|
World Trade
Organization
|
|
|
|
|
G/SG/N/1/CHN/2/Suppl.3
20 October 2004
|
|
|
(04-4446)
|
|
|
|
|
Committee on Safeguards
|
Original:
English
|
notification of
laws, regulations and
administrative
procedures relating
to safeguard
measures
PEOPLE'S
REPUBLIC OF CHINA
Supplement
The following communication, dated
18 October 2004, is being circulated at the
request of the Delegation of the People's Republic of
China.
_______________
With reference to Article 12.6 of the Agreement on
Safeguards, the Government of China notifies the Committee
on Safeguards of the departmental rules related to the
Agreement as following:
Regulations of the People’s Republic of China on
Safeguards.
Regulations of the People’s
Republic of China on Safeguards
(Promulgated by Decree
No. 330 of the State Council of the People’s Republic of
China
on
26 November 2001, and revised in
accordance with the Decision of the State Council on
Amending the Regulations of the People’s Republic of China on Safeguards promulgated on 31 March 2004)
Chapter I
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 promoting the sound development of foreign trade.
Article 2 When a product is imported in increased quantities and such increase has
caused or threatens to cause serious injury (hereinafter
collectively referred to as injury, except otherwise
indicated) to a domestic industry that produces like or
directly competitive products, an investigation shall be
initiated and safeguard measures applied in accordance with
the provisions of these Regulations.
Chapter
II
Investigation
Article 3 Any natural person, legal person or other organization related to a
domestic industry (hereinafter collectively referred to as
the applicant) may, in accordance with the provisions of
these Regulations, make a written application to the
Ministry of Commerce for applying safeguard measures.
The Ministry of Commerce shall promptly examine the
application made by the applicant and decide whether or not
to initiate an investigation.
Article 4
If the Ministry of Commerce decides to initiate an investigation
without having received any written application for applying
safeguard measures, it shall proceed only if it has
sufficient evidence of injury to a domestic industry due to
the increase in quantity of an import.
Article 5 The Ministry of Commerce shall publish the decision to initiate an
investigation.
The Ministry of Commerce shall promptly notify the
Committee on Safeguards of the World Trade Organization
(hereinafter referred to as “the Committee on Safeguards”)
of the decision to initiate an investigation.
Article 6
The Ministry of
Commerce shall be responsible for the investigation and
determination of the increase in quantity of an import and
injury caused thereby. The
safeguards investigation of injury to a domestic industry
involving agricultural products shall be conducted by the
Ministry of Commerce jointly with the Ministry of
Agriculture.
Article 7 The term “increase in
quantity of an import”
means an absolute increase in quantity of an import or
relative increase compared with domestic production.
Article 8
The following
relevant factors shall be examined in the determination of
injury to a domestic industry caused by the increase in
quantity of an import:
(1)
the rate and amount
of the increase of the import in absolute and relative
terms;
(2)
the share of the
domestic market taken by the increased import;
(3)
the impact of the
import on the domestic industry, including the impact on the
production, the level of sales, market share, productivity,
capacity utilization, profits and losses, and employment of
the domestic industry; and
(4)
other factors that
may cause or have caused injury to the domestic industry.
The determination of a threat of serious injury shall
be based on facts and not merely on allegation, conjecture
or remote possibility.
When determining the injury caused by the increase in
quantity of an import to a domestic industry, the injuries
that are caused by factors other than the increase of
imports shall not be attributed to the increase of imports.
Article 9 During the period of an investigation, the Ministry of Commerce shall
promptly publish a detailed analysis of the case under
investigation and the relevant factors.
Article 10 The term “domestic industry”
means the domestic producers as a whole of the like or
directly competitive products within the People’s Republic
of China
or those of them whose collective output of the like or
directly competitive products constitutes a major proportion
of the total domestic production of those products.
Article 11 The Ministry of Commerce shall, on the basis of objective facts and
evidence, determine whether or not there exists a causal
link between the increased imports of the product concerned
and the injury to the domestic industry.
Article 12
The Ministry of
Commerce shall provide opportunities for importers,
exporters and other interested parties to present their
views and supporting arguments.
The investigation may be conducted by means of
sending questionnaires, holding public hearings, or by other
appropriate means.
Article 13
The Ministry of
Commerce may treat the information collected during an
investigation as confidential, if the information provider
deems it necessary.
If the request for confidentiality is justifiable,
the information provided by the information provider shall
be treated as confidential, and the information provider
shall be required to provide non-confidential summaries
thereof.
No confidential information shall be disclosed
without permission of the information provider.
Article 14 The explanations to the findings of an investigation on the increase in
quantity of imports, injuries and the reasons therefore
shall be published by the Ministry of Commerce.
The Ministry of Commerce shall promptly notify the
Committee on Safeguards of the findings and the relevant
information.
Article 15 The Ministry of Commerce may, on the basis of its findings, make a
preliminary determination, or make a final determination
directly. The
determinations shall be published by the Ministry of
Commerce.
Chapter III
Safeguard Measures
Article 16 In critical circumstances
where there is clear evidence of increase in quantity of an
import, and such increase would cause injury to a domestic
industry which it would be difficult to remedy without the
application of safeguard measures, a preliminary
determination may be made and provisional safeguard measures
applied.
Provisional safeguard measures shall take the form of
tariff increases.
Article 17 The proposal applying provisional safeguard measures shall be put
forward by the Ministry of Commerce, and, on the basis of
such a proposal, the State Council Tariff Commission shall
make a decision which shall be published by the Ministry of
Commerce. The Customs
shall implement the decision from the effective date set
forth in the public notice.
The Ministry of Commerce shall notify the Committee
on Safeguards of the relevant information prior to the
application of a provisional safeguard measure.
Article 18 The duration of application of a provisional safeguard measure shall not
exceed 200 days from the effective date set forth in the
public notice regarding the decision on the provisional
safeguard measure.
Article19 Where a final determination
establishes the existence of increase in quantity of an
import and the injury caused thereby to a domestic industry,
safeguard measures may be applied.
The application of
safeguard measures shall be in the public interest.
Safeguard measures may take the form of tariff
increases or quantitative restrictions, etc.
Article20 Where a safeguard measure
takes the form of tariff increases, the measure shall be
proposed by the Ministry of Commerce, and, on the basis of
such a proposal, the State Council Tariff Commission shall
make a decision which shall be published by the Ministry of
Commerce. Where a
safeguard measure takes the form of quantitative
restrictions, a decision shall be made and published by the
Ministry of Commerce. The
Customs shall implement the decision from the effective date
set forth in the public notice.
The Ministry of Commerce shall promptly notify the
Committee on Safeguards of the decision on the application
of a safeguard measure and the related information.
Article 21 Where a quantitative
restriction is applied, the quantity of imports after
restriction shall not be less than the average quantity of
imports in the last three representative years, unless clear
justification is given that a different level of the
quantitative restriction is necessary to prevent or remedy
serious injury.
Where a quantitative restriction is applied and it is
necessary to allocate quantity among exporting countries
(regions) or countries (regions) of origin, the Ministry of
Commerce may consult with the exporting countries (regions)
or countries (regions) of origin concerned in the allocation
of quantity.
Article 22 Safeguard measures shall be applied to a product being imported
irrespective of its source country (region).
Article 23 Safeguard measures shall be applied to the extent necessary to prevent
or remedy serious injury and to facilitate the adjustment of
the domestic industry.
Article 24 Prior to the application of a safeguard measure, the Ministry of
Commerce shall provide adequate opportunities for
consultations with those governments of countries (regions)
having substantial interests as the exporters of the
products concerned.
Article 25 Where a final determination establishes that no safeguard measures shall
be applied, the provisional duty that has been levied shall
be refunded.
Chapter IV
Duration and Review of Safeguard Measures
Article 26 The
period of application of a safeguard measure shall not exceed four
years.
The period of application of a safeguard measure may
be properly extended if the following conditions are met:
(1)
it has been
determined in accordance with the procedures set forth in
these Regulations that the safeguard measure continues to be
necessary to prevent or remedy serious injury;
(2)
there is evidence
that the domestic industry concerned is undergoing
adjustment;
(3)
the obligations of
foreign-related notification and consultations have been
fulfilled; and
(4)
the extended
safeguard measure is not more restrictive than the initial
one.
The total period of application of a safeguard
measure and any extension thereof shall not exceed ten
years.
Article 27 Where the period of application of a safeguard measure exceeds one year,
the measure applied shall be progressively liberalized at
regular intervals during the period of application.
Article 28 Where the period of application of a safeguard measure exceeds three
years, the Ministry of Commerce shall conduct a mid-term
review of the measure during the period of its application.
The substance of the mid-term review shall include,
among other things, review of the effect of the safeguard
measure on the domestic industry, and the adjustment of the
domestic industry.
Article 29 Where a safeguard measure takes the form of tariff increases, the
Ministry of Commerce shall, on the basis of the findings of
the review, put forward in accordance with the provisions of
these Regulations a proposal for the retention, repeal or
acceleration of the liberalization of the tariff increases,
and in light of such a proposal, the State Council Tariff
Commission shall make a decision which shall be published by
the Ministry of Commerce; where a safeguard measure takes
the form of quantitative restrictions or other forms, the
Ministry of Commerce shall, on the basis of the findings of
the review and in accordance with the provisions of these
Regulations, make a decision on whether or not to retain,
repeal or accelerate the liberalization of the quantitative
restrictions and publish the decision.
Article 30 Where
a safeguard measure
is applied again on the same import, the interval between
the current measure and the previous safeguard measure shall
not be less than the period of application of the previous
safeguard measure, and shall be at least two years.
Notwithstanding the foregoing provision, a safeguard
measure with duration of 180 days or less may be applied to
the product if the following conditions are met:
(1)
at least one year
has elapsed since the date of application of a safeguard
measure to the import of the said import; and
(2)
such a safeguard
measure has not been applied on the same product more than
twice in the five year period immediately after the date of
application of the measure.
Chapter V
Supplementary Provisions
Article 31 Where any country (region)
discriminatorily applies safeguard measures on the exports
from the People’s Republic of
China, the People’s
Republic of
China
may, on the basis of the actual situations, take
corresponding measures against that country (region).
Article 32 The Ministry of Commerce shall be responsible for foreign-related
consultation, notification and dispute settlement concerning
safeguard measures.
Article 33 The Ministry of Commerce may, in accordance with these Regulations,
formulate specific implementing measures.
Article 34 These Regulations shall be effective as of 1 January 2002.
__________
|
