| Anti-dumping Regulations of the People's Republic of China |
| http://english.mofcom.gov.cn/aarticle/policyrelease/domesticpolicy/200502/20050200017435.html |
| Thursday,February 17,2005 |
| (Promulgated by Decree 328 of the
State Council of PRC on November 26, 2001 and amended in
accordance with the Decision of the State Council of
Amending Anti-dumping Regulations of PRC 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 foreign trade order and fair competition. Article 2 If any product is imported by dumping into the market of the People's Republic of China and has caused material injury or threat of material injury to established domestic industries, or caused material obstruction to the establishment of domestic industries, an anti-dumping investigation should be initiated and anti-dumping measures should be taken in accordance with the provisions of these Regulations. Chapter II - Dumping and Injury Article 3 "Dumping" means that a product is imported to the market of the People’s Republic of China at the export price less than its normal value during the course of normal trade. The Ministry of Commerce is responsible for the investigation and determination of dumping. Article 4 The normal value of an imported product should be determined in accordance with following methods according to different cases: 1. Where there is a comparable price for the like product of the imported product in the course of normal trade in the domestic market of the exporting country (region), such comparable price should be the normal value; 2. If the like products of the imported product are not sold in the course of normal trade in the domestic market of importing country (region), or the price and the quantity of the like product can not permit a fair comparison, the normal value should be the comparable price of the like product exported to an appropriate third country (region) or the production cost plus reasonable expenses and the profit of the like products in the country (region) of origin. If any product is not imported directly from the country (region) of origin, its normal value should be determined in accordance with Item 1 of the preceding section. 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 should be determined in accordance with following methods according to different cases: 1. The price actually paid or should be paid for the imported product should be taken as the export price; 2. If there is no export price for the imported product or the price is unreliable, the price fixed according to the price at which the imported product is first resold to an independent buyer is the export price. However, if the imported product is not resold to an independent buyer, or not resold according to the condition as it is imported, the export price may be determined on the basis of the reasonable price fixed by Ministry of Commerce.. Article 6 The margin that the export price of the imported product is less than the normal value is dumping margin. The export price and normal value of the imported product should be compared fairly and reasonably according to all kinds of factors that affect price comparability. The margin of dumping should be determined on the basis of a comparison between weighted average normal value and weighted average price of all comparable export transactions, or comparing normal value with export price on the basis of transaction by transaction. If there is a great difference of export price among different purchasers, regions or period, and it is difficult to make comparison by the methods prescribed in the preceding section, a comparison may be made between weighted average normal value and price of single export transaction. Article 7 "Injury" means material injury or threat of material injury to established domestic industries or material obstruction to establishing domestic industries. Ministry of Commerce is responsible for the investigation and determination of injury. The anti-dumping investigation on injury to domestic industries involving agricultural products should be conducted by Ministry of Commerce in conjunction with the Ministry of Agriculture. Article 8 Following factors should be examined in the determination of injury to domestic industries caused by dumping: 1. Quantity of dumped import products, including the absolute quantity of it or whether there is a great increase of the quantity relating to the production or consumption of domestic products of the same kind, or the possibility of a significant increase in dumped import products; 2. The influence of the price of dumped import products, including price deduction of dumped import products or the significant restriction or forcing down of the price of similar domestic products; 3. The impact of the dumped import products on relevant economic factors and index of domestic industries; 4. The production and export capacity of dumped import products of exporting countries (regions) or countries (regions) of origin, and stock of the product under investigation; 5. Other factors that may cause injury to domestic industries. The determination of the threat of material injury should be based on facts and not merely on allegation, conjecture or remote possibility. The determination of the injury to domestic industries caused by dumping should be based on positive evidence. Non-dumping factors that caused injury must not be attributed to dumping. Article 9 If the dumped import products come from more than two countries (regions) and simultaneously satisfy following requirements, the effects on domestic industries caused by dumped import products may be cumulatively assessed: 1. The dumping margin of dumped import products from every country is no less than 2 per cent, and its import quantity should not be negligible; 2. The cumulative assessment is appropriate in the light of the conditions of competition between the dumped import products and between dumped import products and domestic products of the same kind. “May be negligible” means the quantity of dumped import products from one country (region) accounts for less than 3 per cent of the total imports of the like products, unless the total imports from some countries (regions) which accounts for less than 3 per cent of total imports of the like products exceeds 7 per cent of the like product. Article 10 The effect of the dumped imported products should be evaluated and determined separately in the light of the production of domestic products of the same kind. If it is impossible, the examination should be made on the production of the narrowest products group or range, including domestic products of the same kind. Article 11 "Domestic industry" means all producers of PRC who produce domestic products of the same kind, or the producers whose total output makes up major part of total output of domestic like products, excluding domestic producers who has relationship with export or import managers, or they are import managers who dump imported products. In exceptional circumstances, the producers within a regional domestic market may be regarded as an individual industry if they sell all or almost all of the like products in the market, and the like products in that market are not supplied mainly by domestic producers in other domestic regions. Article 12 "Like product" means the same product as the dumped import product. If there is no same product, the most similar product is regarded as the like product. Chapter III - Anti-dumping Investigation Article 13 Domestic industries or natural persons, legal persons or relevant organizations on behalf of domestic industries (hereinafter referred to as "the applicants") may make a written application to Ministry of Commerce for an anti-dumping investigation in accordance with the provisions of these Regulations. Article 14 The application should contain following information: 1. Name, address and relevant information of the applicant; 2. Complete description of the imported product applied for investigation, including the name of it, related exporting countries (regions) or the countries (regions) of the origin, the known export managers or producers, and the information of the consumption price in domestic market and export price of the products in exporting countries (regions) or the countries (regions) of origin, etc.; 3. The description of the quantity and value of domestic production of the like product; 4. The effect of the quantity and price of the imported product applied for investigation on domestic industries; 5. Other contents that the applicant deems necessary to make a statement. Article 15 The application should include following evidence: 1. Dumping of the imported product applied for investigation exists; 2. The injury to domestic industries; 3. The causal relationship between dumping and the injury exists. Article 16 Ministry of Commerce should 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 make a decision whether or not to initiate an investigation within 60 days at the receipt of the application and related evidence submitted by the applicant. Prior to initiate an investigation, the government of the exporting country (region) concerned should be informed. Article 17 Among domestic industries who express support of or objection of the application, if the output of the supporters makes up more than 50 per cent of the total output of supporters and objectors, it should be confirmed that the application is put forward by domestic industries or on behalf of domestic industries and anti-dumping investigation may be initiated. But, if the output of the supporters is no more than 25 per cent of domestic like products, anti-dumping investigation must not be initiated. Article 18 Under special circumstances, If Ministry of Commerce does not receive any written application for anti-dumping investigation, but has sufficient evidence of the existence of dumping, injury and casual relationship between the two, it may decide to initiate the investigation. Article 19 Ministry of Commerce should publish the decision of initiating an investigation and inform the applicants, the known export managers and importers, the governments of exporting countries (regions) and other interested organizations and individuals (hereinafter referred to as "the interested parties"). Ministry of Commerce should provide the text of the application to the known export managers and the governments of the exporting countries (regions) once the decision of initiating the investigation is announced. Article 20 Ministry of commerce may conduct the investigation and collect information from interested parties by questionnaires, sampling, hearings and verification on-the-spot. Ministry of Commerce should provide interested parties with the opportunities of presenting their views and supporting arguments. Ministry of Commerce may send staffs to the countries (regions) concerned to carry out the investigation if it deems necessary, unless the countries (regions) concerned take exception to it. Article 21 Interested parties should provide the information according to the facts while the Ministry of Commerce is carrying out the investigation. If any one does not provide the truth or related materials, or does not provide necessary information within reasonable period, or hinder seriously the investigation in other means, Ministry of Commerce may make determinations on the basis of the obtained facts and the available optimum information. Article 22 Interested parties may apply to Ministry of Commerce for treating their materials as confidential ones if they consider that any disclosure of the materials would cause seriously harmful effects. Ministry of Commerce should treat the materials submitted by the interested parties as confidential ones if it deems that their request is justifiable, and should ask the interested parties to provide a non-confidential summary of the materials. The confidential materials should not be disclosed without the permission of the interested party who submits it. Article 23 Ministry of Commerce should allow the applicants and interested parties to look up the information relating to the investigation, provided that the information is confidential ones. Article 24 Ministry of Commerce should make a preliminary determination on whether dumping, injury and causal relationship between the two exists and publish it by announcement. Article 25 In cases where a preliminary determination on dumping, injury and the causal link between the two is affirmative, Ministry of Commerce should carry out further investigations on dumping, the margin of dumping, injury and its degree, and make final determinations according to the investigation and make an announcement about it. Before making final determination, Ministry of Commerce should inform all known interested parties of the essential facts on which the final determinations are based. Article 26 An anti-dumping investigation should be concluded within 12 months as of the publication of the decision to initiate the investigation, and the period may be extended in special circumstances, but no more than 6 months. Article 27 In case of one of the following circumstances, an anti-dumping investigation should be terminated and it should be announced by Ministry of Commerce. 1. The applicant has withdrawn the application; 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 import products or the injury is negligible; 5. Ministry of Commerce considers it is 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 related product should be terminated. Chapter IV - Anti-dumping Measures Section 1 Temporary Anti-dumping Measures Article 28 Following temporary anti-dumping measures may be taken if the preliminary determination confirms that dumping exists and causes injury to domestic industries: 1. Impose provisional anti-dumping duty; 2. Ask for providing deposit, bond or other forms of security. The amount of the provisional anti-dumping duty, cash deposit, bond or other forms of security provided should not exceed the margin of dumping confirmed in the preliminary determination. Article 29 The proposal imposing provisional anti-dumping duties should be put forward by Ministry of Commerce. Tariff Commission of State Council should make a decision according to the proposal of the Ministry of Commerce. And the announcement about it should be made by Ministry of Commerce. The provision of deposit, bond or other forms of security should be made and published by Ministry of Commerce. The Customs should implement the decision as of the day of the announcement. Article 30 The term of implementing temporary anti-dumping measures should not exceed 4 months as of the announcement of taking temporary anti-dumping measures. Under special circumstances, it may be extended to 9 months. No temporary anti-dumping measures should be taken within 60 days as of the announcement of initiating the investigation. Section 2: Price Undertakings Article 31 During the period of an anti-dumping investigation, the exporter dumping imported products may offer price undertakings to Ministry of Commerce to revise its prices or to stop exporting at dumped price. Ministry of Commerce may put forward suggestions on price undertakings to the exporter. Ministry of Commerce should not force the exporter to make price undertakings. Article 32 If export managers do not make or do not accept price undertakings, it does not hinder the determination and investigation of anti-dumping case. Ministry of Commerce has the right to determine that a threat of injury is more likely to occur if the export managers continue to dump imported products. Article 33 If the Ministry of Commerce deems that the price undertakings made by export managers are acceptable and conform to the public interests, it may decide to suspend or terminate the anti-dumping investigation without taking temporary anti-dumping measures or imposing anti-dumping duties. The decision to suspend or terminate the anti-dumping investigation should be announced by Ministry of Commerce. If Ministry of Commerce does not accept price undertakings, it should give reasons to the export managers concerned. Ministry of Commerce must not seek or accept price undertakings before it makes affirmative preliminary determination on dumping and injury caused by dumping. Article 34 After the suspension or termination of the investigation in accordance with the provisions of Paragraph 1, Article 33 of these Regulations, upon the request of the export managers, Ministry of Commerce should continue the investigation into dumping and injury, or may continue the investigation into dumping and injury when it deems necessary. On the basis of the findings of the investigation prescribed in the preceding paragraph, the price undertakings should automatically lapse if a negative determination is made on dumping or injury, but should remain in force if the determination made on dumping and injury is affirmative. Article 35 Ministry of Commerce may require the export managers to provide information, or materials about their implementation of price undertakings periodically and make verification on them. Article 36 If any export manager violates his price undertaking, Ministry of Commerce may decide immediately to resume the anti-dumping investigations in accordance with the provisions of these Regulations, or on the basis of available optimum information, may decide to take temporary anti-dumping measures and backdate to anti-dumping duties on the products imported within 90 days prior to the implementation of temporary anti-dumping measures, except the products imported before the violation of price undertakings. Section 3: Anti-dumping Duties Article 37 If a final determination confirms that dumping exists and has caused injury to domestic industries, an anti-dumping duty may be imposed. Collection of anti-dumping duty should conform to the public interests. Article 38 The proposal of imposing an anti-dumping duty should be put forward by Ministry of Commerce; Tariff Commission of State Council should make a decision according to the proposal of the Ministry of Commerce and an announcement should be made by the Ministry of Commerce. The Customs should implement it as of the effective date set forth in the announcement. Article 39 Anti-dumping duties apply for the products imported after the date of announcing final determination, with the exception of the circumstances set forth in Articles 36, 43 and 44 of these Regulations. Article 40 Anti-dumping duties should be paid by import managers who have dumped import products. Article 41 Anti-dumping duties should be determined separately on the basis of the margin of dumping for different export managers. Where it is necessary to impose an anti-dumping duty on the dumped import products of an export manager who has not been included in the ongoing examination, an anti-dumping duty applicable to the export manager should be determined in a reasonable way. Article 42 The amount of the anti-dumping duty should not exceed the margin of dumping determined in final decision. Article 43 If final determination confirms that material injury exists and temporary anti-dumping measures have been taken prior to the final decision, anti-dumping duties may be backdated during the period that temporary anti-dumping measures have been taken. In the case where final determination establishes that the threat of material injury exists, and temporary anti-dumping measures have been taken in the situation that the absence of anti-dumping measures would have lead to a determination of injury, anti-dumping duties may be backdated to the period that the temporary anti-dumping measures have been taken. If the definitive anti-dumping duty determined in final determination is higher than the paid or payable temporary anti-dumping duty, or the amount estimated for the purpose of the security, the difference should not be collected; if the definitive duty is lower than the paid or payable temporary anti-dumping duty, or the amount estimated for the purpose of the security, the difference should be refunded or the duty recalculated according to concrete conditions. Article 44 When following two circumstances exist simultaneously, anti-dumping duty may be backdated to the products imported within 90 days prior to the implementation of temporary anti-dumping measures, except the products imported before the initiation of the investigation: 1. There is a dumping history of the dumped import products causing injury to domestic industries, or the import manager for the dumped imports was, or should have been aware that the export managers practice dumping and that such dumping would cause injury to domestic industries; 2. The dumped products were massively imported within a short time and were likely to seriously undermine the remedial effect of the definitive anti-dumping duty that is going to be taken. After launching the investigation, Ministry of Commerce may make registration to relevant imported products and other necessary measures so as to backdate to anti-dumping duties. Article 45 Where a final determination decides not to levy anti-dumping duties, or does not decide to backdate to anti-dumping duties, the anti-dumping duties or bond that have been levied should be refunded, and letter of guarantee or other forms of guarantee should be relieved. Article 46 If an import manager dumping imported products have evidence to prove that the amount of anti-dumping duty already paid is higher than the margin of dumping, he may apply to Ministry of Commerce for duty refund. Ministry of Commerce should, upon examination and verification of the application, make a proposal to the Tariff Commission of State Council, who should make a duty drawback decision according to the proposal made by Ministry of Commerce, and the decision should be implemented by the customs. Article 47 After anti-dumping duty is imposed on an imported product, new export managers who have not exported the product to the People's Republic of China within the period of investigation may apply to Ministry of Commerce for determining their margin of dumping separately provided that they may prove they have no relation with the export managers who has been imposed anti-dumping duties. Ministry of Commerce should promptly carry out the examination and make final determination. During the period of the examination, measures stipulated in Item 2, Paragraph 1 of Article 28 of these Regulations may be taken, but no anti-dumping duties should be levied on the product. Chapter V Term and Review of Anti-dumping duties and price undertakings Article 48 The term for the levy of anti-dumping duties and fulfillment of price undertakings should not exceed 5 years. However, the term for the levy of anti-dumping duties may be extended appropriately if, as the result of the review, levy of anti-dumping duties are stopped, it would be likely to lead to the continuation or recurrence of dumping and injury. Article 49 After an anti-dumping duty has taken effect, Ministry of Commerce may make a decision to review the necessity of levying anti-dumping duties continuously if it has proper reason. It may also decide to review the necessity of levying anti-dumping duties continuously after a reasonable period of time, upon the request of interested parties and on the basis of examination of the relevant evidence submitted by the interested party. After a price undertaking has taken effect, Ministry of Commerce may, on justifiable grounds, decide to review the necessity of carrying out the price undertaking continuously. It may also decide to review the necessity of carrying out the price undertaking continuously after a reasonable period of time, upon the request of interested parties and on the basis of examination of the relevant evidence submitted by the interested party. Article 50 Ministry of Commerce should, in accordance with the provisions of these Regulations, make a proposal on the retention, revision, or termination of an anti-dumping duty according to the review. Tariff Commission of State Council should, in light of the proposal made by Ministry of Commerce, make a decision. And the decision should be announced by Ministry of Commerce. Or Ministry of Commerce makes a decision on and announces the retention, revision, or termination of the price undertaking in accordance with the provisions of these Regulations. Article 51 The procedure of review should be conducted according to relevant provisions of anti-dumping investigations of these Regulations. The review should be concluded within 12 months as of the decision of carrying out the review. Article 52 During the period of review, the procedure of the review does not impede the implementation of anti-dumping measures. Chapter VI - Supplementary Provisions Article 53 Any one who refuses to accept the final determination made under Article 25 of these Regulations, or refuses to accept the decision on whether or not to impose anti-dumping duties, backdate to and drawback duties, and imposition of an anti-dumping duty on new export managers, or refuses to accept the decision of review made under Chapter V of these Regulations may, in accordance with the law, apply for administrative reconsideration or file a lawsuit in the people's court. Article 54 The announcement published in accordance with these Regulations should contain, important information, facts, reasons, basis, result and conclusions, etc. Article 55 Ministry of Commerce may take appropriate measures to prevent the activities of evading anti-dumping measures. Article 56 If any country (region) discriminatorily imposes anti-dumping measures on the products exported 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 Ministry of Commerce is responsible for foreign-related consultations, notification and dispute settlements concerning anti-dumping. Article 58 Ministry of Commerce may, in accordance with these Regulations, formulate specific implementing measures. Article 59 The said Regulations will come into effect as of January 1, 2002. The provisions about anti-dumping in the Regulations of the People's Republic of China on Anti-dumping and Anti-subsidy promulgated by the State Council on March 25, 1997 should be repealed simultaneously. |