2. Legal Authorities Responsible for Conducting Investigations
   
   
   1. Injury
      
      
      WTO Standard: When the term "authorities" is used, it should be interpreted as meaning authorities at an appropriate senior level. (AD Agreement, Article 2.2.1 footnote 3.)

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

   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).

Bolivia

   Technical Secretariat, Minister for Exports and Economic Competition.

Brazil

   The Secretary for Foreign Trade (SECEX) of the Ministry of Industry, Trade and Tourism, is the competent authority to determine, through an administrative process, the margin of dumping or the amount of subsidy, the existence of material injury or threat thereof or material retardation, and the causal relationship between them.

   SECEX is the competent authority to initiate or renew an investigation and to end it, with no application of measures, when the existence of dumping or subsidies or damage caused by it is not established. (Dec. 1602/95 - Art. 3; Dec. 1752/95 - Art. 3).

Canada

   The Canadian antidumping/subsidies countervail system is bifurcated.

   The Special Import Measures Act (SIMA) subsection 31.(1) specifies that the Deputy Minister of National Revenue (DM) is responsible for deciding whether to initiate an investigation and whether to make a preliminary determination of dumping or subsidizing and reasonable indication of injury, retardation or threat of injury caused by such dumping or subsidizing pursuant to subsection 38.(1).

   Once such a preliminary determination is made, the DM files a written notice with the Secretary of the Canadian International Trade Tribunal ("Tribunal").

   Upon receipt of such notice, the Tribunal commences an injury inquiry and is responsible for making the final decision on the matter of injury, threat of injury and retardation.

   The Tribunal is an independent quasi-judicial body that carries out its statutory responsibilities in an autonomous and impartial manner and reports to Parliament through the Minister of Finance.

   The main legislation governing the trade-remedies- related work of the Tribunal is the Canadian International Trade Tribunal Act and its regulations, the Canadian International Trade Tribunal Rules (Canadian International Trade Tribunal's Rules of Procedure), the SIMA Act, and its regulations.

Chile

   The National Commission is responsible for investigating the existence of price distortions for imported goods. This Commission is comprised of the Fiscal Nacional Económico [a specially-appointed counselor], who chairs the Commission; two representatives of the Central Bank, appointed by the Bank's Board; one representative each from the Finance Ministry, the Ministry of Economy, Development and Reconstruction, and the Agriculture Ministry (Law 18,.525 was amended by Law 19,383 of the Ministry of Agriculture, published in the Diario Oficial of May 5, 1995), all of whom are appointed by resolution published in the Diario Oficial; the National Director of Customs; and a representative of the Ministry of External Relations. These members may have alternates, appointed by law or by resolution of the institution concerned, published in the Diario Oficial. (Article 11, Law No. 18,525)

Colombia

   The investigations referred to in Decree 991 shall be carried out by the Colombian Foreign Trade Institute (INCOMEX: Instituto Colombiano de Comercio Exterior) and shall be undertaken in the general interest.

   Antidumping duties shall be imposed in the general interest, for corrective or preventive purposes, whenever dumping exists, and in general on any importer of the goods affected by such duties. The duties are imposed with respect to a country and, if appropriate, especially to the producers and exporters of that country.

   Preventive: INCOMEX Corrective: MINISTRY OF FOREIGN TRADE.

Costa Rica

   In Costa Rica, the authority in charge of conducting the investigations done prior to levying an anti-dumping duty or countervailing duty (as appropriate) is the "Office of Unfair Trade Practices and Safeguard Measures", which is under the Office of the Minister of the Economy.

   Decree No. 24773-MEIC-MAG stipulates that: The purpose of the office is to serve as a technical unit conducting the administrative procedures for levying anti-dumping duties, countervailing duties or safeguard measures.

   Its functions include:

         c) receiving complaints of unfair practices such as dumping or subsidies

         e) conducting the necessary studies to determine whether or not the complaints are true

         g) any other... that pertains to it by reason of the subject matter or that is assigned to it by law or international agreement.

   Once the investigation has been conducted, the Minister of the Economy will decide whether an anti-dumping or countervailing duty is in order, once the competent Joint Commission has issued its finding.

   The Joint Commission will be an advisory and consultative body for any complaint or request filed and will be responsible for receiving the technical report from the Office of Unfair Trade Practices and Safeguard Measures to recommend the courses of action to be followed.

   Its recommendations are to be forwarded to the Minister at least fifteen days after receiving the Office's report. If the Minister does not receive the Commission's finding within that fifteen-day period, he or she shall settle it immediately based on the Office's report and the corresponding case file.

Dominican Republic

Ecuador

   The Trade Practices and Safeguards Division of the Ministry of Foreign Trade, Industrialization and Fisheries (MICIP), is responsible for initiating and conducting dumping, subsidies and safeguard investigations.

El Salvador

   Article 1 of the Central American Regulations on Unfair Trade Practices identify the authorities responsible for the conduct of investigations as the Office of the Director of Trade Policy, Ministry of Economy of El Salvador. These authorities are responsible for the determination of serious damage, threat of serious damage or determinations with respect to material retardation to the establishment of national production as may be caused by unfair trade practices.

   In the case of a regional procedure it will be SIECA.

Guatemala

   Article 1 of the Central American Regulations on Unfair Trade Practices identify the authorities responsible for the conduct of investigations as the Dirección de Integración Económica del Ministerio de Economía.

   These authorities are responsible for the determination of serious damage, threat of serious damage or determination with respect to material retardation to the establishment of national production as may be caused by unfair trade practices.

   In the case of a regional procedure it will be SIECA.

Honduras

   Article 1 of the Central American Regulations on Unfair Trade Practices identify the authorities responsible for the conduct of investigations as the Dirección de Integración Económica del Ministerio de Economía.

   These authorities are responsible for the determination of serious damage, threat of serious damage or determinations with respect to material retardation to the establishment of national production as may be caused by unfair trade practices.

   In the case of a regional procedure it will be SIECA.

Jamaica

Mexico

   Article 5 of the Foreign Trade Law indicates that the Secretariat, understood to be the Secretariat of Trade and Industrial Development (SECOFI) according to Article 3 of the same Law, has the authority to conduct and deal with investigations of unfair international trade practices and to determine the countervailing duties based on such investigations.

   In accordance with the Internal Regulations of the Secretariat of Trade and Industrial Development, "the Unit on International Trade Practices has the authority to take up, conduct and deal with the administrative procedures of investigation related to unfair international trade practices...".

   In accordance with Article 28 of the Foreign Trade Law, the importation of goods under price discrimination or subject to subsidies in their countries of origin that cause or threaten to cause damage to national production is considered an unfair international trade practice.

   Therefore SECOFI is the agency responsible for conducting investigations of damage. The Mexican system is an integrated one, that is, the same empowering authority makes decisions on dumping, subsidies and damage.

Nicaragua

   Article 1 of the Central American Regulations on Unfair Trade Practices identify the authorities responsible for the conduct of investigations as the Dirección de Integración Económica del Ministerio de Economía.

   These authorities are responsible for the determination of serious damage, threat of serious damage or determinations with respect to material retardation to the establishment of national production as may be caused by unfair trade practices.

   In the case of a regional procedure it will be SIECA.

Panama

Paraguay

Peru

   Peru has confirmed that the Comisión de Fiscalización de Dumping y Subsidios [Dumping and Subsidies Control Commission] of INDECOPI is the competent authority to hear and decide proceedings to determine whether goods are being imported at dumped or subsidized prices, pursuant to Article 3 of Decree Law 25629 (22/07/92).

   In fact, the above-mentioned Commission is named in Article 19 (b) and Article 22 of Decree Law No. 25868 (24/11/92) as having sole national jurisdiction to consider dumping and subsidy cases in the first instance. The Tribunal for the Protection of Competition and Intellectual Property is the administrative authority responsible for hearing and deciding dumping and subsidy proceedings in the second and last instances, pursuant to the provisions of Article 13 of that same Decree Law, as amended by Article 47 of Legislative Decree 807 (18/04/96).

Santa Lucia

   The Customs Duties (Dumping and Subsidies) Ordinance gives responsibility for investigations to the Minister (Section 3(1)) who is defined in Section 2 as Minister means the member of the Executive Council for the time being charged with the subject of trade.

Trinidad and Tobago

   The Anti-Dumping Authority ("Authority") is responsible for

         (1) investigating the existence, degree and effect of the alleged dumping or subsidy of any goods;

         (2) ascertaining whether any imported goods cause or threaten to cause material injury to any industry in Trinidad and Tobago;

         (3) submitting findings to the Minister as to the margin of dumping or the nature and amount of a subsidy; and

         (4) making recommendations to the Minister regarding determinations. (Sec. 17).

   The Authority is designated by the Minister of Trade, who may provide the Authority the services of such persons and other facilities as seen necessary. (Sec. 16.).

United States

   The U.S. system is a bifurcated system, whereby two distinct agencies play different roles.

   The U.S. Department of Commerce conducts investigations to determine whether foreign producers of a like product are receiving countervailable subsidies or are selling in the U.S. market at less than fair value ("dumping").

   The U.S. International Trade Commission ("ITC") concurrently investigates whether there is material injury or threat of material injury to a domestic industry by reason of dumped or subsidized imports.

   An affirmative finding by both agencies is required before an antidumping or countervailing duty order may be imposed.

   The U.S. International Trade Commission ("ITC") is an independent, federal agency responsible for conducting investigations to determine whether the domestic industry is being materially injured, or threatened with material injury, by reason of dumped or subsidized imports.

   The ITC is composed of six Commissioners who are appointed by the President with the advice and consent of the Senate.

   No more than three of the Commissioners may be members of the same political party. The Commissioners serve overlapping terms of nine years each, with a new term beginning every 18 months. A Chairman and Vice Chairman serving two year terms are appointed by the President from among the current Commissioners. The Chairman and Vice Chairman must be from different political parties, and the Chairman cannot be from the same political party as the Chairman of the preceding term.

Uruguay

Venezuela

   The "Anti-Dumping and Subsidies Commission" (the "Commission") was established as a decentralized body under the Ministry of Trade and Industry (previously the Ministry of Development) with responsibility for "considering and deciding upon procedures related to dumping and subsidies that do not come under the board of the Cartagena Agreement in conformity with the Andean legal system". ("Law on Unfair Foreign Trade Practices", as published in the Official Gazette of the Republic of Venezuela, Special Edition No. 4.441, 18 June 1992 (hereinafter, the "1992 Law"), Art. 27).

   The Commission shall determine the existence or threat of material injury to the domestic industry producing like goods or material retardation of the start-up of such an industry due to the import of dumped or subsidized goods. (1992 Law, Art. 2(1) and Art. 11).

   The Commission's "Technical Secretariat" is the Commission's "verificatory and executive body" which receives petitions, carries out the procedures to determine dumping or subsides and the consequential injury, etc. (1992 Law, Arts. 35-36).

   "[T]he Commission shall consider whether the country of export or of origin, as appropriate, requires or might require proof of injury, threat of injury or material retardation caused to Venezuelan exports.

   If such proof is not required, it may be presumed that injury, threat of injury or material retardation exist, within the meaning of this Article." (1992 Law, Art. 11).

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