|español - français - português|
REPUBLIC OF BOLIVIA
JAIME PAZ ZAMORA
PRESIDENT OF THE REPUBLIC OF BOLIVIA
That under Article 141 of the Political Constitution, the State may enact rules on the control of trade and economic activities, when the public need so requires.
That Article 8 of the Law of the Republic No. 1182 of 17 September 1990 guarantees the freedom to import and export goods and services.
That it is necessary to enhance the scope of the aforesaid Law, taking into account the price distortions in international markets resulting from unfair foreign trade practices in various countries.
That there are highly subsidized agricultural and agro-industrial products on international markets and that their import into the domestic market would lead to unfair and unfavourable competition for domestic industry.
That it is necessary to adopt the measures required to allow the Government to prevent, confront and correct certain international trade trends such as dumping and subsidies, which are universally acknowledged to be unfair foreign trade practices.
That it is necessary to give domestic industry adequate protection against international practices which distort competition.
That it is necessary to establish countervailing measures for foreign products imported or to be imported into Bolivia in accordance with unfair foreign trade practices at prices lower than production costs.
That for the application and establishment of countervailing measures it is necessary to put in place an expeditious procedure for complaints and investigation of unfair foreign trade practices, dumping and subsidies, so as to determine the corrective measures required.
That the regulations under this Supreme Decree should not conflict with the Price Policy in force, but should strengthen its implementation.
That it is necessary to enhance, broaden and regulate the foreign trade support measures enacted in Supreme Decree No. 22753 of 15 May 1991.
THE COUNCIL OF MINISTERS:
SCOPE OF APPLICATION
Article 1.- The objective of the rules laid down in this Decree is to prevent and correct any unfair trade practices.
Article 2.- Unfair trade practices means dumping and various forms of export subsidization by other countries in Bolivia.
Article 3.- Anti-dumping measures and countervailing measures, as appropriate, shall be applied to those imports that have been proved to be the subject of unfair trade practices.
Article 4.- The basic guiding principles for these rules shall be the following:
Article 5.- An import is considered as being dumped when the export price is less than the normal value for the like product when destined for consumption or utilization in the country of origin or of export in the ordinary course of trade.
Article 6.- A like product means a product identical in all respects to the product that is the subject of the practice or, in the absence of such a product, another product which has characteristics closely resembling those of the product under consideration, taking into account aspects such as its nature, quality, use and function.
Article 7.- Export price means the price actually paid or payable for the product sold for export to Bolivia.
Article 8.- For the purposes of this Decree, normal value means the amount actually paid or payable for a like product imported into Bolivia, when sold for consumption or utilization in the country of origin in the ordinary course of trade.
Ordinary course of trade means transactions between associated parties or parties who are bound by a compensatory arrangement, provided that the prices and cost are comparable to those in trade between independent parties.
When there are no sales of the like product in the ordinary course of trade in the domestic market of the country of origin or export or when such sales do not permit a proper determination of the normal value, this shall be calculated on reasonable bases to be determined by the Committee; for this purpose, the relevant provisions of GATT, LAIA and the decisions of the Andean Group shall be taken into account.
Article 9.- Margin of dumping means the amount by which the export price is less than the normal price. This margin shall be calculated per unit of product imported at the dumping price.
The export price and the normal value shall be examined on a comparable basis as far as the physical characteristics of the products, the quantities and conditions of sale are concerned, and shall take into account the differences in taxes and other criteria which might affect the comparison of prices. The comparison shall be made at the same stage of the transaction, generally at the ex-factory level, on the basis of sales made at as nearly as possible the same time.
Article 10.- An import is considered as having been subsidized when the production, manufacture, transport or export of the imported good or of its raw materials and inputs has received directly or indirectly any bounty, aid, premium or subsidy in the country of origin or export. Likewise, when subsidized products are sold on international markets causing price distortion in relation to production costs and imposing international prices which lead other countries to export at prices directly affected by these circumstances.
Multiple currency practices related to trade and financial transactions in the country of origin or export shall be considered a subsidy when they have the same effect.
Article 11.- The amount of the subsidy shall be calculated in monetary units or ad valorem for each subsidized product imported.
The amount shall be established by deducting, inter alia, the costs that have had to be incurred in order to be entitled to the subsidy and any taxes or levies to which the export of the product has been subjected.
When there are multiple currency practices, the amount of the subsidy shall be calculated on a reasonable basis to be determined by the Committee.
EVALUATION AND INVESTIGATION OF COMPLAINTS
Article 12.- The Ministry of Exports and Economic Competition (MECE) shall be responsible for receiving complaints about price distortion relating to products traded on international markets, for conducting and supervising the investigation of such complaints and for recommending or proposing measures to the Executive.
Article 13.- The MECE shall entrust a Technical Secretariat with the investigation of the complaint. The Secretariat shall be composed of the following:
Article 14.- Any natural or legal person who considers that he has been affected or threatened by any unfair trade practice (dumping and/or subsidies) carried out from the territory of another country against Bolivia and causing or threatening to cause prejudice or economic injury may submit a complaint to the MECE. The complaint shall indicate the level of duties (anti-dumping or countervailing) requested by the interested party.
Article 15.- In making a formal complaint, the interested party shall provide evidence for presuming the existence of injury or threat of injury to domestic industry and a cause-and-effect relationship between the practices objected to and the injury or threat of injury, together with any other information considered essential.
Article 16.- The MECE shall not initiate an investigation when the complaint does not contain the information it has specified. In such cases, the MECE shall notify the complainant within the time-limit laid down in the internal regulations.
Article 17.- When the MECE considers that the information submitted by the complainant is sufficient, after expiry of the period specified in the internal regulations, it shall instruct the Technical Secretariat to initiate an investigation.
Article 18.- In accordance with the internal regulations, the MECE may place a public announcement summarizing the main points of the complaint in the national press so that interested natural or legal persons may have cognizance of it.
Article 19.- The MECE shall determine the threat of injury that is the subject of a complaint by considering inter alia the volume of goods imported or to be imported that are the subject of unfair trade practices, the prices cited in the complaint and the effects on the domestic production of identical or like products; for this purpose, it shall take into account the provisions of GATT, LAIA and the decisions of the Andean Group.
Article 20.- The MECE may also, through the Technical Secretariat, request and collect evidence and information from producers whose products are the subject of investigation and from the authorities of countries considered to be at the origin of the distortion.
Article 21.- When an investigation has been initiated, the Technical Secretariat, through the MECE, shall seek the opinion of the authorities in countries whose products are the subject of the investigation regarding the facts of the case and the possibility of proposing an agreed solution between the Bolivian authorities and the authorities of that country. This possibility shall remain open throughout the whole period of the investigation.
Article 22.- The internal regulations shall fix a maximum period of time from the date of communication of the complaint referred to in Article 18 during which the Technical Secretariat must conduct and conclude the investigation. In exceptional circumstances, this period may be extended, subject to authorization by the MECE.
Article 23.- In cases that only concern dumping, the investigation shall not hinder the procedures of customs clearance, in accordance with Article 30.
Article 24.- When the investigation has been concluded, the MECE shall decide, within the time-limits laid down in the internal regulations, whether or not the complaint is valid. It shall also decide upon the measures to be taken, within the time-limit laid down in the internal regulations.
Article 25.- Within the time-limits laid down in the internal regulations, interested parties may appeal against the decision taken with a view to its confirmation or modification by the MECE.
Article 26.- The duration of countervailing or anti-dumping duties shall be two (2) years and this term may be extended as many times as necessary subject to an application by the natural or legal persons affected, to the MECE which shall be responsible for granting the relevant authorization.
ANTI-DUMPING AND COUNTERVAILING DUTIES
Article 27.- In cases of dumping, anti-dumping duties shall be imposed on imports that are the subject of the practice. The anti-dumping duties shall be equivalent to the margin of dumping determined or less when this is adequate to remove the injury or threat of injury that has been proved.
Article 28.- In the case of subsidies, countervailing duties shall be imposed on imports that are the subject of the practice and shall be equivalent to the amount of the subsidy or less when this is adequate to remove the injury or threat of injury that has been proved.
Article 29.- Corrective measures to prevent or remedy situations derived from dumping and from subsidies may not be applied simultaneously to the same imported product.
Article 30.- When the injury or threat of injury referred to in this Supreme Decree calls for immediate restrictive measures, the producer concerned may request from the MECE an authorization or mandate for them to be applied as emergency measures.
If the MECE accepts the request, it may authorize or determine provisional measures, which may consist of anti-dumping or countervailing duties. The internal regulations shall fix the time-limit for lodging security, by cash deposit or bond, equivalent to the aforementioned duties. Withholding of appraisement shall be an appropriate provisional measure provided that the normal duty and the estimated amount of the anti-dumping duty are indicated.
During the investigation referred to in Chapter III, the MECE may suspend the application of the provisional measures and in its final decision shall determine the continuation, modification or abolition of the measures adopted.
When the definitive duties are higher than the provisional duties paid or guaranteed, the payment or security shall be retained and the amount in excess shall not be collected. If the definitive duties are lower than the provisional duties, the difference shall be refunded or the reduced amount of the security shall be retained. Where definitive duties are not established, the entire amount paid by way of provisional duty shall be refunded or the security shall be returned or unblocked.
Article 31.- As an emergency measure referred to in Article 30, the MECE shall immediately suspend the importation of the product concerned for a specified period until it has determined the admissibility or inadmissibility of the complaint.
Article 32.- The MECE and the Ministry of Finance shall establish the internal procedures, complementary rules and regulations for the due application of this Supreme Decree within a maximum period of 30 days.
The Ministers of State for Exports and Economic Competition, External Relations and Worship and Finance shall be responsible for implementing and enforcing this Supreme Decree.
Done at the Palacio de Gobierno at La Paz on the twenty-second day of the month of October, one thousand nine hundred and ninety-two.
JAIME PAZ ZAMORA
Ronald MacLean Abaroa
Carlos A. Saavedra Bruno
Gustavo Fernandez Saavedra
Alberto Sáenz Klinski
Jorge Landivar Roca
Samuel Doria Medina Auza
Jorge Quiroga Ramírez
Hedim Cespedes Cossio
Carlos Aponte Pinto
Fernando Camperio Prudencio
Oscar Zamora Medinacelli
Carlos Dabdoub Arrien
Alvaro Rejas Villarroel
Oswaldo Antezana VacaDiez
Herbert Muller Costas
Fernando Kieffer Guzman
Jaime Cespedes Toro
Ministry of Exports and Economic Competition
Bolivia Bi-Ministerial Decision No.
That Supreme Decree No. 23308 of 22 October 1992 establishes special rules to prevent unfair trade practices;
That Article 32 of the aforementioned Supreme Decree specifies that the Ministry of Exports and Economic Competition and the Ministry of Finance shall be responsible for implementing the Supreme Decree, establishing the criteria for dealing with complaints of unfair trade practices and the investigation procedure, with the necessary consideration of the evidence;
That Bolivia has been a contracting party to the General Agreement on Tariffs and Trade (GATT) since 8 September 1990 and is also a member of the Cartagena Agreement, which obliges it to apply the provisions of the Andean legal system.
DECIDES THE FOLLOWING:
ARTICLE 1.- SCOPE OF APPLICATION. The object of this bi-ministerial Decision is to regulate the procedures, terms, general and specific criteria to be followed by the investigating authority and by the complainants for the implementation of Supreme Decree No. 23308 on Unfair Trade Practices.
Complaints regarding imports from Member Countries of the Andean Group that are the subject of unfair trade practices are the responsibility of the Board of the Cartagena Agreement, which investigates such complaints in conformity with the relevant provisions in force.
ARTICLE 2.- CONCEPT. For the purposes of this Decision, the following definitions apply:
COMMITTEE ON THE EVALUATION OF UNFAIR TRADE PRACTICES: The Committee shall be responsible for examining the findings of the investigation carried out by the Technical Secretariat of the MECE and for making a relevant recommendation to CONEPLAN, through the Minister for Exports and Economic Competition. The Committee shall be composed of the following: the Under_Secretary for Exports and Economic Competition, who shall act as Chairman, the Head of the Economic Commission of the Central Bank of Bolivia, the Under_Secretary for Socio-Economic Development of the Ministry of Planning and Coordination, the Under-Secretary for Revenue, and the Under-Secretary for Multilateral Affairs of the Ministry of External Relations.
COMPLAINANT: Any natural or legal person representing a major proportion of domestic production who requests an investigation into imports that are the subject of unfair trade practices, which could lead to the imposition of corrective measures if these practices cause or threaten to cause injury to domestic industry.
ANTI-DUMPING DUTY: A measure in the form of a customs duty on imports which restores the conditions of competition distorted by dumping, and according to the procedure set out below.
COUNTERVAILING DUTY: A measure in the form of a customs duty on imports which restores the conditions of competition distorted by a subsidy, and according to the procedure set out below.
RETROACTIVE DUTIES: The definitive anti-dumping or countervailing duties established for products entered for consumption within ninety (90) days prior to the date of establishing the provisional duties, when it is proved that there is injury which is difficult to repair caused by massive dumped or subsidized imports, or when statements of intent accepted have not been respected.
DATE OF SALE: The date of the contract, purchase order, order confirmation or invoice, whichever establishes the material terms of sale.
MASSIVE IMPORTS: Imports shall be deemed to be massive if, following comparison of two periods of ninety days as close as possible to the date of initiation of the investigation, it is determined that imports have increased by 15 per cent or more. Under special circumstances such as the import of perishables, these periods and percentages may vary.
MARGIN OF DUMPING: The difference between the normal value of goods and the export price under comparable market conditions, preferably at the ex-factory level. The provisions of Article 25 of Chapter V of these regulations shall be taken into account when calculating the margin of dumping.
MINISTER FOR EXPORTS AND ECONOMIC COMPETITION: For the purposes of the investigation referred to in this Decree, the Minister for Exports and Economic Competition shall be responsible for issuing ministerial decisions on whether or not to initiate the investigation requested, evaluating the grounds for imposing provisional duties if necessary, and disclosing the statements of intent submitted by the interested party, as well as for decisions reflecting the action taken by the authorities thereon. CONEPLAN shall be responsible for issuing decisions on the termination of investigations and any imposition of definitive duties. All the aforementioned decisions shall be published in the Official Gazette, and a summary thereof shall be published in a newspaper with national circulation.
BEST AVAILABLE INFORMATION: The investigating authority shall base its decision on the information provided ex officio or by the interested parties, which can be verified, is appropriate and presented in timely fashion. When the authority does not accept evidence or information, it shall so inform the party which has supplied the information or evidence and shall allow the party to provide further explanations.
ORDINARY COURSE OF TRADE: Transactions between independent parties, or between associated parties or parties who are bound by a compensatory arrangement, provided that the prices and costs are comparable to those in trade between independent parties. Sales at prices below per unit (fixed and variable) costs production shall not be deemed to be transactions in the ordinary course of trade.
ASSOCIATED OR RELATED PARTIES: Foreign producers are deemed to be related to exporters or importers in the following cases:
One person is deemed to control another when the former is legally or operationally in a position to exercise restraint or direction over the latter.
INTERESTED PARTIES: In addition to the complainant, for the purposes of the investigation referred to in these regulations, the following shall be deemed to be interested parties:
MAJOR PROPORTION OF DOMESTIC INDUSTRY: A major proportion of domestic industry shall be taken to mean at least 25 per cent thereof in terms of the volume of production.
INJURY: The generic concept of injury may refer to material injury, threat of material injury or material retardation of the establishment of an industry in Bolivia. For the purposes of these regulations, the terms prejudice or injury utilized in Supreme Decree No. 23308 have the same meaning.
DOMESTIC INDUSTRY: For the purposes of the investigation referred to in these regulations, and particularly for the determination of injury, domestic industry shall be interpreted as referring to the domestic producers as a whole of the like products or to those of them whose collective output of the products constitutes a major proportion of the total domestic production of these products, except in the following cases:
In such circumstances, injury may be found to exist even where a major proportion of the total industry is not injured, provided there is a concentration of dumped or subsidized imports into such an isolated market and such imports are causing injury to the producers of all or almost all the production within such market.
LIKE PRODUCT: Means a product identical in all respects to the product that is the subject of the practice or a product which has characteristics closely resembling that product.
EVIDENCE OF INJURY: Evidence that the dumped or subsidized imports are causing injury to domestic industry in the importing country.
In cases where the country does not have any international obligations requiring it to provide evidence of injury, corrective measures may be applied solely on evidence of the existence of the unfair trade practice, taking into account the reciprocity which would exist if the country under investigation granted the injury test when investigating Bolivian products.
TECHNICAL SECRETARIAT: The authority responsible for investigating unfair trade practices pursuant to Article 13 of Supreme Decree No. 23308. The Technical Secretariat shall carry out its functions in the offices of the MECE and shall be composed of the Technical Department of the MECE, the relevant departments of the Ministry of Finance and the Central Bank of Bolivia and the relevant department of the Bolivian Confederation of Private Industry, representing the associations concerned.
The Technical Department of the MECE shall be responsible for coordinating and administering the Technical Secretariat. It shall issue the basic questionnaires, decide on which documents are to be considered confidential, carry out visits to verify the information submitted, authorize access to the information in the file and carry out other activities required by its coordination and administration role.
Confidential information shall be available only to the Technical Department of the MECE. All the members of the Technical Secretariat shall have access to public information for the purpose of carrying out their work.
The members of the Technical Secretariat shall meet within five (5) days of any change in the circumstances of the investigation being carried out, according to the provisions of these regulations. In any event, they shall meet to adopt preliminary decisions, to determine whether or not the matter is urgent in accordance with Chapter IX of these regulations, and to conclude the investigation.
Following each meeting, the members of the Technical Secretariat shall issue a report of the meeting containing the relevant details and the decision reached.
SUBSIDIES: For the purposes of these regulations, subsidies shall comprise export incentives granted by foreign governments, whether directly or through public or private bodies, as well as production, manufacturing or transport incentives.
ARTICLE 3. - INITIATION OF THE PROCEDURE. The MECE may initiate the procedure referred to in this decision ex officio or upon application by a party.
ARTICLE 4. - EX OFFICIO INVESTIGATION. The MECE may, under exceptional circumstances, initiate an investigation ex officio when there is adequate evidence to presume the existence of injury caused by dumped or subsidized imports, provided that it has the support of the industry involved.
ARTICLE 5. - INITIATION OF THE PROCEDURE UPON APPLICATION BY A PARTY. The MECE may initiate the procedure upon application by domestic producers or by any person accounting for a major proportion of the domestic industry, including trade and producers' associations, who consider themselves injured by imports of like products effected during the six (6) months prior to the application, or currently being effected, at dumped or subsidized prices.
ARTICLE 6. - COMPLAINT REQUIREMENTS. The application referred to in the previous article must be submitted in writing to the MECE and shall contain at least the following particulars:
ARTICLE 7. - OFFICIAL RECEIPT OF APPLICATIONS. If examination of the complaint and the clarifications and additional information requested in the first instance shows that the requirements of the previous article have been met, the MECE shall communicate this to the complainant within ten (10) working days following receipt of the complaint or within an identical period from the date on which the additional information is received.
If the MECE considers that the complaint lacks any of the data or documents referred to in the previous Article that would allow the existence of an unfair foreign trade practice to be established, within a period not exceeding ten (10) working days from the receipt of the complaint it shall request the complainant to clarify the complaint or provide the relevant data or documents within a period of twenty (20) working days.
If the complaint is not clarified or the additional information is not received within the period specified, the complaint shall be considered to have been withdrawn.
ARTICLE 8. - EVALUATION OF THE COMPLAINT. The Technical Secretariat shall have a period of twenty (20) working days from the date of dispatch of the notification of official receipt sent to the complainant to determine whether there are grounds for the complaint. During this period, the MECE may request and furnish evidence and information ex officio or at the request of the complainant. Whether or not there are grounds for the complaint shall depend on:
ARTICLE 9.- PRIOR CONSULTATIONS. As soon as possible after official receipt of a complaint on subsidies and, in any event, before an investigation is initiated, the authorities of the countries whose products are the subject of a possible investigation shall be given an opportunity to hold consultations in order to elucidate the facts of the case and to arrive at a mutually agreed solution between the Bolivian authorities and the authorities of the country of origin or export.
This opportunity shall also be afforded throughout the period of investigation.
ARTICLE 10.- INITIATION OF THE INVESTIGATION. If, as a result of evaluating the complaint, there are found to be grounds for initiating an investigation, the MECE shall publish a Ministerial Decision to that effect in the Official Gazette and in a printed communication medium with national circulation.
A copy of the Ministerial Decision shall be sent to the complainant, to the known exporters and importers of the product in question, and to the diplomatic or consular representatives of the countries of export or origin.
If there are no grounds for initiating an investigation, a Ministerial Decision to that effect shall be published in the same form as a decision ordering the initiation of an investigation.
ARTICLE 11.- DISPATCH OF QUESTIONNAIRES AND TIME-LIMITS FOR REPLY. Within a maximum period of five (5) calendar days from the date of the Ministerial Decision to initiate an investigation, the Technical Secretariat shall forward basic questionnaires to the exporters or domestic producers and to diplomatic or consular representatives, requesting information on the case.
The same time-limits shall apply to the dispatch of questionnaires subsequent to the preliminary determination.
The communications accompanying the questionnaires shall indicate the time-limit within which the parties must return the questionnaires duly completed. This shall not exceed twenty (20) working days from the date of dispatch of the communication.
ARTICLE 12.- PRELIMINARY DETERMINATION. Within a maximum period of forty_five (45) working days from the date of dispatch of the questionnaires, the Technical Secretariat shall adopt a decision on the existence of the alleged unfair trade practice, the injury and the causal relationship between them. This determination may include the imposition of provisional duties, where necessary, and shall be the subject of a Ministerial Decision.
ARTICLE 13.- JOINT HEARINGS OF INTERESTED PARTIES. During the investigation, preferably subsequent to the preliminary determination, the complainant, the importers and exporters of the product that it is the subject of the investigation and in general any persons who have shown that they have a legitimate interest in the investigation may apply for the holding of joint hearings of interested parties representing different interests.
ARTICLE 14.- SUBMISSION OF STATEMENTS OF INTENT. If the MECE receives statements of intent submitted by any party interested in the investigation, it shall communicate this in a Ministerial Decision indicating the time-limit during which the other interested parties may submit their comments.
ARTICLE 15.- PERIOD FOR THE INVESTIGATION. The Technical Secretariat shall have a maximum period of seven (7) months from the date of publication of the Ministerial Decision ordering the initiation of the investigation in which to conduct and complete the investigation.
In exceptional cases, the Minister for Exports and Economic Competition shall authorize the extension of the period for the investigation.
ARTICLE 16.- CONCLUSION OF THE INVESTIGATION. After the interested parties have been afforded an opportunity to put forward their arguments, and on the basis of the available evidence and information, the Technical Secretariat shall conclude the investigation and shall request the Under_Secretary for Exports and Economic Competition to convene the Committee on the Evaluation of Unfair Trade Practices in order to evaluate the findings of the investigation and make an appropriate recommendation to CONEPLAN through the Minister for Exports and Economic Competition. The Committee shall meet at the latest ten (10) working days after the conclusion of the investigation. CONEPLAN shall meet within five (5) working days following the meeting of the Committee.
ARTICLE 17.- CONFIDENTIALITY OF DOCUMENTS. When initiating the investigation, the Technical Secretariat shall open a separate file, in which shall be placed the documents which the authorities, the complainant or the interested parties have determined are of a confidential nature. Such documents shall be treated as confidential provided that the authority considers that there are grounds for so doing. The interested parties should therefore indicate the reasons for which they seek confidential treatment of certain evidence and documents and should annex a non-confidential summary of this information.
Information which has been received as confidential may only be utilized by the Technical Secretariat for the purposes for which it was requested. Such information may not be disclosed without the specific authorization of the party providing it.
The Technical Secretariat shall consider that information is confidential when its disclosure might have significantly adverse consequences for the party providing it. When the Technical Secretariat deems that there are no grounds for considering that information is confidential and the person providing it is unwilling to make the information public or to authorize its disclosure in summary form, it may be disregarded for the purposes of the investigation, if it has been provided voluntarily.
ARTICLE 18.- SPECIALIZED SUPPORT SERVICE. The MECE may engage the services of specialized advisory enterprises to assist it, particularly, the Technical Secretariat, in the examination and verification of the data and elements required to conduct the investigations referred to in these regulations. Such enterprises shall be obliged to take an oath of secrecy regarding the matters of which they have knowledge.
ARTICLE 19.- VISITS. The Technical Secretariat shall verify the information provided in response to the questionnaires or submitted in the course of the investigation. For this purpose, it may visit the domiciles of the parties involved in the investigation, including those of the complainant, the exporter, the foreign producer and the importer; the Technical Secretariat shall restrict itself to verifying the documents in the file or checking those whose examination has been ordered.
The Technical Secretariat may also verify prices through other sources which it deems important for the investigation. In particular, it shall take into account the information provided by the inspection bodies legally established in Bolivia.
The information and evidence provided regarding production costs or the subsidy received may be verified in the country of origin or source if the government authority concerned and, where appropriate, the manufacturer of the product agree to verification.
Where the government of the exporting country or, where appropriate, the manufacturer of the product subject to investigation does not agree to verification, the Technical Secretariat shall determine countervailing measures on the basis of the best available information.
PROCESSING OF FILES
ARTICLE 20. - FILES. The Technical Secretariat shall keep a file for each investigation entrusted to it in accordance with the following principles.
Each file shall contain the following two sections:
ARTICLE 21. - ACCESS TO INFORMATION IN THE FILE. Interested parties may have access to and obtain the information provided to the Technical Secretariat by any of the interested parties, with the exception of the internal documents prepared by the Technical Secretariat and confidential documents.
For this purpose, they shall make an application in writing to the Technical Secretariat indicating the specific matters on which they require information and, if the request is accepted, the information shall be provided in writing.
ARTICLE 22. - CRITERIA FOR THE DETERMINATION OF DUMPING. In order to determine the existence of dumping, the export price and the normal value compared on an equitable basis at the same level of trade shall be taken into account and for this purpose the necessary adjustments shall be made by the Technical Secretariat.
ARTICLE 23. - EXPORT PRICE. "Export price" means the price actually paid or payable for the product sold for export to Bolivia.
In cases where there is no export price or where it appears that the export price is unreliable because of association or a compensatory arrangement between the exporter and the importer or a third party, the export price may be constructed on the basis of the price at which the imported products are first resold to an independent buyer. If the products are not resold to an independent buyer, or not resold in the condition as imported, the price may be constructed on such reasonable basis as the Technical Secretariat may determine.
In calculating the export price, the necessary adjustment shall be made to allow for all costs incurred prior to sale, such as costs of transport, insurance, maintenance, loading and unloading, import duties and other levies arising subsequent to export from the country of origin; a reasonable margin of general, administrative and selling costs; a reasonable margin of profit and any commission usually paid or agreed.
ARTICLE 24.- NORMAL VALUE. "Normal value" means the amount actually paid or payable for a like product by comparison with the product imported, when sold for consumption or utilization in the country of origin or export, in the ordinary course of trade.
When there are no sales of the like product in the ordinary course of trade in the domestic market of the country of origin or export, or such sales do not permit a proper determination of the normal value, it shall be calculated:
In cases where products are not imported directly from the country of origin but from a third country, the price at which the products are sold from the country of export to Bolivia shall normally be compared with the comparable price in the country of export. However, comparison may be made with the price in the country of origin if, for example, the products are merely transshipped through the country of export, or such products are not produced in the country of export, or there is no comparable price for them in the country of export.
In the case of imports coming from or originating in countries with centrally-planned economies, the normal value shall be determined on the basis of the comparable price in the ordinary course of trade at which the like product is sold to a third country with a market economy and a similar level of development for domestic use or consumption. Where there is no comparable price, the normal value may be calculated on a reasonable basis to be determined by the Technical Secretariat.
ARTICLE 25.- COMPARISON. In order to compare the normal value in the country of origin and/or export and the export price on the Bolivian market as far as the physical characteristics, technical specifications of the product, conditions and terms of sale, taxes and other elements are concerned in each case allowance shall be made for the differences which affect such a comparison in order to make the appropriate adjustment. The comparison shall be made at the same stage of the transaction, generally at the ex-factory level, in respect of sales made at as nearly as possible the same time. When an interested party requests that any such differences be taken into consideration, he shall furnish evidence that the request is justified.
The following criteria shall be applied when determining the adjustment:
4. in the case of differences in the conditions and terms of sale, the adjustment should be limited to differences which directly relate to the sales under consideration, such as differences in credit conditions, security, guarantees, forms of technical assistance, after-sales services, commissions or salaries paid to sales persons, packaging, transport, insurance, maintenance, loading and related costs, and, if they have not been taken into account in some other form, differences in the stage of marketing the transaction;
5. differences in respect of import duties and other tax charges on products for domestic consumption in the country of origin or export from which exports are exempt.
When the price comparison requires a conversion of currencies, such conversion shall be made using the rate of exchange on the date of sale or of the transaction in the ordinary course of trade, except in cases of forward selling. Prices shall be calculated in the convertible currency in which the invoice has been made out or in American dollars. Temporary fluctuations in exchange rates shall be ignored.
ARTICLE 26. - MARGIN OF DUMPING. Margin of dumping is the amount by which the export price is less than the normal price, following a comparison at the same stage of the transaction, usually at the ex-factory level. In determining the margin of dumping, the following shall be taken into account:
ARTICLE 27.- CRITERIA FOR DETERMINING SUBSIDIES. Subsidies shall only be a subject of investigation if they are specific to an industry or a branch of industry or to an enterprise or group of enterprises and are not generally granted. Export subsidies and subsidies contingent upon the use of domestic over imported goods shall be deemed to be specific.
ARTICLE 28.- ILLUSTRATIVE LISTS. Where the Technical Secretariat undertakes an investigation into subsidies, it shall be considered that any subsidy included in the illustrative lists of domestic and export subsidies is a specific subsidy, unless there is proof to the contrary. These lists shall not be exhaustive.
Subsidies shall be regulated by those international agreements to which Bolivia is party which relate specifically to subsidies or contain special provisions on the practices referred to in these regulations. In the absence of any such reference or special provisions, the rules laid down in these regulations shall apply to subsidies.
11. The provision by governments (or special institutions controlled by and/or acting under the authority of governments) of export credits at rates below those which they actually have to pay for the funds so employed (or would have to pay if they borrowed on international capital markets in order to obtain funds of the same maturity and denominated in the same currency as the export credit), or the payment by them of all or part of the costs incurred by exporters or financial institutions in obtaining credits, in so far as they are used to secure a material advantage in the field of export credit terms.
ARTICLE 29.- DEDUCTIONS. In calculating the amount of the subsidy received for the product exported to Bolivia a deduction shall be made for the total export charges, duties or other levies to which the export has been subjected in the country of origin with the specific aim of offsetting the subsidy.
When an interested party requests such a deduction, he shall be required to prove that the request is justified.
Subsidies not exceeding 1 per cent ad valorem shall be disregarded.
ARTICLE 30.- INJURY INVESTIGATION. A determination of injury caused by unfair trade practices shall be based on positive evidence and shall involve an objective examination of the following:
No one of the above factors is alone sufficient to give decisive guidance on the injury to domestic industry.
ARTICLE 31.- EXAMINATION OF THREAT OF INJURY. A determination of threat of injury shall be based on facts and not merely on allegation, conjecture or remote possibility. Threat of injury shall be determined to exist when it is imminent and, for this purpose, the Technical Secretariat shall consider, in addition to the factors mentioned in the previous Article, the following:
ARTICLE 32.- EXAMINATION OF MATERIAL RETARDATION OF THE ESTABLISHMENT OF AN INDUSTRY. For the purposes of determining material retardation of the establishment of an industry in Bolivia, the Technical Secretariat shall examine inter alia feasibility studies, loans negotiated and contracts for procurement of machinery related to new investment projects or the expansion of existing plant.
ARTICLE 33.- GENERAL CRITERIA FOR EXAMINATION. For the purposes of the examination of injury, threat of injury or material retardation of the establishment of a domestic industry, the Technical Secretariat shall take into account inter alia the following:
ARTICLE 34.- ACCUMULATION OF IMPORTS FOR THE PURPOSES OF THE INJURY INVESTIGATION.- In investigating injury, the Technical Secretariat may accumulate contested imports coming from or originating in two or more countries subject to investigation for the purpose of assessing the volume and effect of these imports on domestic industry, provided that the following requirements are met:
ARTICLE 35.- MASSIVE IMPORTS AND INJURY WHICH IS DIFFICULT TO REPAIR. As a result of the evaluation of injury referred to in the previous Articles, the Technical Secretariat may determine that massive imports have caused injury to domestic industry which is difficult to repair. In such cases, it may order the collection of retroactive duties.
ARTICLE 36. - STATEMENTS OF INTENT. The Committee on the Evaluation of Unfair Trade Practices shall evaluate the cases in which the competent authorities of the country of origin or of export, the producers or the exporters, offer through the MECE, at its suggestion or at the initiative of the parties, to eliminate or limit the subsidy, to revise the export prices or to cease exports to Bolivia, as appropriate, in such a way as to eliminate the consequent injury.
Offers shall not be considered when:
The MECE shall, in a reasoned resolution, communicate the terms of the statement of intent so as to give an opportunity to parties interested in the procedure to send their comments to the investigating authority within a specified time period, at the expiry of which it shall communicate any information to the Committee on the Evaluation of Unfair Trade Practices.
The Committee shall make a recommendation to the Minister for Exports and Economic Competition on the terms of the statement of intent. The Ministry of Exports and Economic Competition shall adopt and publish the decision most appropriate to the interests of the country.
In its resolution accepting the offer, the Ministry may order that anti-dumping or countervailing duties should not be collected, or should be collected in an amount less than the identified margin of dumping or subsidy, or be collected only as from a specified date or up to a specified date. The application of any concessions made in the decision taken shall be conditional on fulfilment of the offers by the parties which made the statements of intent accepted by the Ministry of Exports and Economic Competition.
In the resolutions concerned, the Ministry of Exports and Foreign Competition shall also stipulate that, if the authority, producer or exporter which made the offer fails or refuses to provide periodic information relating to the fulfilment of such offer, the MECE may order the immediate application of provisional duties using the best information available, without prejudice to a declaration of non_fulfilment through a reasoned resolution.
Where the Minister for Exports and Economic Competition, after receiving statements of intent, determines that there has been no injury, the resolution terminating the investigation shall state that the offers accepted previously have lapsed.
In such cases, the time-limit for concluding the investigation shall be two months, unless there has been a special extension.
ARTICLE 37.- ANTI-DUMPING AND COUNTERVAILING DUTIES. CONEPLAN, after having heard the opinion of the Committee on the Evaluation of Unfair Trade Practices, through the Minister for Exports and Economic Competition, shall be responsible for determining and ordering the collection of anti-dumping or countervailing duties on any dumped or subsidized imported product which is proved to be causing or threatening to cause material injury to domestic industry or materially retarding the establishment of an industry in Bolivia.
Anti-dumping or countervailing duties shall not be imposed in an amount greater than the margin of dumping or the amount of the subsidy. It may be determined that the anti-dumping or countervailing duty should be less than the margin of dumping or the amount of the subsidy if such lesser amount is adequate to remove the injury or threat of injury to domestic industry.
ARTICLE 38.- PROVISIONAL DUTIES. On the basis of the information given in the questionnaires, provided by the complainant and obtained ex officio, the Technical Secretariat may propose to the Minister for Exports and Economic Competition that provisional anti-dumping or countervailing duties should be imposed where there is a preliminary finding of the existence of dumping or a subsidy and sufficient proof of the consequent injury to domestic industry. Such a measure may not be adopted sooner than forty-five (45) working days from the date of dispatch of the questionnaires.
The sole purpose of imposing provisional duties shall be to prevent injury being caused during the investigation. The duties shall correspond to the provisionally estimated amount of the margin of dumping or subsidy.
Provisional duties may be paid in cash or covered by a security in conformity with the legal provisions on the lodging of security for the payment of customs duties.
ARTICLE 39.- DEFINITIVE DUTIES. When a definitive anti-dumping or countervailing duty is imposed, it shall be levied in the amounts mentioned in the relevant resolution, whoever the importer may be, on imports of such products found to be dumped or subsidized and causing injury to an industry in Bolivia.
CONEPLAN, following the opinion of the Committee on the Evaluation of Unfair Trade Practices, may determine that the anti-dumping or countervailing duty should be less than the margin of dumping or the amount of the subsidy if such lesser amount is adequate to remove the injury or threat of injury to national industry.
ARTICLE 40.- RETROACTIVE DUTIES. CONEPLAN may order the imposition of retroactive definitive duties in the following cases:
ARTICLE 41.- CRITERIA FOR THE CALCULATION OF DUTIES. In determining the amount of anti-dumping or countervailing duties, the Technical Secretariat shall utilize statistical or sampling techniques generally accepted for cases involving a large volume or number of transactions or adjustments. These techniques shall be representative of the transactions investigated and generally accepted accounting principles shall always apply.
In calculating the duties, the Technical Secretariat shall take into account the amount adequate to remove injury, including the following:
The amount of the duties may be expressed in one of the following forms or any combination thereof, if necessary: absolute terms, ad valorem percentages, relative or variable terms in accordance with the indicative price.
ARTICLE 42.- EXCESS AMOUNTS AND REFUNDS. There shall be a refund of the security or a reduced amount of the security shall be collected when:
The General Customs Administration shall refund excess amounts or order the return of the security, in the same amount, in accordance with the procedures laid down in the relevant legal provisions.
ARTICLE 43.- APPLICATION AND DURATION OF ANTI-DUMPING AND COUNTERVAILING DUTIES. The duration of countervailing or anti-dumping duties shall be two (2) years, which may be extended if the causes which gave rise to the duty persist and provided that there is a prior request by the interested parties. In dealing with the request for extension, the MECE shall entrust the Technical Secretariat with the following examinations:
If no request is made by the interested parties, the definitive duties shall lapse.
For imports of products subject to the payment of anti-dumping or countervailing duties, the Customs Administration shall require a certificate of origin showing the origin or source of the product, without prejudice to verification to be carried out by any verification enterprise legally established in Bolivia.
ARTICLE 44.- MODIFICATION OF DEFINITIVE ANTI-DUMPING OR COUNTERVAILING DUTIES. Administrative decrees fixing definitive anti-dumping or countervailing duties may be modified provided that there are valid reasons for so doing. The modification may be made ex officio at any time or at the request of an interested party one year after the duties were first imposed or last modified.
ARTICLE 45. - EMERGENCIES. In conformity with Article 31 of Supreme Decree No. 23308, the Technical Secretariat shall establish whether or not there is an emergency affecting the whole of the domestic industry allegedly affected by imports deemed to be subsidized.
For this purpose, the Technical Secretariat shall:
ARTICLE 46. - EMERGENCY MEASURES. Where the Technical Secretariat, as a result of the preliminary evaluation, finds that there are grounds for considering that an entire branch of domestic industry is facing an emergency, it shall recommend to the Minister for Exports and Economic Competition the adoption of the measures referred to in Article 31 of Supreme Decree No. 23308, whose duration may not exceed ten (10) days, or shall recommend other measures with effect equivalent to the injury suffered by the sector.
ARTICLE 47. - OFFICIAL NOTIFICATION. If the facts which have led to the application of the measures referred to in this Chapter allow the initiation of a procedure for unfair trade practices, the Technical Secretariat shall make the official notification in conformity with the provisions of these regulations.
ARTICLE 48. - PENALTIES. Penalties shall be applied, where appropriate, to the complainant or the subject of the complaint (importer).
1. Importers of a product that is the subject of a complaint:
2. Complainants (producers' trade associations) in Bolivia:
For registration, communication and filing
Roberto, Camacho Sevillano Luis Fernando Campero Prudencio
Under-Secretary for Exports and Competition Minister for Exports and Economic Competition