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Compendium of Antidumping and Countervailing Duty Laws in the Western Hemisphere


(Continuation)

Venezuela

 

B. Initiation of Investigation

   Within five working days following receipt of an application, the Technical Secretariat of the Commission shall consider the documentation submitted in order to determine whether the application meets the requirements of [Article 39 of the 1992 Law).

   If so, it shall transmit the file to the Commission immediately.

   Otherwise, within the following three working days it shall inform the applicant in writing of any omissions or shortcomings and shall give the applicant 15 working days to rectify such omissions or shortcomings.

   The Technical Secretariat shall determine the sufficiency of the new information within three working days following submission and shall notify the applicant immediately.

   If the applicant does not provide the additional documentation required, the application shall not proceed. (1992 Law, Art. 40).

   If the Technical Secretariat considers that the application meets the requirements, it shall transmit the file to the Commission immediately.

   Within 10 working days following receipt of the file, the Commission shall decide whether to initiate an investigation.

   If it decides not to initiate an investigation, it shall give sufficient grounds for its decision and shall communicate it to the applicant immediately. (1992 Law, Art. 41).

   The Commission shall order initiation through a decision which specifies the good, the importers and exporters concerned, the country of origin or of export, as well as a summary of the other data referred to in Article 30.

   The decision to initiate "shall be notified to the applicant, and to the importers of the allegedly dumped or subsidized goods. In addition, an announcement containing an extract from the said decision shall be published in two (2) newspapers with broad national circulation to be indicated by the Technical Secretariat for this purpose. The announcement shall state the time-limit for the presentation of arguments and evidence laid down in Article 45 of [the 1992 Law]". (1992 Law, Art. 42).

C. Issuance of Questionnaire

   The Technical Secretariat shall send questionnaires and forms to the interested parties, who shall furnish the information requested within the time-limit laid down in the aforesaid documents.

   Failure to meet this obligation shall give rise to the [use of best information available]. (1993 Regulations, Art. 70).

D. Response to Questionnaire

   The Technical Secretariat shall send questionnaires and forms to the interested parties, who shall furnish the information requested within the time-limit laid down in the aforesaid documents.

   Failure to meet this obligation shall give rise to the [use of best information available]. (1993 Regulations, Art. 70).

E. Preliminary Determination

1. Injury

2. Antidumping

   The Commission "may establish provisional anti-dumping or countervailing duties on the basis of the elements available to it, provided that it has previously determined the existence of dumping or the granting of subsidies, as appropriate, and that there is sufficient proof of injury. The Commission may also change the amount of the provisional anti-dumping or countervailing duties established, notifying the interested parties of the change by publishing the corresponding decision". (1992 Law, Art. 19).

   "Provisional anti-dumping or countervailing duties shall be established through a decision by the Commission showing the amount and type of duty fixed, its duration, which shall not exceed the duration legally established for the rest of the procedure, the good concerned, the country of origin or of export, and the name of the producer or exporter". (1992 Law, Art. 20).

3. Countervailing

   The Commission "may establish provisional anti-dumping or countervailing duties on the basis of the elements available to it, provided that it has previously determined the existence of dumping or the granting of subsidies, as appropriate, and that there is sufficient proof of injury.

   The Commission may also change the amount of the provisional anti-dumping or countervailing duties established, notifying the interested parties of the change by publishing the corresponding decision". (1992 Law, Art. 19).

   "Provisional anti-dumping or countervailing duties shall be established through a decision by the Commission showing the amount and type of duty fixed, its duration, which shall not exceed the duration legally established for the rest of the procedure, the good concerned, the country of origin or of export, and the name of the producer or exporter". (1992 Law, Art. 20).

   Art. 60 of the 1992 Law allows for the following: "In the case of agricultural products for which the country of origin has granted subsidies whose nature, amount and effects can be determined on the basis of official publications and budgets of the country concerned, the Commission shall impose provisional countervailing duties to offset the margin of the subsidy fixed, as soon as it receives the relevant information".

F. Conduct Verification

1. Antidumping

   ". . . the Technical Secretariat shall collect all the information it deems necessary on the dumping or the subsidies and on the injury which they cause or might cause. For this purpose, the Technical Secretariat may, when it deems appropriate, examine the books of the importers, exporters or other traders involved in the transactions concerned".

   The Technical Secretariat can also conduct investigations in third countries, preliminary examination of the firms implicated and only if no opposition exists on the part of the government of the interested country. (1992 Law, Art. 43).

2. Countervailing

   Same as dumping provision; see above.

G. Hearings

1. Antidumping

   Within sixty working days from the date of initiation of the investigation, the Technical Secretariat shall give the applicant, importers and exporters involved in an investigation and other interested parties, "if they so desire, the opportunity to meet in order to exchange views and make any replies.

   For this purpose, the Technical Secretariat shall take into account the need to preserve the confidential nature of the information and the interests of the parties.

   No person shall be obliged to attend such a meeting and their absence shall not be detrimental to their case". (1992 Law, Art. 45).

2. Countervailing

   Same as dumping section; see above.

H. Briefs

   The applicant, importers and exporters involved in an investigation and other interested parties may present their arguments in writing to the Technical Secretariat within sixty working days from the date of initiation of the investigation. (1992 Law, Art. 45).

I. Final Determinations

   Within 30 working days of the date of conclusion of the investigation . . . , the Commission shall adopt one of the following decisions:

         (1) termination of the investigation without the imposition of duties and refund of any provisional duties paid or return of any security deposited; or

         (2) imposition of definitive duties and the definitive levying of the provisional duties imposed. (1992 Law, Art. 51).

   When the Commission has terminated an antidumping or subsidy investigation, it shall publish the corresponding reasoned decision ordering the refund of any provisional duties paid or the return of any security deposited. (1992 Law, Art. 52).

   When the Commission decides to impose definitive duties, it shall publish the corresponding reasoned decision containing, inter alia, the margin of dumping, where appropriate, including a description of the method used to calculate it, a description of the subsidies granted, where appropriate, and a description of the injury caused or likely to be caused to the domestic industry or an estimation of the material retardation of the establishment of the said industry. (1992 Law, Art. 53).

J. Maximum Length of Investigation

   The conclusion of an investigation "must take place within one (1) year from the date of its initiation". (1992 Law, Art. 51). [see section V.B. above regarding timing for initiation].

   Within 30 working days of the date of conclusion of the investigation, the Commission shall adopt a decision either to terminate the investigation without the imposition of duties, or to impose definitive duties (in which case the type and amount of duties shall be established). (1992 Law, Art. 52).

K. Maximum Duration of Antidumping and Countervailing Duty Orders

   Duties "shall remain in force only as long as necessary to counteract the injury caused by dumping or subsidies, unless the Commission, on grounds of injury to national production, decides to eliminate them, by means of a reasoned decision.

   Anti-dumping or countervailing duties and undertakings shall expire five (5) years after the date on which they entered into force or were last modified.

   Nevertheless, if any interested party considers that the expiry of the anti-dumping or countervailing duties or undertakings would result in renewed injury or threat of injury, it may submit its arguments to this effect to the Commission in writing within thirty (3) working days immediately prior to the period of thirty (3) working days before the expiry of the measures.

   The Commission may extend anti-dumping or countervailing duties or undertakings before their expiry for a single period not exceeding five (5) years from the date on which they should originally have expired." (1992 Law, Art. 57).

L. Retroactivity

M. Best Information Available (or "Facts Available")

   "If a party or a third country refuses to provide the necessary information or does not do so within the time-limit fixed by the Technical Secretariat or in any other way hinders the investigation, preliminary or definitive decisions may be adopted on the basis of the information available.

   If the Commission finds that the information submitted is false or misleading, it shall disregard the information and reject the applications by the person who submitted it". (1992 Law, Art. 46).

N. Consumers as Interested Parties

   "Other interested parties" include industrial users of the good investigated, consumer organizations in cases where the good is usually sold at the retail level, and other natural or legal persons whose direct personal and individual rights or legitimate interests might be affected by the procedure for determining dumping or subsidies or by its outcome, in the opinion of the Commission. (1992 Law, Art. 2,6(f), (g), and (h)).

O. Public Interest

1. Antidumping

2. Countervailing

   Same as dumping provision; see above.

P. Undertakings or Commitments

   The Commission may suspend or conclude a dumping or subsidy investigation before the final determination when the domestic producers and the importers of like goods being investigated enter into an undertaking for the revision or prices, the elimination or limitation of subsidies, or the reduction or elimination of the margin of dumping, as well as the harmful effects of such practices on the domestic industry.

   Such an undertaking shall be published in the Official Gazette of the Republic of Venezuela. (1992 Law, Art. 23).

   An undertaking may be rejected under circumstances; e.g., when the domestic producers party to the undertaking are not representative of producers as a whole [see 1993 Regulations Art. 57(1)], where the commission considers that the undertaking is impossible or impractical, where it is determined that the undertaking goes beyond the objective of offsetting the dumping or subsidy. (1993 Regulations, Art. 57).

   The injury investigation shall nevertheless be completed if the Commission so decides or receives a request to that effect from exporters representing a significant proportion of the trade involved or from the government of the country of export or of origin, whichever is appropriate.

   If the injury determination is negative, "the investigation shall be definitively concluded and the undertaking shall be declared null and void". (1992 Law, Art. 24).

   Undertakings which restrict or eliminate subsidies shall not be accepted without evidence that the competent government authorities have approved the undertaking. (1993 Regulations, Art. 58).

V. Review of Antidumping and Countervailing Duty Determinations

A. Annual Reviews

B. Duty Refund Review

   "If the importer shows to the satisfaction of the Commission that the anti-dumping or countervailing duties imposed exceed the actual margin of dumping or amount of the subsidies, the Commission shall order the refund of the excess amounts paid to the importer.

   For this purpose, the importer shall submit the relevant application to the Technical Secretary, attaching the documentation he deems relevant.

   The Commission, through its Technical Secretariat, shall carry out the relevant investigation and verification and shall take a decision within a period not exceeding four (4) months from the date of the application". (1992 Law, Art. 56).

C. Sunset Review

   Antidumping and Countervailing laws and committments will expire after five years from the date of entry into force or were last modified, unless it is considered that the expiration date of the antidumping or countervailing laws and committments would lead to a new injury or a threat of injury. (1992 law, Art. 57).

D. Changed Circumstances Review

   Any interested party who submits evidence of a change in circumstances, sufficient to justify re-opening the proceeding under which definitive anti-dumping or countervailing duties were established, may request the Commission to re-open the investigation provided that at least one year has elapsed since the conclusion of the investigation.

   The Commission shall decide within 30 working days whether to reopen the proceeding.

   If the investigation is reopened, it shall be "in conformity with [the procedural provisions of the 1992 Law and [...] shall not affect the measures in force". (1992 Law, Art. 55).

E. New Shipper Review

1. Antidumping

2. Countervailing

3. Judicial, Administrative or Other Review

   The decisions of the Commission on Antidumping and Subsidies can be reviewed judicially by the Corte Primera de lo Contencioso Administrativo.

   Likewise, the decision of the Technical Secretariat may be reviewed in the Administrative body.

F. Procedures for Due Process

1. Notification of Initiation of Investigation

   The decision to initiate shall be notified to the applicant, and to the importers of the allegedly dumped or subsidized goods.

   In addition, an announcement containing an extract from the said decision shall be published in two newspapers with broad national circulation to be indicated by the Technical Secretariat for this purpose.

   The announcement shall state the time-limit for the presentation of arguments and evidence laid down in Article 45 [regarding pleadings and hearings]. (1992 Law, Art. 42).

   The Commission shall order the initiation through a decision which specifies the good, and the importer and exporters concerned, and the country of origin or of export.

   It shall also contain a summary of the data contained in the petition and shall state that any other information relevant to the investigation shall be communicated to the Technical Secretariat. (Id.).

2. Questionnaires (Distribution, Response Time, Extensions, Supplements)

   The time limit for response to the questionnaire shall be specified in the questionnaire itself. (1993 Regulations, Art. 70).

3. Publication of Antidumping and Countervailing Duty Determinations

   Article 27 of the law states that all of the Commission's decisions (initiation, preliminary, or definitive) should be published in the Gaceta Oficial de la República de Venezuela and the interested parties notified.

4. Access to Public Information

   "The applicant, importers and exporters involved in an investigation and other interested parties shall have access to all the information provided to the Commission or the Technical Secretariat by any of the parties concerned, with the exception of the information declared confidential in accordance with [the 1992 Law]". (1992 Law, Art. 44)

   ". . . the party concerned shall indicate the grounds for treating the information as confidential and shall attach a non-confidential summary or an explanation of the reasons why such a summary cannot be made". (1992 Law, Art. 48)

5. Access to Confidential Information

   The Commission and Technical Secretariat shall not disclose any information when the party providing such information requests that it should be treated as confidential. (1992 Law, Art. 48).

The party concerned shall indicate the grounds for treating the information as confidential... . A request for confidential treatment shall be dealt with according to whether disclosure of the information would be of significant advantage to a competitor or would have any other adverse effect upon the person providing the information or upon a third party. (Id.).

   Where the Technical Secretariat considers that the request is not warranted, the information shall be attached to the file without prejudice to the informant's right to withdraw it if he so wishes. (1992 Law, Art. 50).

6. Decision Making Process (Ministerial Approval, Commission Vote, etc.)

   The Antidumping and Subsidies Commission rules on the imposition of antidumping or countervailing measures.

   The Commission is made up of a president and four voters and its decisions are adopted by absolute majority of votes.

G. Application and Collection of Duties

1. Suspension of Liquidation

2. Use of Bonds or Cash Deposits

   The Customs Service shall be responsible for collecting provisional and definitive anti-dumping or countervailing duties and for the definitive collection of provisional duties.

   Provisional duties may be paid in cash or guaranteed by a security from a bank or insurance company, to the satisfaction of the customs authorities.

   If they are paid in cash, the amount in question shall be kept in a special account until the Commission decides on its definitive collection or its refund. (1992 Law, Art. 54; see also Art. 61).

3. Methods of Liquidation

H. Other

1. Anti-Circumvention

   Article 18.1, Subsidies Agreement, op.cit.

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