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CIRCULAR Nº 59/01 - Secretariat of Foreign Trade.


Secretariat of Foreign Trade

(PUBLISHED in the Official Gazette of 10 December 2001)


THE SECRETARY FOR FOREIGN TRADE OF THE MINISTRY OF DEVELOPMENT, INDUSTRY AND FOREIGN TRADE, by using the prerogatives assigned to her according to Article 17 of Annex I of Decree No. 3.839 of 7 June 2001, makes the following understanding related to the conduction of trade defence investigations available to the public:

1. Confidential information

1.1 The submission of confidential information is accepted, subject to the provisions of paragraph 6 of Article 3 of Decree 1.488, dated 11 May 1995; of Article 28 of Decree 1.602 dated 23 August 1995; and of Article 38 of Decree 1.751, dated 19 December 1995.

1.2 Information submitted in confidence shall be separated from the documents of the main process. Together with this confidential information, a justification and a non-confidential summary shall be provided, to allow for a reasonable understanding of the confidential information. In cases where it is not possible to provide for the summary, the parties or governments shall justify, in writing, this circumstance.

1.3 The term CONFIDENTIAL shall be placed at the top-centre and at the top-bottom of each page, preferably in a colour other than that of the document. A sequential numbering shall be indicated on each page, informing the page number and the total of pages of the whole document, according to the provisions of Article 13 of Decree 2.910, dated 29 December 1998.

2. Counting of time periods

2.1 In the processes related to trade defence, addressed in the Decrees mentioned in paragraph 1.1, the time periods start to count from the date when the communication to the party is issued, excluding from the counting the first day and including the last day.

2.2 The first day of the time period is the first working day subsequent to the issuing of the communication.

2.3 The last day corresponds to the date of registration of the response at the Department of Trade Defence - DECOM. The period shall be considered postponed until the next working day, if the last day falls on a non-working day or if the office is closed before the normal office hours.

2.4 The time periods expressed in days are to be counted in a continuous manner. The terms fixed in months or years are to counted from date to date. If, in the expiry month, there is no day equivalent to that of the initiation of the period, the final day of the month will be considered as the expiry date.

2.5 The requests for extension, when admitted by law, can only be examined if they have been presented before the expiry of the original period.

2.6 The parties may provide information by means of a data and image transmission system such as a facsimile or a similar one. The use of this possibility aims at ensuring that the deadlines are met. The originals must be necessarily delivered to the Protocol Division until five days after the expiry date.

3. Economies that are not predominantly market orientated

3.1 The provisions of Article 7 of Decree 1.602, dated 23 August 1995, apply only for obtaining the normal value when the investigation involves countries with economies that are not predominantly market orientated.

3.1.1. The interested parties will be informed, by means of questionnaires, about the third country market economy to be used, and they will be able to voice their opinion in the response to the respective questionnaires, according to paragraph 3 of that same Article.

3.1.2 In the investigation, the producer/exporter under investigation and the respective government will be entitled to present elements of proof with the aim of requesting a reassessment of this qualification, involve information, inter alia, on exchange rates, interests, wages, prices, equity control, stock exchange, investment, price formation of relevant inputs and others that are considered adequate by the party or by SECEX.

3.2 Considering the transformations undergone by several countries with economies that are traditionally non-market orientated economies, which reached the stage of economies in transition having implemented important measures with a view to removing state monopolies and the control and state intervention on domestic prices, the following understanding will be adopted:

3.2.1 The following countries are considered as economies in transition: Bulgaria, the Slovak Republic, Slovenia, Hungary, Poland, Romania and the Czech Republic.

3.2.2 As regards the initiation of the investigation involving the countries mentioned in paragraph 3.2.1, the provisions of Article 7 of Decree 1.602, of 1995, shall not apply. However, if during the investigation it is verified that the market rules do not prevail in the sector where the producer/exporter under investigation operates, the provisions of Article 7 may be applied for the calculation of the normal value.

3.2.3 When forwarding the questionnaires, DECOM will request information that allows for the obtaining of the normal value and the export price, according to the provisions of Articles 5 and 6 of Decree 1602, of 1995. If complete answers to the questionnaires are received, the information may be subject to verification "in loco", according to the provisions of Article 30 of the aforementioned Decree. If the information presented is incomplete, determinations based on best information available may be effected, according to Article 66 of the aforementioned Decree.

3.2.4 If, at any time during the investigation, DECOM concludes that free market rules do not prevail in the sector in which the producer/exporter under investigation operates, the provisions of Article 7 may be applied in order to obtain the normal value. In this context, information on prices or the constructed value in a third market-economy country may be requested, for the possible use of the provisions of Article 7 of Decree 1602, dated 1995.

3.3 For the assessment of the existence of market economy conditions, the following elements, "inter alia", will be observed:

(a) the degree of government control over the companies or over the means of production;

(b) the level of state control over the allocation of resources, over prices and over the production decisions by companies;

(c) the legislation to be applied in terms of ownership, investment, taxation and bankruptcy;

(d) the degree of freedom in the determination of wages in negotiations between employers and employees;

(e) the level at which distortions inherited from the centralized economy system persist in relation to, inter alia, assets amortization, other assets deductions, direct swap of assets and payments in the form of debt compensation; and

(f) the level of state interference on currency exchange operations.