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Compendium of Antidumping and Countervailing Duty Laws in the Western Hemisphere


  1. Steps of the Investigation

    1. Preliminary Determination


      a. Injury

      WTO Standard: None.

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

   Within four months from the opening of the investigation, the competent authority submits its conclusions concerning the application of preventive measures to the Minister for the Economy and Public Works and Services.

   If the investigations present unusual difficulties, the implementing authority can delay the submission of its conclusions to the Minister for an additional period of 2 months.

   Preventive measures cannot be applied prior to the preliminary determination of the existence of subsidization and injury to the domestic industry and a causal relationship between them by the competent implementing authority. (Decree No. 2121/94, Art. 49).

   Preventive countervailing duties are imposed only when the competent implementing authority determines that they are necessary in order to prevent injury to domestic producers, and their duration is subject to the limits fixed by Law No. 24.176. (Id., Art. 52).

   When a preliminary determination is issued by the Minister, the competent implementing authority notifies all of the interested parties of the grounds on which the determination is based.

   The interested parties have the opportunity to make known their views concerning the grounds for the preliminary determination up to 15 working days following the date of the determination. (Id., Art. 54).

Bolivia

   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.

Brazil

   See section on "Preliminary Antidumping Duties Determination".

Canada

   Pursuant to 38(1) of the Special Import Measures Act, when the Deputy Minister of National Revenue makes a preliminary determination of dumping or subsidizing, there must also be evidence that discloses a reasonable indication that the dumping or subsidizing has caused injury or retardation or is threatening to cause injury.

   A preliminary injury determination is normally issued within 90 days of an investigation's initiation.

   Pursuant to subsection 39(1), this 90-day period can be extended to 135 days in exceptional circumstances.

Chile

   If the petition seeks the imposition of provisional measures, the Commission shall issue a preliminary determination of dumping or subsidization, and of the consequent injury to the domestic industry. No provisional measures may be applied until 60 days have elapsed from the date of initiation of the investigation.

   Provisional measures may only be applied where:

         i) an investigation has been initiated pursuant to the provisions of article 5, public notice to this effect has been given, and the interested parties have been given adequate opportunity to submit information and observations;

         ii) a positive preliminary determination has been made with respect to the existence of dumping and consequent injury to the domestic industry, and the Commission deems that such measures are necessary to prevent further injury during the course of the investigation. (Supreme Decree No. 16, Ministry of External Relations, published in the Diario Oficial on May 17, 1995).

Colombia

   Within 65 calendar days, counted from the day following the date of publication of the order initiating the investigation, INCOMEX should, by reasoned order, set forth the preliminary results of the investigation and, if appropriate, may order the imposition of provisional duties.

   In no case may the preliminary determination be adopted beyond 60 calendar days after one day after publication of the order mandating the investigation. The order by which the preliminary determination is adopted shall be published the day after it is issued in the Gaceta of the Ministry of Foreign Trade, INCOMEX Chapter.

   Within seven days following its publication, a copy shall be sent to the member country or countries whose products are the subject of the determination or undertaking in question, as well as all other interested parties who have expressed their interest in the investigation and have provided their address.

   Whenever circumstances so merit, INCOMEX may extend the period indicated for the preliminary determination for up to one month, on its own initiative or at the request of an interested party.

   The documentation and information received in the 15 days prior to the expiration of the maximum term for the adoption of the preliminary determination, including its extension, may not be considered at this stage, but in any event shall be taken into account in completing the investigation.

   When INCOMEX deems it necessary, it shall send out new questionnaires after the preliminary determination within seven working days following the issuance of the order by which it adopts the preliminary determination; the interested parties should respond to them within a non-extendable period of 45 calendar days, counted from the date they are sent out by INCOMEX.

   The response should be accompanied by any supporting documentation and evidence as well as a list of the evidence they seek to have produced.

Costa Rica

   The authorities shall, before a final determination is made, inform all interested parties of the essential facts under consideration which form the basis for the decision whether to apply definitive measures.

   Such disclosure should take place in sufficient time for the parties to defend their interests.

   An Executive Decree elaborates as follows:

   The investigating authority will send a preliminary determination, affirmative or negative, of the existence of unfair trade practices and of the existence of injury, threat of injury or retardation of the establishment of a domestic industry.

   This determination will appear in an opinion issued by the investigating authority within sixty days of the start of the investigation.

Dominican Republic

Ecuador

   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.

El Salvador

   The Investigating Authority shall make a preliminary decision concerning the existence or nonexistence of unfair trade practices, and of injury, the threat of injury, or delay in the establishment of a national production branch.

   This decision shall be set forth in an opinion the Investigating Authority shall issue within 60 days after initiation of the investigation. (Article 13 of the Central American Regulations on Unfair Trade Practices).

Guatemala

   The Investigating Authority shall make a preliminary decision concerning the existence or nonexistence of unfair trade practices, and of injury, the threat of injury, or delay in the establishment of a national production branch.

   This decision shall be set forth in an opinion the Investigating Authority shall issue within 60 days after initiation of the investigation.

Honduras

   The Investigating Authority shall make a preliminary decision concerning the existence or nonexistence of unfair trade practices, and of injury, the threat of injury, or delay in the establishment of a national production branch.

   This decision shall be set forth in an opinion the Investigating Authority shall issue within 60 days after initiation of the investigation.

Jamaica

Mexico

   In accordance with the provisions of Article 57 of the Law, the investigating authority must hand down its preliminary decision within 130 working days beginning on the day after the decision to initiate the investigation has been published in the Official Daily Gazette of the Federation.

   It is in this decision that the investigating authority expresses the results of its preliminary determination of damage, and it is here that the determination of prices or of a subsidy is made.

Nicaragua

   The Investigating Authority shall make a preliminary decision concerning the existence or nonexistence of unfair trade practices, and of injury, the threat of injury, or delay in the establishment of a national production branch.

   This decision shall be set forth in an opinion the Investigating Authority shall issue within 60 days after initiation of the investigation.

Panama

   During the period of the investigation, the Tribunal, by means of a reasoned ruling, may order provisional measures to prevent imminent injury or harm to the domestic industry or production sector concerned that would be difficult to remedy, provided that it is determined that the imports characterized by unfair trade practices are causing or threaten to cause significant injury or harm.

   The reasoned ruling will include the arguments used and evidence submitted by the complainant and the reasons in favor of applying provisional measures.

   The provisional measures will not be applied until 60 calendar days after the date of the ruling ordering the procedure.

   The provisional measures shall consist of provisional countervailing or anti-dumping duties.

   Both types of provisional measures will not be used simultaneously to solve a single given situation resulting from subsidies or dumping. Application of the provisional measures will consist of the payment, by the importer, of a guarantee deposit in accordance with the procedures established by the Director-General of Customs of the Ministry of Finance and Treasury.

   The amount of the guarantee may not exceed the subsidy or dumping margin calculated on a provisional basis. The duration of the provisional measures may not exceed four months in the case of subsidies, and six months in the case of dumping. (Article 158, 159 & 160).

Paraguay

   Within a period not to exceed 90 calendar days from the date the investigation is initiated, the Ministry of Industry and Commerce may recommend to the Ministers of Industry and Commerce, and of the Treasury, that provisional measures be imposed if, according to their conclusions, it is necessary to prevent additional injuries to the domestic industry during the course of the investigation.

   The Ministers of Industry and Commerce and of the Treasury shall decide within the next 15 calendar days whether to impose provisional measures by a justified bi-ministerial resolution.

   Said resolution shall be reported to the interested parties and published in the Official Gazette.

   If in the view of the Ministry of Industry and Commerce circumstances so merit, the 90-day period referred in the previous section may be extended for up to an additional 30 calendar days.

   The imposition of provisional measures may only be ordered if a positive preliminary determination is first reached that the increase of imports or existence of imports that are dumped or subsidized have caused injury to the national production in the terms established in this Decree. In no case may provisional measures be imposed before 60 calendar days have elapsed, counted from the publication by which the investigation is initiated.

   The provisional measures shall consist of provisional anti-dumping or countervailing duties expressed as a percentage ad valorem or calculated from a baseline price. Based on the determination of the Ministry of Industry and Commerce, and of the Treasury, the demand for the provisional duty may be suspended until the final determination is made, in which case the importer should provide a guarantee by bond or bank guarantee to pay the duty in full.

   The provisional measure may not exceed the margin of dumping provisionally estimated.

   Its enforcement may not exceed four calendar months.

   Nonetheless, in the case of investigations into dumping, if exporters who represent a significant part of the trade in the product in question so request, that time period may be six or nine months when examining enforcement of a duty that is less in extent than the margin of dumping, to eliminate the injury.

Peru

   In cases in which any interested party refuses access to, or otherwise does not provide, necessary information within the time-limit fixed or significantly impedes the investigation, the Commission may decide to apply provisional or definitive duties pursuant to Article 6.8 of the Anti-Dumping Agreement and 12.7 of the Subsidies Agreement. The form and amount of the provisional measures shall be regulated by the relevant provisions of the sole amended text of the Code of Civil Procedure.

Santa Lucia

Trinidad and Tobago

   Within three months after an investigation has been initiated, the Minister must make a preliminary determination on the basis of the information made available during the investigation. (Sec. 24(1)).

   The preliminary determination must be published in the Gazette. (Sec. 24(2) and Sec. 32(c)).

   A notice of the Authority's preliminary determination must be given to the Government or Governments of the country or countries of the export of goods, the exporters and importers known by the Authority to have an interest in the subject goods, the complainant, and if necessary, the Government of the third country on behalf of whom the Minister is taking action. (Sec. 32).

   If the Minister determines that such action is necessary to prevent material injury being caused during the period of investigation, then the Comptroller will be given notice that payment of provisional duty in respect to the subject goods should be made or secured by a bond, or by a deposit of cash. (Sec. 25(2)).

   At any time before the preliminary or final determination and upon the recommendation of the Authority where the Minister is satisfied that there is insufficient evidence of dumping, subsidizing or injury, then the Minister may direct the Authority to terminate the investigation and give notice of termination. (Sec. 23(2)).

   The Authority may suspend or terminate an investigation upon receipt of a written request on behalf of an industry at whose instance the investigation was initiated or where the margin of dumping or the amount of subsidy on the goods or the actual or potential volume of dumped or subsidized goods is negligible. (Sec. 23(5)).

United States

   The ITC must determine within 45 days after the date on which the petition is filed whether there is a "reasonable indication" that a U.S. industry is materially injured or threatened with material injury by reason of allegedly dumped or subsidized imports of the subject merchandise.

   If Commerce has extended the period for initiation in order to poll the industry to determine standing, then the ITC must make its preliminary injury determination no later than 25 days after the date on which the ITC receives notice of the Commerce Department's initiation.

   The determination is accompanied by written views explaining the basis for the determination.

   If the ITC makes a negative preliminary determination, or if it finds imports to be negligible, the investigation is terminated, including the Commerce Department's investigation of dumping and/or countervailable subsidies".

Uruguay

   Provisional anti-dumping measures may be applied only if:

         (a) An investigation has been initiated in accordance with the provisions of Section II of this Chapter and interested parties have been given adequate opportunities to submit information and make comments;

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

         (c) such measures are judged necessary to prevent injury being caused during the investigation; and

         (d) at least 60 days have passed since the date of initiation of the investigation.

   The amount of the provisional anti-dumping measure may not be greater than the provisionally estimated margin of dumping. The provisional measures shall take the form of a provisional duty or, preferably, a security consisting of a cash deposit in the Banco de la Republica Oriental del Uruguay or in the Banco Hipotecario del Uruguay, at the discretion of the depositor, in the joint name of the latter and the Ministry of Economy and Finance, or of a bank guarantee in favour of the aforementioned Ministry, for a sum equal to the amount of the anti-dumping duty provisionally assessed.

   The implementing authority shall, where appropriate, give its opinion concerning the appropriateness of applying provisional measures and their amount, immediately referring the proceedings to the Advisory Committee established under Article 3.

   The interministerial resolution ordering the application of provisional measures shall be notified to the interested parties participating in the investigation and published in the Official Journal.

   Customs clearance of goods subject to provisional anti-dumping measures shall depend on the payment of the duties or the provision of the guarantee, as appropriate.

   Provisional measures shall be applied for not more than four months or, upon request by exporters of the product under investigation representing a significant percentage of the trade involved, for not more than six months. Requests for the extension of the period of application of provisional measures must be submitted to the implementing authority by exporters not less than 30 days before the expiry of the period in question.

   When in the course of an investigation it is concluded that a provisional measure less than the margin of dumping would be sufficient to remove injury, the periods specified in the preceding Article may be six and nine months respectively.

Venezuela

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