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Compendium of Antidumping and Countervailing Duty Laws in the Western Hemisphere


Argentina

 

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

   Argentina has adopted the WTO Agreements and amended its legislation by Law 24.425 of 5/1/95.

   Argentina has adopted the WTO Agreements and amended its legislation by Law 24.425 of 5/1/95. Because of this, the dispositions of these Agreements are directly applied. Procedural aspects exist which are regulated by Decree 2121/94, as long as this does not contradict the dispositions of the Agreements. Because Decree 2121/94 regulates the codes for Tokyo Round (Law 24.176), it has limited application and the approval of a new regulation is pending.

   To correctly interpret Argentina's standards, the specific article of the Agreements must be complemented - as previously indicated the Agreements are part of national law - with the article of the Decree 2121/94 where it corresponds.

C. Regulations

   Argentina has adopted the WTO Agreements by Law 24425 published in the Boletin Oficial No. 28.054/1st Section (at page 3) on January 5, 1995, concerning Article VI on Anti-dumping and in the Boletin Oficial No. 28.054/1st Section ( page 55) concerning Subsidies and Countervailing Duties.

D. Administrative Practice, Handbook or Guide

   The National Commission of Foreign Trade (CNCE) has the authority under Article 14 of Decree 766/94 to approve and publish guides and detailed instructions for investigations to inform the public and interested parties of the methods and features of its analyses and investigations.

   Resolution 02/96 of July 24, 1996 dictates the same. Furthermore, the Industry and Trade Secretariat Resolution NE 349 of November 12, 1991 which established the requirements of the complaint for dumping or subsidies. The NCFT also created a summary of the standards applicable to the investigations in the publication of its Annual Report.

II. Authorities Responsible for Conducting Investigations

A. Injury

   The National Commission for Foreign Trade is a decentralized agency of the Secretariat of Industry, Trade and Mining of the Ministry of Economic an other Public Works, which is the authority responsible for conducting investigations and analysis of injury to domestic production. (Decree No. 766/94, Arts. 1 and 3).

   The Commission is directed by a Board whose Members hold the rank of Under-Secretary and which consist of one Chairman and four Members who are appointed by the National Executive Power on the recommendation of the Ministry of the Economy and Public Works and Services. (Decree No. 766/94, Art. 5).

   Members serve a term of four years which may be renewed. (Id.)

   Members of the Board of the Commission must be Argentine citizens and have the appropriate qualifications, professional background and experience in economics, law and foreign trade. (Decree No. 766/94, Art. 6).

   The Commission can, as necessary, engage specialists or special consultants to supplement its permanent technical team and conclude technical cooperation agreements with bodies in the country or abroad, specializing in areas related to its functions. (Id., Art. 15).

   Decisions on investigations are adopted by the Board of the Commission by a majority vote of the Board in meetings convened with all members present. (Id., Arts. 11 and 19).

   In case of a tie vote, the Chairman's vote counts double. (Id., Art 11).

B. Antidumping and Countervailing Duties

   The Minister of the Economy and Public Works and Services is responsible for making decisions regarding the imposition of anti-dumping and countervailing duties. (Decree 2121/94, Art. 35(a) and Decree 704/95).

   Anti-dumping and countervailing duty investigations are initiated and conducted through the Under- Secretariat for Foreign Trade a subsidiary of the Secretariat for Trade, Industry and Mining of the Ministry of the Economy and Public Works and Services. (Id., Art. 36).

III. Methodologies/Definitions

A. Like Product

   The WTO standards cited in the sub-paragraph are applied. Decree 2121/94 is of supplementary application.

B. Domestic Producers

   The cited WTO standards are applied. Decree 2121/94 is of supplementary application in this subject.

C. Standing

   The WTO standards cited regarding the standing percentages are applied. Decree 2121/94 is of supplementary application in this subject. The National Commission of Foreign Trade must apply to the petitioner within the ten days required by the Foreign Trade Under Secretariat (Decree 2121/94, art. 36). Before initiating the investigation, the competent authority must conclude consultations with the domestic producers in order to determine the existence of sufficient cause for the launching of an investigation (Decree 2121/94, art. 39).

D. Polling

   The cited WTO standards are applied.

E. Normal Value

   The cited WTO standards are applied.

   Decree 2121/94 is of supplementary application in this subject as long as it does not contradict with the Agreement's provisions.

F. Calculation of Cost of Production

   The cited WTO standards are applied. Decree 2121/94 is of supplementary application in this subject, as long as it does not contradict the Agreement's provisions.

G. Export Price

   The cited WTO standards are applied. Articles 21, 22 and 23 of Decree 2121/94 are of supplementary application in this subject, as long as it does not contradict the Agreement's provisions.

H. Export Price - Adjustments

   The cited WTO standards are applied. Articles 24, 25, 26, 27, and 28 of Decree 2121/94 are of supplementary application in this subject, as long as it does not contradict with the Agreement's provisions.

   In order to achieve a fair comparison between the export price and the price in the domestic market of the country of origin or export, the two prices are compared at the same level of trade, normally at the ex- factory level, and on the basis of sales made at the nearest possible date. Due allowance is made in each case for differences in conditions and terms of sale, taxation and other differences which affect price comparability (Decree 2121/94, art. 24).

   When there are variations in both the export prices and the prices in the domestic market of the country of origin then:

         (1) the normal value is established on a weighted average basis;

         (2) the export prices are normally compared with the normal value on a transaction-to-transaction basis, when the use of weighted averages would produce substantially different results from those of individual transactions;

         (3) sampling techniques are used to establish the normal value and export prices in cases where there are a large number of transactions. (Id., Art. 25).

   In order to carry out the comparison of values, adjustment should be made in accordance with the following provisions:

         (1) if a comparison of the normal value and the export price requires a conversion of currencies, the rate of exchange on the date of the operation used for the comparison is utilized. If the export is related to a sale in foreign currency on a forward market, the forward exchange rate is used; and

         (2) the implementing authority identifies the level of trade at which the sales took place as a basis for comparison of prices. (Id., Art. 26).

   When it is not possible to make a comparison at the same level of trade, the normal value is adjusted to correspond to the level of trade of the export price, taking into account the differences which normally exist between different levels of trade, such as

         (1) adjustments for physical differences in which the normal value of the like product should be adjusted in accordance with the specific value attributed to each difference found in the product under investigation;

         (2) adjustments for quantity discounts;

         (3) adjustments for financial costs of sales whereby the implementing included in the export price and applies that figure for the purpose of adjusting the normal value of the like product;

         (4) adjustments for guarantee costs whereby the implementing authority calculates an adjustment figure based on the costs actually incurred by the seller in complying with the guarantee requirements for goods sold and in accordance with the terms of the guarantees; and

         (5) adjustments for technical assistance costs. (Id).

   Discounts, rebates and other price reductions used in calculating the export price must be directly related to the operations to which they apply. (Id., Art. 27).

   In addition, the following amounts must be deducted from the direct export price:

         (1) any import duty payable in the Argentine Republic and any export duty payable in a foreign country in relation to the product under investigation;

         (2) costs incurred in preparing the product under investigation for transport to the Argentine Republic such as packaging costs, provided that such costs are not incurred in making sales in the country of origin or export; and

         (3) costs relating to the export and transportation of the product to the Argentine Republic and costs charged for the product's entry into the country, including transport, maintenance, insurance, loading and unloading and handling costs, and other unforeseen costs incurred from the commencement of transportation at the point of export until delivery to the buyer.

   These costs must have been included in the direct export prices to enable such deductions to be made. (Id., Art. 28).

I. Injury

   The cited WTO standards are applied. Articles 8 and 11 of Decree 2121/94 are of supplementary application in this subject, as long as it does not contradict with the Agreement provisions.

   A determination of material injury caused to domestic production is based upon positive evidence and involves an objective examination of:

         (1) the volume of the dumped or subsidized imports and their effect on prices in the domestic market for like products; and

         (2) the consequent impact of the dumped or subsidized imports on domestic producers of such products. (Decree No. 2121/94, Art. 8).

   With regard to the volume of the dumped or subsidized imports, the implementing authority considers:

         (1) whether there has been a significant increase in dumped or subsidized imports when examining import volumes, either in absolute terms or relative to production or consumption in the importing country; and

         (2) with respect to the effect of the dumped or subsidized imports on prices, whether the dumped or subsidized imports have been priced significantly lower than a like product of the importing country, or whether the effect of such imports is otherwise to depress prices to a significant degree or prevent price increases, which would have otherwise occurred, to the same degree.

   No one or several of these factors can give decisive guidance. (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 injury to the domestic industry of the like product.

   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).

J. Threat of Injury

   The cited WTO standards are applied. Article 9 of Decree 2121/94 is of supplementary application in this subject, as long as it does not contradict with the Agreement provisions. The competent implementing authority shall consider that there is a threat of material injury to a domestic industry when such threat is real and certain and when the injury is imminent.

   The implementing authority should take into account the following circumstances, while not excluding other possibilities:

         (1) an increase in the share of the imports under investigation in the domestic market even if there is not yet any material injury to the domestic industry;

         (2) overproduction, excess capacity or accumulation of inventories of the product under investigation in the country of origin or export, which may possibly be exported to the Argentine Republic; and

         (3) accumulation in the Argentine Republic of the product under investigation, even if they have not been sold in the country. (Decree No. 2121/94, Art. 9).

   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 threat of material injury to the domestic industry of the like product.

   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).

K. Material Retardation

   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).

L. Cumulation

   The standard of the Agreement is applied directly.

M. De Minimis Provision

1. Antidumping

   The definition of a de minimis dumping margin applied by the authorities is that which is defined in the Agreement.

   Furthermore, the Decree does provide that, if at any time during an antidumping investigation, the Secretariat for Trade, Industry and Mining of the Ministry of the Economy and Public Works and Services concludes that there is not sufficient evidence of dumping or injury, or that the margin of dumping or the volume of actual or potential imports are negligible, the investigation shall be terminated immediately. (Decree No. 2121/94, Art. 48).

2. Countervailing

   The definition of de minimis subsidy margin is the one contained in the Agreement.

   However, Article 48 of Decree 2121/94, provides that, if at any time during a subsidy investigation, the Secretariat of Trade, Industry, and Mining concludes that there is not sufficient evidence of subsidization or injury, or that the margin of subsidization or the volume of actual or potential imports are negligible, the investigation shall be terminated immediately.

N. Margin of Dumping

   The cited standards of the WTO are applied.

   In order to achieve a fair comparison between the export price and the price in the domestic market of the country of origin or export or, if applicable, prices to a third country, the two prices shall be compared at the same level of trade, normally at the ex-factory level, and in respect of sales made at as nearly as possible the same time.

   Due allowance shall be made in each case, on its merits, for differences in conditions and terms of sale, taxation and other differences which affect price comparability.

   In cases in which the export price must be constructed (either because there is no export price or the export price is deemed unreliable because of a link between the exporter and the importer or a third party), allowances should also be made for costs, including duties and taxes incurred between importation and resale, and for profits accruing. (Decree No. 2121/94, Art. 24).

   When there are variations in both the export prices and the prices in the domestic market of the country of origin:

         (a) the normal value shall generally be established on a weighted average basis;

         (b) export prices shall normally be compared with the normal value on transaction-to-transaction basis, when the use of weighted averages would produce substantially different results from those of individual transactions;

         (c) sampling techniques may be used to establish the normal value and export prices in cases where there are a large number of transactions.

O. Subsidy Rate

   The cited standards of the WTO are applied. Articles 2, 31, and 32 of Decree 2121/94 which are cited below, are of supplementary application on this subject, as far as it does not contradict with the Agreement's provisions.

   A subsidy is deemed to exist if there is a financial contribution by a government or a public body of the exporting country or country of origin, such that it confers a benefit on the producer or exporter. (Decree No. 2121/94, Art. 2).

   Such contributions exist if:

         (1) a government or public body provides a direct transfer of funds, such as grants or loans and equity infusions, or potential direct transfers of funds or liabilities, e.g., loan guarantees;

         (2) government revenue that is otherwise due is foregone or not collected;

         (3) a government provides goods or services other than general infrastructure or purchases goods; and

         (4) there is any form of income or price support. (Id.).

   Subsidization also occurs when the financial contribution comes from a private body which is used by a government or public body to effect contributions which do not differ in practice from those normally granted by government or public bodies. (Id.).

   In determining the value of the subsidy, the competent implementing authority shall distinguish subsidies which are specifically aimed at exports of the product under investigation, and subsidies aimed at the general export activity of the receiving company.

   In the latter case, the value of the subsidy shall be calculated by determining the relation between the general sales of the enterprise and the specific sales of the product under investigation.

   The competent implementing authority shall also determine the relation between the subsidy received and the sales made by the producer or exporter in the period for which the subsidy was granted. (Decree No. 2121/94, Art. 31).

   When the subsidy involves loans granted at rates of interest or terms more favorable than those that the beneficiary could obtain in a freely negotiated agreements with commercial banks in the market concerned, the competent implementing authority shall distinguish between short, medium, and long-term loans.

   The subsidy value of the short-term loans shall be determined on the basis of the provisions of Article 31, noted above.

   The subsidy value of medium- and long-term loans shall be determined using the most appropriate financial method for the purpose of establishing the real impact of the subsidy on the goods entering the Argentine Republic.

   Loans shall normally be considered short-term when the repayment period is less than 2 years. Any loan with a repayment period of 2 or more years shall be considered medium- or long-term.

   The competent implementing authority may consider loans with a shorter repayment period as medium or long-term if it is shown in good faith that the debtor's consistent practice is one of automatic renewal or extension of the repayment period to exceed a total of 2 years. (Id., Art. 32).

IV. Steps of the Investigation

A. Petition Filing

   The cited standards of the WTO are applied. Articles 37 and 38 of Decree 2121/94 which are cited below, are of supplementary application on this subject, as far as it does not contradict with the Agreement's provisions. Furthermore, the Secretariat of Industry and Trade NE 349 of November 12, 1991 Resolution that establish the contents of the person making the complaint because of dumping or subsidy is also applied.

   Applications for the initiation of an investigation concerning dumping or subsidies must be submitted by or on behalf of the domestic industry which believes itself to be affected by the alleged dumping or subsidization.

   The affected domestic industry must present sufficient evidence of the existence of dumping or subsidies, of the injury and the causal link between them. Interested parties must complete the application form established for the purpose by the implementing authority in order to enable the existence of the basic requirements for the opening of an investigation into dumping or subsidies to be ascertained. (Decree No. 2121/94, Art. 37).

   For the purpose of evaluating applications, interested parties must complete the application form established for the purpose by the competent implementing authority, in order to enable the existence of the basic requirements for the opening of an investigation into dumping or subsidies to be ascertained. (Id.).

   The competent authority shall notify the applicant of any error or omission in the application within 30 working days of its submission.

   The applicant shall have 15 working days from the date of notification to supply corrections.

   If the applicant does not supply the required corrections within that period, the application will be rejected without further proceedings. (Id, Art. 38).

B. Initiation of Investigation

   The cited standards of the WTO are applied. Articles 36, 37, 40, and 41 of Decree 2121/94 which are cited below, are of supplementary application on this subject, to the degree that they do not contradict the Agreement's provisions. Proceedings for the imposition of antidumping and countervailing duties are initiated through the Under Secretariat for Foreign Trade.

   Upon receipt of the application, the Under-Secretariat for Foreign Trade evaluates the formal admissibility of the application of whether the applicant is representative of the domestic industry within a period of 10 days, prior to which it is submitted to the National Commission for the latter to give its opinion.

   Once the conditions of admissibility are satisfied, the Under-Secretariat for Foreign Trade sends to the National Commission for Foreign Trade all elements of the application needed to determine the existence of injury. (Decree No. 2121/94, Art. 36).

   Once the formal admissibility of the application and the representative nature and legal capacity of the applicant have been established, the Under Secretariat for Foreign Trade and the National Commission must each decide on the grounds for opening the investigation within 35 days.

   Their conclusions are then submitted to the Secretary for Industry, Trade and Mining for a decision on the opening of the investigation which is decided upon within 10 days. (Id., Art. 37).

   The implementing authority has a time limit of 45 days from the date of acceptance of the application by the Under-Secretariat for Foreign Trade to decide on opening the investigation. (Id., Art. 40).

   The Secretariat for Trade, Industry and Mining of the Ministry of the Economy and Public Works and Services may in exceptional cases open the investigation ex officio when it has sufficient evidence to establish the existence of dumping or subsidization, injury and the causal relationship between the dumping or subsidization and injury. (Id., Art. 37).

   Once it has been decided to initiate an investigation, the implementing authority has a period of 10 days to publish its decision to open the investigation in the Boletin Oficial (Official Gazette).

   This notice must state the date of opening, the practice which is the subject of the investigation, the product under investigation, the country of origin or export, and any other information that the implementing authority considers appropriate. (Id., Art. 41).

C. Issuance of Questionnaire

   In general, the cited standards of the WTO are applied. Article 17 of Decree 766/94 and article 42 of Decree 2121/94 which are cited below, are of supplementary application on this subject, to the degree that they do not contradict the Agreement's provisions.

         1. Injury The Commission may require any data and information that it considers relevant to complete its investigation, in which case the provisions of Article 707 of the Customs Code apply. It may also carry out investigations in other countries when circumstances so require. (Decree No. 766/94, Art. 17).

         2. AD/CVD For purposes of the conduct of the investigation, the competent implementing authority may seek any information required by sending questionnaires to all interested parties. (Decree No. 2121/94, Art. 42).

D. Response to Questionnaire

   The cited standards of the WTO are applied. Article 42 of Decree 2121/94 which is cited below, is of supplementary application on this subject, to the degree that it does not contradict with the Agreement's provisions. The recipients of such questionnaires must reply, giving all the required information, within the time limit fixed by the implementing authority in each investigation.

   The time-limit for completing questionnaires must not be less than 30 days from the date of their receipt by the interested parties.

   Requests for extensions are granted whenever possible. (Decree No. 2121/94, Art 42).

E. Preliminary Determination

1. Injury

   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).

2. Antidumping

   The cited standards of the WTO are applied. Articles 49, 52 , and 54 of Decree 2121/94 which are cited below, are of supplementary application on this subject, to the degree that they do not contradict with the Agreement's provisions. 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).

3. Countervailing

   The cited standards of the WTO are applied. Articles 49, 52, and 54 of Decree 2121/94 which are cited below, are of supplementary application on this subject, to the degree that they do not contradict with the Agreement's provisions. 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).

Continues with Conduct Verification

 
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