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and
(4) The capacity, export capabilities and inventory of the exporting country of the dumped product.
Article 9 If the anti-dumping investigation involves the import products from two or more countries, a cumulative evaluation may be conducted upon the implications of the import products concerned.
Article 10 The domestic industry shall mean all the producers of the identical or similar products or producers whose total output accounting for the larger part of the aggregate output of identical or similar products within the territory of the People's Republic of China, with the exception of situations whereby domestic producers are associated with export operators or export operators, or they themselves are the import operators of the dumped product,
CHAPTER THREE ANTI-DUMPING INVESTIGATIONS
Article 11 Domestic producers of, or organizations pertinent to (hereinafter referred to as applicants), products identical or similar to import products may, according to the stipulations of these Rules, file a written application for anti-dumping investigations with the Ministry of Foreign Trade and Economic Cooperation (MOFTEC).
Article 12 The application shall include the following contents:
(1) The names and addresses of the applicant and the producer it represents;
(2) The name, category, tariff line in the tariff schedule of the import product and the name and category of identical or similar domestic products;
(3) The quantity and price of the dumped product as well as its implication upon the domestic industry;
(4) The causal link between dumping and injury; and
(5) Other contents as provided for by the MOFTEC. The application shall be attached with necessary evidence.
Article 13 Upon receipt of the written application from the application, the MOFTEC shall examine the application and the attached evidence and, upon consultation with the State Economic and Trade Commission (SETC), decide to initiate investigations or not.
Article 14 In case of special circumstances, should the MOFTEC possess sufficient evidence to think that there exist dumping and injury and that there is a causal link between them, upon consultation with the SETC, may initiate investigations on an ex-officio basis.
Article 15 The period of time for an anti-dumping investigation shall be twelve (12) months from the date of announcement through the date of final adjudication; it can be extended to eighteen (18) months under special circumstances.
Article 16 The MOFTEC shall announce its decision, positive or negative, to initiate investigations and notify such interested parties as the applicant, the known export operators and import operators and the government of the exporting country.
Article 17 After deciding to initiate investigations, the MOFTEC works cooperatively with the General Customs Administration to investigate into the dumping and the margin of dumping; the SETC, in concert with competent authorities under the State Council, investigates into the injury and the extent of injury; and the MOFTEC and the SETC, based upon the investigative results, separately make preliminary adjudication, which are to be announced by the MOFTEC. Where there is a preliminary adjudication establishing dumping and injury, it shall be imperative to further investigate into the dumping, the dumping margin, injury and the extent of injury; and the MOFTEC and the SETC, based upon the investigative results, make the final adjudication, which is to be announced by the MOFTEC.
Article 18 If one of the following scenarios occur, the anti-dumping investigation shall be terminated and an announcement be made by the MOFTEC.
(1) The applicant withdraws the application;
(2) It is adjudicated preliminarily that there exist no dumping and injury;
(3) It is adjudicated finally that there exist no dumping and injury;
and
(4) The dumping margin or the import volume of the dumped product are negligible.
Article 19 When the MOFTEC works jointly with the General Customs Administration and when the SETC works jointly with competent authorities under the State Council in the conduct of the investigation, they may issue questionnaires and take sampling of the interested parties; at the request of interested parties, opportunities shall be granted to various interested parties to state their viewpoints. When it deems necessary, the MOFTEC may dispatch relevant staff-members to conduct an investigation in the countries concerned, with the exception of situations whereby the countries concerned come forward with opposition.
Article 20 When the MOFTEC works jointly with the General Customs Administration and when the SETC works jointly with competent authorities under the State Council in the conduct of the investigation, interested parties shall provide authentic information and supply relevant materials. If interested parties fail to provide authentic information and supply relevant materials or hamper the investigation in other forms, the MOFTEC and the SETC may make an adjudication based upon existing materials.
Article 21 The MOFTEC and the SETC shall permit the applicant and interested parties to have access materials of the case, with the exception of confidential ones.
CHAPTER FOUR ANTI-DUMPING MEASURES
Article 22 In the event of a preliminary adjudication establishing dumping and consequent injury caused to the domestic industry, the following interim anti-dumping measures may be applied:
(1) To levy the interim anti-dumping duty in accordance with the stipulated procedures; and
(2) To request the provision of cash deposits or other forms of collateral. The amount of the interim anti-dumping duty, the cash deposits and other forms of collateral shall be compatible with the dumping margin as established in the preliminary adjudication. The MOFTEC proposes, and the Tariff Schedule Commission under the State Council decides upon, the levying of the interim anti-dumping duty. The request for the provision of cash deposits or other forms of collateral is to be decided upon by the MOFTEC.
Article 23 The decision upon interim anti-dumping measures is to be announced by the MOFTEC and enforced by the customs posts.
Article 24 The period of time for the interim anti-dumping duty shall be four (4) months starting from the date of decision upon the interim anti-dumping measures; in case of special circumstances, it can be extended to nine (9) months.
Article 25 If the export operators or the government of the exporting country make commitments of taking proposed effective measures in order to eliminate the injury caused to the domestic industry, the MOFTEC, upon consultation with the SETC, may decide to terminate the anti- dumping investigation and make an announcement. The MOFTEC may request the export operators or the government of the exporting country listed in the previous paragraph to provide, on a regular basis, materials pertinent to fulfillment of commitments.
Article 26 If the export operators or the government of the exporting country fail to implement or withdraw commitments, the MOFTEC, upon consultation with the SETC, may decide to resume the anti-dumping investigation.
Article 27 If the final adjudication establishes the existence of dumping and the consequent generation of injury to the domestic industry, the anti-dumping duty may levied in compliance with the stipulated procedures and an announcement by made by the MOFTEC. The levying of the anti-dumping duty is proposed by the MOFTEC, decided upon by the Tariff Schedule Commission and enforced by the customs posts.
Article 28 The taxpayers of the anti-dumping duty shall be the import operators of the dumped products.
Article 29 The amount of the anti-dumping duty shall not exceed the dumping margin determined in the final adjudication.
Article 30 If the determined anti-dumping duty is lower than the interim anti-dumping duty, the over-levied portion shall be returned; and if the determined anti-dumping duty is higher than the interim anti-dumping duty, the under-levied portion shall not be collected as compensation.
Article 31 If it is decided not to levy the anti-dumping duty, the levied interim anti-dumping duty, the received cash deposits or other forms of collateral shall be returned.
Article 32 If the following tow scenarios coexist, the Tariff Schedule Commission under the State Council may, in accordance with the recommendation of the MOFTEC, decide to levy the retroactive anti- dumping duty on the dumped product imported within ninety (90) days prior to the date of announcement on the decision upon interim anti- dumping measures:
(1) The dumped product has a history of dumping causing injury to the domestic industry, or the import operators of the dumped product know or should know that the export operator of the this product is dumping products and that dumping would lead to injury to the domestic industry;
(2) The dumped product is massively imported within a short period of time and has caused injury to the domestic industry.
Article 33 The period of time for levying the anti-dumping duty and pricing commitments according to these Rules shall be five (5) years. Within this period of time, the MOFTEC, upon consultation with the SETC, may, on an ex-officio basis or at the request of interested parties, conduct a re-examination of the decision on levying the anti-dumping duty and, within twelve (12) months as from the date of the initiation of the re-examination, make a recommendation to the Tariff Schedule Commission under the State Council upon the revision, cancellation or maintenance of the decision on levying the anti-dumping duty; it is up to the Tariff Schedule Commission under the State Council to make the re-examination decision and up to the MOFTEC to announce it.
Article 34 If the import operator of the dumped product has evidence showing that the amount of the already-paid anti-dumping duty exceeds the dumping margin, it can apply for tax rebates with the MOFTEC. After working cooperatively with the General Customs Administration for examination and verification, tax rebates are to be proposed by the MOFTEC, decided by the Tariff Schedule Commission under the State Council and enforced by the customs posts. The decision on tax rebates listed in the previous paragraph shall be made within eighteen (18) months as from the date of receipt of the tax rebate application.
Article 35 The MOFTEC, the SETC and competent authorities under the State Council may adopt appropriate measures with a view to averting attempts to circumvent the anti-dumping measures.
CHAPTER FIVE SPECIAL STIPULATIONS REGARDING COUNTERVAILING
Article 36 Subsidy shall mean the financial assistance or interest granted directly or indirectly to industries and enterprises by a foreign government or public institutions.
Article 37 If an import product is subsidized, these Rules shall be applicable. However, these Rules shall not apply if the import product is only subsidized in such forms as industrial research and development, support for the backward areas and environmental protection.
Article 38 The net value of subsidies received by the subsidized product shall be the value of subsidy. The value of subsidy shall be calculated in accordance with a fair and reasonable approach.
Article 39 Relevant stipulations as contained in Chapters Two, Three and Four of these Rules shall be applicable to the injury caused by subsidies, the countervailing investigation and the enforcement of the countervailing measures.
CHAPTER SIX SUPPLEMENTARY ARTICLES
Article 40 If any country or territory take discriminatory anti-dumping or countervailing measures against the export products of the People's Republic of China, the People's Republic of China may, proceeding from actual situations, take corresponding measures against that country or territory.
Article 41 The MOFTEC, the SETC and competent authorities under the State Council may formulate relevant specific methods according to these Rules.
Article 42 These Rules shall go into effect as from the date of promulgation.
Editor/Compiler: Shanghai International Lawyers