EXTERIOR TRADE

DECADE N° 766/94

See the National Commission for Foreign Trade. Functions. Integration and Standards of Action. Investigations. Reports, opinions and activities. General and Transitory Provisions.

Bs. As., 12/5/94

VISTO the Customs Code (Act No. 22,415) and its regulations, Act No. 16,834, of accession by the ARGENTINA REPUBLIC to the General Agreement on Tariffs and Trade and No. 24,176, of adoption of the Agreement concerning the Application of Article VI and of the Agreement on the Interpretation and Application of Articles VI, XVI and XXIII of the General Agreement, Law No. 20,744,

CONSIDERING:

That the ARGENTINA REPUBLIC has in recent years implemented a policy of opening the economy consisting of the reduction of customs duties and the elimination of numerous non-tariff barriers, all in a context of freedom in pricing and wages.

Such a policy has been aimed at increasing competition in the Argentine domestic market and ensuring the supply of goods in conditions similar to those of the international market in terms of prices and quality.

That it is a function of the National Government to make all the necessary efforts to ensure that producers living in the country do not suffer material damage as a result of imports under unfair competition conditions, including those made at dumping prices and subsidized ones. That, also, there are often situations in which facts outside the country's trade policy and other than acts of unfair competition, can lead to a significant increase in domestic imports.

That the administration of trade policy instruments against unfair trade practices and safeguard measures should seek maximum efficiency and transparency to ensure that prices paid by consumers do not exceed those observed under normal competition conditions in the international market.

That analysis and investigations of unfair competition situations at the international level and the imposition of safeguard measures should be carried out in accordance with the recommendations of the general agreement on customs duties and trade (GATT), to which the ARGENTINA REPUBLIC has been a signatory since 1965 and in the terms of the agreements adopted by Act No. 24.176.

That Article 3 of the Act and Article 722 of the Customs Code authorize the enforcement authority to delegate to an agency of its competence the functions relating to the application of regulatory rules on international unfair competition, with the exception of the powers to issue resolutions establishing anti-dumping and countervailing duties, which are of the exclusive competence of the Minister of Economy and Public Works and Services.

It is appropriate to delegate the powers of the enforcement authorities in the field of investigation of material damage to national production and investigation into the dumping and subsidy margin in imports under unfair competition conditions, or on the significant increase in imports, in the assessment of safeguard measures.

That, to that end, it is appropriate to create a specialized agency under the characteristics of a National Commission, to deal with the analysis of material damage to national production by following, in this regard, the best international experience in the field, and to maintain in the area of EXTERIOR TRADE SUBSECRETARIA the investigations referred to in the margin of dumping and the grant rate.

As a specialized agency for harm analysis, it is appropriate for the NATIONAL COMMISSION ON EXTERIOR TRADE, which is established here, to take up the ongoing study of the effects of international competition on national production and the identification of situations that may be provided for in the current legislation or which are of interest to the economic authorities.

It is desirable that such an agency also be empowered to act as an adviser to the SECRETARIAN OF TRADE AND INVERSIONS under the MINISTERY OF ECONOMY and ARTWS and PUBLIC SERVICES, within its specialty, in those aspects of international trade law and foreign trade policy that are not directly related to the rules of GATT on unfair competition and relative safeguards, but that involve production

That the Commission should also act as the competent national agency in the field in cases arising from international treaties.

It is appropriate for the proper functioning of this Commission to create it as a legal person under the figure of a decentralized body.

That the creation of such bodies by the NATIONAL EXECUTIVE PODER has been accepted, as it arises from the most authoritative doctrine and jurisprudence of the PROCURATION OF THE THIRD NATIONAL.

In order to achieve the proposed objectives, the Commission ' s staff are framed under the Labour Contract Act No. 20,744 (t. 1976) and its amendments.

It is also necessary to modify the administrative distribution and the existing provisions of jurisdiction 5000 - MINISTERY OF ECONOMY and ARTWS and SERVICES PUBLICS in the General BUDGET OF NATIONAL ADMINISTRATION for the year 1994, in order to enable the Commission to operationalize, without altering the source of financing.

They have taken the intervention of the EXECUTIVE COMMITTEE ON AGAINST THE ADMINISTRATIVE REFORM and the TECHNICAL COMMISSION ASSESSMENT OF THE PUBLIC SECTOR.

That its functions, competences and operating mode are integrated within the restructuring of the organization of the national State in the field of international trade, with the regulation of Law No. 24.176 and with the international agreements resulting from the Uruguay Round of the General Agreement on Tariffs and Trade (GATT), to the extent of its accession by the ARGENTINA REPUBLIC.

That the NATIONAL EXECUTIVE PODER is competent to issue this act, pursuant to article 86 (1) of the National Constitution.

Therefore,

THE PRESIDENT OF THE ARGENTINA NATION

RIGHT:


Article 1 - Trust the NATIONAL COMMISSION ON EXTERIOR TRADE, as a decentralized agency within the framework of the SECRETARIAT OF TRADE AND INVERSIONS of the MINISTERIO DE ECONOMIA and ARTWS and PUBLIC SERVICES.

The Commission shall be the specialized entity of the national Government which shall act as the authority of analysis, investigation and regulation in the determination of material damage to national production in the situations provided for in the current legislation on international trade of the ARGENTINA REPUBLIC.

Art. 2o - The NATIONAL COMMISSION ON EXTERIOR TRADE will have full legal capacity to act in the areas of public and private law. Its heritage will be made up of the goods that are transferred to it and those that acquire in the future for any title.

Art. 3o - The Commission shall have the following functions:

(a) Conduct investigations and analysis of damage to domestic production, as a result of imports under unfair competition conditions defined by article VI of the General Agreement on Tariffs and Trade (GATT), within the framework of the laws and regulations governing their application in the ARGENTINA REPUBLIC.

(b) Analyse the damage that a significant increase in imports may cause to domestic production and assess the desirability of introducing safeguard measures, in accordance with article XIX of the General Agreement on Tariffs and Trade, within the framework of the laws and regulations governing their application in the ARGENTINA REPUBLIC.

(c) To analyse, at the request of the SECRETARIAT for COMMERCY and INVERSIONS, the aspect of damage to national production, at the opportunity of the assessment of foreign trade policy measures resulting from the application of the Customs Code and other relevant legislation.

(d) Propose appropriate measures, whether provisional or final, to alleviate damage in the cases of the preceding subparagraphs, including voluntary price agreements, and to review them periodically and assess the desirability of their continuity.

(e) To monitor permanently the trends in international trade and the effects of external competition on national production, identifying situations of current or potential harm.

(f) Apply the provisions contained in international treaties on matters relating to their missions and functions, acting as a competent national entity.

(g) Conduct other studies, analysis and advice on your competences, or those specifically requested by the SECRETARIAT OF TRADE and INVERSIONS.

Art. 4o - The concept of damage used in this decree shall include:

(a) Significant damage or injury caused to national production;

(b) A threat of significant harm to national production;

(c) A significant delay in the creation of a national production.


Art. 5o - The direction of the NATIONAL COMMISSION ON EXTERIOR TRADE shall be exercised by a Board of Directors whose members shall have rank as undersecretary and shall be composed of one (1) president and four (4) vowels, whose remuneration is set out in annex I to this decree, which shall be appointed by the NATIONAL EXECUTIVE PODER on the proposal of the MINISTERIO OF ECONOMY and ARTWORKS and SERVICES. The vowels will last CUATRO (4) years in their functions, being able to be renewed their designation.

Art. 6o - Members of the Board of Directors of the Commission shall be Argentine citizens and accredit appropriateness, professional background and performance in matters of economy, law and foreign trade, which ensure the effective performance of the tasks entrusted to them.

The position of a Board member shall be incompatible, without prejudice to the other cases established by law for public officials, with:

(a) The performance of another remunerated activity in any division of the national, provincial or municipal civil service, including the legislative and judicial branches, except teaching and commissions of study.

(b) Other posts, tasks or professional advice in matters directly or indirectly linked to persons who are or are likely to be incurable in the practices or situations covered by this decree.

(c) Representations, sponsorship or judicial or extrajudicial action against the national State, provinces, municipalities or any other official agency.

Art. 7o - Voters may only be removed from their positions by the NATIONAL EXECUTIVE PODER for serious cause, subject to the procedure that ensures the guarantee of due process. The NATIONAL EXECUTIVE PODER may remove the president, not being required to do so.

Art. 8o - Members of the Board and Commission staff are prohibited from holding talks or negotiations linked to an ongoing investigation outside the relevant case file, with persons who are interested in the case. Failure to comply with this rule shall be subject to dismissal on the grounds of staff, without prejudice to the other responsibilities that may correspond to general legislation.

Art. 9th - The functions of the Board will be:

(a) To interpret and apply the rules referred to in article 3 of the present decree, within the competence of the Commission.

(b) Formulate the annual cost and resource calculation of the Commission.c) Approve annual memory and balance, prior to submission to the corresponding control agencies.d) To carry out all other acts specifically assigned to the Commission and in general other acts necessary for the performance of the functions of the Commission and the objectives of this decree.

Art. 10. - The chairperson shall be responsible for the administrative functions of the Commission and shall exercise the legal representation thereof; in case of impediment or temporary absence, he shall be replaced by one of the members appointed to that end by the Board.

The appointment, promotion, suspension and removal of staff shall be made by the Chairman of the Commission.

Art. 11. - Except for taking decisions relating to articles 14, 19, 21 second paragraph and 22 of this decree, in which the presence of all members will be required, the Board may sessitize with THREE (3) of its members at least, adopting decisions by a majority vote of the present. In the event of a tie in a vote, the president's vote will be doubled.

Art. 12. - In investigations involving imports under unfair competition, reports should contain at least the following information:

(a) Description of industry and its international situation;

(b) Evolution of the determinants of the relationship between imports under unfair competition conditions and damage to domestic production, in particular:

I - Value and physical volume of imports under unfair competition conditions.

II - Effects of these imports on local market prices.

III - Effects of these imports on aspects such as labour employment, capacity used, investment return rate and other aspects that may be harm indicators.

IV - Effects of other factors on the competitive situation of the industry, including cyclical factors, entrepreneurship, regulations and any other cause independent of the unfair trade that might be determining it.

V - Perspectives of market evolution in the absence of compensatory measures.

VI - Probable market behaviour following the implementation of the recommended measures. Effects of the same on consumers.

The evidence of damage to national production must be based on objective facts and information rather than on mere conjectures or remote possibilities.

(c) Recommendation on the desirability of applying or maintaining trade regulations in the form of anti-dumping or countervailing duties to counter damage to domestic production.

Art. 13. - In research on safeguard assessment, reports should contain at least the following information:

(a) Relation of the facts that have motivated the investigation and description of industry and its international situation;

(b) Ratio of the demonstrative factors of damage to national production, such as imports, labour use, industrial capacity used, the return rate of investment and any other enabling an adequate assessment;

(c) Economic impact on consumers resulting from the implementation of safeguard measures;

(d) Recommendation on the most appropriate safeguard measures.

Art. 14.- The Commission may adopt and publish detailed guides, examples and instructions on investigations, with a view to informing the public and stakeholders about the modalities and characteristics of their analysis, reports and recommendations.

Art. 15. - For the performance of its functions, the Commission may undertake recruitments of specialists or special consultancies subject to the existing standards, which are necessary as a complement to its stable technical team. It may also make technical cooperation agreements with agencies of the country or abroad, specialized in areas related to its functions.

Art. 16. - In the analysis and recommendation of measures, the Commission should be guided by the criterion of countering damage and should avoid the use of the regulations for protectionist purposes. In particular, it should not propose measures similar to those estimated by EXTERIOR TRADE SUBSECRETARIA if it concludes that the damage can be addressed with others that reduce imports. In no case, the proposed rights may be higher than the dumping margin or the subsidy rate estimated by the EXTERIOR TRADE SUBSECRETARIA.

Art. 17. - The Commission may require all data and information that it deems relevant to the completion of the ongoing investigations, and the provisions of article 707 of the Customs Code are applicable in its case. It may also conduct investigations in other countries where circumstances require it.

Art. 18. - If it is appropriate for the conduct of investigations, the Commission may call hearings with the participation of the parties concerned.

Art. 19. - Decisions on ongoing investigations shall be taken by the Board of the Commission at meetings convened for that purpose with the presence of all its members. From each session, a record will be released containing the votes of the directors, their foundations, and the final decision that is approved, which will be notified to the Secretary of Commerce and Investment.

Decisions should be approved by the well-founded vote of the majority of the Board and the views of the minority should also be presented.

Art. 20. - The reports of the NATIONAL COMMISSION ON EXTERIOR TRADE and the decisions of its Board of Directors are the only means of accrediting the existence or absence of damage to national production in cases involving unfair competition imports and the assessment of safeguard measures.

When the Commission concludes that there is no harm, the Minister of Economics and Works and Public Services will not take action on imports.

In cases where the Commission finds sufficient damage to justify measures, its recommendations regarding the level of anti-dumping and countervailing duties and on the adoption of safeguard measures will be of the nature of advice to the Minister of Economy and Public Works and Services.


Art. 21. - The Commission shall carry out its functions within the time limits established by the legislation referred to in article 3 of the present decree, and must coordinate its activities with the course of investigations carried out by the EXTERIOR TRADE SUBSECRETARIA and issue its reports in a timely manner so as not to impede the relevant procedures, procedural measures and resolutions.

The Commission shall issue its internal rules of procedure and shall have the power to issue rules of interpretation and clarification concerning matters falling within its competence, as well as on the forms, timelines and other forms of its internal procedure, in accordance with the existing legislation.

Art. 22. - The Commission shall take precautions to protect confidential information, with regard to its management and conservation, and shall establish the responsibilities and penalties that correspond to staff who violate the rules set out in this regard.

Art. 23. - Once every six (6) months, the Commission will publicize a summary of the activities carried out, as well as any additional information on measures taken by third countries regarding the exports made by the ARGENTINA REPUBLIC.

The annual report of the Commission will be prepared and published.

Art. 24. - In order to gradually renew the Directory, the NATIONAL EXECUTIVE PODER shall establish at the time of the first time the two (2) vowels to be renewed after the second year.

Art. 25. - The functions referred to in article 722 of the Customs Code (Act No. 22,415) and article 3 of Act No. 24,176, shall be disclosed in the NATIONAL COMMISSION ON EXTERIOR TRADE to the functions referred to in article 722 of the Customs Code, with the limitations set forth in those provisions, within the powers and functions agreed upon in the present decree and within the framework of the regulations governing the application of such laws. The delegation made to the EXTERIOR TRADE SUBSECRETY by Resolution No. 104 of 24 May 1989 of the MINISTERY OF ECONOMY and ARTWS and PUBLIC SERVICES is limited to the functions not assigned by the present to the NATIONAL COMMISSION ON EXTERIOR TRADE. The SECRETARIAT OF TRADE and INVERSIONS, at the request of the NATIONAL COMMISSION ON EXTERIOR TRADE and considering the process of operationalization of the new entity, shall establish the date from which this delegation will be operational.

Art. 26. - The NATIONAL COMMISSION ON EXTERIOR TRADE will elevate the NATIONAL EXECUTIVE PODER for approval, within the one hundred and eighty (180) administrative working days counted from the date of this decree, the organisational structure of the agency, with the criterion of forming a specialized and highly qualified group. The employment relationship of staff shall be covered by the Labour Contract Act No. 20,744 (t. 1986) and its amendments.

Art. 27. - Until the organizational structure of the Commission is approved, the chairman and the members of the Commission are charged with cabinet advisers provided for in art. 1 of Decree No. 736/92 for the Undersecretaries of the NATIONAL EXECUTIVE PODER, subjecting such advisers to the basic legal regime of the public service approved by Act No. 22,140 and its regulations, as appropriate.

Art. 28. - Modify the administrative distribution of the General BUDGET OF NATIONAL ADMINISTRATION for the period 1994 - Human resources - jurisdiction 5000 - MINISTERY OF ECONOMY and ARTWS and PUBLIC SERVICES, PROGRAMME 17 - DEFINITION OF INVERSIONS, TRADE AND PUBLIC SERVICES AND AGENDA 21- REGULATION OF POSTAL SERVICES, according to the detail in the tables annexed to this article that form an integral part of it.

Art. 29. - Modify the General BUDGET OF NATIONAL ADMINISTRATION for the year 1994, in the portion of jurisdiction 5000 - MINISTERY OF ECONOMY and ARTS and PUBLIC SERVICES, PROGRAMME 17 - DEFINITION OF POLITICES OF INVERSIONS, COMMERCY AND PUBLICAL SERVICES and PROGRAMME 21

Art. 30. - The operating expenses of the NATIONAL COMMISSION ON EXTERIOR COMMERCY shall be charged during the period 1994 to the budget of the SECRETARIAT OF TRADE and INVERSIONS, in accordance with the amounts set out in the tables annexed to article 29 of the present decree, with the provision in the draft budget law for the year 1995 for the incorporation of the charges and credits for the entity established.

Art. 31. - Communicate, publish, give to the National Directorate of the Official Register and archvese. MENEM.- Domingo F. Cavallo.

NOTE: The tables attached to articles 28 and 29 are not published.