4. Steps of the Investigation
   5. Preliminary Determination

      c. Countervailing

      WTO Standard: The authorities shall, before a final determination is made, inform all interested Members and 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. (SCM Agreement, Art. 12.8)

      Provisional measures shall not be applied sooner than 60 days from the date of initiation of the investigation. (SCM Agreement, Art. 17.3)

Argentina

   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).

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

   Provisional countervailing duties may be applied if:

         1) an investigation is initiated in accordance with the law, a notice of that initiation is published, and the interested parties are offered an adequate opportunity to participate;

         2) a preliminary determination finding subsidization and the consequent injury has been made;

         3) the Minister of Industry, Trade and Tourism and the Minister of Finance have determined that provisional measures are necessary to impede the occurrence of injury during the investigation; and

         4) at least 60 days have passed since the initiation of the investigation. Art. 44.

   Provisional measures shall not exceed the amount of countervailable subsidies. (Dec. 1751/95 - Art. 44.1).

   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 countervailable subsidization. (Dec. 1751/95 - Art. 44.2).

   In subsidy cases, provisional measures shall remain in place for no more than 4 months. (Dec. 1751/95 - Art. 44.6).

Canada

   See "Preliminary Determination -- Antidumping" section above, as it pertains to Canada.

Chile

   Before reaching its final determination, the Commission may, at any stage in the investigation and within a period of 60 days of its initiation, when it is necessary to avoid or prevent injury to the domestic industry, request the President of the Republic to establish provisional minimum customs duties, surcharge anti-dumping duties or countervailing duties. (Decree 575, Title III, Art. 19).

   The Commission shall provide the interested party with an explanation of its recommendation to the President after the President's action with respect to provisional measures is published in the Diario Oficial. Id. at Art. 21.

   The explanation shall include the following:

         (1) the date of the formal lodging of the complaint;

         (2) the products covered by the complaint and their tariff classification,

         (3) the identity of the complainant(s),

         (4.4) the identity of the producers, exporters and importers of the goods,

         (4.5) the country of origin of the corresponding product(s),

         (4.6) a description of the practice or indication of the measure causing the alleged distortion of prices,

         (4.7) a brief analysis of the factors allegedly causing the injury to the domestic industry, and

         (4.8) a summary of the considerations relevant to the Commission's decision. (Decree No. 575, Art. 21).

Colombia

   Within a period of 65 calendar days counting from the date the investigation is opened, INCOMEX may adopt a decision with cause giving its opinion on the preliminary decisions of the investigation, and, if appropriate, it may order that temporary duties be applied.

   In no case may it adopt a preliminary determination before 60 calendar days have lapsed counting from the date that the decision ordering the investigation was made, except in the case specified in paragraph 2 of Article 37 of this Decree.

   Whenever special circumstances warrant it, INCOMEX may, at its own initiative or at the request of the interested party, extend the deadline stipulated in the preliminary determination for up to one month.

   Documents and information received 15 days prior to the maximum period for adopting the preliminary determination may not be considered in the preliminary determination, but shall in any event be taken into account in the conclusion of the investigation. (Decree 299/95, Chaps. VI and VII, Arts. 21 and 35).

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

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. Article 13, CARUTP.

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. Article 13, CARUTP.

Jamaica

Mexico

   At least 45 days following publication of the initiation notice, but within 130 days from the day following such publication, the Ministry shall issue a preliminary resolution by which it may or may not set a provisional duty and continue the investigation, or it may pronounce termination of the investigation if there is "insufficient evidence of price discrimination or subsidization, of injury or threat of injury, or of a causal relationship between them". (I/57). The preliminary resolution shall include the normal value and export price (except confidential or restricted commercial information), a description of the methods used to determine normal value and export price, the margin of price discrimination/the characteristics and amount of the subsidy, a description of the injury caused or threatened, an explanation of the injury analysis by the Ministry, the export price which would not injure the domestic industry (if applicable), and the amount of the provisional offsetting duty. (II/82).

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. Article 13, CARUTP.

Panama

Paraguay

Peru

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, 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

   In CVD investigations, Commerce must determine within 65 days after the date on which the investigation was initiated whether there is a "reasonable basis to believe or suspect" that a countervailable subsidy is being provided to the subject merchandise.

   The preliminary CVD determination includes an estimated countervailing duty rate for each producer and/or exporter investigated, or an estimated country-wide rate (see Subsidy Rate section, below), which is based on a preliminary analysis of the questionnaire responses submitted by the foreign government and the foreign producers and/or exporters.

   Commerce may postpone the preliminary CVD determination until 130 days after the date of initiation if the petitioner so requests or in cases which Commerce determines are extraordinarily complicated.

   U.S. law prohibits the imposition of provisional measures less than 60 days after the initiation of an investigation.

   U.S. law also prohibits the imposition of provisional measures for more than 4 months.

Uruguay

Venezuela

   The Commission "may establish provisional anti-dumping or countervailing duties on the basis of the elements available to it, provided that it has previously determined the existence of dumping or the granting of subsidies, as appropriate, and that there is sufficient proof of injury.

   The Commission may also change the amount of the provisional anti-dumping or countervailing duties established, notifying the interested parties of the change by publishing the corresponding decision". (1992 Law, Art. 19).

   "Provisional anti-dumping or countervailing duties shall be established through a decision by the Commission showing the amount and type of duty fixed, its duration, which shall not exceed the duration legally established for the rest of the procedure, the good concerned, the country of origin or of export, and the name of the producer or exporter". (1992 Law, Art. 20).

   Art. 60 of the 1992 Law allows for the following: "In the case of agricultural products for which the country of origin has granted subsidies whose nature, amount and effects can be determined on the basis of official publications and budgets of the country concerned, the Commission shall impose provisional countervailing duties to offset the margin of the subsidy fixed, as soon as it receives the relevant information".