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World Trade
Organization
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G/SG/N/1/CHN/2
28 August 2002
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(02-4586)
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Committee on Safeguards
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notification of laws, regulations and
administrative procedures relating
to safeguard measures
THE PEOPLE'S REPUBLIC OF CHINA
The following communication, dated 27 August 2002, has been
received from the Permanent Mission of the People's Republic of
China.
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With regard to Article 12.6 of the Agreement on Safeguards
and further to my letter dated 6 June 2002 (G/SG/N/1/CHN/1), I have
the honour to provide the Committee on Safeguards with the English
translation of The Regulations of the People's Republic of China on Safeguards.
English translations of other Rules as notified in my letter
dated 6 June 2002 are still in preparation and will be provided once
they are available.
Please note that the Regulations are authentic only in
Chinese and that the English translation of the Regulations are for
reference only by WTO Members.
REGULATIONS OF THE PEOPLE'S REPUBLIC OF CHINA ON SAFEGUARDS
(Adopted at the 46th Executive Meeting of the
State Council on 31 October 2001, promulgated by Decree No. 330 of
the State Council of the People's Republic of China on 26 November
2001, and effective as of 1 January 2002)
CHAPTER I - GENERAL PROVISIONS
Article 1.
These Regulations are formulated in accordance with 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 to a domestic
industry that produces like or directly competitive products, an
investigation shall be initiated and safeguard measures applied in
accordance with provisions of these Regulations.
CHAPTER II - INVESTIGATION
Article 3.
Any natural person, legal person or other organization (hereinafter
collectively referred to as "the applicant”) related to a domestic
industry may, in accordance with the provisions of these
Regulations, make a written application to the Ministry of Foreign
Trade and Economic Cooperation (hereinafter referred to as "MOFTEC”)
for applying safeguard measures.
MOFTEC shall promptly examine the application submitted by
the applicant and decide whether or not to initiate an
investigation.
Article 4. If
MOFTEC does not receive a written application for applying
safeguard measures, but has sufficient evidence of injury to a
domestic industry due to the increase in quantity of an imported
product, it may decide to initiate an investigation.
Article 5.
MOFTEC shall publish the decision to initiate an investigation.
MOFTEC 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.
MOFTEC shall be responsible for the investigation and determination
of the increase in quantity of an imported product.
The State Economic and Trade Commission (hereinafter referred
to as "SETC") shall be responsible for the investigation and
determination of injury.
The safeguards investigation of injury to a domestic industry
involving agricultural products shall be conducted by SETC jointly
with the Ministry of Agriculture.
Article 7.
The term “increase in quantity of an imported product” means an absolute or relative increase in quantity of an imported
product 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 imported product:
(1)
the rate and amount of the increase in the imported product
in absolute and relative terms;
(2)
the share of the
domestic market taken by the increased imports;
(3)
the impact of the imported product 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 caused injury to the domestic industry.
The determination of 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 imported product to a domestic industry, 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, MOFTEC 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.
MOFTEC and SETC 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.
MOFTEC and SETC 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 other appropriate means.
Article 13. MOFTEC
and SETC 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 submitted by the information provider shall be treated
as confidential, and the information provider shall be requested to
furnish non-confidential summaries thereof.
The information treated as confidential shall not be
disclosed without permission of the information provider.
Article 14.
The explanations to the findings of an investigation on the increase
in quantity of imported products, injuries and the reasons therefor
shall be published by MOFTEC.
MOFTEC shall promptly notify the Committee on Safeguards of
the findings and the relevant information.
Article 15.
MOFTEC and SETC shall, on the basis of the findings of their
investigations, make a preliminary determination which shall be
published by MOFTEC.
Article 16.
In the case where a preliminary determination establishes the
existence of an increase in quantity of an imported product, an
injury, and a causal link between the two, MOFTEC and SETC shall
continue their investigations, and shall, on the basis of the
findings of such investigations, make a final determination which
shall be published by MOFTEC.
CHAPTER III - SAFEGUARD MEASURES
Article 17.
In critical circumstances
where there is clear evidence of increase in quantity of an imported
product, and would cause injury to a domestic industry which 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 18.
The proposal for adoption of provisional safeguard measures shall be
put forward by MOFTEC, and on the basis of such a proposal the State
Council Tariff Commission shall make a decision which shall be
published by MOFTEC. The
Customs shall implement the decision from the effective date set
forth in the public notice.
MOFTEC shall notify the Committee on Safeguards of the
relevant information prior to the application of a provisional
safeguard measure.
Article 19.
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 safeguard measures.
Article 20.
If a final determination establishes the existence of increase in
quantity of an imported product and the injury caused to a domestic
industry, safeguard measures may be applied.
Safeguard measures may take the forms of tariff increases or
quantitative restriction, etc.
Article 21.
If a safeguard measure takes the form of a tariff increase, the
measure shall be proposed by MOFTEC, and on the basis of such a
proposal the State Council Tariff Commission shall make a decision
which shall be published by MOFTEC.
If a safeguard measure takes the form of quantitative
restriction, a decision shall be made and published by MOFTEC.
The Customs shall implement the decision from the effective
date set forth in the public notice.
MOFTEC shall promptly notify the Committee on Safeguards of
the decision on the application of a safeguard measure and the
related information.
Article 22.
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
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, MOFTEC may consult with the
exporting countries (regions) or countries (regions) of origin
concerned in the allocation of quantity.
Article 23.
Safeguard measures shall be applied to a product being imported
irrespective of its source country (region).
Article 24.
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 25.
Prior to the application of a safeguard measure, MOFTEC shall
provide adequate opportunities for consultations with those
governments of countries (regions) having substantial interests as
the exporters of the products concerned.
Article 26.
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 27.
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
adjusting;
(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 ones.
The total period of application of a safeguard measure and
any extension thereof shall not exceed eight years.
Article 28.
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 29.
Where the period of application of a safeguard measure exceeds three
years, MOFTEC and SETC shall conduct a mid-term review of the
measure during the period of application.
The substance of the mid-term review shall include, among
other things, review of the effect of the safeguard measure on
domestic industry, and the adjustment of domestic industry.
Article 30.
Where a safeguard measure takes the form of a
tariff increase, MOFTEC
shall, on the basis of the findings of the review, put forward in
accordance with provisions of these Regulations a proposal for
retention, repeal or acceleration of the liberalization of the
tariff increase, and in light of such a proposal the State Council
Tariff Commission shall make a decision which shall be published by
MOFTEC; if a safeguard measure takes the form of quantitative
restriction or other forms, MOFTEC 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 restriction and publish it.
Article 31.
Where a safeguard measure
is applied again to the same imported product, 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
following conditions are met:
(1)
at least one year has elapsed since the date of introduction
of a safeguard measure on the import of the said product; and
(2)
such a safeguard measure has not been applied on the same
product more than twice in the five year period immediately
preceding the date of introduction of the measure.
CHAPTER V - SUPPLEMENTARY
PROVISIONS
Article 32.
Where any country
(region) discriminatorily applies safeguard measures on exports from
the People's Republic of China, the People's Republic of China may,
based on the actual situations, adopt corresponding measures toward
that country (region).
Article 33.
MOFTEC is responsible for the foreign-related consultations,
notification and dispute settlement concerning safeguard measures.
Article 34.
MOFTEC and SETC may, in accordance with these Regulations, formulate
specific implementing measures thereof.
Article 35.
These Regulations shall be effective as of 1 January 2002.
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