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Compendium of Antidumping and Countervailing Duty Laws in the Western Hemisphere


Bolivia

 

I. Legal Authority to Impose Antidumping and Countervailing Duties

A. Treaties or Agreements

Article VI of the GATT 1995, the WTO Antidumping Agreement ("AD Agreement") and the Agreement on Subsidies and Countervailing Measures ("SCM Agreement").

These Agreements apply to all WTO signatories.

B. Legislation

   The Bolivian law on trade remedies is composed of the following regulations:

             
  • Supreme Decree 23308 of October 22, 1992 which establishes national regulations on unfair trade practices.
       The objective is to ensure equitable conditions for national producers and to ensure economic efficiency.
             
  • Ministerial decision no. 25191-3 of February 4, 1993.
       The decision regulates the Supreme Decree 23308 by establishing procedure for the treatment of claims and procedures for the investigation of trade remedies.
             
  • Ministerial decision 412 of September 23, 1994 which authorizes the Secretaria Nacional de Industria y Comercio to process trade remedy actions.

   Bolivian legislation on protection against unfair international trade practices comprises the following standards:

             
  • Supreme Decree D.S. 23308 of October 22, 1992 establishing the national standards governing unfair international trade practices, which aims to provide equitable conditions for national producers and not to protect inefficient production.
             
  • Biministerial Resolution B.M. No. 25191-3 of February 4, 1993, regulating D.S. 23308, which establishes a procedure for the treatment of reports and investigation procedures.
             
  • B.M. 412 of September 22, 1994 delegating functions to the National Secretariat of Industry and Commerce to take cognizance of reported subsidies and dumping.

C. Regulations

   Same as indicated under legislation section above.

D. Administrative Practice, Handbook or Guide

   There are internal guides on conducting investigations for the use of the investigating authorities. There are also forms to be submitted by the parties concerned (complainant and accused).

II. Authorities Responsible for Conducting Investigations

A. Injury

   Technical Secretariat, Minister for Exports and Economic Competition.

B. Antidumping and Countervailing Duties

   Technical Secretariat, Minister for Exports and Economic Competition.

III. Methodologies/Definitions

A. Like Product

   Article 5 of D.S. 23308 defines a like product as a product identical in all respects to the product subject to the practice or, if no such product exists, any other that has very similar characteristics, taking into consideration such elements as nature, quality, use, and function.

B. Domestic Producers

   Domestic industry shall be interpreted as referring to the domestic producers as a whole of the like products or to those of them whose collective output of the products constitutes a major proportion of the total domestic production of these products, except in the following cases:

         (i) When domestic producers are related to the exporters or importers of the products allegedly subject to unfair trade practices, the term "domestic industry" may be interpreted as referring to the rest of the producers;

         (ii) In exceptional circumstances, the domestic industry may be divided into two or more separate markets.

   The producers within each market may be regarded as a separate domestic industry if they sell most of their production of the product in question in that market and if the demand in that market is not to any substantial degree supplied by the producers of the product in question located elsewhere in the territory.

C. Standing

   The MECE may initiate the procedure upon application by domestic producers or by any person accounting for a major proportion of the domestic industry, including trade and producers' associations, who consider themselves injured by imports of like products effected during the six (6) months prior to the application, or currently being effected, at dumped or subsidized prices. Bi-ministerial Decision, Art. 5.

D. Polling

   Principal parties in national production are considered to be those with 25% of such production, in volume terms.

   The complainant is the natural or legal person who, representing the principal party in national production, requests the investigation of imports subject to unfair practices, which could lead to corrective measures, if such practices cause or threaten to cause injury to national production.

E. Normal Value

   "Normal value" means the amount actually paid or payable for a like product by comparison with the product imported, when sold for consumption or utilization in the country of origin or export, in the ordinary course of trade.

   When there are no sales of the like product in the ordinary course of trade in the domestic market of the country of origin or export, or such sales do not permit a proper determination of the normal value, it shall be calculated by considering the highest export price for the like product exported to a third country, provided it is representative; or by considering the constructed price of the like product, which shall be based on the cost of production. Bi-ministerial Decision, Art. 24; see also Decree, Art. 8.

F. Calculation of Cost of Production

   The constructed price of the like product shall be based on the cost of production.

   Cost of production shall take into account all fixed and variable costs relating to materials and manufacture, in the ordinary course of trade in the country of origin, plus a reasonable amount for administrative and selling costs, profits and other costs.

   The addition for profit shall not in general exceed the profit normally realized on sales of products of the same category in the domestic market of the country of origin. Bi-ministerial Decision, Art. 24.

G. Export Price

   "Export price" means the price actually paid or payable for the product sold for export to Bolivia. In cases where there is no export price or where it appears that the export price is unreliable because of association or a compensatory arrangement between the exporter and the importer or a third party, the export price may be constructed on the basis of the price at which the imported products are first resold to an independent buyer.

   If the products are not resold to an independent buyer, or not resold in the condition as imported, the price may be constructed on such reasonable basis as the Technical Secretariat may determine.

   In calculating the export price, the necessary adjustment shall be made to allow for all costs incurred prior to sale, such as costs of transport, insurance, maintenance, loading and unloading, import duties and other levies arising subsequent to export from the country of origin; a reasonable margin of general, administrative and selling costs; a reasonable margin of profit and any commission usually paid or agreed. Bi-ministerial Decision, Art. 23.

H. Export Price - Adjustments

   In calculating the export price, the necessary adjustment shall be made to allow for all costs incurred prior to sale, such as costs of transport, insurance, maintenance, loading and unloading, import duties and other levies arising subsequent to export from the country of origin; a reasonable margin of general, administrative and selling costs; a reasonable margin of profit and any commission usually paid or agreed. Bi-ministerial Decision, Art. 23.

   In order to compare the normal value in the country of origin and/or export and the export price on the Bolivian market as far as the physical characteristics, technical specifications of the product, conditions and terms of sale, taxes and other elements are concerned in each case allowance shall be made for the differences which affect such a comparison in order to make the appropriate adjustment.

   The comparison shall be made at the same stage of the transaction, generally at the ex-factory level, in respect of sales made at as nearly as possible the same time.

   When an interested party requests that any such differences be taken into consideration, he shall furnish evidence that the request is justified.

   The following criteria shall be applied when determining the adjustment:

         1. In the case of differences in the physical characteristics of a product and the technical specifications, the adjustments shall usually be based on the impact which such differences have on the normal value of the product;

         2. when no information is available on the normal value in the country of origin or export, or the information does not permit a valid comparison, the calculation shall be based on the production costs and the profit margins attributable to the physical differences and technical specifications.

         3. In the case of differences in quantity, the adjustment shall take into account the following:

               (a) Quantity discounts freely agreed in the ordinary course of trade during a prior representative period, usually not less than six (6) months;

               (b) Differences in the production cost of different quantities.

         4. in the case of differences in the conditions and terms of sale, the adjustment should be limited to differences which directly relate to the sales under consideration, such as differences in credit conditions, security, guarantees, forms of technical assistance, after-sales services, commissions or salaries paid to sales persons, packaging, transport, insurance, maintenance, loading and related costs, and, if they have not been taken into account in some other form, differences in the stage of marketing the transaction;

         5. differences in respect of import duties and other tax charges on products for domestic consumption in the country of origin or export from which exports are exempt. Bi-ministerial Decision, Art. 25.

I. Injury

   A determination of injury caused by unfair trade practices shall be based on positive evidence and shall involve an objective examination of the following:

         1. Information on the industry of the product concerned considered as a whole:

               1.1 Volume of imports that are the subject of unfair foreign trade practices to determine whether there has been a significant increase in absolute terms or relative to Bolivian production and domestic consumption;

               1.2 the prices of the imports that are the subject of unfair practices to determine whether they are significantly lower than the prices of like products and also whether the effect of such imports is to depress prices to a significant degree or similarly prevent an increase which otherwise would have occurred;

               1.3 the impact or likely impact on domestic producers of like products, taking into account all relevant economic factors and indices affecting production and sales such as their actual or potential decline, market share, return on investment, utilization of installed capacity, factors affecting domestic prices, the actual and potential negative effects on employment wages and growth, the raising of capital, profits and other factors deemed relevant.

         2. Information to determine the causal relationship between the imports and the alleged injury.

   No one factor is alone sufficient to give decisive guidance on the injury to domestic industry. Bi-ministerial Decision, Art. 30.

J. Threat of Injury

   The existence of injury caused by unfair trade practices will be determined based on proof positive and will include an objective examination of:

         1. Information on the entire industry of the product in question;

               1.1 The volume of imported products subject to unfair international trade practices, to determine whether there has been a considerable increase in that volume, in absolute terms or in relation to the country's domestic production and consumption;

               1.2 The prices of imports subject to unfair practices, to determine whether they are considerably lower than those of like products. Similarly, in order to determine whether the effect of such imports is to considerably lower prices or prevent the increase that would otherwise have occurred;

               1.3 The impact or potential impact on national producers of products similar to the imported ones, considering all the relevant factors and economic indexes that affect production and sales, such as marked and potential decreases, market share, return on investment, use of installed capacity; factors that impact on domestic prices, the actual and potential negative effects on employment, wages, growth, raising capital, profits, and other elements considered relevant.

         2. Information for determining the causal relationship between the imports and the alleged injury.

   None of the factors discussed above will alone give rise to a final directive on injury to national production.

   Determination of the existence of the threat of injury will be based on facts and not on mere allegations, conjecture, or remote possibilities. The threat of injury will be determined when such injury is imminent. For this purpose, the Technical Secretariat, in addition to evaluating the factors referred to in the preceding item, will consider, inter alia:

               2.1 The possibility of a substantial increase in imports while the product in question is being imported at dumping prices or subsidized under such conditions as a supplier's contract or winning a bid.

               2.2 An increase in the installed or used capacity in the exporting country.

K. Material Retardation

   "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.

L. Cumulation

   In investigating injury, the Technical Secretariat may accumulate contested imports coming from or originating in two or more countries subject to investigation for the purpose of assessing the volume and effect of these imports on the domestic industry, provided that the following requirements are met:

         1. The imported products are in competition with a like product made in Bolivia;

         2. the volume and share of the imports from each of the countries which it is intended to accumulate are representative.

   Imports from countries whose volume of imports is less than 1 percent of domestic consumption may be cumulatively assessed provided that the total imports from the countries in question represent more than 2.5 percent of domestic consumption.

   Bi-ministerial Decision, Arts. 33 and 34.

M. De Minimis Provision

1. Antidumping

   Margins of dumping less than 2 percent of normal value shall be disregarded. Art. 26.

   Imports whose volume is less than 1 percent of total domestic consumption shall be considered de minimis or negligible.

   Bi-ministerial Decision, Art. 33.

2. Countervailing

   Subsidies not exceeding 1 percent ad valorem shall be disregarded.

N. Margin of Dumping

   Margin of dumping is the amount by which the export price is less than the normal value, following a comparison at the same stage of the transaction, usually at the ex-factory level.

   The margin of dumping shall be calculated on the basis of a comparison between the weighted average normal value and the weighted average of the prices of all export transactions, or a comparison between the weighted average normal value and individual export prices, or by comparing the normal value and the various export prices on a transaction-to-transaction basis. Bi-ministerial Decision, Art. 26.

   When the price comparison requires a conversion of currencies, such conversion shall be made using the rate of exchange on the date of sale or of the transaction in the ordinary course of trade, except in cases of forward selling.

   Prices shall be calculated in the convertible currency in which the invoice has been made out or in American dollars. Temporary fluctuations in exchange rates shall be ignored. Art. 25.

O. Subsidy Rate

   An import is considered to be subsidized when the production, manufacture, transport, or export of the imported good or its raw materials or inputs has directly or indirectly received any bonus, aid, award, or subsidy in the country of origin or the exporting country. This shall also apply to subsidized goods marketed on the international market, which cause distortions in prices relative to production costs and impose international prices that cause other countries to export at prices directly affected by these circumstances.

   When multiple exchange rates for commercial and financial transactions in the country of origin or of export have the effect of a subsidy, such rates shall be deemed to be subsidies.

         a. Capital investment by governments which is inconsistent with the usual investment practice of private investors in Bolivia (including for the provision of risk capital).

         b. Government loans shall be deemed to confer a benefit when there is a difference between the amount paid by the enterprise receiving the loan and the amount it would have to pay on a comparable commercial loan actually obtainable on the market.

   In such cases, the benefit shall be the difference between the two amounts.

         c. A loan guarantee granted by the government when there is a difference between the amount which the firm receiving the guarantee pays on a loan guaranteed by the government and the amount it would have paid on a commercial loan without government guarantee. In such cases, the benefit shall be the difference between the two amounts.

         d. The existence of multiple foreign exchange rates applying to commercial and financial transactions, so as to confer a benefit in the country of origin or exports.

         e. The provision by a government of goods and services at prices lower than those corresponding to normal remuneration or government purchase of goods at prices higher than those corresponding to adequate remuneration.

   Adequate remuneration shall be determined in relation to the prevailing market conditions for the goods or services concerned in the country of provision or purchase (including price, quality, availability, marketability, transportation and other conditions of purchase or sale). Bi-ministerial Decision, Art 28.

   The amount of the subsidy shall be calculated in monetary units on the basis of ad valorem per unit of the subsidized product.

IV. Steps of the Investigation

A. Petition Filing

   A self-initiated investigation may be undertaken by the Ministry when there is sufficient and positive evidence that supports the presumption of the existence of prejudice caused by imports at dumped or subsidized prices, so long as the investigation has the support of the affected domestic producers. A properly documented complaint shall contain at least the following:

         (a) name and domicile of the complainant and, where appropriate, of his legal representative in the case of legal persons;

         (b) the complainant's percentage of domestic production of the like product;

         (c) description of the goods imported;

         (d) export prices and normal value of the product forming the subject of the complaint when the latter relates to a dumping investigation;

         (e) any encouragement, incentive, bounty, subsidy or other help provided to the producer or exporter in the country of origin or of export, and the authority or agency providing such support, indicating where appropriate the applicable law and, where possible, the value or amount thereof and its impact on the price of the imported product and the price at which the subsidized product is imported, when the complaint concerns an investigation of subsidized imports;

         (f) volume imported, or to be imported, if known, indicating the relevant unit of measurement;

         (g) name and domicile of the persons who intend to import the product, if known, or of those who imported the product, and whether it was imported in one or several transactions, if known;

         (h) indication of the country or countries of origin and/or export;

         (i) name and domicile of known importers and exporters of the product specified in the complaint;

         (j) other information and data making it possible to presume the existence of an unfair foreign trade practice;

         (k) any elements which help to determine that, as a result of the introduction of the products in question into the domestic market, there is injury or threat of injury to domestic industry or the establishment of an industry is being hampered, including indicators of output, sales, utilization of installed capacity and profits trends over the previous three years;

         (l) an undertaking to submit the relevant documents to the investigating authority for verification of the information supplied;

         (m) other documents in support of the complaint;

         (n) a clear indication of which evidence and documents are deemed to be confidential, indicating the reasons why they should be treated as confidential and enclosing a non-confidential summary of such information. Bi-ministerial Decision, Art. 6.

B. Initiation of Investigation

   The MECE has 10 days in which to act upon a request to initiate an investigation.

   A preliminary view must be provided o the complaining party within this period.

   If the agency requests further information from the complaining party, that party has 20 days in which to provide it.

   The agency then has 20 days to review and evaluate the merits of the case as presented and if a positive finding results, the agency must launch a formal investigation through the issuance of a formal resolution (i.e., decision).

   The agency may initiate the procedure upon application by domestic producers or by any person accounting for a major proportion of the domestic industry, including trade and producers' associations, who consider themselves injured by imports of like products effected during the six (6) months prior to the application, or currently being effected, at dumped or subsidized prices. Bi-ministerial Decision, Art. 5.

C. Issuance of Questionnaire

   Within a maximum period of five (5) calendar days from the date of the Ministerial Decision to initiate an investigation, the Technical Secretariat shall forward basic questionnaires to the exporters or domestic producers and to diplomatic or consular representatives, requesting information on the case.

   The same time-limits shall apply to the dispatch of questionnaires subsequent to the preliminary determination. Bi-ministerial Decision, Art. 11.

D. Response to Questionnaire

   The communications accompanying the questionnaires shall indicate the time-limit within which the parties must return the questionnaires duly completed.

   This shall not exceed twenty (20) working days from the date of dispatch of the communication. Bi-ministerial Decision, Art. 11.

E. Preliminary Determination

1. Injury

   Within a maximum period of forty-five (45) working days from the date of dispatch of the questionnaires, the Technical Secretariat shall adopt a decision on the existence of the alleged unfair trade practice, the injury and the causal relationship between them.

   This determination may include the imposition of provisional duties, where necessary, and shall be the subject of a Ministerial Decision. Bi-ministerial Decision, Art. 12.

   Provisional duties may not be adopted sooner than forty-five working days from the dispatch of questionnaires. Art. 38.

2. Antidumping

   Within a maximum period of forty-five (45) working days from the date of dispatch of the questionnaires, the Technical Secretariat shall adopt a decision on the existence of the alleged unfair trade practice, the injury and the causal relationship between them.

   This determination may include the imposition of provisional duties, where necessary, and shall be the subject of a Ministerial Decision. Bi-ministerial Decision, Art. 12.

   Provisional duties may not be adopted sooner than forty-five working days from the dispatch of questionnaires. Art. 38.

3. Countervailing

   Within a maximum period of forty-five (45) working days from the date of dispatch of the questionnaires, the Technical Secretariat shall adopt a decision on the existence of the alleged unfair trade practice, the injury and the causal relationship between them.

   This determination may include the imposition of provisional duties, where necessary, and shall be the subject of a Ministerial Decision. Bi-ministerial Decision, Art. 12.

   Provisional duties may not be adopted sooner than forty-five working days from the dispatch of questionnaires. Art. 38.

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