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[N. E.: This document includes only the provisions concerning unfair practices of the Foreign Trade Act. A complete version of the law is available in Spanish]
FOREIGN TRADE ACT
ARTICLE 28 - The term "unfair international trade practices" means the importation of goods under conditions of price discrimination or subsidization in the country of origin or source which cause or threaten to cause injury to the domestic industry. Natural or legal persons importing goods in circumstances involving unfair international trade practices shall be obliged to pay a countervailing duty, in accordance with the provisions of this Act.
ARTICLE 29 - The existence of price discrimination or subsidies, injury or threat of injury and a causal link between them and the imposition of countervailing duties shall be determined on the basis of an investigation, in accordance with the administrative procedure prescribed in this Act and its Regulations.
Evidence of injury or threat of injury shall be required whenever the country of origin or source of the goods in question observes reciprocity. Otherwise, the Ministry may impose the appropriate countervailing duties without having to prove injury or threat of injury.
ARTICLE 30 - Importation under conditions of price discrimination consists in the introduction of goods into the national territory at less than their normal value.
ARTICLE 31 - The normal value of goods exported to Mexico is the comparable price, in the ordinary course of trade, for identical or like goods when destined for the domestic market of the country of origin.
However, when there are no sales of identical or like goods in the country of origin, or when such sales do not permit a proper comparison, the normal value shall be deemed to be:
ARTICLE 32 - The term "in the ordinary course of trade" shall mean commercial transactions which reflect market conditions in the country of origin and which are concluded customarily, or within a representative period, between independent buyers and sellers.
Sales in the country of origin or of export to a third country which reflect sustained losses shall be disregarded in calculating the normal value. Such sales shall be deemed to include transactions whose prices are insufficient to cover the costs of production and general costs incurred in the ordinary course of trade within a reasonable period of time, which may be more extensive than the period of investigation.
When the transactions in the country of origin or of export to a third country which generate profits are insufficient to be described as representative, the normal value shall be established on the basis of the computed value.
ARTICLE 33 - In the case of imports originating in a country with a centrally planned economy, the normal value of the goods in question shall be taken to be the price of identical or like goods in a third country with a market economy, which may be regarded as a substitute for the country with a centrally planned economy for the purposes of the investigation. The normal value shall be determined in accordance with the provisions of the preceding articles.
ARTICLE 34 - When goods are exported to Mexico from an intermediate country and not directly from the country of origin, the normal value shall be the comparable price of identical or like goods in the country of export.
However, if the goods in question are merely transshipped through or are not produced in the country of export or there is no comparable price for them in that country, the normal value shall be determined on the basis of the market price in the country of origin.
ARTICLE 35 - Where there is no export price or where it appears to the Ministry that the export price is not comparable with the normal value, that price may be calculated on the basis of the price at which the imported products are first resold to an independent buyer in the national territory.
ARTICLE 36 - The Ministry shall make the necessary adjustments to enable the export price and normal value to be compared. In particular, allowance shall be made for difference in terms and conditions of sale, quantities, physical characteristics and tax charges. When an interested party requests that a particular adjustment be taken into consideration, it shall be incumbent upon that party to provide the corresponding supporting evidence.
ARTICLE 39 - For the purposes of this Act, injury means material loss or impairment or deprivation of any lawful, normal gain which the domestic producers of the goods in question may suffer, or impediment to the establishment of new industries. Threat of injury means the imminent and clearly foreseen risk of injury to the domestic industry. A determination of threat of injury shall be based on facts and not merely on allegation, conjecture or remote possibility.
The administrative investigation must establish that the injury or threat of injury to the domestic industry is a direct consequence of importation under conditions involving price discrimination or subsidization within the meaning of this Act.
ARTICLE 40 - For the purposes of this Act, the expression "domestic industry" shall be understood as referring to at least 25 per cent of the domestic production of the goods in question.
However, when certain producers are related to the exporters or importers or are themselves importers of the product under investigation, the term "domestic industry" may be interpreted as referring to at least 25 per cent of the rest of the producers. When all of the producers are related to the exporters or importers or are themselves importers of the product under investigation, the term "domestic industry" may be interpreted as referring to the entire group of producers of the goods produced during the immediately preceding stage in the same continuous line of production.
ARTICLE 41 - The Ministry shall determine whether the importation of a particular product causes injury to the domestic industry taking the following criteria into account:
ARTICLE 42 - The Ministry shall determine the existence of a threat of injury to domestic production taking the following criteria into account:
In order to determine the existence of a threat of injury, the Ministry shall take into account all of the above factors which make it possible to conclude whether further imports in unfair conditions are imminent and whether, unless countervailing duties are applied, injury within the meaning of this Act will occur.
ARTICLE 43 - For the purposes of assessing the elements mentioned in Articles 41 and 42, the Ministry may cumulate the volume and the impact of imports of identical or like products from two or more countries under investigation, subject to the conditions and exceptions provided for in the Regulations.
ARTICLE 44 - Injury or the threat of injury to production in an isolated market within the national territory may be considered to exist whenever there is a concentration of imports into that market, in circumstances involving unfair practices, which adversely affects a significant part of its production. In such cases, the isolated market may be considered as such only if its producers sell a significant part of their production in that market and if demand is not to any substantial degree supplied by producers located elsewhere in the national territory.
ARTICLE 49 - The investigation of unfair international trade practices and safeguard measures shall be initiated ex officio or at the request of a party, in accordance with the provisions of the next Article.
In the investigation procedure to which this Title refers, an administrative dossier shall be compiled to serve as a basis for the issuance of the relevant administrative resolutions.
ARTICLE 50 - An interested-party request may be submitted by natural and legal persons producing:
The requesting parties must be representative of the domestic industry, within the meaning of Article 40, or be legally constituted organizations.
In his request, the requesting party must indicate, in writing, to the competent authority, with an undertaking to tell the truth, the reasons why it is necessary that countervailing duties or safeguard measures be applied. The request must comply with the requirements laid down in the Regulations. Requesting parties must attach to their written communication the questionnaire issued by the Ministry for the purpose.
ARTICLE 51 - The term "interested party" means the producers who have submitted requests, importers and exporters of the product under investigation, as well as any foreign legal persons having a direct interest in the investigation in question and those who are so defined in international trade agreements and treaties.
ARTICLE 52 - Within a period of 30 days following the submission of the request, the Ministry shall:
In any case, the Ministry shall publish the corresponding resolution in the Diario Oficial de la Federación.
ARTICLE 53 - Starting from the day following the publication in the Diario Oficial de la Federación of the resolution to initiate an investigation, the Ministry shall notify the interested parties of which it is aware, so that they may appear in order to make whatever statement they see fit. The interested parties shall be accorded a period of 30 days following the publication of the resolution to initiate an investigation in the Diario Oficial de la Federación to prepare their defence and submit the information requested.
The notification shall be accompanied by a copy of the request submitted and such attached documents as do not contain confidential information or, as the case may be, any relevant documents regarding ex officio investigations.
ARTICLE 54 - The Ministry may request the interested parties to produce evidence, information and data which it considers relevant, for which purpose the Ministry's questionnaires shall be used.
If the above request is not satisfied, the Ministry shall decide on the basis of the information available.
ARTICLE 55 - The Ministry may request the producers, distributors or traders of the goods in question as well as the customs officers, agents, representatives and persons receiving the imported goods, or any other person it deems appropriate, to provide information and data which they have at their disposal.
ARTICLE 56 - The interested parties in an investigation shall send the other interested parties copies of each of the reports, documents or items of evidence which they submit to the authorities during the proceedings, except the confidential information referred to in Article 81.
ARTICLE 57 - Within a period of 130 days from the day following the publication in the Diario Oficial de la Federación of the resolution to initiate an investigation, the Ministry shall issue a preliminary resolution by which it may:
The interested parties shall be notified of the preliminary resolution, which shall be published in the Diario Oficial de la Federación.
ARTICLE 58 - Once the investigation of unfair international trade practices has been concluded, the Ministry shall submit the draft final resolution to the Commission for its opinion.
ARTICLE 59 - Within a period of 260 days from the day following publication of the resolution initiating the investigation in the Diario Oficial de la Federación, the Ministry shall issue a final resolution. In this resolution the Ministry shall:
The final resolution shall be notified to the interested parties and published in the Diario Oficial de la Federación.
ARTICLE 60 - Once a final countervailing duty has been fixed, the interested parties may request the Ministry to decide whether a given product is subject to the said duty. In such case the Ministry shall provide the said party with an answer in conformity with the procedure set forth in the regulations. This answer shall have the character of a final resolution and shall be published in the Diario Oficial de la Federación.
ARTICLE 61 - During the administrative investigation, the interested parties may request the Ministry to hold a conciliation meeting. At this meeting, proposals may be submitted to resolve the case and terminate the investigation, which, if adopted, shall be approved by the Ministry and incorporated into the resolution which shall have the character of a final resolution. The interested parties shall be notified of this resolution which shall be published in the Diario Oficial de la Federación.
ARTICLE 62 - The Ministry shall fix the amount of the countervailing duties which shall be equivalent, in cases of price discrimination, to the difference between the normal value and the export price, and in cases of subsidization, to the amount of the benefit.
Countervailing duties may be less than the margin of price discrimination or than the amount of the subsidy provided they are sufficient to discourage imports of goods in circumstances involving unfair international trade practices.
ARTICLE 63 - Countervailing duties shall be considered revenue within the meaning of Article 30 of the Federal Tax Code.
ARTICLE 64 - If the fixing of a countervailing duty involves several suppliers from one or more countries and it is impracticable to name all these suppliers, the Ministry may order its application to the country or countries concerned.
ARTICLE 65 - Provisional and final countervailing duties shall be collected by the Ministry of Finance and Public Credit, which may accept guarantees provided in conformity with the Federal Tax Code in respect of provisional countervailing duties.
If the final resolution confirms the provisional countervailing duty, payment of the said duty shall be demanded or, failing such payment, the guarantees provided shall be put into effect. If the final resolution modifies or revokes the duty, the said guarantees shall be annulled or modified or, where appropriate, the amounts paid under this procedure or the corresponding difference shall be refunded with interest.
ARTICLE 66 - Importers of a product identical or alike to the product subject to a provisional or final countervailing duty shall not be required to pay such duty if they can prove that the country of origin or source is different from the country exporting the goods in circumstances involving unfair international trade practices.
ARTICLE 67 - Final countervailing duties shall remain in effect for the length of time and to the extent necessary to offset the unfair practice which is causing or threatening to cause injury to the domestic industry.
ARTICLE 68 - Final countervailing duties shall be reviewed annually at the request of a party and shall at all times be subject to ex officio reviews by the Ministry. In any case, resolutions announcing the initiation and the conclusion of a review shall be published in the Diario Oficial de la Federación. During the review proceedings, the interested parties may give the undertakings mentioned in Article 72 of this Act.
Resolutions confirming, modifying or revoking final countervailing duties shall also have the character of a final resolution, and shall be submitted previously to the Commission for its opinion.
ARTICLE 69 - When final countervailing duties have been imposed to offset the threat of injury due to imports under conditions of price discrimination or subsidy, the review shall include, where appropriate, an evaluation of the investment which without the countervailing duty could not feasibly have been made. The countervailing duty may be revoked by the Ministry if the planned investment has not materialized.
ARTICLE 70 - Final countervailing duties shall be eliminated if within a period of five years following their entry into force none of the interested parties has requested their review and the Ministry has not initiated such a review ex officio.
ARTICLE 71 - In cases where parts or components are introduced into the national territory for the purpose of assembly on that territory of goods subject to provisional or final duties with a view to eluding payment of such duties, the duty in question shall be imposed on the importation of the said parts or components. The same rule shall apply to cases where parts or components are assembled in a third country and the finished product is introduced into the national territory, or to the exportation of products having relatively slight physical differences in comparison with those subject to provisional or final countervailing duties for the purpose of eluding payment of such duties.
ARTICLE 72 - When in the course of an investigation the exporter of goods in circumstances involving unfair international trade practices gives a voluntary undertaking to revise his prices or to cease exports, or if the government of the exporting country eliminates or limits the subsidy in question, the Ministry may suspend or terminate the investigation without the imposition of countervailing duties. For this purpose, the Ministry shall determine whether, as a result of these undertakings or any similar undertakings which may be given, the injurious effect of the unfair practice is eliminated.
ARTICLE 73 - If the Ministry accepts an undertaking given by the exporter or the interested government, it shall issue an appropriate resolution declaring the administrative investigation suspended or terminated. This resolution shall be notified to the interested parties and published in the Diario Oficial de la Federación. Before being published, the resolution shall be submitted to the Commission for its opinion. The undertaking given shall be incorporated in the corresponding resolution together with the Commission's opinion, in accordance with the provisions of Article 6 of this Act.
ARTICLE 74 - The fulfilment of these undertakings may be reviewed periodically, ex officio or at the request of a party. If as a consequence of the review the administrative authority finds that the undertaking has not been fulfilled, the collection of the provisional countervailing duty shall be reinstated immediately by publication of the corresponding resolution in the Diario Oficial de la Federación and the investigation shall be continued.
ARTICLE 80 - The Ministry shall provide timely opportunities for the interested parties to see all information in the administrative dossier relevant to the presentation of their cases. Confidential information shall be made available only to the accredited legal representatives of the parties interested in the administrative investigation, except in the case of restricted commercial information which, if divulged, could cause substantial and irreversible injury to the owner of that information, and confidential government information.
The legal representatives of the interested parties having access to the confidential information shall not use such information for their personal benefit, nor disseminate it. Infringement of this requirement shall be punishable under the provisions of this Act, independently of such civil and criminal penalties as may be applicable.
During the investigation proceedings referred to in this section the Ministry shall provide timely access, at the request of the interested parties or their representatives, to any non-confidential information forming part of the administrative dossier of any other investigation after a period of 60 days following the publication of the relevant final resolution.
ARTICLE 81 - In the notification referred to in Article 53, the Ministry shall inform the interested parties that a public hearing will be held at which they may appear and submit arguments in defence of their interests and, in the case of safeguard action, present the relevant evidence. At this hearing, interested parties may question the other interested parties. In the case of investigations into unfair international trade practices, the hearings shall be held following the publication of the preliminary resolution and prior to the publication of the final resolution.
ARTICLE 82 - The interested parties may adduce evidence of all types except statements by the authorities or material considered contrary to public order or offensive to morals or decency.
The Ministry may agree at any time to the institution, repetition or extension of any proceedings considered necessary and conducive to the discovery of the truth regarding the matters under dispute. Furthermore, the Ministry may institute such proceedings as it considers appropriate in order to obtain better information.
The Ministry shall appoint a period for pleadings following the period for the presentation of evidence to permit the interested parties to make their submissions.
The Ministry's decisions to accept a given piece of evidence shall not be open to appeal during the proceedings.
ARTICLE 83 - The Ministry may verify the information and evidence submitted during the course of the investigation, and for that purpose may issue a written order authorizing a search of the legal domicile, the establishment or the place where the relevant information is located. The Ministry may proceed as it deems appropriate in order to verify that the said information and evidence conform with the accounts of the company subject to the search, to collate the documents in the administrative dossier or to make attested copies.
Information and evidence submitted by the interested parties may be verified in the country of origin if the interested parties so agree. Without their consent, the Ministry shall assume that the requesting party's claims are true, unless there exist elements which indicate otherwise.
Searches by the Ministry for the purpose of verification shall be carried out on working days and during working hours by its own accredited staff. However, they may also take place outside working days and hours where necessary, in which case the official letter ordering the search shall contain the necessary authorization.
Detailed records of the searches shall be drawn up in the presence of two witnesses provided by the party subject to the search or, in the absence of the said party or in the event that the said party refuses to provide witnesses, by the authority in charge of the proceedings. These searches shall be subject to the provisions of the Regulations.
ARTICLE 84 - The notifications referred to in this Act shall be transmitted to the interested party or his representative personally at his domicile by registered mail with acknowledgement of receipt or by any other direct means such as a specialized messenger service or electronic mail. The notifications shall enter into force on the working day following the day on which they were issued. The Regulations shall establish the form and content of the notifications.
ARTICLE 85 - In the absence of any express provision in this Act concerning the administrative proceedings in respect of unfair international trade practices and safeguard action, the Federal Tax Code shall apply by default on a supplementary basis for all matters pertaining to the nature of the said proceedings. This provision shall not apply in respect of notifications and searches for the purpose of verification.
ARTICLE 86 - If in the course of the proceedings referred to in this section the Ministry observes that any of the interested parties is involved in the monopolistic practices which are punishable under the relevant legislation, it shall so inform the competent authority.
ARTICLE 87 - Countervailing duties and safeguard measures may be specific, or ad valorem. If specific, they shall be computed at a fixed rate per unit of measurement, and shall be assessed in the equivalent in Mexican currency. If ad valorem, they shall be computed as a in percentage of the customs value of the product in question.
ARTICLE 88 - When imposing a countervailing duty or proposing the application of a safeguard measure, the Ministry shall ensure as far as possible that such measure, in addition to providing timely defence for the domestic industry, avoids any negative impact on other production processes and on consumers.
ARTICLE 89 - Provisional and final countervailing duties and safeguard actions shall be applied from the day following their publication in the Diario Oficial de la Federación.
Importers or their consignees shall be required to calculate in the relevant import applications the amounts of the provisional and final countervailing duties or safeguard duties and to pay them, together with their foreign trade taxes, without prejudice to the guarantees in respect of provisional countervailing duties pursuant to Article 65 and in respect of the final countervailing duties pursuant to Article 98, subparagraph III.
ARTICLE 93 - It shall be the responsibility of the Ministry to punish the following infringements:
For the purposes of this Article, the term "legal minimum wage" shall be understood to mean the general daily minimum wage in force in the Federal District at the time at which the infringement was committed.
In applying the fines referred to in subparagraphs V and VI of this Article, the Ministry shall take account of the seriousness of the infringement, the injury and losses caused, the previous record and the personal and economic situation of the offender.
The fines referred to in this Article shall be imposed independently of the penal and civil sanctions applicable under the law. The fines shall only be imposed once the suspected offender has been heard.
ARTICLE 94 - An appeal for reversal through administrative channels may be filed in respect of resolutions:
Appeals for reversal of resolutions in respect of certification of origin and actions by which final countervailing duties are implemented shall be filed with the Ministry of Finance and Public Credit. All other such appeals shall be filed with the Ministry.
ARTICLE 95 - The purpose of the appeal for reversal referred to in this chapter is to reverse, modify or confirm the contested resolution and the rulings issued shall set forth the action challenged, the legal grounds for the decision and the various points of the decision.
Appeal for reversal shall be handled and resolved in accordance with the provisions of the Federal Tax Code, and shall be referred to the Upper Chamber of the Federal Tax Court only when such proceedings have been exhausted.
Resolutions issued to decide an appeal for reversal or declare such appeal not receivable shall be final in character and may be challenged before the Upper Chamber of the Federal Tax Court by an action substantiated in accordance with the final paragraph of Article 239 bis of the Federal Tax Code.
Resolutions which are not appealed within the deadline established by the Federal Tax Code shall be considered to have been accepted and may not be challenged before the Federal Tax Court.
ARTICLE 96 - In respect of appeals for reversal of resolutions and actions referred to in Article 94, paragraph (V), the provisions of Article 95 shall apply provided the following conditions are met:
ARTICLE 97 - Any interested party may, in respect of the resolutions and actions referred to in Article 94, paragraph (V), choose to resort to the alternative dispute settlement mechanisms with regard to unfair practices provided for in the international treaties and trade agreements to which Mexico is a party. If such mechanisms are chosen:
ARTICLE 98 - In addition to the provisions of Articles 96 and 97, appeals against the resolutions referred to in Article 94, paragraph (V), shall be subject to the following regulations: