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VENEZUELA
Regulations Under the Law on Unfair Foreign Trade Practices


Decree No. 2.883                                                                                                 5 April 1993

CARLOS ANDRES PEREZ
PRESIDENT OF THE REPUBLIC

By virtue of the power granted to him in paragraph 10 of Article 190 of the Constitution, in the Council of Ministers

DECREES:

The following:

REGULATIONS UNDER THE LAW ON UNFAIR
FOREIGN TRADE PRACTICES


TITLE I
DUMPING


CHAPTER I
LIKE GOODS

ARTICLE 1: The provisions of this Chapter shall apply both to cases of dumping and to cases in which the Law or these Regulations refer to like goods.

ARTICLE 2: For the purposes of comparing like goods, the greatest possible number of elements shall be taken into account, for example, their nature, physical characteristics, components, technical specifications, origin, source, utilization, function, market behaviour, quality, trademark and reputation, this last being understood in the context of the advertising used and their degree of acceptance by the relevant category of consumers.

ARTICLE 3: In calculating the normal value and other determinations, identical goods shall be taken as like goods, or, if this is not possible, goods which closely resemble the good allegedly dumped or subsidized, or, in their absence, substitute goods.

ARTICLE 4: In conformity with the previous Article, like goods shall mean:

1. Identical goods, i.e. which are alike in all respects;

2. Goods which closely resemble the good allegedly dumped or subsidized when the goods are not only used for very similar purposes but their other characteristics are equally similar;

3. Goods which are substitutes for the good allegedly dumped or subsidized when their use or function leads to results identical to those of the dumped or subsidized good.

For the purposes of making the corresponding comparisons, the procedure shall be that outlined in Article 2 of these Regulations. The Commission shall investigate the end use of the dumped or subsidized good, at the industrial, commercial or final consumption levels and shall determine its specific utilization.

ARTICLE 5: The application of the comparison criteria shall not mean that goods imported in the form of inputs or components of finished goods may not be considered as like goods when there are sufficient grounds for considering the importation in the component form is economically senseless and that its fundamental purpose is to avoid the treatment given to the finished product. In such cases, it shall be determined that the good in the form of inputs or components and the finished good are like goods.

ARTICLE 6: The Commission shall consider that goods allegedly dumped or subsidized are like goods when, if it were not for differences in the trademark, they would be deemed to be alike to goods sold in the country of export or of origin, in any of the following cases:

1. Imported goods with a trademark that so resembles the trademark of a good sold in the country of export or of origin that it is liable to mislead consumers;

2. Goods without a trademark, where there is evidence that they are being imported for the purpose of distribution or resale in Venezuela with the same trademark as, or a trademark similar to, that of the good sold in the country of export or of origin;

3. Where there is evidence that the purpose of the difference in the trademark is to prevent determination of the normal value by taking into consideration the goods sold in the country of export or of origin.

CHAPTER II
NORMAL VALUE

ARTICLE 7: The determination of the normal value referred to in Article 5 of the Law shall be subject to the procedures and rules laid down in these Regulations.

ARTICLE 8: For the purposes of determining the normal value, the ordinary course of trade shall mean sales of like goods usually effected by the exporter or producer of the good allegedly dumped to buyers in the country of export or of origin which meet the following requirements:

1. The buyer is not an associated person, within the meaning of paragraph 16 of Article 2 of the Law and, to the extent that the Commission considers it relevant, the buyer is at a commercial level equivalent to that of the importer of the allegedly dumped or subsidized good within the corresponding line of trade.

Where the exporter or producer of the good allegedly dumped sells like goods to independent buyers in the country of export or of origin, through an associated person, the Commission may consider that sales to such buyers constitute sales made in the ordinary course of trade, provided that the other conditions mentioned in this Article obtain;

2. The individual volumes of sales to buyers in the country of export or of origin correspond to the volumes of sales of the good allegedly dumped;

3. The exporter or producers of like goods sell in the country of export or of origin a volume equivalent to at least 20 per cent of the total volume of global sales, including those to Venezuela.

Nevertheless, in cases where, due to the characteristics of the market or of the good, it is shown that a lower volume of sales permits an adequate comparison, the Commission may accept a lower percentage;

4. The sales to buyers in the country of export or of origin are made under sufficient conditions of free competition on the market of export or of origin. The fixing of prices by the State, the existence of practices which prevent or restrict the exercise of free competition and transactions between related persons through associations, agreements or compensatory arrangements, even when such persons cannot be deemed to be associated persons, shall be considered as conflicting with such conditions.

5. The sales were made within a period not exceeding two months immediately prior to or following the allegedly dumped sales.

In exceptional cases, where the nature of the good sold or of the trade cycles affecting it means that such a time-limit is impractical, inappropriate or contrary to international trade usage, the Commission may take into account sales over a longer period; it must then justify doing so in its decision on the application.

ARTICLE 9: For the purposes of calculating the normal value, the comparable price referred to in paragraph 14 of Article 2 of the Law shall be net after deduction of the discounts, refunds and other reductions granted to the buyer, provided that the exporter or producer requests the corresponding adjustment and proves to the Commission's satisfaction that such discounts have actually been made.

ARTICLE 10: The Commission shall calculate the normal value using the comparable price actually paid or payable, in the ordinary course of trade, for the good allegedly dumped which is intended for consumption in the country of export or of origin. When sales cannot be considered as being in the ordinary course of trade in accordance with the provisions of Article 8 of these Regulations, the Commission shall calculate the normal value according to the following sequence of priority:

1. By using the compared export value method;

2. Where the compared export value is not suitable, by using the computed value method.

3. Where the normal value cannot be determined using the methods mentioned in paragraphs 1 and 2 of this Article, the Commission may calculate it on the basis of sales in the country of origin by producers or sellers of like goods to buyers in the country of export or of origin, for which purpose it may use statistical information available in that country.

Where sales of like goods by the exporter or producer are at a real price below the production costs mentioned in paragraph 1 of Article 12 of these Regulations, the normal value shall be calculated according to the methods provided for in the said Article.

In the case of imports originating in or coming from countries with centrally-planned economies, the Commission shall calculate the normal value according to the methods provided for in paragraphs 1 and 2 of this Article, on the basis of sales by producers or sellers of like goods in a third country with a market economy and a similar level of development to that of the former. If the aforementioned methods are not sufficient, the Commission may adjust the price actually paid or payable in Venezuela to include a reasonable margin of profit.

ARTICLE 11: The compared export value is the price of sales by the exporter of the allegedly dumped good to buyers in a country other than Venezuela or the country of export or of origin. In such cases, the Commission may take into account the highest price, provided that it is representative, and shall ensure that the conditions laid down in Article 8 of these Regulations are fulfilled with reference to the country of export selected.

ARTICLE 12: The computed value is the total of the following elements related to the allegedly dumped good or a like good:

1. Production costs, meaning the total of fixed and variable costs for the inputs utilized and the manufacturing process, in the ordinary course of trade in the country of origin, with a reasonable margin for selling, administrative and other general costs;

2. A reasonable margin of profit, calculated in relation to the respective costs and earnings of the producer or exporter, for sales for profit to persons other than associated persons in the country of origin or of export.

If the Commission considers that this information is not reliable or is insufficient, it shall use the production costs and the related profit of other producers or exporters in the country of origin or of export for sales for profit of a like good. If such information is still not sufficient, the value may be calculated on the basis of sales of other goods by the exporter or other manufacturers within the same economic sector in the country of origin or of export, or on any other reasonable basis determined by the Commission.

ARTICLE 13: In the case of sales of like goods by the exporter of the allegedly dumped good to buyers in the country of export or of origin where it is shown that the real selling price is below production costs as specified in paragraph 1 of Article 12 of these Regulations, the Commission may consider that such sales have not been made in the ordinary course of trade and calculate the normal value using the method it deems most appropriate among the following:

1. Other sales to buyers in the country of export or of origin which have been made at prices that are not lower than production costs;

2. The compared export value in accordance with Article 11 of these Regulations;

3. The computed value in accordance with Article 12 of these Regulations;

4. Adjustment of the price below production costs so as to eliminate losses and provide for a reasonable margin of profit.

ARTICLE 14: For the purposes of the previous Article, sales in which the price is lower than production costs shall have been made over a period of not less than six months nor more than 18 months in quantities exceeding 80 per cent of total sales and at prices which do not allow recovery of all costs within a reasonable period. This last circumstance shall be established when below-cost prices at the time of sale are higher than the weighted average costs during the period of the investigation.

CHAPTER III
EXPORT PRICE

ARTICLE 15: For the purposes of Article 6 of the Law, the export price means the price actually paid or payable for the good allegedly dumped, in cash or in kind, actually transferred or transferable against the sale, exchange or any other form of transfer for value of the said good.

The Commission shall calculate the export price on the following basis, as appropriate:

1. Direct export price;

2. Indirect export price;

3. Export price for subsequent processing.

ARTICLE 16: The discounts, refunds and other reductions to be taken into account in calculating the net value constituting the export price referred to in Article 6 of the Law shall be directly related to the sales transactions concerned and shall only be taken into account if the interested party requests the corresponding adjustment and provides justification therefor to the Commission.

ARTICLE 17: In the case of the direct export price, the following deductions shall be made:

1. Any tax paid in Venezuela or abroad resulting from the export or import of the allegedly dumped good;

2. The costs of preparing, packing or packaging the allegedly dumped goods for dispatch, provided that they are distinct from the costs related to sales to buyers in the country of export or of origin;

3. Costs related to the export and transport to Venezuela of the allegedly dumped goods and entry costs. These shall include freight, maintenance, insurance, loading and unloading, handling and other related costs incurred for the transport of the good from the exporter's warehouse until it is delivered to the buyer in Venezuela.

For the deductions referred to in this Article to be applicable, the costs mentioned in the previous paragraphs must be included in the direct export price.

ARTICLE 18: The Commission shall determine the export price of the allegedly dumped good using the indirect export price mentioned in Article 19 of these Regulations when there is no direct export price or, if one exists, it cannot be used because it concerns a transaction between associated persons or persons who may be related through associations, agreements or compensatory arrangements concerning the price, sale, profits or costs for the allegedly dumped good.

ARTICLE 19: The indirect export price is the price calculated on the basis of that at which the importer sells the allegedly dumped good, in the condition as imported and in representative quantities, to the first independent buyer in Venezuela. Independent buyer means a person who is not deemed to be associated or related to the importer, exporter or producer, through associations, agreements or compensatory arrangements concerning the price, sale, profits or costs for the allegedly dumped good.

ARTICLE 20: For the purpose of calculating the indirect export price, the following costs shall be deducted from the price at which the importer sells the allegedly dumped good to the first independent buyer in Venezuela:

1. The costs listed in paragraphs 1, 2 and 3 of Article 17 of these Regulations;

2. The direct and indirect selling costs incurred by the importer after the good has been imported and before it is sold to an independent buyer. In determining these costs, the Commission shall be guided by the provisions of Article 33 of these Regulations;

3. The general and administrative costs incurred by the importer after the good has been imported and before it is sold to an independent buyer;

4. A reasonable margin for profit on the sale by the importer, calculated in relation to sales for profit by producers and sellers of like goods or, in their absence, goods of the same economic sector.

For the deductions referred to in this Article to be applicable, the costs mentioned in the previous paragraphs must be included in the selling price to the first independent buyer in Venezuela.

ARTICLE 21: When the export price cannot be determined using the indirect export price provided for in Article 19 of these Regulations, the Commission shall calculate the price in accordance with the following guidelines:

1. Where the allegedly dumped good has been processed after its importation and before its sale to the first independent buyer in Venezuela, the Commission shall determine the export price using the EXPORT PRICE FOR SUBSEQUENT PROCESSING, provided for in Article 22 of these Regulations. The allegedly dumped good is considered as having been processed when it has been subject to or incorporated in assembly, packaging or manufacturing processes in Venezuela.

2. In cases where it is not possible to proceed in accordance with the provisions of the preceding paragraph, the Commission shall determine the export price on the basis of other criteria and shall clearly specify these criteria in the relevant decision.

ARTICLE 22: EXPORT PRICE FOR SUBSEQUENT PROCESSING means the price paid for the finished product by the first independent buyer in Venezuela in accordance with the provisions of paragraph 1 of the previous Article, after deduction of the following items:

1. The amounts referred to in paragraphs 1, 2 and 3 of Article 17 of these Regulations, relating to the good processed;

2. Costs and expenses directly related to the assembly, packaging or manufacturing processes;

3. Any direct or indirect selling costs in addition to those referred to in the previous paragraphs incurred by the importer after the good has been imported and before it is sold to an independent buyer. In determining these costs, the Commission shall be guided by the provisions of Article 33 of these Regulations;

4. The general and administrative costs in addition to those mentioned in the preceding paragraphs incurred by the importer after the good has been imported and before it is sold to an independent buyer in Venezuela;

5. A reasonable margin of profit on the sale by the importer, calculated in relation to sales for profit by producers and sellers of like goods or, in their absence, of goods of the same economic sector.

For the deductions referred to in this Article to be applicable, the costs mentioned in the previous paragraphs must be included in the selling price to the first independent buyer in Venezuela.

CHAPTER IV
ADJUSTMENTS RESULTING FROM PRICE COMPARISON


SECTION ONE
GENERAL PROVISIONS

ARTICLE 23: The adjustments provided for in this Section shall apply, as appropriate in each case, to the normal value or the export price calculated in conformity with the provisions of the previous Chapters.

ARTICLE 24: For the purposes of the price comparison referred to in Article 7 of the Law, the first step shall be to identify the level of trade at which the sale used to determine the export price occurs, normally but not necessarily at the ex-factory level. Secondly, it shall be determined whether there are appropriate sales to calculate the normal value at a level of trade equivalent to the level used as a basis for the calculation of the export price, in accordance with the rules laid down in Chapter 2 of this Title. Thirdly, if there are no appropriate sales to calculate the normal value at the same level of trade, it shall be calculated on the basis of sales at the level of trade deemed to be most appropriate.

ARTICLE 25: When, in accordance with the provisions of the previous Article, the normal value is calculated on the basis of sales at a level of trade distinct from the level of the sales used to calculate the export price, the level which is the nearest and most closely resembles that of the export sales, taking into account the volume of sales, the type of buyer, the use made of the goods sold or the services supplied by the seller, shall be identified.

SECTION TWO
ADJUSTMENTS FOR DIFFERENCES IN PHYSICAL CHARACTERISTICS

ARTICLE 26: For the purposes of the adjustment provided for in Article 7 of the Law relative to differences in the physical characteristics of the good allegedly dumped and those of the like good used to determine the normal value, the criteria referred to in Article 2 of these Regulations shall be followed. When the comparison has been made, the normal value of the like good shall be adjusted in accordance with the specific value attributed to each of the differences, on the basis of market information obtained in the relevant place of sale.

Where no market information is available and provided that the differences relate strictly to the physical characteristics, the Commission may calculate the amount of the adjustment according to the share of the costs, expenses and profit margin which could reasonably be attributed to each of the differences identified.

ARTICLE 27: In cases where the adjustment for differences referred to in this Section exceeds 20 per cent of the export price, it shall be considered that the good which is the subject of the calculation of the normal value cannot be deemed to be a like good in accordance with the definition given in paragraph 11 of Article 2 of the Law and the provisions of these Regulations.

SECTION THREE
ADJUSTMENTS FOR DIFFERENCES IN DUTY

ARTICLE 28: For the purposes of the adjustment provided for in Article 7 of the Law, the Commission shall deduct from the normal value any tax, countervailing or anti-dumping duty imposed on the like good or on materials incorporated therein if they have been imported into the country of the sale which has resulted in the determination of the normal value, as well as any tax levied on the production or marketing of the like good in that country, whether or not imported. There shall be no adjustment in cases where the taxes, countervailing or anti-dumping duties have not actually been collected.

ARTICLE 29: The Commission shall deduct from the export price any tax, countervailing duty or anti-dumping duty imposed on the allegedly dumped good or on materials incorporated therein prior to their export to Venezuela, provided that such export has not led to the refund of the taxes, countervailing duties or anti-dumping duties imposed on the said good.

SECTION FOUR
ADJUSTMENTS TO SELLING COSTS FOR DIFFERENT LEVELS OF TRADE

ARTICLE 30: When the Commission has to calculate the normal value on the basis of sales at a level of trade different to that of the sales used to calculate the export price, the normal value shall be adjusted for the direct selling costs specifically related to the level used for its calculation. Such a relation shall be considered to exist when it is proved to the Commission that the costs incurred would be different if the sales used to calculate the normal value were at the same level of trade as the sales used to calculate the export price.

SECTION FIVE
ADJUSTMENTS TO SELLING COSTS FOR DIFFERENT QUANTITIES

ARTICLE 31: For costs related to sales of different quantities, the Commission shall determine whether, in the market where the sales used as a basis to calculate the normal value were made, there is a commercial policy or usage of discounts, deductions, rebates or refunds, based on the quantities of like goods sold. If this is the case, it shall be determined whether the quantities and sales used to calculate the export price meet the same conditions and an amount equivalent to the discount, deduction, rebate or refund in question shall be deducted from the normal value.

ARTICLE 32: For the deduction referred to in the previous Article to be applicable, the commercial policies or usage concerned must be evidenced by discounts, deductions, rebates or refunds freely granted on the market used as a reference for the calculation of the normal value and in the ordinary course of trade over a representative period of not less than six months prior to the sale of the allegedly dumped good or different periods in the case of cyclical or periodic discounts. Such discounts, deductions, rebates or refunds must also represent at least 20 per cent of the total volume of sales of like goods in this market and be generally and uniformly applied at the time of the sale that is allegedly the subject of dumping.

SECTION SIX
ADJUSTMENTS TO SELLING COSTS FOR DIFFERENT CONDITIONS

ARTICLE 33: For costs related to sales under different conditions, the Commission shall distinguish between direct and indirect costs. Direct costs means the variable costs and costs specifically related to the sales in question, for example, financing of sales, commissions, advertising specifically aimed at promoting the goods that are the subject of such sales, guarantees and technical services. Indirect costs means the fixed costs incurred by the seller independently of the sales made, but related to them, for example, provision for bad debt, general promotion costs, remuneration of sales staff, etc.

General and administrative costs shall not be considered indirect costs.

ARTICLE 34: The Commission may adjust the normal value by the differences which, as a result of different terms of trade, occur between the direct costs in the sales used as a basis to calculate the normal value and the direct costs used as a basis to calculate the export price.

ARTICLE 35: For sales financing costs, the Commission shall determine the amount of the adjustment in accordance with procedures which reasonably reflect the cost of money corresponding to the price during the period between the dispatch of the goods by the seller and their payment by the buyer, calculated according to the currency of payment.

ARTICLE 36: For guarantee costs, the Commission shall determine the amount of the adjustment according to the costs borne by the seller in order to honour the guarantees on the goods sold and in conformity with their terms. For the purposes of this adjustment, the guarantees must have been given in writing at the time of sale or correspond to the practices required by law in the place of sale or by trade custom, use or generally accepted practices in the market in question.

ARTICLE 37: For technical service costs, the Commission shall determine the amount of the adjustment according to the costs borne by the seller for the provision of assistance, provided that this is in fulfilment of contractual obligations in writing and is included in the price paid at the time of sale.

ARTICLE 38: For indirect costs, the Commission may only adjust the normal value by the difference between the costs of the sales to calculate the export price and the costs used to calculate the normal price in the following cases:

1. Where the price comparison involves the indirect export price referred to in paragraph 2 of Article 20 of these Regulations;

2. Where the price comparison involves the export price for subsequent processing referred to in paragraph 3 of Article 22 of these Regulations;

3. In the other special cases referred to in paragraph 2 of Article 21 of these Regulations when the Commission takes into account indirect selling costs in order to determine the export price.The deduction made for indirect costs from the normal value may not under any circumstances exceed the amount of the deduction of indirect costs when calculating the export price in conformity with the preceding paragraphs.

TITLE II
SUBSIDIES

ARTICLE 39: For the purposes of determining the subsidies referred to in paragraph 13 of Article 2 of the Law, it shall be considered that a government or public or mixed body confers an advantage on certain enterprises or industries in any of the following cases:

1. Where the legislation establishing the subsidy expressly restricts the specific advantages to certain enterprises, groups of enterprises or industries, legislation meaning a regulation with general scope issued by the competent authority, independently of the government sector involved;

2. Where the legislation establishing the subsidy imposes general conditions that must be fulfilled which, even if they do not distinguish between enterprises or industries, have the practical effect of discriminating among types of enterprises, groups of enterprises or industries, as a result of the production structure in the country whose authorities grant the subsidy;

3. Where, despite the general nature of the legislation establishing the subsidy, the authority responsible for applying it has developed practices which manifestly confer advantages on specific enterprises, groups of enterprises or industries rather than others which would also be entitled to the subsidy.

ARTICLE 40: In addition to the practices mentioned in Article 9 of the Law, related to exports, the following internal practices, inter alia, shall be considered to be subsidies:

1. Grants, allocations and other liberalities granted to exporters or producers of the subsidized good, including the cancellation or reduction of debt owed to public or mixed bodies, whether as the original or the secondary creditors;

2. The purchase of shares or other forms of capital investment by public or mixed bodies on terms that are less favourable to them than those prevailing in the market. In the case of subscription to shares in companies listed on the stock exchange, the market value shall be the average price in trading on the stock exchange on the day of purchase by the public or mixed body. In the case of shares or capital participation in companies not listed on the stock exchange, the market value shall be the value in the company's books, but if the Commission considers the book value to be inappropriate and has sufficient and reliable information, it may use valuations calculated by specialized companies or valuation methods based on the company's capacity to generate cash flows;

3. Any other form of internal subsidy, that is to say not related to exports, determined by the Commission in conformity with paragraph 13 of Article 2 of the Law.

ARTICLE 41: For the purposes of determining the amount of the subsidy in accordance with Article 10 of the Law, the Commission shall examine its nature and calculate its impact on the price of the subsidized good.

ARTICLE 42: The Commission shall distinguish between subsidies which relate specifically to export of the good concerned by the application and subsidies which depend on the export activity of the beneficiary company. In the latter case, it shall be calculated according to the proportion corresponding to the production of the subsidized good in relation to the production of other goods exported by the company benefiting from the subsidy. In the case of internal subsidies, that is to say subsidies not related to export activities, their impact shall be calculated on the basis of all the goods produced by the beneficiary company, independently of whether or not such goods are exported.

ARTICLE 43: In the case of recurrent subsidies, namely subsidies received whenever particular conditions recur over a period of time, their amount shall be calculated by dividing the benefit received among the total sales by the exporter or producer over the period during which the subsidy was received. If the period is two years or more, the provisions of Article 45 of these Regulations shall apply.

ARTICLE 44: For the purpose of calculating the amount of the subsidy in cases where it arises out of credits granted at lower rates or on more favourable terms than those which the beneficiaries could obtain on the corresponding markets, a distinction shall be drawn between short-term and medium-term or long-term credits. The amount of short-term credit shall be determined in conformity with the procedure laid down in the previous Article for recurrent subsidies to the extent that it is applicable. Medium-term or long-term credits shall be calculated as far as possible according to the procedure laid down in the following Article for non-recurrent subsidies.

SINGLE PARAGRAPH: Short-term credits means those for which the term for repayment of the capital is less than two years. Credits whose term is two years or more shall be considered medium-term or long-term credits. Credits with a term of less than two years may be considered medium-term or long-term credits if it can be satisfactorily proved that the creditor follows a constant and uncontested practice of automatically renewing or extending the term for the repayment of capital by additional periods which, taken together with the initial period, amount to two years or more.

ARTICLE 45: In the case of non-recurrent subsidies, the number of years over which their benefits have to be spread shall be calculated. For this purpose, a period of ten years shall be utilized as a benchmark, except in cases where it is demonstrated that the benefit consists in the use of a particular asset, when a shorter period may be used, based on the period of amortization or depreciation of the asset in conformity with generally accepted accounting principles in the country in which the subsidy is conferred.

When the period of application has been determined, the value of the benefit shall be discounted at a rate which reasonably reflects the capital costs for the exporter or producer at the time of receiving the benefit. For the purposes of determining the discount rate, the most appropriate financial methodology taking into account the information available shall be used.

TITLE III
INJURY

ARTICLE 46: For the purposes of the determination referred to in Article 11 of the Law, it must be demonstrated to the Commission's satisfaction that there is a causal relationship between the import of dumped or subsidized goods and any of the following:

1. The existence of material injury to the domestic industry producing like goods. Material injury means any significant and substantial damage to the domestic industry;

2. The threat of material injury to the domestic industry producing like goods, in accordance with Article 51 of these Regulations;

3. Appreciable material retardation of the start-up of the domestic industry producing like goods, in accordance with Article 52 of these Regulations.

ARTICLE 47: For the purposes of Article 14 of the Law, the major proportion of domestic industry shall mean those producers representing at least 30 per cent of domestic industry. Exceptionally, if the special circumstances of the production structure in question so require, the Commission may use as a benchmark a higher percentage, which may not under any circumstances exceed 40 per cent, or a lower percentage, which may not be less than 20 per cent.

ARTICLE 48: For the purposes of determining injury or threat of injury, the following producers shall not be included among domestic producers constituting domestic industry:

1. Producers associated with exporters;

2. Producers who themselves import the dumped or subsidized good;

3. Producers whose industrial activity does not result in the actual processing of the inputs constituting the like good. In excluding such producers, the Commission shall take into account the origin and characteristics of the inputs used in the like good, as well as the value added by the production process.

SINGLE PARAGRAPH: In cases where it is determined that the domestic industry is insignificant in relation to the Venezuelan market for like goods, it may be concluded, as an exception, that there is no injury or threat of injury to domestic industry. The domestic industry shall be considered insignificant when, after having excluded the producers mentioned in this Article, it does not represent more than 5 per cent of the consumption of like goods in the country, except where, in cases of a lower percentage, it is demonstrated to the Commission's satisfaction that the domestic industry has experienced significant and sustained growth over a period which allows it to be reasonably inferred that there will be a similar growth trend in the future.

ARTICLE 49: Where the interested party claims that in the country of export or of origin proof of injury is not required, he must submit proof of this claim together with his application; without detriment to the Commission's power to decide whether or not there is injury or threat of injury or material retardation of the start-up of the domestic industry, in conformity with the single paragraph of Article 11 of the Law.

ARTICLE 50: It shall be determined that there is material injury to the domestic industry producing like goods when at least two of the following conditions are met:

1. The volume of dumped or subsidized imports is significant and has increased in absolute terms or relative to the domestic production of like goods. The volume of imports of dumped or subsidized goods shall be considered significant when it represents at least five per cent (5%) of the domestic production of like goods. The Commission may base its decisions on different percentages when, in its view, the circumstances of the case so require;

2. Imports of dumped or subsidized goods are sold at prices considerably lower than those for like goods produced in the country, or have the effect of depressing prices or preventing increases which, if such goods had not been imported, would have occurred in a natural and competitive manner;

3. Imports of dumped or subsidized goods have an adverse impact on producers of domestic like goods, taking into account their relative position under the following headings: units produced; sales; market share; profits; return on investment; utilization of installed capacity; cash flow; inventories; growth, prices of domestic inputs, investment plans; ability to obtain credit, as well as any other relevant element. The Commission may determine which of the aforementioned headings apply to an investigation.

Fulfilment of the requirements laid down in this Article are to be understood within the concept of the domestic industry.

ARTICLE 51: The Commission shall determine that there is a threat of material injury to the domestic industry producing like goods when it considers that the threat is real and certain and that the injury is imminent. In doing so, it shall take into account the following factors:

1. The nature of the subsidy in the case of imports of subsidized goods. The Commission shall take into account direct subsidies and subsidies related to exports, especially those which exceed five per cent (5%) ad valorem;

2. Increases in production capacity, or idle capacity, in the country of origin, provided that there are sufficient indications that such increases may result in an increase of exports to Venezuela;

3. Accelerated increases in the share of the domestic market of dumped or subsidized goods which have not yet resulted in injury, in accordance with Article 50 of these Regulations;

4. Over-production or the build-up of inventories in the country of origin of the dumped or subsidized goods, with the likelihood that they will be exported to Venezuela;

5. The building up of inventories of dumped or subsidized goods in Venezuela, even if they have not yet been sold there;

6. The ability of the producer abroad to replace the production of goods subject to anti-dumping or countervailing duties in Venezuela by the production of dumped or subsidized goods not subject to anti-dumping or countervailing duties;

7. Any trend in sales and exports of dumped or subsidized goods which point to an increase in the export of such goods to Venezuela;

8. Other circumstances which the Commission sees fit to consider.

ARTICLE 52: A determination of appreciable material retardation in the start-up of the domestic industry producing like goods shall be based on evaluation of the potential of the domestic industry at the time when import of the dumped or subsidized goods commences or is imminent, in order to establish whether or not such imports had an adverse effect on the probable development of this potential. For this purpose, the following factors concerning the domestic industry shall be taken into account:

1. Projected performance compared with actual performance;

2. Utilization of production capacity;

3. The situation of orders and deliveries;

4. The financial situation;

5. Other circumstances which the Commission sees fit to consider.

TITLE IV
ANTI-DUMPING AND COUNTERVAILING DUTIES

ARTICLE 53: The provisional anti-dumping or countervailing duties referred to in Article 19 of the Law shall be imposed when the need to prevent injury to the domestic industry during the period of the investigation has been determined. For this purpose, there shall be a preliminary verification of fulfilment of the conditions referred to in Articles 50, 51 and 52 of these Regulations, as appropriate.

ARTICLE 54: Provisional or definitive anti-dumping or countervailing duties shall also be imposed on goods imported in the form of inputs or components of finished goods referred to in Article 5 of these Regulations when the Commission determines that the purpose of importing them in this form is to avoid such duties.

ARTICLE 55: Anti-dumping or countervailing duties shall be applied independently of customs duties and other levies on the import of goods into Venezuela and shall be payable by the person liable for paying the customs charges.

For the additional duties referred to in Article 22 of the Law to be applicable, there shall not have been any increase in the selling price to the first independent buyer to compensate for the duties paid by the exporter, without prejudice to the absence of an increase in the said price constituting the indication referred to in the single paragraph of the said Article.

TITLE V
UNDERTAKINGS

ARTICLE 56: In conformity with Article 24 of the Law, the Commission shall evaluate any undertaking submitted to it and shall decide on its acceptance and approval within a period not exceeding thirty (30) working days from the date of submission of the corresponding application. In order to facilitate the evaluation to be made, the Commission may take part in the negotiations on the undertaking.

ARTICLE 57: An undertaking may be rejected in the following cases:

1. Where the domestic producers party to the undertaking do not represent fifty per cent (50%) of domestic production. When the percentage is not very representative of domestic producers as a whole, it may also be required that the domestic producers should represent a proportion equivalent to eighty per cent (80%) of those involved in domestic production, in conformity with Article 14 of the Law;

2. Where the Commission considers that the undertaking is impractical or impossible to apply effectively, for example, if the number of actual or potential exporters is too high;

3. Where it is determined that the undertaking goes beyond the objective of offsetting the dumping or subsidy related to the imports under investigation;

4. In any other case in which the Commission so decides, according to the circumstances.

ARTICLE 58: In all cases where the undertaking submitted to the Commission involves modification of the prices of the dumped or subsidized products or a reduction in exports of such goods to Venezuela, the views of the Department for the Promotion and Protection of Free Competition may be sought.

ARTICLE 59: Undertakings which restrict or eliminate subsidies shall not be accepted without prior consultation and evidence that the competent authorities in the country granting the subsidy are aware of and have approved the undertaking. Wherever possible, the evidence shall include a declaration by the aforesaid authorities undertaking not to grant the subsidy or to restrict it to the extent agreed.

ARTICLE 60: Undertakings which have been accepted and approved by the Commission may be amended following an application by an interested party or when the Commission considers necessary, at the intervals specified in the decision approving the undertaking, which may not be less than one (1) year. Nevertheless, acceptance and approval may be cancelled by the Commission before one year has expired when it considers that the causes which gave rise to the undertaking have ceased to exist or when it notes that the undertaking is not being applied.

TITLE VI
PROCEDURE

CHAPTER I
GENERAL PROVISIONS

SECTION ONE
ADMISSIBILITY OF THE APPLICATION

ARTICLE 61: In order to meet the requirement laid down in paragraph 2 of Article 39 of the Law, the application for the opening up of an investigation shall contain a full description of the good allegedly dumped or subsidized. The description shall show the name and any additional identifying data, as well as information on the following elements by marketing unit: size, volume and weight; inputs or components; use or end use; quality; technical specifications, if any; and tariff classification.

ARTICLE 62: In order to meet the requirement laid down in paragraph 3 of Article 39 of the Law, the application for the opening up of an investigation shall contain a full description of the like good produced in Venezuela, including all the information required for the allegedly dumped or subsidized good in accordance with the previous Article, with particular emphasis on the following:

1. Description and source of the components and inputs incorporated in the like good;

2. Description of the production process for the like good, with an indication of any known aspects of the process that differ from those used by the producers of the allegedly dumped or subsidized good;

3. The application shall also indicate the market price of the good, its factory price and its production cost.

ARTICLE 63: In order to meet the requirement laid down in paragraph 4 of Article 39 of the Law, in the case of dumping, the application for the opening up of an investigation shall contain the following information:

1. With regard to the normal value, an indication of the selling price of like goods to buyers in the country of export or of origin. This indication shall be accompanied by quotations, price lists, commercial invoices or any other instrument which, in the opinion of the Technical Secretariat, confirms the price indicated by the applicant;

2. With regard to the export price, an indication of this price or, in its absence, of the f.o.b. (free on board) price of the allegedly dumped good, confirmed by quotations, commercial invoices, price lists or any other instrument which is acceptable in the view of the Technical Secretariat. Where it is not possible to obtain such information, the applicant may estimate the export price, deducting the necessary elements from the selling price in Venezuela of the allegedly dumped good, based on the concepts set out in Article 20 of these Regulations or in Articles 21 and 22 if applicable. In such cases, the price in Venezuela shall be authenticated by the means indicated.

Where the requirements provided for in Article 8 of these Regulations are not fulfilled, the application shall contain information on the compared export value, or in its absence, the computed value.

ARTICLE 64: In order to meet the requirement laid down in paragraph 4 of Article 39 of the Law, in the case of subsidies, the application for the opening of an investigation shall indicate the following: the type of subsidy; if it is among those mentioned in Article 9 of the Law; and the elements which determine that the exporter or the producer is entitled to the subsidy. For these purposes, the application shall include the legal or administrative instrument conferring the subsidy and showing its characteristics.

ARTICLE 65: In order to meet the requirement laid down in paragraph 4 of Article 39 of the Law, with regard to injury, the application for the opening of an investigation shall include evidence on:

1. Production of the applicant over the previous two (2) years and a projection for the current year as at the time when the application is made;

2. Decrease in the share of the domestic industry in the Venezuelan market affected by the goods allegedly dumped or subsidized;

3. Decrease in profits from sales by the applicant which compete with the goods allegedly dumped or subsidized;

4. Deterioration in the prices of the applicant's goods which compete with the goods allegedly dumped or subsidized;

5. Decrease in the volume of the applicant's sales which compete with the goods allegedly dumped or subsidized.

ARTICLE 66: The application for the opening of an investigation shall contain the information needed to identify and notify the importers and exporters concerned. The lack of this information shall be considered a defect in the application for the opening of an investigation, with the effects provided for in the single paragraph of Article 40 of the Law.

ARTICLE 67: In all cases where the applicant does not respect the time-limit of fifteen (15) working days fixed in the single paragraph of Article 40 of the Law for remedying any omissions or inadequacies noted by the Technical Secretariat, the application shall be considered inadmissible without it being necessary to issue any decision to that effect.

ARTICLE 68: A request for reconsideration and an appeal to a higher body, as provided for in the Basic Law on Administrative Procedure, may be made against a decision taken by the Technical Secretariat in accordance with the single paragraph of Article 40 of the Law.

SECTION TWO
INVESTIGATION PROCEDURE

ARTICLE 69: The Commission shall immediately notify the applicant and the importers of the decision to open an investigation. The announcement containing an extract from the decision shall be published in two (2) newspapers with broad national circulation at the expense of the applicant, who shall provide the Technical Secretariat with copies of the newspapers in which the announcement has been published. When this formality has been completed, the Technical Secretariat shall initiate the investigation.

ARTICLE 70: For the purposes of collecting the information referred to in Article 43 of the Law, the Technical Secretariat shall send questionnaires and forms to the interested parties, who shall furnish the information requested within the time-limit laid down in the aforesaid documents. Failure to meet this obligation shall give rise to the procedure laid down in Article 46 of the Law.

The questionnaires and forms referred to above may also be given to the public bodies mentioned in Article 34 of the Law, which shall collaborate with the Commission and the Technical Secretariat in providing information.

ARTICLE 71: At the request of a party, the Technical Secretariat may determine that the information provided is confidential, in accordance with Article 48 of the Law, placing it in a separate part of the file.

ARTICLE 72: Where the Technical Secretariat declares that there are no grounds for treating the information as confidential, it shall order that the information be included in the relevant file, after notifying the interested party so that he may withdraw the information if he sees fit to do so. An appeal to reconsider this decision may be made to the Technical Secretariat and an appeal to a higher body may be made to the Commission in accordance with the provisions of the Basic Law on Administrative Procedure.

ARTICLE 73: The time-limit for concluding the investigation shall be one (1) year from the date on which it was initiated in accordance with Article 69 of these Regulations.

ARTICLE 74: The Commission's decisions shall be published in the Official Gazette of the Republic of Venezuela and in the biannual bulletin of the Commission.

SECTION THREE
DEFINITIVE DUTIES

ARTICLE 75: The Commission's decision to impose anti-dumping or countervailing duties shall immediately be notified to the Sectoral General Directorate of Customs of the Ministry of Finance, together with the text of the decision. Copies of the decision shall also be sent to the Ministers for Finance and Development, and to the President of the Foreign Trade Institute.

ARTICLE 76: As soon as the notification referred to in the previous Article has been received, the Sectoral Director-General of Customs shall issue the necessary instructions for the collection of the anti-dumping or countervailing duties in conformity with Article 54 of the Law.

ARTICLE 77: The Ministry of Finance, through the Sectoral General Directorate of Customs, shall give the Commission each month a breakdown of the following information relating to the goods subject to the duties:

1. The amount collected on account of provisional and definitive anti-dumping or countervailing duties during the previous month;

2. A list of the securities lodged for the provisional duties that have been imposed.

The information referred to in this Article shall be specified according to the volume of imports, and the importer or consignee accepting the goods.

CHAPTER II
PROVISIONAL DUTIES

ARTICLE 78: An interested party may submit a request for the imposition of provisional anti-dumping or countervailing duties, at the same time as an application for the initiation of an investigation or at any time during the investigation.

ARTICLE 79: The Commission shall decide whether to impose provisional anti-dumping or countervailing duties within the time-limit laid down in Article 60 of the Basic Law on Administrative Procedure calculated from the date of the decision to open an investigation into dumping or subsidies, without prejudice to the subsequent imposition of provisional anti-dumping or countervailing duties when, in the course of the investigation, additional evidence justifying such duties is obtained.

ARTICLE 80: In the case of the agricultural products referred to in the single paragraph of Article 60 of the Law, the request for the imposition of provisional countervailing duties shall be made at the time of submitting the application for the opening of an investigation and shall include the information necessary to identify and notify the importers concerned, together with what the Technical Secretariat considers is sufficient evidence of the following:

1. That the subsidy is fully effective in the country of origin or of export;

2. That, in accordance with the legal facts of the case, the subsidy would be applicable to the exporter or producer of the good investigated;

3. That the corresponding official publications do not raise doubts concerning the form, amount and effects of the subsidy.

When the application has been received, the importers shall be notified of the imposition of provisional duties.

ARTICLE 81: The duration of provisional anti-dumping or countervailing duties shall not exceed four (4) months from the date of publication of the decision to impose such duties in the Official Gazette. Nevertheless, the Commission may extend the duration of the duties by additional periods which, as a whole, shall not exceed one (1) year from the date of initiation of the investigation provided that during the course of the investigation evidence is obtained to support the serious presumption which gave rise to the imposition of such duties.

ARTICLE 82: When the provisional anti-dumping or countervailing duties have been imposed, the procedure laid down in Articles 75 et seq of these Regulations shall be followed.

TITLE VIII
FINAL PROVISION

ARTICLE 83: These regulations shall apply from the date of their entry into force, and shall also apply to procedures already initiated.

Done at Caracas, on the fifth day of the month of April of the year one thousand nine hundred and ninety three. The 182nd year of independence and the 134th year of the Federation.

(Signed) CARLOS ANDRES PEREZ