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Anti-dumping Regulation of China

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Anti-dumping Regulation of the People's Republic of China
 
Decree [2001] No.328 of the state Council
 
The Anti-Dumping Regulation of the People's Republic of China, which were adopted at the 46th executive meeting of the State Council on October 31, 2001, are hereby promulgated, and shall come into force on January 1, 2001.
 
Premier of the State Council: Zhu Rongji
November 26, 2001
 

Chapter I General Provisions
 Article 1 The present Regulation has been enacted in accordance with the relevant provisions of the Foreign Trade Law of the People's Republic of China with a view to maintaining foreign trade order and fair competition.
 Article 2 In case that imported products enter the market of the People's Republic of China by way of dumping, and cause material damage or constitute a threat of material damage to an already established domestic industry, or cause a material impediment to the establishment of a domestic industry, an investigation shall be conducted and anti-dumping measures shall be taken in accordance with the present Regulation.
 
Chapter II Dumping and Damage
 Article 3 The term "dumping" shall refer to the entry of imported products into the market of the People's Republic of China, in the ordinary course of trade, with their export price lower than their normal value. The Ministry of Foreign Trade and Economic Cooperation (hereinafter referred to as the MOFTEC) shall be responsible for the investigation on and determination of dumping.
 Article 4 The normal value of imported products shall be determined in the following ways on the basis of different circumstances:
 (1) in case that the products of the same category as that of the imported products have a comparable price in the domestic market of the exporting country (region) in the ordinary course of trade, that comparable price shall be the normal value;
 (2) in case that the products of the same category as that of the imported products are not sold on the domestic market of the exporting country (region) in the ordinary course of trade, or the price or quantity of the products of the same category cannot be used as a basis for fair comparison, the normal value shall be the comparable price at which the products of the same category are exported to a proper third country (region) or shall be the production cost of the products of the same category in the country (region) of origin plus reasonable expenses and profits.
Where the imported products do not directly come from the country (region) of origin, the normal value shall be determined in accordance with Item (1) of the preceding paragraph; however, if the products are transported only through the exporting country (region) or the products are not produced in the exporting country (region) or no comparable price exists in the exporting country (region), etc., the price of the said products of the same category in the country (region) of origin may be regarded as the normal value.
 Article 5 The export price of the imported products shall be determined in the following ways according to different circumstances:
 (1) in case the imported products have an actual payment price or a payable price, such price shall be the export price;
 (2) in case the imported products do not have an export price or its price is not reliable, the price presumed on the basis of the price at which the imported products are re-sold for the first time to an independent buyer shall be regarded as the export price; however, if the imported products are not re-sold to an independent buyer or not re-sold in the status when they are imported, the price presumed by the MOFTEC on a reasonable basis may be regarded as the export price.
 Article 6 The margin between the export price of imported products which is lower than their normal value shall be the dumping margin.
The export price of the imported products and the normal value shall be compared in a fair and reasonable manner by taking the various comparable factors which may impact the price into consideration.
The dumping margin shall be determined with the weighted average normal value and the weighted average price of all the comparable export transactions being compared, or with the normal value and the export price being compared transaction by transaction.

Where the export prices are considerably different between different buyers, regions or periods, and thus are difficult to be compared in the ways provided in the preceding paragraph, the weighted average normal value may be compared with the price of a single export transaction.
 Article 7 The term "damage" shall refer to the fact that dumping has caused material damage or constitute a threat of material damage to an already established domestic industry, or caused a material impediment to the establishment of a domestic industry.
The State Economic and Trade Commission (hereinafter referred to as the SETC) shall be responsible for the investigation on and determination of damage; while the anti-dumping investigation on the damage to a domestic industry relating to agricultural products shall be conducted by the SETC in collaboration with the Ministry of Agriculture.
 Article 8 When determining the damage caused to a domestic industry by dumping, the following items shall be examined:
 (1) the quantity of the dumped imports, including a sharp increase in the absolute quantity of the dumped imports or the quantity as compared with the production or consumption of the domestic products of the same category, or the possibility of a sharp increase in the quantity of the dumped imports;
 (2) the price of the dumped imports, including the price cuts of the dumped imports or the impacts such as great restraint or reduction, etc. to the price of the domestic products of the same category;
 (3) the impacts of the dumped imports upon the relevant economic factors and targets of the domestic industry;
 (4) the production capacity, export capability of the exporting country (region) and the country (region) of origin on the dumped imports as well as the inventory of the investigated products;
 (5) other factors which cause damage to the domestic industry. The threat of material damage shall be determined on the basis of the facts instead of the accusation, presumption or minor possibility.
The damage caused by dumping to a domestic industry shall be determined on the basis of affirmative evidence, and no factor other than dumping which causes damage shall be attributed to dumping.
 Article 9 Where the dumped imports come from two or more countries (regions), and meanwhile meet the following conditions, a cumulative evaluation may be conducted upon the impacts caused by the dumped imports to a domestic industry:
 (1) the dumping margin of the dumped imports from each country (region) shall be no lower than 2%, and the import volume of the products may not be negligible;
 (2) it is proper to conduct a cumulative evaluation on the basis of the competition conditions between the dumped imports as well as between the dumped imports and the domestic products of the same category.
The term "to be negligible" shall refer to the fact that the proportion of the quantity of the dumped imports from a country (region) to the total import volume of products of the same category shall be lower than 3%; except where the total import volume lower than 3% from some countries (regions) exceeds 7% of the total import volume of the products of the same category.
 Article 10 The evaluated impacts on the dumped imports shall be separately determined with regard to the production of the domestic products of the same category; where they may not be separately determined with regard to the production of the domestic products of the same category, the production of the narrowest product group or scope which includes the products of the same category shall be examined.
 Article 11 The term "domestic industry" shall refer to all the manufacturers within the People's Republic of China of the domestic products of the same category or the manufacturers within the People's Republic of China whose total output accounts for the major part of the aggregate output of the domestic products of the same category; however, if a domestic manufacturer is associated with an export business operator or import business operator, or he himself is an import business operator of the dumped imports, he may be excluded from the domestic industry.
Where, under particular circumstances, the domestic manufacturers in a regional market sell the whole or nearly the whole of the products of the same category in the said market, and the products of the same category in the said market are not mainly supplied by the domestic manufacturers of other places, they may be regarded as a separate industry.
 Article 12 The term "products of the same category" shall refer to the products identical to the dumped imports; where there are no identical products, the products which are most similar to the features of the dumped imports shall be the products of the same category.
 
Chapter III Anti-Dumping Investigations
 Article 13 A domestic industry or a natural person, legal person or relevant organization representing a domestic industry (hereinafter uniformly referred to as the applicant) may file a written application on anti-dumping investigation to the MOFTEC in accordance with these Rules.
 Article 14 The application letter shall contain the following contents:
 (1) name, address and relevant information of the applicant;
 (2) complete specifications on the imported products under application for investigation, including product name, the exporting country (region) or country (region) of origin involved, the known export business operator or manufacturer, information on the price of the products when they are consumed in the domestic market of the exporting country (region) or country (region) of origin, information on export price, etc.;
 (3) a statement on the quantity and value of the domestic products of the same category;
 (4) the impacts of the quantity and price of the imported products under application for investigation on the domestic industry;
 (5) other contents which the applicant considers it necessary to state.
 Article 15 The application letter shall be attached with the following evidence:
 (1) the existence of dumping of the imported products under application for investigation;
 (2) the damage to domestic industry;
 (3) the causal link between the dumping and damage.
 Article 16 The MOFTEC shall, within 60 days as of its receipt of the application letter and the relevant evidence submitted by the applicant, examine whether the application is filed by the domestic industry or filed by representing the domestic industry, the contents of the application letter and the evidence attached to it, etc., and shall, upon consultation with the SETC, decide to initiate an investigation or not.
The MOFTEC shall, before deciding to initiate an investigation, notify the government of the relevant exporting country (region).
 Article 17 Where, among the manufacturers in a domestic industry who are in favor or disfavor of the application, the output of those who are in favor accounts for 50% or more of the total output of those who are in favor and disfavor, it shall be deemed that the application is filed by the domestic industry or filed by representing the domestic industry, and the anti-dumping investigation may be initiated; however, if the output of the domestic manufacturers who support the application is less than 25% of the total output of the domestic products of the same category, the anti-dumping investigation shall not be initiated.
 Article 18 Where, under particular circumstances, the MOFTEC does not accept the written application for anti-dumping investigation, but has sufficient evidence to believe that there exist a dumping and damages and there is a causal link between the dumping and damages, it may, upon consultation with the SETC, decide to initiate an investigation.
The MOFTEC or the SETC is hereinafter uniformly referred to as the investigation organ.
 Article 19 The decisions on initiating an investigation shall be announced by the MOFTEC, and shall be notified to the applicant, the known export business operators and import business operators, the government of the exporting country (region) as well as other interested organizations or individuals (hereinafter uniformly referred to as the interested parties).
Once the decisions on initiating an investigation is announced, the MOFTEC shall provide the known export business operators and the government of the exporting country (region) with a copy of the application letter.
 Article 20 The investigation organ may obtain information from the interested parties and conduct the investigation by means of questionnaires, samples, hearings and on-the-spot checks, etc..
The investigation organ shall provide the relevant interested parties with opportunities for stating their viewpoints and grounds of argument.
The MOFTEC may, when considering it necessary, send functionaries to the relevant country (region) for conducting the investigation, except where the relevant country (region) concerned objects to the investigation.
 Article 21 When the investigation organ is conducting an investigation, the interested parties shall tell the truth and provide relevant materials. Where the interested parties fail to tell the truth or fail to provide relevant materials, or fail to provide necessary information within a reasonable time limit, or seriously hamper the investigation in other forms, the investigation organ may make an adjudication on the basis of the already obtained facts and the best available information.
 Article 22 Where the interested parties consider that the divulgence of the materials provided by them will cause seriously bad effects, they may apply to the investigation organ for treating the materials as confidential.
Where the investigation organ considers the application for confidentiality is justified, it shall treat the materials provided by the interested parties as confidential, and meanwhile request the interested parties to provide a copy of non-confidential outline of the materials.
The materials treated as confidential materials shall not be divulged without the consent of the interested parties who provide them.
 Article 23 The investigation organ shall permit the applicant and the interested parties to have access to the relevant materials of the case, except where the materials are treated as confidential.
 Article 24 The MOFTEC and the SETC shall, upon the investigation result, make separate an initial award on dumping and damage as well as on whether the causal link between the dumping and damage is tenable, which shall be announced by the MOFTEC.
 Article 25 Where the initial award affirms the dumping and damage as well as the causal link between the dumping and damage, the MOFTEC and the SETC shall continue the investigation on the dumping, the dumping margin, the damage and its extent, and shall make separate a final award upon the investigation result, which shall be announced by the MOFTEC.
Before the making of the final award, the MOFTEC shall notify all the known interested parties of the basic facts upon which the final award is made.
 Article 26 An anti-dumping investigation shall be ended within 12 months as of the date of announcement of the decision on initiating the investigation; under particular circumstances, the time limit may be extended, provided that the extension shall not exceed 6 months.
 Article 27 Under any of the following circumstances, the anti-dumping investigation shall be terminated and be announced by the MOFTEC:
 (1) the applicant revokes the application;
 (2) there is not enough evidence to prove the existence of dumping, damage or the causal link between the dumping and damage;
 (3) the dumping margin is lower than 2%;
 (4) the actual or potential import volume of the dumped imports or the damage is negligible;
 (5) the MOFTEC and the SETC both consider it is not appropriate to continue the anti-dumping investigation.
Where the investigated products from one or more countries (regions) are under any of the circumstances listed in Items (2), (3), and (4) of the preceding paragraph, the anti-dumping investigation with regard to the involved products shall be terminated.
 
Chapter IV Anti-Dumping Measures
 
Section 1 Provisional Anti-Dumping Measures
 Article 28 Where the initial award affirms the dumping and the consequent damage to a domestic industry, the following provisional anti-dumping measures may be taken:
 (1) to levy provisional anti-dumping tariffs;
 (2) to request the provision of cash deposits, guaranty letter or other forms of guaranty. The amount of the provisional anti-dumping tariffs, the cash deposits, the guaranty letter and other forms of guaranty shall not exceed the dumping margin ascertained in the initial awards.
 Article 29 The levy of the provisional anti-dumping tariffs shall be proposed by the MOFTEC and be decided on by the Tariff Policy Committee under the State Council upon the proposition of the MOFTEC, and shall be announced by the MOFTEC. The request for the provision of cash deposits, guaranty letter or other forms of guaranty shall be decided on and announced by the MOFTEC. The customs shall implement the decision as of the date provided in the announcement.
 Article 30 The time limit for the provisional anti-dumping measures shall not exceed 4 months as of the date of entry into force of the announcement of the decisions on provisional anti-dumping measures; however, such time limit may be extended to 9 months under particular circumstances.
No provisional anti-dumping measure shall be taken within 60 days as of the date when the decisions on initiating an anti-dumping investigation is announced.
 
Section 2 Pricing Commitments
 Article 31 The export business operators of the dumped imports may, during the period of anti-dumping investigation, make pricing commitments to the MOFTEC on changing the price or ceasing export at a dumping price.
The MOFTEC may propose suggestions on pricing commitments to the export business operators.
The investigation organ may not force the export business operators to make pricing commitments.
 Article 32 The export business operators' refusal to make pricing commitments or to accept the suggestions on pricing commitments shall not hamper the investigation of and determination on the anti-dumping cases. Where the export business operators continue dumping the imported products, the investigation organ shall have the right to determine that the threat of damage is more possible to arise.
 Article 33 Where the MOFTEC considers the pricing commitments made by the export business operators are acceptable, it may, upon consultation with the SETC, decide to suspend or terminate the anti-dumping investigations, instead of taking any provisional anti-dumping measure or levying anti-dumping tariffs. The decisions on suspending or terminating the anti-dumping investigation shall be announced by the MOFTEC.
Where the MOFTEC does not accept the pricing commitments, it shall state the reason to the relevant export business operators.
The investigation organ shall not, before making an affirmative initial award on dumping and damage caused therefrom, seek or accept pricing commitments.
 Article 34 After suspending or terminating the anti-dumping investigation in accordance with Paragraph 1 of Article 33 of the present Regulation, the investigation organ may, upon request by the export business operators or if considering it necessary, continue investigating the dumping and damage.
Upon the investigation result as mentioned in the preceding paragraph, if a negative award on dumping or damage is made, the pricing commitments shall automatically become invalid; while if an affirmative award on dumping or damage is made, the pricing commitments shall continue to be valid.
 Article 35 The MOFTEC may require the export business operators to regularly provide the relevant information and materials for implementing the pricing commitments, and may verify such information and materials.
 Article 36 In case any export business operator violates its pricing commitments, the MOFTEC may, upon consultation with the SETC, immediately decide to resume the anti-dumping investigation in accordance with the present Regulation; and may, upon the best available information, decide to take the provisional anti-dumping measures, as well as retrospect to the levy of the anti-dumping tariffs on the products imported within 90 days before the provisional anti-dumping measures were taken, except where the products were imported before the pricing commitments are violated.
 
Section 3 Anti-dumping tariffs
 Article 37 Where the final adjudication decisions establish the dumping and the consequent damage caused to the domestic industry, the anti-dumping tariffs may be levied.
 Article 38 The levy of the anti-dumping tariffs shall be proposed by the MOFTEC and be decided on by the Tariff Policy Committee under the State Council upon the proposition of the MOFTEC, and shall be announced by the MOFTEC. The customs shall execute such levy as of the date provided in the announcement.
 Article 39 The anti-dumping tariffs shall be applicable to the products imported after the final award has been announced, except for the circumstances provided in Articles 36, 43 and 44 of the present Regulation.
 Article 40 The taxpayers of the anti-dumping tariffs shall be the import business operators of the dumped imports.
 Article 41 The anti-dumping tariffs shall be separately determined on the basis of the dumping margins of different export business operators. Where the anti-dumping tariffs needs to be levied upon the dumped imports of the export business operators beyond the scope of examination, the applicable anti-dumping tariffs shall be determined in a reasonable method.
 Article 42 The amount of anti-dumping tariffs shall not exceed the dumping margin determined in the final adjudication decision.
 Article 43 Where the final award affirms the existence of the material damage, and prior to which a provisional anti-dumping measure has been taken, the anti-dumping tariffs may be levied in retrospect to the period of the provisional anti-dumping measure.
Where the final award affirms the existence of the threat of material damage, and a provisional anti-dumping measure has been taken under the circumstance that an adjudication of material damage will be made if no provisional anti-dumping measure has been taken in advance, the anti-dumping tariffs may be levied in retrospect to the period of the provisional anti-dumping measure.
Where the anti-dumping tariffs determined in the final award is higher than the paid or payable provisional anti-dumping tariffs or the amount valuated for the sake of guaranty, the difference shall not be collected; where it is lower than the paid or payable provisional anti-dumping tariffs or the amount valuated for the sake of guaranty, the difference shall be refunded upon the specific circumstance or the amount of the duty shall be re-calculated.
 Article 44 Where the following two circumstances coexist, the anti-dumping tariffs may be retrospectively levied upon the products imported within 90 days before the provisional anti-dumping measures were taken, except for the products imported prior to the initiation of the investigation:
 (1) the dumped imports has a record of dumping causing damage to the domestic industry, or the import business operators of the products know or ought to know that the export business operators are dumping products and that dumping would lead to damage to domestic industry;
 (2) the dumped imports are massively imported within a short period, and are possible to seriously destroy the remedial effect of the anti-dumping tariffs to be levied immediately.
 Article 45 Where the final award determines not to levy the anti-dumping tariffs or not to retrospectively levy the anti-dumping tariffs, the levied provisional anti-dumping tariffs and the collected cash deposits shall be refunded, and the guaranty letter or other forms of guaranty shall be cancelled.
 Article 46 Where an import business operator of dumped imports has evidence to prove that the amount of paid anti-dumping tariffs exceeds the dumping margin, he may apply to the MOFTEC for refund of the tariffs levied; after the MOFTEC has examined and verified the application and proposed the refund, the Tariff Policy Committee under the State Council may, upon the proposition of the MOFTEC, make the decision on the refund, and the customs shall execute the refund.
 Article 47 Where, after the anti-dumping tariffs has been levied upon the imported products, a new export business operator who has not exported such products to the People's Republic of China within the period of investigation but could prove the irrelevance between he himself and the export business operator against who anti-dumping tariffs were levied, he may apply to the MOFTEC for separate determination of the dumping margin. The MOFTEC shall make a rapid examination and make a final award. It may, during the period of examination, take the measures provided in Item (2) of Paragraph 1 of Article 28 of the present Regulation, provided it shall not levy the anti-dumping tariffs upon these products.
 
Chapter V Time Limit for and Re-examination of Anti-dumping tariffs and Pricing Commitments
 Article 48 Neither the time limit for levying the anti-dumping tariffs nor that for implementing the pricing commitments shall exceed 5 years; however, where it is re-examined and determined that the termination of the levy of the anti-dumping tariffs is possible to lead to the continuance or re-occurrence of the dumping or damage, the time limit for levying the anti-dumping tariffs may be appropriately extended.
 Article 49 After the anti-dumping tariffs has taken effect, the MOFTEC may, with a justifiable reason and upon consultation with the SETC, decide to re-examine the necessity of continuing the levying of anti-dumping tariffs; it may also, after a reasonable period of time, upon the request of the interested parties and after having examined the corresponding evidence provided by the interested parties, decide to re-examine the necessity of continuing the levying of anti-dumping tariffs.
After the pricing commitments have taken effect, the MOFTEC may, with a justifiable reason, decide to re-examine the necessity of continuing to implement the pricing commitments; it may also, after a reasonable period of time, upon the request of the interested parties and after having examined the corresponding evidence provided by the interested parties, decide to re-examine the necessity of the continuing to implement the pricing commitments.
 Article 50 The reservation, amendment or cancellation of the anti-dumping tariffs shall be proposed by the MOFTEC upon the re-examination result and in accordance with the present Regulation, shall be decided by the Tariff Policy Committee under the State Council upon the proposition of the MOFTEC, and shall be announced by the MOFTEC. The MOFTEC may also, in accordance with the present Regulation and upon consultation with the SETC, make the decision on reserving, amending or canceling the pricing commitments and shall announce such decision.
 Article 51 The re-examination procedures shall be followed with reference to the relevant provisions in the present Regulation on anti-dumping investigations.
The time limit for re-examination shall not exceed 12 months, commencing from the date when the re-examination is decided.
 Article 52 The re-examination procedures shall not hamper the anti-dumping measures during the period of re-examination.
 
Chapter VI Supplementary Provisions
 Article 53 Where anyone refuses to accept the final award made in accordance with Article 25 of the present Regulation, or refuses to accept the decision made in accordance with Chapter IV of the present Regulation on whether levying the anti-dumping tariffs as well as the decision on the retrospective levy, the refund of the tariffs or the levy of such tariffs on a new export business operator, or refuses to accept the re-examination decision made in accordance with Chapter V of the present Regulation, he may apply for administrative review in accordance with the law, or bring a lawsuit to the people's court in accordance with the law.
 Article 54 An announcement made in accordance with the present Regulation shall state such contents as important information, facts, reasons, basis, result and conclusion, etc..
 Article 55 The MOFTEC and the SETC may take appropriate measures to prevent the acts of evading anti-dumping measures.
 Article 56 Where any country (region) takes discriminative anti-dumping measures on the products exported from the People's Republic of China, the People's Republic of China may, upon the actual circumstances, take corresponding measures against the country (region).
 Article 57 The MOFTEC shall be responsible for the consultation of anti-dumping matters with foreign parties, as well as notification and dispute settlement of such matters.
 Article 58 The MOFTEC and the SETC may formulate the relevant specific implementing measures in accordance with the present Regulation.
 Article 59 These Rules shall come into force on January 1, 2002. The provisions on anti-dumping in the Anti-Dumping and Countervailing Rules of the People's Republic of China promulgated by the State Council on March 25, 1997 shall be repealed simultaneously.


 

 

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