DECREE 766

Decree No. 766/94

Establishing the National Commission for Foreign Trade.  Functions.  Composition and Rules of Procedure.  Investigations, Reports, Opinions and Activities.  General and Transitional Provisions

Buenos Aires, 12 May 1994

            BEARING IN MIND the Customs Code (Law No. 22,415) and its regulations, Law No. 16,834 on the Accession of the Argentine Republic to the General Agreement on Tariffs and Trade and Law No. 24,176 approving the Agreement on Implementation of Article VI and the Agreement on Interpretation and Implementation of Articles VI, XVI and XXIII of the General Agreement, Law No. 20,744, and
 
            CONSIDERING:

            That the Argentine Republic has in recent years operated a policy of opening up of the economy by reducing customs tariffs and eliminating many non-tariff barriers, in a context of freedom to fix prices and salaries.

            That the objective of the policy has been to increase competition in the Argentine domestic  market and ensure supply of goods in conditions similar to those of the international market with regard to price and quality.

            That it is a function of the National Government to take all necessary steps to ensure that producers established in the country do not suffer material injury as a result of imports under conditions of unfair competition, including dumped and subsidized imports.

            That situations may also arise in which events unconnected with the country's trade policy, and unconnected with acts of unfair competition may give rise to a significant increase in imports which makes it desirable to introduce measures to safeguard domestic production.

            That in administering trade policy instruments against unfair trade practices and those relating to safeguard measures, maximum efficiency and transparency should be sought in order to ensure that prices paid by consumers do not exceed those which would have obtained under conditions of normal competition in the international market.

            That the analysis and investigation of cases of unfair competition at international level and the imposition of safeguard measures should be carried out in conformity with the recommendations of the General Agreement on Tariffs and Trade (GATT), to which the Argentine Republic has been a signatory since 1965, and under the terms of the Agreements approved by Law No. 24,176.

            That Article 3 of the aforementioned Law and Article 722 of the Customs Code authorize the implementing authority to delegate to a competent body the functions related to the implementation of regulations on unfair international competition, except for the power to take decisions which establish anti-dumping and countervailing duties, which is vested solely in the Minister of the Economy and Public Works and Services.

            That it is desirable to delegate to different bodies the powers of the implementing authorities concerning investigation of material injury to domestic industry and investigation into the margin of dumping and subsidization on imports under conditions of unfair competition, or into the significant increase in imports, in the evaluation of safeguard measures.

            That, for that purpose, it is desirable to establish a special body in the form of a National Commission, to undertake analysis of material injury to domestic industry drawing, for that purpose, on the best international experience in this area, and retain investigations concerning the margin of dumping and rate of subsidization in the Under-Secretariat for Foreign Trade.

            That as a body specializing in the analysis of injury, it is appropriate for the National Commission for Foreign Trade, hereby established, to permanently review the effects of international competition on domestic industry and identify situations for which provision might be made in existing legislation or which might be of interest to the economic authorities.

            That it is desirable for this body also to be empowered to act in an advisory capacity to the Secretariat for Trade and Investment of the Ministry of the Economy and Public Works and Services, in its specialist area, on those parts of legislation on international trade and foreign trade policy not directly related to GATT rules on unfair competition and safeguards, but which involve aspects concerning the analysis of material injury or threat of material injury to domestic production.

            That the Commission should also act as the competent national body for this matter in cases deriving from international treaties.

            That to ensure the proper functioning of the Commission, it is desirable to establish it as a decentralized agency having legal personality.

            That the establishment of such bodies by the National Executive Power has been accepted, as evidenced by the most authoritative doctrine and the case law of the Attorney General of the Nation.

            That, for the proposed objectives to be met, it is desirable that the staff of the Commission be governed by Labour Law No. 20,744 (1976) and its amendments.

            That, likewise, it is necessary to adjust the distribution of administrative resources and credits under item 5000-Ministry of the Economy and Public Works and Services in the General Budget of the National Administration for the year 1994, in order to permit the Commission to become operative, without changing the source of funding.

            That the Executive Committee of the Comptroller for Administrative Reform and the Technical Advisory Committee on Public Sector Wage Policy have taken the appropriate action in accordance with their attributions.

            That its functions, attributions and operational procedures are consistent with the restructuring by the State of the organization of international trade, the regulations of Law No. 24,176 and international agreements arising from the Uruguay Round of the General Agreement on Tariffs and Trade (GATT), to the extent that the Argentine Republic accedes thereto.

            That the National Executive is competent to issue the present decree, under the provisions of Article 86, paragraph 1 of the National Constitution.

            Wherefore

THE PRESIDENT OF ARGENTINA

DECREES:

CHAPTER I

Establishment and Functions

            Article 1.  The National Commission for Foreign Trade is hereby established as a decentralized agency under the Secretariat for Trade and Investment of the Ministry of the Economy and Public Works and Services.

            The Commission shall be the specialized agency of the National Government, which shall act as the authority responsible for analysis, investigation and regulation in the determination of material injury to domestic production in the circumstances laid down in the legislation on international trade of the Argentine Republic. 

            Article 2.  The National Commission for Foreign Trade shall have full legal capacity to act under both public and private law.  Its assets shall consist of those transferred to it and those acquired by it in the future from whatever source.

            Article 3.  The Commission shall have the following functions:

            (a)To conduct investigations and analysis of injury to domestic production as a result of imports effected under conditions of unfair competition as defined by Article VI of the General Agreement on Tariffs and Trade (GATT), in the framework of the laws and regulations governing its implementation in the Argentine Republic;

            (b)to analyse the injury that a significant increase in imports might cause to domestic production and assess whether it is appropriate to introduce safeguard measures, in accordance with Article XIX of the General Agreement on Tariffs and Trade, in the framework of the laws and regulations governing its application in the Argentine Republic;

            (c)at the request of the Secretariat of Trade and Investment, to analyse the aspect of injury to domestic production, in connection with the evaluation of foreign trade policy measures resulting from the application of the Customs Code and other relevant legislation;

            (d)to propose appropriate measures, whether provisional or final, to alleviate injury as set out in the foregoing paragraphs, including voluntary price agreements, and to review them periodically and assess whether they should be continued;

            (e)to undertake continuous monitoring of trends in international trade and the effects of foreign competition on domestic production, identifying cases of actual or potential injury;

            (f)to apply the provisions contained in international treaties on matters relevant to its missions and functions, acting as the competent national body for that purpose;

            (g)to undertake such other studies, analysis and advice as falls within its areas of competence, or as specifically requested by the Secretariat of Trade and Investment.

            Article 4.  The definition of injury used in the present Decree shall include:

            (a)Material injury or damage caused to a domestic industry;

            (b)threat of material injury or damage to a domestic industry;

            (c)material retardation of the establishment of a domestic industry.

CHAPTER II

Composition and Rules of Procedure

            Article 5.  The National Commission for Foreign Trade shall be directed by a Board whose Members shall hold the rank of Under-Secretary and which shall consist of one Chairman and four Members, whose remuneration is set out in Annex I to the present Decree, appointed by the National Executive Power on the recommendation of the Ministry of the Economy and Public Works and Services.  The Members shall serve for a term of four years, which may be renewed.

            Article 6.  The Members of the Board of the Commission shall be Argentine citizens and have the appropriate qualifications, professional background and experience in economics, law and foreign trade, to ensure that they are able to carry out their tasks effectively.

            Membership of the Board shall be incompatible, without prejudice to the other cases established under legislation governing the civil service, with:

            (a)The exercise of any other remunerated activity in any department of the National, Provincial or Municipal Public Administration, including the Legislature and the Judiciary, other than teaching and study commissions;

            (b)other posts, tasks or professional consultancies in areas directly or indirectly linked with persons who are or may be involved in practices or situations covered by the present Decree;

            (c)judicial or extrajudicial representation, counsel or action against the National State, the Provinces, Municipal Authorities or any other official body.

            Article 7.  Members may only be removed from office by the National Executive Power on serious grounds, following application of the procedure which guarantees due process.  The National Executive Power may remove the Chairman, without having to give the grounds for so doing. 

            Article 8.  Members of the Board and staff of the Commission are not permitted to hold discussions or negotiations concerning a current investigation outside the relevant proceedings with persons who have an interest in the case.  Failure to obey this rule shall be justifiable grounds for dismissal of staff, without prejudice to any other liabilities that they may have under general legislation.

            Article 9.  The functions of the Board shall be:

(a)To interpret and apply the rules to which Article 3 of the present decree refers, within the competence of the Commission;

(b)to prepare the annual budget of expenses and calculation of resources of the Commission;

(c)to approve annually the report and balance sheet, prior to its presentation to the relevant supervisory bodies; and

(d)to carry out all other acts specifically assigned to the Commission and in general such acts as are necessary to fulfil its functions and the objectives of the present decree.

            Article 10.  The Chairman shall be responsible for the administrative functions of the Commission and shall be its legal representative;  should he be prevented from doing so or temporarily absent, he shall be replaced by one of the members appointed for that purpose by the Board.

            The Chairman of the Commission shall be responsible for appointing, promoting, suspending and dismissing staff.

            Article 11.  Except for the purpose of adopting decisions to which Article 14, 19, 21, paragraph 2 and 22 of the present decree refer, when the presence of all members is required, the Board may meet with a minimum three members and adopting decisions by a majority of the votes of those present.  In the case of equality of votes, the Chairman's vote shall count double.

CHAPTER III

Investigations, Reports, Opinions and Activities

            Article 12.  In investigations concerning imports under conditions of unfair competition, reports shall contain, as a minimum, the following information:

(a)Description of the industry and its international situation;

(b)trends in the factors determining the relationship between imports under conditions of unfair competition and injury to the domestic industry, in particular:

(I)Value and physical volume of imports under conditions of unfair competition;

(II)effects of such imports on prices in the local market;

(III)effects of such imports on, inter alia, employment, utilization of capacity, rate of return on investment and other factors which could be indicators of injury;

(IV)effects of other factors on the competitive situation of the industry, including cyclical factors, entrepreneurial capacity, regulations and any other cause unconnected with unfair trade which may be a determining factor;

(V)prospects for market trends in the absence of countervailing measures; and

(VI)probable behaviour of the market following application of the recommended measures.  Effects of those measures on consumers.

            The test of injury to the domestic industry shall be based on facts and objective information and not on mere conjecture or remote possibility.

            (c)Recommendation on whether it is appropriate to apply or maintain trade measures in the form of anti-dumping or countervailing duties to offset the injury to the domestic industry.

            Article 13.  In investigations concerning evaluation of safeguard measures, reports shall contain, as a minimum, the following information:

(a)A report of the facts which led to the investigation and description of the industry and its international situation;

(b)report of the factors which show injury to domestic production, such as imports, employment, industrial capacity utilization, rate of return on investment and any other factor which allows adequate evaluation;

(c)economic impact on consumers, as a result of the application of safeguard measures;  and

(d)recommendation as to the most appropriate safeguard measures for the case in question.

            Article 14.  The Commission may approve and publish guides, examples and detailed instructions for investigations, in order to inform the public and interested parties concerning the methods and features of its analyses, reports and recommendations.

            Article 15.  In order to fulfil its functions, the Commission may, as necessary, engage specialists or special consultants, subject to the current regulations to supplement its permanent technical team.  It may also conclude technical cooperation agreements with bodies in the country or abroad, specializing in areas related to its functions.

            Article 16.  In analysing and recommending measures, the Commission shall be guided by the criteria of preventing injury and shall avoid using legislation for protectionist purposes.  In particular, it shall not propose measures similar to those considered by the Under-Secretariat for Foreign Trade if it concludes that the injury can be remedied by other measures which have a less restrictive effect on imports.  In no case, shall the proposed duties be higher than the margin of dumping or the rate of subsidy estimated by the Under-Secretariat for Foreign Trade.

            Article 17. The Commission may require any data and information that it considers relevant to complete its investigation, in which case the provisions of Article 707 of the Customs Code apply.  It may also carry out investigations in other countries when circumstances so require. 

            Article 18.  When appropriate for the purposes of conducting investigations, the Commission may hold hearings with the participation of the parties concerned.

            Article 19.  Decisions on investigations shall be adopted by the Board of the Commission in meetings convened for the purpose with all members present.  Records of each meeting shall be prepared, setting forth the votes of the directors, the reasons therefor, and the final decision as approved, which shall be notified to the Secretary for Trade and Investment.

            Decisions shall be adopted by a majority vote of the Board, which shall be accounted for, and the opinions of the minority shall also be presented.

            Article 20.  Reports of the National Commission for Foreign Trade and the decisions of its Board shall be the only means of establishing the existence or non-existence of injury to domestic industry in cases concerning imports under conditions of unfair competition and evaluation of safeguard measures.

            When the Commission concludes that there is no injury, the Minister of the Economy and Public Works and Services shall not take measures relating to imports. 

            In cases where the Commission finds sufficient injury to justify measures, its recommendations concerning the level of anti-dumping and countervailing duties and the adoption of safeguard measures shall take the form of advice to the Minister of the Economy and Public Works and Services.

CHAPTER IV

General and Transitional Provisions

            Article 21.  The Commission shall fulfil its functions within the time-limits established by the legislation to which Article 3 of the present decree refers, and it must coordinate its activities with the investigations carried out by the Under-Secretariat for Foreign Trade and issue its reports in a timely manner so as not to delay the relevant formalities, procedures and resolutions.

            The Commission shall issue its own rules of procedure and shall have the power to issue rules of interpretation and clarification concerning matters within its competence, as well as the form, time‑limits and other arrangements for its internal procedures, in accordance with current legislation.

            Article 22.  The Commission shall take precautions to protect confidential information, concerning its use and storage, and shall establish appropriate responsibilities and sanctions for staff who break any rules established to this end.

            Article 23.  Once every six months, the Commission shall publish a summary of its activities, and any other additional information on measures adopted by third countries concerning exports by the Argentine Republic.

            Each year, it shall prepare and publish the Annual Report of the Commission.

            Article 24.  In order to renew the Board on a gradual basis, the National Executive Power shall, when establishing the Board for the first time, establish two posts of members to be renewed at the end of the second year.

            Article 25.  The functions to which Article 722 of the Customs Code (Law No. 22,415) and Article 3 of Law No. 24,176 are delegated to the National Commission for Foreign Trade, subject to the limitations established therein, within the competence and functions conferred by the present decree and in the framework of the implementing regulations of those Laws.  The delegation of powers to the Under-Secretariat of Foreign Trade by Resolution No. 104 of 24 May 1989 of the Ministry of the Economy and Public Works and Services, is limited to functions not assigned by the present decree to the National Commission for Foreign Trade.  The Secretariat for Trade and Investment, at the request of the National Commission for Foreign Trade and considering the process for starting up the new entity, shall establish the date from which this delegation of powers shall operate.

            Article 26.  The National Commission for Foreign Trade shall, within 180 working days from the date of the present Decree, submit to the National Executive Power for approval, the organizational structure of the agency, which must aim to form a highly qualified specialist group.  The employment relationship of the staff shall be governed by Labour Law No. 20,744 (1986) and its amendments.

            Article 27.  Until such time as the organizational structure of the Commission is approved, the Chairman and Members of the Commission are assigned the responsibilities of Cabinet Advisers as set out in Article 1 of Decree No. 736/92 for Under-Secretaries of the National Executive Power, such advisers being subject to the Basic Terms and Conditions of Employment of the Civil Service approved under Law No. 22,140 and its regulations, to the extent applicable.

            Article 28.  The distribution of administrative resources of the General Budget of the National Administration for the year 1994 - Human Resources - Item 5000 - Ministry of the Economy and Public Works and Services, Programme 17 - Definition of Investment, Trade and Public Services Policies and Programme 21 - Regulation of the Postal Services shall be amended, as set out in detail in the tables annexed to the present Article which form an integral part thereof.

            Article 29.  The General Budget of the National Administration for 1994, Item 5000 - Ministry of the Economy and Public Works and Services, Programme 17 - Definition of Investment, Trade and Services Policies and Programme 21 - Regulation of the Postal Services shall be amended, in accordance with the details set out in the tables annexed to the present Article which form an integral part thereof.

            Article 30.  The operating expenses of the National Commission of Foreign Trade shall be charged for the year 1994 to the budget of the Secretariat for Trade and Investment, in the amounts established in the tables annexed to Article 29 of the present Decree.  The draft budget law for 1995 shall make provision for the corresponding charges and credits for the entity which is being established.

            Article 31.  The Decree shall be promulgated, published, transmitted to the National Directorate for Official Records and filed.  MENEM.  Domingo F. Cavallo.
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Note:   The tables annexed to Articles 28 and 29 are not published.