|Free Trade Area of the Americas - FTAA||
Compendium of Antidumping and Countervailing Duty Laws in the Western Hemisphere
D. Changed Circumstances Review
The same as the annual reviews, the review procedure begins officially or at the request of a concerned party, who must appear during the twelfth month after publication of the final decision, having participated in the procedure that gave rise to the final countervailing duty, or at the request of any producer, importer or exporter who, without having participated in such procedure, establishes legal interest under the terms of Articles 100, first paragraph, and 101 of the Regulations. The Secretariat issues forms for presentation of the petition for review of final countervailing duties, which must be duly answered by the parties concerned requesting such review. In accordance with the provisions of Article 101 of the Regulations, the party concerned may ask the following of the Secretariat in the petition: I. In the case of a foreign exporter or an importer of the goods in question: A. That the individual price discrimination margin be examined or considered, and B. If appropriate, that the countervailing duty be changed or lifted. II. If the petitioner is a national producer: A. That examination be made of the standard value and export price determined during a specific period, in the course of normal trade operations, with respect to one or several foreign exporters, and B. If appropriate, that the countervailing duty be confirmed or increased. Moreover, during the procedure the national producer may ask that an examination be made as to whether modification or lifting of the final countervailing duty would cause the damage or threat of damage to recur, for which purpose the producer has the obligation to provide the pertinent evidence. Within 30 days after presentation of the petition (Article 103 of the Regulations), the Secretariat must: I. Accept the petition and declare initiation of the review through the corresponding decision, which must be made known to the parties concerned. II. Ask the petitioner for further evidence or data, which must be provided within 30 days after receipt of the notice. If the material requested is provided satisfactorily, within 20 days the Secretariat shall proceed in accordance with the provisions in the preceding action. If it is not provided on time and does not constitute the items and data requested, the petition shall be abandoned and the petitioner shall be personally notified, or III. Dismiss the petition when suitable information or evidence that would justify it is not presented, and notify the petitioner personally. II. Publication of the decisions made in the review procedure. During the review procedure three decisions are announced: one on initiation, one preliminary, and another final. These must be published in the Official Daily Gazette of the Federation and must meet the requirements indicated in the Law and Regulations. In addition, in accordance with the provisions of Article 99 of the Regulations, the review procedure must be in keeping with matters related to conciliatory hearings, countervailing duties, commitments by exporters and governments, evidence, allegations, public hearings, technical meetings for information, notifications, verifications and other provisions common to procedures. III. Purpose of the review and duration of the countervailing duties. The final countervailing duties remain in effect for the time and to the extent they may be necessary to counteract the unfair practice that is causing damage or threat of damage to national production, as provided for in Article 67 of the Law. In the review procedure the parties may assume price commitments, ending the review (Articles 68 and 72 of the Law). During the review the parties concerned have the option to secure payment therefor. This security is made in the manner and under the terms provided for in the Fiscal Code of the Federation (Article 102 of the Regulations). If, upon reviewing the final countervailing duty, the Secretariat finds that such duty is no longer justified or that the price discrimination margin no longer exists, it must be lifted at once. Under the later assumption, the Secretariat must conduct an official review for three consecutive years during the anniversary month, as established in Article 105 of the Regulations. If the Secretariat finds from the review that the price discrimination margins have changed with relation to those having brought about the final countervailing duties, any new duties established must replace the former ones. Such duties are final and may be reviewed under the terms of the applicable legislation, as provided for in Article 106 of the Regulations.
E. New Shipper Review
Neither the Law nor its Regulations contain provisions related to reviews for new exporters.
Nevertheless, the provisions of Article 9.5 of the Antidumping Code of the 1994 GATT must be observed.
Neither the Law nor its Regulations contain provisions related to reviews for new exporters.
Nevertheless, the provisions of Article 19.3 of the Code on Subsidies of the 1994 GATT must be observed.
3. Judicial, Administrative or Other Review
Judicial Review Articles 13 of the Antidumping Agreement and 23 of the Agreement on Subsidies of the 1994 GATT indicate that members must maintain judicial, arbitral or administrative tribunals or procedures aimed at prompt review of administrative measures related to final decisions and their review.
They also indicate that such tribunals must be independent of the authorities responsible for the investigation or review in question.
In the case of Mexico, reviews are held before the Fiscal Tribunal of the Federation.
In order for a final decision on unfair trade practices to be contested before the Fiscal Tribunal of the Federation, the Appeal of Revocation (Article 94 of the Law) must first be exhausted.
This is carried out and settled in accordance with the provisions of the Fiscal Code of the Federation.
The objection before the Upper Chamber of the Tribunal is conducted through a proceeding in accordance with the provisions of the Fiscal Code (Article 95 of the Law).
Article 239 bis of the Fiscal Code of the Federation reads as follows: "The Upper Chamber of the Fiscal Tribunal of the Federation, officially or at the justified request of the corresponding Regional Chamber of the Secretariat of Treasury and Public Credit, may settle proceedings which, due to their special features, so merit".
These features are assumed by proceedings in which:
I. The value of the business is one hundred times the general minimum wage in effect for the geographic area of the Federal District on an annual basis.
II. For its settlement it is necessary to establish the direct interpretation of a law for the first time or to establish the scope of the essential parts of a contribution. If the Upper Chamber decides to exercise the authority referred to in this article officially, it shall so inform the Regional Chamber before the latter admits the answer to the complaint. The petition by the aforementioned Secretariat may be presented before such admission is decided upon, in writing addressed to the Upper Chamber, through the corresponding Regional Chamber and accompanied by the necessary records. When the Regional Chamber proposes that a matter be settled by the Upper Chamber, it shall agree to send the latter the petition in the writ admitting the answer to the complaint. The Regional Chamber shall notify the parties personally of the decisions of the Upper Chamber admitting the petition or officially deciding to settle the proceeding.
When notification is made, they shall be required to indicate a domicile for receiving notifications at the seat of the Upper Chamber and to designate a person authorized to receive them; or in the case of the authorities, they shall be required to indicate such seat to their representatives, warning the parties themselves that if they do not do so they will be notified by public notice of the decision handed down by the Upper Chamber. Once the proceedings of the trial have been closed, the Regional Chamber shall transmit the original file to the Upper Chamber.
After this has been received, the President of the Upper Chamber shall appoint a reporting judge. "The purpose of the appeal for annulment is that the Secretariat itself revoke, modify, or confirm the decision contested. Decisions handed down upon settling this appeal are final".
Decisions that are not appealed in the period established by the Fiscal Code of the Federation shall be considered accepted and may not be contested before the Fiscal Tribunal of the Federation.
This period is determined in Article 121 of the Fiscal Code of the Federation, which stipulates that the appellate brief must be presented to the authority having issued (Secretariat of Commerce and Industrial Development) or implemented (Secretariat of Treasury and Public Credit) the action contested, within 45 days after its notification has taken effect. Nevertheless, in the case of decisions that may be subject to review through a mechanism for the settlement of disputes, contained in an international treaty or convention to which Mexico is a party, the period for filing the Appeal for Annulment begins to run after the period provided for in the treaty or convention in question has elapsed (Article 98, part 1 of the Law).
The parties concerned who resort to the appeal for annulment or to the proceeding for annulment before the Upper Chamber of the Fiscal Tribunal of the Federation may secure payment of the final countervailing duty as provided for in Article 98, part III, of the Law.
Review of final decisions through alternative mechanisms for the settlement of disputes Final decisions determining final countervailing duties or the actions that implement them may be appealed by the parties concerned through mechanisms for the settlement of disputes in matters of international unfair trade practices contained in the international treaties or conventions to which Mexico is a party (Article 97 of the Law).
If the parties concerned decide to contest a final decision through these alternative mechanisms for settlement, they may not resort to the appeal for annulment or the proceeding before the Upper Chamber of the Fiscal Tribunal of the Federation for review of the same final decision.
Neither may they contest, before the alternative mechanism for the settlement of disputes, the decisions arising from the appeal or from the proceeding, as provided for by Article 97, part I, of the Law.
The parties concerned who appeal to a mechanism for the settlement of disputes may secure payment of the final countervailing duty, in accordance with the provisions of Article 98, part III, of the Law.
Independently from the formal requirements indicated in each international convention, when it is the government of Mexico that initiates a mechanism of this kind, the following rules (Article 117 of the Regulations) must be observed:
1. The party concerned that chooses to appeal to such mechanisms must present a petition in writing containing the following data:
a. The party's name or firm name and domicile, as well as the party's legal representative, including telephone and fax numbers;
b. The domiciles of the parties concerned that appear on the list of remittance;
c. Identification of the final decision that is contested and the authority from which it arises and, when appropriate, the reference to the official publication thereof or, in the event of not being published, the date on which notification of the decision contested was received;
d. Description of the procedure in which the party participated; and
e. The infringements or injuries caused the party by the final decision.
2. Once the petition has been presented, the Secretariat must request, as provided for in the international treaty or convention in question, initiation of the proceeding for the settlement of disputes.
Currently there is the alternative mechanism for the settlement of disputes governed by Chapter XIX of the North American Free Trade Agreement (NAFTA), which consists in review before a binational panel of a final resolution arising from the investigating authority of Mexico, Canada or the United States against imports originating in one of the other two countries. This review procedure is governed in detail in Article 1904 of NAFTA and in its Rules of Procedure.
F. Procedures for Due Process
1. Notification of Initiation of Investigation
In accordance with Article 52 of the Law, when the Mexican authority (the investigating authority) ascertains that there is sufficient evidence to justify opening an investigation against international unfair trade practices, it issues a decision for initiation, which is published in the Official Daily Gazette of the Federation.
On the basis of Articles 53 of the Law and 142 of the Regulations, beginning the day after the day on which the decision for initiation of the investigation is published in the Official Daily Gazette of the Federation, the investigating authority must notify in writing the parties concerned known to it (petitioners, importers, producers, exporters and foreign governments) to appear so as to express whatever suits their right.
Article 145 of the Law indicates that in cases in which the investigating authority does not know the domicile of the persons to be notified, whether they live in Mexico or abroad, notification shall be made through publication in the Official Daily Gazette of the Federation and, one single time, in one of the dailies with major circulation in Mexico.
The latter publication shall contain a summary of the petition in question and of the proceedings instituted. With regard to individuals residing outside the country, the Secretariat shall send the notifications referred to in the preceding paragraph to the diplomatic representatives of the foreign governments, for the purpose of their providing the necessary means to distribute the content of the decisions.
2. Questionnaires (Distribution, Response Time, Extensions, Supplements)
Articles 54 and 55 of the Law indicate that notification of the decision on initiation (mentioned in the preceding item) shall be accompanied by questionnaires requesting of the parties concerned the evidence, information and data the investigating authority considers necessary for its investigation.
Article 164 of the Regulations provides that the parties concerned who receive a questionnaire have 30 working days after publication of the decision for initiation in the Official Daily Gazette of the Federation to prepare their defense and present the information requested. (The period provided for by the Law, as indicated, is expressed in working days, in accordance with the provisions of its Article 30, while the periods under the Agreements are expressed in calendar days. Thus, despite the apparent contradiction between the two sequences, the periods provided for by the Law are in fact longer than those under the Agreements, and therefore there is no inconsistency).
In this regard it is useful to stress that, as indicated in Articles 6.1.1 of the Antidumping Agreement and 12.1.1 of the Agreement on Subsidies, these periods may be extended if, in the opinion of the investigating authority, there are enough facts for its justification.
Nevertheless, in accordance with Articles 54 of the Law and 171 of its Regulations, notwithstanding the foregoing, the investigating authority may accept or request the information, evidence and data after the periods referred to in the preceding paragraph have elapsed, provided that it so deems necessary and that it is necessary for better knowledge of the truth.
3. Publication of Antidumping and Countervailing Duty Determinations
In accordance with the provisions of Articles 44, 52, 57, 59, 60, 68, 71, 73, and 74 of the Law; 93, 95, 96, 97, 100, 104, 108 and 115 of the Regulations; and 12.1 and 12.2 of the Agreement on Application of Article VI of the General Agreement on Tariffs and Trade of 1944; and 22.1 and 22.3 of the Agreement on Subsidies and Countervailing Measures, all the decisions or resolutions the investigating authority adopts are published in the Official Daily Gazette of the Federation. That is, when the investigating authority issues a decision (whatever it may be), public notice must be made as referred to in the Agreement on Application of Article VI of the General Agreement on Tariffs and Trade of 1994 and the Agreement on Subsidies and Countervailing Measures.
4. Access to Public Information
Articles 80 of the Law and 147 of the Regulations indicate that the investigating authority, following a request by the parties and in fulfillment of the requirements provided for in Articles 159 and 160 of the Regulations, allows the examination of all the nonconfidential information contained in the administrative file for the presentation of arguments.
This information may be reviewed by the parties during the proceedings of investigation and review, appeal for annulment, trial before the Upper Chamber of the Fiscal Tribunal of the Federation, and alternative mechanisms for the settlement of disputes in the matter of unfair international trade practices referred to in the international treaties to which Mexico is a party.
Article 53 of the Law sets forth as a general rule that, when the investigating authority makes the initiation of an investigation known to the parties concerned that it has knowledge of and to the authorities of the exporting country, they are sent a copy of the full text of the petition presented and its appendices (with the exception of privileged, confidential and trade information) or, when appropriate, copies of the corresponding documents dealing with official investigations.
The former is sent without the need for a request by the parties concerned.
In addition, Article 80 of the Law states that during the investigative proceedings, at the petition of the parties concerned or their representatives, the investigating authority allows access to all nonconfidential information contained in the administrative file of any other investigation, after 60 working days have elapsed since publication of the corresponding final decision.
5. Access to Confidential Information
In accordance with the provisions of Articles 158 of the Regulations and Articles 6.5 of the Agreement on Application of Article VI of the General Agreement on Tariffs and Trade of 1994 and 12.4 of the Agreement on Subsidies and Countervailing Measures, in order for the information provided by one of the parties concerned to be considered confidential, and for it in turn to be revealed to the individuals who are authorized for such purpose, the party having provided it must state in writing express consent to its being reviewed by the legal representatives of the other parties.
Likewise, only individuals (representatives of the parties concerned in the administrative investigation) who have the authorization of the investigating authority for such purpose are allowed access to confidential information, except for information considered privileged trade information.
For an individual to obtain authorization from the investigating authority to have access to the confidential information, such individual must first meet the requirements provided for in Articles 159 and 60 of the Regulations.
These requirements are:
i) To present to the Secretariat a written request showing the need to review the confidential information;
ii) In the event of being an attorney, to present the official documents attesting to the fact that the petitioner is a duly licensed attorney at law with a degree to practice in national territory, in accordance with the applicable laws. (If the petitioner is not an attorney, such petitioner must be assisted by a duly licensed attorney who has met the requirements referred to in items v) and ix), having common responsibility for the undue use of the confidential information).
iii) To present the original document attesting to representation or a certified copy thereof;
iv) To exhibit the public document attesting to the name and authority of the official of the enterprise granting the representation or a certified copy thereof;
v) To be a resident of Mexico;
vi) To assume and present the commitment of confidentiality under the terms disposed by the Secretariat in accordance with the provisions of the Law and in these Regulations;
vii) To show in writing knowledge of the responsibilities and penalties the individual could incur in the event of violating the confidentiality of the information with which such individual is being entrusted;
viii) To show in writing the reasons for which the confidential information the individual asks to review is relevant to the defense of such individual's case.
In such situation, the Secretariat may determine when it is considered that the confidential information may be useful in the defense of the case in question;
ix) To make a commitment to the Secretariat to return the original versions of notes or summaries drawn up in the review of the confidential information within ten days after the final decision has been handed down;
x) Not to have been convicted through a final and conclusive sentence for an intentional offense or administrative violation;
xi) To have a good personal and professional reputation;
xii) Not to have been a member of, have occupied an executive post in, or have acted as proxy or salaried agent of the enterprise the individual intends to represent nor of any of the concerned adversaries or assistants in the proceedings under way during the past year; and
xiii) Show some kind of security for the amount the Secretariat may establish in accordance with the fiscal laws in the event the individual commits an illegal act.
Article 159 of the Regulations establishes that the confidential information persons authorized by the investigating authority have the right to review shall be for strictly personal use and shall not be transferable for any reason. Article 161 of the Regulations establishes that confidential information shall be reviewed in the offices of the investigating authority and in the presence of an official of that office.
For this purpose the person authorized to access the confidential information shall be given reasonable time to review it, during which time such person will be able to prepare notes or summaries.
Likewise, when it so deems desirable, the investigating authority may provide copies of such information, indicating the requirements the authorized person must observe in handling such information and for its return.
In accordance with part VI of Article 93 of the Law, assuming that the confidential information is disclosed or used for personal benefit, a fine shall be levied proportional to the damage caused or to the benefit obtained by the disclosure or use of such information.
This shall be without prejudice to the corresponding criminal and civil penalties.
6. Decision Making Process (Ministerial Approval, Commission Vote, etc.)
Final decisions shall be adopted by the head of the Secretariat of Commerce and Industrial Development or, in the head's absence, by one of the Assistant Secretaries of the branch, as indicated in Article 42 of the Internal Regulations of the Secretariat.
Nevertheless, in accordance with the provisions of Articles 60 and 58 of the Law, once the administrative investigation has ended, the draft decision is presented to the Committee on External Trade, whose opinion shall be included in the corresponding decision.
In the case of reviews of final decisions, in accordance with the provisions of Article 68 of the Law, the draft must also be submitted to the Commission for its opinion.
G. Application and Collection of Duties
1. Suspension of Liquidation
The Law and its Regulations indicate the instances in which the countervailing duty is not implemented, that is, its payment is suspended and steps are taken for its revocation, release of the security furnished, or return of the sums that might have been paid.
1. The Secretariat may revoke or change the temporary countervailing duties in the final decision (Article 59, parts I and II of the Law).
2. The parties may reach a settlement, which shall be approved by the Secretariat and shall be in the nature of a final decision.
In accordance with such settlement, the countervailing duties may be revoked, the security furnished shall be released, or the sums that might have been paid shall be returned (Articles 61 of the Law and 86 to 88 of the Regulations).
3. If there is a change in circumstances and damage or a threat of damage no longer exists, the final countervailing duties shall be revoked (Article 67 of the Law).
4. In the annual reviews of the final countervailing duties, the Secretariat may issue a decision changing or revoking them (Article 68 of the Law).
5. The final countervailing duties shall be eliminated when, in a period of five years from their entry into effect, none of the parties concerned has requested their review nor has the Secretariat initiated a review officially (Articles 70 of the Law and 109 of the Regulations).
6. When it has been possible to firm up a commitment on prices of exporters and governments, the Secretariat may suspend or end the investigation.
In the event the Secretariat accepts the commitment of the exporter or of the government concerned, it shall issue the appropriate decision declaring the administrative investigation suspended or ended.
The parties concerned shall be notified of the decision and it shall be published in the Daily Official Gazette of the Federation (Articles 72 and 73 of the Law and 110 to 116 of the Regulations).
7. The Secretariat may revoke or return the countervailing duties or release the security furnished in observance of a decision by a mechanism for the settlement of disputes, the sentence of a higher tribunal, or the result of an appeal for annulment (Article 94 of the Regulations).
8. If it is decided in the review that there is no price discrimination margin, the final countervailing duty shall be revoked and the Secretariat shall conduct an official review for three years during the anniversary month (Article 105 of the Regulations).
9. When the petitioning enterprise abandons its claim after the preliminary decision imposing a countervailing duty has been published, it shall be revoked (Article 137, part II, of the Regulations).
In cases in which countervailing duties are revoked or changed definitively, steps shall be taken to release or modify the security furnished or, if appropriate, to return with the corresponding interest the amounts that may have been paid on such account or the corresponding differences. (Article 65, paragraph 2, of the Law).
2. Use of Bonds or Cash Deposits
Article 65 of the Law indicates that the Secretariat of the Treasury and Public Credit may accept the security furnished in accordance with the Fiscal Code of the Federation in matters of temporary countervailing duties. Article 141 of the Fiscal Code indicates what kinds of fiscal security may be applied:
1. Cash deposits in credit institutions authorized for such purpose, which may generate interest, which may be withdrawn;
2. Collateral or mortgages;
3. Financing by an authorized institution, which shall not enjoy benefits of order and discussion;
4. Joint and several obligations assumed by a third party who shows suitability and solvency;
5. Attachment through official channels;
Security remains in effect until its release is admissible and must be furnished in favor of the Treasury of the Federation.
The forms of security may be combined and may also be replaced one for another, in which case, before releasing the original security, the replacement must be furnished, when the one whose replacement is intended is not callable. The Law and its Regulations govern the reasons for collecting or releasing the security furnished under the procedure against unfair international trade practices.
In accordance with Article 70 of the Regulations of the Fiscal Code, the security may be released in the following cases:
1. By replacement of security;
2. When the decision that gave rise to the granting of the security is definitely null and void;
3. In any other instance where it should be released in accordance with the fiscal provisions.
3. Methods of Liquidation
In accordance with the provisions of Article 65 of the Law, the Secretariat of the Treasury and Public Credit shall proceed to collect the temporary and final countervailing duties in accordance with the provisions of the Fiscal Code of the Federation.
In the case of temporary duties, the aforementioned agency may accept the security furnished, also in accordance with the Fiscal Code of the Federation. Article 20 of the Fiscal Code of the Federation governs the forms of payment of assessments:
1. All assessments and their accessories must be paid in national currency;
2. To determine assessments on external trade and those that are to be implemented abroad, the exchange rate published by the Bank of Mexico in the Official Daily Gazette of the Federation the day before the assessments are made is considered.
3. Certified checks and postal, wire, or bank money orders are accepted as means of payment.
Checks must be issued in favor of the Treasury of the Federation.
Payment of final countervailing duties shall be required or, lacking this, the security that has been furnished shall be liquidated.
This is to say that, upon imposing the final duty, the importers are obligated to settle or pay it. Once the countervailing duty becomes final, its settlement or payment is made in cash or, lacking this, the security furnished is liquidated.
In the event the importer has paid or furnished security on an amount greater than the amount finally determined, the excess, as well as the corresponding interest, must be returned. (Article 65 of the Law).
Article 71 of the Law provides that, when it is intended to avoid the payment of countervailing duties by introducing into national territory parts and components for the assembly of goods subject to temporary or final duties, the importation of such parts and components must be subject to payment of the duty in question.
The same treatment shall apply when the parts and components are assembled in a third country whose end product is introduced into national territory, or when goods are exported with relatively minor physical differences with respect to those subject to countervailing duties with the purpose of avoiding the duties on such goods.
The procedure for determining measures of this kind is provided for in Article 96 of the Regulations.
Back to Information by Country
|countries||sitemap||a-z list||governmental contact points|