LAW ON UNFAIR TRADE PRACTICES AND SAFEGUARD MEASURES
TITLE I
GENERAL PROVISIONS
Article 1. Protection against unfair trade practices that threaten to
cause or cause injury to national production, artificially distort trade
flows or jeopardize the confidence that constitutes the basis of free
trade is declared a matter of national interest.
Article 2. The purpose of this Law is to establish rules and procedures
to prevent or remedy any injury to a domestic industry that may be caused
by unfair foreign trade practices and to provide for appropriate temporary
measures in the event of imports in such increased quantities and under
such conditions as to cause or threaten to cause serious injury to
domestic producers of like products.
Article 3. Unfair foreign trade practices shall be deemed to be the
introduction into the country of goods at prices less than their normal
value, i.e. at dumped prices, or at subsidized prices in their country of
origin or provenance that actually cause or threaten to cause material
injury to a domestic industry. Dumped or subsidized imports shall be
subject to anti-dumping or countervailing duties, as appropriate, under
the conditions and in accordance with the procedures stipulated in this
Law and its regulations.
Article 4. Pursuant to this Law, safeguard measures may be established
where a given product is being imported in such increased quantities and
under such conditions as to cause or threaten to cause serious injury to a
domestic industry producing like or directly competitive goods.
Article 5. The provisions of this Law are public policy and of general
application, without prejudice to those of international treaties or
conventions to which the Dominican Republic is party.
Article 6. Any situation not covered by this Law or its regulations
shall be regulated in conformity with the Agreement on Implementation of
Article VI (Anti-Dumping or AD Agreement), the Agreement on Subsidies and
Countervailing Measures (SCM Agreement) and the Agreement on Safeguards of
the World Trade Organization (WTO).
Paragraph. Procedural matters or particular situations that are not
clearly and specifically covered by the aforementioned WTO Agreements
shall be regulated on a supplementary basis by administrative or other
legislation of the Dominican Republic.
Article 7. The Commission for the Regulation of Unfair Trade Practices
and Safeguard Measures, covered by Title V of this Law and hereinafter
referred to as "the Commission", shall be the competent national authority
responsible for investigations required under this Law and its regulations
and for determining the application of countervailing or anti-dumping
duties or safeguard measures, as appropriate.
TITLE II
UNFAIR TRADE PRACTICES
CHAPTER I
DUMPING
Article 8. An import shall be deemed to be at a dumped price where the
price of the imported product is less than the normal value of a like
product when destined, in the ordinary course of trade, for consumption in
the exporting country or the country of origin, as the case may be.
Article 9. For the purposes of this Law:
(a) "Normal value" shall mean the comparable price actually paid or
payable for a product similar to that imported, in the ordinary course of
trade, into the Dominican Republic for consumption or use in the domestic
market of the exporting country or the country of origin, as the case may
be. The comparison may be made with the price in the country of origin,
where, for example, the products are merely transhipped through the
exporting country, or the products are not produced or there is no
comparable price for them in the exporting country.
(b) "Like product" shall mean a product which is alike in all respects to
the product in question, or in the absence of such a product, to another
product which, although not alike in all respects, has characteristics
closely resembling those of the product in question.
(c) "Export price" shall mean, without prejudice to Article 12 of this
Law, the comparable price actually paid or payable for the product sold
for export to the Dominican Republic.
Article 10. Where there are no sales of the product under consideration
in the ordinary course of trade in the domestic market of the exporting
country, or where such sales do not permit proper comparison because of
the particular market situation or the low volume of the sales in the
domestic market of the exporting country, the normal value shall be
determined on the basis of either:
(a) The highest, representative and comparable price of the like product
when exported to a third country;
(b) the cost of production of the like product in the country of origin
plus a reasonable amount for administrative and selling costs and for
profits; in calculating the profit margin, the Commission shall strictly
follow the guidelines set out in the Agreement on Implementation of
Article VI of the GATT 1994.
First paragraph. For comparison, the Commission shall use the selling
price in third-country markets or a constructed value calculated on the
basis of the production cost, provided that the value of sales in the
domestic market of the exporting country accounts for five (5) per cent or
more of total sales of the product when exported to the Dominican
Republic. However, the Commission may apply a lower ratio where there is
evidence that the volume of sales in the domestic market is sufficient for
proper comparison.
Second paragraph. To establish the constructed price as indicated in the
previous paragraph, 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
investigation.
Article 11. In cases where there is no export price or where the export
price appears to be unreliable because there is clear evidence of
association or an arrangement between the exporter and the importer, the
export price may be constructed on the basis of the price at which the
imported products are first sold to a buyer on the local market. If the
products are not resold locally to an independent buyer or are not resold
in the condition in which they were imported, the price shall be
calculated on such reasonable basis as the Commission may determine.
Article 12. The margin of dumping shall be determined by comparing the
export price and the normal value of the product 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. In comparing the export price and the
normal value, the Commission shall make allowance for:
(a) Differences affecting price comparability, including differences in
conditions and terms of sale, taxation, levels of trade, quantities,
physical characteristics and any other differences that can be
demonstrated by the Commission to affect price comparability; as some of
the above factors may overlap, the Commission shall ensure that they do
not duplicate adjustments that have been already made under this Article;
(b) costs, including duties and taxes, incurred between importation and
resale, and profits accruing; if in these cases price comparability has
been affected, the Commission shall establish the normal value at a level
of trade equivalent to that of the constructed export price, or shall make
due allowance for the factors specified in the previous paragraph.
Article 13. In calculating the normal value, the Commission may exclude
sales in the domestic market or export sales to a third country at prices
that are lower than the fully allocated production costs plus an amount
for administrative and selling costs. It may do so only on condition that:
(a) Such sales have been made over an extended period of time (normally
one year);
(b) the average selling price in the domestic market is lower than the
weighted average per unit cost for the specified period, or the volume of
sales at prices lower than the per unit costs exceeds twenty (20) per cent
of the total;
(c) the costs have not been recovered within a reasonable period of time.
Paragraph. If the prices which are below the costs at the time of sale
are above the weighted average costs for the period of investigation, such
prices shall be considered to provide for recovery of costs within a
reasonable period of time.
Article 14. When price comparison requires a conversion of currencies,
the conversion shall be made using the rate of exchange on the date of
sale, except where a sale of foreign currency on forward markets is
directly linked to the export sale involved, in which case the rate of
exchange in the forward sale shall be used. Normally, the date of sale
shall be the date of contract, purchase order, order confirmation, or
invoice, whichever establishes the material terms of sale.
Article 15. For products imported from countries deemed by the
Commission to be non market economies, the normal value shall be
equivalent to the selling price for a like product designed for domestic
consumption in a third country with a market economy at a comparable level
of development, which may be regarded as a substitute for the country with
a centrally planned economy. If for any reason the selling price cannot be
established as specified above, the normal value may be regarded as
equivalent to the export price from the substitute country to a third
country or the constructed selling price for consumption in the substitute
country's domestic market.
CHAPTER II
SUBSIDIES
DETERMINATION OF SUBSIDIES
Article 16. The Commission shall impose countervailing duties equivalent
to the margin of subsidy where an investigation into the specific subsidy
granted to imported products in the country of origin determines that such
imports threaten to cause or cause injury to a domestic industry and there
is a causal relationship between the threat of injury or injury and the
subsidized imports.
First paragraph. For the purposes of this Law, merchandise shall be
deemed to be subsidized where there it is demonstrated that the government
of the country of origin or export, or, in the absence thereof, any
government agency or private entity appointed by the State, has made a
direct or indirect financial contribution of any kind, provided any form
or income or price support for the exported merchandise, foregone any
revenue that is otherwise due or has provided goods or services under
special terms, thereby conferring a benefit on the exporter.
Second paragraph. The following shall be considered subsidies for the
purposes of this Law:
(a) The provision by governments of direct subsidies to a firm or an
industry contingent upon export performance;
(b) mechanisms for the granting of foreign currency or any similar
practices which involve a bonus on exports;
(c) internal transport and freight charges on export shipments, provided
or mandated by the authorities, on terms more favourable than for domestic
shipments;
(d) the direct or indirect provision by governments or their agencies of
imported or domestic goods or services for use in the production of goods
to be exported or sold in the domestic market on terms or conditions more
favourable than those for the provision of like goods or services, if such
terms or conditions are more favourable than those commercially available
on world markets to their exporters;
(e) 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;
(f) the exemption, remission or deferral of 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 in the domestic market; 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;
(g) 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; in particular cases, however, 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 period of
time, which shall not normally exceed two (2) years;
(h) 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 goods or of exchange risk programmes, at premium rates which are
manifestly inadequate to cover the long-term operating costs and losses of
the programmes;
(i) 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, under the same credit terms and
denominated in the same currency as the export credits; 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 these are used to secure a
material advantage in export credit terms;
(l) any other benefits, advantages and measures as may be determined by
the Commission in conformity with the implementing regulations of this
Law.
Third paragraph. A measure shall be deemed to confer a benefit where it
provides conditions more favourable than those normally available on the
market. The use of multiple exchange rates in the country of origin or
export shall be considered a subsidy where it confers a benefit on the
exporter.
Article 17. The amount of the subsidy shall be calculated in monetary
units or ad valorem percentages per unit of the subsidized product
imported.
CHAPTER III
DUMPING, SUBSIDIES AND SAFEGUARDS
DETERMINATION OF INJURY AND THREAT OF INJURY
Article 18. For the purposes of this Law, "material injury" shall mean
the adverse impact on a domestic industry of dumped imports or imports
covered by any kind of specific subsidy within the meaning of the Law and
its regulations.
Article 19. For the purposes of this Law, "threat of injury" shall mean
a clearly foreseen and imminent risk of material injury to a domestic
industry.
Article 20. Determination of the existence or threat of material injury
through the effects of dumping or subsidization shall be based on positive
evidence and involve an objective examination of:
(a) The volume of the dumped or subsidized imports;
(b) the effect of such imports on prices of like products in the Dominican
Republic;
(c) the impact of dumped or subsidized imports on the domestic industry.
Article 21. Anti-dumping and countervailing duties may be imposed where
the Commission's investigation has found that:
(a) There has been a significant increase in imports at dumped or
subsidized prices, either in absolute terms or relative to domestic
production or consumption;
(b) imports are entering at a price below that of the like domestic
product and such imports have in some way depressed or prevented an
increase in the price of the like domestic product;
(c) this causes injury to the domestic industry or threatens to cause
injury to a domestic industry.
Paragraph. One or several of these factors cannot necessarily give
decisive guidance.
Article 22. To determine the impact of dumped or subsidized imports on
the domestic industry producing like goods, the Commission shall examine
all relevant economic factors and indices, including:
(a) Actual and potential decline in production, sales, market share,
profits, productivity, return on investments, utilization of installed
capacity, inventories and employment;
(b) factors affecting prices on the domestic market; and possibly
(c) actual or potential negative effects on cash flow and ability to raise
the capital needed for adjustment.
Paragraph. The above list of factors and indices is not exhaustive, nor
can one or several of these factors or indices necessarily give decisive
guidance.
Article 23. In making a determination regarding the existence of a
threat of material injury, the Commission shall consider factors such as:
(a) The nature and likely trade effect(s) of the subsidy or subsidies
under investigation;
(b) a rate of increase of dumped or subsidized imports indicating the
likelihood of substantially increased imports in the very near future;
(c) freely disposable, or an imminent substantial increase in, capacity of
the exporter indicating the likelihood of substantially increased dumped
or subsidized exports to the Dominican market, taking into account the
availability of other export markets to absorb the possible increase in
exports;
(d) whether imports are entering at prices that may have a significant
depressing or suppressing effect on domestic prices and would be likely to
increase demand for further imports;
(e) inventories of the investigated product.
Paragraph. No one of the above factors will by itself necessarily be
sufficient to make a final determination.
Article 24. For the purposes of applying safeguard measures, the
Commission shall understand "serious injury" to mean a significant overall
impairment in the position of a domestic industry. "Threat of serious
injury" shall be understood to mean serious injury that is clearly
imminent and based on facts and not merely on allegation, conjecture or
remote possibility.
Article 25. In relation to anti-dumping investigations and the
determination of subsidies, "domestic industry" shall mean all domestic
producers of like products; or a proportion of those domestic producers
whose collective output accounts for at least fifty (50) per cent of the
total domestic production of such products.
Paragraph. For the purposes of applying safeguard measures, "domestic
industry" shall mean all domestic producers of like or directly
competitive goods; or a proportion of those domestic producers whose
collective output of like or directly competitive products accounts for at
least fifty (50) per cent of the total domestic production of processed
goods.
Article 26. Where producers in the domestic market are related to the
exporters or importers or it is established that they themselves are
importers of the product under investigation or of a like product from
other countries, the term "domestic industry" may exclude such producers
and shall be interpreted as referring to the rest of the producers.
First paragraph. Domestic producers and exporters may be deemed to be
related where:
(a) One of them directly or indirectly controls the other;
(b) both of them are directly or indirectly controlled by a third person;
(c) 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.
Second paragraph. For the purposes of this Article, one person shall be
deemed to control another when the former is legally or operationally in a
position to exercise restraint or direction over the latter.
Article 27. The Commission may deem injury to exist even where fifty
(50) per cent or more of the domestic industry is not injured, in cases
where the latter can be divided into two or more competitive markets and
the producers within each market may be regarded as a separate industry.
For the purposes of such a finding, the Commission shall establish the
following:
(a) The producers in such a market sell all or almost all of their
production of the product in question in that market;
(b) the demand in that market is not to any substantial degree supplied by
producers of the product in question which are located elsewhere in the
territory;
(c) there is a large concentration of dumped or subsidized imports in such
an isolated market;
(d) the dumped or subsidized imports are causing injury to the producers
of all or more than fifty (50) per cent of all of the production in that
market.
CHAPTER IV
CAUSAL LINK
Article 28. Once the existence or threat of serious injury to the
domestic industry has been found, it is necessary to establish a causal
link. The investigation shall demonstrate, on the basis of objective
evidence, that the injury or threat of injury is a direct consequence of
the dumped or subsidized imports.
Paragraph. When other factors are causing injury to the domestic
industry at the same time, such injury may not be attributed to the
imports under investigation. In this respect, the Commission shall
consider factors such as:
(a) The volume and prices of imports not under investigation in connection
with the subject product;
(b) contraction in demand or changes in the patterns of consumption;
(c) trade restrictive practices of and competition between foreign and
domestic producers;
(d) developments in technology and export performance;
(e) productivity of the domestic industry.
Article 29. The effect of the dumped or subsidized imports shall be
assessed in relation to 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
performance and profits.
Paragraph. If domestic production of the like product cannot be
identified separately on the basis of such criteria, the assessment shall
be made by examining the production of the narrowest group or range of
products, which includes the like product, for which the necessary
information can be provided.
Article 30. Anti-dumping or countervailing duties may be applied without
a determination of injury or threat of injury to the domestic industry
when the goods come from a country with which the Dominican Republic has
not concluded a specific bilateral treaty or a multilateral treaty on the
subject.
Article 31. Where imports of a product from more than one country are
the subject of simultaneous anti-dumping or subsidy investigations, the
Commission, barring exceptional circumstances, shall cumulatively assess
the effects of such imports in the light of their role and importance in
competition between imported products and like domestic products. In so
doing, the authorities shall proceed in strict accordance with Article 3.3
of the Anti-Dumping Agreement and Article 15.3 of the Agreement on
Subsidies and Countervailing Measures of the WTO.
TITLE III
PROCEDURES
Article 32. Save in exceptional circumstances, an investigation to
determine the existence, degree and effects of alleged dumping or
subsidization shall be initiated upon a formal application by or on behalf
of the affected domestic industry. A written application to initiate an
investigation shall be lodged with the Commission, setting forth evidence
of:
(a) Dumping or subsidization;
(b) injury;
(c) a causal relationship between the dumped or subsidized imports and the
alleged injury.
Paragraph. The Commission shall reject the application if it fails to
meet the requirements of this Article.
Article 33. The application to initiate an investigation shall include
the following information:
(1) The identity of the applicant and a detailed description of the volume
and value of domestic production of the like product, including a list of
the domestic producers involved and the volume and value of production of
the like product accounted for by such producers;
(2) the estimated total volume and value of domestic production of the
like product;
(3) a complete description of the allegedly dumped or subsidized product,
its tariff classification, the name(s) of the country or countries of
origin or export in question, the identity of each known exporter or
foreign producer and a list of known persons importing the product in
question;
(4) a full description of the product produced by the domestic industry;
(5) information on the existence, including the amount and nature, of the
subsidy in question or on representative prices at which the product in
question is sold when destined for consumption in the domestic market(s)
of the country or countries of origin or export, or, where appropriate,
information on the prices at which the product is sold from the country or
countries of origin or export to a third country or third countries, or on
the constructed value of the product;
(6) data on export prices or, where appropriate, on the prices at which
the product is first resold to an independent buyer in the Dominican
Republic;
(7) information on the evolution of the volume of the allegedly dumped or
subsidized 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.
Paragraph. Relevant factors having a bearing on the state of the
domestic industry shall be consistent with several of those listed in
paragraphs 2 and 4 of Article 3 of the WTO Anti-Dumping Agreement and
Articles 15.2 and 15.4 of the WTO Agreement on Subsidies and
Countervailing Measures.
Article 34. An investigation shall not be initiated unless the
Commission has determined, on the basis of an examination of the degree of
support for, or opposition to, the application expressed by domestic
producers of the like product, that the application for investigation has
indeed been made by or on behalf of the domestic industry allegedly or
actually affected.
The Commission shall consider the application to have actually been made
by or on behalf of the domestic industry if it is supported by those
domestic producers whose collective output constitutes more than fifty
(50) per cent of total production of the like product produced by that
portion of the domestic industry expressing either support for or
opposition to the application.
Paragraph. No investigation shall be initiated by the Commission if
domestic producers expressly supporting the application account for less
than twenty-five (25) per cent of total production of the like product
produced by the domestic industry.
Article 35. In exceptional or special circumstances, in particular where
there is clear evidence of fragmentation of domestic production, the
Commission may initiate an investigation ex officio, without having
received a written application by or on behalf of the domestic industry,
provided that there is sufficient evidence of dumping or subsidization and
of the existence or threat of material injury, and a causal link between
dumping or subsidization and the injury or threat thereof.
Paragraph. Where the domestic industry is so fragmented as to involve a
particularly high number of producers, the Commission may use universally
recognized statistical sampling techniques to determine the degree of
support or opposition.
Article 36. Where the Commission has not yet decided to initiate an
investigation, it shall avoid any publicizing of the application. Where it
decides to initiate the investigation, it shall notify, via the Ministry
of Foreign Affairs, the government of the exporter concerned and any other
foreign parties involved and give public notice of its decision in a
national newspaper. Where the number of exporters involved is particularly
high, only the association of the exporting member or the relevant trade
association, as appropriate, shall be notified.
First paragraph. Public notice shall be given of any preliminary or
final resolution, whether affirmative or negative, of any decision to
accept an undertaking, of the termination of such an undertaking, and of
the termination of a definitive anti-dumping or countervailing duty.
Second paragraph. Investigations into unfair trade practices shall be
concluded within a period of six (6) months, which may, in exceptional and
duly justified cases, be extended to eighteen (18) months.
Article 37. To ensure maximum transparency once the application to
initiate an investigation has been accepted, the Commission shall ensure
that the aforementioned public notice contains the following information:
(a) The name(s) of the exporting country or countries and the product
involved and the date of initiation of the investigation;
(b) the grounds for the allegation of injury stated in the application and
a summary of the factors on which the allegation is based;
(c) the address and domicile of the Commission and the time-limits allowed
to members and interested parties for making their views known.
Paragraph. Once the investigation has been opened, the Commission shall
make the full text of the written application available, on request, to
interested parties. Likewise, interested parties shall be given access
throughout the proceedings to all relevant information that is not
confidential, so that they can use such information to prepare their
submissions. They shall be furnished with summaries of information
provided on a confidential basis by any of the parties.
Article 38. For the purposes of the investigation, the term "interested
parties" shall mean local producers and importers and foreign exporters of
the product under investigation, foreign legal persons with a demonstrated
interest in the matter, and trade or business associations a majority of
the members of which produce the like product in the Dominican Republic.
Article 39. Exporters or foreign producers shall be given at least
thirty (30) days following the issue of the notice of initiation of the
investigation to complete and return the investigation form and present
their evidence or arguments. The time-limit shall be extended for a
further thirty (30) days on request by any of the parties.
Article 40. During the investigation, the Commission shall request the
cooperation of the General Customs Directorate and any other government
body in obtaining and clarifying information about the case, including in
seeking information from other countries, via the Ministry of Foreign
Affairs.
Paragraph. Where appropriate, the Commission shall request associations
of domestic producers connected with the investigation to supply
information relevant for the determination of injury.
Article 41. The Commission shall terminate the investigation if:
(a) The dumping margin is determined to be de minimis, that is, if the
margin is less than two (2) per cent, expressed as a percentage of the
export price;
(b) the volume of dumped imports is found to account for less than three
(3) per cent of imports of the like product into the Dominican Republic.
Paragraph. Article 41(b) shall not apply where countries whose
individual shares represent less than three (3) per cent of imports of the
like product into the Dominican market collectively account for more than
seven (7) per cent of those imports.
Article 42. As regards subsidized imports, the Commission shall
terminate the investigation if:
(a) In the case of a product from a developing country, the amount of the
subsidy is de minimis, that is, if the amount of the subsidy represents
less than one (1) per cent, or the volume of subsidized imports or the
injury may be considered insignificant;
(b) in the case of a product from a developing country, the amount of the
subsidy granted for the product does not exceed two (2) per cent of its
value calculated on a per unit basis, or the subsidized imports represent
less than four (4) per cent of the total imports of the like product in
the Dominican Republic.
Paragraph. Article 42(b) shall not apply where the imports from other
developing countries whose individual shares represent less than four (4)
per cent collectively account for more than nine (9) per cent of total
imports of the like product in the Dominican Republic.
Article 43. The Commission may deem an investigation with a view to
imposing anti-dumping and countervailing duties to be terminated upon
official receipt of a voluntary undertaking from the exporter to revise
its prices or to cease exports to the Dominican Republic at dumped or
subsidized prices, so that the Commission is satisfied that the injury or
threat of injury to national production is eliminated. If the undertaking
is accepted, the investigation shall nevertheless proceed until its
completion if the exporter so desires or the Commission so decides.
First paragraph. If, notwithstanding such an undertaking, it is decided
to proceed with the investigation and this leads to a negative
determination of injury, the undertaking shall automatically lapse except
in instances where the determination is due in large part to the existence
of a price undertaking. The Commission may then require that the
undertaking be maintained for a reasonable period of time consistent the
provisions of this Law.
In the event of an affirmative determination of injury, the undertaking
shall continue, under the terms on which it was made and pursuant to the
provisions of this Law.
Second paragraph. Price increases under an undertaking shall not be
higher than necessary to eliminate the margin of dumping or the amount of
the subsidy.
Article 44. The existence of an anti-dumping or subsidy investigation
shall not hinder customs clearance of the goods investigated.
Article 45. The Commission may adopt provisional measures, at the
request of the interested party or on its own initiative, provided that an
investigation has been initiated pursuant to the provisions of this Law
and an affirmative preliminary determination of injury to a domestic
industry has been made, and the Commission deems such measures necessary
to prevent injury from being caused during the investigation process.
First paragraph. Provisional measures shall not be applied sooner than
sixty (60) days following the date of publication of the resolution
initiating the investigation. To determine the need for provisional
measures, the Commission shall consider whether the exporter or the
product in question has been the subject of a remedial measure in any
country and or of any other investigation(s) in the Dominican Republic.
Second paragraph. The measures specified in this Article may take the
form of a provisional anti-dumping or countervailing duty or a security
by cash deposit or bond equivalent to the provisionally estimated amount
of dumping or subsidization, which may not exceed the provisionally
estimated margin of dumping or the provisionally calculated amount of the
subsidy.
Article 46. The application of provisional measures shall be limited to
as short a period as possible, not exceeding four (4) months or, by
decision of the Commission, on request by exporters representing a
significant percentage of the trade involved, to a period not exceeding
six (6) months. When the authorities, in the course of an investigation,
examine whether a provisional duty lower than the margin of dumping or
subsidization would be sufficient, these periods may be six (6) and nine
(9) months, respectively.
Article 47. Once the Commission has made a final determination whether
affirmative or negative it shall issue a final resolution, which shall
be published in a national newspaper.
Paragraph. Final resolutions by the Commission shall be enforceable,
regardless of any appeal.
Article 48. If the final resolution confirms the amount of the
provisional measures adopted, the amount paid shall be set against that of
the definitive measures. Where a bond has been posted, it shall be cashed
if payment has not been made within a reasonable period of time. If the
amount of the definitive measure exceeds that of the provisional measure,
the difference shall not be collected; if it is lower, the difference
shall be reimbursed.
Article 49. Where a final determination of injury (but not of a threat
thereof or of a material retardation) is made, definitive measures may be
applied only for the period for which provisional measures have been
applied. In the case of a final determination of a threat of injury,
however, where the effect of the dumped imports would, in the absence of
the provisional measures, have led to a determination of injury,
anti-dumping or countervailing duties may be levied retroactively for the
period for which provisional measures have been applied.
Article 50. Where the Commission decides not to apply definitive
measures, the amount of any provisional duties paid shall be refunded or,
where appropriate, the bonds shall be released.
Paragraph. In this case, the interested party shall apply for a refund
of the amount paid or recognition of such amount as credit towards future
tariffs and, where appropriate, for its security to be released.
Article 51. Once a preliminary or a final resolution imposing
provisional or, as the case may be, definitive duties has been published,
the Commission shall make a recommendation to the General Customs
Directorate, via the Ministry of Finance, within no more than five (5)
working days counted from the date of the resolution, for the application
of anti-dumping or countervailing duties.
Article 52. Definitive anti-dumping or countervailing duties may be
levied on products which were entered for consumption not more than ninety
(90) days prior to the date of application of provisional measures, where
the authorities determine for the dumped or subsidized product in question
that the injury is caused by massive imports of the product over a
relatively short period of time.
First paragraph. For the purposes of this Article, the Commission shall
have determined that the massive imports in question are likely to
seriously undermine the remedial effect of the definitive anti-dumping
duties to be applied, subject to the importers concerned having been given
an opportunity to comment.
Second paragraph. In the event of dumping, the Commission shall also
determine that there is a history of dumping and that the domestic
importer was, or the importers were, or should have been, aware that the
exporter practised dumping. No anti-dumping or countervailing duty shall
be levied retroactively on products imported prior to the date of
initiation of the investigation.
Article 53. The Commission shall notify the application of provisional
or definitive anti-dumping or countervailing duties to the relevant
Committee of the World Trade Organization, pursuant to the Agreement on
Implementation of Article VI and the Agreement on Subsidies and
Countervailing Measures.
Article 54. The amount of definitive anti-dumping duties and
countervailing measures shall be equivalent to the margin of dumping or
subsidization determined. Anti-dumping and countervailing duties shall
remain in force for a period of five (5) years counted from the date on
which they were imposed, or from the date of the most recent review, if
that review has covered both dumping and injury, or that of the most
recent review conducted pursuant to Article 11.3 of the Anti Dumping
Agreement and Article 11.3 of the Agreement on Subsidies and
Countervailing Measures of the World Trade Organization (WTO).
Paragraph. Article 47 notwithstanding, the Commission may undertake a
review before the five years have elapsed, on its own initiative or on a
duly reasoned request by or on behalf of the domestic industry affected,
within a reasonable period of time prior to that time-limit, where it
determines that the expiry of the duty would lead to continuation or
recurrence of injury to domestic production. In this case, the duty may
remain in force pending the outcome of such a review.
Article 55. The Commission may authorize a refund to exporters subject
to an anti-dumping duty where it can be established that the margin of
dumped imports made following the conclusion of the proceedings is lower
than the margin of dumped imports that were under investigation over the
year that preceded the proceedings.
Paragraph. A refund of any such duty paid in excess of the actual margin
of dumping shall normally take place within twelve (12) months, and in no
case more than eighteen (18) months, following the date on which a request
for a refund, duly supported by evidence, has been made by an importer of
the product subject to the anti-dumping duty. The refund authorized shall
normally be made within ninety (90) days of the aforementioned decision.
Article 56. Once a definitive anti-dumping or countervailing duty has
been applied, the Commission may consider the possibility of the revenue
generated by the measure being used to finance specific programmes for the
development and modernization of the sector in question, according to
specific rules and procedures and having due regard for the level of
technological development of the enterprises directly affected by unfair
foreign trade practices.
TITLE IV
SAFEGUARD MEASURES
Article 57. Safeguard measures are designed to regulate imports on a
temporary basis, and their objective is to prevent or remedy serious
injury to the domestic industry and to facilitate adjustment for domestic
producers.
Article 58. Safeguard measures shall be applied when a product,
irrespective of its origin, is being imported in such increased
quantities, absolute or relative to domestic production, and under such
conditions as to cause or threaten to cause injury to a domestic industry
that produces like or directly competitive products. Safeguard measures
shall be applied to an imported product irrespective of its source.
Article 59. An investigation to determine the existence of conditions as
set forth above and requiring the imposition of a safeguard measure shall
be initiated upon a written application lodged with the Commission by an
enterprise or group of enterprises representing at least twenty-five (25)
per cent of domestic production of the like or directly competitive
product.
Article 60. The Commission may initiate an investigation ex officio,
subject to the requirement of evidence that the domestic industry is
materially unable to submit the necessary application.
Article 61. An application for the imposition of a safeguard measure
shall include:
(a) A description of the imported product, its tariff classification, the
customs duty in force and a description of the like or directly
competitive product;
(b) the names and addresses of the enterprises or entities represented in
the application, indicating the percentage level of domestic production of
the product represented by those enterprises;
(c) import data for the product over the previous three years or another
representative period showing the increase in imports;
(d) data on the volume and value of domestic production for the previous
three years or another period that is representative for the industry;
(e) quantitative data showing serious injury or the threat of injury for
the period of investigation, including but not confined to the following:
the degree of utilization of installed capacity, closure of plants,
unemployment, changes in price levels, production, productivity, sales,
and profitability of the relevant portion of domestic production;
(f) a description of the causes of the serious injury or of the grounds
indicating a threat of serious injury, and the extent to which such injury
or threat of injury is attributable to the imports under investigation;
(g) a statement giving specific reasons for seeking application of a
safeguard measure and the estimated level of the measure needed to ensure
the achievement of the objectives pursued.
Article 62. If critical circumstances are alleged, that is, in
situations in which any delay in taking action would cause damage
difficult to repair, the application shall set forth the grounds which
serve to demonstrate that the increased imports are causing or threatening
to cause injury to the domestic industry.
Article 63. Within thirty (30) days of receiving the application to
initiate an investigation, the Commission shall:
(a) Accept the application, having deemed that there are conditions
warranting such a decision; the existence of due grounds shall be
established by ascertaining that the application is being filed on behalf
of a representative portion of the domestic industry and that there is
sufficient evidence of increased imports, injury or the threat of serious
injury, and of the causal link between them;
(b) request the applicant to provide further evidence or information, with
a view to determining, as objectively as possible, whether there are due
grounds for initiating an investigation;
(c) reject the application where it finds that there is insufficient
evidence to warrant the opening of an investigation.
Paragraph. In cases (a) and (b), the Commission shall give public notice
of the decision agreeing or declining to initiate the investigation in a
national newspaper.
Article 64. Once the Commission has initiated an investigation process,
it shall immediately notify, via the Ministry of Foreign Affairs,
governments whose exports might be affected by the application of a
safeguard measure. It shall likewise notify the Committee on Safeguards of
the World Trade Organization (WTO).
Article 65. The Commission shall give the interested parties thirty (30)
days following the date of publication of the notice of initiation of the
investigation to provide their initial responses to the form setting out
the details of the investigation and to present any evidence or arguments
they consider relevant in defence of their interests in the investigation.
This period may be extended, once only, by the Commission, where it has
reasonable and valid grounds to do so.
Article 66. An investigation to determine whether increased imports and
the conditions under which the products are being imported have caused or
threaten to cause serious injury to the domestic industry shall consider
all factors of an objective and quantifiable nature having a bearing on
the position of the affected portion of the industry. The determination of
the existence or threat of serious injury shall be based on objective
evidence showing a causal link between the increased imports of the
investigated product and the existence or threat of serious injury.
Article 67. Upon termination of the investigation, the Commission shall
publish a report setting forth its findings and reasoned conclusions on
all issues of fact and law.
Article 68. The Commission shall conclude its investigations within a
period of six (6) months, which may, in exceptional and duly justified
cases, be extended to eighteen (18) months.
Article 69. Within thirty (30) days following the date of publication of
the notice of initiation of the investigation, the applicant shall present
the Commission with a plan for adjusting the domestic industry, which
shall be duly justified and in accordance with the objectives pursued
through the application of the requested measure.
Article 70. Once the Commission has reached its final decision, it may
determine that all or part of the amount collected as a safeguard measure
shall be allocated to support the plan for adjusting the domestic
industry. In this case, the Commission shall request the Ministry of
Finance to set up a specific fund with the revenue generated and shall
specify the procedures for the distribution and use of the collected
funds, the eligible producers and how the enterprises concerned may expend
those funds.
Article 71. Provisional and definitive safeguard measures shall apply
only to the extent and for such period of time as may be necessary to
prevent a threat of injury or remedy serious injury and to facilitate
adjustment.
Article 72. Safeguard measures shall not be applied to a product
originating in a developing country Member of the World Trade Organization
(WTO) as long as its share of total imports of the investigated product
does not exceed three (3) per cent, provided that WTO developing country
Members whose individual shares of imports into the Dominican Republic
account for less than three (3) per cent collectively represent not more
than nine (9) per cent of total imports of the product concerned.
Article 73. Safeguard measures may take the form of tariff increases,
tariff quotas or import ceilings. If the measure takes the form of a
quantitative restriction, however, it shall not reduce the quantity of
imports below the average of annual imports over the past three (3)
calendar years, unless clear cause is shown of the need to set a different
level in order to prevent or remedy serious injury.
Article 74. Where the applicant for a safeguard measure alleges critical
circumstances, the Commission may decide to apply a provisional measure.
Within a maximum period of sixty (60) days, the Commission shall prepare a
preliminary report detailing all pertinent factors of an objective nature
needed to assess the relevance of applying the measure and its possible
impact on the domestic market. The report shall demonstrate, on the basis
of objective evidence, that the increased imports have caused or threaten
to cause injury and that any delay would cause damage to the domestic
industry that is difficult to repair.
Paragraph. Prior to the adoption of any of the aforementioned
provisional safeguard measures, the Commission shall notify the Committee
on Safeguards of the World Trade Organization (WTO). Consultations shall
begin as soon as the measure has been adopted. Any other matter pertaining
to a provisional safeguard measure shall be resolved in accordance with
the relevant provisions of the WTO Agreement on Safeguards.
Article 75. A provisional safeguard measure shall be applied for no more
than two hundred (200) days and only in the form of an increase in tariffs
calculated ad valorem. The amount of a provisional safeguard measure shall
be paid or guaranteed by the furnishing of a bond by the importer.
Article 76. Where the Commission determines that the amount of a
definitive safeguard measure is higher than that of a provisional
safeguard measure that has been paid or guaranteed, the excess shall not
be payable. Conversely, provisional duties collected in an amount higher
than that fixed for a definitive measure shall be refunded.
Article 77. If upon the conclusion of the investigation the Commission
makes a affirmative determination regarding the application of a safeguard
measure, it shall publish its report according to the terms specified in
Article 59. The Government of the Dominican Republic shall notify the WTO
Committee on Safeguards and the interested parties of the decision.
Article 78. A safeguard measure shall initially be applied for a period
of not more than four (4) years, which may be extended to eight (8) years,
including the period of application of any provisional measure, the period
of initial application and any extension thereof.
Article 79. A definitive safeguard measure whose period of application
exceeds one (1) year shall be progressively liberalized at regular
intervals during the period of application.
Paragraph. When extended, a measure shall not be more restrictive than
at the end of the period of initial application. During the extension
period, the measure shall continue to be progressively liberalized.
Article 80. No safeguard measure shall be applied again to a product
subject to such a measure for a period of time equal to one half of that
during which such measure had previously been applied. The period of
non-application shall be at least two (2) years.
Article 81. Before applying a provisional or definitive safeguard
measure, the Government of the Dominican Republic shall provide adequate
opportunity to hold consultations with Members of the World Trade
Organization (WTO) that have a substantial interest as exporters of the
product in question. Such consultations shall be held in accordance with
the provisions of the WTO Agreement on Safeguards.
TITLE V
NATIONAL COMMISSION FOR THE REGULATION OF UNFAIR
TRADE PRACTICES AND SAFEGUARD MEASURES
Article 82. In pursuance of this Law a Commission for the Regulation of
Unfair Trade Practices and Safeguard Measures is hereby established as a
decentralized public body endowed with functional, judicial and financial
autonomy, its own assets, and legal personality. It shall have legal
capacity to acquire rights and contract obligations. It shall perform the
tasks and exercise the functions specified in this Law and its
regulations.
Article 83. The Commission shall be domiciled in the capital of the
Republic. It shall have national jurisdiction in matters governed by this
Law and shall lie under the authority of the Office of the Comptroller
General of the Republic.
Article 84. The duties of the Commission shall be:
(a) To conduct, at the request of an interested party or ex officio, any
investigation required for the purposes of this Law and its regulations in
order to determine, where appropriate, the application of anti-dumping and
countervailing duties and safeguard measures;
(b) to issue duly reasoned decisions, in accordance with the rules laid
down in this Law and its regulations;
(c) to request the implementation of its resolutions by the Ministry of
Finance, via the General Customs Directorate, and such other government
authorities as may be involved in procedures and remedies specified under
this Law;
(d) to appoint the Executive Director of the Commission and technical and
administrative staff required for the performance of its statutory
functions;
(e) to coordinate with other public institutions representation of the
interests of the Dominican State in international agencies and other
countries in matters falling within its sphere of competence;
(f) to adopt its own rules of procedure and to draw up and present its
budget of income and expenditures;
(g) to set the fees payable for the reception and processing of
applications for investigation.
Article 85. The Commission shall be made up of five (5) members or
commissioners appointed for a period of four (4) years by the Executive.
Prior to being sworn in, they shall be confirmed by the National Congress.
The commissioners may be appointed and confirmed for a second term of
office and may be removed only for serious misconduct or misbehaviour, by
decision of the Executive.
First paragraph. Before confirming the candidates proposed, the National
Congress shall hold public consultations to determine their competence or
aptitude.
Second paragraph. The commissioners may appeal before the Supreme Court
of Justice of an enforceable decision revoking their mandate, which shall
be heard and judged by the Court sitting in full session.
Article 86. The members of the Commission shall:
(a) Be
