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Regulations of the People's Republic of China on
Anti-dumping
The Decision of the State Council on Amending the
Regulations of the People's Republic of China on
Anti-dumping is now promulgated and shall enter into force
as of June 1, 2004
Premier: WEN Jiabao
March 31, 2004
(Promulgated by Decree No. 328 of the State Council of the
People's Republic of China on 26 November 2001, and amended
by the Decision of the State Council on Amending the
Regulations of the People's Republic of China on
Anti-dumping on March 31, 2004)
Chapter 1 - General Provisions
Article 1. These
Regulations are formulated in accordance with the relevant
provisions of the Foreign Trade Law of the People's Republic
of China for the purpose of maintaining the foreign trade
order and fair competition.
Article 2. Where
an imported product is dumped into the market of the
People's Republic of China and causes material injury or
threat of material injury to an established domestic
industry, or causes material obstruction to the
establishment of such an industry, an anti-dumping
investigation shall be initiated and anti-dumping measures
applied in accordance with the provisions of these
Regulations.
Chapter II - Dumping and Injury
Article 3. The
term"dumping" means that an imported product is introduced,
in the ordinary course of trade, into the market of the
People's Republic of China at an export price less than its
normal value.
The Ministry of Commerce (hereinafter referred to as"MOFCOM"
shall be responsible for the investigation and determination
of dumping.
Article 4. The
normal value of an imported product shall be determined
according to the following methods by distinguishing among
differing cases:
(1) where there is a comparable price for the like product
of the imported product in the ordinary course of trade in
the domestic market of the exporting country (region), such
comparable price shall be the normal value;
(2) where there are no sales of the like product of the
imported product in the ordinary course of trade in the
domestic market of the exporting country (region), or the
price and the quantity of such sales do not permit a fair
comparison, the normal value shall be the comparable price
of the like product when exported to an appropriate third
country (region) or the cost of production of the like
product in the country (region) of origin plus a reasonable
amount for expenses and for profits.
In cases where a product is not imported directly from the
country (region) of origin, its normal value shall be
determined in accordance with Item 1 of the preceding
paragraph. However, under the circumstances that the product
is merely transshipped through the exporting country, or the
product is not produced in the exporting country (region),
or there is no comparable price for the said product in the
exporting country (region), the price of the like product in
the country (region) of origin may be taken as the normal
value.
Article 5. The
export price of an imported product shall be determined
according to the following methods by distinguishing among
differing cases:
(1) the price actually paid or payable for the imported
product shall be the export price;
(2) in cases where there is no export price for the imported
product or the price is unreliable, the export price may be
fixed on the basis of the price at which the imported
product is first resold to an independent buyer; however, if
the imported product is not resold to an independent buyer,
or not resold in the condition as imported, the export price
may be determined on the basis of a reasonable price fixed
by MOFCOM.
Article 6. The
margin of dumping is the amount by which the export price of
an imported product is less than its normal value.
A fair and reasonable comparison shall be made between the
export price and the normal value of an imported product,
with due allowance for factors which affect price
comparability.
The margin of dumping shall be established on the basis of a
comparison of a weighted average normal value with a
weighted average of prices of all comparable export
transactions or by a comparison of normal value and export
price on a transaction-to-transaction basis.
Where the export prices differ significantly among different
purchasers, regions or time periods, and therefore it is
difficult to make comparison through the methods prescribed
in the preceding paragraph, a comparison may be made between
a weighted average normal value with prices of individual
export transactions.
Article 7. The
term "injury" means material injury or threat of material
injury to an established domestic industry or material
obstruction of the establishment of such a domestic
industry.
MOFCOM shall be responsible for the investigation and
determination of injury. The anti-dumping investigation of
injury to a domestic industry involving agricultural
products shall be conducted by MOFCOM jointly with the
Ministry of Agriculture.
Article 8. The following factors shall be examined in the
determination of injury caused by dumping to a domestic
industry:
(1) whether the volume of dumped imports, including the
volume of dumped imports either in absolute terms or
relative to the production or consumption of a like domestic
product, has been increasing significantly, or the
possibility of a significant increase in dumped imports;
(2) the effects of dumped imports on prices, including the
price undercutting by the dumped imports, or the significant
suppressing or depressing effects on the price of a like
domestic product, etc.;
(3) the consequent impact of the dumped imports on the
relevant economic factors and indices of the domestic
industry;
(4) the production capacity or export capacity of the
exporting country (region) or the country (region) of
origin, and inventories of the product under investigation;
(5) other factors that may cause or have caused injury to a
domestic industry.
The determination of threat of material injury shall be
based on facts and not merely on allegation, conjecture or
remote possibility.
When determining the injury caused by dumping to a domestic
industry, the determination shall be based on positive
evidence, and the injuries caused by factors other than
dumping must not be attributed to dumping.
Article 9. Where the dumped imports from more than one
country (region) simultaneously satisfy the following
requirements, the effects of such dumped imports on a
domestic industry may be cumulatively assessed:
(1) the margin of dumping established in relation to the
dumped imports from each country (region) is no less than 2
per cent, and the volume of such imports from each country
is not negligible;
(2) a cumulative assessment of the effects of the dumped
imports is appropriate in light of the conditions of
competition between the dumped imports and the conditions of
competition between the dumped imports and the domestic like
product.
The volume of dumped imports shall normally be regarded as
negligible if the volume of dumped imports from a particular
country (region) is found to account for less than 3 per
cent of the total imports of the like product, unless
countries (regions) which individually account for less than
3 per cent of the total imports of the like product
collectively account for more than 7 per cent of its total
imports of the like product.
Article 10. The effect of the dumped imports shall be
assessed in relation to the separate identification of the
domestic production of the like product. If separate
identification of that production is not possible, the
effect of the dumped imports shall be assessed by the
examination of the production of the narrowest group or
range of products, including the like domestic product.
Article 11. The
term "domestic industry" means the domestic producers as a
whole of the like products within the People¡¦s Republic of
China or those of them whose collective output of the
product constitutes a major proportion of the total
production of those products, except in cases where domestic
producers are related to the exporters or importers or are
themselves importers of the dumped imports or like products.
In exceptional circumstances, the producers within a
regional domestic market may be regarded as a separate
industry if the producers within the market sell all or
almost all of the like products in that market, and the
demand in that market is not to any substantial degree
supplied by domestic producers of the like products located
in other domestic regions.
Article 12. The
term "like product" means the product that is identical to
the dumped product, or in the absence of such a product,
another product that has characteristics closely resembling
the dumped product.
Chapter III - Anti-dumping Investigation
Article 13. Any domestic industry or natural person, legal
person or relevant organisation on behalf of the domestic
industry (hereinafter collectively referred to as "the
applicant") may make a written application to MOFCOM for an
anti-dumping investigation in accordance with the provisions
of these Regulations.
Article 14. The
application shall contain the following information:
(1) the name, address and relevant information of the
applicant;
(2) a complete description of the imported products in
question, including the names of products, the exporting
countries (regions) or the countries (regions) of origin
concerned, the identity of known exporters or producers,
information on the prices of the products destined for
consumption in the domestic market of the exporting
countries (regions) or the countries (regions) of origin,
and information on export prices, etc.;
(3) a description of the volume and value of the domestic
production of the like product;
(4) the effect of the volume and price of the imported
product in question on the domestic industry;
(5) other information that the applicant considers as
necessary to submit.
Article 15. The
application shall be supported by the following evidence:
(1) existence of dumping of the imported product in
question;
(2) injury caused to a domestic industry;
(3) existence of a causal link between dumping and the
injury.
Article 16.
MOFCOM shall, within 60 days from the date of receipt
of the application and relevant evidence submitted by the
applicant, examine whether the application is made by or on
behalf of the domestic industry, the contents of the
application and the evidence attached thereto, and shall
decide whether or not to initiate an investigation.
Prior to the decision to initiate an investigation, the
government of the exporting country (region) concerned shall
be notified.
Article 17. An
application shall be considered to have been made by or on
behalf of the domestic industry and an anti-dumping
investigation may be initiated, if the application is
supported by those domestic producers whose collective
output constitutes more than 50 per cent of the total
production of the like product produced by that portion of
the domestic industry expressing either support for or
opposition to the application. However, no investigation
shall be initiated when the output of those domestic
producers expressly supporting the application account for
less than 25 per cent of the total production of the like
domestic product.
Article 18. If,
in exceptional circumstances, MOFCOM does not receive any
written application for an anti-dumping investigation, but
has sufficient evidence of dumping, injury and causality
between the two, it may decide to initiate the
investigation.
Article 19.
MOFCOM shall publish the decision to initiate an
investigation and notify the applicants, the known exporters
and importers, the governments of an
exporting countries (regions) and other interested
organisations and parties (hereinafter collectively referred
to as"the interested parties").
As soon as the decision to initiate an investigation has
been published, MOFCOM shall provide the full text of the
application to the known exporters and the governments of
the exporting countries (regions).
Article 20.
MOFCOM may conduct investigation and collect information
from interested parties by, among others, sending
questionnaires, using samples, holding public hearings and
making on-the-spot verification.
MOFCOM shall provide opportunities for all interested
parties concerned to present their views and supporting
arguments.
MOFCOM may send its staff members to the countries (regions)
concerned to carry out investigation if it deems necessary
to do so, unless the countries (regions) concerned object to
such an investigation.
Article 21. An
interested party shall provide authentic information and
relevant documentation to MOFCOM in the process of the
investigation. In the event that any interested party does
not provide authentic information and relevant
documentation, or does not provide necessary information
within a reasonable time-limit or significantly impedes the
investigation in other ways, MOFCOM may make determinations
on the basis of the facts already known and the best
information available.
Article 22. An
interested party may request MOFCOM to treat the information
it provided as confidential if it considers that any
disclosure of such information would create significantly
adverse effects.
MOFCOM shall treat the information submitted by the
interested party as confidential if they consider that the
request for confidentiality is justifiable, and shall
require the interested party to provide non-confidential
summaries thereof.
The confidential information shall not be disclosed without
the permission of the interested party submitting it.
Article 23. MOFCOM shall allow the applicant and interested
parties to have access to the information relevant to the
investigation, provided that the information has not been
treated as confidential.
Article 24.
MOFCOM shall, on the basis of their findings, make a
preliminary determination on dumping, injury, whether a
causal link exists between dumping and injury, and publish
the preliminary determinations.
Article 25. In
cases where a preliminary determination on dumping, injury
and the causal link between the two is affirmative, MOFCOM
shall carry out further investigations on dumping, the
margin of dumping, injury and its degree, and, on the basis
of their findings, make final determinations respectively.
The final determinations shall be published.
Before the final determinations are made, MOFCOM shall
inform all known interested parties of the essential facts
on which the final determinations are based.
Article 26. An
anti-dumping investigation shall be concluded within 12
months from the date of publication of the decision to
initiate the investigation, and the period may be extended
in special circumstances, but in no case shall the extension
be more than 6 months.
Article 27. In
any one of the following circumstances, an anti-dumping
investigation shall be terminated and such termination shall
be published by MOFCOM:
(1) the application has been withdrawn by the applicant;
(2) there is not sufficient evidence of the existence of
dumping, injury and the causal link between the two;
(3) the margin of dumping is less than 2 per cent;
(4) the actual or potential volume of dumped imports or the
injury is negligible;
(5) other circumstances that MOFCOM considers not
appropriate to continue the anti-dumping investigation.
If the product under investigation imported from one country
(region) or some countries (regions) falls under one of the
circumstances set forth in Item 2, 3, or 4 of the preceding
paragraph, the anti-dumping investigation on the said
product shall be terminated.
Chapter IV - Anti-dumping Measures
Section I:
Provisional Anti-dumping Measures
Article 28. The
following provisional anti-dumping measures may be applied
if the preliminary determination establishes the existence
of dumping and the injury caused by dumping to a domestic
industry:
(1) imposition of a provisional anti-dumping duty;
(2) provision of deposit, bond or other forms of security.
The amount of the provisional anti-dumping duty, cash
deposit, bond or other forms of security provided shall not
exceed the margin of dumping established in the preliminary
determination.
Article 29. The
proposal imposing provisional anti-dumping duties shall be
put forward by MOFCOM; on the basis of such a proposal the
State Council Tariff Commission shall make a decision
thereon. The decision shall be published by MOFCOM. The
decision on the provision of deposit, bond or other forms of
security shall be made and published by MOFCOM. The Customs
shall implement the decision from the effective date set
forth in the public notice.
Article 30. The
period for applying provisional anti-dumping measures shall
not exceed 4 months from the effective date set forth in the
public notice regarding the decision on provisional
anti-dumping measures, and, in special circumstances, may be
extended to 9 months.
No provisional anti-dumping measures shall be applied within
60 days from the date of publication of the decision to
initiate the investigation.
Section II:
Price Undertakings
Article 31.
During the period of an anti-dumping investigation, an
exporter of the dumped imports may offer price undertakings
to MOFCOM to revise its prices or to cease exporting at
dumped prices.
MOFCOM may suggest price undertakings to the exporter.
MOFCOM shall not force the exporter to enter into price
undertakings.
Article 32. The
fact that exporters do not offer price undertakings, or do
not accept any suggestion concerning price undertakings,
shall in no way prejudice the investigation and
determination of the anti-dumping case. MOFCOM has the right
to determine that a threat of injury is more likely to be
realized if the exporters continue dumping the imports.
Article 33. If
considering that price undertakings made by exporters are
acceptable and conform to the public interests, MOFCOM may
decide to suspend or terminate the anti-dumping
investigation without applying provisional anti-dumping
measures or imposing anti-dumping duties. The decision to
suspend or terminate the anti-dumping investigation shall be
published by MOFCOM.
If MOFCOM does not accept a price undertaking, it shall
provide the reasons therefore to the exporters concerned.
Price undertakings shall not be sought or accepted unless
MOFCOM have made a preliminary affirmative determination of
dumping and injury caused by such dumping.
Article 34.
After the suspension or termination of the investigation
according to the provisions of Paragraph 1, Article 33 of
these Regulations, upon the request of the exporters, MOFCOM
may continue the investigation of dumping and injury, or
MOFCOM may continue the investigation of dumping and injury
when it deems necessary.
On the basis of the findings of the investigation prescribed
in the preceding Paragraph, the price undertaking shall
automatically lapse if a negative determination is made on
dumping or injury, but shall remain in force if the
determination made on dumping and injury is affirmative.
Article 35.
MOFCOM may require the exporter from whom an undertaking has
been accepted to provide periodically information and
documentation relevant to the fulfillment of such an
undertaking, and make verification on such information and
documentation.
Article 36. In
the case where an exporter violates his undertaking, MOFCOM
may decide to resume the anti-dumping investigations
immediately in accordance with the provisions of these
Regulations, or on the basis of the best information
available, decide to apply provisional measures and levy
anti-dumping duties retroactively on the products imported
within 90 days prior to the application of such provisional
anti-dumping measures, except the products imported before
the violation of the undertaking.
Section III:
Anti-dumping Duties
Article 37. If a
final determination establishes the existence of dumping and
injury caused by dumping to a domestic industry, an
anti-dumping duty may be imposed. Collection of anti-dumping
duty shall conform to the public interests.
Article 38. The
proposal imposing an anti-dumping duty shall be put forward
by MOFCOM; on the basis of such a proposal the State Council
Tariff Commission shall make a decision which shall be
published by MOFCOM. The Customs shall implement the
decision from the effective date set forth in the public
notice.
Article 39.
Anti-dumping duties shall be imposed on products imported
after the date of publication of the final determination,
with the exception of the circumstances set forth in
Articles 36, 43 and 44 of these Regulations.
Article 40.
Anti-dumping duties shall be paid by importers of dumped
imports.
Article 41.
Anti-dumping duties shall be determined separately on the
basis of the margin of dumping established for each
individual exporter. Where it is necessary to impose an
anti-dumping duty on the dumped imports of an exporter who
has not been included in the ongoing examination, an
anti-dumping duty applicable to the exporter shall be
determined in a reasonable way.
Article 42. The
amount of the anti-dumping duty shall not exceed the margin
of dumping established in a final determination.
Article 43. In
the case where a final determination establishes the
existence of a material injury, and provisional anti-dumping
measures have been applied prior to the final determination,
anti-dumping duties may be levied retroactively for the
period for which provisional anti-dumping measures have been
applied.
In the case where a final determination establishes the
existence of a threat of material injury, and provisional
anti-dumping measures have been applied in the situation
that the absence of such provisional anti-dumping measures
would have lead to a determination of injury, anti-dumping
duties may be levied retroactively for the period for which
provisional anti-dumping measures have been applied.
If the definitive anti-dumping duty determined in a final
determination is higher than the provisional anti-dumping
duty paid or payable, or the amount estimated for the
purpose of the security, the difference shall not be
collected; if the definitive duty is lower than the
provisional anti-dumping duty paid or payable, or the amount
estimated for the purpose of the security, the difference
shall be refunded or the duty recalculated, as the case may
be.
Article 44. When
the following two circumstances exist simultaneously, an
anti-dumping duty may be retroactively levied on products
imported not more than 90 days prior to the date of
application of provisional anti-dumping measures, except the
products imported before the initiation of the
investigation:
(1) there is a dumping history of the dumped imports causing
injury to the domestic industry, or the importer of the
dumped imports was, or should have been, aware that the
exporters practice dumping and that such dumping would cause
injury to the domestic industry;
(2) the dumped imports were massively imported in a short
time and were likely to seriously undermine the remedial
effect of the definitive anti-dumping duty to be applied.
After launching an investigation, MOFCOM may take necessary
measures, such as imposing import registration onto related
imported products, where sufficient evidence exists pointing
to the existence of the two circumstances listed above at
the same time, in order to collect retroactive anti-dumping
duties.
Article 45.
Where a final determination decides not to levy an
anti-dumping duty, or does not decide a retroactive levy of
an anti-dumping duty, the provisional anti-dumping duty
collected and any deposit made during the period of the
application of provisional anti-dumping measures shall be
refunded, and any bonds or other forms of security released.
Article 46. If
an importer of dumped imports can provide evidence to prove
that the anti-dumping duty already paid is higher than the
margin of dumping, he can apply to MOFCOM for duty refund.
MOFCOM shall, upon examination and verification of the
application, make a proposal to the State Council Tariff
Commission, who shall make a decision to reimburse the extra
duty on the basis of the proposal made by MOFCOM, and the
Customs shall implement the decision.
Article 47.
After an imported product is subject to an anti-dumping
duty, new exporters who have not exported the product in
question to the People's Republic of China within the period
of investigation, may apply to MOFCOM for a separate
determination of the margin of dumping, provided that they
can show that they are not related to any of the exporters
who are subject to the anti-dumping duty.
MOFCOM shall promptly carry out a review and make a final
determination. No anti-dumping duties shall be levied on
imports from such exporters or producers while the review is
being carried out, but measures may be taken as provided for
in Item 2, Paragraph 1 of Article 28 of these Regulations.
Chapter V Duration and Review of
Anti-dumping duties and price undertakings
Article 48. The
period for the levy of an anti-dumping duty and fulfillment
of a price undertaking shall not exceed 5 years. However,
the period for the levy of the anti-dumping duty may be
extended as appropriate if, as a result of the review, it is
determined that the termination of the duty would be likely
to lead to continuation or recurrence of dumping and injury.
Article 49.
After an anti-dumping duty has taken effect, MOFCOM may
decide on justifiable grounds to review the need for the
continued imposition of the anti-dumping duty; such a review
may also be conducted, provided that a reasonable period of
time has elapsed, upon request by any interested party and
on the basis of examination of the relevant evidence
submitted by the interested party.
After a price undertaking has taken effect, MOFCOM may, on
justifiable grounds, decide to review the need for the
continuance of the price undertaking; such a review may also
be conducted, provided that a reasonable period of time has
elapsed, upon request by any interested party and on the
basis of examination of the relevant evidence submitted by
the interested party.
Article 50. On
the basis of the findings of a review, MOFCOM shall, in
accordance with the provisions of these Regulations, make a
proposal on the retention, revision, or termination of an
anti-dumping duty, and on the basis of such a proposal the
State Council Tariff Commission shall, in light of the
proposal made by MOFCOM, make a decision which shall be
published by MOFCOM. MOFCOM may make a decision on the
retention, revision, or termination of the price undertaking
and publish the decision in accordance with the provisions
of these Regulations.
Article 51. The
review proceedings shall be conducted with reference to the
relevant provisions of these Regulations on anti-dumping
investigation.
Any review shall be concluded within 12 months from the date
of the decision of initiation of such a review.
Article 52.
During the period of review, the review proceedings shall
not impede the application of anti-dumping measures.
Chapter VI - Supplementary Provisions
Article 53.
Where any party is not satisfied with a final determination
made under Article 25 of these Regulations, or not satisfied
with a decision on whether or not to impose an anti-dumping
duty, retroactive imposition of an anti-dumping duty,
reimbursement of an anti-dumping duty or imposition of an
anti-dumping duty on new exporters made under Chapter IV of
these Regulations, or not satisfied with the review findings
made under Chapter V of these Regulations, it may, in
accordance with the law, apply for administrative
reconsideration or file a lawsuit in the people's court.
Article 54. A
public notice issued under these Regulations shall contain,
inter alia, important information, facts, reasoning, legal
basis, findings and conclusions, etc.
Article 55.
MOFCOM may take appropriate measures to prevent the
circumvention of anti-dumping measures.
Article 56.
Where a country (region) discriminatorily imposes
anti-dumping measures on the exports from the People's
Republic of China, China may, on the basis of the actual
situations, take corresponding measures against that country
(region).
Article 57. MOFCOM is responsible for foreign-related
consultations, notification and dispute settlements
concerning anti-dumping activities.
Article 58. MOFCOM may, in accordance with these
Regulations, formulate specific implementing measures.
Article 59. These Regulations shall be effective as of 1
January 2002. The provisions on anti-dumping contained in
the Regulations of the People's Republic of China on
Anti-dumping and Anti-subsidy promulgated by the State
Council on 25 March 1997 shall be repealed simultaneously.
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