CHINA LAW DIGEST NEWSLETTER
Vol. 1, No.3 - April 2, 2002
SPECIAL EDITION New Regulations on Anti-dumping In early 2002, the Ministry of Foreign Trade and Economic Cooperation ("MOFTEC") issued a series of regulations on anti-dumping investigation procedures. Whereas previously, China's lack of transparent proceedings and regulations concerning anti-dumping charges was once a point of criticism for foreign exporters, the recently promulgated set of rules show that MOFTEC is taking an active stance and further complying with WTO rules. |
New Anti-dumping Regulations
- Interim Rules On The Filing Of Anti-dumping Investigation Cases
- Interim Rules On Anti-dumping On-site Investigations
- Interim Rules On Anti-dumping Questionnaire Investigations
- Interim Rules On Anti-dumping Investigation Sampling
- Interim Rules On Information Disclosure Of Anti-dumping Investigations
- Interim Rules On Anti-dumping Investigations For Public Reference
- Interim Rules On Anti-dumping Price-undertaking
- Interim Rules On The Anti-dumping Review Of New Exporters
- Interim Rules On Anti-dumping Tax Refunds
- Interim Rules On the Mid-term Review of Dumping and the Dumping Margin
Interim Rules On The Filing Of Anti-dumping Investigation Cases
Issue Date: February 10, 2002
Issue Body: MOFTEC
Effective Date: March 13, 2002
Summary:
The MOFTEC Import and Export Fair Trade Bureau ("Fair Trade Bureau") may initiate an anti-dumping investigation case upon receiving a petition filed by an applicant or by its own decision. Applicants eligible to file a petition with MOFTEC include the domestic industry, a domestic company or individuals, legal persons or organizations representing the domestic industry. The domestic industry refers to all manufacturers of similar products in the industry or those manufacturers representing more than 50% of the total gross production of all similar products. If the petitioner's production is lower than 50% of the total gross production, the petition can also be considered as representing the domestic industry, provided that the petitioner's production exceeds 50% of the gross production of the supporters and the objectors, but not lower than 25% of the gross production of all similar products manufactured.
The Rules also provide what information or documents the petitioners need to prepare to determine export price, normal value, dumping margin, the severance of injuries suffered by the domestic industry and the causality between the dumping and the injuries. The petitioners may require that the filing documents be confidential. The Fair Trade Bureau may investigate the case through questionnaires or on-site investigations. The Rules also state that the Fair Trade Bureau must make a decision on the case within 60 days after consulting with the State Economic and Trade Commission.
Interim Rules On Anti-dumping On-site Investigations
Issue Date: March 13, 2002
Issue Body: MOFTEC
Effective Date: April 15, 2002
Summary
Anti-dumping on-site investigations refer to the procedures that MOFTEC assigns to government officials of the relevant countries or regions to verify the truthfulness, accuracy and integrity of the information or materials submitted by relevant exporters or manufacturers as well as the collection of such information. MOFTEC only conducts on-site investigations in countries or regions which fully cooperate with MOFTEC. The rules further state that on-site investigations may be conducted before or after the preliminary determinations. MOFTEC shall give notice to the suspected exporters and manufacturers and obtain approval from them. MOFTEC will not conduct on-site investigations if the exporter's or manufacturer's home government opposes such investigations.
Interim Rules On Anti-dumping Questionnaire Investigations
Issue Date: March 13, 2002
Issue Body: MOFTEC
Effective Date: April 15, 2002
Summary
Anti-dumping questionnaire investigations refer to those written questionnaires issued by MOFTEC to producers or exporters who respond to MOFTEC's anti-dumping investigation notice. If the number of companies that respond is excessive, MOFTEC may choose to conduct the anti-dumping investigation by way of sampling only a portion of the companies, in which case only those chosen companies will receive a questionnaire.
Questionnaires shall be completed and delivered to MOFTEC within 37 days after receiving them. Extensions may be granted upon application but generally no longer than 14 days will be granted. The rules stipulate that the respondent companies may require that information disclosed in the questionnaire be treated confidentially. In such cases, a non-confidential abstract shall be submitted. The respondent companies will also submit a statement pledging the accuracy and integrity of the information submitted. MOFTEC will not accept questionnaires without such a statement. Respondent companies may also be required to submit floppy disks, laser discs or other electronic instruments as deemed necessary by MOFTEC. Failure to do so will be regarded as non-cooperation.
Interim Rules On Anti-dumping Investigation Sampling
Issue Date: March 13, 2002
Issue Body: MOFTEC
Effective Date: April 15, 2002
Summary
When conducting anti-dumping investigations, MOFTEC shall decide on the dumping margin of each respondent exporter or manufacturer based on research. However, if investigating all exporters or manufacturers proves too onerous, MOFTEC may conduct the anti-dumping investigation by way of sampling respondent companies.
MOFTEC will notify interested parties about the preliminary choice. MOFTEC will choose to investigate those exporters/manufacturers from the pool of respondents who agreed to be chosen at the best of its abilities, and objections from the chosen exporters/manufacturers will not affect such choice. MOFTEC will make independent decisions regarding the dumping margins of the chosen exporters and manufacturers. For those exporters/manufacturers who are not independently investigated, MOFTEC will use the weighted average dumping margin of the chosen exporters or manufacturers.
Interim Rules On Information Disclosure Of Anti-dumping Investigation
Issue Date: March 13, 2002
Issue Body: MOFTEC
Effective Date: April 15, 2002
Summary
Information disclosure of anti-dumping investigations refers to MOFTEC providing information to the interested parties who provided the fundamental data, information, evidence and reasons used by MOFTEC in making a dumping decision or determining a dumping margin. According to the rules, information must be disclosed after the preliminary decision and on-site investigation and before the final decision.
MOFTEC shall disclose information on the data used to decide the normal value, export price, cost and the utilization and reasoning behind use of the information. MOFTEC shall also disclose how the dumping margin was calculated and any other information at its discretion. The interested parties will have at least 10 days to provide comments on the information disclosed by MOFTEC before the final determinations are made.
Interim Rules On Anti-dumping Investigations For Public Reference
Issue Date: March 13, 2002
Issue Body: MOFTEC
Effective Date: April 15, 2002
Summary
The public refers to those parties who have an interest in anti-dumping cases and the relevant research, review, transcription or copying of non-confidential information or other materials of anti-dumping investigations. The Rules list ten types of information that is publicly available including a non-confidential version of the anti-dumping application, a non-confidential version of the response, foreign exporter's or manufacturer's answers to questionnaires, etc.
Interim Rules on Anti-dumping Price-undertaking
Issue Date: March 13, 2002
Issue Body: MOFTEC
Effective Date: April 15, 2002
Summary
Anti-dumping price-undertaking refers to the voluntarily price-undertaking of the respondent exporters/manufacturers regarding price changes or discontinuing to export investigated products below the dumping price. Such undertakings shall be approved by MOFTEC with the result that the anti-dumping investigation is then paused or terminated. Exporters/manufacturers may propose price-undertakings to MOFTEC and MOFTEC can also make suggestions. However, MOFTEC cannot force exporters/manufacturers to commit to any price-undertakings. Refusing to make price-undertakings or accept MOFTEC's suggestion shall not result in unfavorable effects. The proposal of price-undertakings shall be made no later than 45 days after preliminary determinations.
The price-undertaking margin shall correspond to the dumping margin asserted in the preliminary determinations. In case of the price-undertaking margin being lower than the dumping margin but high enough to eliminate damage suffered by the domestic industry, a lower than dumping margin price-undertaking shall be acceptable. Price-undertaking shall take effect from the announcement of the pause or termination of the anti-dumping investigation and is valid for 5 years. MOFTEC will oversee the execution of price-undertaking. MOFTEC may revoke the price-undertakings if such price-undertakings do not comply with China's public interests.
Interim Rules On The Anti-dumping Review Of New Exporters
Issue Date: March 13, 2002
Issue Body: MOFTEC
Effective Date: April 15, 2002
Summary
These rules apply to the situation where exporters/manufacturers ("new exporters") in the investigated countries did not export investigated products to China during the anti-dumping investigation period, and apply for a review on fixing an independent anti-dumping tax rate. New exporters shall not be associated with those exporters/manufacturers involved in previous anti-dumping investigations. If the new exporters are trading companies, their suppliers shall not be associated with exporters/manufacturers that were once under investigation. Applicants for new exporters review must have begun to export the products under investigation to China after the anti-dumping investigation was begun. Such exports shall be large enough to constitute the basis of determining normal export price.
Review of new exporters shall be brought out after the original anti-dumping investigation is finally determined, but no later than 3 months after the actual exports. For those new exports that began before the final determination, but after the original anti-dumping investigation, the application review shall be carried out within 3 months after the final determination.
If MOFTEC accepts the new exporter's application, it will notify customs officials. Customs will cease imposing the anti-dumping tax on the applicant's products. However, customs will require that the applicant submit deposits according to the anti-dumping tax rate applicable to the companies under investigation in the original anti-dumping investigation. A new exporter review shall not last more than 9 months. If during the review, a dumping action is considered to exist, the anti-dumping tax shall be levied on the products exported before the final determination.
Interim Rules on Anti-dumping Tax Refunds
Issue Date: March 13, 2002
Issue Body: MOFTEC
Effective Date: April 15, 2002
Summary
An exporter of dumping products may apply to MOFTEC for a tax refund if it has evidence proving that the levied anti-dumping tax has exceeded the actual dumping margin. A tax refund application shall be submitted to MOFTEC no later than 3 months after the anti-dumping tax is levied. MOFTEC has up to 12 months to review and investigate the tax refund application and a new dumping margin will be determined after the investigation. If the new dumping margin is lower than the previous dumping margin, a tax refund of the difference of the two margins will be granted.
Interim Rules on the Mid-term Review of Dumping and the Dumping Margin
Issue Date: March 13, 2002
Issue Body: MOFTEC
Effective Date: April 15, 2002
Summary
During the effective period of the anti-dumping measures, MOFTEC may, automatically or by application, carry out a mid-term review concerning the need to continue to impose the original measures. This review is called mid-term review. Parties eligible to file such applications include the domestic industry, individuals, legal persons or relevant organizations representing the domestic industry and exporters/manufacturers in the concerned countries/regions and domestic importers.
Mid-term review applications can be submitted every year within 30 days of the commencement of the anti-dumping measures. If the review is requested by exporters/manufacturers, the mid-term review is limited to an investigation regarding the normal value, export price and dumping margin of the products under investigation. If the review is requested by the domestic industry, the review will be conducted on all the exporters/manufacturers. If requested by importers, the review will be limited to those exporters/manufacturers who submit relevant information on the normal value, export price and dumping margin of the investigated products. MOFTEC has 12 months to carry out the mid-term review. During the review, the original anti-dumping methods are still valid. The review decision takes effect from the announcement date without recourse.
Lehman Lee & Xu
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