Colombia

V. Review of Antidumping and Countervailing Duty Determinations

A. Annual Reviews

   The requests for review referred to in this chapter should be submitted to the Trade Practices Bureau of INCOMEX, or to its Regional or Departmental Offices.

   If submitted to a Regional or Departmental Office, the request shall be understood to have been submitted two days after it is filed, which is the time period available to the Regional or Departmental Offices to forward it to the above-noted Office of INCOMEX. The request shall contain at least the following information and evidence:

         1. Identification of the requesting party.

         2. Name and address of other interested parties, when that information is available.

         3. Evidence of what is intended to shown.

         4. Declaration of the likely effects of eliminating or modifying the duty subject to review or examination.

         5. The argument that eliminating the duty would give rise to the continuation or recurrence of the dumping and the injury.

         6. Identification and justification of confidential information, and non-confidential summary thereof.

   If it is indicated that said information cannot be summarized, the reasons why it is not possible to present a summary should be set forth.

         7. Offer to present the additional documents that are required to the authorities, as well as to facilitate verification of the information supplied. For the reviews provided for in Article 64 of this decree, the information required in paragraphs 4 and 5 shall not be required by the authority.

   Nonetheless, the information on its normal value and export prices should be submitted. For the purposes of communicating that the request meets the requirements, and of evaluating it, as well as for initiating the review or examination, the procedure shall be pursuant to the provisions of Article 43, first and second paragraphs, and Articles 44 and 46, all of this decree. The decision as to whether it is merited to initiate a review or an examination shall depend on the request being timely, submitted by a person with standing to do so, and being properly justified and accompanied by the evidence of the facts intended to be shown. The notice to participate in the review or examination shall be governed by the provisions of Article 47 of this decree. Notwithstanding the foregoing, the interested parties shall have two months, counted from publication of the notice, to declare their willingness to participate in the review or examination, and within that time frame shall provide the information requested by INCOMEX for this purpose.

   In addition, they are to attach a statement, accompanied by the evidence supporting their assertions, on the likely effects of eliminating the duty under review. When there are motives that so justify, the General Bureau [Dirección General] of INCOMEX may extend this term, by reasoned order, only once, for up to 15 calendar days. This extension applies for all those who seek to respond to the notice.

   If the notice is not answered by the interested parties, in those cases in which the examination discussed at Article 62 of this decree is undertaken by INCOMEX on its own initiative, INCOMEX shall order that the investigation be closed. In that case, the Ministry of Foreign Trade, within 30 calendar days after the expiration of the notice period, shall order elimination of the duty imposed, by reasoned order. The absence of participants in the reviews discussed at Article 60 of this decree shall lead to the closing of the procedure.

   In this event the final duty and the expressions of intent shall be maintained without modification. Within four months following the expiration of the term for the production of evidence, INCOMEX, based on the evidence and information available or based on the best available information, shall prepare a technical report with which it shall conclude the review or examination provided for in this chapter.

   The report should contain INCOMEX's findings and conclusions on the relevant issues of fact and law. In the report with which the review or examination is concluded a recommendation should be made to maintain, modify, or eliminate the final antidumping duty or to accept the expressions of intent. INCOMEX, within the period indicated in this article, shall convene the Committee on Trade Practices in order to present the final results of the review or examination, for the Committee to give its opinion.

   The period indicated here may be extended by INCOMEX for up to one month, when it deems that special circumstances so merit. If as a result of a review performed pursuant to this chapter it is concluded that maintaining a final antidumping duty is not justified, the Ministry of Foreign Trade shall eliminate it immediately, and shall so inform the Bureau of National Taxes and Customs (DIAN).

B. Duty Refund Review

   When INCOMEX, after investigating, determines that the antidumping duties paid by the importer are greater than the actual margin of dumping, it shall order the refund of the overpayment in question.

   That refund shall be made by the Bureau of National Taxes and Customs (DIAN). The importer of the product subject to the final antidumping duties may request that INCOMEX undertake an investigation for the refund of the duties paid in excess of the real margin of dumping in the immediately preceding year.

   The request must be submitted within 60 days of the end of that period. The request shall contain information on the amount of the refund of antidumping duties claimed with respect to the period in question and shall be accompanied by the declaration of imports and all other relevant supporting documents that show its calculation and payment. The request for investigation addressed in this article should include evidence of the normal value and of the export prices to Colombia, with respect to the exporter or producer to which the duty has been applied.

   In the event that the importer is not related to the producer or exporter and does not immediately provide that information, or when the producer or exporter does not want to provide it to the importer, the request shall be accompanied by a declaration from the producer or exporter that the margin of dumping has been reduced or eliminated and that the relevant evidence will be provided directly to INCOMEX.

   If these have not been received within two months of the submission of the request, it shall be considered that the petition has been abandoned and it shall be ordered closed.

   In the investigations discussed in this Chapter, the provisions regarding the procedure indicated for reviews due to changes in circumstances and five-year examinations shall be observed.

C. Sunset Review

   Notwithstanding the provisions of Article 60 and 61 of this decree, all final antidumping duties shall be eliminated no later than five years counted from the date of their imposition, or from the date of the last review, if it had encompassed both dumping and the injury, or from the last examination to which this article refers, unless, pursuant to an examination initiated prior to that date on its own initiative or upon petition, duly founded, by or on behalf of the branch of domestic production, with a prudential period prior to that date, it is determined that the elimination of the antidumping duty imposed would make possible the continuation or recurrence of the injury and the dumping sought to be corrected.

   The examination may be initiated on its own initiative no later than two months prior to the fifth year, counted as provided for in the previous paragraph, or at the request of the branch of domestic production, in which case the petition should be submitted at least four months prior to the expiration of the fifth year. The final antidumping duties shall continue to be applied until the results of the examination are obtained. If it is concluded as a result of the review that it is not necessary to maintain the undertakings acquired by the expression of intent, the Ministry of Foreign Trade shall order their termination, by order, as well as the termination of the investigation, if it is suspended. In addition to those described in Article 65 of this decree, these requests must meet at least the following requirements:

         1. Showing that the petition is submitted by the branch of domestic production or on its behalf.

         2. Precise indication of the antidumping duty sought to be reviewed.

         3. Accounting and financial information regarding the production, sales, inventories, prices, and profits, and information on installed capacity and employment. This information should be submitted pursuant to the legislation in force and it should be signed by a public accountant or the statutory auditor of the company.

         4. Description of the demand for and sales of the domestic product like the product to which the antidumping duty is being applied, dating back to the imposition of the duty sought to be revised.

   The order that mandates the elimination or modification of a final antidumping duty shall state whether such duties should be refunded by the Bureau of National Taxes and Customs (DIAN), and shall forward its decision to that entity so that it may act accordingly. In the examinations and reviews performed pursuant to the provisions of Chapter IX of this decree, INCOMEX shall determine whether there is a likelihood that eliminating a duty imposed or terminating an acceptance of an expression of intent will provoke the continuation or recurrence of a significant injury within a foreseeable period. In so doing, it shall consider the real or potential volume of imports, their effects on prices and possible effects of the imports of the product subject to the final duty or of the acceptance of expressions of intent on the branch of domestic production if the final duty imposed or the expression of intent accepted were revoked.

   INCOMEX shall take into consideration the following factors, among others:

         
• The previous determinations on the existence of injury, including the volume, effect on prices, and repercussions of the imports of the product on the branch of domestic production.
           
• The improvements that have resulted, from the duty imposed or from the expressions of intent, in the conditions of the branch of domestic production and,
           
• Whether the branch of domestic production is susceptible to significant injury if the duty imposed were eliminated or are expressions of intent terminated.

   In gauging the likely volume of imports of the product subject to the final duty or the acceptance of expressions of intent, if the final duty is eliminated or the expressions of intent terminated, INCOMEX shall examine whether the likely volume of dumped imports would be significant if the duty imposed is eliminated or the expression of intent terminated, either in absolute terms or in relation to production or consumption in Colombia.

   In its analysis, INCOMEX may take account of all relevant economic factors, including the following:

         
• Any likely increase in production capacity or existing unused production capacity in the exporting country.
           
• Current stocks of the product in the exporting country subject to antidumping duties or an expression of intent, as well as their likely increases and,
           
• A list of obstacles to importing the product subject to antidumping duties or an expression of intent into countries other than Colombia.

   Upon evaluating the likely effects on the prices of imports of the product on which the final duty is imposed or the expression of intent is made, if either of these is revoked, INCOMEX shall taken account of the likelihood that the imports of that product will enter Colombia at prices that would provoke a drop in or exercise significant downward pressure on the prices of like domestic products.

   On evaluating the possible effects on the branch of domestic production of imports of the product on which the final duty is imposed or that is the subject of the acceptance of the expressions of intent if the final duty is eliminated or if the acceptance of the expression of intent is terminated, INCOMEX shall take into account all relevant economic factors that may impact on conditions in the branch of domestic production in Colombia, including, among others, the following:

         
• The likely declines in production, sales, market share, benefits, productivity, profits, and use of capacity.
           
• The likely negative effects on efforts to develop and further production in the branch of domestic production, including efforts to develop a derived or more advanced version of the like domestic product.
           
• INCOMEX shall evaluate all relevant economic factors described in this article in the context of the business cycle and the conditions of competition characteristic of the branch of production in question.
           
• The presence or absence of any of the factors that INCOMEX should take into account for the purpose of issuing its opinion on the possibility that the significant injury may continue or recur within a foreseeable time period, if the final duty is eliminated or the acceptance of the expressions of intent are considered terminated, do not require it to reach a positive determination as to the existence of such a possibility.

   On making such a determination, INCOMEX may take into account that the effects of eliminating the duty imposed or terminating the acceptance of the expressions of intent may not be imminent, but that they will only become apparent over a more prolonged period. In the reviews and examinations provided for in this decree, INCOMEX may evaluate cumulatively the volume and effect of the imports of the product subject to the final duty or of the acceptance of the expressions of intent from all those countries for which examinations or reviews are initiated, so long as they are in the same procedural stage, if there is any possibility that such imports would compete with one another and with the like domestic products in the Colombian market. Nonetheless, INCOMEX may not effectuate the cumulative evaluation described in the previous paragraph when it determines that it is likely that such imports will not have considerable negative effects on the branch of domestic production.

   On undertaking an examination pursuant to the provisions in this decree, INCOMEX shall determine whether there is any possibility that eliminating the duty imposed or terminating the acceptance of an expression of intent will provoke the continuation or recurrence of sales of the product in question at below its normal value.

   For such purposes, INCOMEX shall take into account:

         
• The weighted average of the margins of dumping determined in the investigation and in the later examinations, if any, and
           
• The volume of imports of the product for the previous period and the period after the imposition of antidumping duties or the acceptance of the expressions of intent.

   In addition to the factors indicated in this decree, if there are well-founded motives for doing so, INCOMEX shall also take into account other factors such as the prices, costs, markets, or other economic facts it deems relevant, if any. Margins of dumping that are de minimis shall not constitute, per se, sufficient grounds for INCOMEX to determine that there is not a likelihood that eliminating a final duty or terminating an acceptance of an expression of intent will provoke the continuation or recurrence of the sales at below their normal value.

D. Changed Circumstances Review

   INCOMEX, at its own initiative at any time, or at the request of an interested party, so long as at least one year has elapsed from the imposition of final antidumping duties or from the acceptance of the expressions of intent, may initiate a review process for the purpose of determining whether changes have taken place in the circumstances that led to such imposition or acceptance that are sufficient to warrant a modification of that determination.

   When a foreign producer or exporter subject to the imposition of a final duty lowers the export price so as to annul the corrective effect of the duty, the procedure provided for herein shall be applied. In any event, an interested party who requests a review should show whether a change in circumstances has taken place so as to justify its position. In the request for review interested parties may ask INCOMEX to examine the margins of dumping, the normal value, and/or the export price determined during the immediately preceding year, and, as a result of that review, to modify or eliminate the duty imposed, or to terminate the acceptance of the expression of intent. In addition, the interested parties may ask INCOMEX to examine whether it is necessary to maintain the final antidumping duty, or to accept the expression of intent, to offset the negative effects of the dumping to be corrected, as well as the likelihood that the injury will continue or recur in the event that the duty is eliminated or modified or the acceptance of the expression of intent terminated.

   In the examinations and reviews performed pursuant to the provisions of Chapter IX of this decree, INCOMEX shall determine whether there is a likelihood that eliminating a duty imposed or terminating an acceptance of an expression of intent will provoke the continuation or recurrence of a significant injury within a foreseeable period.

   In so doing, it shall consider the real or potential volume of imports, their effects on prices and possible effects of the imports of the product subject to the final duty or of the acceptance of expressions of intent on the branch of domestic production if the final duty imposed or the expression of intent accepted were revoked. INCOMEX shall take into consideration the following factors, among others:

   The previous determinations on the existence of injury, including the volume, effect on prices, and repercussions of the imports of the product on the branch of domestic production. The improvements that have resulted, from the duty imposed or from the expressions of intent, in the conditions of the branch of domestic production and, Whether the branch of domestic production is susceptible to significant injury if the duty imposed were eliminated or the expressions of intent terminated. In gauging the likely volume of imports of the product subject to the final duty or the acceptance of expressions of intent, if the final duty is eliminated or the expressions of intent terminated, INCOMEX shall examine whether the likely volume of dumped imports would be significant if the duty imposed is eliminated or the expression of intent terminated, either in absolute terms or in relation to production or consumption in Colombia.

   In its analysis, INCOMEX may take account of all relevant economic factors, including the following:

         
• Any likely increase in production capacity or existing unused production capacity in the exporting country.
           
• Current stocks of the product in the exporting country subject to antidumping duties or an expression of intent, as well as their likely increases and,
           
• A list of obstacles to importing the product subject to antidumping duties or an expression of intent into countries other than Colombia.

   Upon evaluating the likely effects on the prices of imports of the product on which the final duty is imposed or the expression of intent is made, if either of these is revoked, INCOMEX shall taken account of the likelihood that the imports of that product will enter Colombia at prices that would provoke a drop in or exercise significant downward pressure on the prices of like domestic products.

   On evaluating the possible effects on the branch of domestic production of imports of the product on which the final duty is imposed or that is the subject of the acceptance of the expressions of intent if the final duty is eliminated or if the acceptance of the expression of intent is terminated, INCOMEX shall take into account all relevant economic factors that may impact on conditions in the branch of domestic production in Colombia, including, among others, the following:

         
• The likely declines in production, sales, market share, benefits, productivity, profits, and use of capacity.
           
• The likely negative effects on efforts to develop and further production in the branch of domestic production, including efforts to develop a derived or more advanced version of the like domestic product.

   INCOMEX shall evaluate all relevant economic factors described in this article in the context of the business cycle and the conditions of competition characteristic of the branch of production in question. The presence or absence of any of the factors that INCOMEX should take into account for the purpose of issuing its opinion on the possibility that the significant injury may continue or recur within a foreseeable time period, if the final duty is eliminated or the acceptance of the expressions of intent are considered terminated, do not require it to reach a positive determination as to the existence of such a possibility.

   On making such a determination, INCOMEX may take into account that the effects of eliminating the duty imposed or terminating the acceptance of the expressions of intent may not be imminent, but that they will only become apparent over a more prolonged period. In the reviews and examinations provided for in this decree, INCOMEX may evaluate cumulatively the volume and effect of the imports of the product subject to the final duty or of the acceptance of the expressions of intent from all those countries for which examinations or reviews are initiated, so long as they are in the same procedural stage, if there is any possibility that such imports would compete with one another and with the like domestic products in the Colombian market.

   Nonetheless, INCOMEX may not effectuate the cumulative evaluation described in the previous paragraph when it determines that it is likely that such imports will not have considerable negative effects on the branch of domestic production. On undertaking an examination pursuant to the provisions in this decree, INCOMEX shall determine whether there is any possibility that eliminating the duty imposed or terminating the acceptance of an expression of intent will provoke the continuation or recurrence of sales of the product in question at below its normal value.

   For such purposes, INCOMEX shall take into account:

         
• The weighted average of the margins of dumping determined in the investigation and in the later examinations, if any, and
           
• The volume of imports of the product for the previous period and the period after the imposition of antidumping duties or the acceptance of the expressions of intent.

   In addition to the factors indicated in this decree, if there are well-founded motives for doing so, INCOMEX shall also take into account other factors such as the prices, costs, markets, or other economic facts it deems relevant, if any. Margins of dumping that are de minimis shall not constitute, per se, sufficient grounds for INCOMEX to determine that there is not a likelihood that eliminating a final duty or terminating an acceptance of an expression of intent will provoke the continuation or recurrence of the sales at below their normal value.

E. New Shipper Review

1. Antidumping

   INCOMEX, at the request of an exporter or producer of the product dumped, may initiate a review procedure to determine the individual margins of dumping.

   For the purposes provided for in the previous paragraph, the exporter or producer of the product on which antidumping duties were imposed must submit a request accompanied by documentation showing that:

         1. The exporter or producer did not export the product on which antidumping duties were imposed during the period of the investigation, and

         2. The exporter or producer is not related to any other exporter or producer of the country exporting the product on which antidumping duties were imposed in Colombia.

         3. INCOMEX shall proceed to undertake an examination in order to determine an individual weighted average of the margin of dumping for that exporter or producer.

         4. The procedure applicable to such examinations shall be that established in this chapter, but the time period shall be reduced to one-fourth.

   While the examination discussed in this article is under way, the Ministry of Foreign Trade shall suspend the imposition of antidumping duties on the exports of those producers or exporters.

   Nonetheless, the imports since the beginning of the procedure may be subject to security interests while it is determined whether final antidumping duties will be imposed on the exports of those producers or exporters, and their individual margins of dumping.

   If it is decided they will be imposed, the antidumping duties may also be set retroactively, from the date the review procedure is initiated.

2. Countervailing

   Same provisions as in the previous section.

3. Judicial, Administrative or Other Review

   Decree 991/98 does not regulate judicial and administrative reviews.

   With regard to administrative reviews, the rulings issued by the appropriate authority upon the adoption of antidumping measures and countervailing duties are subject to special revocation reviews determined by the same authority that issued the ruling, or by its immediate superior, in cases stipulated in Article 69 et seq. Of the Code of Administrative Law.

   With regard to judicial reviews, the action of nullification contemplated in Article 84 ibidem can be exercised within the jurisdiction of Administrative Law.

F. Procedures for Due Process

1. Notification of Initiation of Investigation

   INCOMEX shall avoid all publicity on the submission of a petition for investigation until the decision has been made to initiate the investigation.

   Nevertheless, from the time the request is approved and before the initiation of the investigation, INCOMEX shall notify the government of the interested exporting country of the submission of said petition.

   If after evaluating the petition INCOMEX deems it justified to initiate an investigation, it shall so order, by reasoned order, which shall be published, the day after it is issued, in the Gaceta of the Ministry of Foreign Trade, INCOMEX Chapter.

   If it does not find such justification, it shall so order in a reasoned order in the same terms. Within the following seven (7) working days, counting from the day after the publication of the order to initiate the investigation, INCOMEX shall forward to the foreign producers, to exporters it is aware of, and to the authorities of the exporting country, the text of the petition submitted by the petitioners and it shall make it available to other interested parties who so request, bearing in mind the rule on preserving the confidentiality of the information.

   In cases in which the number of exporters in question is very high, the text of the petition shall be forwarded only to the authorities of the exporting country or to the appropriate trade association or union.

2. Questionnaires (Distribution, Response Time, Extensions, Supplements)

   Within the following seven working days, counted from the day following the publication of the order initiating the investigation, INCOMEX shall forward the text of the request submitted by the petitioners to the foreign producers, to the exporters it is aware of, and to the authorities of the exporting country, and shall make it available to the other interested parties who so request, mindful of the rule on preserving the confidentiality of confidential information.

   In those cases in which the number of exporters in question is very high, the text of the request shall only be forwarded to the authorities of the exporting member country or the relevant business or trade association. The questionnaires and responses to them, as well as the forwarding of the request to the exporters and authorities of the exporting country, shall be governed by the respective provisions of Articles 47 and 48 of this decree.

   Notwithstanding the foregoing, the interested parties shall have two months from the date the questionnaires are sent out to return them, properly filled out, as provided by Article 47 of this decree. When there are motives so justifying, the General Bureau of INCOMEX may, by reasoned order, extend this period, only once, for up to 15 calendar days.

   This extension applies to all the interested parties who should respond to the questionnaires. Once the time periods for responding to the questionnaires have lapsed, those who have not expressed interest may not be considered interested parties in the proceeding.

   This does not keep them from submitting the information they deem relevant, which may be taken into account by INCOMEX.

   When INCOMEX deems necessary, new questionnaires shall be forwarded after the preliminary determination, within seven (7) working days after the order adopting the preliminary determination is issued.

   The interested parties must respond to the questionnaires within 45 working days, counting from the date the questionnaires are forwarded by INCOMEX.

   Responses must be accompanied by supporting evidence and documents as well as a list of evidence intended to be used.

3. Publication of Antidumping and Countervailing Duty Determinations

   The order by which the preliminary determination is adopted shall be published in the Official Gazette of the Ministry of Foreign Trade, INCOMEX Chapter, the day after its issuance.

   Within seven calendar days following said publication, a copy of the same shall be forwarded to the same member country or countries whose products are the subject of the determination or undertaking in question, as well as to all other interested parties who have expressed interest in the investigation and have provided their address.

   Within seven calendar days following the adoption of the recommendation by the Committee on Trade Practices, discussed in the final paragraph of article 54 of Decree 991/98, the Ministry of Foreign Trade shall adopt its decision by reasoned order. The order with which the final decision is adopted shall be published the day after its issuance in the Gaceta of the Ministry of Foreign Trade, INCOMEX Chapter.

   Within seven days following its publication, a copy shall be sent to the member country or countries whose products are the subject of the determination or undertaking in question, and to all other interested parties who have expressed interest in the investigation and have provided their address.

4. Access to Public Information

   In the course of the investigation any person may have access to the non-confidential documents addressed by this decree and may request photocopies of them, in the manner provided for in the Contentious-Administrative Code.

5. Access to Confidential Information

   INCOMEX, on initiating the proceeding, shall keep a separate file for those documents that the authorities, petitioner, or interested parties provide as confidential.

   Such documents shall be handled confidentially, as provided for in the Constitution, and may only be examined by the authorities. Those who provide confidential documents should attach non-confidential summaries of them, as well as the justification of the request for confidential treatment.

   Such summaries shall be sufficiently detailed to allow for a reasonable understanding of the substance of the information provided confidentially.

   In exceptional circumstances, where a sufficient showing is made, those parties may indicate that such information cannot be summarized.

   If INCOMEX considers that the documents provided as confidential documents should not be so considered, it shall request the person providing them to lift their confidential status, or to show why he refrains from doing so. The confidential nature of a document may not be raised as an objection to a request for it made by the authorities in the proper performance of their functions.

   The authorities are responsible for ensuring the confidential handling of such documents when they are considered in the course of the proceedings referred to by this decree. The information provided confidentially shall not be revealed without express authorization of the party who has provided it. In implementing the provisions of this article, when documents are provided as confidential documents and the respective non-confidential summaries are not attached, or the confidentiality is not mentioned, or the confidentiality is not lifted when INCOMEX so requests, or the reasons why the party providing the documents refrains from doing so are not given, or when they are not duly justified, it is possible to ignore the documentation submitted as confidential, unless a convincing showing is made, from an appropriate source, that the information is correct. In the proceedings provided for in this chapter, the rules on access to the file and confidentiality of confidential documents provided for in Articles 58 and 59 should be observed.

6. Decision Making Process (Ministerial Approval, Commission Vote, etc.)

   After the interested parties in the investigation have been afforded an opportunity to put forward their arguments, and on the basis of the available evidence and information, INCOMEX shall convene the Trade Practices Committee, to report on the findings of the investigation, within a period of three months from the date of publication of the resolution containing the preliminary determination, in order for the Committee to form an opinion. The period indicated may be extended by up to one month when INCOMEX considers that special circumstances so permit.

   If the Trade Practices Committee asks INCOMEX for additional information on the findings of the investigation, the meeting may be suspended for the time deemed necessary.

   Once the Committee's opinion has been given, INCOMEX shall send, within the following three (3) calendar days, to the interested parties in the investigation, a document with the essential facts on which the decision of whether or not to apply final measures is based, so that within 10 calendar days they may submit their written comments concerning same to the Committee.

   Said comments may not refer to facts or circumstances not expressed until the expiration of the term set out in Article 53 of Decree 991/98.

   Responses should be forwarded to the Secretariat of the Trade Practices Committee, which must be submitted to the Committee together with the respective technical comments of INCOMEX, within 10 calendar days, so that the Committee may evaluate them and submit the final recommendation to the Ministry.

   The Ministry of Foreign Trade shall adopt the appropriate decision in a reasoned resolution seven (7) calendar days after the adoption of the recommendation by the Trade Practices Committee included in the last paragraph of Article 54 of Decree 991/98.

G. Application and Collection of Duties

1. Suspension of Liquidation

   Liquidations are not suspended.

2. Use of Bonds or Cash Deposits

   In the cases in which provisional antidumping actions are taken, the importers, on presenting their declaration of imports, may opt to pay the respective duties or to establish a security interest in the Bureau of National Taxes and Customs (DIAN) to guarantee their payment.

    The security interest shall be established for the time period indicated in the order adopting the duty and pursuant to the relevant customs regulations.

3. Methods of Liquidation

   There may be refunds of provisional duties paid, or the cancellation or reduction in the charge by reason of the security interest established for such purposes, as the case may be, when:

         1. The final duties are less than the provisional duties paid, or guaranteed in an amount equal to the difference between them.

         2. In the event that final duties are not imposed, the cancellation and return of the security interest or of all sums paid as provisional duties shall be ordered.

   The Bureau of National Taxes and Customs (DIAN) shall refund the overpayments as provided for in Title III of Decree 1909, of 1992, and any laws that replace, modify, or amend it.

H. Other

1. Anti-Circumvention

   Circumvention shall be understood to exist when there is a change in the characteristics of the trade between third countries and Colombia deriving from a practice, process, or work for which there is no adequate economic cause or justification other than the establishment of the duty, and evidence that the corrective effects of the law are being offset with respect to the prices and/or quantities of the like product. If the measures in force are circumvented, the antidumping duties established pursuant to this decree may be expanded so as to apply to like products or parts of the same coming from third countries.

   An assembly operation in Colombia or in a third country shall be considered to circumvent the measures in force when the following conditions occur:

         1. The parts or components have been obtained in the country subjected to the duty in force, from the exporter or producer to whom the final duty is applied, from suppliers of the exporter or from the producer or from a part of the exporting country that supplies it on behalf of the exporter or producer.

         2. A product assembled or finished with those parts or components in Colombia is like the product subject to final duties.

         3. There is evidence of dumping of the product produced with those parts, which results from comparing the price of the product once assembled or finished in Colombia with the previously established normal value of the like product when it was subjected to the final antidumping duty.

         4. The operation began or increased substantially from the moment the antidumping investigation was initiated or just before it had been initiated.

         5. The parties constitute 60% or more of the total value of the parts of the assembled product; nonetheless, circumvention shall not be considered to exist when the total value added of the parts used during the assembly operation is greater than 25% of the production cost.

   The factors listed in this article may be evaluated in an investigation that will be initiated when the request contains sufficient evidence of the factors mentioned therein.

   An investigation shall be initiated by a reasoned order. The investigations shall be undertaken by INCOMEX, which may draw on the assistance of the customs authorities, and it shall be concluded within eight months.

   When the facts finally verified justify expanding the measures, it will be so decided by the Ministry of Foreign Trade, which, in its pronouncement, may impose final antidumping duties.

   To this end, the procedural provisions of this decree regarding the initiation and development of investigations shall be followed.

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