Mexico

E. Preliminary Determination

1. Injury

   In accordance with the provisions of Article 57 of the Law, the investigating authority must hand down its preliminary decision within 130 working days beginning on the day after the decision to initiate the investigation has been published in the Official Daily Gazette of the Federation.

   It is in this decision that the investigating authority expresses the results of its preliminary determination of damage, and it is here that the determination of prices or of a subsidy is made.

2. Antidumping

   At least 45 days following publication of the initiation notice, but within 130 days from the day following such publication, the Ministry shall issue a preliminary resolution by which it may or may not set a provisional duty and continue the investigation, or it may pronounce termination of the investigation if there is "insufficient evidence of price discrimination or subsidization, of injury or threat of injury, or of a causal relationship between them". (I/57).

   The preliminary resolution shall include the normal value and export price (except confidential or restricted commercial information), a description of the methods used to determine normal value and export price, the margin of price discrimination/the characteristics and amount of the subsidy, a description of the injury caused or threatened, an explanation of the injury analysis by the Ministry, the export price which would not injure the domestic industry (if applicable), and the amount of the provisional offsetting duty. (II/82).

3. Countervailing

   At least 45 days following publication of the initiation notice, but within 130 days from the day following such publication, the Ministry shall issue a preliminary resolution by which it may or may not set a provisional duty and continue the investigation, or it may pronounce termination of the investigation if there is "insufficient evidence of price discrimination or subsidization, of injury or threat of injury, or of a causal relationship between them". (I/57). The preliminary resolution shall include the normal value and export price (except confidential or restricted commercial information), a description of the methods used to determine normal value and export price, the margin of price discrimination/the characteristics and amount of the subsidy, a description of the injury caused or threatened, an explanation of the injury analysis by the Ministry, the export price which would not injure the domestic industry (if applicable), and the amount of the provisional offsetting duty. (II/82).

F. Conduct Verification

1. Antidumping

   The Ministry "may verify" the information and evidence submitted during the investigation, and "for that purpose may issue a written order authorizing a search of the legal domicile, the establishment or the place where the relevant information is located. . .". (I/84).

   "Information and evidence submitted by the interested parties may be verified in the country of origin if the interested partes so agree.

   Without their consent, the Ministry shall assume that the requesting party's claims are true, unless there exist elements which indicate otherwise". (I/83).

   Detailed records of the searches shall be drawn up in the presence of two witnesses provided by the party subject to the search or, in the absence of the said party or in the event that the said party refuses to provide witnesses, by the authority in charge of the proceedings. (I/83).

   There is no explicit statement that the parties shall have access to the report, but the Regulations so imply: they provide the interested parties the opportunity to submit their opinions or objections on the content of the report. (II/173-VII).

   Since the Law and its Regulations fail to indicate the period during which a verification visit should be made, the investigating authority shall observe the provisions of the corresponding articles of the Antidumping Agreement and the Agreement on Subsidies, as well as paragraph 7 of Appendix 1 to the Antidumping Agreement and paragraph VI of the Agreement on Subsidies, respectively.

2. Countervailing

   The Ministry "may verify" the information and evidence submitted during the investigation, and "for that purpose may issue a written order authorizing a search of the legal domicile, the establishment or the place where the relevant information is located. . .". (I/84).

   "Information and evidence submitted by the interested parties may be verified in the country of origin if the interested parties so agree. Without their consent, the Ministry shall assume that the requesting party's claims are true, unless there exist elements which indicate otherwise". (I/83).

   Detailed records of the searches shall be drawn up in the presence of two witnesses provided by the party subject to the search or, in the absence of the said party or in the event that the said party refuses to provide witnesses, by the authority in charge of the proceedings. (I/83).

   There is no explicit statement that the parties shall have access to the report, but the Regulations so imply: they provide the interested parties the opportunity to submit their "opinions or objections to the content of the report". (I/173-VII).

   Since the Law and its Regulations fail to indicate the period during which a verification visit should be made, the investigating authority shall observe the provisions of the corresponding articles of the Antidumping Agreement and the Agreement on Subsidies, as well as paragraph 7 of Appendix 1 to the Antidumping Agreement and paragraph VI of the Agreement on Subsidies, respectively.

G. Hearings

1. Antidumping

   In accordance with the Law, there are two kinds of hearings in the antidumping or antisubsidy procedures, which are conciliatory and public.

         I. Conciliatory hearings

   Article 61 of the Law itself establishes that hearings of this kind may be held during the course of the investigation, where ways for solution and conclusion of the investigation may be proposed, in accordance with the text of the same Law.

   Article 86 of the Regulations indicates that the parties concerned may petition the Secretariat in writing to convoke a conciliatory hearing after publishing in the Official Daily Gazette the decision to initiate the investigation and up to 15 days before the end of the evidentiary period.

   It should be explained that the Secretariat may invite the parties to hold a conciliatory hearing provided that it deems this necessary without the petition of a party concerned being involved.

         II. Public hearings

   In accordance with the provisions of Article 81 of the same Law, the notification of the decision to initiate must indicate the date for holding the public hearing, at which the parties concerned, and if appropriate their assistants, will question or refute their counterparts concerning the information, data and evidence they may have presented, as indicated in Article 166 of the Regulations.

   The aforementioned hearing shall be held after publication of the preliminary decision and before publication of the final decision.

   Moreover, Article 81 of the Regulations indicates that, in the decision for initiation, the investigating authority must indicate the day, hour and place in which the public hearing is to occur.

2. Countervailing

   In accordance with the Law, there are two kinds of hearings in the antidumping or antisubsidy procedures, which are conciliatory and public.

         I. Conciliatory hearings

   Article 61 of the Law itself establishes that hearings of this kind may be held during the course of the investigation, where ways for solution and conclusion of the investigation may be proposed, in accordance with the text of the same Law.

   Article 86 of the Regulations indicates that the parties concerned may petition the Secretariat in writing to convoke a conciliatory hearing after publishing in the Official Daily Gazette the decision to initiate the investigation and up to 15 days before the end of the evidentiary period.

   It should be explained that the Secretariat may invite the parties to hold a conciliatory hearing provided that it deems this necessary without the petition of a party concerned being involved.

         II. Public hearings

   In accordance with the provisions of Article 81 of the same Law, the notification of the decision to initiate must indicate the date for holding the public hearing, at which the parties concerned, and if appropriate their assistants, will question or refute their counterparts concerning the information, data and evidence they may have presented, as indicated in Article 166 of the Regulations.

   The aforementioned hearing shall be held after publication of the preliminary decision and before publication of the final decision.

   Moreover, Article 81 of the Regulations indicates that, in the decision for initiation, the investigating authority must indicate the day, hour and place in which the public hearing is to occur.

H. Briefs

   The Ministry shall appoint a period for pleadings following the period for the presentation of evidence to permit the interested parties to make their submissions.

   The Ministry's decisions to accept a given piece of evidence shall not be open to appeal during the proceedings. (I/82).

I. Final Determinations

   As established by Article 59 of the Law, the final decision determining the final countervailing duties is to be handed down by the Secretariat within 260 working days beginning the day following publication of the decision for initiation of the investigation in the Official Daily Gazette.

   In accordance with the provisions of the GATT Codes (5.10 of the Antidumping Code and 11.11 of the Code on Countervailing Duties) the resolutions may be issued in a period not to exceed 18 months.

J. Maximum Length of Investigation

   The law includes provisions which specify that initiation is to be a maximum of 70 days from the date the petition is submitted (with the normal initiation period being only 30 days), and the final determination shall be issued within 260 days of initiation. (I/52 and I/59). The same schedule applies to both investigations and reviews.

K. Maximum Duration of Antidumping and Countervailing Duty Orders

   As provided by Article 67 of the Law, countervailing duties shall be in effect during the time and to the extent necessary to counteract the unfair practice that is causing damage or a threat of damage to national production.

   Moreover, the countervailing duties must be reviewed annually at the petition of a concerned party or officially by the Secretariat, as indicated in Article 68 of that same Law.

   Nevertheless, if the parties concerned have not so petitioned and if the Secretariat has not made an official review thereof, the final countervailing duties must be lifted in a period of five years from their entry into effect, as indicated by Article 70.

   If upon conducting the review of the final countervailing duty the Secretariat finds that such duty is no longer justified or that the price discrimination margin no longer exists, the duty must be lifted at once.

   Under the latter assumption the Secretariat must conduct an official review for three consecutive years during the anniversary month, in accordance with the provisions of Article 105 of the Regulations.

L. Retroactivity

   Article 93 of the Law embodies the principle established in Article 10.6 of the Antidumping Agreement.

   This indicates that a fine shall be levied against importers who, during a relatively short period, import goods in significant volumes with relation to overall imports and national production when there is a record of unfair practices and when the importer knew or should have known that the exporter was engaged in such practices. According to Article 93 of the Law, the fine shall be the equivalent of the amount derived from applying the final duty on imports made for up to three months preceding the date for applying the temporary countervailing duties.

M. Best Information Available (or "Facts Available")

   If the Ministry's request for information is not satisfied, the Ministry shall decide on the basis of the information available. (I/54).

N. Consumers as Interested Parties

   The term "interested party" means the producers who have submitted request, importers and exporters of the product under investigation, as well as any foreign legal persons having a direct interest in the investigation in question and those who are so defined in international trade agreements and treaties". (I/51).

   Mexican legislation currently does not consider consumers as concerned parties in the investigation.

   However, with regard to this matter, Mexico will follow the guidelines provided in Articles 6.12 of the Antidumping Code and 12.10 of the Code on Subsidies.

O. Public Interest

1. Antidumping

   In accordance with Article 88 of the Law, upon imposing a countervailing duty, SECOFI shall see to it that to the extent possible this measure avoids having a negative impact on other productive processes and on the consuming public.

   Duties may be less than the margin of price discrimination or than the amount of the subsidy provided they are sufficient to discourage imports of goods in circumstances involving unfair international trade practices. (I/62).

2. Countervailing

   Same as for dumping; see above.

P. Undertakings or Commitments

   The Ministry may suspend or terminate the investigation without the imposition of duties where the exporter gives a voluntary undertaking to revised its prices or to cease exports, or if the government of the exporting country eliminates or limits the subsidy in question.

   For this purpose, the Ministry shall determine whether, as a result of these undertakings or any similar undertakings which may be given, the injurious effect of the unfair practice is eliminated. (I/72).

   If the Ministry accepts an undertaking, it shall issue an appropriate resolution declaring suspension or termination of the investigation (after having submitted the draft resolution to the Commission for its opinion).

   The resolution shall be notified to the interested parties and published in the Diario Oficial de la Federacion.

   The undertaking shall be incorporated into the resolution together with the Commission's opinion. (I/73). Undertakings may be reviewed periodically at the request of a party or ex officio.

   If as a consequence of the review the administrative authority finds that the undertaking has not been fulfilled, the collection of the provisional countervailing duty shall be reinstated immediately by publication of the corresponding resolution in the Diario Oficial and the investigation shall be continued. (I/74).

V. Review of Antidumping and Countervailing Duty Determinations

A. Annual Reviews

   I. Initiation of the review

   Countervailing duties imposed in the final decision for an investigation against unfair practices through either price discrimination or subsidies, shall be in effect as necessary to counteract the unfair practice that causes or threatens to cause damage to national production of products similar to the one investigated.

   They must be reviewed annually, at the petition of a concerned party, or at any time officially by the Secretariat of Trade and Industrial Development, which is the investigating authority by virtue of a change in circumstances whereby the existence of unfair practice was determined under the terms provided for in Articles 68 of the Law and 99 of the Regulations.

   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 101of 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 20 days after receipt of the injunction.

   If the material requested is provided satisfactorily, within 20 days the Secretariat shall proceed in accordance with the provisions in the preceding section.

   If it is not provided on time and does not include 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 latter 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.

B. Duty Refund Review

   I. Initiation of the 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 20 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 latter 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.

C. Sunset Review

   In the event that over a five-year period as from its entry into force none of the parties concerned requests review of a final duty, and the Secretariat does not do so officially, in accordance with Article 70 of the Law, the final countervailing duty is lifted.

   To enforce the provisions of this article, the party concerned with elimination of the duty must appear before the Secretariat to ask it to make the corresponding declaration, or the Secretariat itself must do so officially.

   In both cases the Secretariat notifies the parties that five years have elapsed and the corresponding declaration is published in the Official Daily Gazette of the Federation under the terms of Article 109 of the Regulations.

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