RESTRICTEDWORLD TRADE
ORGANIZATIONG/ADP/AHG/W/39
7 April 1998
(98-1394)
Committee on Anti-Dumping Practices
Ad Hoc Group on ImplementationOriginal:  Spanish
TOPIC 1* - ARTICLE 6.5 TREATMENT OF CONFIDENTIAL INFORMATION
TOPIC 2* - PERIOD OF DATA COLLECTION
TOPIC 3* - ARTICLE 6.10 "SAMPLING METHOD"
TOPIC 5* - ARTICLE 5.5 "NOTIFICATION TO THE EXPORTING MEMBER"
TOPIC 6* - ARTICLE 6.2 "HEARINGS"
TOPIC 7* - ARTICLE 6.9 PROVISION OF ESSENTIAL FACTS
TOPIC 8* - ARTICLE 12 PUBLIC NOTICES
TOPIC 9* - CONTENTS OF PRELIMINARY AFFIRMATIVE DETERMINATIONS
TOPIC 10* - ARTICLE 9 "DUTY ASSESSMENTS"
Paper by Colombia
The following communication, dated 24 March 1998, has been received from the Permanent
Mission of Colombia.
_______________
Topic I
1. Article 6.5
What is confidential information?
1.1 Legal provisions
1.1.1. WTO
Articles 6.5, 6.5.1 and 6.5.2 of the WTO Agreemen t on Implementation of Article VI of the
General Agreement on Tariffs and Trade 1994.
1.1.2 Colombian legislation
The legislation specifically relating to anti-dumping investigations is Decree 299 of
10 February 1995, Article 43 of which relates to confidentiality:
ARTICLE 43. - CONFIDENTIALITY OF DOCUMENTS.  When initiating the investigation,
INCOMEX shall open a separate file, in which shall be placed the documents which the authorities,
the complainant or the interested parties provide on a confidential basis.  Such documents shall be
                                                     
*See document G/ADP/W/401 for descriptions of topics.G/ADP/AHG/W/39
Page 2
treated as confidential in accordance with the provisions of the Political Constitution and may be
inspected only by the authorities.
Persons who provide confidential documents shall supply non-confidential summaries.  If
INCOMEX considers that the documents designated as confidential are not confidential by nature, it
shall request the persons providing them to in form INCOMEX in writing that they waive such
confidentiality or to state the reasons why they are unwilling to do so.
The confidential nature of a document cannot be adduced as grounds for refusing to provide it
to the authorities requesting it in the proper exercise of their functions.  The authorities are responsible
for ensuring the confidentiality of such documents as they receive in the course of the proceedings
mentioned in this Decree.
Paragraph:  When, pursuant to this Article, documents are designated as confidential and
non-confidential summaries are not supplied, or confidentiality is not waived when INCOMEX so
requests, or the reasons for refraining from so doi ng are not stated, or when the reasons are not duly
justified, the documentation designated as confidential may be disregarded in the investigation.
In addition, Law 170 of 15 December 1994 approves the Agreement Establishing the World
Trade Organization, including the complete text of the Agreement on Implementation of Article VI of
the General Agreement on Tariffs on Trade 1994.
1.2 Colombian practice
List of information considered confidential by nature.
1.2.1 Statements of production costs and income statements by production line for the product
investigated
Article 41 of Law 222-95 amending Book II of the Commercial Code, establishing a new
tender system and making other provisions, in the part relating to the dissemination of financialstatements, provides that:  "within the month following the date of their approval, copies of the
general financial statements, together with comments and the corresponding recommendation, where
appropriate, shall be deposited with the Chamber of Commerce in the place of the registered office.
The Chamber shall send copies of these documents to persons requesting them, who pay the costs
incurred."
Hence the financial statements which must legally be disseminated and can be consulted in
accordance with Article 41 (Law 222-95) are general financial statements and not other statements.
Like statements of output by production line, statements of production and selling costs (both
for the enterprise and the production line) and financial statements covering intermediate periods
(both for the enterprise and the line) are not general financial statements, and in accordance with theprovisions of the Law are not public, so that if the applicant requests that the statements be considered
confidential, they should be treated as such.
1.2.2 Lists of customers and commercial invoices
In accordance with accounting practices, these are assimilated to auxiliary books under the
provisions of Article 125, paragraph 4(a) of Regulatory Decree 2649/93, pursuant to Article 49 of the
Commercial Code.G/ADP/AHG/W/39
Page 3
Article 61 of the Commercial Code specifically states that "traders' books and papers may not
be examined by persons other than their owners or persons authorized to do so, unless it be for the
purposes indicated in the Constitution and pursuant to an order by the competent authority."  In
accordance with this Article, an auxiliary book is not deemed to be of a public nature.  Therefore, if
the applicant requests that it be considered confidential, it should be treated as such.
1.2.3 Input-output table
The input-output table is not a supporting accounts document in accordance with Article 123
of Regulatory Decree 2649/93.
An analysis of the information contained in the table shows that it corresponds to
consumption of raw materials, and this information shown in Colombian currency constitutes an
element of the production cost - raw materials - in the statement of production costs.  As mentioned
above, disclosure of the statement of production costs is not compulsory and by extension this also
applies to its constituent parts.
Therefore, INCOMEX considers that the inform ation contained in the input-output table is
not public by nature, but if the applicant requests that the table be kept confidential, it should be
treated as such.
1.2.4 Industrial secrets and know-how
This is confidential information in accordance with Article 72 of Decision 344 (1993) of the
Commission of the Cartagena Agreement and Article 75.3 of the Commercial Code.
2. Is there any system for allowing access to confidential information?  If so, how does that
system operate?
2.1 Legal provisions
2.1.1 WTO
Articles 6.5, 6.5.1 and 6.5.2 of the WTO Agreemen t on Implementation of Article VI of the
General Agreement on Tariffs and Trade 1994.
2.1.2 Colombian legislation
The above-mentioned Article 43 of Decree 299 of 10 February 1995 and Article 44 of the
same Decree which states:  "ACCESS TO THE RECORD.  Any person may have access to thenon-confidential documents referred to in this Decree and may request the issue of photocopies, as
provided for in the Administrative Litigation Code."
In addition, Law 170 of 15 December 1994 approves the Agreement Establishing the World
Trade Organization, including the complete text of the Agreement on Implementation of Article VI of
the General Agreement on Tariffs and Trade 1994.
2.2 Colombian practice
The Colombian legislation has no provision for a system for allowing access to information
designated confidential.  However, access is allowed to the non-confidential summary furnished by
the applicant, which describes the main features of the confidential information in general terms.G/ADP/AHG/W/39
Page 4
Moreover, the technical studies carried out by INCOMEX represent the behaviour of the
variables subject to analysis in terms of percentage variations, which enables appropriate conclusions
to be drawn.
Topic II
How is the data collection period determ ined?  Is there a difference between the period
of investigation and the profitability analys is period (document G/ADP/AHG/W/30)?  What
happens if the original period is found to be  inadequate?  How is the period determined in
review investigations and refund situations?  How is the period defined in cases involving
fluctuating exchange rates?
2.1 How is the data collection period determined?
Colombian legislation
Period of review of material injury
The period of review of injury is legally defined in Article 16.1 of Decree 299-95:  "... for a
period of at least three years, two years preceding the current year and the current year.  If the first
half of the latter year has not elapsed, the information shall relate to the three preceding years and to
the period of the current year."
Period of review of dumping practices
As far as dumping practices are concerned, the period for data collection is specified in
Article 31 of Decree 299 of 1995:  "INCOMEX may initiate the procedure upon application by
domestic producers accounting for a major proportion of the domestic industry who consider
themselves injured by imports of like products effected during the twelve months prior to the
application, or currently being effected, at dumping or subsidized prices."
2.2 Is there a difference between the period of investigation and the profitability analysis
period?
The profitability analysis is conducted in accordance with Article 2.2.1 of the Agreement and
covers the period established therein.  In addition, another profitability analysis, which forms part of
the review of material injury, is carried out.  In this case the financial statements are analyzed for the
purpose of obtaining, among other things, variables for the profitability analysis.  These variablesinclude the gross and operating profit margins, both for the production line and the enterprise;  cash
flow, creditworthiness and operating indicators for a three-year period are also obtained.
2.3 What happens if the original period is found to be inadequate?
The adequacy or inadequacy of the injury review period does not arise, since this period is
specified in the legislation in force (Article 16.1 of Decree 299/95);  the results relating to thebehaviour of the variables analyzed make it possible to conclude whether or not material injury exists.
2.4 How is the period determined in review investigations and refund situations?
Colombian legislation
Period for review:  This period is in the process of being defined and will be reflected in the new draft
decree amending the present legislation, i.e. Decree 299.G/ADP/AHG/W/39
Page 5
Period for refunds:  The time-frame for refunds is determined by the moment of imposition of
definitive duties.  Considering that the maximum period of application of provisional duties is four (4)
months, which may be extended to six (6) months, in accordance with Article 7.3 of the
WTO Agreement/Law 170/94 and Articles 39 and 41 of Decree 299/95, a refund should be made
within that period if the provisional duty is higher than the definitive duty imposed or the final
determination is negative.
2.5 How is the period defined in cases involving fluctuating exchange rates?
Colombia has not yet had any experience of this situation.  However, the Agreement on
Implementation of Article VI of the GATT/94 is law in Colombia.
Topic  III
Article 6.10.  Canada's questions in document G/ADP/AHG/W/30.
Topic 1:  Treatment of confidential information and protection of business proprietary data set forth in
Article 6.5
Question
Footnote 17 to the Agreement clearly contemplates situations where confidential
information may be disclosed by the investigating authorities subject to narrowly drawn
protective orders.  Are there Members whose laws do not permit such disclosure?  If the answer
is yes, how can interested parties defend their interests in the context of injury?
Reply
The reply to this question is contained in paragraph 1.1.2 of this paper.  The Colombian
legislation provides for the confidentiality of documents, but in the course of proceedings and
investigations conducted by authorities of other jurisdictions there is the possibility of the
documentation being inspected, in the exercise of their functions, by the authorities, who are thenresponsible for ensuring its confidentiality.
Question
Footnote 17 to the Agreement does not restrict to whom confidential information may be
disclosed.  Canadian practice is to restrict such access to arms-length independent counsel for a
party.  Are there members whose laws permit th e disclosure of confidential information to
persons other than independent counsel for a party such as experts for a party.  If the answer is
yes, how is such disclosure dealt with procedur ally in order to guarantee that the confidential
information is neither improperly disclosed nor used for purposes other than the specific anti-
dumping proceedings for which it is disclosed?
Reply
In Colombian practice, in accordance with the requirements of the law, confidential
information provided by any of the parties for which confidentiality has been requested is restricted
for all the other parties involved in the investigation.  For the purpose of exercising their right of
defence the interested parties have access to the public version of the information, as described in
paragraphs 2.1.2 and 2.2 of this paper.G/ADP/AHG/W/39
Page 6
Question
As a result of a recent review of canadian tr ade remedy legislation, consideration has
been given to the use of criminal sanctions and monetary penalties for the unauthorized release
of confidential information.  canada would be interested in knowing whether and how other
members sanction the unauthorized disclosure, use or handling of confidential information in
anti-dumping proceedings.
Reply
The officials of State entities are public servants and, accordingly, the law provides for
sanctions in the event of the disclosure of confidential information.  Article 60 of Decree Law 2400 of
1968 states that:  "the duties of civil servants include ... preserving the confidentiality of matters
relating to the work, required by reason of their nature or by virtue of special instructions, even after
having left the service and without prejudice to the obligation to report any wrongdoing".
The disclosure of such information gives rise to sanctions such as dismissal, imprisonment, a
fine, deprivation of civil rights, etc.  The following provisions are cited by way of example:
In the administrative field, Article 15 of Law 13 of 1984 stipulates that "in each case the
following shall give rise to dismissal ... impr operly disclosing a document or information that
should have been kept secret or confidential".
As for the Penal Code, Articles 154 and 155 read as follows:"Article 154:  Disclosure of Secrets.  A public servant who improperly discloses a document
or information which should be kept secret or confidential shall be liable to imprisonment for
from six (6) months to five (5) years, a fine  of from Col$1,000 to Col$10,000 and deprivation
of civil rights for from six (6) months to two (2) years".
"Article 155:  Use of Information Subject to Secrecy or Confidentiality.  A public servant
who uses, for his own benefit or that of another, a scientific discovery or other information or
data with which he has become acquainted in the course of his duties and which should
remain secret or confidential shall be liable to imprisonment for from six (6) months to four
(4) years, a fine of from Col$1,000 to Col$10,000 and deprivation of civil liberties for the
same period, provided that the act does not constitute another offence".
Question
In Canada, information designated as confidential and for which such a designation is
not accepted is not considered for purposes of an anti-dumping proceeding.  Canada would like
to know what other members do with such informat ion.  Is it, for example, maintained on the
file/record;  destroyed by the investigating author ity;  or returned to the party that submitted
it?
Reply
In accordance with Article 6.5.2 of the Agreement on Implementation of Article VI of the
General Agreement on Tariffs and Trade 1994 and Article 43 (paragraph) of Decree 299 of 1995, if
the authority concludes that information designated confidential does not have to be considered as
such for the purposes of an anti-dumping proceed ing, that information is disregarded in the
investigation.  As it was introduced into and is th erefore pertinent to the proceeding, it is not returned
or destroyed by the investigating authority.  It remains in the confidential file and thus is disregarded.G/ADP/AHG/W/39
Page 7
Topic 3:  Sampling method under Article 6.10
Question
Canada would be interested in knowing whether Members which have used sampling
have used data from cooperative exporters wh o were not formally included in the sample to
determine the margin of dumping for the sample.
Reply
Collection of anti-dumping duties
Article 9.4 on the Imposition and Collection of Anti-Dumping Duties deals with the case
considered in Article 6.10 which states:  "... the authorities may limit their examination either to a
reasonable number of interested parties or products by using samples which are statistically valid ..."
In the anti-dumping investigations conducted by the Colombian Government it has not been
necessary to use sampling techniques to apply duties because the number of enterprises and products
involved was such that there was no need to do so.
Topic 5:  Notification of the government of the exporting member pursuant to Article 5.5
Question
What do Members see as the purpose for no tifying the Government of the exporting
country prior to initiation?
Reply
Since Article 5.5 of the Agreement stipulates that any publicizing of the application for the
initiation of an investigation should be avoided, the notification of the exporting country after receipt
of a properly documented application and before proceeding to initiate an investigation is to inform
the authorities of the country investigated that an application for the investigation of a particular
enterprise or enterprises of that country and a particular product has been submitted on behalf of theColombian producers.
Topic 6:  Provision for hearings under Article 6.2
Question
Canada would be interested in learning of  other Members' experience with meetings as
contemplated by Article 6.2.
Regarding the use of meetings (hearings) and other forms of fact-finding
(questionnaires, submissions, prehearing conf erences, etc.), have other members experienced
problems in the gathering of information for purposes of an anti-dumping investigation?
Regarding the Anti-Dumping Agreement Article 6.2 requirement to give parties the
right to present evidence orally, Canada would be interested in knowing of other Members'
practices and experience in this area.G/ADP/AHG/W/39
Page 8
Reply
Hearings in general are discussed in Part VI of this document.  However, specifically with
regard to the presentation of oral evidence at hear ings, for such evidence to be taken into account in
the investigation it must be submitted to the investig ating authority in writing within ten (10) working
days of the day following the holding of the hearing.
Topic 9:  Contents of preliminary affirmation decisions
Question
Canada believes that all statements of reas ons should be as comprehensive as possible.
Canada would be interested in the views an d comments of other Members on this issue.
Reply
Colombia agrees with Canada that statements of reasons should be as comprehensive as
possible.  In fact, in Colombian practice the initiating, preliminary and final decisions of any anti-
dumping investigation are taken after consideration and evaluation of the evidence relating to unfairtrading practices, injury, causal relationship, representativeness of the applicants, similarity of the
products investigated, etc.
This is required by the Colombian legislation.  Thus, Article 32 of Decree 299 of 1995, which
forms part of Chapter VII on procedure and responsibilities, states that "the application ... must be
submitted ... in accordance with the manual prepared by the INCOMEX Trade PracticesSubdirectorate, using the forms and attaching the documents required ... ".  The application must also
contain at least the following particulars:
1. Identification of complainant;
2. description of the imports concerned;
3. countries of origin or of export;4. name and domicile of the importers and exporters, if known;
5. export prices and normal value in the country of origin or of export;
6. any encouragement, incentive, premium, subsidy or other help provided to the
imported good or its raw materials or inputs in the country of origin or of export,
authority or agency providing such support, indicating where appropriate theapplicable law and, where possible, the value or amount thereof and its impact on the
price of the imported product;
7. determination of the injury or threat of injury or of material retardation of an industry
in Colombia caused by the dumped or subsidized imports, based on inter alia
indicators of output, sales, utilization of installed capacity and profit trends;
8. offer to submit the corresponding documents to the authorities for verification of
information supplied;
9. provision of the evidence intended for submission;G/ADP/AHG/W/39
Page 9
10. elements to determine the causal relationship between the practice and the injury;
11. identification of the confidential documentation and non-confidential summary or
version of that documentation.
Similarly, Article 37 of the same Decree concerning the initiation of the investigation and the
imposition of provisional duties states:  "if, in evaluating the application, INCOMEX finds grounds
for initiating an investigation, it shall adopt a resolution to that effect which shall be published withinthe period specified ... if INCOMEX does not find grounds for initiating an investigation, it shall
adopt a reasoned resolution to that effect within the same time-limits."
In addition, Article 39 requires that "INCOMEX shall, in a reasoned resolution, state the
preliminary decisions of the investigation."
Finally, Article 41 provides that once the Trade Practices Committee has given its opinion,
the Ministry of Foreign Trade shall adopt the appropriate decision in a reasoned resolution which shall
be communicated to the interested parties.
As will be appreciated, the Colombian legislation requires reasons to be given not only for the
decisions adopted but also for the development of the investigation, and the technical and economic
evaluation associated with proceedings of this type serves as a basis for an exhaustive statement of the
reasons for each decision taken.
Topic V
How is Article 5.5 implemented?  Do you have comments on the conclusions of
document G/ADP/AHG/W/33 ?
5.1 Legal provisions
5.1.1 WTO
Article 5.5 of the WTO Agreement on Implementation of Article VI of the General
Agreement on Tariffs and Trade 1994 which states:  "the authorities shall avoid, unless a decision has
been made to initiate an investigation, any publicising of the application for the initiation of an
investigation.  However, after receipt of a properly documented application and before proceeding to
initiate an investigation, the authorities shal l notify the Government of the exporting Member
concerned."
5.1.2 Colombian legislation
Law 170 of 15 December 1994 approves the Agreement Establishing the World Trade
Organization, including the complete text of the Agreement on Implementation of Article VI of the
General Agreement on Tariffs and Trade 1994.
5.2 Colombian practice
At present, any advance publicising of the applic ation for the initiation of an investigation is
avoided.  The existence of an application is not disclosed until, by reasoned resolution, INCOMEX
formally decides to initiate an investigation an d publishes the resolution in the Gaceta (Official
Journal) of the Ministry of Foreign Trade.G/ADP/AHG/W/39
Page 10
However, if an application is submitted and fo und to meet all the requirements laid down, the
complainant, and the complainant alone, shall be so notified within five working days.
During the period between official receipt of the application and the initiation of an
investigation the government of the exporting Member country concerned is notified that an
application has been submitted. A copy of the application is not provided.
Topic VI
(Article 6.2)  What is the practice regarding hearings?
6.1 Legal provisions
6.1.1 WTO
Article 6.2 of the Agreement on Implementation of Article VI of the General Agreement on
Tariffs and Trade 1994.
6.1.2 Colombian legislation
Law 170 of 15 December 1994 approves the Agreement Establishing the World Trade
Organization, including the complete text of the Agreement on Implementation of Article VI of the
General Agreement on Tariffs and Trade 1994.
In addition, Article 40 of Decree 299 of 10 February 1995 states:  "Joint Hearings of
Interested Parties.  Within 15 calendar days following publication of the preliminary determination,
the interested parties in the investigation and in general any persons who have shown that they have alegitimate interest in the investigation may apply for the holding of joint hearings of interested parties
representing different interests.
INCOMEX has five working days to convene the meeting.  The meeting shall be held within
one month from the date upon which the application is submitted."
6.2 Colombian practice
6.2.1 Procedure for holding a hearing
1. The purpose of holding a hearing is to provide an opportunity for the interested parties to
participate in order to present the views and rebuttal arguments they consider relevant, as well as to
comment on the determinations made in general in the course of an investigation for alleged dumping
of imports of a particular product.  This is based on Article 6.2 of the Agreement on Implementationof Article VI of the General Agreement on Tariffs and Trade 1994, pursuant to Article 40 of
Decree 299 of 1995.
2. This hearing may be attended by the applicants, the importers, exporters and known producers
of the goods subject to investigation, diplomatic or consular representatives of the countries of export
or of origin and, in general, anyone with an interest in the investigation.
3. The hearing is chaired by the Director of INCOMEX or his representative.
4. The hearing is conducted in Spanish and the parties confine themselves to dealing with the
views and rebuttal arguments submitted to the investigating body and to comments on the
determinations made in the course of the investigation.G/ADP/AHG/W/39
Page 11
5. Whenever they speak the representatives of the parties must identify themselves, giving their
own name and that of the enterprise they represent.
6. The Director of INCOMEX or his representative is authorized to chair the hearing and make
points of order so that the statements and other interventions of the participants are made in strictrotation and do not exceed 10 or at most 15 minutes in length.
7. The Director of INCOMEX or his representative may also require speakers to amplify, repeat
or clarify their statement, to the extent he considers necessary.
8. The confidentiality of information designated as confidential must be respected.9. The draft decree on dumping, which will am end Decree 299 of 1995, stipulates that only
those arguments which have been submitted in writing within ten (10) working days of the holding of
the meeting will be taken into account.
6.2.2 Stages of the proceeding
1. Opening.2. Items for discussion.3. Views and rebuttal arguments.4. Closing.1. Opening
In this stage, the Director of INCOMEX or his representative will give a brief account of the
Institute's activities in connection with the investigation.
2. Items for discussion
After opening the hearing, the Director of INCOMEX or his representative presents the topics
which, at the request of the interested parties, will be discussed at the hearing.
3. Views and rebuttal arguments
The Director of INCOMEX or his representative gives the floor to the speakers as follows:
representatives of the importers, exporters and known producers in that order, so that they may
present their views and/or rebuttal arguments.
Each representative of an interested party ma y speak, for the time allowed, on the evidence or
arguments submitted by the other parties.  Three minutes notice of the end of the statement is given.
No representative may speak for longer than the time allowed, unless the Director of
INCOMEX or his representative considers it appropriate.
Persons other than those mentioned may also be allowed to speak in order to explain or
elaborate on necessary technical aspects.G/ADP/AHG/W/39
Page 12
4. Closing
Once the statements have been made, the hearing is closed.
Topic VII
(Article 6.9)  What is the minimum information that is considered essential and must be
disclosed?
7.1 Colombian legislation
Law 170 of 1994, which incorporated the WTO Anti-Dumping Agreement into Colombian
law, establishes Article 6.9 of the Agreement as follows:  "the authorities shall, before a final
determination is made, inform all interested parties of the essential facts under consideration which
form the basis for the decision whether or not to apply definitive measures.  Such disclosure should
take place in sufficient time for the parties to defend their interests".
Decree 299 of 1995, the other piece of Colombian anti-dumping legislation, says nothing in
this respect.  In the event of a conflict between this Decree and Law 170, the latter takes precedence,both as a law approving an international treaty and hierarchically.
7.2 Colombian practice
In Colombia, the investigating authority is IN COMEX.  The Institute informs the interested
parties of the progress of the investigation by the following means:
1. A public record available to anyone from the time of initiation of the investigation;2. Resolutions published in the "Gaceta" of the Ministry of Foreign Trade which notify
the decisions relating to an initiation of an investigation, the preliminary decision and
the final determination.  These resolutions are communicated to the known interested
parties, to the diplomatic authorities of interested countries and the Colombian
representatives in those countries;
3. technical documents evaluating unfair practices, material injury and causal
relationship, which are held in the public record.  These documents are prepared by
INCOMEX in connection with both the initiation of the investigation and the
adoption of the preliminary and final decisions;
4. an executive summary summing up the analysis of unfair practices, material injury
and causal relationship conducted by INCOMEX in the final technical document of
the investigation.  This summary is subsequently discussed in the Trade Practices
Committee, which makes a corresponding recommendation to the Minister of Foreign
Trade who takes the final decision;
After the Trade Practices Committee has met, the executive summary is sent to the
interested parties in order to inform them of the essential facts taken into consideration which
will serve as a basis for the INCOMEX recommendation on whether or not to adopt definitive
measures.  When the comments of the interested parties have been received, a new
submission is made to the Trade Practices Committee so that it can make a recommendation,
based on all the information available, to the Minister of Foreign Trade who takes the
decision.G/ADP/AHG/W/39
Page 13
Topic VIII
Public notices and explanation of determinations (Article 12):
Colombian practice in this respect is as follows:
12.1.1 Initiation of an investigation
The initiating resolution is published in the "Gac eta" of the Ministry of Foreign Trade.  This
contains the necessary information concerning the name of the exporting country or countries, thedescription of the product investigated, the date of initiation of the investigation which is understood
to start from the time of publication in the "Gaceta", the applicants, matters of fact and law, etc.
The notice is inserted in a newspaper with a broad national circulation in order to publicize
the initiation of the investigation so that all the interested parties may participate.
The resolution and the public notice are included in the public record containing all the
documents relating to the proceeding, which is available to interested parties in general.
The resolution is communicated to the pa rties interested in the investigation.
12.2 Preliminary or final determinations, whether affirmative or negative, decisions to accept an
undertaking, to terminate such an undertaking or to terminate a definitive anti-dumping duty
The procedures mentioned under the previous heading are again followed.
It should be pointed out that the draft amendment to Decree 299 of 1995 establishes a
procedure for statements of intent, which includes:
(a) Submission of statements of intent by the interested party;
(b) issue of a resolution by the investigating authority, within the next 10 working days,
for communication to the interested parties;
(c) publication of the resolution in the "Gaceta" of the Ministry of Foreign Trade and
publication of a notice addressed to the interested parties;
(d) a period of five working days is allowed for the interested parties to submit their
comments in writing;
(e) within 15 working days of the publication of the resolution mentioned under (b),
INCOMEX will convene the Trade Practices Committee to present the resolution and
the comments received and to make its recommendations;
(f) the Committee then makes a recommendation to the Ministry of Foreign Trade;
(g) the Ministry issues a resolution adopting the decision considered to be in the best
interests of the country, an administrative act which also constitutes publication.G/ADP/AHG/W/39
Page 14
12.2.2 Public notices of conclusion or suspension of an investigation in the case of an
affirmative determination providing for the imposition of a definitive duty or the
acceptance of a price undertaking comply with the above-mentioned publication
procedures
In respect of the three cases considered above, in Colombian practice, in addition to the
notices mentioned, INCOMEX as the investigating authority, in each of the procedural stages of
initiation, preliminary determination and final determination, conducts a technical study which
includes the evaluation of unfair practices, material injury and causal relationship, as well as the
reasons for imposing definitive measures or accepting price undertakings, and these documents areheld in the corresponding record so that they may be available to interested parties in general.
Topic IX
Contents of preliminary affirmative determinations
Any administrative act which includes the affirmative adoption of a preliminary
determination will contain, in general terms:
1. A record of the investigation including, inter alia , the application for an investigation,
the evidence submitted, the replies to questionnaires, and visits for verification
purposes, where appropriate;
2. the preliminary determination which contains, inter alia , the following:  identification
and representativeness of the applicant, identification and similarity of the product
investigated;
3. the determination of dumping which includes:  export price, export price adjustments,
normal value, normal value adjustments, margin of dumping;
4. injury investigation:  volume of imports, performance of the domestic industry,
domestic sales, inventories, apparent domestic consumption, total domestic sales,
price trends, installed capacity and utilization thereof, employment, financial
analysis;
5. causal relationship between the practice and the injury caused to the domestic
industry;
6. resolution imposing provisional duties.
Topic X
(Article 9)  Imposition and collection of anti-dumping duties.  What are the refund procedures?  How
does the judicial review process intersect with these procedures?  What type of system is used and
how does it work (prospective or retrospective)?
10.1 What are the refund procedures?
Colombian legislation
According to Article 25 of Decree 299/95:  "There shall be a refund or a reduced amount of
security shall be collected when:
1. The definitive duties are lower than the provisional duties paid or guaranteed, in an amount
equivalent to the difference between them.G/ADP/AHG/W/39
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2. A definitive duty is established for threat of injury or material retardation in the establishment
of an industry in Colombia and the injury has not yet occurred, for the total amount of the duty paid or
return of the security.
3. Where definitive duties are not established, the security shall be returned or the entire amount
taken by way of provisional duty shall be refunded.
10.2 How does the judicial review process intersect with the refund procedures?
Colombian practice
If the administrative decision does not result in the imposition of duties, the latter shall be
refunded by DIAN, the body which refunds excess amounts in accordance with the procedure laid
down in the Customs Code for the reimbursement of  importers or orders the return of security.
10.3 What type of system is used and how does it work (prospective or retrospective)?
A prospective system is used for the application of anti-dumping duties, that is, starting from
the adoption of the administrative measure imposing them, except in the case of massive imports ornon-compliance with accepted statements of intent (price undertakings), in which case retroactive
duties may be applied.  If duties are reviewed, the results of the review are applied from the time of
adoption of the new administrative measure.  However,  by reason of the application of Article 9 of the
Anti-Dumping Agreement, there may be a refund of duties collected between the date of the decision
to impose definitive duties and the adoption of the administrative measure determining the outcome ofthe review.
The final decision with respect to a review is taken by the Ministry of Foreign Trade, while
the body responsible for making refunds is the National Customs Directorate, which produces the
corresponding administrative instrument.
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