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Compendium of Antidumping and Countervailing Duty Laws in the Western Hemisphere


  1. Methodologies/Definitions

    1. 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 | 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 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

   This shall be the amount by which the normal value exceeds the export price.

   Said margin shall be calculated by unit of the product imported to the national territory at dumping prices.

   Without prejudice to the provisions of Article 11 to 14 of Decree 991/98, the margin of dumping shall normally be established by comparing a weighted average of the normal value and a weighted average of the prices of all comparable export transactions, or by comparing the normal value and export prices, on a transaction by transaction basis.

   The margin of dumping may be calculated by comparing the normal value established on the basis of the weighted average and the individual export prices if INCOMEX finds a pattern of export prices that are significantly different for the different buyers, regions, or periods, and if an explanation is given as to why those differences cannot be duly taken into account by a comparison between weighted averages or on a transaction-by-transaction basis.

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

   The margin of dumping is defined as the difference between the normal value and the export price, calculated with reference to the latter price.

   The margin shall be calculated per unit of the product imported into Ecuadorian territory at the dumped price. Where the product under investigation consists of goods which are not physically identical with each other, the margin of dumping shall be estimated according to the type of good, in such a way that the normal value and the export price involved in each calculation correspond to comparable goods.

   When the margin of dumping is calculated by the type of good, the margin for the product under investigation shall be determined as the weighted average of all the individual margins which have been estimated.

   The weighting shall be calculated according to the proportion of each type of good relative to the total volume of the product exported during the period of investigation.

   In submitting its conclusions, the investigating authority shall be responsible for recommending the amount of the anti-dumping or countervailing duties applicable, taking into account the difference between the normal value and the export price of the product or the amount of the subsidy, as the case may be, and the level of injury caused to the domestic industry. In no case may the anti-dumping or countervailing duties be greater than the margin of dumping or the amount of the subsidy. It is desirable that the amount of the duty be less than the full margin of dumping or the total amount of the subsidy if such lesser duty would be adequate to remove the injury to the domestic industry, and that the imposition be permissive in the territory of all members.

El Salvador

   There is no specific provision but El Salvador applies the rules in accordance with the WTO Antidumping Agreement.

Guatemala

Honduras

Jamaica

   "Margin of dumping" in relation to any goods, means the amount by which the normal value of the goods in the exporting country exceeds the export price thereof.

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

   The margin of dumping shall be the difference between the normal value and the export price.

   The existence of a margin of dumping shall be determined by comparing:

         (a) The weighted average normal value and a weighted average of prices of all comparable export transactions; or

         (b) the normal value and the export prices corresponding to each transaction.

   A normal value established on a weighted average basis may be compared to prices of individual export transactions if export prices are found to 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. Sampling techniques may be employed to establish the normal value and export prices, using prices which occur more frequently or are considered more representative, provided that they relate to a significant volume of the transactions investigated.

   As a rule, an individual margin of dumping shall be determined for each known exporter or producer concerned of the product under investigation. In cases where the number of exporters, producers, importers or types of products involved is so large as to make such a determination impracticable, the examination may be limited to:

         (a) A reasonable number of interested parties or products, using samples which are statistically valid on the basis of information available at the time of the selection; or

         (b) the largest percentage of the volume of the exports from the country in question which can reasonably be investigated. Any selection of exporters, producers, importers or types of products made under this Article shall preferably be chosen in consultation with and with the consent of the exporters, producers or importers concerned.

   In cases where the examination is limited, as provided for in this Article, an individual margin of dumping shall nevertheless be determined for any exporter or producer not initially selected who submits the necessary information in time for that information to be considered during the course of the investigation, except where the number of exporters or producers is so large that individual examinations would be unduly burdensome and prevent the timely completion of the investigation.

   Voluntary responses shall not be discouraged.

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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