Public interest assessment becomes optional in original trade defense investigations in Brazil

In brief

The Brazilian Secretariat of Foreign Trade (known by its acronym, “SECEX“) issued on 8 March a new ordinance that renders the assessment of public interest (“API“) an optional proceeding in original dumping and subsidy investigations. According to the previous regulation, the API was mandatory in such original investigations, and thus initiated ex officio bythe Brazilian Department of Trade Defense (known by its acronym, “DECOM“), together with the opening of every new investigation.  

In more detail

The Brazilian Decrees on Antidumping and Subsidies (Decrees No. 8,058/2013 and No. 10,839/2021) authorizes the suspension of definitive antidumping and countervailing measures, and the non-application of such measures on a provisional basis due to public interest reasons, under exceptional circumstances. SECEX Ordinance No. 13, of January 29, 2020 regulates the administrative proceedings concerning the API in the context of trade defense investigations.
 
SECEX Ordinance No. 237, of January 29, 2027, recently published, revokes Article 5, and alters Article 6 of SECEX Ordinance No. 13/2020.
 
The revoked Article 5 of SECEX Ordinance No. 13/2020 provided that the API in original dumping and subsidy investigations was mandatory, and thus had to be initiated by SECEX by means of an administrative act concurrent to the opening of such investigations.
 
In turn, Article 6 of SECEX Ordinance No. 13/2020, altered by the new rule, used to set forth that the API was optional in sunset reviews of antidumping and countervailing measures – interested parties could request the opening of an API proceeding by filling the Public Interest Questionnaire, or it could be opened ex officio by DECOM, at its discretion. According to the new wording of this provision, introduced by SECEX Ordinance No. 237/2023, the API will be facultative both in original investigations and sunset reviews. An API proceeding may be requested by an interested party or opened ex officio, at DECOM’s discretion.