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Decree No. 15.286
Designating the Ministry of Industry and Trade and the
Ministry of Finance to Implement Law No. 444/94 Concerning the Agreement
on Implementation of Article VI of the General Agreement on Tariffs and
Trade 1994 and the Agreement on Subsidies and Countervailing Measures,
and Laying Down the Applicable Procedures
Asunción, 28 October 1996
Having regard to Law No. 260/93 Approving the Protocol of Accession of the Republic of Paraguay to the General Agreement on Tariffs and Trade, signed in Geneva, Switzerland, on 1 July 1993; and
Law No. 444/94 ratifying the Final Act of the Uruguay Round of the General Agreement on Tariffs and Trade, by which the provisions of the Agreement on Implementation of Article VI of GATT 1994, the Agreement on Subsidies and Countervailing Measures and the Agreement on Safeguards are adopted,
Whereas it is necessary to implement the said Agreements and ensure that they are effectively fulfilled, and designate the agency responsible for their application,
THE PRESIDENT OF THE REPUBLIC OF PARAGUAY
Article 1 - Purpose
1.1 The purpose of these provisions is to establish rules and procedures applicable to dumped or subsidized imports where such practices cause or threaten to cause injury to a domestic industry or material retardation of the establishment thereof.
Article 2 - Definitions
2.1 For the purposes of this provision:
The term domestic industry shall be taken to mean the domestic producers as a whole of the like products or those of them whose collective output of the products constitutes a major proportion of the total domestic production of those products, except that:
The term like product shall be taken to mean a product which is identical, i.e., alike in all respects to the product under consideration, or in the absence of such a product, another product which, although not alike in all respects, has very similar characteristics.
The term injury shall be taken to mean material injury to a domestic industry, threat of material injury to a domestic industry or material retardation of the establishment of such an industry.
The term interested party shall be taken to mean the complainant, exporters, foreign producers, importers of the product under investigation, trade or business chambers or associations of producers, of exporters and importers and of consumers, the government of the exporting country, domestic producers of the like product or the trade or business chambers or associations of which domestic producers are members, as well as chambers and trade associations of users and consumers, and any other party recognized as such under international treaties or agreements or which show a legitimate interest.
Related parties: producers shall be deemed to be related to exporters or importers in the following cases: (a) if one of them directly or indirectly controls the other; (b) if both of them are directly or indirectly controlled by a third person; or (c) if together they directly or indirectly control a third person, provided that there are grounds for believing or suspecting that the effect of the relationship is such as to cause the producer concerned to behave differently from non-related producers. One shall be deemed to control another when the former is legally or operationally in a position to exercise restraint or direction over the latter.
Article 3 - Competent authorities
3.1 The Ministry of Industry and Trade and the Ministry of Finance are designated as the agencies responsible for the application of the provisional measures, countervailing measures and anti-dumping duties provided for in this Decree.
3.2 The Minister of Industry and Trade and the Minister of Finance shall be responsible for deciding the provisional or definitive imposition of anti-dumping or countervailing duties in conformity with the conclusions of the Commission.
3.3 The Ministry of Industry and Trade shall be responsible for conducting investigations and carrying out administrative procedures in accordance with the provisions of this Decree and the powers conferred on them therein.
3.4 There shall be established a Trade Defence Commission, hereinafter referred to as the Commission, with responsibility for issuing recommendations on the administrative procedures applied and the appropriate measures to be taken.
3.5 The Commission shall comprise a regular representative and an alternate from the following Ministries: Industry and Trade, Finance, Agriculture and Livestock, Foreign Relations, and Integration.
3.6 The Commission shall be chaired by the representative of the Ministry of Industry and Trade.
3.7 The heads of the institutions mentioned in the previous paragraph shall be responsible for the direct appointment of a representative to the Commission. Appointments shall be made within two months following the entry into force of this Decree.
3.8 Within three months following the entry into force of this Decree, the Commission shall adopt the internal regulations, the Handbook establishing the requirements and the documentation that the application for the initiation of the investigation must contain, and the forms and/or questionnaires to be completed by the interested parties.
Article 4 - Determination of dumping
4.1 For the purpose of this Decree, a product is to be considered as being dumped, i.e. introduced into the national market at less than its normal value, if the export price of the product exported to the national market is less than the comparable price, in the ordinary course of trade, for the like product when destined for consumption in the exporting country.
4.2 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 the exporting country or when, because of the particular market situation or the low volume of sales in the market of the country of origin or the exporting country, such sales do not permit a proper price comparison, the Ministry of Industry and Commerce shall determine the normal value by comparison with:
4.3 Sales of the like product destined for consumption in the domestic market of the exporting country shall be considered a sufficient quantity for the determination of the normal value if such sales constitute 5 per cent or more of the sales of the product under consideration to the importing country, except where the Ministry of Industry and Trade deems that the evidence demonstrates that domestic sales at such lower ratio are nonetheless of sufficient magnitude to provide for a proper comparison.
4.4 Sales of the like product in the domestic market of the exporting country or sales to a third country at prices below per unit (fixed and variable) costs of production plus administrative, selling and general costs may be treated as not being in the ordinary course of trade by reason of price and may be disregarded in determining normal value only if the authorities determine that such sales are made (1) within a period normally one year but in no case less than six months; (2) in significant quantities, i.e. representing at least 20 per cent of sales in transactions under consideration for the determination of the normal value; and (3) at prices which do not provide for the recovery of all costs within a reasonable period of time. If prices which are below per unit costs at the time of sale are above weighted average per unit cost for the period of investigation, such prices shall be considered to provide for recovery of costs within a reasonable period of time.
4.5 The export price shall be taken to mean the price actually paid or payable for the product sold for export to the national market. In cases where there is no export price or where such price is unreliable because of a link or association between the exporter and the importer, the export price may be constructed on the basis of the price at which the imported products are first 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 shall be calculated on such reasonable basis as the Ministry of Industry and Commerce may determine.
4.6 The comparison between the export price and the normal value shall be made fairly and at the same level of trade, normally at the ex-factory level, and in respect of sales made at as nearly as possible the same time. This comparison shall normally be made on the basis of a comparison of the weighted average normal value with a weighted average of prices of all comparable export transactions or by a comparison of normal value and export prices on a transaction-to-transaction basis. If the Ministry of Industry and Trade deems that there is a pattern of export prices and normal value which differs significantly among different purchasers, regions or time-periods, the comparison can be made between the normal value established on a weighted average basis and the prices of individual export transactions.
4.7 The price comparison shall make due allowance in each case, on its merits, for differences which affect price comparability, such as differences in conditions and terms of sale, taxation, levels of trade, quantities, physical characteristics, and any other differences which are also demonstrated to affect price comparability. In cases which require construction of the export price in accordance with Article 4.5, allowances for costs, including duties and taxes, incurred between importation and resale, and for profits accruing, should also be made.
4.8 Where products are not imported directly from the country of origin but from an intermediate country, the price at which the products are sold from the country of export to Paraguay shall be compared, as a rule, 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 transhipped 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.
4.9 In the case of imports originating in centrally-planned economies, the normal value of a like product shall be determined on the basis of the sales value for domestic consumption, in the ordinary course of trade, of a like product to a third country with a market economy, or failing this, of its export, or on the basis of such other criterion as the Ministry of Industry and Trade considers relevant to the circumstances. However, the selection of the country must not openly result in disadvantages for the producer or exporter of the country of origin.
4.10 The amount by which the export price is lower than the normal value in accordance with Article 8 shall be considered the margin of dumping. The margin of dumping shall be considered to be de minimis if it is less than 2 per cent of the export price.
Article 5 - Subsidies
5.1 Imports shall be considered to have been subsidized if, with respect to the production, manufacture, transport or export of the goods imported, or of their raw materials and inputs:
5.2 Imports that are subsidized within the meaning of this Article may be subject to countervailing duties only if such subsidy is specific in accordance with provisions of Article 2 of the Agreement on Subsidies and Countervailing Measures of GATT 1994.
5.3 The amount of the subsidy shall be calculated in monetary units or ad valorem percentages per unit of the subsidized product imported into the national territory.
5.4 The amount of the subsidy shall be considered to be de minimis if the subsidy is less than 1 per cent ad valorem.
Article 6 - Determination of injury
6.1 A determination of injury, threat of injury or material retardation of the domestic industry shall be based on positive evidence and involve an objective examination of both:
6.2 With regard to Article 6.1 (a), the investigating authorities shall determine whether there has been a significant increase of imports, either in absolute terms or relative to production or consumption in the country. In order to determine the effect of such an increase on the prices of like products in the domestic market, the investigation authorities will also have to determine whether the sales price of the imports in question is significantly lower and whether the effect of such imports is otherwise to depress prices to a significant degree or prevent price increases, which otherwise would occur, to a significant degree.
6.3 The volume of dumped or subsidized imports shall be regarded as negligible if the volume of dumped or subsidized imports from a particular country is found to account for less than 3 per cent of imports of the like product, unless countries which individually account for less than 3 per cent of the imports of the like product collectively account for more than 7 per cent of imports of the like product.
6.4 In order to determine the effect of dumped or subsidized imports on the domestic industry, an evaluation shall be made of all relevant economic factors and indices having a bearing on the state of the industry, such as: actual and potential decline in sale, profits, output, market share, productivity, return on investments, or utilization of capacity. An examination shall also be made of the factors affecting domestic prices; the magnitude of the margin of dumping or the amount of the subsidy; actual or potential negative effects on cash flow, inventories, employment, wages, growth, ability to raise capital or investments. This list is not exhaustive, nor can one or several of these factors necessarily suffice to justify a decision.
6.5 A determination of a threat of material injury shall be based on facts and not merely on allegation, conjecture or remote possibility, and should involve the consideration of the following factors:
No one of these factors by itself can necessarily justify a decision, but the totality of the factors considered must lead to the conclusion that further dumped or subsidized exports are imminent and that, unless protective action is taken, material injury would occur.
6.6 The effect of the dumped or subsidized imports shall be assessed in relation to domestic production of the like product when available data permit the separate identification of that production on the basis of such criteria as the production process, producers' sales and their profit. If such separate identification of that production is not possible, the effects of the dumped or subsidized imports shall be assessed by the examination of the production of the narrowest group or range of products, which includes the like product, for which the necessary information can be provided.
Article 7 - Causal link
7.1 It must be demonstrated that the dumped or subsidized imports are, through the effects of dumping or subsidization, as set forth in the preceding paragraph, causing injury within the meaning of this Decree. The demonstration of a causal relationship between the dumped or subsidized imports and the injury to the domestic injury shall be based on an examination of all the relevant evidence available.
7.2 If there are other factors, such as the volume and prices of imports not sold at dumping or subsidized prices, contraction in demand or changes in the patterns of consumption, trade restrictive practices, developments in technology, and others, which are injuring the domestic industry, such injury must not be attributed to dumped or subsidized imports.
7.3 The volume and effects of imports from or originating in more than one country under investigation may be considered cumulatively with a view to assessing the injury to the domestic industry, provided the margin of dumping and the amount of the subsidy are not de minimis and the volume of imports is not negligible in accordance with Articles 4.10, 5.4 and 6.3.
Article 8 - Initiation of proceedings
8.1 Except as provided for in paragraph 8.5 of this Article, an investigation to determine the existence, degree and effect of any alleged dumping shall be initiated upon a written application to the Ministry of Industry and Commerce by or on behalf of the domestic industry.
8.2 Domestic producers representing a major proportion of the domestic industry considered to have been injured by dumped or subsidized imports of like products may apply to the Ministry of Industry and Commerce for the initiation of an investigation.
8.3 The application shall be drawn up in conformity with the requirements laid down in the Handbook prepared by the Ministry of Industry and Trade and approved by the Commission, and shall include the documentation mentioned in the Handbook and in the questionnaires made available for the purpose. The application shall also include evidence of the existence of (a) dumping; (b) injury; and (c) a causal relationship between the dumped imports and the alleged injury.
8.4 The application shall contain, at least, the following information:
8.5 If, in special circumstances, the Ministry of Industry and Trade decides to initiate an investigation without having received a written application by or on behalf of a domestic industry for the initiation of such investigation, it shall proceed only if it has sufficient evidence of dumping, injury and a causal link, as described in paragraphs 8.3 and 8.4 of this Decree, to justify the initiation of an investigation.
Article 9 - Standing for the initiation of procedures
9.1 An application shall be considered to have been made by or on behalf of the domestic industry if it is supported by those domestic producers whose collective output constitutes more than 50 per cent of the total production of the like product produced by that portion of the domestic industry expressing either support for or opposition to the application. However, no investigation shall be initiated when domestic producers expressly supporting the application account for less than 25 per cent of total production of the like product produced by the domestic industry.
Article 10 - Consultations with the government of the exporting country
10.1 In the case of investigation of subsidies, the Ministry of Industry and Trade shall afford the authorities of the countries whose products are under investigation, within five working days following receipt of the application, the opportunity to organize consultations, within a maximum of one month, between the Paraguayan authorities and the authorities of the country of origin or of export with the aim of clarifying the facts of the case and arriving at a mutually satisfactory solution. The invitation to hold consultations shall not hinder the initiation of the investigation.
10.2 Once the period of one month for the holding of prior consultations has expired, the Ministry of Industry and Trade, within the time-limit referred to in Article 12 of this Decree, shall evaluate the application for an investigation in order to decide whether or not the investigation should be initiated and the case opened. If a mutually satisfactory solution is found through prior consultations, the Ministry of Industry and Trade shall refrain from initiating the investigation and close the case.
Article 11 - Procedural rectifications
11.1 Once the application for the initiation of an investigation has been received, and without prejudice to the provisions of Article 10 of this Decree, the Ministry of Industry and Trade shall determine, within five working days, whether the application meets the requirements laid down in Article 8.3 of this Decree. If the application does not meet those requirements, or if the Ministry of Industry and Trade considers that it is necessary to request further information in order to be able to evaluate the application, it shall so inform the applicant so that the latter may make the necessary corrections or supply the required information, on the understanding that if this is not done within 30 working days, the case will be closed.
11.2 If the Ministry of Industry and Trade considers that the application meets the requirements of Article 8.3 of this Decree and does not require additional information, it shall begin its evaluation within the time-limit provided in Article 12 of this Decree.
Article 12 - Evaluation of the application
12.1 Once the application has been received, and without prejudice to the provisions of Articles 10 and 11 of this Decree, the Ministry of Industry and Trade shall, within a maximum of 30 working days following the submission of the application:
12.2 If the Ministry of Industry and Trade accepts the application, it shall issue a resolution to that effect in which it sets forth the reasons for its decision and orders the initiation of an investigation. The resolution shall be published in the Official Gazette within three working days following the decision. The initiation of the investigation shall not hinder the procedures of customs clearance.
A public notice of the initiation of an investigation shall contain or otherwise make available through a separate report, adequate information on the following: (1) The name of the exporting country or countries and the product involved; (2) the date of initiation of the investigation; (3) the basis on which dumping is alleged in the application; (4) a summary of the factors on which the allegation of injury is based; (5) the address to which representations by interested parties should be directed; (6) the time-limits allowed to interested parties for making their views known.
12.3 In cases where additional information is requested from the applicant, the request by the Ministry of Industry and Trade shall have the effect of interrupting the 30-day time period, which shall resume when the applicant supplies the information or, if he fails to do so, when the 15 days referred to in Article 12.1 have elapsed.
12.4 If the Ministry of Industry and Trade considers that there is insufficient evidence to warrant the initiation of an investigation, it shall issue a substantiated resolution to that effect, and shall notify the interested parties thereof within three working days.
12.5 In the case of applications for the initiation of an investigation concerning imports from any of the member countries of MERCOSUR, and once it has been established that the application meets the requirements laid down in this Decree and that it has been duly substantiated, the government of the exporting country shall be notified, and efforts made to ensure that the facts are known to both sides and that consultations are held with a view to reaching a mutually satisfactory solution to the issue.
12.6 If in exceptional circumstances the Ministry of Industry and Trade decides to initiate an investigation without having received a written application by the domestic industry, it shall proceed only if it has sufficient evidence of dumping, injury or threat of dumping, and of a causal link, in conformity with the provisions of this Decree, to warrant the initiation of an investigation.
Article 13 - Notification and sending of questionnaires
13.1 Within seven working days following the date of publication of the resolution ordering the opening of the investigation, the Ministry of Industry and Trade shall notify the interested parties of the said resolution and at the same time provide them with the questionnaire and forms specially used to obtain relevant information from the interested parties concerned, including the authorities of the exporting country where appropriate. The latter shall be notified through the diplomatic or consular representation in Paraguay.
13.2 Where the number of exporters involved is particularly high, the notification shall be sent only to the association of the exporting member or to the relevant trade association, as appropriate.
Article 14 - Reply
14.1 The notification referred to in this Article shall provide the parties with a time-limit of 40 calendar days following receipt of the notification and the questionnaire to reply to the questionnaire and the forms and to supply proof and evidence, it being understood that if they fail to do so within the set time-limit, the Ministry of Industry and Trade may take a decision on the basis of the best information available.
14.2 In special circumstances, when a request has been duly substantiated by the interested parties and when the Ministry of Industry and Trade considers that there are sufficient grounds for doing so, the 40 day time-limit may be extended by a maximum of 15 calendar days.
14.3 Users from the production sectors of the products under investigation, and representative consumer organizations in cases where the product is commonly sold at retail level, shall be given the opportunity to provide any information which is relevant to the investigation regarding dumping or subsidies, injury and the causal link between the two.
14.4 The replies submitted by the parties as well as accompanying documentation shall be in Spanish or, where this is not possible, shall be supplied together with an official translation.
14.5 Evidence and information presented by each of the interested parties shall be brought to the attention of each of the parties involved, with the exception of information classified as confidential, which shall be treated as such by the Ministry of Industry and Trade. In such cases, the parties providing the confidential information shall be required to furnish non-confidential summaries thereof or, in exceptional circumstances when this is not possible, they shall provide a statement of the reasons why summarization is not possible.
14.6 If the Ministry of Industry and Trade considers that a request for confidentiality is not warranted and if the supplier of the information is unwilling to authorize its disclosure in generalized or summary form, the Ministry of Industry and Trade may disregard such information unless it can be demonstrated to their satisfaction from appropriate sources that the information is correct.
Article 15 - Verification of the evidence
15.1 Throughout the investigation, the Ministry of Industry and Trade may call upon other government units or any other department or office which possesses information that it deems relevant to the verification of the facts to cooperate, provide additional information or participate in any other way.
15.2 Where it deems necessary, the Ministry of Industry and Trade may carry out investigations and obtain relevant evidence in the territory of the exporting country, subject to the authorization of the exporting firms, and provided they have notified the authorities of the government in question and that those authorities do not raise any objections.
15.3 Should any interested party refuse access to necessary information, fail to provide such information within a reasonable period or significantly impede access thereto, preliminary and final determinations may be made on the basis of the best information available.
Article 16 - Provisional measures
16.1 Within a maximum period of 90 calendar days following the opening of the investigation, the Ministry of Industry and Trade may recommend that the Minister of Industry and Trade and the Minister of Finance impose provisional measures if it concludes that such measures are necessary to prevent further injury from being caused to the domestic industry during the investigation. The Minister of Industry and Trade and the Minister of Finance shall decide, within 15 calendar days of such recommendation, on the imposition of provisional measures by issuing a reasoned joint ministerial resolution. The interested parties shall be informed of the said resolution which shall be published in the Official Gazette.
16.2 If the Ministry of Industry and Trade considers that the circumstances so justify, the 90 day time-limit mentioned in the previous paragraph may be extended by up to 30 additional calendar days.
16.3 The imposition of provisional measures may be ordered only if a preliminary affirmative determination has been made that the increase in imports or the existence of dumping or subsidization has caused injury to the domestic industry as defined in this Decree.
16.4 In no case shall the imposition of provisional measures be ordered sooner than six calendar days following the date of the publication initiating the investigation.
16.5 Provisional measures shall consist in provisional anti-dumping or countervailing duties expressed in terms of an ad valorem percentage or in relation to a base price. The Minister of Industry and Trade and the Minister of Finance may decide to withhold the imposition of a provisional duty until a final determination is made, in which case the importer shall provide a security in the form of a bond or bank guarantee covering the full payment of the duty. The provisional measure shall not be greater than the provisionally estimated margin of dumping. It shall not be applied for a period exceeding four calendar months. However, in the case of anti-dumping investigations, at the request of exporters representing a significant percentage of the trade involved, that period can be extended to six months, or to nine months when in order to remove injury a duty lower than the margin of dumping is being considered.
Article 17 - Undertakings with respect to prices or subsidies
17.1 In cases where an affirmative preliminary determination of dumping or subsidies has been made, an investigation may be suspended or terminated without the imposition of provisional or definitive measures when undertakings are entered into under which the competent authorities of the country of origin or the country of export, the producers or the exporters agree to revise export prices, to eliminate or limit the subsidy or to cease exports to Paraguay in such a way that the injury to the domestic industry is removed.
17.2 Proposals to enter into the undertakings referred to in the preceding paragraph shall be submitted to the Ministry of Industry and Trade which shall notify the interested parties thereof within 15 working days following their submission and grant such parties a period of ten days to present their written comments. The Ministry of Industry and Trade may suggest undertakings as referred to in this Article, but no exporters shall be forced to accept them.
17.3 Within five working days following the ten-day period referred to in the preceding paragraph, the Ministry of Industry and Trade shall convene a meeting of the Commission to which it shall submit the proposals, the comments received and the technical recommendations in respect thereof for examination. The Minister of Industry and Trade and the Minister of Finance shall issue a reasoned joint ministerial resolution containing its final determination as to whether or not it accepts the undertakings in question. The interested parties shall be notified of the said resolution, which shall be published in the Official Gazette within three working days.
17.4 The joint ministerial resolution referred to in 17.3 above may provide for the non-imposition of provisional measures, the imposition of such measures but for a lower amount than the margin of dumping or the amount of the subsidy, or any other appropriate concession. However, the application of such concessions shall remain subject to the fulfilment of the accepted undertakings. The resolution may also provide for the immediate application of provisional measures in the event of non-fulfilment of the undertakings or failure by the authority, the producer or the exporter to furnish periodic information concerning fulfilment or to allow the relevant data to be verified.
17.5 Even where an undertaking is accepted, the investigation shall be terminated when the exporter so requests or the Ministry of Industry and Trade so decides. In such cases, if a negative determination with respect to dumping or subsidies is subsequently made, the resolution terminating the investigation shall announce the termination of the undertaking, except where such determination is largely based on the existence of the said undertaking.
Article 18 - Final determination
18.1 The Ministry of Industry and Trade, having given all of the interested parties ample opportunity to present all of the evidence and information they consider relevant, and on the basis of such evidence and the information available, shall convene the Commission, within a period of three calendar months following the date of the joint ministerial resolution containing the preliminary determination, in order to submit the conclusions and recommendations of the investigation to the Commission for examination and discussion. If the Ministry of Industry and Trade considers that there are special circumstances to justify such a step, the said period may be extended by up to 30 calendar days.
18.2 Within a maximum time-limit of one calendar month following the date at which the Commission was convened, the Ministry of Industry and Trade shall submit its conclusions and recommendations. The Minister of Industry and Trade and the Minister of Finance shall then issue, within a period of 30 calendar days, a reasoned joint ministerial resolution containing its final determination with respect to the imposition of duties in conformity with the recommendations made, the evidence and the information available. The interested parties shall be notified of the said joint ministerial resolution, which shall be published in the Official Gazette within three working days.
18.3 If no dumping, subsidies or resulting injury to the domestic industry are found, the corresponding resolution shall declare the investigation terminated and order the restitution of any provisional duty or the reimbursement of the security where appropriate.
18.4 Due consideration shall be given in assessing the case to national economic interests and the public interest, and to the information presented by the parties in that respect, including information presented by groups or associations of users and consumers. A determination not to impose measures may be made when it is concluded that such measures would result in material injury to the national economy.
18.5 The imposition of definitive measures shall be ordered only if there is sufficient evidence of dumping or subsidization and resulting injury to the domestic industry under the terms of this Decree.
18.6 In such cases, and providing a preliminary determination has been made involving the imposition of provisional measures, the corresponding surety or guarantee shall be realized where appropriate.
18.7 When an anti-dumping or countervailing duty is imposed in respect of any product, such anti-dumping or countervailing duty shall be collected, in the appropriate amounts in each case, on a non-discriminatory basis on imports of such product from all sources found to be dumped or subsidized and causing injury, except as to imports from those sources from which price undertakings or undertakings to limit or eliminate subsidies under the terms of Article 17 of this Decree have been accepted.
18.8 The Ministry of Industry and Trade shall name the supplier or suppliers of the product concerned. If, however, several suppliers from the same country are involved, and it is impracticable to name all these suppliers, the Ministry of Industry and Trade may name the supplying country concerned. If several suppliers from different countries are involved, the Ministry of Industry and Trade may name either all of the suppliers involved, or, if this is impracticable, all of the supplying countries involved.
Article 19 - Calculation of duties
19.1 Anti-dumping and countervailing duties shall be applied in amounts equal to the margin of dumping or the subsidy established. In no case shall anti-dumping or countervailing duties exceed the margin of dumping or the amount of the subsidy found to exist. However, a duty lower than the margin of dumping or the amount of the subsidy may be established where such duty would be sufficient to remove injury to the domestic industry.
19.2 Any exporter whose exports are subject to a definitive anti-dumping or countervailing duty but who was not actually investigated for reasons other than a refusal to cooperate, shall be entitled to an expedited review in order that an individual duty rate may be established promptly for that exporter.
19.3 When anti-dumping duties are imposed, the Ministry of Industry and Trade shall carry out an examination to determine the individual margins of dumping for the exporters or producers of the exporting country in question who have not exported the product concerned to Paraguay during the period under investigation, provided such exporters or producers can demonstrate that they are in no way related to the exporters from producers of the exporting country that are subject to anti-dumping duties on the product.
Article 20 - Refunding of excess amounts
20.1 Where the final determination calls for the imposition of anti-dumping or countervailing duties higher than the provisional duties, the difference shall not be collected. However, if the definitive duty is lower than the provisional duty, the Ministry of Industry and Trade and the Ministry of Finance shall issue a joint resolution ordering the immediate reimbursement of the duty or release of the bond or security in the corresponding amount.
Article 21 - Retroactivity
21.1 Provisional measures and anti-dumping or countervailing duties shall only be applied to products which enter for consumption after the date of entry into force of the resolutions containing the preliminary and final determinations.
21.2 However, definitive measures may be imposed retroactively for the period for which provisional measures have been applied where a final determination of injury (but not of a threat thereof or of a material retardation of the establishment of an industry) is made or, in the case of a final determination of a threat of injury, where the effect of the dumped or subsidized imports would, in the absence of the provisional measures, have led to a determination of injury.
21.3 Where a determination of a threat of injury or material retardation is made (but no injury has yet occurred), definitive duties may be imposed only from the date of determination of threat of injury or material retardation. In such cases, orders will be given for restitution of the bond or security made during the period of the application of provisional measures.
21.4 In critical circumstances where the authorities find that injury which is difficult to repair is caused by massive dumped or subsidized imports carried out intermittently in relatively short periods, that there have been previous cases of dumping causing injury, and that the importer was aware or should have been aware that the exporter was practising dumping and that such practice would cause injury, definitive duties may be assessed on products which were put on sale within 90 days prior to the date of imposition of provisional measures. In no case, however, may definitive duties be imposed prior to the date of publication of the resolution initiating the investigation in cases of dumping, or prior to the date of the invitation to hold consultations referred to in Article 10 of this Decree.
21.5 Definitive duties may also be imposed on products which were put on sale within 90 days prior to the date of imposition of provisional measures in cases of failure to comply with the undertakings referred to in Article 17 of this Decree.
Article 22 - Duration of the measures
22.1 Anti-dumping and countervailing duties shall apply as long as and to the extent necessary to counteract the dumping or subsidy which is causing injury. However, any duty shall be terminated on a date not later than five years from its imposition unless it is determined, in the review referred to in Article 23 of this Decree, that the expiry of the duty would be likely to lead to continuation or recurrence of the injury and of dumping or subsidization.
Article 23 - Review procedure
23.1 Provided that a period of at least one year has elapsed since the imposition of the definitive duty, the Ministry of Industry and Trade shall, upon request by an interested party or on its own initiative, and assuming there is sufficient evidence that the elimination of the measures would be likely to lead to continuation or recurrence of injury and of dumping and subsidization, initiate a review procedure to examine the need for the continued imposition of the duty.
23.2 As a result of the review under this Article, it shall be determined whether or not the duty is still warranted. The Ministry of Industry and Trade may decide to maintain, eliminate or modify the duty according to the results of the review. If it is determined that the duty is no longer warranted, it shall be terminated immediately.
23.3 For procedural purposes, the procedure referred to in this Article shall be governed by the provisions of this Decree.
Article 24 - Review of definitive duties
24.1 Without prejudice to the provisions of Article 22, an importer may request, within a period of up to six months following the date of payment of the duty, a refund of any anti-dumping duty paid in excess of the actual margin of dumping provided such importer provides sufficient evidence that the margin of dumping on which the duty payments were based was eliminated or reduced to a level below that of the duty in force.
24.2 The Ministry of Industry and Trade and the Ministry of Finance shall determine whether or not a refund should be made and may initiate a review of the case in order to check the information and the facts claimed by the importer. A refund of the duty paid in excess, where appropriate, shall normally take place within 12 months, and in no case more than 18 months, after the date on which the importer submitted the request. The payment of any refund shall normally be made within 90 days following the issuing by the Ministry of Industry and Trade and the Ministry of Finance of the joint ministerial resolution referred to in this Article.
Article 25 - Judicial review
25.1 The resolutions referred to in Articles 18 and 23 may be appealed through the administrative courts in conformity with the time-limits and procedures laid down in the laws governing the system of administrative challenge.
Article 27 - Duration of the procedure
27.1 The investigations referred to in this Decree shall be concluded not later than 12 months from the date of the resolution ordering the initiation of the investigation. In exceptional cases when there is evidence to warrant such a step, the said period may be extended up to 18 months.
27.2 An investigation may be concluded at any time if, inter alia, the margin of dumping or amount of the subsidy is de minimis or the volume of imports is negligible in accordance with Articles 4.10, 5.4 and 6.3 of this Decree.
Article 28 - Notifications to the WTO
28.1 The Ministry of Industry and Trade shall notify the Ministry of Foreign Relations of resolutions containing preliminary and final determinations so that the Ministry of Foreign Relations can, in its turn, notify the appropriate bodies of the World Trade Organization (WTO).
Article 29 - Investigation of imports originating in non-member countries of the WTO
29.1 In the case of investigations concerning imports originating in non-member countries of the WTO with which Paraguay has not entered into any international commitments in this sphere, anti-dumping or countervailing duties may be applied simply upon proof of the existence of dumping or subsidization. In such cases, the imposition of provisional measures may be ordered as soon as the resolution ordering the initiation of the investigation is issued.
Article 30 - Supplementary application
30.1 This Regulation shall apply without prejudice to the provisions of the relevant multilateral and bilateral treaties or agreements to which Paraguay is a party, in particular the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 and the Agreement on Subsidies and Countervailing Measures contained in the Final Act Embodying the Results of the Uruguay Round.
Article 31 - Transitional provisions
The provisions of this Decree shall apply without prejudice to the provisions of Agreement and Agriculture contained in the Final Act Embodying the Results of the Uruguay Round regarding the application of countervailing duties to agricultural products in respect of which member countries of the WTO have undertaken domestic support commitments, and to the provisions concerning non_actionable subsidies in Articles 8 and 9 of the Agreement on Subsidies and Countervailing Measures of the Uruguay Round.
This Document shall be signed by the Minister of Industry and Trade, the Minister of Finance, the Minister of Agriculture and Livestock and the Minister of Foreign Relations.
The Decree shall be proclaimed, published, transmitted to the Official Registry and filed.
Juan Carlos Wasmosy
Rubén Melgarejo Lanzoni