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VENEZUELA OFFICIAL GAZETTE OF THE REPUBLIC OF VENEZUELA Year CXIX - Month IX Caracas, Thursday, 18 June 1992 Special edition No. 4.441
LAW ON UNFAIR FOREIGN TRADE PRACTICES The Congress Of The Republic Of Venezuela Decrees The following: CHAPTER I ARTICLE 1: This Law regulates the policies, guidelines and measures aimed at forestalling and preventing the adverse effects on domestic industry of imports of goods under dumping conditions or of goods whose production, manufacture, storage, transport or export has been subsidized, or whose raw materials or inputs have been subsidized, in all cases where the provisions of the Cartagena Agreement on distortions in competition arising out of dumping or subsidy practices are not applicable. ARTICLE 2: For the purposes of this Law, the following definitions apply: 1. Commission: The Anti-Dumping and Subsidies Commission established under this Law; 2. Anti-dumping duty: A provisional or definitive special levy established to counteract the prejudicial effects of imports under dumping conditions; 3. Countervailing duty: A provisional or definitive special levy established to counteract any direct or indirect subsidy granted for the manufacture, production, storage, transport or export of a good, including subsidies granted for its raw materials or inputs; 4. Dumping: The introduction of goods for marketing or consumption in Venezuela at less than their normal value; 5. Margin of dumping: The amount by which the normal value exceeds the export price; 6. Other interested parties: (a) The foreign producer or exporter of the good investigated; (b) The importer of the said good; (c) Chambers or associations the majority of whose members are producers, exporters or importers of the said good or a like good; (d) The government of the country of export or of origin, as appropriate; (e) The producer of a like good in Venezuela; (f) The industrial users of the good investigated; (g) Consumer organizations in cases where the good is usually sold at the retail level; and (h) 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. 7. Country of export: Country from which the dumped or subsidized good is directly dispatched to Venezuela; 8. Country of origin: Country in which the dumped or subsidized good originated; 9. Export price: The price established in conformity with the guidelines in Article 6 of this Law; 10. Dumped good: A good whose export price is less than its normal value; 11. Like good: A good which is identical to or a substitute for the dumped or subsidized good, or any other good whose characteristics and utilization closely resemble those of the dumped or subsidized good; 12. Technical Secretariat: The Technical Secretariat of the Commission; 13. Subsidy: Any financial contribution, bounty, aid, form of subvention or premium established by a government or a public or mixed body in a foreign country, or any form of income or price support, through which a benefit is conferred on specific enterprises or branches of industry in addition to those conferred on other enterprises or branches of industry; 14. Normal value: For the purposes of this Law, normal value means the comparable price actually paid or payable, in the ordinary course of trade, for the allegedly dumped good when destined for consumption in the country of export or of origin, as appropriate; 15. Sale: For the purposes of this Law, leasing and a promise to sell or to lease shall be deemed to be a contract of sale; and 16. ASSOCIATED PERSONS: (a) Natural persons who are blood relations to the fourth degree or the second degree of relationship by marriage, as well as married couples; (b) The common administrators of two legal persons, whatever their nature; (c) Partners or associates of any legal persons; (d) Employer and employee; (e) Persons who directly or indirectly control the same person or are controlled by the same person; (f) Two persons one of whom directly or indirectly controls the other; persons of whom one directly or indirectly owns, holds or controls at least fifty per cent (50%) of the voting stock or shares or other forms of equity participation with voting rights; (g) Two persons one of whom directly or indirectly owns, holds, or controls at least fifty per cent (50%) of the other person's voting stock or shares or other forms of equity participation with voting rights; and (h) Other persons specified in the Regulations. SINGLE PARAGRAPH: The Regulations shall determine the characteristics which allow related persons and compensatory agreements to be identified. ARTICLE 3: A good shall be considered as being dumped when the price of export to Venezuela is less than the normal value of a like good. ARTICLE 4: Any product that is dumped when imported or in the process of being imported into Venezuela or which has received subsidies may be subject to the payment of anti-dumping or countervailing duties, as appropriate, if it causes or threatens to cause material injury to the domestic industry producing like goods. SINGLE PARAGRAPH: No good shall be subject to both anti-dumping and countervailing duties to redress the same situation resulting from dumping or subsidization. CHAPTER II SECTION 1 ARTICLE 5: The normal value shall be calculated in the country of export. However, when the goods are merely transshipped through the country of export or there is no comparable normal value in the country of export, the normal value shall be determined in the country of origin of the allegedly dumped goods. Where it is not possible to determine the normal value of the allegedly dumped goods in the country of export or country or of origin because there is no domestic market, prices are fixed by the State or for any other reason, the normal value may be calculated by the Commission in accordance with the procedures established for this purpose in the Regulations. SECTION II ARTICLE 6: The export price shall be the price actually paid or payable for the good sold for export to Venezuela, net of taxes, discounts and reductions actually granted and directly related to the sales concerned. Where the Commission considers that the export price is not representative of the market because of associations, agreements or compensatory arrangements between the exporters and importers of the said good, the export price may be calculated by the Commission in accordance with the rules laid down in the Regulations. SECTION III ARTICLE 7: For the purposes of determining the existence of dumping and its margin, the normal value and the export price shall be compared fairly. The comparison shall be made at the same level of trade, usually at the ex-factory level, taking into account the nearest possible dates and making the adjustments which the Commission considers necessary for any differences in the physical characteristics of the goods, the import duties and indirect taxes, selling costs for sales at different levels of trade, in varying quantities or under different conditions. FIRST PARAGRAPH: Any of the parties to an anti-dumping investigation may request an adjustment, furnishing evidence that the request is justified. SECOND PARAGRAPH: The Regulations of this Law shall determine the adjustments to be made to the normal value or export price, as appropriate, in order to ensure a fair comparison. ARTICLE 8: In comparing prices, where the prices vary, the Commission shall adopt the following guidelines, inter alia: 1. The normal value shall be calculated on a weighted average; 2. The export price shall be compared with the normal value on a transaction_to_transaction basis if the use of weighted averages materially affects the findings of the investigation; and 3. Sampling techniques may be used, for example, by taking into account the prices that most frequently occur or are deemed to be most representative, in cases where there is a large number of transactions. CHAPTER III ARTICLE 9: For the purposes of this Law, the following shall be considered subsidies: 1. The provision by governments of direct subsidies to a firm or an industry contingent upon export performance; 2. Mechanisms for the granting of foreign currency or any similar practices which involve a bonus on exports; 3. Internal transport and freight charges on export shipments, provided or mandated by governments, on terms more favourable than for domestic shipments; 4. The provision by governments or their agencies either directly or indirectly of imported or domestic goods or services for use in the production of goods to be exported or sold on the domestic market on terms or conditions more favourable than for provision of like goods or services, if such terms or conditions are more favourable than those commercially available on world markets to their exporters; 5. The full or partial exemption, remission or deferral, specifically related to exports, of direct taxes or social welfare charges paid or payable by industrial or commercial enterprises; 6. The allowance of special deductions directly related to exports or export performance, over and above those granted in respect to production for domestic consumption, in the calculation of the base on which direct taxes are changed; 7. The exemption or remission, in respect of the production and distribution of exported goods, of indirect taxes in excess of those levied in respect of the production and distribution of like goods when sold for domestic consumption; 8. The exemption, remission or deferral of prior-stage cumulative indirect taxes on goods or services used in the production of goods destined for export in excess of the exemption, remission or deferral of like taxes on like goods when sold for domestic consumption. However, such exemption, remission or deferral shall not be considered a subsidy when the taxes that are the subject of such measures are applied to goods physically incorporated, making normal allowance, in the goods to be exported; 9. The remission or drawback of import charges in excess of those levied on imported goods that are physically incorporated in the good exported, making normal allowance for waste; however, in particular cases, a firm may use a quantity of home market goods equal to, and having the same quality and characteristics as, the imported goods as a substitute for them in order to benefit from this provision if the import and the corresponding export operations both occur within a reasonable time period, which shall not normally exceed two (2) years; 10. The provision by governments or special institutions controlled by governments of export credit guarantee or insurance programmes, of insurance or guarantee programmes against increases in the cost of exported products or of exchange risk programmes, at premium rates which are manifestly inadequate to cover the long-term operating costs and losses of the programmes; 11. The grant by governments or special institutions controlled by and acting under the authority of governments of export credits at rates below those which they actually have to pay for the funds so employed, or would have to pay if they borrowed on international capital markets in order to obtain funds of the same maturity and other credit terms and denominated in the same currency as the export credit, or the payment by them of all or part of the costs incurred by exporters or financial institutions in obtaining credits, in so far as they are used to secure a material advantage in the field of export credit terms; and 12. Any others as may be determined by the Commission in conformity with paragraph 13 of Article 2 of this Law. ARTICLE 10: The amount of the subsidy shall be calculated in monetary units or ad valorem percentages per unit of the subsidized product imported. For the purposes of this Law, the following deductions shall be made from the total subsidy: 1. Any cost necessarily incurred in order to be entitled to the subsidy or to benefit therefrom; and 2. Taxes, duties and other levies charged on export to Venezuela with the aim of offsetting the subsidy. Any person requesting the above-mentioned deductions shall prove to the satisfaction of the Commission that there are grounds for making them. CHAPTER IV ARTICLE 11: The Commission shall determine the existence or threat of material injury to the domestic industry producing like goods or material retardation of the start-up of such an industry due to the import of dumped or subsidized goods. SINGLE PARAGRAPH: In exercising this responsibility, the Commission shall consider whether the country of export or of origin, as appropriate, requires or might require proof of injury, threat of injury or material retardation caused to Venezuelan exports. If such proof is not required, it may be presumed that injury, threat of injury or material retardation exist, within the meaning of this Article. ARTICLE 12: In order to determine the injury referred to in the previous Article, the volume of dumped or subsidized imports and their effect on the prices of like goods on the domestic market as well as the effects of such imports on domestic goods, shall be considered. SINGLE PARAGRAPH: In investigating the injury, imports coming from or originating in two or more countries may be cumulated to assess the effect of these imports on domestic industry, if the imports from the countries in question have been the subject of an anti-dumping or subsidy investigation during the year prior to the date of the initiation of the corresponding anti-dumping or subsidy procedure. ARTICLE 13: A determination of a threat of injury shall be made only when a particular situation may become a situation of actual injury. Consequently, the determination shall not be based on allegation, conjecture or remote possibility. ARTICLE 14: For the purposes of determining the existence or threat of injury, the expression "domestic industry" shall be interpreted as referring to domestic producers as a whole of like goods, or to those of them whose collective output constitutes a major proportion of the total domestic production of these goods. For the purposes of this determination, producers associated with exporters or who are themselves importers of the dumped or subsidized goods shall not be taken into consideration. SINGLE PARAGRAPH: In exceptional cases, the Commission may consider that domestic industry is divided into two or more separate markets: 1. Where the major part of the production of a good in a particular region is sold in that region; 2. Where demand for the good in question in that region is not to any substantial degree supplied by producers located elsewhere in the country. In such circumstances, injury may be found to exist even where a major portion of the domestic industry is not injured, provided that there is a concentration of dumped or subsidized imports destined to be marketed or consumed in the region in question, which are causing injury to all or a major part of the production of like goods in the region. CHAPTER V ARTICLE 15: The Commission may impose anti-dumping or countervailing duties, as appropriate, where there is proof of the existence of dumping or the granting of subsidies which is causing or threatening to cause material injury to the domestic industry producing like goods or causing the material retardation of the establishment of such an industry. ARTICLE 16: The anti-dumping or countervailing duties to be imposed shall under no circumstances exceed the margin of dumping or the amount of the subsidies respectively. Anti-dumping or countervailing duties may be less than the aforementioned limits when the Commission considers that they are sufficient to remove the injury or threat of injury. ARTICLE 17: Anti-dumping and countervailing duties may be ad valorem specific or mixed, whichever method is deemed most appropriate by the Commission, and may be calculated in the foreign currency on the invoice for the good. The equivalent amount in Bolivars shall be paid, calculated according to the guidelines in the Law on the Central Bank of Venezuela concerning liabilities in foreign currency. ARTICLE 18: Where an anti-dumping or countervailing duty is established with respect to a good, the duty shall be imposed in the amount appropriate to each case and without discrimination on imports of the good, from whatever source when it has been determined that they are dumped or subsidized and are causing injury, with the exception of imports from sources that have accepted undertakings as provided for in Chapter VI. The Commission shall inform the supplier or suppliers concerned. However, if several suppliers belonging to the same country are involved and it is impossible to identify them all, the Commission may inform the country concerned. If several suppliers from more than one country are involved, the Commission may inform all the suppliers involved or, if this is not possible, all the supplier countries involved. ARTICLE 19: In the terms provided for in this Law, 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. ARTICLE 20: 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. ARTICLE 21: The anti-dumping and countervailing duties shall be reviewed at the intervals indicated in the Commission's decision, which shall not be less than one (1) year; however, the duty may be cancelled before the expiry of this period when the Commission considers that the causes which gave rise to the duty have ceased to exist. ARTICLE 22: Where the exporter pays the provisional or definitive anti-dumping or countervailing duties, additional duties may be imposed to offset the amount paid by the exporter. For this purpose, any of the parties concerned may provide the Commission with evidence of such payment and, when it has undertaken the corresponding investigation and heard the arguments of those concerned, the Commission may impose the aforementioned additional anti-dumping or countervailing duties. SINGLE PARAGRAPH: It shall be considered an indication that the exporter has paid the anti-dumping or countervailing duties if there is no increase in the selling price to the first independent buyer of the good subject to anti-dumping or countervailing duties in an amount equivalent to the duties, unless it is proved that the absence of any increase in the selling price is due to a reduction in costs or in the importers' profits from the product concerned. CHAPTER VI ARTICLE 23: The Commission may suspend or conclude a dumping or subsidy investigation before taking a final decision on the need to impose the corresponding duties when the domestic producers and the importers of like goods being investigated enter into an undertaking for the revision of 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. When the Commission has approved such an undertaking, it shall order its publication in the Official Gazette of the Republic of Venezuela. ARTICLE 24: In cases where an undertaking is accepted, 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 it is determined that there is no injury, the investigation shall be definitively concluded and the undertaking shall be declared null and void. ARTICLE 25: The Commission, through the Technical Secretariat, may request parties to an undertaking to furnish the information necessary to verify compliance with it. Failure to furnish this information shall be considered as non-fulfilment of the undertaking. ARTICLE 26: Where the Commission has grounds for considering that an undertaking has not been fulfilled, it shall give the interested party thirty (30) working days to present his arguments and, at the expiry of this period, it may apply anti-dumping or countervailing duties based on the facts established as at the time when the undertaking was accepted. CHAPTER VII ARTICLE 27: The Anti-Dumping and Subsidies Commission is hereby established as a decentralized body under the Ministry of Development with responsibility for considering and deciding upon procedures related to dumping and subsidies that do not come under the Board of the Cartagena Agreement in conformity with the Andean legal system. The Commission shall have a Technical Secretariat with verificatory and executive functions. The Commission shall take decisions which exhaust administrative channels and shall be published in the Official Gazette of the Republic of Venezuela. Pursuant to the provisions of the Basic Law on Administrative Procedure, they shall be notified to all interested parties involved in the respective procedure. SECTION I ARTICLE 28: The Commission shall be composed of one (1) Chairman, four (4) members and their respective alternates, who shall be appointed by the President of the Republic in the Council of Ministers. The members of the Commission shall be Venezuelan citizens of known probity and demonstrated expertise in the area of international trade or economics, whether as academics, university lecturers or professionals with five (5) years' experience in the area and subject of the Law's application. SINGLE PARAGRAPH: The following may not be appointed members of the Commission: 1. Persons convicted of offences or misdemeanours against property or public property or of false swearing; and 2. Persons who are blood relations to the fourth degree of the President of the Republic, the Minister for Development or any member of the Commission or the second degree of relationship by marriage or are the spouses of one of the above. ARTICLE 29: The Chairman of the Commission shall be appointed for four (4) years and may be re-elected. Members and alternates shall be appointed for two (2) years and may also be re_elected. In the absence of the Chairman, the member appointed as Vice-Chairman by the Commission shall act as Chairman; if the absence is definitive, the chairman shall be replaced by a person appointed by the President of the Republic in the Council of Ministers for the remainder of his term of office. The respective alternates shall replace members during temporary absences. Members whose absence is definitive shall be replaced by persons appointed by the President of the Republic in the Council of Ministers for the remainder of their terms of office. ARTICLE 30: Members of the Commission shall be appointed permanently for their respective terms of office and may only be removed by the President of the Republic through a reasoned decision in the following cases: 1. Physical incapacity to carry out their duties for more than six (6) months; 2. Conviction for a criminal offence; and 3. Duly proved inability or failure to discharge their functions, after having heard the opinion of the other members of the Commission. ARTICLE 31: The Chairman of the Commission may not discharge any other public or private function, except for honorary or academic functions conferred on him because of his office. ARTICLE 32: The Commission shall meet periodically or when convened by the Chairman. For its deliberations to be valid, at least four (4) of its members shall attend and decisions shall be taken by an absolute majority of votes. The unjustified absence of any member of the Commission at two (2) consecutive sessions shall lead to the immediate convening of the respective alternate. ARTICLE 33: The Commission shall have the following duties and responsibilities: 1. To decide on the initiation, suspension or conclusion of investigations on possible cases of dumping or subsidies; 2. To decide on the existence of dumping or subsidies and the injury they cause and, where appropriate, to impose provisional or definitive anti-dumping or countervailing duties; 3. Where appropriate, to accept the undertakings referred to in Chapter VI of this Law; 4. To adopt its own rules of procedure; 5. To publish a biannual bulletin showing the decisions taken during the previous six months, with any annotations necessary for their better understanding; and 6. Any other responsibilities assigned to it. ARTICLE 34: In discharging the functions mentioned in the previous Article, the Commission and its Technical Secretariat shall receive the cooperation of other public bodies, including: 1. The Ministry of Finance, the Ministry of External Relations and the Foreign Trade Institute, in investigations to determine the existence of dumping or subsidies; and 2. The Ministries of Agriculture and Livestock, and of Energy and Mines in determining the aspects mentioned in Chapter IV, according to the type of goods investigated. SECTION II ARTICLE 35: The Technical Secretariat shall be the Commission's verificatory and executive body and shall be directly subordinate to it. It shall be administered by the Chairman of the Commission and be given the staff necessary to discharge its responsibilities efficiently. FIRST PARAGRAPH: The officials of the Technical Secretariat shall be Venezuelan citizens of known probity and experience in the matters dealt with in this Law and shall be subject to the ineligibility criteria specified in Article 28 of this Law. SECOND PARAGRAPH: The officials and staff of the Technical Secretariat shall be governed by staff rules issued by the President of the Republic in the Council of Ministers. These rules shall specify: 1. The personnel administration system, including the procedure and conditions of recruitment, selection and employment; classification of posts, remuneration, permanency, promotion, disciplinary measures, responsibility and resignation, as well as other aspects related to the system. The Chairman of the Commission shall be responsible for personnel administration and, in this connection, shall ensure that the creation and filling of posts responds to the real operational requirements of the Technical Secretariat; and 2. Rights concerning dismissal, seniority, holidays, special end-of-year bonuses and social security shall only be granted to officials and staff of the Technical Secretariat individually.
ARTICLE 36: Responsibilities of the Technical Secretariat: 1. To receive of applications for investigation; 2. To carry out for the procedure to determine the existence of dumping or subsidies and the consequential injury, in conformity with this Law; 3. To coordinate of the related investigations; 4. To apply measures necessary to give effect to the Commission's decisions; 5. To maintain communication with interested parties; 6. To submit the relevant technical studies to the aforementioned Commission; and 7. Any other responsibilities assigned to it.
CHAPTER VIII SECTION I ARTICLE 37: Any natural or legal person who produces in Venezuela goods identical or similar to those allegedly dumped or subsidized may submit to the Technical Secretariat of the Commission an application for the initiation of the corresponding investigation. ARTICLE 38: The Commission may also initiate an investigation of dumping or subsidies ex officio when it considers that there are signs of such practices. ARTICLE 39: An application to initiate an investigation into unfair foreign trade practices shall contain the following requisites: 1. The elements laid down in Article 49 of the Basic Law on Administrative Procedure; 2. The name, specifications, characteristics, use or end-use of the foreign good concerned; 3. The name, specifications, characteristics, use or end-use of the like good produced in Venezuela, together with its manufacturing cost, market price and production cost; and 4. Any other facts or evidence proving the alleged dumping or subsidies, the injury and the causal relationship between them. SINGLE PARAGRAPH: To the extent possible for the applicant, the application shall also give the name and other information identifying the producer or producers of the allegedly dumped or subsidized good; information identifying the exporter or exporters of the said good to Venezuela, statistical data on such exports and their growth potential; the manufacturing cost and market price of the good concerned in the country of export to Venezuela and to third countries; information identifying the domestic producer or producers of the like good, as well as any other information considered useful in support of the application. ARTICLE 40: Within five (5) working days following the receipt of an application for an investigation into unfair foreign trade practices, the Technical Secretariat of the Commission shall consider the documentation submitted in order to determine whether the application meets the requirements set out in the previous Article. If this is the case, it shall transmit the file to the Commission immediately. If the application does not meet the requirements, within the following three (3) working days it shall inform the applicant in writing of any omissions or shortcomings in the application in respect of the elements indicated in Article 39 of this Law. SINGLE PARAGRAPH: If there are omissions or shortcomings in the application, the Technical Secretariat shall give the applicant a period of fifteen (15) working days to make good the omissions or shortcomings noted. If the applicant does not provide the supporting documentation required by the Technical Secretariat or if it is insufficient, the application shall not proceed. The Technical Secretariat shall take a decision within three (3) working days following the submission of the new information and shall notify its decision to the applicant immediately. ARTICLE 41: When the Technical Secretariat considers that the application meets the requirements laid down in Article 39 of this Law, it shall transmit the file to the Commission immediately, together with the supporting documents and additional information it deems relevant. Within ten (10) working days following the 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. ARTICLE 42: The Commission shall order the initiation of an investigation through a decision which specifies the good, and the importers and exporters concerned, and the country of origin or of export. It shall also contain a summary of the other data referred to in Article 39 of this Law and shall state that any other information relevant to the investigation shall be communicated to the Technical Secretariat. SINGLE PARAGRAPH: The decision to initiate an investigation 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 this Law. ARTICLE 43: The duration of an investigation into dumping or subsidies shall not usually be less than six (6) months. Immediately prior to the date of initiating the investigation and during it, 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 may also carry out investigations in third countries subject to the agreement of the enterprises concerned and provided that there is no opposition from the government of the country in question, which shall be officially informed of the intention to carry out such an investigation. ARTICLE 44: 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 this Law. ARTICLE 45: The persons mentioned in the previous Article may present their arguments in writing to the Technical Secretariat within sixty (60) working days from the date of initiation of the investigation. Within the same period, the Technical Secretariat shall give the said persons, 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. SINGLE PARAGRAPH: For the purposes of this Law, the nature and evaluation of the evidence shall be governed by the provisions of the Code of Civil Procedure. ARTICLE 46: 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. ARTICLE 47: The existence of an anti-dumping or subsidy investigation shall not hinder the procedures of customs clearance of the goods investigated. ARTICLE 48: The Commission and the Technical Secretariat shall not disclose any information received during the course of an anti-dumping or subsidy investigation when the party providing such information requests that it should be treated as confidential. For this purpose, 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. SINGLE PARAGRAPH: 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. ARTICLE 49: Where the Technical Secretariat considers that the request to treat information provided as confidential 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. ARTICLE 50: In the case of legal proceedings of whatever nature related to anti-dumping or subsidy investigations or its decisions, the Commission shall, upon request, transmit the confidential information available to it to the judges concerned; in such cases and in order to protect as far as possible the legitimate interest of the parties in non-disclosure of their trade secrets, the Commission shall inform the judge seeking such information of its confidential nature so that he may take the necessary measures. ARTICLE 51: Within thirty (30) working days of the date of conclusion of the investigation, which must take place within one (1) year from the date of its initiation, the Commission shall adopt one of the following decisions: 1. Termination of the anti-dumping or subsidy investigation without the imposition of any 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. In this case, the type and amount of duties to be imposed shall be established. ARTICLE 52: When the Commission has terminated an anti-dumping 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. ARTICLE 53: When the Commission decides to impose definitive anti-dumping or countervailing duties, it shall publish the corresponding reasoned decision containing the following elements: 1. Name, specifications, characteristics, tariff classification, use or end-use of the foreign good concerned; 2. Name and other information identifying the producer or producers of the said good, as well as the exporter or exporters to Venezuela; 3. Name and other information identifying the importer or importers of the said good into Venezuela; 4. Country of origin or of export of the said good; 5. Name, specifications, characteristics, tariff classification, use or end-use of the like good in Venezuela; 6. Name and other information identifying the producer in Venezuela of the said like good, where appropriate; 7. Margin of dumping, where appropriate, including a description of the method used to calculate it; 8. Description of the subsidies granted, where appropriate; 9. 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; 10. Amount of the definitive anti-dumping or countervailing duties; and 11. Method by which the provisional duties imposed are to be collected, where appropriate. SINGLE PARAGRAPH: Without prejudice to the single paragraph of Article 4, the decision may impose countervailing duties if both dumping and subsidization as well as the corresponding injury are alleged and proved. In such cases, only the higher duty shall be paid. ARTICLE 54: 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. ARTICLE 55: 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 (1) year has elapsed since the conclusion of the investigation. The Commission shall decide on the application to re-open the proceeding within thirty (30) working days following its receipt, by means of a reasoned decision. If the Commission considers that the proceeding should be re-opened, it shall open an investigation in conformity with this Chapter. The re-opening of the investigation shall not affect the measures in force. ARTICLE 56: 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 Secretariat, 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. ARTICLE 57: Anti-dumping or countervailing duties shall remain in force only as long as necessary to counteract the injury caused by dumping or subsidies, unless on this basis the Commission 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 (30) working days immediately prior to the period of thirty (30) 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. ARTICLE 58: When anti-dumping or countervailing duties or undertakings expire, an announcement to that effect shall be published in the Official Gazette of the Republic of Venezuela, indicating the corresponding date of expiry. ARTICLE 59: Where, after having carried out the procedure and declared unfounded an application for an investigation into unfair foreign trade practices, the Commission considers that the application was frivolous or malicious, it may impose a fine of up to 1 million Bolivars (Bs.1,000,000) on the applicant without prejudice to any civil action by the accused party. SECTION II ARTICLE 60: After the initiation of an investigation has been announced, provided there is evidence leading to a serious presumption of the existence of an unfair foreign trade practice causing injury to the domestic industry, the Commission may agree to impose provisional anti-dumping or countervailing duties on the allegedly dumped or subsidized goods, in conformity with Chapter V. The imposition of provisional duties shall be notified immediately to the importer of the goods subject to the measure and to the customs authorities. SINGLE PARAGRAPH: 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. ARTICLE 61: Provisional anti-dumping or countervailing duties may be paid in cash or guaranteed by a security issued by a bank or insurance company domiciled in the country, to the satisfaction of the Commission. SINGLE PARAGRAPH: The imposition of provisional duties paid or guaranteed by a security shall not hinder the customs clearance of the allegedly dumped or subsidized goods. CHAPTER IX ARTICLE 62: This Law shall enter into force sixty (60) successive days from its publication in the Official Gazette of the Republic of Venezuela. Done, signed and sealed in the Palacio Federal Legislativo at Caracas on the twenty-sixth day of the month of May, one thousand nine hundred and ninety-two, the 182nd year of independence and the 133rd year of the Federation. The President: Pedro Paris Montesinos The Vice-President: Luis Enrique Oberto G. Secretaries: Luis Aquiles, Moreno Cirimele, Douglas Estanga Fajardo Palacio de Miraflores, at Caracas, on the eighteenth day of June, one thousand nine hundred and ninety-two, the 182nd year of independence and the 133rd year of the Federation. For implementation (L.S.) Carlos Andres Perez Countersigned: Countersigned: |
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