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Compendium of Antidumping and Countervailing Duty Laws in the Western Hemisphere


  1. Methodologies/Definitions

    1. Export Price - Adjustments

      WTO Standard: "A fair comparison shall be made between the export price and the normal value. This comparison shall be made 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 which affect price comparability, including differences in conditions and terms of sale, taxation, level of trade, quantities, physical characteristics, and any other differences which are also demonstrated to affect price comparability. (footnote omitted) [...] allowances for costs, including duties and taxes, incurred between importation and resale, and for profits accruing, should also be made. If [...] price comparability has been affected, the authorities shall establish the normal value at a level of trade equivalent to the level of trade of the constructed export price, or shall make due allowance as warranted [...] The authorities shall indicate to the parties in question what information is necessary to ensure a fair comparison and shall not impose an unreasonable burden of proof on those parties." (AD Agreement, Art. 2.4)

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. 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).

Bolivia

   In calculating the export price, the necessary adjustment shall be made to allow for all costs incurred prior to sale, such as costs of transport, insurance, maintenance, loading and unloading, import duties and other levies arising subsequent to export from the country of origin; a reasonable margin of general, administrative and selling costs; a reasonable margin of profit and any commission usually paid or agreed. Bi-ministerial Decision, Art. 23.

   In order to compare the normal value in the country of origin and/or export and the export price on the Bolivian market as far as the physical characteristics, technical specifications of the product, conditions and terms of sale, taxes and other elements are concerned in each case allowance shall be made for the differences which affect such a comparison in order to make the appropriate adjustment.

   The comparison shall be made at the same stage of the transaction, generally at the ex-factory level, in respect of sales made at as nearly as possible the same time.

   When an interested party requests that any such differences be taken into consideration, he shall furnish evidence that the request is justified.

   The following criteria shall be applied when determining the adjustment:

         1. In the case of differences in the physical characteristics of a product and the technical specifications, the adjustments shall usually be based on the impact which such differences have on the normal value of the product;

         2. when no information is available on the normal value in the country of origin or export, or the information does not permit a valid comparison, the calculation shall be based on the production costs and the profit margins attributable to the physical differences and technical specifications.

         3. In the case of differences in quantity, the adjustment shall take into account the following:

               (a) Quantity discounts freely agreed in the ordinary course of trade during a prior representative period, usually not less than six (6) months;

               (b) Differences in the production cost of different quantities.

         4. in the case of differences in the conditions and terms of sale, the adjustment should be limited to differences which directly relate to the sales under consideration, such as differences in credit conditions, security, guarantees, forms of technical assistance, after-sales services, commissions or salaries paid to sales persons, packaging, transport, insurance, maintenance, loading and related costs, and, if they have not been taken into account in some other form, differences in the stage of marketing the transaction;

         5. differences in respect of import duties and other tax charges on products for domestic consumption in the country of origin or export from which exports are exempt. Bi-ministerial Decision, Art. 25.

Brazil

   Adjustments may be made in each case, on its merits, for differences which affect price comparability, including differences in conditions and terms of sale, taxation, levels of trade, quantities, physical characteristics, and any other differences which are also demonstrated to affect price comparability. (Dec. 1602/95 - Art 9-1).

   In cases involving constructed export prices, allowances should also be made for costs incurred between importation and resale, including duties, taxes, and profits accruing. Art. 9-2.

   If in these cases price comparability has been affected, the normal value shall be established at the level of trade equivalent to the level of trade of the constructed export price, or due allowance shall be made as warranted under the paragraph above. (Dec.1602/95 - Art. 9-3).

   The value of these adjustment shall be calculated on the basis of relevant data corresponding to the period of investigation or on the basis of data corresponding to the most recent completed fiscal year. Art. 9-4.

Canada

   Canadian implementation of the WTO provisions for adjustments arising from delivery costs, taxes and duties and differences in quantities, quality and level of trade are applied to the SIMA sections 15 (subject to subsection 16(1)), 19 and 20 (normal value calculations) and can be found in Sections 3-10 of the SIMA regulations.

   Quantitative Adjustment: Sections 3 and 4 of the SIMA regulations provide that the price of the like goods shall be adjusted to reflect the quantity discount generally granted on comparable sales.

   Qualitative Adjustment: Section 5 of the SIMA regulations provides that price adjustments shall be made for differences in:

         (a) quality, design, structure, or material;

         (b) warranties or guarantees;

         (c) time permitted between date of order and date of shipment; and

         (d) other conditions of sale.

   Discounts: Section 6 of the SIMA regulations specifies that the price of the like good in Canada shall be adjusted for any rebate, deferred discount, or cash discount for which it would be eligible were the sale to occur in the country of export.

   Delivery Costs: Sections 7 and 8 of the SIMA regulations require that like goods sold on a delivered basis shall be adjusted for their cost of delivery.

   Level of Trade: Section 9 of the SIMA regulations specifies that cost, charge, or expense adjustments shall be made when purchasers of like goods, who are at the trade level nearest and subsequent to that of the importer in Canada, have been substituted for purchasers who are at the same trade level as the importer.

   Taxes and Duties: Section 10 of the SIMA regulations requires that the price of the like goods shall be adjusted by deducting any taxes or duties not borne by goods sold to the importer in Canada.

   Currency Conversion: For the purposes of calculating the margin of dumping, Section 25.1 of the SIMA regulations requires that where a sale of goods to an importer in Canada takes place during a period in which there is a sustained movement in the rate of exchange that results in an appreciation in the value of the foreign currency in terms of the Canadian dollar and the exporter's selling price of those goods is adjusted from the price prevailing 60 days before the date of sale to reflect the sustained movement in the exchange rate, the export price of the goods shall be adjusted by multiplying that price by the result obtained by dividing the prevailing rate of exchange referred to in section 5 of the Currency Exchange for Customs Valuation Regulations, in respect of the foreign currency for the date of sale, by the average of the rate of exchange referred to in section 5 of those Regulations, in respect of that foreign currency, prevailing for each of the 30 days preceding the sixtieth day before the date of sale.

   Sections 44 and 45 of the SIMA regulations provide further guidance for currency conversion as it relates to the determination of dumping margins.

   Section 44.1 specifies that, subject to subsection (2) and section 45, where an amount that is used or taken into account for any purpose in the administration or enforcement of the Act is expressed in the currency of a country other than Canada, the equivalent dollar value of that amount shall be calculated by multiplying that other currency amount by the prevailing rate of exchange referred to in section 5 of the Currency Exchange for Customs Valuation Regulations in respect of that currency for the date of sale.

   Section 44.2 requires that where a sale of a foreign currency on forward markets is directly linked to the export sale to an importer in Canada, the rate of exchange that was used in the forward sale of currency shall be used in place of the rate of exchange referred to in subsection (1).

   Section 45 requires that where sufficient information has not been furnished or is not available at the time the goods have been released from customs possession or entered for warehouse, whichever is the earlier, to enable the calculation under section 44 to be made on the basis of the date of sale, the date of shipment to Canada shall be used in place of the date of sale for the purpose of that section.

Chile

   A fair comparison is to be made between the export price and the normal value. This comparison is made at the same level of trade, normally the ex factory level, and on the basis of the most recent sales data available. In each case, depending on the individual circumstances, due consideration is taken of any differences that may affect price comparability, including differences in the conditions of sale, tax treatment, levels of trade, quantities and physical characteristics, and any other differences that can be shown to have an influence on price comparability.

   In the cases described in Paragraph 3, account will also be taken of expenses, including duties and taxes, that are incurred between importation and resale, and any corresponding benefits received. Where price comparability has been affected in such cases, the Commission will establish the normal value at a level of trade equivalent to the corresponding constructed export price, or may take due account of any elements permitted by this paragraph. The Commission will inform the interested parties of any information needed to ensure a fair comparison, and shall take care not to impose on them any unreasonable burden of proof. (Supreme Decree No. 16, Ministry of External Relations, published in the Diario Oficial on May 17, 1995).

Colombia

   The export price and the normal value should be examined on a comparable basis, bearing in mind the conditions agreed upon for delivery of the goods, preferably ex-factory, and based on operations undertaken on the most recent possible dates.

   In addition, INCOMEX, depending on the particular circumstances, shall make adjustments to offset the differences that affect price comparability.

   To this end, the following aspects should be taken into account, as appropriate: When the comparison of the normal value, export price, and adjustments that need to be made requires a conversion of currencies, it should be done using the exchange rate on the date of sale, with the caveat that when a sale of foreign currency in the futures markets is directly related to the export sale in question, the exchange rate of the futures sale shall be used.

   The fluctuations in exchange rates shall not be taken into account, and in an investigation the authorities shall give the exporters at least 60 days to adjust their export prices so as to reflect sustained movements in the exchange rates during the period under investigation. When the export price has been constructed, and price comparability has been affected accordingly, INCOMEX shall establish the normal value at a commercial level equivalent to that for the reconstructed export price, or it shall take due account of the elements of adjustment that may be taken into consideration pursuant to this decree. In order to establish a valid comparison between the normal value and the export price, adjustments may be made to offset, among others, the differences in the conditions of sales and taxation, the differences in levels of trade, in the amounts, and in the physical characteristics, and any other differences also shown to affect price comparability. The amount of the adjustments shall be calculated based on the relevant information for the period under investigation of the practice, or taking into account the data from the last economic year for which they are available.

   Some of the factors indicated in Articles 13 and 14 of this decree may overlap, and INCOMEX should ensure that the adjustments already made are not duplicated. When in an investigation an interested party requests that some adjustment be taken into consideration, it shall bear the responsibility for submitting the evidence justifying such a request.

   For the purposes of the provisions of the previous article, INCOMEX may make adjustments, among others, related to the following factors:

             
  • The amounts directly related to the expenditures incurred by the exporter taking into account the conditions agreed upon with the purchaser for the delivery of the good FOB, CIF, etc.
             
  • The amounts corresponding to the expenditures incurred to provide guarantees, technical assistance, and other post-sales services.
             
  • The expenditures corresponding to the fees paid in relation to the sales in question.
             
  • The salaries paid to the personnel employed full-time in sales activities.

   In those cases in which the export price is constructed, consideration should also be given to the expenditures, including duties and taxes, incurred between import and re-sale, as well as profit.

Costa Rica

   A fair comparison shall be made between the export price and the normal value.

   This comparison shall be made 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 which affect price comparability, including differences in conditions and terms of sale, taxation, levels of trade, quantities, physical characteristics, and any other differences which are demonstrated to affect price comparability (the endnote is omitted) [...] allowances for costs, including duties and taxes, incurred between importation and resale, and for profits accruing, should also be made.

   If in these cases, price comparability has been affected, the authorities shall establish the normal value at a level of trade equivalent to the level of trade of the constructed export price, or make due allowance as warranted under this paragraph.

   The authorities shall indicate to the parties in question what information is necessary to ensure a fair comparison and shall not impose an unreasonable burden of proof on those parties.

Dominican Republic

Ecuador

   In making a fair comparison between the normal value and the export price, the following, inter alia, shall be deducted in the form of adjustments to the export price:

         (a) The amounts directly connected with the costs incurred by the exporter, taking into account conditions agreed with the buyer for delivery of the product (f.o.b.,c.i.f.,etc);

         (b) the amounts for direct costs in providing guarantees, technical assistance and other after-sales services;

         (c) the costs of commission paid in connection with the sales under consideration;

         (d) wages paid to full-time sales personnel.

   The investigating authority may consider other reasonable adjustments, for which purpose it shall consider the terms and conditions of sale, differences in quantities, physical differences and differences in taxation. The export price and the normal value shall be examined on a comparable basis, taking into account the agreed conditions for the delivery of the goods, preferably at the ex-factory level and in respect of sales made at as nearly as possible the same time.

   The amount of the adjustments to the normal value and the export price shall be calculated on the basis of relevant information for the period of investigation of the practice or in the light of the data for the latest financial year available. When an interested party asks for a particular adjustment to be taken into consideration, it shall provide the corresponding evidence.

El Salvador

   There is no specific provision but El Salvador applies the rules in accordance with the WTO Antidumping and Countervailing Duty Agreements.

Guatemala

   The CARUTP applies the WTO standard.

Honduras

   The CARUTP applies the WTO standard.

Jamaica

   The export price of goods sold to an importer in Jamaica, notwithstanding any invoice or affidavit to the contrary, is an amount equal to the lesser of

         (a) the exporter's sale price for the goods, adjusted by deducting there from

               (i) the costs, charges and expenses incurred on sales of like goods for use in the country of export;

               (ii) any duty or tax imposed on the goods by or pursuant to a law of Jamaica to the extent that the duty or tax is paid by or on behalf or at the request of, the exporter; and

               (iii) all other costs, charges and expenses resulting from the exportation of the goods, or arising from their shipment, from the country of origin or country of export, as the case may be; and

         (b) the price at which the importer has purchased or agreed to purchase the goods, adjusted by deducting there from all costs, charges, expenses, duties and taxes described in paragraph (a).

Mexico

   "The Ministry shall make the necessary adjustments to enable the export price and normal value to be compared.

   In particular, allowance shall be made for differences in terms and conditions of sale, quantities, physical characteristics and tax charges.

   When an interested party requests that a particular adjustment be taken into consideration, it shall be incumbent upon that party to provide the corresponding supporting evidence". (I/36).

   Adjustments for differences in terms and conditions of sale shall be applied both to the normal value and the export price provided they are directly related to the markets under investigation. (II/53-54).

   However, adjustments for differences in quantity, physical differences and differences in tax charges shall apply exclusively to the normal value [not the export price]. (II/53).

   Differences relating to levels of trade shall also be adjusted to the extent they have not otherwise been taken into account. (II/52).

Nicaragua

   The CARUTP applies the WTO standard.

Panama

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.

   Where products are not imported directly from the country of origin but are exported to the country of import from an intermediate country, the price at which the products are sold from the country of export to Paraguay shall normally be compared with the comparable price in the country of export. However, comparison may be made with the price in the country of origin, if, for example, the products are merely transshipped through the country of export, or such products are not produced in the country of export, or there is no comparable price for them in the country of export.

   In cases of imports from countries with centrally-planned economies, the normal value of the like product shall be determined based upon the value at which a like product is sold for domestic consumption, during normal commercial operations, in a third country with a market economy, or in its absence, for export or based upon another criterion, that the Ministry of Industry and Commerce deems pertinent according to the circumstances.

   Nevertheless, the selection of the country should not openly entail disadvantages for the producer or exporter from the country of origin.

Peru

Santa Lucia

Trinidad and Tobago

   The export price paid by the importer at an arm's length transaction does not include any part of that price that represents costs, charges, and expenses incurred in preparing the goods for shipment to Trinidad and Tobago or arise after their shipment from the country of export that are additional to those costs, charges, and expenses on sales for home consumption. (Sec. 13 (1)(a)).

   If the purchase of the goods was not an arm's length transaction, and the goods were subsequently sold by the importer to a person who was not an associate of the importer, then the price at which the goods were sold by the importer to that person is less than the sum of the following amounts:

         (1) any imposed duties;

         (2) costs, charges, or expenses arising in relation to the goods after exportation; and

         (3) rate of profit. (Sec. 13(1)(b)).

United States

   The price of merchandise sold in the U.S. market is referred to as either "export price" or "constructed export price" depending on the nature of the sales transaction. (See the discussion under "Export Price", above).

   Different adjustments are made to the U.S. price depending on whether the sale is an export price transaction or a constructed export price transaction.

   Commerce will calculate the export price and the constructed export price by adding the following elements to the starting price (i.e., the price to the first unaffiliated purchaser):

         (1) packing costs for shipment to the U.S., if not included in the price;

         (2) import duties that are rebated (duty drawback) or not collected due to the exportation of the merchandise; and

         (3) any countervailing duties attributable to export subsidies.

   The following elements are deducted from the export price:

         (1) transportation and other expenses, including warehousing expenses, incurred in bringing the merchandise from the original place of shipment in the exporting country (e.g., the foreign producer's factory) to the place of delivery in the United States; and

         (2) if included in the price, export taxes or other charges imposed by the exporting country.

   In addition, the constructed export price is reduced by the following additional elements associated with economic activities occurring in the United States:

         (1) any commissions paid;

         (2) any direct selling expenses incurred in the U.S.;

         (3) any indirect selling expenses associated with economic activity in the United States;

         (4) any costs and expenses resulting from further manufacturing activities in the U.S.; and

         (5) an amount for profit allocable to the selling, distribution and further manufacturing expenses incurred in the U.S.

   U.S. law contains a special rule for determining the constructed export price when the merchandise undergoes extensive further manufacturing in the U.S. prior to sale to the first unaffiliated party.

   If the value-added costs after importation are likely to "exceed substantially" the value of the imported product, then Commerce may rely on an alternative methodology for determining the export price, rather than calculating and deducting the value-added costs from the price of the further manufactured good.

   While the statute does not define "exceed substantially," the Statement of Administrative Action indicates that the term means that the value added in the U.S. is estimated to be more than half of the price of the finished product sold in the U.S.

   The alternative methodologies for determining the export price in the case of extensive further manufacturing in the U.S. are:

         (1) the price of identical products sold by the exporter or producer to an unaffiliated party;

         (2) the price of similar products sold by the exporter or producer to an unaffiliated party; or any other reasonable method, including the transfer price, if the Commerce Department determines it is appropriate.

Uruguay

   A fair comparison shall be made between the export price and the normal value. This comparison shall be made 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 which affect price comparability, including differences in conditions and terms of sale, taxation, levels of trade, quantities, physical characteristics and any other differences demonstrated to affect price comparability. Should any of these factors overlap, steps shall be taken to ensure that adjustments already made under this Article are not duplicated. In the cases referred to in Article 14, allowances for costs, including duties and taxes, incurred between importation and resale, and for profits accruing, should also be made. If in these cases price comparability has been affected, the normal value shall be established at a level of trade equivalent to the level of trade of the constructed export price, or due allowance shall be made as warranted under the preceding paragraph. The information necessary to ensure a fair comparison shall be indicated to the interested parties, without imposing upon them an excessive burden of proof.

   The value of the adjustments shall be calculated on the basis of the relevant data for the last business year available. Requests for adjustments which are insignificant in relation to the price or the value of the transactions concerned shall not be considered. When the price comparison under the first paragraph of Article 15 requires a conversion of currencies, such conversion shall be made using the rate of exchange on the date of sale, 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. In principle, the date of sale shall be the date of contract, purchase order, order confirmation, or invoice, whichever establishes the material terms of sale. Fluctuations in exchange rates shall be ignored and, for the purposes of the investigation, the implementing authority shall allow exporters at least 60 days to have adjusted their export prices to reflect the relevant fluctuations in exchange rates during the period of investigation. In the case where products are not imported directly from the country of origin but are exported to Uruguay from an intermediate third country, the price at which the products are sold from the country of export to Uruguay shall normally be compared with the comparable price in the country of export. However, comparison may be made with the price in the country of origin if:

         (a) The products are merely transshipped through the country of export; or

         (b) such products are not produced in the country of export; or

         (c) there is no comparable price for them in the country of export.

Venezuela

"[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". (1992 Law, Art. 7).

(Details regarding adjustments to be made are provided in the 1993 Regulations, Articles 17 and 20 through 38 (includes adjustments for differences in physical characteristics, differences in taxes, selling costs for different levels of trade, selling costs for different quantities, and selling costs for different conditions of sale)).

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