WORLD TRADE  
ORGANIZATION  WT/DS416/1 
G/L/931 
G/SG/D38/1 
21 October 2010 
 
 (10-5453) 
 Original:   Spanish 
 
 
 
DOMINICAN REPUBLIC - SAFEGUARD MEASURES ON IMPORTS OF 
POLYPROPYLENE BAGS AND TUBULAR FABRIC 
 
Request for Consultations by Guatemala  
 
  The following communication, dated 15 Oct ober 2010, from the delegation of Guatemala to 
the delegation of the Dominican Republic and to the Chairman of the Dispute Settlement Body, is 
circulated in accordance with  Article 4.4 of the DSU. 
 
_______________ 
 
  I have received instructions from the authorities of my country to request consultations with 
the Dominican Republic pursuant to Article 4 of the Understanding on Rules and Procedures 
Governing the Settlement of Disputes (DSU), Artic le XXII of the General Agreement on Tariffs and 
Trade 1994 (GATT 1994), and Article 14 of the Ag reement on Safeguards concerning the provisional 
and definitive safeguard measures imposed by th e Dominican Republic on imports of polypropylene 
bags and tubular fabric and the investigation that led to the imposition of those measures. 
 
A. B
ACKGROUND AND MEASURES AT ISSUE  
 The measures at issue were imposed pursuant to an investigation conducted by the Regulatory 
Commission on Unfair Trade Practices and Safe guard Measures of the Dominican Republic 
(hereinafter "the Commission").  1. Initiation of the safeguard investigation 
 On 15 December 2009, at the request of the comp any Fersan S.A. (hereinafter "Fersan"), the 
Commission declared the initiation of an investigati on with a view to the application of safeguard 
measures on imports from all origins of polyprop ylene bags and tubular fabric classified under 
subheadings 5407.20.20, 6305.33.10 and 6305.33.90 of the Tariff of the Dominican Republic (hereinafter "the initiating resolution").
1  On 17 December 2009, the Commission published a notice 
of initiation of an investigation.2 
  In its initial technical report
3, the Commission indicated that during the initial phase of the 
investigation it would examine the trends for polyp ropylene bags and tubular fabric jointly, since 
according to the requesting company, the two produc ts constituted one and the same final product.  
Moreover, the Commission pointed out that the domestic industry was made up solely of producers 
                                                      
1 Commission Resolution CDC-RD-SG-046-2009 of 15 December 2009. 
2 Notice, general safeguard investigation concerning textiles of man-made filament yarn and bags of 
polyethylene and polypropylene, dated 15 December 2009. 
3 Initial technical report of the Commission dated 20 November 2009. WT/DS416/1 
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  that manufactured both polypropylene bags and tubular  fabric as part of the same production process.  
The Commission also considered that the unforeseen development that led to the increased imports 
was the cuts resulting from the Free Trade Ag reement between Central America and the 
Dominican Republic.  As regards the analysis of serious injury, understood as significant overall 
injury, the Commission found that there had been a loss of profits and an increase in stocks.  Finally, 
the Commission pointed to the existence of fact ors other than imports (e.g. increased costs, 
investment, and bank indebtedness) that apparen tly had a bearing on the state of the domestic 
industry. 
 
2. Preliminary determination 
 On 16 March 2010, the Commission decided to impose a provisional safeguard of 38 per cent 
on imports of polypropylene bags and tubular fa bric classified under subheadings 5407.20.20 and 
6305.33.90 of the Tariff of the Dominican Republic.
4  The duration of the provisional safeguard 
measure is 200 days.  On 25 March 2010, the Co mmission published a notice of application of 
provisional measures on imports of polypr opylene bags and tubular fabric.5  In that notice and in the 
preliminary resolution, the Commission pointed out th at pursuant to Article 9.1 of the Agreement on 
Safeguards, the provisional safeguard measures wo uld not apply to imports from Mexico, Panama, 
Colombia and Indonesia.  
 Guatemala has several concerns with respect to  the preliminary determination, including, but 
not limited to, those set forth below.  Based on the preliminary technical report
6, the Commission 
decided that during the preliminary phase of the inves tigation, it would continue to examine the trends 
for polypropylene bags and tubular fabrics jointly.  The Commission also pointed out that Fersan represented the entire domestic industry, since it w as the only company that covered all stages of the 
manufacturing process of the product under investig ation.  Moreover, the Commission appears to 
have assumed that the unforeseen development that le d to the alleged increase in imports was the cuts 
resulting from the Free Trade Agreement between Central America and the Dominican Republic and the Dominican Republic-Central America-United States Free Trade Agreement (DR-CAFTA).  As regards the analysis of serious injury to the domes tic industry, understood as significant overall injury, 
the Commission found that there had been a loss of  profits and an increase in stocks.  Finally, the 
preliminary determination identified certain factors that had a bearing on the state of the domestic 
industry (e.g. increased costs and bank indebtedness).  
3. Final determination 
 On 5 October 2010, the Commission decided to  impose a definitive safeguard of 38 per cent 
on imports of polypropylene bags and tubular fa bric classified under subheadings 5407.20.20 and 
6305.33.90 of the Tariff of the Dominican Republic.
7  The Commission then issued a notice of 
application of the definitive measures on impor ts of polypropylene bags and tubular fabric.8  In that 
notice and in the final resolution, the Commission pointed out that pursuant to Article 9.1 of the 
                                                      
4 Resolution CDC-RD-SG-061-2010 of the Regulatory Commission on Unfair Trade Practices and 
Safeguard Measures of the Dominican Republic, dated 16 March 2010 ("Preliminary Resolution"). 
5 Notice, general safeguard investigation concer ning tubular fabric and polypropylene bags, 
25 March 2010. 
6 Preliminary technical report of  the Commission (without date). 
7 Resolution CDC-RD-SG-089-2010 of the Regulatory Commission on Unfair Trade Practices and 
Safeguard Measures of the Dominican Republic, dated 5 October 2010 ("Final Resolution"). 
8 Notice, general safeguard investigation concerning tubular fabric and polypropylene bags, dated 
6 October 2010.  WT/DS416/1 
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 G/SG/D38/1 
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  Agreement on Safeguards, the definitive safegua rd measures would not apply to imports from 
Mexico, Panama, Colombia and Indonesia.  
 Guatemala has several concerns with respect to the final determination, including, but not 
limited to, those set forth below.  Based on the final technical report
9, the Commission assumed that 
polypropylene bags and tubular fabric constitu ted a single product under investigation.  The 
Commission also reaffirmed its view that Fersan constituted the entire domestic industry, since it was 
the only company manufacturing the product under investigation starting with the resin.10  
Furthermore, the Commission appears once again to have assumed that the unforeseen development 
that led to the alleged increase in imports was the cuts resulting from the Free Trade Agreement 
between Central America and the Dominican Repub lic and from DR-CAFTA.  The Commission also 
considered that the accession of China to the WT O was a development that "could not have been 
foreseen by the domestic industry at the time wh en the Dominican Republic subscribed to the 
measures contained in Article XIX of the GATT 1994".11  Finally, as regards the analysis of serious 
injury to the domestic industry, the Commission pointed out that the domestic industry "suffered significant financial losses during the period under investigation, as eviden ced by the increase in 
stocks, the decrease in cash flow, and the sharp decline in production."
12  At the same time, the 
Commission refers to certain factors other than impor ts that apparently had an impact on the domestic 
industry (e.g. increase in costs and bank indebtedness). 
 
B. LEGAL BASIS FOR THE COMPLAINT  
 According to Article 11.1(a) of the Agreemen t on Safeguards, a Member shall not take or 
seek a safeguard action unless such action conforms with the provisions of Article XIX of the GATT 1994 applied in accordance with the Agreement on Safeguards. 
 
 Guatemala is deeply concerned about certa in aspects of the safeguard measures and the 
underlying investigation, including, inter alia , the methodology, calculations, comparisons, 
determinations, and procedures or practices used by  the Dominican Republic in the framework of the 
investigation and the imposition of the safeguards.  
 In particular, Guatemala considers that: 
 
(a) The preliminary and final determinations  do not contain reasoned and adequate 
findings and conclusions with respect to the determinations relating to the product 
under investigation, the domestic like pr oduct, and the domestic industry.  These 
omissions appear to be inconsistent with Articles 2.1, 3.1, 4.1(a), 4.1(c), 4.2(a), 
4.2(b), 4.2(c) and 6 of the Agreement on Safeguards, and Article XIX:1(a) of the 
GATT 1994. 
(b) The preliminary and final determinations  do not contain reasoned and adequate 
findings and conclusions to substantiate the alleged unforeseen developments and to 
explain how those developments resulted in increased imports of the specific products 
covered by the safeguard measure.  These om issions appear to be inconsistent with 
Articles 3.1, 4.2(a) 4.2(c), 6 and 11.1(a) of the Agreement on Safeguards and Article XIX:1(a) of the GATT 1994. 
                                                     
 
9 Final technical report of the Commission, dated 13 July 2010. 
10 Final technical report, page 47. 
11 Final technical report, page 66. 
12 Final Resolution, paragraph 38. WT/DS416/1 
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  (c) Moreover, the preliminary and final dete rminations do not contain reasoned and 
adequate findings and conclusions with respect  to the alleged effect of the obligations 
incurred under the GATT 1994, and how that effect would have resulted in increased 
imports of the specific products covered by  the safeguard measure.  These omissions 
appear to be inconsistent with Articles 3.1, 4.2(a), 4.2(c), 6 and 11.1(a) of the 
Agreement on Safeguards and Artic le XIX:1(a) of the GATT 1994. 
(d) Nor do the preliminary and final determin ations contain reasoned and adequate 
findings and conclusions with respect to the alleged increase in imports of the specific 
products under investigation, in absolute terms or relative to domestic production.  
These omissions appear to be contrary to Articles 2.1, 3.1, 4.2(a), 4.2(b), 4.2(c), 
and 6 of the Agreement on Safeguards a nd Article XIX:1(a) of the GATT 1994. 
(e) Furthermore, although the state of the domes tic industry was found to be favourable, 
the preliminary and final determinations  do not contain reasoned and adequate 
findings and conclusions as to the existence of the alleged serious injury, understood 
as significant overall impairment of the domestic industry.  Nor does the preliminary determination contain any reasoned and ad equate findings and conclusions with 
regard to the critical circumstances to justif y the provisional measure, or with regard 
to all of the factors that are required to be  examined for the determination of serious 
injury.  These omissions appear to be inc onsistent with Articles 2.1, 3.1, 4.1(a), 
4.2(a), 4.2(b), 4.2(c) and 6 of the Agreem ent on Safeguards and Article XIX:1(a) of 
the GATT 1994. 
(f) Nor, at the same time, do the preliminary and final determinations contain reasoned 
and adequate findings and c onclusions regarding the causal link between the alleged 
increase in imports and the serious injury to th e domestic industry.  In particular, they 
contain no demonstration that the injury to the domestic industry caused by other 
factors was not attributed to the imports of the products under investigation.  These omissions appear to be contrary to Articles 2.1, 3.1, 4.2(a), 4.2(b), 4.2(c) and 6 of 
the Agreement on Safeguards and Ar ticle XIX:1(a) of the GATT 1994. 
(g) The measures at issue are applied only to products imported from certain countries of 
origin and/or consignment.  Moreov er, the required parallelism between the 
substantive evaluation of the determinations  on the one hand, and the coverage of the 
measures at issue on the other, was not r espected.  These omissions appear to be 
inconsistent with Articles 2.1, 2.2, 4. 2, 5.1, 6 and 9.1 of the Agreement on 
Safeguards, and Article XIX:1(a) of the GATT 1994. 
(h) The preliminary and final determinations do not contain any reasoned and adequate 
findings and conclusions as to the reasons wh y certain information was considered to 
be confidential without requiring non-confid ential summaries or why that information 
could not be summarized in a non-confidential manner.  These omissions appear to be 
contrary to Articles 3.1 and 3.2 of the Agreement on Safeguards. 
(i) It would appear that the resolutions and reports made public concerning the 
preliminary and final determinations do not contain the reasoned and adequate 
findings and conclusions on all issues of fact and law supporting the imposition of the 
measures in question.  This omission app ears to be inconsistent with Articles 3.1 
and 4.2(c) of the Agreement on Safeguards.  WT/DS416/1 
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 G/SG/D38/1 
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  (j) Finally, the Dominican Republic failed to provide the Members having a substantial 
interest as exporters of the products con cerned adequate opportunity for consultations 
prior to the adoption of the definitive measure.  This omission appears to be 
inconsistent with Article 12.3 of the Ag reement on Safeguards and Article XIX:2 of 
the GATT 1994. 
 In addition to the above consid erations, Guatemala reserves its ri ght to raise other matters that 
may arise during the consultations in relation to th e measures at issue and their application under the 
Agreement on Safeguards and the GATT 1994. 
 
 In view of the above, I look forward to recei ving your reply to this request as soon as 
possible.  I propose that the date and venue of these consultations be agreed between our 
two Missions.  
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