Colombia

IV. Steps of the Investigation

A. Petition Filing

   INCOMEX may initiate the procedure referred to in this decree on its own initiative or upon written request submitted by the branch of domestic production or on its behalf. It shall be considered that a request has been make by or on behalf of the branch of domestic production based on the degree of support of the domestic producers of the product like the one allegedly imported at dumping prices. INCOMEX shall request the domestic producers to give their written support to the request in order to show this representation.

   Silence on the part of the producer shall indicate a lack of interest, and shall not be interpreted as an expression of support or opposition. In initiating an investigation, it shall be considered that the request is made by the branch of production or on its behalf when it is supported by domestic producers whose output accounts for more than 50 percent of the domestic total production of the like product produced by the branch of domestic production that expresses its support for or opposition to the request. Nonetheless, no investigation shall begin when the domestic producers who expressly support the request account for less than 25 percent of the total production of the like product produced by the branch of domestic production. In the case of fragmented branches of production that entail an unusually large number of producers, INCOMEX shall determine the degree of support and opposition by using statistically valid sampling techniques.

   In special circumstances, INCOMEX may initiate an investigation on its own initiative, when there is sufficient evidence to presume the existence of injury caused by dumped imports.

   The information on injury that is necessary to carry out an investigation should be submitted by the domestic producers affected or interested, pursuant to the requirements of INCOMEX.

    INCOMEX may initiate the procedure upon request, submitted by the branch of domestic production or on its behalf, when it considers itself injured by imports of like products at dumping prices made within the 12 months prior to the request, or that are under way. Imports under way are understood to be those imports that may be made under current import documents and that are to be undertaken pursuant to current commercial contracts, or bids awarded, and that are shipped within the period determined to be covered by the investigation.

   The request referred to in Article 41 of Decree 991/98 should include evidence of dumping, the injury, and the causal relationship between the dumped imports and the injury alleged.

   A mere allegation, without support in the form of relevant evidence, shall not be considered a request for the purposes of this decree. The request should be prepared pursuant to the requirements established in the guide provided by the Trade Practices Bureau (Subdirección de Prácticas Comerciales) of INCOMEX, completing the forms and attaching the information and evidence required therein.

   That documentation should be submitted and filed with the Trade Practices Bureau, or with the Regional or Departmental Offices of INCOMEX.

   When submitted to the Regional or Departmental Offices, the request for investigation shall be understood to be submitted two days after it is filed, which is the time the Regional or Departmental Offices are given to forward it to the Trade Practices Bureau of INCOMEX. The request shall also contain at least the following information:

         1. Identification of the petitioner.

When the request is made on behalf of the branch of domestic production, the branch of domestic production should be identified by listing all known domestic producers or the associations of domestic producers of the like product and, to the extent possible, with a description of the volume and value of the domestic production of the like product that those producers represent.

         2. A description of the domestically-produced product that is like the one alleged being dumped.

         3. Description of the product allegedly being dumped.

         4. The countries of origin or exporting countries.

         5. The name and domicile of the importers and foreign exporters and producers, if known.

         6. Data on the prices at which the product in question is sold for consumption in the domestic market or markets of the country or countries of origin or export (or, where appropriate, data on the prices at which the product is sold from the country or countries of origin or export to a third country or countries, or on the constructed value of the product), and on export prices or, where appropriate, on the prices at which the product is resold for the first time to an independent producer in Colombia

         7. Data on the volume of imports allegedly being dumped, the effect of those imports on the prices of the like product in the domestic market, and the consequent repercussion of the imports on the domestic branch of production, as shown by the relevant factors and indices that affect the conditions of the branch of domestic production.

         8. Offer to submit the respective documents to the authorities to verify the information provided, and to authorize the verification visits.

         9. Elements for determining the causality between the practice of dumping and the significant injury.

         10. Producing the evidence one intends to rely on.

         11. Identification of confidential documentation, justification of its confidentiality, and a summary or non-confidential version of that documentation.

         12. Power-of-attorney to act, when acting through an agent.

         13. Evidence of the existence and representation of any juridical persons who appear as petitioners.

   Two copies of the request should be submitted, one to be filed in the public file of the case and another in the confidential file. If INCOMEX, on examining the petition, finds that it meets the requirements of the previous article, it shall receive it as conforming to requirements, so informing the petitioner, within the following five working days. If INCOMEX finds that it is necessary to request missing information for the purposes of being able to state that the petition conforms to the requirements, it shall request it of the petitioner. This request shall interrupt the tolling of the period established in the previous paragraph, which shall begin to run once again when the petition provides the information required.

   Once the information requested is provided, INCOMEX shall proceed, within the period indicated above, to accept it as conforming to the requirements. If after two months from the date it is requested the missing information has not been provided in full, the petitioner shall be considered to have abandoned the petition and it shall be ordered closed. INCOMEX shall have a period of 20 working days, counted from the day following the date the communication of the acceptance is received as conforming to the requirements, to evaluate the accuracy and relevance of the information and evidence provided with the petition referred to in the preceding articles and to decide on the merits of the argument that an investigation should be initiated.

   At this stage INCOMEX may request and produce evidence and information on its own initiative or at the request of an interested party. INCOMEX shall determine whether there is merit to the argument in favor of initiating an investigation into dumping so long as:

         1. It confirms through verification of the degree of support or opposition to the request that it is made by or on behalf of the branch of domestic production.

   To this end INCOMEX shall send communications to the domestic producers or associations that are known, who within five working days from the date following the dispatch of the communication are to state in writing their support for or opposition to the request.

   This period may be extended, upon request by a party, for up to five calendar days. In the event that INCOMEX does not receive a response within the time period set, it shall understand that there was no expression of interest by any domestic producer or association that does not respond.

         2. It determines that there is sufficient evidence, including indicia, of dumping, injury, and the causal relationship between them.

   For the purposes of defining the accuracy and relevance of the evidence provided by the petitioner to determine whether there is sufficient evidence to justify initiating an investigation, INCOMEX may extend the time period established in the first paragraph of this article, only once, on its own initiative or at the request of a party, for up to an additional 20 days.

   INCOMEX shall avoid any publicity on the submission of a request for an investigation until such time as the decision to initiate it has been made. Nonetheless, in the period included from the receiving the request in conformity with the requirements and the initiation of the investigation, it shall notify the government of the exporting member country in question that it has been submitted. It shall be considered that a request for an investigation into imports as discussed under this title has been made by or on behalf of the branch of domestic production when it is submitted by domestic producers who account for at least 25% of the domestic production of the like product.

   The evaluation of the merit of the investigations discussed under this title shall be governed by the provisions of Article 44 of this decree. Notwithstanding the foregoing, INCOMEX shall determine that initiating a dumping investigation is merited whenever:

         1. It verifies that the petitioners account for at least 25% of the domestic production of the like product.

         2. It determines that sufficient evidence exists, including indicia, of dumping.

B. Initiation of Investigation

   When it is ordered that an investigation be initiated into products originating in countries with which Colombia has not acquired any trade commitments entailing the imposition of antidumping duties, INCOMEX, pursuant to the provisions of Article 23 of this decree, may impose provisional duties at any time, including in the order initiating the investigation.

   In this case, the questionnaires from INCOMEX shall be forwarded after the imposition of provisional duties. Once the investigation is initiated, INCOMEX shall make the non-confidential documents available to all interested parties, including the foreign producers, the authorities of the exporting country, and any known exporters.

C. Issuance of Questionnaire

   Within seven working days counted from the day after the publication of the order mandating that the investigation be initiating, INCOMEX should forward a copy of its decree and of the forms designed for that purpose to request information on the case from the interested parties, as indicated in the petition, to be sent to the address indicated therein, and to the diplomatic or consular representatives of the country of origin or export.

   The other interested parties shall be convened during the same period by notice published just once in a daily newspaper with large national circulation, to express their opinion, duly supported, and to provide or request the evidence they consider relevant.

D. Response to Questionnaire

   Interested parties should return the forms, duly completed, accompanied by the supporting documents and evidence as well as a list of the evidence they intend to use in the investigation, within the following 40 calendar days, counted from the date on which they are sent out.

   This period may be extended by reasoned order for up to 10 more calendar days if a duly justified request is submitted by the interested parties. The responses sent by the foreign producers or exporters shall be submitted in Spanish, or accompanied by an official translation.

   The same requirement shall apply for the documents intended to show what each interested party has argued in the investigation.

E. Preliminary Determination

1. Injury

   Within 65 calendar days, counted from the day following the date of publication of the order initiating the investigation, INCOMEX should, by reasoned order, set forth the preliminary results of the investigation and, if appropriate, may order the imposition of provisional duties.

   In no case may the preliminary determination be adopted beyond 60 calendar days after one day after publication of the order mandating the investigation. The order by which the preliminary determination is adopted shall be published the day after it is issued 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, as well as all other interested parties who have expressed their interest in the investigation and have provided their address.

   Whenever circumstances so merit, INCOMEX may extend the period indicated for the preliminary determination for up to one month, on its own initiative or at the request of an interested party.

   The documentation and information received in the 15 days prior to the expiration of the maximum term for the adoption of the preliminary determination, including its extension, may not be considered at this stage, but in any event shall be taken into account in completing the investigation.

   When INCOMEX deems it necessary, it shall send out new questionnaires after the preliminary determination within seven working days following the issuance of the order by which it adopts the preliminary determination; the interested parties should respond to them within a non-extendable period of 45 calendar days, counted from the date they are sent out by INCOMEX.

   The response should be accompanied by any supporting documentation and evidence as well as a list of the evidence they seek to have produced. 

2. Antidumping

   Provisional measures shall be applied only to avoid injury during the period of the investigation. INCOMEX may apply provisional duties, through a reasoned order, subject only to direct revocation, if, after giving the investigated party a reasonable opportunity to participate in the investigation by sending questionnaires for said purpose, a preliminary conclusion is reached that there is dumping of the imports under investigation, and it has been determined that said imports cause injury to the domestic industry.

   The amount of provisional antidumping duties shall be indicated in the order establishing them, and it shall apply, regardless of who the importer is, to the imported products which had been identified as being imported at the dumping price, and which cause injury to producers in Colombia.

   The order shall be published in the Official Gazette of the Ministry of Foreign Trade, INCOMEX Chapter, pursuant to Article 47 of the present Decree.

   A copy of this resolution shall be sent to the Directorate of Domestic Taxes and Duties (DIAN) to be applied accordingly.

3. Countervailing

   The Ministry of Foreign Trade or INCOMEX, as the case may be, may determine and order the collection of definitive or provisional antidumping duties or countervailing duties on the importation of all products that are the object of dumping or subsidies and which have been proven to cause or threaten to cause injury to domestic production, or that substantially delay the establishment of an industry in Colombia.

   The amount of duties may generally be expressed in one of the following forms, or in a combination of the same if necessary: in ad-valorem percentage; or in accordance with a base price. If there are no international obligations on this matter, antidumping or countervailing duties may be determined, prior to the establishment of the existence of dumping or subsidies, and consideration will be given as to whether the exporting country or the country of origin would provide evidence of injury to Colombian exports.

F. Conduct Verification

1. Antidumping

   In order to verify the information received or to obtain additional information needed for the review or examination, INCOMEX may make the verification visits it deems necessary. INCOMEX shall, ex-officio or at the request of the interested party, conduct tests it considers useful, necessary and effective in order to verify the facts under investigations.

   The period for conducting tests shall expire two months after the order containing the preliminary determination is published.

   INCOMEX may undertake the verification visits discussed in Article 51 of this decree at any time and prior to the initiation of the period for arguments.

   In the event that Colombia has not acquired international commitments with respect to the application of antidumping duties that require it to present the evidence of injury, antidumping duties may be applied upon the mere verification of the existence of dumping.

   For these purposes it shall be considered whether evidence would be provided of the injury to Colombian exports in the exporting country or country of origin.

   The requesting party must provide the information required in Article 42 of Decree 991/98 so that INCOMEX may perform an evaluation of the performance of the accounting and financial aspects of the branch of domestic production that is the requesting party in order to provide information to be taken into account in the final decision of the Ministry of Foreign Trade.

2. Countervailing

   Same provisions as in the previous section.

G. Hearings

1. Antidumping

   Within 15 calendar days following the publication of the order adopting the preliminary determination, the parties interested in the investigation, and in general those who make a showing of a legitimate interest in it, may request that a hearing be held with intervening parties who represent different interests, to afford them an opportunity to set forth opposing theses and rebuttal arguments.

   In holding these hearings, due attention shall be given to the need to keep the information provided confidential.

   The convening and holding of these hearings shall not require the interested persons to attend, and their absence shall not work to their detriment. INCOMEX has five working days to hold these hearings, counted from the day of the request.

   The hearing should be held within one month from the day following the date on which the request is submitted, or on which the invitation is made by INCOMEX on its own initiative. The interested parties shall have the right to make an oral presentation as part of the proceeding, upon justification, to provide additional information. INCOMEX shall only take account of this information and the arguments alleged in the course of the hearing if it is reproduced in writing and made available to the other interested parties within 10 working days following the holding of the hearing.

2. Countervailing

   Same as in the previous section.

H. Briefs

   The interested parties intervening in the investigation, within 15 working days of the expiration of the time period for the production of evidence, shall have, only once, the opportunity to submit their opinions in writing regarding the investigation and/or to controvert the evidence provided and collected during the investigation.

I. Final Determinations

   Within three months, counted from the day following publication of the order adopting the preliminary determination, INCOMEX shall convene the Committee on Trade Practices to submit the final results of the investigation, obtained by INCOMEX, for the Committee to offer its views.

   This time period may be extended by INCOMEX for up to one month, when INCOMEX considers that special circumstances so warrant. If the Committee on Trade Practices asks INCOMEX to provide further information on the results of the investigation, it may suspend the meeting for the time it deems necessary. Once the Committee on Trade Practices has issued its opinion on the results of the investigation, INCOMEX shall send the interested parties intervening in the investigation a document containing the essential facts that are the basis for the decision as to whether to apply final measures, to afford them to offer their written comments thereon to the Committee within 10 calendar days.

   Those comments may not refer to facts or circumstances not set forth prior to the expiration of the time period discussed at Article 53. The responses should be sent to the Secretariat of the Committee on Trade Practices, which should present them to the Committee, along with the technical comments of INCOMEX, within 10 calendar days, for the Committee to evaluate them and make its final recommendation to the Ministry. Within seven calendar days following the adoption of the recommendation by the Committee on Trade Practices, discussed in the final paragraph of the previous article, 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. The provisions contained in Articles 54 and 55 of this decree shall be observed for the purposes of the final determination.

J. Maximum Length of Investigation

   The authorities shall have a maximum period of eight months, counted from the day following the date of publication of the decree ordering the investigation initiated to carry it out and consider it concluded.

K. Maximum Duration of Antidumping and Countervailing Duty Orders

   An antidumping duty shall remain in force for no more than five (5) years, unless the causes that gave rise to it persist. The Bureau of National Taxes and Customs (DIAN) shall apply the antidumping duties pursuant to the provisions of law and the order that imposes the duties, as well as the laws on collection, establishing security interests, procedures, and all other matters related to tariff charges. In no case shall be investigations undertaken hinder the introduction of merchandise into the national territory. No imported product may be the subject, simultaneously, of antidumping duties and countervailing duties both aimed at remedying the same situation stemming from dumping or from subsidies.

L. Retroactivity

   Without prejudice to the provisions of article 26, the Ministry of Foreign Trade may order the imposition of final duties on imports already made in the following circumstances:

         1. When injury occurs due to massive dumped imports with respect to the imports done within 90 days prior to the day provisional duties are imposed, but in no case before the date of publication of the order initiating the investigation.

         2. When expressions of intent that were accepted pursuant to the provisions of Article 31 of this decree are followed by non-performance, with respect to the imports declared in the 90 days prior to the date of establishment of the provisional duties, but in no case on the imports declared prior to the non-performance. The characterization of massive imports, which are the subject of this article, shall be made bearing in mind imports from the date the investigation is initiated to the date provisional measures are imposed, in relation to imports over a period of three years prior to the date the investigation was initiated.

   In each particular case the size of the market for the product under investigation shall also be considered.

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

   In those cases in which an interested party denies access to needed information, or does not provide it within a prudential period, or significantly hampers an investigation, preliminary or final determinations may be reached, positive or negative, based on the best available information.

N. Consumers as Interested Parties

   The following are considered "interested parties": The petitioner; The exporters, foreign producers, or importers or a product under investigation, or the commercial, trade, or business associations in which the majority of the members are producers, exporters, or importers of said product; The government of the exporting member country; and The domestic producers of products like the product under investigation, or the commercial, trade, or business associations in which the majority of the members are producers of that product in the national territory.

   The foregoing list is not limiting, and shall not impede the competent authority from allowing for the inclusion, as interested parties, of national or foreign persons other than those indicated above. The Trade Practices Committee shall hear the opinion of the Superintendent of Industry and Trade, or his delegate, before making the recommendation to the Ministry of Foreign Trade referred to in articles 31, 54 and 76 of this Decree.

O. Public Interest

1. Antidumping

   The investigations referred to in Decree 991/98 shall be conducted by the Colombian Foreign Trade Institute (INCOMEX) and they shall be in the general interest. Antidumping duties shall be imposed in the public interest, for the purpose of correcting and preventing damages, in the event of dumping.

   They shall be applied across-the-board to all importers of goods subject to those duties.

   The duties are imposed in regard to a country and, if applicable, more specifically to certain producers and exporters from that country.

2. Countervailing

   The investigations referred to in Decree 299/95 shall be conducted by the Colombian Foreign Trade Institute (INCOMEX) and they shall be in the general interest.

P. Undertakings or Commitments

   The Committee on Trade Practices shall evaluate the cases in which the producers or exporters of the product under investigation offer, through INCOMEX, either become INCOMEX so proposes or at the initiative of the parties, to review the export prices or put an end to the exports at dumping prices to Colombia, as the case may be, to the extent that the resulting harmful effects are suppressed.

   INCOMEX shall only receive expressions of intent during the two months following the date of publication of the order containing the preliminary determination.

   The price increases stipulated in those undertakings shall not be greater than necessary to offset the margin of dumping. No offers shall be considered that do not include supplying the information and authorizing the verifications that the investigating authority deems necessary to verify that they are carried out, nor those that offer quantitative limitations. The Ministry of Foreign Trade, by recommendation of the Committee on Trade Practices, after an evaluation by INCOMEX, may suggest expressions of intent, but no exporter shall be required to accept them.

   The fact that an exporter does not offer such expressions or does not accept the invitation to make them shall in no y prejudice the examination of the matter, nonetheless, the authorities shall be free to determine that it is more likely that a threat of injury will materialize if the dumped imports continue. In the event that expressions of intent are offered, INCOMEX, by reasoned order, within 10 working days counted from the day following the date of its submission, shall communicate them to the parties interested in the investigation, and shall give them a period of five working days to submit their comments on the contents thereof in writing to INCOMEX. In a period of 15 working days, counted from the day following the publication of the order mentioned in the previous paragraph, INCOMEX shall convene the Committee on Trade Practices to set forth before the Committee the terms thereof and the comments received on them, and shall formulate its recommendations on the matter. The Committee on Trade Practices shall make a recommendation to the Ministry of Foreign Trade on the expressions of intent, so that it, by reasoned order, may adopt the decision most advisable to the interests of the country.

   The order shall be published the day following 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 or Members whose products are the subject of the determination or undertaking in question, as well as to all other interested parties who have expressed their interest in the investigation and who have given their address. The order accepting the offer, issued by the Ministry of Foreign Trade, may provide, among other things, that no antidumping duties be charged, or that they be charged at an amount less than the margin of dumping, or that they only be charged as of a certain date, or up to a certain date.

   The application of these measures shall be conditioned on implementation of the offers made with the expressions of intent accepted by the Ministry of Foreign Trade.

   In the respective order, the Ministry of Foreign Trade shall also provide that in case of non-performance or refusal of the producer or exporter making the offer to periodically provide information on compliance, INCOMEX may provide for the immediate imposition of provisional duties, based on the best available information, without prejudice to declaring non-performance in a reasoned order in which it will order that the investigation be continued or resumed at the preliminary determination phase if it had been concluded.

   In the event the expressions of intent are accepted by the Ministry of Foreign Trade, in the order that accepts them it may order the suspension of the investigation into the existence of dumping, injury, and causal relationship, except when the offering party requests within the month following its publication that the investigation be completed, or the competent authority decides to complete the investigation.

   In that case, the Ministry of Foreign Trade may order that INCOMEX continue the investigation to its conclusion. If the investigation is continued and a negative determination is reached as to the existence of dumping or injury, the undertaking shall be suppressed immediately, except in cases in which that determination is based largely on the existence of expressions of intent.

   In such cases, the Ministry may require that the undertaking be maintained for a prudential period.

   In the event that a positive determination is made, the order shall provide for maintaining the expressions of intent pursuant to their terms and the provisions of this decree.

Continues with Review of Antidumping and Countervailing Duty Determinations