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Compendium of Antidumping and Countervailing Duty Laws in the Western Hemisphere
WTO Standard: None in the AD or SCM Agreements. There is a Ministerial Declaration which states: "Ministers, Noting that while the problem of circumvention of anti-dumping duty measures formed part of the negotiations which preceded the Agreement on Implementation of Article VI of GATT 1994, negotiators were unable to agree on a specific text, Mindful of the desirability of the applicability of uniform rules in this area as soon as possible, Decide to refer this matter to the Committee on Anti-Dumping Practices established under that Agreement for resolution."
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
The competent implementing authority may include within the scope of the definitive antidumping or countervailing duty measure in force, imported parts and components intended for assembly or finishing in the Argentine Republic when it is established that:
(a) the product assembled or finished from such parts or components is a like product to the one subject to the definitive antidumping or countervailing duty;
(b) assembly or finishing in the country importing the product referred to in paragraph (a) above is carried out by a party related to an exporter or producer whose exports of the like product to the Argentine Republic are subject to a definitive duty or which acts on behalf of such exporter or producer;
(c) parts or components were obtained in the country of the exporter or producer subject to a definitive duty from suppliers in the exporting country who traditionally have supplied parts or components to such exporter or producer, or from a third party supplying parts or components on behalf of such exporter;
(d) assembly or finishing operations in the Argentine Republic have undergone substantial growth and imports of parts or components for such operations have increased substantially since the initiation of the investigation which gave rise to the imposition of the definitive duty;
(e) the total cost of the parts or components referred to in subparagraph (c) represents a substantial part of the total cost of the parts or components used in the assembly or finishing operations.
The competent implementing authority may impose preventive antidumping or countervailing duties on parts or components imported for use in assembly or finishing operations when it considers that there is sufficient evidence of the criteria outlined in paragraphs (a) through (e) above.
The competent implementing authority may establish a definitive antidumping or countervailing duty when all the criteria set forth above are met.
The definitive antidumping or countervailing duty that may be imposed may not be higher than the definitive antidumping or countervailing duty in force on imports of the finished product subject to investigation. (Decree No. 2121/94, Art. 66).
The Special Import Measures Act (SIMA) and SIMA regulations do not contain explicit anti-circumvention provisions.
Revenue Canada may, however, initiate a new investigation in respect of the goods exported from a third country or exported in a different form to Canada.
The issue of circumvention is not addressed in Chilean law.
Circumvention shall be understood to exist when there is a change in the characteristics of the trade between third countries and Colombia deriving from a practice, process, or work for which there is no adequate economic cause or justification other than the establishment of the duty, and evidence that the corrective effects of the law are being offset with respect to the prices and/or quantities of the like product. If the measures in force are circumvented, the antidumping duties established pursuant to this decree may be expanded so as to apply to like products or parts of the same coming from third countries.
An assembly operation in Colombia or in a third country shall be considered to circumvent the measures in force when the following conditions occur:
1. The parts or components have been obtained in the country subjected to the duty in force, from the exporter or producer to whom the final duty is applied, from suppliers of the exporter or from the producer or from a part of the exporting country that supplies it on behalf of the exporter or producer.
2. A product assembled or finished with those parts or components in Colombia is like the product subject to final duties.
3. There is evidence of dumping of the product produced with those parts, which results from comparing the price of the product once assembled or finished in Colombia with the previously established normal value of the like product when it was subjected to the final antidumping duty.
4. The operation began or increased substantially from the moment the antidumping investigation was initiated or just before it had been initiated.
5. The parties constitute 60% or more of the total value of the parts of the assembled product; nonetheless, circumvention shall not be considered to exist when the total value added of the parts used during the assembly operation is greater than 25% of the production cost.
The factors listed in this article may be evaluated in an investigation that will be initiated when the request contains sufficient evidence of the factors mentioned therein.
An investigation shall be initiated by a reasoned order. The investigations shall be undertaken by INCOMEX, which may draw on the assistance of the customs authorities, and it shall be concluded within eight months.
When the facts finally verified justify expanding the measures, it will be so decided by the Ministry of Foreign Trade, which, in its pronouncement, may impose final antidumping duties.
To this end, the procedural provisions of this decree regarding the initiation and development of investigations shall be followed.
Parts or components of a product like to that on which definitive duties are imposed, intended for assembly or finishing operations in Ecuador, may be subjected to the payment of provisional or definitive duties.
The topic of evasion does not appear in Salvadoran law.
Article 71 of the Law provides that, when it is intended to avoid the payment of countervailing duties by introducing into national territory parts and components for the assembly of goods subject to temporary or final duties, the importation of such parts and components must be subject to payment of the duty in question.
The same treatment shall apply when the parts and components are assembled in a third country whose end product is introduced into national territory, or when goods are exported with relatively minor physical differences with respect to those subject to countervailing duties with the purpose of avoiding the duties on such goods.
The procedure for determining measures of this kind is provided for in Article 96 of the Regulations.
The Commission may apply provisional or definitive anti-dumping or countervailing duties on the import of spare parts or components imported from the country of origin of the final product subject to definitive duties if there is proof that such goods are being imported for the purpose of circumventing the application of anti-dumping or countervailing duties imposed on the final product.
For this purpose, the Commission shall take the following factors into account, inter alia:
(a) Whether the product sold in Peru has been assembled or finished in Peru using spare parts or components produced in the country of origin of the final product subject to definitive duties;
(b) whether the product sold in Peru has been assembled or finished in a third country using spare parts or components produced in the country of origin of the final product subject to definitive duties;
(c) whether the product has been assembled or finished by a party related to the exporter or producer of the final product subject to definitive duties;
(d) whether the import of spare parts or components for the product subject to definitive duties and assembly or finishing of such products have increased following publication of the decision initiating the investigation;
(e) any other circumstance determining a change in the characteristics of trade for which there is no economic cause or justification other than imposition of the duty and if there is proof that payment of the definitive duties imposed on the final product is being circumvented.
The review procedure shall be governed by the provisions laid down in Articles 18 to 53 of these Regulations, where applicable.
Trinidad and Tobago
U.S. law provides for the prevention of circumvention of antidumping and countervailing duty orders.
There are special provisions for merchandise completed or assembled in the U.S. or in a third country, for minor alterations of subject merchandise, and for later-developed merchandise.
The provisions focus on whether:
(1) minor or insignificant assembly or completion is occurring in the U.S. (or a third country);
(2) the value of the parts imported into the U.S. (or a third country) from the country subject to the order is a significant proportion of the total value of the finished product; and,
(3) whether minor alterations of subject merchandise or later- developed merchandise constitute merchandise which has essentially the same characteristics as subject merchandise.
The ITC must be consulted before Commerce makes a determination under most of these provisions.
Article 18.1, Subsidies Agreement, op.cit.
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