Costa Rica

P. Undertakings or Commitments

   Proceedings may (the endnote is omitted) be suspended or terminated without the imposition of provisional measures or anti-dumping duties upon receipt of satisfactory voluntary undertakings from any exporter to revise its prices or to cease exports to the area in question at dumped prices so that the authorities are satisfied that the injurious effect of the dumping is eliminated.

   Price increases under such undertakings shall not be higher than necessary to eliminate the margin of dumping.

   It is desirable that the price increases be less than the margin of dumping if such increases would be adequate to remove the injury to the domestic industry.

   Proceedings may (the endnote is omitted) be suspended or terminated without the imposition of provisional measures or countervailing duties upon receipt of satisfactory voluntary undertakings under which:

         (i) the government of the exporting country agrees to eliminate or limit the subsidy or take other measures concerning its effects, or

         (ii) the exporter agrees to revise its prices so that the investigating authorities are satisfied that the injurious effect of the subsidy is eliminated.

   Price increases under such undertakings shall not be higher than necessary to eliminate the amount of the subsidy.

   It is desirable that the price increases be less than the amount of the subsidy if such increases would be adequate to remove the injury to the domestic industry.

   Undertakings shall not be sought or accepted unless the authorities of the importing country have made a preliminary affirmative determination of subsidization and injury caused by such subsidization and, in case of undertakings from exporters, have obtained the consent of the exporting Member.

   Undertakings offered need not be accepted if the authorities of the importing Member consider their acceptance impractical, for example if the number of actual or potential exporters is too great, or for other reasons, including reasons of general policy.

   Should the case arise and where practicable, the authorities shall provide to the exporter the reasons which have led them to consider acceptance of an undertaking as inappropriate, and shall, to the extent possible, give the exporter an opportunity to make comments thereon.

   If the undertakings are accepted, the investigation of dumping and injury shall nevertheless be completed if the exporter so desires or the authorities so decide.

   In such a case, if a negative determination of dumping or injury is made, the undertaking shall automatically lapse except in cases where such a determination is due in large part to the existence of a price undertaking.

   In such cases the authorities may require that an undertaking be maintained for a reasonable period.

   In the event that an affirmative determination of dumping and injury is made, the undertaking shall continue consistent with its terms.

   Price undertakings may be suggested by the authorities of the importing Member, but no exporter shall be forced to enter into such an undertaking.

   The fact that exporters do not offer such undertakings, or do not accept an invitation to do so, shall in no way prejudice the consideration of the case.

   However, the authorities are free to determine that a threat of injury is more likely to be realized if the dumped imports continue.

   Authorities of an importing country may require any exporter from whom undertakings have been accepted to provide periodically information relevant to the fulfillment of such undertakings, and to permit verification of pertinent data.

   In case of violation of undertakings, the authorities of the importing country may take [...] expeditious actions which may constitute immediate application of provisional measures using the best information available.

   In such cases definitive duties may be levied [...] on goods entered for consumption not more than ninety days before the application of such provisional measures, except that any such retroactive assessment shall not apply to imports entered before the violation of the undertaking.

   An executive decree stipulates further that: At any stage in the investigation until such time as a definitive measure is ordered, and without interrupting the process, conciliation boards may be suggested either ex officio or at the request of a party.

   Fulfillment of the undertakings of the conciliation boards may be reviewed either ex officio or at a party's request.

   Periodic information on them may be requested.

   If a review finds noncompliance, the application of provisional measures shall be recommended to the Minister, based on the information available.

   The interested parties shall be notified within ten days of the date on which the measure is adopted.

V. Review of Antidumping and Countervailing Duty Determinations

A. Annual Reviews

   When the amount of the anti-dumping duty is assessed on a retrospective basis, the determination of the final liability for payment of anti-dumping duties shall take place as soon as possible, normally within 12 months, and in no case more than 18 months, after the date on which a request for a final assessment of the amount of anti-dumping duty has been made (the endnote is omitted).

   Any refund shall be made promptly and normally in not more than 90 days following the determination of final liability. [...]

   In any case, where a refund is not made within 90 days the authorities shall provide an explanation if so requested.

   An executive decree allows greater latitude for review of decisions ordering anti-dumping and countervailing duties. Article 36 of Decree 24868-MEIC stipulates that "...once a measure is adopted, it may be reviewed at any time after its execution."

B. Duty Refund Review

   When the amount of the anti-dumping duty is assessed on a prospective basis, provision shall be made for a prompt refund, upon request, of any duty paid in excess of the margin of dumping.

   A refund of any such duty paid in excess of the actual margin of dumping shall normally take place within 12 months, and in no case more than 18 months, after the date on which a request for a refund, duly supported by evidence, has been made by an importer of the product subject to the anti-dumping duty.

   The refund authorized should normally be made within 90 days of the above- noted decision.

   A decree adds the following to this provision: If the definitive anti-dumping or countervailing duty is greater than the amount guaranteed, the difference shall not be required. If it is less, immediate repayment of the excess will be ordered.

C. Sunset Review

   [...] any definitive anti-dumping duty shall be terminated on a date not later than five years from its imposition (or from the date of the most recent review [...] if that review has covered both dumping and injury, or under this paragraph), unless the authorities determine, in a review initiated before that date on their own initiative or upon a duly substantiated request made by or on behalf of the domestic industry within a reasonable period of time prior to that date, that the expiry of the duty would be likely to lead to continuation or recurrence of dumping and injury (the endnote is omitted).

   The duty may remain in force pending the outcome of such a review. [...] Any such review shall be carried out expeditiously and shall normally be concluded within twelve months of the date of initiation of the view.

D. Changed Circumstances Review

   The authorities shall review the need for the continued imposition of the duty, where warranted, on their own initiative or, provided that a reasonable period of time has elapsed since the imposition of the definitive anti-dumping duty, upon request by any interested party which submits positive information substantiating the need for a review (the endnote is omitted). Interested parties shall have the right to request the authorities to examine whether the continued imposition of the duty is necessary to offset dumping, whether the injury would be likely to continue or recur if the duty were removed or varied, or both.

   If, as a result of the review under this paragraph, the authorities determine that the anti-dumping duty is no longer warranted, it shall be terminated immediately.

E. New Shipper Review

1. Antidumping

   a. Anti-dumping If a product is subject to anti-dumping duties in an importing Member, the authorities shall promptly carry out a review for the purpose of determining individual margins of dumping for any exporters or producers in the exporting country in question who have not exported the product to the importing Member during the period of investigation provided that these exporters or producers can show that they are not related to any of the exporters or producers in the exporting country who are subject to the anti-dumping duties on the product.

   Such a review shall be initiated and carried out on an accelerated basis, compared to normal duty assessment and review proceedings in the importing country.

   No anti-dumping duties shall be levied on imports from such exporters or producers while the review is being carried out.

   The authorities may, however, withhold appraisement and/or request guarantees to ensure that, should such a review result in a determination of dumping in respect of such producers or exporters, anti-dumping duties can be levied retroactively to the date of the initiation of the review.

2. Countervailing

   b. Countervailing duty When a countervailing duty is imposed in respect of any product, such countervailing duty shall be levied, in the appropriate amounts in each case, on a non-discriminatory basis on imports of such product from all sources found to be subsidized and causing injury, except as to imports from those sources which have renounced any subsidies in question or from which undertakings [...] have been accepted.

   Any exporter whose exports are subject to a definitive countervailing duty but who was not actually investigated for reasons other than a refusal to co-operate, shall be entitled to an expedited review in order that the investigating authorities promptly establish an individual countervailing duty rate for that exporter.

3. Judicial, Administrative or Other Review

   a. Anti-dumping Each member, whose national legislation contains provisions on anti-dumping measures, shall maintain judicial, arbitral or administrative tribunals or procedures for the purpose, inter alia, of the prompt review of administrative actions relating to final determinations and reviews of determinations [...].

   Such tribunals or procedures shall be independent of the authorities responsible for the determination or review in question.

   b. Countervailing duties Each member whose national legislation contains provisions on countervailing duty measures, shall maintain judicial, arbitral or administrative tribunals or procedures for the purpose, inter alia, of the prompt review of administrative actions relating to final determinations and reviews of determinations [...].

   Such tribunals or procedures shall be independent of the authorities responsible for the determination or review in question, and shall provide all interested parties who participated in the administrative proceeding and are directly and individually affected by the administrative actions with access to review.

   Under Costa Rica's General Public Administration Law, petitions for reconsideration and appeal are allowed against virtually any administration decision.

   Once the administrative procedure has been exhausted, i.e., when the highest authority for the institution whose act is being challenged has issued a ruling on the matter, a judicial appeal of the administrative act may follow.

F. Procedures for Due Process

1. Notification of Initiation of Investigation

   When the authorities are satisfied that there is sufficient evidence to justify the initiation of an anti-dumping investigation [...], the Member or Members the products of which are subject to such investigation and other interested parties known to the investigating authorities to have an interest therein shall be notified and a public notice shall be given.

   A public notice of the initiation of an investigation shall contain or otherwise make available through a separate report (the endnote is omitted) adequate information on the following:

         (i) the name of the exporting country or countries and the product involved;

         (ii) the date of initiation of the investigation;

         (iii) the basis on which dumping is alleged in the application;

         (iv) a summary of the factors on which the allegation of injury is based;

         (v) the address to which representations by interested parties should be directed;

         (vi) the time limits allowed to interested parties for making their views known.

   As for Costa Rican decrees on the subject, see the item on instituting the investigation.

   Concerning notifications at the government level, Decree 24868- MEIC stipulates that: The investigating authority shall notify the government of the country of origin or export of the product under investigation concerning the application for initiation of the investigation of unfair trade practices.

   This notification must be made before the investigation is initiated.

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

   Exporters or foreign producers receiving questionnaires used in an anti-dumping investigation shall be given at least thirty days for reply. (The endnote is omitted).

   Due consideration should be given to any request for an extension of the thirty day period and, upon cause shown, such an extension should be granted whenever practicable.

   The authorities shall, as a rule, determine an individual margin of dumping for each known exporter or producer concerned of the product under investigation.

   In cases where the number of exporters, producers, importers or types of products involved is so large as to make such a determination impracticable, the authorities may limit their examination either to a reasonable number of interested parties or products by using samples which are statistically valid on the basis of information available to the authorities at the time of the selection, or to the largest percentage of the volume of the exports from the country in question which can reasonably be investigated.

   Any selection of exporters, producers, importers or types of products made under this paragraph shall preferably be chosen in consultation with and with the consent of the exporters, producers or importers concerned.

   In cases where the authorities have limited their examination, as provided for in this paragraph, they shall nevertheless determine an individual margin of dumping for any exporter or producer not initially selected who submits the necessary information in time for that information to be considered during the course of the investigation, except where the number of exporters or producers is so large that individual examinations would be unduly burdensome to the authorities and prevent the timely completion of the investigation.

   Voluntary responses shall not be discouraged.

3. Publication of Antidumping and Countervailing Duty Determinations

   Public notice shall be given of any preliminary or final determination, whether affirmative or negative, of any decision to accept an undertaking [...], of the termination of such an undertaking, and of the revocation of a determination.

   Each such notice shall set forth or otherwise make available through a separate report in sufficient detail the findings and conclusions reached on all issues of fact and law considered material by the investigating authorities.

   All such notices and reports shall be forwarded to the Member or Members the products of which are subject to such determination or undertaking and to other interested parties known to have an interest therein.

   A decree adds the following: Decisions on starting, suspending or concluding an investigation and on whether or not to apply countervailing or anti-dumping measures, or on amendments thereto, shall, at the time notification is made, be published one time only, at the interested party's expense, in the Official Gazette and in a newspaper with nationwide circulation in the respective country and, where appropriate, in the Official Gazette of the Central American Integration System, so that any person interested in the investigation process may exercise his right.

4. Access to Public Information

   The authorities shall whenever practicable provide timely opportunities for all interested parties to see all information that is relevant to the presentation of their cases, that is not confidential [...] and that is used by the authorities in an anti- dumping investigation, and to prepare presentations of this information.

   The authorities shall require interested parties providing confidential information to furnish non-confidential summaries thereof.

   These summaries shall be in sufficient detail to permit a reasonable understanding of the substance of the information submitted in confidence.

   In exceptional circumstances, such parties may indicate that such information is not susceptible of summary.

   In such exceptional circumstances, a statement of the reasons why summarization is not possible must be provided.

5. Access to Confidential Information

   Any information which is by nature confidential, (for example, because its disclosure would be of significant competitive advantage to a competitor or because its disclosure would have a significantly adverse effect upon a person supplying the information or upon a person from whom he acquired the information) or which is provided on a confidential basis by parties to an investigation shall, upon good cause shown, be treated as such by the authorities.

   Such information shall not be disclosed without specific permission of the party submitting it (the endnote is omitted).

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

   The following is stipulated in Costa Rican Decree No. 24772-MEIC-MAG: The Joint Commission will be an advisory and consultative body for any complaint or request filed and will be responsible for receiving the technical report from the Office of Unfair Trade Practices and Safeguard Measures to recommend the courses of action to be followed.

   Its recommendations are to be forwarded to the Minister at least fifteen days after receiving the Office's report.

   The documentation addressed to the Commission will be delivered to its Chairman of Secretary, who shall be elected by its members.

   If the Minister does not receive the Commission's finding within that fifteen-day period, he or she shall settle it immediately based on the Office's report and the corresponding case file.

   Within three days of conclusion of the investigation, the investigating authority shall present the technical study and the pertinent recommendations to the Minister so that the latter, within three working days of receiving the report, may issue a resolution declaring the investigation completed, stating whether or not an anti-dumping or countervailing duty is called for and, if appropriate, revoking any provisional measure adopted.

G. Application and Collection of Duties

1. Suspension of Liquidation

   Provisional measures may take the form of a provisional duty or, preferably, a security- by cash deposit or bond- equal to the amount of the anti-dumping duty provisionally estimated, being not greater than the provisionally estimated margin of dumping.

   Withholding of appraisement is an appropriate provisional measure, provided that the normal duty and the estimated amount of the anti-dumping duty be indicated and as long as the withholding of appraisement is subject to the same conditions as other provisional measures.

   A Costa Rican decree adds the following to elaborate upon the above-cited provision: The investigating authority will send a preliminary determination, affirmative or negative, on the existence of unfair trade practices and on the existence of injury, threat of injury to or retardation of the establishment of a domestic industry.

   This determination will appear in an opinion issued by the investigating authority within sixty days of the start of the investigation.

   During the investigation, the investigating authority may recommend to the Minister that he take provisional measures on cases of alleged dumping and subsidization, pursuant to the provisions of the WTO Agreements. Provisional measures shall only be imposed if the following conditions are present:

         a) The investigation has been initiated pursuant to the provisions of these Regulations and at least sixty days have elapsed since its start;

         b) A preliminary determination has been made affirming the existence of dumping or subsidization that may cause injury or serious harm to a domestic industry or retard the establishment of a domestic industry, under the terms of the WTO Agreements, and

         c) The investigating authority judges such measures to be necessary to prevent serious injury or threat to a domestic industry, pursuant to the terms of the WTO Agreements.

2. Use of Bonds or Cash Deposits

   a. Anti-dumping Provisional measures may take the form of a provisional duty or, preferably, a security- by cash deposit or bond- equal to the amount of the anti-dumping duty provisionally estimated, being not greater than the provisionally estimated margin of dumping.

   Withholding of appraisement is an appropriate provisional measure, provided that the normal duty and the estimated amount of the anti-dumping duty be indicated and as long as the withholding of appraisement is subject to the same conditions as other provisional measures.

   b. Countervailing duties Provisional measures may take the form of provisional countervailing duties guaranteed by cash deposits or bonds equal to the amount of the provisionally calculated amount of subsidization.

   A Costa Rican decree adds the following: The amount of any anti-dumping or countervailing duty applied shall be sufficient to redress the injury or harm and never more than the estimated margin of dumping or the amount of the subsidy.

   If the definitive anti-dumping or countervailing duty is greater than the amount guaranteed, the difference shall not be required.

   If it is less, immediate repayment of the excess will be ordered.

3. Methods of Liquidation

   When the amount of the anti-dumping duty is assessed on a retrospective basis, the determination of the final liability for payment of anti-dumping duties shall take place as soon as possible, normally within 12 months, and in no case more than 18 months, after the date on which a request for a final assessment of the amount of anti- dumping duty has been made (the endnote is omitted).

   Any refund shall be made promptly and normally in not more than ninety days following the determination of final liability made [...].

   In any case, where a refund is not made within 90 days, the authorities shall provide an explanation if so requested.

   When the amount of the anti-dumping duty is assessed on a prospective basis, provision shall be made for prompt refund, upon request, of any duty paid in excess of the margin of dumping.

   A refund of any duty paid in excess of the actual margin of dumping shall normally take place within 12 months, and in no case more than 18 months, after the date on which a request for a refund, duly substantiated by evidence, has been made by an importer of the product subject to the anti-dumping duty.

   The refund authorized should normally be made within 90 days of the above noted decision.

H. Other

1. Anti-Circumvention

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