Compendium of Antidumping and Countervailing Duty Laws
in the Western Hemisphere
- Methodologies/Definitions
- Margin of Dumping
WTO Standard: A fair comparison shall be made between the export price and the normal value. . . . (AD Agreement, Art. 2.4)
When the comparison [...] requires a conversion of currencies, such conversion should be made using the rate of exchange in effect on the date of sale (footnote omitted), provided that when a sale of foreign currency on forward markets is directly linked to the export sale involved, the rate of exchange in the foreign sale shall be used. Fluctuations in exchange rates shall be ignored and in an investigation the authorities shall allow exporters at least 60 days to adjust their export prices to reflect sustained movements in exchange rates during the period of investigation. (AD Agreement, Art. 2.4.1)
Subject to the provisions governing fair comparison [...], the existence of margins of dumping during the investigation phase shall normally be established on the basis of a comparison of a weighted average normal value with a weighted average of prices of all comparable export transactions or by a comparison of normal value and export prices on a transaction-to-transaction basis. A normal value established on a weighted average basis may be compared to prices of individual export transactions if the authorities find a pattern of export prices which differ significantly among different purchasers, regions or time periods, and if an explanation is provided as to why such differences cannot be taken into account appropriately by the use of a weighted average-to-weighted average or transaction-to-transaction comparison. (AD Agreement, Art. 2.4.2)
Argentina
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.
Bolivia
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.
Brazil
The margin of dumping is the amount by which the normal value exceeds the export price. (Dec. 1602/95 - Art. 11).
The regulation requires that a fair comparison be made between the export price and the normal value, at the same level of trade, normally ex-factory, and in respect to sales made as nearly as possible at the same time.
The interested parties in questions (i.e., subject to investigation) shall be informed of the type of information necessary to assure a fair comparison.
An unreasonable burden of proof shall not be imposed on the interested parties. (Dec. 1602/95 - Art. 9 caput).
When the comparison requires a currency conversion, such conversion should be made by using the exchange rate in effect on the date of sale, unless a sale of foreign currency on the forward market is directly linked to the export sale involved.
In that case the rate of exchange in the forward sale shall be used. Art. 9-5.
Fluctuations in exchange rates shall be ignored. Exports shall be allowed at least sixty days to adjust their export prices to reflect sustained movements in exchange rates during the period of investigation. (Dec. 1602/95 - Art. 9.7).
The existence of margins of dumping shall be determined on the basis of a comparison of:
(1) a weighted-average normal value with a weighted-average of prices of all comparable export transactions; or
(2) normal value and the export prices for each transaction. (Dec. 1602/95 - Art. 12 caput).
The weighted-average normal value shall be compared to individual export prices in situations where there is a pattern of export prices which differ significantly between buyers, regions, or periods of time and if it is explained why such differences cannot be taken into account adequately by use of a weighted-average-to-weighted-average or transaction-to-transaction comparison. Art. 12-1.
Sampling techniques may be used to establish normal value or export price.
Specifically, the authorities may use those prices which appear with the greatest frequency or those that are most representative, when there is a significant volume of transactions to be examined. Art. 12-2.
An individual margin of dumping shall be determined for each known exporter or producer concerned of the product under investigation. (Dec. 1602/95 -Art. 13 caput).
In cases where the number of known exporters, producers, importers, or types of products involved is so large as to made such a determination impracticable, the investigation may be limited to a reasonable number of interested parties or products by means of statistically valid samples based on the information available at the time of sample selection or to the largest percentage of the volume of the exports from the country in question which can reasonably be investigated. (Dec. 1602/95 - Art 13.1).
Canada
The margin of dumping, if any, for goods from a particular exporter is the amount determined by subtracting the weighted average export price of the goods from the weighted average normal value of the goods.
The margin of dumping in relation to goods from a particular country is the weighted average of the margins of dumping for all exporters from that country.
As specific normal values are usually provided to the exporter, exporters can adjust their export prices upward (i.e., to the normal value) in order to avoid any assessment of antidumping duties against the goods.
Chile
Without prejudice to the provisions governing fair comparison, the existence of margins of dumping during the period under investigation is normally established on the basis of a comparison between the weighted average of the normal value and the weighted average of the prices of all comparable export transactions, or a comparison between the normal value and the export price, transaction by transaction. A normal value established on the basis of the weighted average may be used for comparison with prices for individual export transactions, if the Commission finds that there is a pattern of export prices that differ significantly among individual buyers, regions or periods of time, and if evidence is submitted to explain why these differences cannot be properly taken into account by means of a comparison exclusively between weighted averages, or transaction by transaction. (Supreme Decree No. 16, Ministry of External Relations, published in the Diario Oficial on May 17, 1995).
Colombia
Dumping margin shall be understood as the amount by which the export price is below the normal value.
Said margin shall be computed by unit of the product imported into the country at the dumping price.
The export price and the normal value must be examined on a comparable basis, taking into account the conditions agreed for delivery of the goods, preferably ex-factory and on the basis of transactions carried out as recently as possible.
As a general rule, the normal value and the export price during the period under analysis could be compared on the basis of weighted averages.
If the normal value and the export prices should vary during the period under analysis, or exceptional circumstances should occur, the margin could be computed on the basis of the average weighted normal value and the different export prices, or on a transaction by transaction basis.
To determine the dumping margin, account shall be taken of the differences that affect comparability in each case, considered separately on the basis of the specific circumstances involved.
The normal price or the export price may be adjusted on the basis of the following criteria, notwithstanding the provisions of Articles 8 and 9 of this Decree:
1. Differences in physical characteristics of the product.
2. Differences in quantity, considering discounts for quantities freely agreed on in the course of normal commercial transactions during a representative period, and differences in the cost of producing different quantities.
3. Differences in selling conditions, which may include differences in indirect taxes and duties, in credit terms, guarantees, technical assistance arrangements, post-sale services, commissions, packaging, transport, maintenance services, loading, and ancillary and other costs.
4. Differences in the total taxes levied on a product in cases where a product exported to Colombia was exempt from import duties or indirect taxes, which bear on the similar product and on materials incorporated in that product, when the product is meant for consumption in the country of origin or export or in cases where drawback occurred in relation to said taxes and duties.
When, in the course of an investigation, an interested party requests that consideration be given to some of these differences, that party must show proof that the request is justified.
Costa Rica
A fair comparison shall be made between the export price and the normal value.
When the price comparison [...] requires a conversion of currencies, such conversion should be made using the rate of exchange on the date of sale (endnote is omitted), provided that when a sale of foreign currency on forward markets is directly linked to the export sale involved, the rate of exchange in the forward sale shall be used.
Fluctuations in exchange rates shall be ignored and, in an investigation the authorities shall allow exporters at least 60 days to have adjusted their export prices to reflect sustained movements during the period of investigation.
[...] the existence of margins of dumping during the investigation phase shall normally be established on the basis of a comparison of a weighted average normal value with a weighted average of prices of all comparable export transactions or by a comparison of normal value and export prices on a transaction to transaction basis.
A normal value established on a weighted average basis may be compared to prices of individual export transactions if the authorities find a pattern of export prices which differ significantly among different purchasers, regions or time periods and if an explanation is provided why such differences cannot be taken into account appropriately by the use of a weighted average-to-weighted average or transaction-to-transaction comparison.
This provision is coupled with another under Costa Rican Decree 24868-MEIC, which stipulates: The amount of any anti-dumping or countervailing duty applied shall be sufficient to redress the injury or harm and never more than the estimated margin of dumping or the amount of the subsidy.
Dominican Republic
Ecuador
El Salvador
There is no specific provision but El Salvador applies the rules in accordance with the WTO Antidumping Agreement.
Guatemala
Honduras
Jamaica
The margin of dumping is the amount by which the export price from the country in which the goods originated is less than the fair market price of the goods in that country. (Sec. 3(2)(a)).
Mexico
The Ministry shall fix the amount of the duties which shall be equivalent, in cases of price discrimination, to the difference between the normal value and the export price.
The duties may be less than such difference, however, "provided they are sufficient to discourage imports of goods in circumstances involving unfair international trade practices".
If it is impracticable to name all the suppliers affected by the duties, "the Ministry may order its application to the country or countries concerned". (I/62).
"As a general rule, both the normal value and the export price shall be calculated on the basis of the weighted average figures obtained for the period of investigation". (II/40).
"If the product under investigation consists of goods which are not physically identical with each other, the margin of price discrimination shall be estimated according to the type of goods, in such a way that the normal value and the export price utilized for each calculation correspond to comparable goods". (II/39).
"When the margin of price discrimination is calculated by type of goods, the margin for the product under investigation shall be determined as the weighted average of all the individual margins which have been estimated.
This weighted average shall be calculated according to the proportion of each type of goods relative to the total volume of the product exported during the period of the investigation". (II/39).
With an exceptionally large number of types of goods or quantity of transactions, the margin may be based on a representative sample" selected in accordance with generally accepted statistical criteria". (II/41).
Nicaragua
Panama
Margin of dumping is understood as the price differential between the fair market price of the foreign good and the price at which that good is imported to the home market, as established in Chapter III of this title. The margin of dumping will be considered de minimis when it is less than two percent (2%) ad valorem. The volume of imports subject to dumping will be considered insignificant if is established that goods from a certain country member of the World Trade Organization represent less than three percent (3%) of imports of an identical or similar product unless the imports from these countries, which individually represent less than three percent (3%) of total imports of the good in question, together account for more than seven percent (7%) of imports of such goods.
Paraguay
The comparison between the export price and the normal value shall be done equitably, and at the same level of trade, normally at the factory gate, based on sales made on dates as recent as possible.
This comparison will normally be based on a comparison between a weighted average of the export prices of all comparable export transactions or by making a comparison between the normal value and the export prices, on a transaction-by-transaction basis.
If in the view of the Ministry of Industry and Commerce there is a pattern of widely disparate export prices and normal values among different buyers, regions, or periods, the comparison may be between a normal value established on the basis of the weighted average and the prices of the individual export transactions.
The extent to which the export price is lower than the normal value according to the provisions of Article 8 shall be considered the margin of dumping. The margin of dumping shall be considered to be de minimis when it is less than 2% (two per cent) of the export price.
Peru
Santa Lucia
Trinidad and Tobago
Margin of dumping or dumping margin in relation to an article means the amount, if any, by which the normal value of such article exceeds the price at which it is exported.
United States
The margin of dumping is the amount by which the normal value exceeds the export price or constructed export price of the subject merchandise.
Normal value may be determined based on
(a) prices in the exporting country market;
(b) prices to a third country; or
(c) constructed value (i.e., cost of production plus profit and SG&A expenses).
In an investigation, Commerce will normally determine the margin of dumping by comparing the weighted average normal value to a weighted average export price (or constructed export price) for comparable merchandise, or by comparing the normal values of individual transactions to the individual export prices (or constructed export prices) for comparable merchandise.
If, however, Commerce finds a pattern of export prices (or constructed export prices) that differ significantly among purchasers, regions or time periods and Commerce explains why such differences cannot be taken into account using the weighted average-to-weighted average methodology or the individual-to-individual methodology, then Commerce may compare a weighted average normal value to individual export prices (or constructed export prices).
In administrative reviews, Commerce will continue to compare a monthly weighted average normal value to an individual export price (or constructed export price) for comparable merchandise.
In an antidumping proceeding, Commerce will convert foreign currencies into United States dollars using the exchange rate in effect on the date of sale of the subject merchandise.
If a currency transaction on forward markets is directly linked to an export sale under consideration, Commerce will convert the foreign currency using the exchange rate specified with respect to such currency in the forward sale agreement.
Commerce will ignore fluctuations in exchange rates.
In addition, in an antidumping investigation, if there is a sustained movement in the value of the foreign currency relative to the United States dollar, Commerce will allow exporters at least 60 days to adjust their export prices to reflect the sustained movement.
Uruguay
Venezuela
The dumping margin is the amount by which the normal value exceeds the export price. (1992 Law, Art. 2.5).
"[T]he normal value and the export price shall be compared fairly. The comparison shall be made at the same level of trade, usually at the ex-factory level, taking into account the nearest possible dates and making the adjustments which the Commission considers necessary for any differences in the physical characteristics of the goods, the import duties and indirect taxes, selling costs for sales at different levels of trade, in varying quantities or under different conditions". (Id. Art. 7).
"In comparing prices, where the prices vary, the Commission shall adopt the following guidelines, inter alia:
1. The normal value shall be calculated on a weighted average;
2. The export price shall be compared with the normal value on a transaction-to-transaction basis if the use of weighted averages materially affects the findings of the investigation; and
3. Sampling techniques may be used, for example, by taking into account the prices that most frequently occur or are deemed to be most representative, in cases where there is a large number of transactions". (1992 Law, Art. 8).
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