The Brazilian Ministry of Economy’s Foreign Trade Secretariat (SECEX) recently issued four directives aimed at increasing predictability and legal certainty in domestic trade remedy proceedings. The directives build upon administrative practices adopted by SECEX as the investigative authority on the basis of Decree 8058/2013, which constitutes the foundation of Brazil’s antidumping duty regime.
Sunset Reviews Resulting in Suspended AD Measures. SECEX Directive 152/2021 sets forth procedures and factors for recommending the extension of AD measures via a sunset review with the immediate suspension of the AD measure in question, as well as the process for recommending the immediate reapplication of the AD measure in the future. The Under‑secretariat of Commercial Defence and Public Interest (SDCOM) may recommend the extension of an AD duty order with immediate suspension of its application if there is uncertainty about the likely future evolution of imports of subject merchandise, on the basis of Article 109 of Decree 8058/2013. This option may only be considered when it is determined during a sunset review that the rescission of the AD duty order will most likely lead to the resumption of injury caused by imports of subject merchandise, but may not be considered when a determination is made that such rescission will most likely lead to a continuation of injury.
Sunset Reviews Resulting in a Lower AD Duty. SECEX Directive 153/2021 sets forth procedures for recommending the extension of AD duty orders with an AD measure that is lower than that previously in place. SDCOM may recommend that course of action through a comparison between (i) the likely export price and the normal value, or (ii) the likely export price and the sale price of a like product of the domestic industry in the Brazilian market. SDCOM recommendations to renew an AD duty order on the basis of a lower AD measure must be based on the analysis of (i) the data and arguments presented by the interested parties, including on the likely effectiveness of the measure determined on the basis of the aforementioned methodologies, and (ii) the evidential elements that justify the adoption of the aforementioned methodologies.
Likely Price Analysis in AD Sunset and Changed Circumstances Reviews. SECEX Directive 151/2021 establishes procedures to analyse the likely price in accordance with paragraph 3 of Article 107 and item III of Article 104 of Decree 8058/2013, within the scope of AD sunset or changed circumstances reviews. A likely price analysis will be considered in sunset reviews in the event that there were no exports, or that there were exports in non‑representative quantities, from the country to which the AD measure applies, as well as in changed circumstances reviews. On an exceptional basis, the likely price analysis parameters may be considered if there have been exports of subject merchandise in representative quantities (continuation of dumping), as long as certain specific circumstances exist.
Petitions for sunset or changed circumstances reviews must indicate the likely price for each investigated origin, together with data on the average export price of the like product from the investigated origins to third countries that are available in public international trade databases and in accordance with certain conditions.
Pre-Litigation Phase in AD, CV and Safeguard Proceedings. SECEX Directive 150/2021 sets forth procedures for the voluntary pre‑litigation phase in original AD/CV duty and safeguard investigations, as well as administrative reviews and other proceedings within the scope of Decree 8058/2013 (AD duty proceedings), Decree 1751/1995 (CV duty proceedings) or Decree 1488/1995 (safeguard proceedings). A request for voluntary pre‑litigation must be filed confidentially with SDCOM via the Ministry of Economy’s Electronic Information System (SEI/ME) at least one month prior to the deadline for submission of the request or initial petition related to the original investigation, review or other procedure.
