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Compendium of Antidumping and Countervailing Duty Laws in the Western Hemisphere


(Continuation)

Ecuador

 

C. Issuance of Questionnaire

   The investigating authority shall prepare three types of forms to be issued to domestic producers and importers and to foreign exporters of the product under investigation, in the following order:

         (a) To domestic producers before the application is submitted or after the application has been submitted without attaching the respective forms;

         (b) to domestic importers and to foreign exporters once the application has been accepted and the resolution to initiate an investigation has been issued.

   The forms, duly completed and with the relevant documents demonstrating that the information is suitable, shall be transmitted to the investigating authority within thirty (30) days from the date of issue. The period for returning the forms may, at the request of the interested party, be extended by the investigating authority for thirty (30) days, provided there is good reason.

D. Response to Questionnaire

   The forms, duly completed and with the relevant documents demonstrating that the information is suitable, shall be transmitted to the investigating authority within thirty (30) days from the date of issue. The period for returning the forms may, at the request of the interested party, be extended by the investigating authority for thirty (30) days, provided there is good reason.

E. Preliminary Determination

1. Injury

   Within sixty (60) days of the initiation of a dumping or subsidies investigation, MICIP, through the investigating authority, shall prepare a technical report determining, where appropriate, the level of any provisional anti-dumping or countervailing measures and shall submit it to COMEXI for approval. Provisional measures may be applied if:

         (a) An investigation has been initiated in accordance with Articles 17 and 18 of this Resolution, a public notice has been given to that effect and interested parties have been given adequate opportunities to submit information and make comments;

         (b) a preliminary affirmative determination has been made of dumping or subsidies and consequent injury to a domestic industry; and

         (c) the competent authority judges such measures necessary to prevent injury being caused during the investigation. The period allowed for the preliminary determination may be extended by up to five (5) working days, ex officio or upon application by an interested party, provided there is good cause.

   The provisional anti-dumping or countervailing duties shall be applied through the same resolution as that adopting the preliminary determination, which may opt for any of the following decisions: To continue the investigation without the application of provisional duties, to continue the investigation with the application of provisional duties, or to terminate the investigation.

   When a dumping or subsidies investigation is carried out for products originating in or consigned from countries not Members of the World Trade Organization (WTO) or countries with which no relevant treaties or agreements have been signed, COMEXI, on the basis of the technical report of MICIP's investigating authority, may impose provisional measures. The decision to impose preliminary measures shall be adopted through a COMEXI resolution, on the basis of MICIP's technical report, and shall include the factual and legal grounds for the decision. In the case of dumping, the provisional measures may take the form of a provisional duty or a security by cash deposit or bond equal to the amount of the anti-dumping duty provisionally estimated. In the case of subsidies, the provisional measures may take the form of provisional countervailing duties guaranteed by cash deposits or bonds equal to the amount of the provisionally calculated amount of subsidization.

   Duty shall be paid on imports of the products subject to investigation, irrespective of the importer. The payment of provisional duties may be replaced by a bond or security posted in the form and subject to the conditions laid down in the customs legislation.

   The application of provisional measures shall be limited to as short a period as possible, not exceeding four months or, on decision of the authorities concerned, at the request of exporters representing a significant percentage of the trade involved, to a period not exceeding six months.

   When the investigating authority, in the course of an investigation, examines whether a duty lower than the margin of dumping would be sufficient to remove injury, these periods may be six or nine months, respectively. The resolution determining the provisional measure shall be notified to the Customs Technical Committee by the Ministry of Foreign Trade, Industrialization and Fisheries, for information and implementation. An investigation shall be terminated if the investigating authority determines that the volume of dumped or subsidized imports is negligible or if the margin of dumping or the global level of subsidization is de minimis, or if the injury caused by the imports in question is negligible.

   For such purposes, the criteria set out in Article 36 [sic] of this Resolution shall apply.

2. Antidumping

   Same as in previous section.

3. Countervailing

   Same provisions as in the previous section.

F. Conduct Verification

1. Antidumping

   The investigating authority is authorized to visit offices or premises where information relating to the case is to be found and to check and verify the contents of the documentation and the evidence submitted in the course of the investigation. These visits shall include trips to domestic producers and importers of the products subject to investigation and to producers and exporters of the country of origin or exportation, for the purpose of verifying the content and truthfulness of the information furnished by the parties, provided that the enterprises investigated or the interested parties agree thereto.

   The enterprises of the exporting country concerned shall be given sufficient notice of the visit, together with details of the information to be verified.

   If agreement cannot be obtained, the investigating authority shall take its decisions on the basis of the best information available. The results of the on-the-spot investigation must be recorded, in summary form, in minutes signed by the parties concerned.

2. Countervailing

   Same provision as in previous section.

G. Hearings

1. Antidumping

   At any stage of the investigation, the investigating authority, ex officio or upon application by an interested party, may request the holding of public hearings attended by representatives of the different interests, for the purpose of clarifying doubtful, obscure or controversial points. Once convened, a hearing must be held within the next eight (8) days, but the fact that it is being held shall not interrupt or suspend the course of the investigation or the periods specified for its various stages. Once a hearing has been opened, a representative of the investigating authority shall put forward for discussion the items he considers necessary, together with the evidence submitted by the applicant.

   Subsequently, he shall act as moderator and give the floor to the importers, foreign exporters, domestic producers, industrial users of the product investigated and the consumers or their delegates, in that order. Each party shall have the floor in turn, twice with respect to the evidence submitted by the other parties. At these hearings the rules of confidentiality laid down in this Decree must be respected. The conclusions of the hearing shall be recorded in minutes which shall be signed by the Head of the Trade Practices and Safeguards Division and by the parties involved.

2. Countervailing

   Same provisions as in previous section.

H. Briefs

I. Final Determinations

   Up to ten (10) working days before the expiration of the period for the investigating authority to terminate the investigation, the interested parties may submit written arguments that support their case. Once this period has expired, no further documents, reports or evidence may be introduced. Once the period for concluding arguments has expired and before the expiration of the investigation period, the investigating authority, on the basis of the evidence and information in the file, shall draw up the conclusions of the investigation and submit them to COMEXI for decision. The definitive decision adopted by COMEXI shall consist in:

             
  • The imposition of anti-dumping or countervailing measures and the determination of the amount;
             
  • the withdrawal of the provisional measures; and/or
             
  • the termination of the investigation without the imposition of anti-dumping or countervailing measures.

   COMEXI shall have a maximum of fifteen (15) working days from the receipt of the report to adopt a definitive decision. The decision adopted by COMEXI shall be notified by the Ministry of Foreign Trade, Industrialization and Fisheries to the Customs Technical Committee, for information and implementation. The resolution must contain the factual and legal basis for the decision and shall be published in the Official Journal and notified to the interested parties within five (5) working days of publication.

J. Maximum Length of Investigation

   The investigating authority shall have a maximum of twelve (12) months from the submission of the application to carry out a dumping or subsidies investigation and to submit a report, containing its conclusions and recommendations, to COMEXI. Exceptionally, by decision of the investigating authority, this period may be extended by six (6) months.

K. Maximum Duration of Antidumping and Countervailing Duty Orders

   An anti-dumping or countervailing duty shall be automatically eliminated five (5) years after its imposition, unless the reasons for imposing it still exist.

L. Retroactivity

   The retroactive application of definitive duties may be ordered in the following cases:

         1) On massive imports entered between the date of initiation of the investigation and the date of application of provisional duties, subject to a maximum of ninety (90) days.

   The existence of massive imports shall be determined by taking into account import trends during the above-mentioned period as compared with the trend over a period of three years prior to the date of initiation of the investigation or the invitation to hold consultations.

   Moreover, in each particular case the size of the market for the product investigated and other circumstances, such as a rapid build-up of inventories of the imported product, shall be taken into consideration.

         2) In the case of massive imports envisaged in the previous paragraph, countervailing duties may be imposed only on products which receive subsidies paid or granted in a manner inconsistent with the provisions of the WTO Agreement on Subsidies and Countervailing Measures.

   Similarly, anti-dumping duties on massive imports may be imposed when the investigating authority determines for the dumped product in question that there is a history of dumping which caused injury or that the importer was, or should have been, aware that the exporter practiced dumping and that such dumping would cause injury.

         3) On imports entered during the ninety (90) days preceding the establishment of provisional duties, in the case of non-fulfillment of undertakings given in connection with statements of intent.

   The period of application shall not exceed the duration of the period of non-fulfillment.

M. Best Information Available (or "Facts Available")

   In the course of the investigation all decisions shall be taken on the basis of the best information available. When the investigating authority requires the participation of the applicant or an interested party in order to verify information provided for the investigation in good time and in proper form, it shall inform him thereof in advance.

   If he does not agree to verification, the information provided by the other party shall be deemed to be correct, unless there is evidence to the contrary. During the investigation period any interested party may submit its arguments, together with evidence which, in its opinion, supports those arguments.

N. Consumers as Interested Parties

   Interested parties shall be understood to mean the applicant, a producer of the like product in Ecuador, a trade or business association the majority of the members of which are producers of the like product in Ecuador, an importer, industrial user and consumer of the product under investigation, a foreign exporter or producer, the government of the exporting country, a trade or business association the members of which are exporters or importers of the product.

O. Public Interest

1. Antidumping

2. Countervailing

P. Undertakings or Commitments

   The competent authorities of the country of origin or export or the producers or exporters may express, through the investigating authority, their intention to eliminate or limit the subsidy, revise the export prices or cease exports to Ecuador, as appropriate, so that the injury caused to the domestic producers is removed. The investigating authority may also propose to the interested parties that they submit statements of intent.

   Price undertakings shall not be sought or accepted unless the investigating authority has made a preliminary affirmative determination of dumping or subsidization and of injury caused by such practices. In the case of subsidies, the consent of the authorities of the exporting country shall be required with respect to undertakings from exporters.

   The statements of intent must provide the necessary information and expressly authorize the investigating authority to carry out on-the-spot investigations to verify that the undertakings are being respected. When statements of intent are submitted, the investigating authority shall inform the interested parties of their contents. To this end, the investigating authority shall make available to the parties the documents containing the proposals submitted for a period of five (5) working days from the date of notification.

   When this period has expired, the parties shall have an equal period to submit their comments in writing. At the end of this period, COMEXI, on the basis of the technical report submitted by MICIP, shall accept or reject the offers, in accordance with the country's best interests. If a statement of intent is accepted, COMEXI shall issue a reasoned resolution empowering the investigating authority, in the event of non-fulfillment, immediately to re-establish the collection of provisional duties, where appropriate, and to continue the investigation proceeding. The resolution accepting a statement of intent shall be published in the Official Journal and notified to the interested parties. Statements of intent submitted more than twenty (20) working days after the date of the preliminary determination shall not be accepted. The investigating authority may periodically review the undertakings given, either ex officio or upon application by a party. Up to fifteen (15) working days before the expiration of the period for completing the investigation, the interested parties may request the investigating authority to hold a public hearing at which formulas for settling the dispute and terminating the investigation may be proposed.

   If the formulas proposed are acceptable, the investigating authority shall adopt them by means of a resolution and terminate the investigation. The corresponding resolution shall be published in the Official Journal and notified to the interested parties. Requests for conciliation meetings received more than twenty (20) working days from the date of the preliminary determination shall not be considered.

V. Review of Antidumping and Countervailing Duty Determinations

A. Annual Reviews

   After the first year of imposition of definitive duties, the investigating authority may, ex officio or upon application by an interested party, order the investigation to be reopened in order to review the duties, if it considers that the conditions which led to their being imposed have changed.

   The resolution ordering the investigation to be reopened shall be equivalent to that adopting the preliminary decision.

   The period between the resolution on reopening and the resolution adopting a new termination of the investigation shall not exceed five (5) months.

   Any anti-dumping or countervailing duties that have been imposed shall be applied in full until the investigation is terminated.

B. Duty Refund Review

C. Sunset Review

   An anti-dumping or countervailing duty shall be automatically eliminated five (5) years after its imposition, unless the reasons for imposing it still exist. The customs shall apply the duties in accordance with the resolution imposing them, taking into account the provisions relating to the collection and the procedures applicable to the levying of customs duties. In any event, an anti-dumping or countervailing duty shall remain in force only as long as and to the extent necessary to counteract the dumping or subsidy which is causing injury.

D. Changed Circumstances Review

E. New Shipper Review

1. Antidumping

2. Countervailing

3. Judicial, Administrative or Other Review

   Appropriate legal action may be taken in the competent administrative courts against definitive decisions determining whether or not anti-dumping or countervailing duties should be applied.

F. Procedures for Due Process

1. Notification of Initiation of Investigation

   Both for dumping and for subsidization, once the application has been accepted and it is appropriate to initiate an investigation, the investigating authority shall proceed to publish the resolution initiating the dumping or subsidization investigation in the Official Journal, expressly indicating the dates of initiation and completion of the investigation.

   The resolution shall be notified to the Committee on Anti-Dumping Practices and the Committee on Subsidies and Countervailing Measures of the World Trade Organization when the country concerned is a member of the Organization, to the Government of the exporting country and to the interested parties. The same procedure shall be followed when the investigating authority orders provisional and definitive measures to prevent and remedy the unfair trade practices. Furthermore, the resolutions shall be published in a newspaper with a large circulation in Ecuador, for the information of all those concerned.

   For publication, notification and communication purposes, the investigating authority shall have a period of ten (10) working days from the date of the resolution ordering the initiation of investigation and to the application of provisional or definitive measures. The authorities shall avoid, unless a decision has been made to initiate an investigation, any publicizing of the application for the initiation of an investigation. The WTO Committee on Anti-Dumping Practices and the Committee on Subsidies and Countervailing Measures, as appropriate, shall be notified before the measure is published.

   When an Ecuadorian producer or exporter is aware that an investigation of his products for dumping, subsidies or safeguards has been initiated abroad, he may call upon the investigating authority of the Ministry of Foreign Trade, Industrialization and Fisheries for technical and legal assistance in defending his interests. The technical and legal assistance shall include guidance and collaboration in obtaining information, advice on the completion of forms and questionnaires, assistance in the event of on-the-spot investigations by foreign authorities and, in general, any help which the Ministry of Foreign Trade, Industrialization and Fisheries, through its investigating authority, is able to provide.

2. Questionnaires (Distribution, Response Time, Extensions, Supplements)

   The investigating authority shall prepare three types of forms to be issued to domestic producers and importers and to foreign exporters of the product under investigation, in the following order:

         (a) To domestic producers before the application is submitted or after the application has been submitted without attaching the respective forms;

         (b) to domestic importers and to foreign exporters once the application has been accepted and the resolution to initiate an investigation has been issued.

   The forms, duly completed and with the relevant documents demonstrating that the information is suitable, shall be transmitted to the investigating authority within thirty (30) days from the date of issue. The period for returning the forms may, at the request of the interested party, be extended by the investigating authority for thirty (30) days, provided there is good reason. If, after a period of 45 days from the request for further information such information has not been sent in its entirety, the applicant will be deemed to have withdrawn the application, which shall be shelved.

3. Publication of Antidumping and Countervailing Duty Determinations

   The decision adopted by COMEXI shall be notified by the Ministry of Foreign Trade, Industrialization and Fisheries to the Customs Technical Committee, for information and implementation. The resolution must contain the factual and legal basis for the decision and shall be published in the Official Journal and notified to the interested parties within five (5) working days of publication.

4. Access to Public Information

   During the investigation the interested parties shall have access to information of a general nature and documents which are not confidential, as well as to summaries or analyses of the evidence.

5. Access to Confidential Information

   Information shall be considered confidential if its disclosure or publication might injure the competitive position of the enterprise concerned.

   A separate file, which may be inspected only by the competent authorities, shall be opened for confidential information provided by the applicant, other interested parties or the authorities. When confidential information is introduced into the investigation, it must be accompanied by a non-confidential summary. If the investigating authority considers that the documentation introduced as confidential does not warrant that description, it shall request the provider of the information to waive confidentiality.

   If the provider refuses to waive the confidentiality of the information without good cause, the investigating authority may disregard such information for the purposes of the investigation, just as when confidential information is provided without a non-confidential summary. Access to confidential information shall be restricted to the competent authorities in the exercise of their functions, in the course of which confidentiality must be duly maintained.

6. Decision Making Process (Ministerial Approval, Commission Vote, etc.)

G. Application and Collection of Duties

1. Suspension of Liquidation

2. Use of Bonds or Cash Deposits

   In the case of dumping, the provisional measures may take the form of a provisional duty or a security by cash deposit or bond equal to the amount of the anti-dumping duty provisionally estimated.

   In the case of subsidies, the provisional measures may take the form of provisional countervailing duties guaranteed by cash deposits or bonds equal to the amount of the provisionally calculated amount of subsidization. Duty shall be paid on imports of the products subject to investigation, irrespective of the importer. The payment of provisional duties may be replaced by a bond or security posted in the form and subject to the conditions laid down in the customs legislation.

3. Methods of Liquidation

   The whole amount paid or the overpayment shall be refunded to the importer, as promptly as possible, or the security shall be returned or only partially collected when: Upon the termination of the investigation it is concluded that there are no grounds for levying definitive anti-dumping or countervailing duties, or when it is concluded that the margin of the definitive anti-dumping or countervailing duties should be less than the amount of the provisional duties.

   Any refunds shall be made by the customs authority in accordance with the procedures established for that purpose. If the definitive anti-dumping or countervailing duty is greater than the provisional duty paid or payable or the amount estimated for the purpose of determining the security, the importer shall not be required to pay the difference. When the decision to impose definitive measures is based on the existence of threat of injury or material retardation (the injury not yet having occurred), definitive anti-dumping or countervailing duties may be established only from date of determination of the existence of threat of injury or material retardation in the establishment of a domestic industry and the provisional duties shall be refunded and the corresponding security released.

H. Other

1. Anti-Circumvention

   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.

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