3. Methodologies/Definitions
   
   
   11. Material Retardation
       
       
       WTO Standard: [...] the term "injury" shall, unless otherwise specified, be taken to mean material injury to a domestic industry, threat of material injury to a domestic industry or material retardation of the establishment of such an industry [...] (AD Agreement, fn. 9; SCM Agreement, fn. 45)

Argentina | Bolivia | Brazil | Canada | Chile | Colombia | Costa Rica | Dominican Republic | Ecuador | El Salvador | Guatemala | Honduras | Jamaica | Mexico | Nicaragua | Panama | Paraguay | Peru | Saint Lucia | Trinidad & Tobago | United States | Uruguay | Venezuela

Argentina

   The cited WTO standards and the Decree 2121/94 are applied, as long as it does not contradict with the cited provisions.

   In order to determine whether or not material retardation of the establishment of a domestic industry exists, the implementing authority evaluates the potential of the domestic industry at the time when the imports began or were imminent, with the object of ascertaining whether such imports had a negative effect on the development of that potential. (Decree No. 2121/94, Art. 10).

   The implementing authority considers, inter alia, such factors as:

         (1) the effective capacity under construction;

         (2) the certainty of financing for the capacity under construction;

         (3) the status of orders and dispatches; and

         (4) the general financial situation. (Id.).

   It must be shown to the satisfaction of the competent implementing authority that there is a causal link between the import of the product under investigation and the existence of material retardation of the establishment of a domestic industry.

   The competent implementing authority shall ensure that injury caused by factors other than dumping and subsidization of the product under investigation are not attributed to imports of that product. (Id., Art. 11).

Bolivia

   "Injury" may refer to material injury, threat of material injury, or material retardation of the establishment of an industry.

   For the purposes of determining material retardation of the establishment of an industry in Bolivia, the Technical Secretariat shall examine, inter alia, feasibility studies, loans negotiated and contracts for procurement of machinery related to new investment projects or the expansion of existing plants.

   Bi-ministerial Decision, Arts. 2 and 32.

Brazil

   The term "injury" includes material retardation of the establishment of a domestic industry. (Dec. 1602/95 - Art. 14 caput; Dec. 1751/95 - Art. 21 caput).

   There are no separate provisions for material retardation.

   See discussion of injury above.

Canada

   Retardation means material retardation of the establishment of a domestic industry.

   See also the "Injury" section above as it pertains to Canada.

Chile

   Chilean legislation takes material retardation into account in determining the existence of injury. (Supreme Decree No. 16, Ministry of External Relations, published in the Diario Oficial on May 17, 1995).

Colombia

   To determine significant delay in the establishment of a branch of production in Colombia, INCOMEX shall examine the following factors, among others:

         1. The feasibility studies, loans negotiated, and/or contracts for the purchase of machinery leading to new investment projects or to expand existing plants.

         2. The existence of dumped imports.

         3. Adequate and sufficient supply of the market, considering the volume of imports being dumped and the volume of all other imports, the volume of existing production, and the project's potential.

   The causal relationship between dumped imports and significant delay in establishing a branch of domestic production shall be evaluated pursuant to the provisions of the fourth paragraph of Article 16 of this decree. None of these factors alone will necessarily suffice to obtain a decisive orientation.

Costa Rica

   The term "injury" shall, unless otherwise specified, be taken to mean material injury to a domestic industry, threat of material injury to a domestic industry or material retardation of the establishment of such an industry [...].

Dominican Republic

Ecuador

   For the purposes of determining material retardation of the establishment of an industry in Ecuador, the investigating authority shall examine, inter alia, feasibility studies, loans negotiated and contracts for procurement of machinery related to new investment projects or the expansion of existing plant.

El Salvador

   There is no specific provision but El Salvador applies the rules in accordance with the WTO Antidumping and Countervailing Duty Agreements.

Guatemala

   The CARUTP applies the WTO standard.

Honduras

   The CARUTP applies the WTO standard.

Jamaica

   In the Customs Duties (Dumping and Subsidies) Act, material injury means, in respect of the dumping or subsidizing of any goods, material injury to the production in Jamaica of like goods.

Mexico

   Article 39 of the Law establishes that obstruction to the establishment of new industries is also considered damage.

Nicaragua

   The CARUTP applies the WTO standard.

Panama

Paraguay

Peru

Santa Lucia

Trinidad and Tobago

   Material retardation means, in respect of the dumping or subsidizing of any goods, material retardation of the establishment of the production in Trinidad and Tobago of like goods. (Sec. (3)(1)).

United States

   The ITC determines whether the establishment of a U.S. industry is materially retarded as a result of imports of the subject merchandise by examining the negative effects on the development and production activities of the U.S. industry.

Uruguay

   For the purposes of this Decree, the term "injury" shall, unless otherwise specified, be taken to mean material injury to a domestic industry, threat of material injury to a domestic industry or material retardation of the establishment of such an industry.

Venezuela

   "The Commission shall determine the existence or threat of material injury to the domestic industry producing like goods or material retardation of the start-up of such an industry due to the import of dumped or subsidized goods". (1992 Law, Art. 11).

   A determination of appreciable material retardation shall be based on evaluation of the potential of the domestic industry at the time when imports of the subject goods commence or are imminent to establish whether or not such imports had an adverse effect on the probably development of this potential.

   The following factors concerning the domestic industry shall be taken into account (1993 Regulations, Art. 52):

         
• projected performance compared with actual performance;
           
• utilization of production capacity;
           
• orders and deliveries;
           
• the financial situation; and
           
• other circumstances which the Commission deems relevant.

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