3. Methodologies/Definitions
   
   
   2. Domestic Producers
      
      
      WTO Standard: The domestic industry refers to the domestic producers as a whole of the like product or to those of them whose collective output of the product constitutes a major proportion of the total domestic production of those products, except that

      (i) when producers are related to the exporters or importers or are themselves importers of the allegedly dumped or subsidized product, the term 'domestic industry' may be interpreted as referring to the rest of the producers;

      (ii) in cases involving a regional industry (i.e., where the producers within the regional market sell all or almost all of their production of the product in question in that regional market and the demand in that market is not to any substantial degree supplied by producers located elsewhere), injury may be found to exist even where a major proportion of the total domestic industry is not injured, provided there is a concentration of dumped imports into such an isolated market and provided further that the dumped imports are causing injury to the producers of all or almost all of the production within such market. (AD Agreement, Art. 4.1; SCM Agreement, Arts. 16.1, 16.2.)

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

Bolivia

   Domestic industry shall be interpreted as referring to the domestic producers as a whole of the like products or to those of them whose collective output of the products constitutes a major proportion of the total domestic production of these products, except in the following cases:

         (i) When domestic producers are related to the exporters or importers of the products allegedly subject to unfair trade practices, the term "domestic industry" may be interpreted as referring to the rest of the producers;

         (ii) In exceptional circumstances, the domestic industry may be divided into two or more separate markets.

   The producers within each market may be regarded as a separate domestic industry if they sell most of their production of the product in question in that market and if the demand in that market is not to any substantial degree supplied by the producers of the product in question located elsewhere in the territory.

Brazil

   "Domestic industry" means the domestic producers as a whole of the similar product or those domestic producers whose collective production of the similar product constitutes a major proportion of the total domestic production, except that:

         (i) where a domestic producer is related to an exporter or importer of the dumped or subsidized goods, or is an importer of such goods, "domestic industry" may be interpreted to exclude such domestic producers;

         (ii) in exceptional circumstances, the territory of Brazil may be divided into two or more regional markets and the domestic producers of the similar product in any of those markets may be considered separately.

   AD law, Art. 17; CVD law, Art. 24. The producers within a regional market may be considered separately if they sell all or almost all of their production of the product in question in that market and if the demand in that market is not supplied to any substantial degree by the producers of the product in question located elsewhere in the territory.

   In such cases, even when a significant share of the national production has not been affected, damage can be found if thee is a concentration of imports that are the object of dumping or subsidized product on that amount, and those imports are causing damage to producers of all or almost all of the production of that regional market. AD law, Art. 17-4; CVD law, Art. 24-4.

Canada

   "Domestic industry" means, other than for the purposes of determining injury and subject to the provision governing regional markets, the domestic producers as a whole of the like goods or those domestic producers whose collective production of the like goods constitutes a major proportion of the total domestic production of the like goods except that, where a domestic producer is related to an exporter or importer of dumped or subsidized goods, or is an importer of such goods, "domestic industry" may be interpreted as meaning the rest of those domestic producers.

   SIMA, Sec. 2.(1)

         (i) For standing purposes, domestic industry means the domestic producers as a whole of the like product, except that where a domestic producer is related to an exporter or importer of dumped or subsidized goods, or is an importer of such goods, "domestic industry" may be interpreted as meaning the rest of those domestic producers. 31.(3)

         (ii) In exceptional circumstances, the territory of Canada may, for the production of any goods, be divided into two or more regional markets and the domestic producers of like goods in any of those markets may be considered to be a separate domestic industry where

               (a) the producers in the market sell all or almost all of their production of like goods in the market; and

               (b) the demand in the market is not to any substantial degree supplied by producers of like goods located elsewhere in Canada. 2.(1.1).

Chile

   The expression "Domestic Industry" is understood to include all domestic producers of like goods, or those among them whose combined production represents a major portion of the total domestic output of such goods. Nonetheless:

         i) where some producers are related to exporters or importers, or are themselves importers of the product that is allegedly being dumped or subsidized, the expression "Domestic Industry" may be interpreted to refer to all other producers than those;

         ii) under exceptional circumstances, the national territory may be divided, for purposes of the product in question, into two or more competing markets, and the producers within each market may be considered as a separate industry in their own right, provided that:

               a) the producers in that market sell all or substantially all of their output of the product in question within that market, and that

               b) existing demand in that market is not covered to any substantial degree by producers of the product in question located in another part of the country.

   Under these circumstances, injury may be deemed to exist even if there is no injury to a significant portion of the overall domestic industry, provided that the dumped imports are concentrated in that isolated market, and, in addition, that such imports are causing injury to producers who account for all or substantially all production within that market. (Supreme Decree No. 16, Ministry of External Relations, published on May 17, 1995, in the Diario Oficial).

Colombia

   For the purposes of this decree, the expression "branch of domestic production" shall be understood to encompass all of the domestic producers of like products, or those among them whose collective output constitutes a major proportion of the total domestic production of those products. Nonetheless, when some producers are related to the exporters or importers, or are themselves importers of the product allegedly dumped, the expression "branch of domestic production" may be interpreted to refer to the rest of the producers.

   In exceptional circumstances, the national territory may be divided, for the purposes of the production in question, into two or more competing markets, and the producers of each market may be considered as a distinct branch of production if:

         (a) the producers in that market sell all or almost all of their production of the product in question in that market, and

         (b) in that market, demand is not substantially covered by producers of the product in question situated in another part of the territory.

   In these circumstances, one may consider that there is injury even when a significant part of the total branch of domestic production is not injured so long as there is a concentration of the dumped imports in that isolated market and, moreover, the dumped imports cause injury to the producers of all or almost all of the production in that market.

Costa Rica

   The term "domestic industry" shall be interpreted as referring to the domestic producers as a whole of the like products or to those of them whose collective output of the products constitutes a major proportion of the total domestic production of those products, except that

         (i) when producers are related to the exporters or importers or are themselves importers of the allegedly dumped product, the term "domestic industry" may be interpreted as referring to the rest of the producers.

         (ii) in exceptional circumstances the territory of a Member may, for the production in question, be divided into two or more competitive markets and the producers within each market may be regarded as a separate industry if

               (a) the producers within such market sell all or almost of their production of the product in question in that market, and

               (b) the demand in that market is not to any substantial degree supplied by producers of the project in question located elsewhere in the territory.

   In such circumstances, injury may be found to exist even when a major portion of the total domestic industry in not injured, provided there is a concentration of dumped imports into such an isolated market and provided further that the dumped imports are causing injury to the producers of all or almost all of the production within such market.

Dominican Republic

Ecuador

   The term "domestic industry" shall be interpreted as referring to domestic producers as a whole of the like products or to those of them whose collective output of the products constitutes a major proportion of the total domestic production of these products.

El Salvador

   The Central American Regulations on Unfair Trade Practices develops the rules established in the WTO agreements, as well as the WTO definition of branch of national production, as is established in Article 2 of those regulations.

Guatemala

   The Central American Regulations on Unfair Trade Practices develop the provisions established in the Agreements of the WTO, and therefore, the WTO definitions of Like Product are applied.

Honduras

   The Central American Regulations on Unfair Trade Practices develop the provisions established in the Agreements of the WTO, and therefore, the WTO definitions of Like Product are applied.

Jamaica

Mexico

   The term "domestic industry" is at least 25 per cent of the domestic production of the goods in question.

   When certain producers are related to the exporters or importers or are themselves importers, the term "domestic industry may be interpreted as referring to at least 25 percent of the rest of the producers.

   When all of the producers are related parties or importers, the term "domestic industry" may be interpreted as referring to the entire group of producers of the goods produced during the immediately preceding stage in the same continuous line of production." (I/40)

Nicaragua

   The Central American Regulations on Unfair Trade Practices develop the provisions established in the Agreements of the WTO, and therefore, the WTO definitions of Like Product are applied.

Panama

   National production is understood as all national producers of a similar or identical product or producers whose entire production accounts for a major share of national production of such goods for the domestic market.

Paraguay

   Domestic producers as a whole of the like products or those of them whose collective output of the products constitutes a major proportion of the total domestic production of those products, except that:

         
• When the domestic producers are related to the exporters or importers or are themselves importers of the allegedly dumped product, the term "domestic industry" may be interpreted as referring to the rest of the producers;
           
• In exceptional circumstances, Paraguayan territory may, for the production in question, be divided into two or more competitive markets and the producers within each market may be regarded as a separate industry if:

               (1) the producers within such market sell all or almost all of their production of the product in question in that market, and

               (2) the demand in that market is not to any substantial degree supplied by producers of the production in question located elsewhere in the territory.

   In such circumstances, injury may be found to exist even where a major portion of the total domestic industry is not injured, provided there is a concentration of dumped imports into such an isolated market and provided further that the dumped imports are causing injury to the producers of all or almost all of the production within such market.

Peru

   For the purposes of these Regulations, the term "domestic industry" shall include domestic producers as a whole of the like products or those of them whose collective output constitutes a major proportion of total domestic production of these products.

   In determining a domestic producer, the Commission shall take into account the following criteria inter alia:

         (i) Whether the producers are related to the exporters of the allegedly dumped or subsidized product;

         (ii) whether the producers are themselves acting as importers of the dumped or subsidized product;

         (iii) the origin and characteristics of the inputs used in like goods, together with the value-added for the production process.

Santa Lucia

   The possible effect of dumped or subsidized imports on domestic industry, or the establishment of an industry, is discussed in Section 3(1)(b). No definition is provided.

Trinidad and Tobago

   The "industry" in relation to any goods, means such Trinidad and Tobago producers of like goods whose collective output constitutes at least twenty five percent of the Trinidad and Tobago production of such like goods, except that:

         (a) where certain Trinidad and Tobago producers of like goods are associates of the exporters or importers or are themselves importers of the relevant goods, the Minister may make a determination that such producers shall not be taken into account in applying for foregoing definition; and

         (b) Trinidad and Tobago may, for the production in question, be divided into two competitive markets and all or almost all the producers within one such market regarded as the industry, if the producers within such market sell all or almost all their production of the goods in question in that market and the demand in that market is not to any substantial degree supplied by producers of the goods in question located elsewhere in Trinidad and Tobago. (Act No. 23 of 1995).

United States

   The U.S. statute defines the domestic industry as the producers as a whole of the like product, or those producers whose collective output constitutes a major proportion of the total domestic production of the subject merchandise.

   In order for Commerce to initiate an investigation, the petition must be filed by or on behalf of the domestic industry.

   Under U.S. law, either the Commerce Department or the ITC may (but need not) exclude a domestic producer of a like product from the industry if the producer is itself related to exporters or importers, or where the producer is itself an importer of the products subject to investigation.

Uruguay

   For the purposes of this Decree, the term "domestic industry" shall include the domestic producers as a whole of the like products or those of them whose collective output of the products constitutes a major proportion of the total domestic production of those products, except that:

         (a) When producers are related to the exporters or importers or are themselves importers of the allegedly dumped product, the term "domestic industry" may be interpreted as referring to the rest of the producers.

   For the purposes of this paragraph, producers shall be deemed to be related to exporters or importers only if:

               (i) One of them directly or indirectly controls the other;

               (ii) both of them are directly or indirectly controlled by a third person;

               (iii) together they directly or indirectly control a third person, provided that there are grounds for believing or suspecting that the effect of the relationship is such as to cause the producer concerned to behave differently from non-related producers.

   For the purpose of this paragraph, one shall be deemed to control another when the former is legally or de facto in a position to exercise restraint over the latter or direct his activities.

         (b) in exceptional circumstances the national territory may, for the production in question, be divided into two or more competitive markets and the producers within each market may be regarded as a separate industry if:

               (i) the producers within such market sell all or almost all of their production of the product in question in that market; and

               (ii) the demand in that market is not to any substantial degree supplied by producers of the product in question located elsewhere in the territory.

In such circumstances, injury may be found to exist even where a major portion of the total domestic industry is not injured, provided there is a concentration of dumped imports into such an isolated market and provided further that the dumped imports are causing injury to the producers of all or almost all of the production within such market.

Venezuela

   For the purposes of determining the existence or threat of injury, the term "domestic industry" shall be interpreted as referring to domestic producers as a whole of like goods, or to those of them whose collective output constitutes a major proportion of the total domestic production of these goods.

   For the purposes of this determination, producers associated with exporters or who are themselves importers of the dumped or subsidized goods shall not be taken into consideration. (1992 Law, Art. 14).

   The "major proportion of domestic industry" shall mean those producers representing at least 30 percent of domestic industry.

   Exceptionally, if the special circumstances of the production structure in question so require, the Commission may use as a benchmark a higher percentage (up to 40%), or a lower percentage (down to 20%). (1993 Regulations, Art. 47).

   Under certain circumstances (outlined in 1992 Law, Art. 14), the Commission may determine regional injury, "provided that there is a concentration of dumped or subsidized imports destined to be marketed or consumed in the region in question, which are causing injury to all or a major part of the production of like goods in the region". (1992 Law, Art. 14). Certain producers shall not be included in the domestic industry for purposes of determining injury or threat of injury (including "producers associated with exporters" and "producers who themselves import the dumped or subsidized good"). (1993 Regulations, Art. 48).

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