To initiate dumping, countervailing or safeguard investigations, the interested party must request it on behalf of the affected domestic industry. It is necessary for the request to be supported by producers of a similar product or like product who represent more than 50 per cent of the affected domestic industry.
The affected domestic industry in whose name the request is submitted should be identified by means of a list containing all known domestic producers or the producer associations of the similar product. A description of the volume and value of the like product’s domestic production must also be submitted.
Some substantive conditions must be certified to justify or support the implementation of measures of a nature that will require the collection and consolidation of sensitive information from the petitioners, as is the case when demonstrating the similarity or competitive relation between the domestic product and the imported product.
In general, most of the documents and information are of an economic and countable nature, and thus must be duly analysed and prepared in order to reflect legal concepts regarding unfair practices, injury and threat of material injury. A considerable amount of this information and documentation may be confidential.
Once the request is formally filed, the SPC will proceed as follows:
- merit assessment to open the investigation: the Directorate of Foreign Trade, through the SPC, will have a period of 20 business days, counted from the day following the date of submission of the request, to make this assessment. If the investigating authority finds it necessary to request missing information for this assessment, such information will be requested to the petitioner. This requirement will interrupt the 20-day period, which will start again when the petitioner duly provides the requested information. This period may only be extended once for up to 10 additional days. If, when assessing the request, the investigating authority deems there is merit in opening the investigation, it must do so by means of a resolution published in the Official Journal;
- preliminary determination: the investigating authority will decide on the preliminary results of the investigation through a motivated decision, and if necessary, order the imposition of provisional duties. The investigating authority has two months, counted from the day following the publication date of the opening resolution, for this stage of the investigation. This period may be extended ex officio or at the request of an interested party by up to 20 days;
- final report presentation: within a period of three months, counted from the day following the publication date of the preliminary determination, the SPC will summon the Trade Practices Committee to present the final results of the investigation and to provide its opinion of the matter. This period may be extended by up to 15 days when special circumstances justify it;
- essential facts: three days after the Trade Practices Committee provides its opinion on the results of the investigation, the SPC will send a document to the interested parties with the essential facts on which the decision to impose or not definitive measures is based. The parties have 10 days to express their comments to the investigating authority. On the other hand, the investigating authority has 10 days to submit these comments to the Trade Practices Committee to assess them and present a final recommendation to the Directorate of Foreign Trade to impose or not definitive duties; and
- investigation conclusion: the Directorate of Foreign Trade will decide on the matter through a motivated resolution within 10 days following the recommendation submitted by the Trade Practices Committee. This resolution will be published in the Official Journal.
During this process, the following administrative procedures are carried out:
- evidence: the investigating authority will examine the necessary evidence ex officio or at the request of an interested party. The period to examine evidence expires after one month following the publication date of the preliminary determination. The investigating authority may accept ex officio evidence from the beginning of the investigation to the final recommendation of the Trade Practices Committee, without limiting the foregoing procedure;
- arguments: interested parties have the opportunity, within 15 days after the expiration of the period, to examine evidence, present their arguments or opinions regarding the investigation and contest provided and accepted evidence; and
- hearings: within 10 days following the publication date of the preliminary determination, interested parties to the investigation may request a hearing to present and refute arguments. This hearing will be conducted within 15 days from the day it is accepted.
Unlike anti-dumping and countervailing duties procedures, in the case of safeguards, the authority must issue a ‘compliance receipt’ within five business days from the day following the filing of the request and must check whether it complies with all requirements established in legal regulations. Then it will proceed to assess the case’s merit for the opening of the investigation.
The authority in charge of providing a concept on the relevance of the imposition of a safeguard measure is the Customs, Tariffs, and Foreign Trade Committee. Subsequently, the Superior Council of Foreign Trade finally decides whether or not to impose the measure.
Duration of the measures
Anti-dumping and countervailing duties procedures cannot exceed five years, counted from the resolution’s date of publication in the Official Journal. Anti dumping duties may be less than the dumping margin if a lower amount is sufficient to eliminate the inflicted injury on the affected domestic industry.
Safeguard measures shall only be imposed for the period that is necessary to prevent or remedy the inflicted injury or the serious threat of it and facilitate a readjustment of the affected domestic industry. This period shall not exceed four years, including the time during which a provisional measure was in effect.
Ex officio initiation of the investigation by the Directorate of Foreign Trade will only take place in exceptional cases when special circumstances justify it. In practice, ex officio initiation is very rare.
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