WORLD TRADE
ORGANIZATIONWT/DS239/1/Rev.1
G/L/480/Rev.1G/ADP/D37/1/Rev.1
7 November 2001
(01-5505)
Original:  English
UNITED STATES – ANTI-DUMPING DUTIES
ON SILICON METAL FROM BRAZIL
Request for Consultations by Brazil
Revision
The following communication, dated 1 November 2001, from the Permanent Mission of
Brazil to the Permanent Mission of the United States and to the Chairman of the Dispute Settlement
Body, is circulated in accordance with Article 4.4 of the DSU:
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Upon instruction from my authorities, I hereby wish to convey the request of the Government
of Brazil for consultations with the United States pursuant to Article 4 of the Understanding on Rules
and Procedures Governing the Settlement of Disputes (DSU), Article XXII of the General Agreement
on Tariffs and Trade 1994 (GATT 1994) and Article 17 of the Agreement on Implementation of
Article VI of GATT 1994 (A ntidumping Agreement), including Article 17.4 thereof.
This request pertains to antidumping duties imposed by the United States on imports of
silicon metal from Brazil: Antidumping Duty Order:  Silicon Metal From Brazil, 56 Fed. Reg. 36135
(July 31, 1991) (US case number A-351-806).  It al so relates to Section 351.106(c) of the United
States Department of Commerce's (Department) regulations1, which establishes that a de minimis
margin of 0.5 percent applies for administrative reviews.  This request also concerns the US "zeroing"
methodology when establishing margins of dumping , as reflected in Chapter 6 of the Antidumping
Manual of the Department2 and in Section 771(35) of the Tariff Act of 1930.
Measures at issue
Since 1991, the Department has imposed antidumping duties on imports of silicon metal from
Brazil to the United States, including the imports from Companhia Brasileira Carbureto de Cálcio("CBCC"). Pursuant to the US antidumping provisions, CBCC has participated in annual
administrative reviews of its dumping margin and has sought to become eligible for the revocation of
the antidumping duties imposed on its exports.  The Department calculated no dumping margins for
CBCC during the fifth, sixth and seventh administrative reviews, covering the review periods
1995-1996, 1996-1997, and 1997-1998, respectively.
3  In spite of the fact that the Department did not
                                                     
1 19 C.F.R. § 351.106(c).
2 Available at http://ia.ita.doc.gov/admanual/.
3 Final Results of Antidumping Duty Administ rative Review:  Silicon Metal From Brazil, 63 Fed. Reg.
6899 (February 11, 1998) ("Fifth administrative review"); Silicon Metal From Brazil:  Notice of Final Results of
Antidumping Duty Administrative Review, 64 Fed. Reg. 6305 (February 9, 1999) ("Sixth administrativeWT/DS239/1/Rev.1
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find any dumping with respect to CBCC's sales during those review periods, the Department rejected
CBCC's request for revocation of the antidumping order.
In the most recently completed review, the eighth administrative review covering the period
1998-1999, CBCC again requested revocation of the antidumping duty order.4  This time, the
Department calculated a small dumping margin of 0.63 percent.  The Department determined that the
requirement for revocation was not met because the dumping margin was above the de minimis
standard.
The Department's action is consistent with the US legislation, which establishes that the
2 percent de minimis  provision of Article 5.8 of the AD Agreement only applies  in the case of initial
investigations, allowing for a de minimis  margin of 0.5 percent in the case of administrative reviews,
including those reviews which purpose to determin e whether the antidumping duty should be revoked.
This standard is expressed in Section 351.106(c) of the Department's regulations. The language of the
US legislation and the corresponding US practice are in clear violation of the AntidumpingAgreement, which makes no distinction between de minimis margins applicable to investigations and
those pertaining to administrative reviews.  The United States seems to understand that the de minimis
requirement of Article 5.8 does not apply to the re views of antidumping duty orders contemplated in
Article 9.3 for duty assessment purposes, nor to Article 11.2, concerning the revocation of
antidumping duty orders.  Moreover, the 0.63 percent margin of dumping resulted from theDepartment's use of the "zeroing" methodology, which also violates the Antidumping Agreement.
With regard to this latter point, WTO Panel findings, upheld by the Appellate Body
5,
maintained that the practice of "zeroing" negative dumping margins when establishing "the existence
of margins of dumping" is inconsistent with the provisions of Article 2.4.2 of the AntidumpingAgreement.  Brazil upholds that the practice of "zeroing" is disallowed under Article 2 whenever
investigative authorities are calculating dumping margins, given the inherently biased and distorted
nature of that methodology.  The US government currently applies the identical practice of "zeroing"
when establishing the dumping margin in investigations and reviews.  This methodology is reflected
in the Department's Antidumping Manual (Chapter 6, p. 9-10).  The Department has stated that the
zeroing methodology is required by Sections 771(35)(A) and (B) of the Tariff Act of 1930.
6
The application of the "zeroing" practice in the administrative review at issue resulted in the
calculation of 0.63 % dumping margin for CBCC.  This methodology, as expressed in the
Department's Antidumping Manual and as applied to CBCC, is inconsistent with the US obligations
under the Antidumping Agreement.
In light of the DSU provisions governing this matter, including Article 4.3 thereof, as well as
Article 17 of the Antidumping Agreement, my authorities look forward to receiving in due course the
reply of the United States to this request.  Brazil is ready to consider with the United States mutually
convenient dates to hold consultations in Geneva.
                                                                                                                                                                    
review"); Final Results of Antidumping Duty Administ rative Review:  Silicon Metal From Brazil, 65 Fed. Reg.
7497 (February 15, 2000) ("Seventh administrative review").
4 Final Results of Antidumping Duty Administ rative Review:  Silicon Metal From Brazil, 66 Fed. Reg.
11256 (February 23, 2001) ("Eighth administrative review").
5 Cotton-Type Bed Linen from India, WT/DS141/AB/R, 1 March 2001 (AB2000-13).
6 Final Results of the Antidumping Duty Administrative Review:  Canned Pineapple Fruit from
Thailand, 66 Fed. Reg. 52744 (Oct. 17, 2001) (accompanying Issues and Decision Memorandum at
Comment 10).WT/DS239/1/Rev.1
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Brazil reserves the right to raise additional factual or legal points related to the
aforementioned measure during the course of consultations.
This request for consultations replaces the one delivered to the Mission of the United States
on 18 September 2001 (Document WT/DS239/1).
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