 6.1.1 to mean that if questionnaires are sent
to
exporters or foreign producers, they shall be given at least 30 days for reply."

Besides, it would be illogical to grant this pe riod to every newly arrived exporter or foreign
producer of which the investigating authority was unaware. To do so would undoubtedly hold up the
investigation and the ensuing delay would entail failu re to observe the time-limits set in Article 5.10
of the AD Agreement and Article 11.11 of the SCM Agreement.

Along the same lines, the Appellate Body in United States – Hot-Rolled Steel said in its
report:

"73. Indeed, in the absence of time-limits, au thorities would effectively cede control of
investigations to the interested parties, and could find themselves unable to complete their
investigations within the time-limits mandated under the Anti-Dumping Agreement."

14. In its answer to question 31 of the Panel's qu estions, Mexico replies in the first sentence that
"representativeness" is not a requirement for initiating a review. In the second sentence,
Mexico adds that 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. Is it the
argument of Mexico that it is not a requirement for initiating a review, but it is a requirement
in order to be successful in obtaining a review? Could Mexico explain to what extent it
considers this distinction to be relevant?

Answer

 What Mexico wishes to emphasize is that repr esentativeness is a requirement not for initiating
a new shipper review or a review of anti-dumping duties, but for determining, at the end of the

1 In addition, Article 164 of the FTA Regulations a llows unknown exporters that appear after initiation
of the investigation to submit their replies to the questionnaire even after the preliminary determination, at
which stage they are given a new period of thirty working days. Exporters' information, arguments and
evidence will be taken into account for the final determination.

procedure, an individual dumping margin or subsidy
 for the company applying for the review. It is
natural and logical that an applicant's export volume during the period under review should be
representative. In other words, it is not enough to export one unit of the product under investigation
for the purpose of obtaining a lower or zero margin. Otherwise, the investigating authority would not
conduct a proper price comparison and would therefor e fail in its obligation to determine a fair
individual margin of dumping.

15. On page 19 of its second submission, the United States argues that an investigating authority
may not apply facts available to exporters that were never sent a questionnaire and asked to
respond. Does this imply that in the United St ates view a facts available duty can be applied
only to known exporters? Or w ould the United States argue that a residual rate based on the
facts available for unknown exporters is possible?

Answer

 Mexico believes that the following should be borne in mind:

 First, Article 6.11(i) of the AD Agreement says that exporters of products subject to
investigation must be treated as "interested pa rties", but does not determine whether only known
exporters are to be regarded as interested par ties. Since it makes no such distinction, the
AD Agreement considers both known exporters and unknown e xporters to be interested parties.
Accordingly, all exporters of the product under inves tigation are subject to the relevant provisions of
the AD Agreement.

 Article 6.8 of the AD Agreement states: "In cases in which any interested party
 refuses
access to, or otherwise does not provide, necessar y information … or significantly impedes the
investigation, preliminary and final determinations, affirmative or negative, may be made on the basis
of the facts available." (Emphasis added).

 On the basis of the foregoing, we observe that according to the AD Agreement, the provisions
of Article 6.8 of the Agreement (facts available) may apply both to known and to unknown exporters,
since both are interested parties.

 Secondly, we note that in this dispute arguments have been adduced about the use of
Articles 9.4 or 6.8 of the AD Agreement for the purpose of calculating the margin of dumping for
unknown exporters.

 Article 9.4 of the Agreement applies only to known exporters, as can be seen from the
following:

(a) Article 6.10 of the Anti-Dumping Agreement states: "The Authorities shall, as a rule,
determine an individual margin of dumping for each known exporter or producer

concerned … In cases where the number of exporters … is so large as to make such a
determination impracticable, the authorities may limit their examination … by using
samples which are statistically valid … " (Emphasis added).

Thus, according to Article 6.10 of the AD Agreem ent, investigating authorities must as a rule
calculate the individual margin of dumping for each known exporter except where the number of
known exporters is so large as to make such a determination impracticable, in which case they may
limit their examination using statistical samples. In other words, Article 6.10 of the AD Agreement
allows statistically valid sampling only among the expor ters known to the authority. This is perfectly
logical since it is impossible to select a sample from among a set of unknown elements.

 Furthermore, Article 9.4 of the AD Agreement provides that the calculation method it sets out
shall apply only "[w]hen the authorities have li mited their examination in accordance with …
paragraph 10 of Article 6 … ", in other words, where the investigating authority has limited its
examination by using statistically valid samples.

 Since – as already stated – statistical samp les may be used only for known exporters, the
calculation method set forth in Article 9.4 of th e Agreement may be used only for known exporters
and provided a sample has been selected.

 Accordingly, because Article 6.8 of the AD Ag reement can be applied both to known and to
unknown exporters and because Article 9.4 of the Agreement cannot be applied to unknown
exporters, we conclude that it is consistent with the Agreement to calculate the residual margin of
dumping on the basis of Article 6.8 (facts available). Likewise, since it does not apply to unknown
exporters the calculation method described in Artic le 9.4 of the AD Agreement cannot properly be
used to calculate a "residual" margin of dumping.