Contents
China’s Anti-Dumping Regulations are simple, with only 42 articles and a few sub-articles. China incorporated the GATT standard by promulgating rules against dumping last year. China enacted the Anti-Dumping and Anti-Subsidy Regulations of the PRC (Regulations) in 1997, and the regulatory body enforcing it, the Ministry of Foreign Trade and Economic Cooperation (“MOFTEC”) issued its first decision under the law in December of 1997.
(Promulgated by Decree No. 328 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 Anti-Dumping 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 maintaining the foreign trade order and fair competition.
Article 2 Where an import is dumped into the market of the People’s Republic of China and causes material injury or threat of material injury to an established domestic industry, or causes material retardation to the establishment of such an industry, an anti-dumping investigation shall be initiated and anti-dumping measures applied in accordance with the provisions of these Regulations.
Chapter II Dumping and Injury
Article 3 The term “dumping” means that an import is introduced, in the ordinary course of trade, into the market of the People’s Republic of China at an export price less than its normal value.
The Ministry of Commerce shall be responsible for the investigation and determination of dumping.
Article 4 The normal value of an import shall be determined according to the following methods by distinguishing among different cases:
- where there is a comparable price for the like product of the import in the ordinary course of trade in the domestic market of the exporting country (region), such comparable price shall be the normal value; or
- where there are no sales of the like product of the import in the ordinary course of trade in the domestic market of the exporting country (region), or the price and the quantity of such sales do not permit a fair comparison, the normal value shall be the comparable price of the like product when exported to an appropriate third country (region) or the cost of production of the like product in the country (region) of origin plus a reasonable amount for expenses and for profits.
In cases where a product is not imported directly from the country (region) of origin, its normal value shall be determined in accordance with Item 1 of the preceding paragraph. However, under the circumstances that the product is merely transhipped through the exporting country (region), or such product is not produced in the exporting country (region), or there is no comparable price for such product in the exporting country (region), the price of the like product in the country (region) of origin may be considered as the normal value.
Article 5 The export price of an import shall be determined according to the following methods by distinguishing among different cases:
- the price actually paid or payable for the import shall be the export price; or
- in cases where there is no export price for the import or the price is unreliable, the export price may be constructed on the basis of the price at which the import is first resold to an independent buyer; however, if the import is not resold to an independent buyer, or not resold in the condition as imported, the export price may be determined on the basis of a reasonable price constructed by the Ministry of Commerce.
Article 6 The margin of dumping is the amount by which the export price of an import is less than its normal value.
A fair and reasonable comparison shall be made between the export price and the normal value of an import, with due allowance for factors that affect price comparability.
The margin of dumping shall be established on the basis of a comparison of a weighted average normal value with a weighted average of prices of all comparable export transactions or by a comparison of the normal value and export price on a transaction-to-transaction basis.
Where the export prices differ significantly among different purchasers, regions or time periods, and therefore it is difficult to make comparison through the methods prescribed in the preceding paragraph, a comparison may be made between a weighted average normal value with prices of individual export transactions.
Article 7 The term “injury” means material injury or threat of material injury caused by dumping to an established domestic industry or material retardation of the establishment of such domestic industry.
The Ministry of Commerce shall be responsible for the investigation and determination of injury. The anti-dumping 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 8 The following factors shall be examined in the determination of injury caused by dumping to a domestic industry:
- whether the volume of dumped imports, including the volume of dumped imports either in absolute terms or relative to the production or consumption of a like domestic product, has been increasing significantly, or the possibility of a significant increase in dumped imports;
- the effects of dumped imports on prices, including the price undercutting by the dumped imports, or the significant suppressing or depressing effects on the price of a like domestic product, etc.;
- the consequent impact of the dumped imports on the relevant economic factors and indices of the domestic industry;
- the production capacity or export capacity of the exporting country (region) or the country (region) of origin, and inventories of the product under investigation; and
- other factors that may cause or have caused injury to a domestic industry.
The determination of a threat of material injury shall be based on facts and not merely on allegation, conjecture or remote possibility.
When determining the injury caused by dumping to a domestic industry, the determination shall be based on positive evidence, and the injuries caused by factors other than dumping must not be attributed to dumping.
Article 9 Where the dumped imports from more than one country (region) simultaneously satisfy the following requirements, the effects of such dumped imports on a domestic industry may be cumulatively assessed:
- the margin of dumping established in relation to the dumped imports from each country (region) is no less than two percent, and the volume of such imports from each country is not negligible; and
- a cumulative assessment of the effects of the dumped imports is appropriate in light of the conditions of competition between the dumped imports and the conditions of competition between the dumped imports and the like domestic product.
The volume of dumped imports shall normally be regarded as negligible if the volume of dumped imports from a particular country (region) is found to account for less than three percent of the total imports of the like product unless countries (regions) which individually account for less than three percent of the total imports of the like product collectively account for more than seven percent of its total imports of the like product.
Article 10 The effect of the dumped imports shall be assessed in relation to the separate identification of the domestic production of the like product. If such separate identification of that production is not possible, the effect of the dumped imports shall be assessed by the examination of the production of the narrowest group or range of products, including the like domestic product.
Article 11 The term “domestic industry” means the domestic producers as a whole of the like products within the People’s Republic of China or those of them whose collective output of the products constitutes a major proportion of the total production of those products, except that when domestic producers are related to the exporters or importers or are themselves importers of the dumped imports or like products.
In exceptional circumstances, the producers within a regional domestic market may be regarded as a separate industry if the producers within such market sell all or almost all of the like products in that market, and the demand in that market is not to any substantial degree supplied by domestic producers of the like products located in other domestic regions.
Article 12 The term “like product” means the product that is identical to the dumped import, or in the absence of such a product, another product that has characteristics closely resembling the dumped import.
Chapter III Anti-Dumping Investigation
Article 13 Any domestic industry, natural person, legal person or relevant organization on behalf of the domestic industry (hereinafter collectively referred to as “the applicant”) may make a written application to the Ministry of Commerce for an anti-dumping investigation in accordance with the provisions of these Regulations.
Article 14 The application shall contain the following information:
- the name, address and relevant information of the applicant;
- a complete description of the import in question, including the name of the product, the exporting country (region) or the country (region) of origin concerned, the identity of known exporters or producers, information on the price of the product destined for consumption in the domestic market of the exporting country (region) or the country (region) of origin, and information on the export price, etc.;
- a description of the volume and value of domestic production of the like product;
- the effect of the volume and price of the import in question on the domestic industry; and
- other information that the applicant considers as necessary to provide.
Article 15 The application shall be supported by the following evidence:
- existence of dumping of the import in question;
- injury caused to a domestic industry; and
- existence of a causal link between the dumping and the injury.
Article 16 The Ministry of Commerce shall, within 60 days from the date of receipt of the application and relevant evidence submitted by the applicant, 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 shall decide whether or not to initiate an investigation.
Prior to the decision to initiate an investigation, the government of the exporting country (region) concerned shall be notified.
Article 17 An application shall be considered to have been made by or on behalf of the domestic industry and an anti-dumping investigation may be initiated, if the application is supported by those domestic producers whose collective output constitutes more than 50 percent of the total production of the like product produced by that portion of the domestic industry expressing either support for or opposition to the application. However, no investigation shall be initiated when the output of those domestic producers expressly supporting the application accounts for less than
25 percent of the total production of the like domestic product.
Article 18 If, in special circumstances, the Ministry of Commerce decides to initiate an investigation without having received any written application for an anti-dumping investigation, it shall proceed only if it has sufficient evidence of the existence of dumping, injury, and causal link to justify the initiation of an investigation.
Article 19 The Ministry of Commerce shall publish the decision to initiate an investigation and notify the applicant, the known exporters and importers, the government of the exporting country (region) and other interested organizations and parties (hereinafter collectively referred to as “the interested parties”).
As soon as the decision to initiate an investigation is published, the Ministry of Commerce shall provide the full text of the written application to the known exporters and the government of the exporting country (region).
Article 20 The Ministry of Commerce may conduct investigation and collect information from the interested parties by, among others, sending questionnaires, using samples, holding public hearings and making on-the-spot verification.
The Ministry of Commerce shall provide opportunities for the interested parties concerned to present their views and supporting arguments.
The Ministry of Commerce may send its staff members to the country (region) concerned to carry out investigation if it deems necessary to do so unless the country (region) concerned object to such an investigation.
Article 21 The interested parties shall provide authentic information and relevant documentation to the Ministry of Commerce in the process of the investigation. In the event that any interested party does not provide authentic information and relevant documentation, or does not provide necessary information within a reasonable time limit, or significantly impedes the investigation in other ways, the Ministry of Commerce may make determinations on the basis of the facts already known and the best information available.
Article 22 The interested parties may request the Ministry of Commerce to treat the information they provide as confidential if they consider that any disclosure of such information would create significantly adverse effects.
The Ministry of Commerce shall treat the information provided by the interested parties as confidential if it considers that the request for confidentiality is justifiable, and shall require the interested parties to provide non-confidential summaries thereof.
No confidential information shall be disclosed without permission of the interested party providing it.
Article 23 The Ministry of Commerce shall allow the applicant and the interested parties to have access to the information relevant to the investigation, provided that the information is not treated as confidential.
Article 24 The Ministry of Commerce shall, on the basis of its findings, make a preliminary determination on dumping and injury, as well as on whether there exists a causal link between dumping and injury. The preliminary determination shall be published by the Ministry of Commerce.
Article 25 In cases where a preliminary determination on dumping, injury and the causal link between the two is affirmative, the Ministry of Commerce shall conduct further investigations on dumping, the margin of dumping, the injury and its degree, and, on the basis of its findings, make a final determination. The final determination shall be published by the Ministry of Commerce.
Before the final determination is made, the Ministry of Commerce shall inform all known interested parties of the essential facts on which the final determination is based.
Article 26 An anti-dumping investigation shall be concluded within 12 months from the date of publication of the decision to initiate the investigation, and such period may be extended in special circumstances, but in no case shall the extension be more than six months.
Article 27 In any one of the following circumstances, an anti-dumping investigation shall be terminated and such termination shall be published by the Ministry of Commerce:
- the application has been withdrawn by the applicant;
- there is no sufficient evidence of the existence of dumping, injury or causal link between the two;
- the margin of dumping is less than two percent;
- the actual or potential volume of the dumped imports or the injury is negligible; or
- other circumstances that the Ministry of Commerce considers not appropriate to continue the anti-dumping investigation.
If the product under investigation imported from one or some of the 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 such product shall be terminated.
Chapter V Anti-Dumping Measures
Section 1 Provisional Anti-Dumping Measures
Article 28 The following provisional anti-dumping measures may be applied if the preliminary determination establishes the existence of dumping and the injury caused by dumping to a domestic industry:
- the imposition of provisional anti-dumping duties; or
- provision of deposits, bonds or other forms of security.
The amount of provisional anti-dumping duties, deposits, bonds or other forms of security provided shall not exceed the margin of dumping established in the preliminary determination.
Article 29 The proposal imposing provisional anti-dumping duties 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 decision on the provision of deposits, bonds or other forms of security 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.
Article 30 The period for applying provisional anti-dumping measures shall not exceed four months from the effective date set forth in the public notice regarding the decision on provisional anti-dumping measures, and, in special circumstances, may be extended to nine months.
No provisional anti-dumping measures shall be applied within 60 days from the date of publication of the decision to initiate the investigation.
Section 2 Price Undertakings
Article 31 During the period of an anti-dumping investigation, an exporter of the dumped imports may offer price undertakings to the Ministry of Commerce to revise its prices or to cease exporting at dumped prices.
The Ministry of Commerce may suggest price undertakings to an exporter.
The Ministry of Commerce shall not force an exporter to enter into price undertakings.
Article 32 The fact that an exporter does not offer price undertakings, or does not accept any suggestion regarding price undertakings, shall in no way prejudice the investigation and determination of an anti-dumping case. The Ministry of Commerce has the right to determine that a threat of injury is more likely to be realized if the exporter continues dumping the imports.
Article 33 If considering that a price undertaking made by an exporter is acceptable and in the public interest, the Ministry of Commerce may decide to suspend or terminate the anti-dumping investigation without applying provisional anti-dumping measures or imposing anti-dumping duties. The decision to suspend or terminate the anti-dumping investigation shall be published by the Ministry of Commerce.
If the Ministry of Commerce does not accept a price undertaking, it shall provide the reasons therefore to the exporter concerned.
Price undertakings shall not be sought or accepted unless the Ministry of Commerce has made a preliminary affirmative determination of dumping and injury caused by such dumping.
Article 34 After the suspension or termination of an investigation according to the provisions of Paragraph 1, Article 33 of these Regulations, the Ministry of Commerce shall continue the investigation of dumping and injury upon the request of an exporter or may do so if it deems necessary.
On the basis of the findings of the investigation prescribed in the preceding paragraph, the price undertaking shall automatically lapse if a negative determination is made on dumping or injury, or shall remain in force if the determination on both dumping and injury is affirmative.
Article 35 The Ministry of Commerce may require the exporter from whom an undertaking has been accepted to provide periodically information and documentation relevant to the fulfilment of such an undertaking, and make verification on such information and documentation.
Article 36 In cases where an exporter violates his price undertaking, the Ministry of Commerce may decide to resume the anti-dumping investigation immediately in accordance with the provisions of these Regulations, or, on the basis of the best information available, decide to apply provisional anti-dumping measures and levy anti-dumping duties retroactively on the products imported not more than 90 days prior to the application of such provisional anti-dumping measures, except the products imported before the violation of the price undertaking.
Section 3 Anti-Dumping Duties
Article 37 If a final determination establishes the existence of dumping and injury caused by dumping to a domestic industry, an anti-dumping duty may be imposed. Imposition and collection of anti-dumping duties shall be in the public interest.
Article 38 The proposal imposing an anti-dumping duty 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.
Article 39 Anti-dumping duties shall be imposed on products imported after the date of publication of the final determination, with the exception of the circumstances set forth in Articles 36, 43 and 44 of these Regulations.
Article 40 Anti-dumping duties shall be paid by importers of dumped imports.
Article 41 Anti-dumping duties shall be determined separately on the basis of the margin of dumping established for each individual exporter. Where it is necessary to impose an anti-dumping duty on the dumped imports of an exporter who has not been included in the ongoing examination, an anti-dumping duty applicable to the exporter shall be determined in a reasonable way.
Article 42 No anti-dumping duties shall be levied in excess of the margin of dumping established in a final determination.
Article 43 In cases where a final determination establishes the existence of a material injury, and provisional anti-dumping measures have been applied prior to the final determination,
anti-dumping duties may be levied retroactively for the period during which provisional anti-dumping measures have been applied.
In cases where a final determination establishes the existence of a threat of material injury, and provisional anti-dumping measures have been applied in the situation that the absence of such provisional anti-dumping measures would have led to a determination of material injury,
anti-dumping duties may be levied retroactively for the period during which provisional anti-dumping measures have been applied.
If the definitive anti-dumping duty determined in a final determination is higher than the provisional anti-dumping duty paid or payable, or the amount estimated for the purpose of the security, the difference shall not be collected; if the definitive duty is lower than the provisional anti-dumping duty paid or payable, or the amount estimated for the purpose of the security, the difference shall be refunded or the duty recalculated, as the case may be.
Article 44 When the following two circumstances exist simultaneously, an anti-dumping duty may be retroactively levied on products imported not more than 90 days prior to the date of application of provisional anti-dumping measures, except the products imported before the initiation of the investigation:
- there is a dumping history of the dumped imports causing injury to the domestic industry, or the importer of the dumped imports was, or should have been, aware that the exporters practice dumping and that such dumping would cause injury to the domestic industry; and
- the dumped imports were massively imported in a short period of time and were likely to seriously undermine the remedial effect of the definitive anti-dumping duty to be applied.
The Ministry of Commerce may, after initiating an investigation, take such measures as import registration of the import concerned as may be necessary in order for a retroactive collection of an anti-dumping duty if it has sufficient evidence to prove the simultaneous existence of the two circumstances set forth in the preceding paragraph.
Article 45 Where a final determination decides not to levy an anti-dumping duty, or does not decide a retroactive levy of an anti-dumping duty, the provisional anti-dumping duty collected and any deposits made during the period of the application of provisional anti-dumping measures shall be refunded, and any bonds or other forms of security released.
Article 46 If an importer of dumped imports can provide evidence to prove that the
anti-dumping duty already paid is higher than the margin of dumping, he can apply to the Ministry of Commerce for duty refund. The Ministry of Commerce shall, upon examination and verification of the application, make a proposal to the State Council Tariff Commission, who shall make a decision to refund the extra duty on the basis of the proposal made by the Ministry of Commerce, and the Customs shall implement the decision.
Article 47 After an import is subject to an anti-dumping duty, new exporters who have not exported the product in question to the People’s Republic of China within the period of investigation, may apply to the Ministry of Commerce for a separate determination of the margin of dumping, provided that they can show that they are not related to any of the exporters who are subject to the anti-dumping duty. The Ministry of Commerce shall promptly carry out a review and make a final determination. No anti-dumping duties shall be levied on imports from such exporters or producers while the review is being carried out, but measures may be taken as provided in Item 2, Paragraph 1 of Article 28 of these Regulations.
Chapter V Duration and Review of Anti-Dumping Duties and Price Undertakings
Article 48 The period for the levy of an anti-dumping duty and fulfilment of a price undertaking shall not exceed five years. However, the period for the levy of the anti-dumping duty may be extended as appropriate if, as a result of the review, it is determined that the termination of the anti-dumping duty would be likely to lead to continuation or recurrence of dumping and injury.
Article 49 After an anti-dumping duty has taken effect, the Ministry of Commerce may decide on justifiable grounds to review the need for the continued imposition of the anti-dumping duty; such a review may also be conducted, provided that a reasonable period of time has elapsed, upon request by the interested parties and on the basis of examination of the relevant evidence submitted by the interested parties.
After a price undertaking has taken effect, the Ministry of Commerce may, on justifiable grounds, decide to review the need for the continued fulfilment of the price undertaking; such a review may also be conducted, provided that a reasonable period of time has elapsed, upon request by the interested parties and on the basis of examination of the relevant evidence submitted by the interested parties.
Article 50 On the basis of the findings of a review, the Ministry of Commerce shall, in accordance with the provisions of these Regulations, make a proposal on the retention, revision, or termination of an anti-dumping duty, and the State Council Tariff Commission shall, in light of the proposal made by the Ministry of Commerce, make a decision which shall be published by the Ministry of Commerce. Meanwhile, the Ministry of Commerce may make a decision on the retention, revision, or termination of a price undertaking and publish such decision in accordance with the provisions of these Regulations.
Article 51 The review proceedings shall be conducted with reference to the relevant provisions of these Regulations on anti-dumping investigation.
Any review shall be concluded within 12 months from the date of the decision of initiation of such a review.
Article 52 During the period of review, the review proceedings shall not impede the application of anti-dumping measures.
Chapter VI Supplementary Provisions
Article 53 Where any party is not satisfied with a final determination made under Article 25 of these Regulations, or not satisfied with a decision on whether or not to impose an anti-dumping duty or a decision on retroactive imposition of an anti-dumping duty, reimbursement of an anti-dumping duty or imposition of an anti-dumping duty on new exporters, which is made under Chapter IV of these Regulations, or not satisfied with the review findings made under Chapter V of these Regulations, it may, in accordance with the law, apply for administrative reconsideration or file a lawsuit in the people’s court.
Article 54 A public notice issued under these Regulations shall contain, inter alia, important information, facts, reasons, basis, findings and conclusions, etc.
Article 55 The Ministry of Commerce may take appropriate measures to prevent the circumvention of anti-dumping measures.
Article 56 Where any country (region) discriminatorily applies anti-dumping 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 57 The Ministry of Commerce shall be responsible for foreign-related consultation, notification and dispute settlement concerning anti-dumping activities.
Article 58 The Ministry of Commerce may, in accordance with these Regulations, formulate specific implementing measures.
Article 59 These Regulations shall be effective as of 1 January 2002. The provisions on anti-dumping contained in the Regulations of the People’s Republic of China on Anti-dumping and Anti-subsidy promulgated by the State Council on 25 March 1997 shall be repealed simultaneously.
NOTIFICATIONS OF LAWS AND REGULATIONS UNDER
ARTICLE 18.5 OF THE AGREEMENT
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.
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With reference to Article 18.5 of the Agreement on Implementation of Article VI of the GATT 1994, the Government of China notifies the Committee on Anti-Dumping Practices of the departmental rules related to the Agreement as following: Regulation of the People’s Republic of China on Anti-Dumping.
