4. Steps of the Investigation
   
   
   9. Final Determinations
      
      
      WTO Standard: Public notice shall be given of any preliminary or final determination, whether affirmative or negative . . . . Each such notice shall set forth, or otherwise make available through a separate report, in sufficient detail the findings and conclusions reached on all issues of fact and law considered material by the investigating authorities. All such notices and reports shall be forwarded to the Member or Members the products of which are subject to such determination or undertaking and to other interested parties known to have an interest therein. (AD Agreement, Art. 12.2; SCM Agreement, Art. 22.3)

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 Agreements are complemented by the following:

   1. Injury

   The National Commission submits a report to the Under-Secretariat for Foreign Trade in the Secretariat for Industry, Trade and Mining of the Ministry of the Economy and Public Works and Services (Decree 2121/94, Art. 60) which contains, as a minimum, the following information:

         (a) Description of the industry and its international situation;

         (b) trends in the factors determining the relationship between imports under conditions of unfair competition and injury to the domestic industry, in particular:

               (I) Value and physical volume of imports under conditions of unfair competition;

               (II) effects of such imports on prices in the local market;

               (III) effects of such imports on, inter alia, employment, utilization of capacity, rate of return on investment and other factors which could be indicators of injury;

               (IV) effects of other factors on the competitive situation of the industry, including cyclical factors, entrepreneurial capacity, regulations and any other cause unconnected with unfair trade which may be a determining factor;

               (V) prospects for market trends in the absence of countervailing measures; and

               (VI) probable behavior of the market following application of the recommended measures.

   Effects of those measures on consumers.

         c) Recommendation on whether it is appropriate to apply or maintain trade measures in the form of anti-dumping or countervailing duties to offset the injury to the domestic industry. (Decree 766/94, Art. 12).

   2. Antidumping/Countervailing Duty Investigations

   In making a final determination, the Under-Secretariat for Foreign Trade submits its conclusions based on the report of the National Commission, its own report and causal relationship, to the Minister for the Economy and Public Works and Services in order that the Minister can make a final determination within 120 days of the issue of the preliminary determination. (Decree 2121/94, Art. 60).

   The Minister publishes the final determination under which anti-dumping and countervailing duties are imposed in the Official Gazette.

   The notice includes the goods involved, the level of duties, where appropriate, the country of origin or export and any other information at the discretion of the competent implementing authority. (Decree No. 2121/94, Art. 61).

Bolivia

   After the interested parties have been afforded an opportunity to put forward their arguments, and on the basis of the available evidence and information, the Technical Secretariat shall conclude the investigation and shall request the Under-Secretary for Exports and Economic Competition to convene the Committee on the Evaluation of Unfair Trade Practices in order to evaluate the findings of the investigation and make an appropriate recommendation to CONEPLAN through the Minister for Exports and Economic Competition.

   The Committee shall meet at the latest ten (10) working days after the conclusion of the investigation.

   CONEPLAN shall meet within five (5) working days following the meeting of the Committee. Bi-ministerial Decision, Art. 16 and 37.

Brazil

   Before a final determination is reached, a hearing shall be called by SECEX, in which the interested parties shall be informed of the basic facts presented for judgement, on which its decision is to be based, allowing the interested parties 15 days after the hearing to comment. (Dec. 1602/95 - Art. 33.caput, Dec. 1751/95 - Art. 43.caput). At the end of the period provided in the caput, the case shall be deemed closed and any information received thereafter shall not be considered in the final determination. (Dec. 1602/95 - Art. 33.2, Dec. 1751/95 - Art. 43.2).

Canada

   The Special Import Measures Act (SIMA) Subsection 43.(1) specifies that the Canadian International Trade Tribunal shall, forthwith after the date of receipt by the Secretary of notice of a final determination of dumping or subsidizing with respect to any of those goods, but, in any event, not later than 120 days after the date of receipt by the Secretary of notice of a preliminary determination with respect to the goods, make such order or finding with respect to the goods to which the final determination applies as the nature of the matter may require.

   With respect to notification of final determinations, SIMA Subsection 43.(2) requires the Secretary of the Tribunal to forward to the Deputy Minister of National Revenue, the importer, the exporter and such other persons as may be specified by the rules of the Tribunal:

         (a) a copy of each order or finding by the Tribunal, and

         (b) not later than fifteen days after the making of an order or finding by the Tribunal, a copy of the reasons for making the order or finding.

   SIMA Subsection 43.(3) requires the Secretary to publish each order or finding made by the Tribunal in the Canada Gazette.

Chile

   Public notice shall be given of all preliminary or final determinations, whether positive or negative, and whenever any definitive antidumping or countervailing duty is terminated. Information in sufficient detail must be provided in every such notice, or in a separate report, on all findings and conclusions with respect to questions of fact and of law that the investigating authority deems relevant. All such notices and reports must be sent to the country or countries whose goods are subject to the determination in question, and to any other known interested parties. (Supreme Decree No. 16, Ministry of External Relations, published in the Diario Oficial on May 17, 1995).

Colombia

   Within three months, counted from the day following publication of the order adopting the preliminary determination, INCOMEX shall convene the Committee on Trade Practices to submit the final results of the investigation, obtained by INCOMEX, for the Committee to offer its views.

   This time period may be extended by INCOMEX for up to one month, when INCOMEX considers that special circumstances so warrant. If the Committee on Trade Practices asks INCOMEX to provide further information on the results of the investigation, it may suspend the meeting for the time it deems necessary. Once the Committee on Trade Practices has issued its opinion on the results of the investigation, INCOMEX shall send the interested parties intervening in the investigation a document containing the essential facts that are the basis for the decision as to whether to apply final measures, to afford them to offer their written comments thereon to the Committee within 10 calendar days.

   Those comments may not refer to facts or circumstances not set forth prior to the expiration of the time period discussed at Article 53. The responses should be sent to the Secretariat of the Committee on Trade Practices, which should present them to the Committee, along with the technical comments of INCOMEX, within 10 calendar days, for the Committee to evaluate them and make its final recommendation to the Ministry. Within seven calendar days following the adoption of the recommendation by the Committee on Trade Practices, discussed in the final paragraph of the previous article, the Ministry of Foreign Trade shall adopt its decision by reasoned order. The order with which the final decision is adopted shall be published the day after its issuance in the Gaceta of the Ministry of Foreign Trade, INCOMEX Chapter.

   Within seven days following its publication, a copy shall be sent to the member country or countries whose products are the subject of the determination or undertaking in question, and to all other interested parties who have expressed interest in the investigation and have provided their address. The provisions contained in Articles 54 and 55 of this decree shall be observed for the purposes of the final determination.

Costa Rica

   Public notice shall be given of any preliminary or final determination, whether affirmative or negative, of any decision to accept an undertaking [...], of the termination of such an undertaking, and of the revocation of a determination.

   Each such notice shall set forth or otherwise make available through a separate report in sufficient detail the findings and conclusions reached on all issues of fact and law considered material by the investigating authorities.

   All such notices and reports shall be forwarded to the Member or Members the products of which are subject to such determination or undertaking and to other interested parties known to have an interest therein. Within three days of conclusion of the investigation, the investigating authority shall present the technical study and the pertinent recommendations to the Minister so that the latter, within three working days of receiving the report, may issue a resolution declaring the investigation completed, stating whether or not an anti-dumping or countervailing duty is called for and, if appropriate, revoking any provisional measure adopted.

Dominican Republic

Ecuador

   Up to ten (10) working days before the expiration of the period for the investigating authority to terminate the investigation, the interested parties may submit written arguments that support their case. Once this period has expired, no further documents, reports or evidence may be introduced. Once the period for concluding arguments has expired and before the expiration of the investigation period, the investigating authority, on the basis of the evidence and information in the file, shall draw up the conclusions of the investigation and submit them to COMEXI for decision. The definitive decision adopted by COMEXI shall consist in:

         
• The imposition of anti-dumping or countervailing measures and the determination of the amount;
           
• the withdrawal of the provisional measures; and/or
           
• the termination of the investigation without the imposition of anti-dumping or countervailing measures.

   COMEXI shall have a maximum of fifteen (15) working days from the receipt of the report to adopt a definitive decision. The decision adopted by COMEXI shall be notified by the Ministry of Foreign Trade, Industrialization and Fisheries to the Customs Technical Committee, for information and implementation. The resolution must contain the factual and legal basis for the decision and shall be published in the Official Journal and notified to the interested parties within five (5) working days of publication.

El Salvador

   Within three days after the investigation is ended, the Investigating Authority shall submit the technical study with the pertinent recommendations to the Minister so that the latter, within three working days after its receipt, through an explanatory decision, will declare the investigation ended and state whether it is appropriate to impose a definitive antidumping or countervailing duty and, if so, to revoke the temporary measure adopted.

   The decision imposing a final antidumping or countervailing duty shall be put into effect in accordance with each country's domestic law, and within 10 days after its issuance the parties concerned and SIECA shall be notified thereof so that the latter will make it known to the Executive Committee.

   Article 18 of the Central American Regulations on Unfair Trade Practices.

Guatemala

   Within three days after the investigation is ended, the Investigating Authority shall submit the technical study with the pertinent recommendations to the Minister so that the latter, within three working days after its receipt, through an explanatory decision, will declare the investigation ended and state whether it is appropriate to impose a definitive antidumping or countervailing duty and, if so, to revoke the temporary measure adopted.

   The decision imposing a final antidumping or countervailing duty shall be put into effect in accordance with each country's domestic law, and within 10 days after its issuance the parties concerned and SIECA shall be notified thereof so that the latter will make it known to the Executive Committee. Article 18 CARUTP.

Honduras

   Within three days after the investigation is ended, the Investigating Authority shall submit the technical study with the pertinent recommendations to the Minister so that the latter, within three working days after its receipt, through an explanatory decision, will declare the investigation ended and state whether it is appropriate to impose a definitive antidumping or countervailing duty and, if so, to revoke the temporary measure adopted.

   The decision imposing a final antidumping or countervailing duty shall be put into effect in accordance with each country's domestic law, and within 10 days after its issuance the parties concerned and SIECA shall be notified thereof so that the latter will make it known to the Executive Committee. Article 18 CARUTP.

Jamaica

   Where the Commission makes a preliminary determination of dumping or subsidizing in respect of goods, the Commission shall

         (a) publish notice of its determination as provided in section 25;

         (b) give written notice of its determination to the Minister, stating the reasons therefore, together with such other material relating to the determination as may be necessary.

   Within ninety days after making a preliminary determination of dumping or subsidizing in respect of goods, the Commission shall make a final determination of the matter

         (a) upon being satisfied, in relation to each importation of the goods, that the conditions specified in subsection (2) apply; and

         (b) after taking action in accordance with subsection (3).

   The conditions mentioned in subsection (1)(a) are that

         (a) the goods have been or are being dumped or subsidized; and

         (b) neither the margin of dumping of or the amount of the subsidy on the goods, nor the actual or potential volume of dumped or subsidized goods is negligible.

   The Commission shall specify in relation to each importation the following

         (a) in the case of dumped goods, the goods to which the determination applies and the margin of dumping of the goods;

         (b) in the case of subsidized goods

               (i) the goods to which the determination applies;

               (ii) the amount of the subsidy on the goods; and

               (iii) where the whole or any part of the subsidy is an export subsidy, the amount of the export subsidy on the goods.

   Where the Commission makes a final determination of dumping or subsidizing, the Commission shall notify the Minister accordingly and shall cause notice of such determination to be published as provided in section 25.

Mexico

   As established by Article 59 of the Law, the final decision determining the final countervailing duties is to be handed down by the Secretariat within 260 working days beginning the day following publication of the decision for initiation of the investigation in the Official Daily Gazette.

   In accordance with the provisions of the GATT Codes (5.10 of the Antidumping Code and 11.11 of the Code on Countervailing Duties) the resolutions may be issued in a period not to exceed 18 months.

Nicaragua

   Within three days after the investigation is ended, the Investigating Authority shall submit the technical study with the pertinent recommendations to the Minister so that the latter, within three working days after its receipt, through an explanatory decision, will declare the investigation ended and state whether it is appropriate to impose a definitive antidumping or countervailing duty and, if so, to revoke the temporary measure adopted.

   The decision imposing a final antidumping or countervailing duty shall be put into effect in accordance with each country's domestic law, and within 10 days after its issuance the parties concerned and SIECA shall be notified thereof so that the latter will make it known to the Executive Committee. Article 18 CARUTP.

Panama

   Once the arguments have been received, a reasoned ruling will be issued within in ten working days, confirming whether subsidies or dumping have occurred, whether there is significant injury or harm, or threat of injury or harm, to national production, whether a causal nexus between the two exists, and assessing countervailing or anti-dumping duties in respect of the products under investigation for unfair trade practices.

   Otherwise, the complaint will be dismissed and the proceedings halted. Article 168.

Paraguay

   Having given an ample opportunity to all the interested parties to submit all the evidence and information deemed pertinent, and based on such evidence and available information, the Ministry of Industry and Commerce will convene the Commission, within three calendar months counted from the date of the bi-ministerial resolution that contains the preliminary determination, so as to submit the conclusions and recommendations of the investigation to the Commission for its analysis and discussion.

   If in the view of the Ministry of Industry and Commerce there are special circumstances that so merit, this time period may be extended to an additional 30 calendar days.

   The Ministry of Industry and Commerce will forward, within a maximum period of one calendar month from the date on which the Commission is convened, its conclusions and recommendations.

   Within 30 calendar days and by justified bi-ministerial resolution, the Ministers of Industry and Commerce and of the Treasury shall make a final determination on the imposition of duties, based on the recommendations made, the evidence, and available information.

   Said bi-ministerial resolution should be reported to the interested parties and published in the Official Gazette within the next three working days.

   In case there is no verification of dumping or subsidies or of injury to the domestic industry, the respective resolution shall consider the investigation concluded and shall order the return of any provisional duty or the restitution of the guarantee where appropriate.

Peru

   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.

Santa Lucia

Trinidad and Tobago

   The Minister is required to make a final determination as to whether or not a duty should be imposed upon the subject goods within six months after the making of a preliminary determination. (Sec. 26(1)).

   The final determination must be published in the Gazette. (Sec. 26(2) and Sec. 32(c)).

   A notice of the Authority's Final determination must be given to the Government or Governments of the country or countries of the export of goods, the exporters and importers known by the Authority to have an interest in the subject goods, the complainant, and if necessary, the Government of the third country on behalf of whom the Minister is taking action.

   The final decision consists of an Order by the Minister which includes such provisions as

         (1) references to the particular persons or organizations involved in the production of the subject goods and

         (2) provisions defining the rate of duty. (Sec. (9)(1)).

   If the provisional duty collected is, in relation to the duty imposed following a final determination is

         (1) higher, there is no requirement to pay the difference or

         (2) lower, the difference is refunded. (Sec. 25(3)).

United States

   1. Commerce

   In a CVD investigation, Commerce must issue its final determination within 75 days after the date of its preliminary determination.

   In an AD investigation, Commerce must issue its final determination either 75 days or 135 days after the date of the preliminary determination. A longer period is permitted for making a final AD determination if the investigation is determined to be extraordinarily complicated.

   If Commerce's final AD or CVD determination is negative, the investigation is terminated and the ITC does not make a final injury determination.

   An affirmative determination by Commerce results in the suspension of liquidation (if not already in effect as a result of an affirmative preliminary determination).

   The ITC will then issue a final injury determination.

   2. ITC

   If Commerce makes an affirmative finding of dumping or countervailable subsidies, the ITC must issue a final injury determination within 120 days of the Commerce affirmative preliminary determination or 45 days of Commerce's final affirmative determination, whichever is later.

   If Commerce issued a negative preliminary determination and an affirmative final determination, the ITC must make its final injury determination within 75 days after Commerce's final affirmative determination.

   The ITC's determination is accompanied by written views explaining the basis for the determination.

   If the ITC finds injury or threat of injury to the domestic industry, an AD or CVD order is issued. From that point on, the U.S. Customs Service will require that all importers pay cash deposits on all entries of the subject merchandise in the amount of the producer/exporter specific AD or CVD rate or in the amount of the "all others" rate.

Uruguay

Venezuela

   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).

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