VENEZUELA
Regulations Under the Law on Unfair Foreign Trade
Practices
Decree No. 2.883
5 April 1993
CARLOS ANDRES PEREZ
PRESIDENT OF THE REPUBLIC
By virtue of the power
granted to him in paragraph 10 of Article 190 of the Constitution, in the
Council of Ministers
DECREES:
The following:
REGULATIONS UNDER
THE LAW ON UNFAIR
FOREIGN TRADE PRACTICES
TITLE I
DUMPING
CHAPTER I
LIKE GOODS
ARTICLE 1: The provisions
of this Chapter shall apply both to cases of dumping and to cases in which
the Law or these Regulations refer to like goods.
ARTICLE 2: For the purposes of comparing like goods, the greatest possible
number of elements shall be taken into account, for example, their nature,
physical characteristics, components, technical specifications, origin,
source, utilization, function, market behaviour, quality, trademark and
reputation, this last being understood in the context of the advertising
used and their degree of acceptance by the relevant category of consumers.
ARTICLE 3: In calculating the normal value and other determinations,
identical goods shall be taken as like goods, or, if this is not possible,
goods which closely resemble the good allegedly dumped or subsidized, or,
in their absence, substitute goods.
ARTICLE 4: In conformity with the previous Article, like goods shall mean:
1. Identical goods, i.e. which are alike in all respects;
2. Goods which closely resemble the good allegedly dumped or subsidized
when the goods are not only used for very similar purposes but their other
characteristics are equally similar;
3. Goods which are substitutes for the good allegedly dumped or subsidized
when their use or function leads to results identical to those of the
dumped or subsidized good.
For the purposes of making the corresponding comparisons, the procedure
shall be that outlined in Article 2 of these Regulations. The Commission
shall investigate the end use of the dumped or subsidized good, at the
industrial, commercial or final consumption levels and shall determine its
specific utilization.
ARTICLE 5: The application of the comparison criteria shall not mean that
goods imported in the form of inputs or components of finished goods may
not be considered as like goods when there are sufficient grounds for
considering the importation in the component form is economically
senseless and that its fundamental purpose is to avoid the treatment given
to the finished product. In such cases, it shall be determined that the
good in the form of inputs or components and the finished good are like
goods.
ARTICLE 6: The Commission shall consider that goods allegedly dumped or
subsidized are like goods when, if it were not for differences in the
trademark, they would be deemed to be alike to goods sold in the country
of export or of origin, in any of the following cases:
1. Imported goods with a trademark that so resembles the trademark of a
good sold in the country of export or of origin that it is liable to
mislead consumers;
2. Goods without a trademark, where there is evidence that they are being
imported for the purpose of distribution or resale in Venezuela with the
same trademark as, or a trademark similar to, that of the good sold in the
country of export or of origin;
3. Where there is evidence that the purpose of the difference in the
trademark is to prevent determination of the normal value by taking into
consideration the goods sold in the country of export or of origin.
CHAPTER II
NORMAL VALUE
ARTICLE 7: The determination of the normal value referred to in Article 5
of the Law shall be subject to the procedures and rules laid down in these
Regulations.
ARTICLE 8: For the purposes of determining the normal value, the ordinary
course of trade shall mean sales of like goods usually effected by the
exporter or producer of the good allegedly dumped to buyers in the country
of export or of origin which meet the following requirements:
1. The buyer is not an associated person, within the meaning of paragraph
16 of Article 2 of the Law and, to the extent that the Commission
considers it relevant, the buyer is at a commercial level equivalent to
that of the importer of the allegedly dumped or subsidized good within the
corresponding line of trade.
Where the exporter or producer of the good allegedly dumped sells like
goods to independent buyers in the country of export or of origin, through
an associated person, the Commission may consider that sales to such
buyers constitute sales made in the ordinary course of trade, provided
that the other conditions mentioned in this Article obtain;
2. The individual volumes of sales to buyers in the country of export or
of origin correspond to the volumes of sales of the good allegedly dumped;
3. The exporter or producers of like goods sell in the country of export
or of origin a volume equivalent to at least 20 per cent of the total
volume of global sales, including those to Venezuela.
Nevertheless, in cases where, due to the characteristics of the market or
of the good, it is shown that a lower volume of sales permits an adequate
comparison, the Commission may accept a lower percentage;
4. The sales to buyers in the country of export or of origin are made
under sufficient conditions of free competition on the market of export or
of origin. The fixing of prices by the State, the existence of practices
which prevent or restrict the exercise of free competition and
transactions between related persons through associations, agreements or
compensatory arrangements, even when such persons cannot be deemed to be
associated persons, shall be considered as conflicting with such
conditions.
5. The sales were made within a period not exceeding two months
immediately prior to or following the allegedly dumped sales.
In exceptional cases, where the nature of the good sold or of the trade
cycles affecting it means that such a time-limit is impractical,
inappropriate or contrary to international trade usage, the Commission may
take into account sales over a longer period; it must then justify doing
so in its decision on the application.
ARTICLE 9: For the purposes of calculating the normal value, the
comparable price referred to in paragraph 14 of Article 2 of the Law shall
be net after deduction of the discounts, refunds and other reductions
granted to the buyer, provided that the exporter or producer requests the
corresponding adjustment and proves to the Commission's satisfaction that
such discounts have actually been made.
ARTICLE 10: The Commission shall calculate the normal value using the
comparable price actually paid or payable, in the ordinary course of
trade, for the good allegedly dumped which is intended for consumption in
the country of export or of origin. When sales cannot be considered as
being in the ordinary course of trade in accordance with the provisions of
Article 8 of these Regulations, the Commission shall calculate the normal
value according to the following sequence of priority:
1. By using the compared export value method;
2. Where the compared export value is not suitable, by using the computed
value method.
3. Where the normal value cannot be determined using the methods mentioned
in paragraphs 1 and 2 of this Article, the Commission may calculate it on
the basis of sales in the country of origin by producers or sellers of
like goods to buyers in the country of export or of origin, for which
purpose it may use statistical information available in that country.
Where sales of like goods by the exporter or producer are at a real price
below the production costs mentioned in paragraph 1 of Article 12 of these
Regulations, the normal value shall be calculated according to the methods
provided for in the said Article.
In the case of imports originating in or coming from countries with
centrally-planned economies, the Commission shall calculate the normal
value according to the methods provided for in paragraphs 1 and 2 of this
Article, on the basis of sales by producers or sellers of like goods in a
third country with a market economy and a similar level of development to
that of the former. If the aforementioned methods are not sufficient, the
Commission may adjust the price actually paid or payable in Venezuela to
include a reasonable margin of profit.
ARTICLE 11: The compared export value is the price of sales by the
exporter of the allegedly dumped good to buyers in a country other than
Venezuela or the country of export or of origin. In such cases, the
Commission may take into account the highest price, provided that it is
representative, and shall ensure that the conditions laid down in Article
8 of these Regulations are fulfilled with reference to the country of
export selected.
ARTICLE 12: The computed value is the total of the following elements
related to the allegedly dumped good or a like good:
1. Production costs, meaning the total of fixed and variable costs for the
inputs utilized and the manufacturing process, in the ordinary course of
trade in the country of origin, with a reasonable margin for selling,
administrative and other general costs;
2. A reasonable margin of profit, calculated in relation to the respective
costs and earnings of the producer or exporter, for sales for profit to
persons other than associated persons in the country of origin or of
export.
If the Commission considers that this information is not reliable or is
insufficient, it shall use the production costs and the related profit of
other producers or exporters in the country of origin or of export for
sales for profit of a like good. If such information is still not
sufficient, the value may be calculated on the basis of sales of other
goods by the exporter or other manufacturers within the same economic
sector in the country of origin or of export, or on any other reasonable
basis determined by the Commission.
ARTICLE 13: In the case of sales of like goods by the exporter of the
allegedly dumped good to buyers in the country of export or of origin
where it is shown that the real selling price is below production costs as
specified in paragraph 1 of Article 12 of these Regulations, the
Commission may consider that such sales have not been made in the ordinary
course of trade and calculate the normal value using the method it deems
most appropriate among the following:
1. Other sales to buyers in the country of export or of origin which have
been made at prices that are not lower than production costs;
2. The compared export value in accordance with Article 11 of these
Regulations;
3. The computed value in accordance with Article 12 of these Regulations;
4. Adjustment of the price below production costs so as to eliminate
losses and provide for a reasonable margin of profit.
ARTICLE 14: For the purposes of the previous Article, sales in which the
price is lower than production costs shall have been made over a period of
not less than six months nor more than 18 months in quantities exceeding
80 per cent of total sales and at prices which do not allow recovery of
all costs within a reasonable period. This last circumstance shall be
established when below-cost prices at the time of sale are higher than the
weighted average costs during the period of the investigation.
CHAPTER III
EXPORT PRICE
ARTICLE 15: For the purposes of Article 6 of the Law, the export price
means the price actually paid or payable for the good allegedly dumped, in
cash or in kind, actually transferred or transferable against the sale,
exchange or any other form of transfer for value of the said good.
The Commission shall calculate the export price on the following basis, as
appropriate:
1. Direct export price;
2. Indirect export price;
3. Export price for subsequent processing.
ARTICLE 16: The discounts, refunds and other reductions to be taken into
account in calculating the net value constituting the export price
referred to in Article 6 of the Law shall be directly related to the sales
transactions concerned and shall only be taken into account if the
interested party requests the corresponding adjustment and provides
justification therefor to the Commission.
ARTICLE 17: In the case of the direct export price, the following
deductions shall be made:
1. Any tax paid in Venezuela or abroad resulting from the export or import
of the allegedly dumped good;
2. The costs of preparing, packing or packaging the allegedly dumped goods
for dispatch, provided that they are distinct from the costs related to
sales to buyers in the country of export or of origin;
3. Costs related to the export and transport to Venezuela of the allegedly
dumped goods and entry costs. These shall include freight, maintenance,
insurance, loading and unloading, handling and other related costs
incurred for the transport of the good from the exporter's warehouse until
it is delivered to the buyer in Venezuela.
For the deductions referred to in this Article to be applicable, the costs
mentioned in the previous paragraphs must be included in the direct export
price.
ARTICLE 18: The Commission shall determine the export price of the
allegedly dumped good using the indirect export price mentioned in Article
19 of these Regulations when there is no direct export price or, if one
exists, it cannot be used because it concerns a transaction between
associated persons or persons who may be related through associations,
agreements or compensatory arrangements concerning the price, sale,
profits or costs for the allegedly dumped good.
ARTICLE 19: The indirect export price is the price calculated on the basis
of that at which the importer sells the allegedly dumped good, in the
condition as imported and in representative quantities, to the first
independent buyer in Venezuela. Independent buyer means a person who is
not deemed to be associated or related to the importer, exporter or
producer, through associations, agreements or compensatory arrangements
concerning the price, sale, profits or costs for the allegedly dumped
good.
ARTICLE 20: For the purpose of calculating the indirect export price, the
following costs shall be deducted from the price at which the importer
sells the allegedly dumped good to the first independent buyer in
Venezuela:
1. The costs listed in paragraphs 1, 2 and 3 of Article 17 of these
Regulations;
2. The direct and indirect selling costs incurred by the importer after
the good has been imported and before it is sold to an independent buyer.
In determining these costs, the Commission shall be guided by the
provisions of Article 33 of these Regulations;
3. The general and administrative costs incurred by the importer after the
good has been imported and before it is sold to an independent buyer;
4. A reasonable margin for profit on the sale by the importer, calculated
in relation to sales for profit by producers and sellers of like goods or,
in their absence, goods of the same economic sector.
For the deductions referred to in this Article to be applicable, the costs
mentioned in the previous paragraphs must be included in the selling price
to the first independent buyer in Venezuela.
ARTICLE 21: When the export price cannot be determined using the indirect
export price provided for in Article 19 of these Regulations, the
Commission shall calculate the price in accordance with the following
guidelines:
1. Where the allegedly dumped good has been processed after its
importation and before its sale to the first independent buyer in
Venezuela, the Commission shall determine the export price using the
EXPORT PRICE FOR SUBSEQUENT PROCESSING, provided for in Article 22 of
these Regulations. The allegedly dumped good is considered as having been
processed when it has been subject to or incorporated in assembly,
packaging or manufacturing processes in Venezuela.
2. In cases where it is not possible to proceed in accordance with the
provisions of the preceding paragraph, the Commission shall determine the
export price on the basis of other criteria and shall clearly specify
these criteria in the relevant decision.
ARTICLE 22: EXPORT PRICE FOR SUBSEQUENT PROCESSING means the price paid
for the finished product by the first independent buyer in Venezuela in
accordance with the provisions of paragraph 1 of the previous Article,
after deduction of the following items:
1. The amounts referred to in paragraphs 1, 2 and 3 of Article 17 of these
Regulations, relating to the good processed;
2. Costs and expenses directly related to the assembly, packaging or
manufacturing processes;
3. Any direct or indirect selling costs in addition to those referred to
in the previous paragraphs incurred by the importer after the good has
been imported and before it is sold to an independent buyer. In
determining these costs, the Commission shall be guided by the provisions
of Article 33 of these Regulations;
4. The general and administrative costs in addition to those mentioned in
the preceding paragraphs incurred by the importer after the good has been
imported and before it is sold to an independent buyer in Venezuela;
5. A reasonable margin of profit on the sale by the importer, calculated
in relation to sales for profit by producers and sellers of like goods or,
in their absence, of goods of the same economic sector.
For the deductions referred to in this Article to be applicable, the costs
mentioned in the previous paragraphs must be included in the selling price
to the first independent buyer in Venezuela.
CHAPTER IV
ADJUSTMENTS RESULTING FROM PRICE COMPARISON
SECTION ONE
GENERAL PROVISIONS
ARTICLE 23: The adjustments provided for in this Section shall apply, as
appropriate in each case, to the normal value or the export price
calculated in conformity with the provisions of the previous Chapters.
ARTICLE 24: For the purposes of the price comparison referred to in
Article 7 of the Law, the first step shall be to identify the level of
trade at which the sale used to determine the export price occurs,
normally but not necessarily at the ex-factory level. Secondly, it shall
be determined whether there are appropriate sales to calculate the normal
value at a level of trade equivalent to the level used as a basis for the
calculation of the export price, in accordance with the rules laid down in
Chapter 2 of this Title. Thirdly, if there are no appropriate sales to
calculate the normal value at the same level of trade, it shall be
calculated on the basis of sales at the level of trade deemed to be most
appropriate.
ARTICLE 25: When, in accordance with the provisions of the previous
Article, the normal value is calculated on the basis of sales at a level
of trade distinct from the level of the sales used to calculate the export
price, the level which is the nearest and most closely resembles that of
the export sales, taking into account the volume of sales, the type of
buyer, the use made of the goods sold or the services supplied by the
seller, shall be identified.
SECTION TWO
ADJUSTMENTS FOR DIFFERENCES IN PHYSICAL CHARACTERISTICS
ARTICLE 26: For the purposes of the adjustment provided for in Article 7
of the Law relative to differences in the physical characteristics of the
good allegedly dumped and those of the like good used to determine the
normal value, the criteria referred to in Article 2 of these Regulations
shall be followed. When the comparison has been made, the normal value of
the like good shall be adjusted in accordance with the specific value
attributed to each of the differences, on the basis of market information
obtained in the relevant place of sale.
Where no market information is available and provided that the differences
relate strictly to the physical characteristics, the Commission may
calculate the amount of the adjustment according to the share of the
costs, expenses and profit margin which could reasonably be attributed to
each of the differences identified.
ARTICLE 27: In cases where the adjustment for differences referred to in
this Section exceeds 20 per cent of the export price, it shall be
considered that the good which is the subject of the calculation of the
normal value cannot be deemed to be a like good in accordance with the
definition given in paragraph 11 of Article 2 of the Law and the
provisions of these Regulations.
SECTION THREE
ADJUSTMENTS FOR DIFFERENCES IN DUTY
ARTICLE 28: For the purposes of the adjustment provided for in Article 7
of the Law, the Commission shall deduct from the normal value any tax,
countervailing or anti-dumping duty imposed on the like good or on
materials incorporated therein if they have been imported into the country
of the sale which has resulted in the determination of the normal value,
as well as any tax levied on the production or marketing of the like good
in that country, whether or not imported. There shall be no adjustment in
cases where the taxes, countervailing or anti-dumping duties have not
actually been collected.
ARTICLE 29: The Commission shall deduct from the export price any tax,
countervailing duty or anti-dumping duty imposed on the allegedly dumped
good or on materials incorporated therein prior to their export to
Venezuela, provided that such export has not led to the refund of the
taxes, countervailing duties or anti-dumping duties imposed on the said
good.
SECTION FOUR
ADJUSTMENTS TO SELLING COSTS FOR DIFFERENT LEVELS OF TRADE
ARTICLE 30: When the Commission has to calculate the normal value on the
basis of sales at a level of trade different to that of the sales used to
calculate the export price, the normal value shall be adjusted for the
direct selling costs specifically related to the level used for its
calculation. Such a relation shall be considered to exist when it is
proved to the Commission that the costs incurred would be different if the
sales used to calculate the normal value were at the same level of trade
as the sales used to calculate the export price.
SECTION FIVE
ADJUSTMENTS TO SELLING COSTS FOR DIFFERENT QUANTITIES
ARTICLE 31: For costs related to sales of different quantities, the
Commission shall determine whether, in the market where the sales used as
a basis to calculate the normal value were made, there is a commercial
policy or usage of discounts, deductions, rebates or refunds, based on the
quantities of like goods sold. If this is the case, it shall be determined
whether the quantities and sales used to calculate the export price meet
the same conditions and an amount equivalent to the discount, deduction,
rebate or refund in question shall be deducted from the normal value.
ARTICLE 32: For the deduction referred to in the previous Article to be
applicable, the commercial policies or usage concerned must be evidenced
by discounts, deductions, rebates or refunds freely granted on the market
used as a reference for the calculation of the normal value and in the
ordinary course of trade over a representative period of not less than six
months prior to the sale of the allegedly dumped good or different periods
in the case of cyclical or periodic discounts. Such discounts, deductions,
rebates or refunds must also represent at least 20 per cent of the total
volume of sales of like goods in this market and be generally and
uniformly applied at the time of the sale that is allegedly the subject of
dumping.
SECTION SIX
ADJUSTMENTS TO SELLING COSTS FOR DIFFERENT CONDITIONS
ARTICLE 33: For costs related to sales under different conditions, the
Commission shall distinguish between direct and indirect costs. Direct
costs means the variable costs and costs specifically related to the sales
in question, for example, financing of sales, commissions, advertising
specifically aimed at promoting the goods that are the subject of such
sales, guarantees and technical services. Indirect costs means the fixed
costs incurred by the seller independently of the sales made, but related
to them, for example, provision for bad debt, general promotion costs,
remuneration of sales staff, etc.
General and administrative costs shall not be considered indirect costs.
ARTICLE 34: The Commission may adjust the normal value by the differences
which, as a result of different terms of trade, occur between the direct
costs in the sales used as a basis to calculate the normal value and the
direct costs used as a basis to calculate the export price.
ARTICLE 35: For sales financing costs, the Commission shall determine the
amount of the adjustment in accordance with procedures which reasonably
reflect the cost of money corresponding to the price during the period
between the dispatch of the goods by the seller and their payment by the
buyer, calculated according to the currency of payment.
ARTICLE 36: For guarantee costs, the Commission shall determine the amount
of the adjustment according to the costs borne by the seller in order to
honour the guarantees on the goods sold and in conformity with their
terms. For the purposes of this adjustment, the guarantees must have been
given in writing at the time of sale or correspond to the practices
required by law in the place of sale or by trade custom, use or generally
accepted practices in the market in question.
ARTICLE 37: For technical service costs, the Commission shall determine
the amount of the adjustment according to the costs borne by the seller
for the provision of assistance, provided that this is in fulfilment of
contractual obligations in writing and is included in the price paid at
the time of sale.
ARTICLE 38: For indirect costs, the Commission may only adjust the normal
value by the difference between the costs of the sales to calculate the
export price and the costs used to calculate the normal price in the
following cases:
1. Where the price comparison involves the indirect export price referred
to in paragraph 2 of Article 20 of these Regulations;
2. Where the price comparison involves the export price for subsequent
processing referred to in paragraph 3 of Article 22 of these Regulations;
3. In the other special cases referred to in paragraph 2 of Article 21 of
these Regulations when the Commission takes into account indirect selling
costs in order to determine the export price.The deduction made for indirect costs from the normal value may not under
any circumstances exceed the amount of the deduction of indirect costs
when calculating the export price in conformity with the preceding
paragraphs.
TITLE II
SUBSIDIES
ARTICLE 39: For the purposes of determining the subsidies referred to in
paragraph 13 of Article 2 of the Law, it shall be considered that a
government or public or mixed body confers an advantage on certain
enterprises or industries in any of the following cases:
1. Where the legislation establishing the subsidy expressly restricts the
specific advantages to certain enterprises, groups of enterprises or
industries, legislation meaning a regulation with general scope issued by
the competent authority, independently of the government sector involved;
2. Where the legislation establishing the subsidy imposes general
conditions that must be fulfilled which, even if they do not distinguish
between enterprises or industries, have the practical effect of
discriminating among types of enterprises, groups of enterprises or
industries, as a result of the production structure in the country whose
authorities grant the subsidy;
3. Where, despite the general nature of the legislation establishing the
subsidy, the authority responsible for applying it has developed practices
which manifestly confer advantages on specific enterprises, groups of
enterprises or industries rather than others which would also be entitled
to the subsidy.
ARTICLE 40: In addition to the practices mentioned in Article 9 of the
Law, related to exports, the following internal practices, inter alia,
shall be considered to be subsidies:
1. Grants, allocations and other liberalities granted to exporters or
producers of the subsidized good, including the cancellation or reduction
of debt owed to public or mixed bodies, whether as the original or the
secondary creditors;
2. The purchase of shares or other forms of capital investment by public
or mixed bodies on terms that are less favourable to them than those
prevailing in the market. In the case of subscription to shares in
companies listed on the stock exchange, the market value shall be the
average price in trading on the stock exchange on the day of purchase by
the public or mixed body. In the case of shares or capital participation
in companies not listed on the stock exchange, the market value shall be
the value in the company's books, but if the Commission considers the book
value to be inappropriate and has sufficient and reliable information, it
may use valuations calculated by specialized companies or valuation
methods based on the company's capacity to generate cash flows;
3. Any other form of internal subsidy, that is to say not related to
exports, determined by the Commission in conformity with paragraph 13 of
Article 2 of the Law.
ARTICLE 41: For the purposes of determining the amount of the subsidy in
accordance with Article 10 of the Law, the Commission shall examine its
nature and calculate its impact on the price of the subsidized good.
ARTICLE 42: The Commission shall distinguish between subsidies which
relate specifically to export of the good concerned by the application and
subsidies which depend on the export activity of the beneficiary company.
In the latter case, it shall be calculated according to the proportion
corresponding to the production of the subsidized good in relation to the
production of other goods exported by the company benefiting from the
subsidy. In the case of internal subsidies, that is to say subsidies not
related to export activities, their impact shall be calculated on the
basis of all the goods produced by the beneficiary company, independently
of whether or not such goods are exported.
ARTICLE 43: In the case of recurrent subsidies, namely subsidies received
whenever particular conditions recur over a period of time, their amount
shall be calculated by dividing the benefit received among the total sales
by the exporter or producer over the period during which the subsidy was
received. If the period is two years or more, the provisions of Article 45
of these Regulations shall apply.
ARTICLE 44: For the purpose of calculating the amount of the subsidy in
cases where it arises out of credits granted at lower rates or on more
favourable terms than those which the beneficiaries could obtain on the
corresponding markets, a distinction shall be drawn between short-term and
medium-term or long-term credits. The amount of short-term credit shall be
determined in conformity with the procedure laid down in the previous
Article for recurrent subsidies to the extent that it is applicable.
Medium-term or long-term credits shall be calculated as far as possible
according to the procedure laid down in the following Article for
non-recurrent subsidies.
SINGLE PARAGRAPH: Short-term credits means those for which the term for
repayment of the capital is less than two years. Credits whose term is two
years or more shall be considered medium-term or long-term credits.
Credits with a term of less than two years may be considered medium-term
or long-term credits if it can be satisfactorily proved that the creditor
follows a constant and uncontested practice of automatically renewing or
extending the term for the repayment of capital by additional periods
which, taken together with the initial period, amount to two years or
more.
ARTICLE 45: In the case of non-recurrent subsidies, the number of years
over which their benefits have to be spread shall be calculated. For this
purpose, a period of ten years shall be utilized as a benchmark, except in
cases where it is demonstrated that the benefit consists in the use of a
particular asset, when a shorter period may be used, based on the period
of amortization or depreciation of the asset in conformity with generally
accepted accounting principles in the country in which the subsidy is
conferred.
When the period of application has been determined, the value of the
benefit shall be discounted at a rate which reasonably reflects the
capital costs for the exporter or producer at the time of receiving the
benefit. For the purposes of determining the discount rate, the most
appropriate financial methodology taking into account the information
available shall be used.
TITLE III
INJURY
ARTICLE 46: For the purposes of the determination referred to in Article
11 of the Law, it must be demonstrated to the Commission's satisfaction
that there is a causal relationship between the import of dumped or
subsidized goods and any of the following:
1. The existence of material injury to the domestic industry producing
like goods. Material injury means any significant and substantial damage
to the domestic industry;
2. The threat of material injury to the domestic industry producing like
goods, in accordance with Article 51 of these Regulations;
3. Appreciable material retardation of the start-up of the domestic
industry producing like goods, in accordance with Article 52 of these
Regulations.
ARTICLE 47: For the purposes of Article 14 of the Law, the major
proportion of domestic industry shall mean those producers representing at
least 30 per cent of domestic industry. Exceptionally, if the special
circumstances of the production structure in question so require, the
Commission may use as a benchmark a higher percentage, which may not under
any circumstances exceed 40 per cent, or a lower percentage, which may not
be less than 20 per cent.
ARTICLE 48: For the purposes of determining injury or threat of injury,
the following producers shall not be included among domestic producers
constituting domestic industry:
1. Producers associated with exporters;
2. Producers who themselves import the dumped or subsidized good;
3. Producers whose industrial activity does not result in the actual
processing of the inputs constituting the like good. In excluding such
producers, the Commission shall take into account the origin and
characteristics of the inputs used in the like good, as well as the value
added by the production process.
SINGLE PARAGRAPH: In cases where it is determined that the domestic
industry is insignificant in relation to the Venezuelan market for like
goods, it may be concluded, as an exception, that there is no injury or
threat of injury to domestic industry. The domestic industry shall be
considered insignificant when, after having excluded the producers
mentioned in this Article, it does not represent more than 5 per cent of
the consumption of like goods in the country, except where, in cases of a
lower percentage, it is demonstrated to the Commission's satisfaction that
the domestic industry has experienced significant and sustained growth
over a period which allows it to be reasonably inferred that there will be
a similar growth trend in the future.
ARTICLE 49: Where the interested party claims that in the country of
export or of origin proof of injury is not required, he must submit proof
of this claim together with his application; without detriment to the
Commission's power to decide whether or not there is injury or threat of
injury or material retardation of the start-up of the domestic industry,
in conformity with the single paragraph of Article 11 of the Law.
ARTICLE 50: It shall be determined that there is material injury to the
domestic industry producing like goods when at least two of the following
conditions are met:
1. The volume of dumped or subsidized imports is significant and has
increased in absolute terms or relative to the domestic production of like
goods. The volume of imports of dumped or subsidized goods shall be
considered significant when it represents at least five per cent (5%) of
the domestic production of like goods. The Commission may base its
decisions on different percentages when, in its view, the circumstances of
the case so require;
2. Imports of dumped or subsidized goods are sold at prices considerably
lower than those for like goods produced in the country, or have the
effect of depressing prices or preventing increases which, if such goods
had not been imported, would have occurred in a natural and competitive
manner;
3. Imports of dumped or subsidized goods have an adverse impact on
producers of domestic like goods, taking into account their relative
position under the following headings: units produced; sales; market
share; profits; return on investment; utilization of installed capacity;
cash flow; inventories; growth, prices of domestic inputs, investment
plans; ability to obtain credit, as well as any other relevant element.
The Commission may determine which of the aforementioned headings apply to
an investigation.
Fulfilment of the requirements laid down in this Article are to be
understood within the concept of the domestic industry.
ARTICLE 51: The Commission shall determine that there is a threat of
material injury to the domestic industry producing like goods when it
considers that the threat is real and certain and that the injury is
imminent. In doing so, it shall take into account the following factors:
1. The nature of the subsidy in the case of imports of subsidized goods.
The Commission shall take into account direct subsidies and subsidies
related to exports, especially those which exceed five per cent (5%) ad
valorem;
2. Increases in production capacity, or idle capacity, in the country of
origin, provided that there are sufficient indications that such increases
may result in an increase of exports to Venezuela;
3. Accelerated increases in the share of the domestic market of dumped or
subsidized goods which have not yet resulted in injury, in accordance with
Article 50 of these Regulations;
4. Over-production or the build-up of inventories in the country of origin
of the dumped or subsidized goods, with the likelihood that they will be
exported to Venezuela;
5. The building up of inventories of dumped or subsidized goods in
Venezuela, even if they have not yet been sold there;
6. The ability of the producer abroad to replace the production of goods
subject to anti-dumping or countervailing duties in Venezuela by the
production of dumped or subsidized goods not subject to anti-dumping or
countervailing duties;
7. Any trend in sales and exports of dumped or subsidized goods which
point to an increase in the export of such goods to Venezuela;
8. Other circumstances which the Commission sees fit to consider.
ARTICLE 52: A determination of appreciable material retardation in the
start-up of the domestic industry producing like goods shall be based on
evaluation of the potential of the domestic industry at the time when
import of the dumped or subsidized goods commences or is imminent, in
order to establish whether or not such imports had an adverse effect on
the probable development of this potential. For this purpose, the
following factors concerning the domestic industry shall be taken into
account:
1. Projected performance compared with actual performance;
2. Utilization of production capacity;
3. The situation of orders and deliveries;
4. The financial situation;
5. Other circumstances which the Commission sees fit to consider.
TITLE IV
ANTI-DUMPING AND COUNTERVAILING DUTIES
ARTICLE 53: The provisional anti-dumping or countervailing duties referred
to in Article 19 of the Law shall be imposed when the need to prevent
injury to the domestic industry during the period of the investigation has
been determined. For this purpose, there shall be a preliminary
verification of fulfilment of the conditions referred to in Articles 50,
51 and 52 of these Regulations, as appropriate.
ARTICLE 54: Provisional or definitive anti-dumping or countervailing
duties shall also be imposed on goods imported in the form of inputs or
components of finished goods referred to in Article 5 of these Regulations
when the Commission determines that the purpose of importing them in this
form is to avoid such duties.
ARTICLE 55: Anti-dumping or countervailing duties shall be applied
independently of customs duties and other levies on the import of goods
into Venezuela and shall be payable by the person liable for paying the
customs charges.
For the additional duties referred to in Article 22 of the Law to be
applicable, there shall not have been any increase in the selling price to
the first independent buyer to compensate for the duties paid by the
exporter, without prejudice to the absence of an increase in the said
price constituting the indication referred to in the single paragraph of
the said Article.
TITLE V
UNDERTAKINGS
ARTICLE 56: In conformity with Article 24 of the Law, the Commission shall
evaluate any undertaking submitted to it and shall decide on its
acceptance and approval within a period not exceeding thirty (30) working
days from the date of submission of the corresponding application. In
order to facilitate the evaluation to be made, the Commission may take
part in the negotiations on the undertaking.
ARTICLE 57: An undertaking may be rejected in the following cases:
1. Where the domestic producers party to the undertaking do not represent
fifty per cent (50%) of domestic production. When the percentage is not
very representative of domestic producers as a whole, it may also be
required that the domestic producers should represent a proportion
equivalent to eighty per cent (80%) of those involved in domestic
production, in conformity with Article 14 of the Law;
2. Where the Commission considers that the undertaking is impractical or
impossible to apply effectively, for example, if the number of actual or
potential exporters is too high;
3. Where it is determined that the undertaking goes beyond the objective
of offsetting the dumping or subsidy related to the imports under
investigation;
4. In any other case in which the Commission so decides, according to the
circumstances.
ARTICLE 58: In all cases where the undertaking submitted to the Commission
involves modification of the prices of the dumped or subsidized products
or a reduction in exports of such goods to Venezuela, the views of the
Department for the Promotion and Protection of Free Competition may be
sought.
ARTICLE 59: Undertakings which restrict or eliminate subsidies shall not
be accepted without prior consultation and evidence that the competent
authorities in the country granting the subsidy are aware of and have
approved the undertaking. Wherever possible, the evidence shall include a
declaration by the aforesaid authorities undertaking not to grant the
subsidy or to restrict it to the extent agreed.
ARTICLE 60: Undertakings which have been accepted and approved by the
Commission may be amended following an application by an interested party
or when the Commission considers necessary, at the intervals specified in
the decision approving the undertaking, which may not be less than one (1)
year. Nevertheless, acceptance and approval may be cancelled by the
Commission before one year has expired when it considers that the causes
which gave rise to the undertaking have ceased to exist or when it notes
that the undertaking is not being applied.
TITLE VI
PROCEDURE
CHAPTER I
GENERAL PROVISIONS
SECTION ONE
ADMISSIBILITY OF THE APPLICATION
ARTICLE 61: In order to meet the requirement laid down in paragraph 2 of
Article 39 of the Law, the application for the opening up of an
investigation shall contain a full description of the good allegedly
dumped or subsidized. The description shall show the name and any
additional identifying data, as well as information on the following
elements by marketing unit: size, volume and weight; inputs or components;
use or end use; quality; technical specifications, if any; and tariff
classification.
ARTICLE 62: In order to meet the requirement laid down in paragraph 3 of
Article 39 of the Law, the application for the opening up of an
investigation shall contain a full description of the like good produced
in Venezuela, including all the information required for the allegedly
dumped or subsidized good in accordance with the previous Article, with
particular emphasis on the following:
1. Description and source of the components and inputs incorporated in the
like good;
2. Description of the production process for the like good, with an
indication of any known aspects of the process that differ from those used
by the producers of the allegedly dumped or subsidized good;
3. The application shall also indicate the market price of the good, its
factory price and its production cost.
ARTICLE 63: In order to meet the requirement laid down in paragraph 4 of
Article 39 of the Law, in the case of dumping, the application for the
opening up of an investigation shall contain the following information:
1. With regard to the normal value, an indication of the selling price of
like goods to buyers in the country of export or of origin. This
indication shall be accompanied by quotations, price lists, commercial
invoices or any other instrument which, in the opinion of the Technical
Secretariat, confirms the price indicated by the applicant;
2. With regard to the export price, an indication of this price or, in its
absence, of the f.o.b. (free on board) price of the allegedly dumped good,
confirmed by quotations, commercial invoices, price lists or any other
instrument which is acceptable in the view of the Technical Secretariat.
Where it is not possible to obtain such information, the applicant may
estimate the export price, deducting the necessary elements from the
selling price in Venezuela of the allegedly dumped good, based on the
concepts set out in Article 20 of these Regulations or in Articles 21 and
22 if applicable. In such cases, the price in Venezuela shall be
authenticated by the means indicated.
Where the requirements provided for in Article 8 of these Regulations are
not fulfilled, the application shall contain information on the compared
export value, or in its absence, the computed value.
ARTICLE 64: In order to meet the requirement laid down in paragraph 4 of
Article 39 of the Law, in the case of subsidies, the application for the
opening of an investigation shall indicate the following: the type of
subsidy; if it is among those mentioned in Article 9 of the Law; and the
elements which determine that the exporter or the producer is entitled to
the subsidy. For these purposes, the application shall include the legal
or administrative instrument conferring the subsidy and showing its
characteristics.
ARTICLE 65: In order to meet the requirement laid down in paragraph 4 of
Article 39 of the Law, with regard to injury, the application for the
opening of an investigation shall include evidence on:
1. Production of the applicant over the previous two (2) years and a
projection for the current year as at the time when the application is
made;
2. Decrease in the share of the domestic industry in the Venezuelan market
affected by the goods allegedly dumped or subsidized;
3. Decrease in profits from sales by the applicant which compete with the
goods allegedly dumped or subsidized;
4. Deterioration in the prices of the applicant's goods which compete with
the goods allegedly dumped or subsidized;
5. Decrease in the volume of the applicant's sales which compete with the
goods allegedly dumped or subsidized.
ARTICLE 66: The application for the opening of an investigation shall
contain the information needed to identify and notify the importers and
exporters concerned. The lack of this information shall be considered a
defect in the application for the opening of an investigation, with the
effects provided for in the single paragraph of Article 40 of the Law.
ARTICLE 67: In all cases where the applicant does not respect the
time-limit of fifteen (15) working days fixed in the single paragraph of
Article 40 of the Law for remedying any omissions or inadequacies noted by
the Technical Secretariat, the application shall be considered
inadmissible without it being necessary to issue any decision to that
effect.
ARTICLE 68: A request for reconsideration and an appeal to a higher body,
as provided for in the Basic Law on Administrative Procedure, may be made
against a decision taken by the Technical Secretariat in accordance with
the single paragraph of Article 40 of the Law.
SECTION TWO
INVESTIGATION PROCEDURE
ARTICLE 69: The Commission shall immediately notify the applicant and the
importers of the decision to open an investigation. The announcement
containing an extract from the decision shall be published in two (2)
newspapers with broad national circulation at the expense of the
applicant, who shall provide the Technical Secretariat with copies of the
newspapers in which the announcement has been published. When this
formality has been completed, the Technical Secretariat shall initiate the
investigation.
ARTICLE 70: For the purposes of collecting the information referred to in
Article 43 of the Law, the Technical Secretariat shall send questionnaires
and forms to the interested parties, who shall furnish the information
requested within the time-limit laid down in the aforesaid documents.
Failure to meet this obligation shall give rise to the procedure laid down
in Article 46 of the Law.
The questionnaires and forms referred to above may also be given to the
public bodies mentioned in Article 34 of the Law, which shall collaborate
with the Commission and the Technical Secretariat in providing
information.
ARTICLE 71: At the request of a party, the Technical Secretariat may
determine that the information provided is confidential, in accordance
with Article 48 of the Law, placing it in a separate part of the file.
ARTICLE 72: Where the Technical Secretariat declares that there are no
grounds for treating the information as confidential, it shall order that
the information be included in the relevant file, after notifying the
interested party so that he may withdraw the information if he sees fit to
do so. An appeal to reconsider this decision may be made to the Technical
Secretariat and an appeal to a higher body may be made to the Commission
in accordance with the provisions of the Basic Law on Administrative
Procedure.
ARTICLE 73: The time-limit for concluding the investigation shall be one
(1) year from the date on which it was initiated in accordance with
Article 69 of these Regulations.
ARTICLE 74: The Commission's decisions shall be published in the Official
Gazette of the Republic of Venezuela and in the biannual bulletin of the
Commission.
SECTION THREE
DEFINITIVE DUTIES
ARTICLE 75: The Commission's decision to impose anti-dumping or
countervailing duties shall immediately be notified to the Sectoral
General Directorate of Customs of the Ministry of Finance, together with
the text of the decision. Copies of the decision shall also be sent to the
Ministers for Finance and Development, and to the President of the Foreign
Trade Institute.
ARTICLE 76: As soon as the notification referred to in the previous
Article has been received, the Sectoral Director-General of Customs shall
issue the necessary instructions for the collection of the anti-dumping or
countervailing duties in conformity with Article 54 of the Law.
ARTICLE 77: The Ministry of Finance, through the Sectoral General
Directorate of Customs, shall give the Commission each month a breakdown
of the following information relating to the goods subject to the duties:
1. The amount collected on account of provisional and definitive
anti-dumping or countervailing duties during the previous month;
2. A list of the securities lodged for the provisional duties that have
been imposed.
The information referred to in this Article shall be specified according
to the volume of imports, and the importer or consignee accepting the
goods.
CHAPTER II
PROVISIONAL DUTIES
ARTICLE 78: An interested party may submit a request for the imposition of
provisional anti-dumping or countervailing duties, at the same time as an
application for the initiation of an investigation or at any time during
the investigation.
ARTICLE 79: The Commission shall decide whether to impose provisional
anti-dumping or countervailing duties within the time-limit laid down in
Article 60 of the Basic Law on Administrative Procedure calculated from
the date of the decision to open an investigation into dumping or
subsidies, without prejudice to the subsequent imposition of provisional
anti-dumping or countervailing duties when, in the course of the
investigation, additional evidence justifying such duties is obtained.
ARTICLE 80: In the case of the agricultural products referred to in the
single paragraph of Article 60 of the Law, the request for the imposition
of provisional countervailing duties shall be made at the time of
submitting the application for the opening of an investigation and shall
include the information necessary to identify and notify the importers
concerned, together with what the Technical Secretariat considers is
sufficient evidence of the following:
1. That the subsidy is fully effective in the country of origin or of
export;
2. That, in accordance with the legal facts of the case, the subsidy would
be applicable to the exporter or producer of the good investigated;
3. That the corresponding official publications do not raise doubts
concerning the form, amount and effects of the subsidy.
When the application has been received, the importers shall be notified of
the imposition of provisional duties.
ARTICLE 81: The duration of provisional anti-dumping or countervailing
duties shall not exceed four (4) months from the date of publication of
the decision to impose such duties in the Official Gazette. Nevertheless,
the Commission may extend the duration of the duties by additional periods
which, as a whole, shall not exceed one (1) year from the date of
initiation of the investigation provided that during the course of the
investigation evidence is obtained to support the serious presumption
which gave rise to the imposition of such duties.
ARTICLE 82: When the provisional anti-dumping or countervailing duties
have been imposed, the procedure laid down in Articles 75 et seq of these
Regulations shall be followed.
TITLE VIII
FINAL PROVISION
ARTICLE 83: These regulations shall apply from the date of their entry
into force, and shall also apply to procedures already initiated.
Done at Caracas, on the fifth day of the month of April of the year one
thousand nine hundred and ninety three. The 182nd year of independence and
the 134th year of the Federation.
(Signed) CARLOS ANDRES PEREZ