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Compendium of Antidumping and Countervailing Duty Laws in the Western Hemisphere


Uruguay

 

I. Legal Authority to Impose Antidumping and Countervailing Duties

A. Treaties or Agreements

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.

B. Legislation

   Law No. 16.671 of 13 December 1994 approving the signed agreements resulting from the Uruguay Round of Multilateral Trade Negotiations contained in the Final Act signed at Marrakesh on 15 April 1994.

   Decree 142/996 of April 23, 1996 implements the Article VI of GATT 1994 which established the regime to which the member states of the WTO should adjust to the effects of the application of antidumping measures.

C. Regulations

   Decree 142/996 of April 23, 1996 mplements the Article VI of GATT 1994 which established the regime to which the member states of the WTO should adjust to the effects of the application of antidumping measures.

D. Administrative Practice, Handbook or Guide

II. Authorities Responsible for Conducting Investigations

A. Injury

B. Antidumping and Countervailing Duties

III. Methodologies/Definitions

A. Like Product

   The term "like product" shall be interpreted to mean a product which is identical, i.e. alike in all respects to the product under consideration, or in the absence of such a product, another product which, although not alike in all respects, has characteristics closely resembling those of the product under consideration.

B. Domestic Producers

   For the purposes of this Decree, the term "domestic industry" shall include the domestic producers as a whole of the like products or those of them whose collective output of the products constitutes a major proportion of the total domestic production of those products, except that:

         (a) When producers are related to the exporters or importers or are themselves importers of the allegedly dumped product, the term "domestic industry" may be interpreted as referring to the rest of the producers.

   For the purposes of this paragraph, producers shall be deemed to be related to exporters or importers only if:

               (i) One of them directly or indirectly controls the other;

               (ii) both of them are directly or indirectly controlled by a third person;

               (iii) together they directly or indirectly control a third person, provided that there are grounds for believing or suspecting that the effect of the relationship is such as to cause the producer concerned to behave differently from non-related producers.

   For the purpose of this paragraph, one shall be deemed to control another when the former is legally or de facto in a position to exercise restraint over the latter or direct his activities.

         (b) in exceptional circumstances the national territory may, for the production in question, be divided into two or more competitive markets and the producers within each market may be regarded as a separate industry if:

               (i) the producers within such market sell all or almost all of their production of the product in question in that market; and

               (ii) the demand in that market is not to any substantial degree supplied by producers of the product in question located elsewhere in the territory.

In such circumstances, injury may be found to exist even where a major portion of the total domestic industry is not injured, provided there is a concentration of dumped imports into such an isolated market and provided further that the dumped imports are causing injury to the producers of all or almost all of the production within such market.

C. Standing

   For the purpose of deciding whether to initiate an investigation, the implementing authority shall consider the evidence of dumping and injury simultaneously. The implementing authority shall also proceed to examine the degree of support for the application for the initiation of a dumping investigation on the part of the other domestic producers of the like product, for the purpose of verifying whether the application has been made by or on behalf of the domestic industry.

   The application shall be considered to have been made by or on behalf of the domestic industry if it is supported by those domestic producers whose collective output constitutes more than 50 per cent of the total production of the like product produced by that portion of the domestic industry expressing either support for or opposition to the application.

D. Polling

E. Normal Value

   For the purpose of this Decree, a product shall be considered as being dumped when it is introduced into the domestic market, including under the temporary admission procedure, at an export price that is less than its normal value. The normal value is the comparable price, in the ordinary course of trade, for the like product when destined for consumption in the exporting country. Normally, sales of the like product destined for consumption in the domestic market of the exporting country that constitute at least 5 per cent of the sales of the product exported to Uruguay shall be considered a sufficient quantity for the determination of the normal value. However, a lower percentage shall also be considered where it can be shown that this percentage nonetheless represents a quantity sufficient to provide for a proper comparison.

   When there are no sales of the like product in the ordinary course of trade in the domestic market of the exporting country or when, because of the particular market situation or the low volume of sales in the domestic market of the exporting country, such sales do not permit a proper comparison, the margin of dumping shall be determined by comparison with a comparable price of the like product when exported to a third country, provided that this price is representative, or with the cost of production in the country of origin plus a reasonable amount for administrative, marketing and general costs and for profits.

   For the purpose of determining normal value, sales of the like product in the domestic market of the exporting country or to a third country at prices below per unit (fixed and variable) costs plus administrative and marketing costs may be treated as not being in the ordinary course of trade.

   The provisions of the preceding paragraph shall apply only if the said sales are made:

         (a) Within an extended period of time, normally one year but in no case less than six months;

         (b) in substantial quantities, that is when:

               (i) the weighted average selling price of the transactions under consideration for the determination of the normal value is below the weighted average per unit costs, or

               (ii) the volume of sales below per unit costs represents not less than 20 per cent of the volume sold in the transactions under consideration for the determination of the normal value; and

         (c) at prices which do not provide for the recovery of costs within a reasonable period of time.

   When prices which are below per unit costs at the time of sale are above weighted average per unit costs for the period of investigation, such prices shall be considered to provide for recovery of costs within a reasonable period of time. For the purposes of Article 7, the amounts for administrative, marketing and general costs and for profits shall be based on actual data pertaining to production and sales in the ordinary course of trade of the like product by the exporter or producer under investigation. When such amounts cannot be determined on this basis, the amounts may be determined from:

         (a) The amounts actually incurred and realized by the exporter or producer in question in respect of production and sales in the domestic market of the exporting country of the same general category of products;

         (b) the weighted average of the amounts actually incurred and realized by other exporters or producers subject to investigation in respect of production and sales of the like product in the domestic market of the exporting country; or

         (c) any other reasonable method, provided that the amount for profit so established shall not exceed the profit normally realized by other exporters or producers on sales of products of the same general category in the domestic market of the exporting country.

   When the products under investigation are exported from or originate in countries which do not have a predominantly market economy and in which domestic prices are mainly set by the State, so that price comparability is difficult to establish, the normal value shall be determined on the basis of:

         (a) The price at which a like product of a third market-economy country is actually sold for consumption in the domestic market of that country or to other countries, including Uruguay itself, or failing that;

         (b) on some reasonable basis, including the price actually paid or payable in the Uruguayan market for the like product, duly adjusted if necessary, to include a reasonable margin of profit.

   For the purposes of the preceding Article, the third market-economy country shall be selected by taking into consideration the characteristics of the market for the product in question, the productive structures and the level of development. Provided that it constitutes an appropriate choice, the third country selected shall be one that is subject to the same investigation. Once an investigation has been initiated, the interested parties shall be informed of the criteria used to select the third market-economy country and may make any comments they consider relevant within a period of 10 days.

F. Calculation of Cost of Production

   For the purposes of the preceding Articles, costs shall normally be calculated on the basis of records kept by the exporter or producer under investigation, provided that such records are in accordance with the generally accepted accounting principles of the exporting country and reasonably reflect the costs associated with the production and sale of the product under consideration.

   All available evidence on the correct allocation of costs must be taken into account, including that which is made available by the exporter or producer in the course of the investigation, provided that such allocations have been historically utilized by the exporter or producer, in particular in relation to determining appropriate amortization and depreciation periods and allowances for capital expenditures and other development costs.

   Unless already reflected in the cost allocations under the preceding paragraph, costs shall be adjusted appropriately for those non-recurring items of cost which benefit future and/or current production, or for circumstances in which costs during the period of investigation are affected by start-up operations. The adjustment made for start-up operations shall reflect the costs at the end of the start-up period or, if that period extends beyond the period of investigation, the most recent costs which can reasonably be taken into account during the investigation.

G. Export Price

   The export price shall be the price actually paid or payable for the product exported to Uruguay, net of taxes, discounts and reductions actually granted and directly related to the sales concerned. In cases where there is no export price or where the export price is unreliable because of association or a compensatory arrangement between the exporter and the importer or a third party, the export price may be determined:

         (a) On the basis of the price at which the imported products are first resold to an independent buyer; or

         (b) on some reasonable basis, if they are not resold to an independent buyer or not resold in the condition as imported.

H. Export Price - Adjustments

   A fair comparison shall be made between the export price and the normal value. This comparison shall be made at the same level of trade, normally at the ex-factory level, and in respect of sales made at as nearly as possible the same time.

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

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

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

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

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

I. Injury

   For the purposes of this Decree, the term "injury" shall, unless otherwise specified, be taken to mean material injury to a domestic industry, threat of material injury to a domestic industry or material retardation of the establishment of such an industry.

   The determination of injury shall be based on positive evidence and involve an objective examination of:

         (a) The volume of the dumped imports;

         (b) the effect of the dumped imports on prices for like products in Uruguay; and

         (c) the consequent impact of these imports on Uruguayan producers of such products.

   With regard to the volume of the dumped imports, consideration shall be given to whether or not it is negligible and whether there has been a significant increase in dumped imports, either in absolute terms or relative to Uruguayan production or consumption. For the purposes of the investigation, the volume of imports from a particular country shall be regarded as negligible if it is less than 3 per cent of Uruguayan imports of a like product, unless countries which individually export to Uruguay less than the percentage in question collectively export more than 7 per cent of the said product.

   With regard to the effect of the dumped imports on prices, consideration shall be given to whether there has been a significant price undercutting by the dumped imports as compared with the price of a like product in Uruguay, 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. No one or several of these factors can necessarily give decisive guidance.

   Where imports of a product from more than one country are simultaneously subject to anti-dumping investigations, the effects of such imports may be cumulatively assessed only if:

         (a) The margin of dumping established in relation to the imports from each country is more than de minimis and the volume of imports from each country is not negligible; and

         (b) a cumulative assessment of the effects of the imports is appropriate in light of the conditions of competition between the various imported products and the conditions of competition between the imported products and the like domestic product. The margin of dumping shall be considered to be de minimis if it is less than 2 per cent, expressed as a percentage of the export price.

   The examination of the impact of the dumped imports on the domestic industry concerned shall include an evaluation 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. This list is not exhaustive, nor can one or several of these factors necessarily give decisive guidance.

   It must be demonstrated that there is a causal relationship between the dumped imports and the injury to the domestic industry referred to in Article 21. The demonstration shall be based on an examination of all the relevant evidence available.

   Any known factors other than the dumped imports which at the same time are injuring the domestic industry must also be examined, and these injuries should not be attributed to the imports in question. These factors include the volume and prices of imports not sold at dumping prices, contraction in demand or changes in the patterns of consumption, trade-restrictive practices of and competition between the foreign and domestic producers, developments in technology and the export performance and productivity of the domestic industry. The effect of the dumped exports shall be assessed in relation to the domestic production of the like product when available data permit the separate identification of that production on the basis of such criteria as the production process, producers' sales and profits. If such separate identification of that production is not possible, the effects of the dumped exports shall be assessed by the examination of the production of the narrowest group of products, which includes the like product, for which the necessary information can be provided.

J. Threat of Injury

   A determination of a threat of material injury shall be based on facts and not merely on allegation, conjecture or remote possibility. The change in circumstances which would result in dumping causing injury must be clearly foreseeable and imminent.

   A determination of the existence of a threat of injury shall be based, inter alia, on the following factors:

         (a) A significant rate of increase of dumped imports indicating the likelihood of substantially increased importation;

         (b) sufficiently free disposable, or an imminent, substantial increase in, capacity of the exporter indicating the likelihood of substantially increased dumped exports to the domestic market, taking into account the availability of other export markets to absorb any additional exports;

         (c) imports entering at prices that will have a significant depressing or suppressing effect on domestic prices, and would likely increase demand for further imports; and

         (d) inventories of the product being investigated.

   No one of these factors by itself can necessarily give decisive guidance but the totality of the factors considered must lead to the conclusion that further dumped exports are imminent and that, unless protective action is taken, material injury would occur.

K. Material Retardation

   For the purposes of this Decree, the term "injury" shall, unless otherwise specified, be taken to mean material injury to a domestic industry, threat of material injury to a domestic industry or material retardation of the establishment of such an industry.

L. Cumulation

   Where imports of a product from more than one country are simultaneously subject to anti-dumping investigations, the effects of such imports may be cumulatively assessed only if:

         (a) The margin of dumping established in relation to the imports from each country is more than de minimis and the volume of imports from each country is not negligible; and

         (b) a cumulative assessment of the effects of the imports is appropriate in light of the conditions of competition between the various imported products and the conditions of competition between the imported products and the like domestic product.

   The margin of dumping shall be considered to be de minimis if it is less than 2 per cent, expressed as a percentage of the export price.

M. De Minimis Provision

1. Antidumping

   The margin of dumping shall be considered to be de minimis if it is less than 2 per cent, expressed as a percentage of the export price. Without prejudice to closure ordered at the request of the applicant, the investigation shall conclude with an interministerial resolution that does not give rise to the application of anti-dumping duties when:

         (a) There is insufficient evidence of dumping or injury;

         (b) the margin of dumping is de minimis, within the meaning of the last paragraph of Article 22;

         (c) the volume of dumped exports, actual or potential, or the injury caused, is negligible within the meaning of Article 21.

2. Countervailing

N. Margin of Dumping

   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.

O. Subsidy Rate

IV. Steps of the Investigation

A. Petition Filing

   Except as provided for in Article 40, an investigation to determine the existence, degree and effect of any alleged dumping shall be initiated upon a written application by or on behalf of the domestic industry addressed to the Agricultural Planning and Policy Office (OPYPA) or the National Industry Directorate (DNI), depending on the nature of the product to be investigated.

   The application under the preceding Article shall include evidence of the existence of dumping, injury and a causal link between the dumped exports and the alleged injury. Simple assertion, unsubstantiated by relevant evidence, cannot be considered sufficient to meet the requirements of this paragraph. The application shall contain such information as is reasonably available to the applicant on the following:

         (a) The identity and domicile of the applicant and the address for notifications in the city of Montevideo. Where a written application is made on behalf of the domestic industry, it shall identify the industry on behalf of which the application is made by a list of all known domestic producers of the like product or associations of domestic producers of the like product and, to the extent possible, a description of the volume and value of domestic production of the like product accounted for by such producers;

         (b) an indication of the volume and value of the domestic production of the like product;

         (c) a complete description of the allegedly dumped product, the names of the country or countries of origin or export, the identity of each known exporter or foreign producer and a list of known importers importing the product in question;

         (d) information on representative prices at which the product in question is sold when destined for consumption in the domestic markets of the country or countries of origin or export or, where appropriate, information on the representative prices at which the product is sold from the country or countries of origin or export to a third country or countries, or on the constructed value of the product;

         (e) information on representative export prices or, where appropriate, on the representative prices at which the product is first resold to an independent buyer in Uruguayan territory;

         (f) information on the evolution of the volume of the allegedly dumped imports, the effect of these imports on prices of the like product in the domestic market and the consequent impact of the imports on the domestic industry, as demonstrated by the relevant factors and indices having a bearing on the state of the domestic industry listed in Article 23.

   If the application contains confidential information, the provisions of Articles 46 ff. shall apply.

   The implementing authority shall have 20 days in which to decide whether the application has been properly documented or is inadmissible. The application will be properly documented when all the requirements of Article 30 above are satisfied and the facts set out in the application have been checked and verified by preliminary summary examination.

   The implementing authority may, once only, request additional information from the applicant, indicating a time-limit for its submission. If additional information has been requested, the implementing authority shall have 20 days from the date of submission to decide whether the application has been properly documented or is to be considered finally inadmissible.

   A third country, through its authorities, may make an application for the imposition of anti-dumping duties.

   The application mentioned in the preceding Article must include information to show that the imports are being dumped in Uruguay and that this is causing injury to the domestic industry in the third country.

   The analysis of the application shall take into account the effects of the alleged dumping on the domestic industry in the third country. Thus, the injury shall not be assessed in relation only to the effects of the alleged dumping on the industry's exports to Uruguay or on its total exports. If a decision is taken to initiate an investigation, the national authorities shall seek the approval of the Council for Trade in Goods of the World Trade Organization.

Continue with Initiation of Investigation

 
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