Brazil: Draft National Trade Estimate

UNCLAS SECTION 01 OF 07 BRASILIA 002193 SIPDIS SENSITIVE SIPDIS DEPT FOR EB/TPP/BTA AND WHA DEPT PASS USTR - KDUCKWORTH/GBLUE E.O. 12958: N/A TAGS: ETRD KIPR EFIN ECON BR SUBJECT: Brazil: Draft National Trade Estimate REF: STATE 119763 ¶1. (U) Per reftel, set forth in paragraph 2 below is the text of post's draft of the National Trade Estimate. Post notes a new industrial policy is expected to be announced before the holidays, which may affect the subsidiaries and investment sections. ¶2. (SBU) Begin Text. TRADE SUMMARY The U.S. goods trade deficit with Brazil was $1.636 billion through September 2007, a decrease of $4.579 billion from the same time period in 2006. U.S. goods exports through September 2007 were approximately $17.564 billion, up 28.75 percent from the same time the previous year. Corresponding U.S. imports from Brazil through September 2007 were approximately 19.2 billion, down 3.3 percent from the same period in 2006. Brazil is currently the 13th largest export market for U.S. goods (as of September). (Data most up-to-date available from U.S. Census,www.census.gov/foreign-trade/balance/c 3510.html. U.S. exports of private commercial services (i.e., excluding military and government) to Brazil were $7.6 billion in 2006, and U.S. imports were $2.8 billion. Sales of services in Brazil by majority U.S.-owned affiliates were $10.7 billion in 2005 (latest data available),while sales of services in the United States by majority Brazilian-owned firms were $540 million. The stock position (on a historical cost basis) of U.S. foreign direct investment (FDI) in Brazil in 2006 was $32.6 billion, up from $29.6 billion in 2005. U.S. FDI in Brazil is concentrated largely in the manufacturing, finance, and banking sectors. IMPORT POLICIES Brazil's average applied tariff rate was 11.46 percent as of September 2007, an increase from the November 2006 average applied tariff of 10.59 percent, caused in large measure by increases in tariffs on textiles (from 18 percent to 26 percent) and on footwear and apparel (from 20 percent to 35 percent). Brazil is a member of Mercosul, a customs union formed in 1991 and comprised of Argentina, Brazil, Paraguay, and Uruguay. Bolivia, Chile, Colombia, Ecuador, and Peru have individually become affiliated with Mercosul as Associate Members between 1996 and 2004. Venezuela was proposed as a full member in 2005, although the process of completely integrating the Caracas regime into the bloc will take time, if its accession is approved by all Mercosul members. Full common external tariff (CET) product coverage scheduled for implementation in 2006 has been delayed. CETs range from zero percent to 35 percent ad valorem, with a number of country-specific exceptions. Currently, Brazil maintains its maximum allowable 100 exceptions to the CET. High CETs significantly impede increased imports of U.S. agricultural products, distilled spirits, and computer and telecommunications equipment. Brazil applies additional federal and state taxes and charges that can effectively double the actual cost of importing products into Brazil. One safeguard measure is in place against grated coconut. A number of imports are prohibited, including foreign blood products, all used consumer goods such as machinery, automobiles, clothing, refurbished medical equipment and tires. A 25 percent merchant marine tax on long-distance freight at Brazilian ports puts U.S. agricultural products at a competitive disadvantage to Mercosul products. Brazil applies a 60 percent flat import tax on most manufactured retail goods imported via mail and express shipment by individuals that go through a simplified customs clearance procedure called RTS (simplified tax regime). Goods with a value of over US $3000 cannot be imported using this regime. Import Licensing/Customs Valuation All importers must register with the Secretariat of Foreign Trade (SECEX) to access Brazil's "SISCOMEX" computerized trade documentation system. SISCOMEX registration requirements are onerous, including a minimum capital requirement. The new updated SISCOMEX system, installed in early 2007, cut the wait time for import-export license processing almost in half. In addition, fees are assessed for each import statement submitted through SISCOMEX. Most imports into Brazil are covered by an "automatic import license" regime. Brazil's non-automatic import licensing system includes imports of products that require authorization from specific ministries or agencies such as beverages (Ministry of Agriculture),pharmaceuticals (Ministry of Health),and arms and munitions (National Defense Ministry). Although a list of products subject to non-automatic import licensing procedures is published on the Brazilian Ministry of Development, Industry and Trade website, BRASILIA 00002193 002 OF 007 (www.desenvolvimento.gov.br /arquivo/secex/conPorImportacao/AnuentesLInao Auto.pdf),specific information related to non-automatic import license requirements and explanations for rejections of non-automatic import license applications are lacking. These measures have made importing into Brazil less transparent and more cumbersome for U.S. exporters. U.S. companies continue to complain of onerous and burdensome documentation requirements, which are required before certain types of goods can enter Brazil - even on a temporary basis. For example, the Ministry of Health's regulatory agency, ANVISA, must approve product registrations for imported pharmaceuticals, medical devices, health and fitness equipment, cosmetics, and processed food products. Currently, the registration process at ANVISA takes about three to six months for new versions of existing products, but can take over six months to register products new to the market. Registration of pharmaceutical products can take over one year, since ANVISA requires that a full battery of clinical testing be performed in Brazil, regardless of whether or not the drug already has FDA approval. ANVISA implemented regulations late last year (regulation 185) to comply with federal legislation (Law 10742, which came in force in October 2003). This regulation now requires companies to submit economic information (some of it proprietary) including projected worldwide pricing intentions, in order to register medical devices. Attempts by industry representatives to challenge this new requirement have been unsuccessful thus far, and no new devices have been registered since it was established. Implementation of such import measures not only delays entry of state-of-the-art U.S. pharmaceutical and medical products into the Brazilian market; it also renders it impossible for U.S. companies to demonstrate new-to-market goods at industry trade shows. The United States has raised a concern with Brazil that the state of Rio de Janeiro administers the ICMS tax (a value-added tax collected by individual states) in a way that provides a preferential tax advantage to a Brazilian soda ash supplier located within the state. Although the tax is designed to be refunded upon export of goods outside of the country, exporters in many states have had difficulty receiving rebates of the ICMS, if at all. Similarly, some U.S. companies have raised concerns about the arbitrary application of various quotas and non-automatic import licensing procedures, such as authorizations from the Federal Police and the Nuclear Regulatory Agency. For example, Brazil maintains extremely restrictive import quotas and requires non-automatic import license approval for imports of lithium compounds, including lithium carbonate and lithium hydroxide, citing the potential nuclear applications of these products. These products, however, are widely available without restriction in global markets. The United States has raised this issue with Brazil on several occasions, both bilaterally and in the WTO. STANDARDS, TESTING, LABELING AND CERTIFICATION Sanitary and Phytosanitary Measures While some progress has been made in the area of sanitary and phytosanitary measures, significant issues remain that restrict U.S. agricultural and food exports. For example, due to concerns about bovine spongiform encephalopathy (BSE),Brazil restricts U.S. exports of low-risk beef without scientific justification and contrary to the World Animal Health Organization (OIE). Brazil continues to prohibit the import of poultry and poultry products from the entire United States. Sound scientific justifications for these restrictions have not been provided. Brazil's ban on wheat from the states of Washington, Oregon, Idaho, California, Nevada, and Arizona due to phytosanitary concerns remains in place. While the United States understands that some of these SPS measures are being rewritten, the ban continues to adversely affect U.S. agricultural exports. Biotechnology Brazil's President signed into law the country's first Biosafety Bill (Law 11105) on March 24, 2005, replacing the previous legal framework in use since 1995 under which agricultural biotechnology was developed in Brazil. This law, which also includes provisions for stem cell research, became effective on March 28, 2005 after its publication in Brazil's official registry (Diario Oficial). Implementing regulations for the law were issued by presidential decree on November 23, 2005. President Lula signed Law Number 11460 on March 21, 2007 which altered provisions of the Biotech Law Number 11105. The main change involves reduction of the number of votes needed on the 27 member National Technical Commission of Biosafety (CTNBio) board (from BRASILIA 00002193 003 OF 007 two-thirds to a simple majority) to approve individual biotech proposals. No biotech events had been approved since CTNBio became operational in 2006, creating a backlog of over 500 events, due to the use of administrative maneuvers and red tape by board members who are environmentalists or members of anti-biotech groups. The CTNBio has approved 3 biotech events since May 2007, but the decisions are currently blocked by a court injunction. GOVERNMENT PROCUREMENT Brazil is not a signatory to the WTO Agreement on Government Procurement, and transparency in Brazil's procurement processes is at times lacking. The United States government has received complaints concerning lack of transparency and preferences for Brazilian products in tenders for government and hospitals, including for domestically produced medical equipment. Limitations on foreign capital participation in procurement bids reportedly impair access for potential service providers in the energy, construction, security and defense sectors. Brazilian federal, state and municipal governments, as well as related agencies and companies, in general follow a "buy national" policy. Law 8666 (1993),which covers most government procurement other than informatics and telecommunications, requires non-discriminatory treatment for all bidders regardless of the nationality or origin of the product or service. However, the law's implementing regulations allow consideration of non-price factors, giving preferences to certain goods produced in Brazil and stipulating local content requirements for eligibility for fiscal benefits. Decree 1070 (1994),which regulates the procurement of information technology goods and services, requires federal agencies and parastatal entities to give preferences to locally produced computer products based on a complicated and nontransparent price/technology matrix. However, Brazil permits foreign companies with legal entities in the country to compete for procurement-related multilateral development bank loans and opens selected procurements to international tenders. EXPORT SUBSIDIES The Government of Brazil offers a variety of tax, tariff, and financing incentives to encourage production for export and the use of Brazilian-made inputs in domestic production. For example, Brazil's National Bank for Economic and Social Development (BNDES) provides long-term financing to Brazilian industries through several different programs. The interest rates charged on this financing are customarily lower than the prevailing market interest rates for domestic financing. One BNDES program, FINAME, provides capital financing to Brazilian companies for, among other things, expansion and modernization projects as well as acquisition or leasing of new machinery and equipment. One goal of this program is to support the purchase of domestic over imported equipment and machinery. These programs can be used for financing capacity expansions and equipment purchases in industries such as steel and agriculture. On November 21, 2005, Brazil's President signed Law 11196 which contains provisions originally included in Provisional Measures (MP) 255/2005 and 252/2005 (commonly referred to as MP do Bem) that provide tax benefits to qualifying exporters. The law's Special Regime for the Information Technology Exportation Platform (REPES) suspends PIS/PASEP and COFINS (social security) taxes on goods and services imported by companies that commit to export software and information technology services to the extent that those exports account for over 80 percent of annual gross income. The MP's Special Regime for the Acquisition of Capital Goods by Exporting Enterprises (RECAP) suspends these same taxes on new machines, instruments and equipment imported by companies that commit for a period of at least three years to exports goods and services such that they account for at least 80 percent of overall gross income. Brazil restored tax breaks to exporters with the enactment of Law 11529, which went into effect on October 22. This measure attempts to help industries hurt by the strengthening real. This law allows certain Brazilian industrial sectors (textiles, furniture, ornamental stones, woodworking, leatherworking, shoes, leather goods, heavy and agricultural machinery manufacturers, apparel and automotive - including parts) to apply PIS (social integration program)-COFINS tax credits to the purchase of capital goods, both domestic and imported, to be used for manufacturing finished products. The law also expands the government's program for exporting companies purchasing capital goods. To be exempt from paying the 9.25 percent PIS-Cofins tax on these purchases, companies must prove they derive at least 70 percent of their revenues from exportation. This benchmark was lowered to 60 percent for companies in the sectors covered by the legislation. INTELLECTUAL PROPERTY RIGHTS (IPR) PROTECTION BRASILIA 00002193 004 OF 007 Patents and Trademarks Law 10196 (2001) includes some problematic provisions, including a requirement that National Health Surveillance Agency (ANVISA) approval be obtained prior to the issuance of a pharmaceutical patent. This raises concerns with respect to transparency and compliance with Article 27 of the TRIPS agreement, which U.S. officials have communicated to Brazilian counterparts, and has contributed to a backlog in patent issuance. Invoking TRIPS provisions, on May 4 Brazil issued a compulsory license for Merck Sharp & Dohme's anti-retroviral drug efavirenz (brand name: Stocrin),used in treating HIV/AIDS after a breakdown in negotiations with the company. The Brazilian government cited the need for cost savings in its free public treatment program for HIV victims. Although Brazil's patent backlog remains high, estimated at between 130,000 and 150,000 applications, the GoB has taken concrete steps to streamline processing, including an upgrade of its outdated computer system. Over the past two years it has increased the number of patent and trademark examiners over 155% from 180 to 460 and increased median salaries 50% to retain experienced employees. In mid-2006, the National Institute of Industrial Property (INPI) instituted a new system of streamlined, paperless processing for trademarks. By the end of 2007, the GoB estimates that new patent applications will be adjudicated within five years of submission; by the end of 2009 the goal is within four years. The GoB has also raised trademark approvals almost six-fold since 2003 and expects to shorten processing time to less than a year by the end of 2007, down from the current 18 month wait. The U.S. Patent and Trademark Office (USPTO) is working with INPI to help that agency in its modernization efforts. A group of INPI biotechnology patent examiners is expected to return from an eight-month training course at USPTO facilities in January 2007. This year, at its General Assembly meeting, WIPO appointed INPI an International Searching Authority (ISA) and International Preliminary Examining Authorities (IPEAs) under the Patent Cooperation Treaty (PCT) for international patent applications. In 2006, Brazil announced plans to join the Madrid Agreement Concerning the International Registration of Mark ("Madrid Protocol"),but the executive branch yet to submit this proposal the Brazilian Congress for approval. Should this plan be realized, rightsholders who seek trademark protection in Brazil would then be able to take advantage of a streamlined international trademark registration system, making Brazil the first country in South America where this system is available. The United States government has also received complaints that unauthorized copies of pharmaceutical products have received sanitary registrations that rely on undisclosed tests and other confidential data, raising concerns of consistency with TRIPS SIPDIS Article 39.3. Law 10603 (2002) on data confidentiality covers pharmaceuticals for veterinary use, fertilizers, agrotoxins, and their components and related products. The law does not cover pharmaceuticals for human use. If the product is not commercialized within two years of the date of sanitary registration, third parties may request use of the data for registration purposes. Copyrights Brazil's Law 9610 (1998) on copyrights included changes intended to bring Brazil into compliance with the Berne Convention and TRIPS. A 1998 software law protects computer programs for 50 years as "literary works," and makes software infringement a fiscal and an intellectual property crime. Brazil is not a party to the World Intellectual Property Organization Treaties on Copyright, and Performances and Phonograms. Piracy remains a serious problem. The International Intellectual Property Alliance (IIPA) estimated losses due to piracy of copyrighted materials in Brazil totaled at least $927.8 million in ¶2006. The U.S. government has engaged intensively with the Brazilian government on copyright enforcement in recent years. IPR enforcement efforts by the government of Brazil led to a substantial increase in 2006 seizures of counterfeit goods over the previous year. In recognition of its improved anti-piracy enforcement efforts, USTR upgraded Brazil's status to "Watch List" in its Special 301 Report in 2007 with an "Out-of-Cycle Review" to monitor continued improvement of the intellectual property enforcement in the country. SERVICES BARRIERS BRASILIA 00002193 005 OF 007 Telecommunications The telecommunications sector was privatized following the passage of the 1997 General Telecommunications Law, but has presented some regulatory challenges. In the fixed-line sector, for example, interconnection charges and other incumbency advantages have provided strong barriers to entry, and the companies created during a transitional duopoly stage have not fared well. Brazil has not yet ratified its original WTO basic telecommunications commitments. In 2001, Brazil withdrew its schedule of commitments due to concerns raised by certain WTO Members that it maintained the legal prerogative of the Executive Branch to limit foreign participation in this sector, thereby creating significant uncertainty for investors. This legal prerogative is contained in Brazil's 1997 General Law on Telecommunications and is inscribed in Brazil's constitution. While Brazil has not pursued the constitutional change required to allow a revision of its offer to open up this sector, the current regulatory environment generally reflects the obligations contained in the WTO Basic Telecommunications Reference Paper. Audio Visual Services Brazil limits foreign ownership of cable and media companies, and has some restrictions on foreign programming contents. Foreign ownership of cable companies is limited to 49 percent, and the foreign owner must have a headquarters in Brazil and have had a presence in the country for the prior ten years. Foreign cable and satellite television programmers are subject to an eleven percent remittance tax. The tax, however, can be avoided if the programmer invests three percent of its remittances in co-production of Brazilian audio-visual services. National cable and satellite operators are subject to a fixed title levy on foreign content and foreign advertising released on their channels. Law 10610 (2002) limits foreign ownership in media outlets to 30 percent, including the print and "open broadcast" (non-cable) television sectors. Brazil's legislature is considering extension of this restriction to cover Internet Service Providers, pay TV channels and operators, and content producers and distributors. Such a change would pose a serious threat to a number of U.S. companies operating in Brazil as content producers/distributors. Open television companies are also subject to a regulation requiring that 80 percent of their programming content be domestic in origin. Law 10454 (2002) aims to promote the national film industry through creation of the National Film Agency (ANCINE) and through various regulatory measures. The law imposes a fixed title levy on the release of foreign films in theaters, foreign home entertainment products, and foreign programming for broadcast television. Remittances to foreign producers of audiovisual works are subject to a 25 percent income withholding tax. Brazilian distributors of foreign films are subject to a levy equal to 11 percent of their withholding taxes. This tax, called the CONDECINE (Contribution to the Development of a National Film Industry),is waived for the Brazilian distributor if the producer of the foreign audiovisual work agrees to invest an amount equal to 70 percent of the income withholding tax on their remittances in co-productions with Brazilian film companies. The CONDECINE tax is also levied on any foreign cinematographic or video phonographic advertisement. The fee may vary according to the advertising content and the transmission segment. Brazil also requires that 100 percent of all films and television shows be printed locally. Importation of color prints for the theatrical and television markets is prohibited. Theatrical screen quotas for local films exist. Quotas on domestic titles for home video distributors, while not currently enforced, present another potential hindrance to commerce. Express Delivery Services A bill (PL 1491/99) that would reorganize the National Postal System, thought to be a potential threat to U.S. express delivery businesses, has been under consideration in the Brazilian Congress since 1999. The proposal, as it stands now, would create a regulatory agency for postal services as well as a new Postal Company of Brazil, owned and operated by the federal government. Although the bill would end the government monopoly over postal services after a ten-year period, it would also create a monopoly on the delivery of certain types of correspondence and parcels that are not now subject to regulation, such as express delivery packages, thereby significantly inhibiting market access by U.S. firms. The Lula Administration has sent a message to the Brazilian Congress requesting that the bill be withdrawn, but to date the Brazilian BRASILIA 00002193 006 OF 007 Congress has not acted on this request. Brazil applies a 60 percent flat import tax on most manufactured retail goods imported by individuals that go through a simplified customs clearance procedure called RTS (simplified tax regime) that is used by express delivery services and prohibits commercial imports via the express channel. This flat tax substantially increases the cost to consumers of using express delivery services. Brazilian Customs is in the process of switching to an automated express delivery clearance system, which will significantly reduce customs clearance times for express packages once it is implemented. Customs originally expected to complete implementation of the system by the end of 2007, however a revised schedule now calls for completion in the first quarter of ¶2008. After implementation of this system is complete, Customs has plans to redraft express delivery regulations to remove some current of the restrictions on express delivery. The U.S. Government is engaging the Brazilian government on use of ATA Carnets. The ATA Carnet will ease the temporary importation of commercial samples, professional equipment, and goods for exhibitions and fairs. Financial Services Brazil has not yet ratified its commitments from the 1997 Financial Services negotiations (known as the Fifth Protocol) or taken the necessary steps to make them binding under the General Agreement on Trade in Services (GATS). Brazil is South America's largest insurance market and earnings from premiums have grown rapidly in recent years. In 1996, Brazil eliminated the distinction between foreign and domestic capital, and many major U.S. firms have since entered the market mainly via joint ventures with established companies. Article 192 of the Brazilian Federal Constitution, along with Article 52 of the Transitory Provisions, requires a presidential decree to permit foreign investments in domestic financial institutions. Additionally, Article 18 of Law 4595/64 determines how authorizations may be obtained for foreign institutions to operate in the Brazilian markets. In practice, a number of these presidential decrees have been granted based on a determination that the investment is in the national interest. On January 15, 2007, Complementary Law 126 was published in Brazil, eliminating the previous state monopoly on reinsurance, which had been in place since 1939. Previously the domain of the government controlled Brazilian Institute of Reinsurance (IRB),the regulation of co-insurance, reinsurance and retrocession (the practice of one reinsurance company essentially insuring another reinsurance company by accepting business that the other company had agreed to underwrite) transactions and their intermediation will be handled by the National Private Insurance Council (CNSP) with oversight from the insurance supervisory body, the Brazilian Private Insurance Superintendence (SUSEP). The IRB will continue operating in the market only as a local reinsurer. The new law authorizes three different types of reinsurance companies to operate in Brazil: -- local reinsurers: reinsurers with registered offices in Brazil and incorporated for the sole purpose of conducting reinsurance and retrocession transactions; -- "admitted" reinsurers: reinsurers with registered offices abroad and with a representative office in Brazil, which, in compliance with the requirements of the Complementary Law and the rules applicable to reinsurance and retrocession activities, has registered as such with SUSEP for the conduct of reinsurance and retrocession transactions; and -- "eventual" reinsurers: foreign reinsurance companies with registered offices abroad that do not have a representative office in Brazil, which, upon compliance with the requirements established in the Complementary Law and with the rules applicable to reinsurance and retrocession activities, has registered as such with SUSEP to conduct reinsurance and retrocession transactions. Service trade opportunities in some sectors have been affected by limitations on foreign capital participation. Brazil's constitution precludes the expansion of foreign-owned banks until new financial sector legislation is issued. For practical reasons, the required legislation has not been issued, but Brazil's President has the authority to authorize new foreign participants on a case-by-case basis. In practice, Brazil has approved the great majority of foreign service suppliers to enter the market or expand existing operations. United States financial service suppliers have established significant operations in Brazil. As of December 2006, Central Bank records indicate that foreign-owned or controlled assets accounted for 24.8 percent of Brazil's total banking sector equity. INVESTMENT BARRIERS In addition to restrictions discussed above, Law 7565 (1986) restricts foreign investment in domestic airline companies to a maximum of 20 percent. Foreign ownership of land adjacent to national borders remains prohibited under Law 6634 (1979),unless BRASILIA 00002193 007 OF 007 approved by Brazil's National Security Council. U.S. and other foreign firms have major investments in Brazil, with the U.S. accounting for around one-fifth of total foreign investment, per Central Bank statistics. There is neither a bilateral investment treaty nor a treaty on the avoidance of double taxation between the United States and Brazil. (Note: A new industrial policy is due to be announced before Christmas. End Note.) Energy In 2004, Brazil began implementing new energy legislation to restructure the power generation and distribution sector. The new legislation gives the state a leading role in determining, for example, how much new power capacity is needed based on forecasts by an independent Energy Research Institute (IPE),which was created in ¶2005. The new model separates into two different competition groups power generators that have not yet amortized their investments (new energy) and those that have (old energy),based on whether a facility had been built by a certain cut-off date. This dual-pool structure has disadvantaged some U.S. companies that invested in the sector during privatization in the late 1990s and whose investments have not been amortized, but which are nevertheless included in the old energy pool. The Brazilian government is still in the midst of implementing the new model. This year the Government of Brazil plans to open bids for new hydroelectric power plants in an attempt to avoid projected power shortages that private industry estimates forecast to occur as soon as 2009. In contrast, government officials have projected that electrical energy shortages will not begin until 2015 at the current rate of growth in energy consumption, particularly in the electrical and natural gas sectors, by both industrial and residential consumers. Industry sources and media reports predict an earlier date, claiming that measures taken by the Brazilian government to avoid an energy shortage will be insufficient largely due to environmental restrictions that delay the implementation of new hydroelectric and other power sources. End Text. SOBEL