Key Benefits:
LEGISLATIVE ASSEMBLY-REPUBLIC OF EL SALVADOR
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DECREE NO 212
THE LEGISLATIVE ASSEMBLY OF THE REPUBLIC OF EL SALVADOR,
CONSIDERING:
I.-That according to Art. 101 of the Constitution of the Republic of El Salvador, the State will promote economic and social development by increasing
production, productivity and rational utilization of the resources.
II.-That there are international regulations, such as the Agreements Multilateral that
promotes the World Trade Organization ("WTO") and the Central American Technical Regulations, which lay down provisions for trade defence, such as anti-dumping measures, countervailing measures and safeguard measures
, which act in the face of unfair trade or trade practices. increased imports of goods or the conditions that generate them, which cause or threaten to cause harm to domestic producers, be it damage
important in cases of unfair trade practices, or serious harm in cases of increased imports.
III.-That by virtue of the above, it is necessary to create a special regulations, that
establish the mechanisms and procedure for the country to have the necessary means to protect the national production branches highly economically and socially sensitive.
BY TANTO,
in use of his Constitutional powers and at the initiative of the President of the Republic, by means
of the Minister of Economy.
DECRETA the following:
SPECIAL COMMERCIAL DEFENSE LAW
TITLE I
CHAPTER ONLY
Object, Application Scope, and Object Competition
Art. 1.- This Law aims to establish mechanisms and procedures for protection and defense against unfair trade practices, as well as the establishment of safeguard measures
to counter imports. of goods, in such quantity or conditions that cause or threaten to cause serious or significant harm to domestic producers of similar or directly competing products.
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Application Scope
Art. 2.- provisions of this Law shall be subject to the provisions of this Law, all imports of goods originating in and/or coming from member countries of the World Trade Organization and non-member countries, made by natural persons or legal when the same can generate
damage or threat of damage to a national production branch or delay in creating the same.
Investigator Authority
Art. 3.- The Ministry of Economy, by means of the Directorate responsible for the implementation of the International Trade Treaties, which is currently referred to as the Management Board
of Trade Treaties, hereinafter the Authority Researcher, will be the entity in charge of knowing the requests of investigation regarding the application of measures of commercial defense, carrying out the investigations, and when it corresponds, to propose to the Minister of Economy, the application of rights
anti-dumping, countervailing duties, safeguard measures or other measures that are applicable in accordance with their privileges.
The Authority will also be responsible for the investigation, to be aware of the application of trade defense measures established in the signed commercial agreements.
The Investigative Authority will participate in the legal defense of the resolutions that will be issued
when the mechanisms for settling disputes established in the Trade Agreements, of which El Salvador will be established, will be activated. Salvador is a party, or at the World Trade Organization.
It will also provide assistance to domestic exporters involved in investigations for unfair trade practices and safeguards measures dealt with by foreign countries.
TITLE II
UNICO CHAPTER
Definitions
Applicable Definitions to Trade Unfair Practices Investigations
Art. 4.- For the purposes of this Law, it is understood by:
a) Total grant of the grant: the absolute monetary value expressed in dollars of
the United States of America, of the benefit received by the recipient of a grant or grant program;
b) Damage: significant damage or threat of major damage to a national production branch or significant delay in the creation of that national production branch;
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c) Anti-dumping duty: temporary supplementary ad valorem duty, different from an import tariff duty and which applies to imports
at dumped prices, which cause damage or threat of damage to the domestic production branch;
d) countervailing duty: supplementary right ad (a) a temporary basis, other than an import tariff duty and which is applies to subsidised imports, which cause damage or threat of damage to the domestic production branch;
e) Dumping: sale of a product on the market of an importing country, at a price below its normal value to which it is sells on the domestic market of the exporting country, either the
source or the source;
f) Interested Parties:
1 °) Exporters or foreign producers of the product under investigation;
2 °) Importers of the product under investigation;
3 °) Trade and business associations where most of the
members are producers, exporters or importers of the product under investigation;
4 °) Governments of exporting countries;
5 °) Producers of the like national product;
6 °) The trade associations or business associations in which the majority of the members produce the like national product; and,
7 °) Other than at the discretion of the investigating authority can be admitted.
g) Unfair practices trade: dumping and subsidies;
h) Product under investigation: imported product subject to an investigation
on measures of unfair trade practices;
i) Similar national product: to the product produced by the domestic industry that is
identical or, where that does not exist product, another product which has very similar characteristics to the imported product being dumped or a subsidy;
j) National production branch: to all domestic producers of the like national product; or those of them, whose joint production of that product constitutes an important proportion of the total national production of that product;
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However, when producers are linked to exporters or to the importers, or are themselves importers of the product under investigation
for alleged dumping or subsidy, the expression National Production Branch, will refer to the rest of the producers.
For the purposes of this definition producers are considered to be related to exporters or importers in the the following cases:
1 °) If one of them directly or indirectly controls the other;
2 °) If both are directly or indirectly controlled by a third person;
or,
3 °) If together they control directly or indirectly a third person.
The above, provided there are reasons to believe that the effect of the linkage is of such a nature, that it motivates from the producer considered a behavior
different from that of the producers linked. One person shall be deemed to control another, when the first is legally or operationally in a position to impose limitations or to direct the second.
k) National Producer: any natural or legal person, Salvadoran or foreign, which produces goods or offers services and addresses in El Salvador; and,
l) Subsidy: a sum of money from public funds, or tax concessions granted to a production company or branch or a group of companies or branches of production, to help them maintain the price of a product.
Applicable Definitions to Safeguarding Measures Investigations
Art. 5.- For the purposes of this Law, the following definitions shall apply:
a) Threat of serious harm: the clear imminence of serious damage;
b) Serious damage: a significant general impairment of the situation of a production branch
national;
c) Safeguarding measure: temporary ad valorem supplementary right,
other than an import tariff duty, and which is applied to prevent or repair the serious damage or threat of serious damage to a branch (a) national production, caused by the increase in imports, in order to facilitate their readjustment. It can also consist
in a quantitative constraint expressed through an import contingent;
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d) Stakeholders:
1 °) Exporters and foreign producers of the product object of investigation;
2 °) The importers of the product under investigation;
3 °) The trade associations or business associations where the majority of the
members are producers, exporters or importers of the product product object of investigation;
4 °) Governments of the countries exporters;
5 °) Producers of the domestic like product or of domestic products
directly competitors; and,
6 °) The business associations, in which most of the
members are producers of the domestic like product or of the domestic products directly competitors.
e) Plan of adjustment: conversion plan, submitted by the national production branch for
as a cause of the serious damage or threat of serious damage;
f) Product under investigation: imported product, subject to an investigation into safeguard measures;
g) Similar product: to the product produced by the domestic industry, which is identical or which has very similar characteristics to the imported product research;
h) Product directly competitor: product that, not being similar to that compared, meets the same functions, meets the same needs and is commercially replaceable; and,
i) Production branch National: all producers of similar or directly competing products, they operate within the national market; or those whose
joint production of similar or directly competing products constitutes at least 25% of the total national production of those products.
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TITLE III
Substantive Rules On Unfair Trade Practices
CHAPTER I
From Dumping
First Section
Determination of Normal Value
Normal Value On Price Base in Exporter Country
Art. 6.- Normal value is the comparable price of a similar product when it is intended for consumption in the country of origin in the ordinary course of trade.
When a commodity is exported to El Salvador from a country intermediate and not directly from the country of origin, the normal value shall be the comparable price of identical or similar goods in the country of provenance.
However, where the goods concerned only transit, do not occur, or there is a comparable price in the exporting country, among other situations, the normal value will be determined by as the basis for the price on the market in the country of origin.
Normal Value Based on a Rebuilt Value or Export Price to a Third
Appropriate Country
Art. 7.- When the like product is not subject to sales in the course of commercial operations
normal on the domestic market of the country of origin, or when, because of a special situation of the market or the low volume of sales in the country domestic market of the country of origin, such sales will not allow for an adequate comparison, the Investigative Authority will determine the normal value of the product
object of investigation, on the basis:
a) Of the cost of production in the country of origin, plus a reasonable amount per concept
of administrative, selling and character expenses general, as well as for benefits; or,
b) A comparable price for the like product, when it is exported to a suitable third country, provided that this price is representative.
It shall be considered as an amount sufficient to determine the normal value, sales of the like product intended for consumption on the domestic market of the country of origin, or sales to a suitable third country, if such sales represent five per cent or more of the sales of the product under investigation to El Salvador.
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By way of derogation from the foregoing paragraph, a smaller percentage may be accepted, when there is evidence that sales on the internal market, even if they represent a percentage
lower, are of sufficient magnitude to allow for a proper comparison.
Sales Realized in the Commercial Operations Course Normal
Art. 8.-
normal sales made in the course of business operations
those that are performed under market conditions in the country of origin, and which have been carried out on a regular basis, or within a period of time, must be understood. year, between buyers and independent sellers.Sales at Cost Lower to Cost
Art. 9.- Sales of the like product on the home market of the country of origin, or sales to a suitable third country, at prices below fixed unit costs and production variables, plus
the administrative costs of selling and general character, shall not be considered as being made in the ordinary course of trade for price reasons and shall not be taken into account in the calculation of the normal value if it determines that such sales have been made:
a) For a period from six months to one year;
b) In substantial quantities; and,
c) At prices that do not allow recover all costs within a reasonable time.
For the purposes of this Article, sales at prices below unit costs shall be deemed to have been made in substantial quantities, when the Research Authority set:
1 °) That the weighted average of the sales prices of the operations considered for the determination of the normal value, is less than the weighted average of unit costs; or,
2 °) That the volume of the sales made at prices lower than unit costs represents twenty percent or more of the volume sold in operations
considered for the calculation of normal value.
If the prices below unit costs at the time of sale are higher than the weighted average unit costs
for the period under investigation, the Investigating Authority will consider these prices to be able to recover costs within a reasonable time frame.
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Calculation of Costs
Art. 10.- The investigating authority shall calculate the costs on the basis of the records carried by the exporter or producer under investigation, provided that such records are in accordance with the principles of accounting generally accepted from the exporting country, and reasonably reflect the
costs associated with the production and sale of the like product.
The Investigative Authority will take into consideration all available evidence that the
imputation of the costs have been adequate, including those presented by the exporter or producer in the course of the investigation, provided that those imputations have been used by the exporter or producer in relation to the establishment of adequate depreciation and depreciation periods and
deductions for capital and other expenses development costs.
The Investigator Authority will appropriately adjust the costs to account for items
of non-recurring expenses that benefit future and/or current production, or to take account of circumstances in the costs relating to the period under investigation have been affected by Start-up operations. The adjustment to be made by the start-up operations
shall reflect the costs at the end of the start-up period or, if this is extended beyond the period under investigation, the most recent costs which the Authority Researcher can reasonably be aware during the investigation.
The amounts for administrative, selling and general expenses, as well as for profit, will be based on actual data related to the production and sales of the like product in the ordinary course of trade made by the exporter or
producer object of investigation. Where those quantities cannot be determined on this basis, they may be determined on the basis of:
(a) The actual quantities spent and obtained by the exporter or producer concerned in relation to production and sales in the domestic market of the country of origin of the same general product group;
b) The weighted average of the actual quantities spent and obtained by other exporters or producers subject to investigation, in relation to production and sales of the
similar product on the home market of the country of origin; or,
c) Any other reasonable method, provided that the amount by concept of profit
established in this way does not exceed the profit normally obtained by other exporters or producers on the sales of products of the same general category in the domestic market of the country of origin of the like product.
Countries other than Market Economy
Art. 11.- Where the exporting country of the product under investigation is not a market economy, the investigating authority may determine the normal value on the basis of:
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a) Comparable price in the course of normal business operations, by the like product intended for consumption in a market economy country;
b) comparable price in the ordinary course of trade, by the product
similar when exported from a market economy country to other countries; or,
c) price actually paid or payable in El Salvador by the like national product,
properly adjusted.
Second Section
Export Price Determination
Export Price
Art. 12.- The export price shall be the price of the product under investigation when
sells for export from the country of origin or from the country of origin to El Salvador.
When there is no export price, or when, in the case of of the investigating authority, the export price is not reliable because there is an association or a compensatory arrangement between the exporter
and the importer or a third party, the export price may be reconstructed on the basis of the price to the the imported products are resold for the first time to an independent buyer, or, if products are not resold to an independent buyer or not in the same state in which they were imported,
on a reasonable basis that the authority determines.
Third Section
Comparison between Normal and The Export Price
Adjustments
Art. 13.- For the calculation of the dumping margin, the investigating authority shall make a fair comparison between the export price and the normal value. This comparison will be done at the same level of trade, typically the ex-factory level, and on the sales basis made on dates
as close as possible. Account shall be taken, in each case, of differences in price comparability, inter alia; differences in sales conditions, taxation differences, differences in trade levels in quantities and in the case of prices. physical characteristics, and any
other differences that influence price comparability. These adjustments may include the following:
a) Costs per packaging;
b) Transport costs, including freight and insurance, off-site manoeuvres, port rights and customs charges;
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c) Credit expenses;
d) Payments by commissions, and,
e) Payments for services post-sale, such as, technical assistance, maintenance
and repairs.
When the export price is rebuilt on the basis of the price at which the imported
products are resold for the first time to a independent buyer, in accordance with the second indent of the previous article, they shall also take into account the costs, including the duties and taxes incurred between the import and the resale, as well as the corresponding profits
in a reasonable amount. Where price comparability has been affected in such cases, the investigating authority shall establish the normal value on a commercial level equivalent to the corresponding reconstructed export price or take into account the elements identified in this article.
The investigating authority shall inform the interested parties what information is needed to ensure an equitable comparison and shall not impose a reasonable burden on them.
Comparison Methods
Art. 14.- S in the light of the above article, the existence of dumping margins shall be established on the basis of a comparison between a weighted average of normal value
and a weighted average of all prices of all comparable export transactions, or by a comparison between the normal value and transaction export prices per transaction.
A normal value established on the basis of the weighted average, may be compared with the prices of individual export transactions if the investigating authority finds a pattern of significantly different export prices, depending on the different buyers, regions or periods.
In these circumstances, the investigating authority will explain why these differences cannot be taken properly in account, by means of a comparison between weighted averages or transaction by transaction.
In the case where the product under investigation comprises goods that are not physically equal to each other, the price discrimination margin shall be estimated by type of merchandise, such that the
normal value and the export price involved in each calculation, correspond to goods with very similar characteristics.
When the margin of price discrimination is calculated by type of merchandise, the margin for the product under investigation will be determined as the average weighted of all individual margins that have been estimated.
When in the case of the investigating authority, the number of types of goods or the number of transactions to be investigated is exceptionally large, the margin of Price discrimination may
be determined on the basis of a statistically sample representative.
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Coin Conversion
Art. 15.- When the price comparison requires a conversion of currencies to be equitable, the Research Authority will perform that conversion using the exchange rate of the sales date.
The date of sale will be that of the instrument in the essential conditions of the sale, be it the contract, the purchase order, the order confirmation or the invoice.
Notwithstanding the foregoing points, when a sale of foreign exchange in the markets to term, is directly related to an export sale, the investigating authority will use the exchange rate of the term sale for all related transactions.
The investigating authority may not take account of exchange rate fluctuations and will grant exporters a period of sixty days to adjust its export prices,
way that they reflect sustained movements of the exchange rates during the investigation period.
CHAPTER II
Subsidy
Elements that Configure a Grant
Art. 16.-For the purposes of this Act, a grant shall be deemed to exist, where it is
grant benefits in any of the following cases:
a) Where there is a financial contribution from a government or any body public
in the territory of that government, that is:
1 °) When the practice of a government involves a direct transfer of funds,
such as, donations, loans and capital injections or possible transfers direct funds or liabilities, such as loan guarantees;
2 °) no public revenue will be collected, which would otherwise be perceived, such as incentives such as tax rebates;
3 °) When a government provides goods or services other than general infrastructure or purchases goods; and,
4 °) When a government makes payments to a financing mechanism, or entrusts a private entity, one or more of the functions described in the ordinals
1 ° to 3 ° of this literal, and would normally correspond to the government, or order that it be carried out, and the practice does not differ, in any real sense, from the practices typically followed by governments.
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b) When there is some form of income or price support in the sense Article XVI of the General Agreement on Tariffs and Trade 1994
(GATT).
Specificity
Art. 17.- A grant may only be the subject of compensatory measures, where specific.
A grant shall be considered as specific to a production company or branch or group of companies or branches of production, in the following circumstances:
a) When the State or the authority granting the grant, or the legislation under which that State or authority acts, explicitly limits access to the grant to certain enterprises;
b) When to weigh there are objective criteria or conditions laid down in a law governing the right to obtain the grant and its amount, the right to receive it is not automatic
it is possible to determine that the granting authority does not respect such objective criteria or conditions. Objective criteria or conditions, those that are impartial, shall be understood as not to favour certain undertakings with respect to others and which are of an economic and horizontal application, such as the number of employees
or the Company size;
c) When limited to certain companies located in a designated geographic region
of the jurisdiction of the State or granting authority;
d) When a grant, which although in appearance does not finds typed as
specific according to literals (a) and (b) of this provision, the Authority Researcher determines that the grant is specific, taking into account the following factors:
1 °) The exclusive use of the grant by a limited number of companies or by a production branch;
2 °) predominant of the subsidy by particular companies or production branches;
3 °) The granting of disproportionately high amounts of subsidies to certain enterprises; and,
4 °) The fact that the authority (a) the granting of the aid is not a matter of the nature of the general availability.
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When applying this literal, the degree of diversification of the activities will be taken into account economic within the jurisdiction of the State or the granting authority, as well as
the period during which the grant program has been applied.
e) When the grant is a prohibited grant within the meaning of the article next.
Banned Grants
Art. 18.- The following grants shall be deemed to be prohibited:
(a) The grants made subject to oath or defact to export results, as a single condition or among other conditions. They will be considered as de facto conditional on the export results, when the facts show that the granting of a
subsidy, even without having been made conditional on the export results, is in fact linked to the exports or to actual or planned export earnings; and,
b) Subventions subject to oath or defact to the use of domestic products with preference to imported ones, as a single condition or among other conditions.
(a) a subsidy is granted to companies which export, it will not be sufficient reason to consider it Export grant within the meaning of this provision.
Subsidy Receiver
Art. 19.- The amount of the subsidy which may be the subject of compensatory measures received by the recipient of the grant, shall be calculated on the basis of the benefit granted to it.
Methodology for the Calculation of the Subsidy Rate
Art. 20.- The calculation of the subsidy rate shall be determined in accordance with a methodology established for that purpose. Such a methodology will be developed in the corresponding Regulation.
CHAPTER III
Determination of the Existence Of A Dano or Threat of Damage and Causal Relationship in a Research for Unfair Trade Practices
Determination of Dano Existence
Art. 21.- The determination of the existence of harm will be based on positive tests, and will comprise an objective examination of the following factors:
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a) The volume of the dumped or subsidised imports;
b) The effect of the dumped or subsidised imports on the prices of similar products on the domestic market; and,
c) The consequent impact of those imports on the domestic producers of such products.
Examining the Volume of Dumping or Subsidised Imports Object
Art. 22.- The investigating authority shall take into account whether there has been a significant increase in the volume of dumped or subsidised imports, in absolute terms or in relation to production or domestic consumption.
with regard to the effect of the dumped or subsidised imports on prices on the domestic market, the investigating authority shall take into account:
(a) If the imported goods are sold on the domestic market at a price significantly lower compared to the price of the like national product; or,
b) If the effect of such imports is to significantly lower prices or significantly impede the rise, which in other circumstances would have occurred.
Accumulation
Art. 23.- Where imports of a like product from more than one country are simultaneously subject to investigations in the field of anti-dumping duties or countervailing measures, the investigating authority may only assess cumulatively the effects of those
imports into the domestic production branch, if it determines that:
a) The dumping margin or the amount of the subsidy in relation to the imports of the
product under investigation from each country, is more than de minimis, and the volume of imports of the product concerned investigation from each country, is not insignificant, as specified in Articles 51 and 52 of the present
Law; and,
b) The cumulative assessment of the effects of the imports, in the light of the
competitive conditions between imports and between imported products and the like national product.
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Review of the Percussion of the Dumping or Subsidised Imports Production Branch
Art. 24.- The examination of the impact of the dumped or subsidised imports on the corresponding national production branch will include an assessment by the Authority
of all factors and indices relevant economic factors influencing the state of that branch of production, including the following:
a) The actual and potential decrease in sales, profits, production volume, market share, productivity, performance of investments or the use of installed capacity;
b) factors affecting domestic prices;
c) Actual or potential negative effects on cash flow, stocks, employment, wages, growth, ability to raise capital or investment;
d) In the case In addition, it will be necessary to take into account the magnitude of the dumping margin; and,
e) In the particular case of subsidies to agriculture, it will be possible to take into account whether there has been
in the costs of the government help.
This enumeration is not exhaustive, and none of these factors are considered
individual, and not several of them as a whole, will necessarily be sufficient to obtain a decisive orientation.
The Investigative Authority will require the necessary evidence to verify what is established in the literals. above, including the balance sheet and financial statements of the national production branch.
The investigating authority shall assess the effect of the dumped or subsidised imports on the production of the product similar national, when the available data
allows to identify it separately, according to criteria, such as, the production process, the sales of the producers and their profits. If such identification is not possible, the investigating authority shall assess the effects of the dumped or subsidised imports by examining
the production of the most restricted group of products including the product
Art.
Important Damage Threat
Art. 25.- The Investigative Authority will base its determination of the existence of a threat
of major damage, in verifiable facts and not simply on allegations, conjectures or remote possibilities. In this regard, there should be sufficient evidence to infer that there will be a substantial increase in imports of the product at dumped or subsidised prices in the immediate future.
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When carrying out a determination concerning the existence of a threat of damage important, the investigating authority should consider, inter alia, the following factors:
a) A significant rate of increase of dumped or subsidised imports on the domestic market, indicating the likelihood of that a
substantial increase of the same will occur;
b) A sufficient free capacity of the exporter or an imminent increase
and substantial increase of the exporter, indicating the likelihood of a substantial increase in the dumped or subsidised exports to the Salvadoran market, taking into account the existence of other export markets that can absorb the possible
increase of such exports;
c) The fact that the imports are made at prices that will have the effect of lowering
the prices in the Salvadoran market or to contain its rise in a significant way, and that probably increase the demand for new imports;
d) The stocks of the product under investigation; and,
e) For the specific case of the grants, their nature and the likely effects on trade. For the purposes of assessing nature, such aspects may be taken into account
such as, their term of validity, their amount or the group of exporters covered by it.
None of these factors alone will necessarily be sufficient to (a) to obtain a
decisive " orientation
but all of them as a whole must conclude that the existence of new exports at dumped or subsidised prices will cause significant damage, unless action is taken protection.Causal Relationship
Art. 26.- The investigating authority shall demonstrate that the dumped or subsidised imports cause damage in accordance with the provisions of this Law. The demonstration of a causal relationship between the dumped or subsidised imports and the damage to the branch of
domestic production shall be based on an examination of all relevant evidence available to the investigating authority.
The Investigating Authority will have to examine other factors which it has knowledge of, other than the dumped or subsidised imports, which at the same time are damaging to the domestic production branch; however, the damage caused for these other factors, the
dumped imports will not be attributed to
subsidised. Among the factors that may be relevant, the following are detailed:a) The volume and prices of unsold imports at dumped or non-subsidised prices;
b) The contraction of demand or changes in demand consumer structure;
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c) The restrictive business practices of foreign and domestic producers National producers, and competition between each other;
d) The evolution of technology; and,
e) The results of the export activity and productivity of the national production branch.
TITLE IV
Sustaining Standards on Safeguarding Measures Application
CHAPTER ONLY
Determination of the Existence Of Serious Harm or Threat of Serious Damage and Causal Relationship in a Safeguarding Measures Investigation
Serious Damage
Art. 27.- The determination of whether the increase in imports has caused or threatens to cause serious damage to a national production branch will be based on an assessment of all relevant factors
which are objective and quantifiable in nature. are related to the situation of that production branch, in particular:
(a) The rate and the amount of the increase in imports of the product under investigation in absolute terms and relative to the national product production similar or directly competitors;
b) The part of the internal market absorbed by the increasing imports of the product under investigation;
c) The prices of the product under investigation, in particular for the purpose of determining whether prices have been lower than those of the domestic like product or the products
directly competing nationals;
d) The effects of increased imports of the product under investigation into
the national production branch, demonstrated by relevant indicators, including the the following: production; capacity utilization; stocks; sales; share market; prices, that is, the decrease in domestic prices or the
caused these prices not to increase as they would have in the absence of the increase of imports; the productivity; the profits and losses; the yield of investments; cash flow and employment; and,
e) Other factors other than the increase in imports of the product under investigation, which at the same time cause or threaten to cause serious damage to the domestic production branch.
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This enumeration is not exhaustive and none of these factors are considered (a) individual, and not several of them as a whole, will necessarily be sufficient to obtain a decisive orientation.
The investigating authority may only determine that the increase in imports of the product under investigation has caused or threaten to cause severe damage to the
national production branch
if there is a relationship cause and effect between increased imports and the damage or threat of serious damage.When there are other factors other than the increase in imports of the product under investigation, which at the same time cause or threaten to cause damage to the national production branch, this damage will not be attributed to increased imports.
Serious Damage Threat
Art. 28.- The determination of the existence of a threat of serious harm caused by the increase of imports, will be based on verifiable facts and not simply on allegations,
conjecture or remote possibilities. In this regard, sufficient evidence must exist on the substantial increase in imports of the product under investigation.
When examining whether the increase in imports threatens to cause serious harm, the Authority
Investigator will evaluate, in addition to the factors mentioned in the first paragraph of the previous article, the following:
a) The actual and potential export capacity of the country or countries of production or origin;
b) The inventories of national production stocks and in export countries;
c) The probability that the exports of the product under investigation enter
the domestic market in increasing quantities; and,
d) Any other factors that the Investigative Authority considers relevant.
TITLE V
CHAPTER
Common Rules of Procedure on Unfair Trading and Safeguarding Measures
Written Request
Art. 29.- The investigation process aimed at verifying the origin of the application of anti-dumping duties, countervailing duties or safeguard measures shall be initiated by a
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application filed with the Investigative Authority, by a national production branch or on behalf of it which is deemed to be impaired.
On the other hand, ex officio investigations shall be initiated, where the investigating authority has sufficient evidence of the existence of an unfair trade practice, damage and relationship causal.
The research process to check the provenance of the application of safeguard measures, may in exceptional cases, be initiated by the Investigative Authority, of
in accordance with the provisions of this Law.
Resolution of Admission of the Request
Art. 30.- Within thirty days following the filing of the application, the Authority
Investigator shall review the requirements set out in Articles 47 and 69 of this Law in order to determine whether all the information required to proceed with its admission.
S i is determined that the application is incomplete, the Investigator Authority will prevent the applicant, within ten days after, for the subsane. The applicant shall have a period of 30 days from the notification to comply with such prevention, which may be extended for an equal period, upon request of the person concerned.
If the petitioner does not answer the prevention within the time limits set, the inadmissibility of the application shall be declared and filed.
The investigating authority shall have the power to prevent for a second time, in case it considers the information insufficient submitted, in which case it shall grant the applicant a time limit of
30 non-extendable days, counted from the respective notification.
If there is information that is not reasonably within the scope of the applicant, it must
justify to the investigating authority, who will make the relevant assessments, at last to determine if the information that is being counted is sufficient to support the request.
Preventions, the Investigator Authority will proceed to accept the request within the next fifteen days.
Starting a Research
Art. 31.- After the application has been accepted, the investigating authority shall examine the accuracy and
relevance of the evidence submitted with the application to determine whether there is sufficient evidence to justify the initiation of an investigation.
The investigating authority shall take the decision to initiate or not an investigation for unfair trade practices or for the application of safeguard measures, by means of the respective resolution, which shall be issued within a period of 15 days from the date of admission of the application.
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In case the Investigative Authority decides not to initiate an investigation, the rejection shall be notified to the applicant within 10 days of its issuance.
The period of the investigation shall be counted from the day following the date of issue of the commencement resolution. From that point on, the investigating authority must notify the parties
interested that they have knowledge, to present the arguments they deem appropriate.
Advertising About the Request
Art. 32.- Unless a start resolution of an investigation has been issued, the Authority
Investigator will avoid all publicity about the request to initiate an investigation.
Request Notification
Art. 33.- When a request for investigations of unfair trade practices or measures
of safeguard complies with the requirements laid down in Articles 47 and 69 of this Law, respectively, and before it proceeds with the initiation of the investigation, the investigating authority shall notify the government of each exporting country concerned directly.
Notification of the Resolutions
Art. 34.-The and final rulings in investigations of unfair trade practices and safeguard measures should be notified to exporters, foreign producers, governments of the exporting countries, of which knowledge is known, as well as to the
importers and domestic producers that make up the national production branch.
The starting resolution must be notified directly to the exporter or through the Representative
diplomat of the exporting country accredited to El Salvador; together with that resolution, the full text of the non-confidential version of the application and the questionnaires to be completed by each interested party must be attached.
The other resolutions shall be notified to the parties interested. Such notifications may be made through electronic means or by any other means that the parties may indicate for such purposes
effects, provided that the sending and receipt of such notification is recorded.
Investigating Authority shall notify the relevant resolutions to the relevant Committees
of the World Trade Organization and the Council of Ministers of Central American Economic Integration, as the instruments regulate Applicable international.
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Public Notices
Art. 35.-The investigating authority shall place on its website a public notice containing a brief summary of the preliminary and final preliminary rulings issued in connection with investigations into unfair trade practices or safeguard measures.
Additionally, the Investigative Authority will publish in the Official Journal the full text of the initial, preliminary and final resolutions.
Presentation of Arguments and Evidence
Art. 36.- In investigations into unfair trade practices or safeguard measures, the investigating authority shall set the maximum time limit for the receipt of arguments or evidence from the parties concerned, with due regard to the time limit for investigation as set out in the following article.
The receipt of written arguments may be submitted through electronic means or by any other means that the parties may point out for such purposes, provided that they are recorded as
your submission and receipt.
Tests must be submitted to the investigating authority in the time limit set, in accordance with the formalities established by the common law in this respect.
Term of Investigation
Art. 37.- investigations by unfair trade practices shall be concluded within a maximum period of 12 months, except in exceptional circumstances, in which they may last for eighteen months. In the case of safeguard measures, they shall be concluded within a maximum period of six months, except
in exceptional circumstances, in which they may last for 12 months. Both deadlines will be counted from the day after the start resolution's issue date.
Confidential Information
Art. 38.-During and after the investigation, the Investigating Authority and any other
competent authority, shall treat as confidential information, which has been submitted to it or provided in that quality. There shall be no access to the information considered as confidential, except for the party that has provided it and for the respective competent authority.
Any information which, by its nature, is confidential, for example, because its disclosure would imply a significant advantage to a competitor, or would have a significantly unfavorable effect
for the interested party that has provided the information or for a third party from whom the information was received, or that the parties to an investigation shall provide, on a confidential basis, to be treated as such by the Investigating Authority, upon sufficient justification in this respect.
In accordance with its nature, it shall be kept as confidential information, inter alia, as follows:
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a) Trade or industrial secrets relating to the nature of a product, production processes, operations, production equipment or machinery;
b) Information regarding the financial situation of a company that is not within the reach of the public; and,
c) Information regarding costs, Customer identification, sales, stocks, shipments, quantity or source of revenue, benefits, losses, or expenses related to the
manufacturing and selling of a product.
If the Investigating Authority concludes that the request to declare an information as
confidential is not justified and the The Authority may not take into account any such information, unless it is shown convincingly, of appropriate source, that the Authority may not make it public or authorize its disclosure in general or summary terms. information is correct.
The interested party submitting confidential information must attach non-confidential summary of the same or provide sufficient reasons why such information cannot be summarized.
Non-confidential summaries of the information considered as such shall be sufficiently explicit To ensure that all other stakeholders have clear knowledge of the information provided, such as data graphs in percentage terms, a
generic explanation of the data contributed, among others.
Case and Access
Art. 39.-All information provided by the interested parties, as well as the ex officio collected
by the Investigating Authority, will be archived in separate files, one of which will contain the public information, the other the information reserved and a third party containing the confidential information.
Interested parties, their representatives and their lawyers duly accredited to this effect shall be entitled at any stage of the procedure to examine, read and copy any document or
test means of the reserved case, as well as order certification of the same, except for confidential information, to which only the investigating authority and the party that supplied it shall have access. This information may not be disclosed during the investigation process.
The costs of the certifications or simple copies of the file that are requested from the Investigative Authority will be borne by the applicant.
Investigating Authority shall include in the non-confidential file:
a) All public notices relating to the investigation or examination;
b) All documentation, such as questionnaires, questionnaire replies and written communications to the investigating authority;
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c) All other information derived or obtained by the Investigative Authority, including the report or verification reports; and,
d) The other documents that the Investigative Authority deems appropriate for incorporation into the non-confidential file.
Information Collection
Art. 40.- At the beginning of the investigation, the investigating authority shall send questionnaires or requests for information to domestic producers, importers, exporters, foreign producers of whom they have knowledge or to any other agent.
The Investigative Authority will give interested parties, to whom they send the questionnaires, a period of thirty days to deliver the answers, counted from the day following their notification.
When the notification of the questionnaires to the exporters or producers foreign is to be carried out through their respective government, the period indicated above will be counted one week after the date
in that they have been delivered or transmitted to the diplomatic representative of the approved exporting country for El Salvador.
The deadline for answering the questionnaires may be extended for another thirty days, upon request
of the data subject, filed before the original deadline.
The Investigative Authority will not take into account the responses to the questionnaires that are presented
outside the original deadline or their extension.
The Investigating Authority may, in the course of the investigation, request interested parties
for further information, in the form of supplementary questionnaires or written requests for clarifications or additional information.
You may also require information from other governmental entities, which may include the issuance of technical criteria, in which case those entities will be required to supply them. The investigating authority may also request information from third parties not party to the process, such as,
national distributors or traders of the product or commodity concerned, as well as the customs agents, agents,
i)all cases where additional information is required, the person concerned shall be granted a period of 30 days from the day following the date of notification, for the purposes of the presentation of the same.
Not to satisfy the requirements referred to by the incites above, the Investigator Authority will resolve in accordance with the best available information, including that contained in the
request for the initiation of an investigation.
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Verification of Information
Art. 41.- At any time during the conduct of the investigation, the Investigator Authority may conduct verification visits that it considers relevant.
The Investigative Authority shall collect any information it considers to be relevant. necessary, and when deemed appropriate, shall examine and verify the information of the interested parties to verify the certainty of such information.
Where necessary, the investigating authority may carry out verifications in other countries, prior consent of the companies involved and provided that there is no opposition from the government
of the country concerned. Once the consent of the companies is obtained, the investigating authority will notify the authorities of the exporting country, the names and addresses of the companies that will be visited and the proposed dates.
In circumstances exceptional, where it is envisaged to include non-governmental experts in the research team, the companies and authorities of the exporting country should be informed of this. Those
non-governmental experts must be subject to sanctions if they breach the requirements set forth in this Law relating to the confidential nature of the information.
Evidence
Art. 42.- Any document written in any language other than Spanish, must be accompanied by its translation. Such translation will be done through a translator, whose costs
will be borne by the interested party who offers the document and in accordance with the formalities established by the common law in this respect.
It will not be necessary to all documents are legalised, but the investigating authority, either on its own initiative or at the request of an interested party, may require a document to be legalized.
It shall be admissible as evidence, public or private documents, testimonial or expert proof, means of reproduction of sound, voice or image and storage of information, as provided in the previous article.
All tests will be appreciated in accordance with the rules of healthy criticism.
Test Technical Report
Art. 43.- The Investigative Authority will prepare a preliminary technical report and a final technical report
, in which it values the evidence that has been presented and evacuated in the investigation. Such reports shall include, as appropriate, the financial, economic, accounting and any other nature necessary to analyze the information collected on the facts
being investigated.
Technical reports shall be submitted to the effect that the preliminary determination and final determination can be made. The preliminary report will be prepared based on the information
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record in the application, and you will need to take into account the responses to the submitted questionnaires
final technical report will be prepared after the evacuation of all the tests that have been ordered, which will be added to the respective file.
Audiences
Art. 44.- Before issuing a final decision, the investigating authority may schedule a hearing, in which all interested parties may submit information and arguments. Concluded
the hearing, the parties will enjoy a term of fifteen days to submit written submissions, related to what is discussed in the hearing.
No interested party will be required to attend a hearing, and its absence shall not prevent the performance of the same.
Interested parties attending a hearing shall notify the investigating authority of the names of their representatives, with no less than five days in advance of the date of the hearing. The Investigating Authority will determine the order in which the interested parties will intervene and set the time of the hearing and the duration of the hearing.
Disappearance of the Request
Art. 45.- The applicant may withdraw in writing prior to the initiation of the investigation, and shall be deemed not to be filed.
Also, once the investigation has been initiated, the applicant may at any time desist from the investigation. If a request for withdrawal will be filed after the investigation is initiated, the
Investigating Authority will notify the interested parties, thereby terminating the investigation.
Economics
Art. 46.- The decision imposing an anti-dumping duty, a countervailing duty or a safeguard measure, whether provisional or definitive, shall be adopted by the Minister for Economic Affairs, which shall take into account both the technical report and the recommendations of the
Investigating Authority, as the public interest.
Any interim measure that
has been adopted will also be confirmed or revoked in the final resolution.
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TITLE VI
UNICO CHAPTER
Special Processing Rules on Trade Unfair Practices
Evidence and Information to be Included in the Application for Trade Unfair Practices Investigations
Art. 47.- With the application, relevant evidence shall be included on the existence of dumping or of a subsidy, as well as of the damage and the causal relationship. In the case of a grant, it may be included
in addition, its amount, if possible.
The application must contain the following information:
a) Name, address, telephone number, tax identity number of the applicant and in case of exercising legal representation, the documentation that accredits it;
b) Place to receive notifications;
c) Identity of the national production branch submitting the application or in whose name
presents, including names, addresses, telephone numbers and emails of all other producers of that known production branch;
d) Information relating to the degree of support to the application by the national production branch, including the following data:
1 °) Notes in which it is expressed by part of the remainder of the national production branch, the support for the application;
2 °) Total volume and value of the domestic production of the like product; and,
3 °) Volume and value of the like product produced by the applicant and by each
of the national producers.
e) Full description of the product allegedly dumped or subsidised,
including the technical characteristics and uses of the product, as well as its tariff code at the highest number of digits in force in the harmonised system;
f) Full description of the product national similar product, including its technical characteristics and uses, as well as its tariff code at the highest number of digits in force in the harmonised system;
g) Country of origin of the product allegedly dumped and, if it is imported from a country other than the country of production, the country of origin from which the product is imported;
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h) Name and address of all natural or legal persons, be they exporters or importers who are known to sell the
dumped or subsidised product
El Salvador by the applicant;i) Data on the evolution of the allegedly dumped imports or
subsidised; the the effect of those imports on the prices of the like product on the market national and the consequent impact of the imports on the domestic production branch, in accordance with the relevant factors and indices influencing
the state of that branch and which are set out in this Law to demonstrate the damage and the existence of a causal relationship;
j) In the particular case of dumping:
1 °) Data on the prices to which the product in question is sold when
is intended for consumption on the domestic market of the country of export or origin. Where appropriate, the following information shall be attached to the prices to which the product is sold from the country of export or origin to
a third country or on the reconstructed value of the product allegedly covered by the product dumping; and,
2 °) Data on export prices or on prices to which the product
allegedly dumped is sold for the first time to an independent buyer in El Salvador and on possible adjustments provided for in Article 13 of this Law.
k) In the particular case of grants, evidence of the existence and nature of the subsidy in question; and,
l) The dumping margin and the anti-dumping duties requested or the amount of the subsidy and countervailing duties requested, as appropriate.
The original application and documentation provided must be accompanied by as many copies as interested parties are identified in the same, except for that information considered confidential.
Consultations for the Case of Subsidy Investigations
Art. 48.- Once a grant application has been admitted, and in any case before an investigation is issued, the Investigative Authority will invite the representatives of the
governments of the countries whose products are the purpose of this investigation, to hold consultations with the aim of reaching a mutually agreed solution.
During the whole period of the investigation, the countries mentioned above will be given the opportunity to continue with the aforementioned consultations. If requested by governments, the Investigative Authority will allow access to non-confidential evidence.
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Application Presentation by the National Production Branch or in the Name of Her
Art. 49.- For the dumping or subsidy investigations, an application shall be deemed to have been made by or on behalf of the national production branch, where:
a) It is supported by domestic producers whose joint production represents more than fifty percent of the total production of the like domestic product produced by the national production branch that manifests its support or opposition to the
application; and,
b) Domestic producers that expressly support the request represent the
twenty-five percent, at least, of the total production of the similar domestic product produced by the national production branch.
Resolution of Initiation in Investigations by Unfair Trade Practices
Art. 50.- When the Investigative Authority decides to initiate an unfair practices investigation
of trade, it shall issue a duly substantiated resolution, which shall contain at least the following:
a) Identification of the Investigating Authority, as well as the place and date of issue
the resolution;
b) The name or social reason and address of the national producer or producers of products
similar, as well as place to receive notifications;
(c) The name or business name and address of the importers and exporters, as well as
place to receive notifications;
d) The country or countries of origin, or provenance of the products that are presumably
object of the unfair trade practices;
e) The detailed description of the product that imported or imported under
alleged unfair trading practices;
f) The description of the domestic product similar to the imported product, under alleged
unfair trading practices;
g) Indication information collection periods;
h) The motivation and foundation that support the resolution, relating the evidence presented;
i) Deadline given to the reported and, where appropriate, to the foreign governments identified, to provide the evidence they deem appropriate, as well as the place in where you can present your alegatosp
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j) The determination of the information to be required of interested parties, through the questionnaires or forms; and,
k) The start date of the investigation.
De minimis margin
Art. 51.- A de minimis margin will be deemed to exist in the practice investigations
of unfair trade, in the following cases:
a) In the dumping investigations it will be considered de minimis when the margin of this
is less than two percent, expressed as a percentage of the export price;
b) In the grants investigations, it will be considered de minimis, the amount of the
grant, when it is less than one percent advalorem. Where the exporting country is a developing country, the overall level of the grants awarded by the product concerned shall be deemed to be de minimis, if not exceeding two per cent
of its value, calculated on a unit basis.
Previous calculations may be performed globally by country, and individually by exporter; in the event of global margins below the established levels,
end to the investigation as per indicated in the previous article. In the event that the existence of individual de minimis margins is established for some exporters, the investigation will be terminated for them and will continue for those with higher margins.
Insignificance of Imports
Art. 52.- The imports are considered to be negligible, in the following cases:
a) In the dumping investigations, when the volume of the dumped imports
a given country,represent less than three percent of the imports of the like product on the domestic market, except that the countries, which individually account for less than three percent of the imports of the product
similar in the domestic market, together, more than seven percent of those imports; and,
b) research into grants, where subsidised products come from developing countries, and the volume of such imports accounts for less than 4% of the total imports of the like product on the domestic market,
unless imports from developing countries, whose individual share of total imports represents less than four percent, together account for more than nine percent of the total imports of the similar product
on the domestic market.
When exports The purpose of the investigation will come from more than one country, the investigation will be able to continue against those countries whose exports are not insignificant.
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Period for Information Collection
Art. 53.- To determine the existence of dumping or a subsidy, the period for the collection of information shall be one year prior to the date of initiation of the investigation into which data is available.
To determine the existence of the The period for the collection of information shall be three years prior to the date of initiation of the investigation. However, the investigating authority may
choose a shorter period, if it considers it appropriate, in the light of the information available in respect of the national production branch and the product under investigation.
Determination and Preliminary Resolution on Trade Unfair Practices Investigations
Art. 54.- The investigating authority may recommend to the Minister for Economic Affairs the imposition of a provisional measure, where a positive preliminary determination of the existence of dumping or the existence of a subsidy has been reached, and determine that such measures are necessary for
to prevent damage from being caused during the investigation. However, provisional measures may not be applied, before 60 days have elapsed since the start of the investigation.
The preliminary resolution will set out the findings and conclusions reached.
on all matters of fact and law that are considered important, which shall contain at least the following:
a) The names of the exporters, foreign producers and importers of the product under consideration
b) The names of the national producers of the similar product to which knowledge is known;
c) A description of the product under investigation, as well as of the similar national product, including the tariff code at the highest number of digits in force on the system
d) The dumping margin or the amount of the subsidy, as the case may be, that have been determined to exist;
e) The factors that have led to the determination of the existence of damage and causal relationship, including information on factors other than imports
dumped or dumped
f) The amount and period of application of the provisional measures to be applied,
and the reasons for which such provisional measures are necessary to prevent it from being caused damage during the investigation; and,
g) Order the Customs Directorate General to collect the measure.
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Form of Payment and Duration of Interim Measures
Art. 55.- The provisional measures may be paid by cash deposit or surrender to the competent authority, and may not exceed the dumping margin or amount of the ad valorem grant, as indicated in the resolution
The provisional measures will apply for a period not exceeding four months in the case of grants, and six months in the case of dumping.
Price Commitments
Art. 56.- In the investigations for dumping, the procedures may be suspended or terminated, without imposition of provisional measures or anti-dumping duties, if the exporter
communicates that he voluntarily assumes commitments satisfactory to review their prices or to end exports at dumped prices.
In the case of subsidies investigations, the investigation will also be terminated if the government of the exporting country agrees to eliminate or to limit the subsidy; or the exporter agrees to revise its prices, so that the Authority Investigator is convinced that the injurious effect of the subsidy is eliminated.
The price increases stipulated in those commitments will not be higher than the dumping margin or the amount necessary to offset the amount of the subsidy. grant that has been determined
by the Investigating Authority.
Conditions for Acceptance
Art. 57.- When the investigating authority accepts a price undertaking, it shall publish the
corresponding notice in the Official Journal and in a national circulation newspaper, the costs of which shall be borne by the applicant.
The investigating authority decides to continue the investigation, shall publish a notice showing the date of the final determination. In this case, the final determination will be made within one hundred and eighty days from the date of publication
of the above notice.
Continuation of Investigation
Art. 58.- Without prejudice to Art. 56 of this Law, even if one or more
commitments are accepted, the Investigative Authority may continue the investigation until its conclusion, when so decided. In such a case, if the investigating authority makes a negative determination of the existence of dumping, of a subsidy or of damage, the undertaking or undertakings shall be extinguished, except in cases where such determination is based on existence of a commitment or commitments.
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In case a positive determination of the existence of dumping or of a grant and damage, the commitment will be maintained in accordance with its terms and the provisions of
this Law.
Failure to comply with a Commitment
Art. 59.- If a commitment is breached, the Investigator Authority may adopt provisions
consistent with the immediate application of interim measures, based on the best information available.
Conclusion Anticipated of the Research
Art. 60.- The investigation shall be terminated, where the investigating authority determines that:
a) There is not sufficient evidence of the existence of dumping or of a subsidy, as well as the absence of any damage to the continuation of the investigation. procedure;
b) The dumping margin or the amount of the grant are de minimis; and,
c) The volume of actual or potential dumped or subsidised imports are negligible.
Resolution Definitive in Investigations for Trade Unfair Practices
Art. 61.- The final decision determining the existence of dumping or of a subsidy, damage and causal relationship shall contain at least the following:
(a) The names of the exporters, foreign producers and importers of the product under investigation;
b) The names of the domestic producers of the like product that make up the national production branch;
c) A description of the product under investigation as well as the national product similar;
d) The conclusions or determinations to which the Authority has arrived Researcher in relation to the product under investigation, the similar national product or the
directly competing products;
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e) Where appropriate, the existing dumping margin and the basis for such determination, including a description of the methodology used to determine the normal value, the export price
and the adjustments that could be made when comparing them;
f) Where appropriate, the amount of the grant and the basis on the basis of the which
determined the existence of this;
g) The factors in which they are based on damage and causal relationship determinations, including
information on factors other than the dumped or subsidised imports that have been taken into account; and,
h) The amount of the duties anti-dumping or countervailing duties to be imposed and their duration.
Dumping Individual Margins
Art. 62.- The investigating authority shall determine the dumping margin for each exporter of which knowledge is known.
In case the number of exporters is so high, and it is impossible to determine the
margin of (a) the investigation authority may limit its examination to a reasonable number of interested parties, using samples which are statistically valid on the basis of the information available to it at the time of the investigation. selection, or the largest percentage
of the volume of exports from the country concerned, which can reasonably be investigated.
Public Interest and Lower Law
Art. 63.- The amount of the anti-dumping duty shall not exceed the dumping margin or, where applicable, the amount of the countervailing duty shall not exceed the subsidy rate.
When the investigating authority has determined that they have been complied with all the requirements for the imposition of anti-dumping or countervailing duties will examine whether the establishment
of such measures will cause injury to the public interest. The examination of the public interest shall be carried out on the basis of the information provided by the interested parties or collected by the investigating authority on this aspect during the investigation; in addition, it shall consider the interests of the
corresponding branch of national production, the domestic competition situation of the product under investigation and the needs of the final consumers.
The investigating authority will examine whether the establishment of a the lower right to the total dumping margin, or, where appropriate, a lower duty than the total amount of the grant would be sufficient to eliminate the damage to the national production branch.
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Establishment and Perception of Anti-Dumping Rights or Countervailing Duties
Art. 64.- anti-dumping duty applicable to each exporter of the product under dumping, or, where appropriate, the countervailing duty on the subsidised product, shall be imposed in the relevant decision. These rights will be applicable to the product originating in the country or countries under investigation,
regardless of their origin, and will be received by the Ministry of Finance, through the General Directorate of Customs.
impose residual measures on imports originating in or consigned from the country or countries under investigation, in order to avoid circumvention of the measures. The residual measure must be set at a level located between the most burdensome and the less burdensome measure of the applied to the exporters
investigated.
When imports of a given product are subject to investigations in the field of
-dumping and countervailing dutiesno such duties will be imposed to compensate for the same dumping or Export subsidy.
Return of Paid Rights in Dumping Margin or Compensation Rights
Art. 65.- The Ministry of Finance, through the Directorate General of Customs, will return the excess paid, in accordance with the provisions of the definitive resolution, in the following cases:
a) When the definitive anti-dumping duty is less than the provisional duty charged; and,
b) When the actual subsidy rate over a given period, on the basis of which the duties were paid, has been eliminated or reduced to a level below that of the current duty.
Extinction of Measures
Art. 66.- Any definitive anti-dumping duty or definitive countervailing duty shall be eliminated no later than five years from the date of its imposition or the date of the last examination carried out in accordance with the next article.
The Investigator Authority shall publish in the Official Journal a notice, indicating such expiration, at a time of notice not less than ninety days before the expiry of the definitive anti-dumping duty or
right Definitive countervailing. Such publication shall be communicated to the national production branch and to the exporter.
Review of Measures
Art. 67.- The investigating authority shall examine the need to maintain the anti-dumping duty or countervailing duty at the request of the national production branch which submitted the application. That
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application must be accompanied by appropriate evidence to justify the need for the examination, and must be submitted one year before the end of the period laid down for the application of the rights
mentioned above. The investigating authority shall inform the national production branch and the exporter, ninety days, prior to the beginning of the one-year period, to request the examination of the measures.
At the beginning of the examination, the investigating authority shall publish the corresponding notice in the Official Journal and in a national circulation newspaper, the costs of which will be borne by the person concerned.
Review in Relation to New Exporters
Art. 68.- If a product is subject to definitive anti-dumping duties or countervailing duties
definitive, the investigating authority will conduct an examination to determine the individual dumping margins or an individual type of dumping. countervailing duties which may be applicable to exporters or producers in the exporting countries concerned, who have not exported the product concerned
to El Salvador during the period under investigation, provided that the such exporters or producers can demonstrate that they are not related to any of the exporters or producers in the exporting country which are the subject of anti-dumping duties or countervailing duties.
The examination shall be initiated within 30 days from the date of receipt of the producer's request or the exporter concerned. The examination will be completed within the next 12 months.
As long as the examination is proceeding, no anti-dumping duties or countervailing duties will be levied on imports from those exporters or producers. However,
the investigating authority shall fix the guarantees to be required for the amount of the residual rate of anti-dumping duties or countervailing duties determined in accordance with the second paragraph of Article 64 of this Regulation. Law.
TITLE VII
UNICO CHAPTER
Special Processing Standards on Safeguarding Measures
Testing and Information to Include the Request in Investigations by Safeguarding Measures
Art. 69.- The application shall contain the following information:
a) Full description of the product under investigation, including the
technical characteristics and uses of the product, as well as its tariff code at the level of the greater number of digits in force in the harmonised system;
b) Full description of the domestic like product or directly competing national products, including their technical characteristics and uses, as well as their code tariff at the highest number of digits in force in the Harmonised System;
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c) Identity of the national production branch submitting the application, or in whose name presents the same, including the names, addresses, telephone numbers
and emails of all other known producers of the like or directly competing national product;
d) The percentage of production national of similar or directly competing products represented by the national production branch;
e) Information about the volume and value of the imported product in each of the three years preceding the application, by country of origin;
f) A description of the increase in imports in terms of absolute or relative to national production;
g) Information regarding the existence of serious harm or threat of serious damage to the national production branch in each of the three years preceding the application, contributing information on the factors listed in Articles 27 and 28 of this Law;
h) An explanation of the reason for which the application of a safeguard measure would be in the public interest; e,
i) If an interim measure is requested, information on the critical circumstances in which any delay in the adoption of measures would entail a damage which is difficult to repair for the production branch, and a statement indicating the level of
the provisional measure.
The original application and documentation provided must be accompanied by as many copies as parts
interested are identified in the same, except for that information considered confidential.
Safeguard Measures Investigations
Art. 70.- When the investigating authority decides to initiate a safeguard measure investigation, it shall issue a duly substantiated resolution, which shall contain at least
the following:
a) Identification of the Authority Investigator, as well as the place and date the resolution is issued
the resolution;
b) Indication that the application and accompanying documents are accepted;
c) The name or social reason and address of the producer or producers national products of similar or directly competing products, as well as place to receive notifications;
d) The name or social reason and address of importers and exporters, as well as place to receive notifications;
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e) The country or countries of origin or origin of the imports under investigation;
f) The detailed description of the product under investigation by safeguard measures that have been imported or are being imported;
g) The description of the domestic product similar or directly competitor to the product being imported or is being imported;
h) Period Indication for Collection information;
i) The motivation and rationale underpinning the resolution, relating the evidence
elements presented;
j) Deadline given to the reported and, if applicable, foreign governments or governments
indicated, to provide the evidence they deem appropriate, as well as the place where they can present their allegatosp
k) The determination of the information to be required of the interested parties, through the questionnaires or forms; and,
l) The start date of the investigation.
Period for the Collection of Information in Safeguarding Measures Investigations
Art. 71.- To determine the substantial increase in imports and serious damage, the reporting period will be three years prior to the start date of the investigation.
Application of a Measure of Interim Safeguarding
Art. 72.- Only the application of a provisional safeguard measure may be recommended, if the investigating authority determines:
a) That there are critical circumstances, i.e. that any delay would be difficult repairable; and,
b) That there is clear evidence that, as a result of unforeseen events and the effect of the obligations contracted by El Salvador under the General Agreement on
Tariffs and Trade 1994 (GATT) the product under investigation is being imported in quantities and under such that, they cause or threaten to cause serious damage to the domestic production branch producing similar products or
directly competitors.
The provisional safeguard measure may only consist of the application of a right complementary ad valorem.
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Determination and Preliminary Resolution in Investigations by Safeguarding Measures
Art. 73.- In critical circumstances, in which any delay would be difficult to repair, the investigating authority may recommend to the Minister for Economic Affairs, the imposition of a provisional safeguard measure, by virtue of a preliminary determination of the existence of evidence
clear that the increase in imports has caused or threatens to cause serious harm. However, provisional measures may not be applied before 60 days have elapsed since the date of the initiation of the investigation.
The resolution imposing a provisional measure shall be based on all information available to it. the Investigative Authority at that time.
In the preliminary resolution, the findings and conclusions will be set out to be found on all matters of fact and of law that are considered important, which must contain
at least the following:
a) The names of the exporters, producers Foreign and importers of the product
object of investigation of which knowledge is known;
b) The names of the national producers of the like product or directly competitor of which knowledge is known;
c) A description of the product under investigation, as well as of the similar or directly competing national product, including the tariff code at the highest level
number of digits in force in the harmonised system;
d) has reached a preliminary determination of the existence of evidence that
demonstrates a increase in the volume of imports, serious injury or threat of serious injury and the causal relationship between the two;
e) Critical circumstances in which any delay would be difficult to repair to domestic production; and,
(f) The amount and period of application of the provisional measures that would have been applied and the reasons for which such provisional measures are necessary, to prevent damage from being caused during the investigation.
Interim Safeguarding Measures Payment and Duration
Art. 74.- The safeguard measures may be paid by cash deposit or surrender to the competent authority.
Any amount raised as a provisional safeguard measure shall be returned if the investigation further determines that the increase in imports has not caused or has not threatened to cause serious damage to the national production branch.
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Provisional safeguard measures shall apply for a period not exceeding Two hundred days, and may be suspended before its expiration date by issuing the final resolution
.
The Ministry of Finance, through the Directorate General of Customs, will be the responsible authority
for the collection and control of provisional safeguard measures.
Non-Application of Safeguarding Measures
Art. 75.- No safeguard measures shall be applied to imports of the product subject to
investigation originating in a developing country, where these imports do not account for more than 3% of the total imports of the product concerned. the product under investigation in the country.
Imports from developing countries that individually account for less than three percent of the imports of the product under investigation, but overall represent more than nine per cent of imports, a safeguard measure may be applied
to those imports from these developing countries.
Content of the Definitive Resolution in Investigations by Safeguarding Measures
Art. 76.- In cases where the investigating authority considers it necessary, the national production branch must present a readjustment plan to deal with the competition generated
by the imports, sixty days before the Investigating Authority issues the final resolution in an investigation for safeguard measures.
If necessary, the investigating authority shall provide the interested parties with the preparation of the adjustment plan.
The above resolution must contain at least the following:
a) The names of the exporters, foreign producers and importers of the product
object of investigation;
b) The names of the domestic producers of the like product or directly
competitor that make up the production branch national;
c) A description of the product under investigation, as well as the national product
similar or directly competitor;
d) The findings or determinations to which the investigating authority has arrived in
relationship to the product under investigation, the like product or products directly competitors;
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e) The volume and value of the imported product during the period under investigation, by country of origin;
f) The conclusions or determinations on the unforeseen events and the obligations incurred by El Salvador under the General Agreement on Tariffs
Trade (GATT), which led to the increase of the imports of the product under investigation;
g) positive determination of the existence of damage and the causal link, including the factors examined and their relevance, as well as the findings and conclusions based on the factual and legal issues examined;
h) The reasons for which the investigating authority has concluded that the application of a definitive safeguard measure is in the public interest;
i) Details of the national production branch readjustment plan, where the investigating authority has required it;
j) The form, level and duration of the proposed definitive safeguard measure and its agreement with the national production branch readjustment plan;
k) If a quantitative restriction has been proposed, the distribution of the quota between the supplier countries and a explanation of the basis used to perform this distribution;
l) A timetable for progressive liberalization of the measure, if the proposed duration of the measure is greater than one year; and,
m) The determination of the countries in excepted development of the measure.
Duration of the Definitive Safeguard Measures
Art. 77.- Any definitive safeguard measure shall apply to all imports of the product
subject to investigation, regardless of the source of the product, entered from the date on which the measure enters into force.
A definitive safeguard measure shall apply for a period not exceeding four years, including the period of application of any provisional measure, unless the period is extended in accordance with Article 81 of the Treaty. This Act.
The total duration of a definitive safeguard measure, including its
Ministry of Finance, through the Directorate General of Customs, will be the authority responsible for the collection and control of the definitive safeguard measures.
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Quotas Applied as Definitive Safeguard Measures
Art. 78.- Where the definitive safeguard measure consists of a quota, the quota may not exceed 50% of the average of the imports of the product under investigation carried out during the three years preceding the application of the measure.
If more than one country exports the product under investigation, the quota will be distributed among the supplier countries, taking into account the percentage of imports from each to the Salvadoran market
during the three years prior to the application of the measure.
Progressive Liberalization of Safeguard Measures
Art. 79.- A definitive safeguard measure, the period of application of which is greater than one year, shall be progressively liberalised at regular intervals during the period of application, in accordance with
timetable published in the noticeon the application of a definitive safeguard measure.
Review of Safeguarding Measures
Art. 80.- If the duration of a definitive safeguard measure exceeds three years, the investigating authority shall analyse the situation where the period of application of the measure has elapsed by means of an examination of the effects of the measure. measure in the national production branch. Of
agreement with the results, the investigating authority will decide to maintain or revoke the definitive safeguard measure or to accelerate the pace of its liberalisation.
The corresponding resolution will be notified to the Council of Trade WTO merchandise, through the Safeguards Committee.
Extension of a Definitive Safeguard Measure
Art. 81.- The definitive safeguard measure may be extended for once, at the request of the national production branch, submitted six months before the end of the period of application, and the relevant evidence must be provided. which will be analyzed by the Investigating Authority, to
effect of determining if such extension is warranted.
The extension will proceed only if the Investigating Authority determines that the measure remains
necessary to prevent or repair serious damage, and that there is evidence that the national production branch is in the process of readjustment.
A definitive safeguard measure carried over shall not be more restrictive than at the end of the initial period of application. During the extension period, the measure will continue to be progressively liberalised, in accordance with the timetable published in the notice of extension of a definitive safeguard measure.
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New Application of a Safeguarding Measure
Art. 82.- new safeguard measure may not be applied to the same product for a period equivalent to half of that during which the original measure was applied. However, the minimum non-application period will be two years.
TITLE VIII
UNICO CHAPTER
National Commercial Defense System
System Creation
Art. 83.- Create the National System of Commercial Defense, hereinafter "the System", which will function as a forum or observatory between the public and private sectors, to promote actions aimed at guaranteeing the exercise of commercial defense National productive sectors.
System Coordinator
Art. 84.- The Ministry of Economy will be the coordinator of the System and will liaise with the
different public and private entities that make it up.
System Committee
Art. 85.- Create the Committee of the System, hereinafter the Committee, which will have as a function
main to ensure the functioning of the National System of Commercial Defense.
The Committee will be integrated as follows:
a) Member and his alternate, proposed by the Ministry of Economy, who will be the President;
b) An owner member and his alternate, proposed by the Ministry of Finance;
c) A member and his alternate, proposed by the Ministry of Agriculture and Livestock;
d) An owner and his alternate member, proposed by the Central Reserve Bank of El Salvador;
e) An owner member and his alternate, proposed by the Export and Investment Agency of El Salvador;
f) An owner and his alternate member, proposed by the industrial sector;
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g) An owner member and his alternate, proposed by the exporting sector;
h) A Member and his alternate, proposed by the commercial sector; e,
i) An owner member and his alternate, proposed by the agricultural sector.
The members of the industrial, exporting, commercial and agricultural sectors will be appointed by the Minister for Economic Affairs, by means of a proposal private, related to the thematic
industrial, exporting, commercial and agricultural, with legal personality, selected according to their internal order; all of which will be regulated by the Regulation of this Law.
Committee Meetings
Art. 86.- The Committee shall define in its first working session the elements for drawing up its Rules of Procedure.
In order for the session to be valid, at least half of its members must be provided with the assistance of at least half of their members. the presence of the President or his/her alternate is counted.
System Actions
Art. 87.- The members of the System will exercise all the necessary actions to
implement and promote commercial defense, among which are the following:
a) Promote the approval of legal instruments for strengthen trade defense;
b) Report on any evidence or evidence of which they are aware of the existence of unfair trade practices in the market; contribute to the lifting
of information and recommend to the competent authority the initiation of an investigation;
c) Know of the cases in that Salvadoran companies are being investigated by
alleged unfair practices of trade in the markets of other trading partners, and to recommend to the competent authority the exercise of appropriate legal actions;
d) permanently monitor trade flows in strategic products, in order to determine possible product triangulations, and recommend to the authority
competent the start of investigations of origin;
e) Recommend the development of early warning mechanisms on business regulations
for the countries of destination of the Salvadoran exports; and,
f) To know of the technical barriers denounced by exporters and importers, to document them and to formulate proposals for their elimination.
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Adoption of Countermeasures
Art. 88.- The System may recommend the adoption of countermeasures, in accordance with the principles of international law and as a proportional response to the measure adopted by another State.
The recommendation to be adopted by the System shall be be transferred to the Competent Authority, for implementation in accordance with applicable legal procedures.
TITLE IX
UNICO CHAPTER
Final Provisions and Resources
Budget
Art. 89.- The budgetary resources necessary for the actions and functions to be developed by the investigating authority and for the effective implementation of this Law, of
will be allocated according to the provisions of the Organic Law The Financial Management of the State.
The Research Authority, with the support of the competent authority in the management of the
international financing, will be able to manage technical or financial assistance to governments and agencies International trade defence specialists.
Information Provisioning
Art. 90.- Public institutions that handle statistical data, import or export data, or other relevant commercial information, shall provide such information at the request of the Investigating Authority for the purpose of
The Investigative Authority will ensure compliance with the rules on confidentiality in the handling of this information.
Technical Assistance
Art. 91.- The Ministry of Economy, through the Management of Commercial Treaties, will provide technical assistance to any company that requests it and especially to the micro,
small and medium enterprises, for the purpose of explain to them the use of the instruments that are regulated in this Law.
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The expressed Address will prepare manual procedures or guides that these companies they must observe in the preparation of the applications for initiation, by which they require the defense
of their interests in the framework of the investigations regulated by this Law.
guides, must be issued by the Executive Agreement
and published in the Journal Officer.
Pletup Computer
Art. 92.- The time limits laid down in this Law must be computed in calendar days. When the last day of the deadline is indeft, it will extend to the next business day.
Resources
Art. 93.- The investigations into unfair trade practices and safeguard measures only allow the review of final decisions. The same appeal may be alleged
all the illegalities of the procedure.
That appeal must be written and duly substantiated, before the Minister of Economy, within the term of fifteen days, counted from the day following the respective notification.
If the deadline has not elapsed, the resolution by which the act was issued will be firm.
The Minister will have a period of thirty days to resolve the referred to.
S i the resource shall not be filed in time and form, shall be declared inadmissible by
reasoned resolution, against which there will be no resource.
Substitute Application
Art. 94.- The aspects not covered by this Law shall be governed by the provisions of the Agreement
General on Tariffs and Trade 1994, the Agreement on the Application of Article VI of the General Agreement on Tariffs Customs and Trade 1994 (GATT), the Agreement on Subsidies and Compensatory Measures and the Agreement on Safeguards of the WTO, the Regulation
Central American on Safeguarding Measures, the Central American Regulations on Practices Unfair trade. They will also apply the other commitments made by the Member States within the framework of the WTO, which deal with this matter.
Where specific provisions on trade defence measures exist in a Trade Treaty in force in El Salvador, the application of the measures provided for in this Law, will be made
in accordance with the provisions of that Treaty.
Likewise, as not provided for in this Law and in the aforementioned Commercial Treaties, it will be subject to the provisions of the common law, provided that it does not contradict the principles and provisions of this Law.
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Regulation
Art. 95.- The President of the Republic shall issue the Regulations necessary for the implementation of this Law, within ninety days of its entry into force.
Special Character of Law
Art. 96.- The provisions of this Law, because of its special character, will prevail over any other that in general or special character regulate the same matter.
Vigence
Art. 97.- This Decree shall enter into force thirty days after its publication in the Official Journal.
GIVEN IN THE BLUE HALL OF THE LEGISLATIVE PALACE: San Salvador, ten days of the month of December of two thousand fifteen.
LORENA GUADALUPE PEÑA MENDOZA, PRESIDENT.
GUILLERMO ANTONIO GALLEGOS NAVARRETE, ANA VILMA ALMASEZ DE ESCOBAR, FIRST VICE PRESIDENT. SECOND VICE-PRESIDENT.
JOSÉ SERAFIN ORANTES RODRÍGUEZ, NORMAN NOEL QUIJANO GONZÁLEZ, THIRD VICE-PRESIDENT. FOURTH VICE-PRESIDENT.
SANTIAGO FLORES ALFARO, FIFTH VICE PRESIDENT.
GUILLERMO FRANCISCO MATA BENNETT, DAVID ERNESTO REYES MOLINA, FIRST SECRETARY. SECOND SECRETARY.
MARIO ALBERTO TENORIO GUERRERO, REYNALDO ANTONIO LÓPEZ CARDOZA, THIRD SECRETARY. FOURTH SECRETARY.
JACKELINE NOEMI RIVERA AVALOS, JORGE ALBERTO ESCOBAR BERNAL, FIFTH SECRETARY. SIXTH SECRETARY.
ABILIO ORESTES RODRÍGUEZ MENJÍVAR, JOSÉ FRANCISCO MERINO LÓPEZ, SEVENTH SECRETARY. EIGHTH SECRETARY.
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PRESIDENTIAL HOUSE: San Salvador, at six days of the month of January of the year two thousand sixteen.
PUBESQUIESE,
Salvador Sánchez Cerén,
President of the Republic.
Tharsis Salomon López Guzmán,
Minister of Economy.
D. O. N ° 6 Took N ° 410
Date: January 11, 2016
SP/adar 11-02-2016
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