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Compendium of Antidumping and Countervailing Duty Laws in the Western Hemisphere
I. Legal Authority to Impose Antidumping and Countervailing Duties
Article VI of the GATT 1995, the WTO Antidumping Agreement ("AD Agreement") and the Agreement on Subsidies and Countervailing Measures ("SCM Agreement").
These Agreements apply to all WTO signatories.
The 1993 Peruvian Constitution is the basic law governing all aspects of Peruvian legislation. With respect to the hierarchy of laws, the 1993 Constitution expressly grants the status and force of national law to international treaties in effect that have been signed by the State, and declares that such treaties form part of Peru’s domestic law. The Constitution requires that treaties be approved by Congress before being ratified by the President.
The prior approval of Congress is intended to ensure that the treaty is compatible and consonant with any international commitments that the country may have entered into previously, and with the State’s domestic legislation. Such approval is given by means of Legislative Resolutions, which are numbered consistent with the respective laws. In this regard, the Congress, by means of Legislative Resolution N° 26470, approved the Agreement establishing the World Trade Organization and the Agreements contained in the Final Act of the Uruguay Round. This Resolution was then promulgated by the President, and was published in the Official publication “El Peruano” on December 18, 1994.
As a result of that action, the Uruguay Round Agreements have had the force of law in Peru since January 1, 1995. Consequently, the 1994 Agreement on Application of Article VI of the GATT and the Agreement on Subsidies and Countervailing Measures, which are part of the Final Act of the Uruguay Round, have been incorporated into Peruvian national legislation and constitute the supreme legal provisions governing dumping and subsidy investigations by INDECOPI, which is the competent authority for assessing and determining the imposition of any antidumping and countervailing duties.
The Congress, in the process of approving treaties and legislation, reviews all domestic laws that it passes to ensure that they are compatible with international treaties in force, and is responsible for passing domestic legislation to give effect to such treaties.
It is thus Peruvian legislative practice to respect international obligations undertaken through treaties signed by Peru, and there is effective legislative control over domestic laws approved by Congress, as well as over Legislative Decrees, Emergency Decrees on specific matters and subsidiary regulations issued by the Executive, to ensure compliance with them.
Supreme Decree No. 043-97-EF establishes regulations for the rules laid down in the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, the Agreement on Subsidies and Countervailing Measures, and the Agreement on Agriculture, approved by the Democratic Constituent Congress in Legislative Decision No. 26470, in order to prevent and remedy distortion of market competition caused by dumping and subsidies.
The Texto Unico de Procedimientos Administrativos (TUPA) [Single Text of Administrative Procedures] of the Instituto de Defensa de la Competencia y la Propiedad Intelectual [Institute for the Protection of Competition and Intellectual Property], INDECOPI, constitutes the procedural and administrative manual to be followed by INDECOPI in performing its responsibilities, and the part of that text referring to the Dumping and Subsidies [Control] Commission thus serves, in effect, as a user’s guide for that agency’s investigations.
II. Authorities Responsible for Conducting Investigations
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).
B. Antidumping and Countervailing Duties
In Peru 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 preliminary determinations. The Tribunal for the Protection of Competition and Intellectual Property is the administrative authority responsible for hearing and deciding dumping and subsidy proceedings in injury and final determinations, pursuant to the provisions of Article 13 of that same Decree Law, as amended by Article 47 of Legislative Decree 807 (18/04/96).
A. Like Product
B. Domestic Producers
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.
E. Normal Value
For the purposes of this Supreme Decree, a product shall be considered as being dumped if its export price is less than its normal value or comparable price, in the ordinary course of trade, for a like product when destined for consumption in the exporting country.
The export price, the normal value or the comparable price referred to in the preceding paragraph shall be determined in conformity with Article 2 of the Anti-Dumping Agreement.
A particular market situation in the sense of Article 2.2 of the Anti-Dumping Agreement shall mean the following situations:
I. Where the level of openness in the country of origin resulting from tariff or para-tariff barriers does not permit a proper comparison because it causes distortion of domestic prices.
II. Where other special factors exist in the domestic market of the country of origin which, in the opinion of the Commission, do not permit a proper comparison because they cause distortion of domestic prices.
Where imports come from or originate in countries where there are distortions in the economy that do not permit them to be considered market economy countries, the normal value shall be determined on the basis of the comparable price in the ordinary course of trade at which the like product is actually sold in a third country with a market economy for domestic consumption, or, failing that, for export, or on the basis of any other method deemed appropriate by the Commission. For the purpose of determining the normal value, the Commission shall take into account the following criteria inter alia:
I. The production processes in the country with a free market economy and the country whose economy has distortions.
II. Scale of production.
III. Quality of the products.
Bearing in mind the foregoing factors, the choice of the country must not entail disadvantages for the producer or exporter in the country of origin.
F. Calculation of Cost of Production
G. Export Price
H. Export Price - Adjustments
A determination of injury shall be based on evidence and involve an objective examination of:
(a) The volume of the dumped or subsidized imports and their effect on prices in the domestic market for like products; and
(b) the consequent impact of these imports on domestic producers of such products.
For the purposes of the preceding Article, the Commission shall take into account the following criteria:
(a) With regard to the volume of the dumped or subsidized imports: a significant increase in the volume of dumped imports in absolute terms or relative to production, sales or consumption.
In considering whether the dumped or subsidized imports have increased significantly, the Commission shall take into account the following criteria inter alia:
(i) Whether the rate of increase of the dumped or subsidized imports has meant that these imports are not negligible in comparison with total imports during the period of the investigation, in conformity with Article 38 of these Regulations;
(ii) whether the rate or growth of the dumped or subsidized imports has meant that these imports came to represent an important proportion compared to production, sales or consumption during the period of the investigation.
(b) The effect that is caused or may be caused by the import of goods at dumped or subsidized prices on the prices of like domestic goods on the domestic market, considering whether the imported product is sold on the domestic market at a price considerably lower than that for like domestic products, or whether the effect of such imports is otherwise to depress prices to a significant degree or prevent price increases which otherwise would have occurred, to a significant degree.
II. With regard to the impact of the dumped or subsidized exports on the domestic industry concerned, there shall be an examination of all relevant economic factors and indices having a bearing on the state of the industry, including actual and potential decline in sales, profits, output, market share, productivity, return on investments, or utilization of capacity; factors affecting domestic prices; the magnitude of the margin of dumping; actual and potential negative effects on cash flow, inventories, employment, wages, growth, ability to raise capital or investments.
In the special case of agricultural subsidies, there shall be an evaluation of whether the cost of government support programs has increased, in conformity with the provisions laid down in the WTO's Agreement on Agriculture. No one or several of these economic factors and indices shall necessarily be sufficient to reach a definitive conclusion on the existence of injury. Determination of the causal relationship between the dumped or subsidized imports and the injury to the domestic industry shall also take into account other factors than the dumped or subsidized imports which at the same time are affecting domestic industry.
J. Threat of Injury
A determination of a threat of injury shall be based on facts and not on allegation, conjecture or remote possibility.
In making a determination regarding the existence of a threat of injury the factors mentioned in Articles 3.7 and 15.7 of the Anti-Dumping Agreement and the Subsidies Agreement respectively shall be taken into account inter alia.
K. Material Retardation
M. De Minimis Provision
Where the Commission determines that the margin of dumping or the amount of the subsidy is de minimis, or that the injury or threat of injury is negligible, it shall terminate the investigation.
The margin of dumping shall be considered to be de minimis if it is less than 8 per cent expressed as a percentage of the export price.
In the case of subsidies, the amount of the subsidy shall be considered de minimis if it is less than 3 per cent of the ad valorem f.o.b. price.
N. Margin of Dumping
O. Subsidy Rate
For the purposes of the Subsidies Agreement, a subsidy shall be deemed to exist if:
1. There is a financial contribution by a government or any public body within the territory of a Member, which involves a direct transfer of funds, potential direct transfer of funds or liabilities or, when government revenue that is otherwise due is foregone or not collected, or if a government provides goods or services - other than general infrastructure - or purchases goods at prices higher than the market price, or if the government makes payments to a funding mechanism, or entrusts or directs a private body to carry out one or more of the type of functions illustrated above which would normally be vested in the government and the practice, in no real sense, differs from practices normally followed by governments and benefit is thereby conferred.
2. There is any form of income or price support in the sense of Article XVI of the General Agreement on Tariffs and Trade 1994 and a benefit is thereby conferred.
A subsidy as defined in the preceding Article may be specific or non-specific. A specific subsidy shall be a subsidy that benefits an enterprise or industry or group of enterprises or industries. A subsidy which benefits certain enterprises located within a designated geographical region within the jurisdiction of the granting government shall be specific. A subsidy that benefits all industries in general shall be non-specific. The Subsidies Agreement establishes the criteria on which to determine whether a subsidy is specific or not.
IV. Steps of the Investigation
A. Petition Filing
Except as provided for in the following Article, an investigation to determine the existence of imports at dumped or subsidized prices, and the effects of these unfair international trade practices, shall be initiated upon a written application addressed to the Commission by an enterprise or group of enterprises accounting for at least 25 per cent of total domestic production of the product concerned, without prejudice to Articles 4 and 16 of the Anti-Dumping Agreement and the Subsidies Agreement respectively. The application shall include evidence of the following:
(a) The dumping or actionable or prohibited subsidy according to the definitions in the Agreement, as appropriate;
(b) injury within the meaning of the Anti-Dumping Agreement or the Subsidies Agreement whichever is appropriate;
(c) a causal link between the dumped or subsidized imports and the alleged injury or threat of injury.
The application shall contain the information requested in the questionnaires from the TUPA. In special circumstances, the Commission may decide to initiate an investigation ex officio, provided that it is in the national interest and in the opinion of the Commission the domestic industry affected is materially not able to submit the necessary application and there are indications of dumping or subsidies, injury and a causal relationship which justify the initiation of the investigation.
In the special case of an application to apply countervailing duties, after receiving the application, providing that the requirements laid down in the TUPA have been met, before initiating the corresponding investigation, the Commission shall communicate directly with the government of the country of origin or export concerned for the purpose of holding consultations with a view to reaching a mutually satisfactory solution regarding the application for the imposition of duties. Without prejudice to the preceding paragraph, the Commission may decide to initiate an investigation or apply provisional or definitive duties, pursuant to the provisions of the Subsidies Agreement.
B. Initiation of Investigation
In special circumstances, the Commission may decide to initiate an investigation ex officio, provided that it is in the national interest and in the opinion of the Commission the domestic industry affected is materially not able to submit the necessary application and there are indications of dumping or subsidies, injury and a causal relationship which justify the initiation of the investigation. The Commission may decide to initiate an investigation or apply provisional or definitive duties, pursuant to the provisions of the Subsidies Agreement.
Within thirty (30) days from the date of submission of the application, the Commission may:
(a) Accept the application and decide to initiate an investigation by means of a relevant decision; or
(b) Allow the applicant fifteen (15) days in which to meet the requirements of the TUPA.
This period shall be calculated from the day following the corresponding request and may be extended for a further 15 days. After the requirements have been met, the Commission shall have a period of fifteen (15) days in which to take a decision, which may be extended for a further fifteen (15) days. Where the necessary documents are not provided in an appropriate form within the time-limit, the Commission shall declare the application inadmissible and shall issue the corresponding decision, which shall be notified to the applicant.
(c) Reject the application because it considers that it is unfounded, issue the corresponding decision and notify this to the applicant.
C. Issuance of Questionnaire
D. Response to Questionnaire
E. Preliminary Determination
In cases in which any interested party refuses access to, or otherwise does not provide, necessary information within the time-limit fixed or significantly impedes the investigation, the Commission may decide to apply provisional or definitive duties pursuant to Article 6.8 of the Anti-Dumping Agreement and 12.7 of the Subsidies Agreement. The form and amount of the provisional measures shall be regulated by the relevant provisions of the sole amended text of the Code of Civil Procedure.
F. Conduct Verification
At the request of one of the parties, the Commission shall hold hearings to allow the parties to explain their position.
No party shall be obliged to attend a hearing and its absence shall not be detrimental to its cause. The Commission shall only take into account oral information given at the hearings if, within five (5) days following the hearing, it is presented in writing to the Commission.
I. Final Determinations
For the purpose of challenging a final decision, recourse may be had to an application for reconsideration and an appeal. The aforementioned appeals must be made within 15 days from the day following notification of the Commission's decision.
J. Maximum Length of Investigation
The authorities shall have nine (9) months to conclude their investigation.
This period shall be calculated from the date of publication of the Commission's decision to initiate an investigation in El Peruano. Provided that in the opinion of the Commission there are grounds for doing to, the period may be extended for one further period of three months.
K. Maximum Duration of Antidumping and Countervailing Duty Orders
The anti-dumping or countervailing duty shall remain in force as long as the causes of injury or threat of injury which led to their imposition persist, but pursuant to Article 11.3 of the Anti-Dumping Agreement and Article 21.3 of the Subsidies Agreement, this period shall not exceed five years.
In special circumstances, the Commission may levy definitive anti-dumping or countervailing duties on products marketed for consumption 90 days prior to application of provisional duties. In the case of subsidies, such definitive duties may be determined if there is an injury which it is difficult to repair caused by massive imports in a relatively short period of time and where the Commission deems it necessary, in order to preclude the recurrence of such injury, it may assess countervailing duties retroactively on those imports. No anti-dumping or countervailing duties shall be levied on products entered for consumption prior to the date of initiation of the investigation. In case of violation of an undertaking, the Commission may levy immediate provisional duties using the information available.
In such cases, definitive duties may be levied on products entered for consumption not more than 90 days before the application of such provisional measures, but under no circumstances before violation of the undertaking.
M. Best Information Available (or "Facts Available")
Where there is no response to the request referred to in the preceding paragraph, the Commission shall take a decision based on the information available.
N. Consumers as Interested Parties
O. Public Interest
P. Undertakings or Commitments
Where, during the course of an investigation, an exporter or government of a country exporting the dumped or subsidized goods voluntarily undertakes commitments in order to eliminate the injury to domestic industry, the Commission shall require the other interested parties to transmit their comments on the substance of the undertakings within fifteen (15) days.
Where the Commission accepts the undertaking made by the exporter or government of the exporting country, it shall issue a decision declaring the investigation suspended or terminated.
The aforementioned decision shall be based on the undertaking made.
Fulfillment of these undertakings shall be subject to periodic review either ex officio or at the request of one of the parties.
Where the Commission notes in the course of the review that the undertaking has not been respected or that there is unjustified delay in transmitting the information necessary to verify compliance, it shall give the interested party fifteen (15) days to present its arguments, at the expiry of which the Commission may immediately apply the relevant provisional duty, using the best information available.
In such cases, the Commission shall pursue the investigation and may levy definitive duties on products entered for consumption ninety (90) days before the application of provisional duties, except that any such retroactive assessment shall not apply to imports entered before the violation of the undertaking.
V. Review of Antidumping and Countervailing Duty Determinations
A. Annual Reviews
The review procedure shall be governed by the provisions laid down in Articles 18 to 53 of these Regulations, where applicable.
B. Duty Refund Review
C. Sunset Review
D. Changed Circumstances Review
After at least six months have elapsed since the conclusion of the investigation, at the request of any interested party or ex officio, the Commission may review the need for the continued imposition of the definitive anti-dumping or countervailing duties in effect.
In considering the application, the Commission shall take into account whether there is adequate evidence of a significant change in the situation that warrants a review of the duties imposed.
The review procedure shall be governed by the provisions of Articles 18 to 53 of these Regulations where applicable.
E. New Shipper Review
3. Judicial, Administrative or Other Review
F. Procedures for Due Process
1. Notification of Initiation of Investigation
Following publication of the decision to initiate an investigation in the Official Journal, El Peruano, the Secretariat shall notify the parties cited in the complaint so that within thirty (30) days from the date following the notification they may submit their answers in writing and reply to the corresponding questionnaires.
The notification shall be accompanied by a copy of the application submitted and of the annexes containing non-confidential information or, where appropriate, the documents relevant to an ex officio investigation, together with the questionnaires concerning the investigation. The time-limits applicable to foreign producers or exporters shall be counted from the date of receipt of the questionnaire, which shall be deemed to have been received one week from the date on which it was sent to the respondent in the country of origin or export. The Commission may extend the period of thirty (30) days for parties cited in the complaint which request an extension in order to prepare their explanations.
A request for extension shall be based on reasons or facts that justify its granting.
2. Questionnaires (Distribution, Response Time, Extensions, Supplements)
The Commission may require the data and information it deems relevant to allow it to fulfil its task directly from the parties cited in the complaint, customs agents, surveillance, transport and other companies and public or private sector bodies, which must provide this information within the time-limits fixed, on pain of liability. Where there is no response to the request referred to in the preceding paragraph, the Commission shall take a decision based on the information available.
3. Publication of Antidumping and Countervailing Duty Determinations
The decision to initiate an investigation, the decisions fixing provisional or definitive anti-dumping or countervailing duties, decisions lifting or modifying the duties or terminating or suspending the investigation shall be published in El Peruano once only.
4. Access to Public Information
Unless the information is confidential, evidence presented in writing by one interested party shall be made available to other interested parties participating in the procedure.
The Commission shall also send copies to any person who so requests and who proves a legitimate interest.
5. Access to Confidential Information
The Dumping and Subsidies Commission shall ex officio or at the request of a party decide that information presented by the parties is by nature confidential.
Confidential information presented by the parties to an anti-dumping or subsidies investigation shall be accompanied by a non-confidential summary thereof and, upon good cause, shall be treated as such by the authorities. Where information is deemed confidential either by its nature or at the request of one of the parties and the interested party has not shown good cause or submitted the corresponding non-confidential summary, the Commission's Technical Secretariat shall request it to justify the confidential nature of the information and provide the corresponding non-confidential summary within three (3) days.
These summaries should be in sufficient detail to permit a reasonable understanding of the substance of the information submitted in confidence.
In exceptional circumstances, the parties may indicate that such information is not susceptible of summary, and in such circumstances, a statement of the reasons why summarization is not possible must be provided. Where the parties which provided confidential information do not present the relevant justification or the corresponding non-confidential summary within the time-limit fixed, the Commission may decide not to take this information into account, unless it can be convincingly demonstrated by an appropriate source that the information is correct, or it may order its return, whichever is appropriate.
6. Decision Making Process (Ministerial Approval, Commission Vote, etc.)
G. Application and Collection of Duties
1. Suspension of Liquidation
2. Use of Bonds or Cash Deposits
Where the definitive duties are higher than the provisional duties paid or guaranteed, the amount in excess shall not be payable, except in the case referred to in the following Article of these Regulations.
In the contrary case, the difference shall be refunded. Where definitive duties are not established, the entire amount paid shall be refunded and the security given to cover the amount of the provisional duties imposed shall be refunded or released. The anti-dumping and countervailing duties referred to in these Regulations are paid on the invoiced f.o.b. value, in accordance with the rules of the General Customs Law on the payment of import duties. Provisional duties shall be paid or guaranteed by means of irrevocable, binding, unconditional and immediately cashable security issued by a banking or financial entity or by guarantee funds, expressed in United States dollars, pursuant to the rules of the aforementioned General Customs Law. Under no circumstances may the import of the goods for consumption be hindered by the investigation taking place and no authority may hinder their entry for consumption.
The Commission may, at the request of one of the parties, fix the administrative, procedural and other costs to be paid by the plaintiff to the importers and/or exporters if the application has been rejected.
3. Methods of Liquidation
The Commission may apply provisional or definitive anti-dumping or countervailing duties on the import of spare parts or components imported from the country of origin of the final product subject to definitive duties if there is proof that such goods are being imported for the purpose of circumventing the application of anti-dumping or countervailing duties imposed on the final product.
For this purpose, the Commission shall take the following factors into account, inter alia:
(a) Whether the product sold in Peru has been assembled or finished in Peru using spare parts or components produced in the country of origin of the final product subject to definitive duties;
(b) whether the product sold in Peru has been assembled or finished in a third country using spare parts or components produced in the country of origin of the final product subject to definitive duties;
(c) whether the product has been assembled or finished by a party related to the exporter or producer of the final product subject to definitive duties;
(d) whether the import of spare parts or components for the product subject to definitive duties and assembly or finishing of such products have increased following publication of the decision initiating the investigation;
(e) any other circumstance determining a change in the characteristics of trade for which there is no economic cause or justification other than imposition of the duty and if there is proof that payment of the definitive duties imposed on the final product is being circumvented.
The review procedure shall be governed by the provisions laid down in Articles 18 to 53 of these Regulations, where applicable.
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