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中华人民共和国反倾销条例(修正) State Council, PRC Anti-dumping Regulations (Revised)1

2006-05-12 21:46   我要纠错 | 打印 | 收藏 | | |

国务院令第401号

(Promulgated by the State Council on 26 November 2001, revised according to the > Decision> on 31 March 2004, and effective as of 1 June 2004.)

颁布日期:20040331  实施日期:20040601  颁布单位:国务院

  PART ONE GENERAL PROVISIONS

  Article 1 These Regulations are formulated in accordance with the relevant provisions of the PRC, Foreign Trade Law to maintain order in foreign trade activities and to safeguard fair competition.

  Article 2 Where products imported into the market of the People's Republic of China by way of dumping result in substantial injury or the threat of substantial injury to a related domestic industry that has already been established, or substantially impede the establishment of a related domestic industry, investigations shall be conducted and anti-dumping measures taken in accordance with these Regulations.

  PART TWO DUMPING AND INJURY

  Article 3 Dumping means the entrance into the market of the People's Republic of China of an imported product at an export price lower than its normal value in the ordinary course of trade.

  The Ministry of Commerce shall be responsible for the investigation and determination of dumping.

  Article 4 The normal value of an imported product shall be determined in accordance with the following methods:

  1. where there is a comparable price for a product that is the same as the imported product in the market of the country (region) of export in the ordinary course of trade, that comparable price shall be the normal value; or

  2. where there are no sales of the product that is the same as the imported product in the market of the country (region) of export in the ordinary course of trade, or the price or quantity of such product cannot be compared with that of the imported product on a fair basis, the comparable price for export of the product to a proper third country (region), or the cost of the same product in the original country (region) of its production plus reasonable expenses and profit, shall be the normal value.

  If a product is not imported directly from its country (region) of origin, its normal value shall be determined in accordance with the provisions of Item one of the preceding paragraph; where the imported product is only in transit through the country (region) of export and there is no production of the product, nor a comparable price in the country (region) of export, the price of the same product in its country (region) of origin shall be the normal value.

  Article 5 The export price of an imported product shall, in the light of different circumstances, be determined in accordance with the following methods:

  1. where there is a purchase price that has been paid or a purchase price that is payable for the imported product, that price shall be the export price; or

  2. where there is no export price to be found for the imported product or the export price is not reliable, the price inferred from the first resale price to an independent purchaser shall be the export price; where the imported product is not resold to an independent purchaser or it is not sold in its original form when it is imported, the price inferred on a reasonable basis by the Ministry of Commerce shall be the export price.

  Article 6 The margin by which the export price for an imported product is lower than its normal value shall be the dumping margin.

  The export price and normal value of an imported product shall be compared on a reasonable and fair basis, taking into account all the comparable factors that may have effects on the price.

  In determining the dumping margin, the weighted average normal value shall be compared with the weighted average price of the product in all the export transactions involving the product, or the average value shall be compared with the export price on a transaction-by-transaction basis.

  Where the export price varies significantly for different purchasers, in different districts or in different periods and a comparison in accordance with the method specified in the above paragraph is not possible, the weighted average normal value may be compared with the price for individual export transactions.

  Article 7 Injury means substantial injury or the threat of substantial injury to a related domestic industry that has already been established caused by dumping or substantial impediment to the establishment of a related domestic industry because of dumping.

  The Ministry of Commerce shall be responsible for the investigation and determination of injury. Investigations of injury related to domestic industries involving agricultural products shall be conducted by the Ministry of Commerce in conjunction with the Ministry of Agriculture.

  Article 8 In determining the injury caused by dumping to a related domestic industry, the following items shall be examined:

  1. the volume of the dumped products, including the absolute quantity of the dumped product or the increased quantity of the dumped product as compared to the same product produced or consumed in China or the probability of a large increase of imports;

  2. the price of the dumped product, including price decreases of the dumped product or the impact of the price of the dumped product on the price of the same product in China in the form of a significant suppression or lowering of the latter price;

  3. the impact of the dumped product on related economic factors and indexes of the related domestic industry;

  4. the production capacity, export capacity and stockpiles of the dumped product in the country (region) of export and the country (region) of production; and

  5. other factors that cause injury to the related domestic industry.

  The determination of a threat of injury shall be made based on facts, but not on the basis of accusations, inferences or remote possibilities.

  The determination of injury to a related domestic industry caused by dumping shall be made according to definite evidence; injury not related to dumping shall not be attributed to dumping.

  Article 9 If a dumped product is imported from two or more countries (regions) and both of the following conditions are true, the impact of that imported product on the related domestic industry may be assessed cumulatively:

  1. the dumping margin of the dumped product from each country (region) is not less than 2% and the quantity of its import is not negligible; and

  2. a cumulative assessment is appropriate in view of the conditions for competition between the dumped product that has been imported and between that imported product and the same product produced in China.

  Negligible means that the quantity of the dumped product imported from one country (region) is less than 3% of the total quantity of the product imported, but an exception shall be made if the quantity of the dumped product from one of a group of countries (regions) accounts for less than 3%, but the total quantity of the product from this group is more than 7% of the total quantity of all imports of the product.

  Article 10 The impact of a dumped product on a related domestic industry shall be assessed with reference only to the same product produced in China and, if that is not possible, reference shall be made to the narrowest group of products or the narrowest scope of production covering a product of the same kind produced in China.

  Article 11 A domestic industry means all producers of the like product within the territory of the People's Republic of China, or producers whose total output of the same product accounts for the majority of output of the same product in China. However, if a domestic producer is affiliated with the exporter or importer of the dumped product, or itself is an importer of the dumped product, that producer may be excluded.

  In special cases, producers for a regional market in which such producers sell all or nearly all their products of the same kind and in which the demand for the same product is not met by a supply from producers in other districts of China may be regarded as a separate industry.

  Article 12 Like product means a product that is the same as the dumped product; where there is not a product that is the same as the dumped product, a product very closely resembling the dumped product shall be regarded as the like product.

  PART THREE ANTI-DUMPING INVESTIGATION

  Article 13 A domestic industry or a natural person, legal person or relevant organization representing the domestic industry (the Petitioner) may lodge a written application for an anti-dumping investigation with the Ministry of Commerce in accordance with the provisions of these Regulations.

  Article 14 An application shall include the following items:

  1. the name, address and other relevant information of the Petitioner;

  2. a full description of the imported product in which an investigation is sought, including the name of the product, the country (countries) (region(s)) of export or the country (countries) (region(s)) of origin concerned, the known exporter(s) or producer(s), information on the price at which the product concerned is consumed on the domestic market(s) of the country (countries) (region(s)) of export or of the country (countries) (region(s)) of production, information on the export price, etc.;

  3. the quantity and value of the like product produced in China;

  4. the impact of the quantity and price of the imported product on the related domestic industry; and

  5. other information the Petitioner deems necessary.

  Article 15 The following supporting documents shall be attached to the application:

  1. evidence of dumping of the imported product in which an investigation is sought;

  2. evidence of injury caused to the domestic industry; and

  3. evidence of causation between the dumping and the injury.

  Article 16 Within 60 days after receiving a Petitioner's written application and relevant supporting documents, the Ministry of Commerce shall examine the qualifications of the Petitioner as the domestic industry or representative of the domestic industry, the contents of the application and the attached supporting documents and shall decide whether the case should or should not be filed for investigation.

  Prior to the decision to initiate an investigation, the government(s) of the country (countries) of export concerned shall be notified thereof.

  Article 17 Among the supporters and the opponents to an application, if the output of the supporters accounts for more than 50% of the total output of both the supporters and the opponents, the application shall be deemed to have been lodged by the domestic industry or on behalf of the domestic industry and the investigation shall be activated; if the production of the domestic supporters for the application accounts for less than 25% of the total output of the same product produced in China, an investigation shall not be initiated.

  Article 18 In special cases, even if the Ministry of Commerce has not received a written application for investigation, it may decide to initiate an investigation if there is sufficient evidence that dumping and injury have occurred and there is definite causation between the dumping and the injury.

  Article 19 The decision to initiate an investigation shall be publicly announced by the Ministry of Commerce, and the Petitioner, the known exporter(s) and importer(s), the government(s) of the country (countries) (region(s)) and other interested organizations and individuals (collectively, the Interested Parties) shall be notified thereof.

  Upon announcing the decision to initiate the investigation, the Ministry of Commerce shall provide copies of the text of the application to the known exporter(s) and the government(s) of the country (countries) (region(s)) of export.

  Article 20 The Ministry of Commerce may collect information from the Interested Parties and conduct the investigation by means of questionnaires, sample-taking, hearing sessions, on-the-spot verifications and other methods.

  The Ministry of Commerce shall provide opportunities for the Interested Parties to state their opinions and arguments.

  The Ministry of Commerce may, when it considers it necessary, send personnel to a country (region) concerned for an investigation; however, an exception shall be made if the country (region) concerned objects.

  Article 21 When the Ministry of Commerce conducts an investigation, the Interested Parties shall report the situation accurately and provide relevant information. If an Interested Party fails to report the situation accurately or to provide relevant information, or fails to provide necessary information within a reasonable period of time, or adopts other means to impede the investigation, the Ministry of Commerce may make a ruling based on the facts already obtained and the best information available.

  Article 22 If an Interested Party believes that any disclosure of the information it has provided will cause serious harm, the party may request the Ministry of Commerce to treat such information as confidential.

  If the Ministry of Commerce deems such request to be well grounded, they shall treat the information provided by the Interested Party as confidential and request the said party to supply a non-confidential abstract of such information.

  The information treated as confidential shall not be disclosed without the permission of the party who has provided such information.

  Article 23 The Ministry of Commerce shall allow the Petitioner and Interested Parties to access the files of the case with the exception of the information treated as confidential.

  Article 24 The Ministry of Commerce shall, on the basis of investigation findings, determine preliminarily whether the dumping, the injury and the causation between the dumping and the injury are substantiated and announce such preliminary finding publicly.

  Article 25 If the preliminary finding confirms dumping and injury and causation between the two, the Ministry of Commerce shall continue the investigation on the dumping and dumping margin as well as the injury and the extent of injury. They shall make final findings respectively based on their investigations, and the final findings shall be announced publicly.

  Prior to the making of the final findings, the Ministry of Commerce shall notify all the known Interested Parties of the basic facts according to which the final findings are to be made.

  Article 26 An anti-dumping investigation shall be completed within 12 months from the date when the decision to investigate the case was announced; under special circumstances, the period may be extended, but the extended period shall not be more than six months.

  Article 27 An anti-dumping investigation shall be terminated in any of the following circumstances and a public announcement shall be made by the Ministry of Commerce:

  1. where the Petitioner withdraws the application;

  2. where there is insufficient evidence that dumping and injury have occurred or that there is causation between the dumping and the injury;

  3. where the dumping margin is less than 2%;

  4. where the actual or potential quantity of the imported product or the injury caused is negligible; or

  5. where the Ministry of Commerce deems that it is no longer appropriate to continue the anti-dumping investigation.

  Where any of the circumstances listed in Item (2), (3) or (4) of the preceding paragraph is applicable to the products of one or some of the countries (regions), the anti-dumping investigations involving those products shall be terminated.

  PART FOUR ANTI-DUMPING MEASURES

  Section One: Provisional Anti-dumping Measures

  Article 28 If a preliminary finding determines that injury to a domestic industry as a result of dumping has occurred, the following provisional anti-dumping measures may be adopted:

  1. a provisional anti-dumping duty; or

  2. a request for a deposit, a letter of guarantee or other types of guarantee.

  The amount of the provisional anti-dumping duty and the amount of the deposit, a letter of guarantee or other types of guarantee shall not exceed the dumping margin as determined by the preliminary finding.

  Article 29 In imposing a provisional anti-dumping duty, the Ministry of Commerce shall make a suggestion and the State Council Commission for Custom Duty Rules shall, on the basis of the suggestion, make a decision and the decision shall be publicly announced by the Ministry of Commerce. With regard to a request to be made for a deposit, a letter of guarantee, or other types of guarantee, the Ministry of Commerce shall make the decision and publicly announce such decision. Customs shall implement such decisions as of the date specified in the public announcement.

  Article 30 The time limit for imposing provisional anti-dumping measures shall not exceed four months from the date specified in the public announcement on the provisional anti-dumping measures. Under special circumstances, the time limit may be extended to nine months.

  No provisional anti-dumping measures shall be imposed within 60 days of the public announcement of the anti-dumping investigation.

  Section Two: Price Undertaking

  Article 31 During the period of anti-dumping investigation, the exporter of the dumped product may propose to the Ministry of Commerce to undertake to change the price or to stop exporting at dumping price levels.

  The Ministry of Commerce may make price undertaking proposals to the exporter.

  The Ministry of Commerce shall not force the exporter to make price undertakings.

  Article 32 Failure of the exporter to make a price undertaking or to accept a price undertaking proposal shall not affect the anti-dumping investigation and the findings of the investigation. If the exporter continues to dump the imported product, the Ministry of Commerce shall have the right to determine that a threat of injury is increasing.

  Article 33 When the Ministry of Commerce determines that a price undertaking is acceptable and in the public interest, it may decide to suspend or terminate the anti-dumping investigation and not to adopt provisional anti-dumping measures or impose a provisional anti-dumping duty. The decision on the suspension or termination of the anti-dumping investigation shall be publicly announced by the Ministry of Commerce.

  If the Ministry of Commerce rejects the price undertaking, it shall give reasons to the exporter concerned.

  The Ministry of Commerce shall not seek or accept price undertakings prior to making a preliminary finding that dumping and injury resulting from dumping has actually occurred.

  Article 34 After suspension or termination of the anti-dumping investigation in accordance with the provisions of Paragraph One of Article 33 hereof, the Ministry of Commerce shall resume the investigation of the dumping and the injury at the request of the exporter or, if the Ministry of Commerce deems it necessary, it may resume the investigation of the dumping and the injury.

  The price undertaking shall automatically cease to be effective if the finding on the dumping or the injury based on the investigation is negative, while the price undertaking shall continue to be effective if the finding on the dumping and the injury based is positive.

  Article 35 The Ministry of Commerce may request the exporter to regularly provide information and data on performance of its price undertaking and the Ministry of Commerce shall verify such information and data.

  Article 36 If the exporter has breached its price undertaking, the Ministry of Commerce may decide to resume the anti-dumping investigation immediately in accordance with the provisions hereof. It may, on the basis of the best information available, adopt provisional anti-dumping measures and, in addition, impose an anti-dumping duty on the product imported within 90 days prior to the adoption of the provisional anti-dumping measures, excluding the products imported before the breach of the price undertaking.

  Section Three: Anti-dumping Duty

  Article 37 If the final finding determines that injury has occurred to a domestic industry as a result of dumping, an anti-dumping duty may be imposed. Imposition of anti-dumping duty shall be in the public interest.

  Article 38 In imposing an anti-dumping duty, the Ministry of Commerce shall make a suggestion and the State Council Commission for Custom Duty Rules shall, on the basis of the suggestion, make a decision and the decision shall be publicly announced by the Ministry of Commerce. Customs shall implement the decision as of the date specified in the announcement.

  Article 39 The anti-dumping duty is applicable to products imported after the final finding is publicly announced, except in cases specified in Articles 36, 43, and 44 hereof.

  Article 40 The anti-dumping duty shall be paid by the importer of the dumped product.

  Article 41 The rate of the anti-dumping duty shall be determined separately according to the dumping margin of each exporter. If anti-dumping duty needs to be imposed on products of which the exporters are not included in the anti-dumping investigation, the rate of the anti-dumping duty shall be determined on a reasonable and fair basis.

  Article 42 The amount of the anti-dumping duty shall not exceed the dumping margin determined by the final finding.

  Article 43 If the final finding determines that substantial injury has occurred and previous provisional anti-dumping measures have been applied, the anti-dumping duty may be retroactively imposed for the period in which provisional anti-dumping measures have been implemented.

  If the final finding determines that there exists a threat of substantial injury and previous provisional anti-dumping measures have been applied under circumstances where, if pre-emptive provisional anti-dumping measures were not adopted, it would lead to a final finding that substantial injury would occur, the anti-dumping duty may be retroactively imposed for the period in which provisional anti-dumping measures have been implemented.

  If the anti-dumping duty determined in the final finding is higher than the provisional anti-dumping duty that has been paid or is payable or than the estimated amount for the guarantee, the difference shall not be paid; if the anti-dumping duty determined by the final finding is lower than the provisional anti-dumping duty that has been paid or is payable or than the estimated amount for the guarantee, the difference shall be refunded on the basis of the specific conditions or the amount of the duty shall be re-calculated.

  Article 44 If the following two circumstances exist concurrently, the anti-dumping duty may be imposed retroactively on the dumped product imported within 90 days before the date on which the provisional anti-dumping measures began to be implemented, excluding products imported before the anti-dumping investigation began:

  1. the dumping of the dumped product has previously caused injury to a domestic industry or the importer of that dumped product knows or should have known that the exporter of that product is dumping that product and that the dumping will cause injury to a domestic industry; and

  2. a large quantity of the dumped product has been imported within a short period of time and the remedial effect of the anti-dumping duty to be adopted may possibly be seriously undermined.

  Where, after the Ministry of Commerce has initiated investigation, there is sufficient evidence to prove that the two circumstances listed in the preceding paragraph exist concurrently, it may adopt the necessary measures such as import registration towards the relevant dumped product in order to retroactively impose anti-dumping duty.

  Article 45 If the final finding determines that no anti-dumping duty shall be imposed or the finding does not provide for a retroactive imposition of the anti-dumping duty, the provisional anti-dumping duty and deposit already collected shall be refunded and the letter of guarantee and other types of guarantee shall be released.

  Article 46 An importer of the dumped product who has definite evidence that the amount of the anti-dumping duty already paid exceeds the dumping margin may apply to the Ministry of Commerce for a rebate. The Ministry of Commerce shall verify the application and, after confirmation, make a suggestion, and the State Council Commission for Custom Duty Rules may, on the basis of the suggestion, make a decision for the rebate. The decision shall be implemented by customs.

  Article 47 After the anti-dumping duty is imposed on the dumped product, if a new exporter of the product who did not export that product to the People's Republic of China within the period of investigation is able to prove that it is not associated with any of the exporters on whom anti-dumping duties have been imposed, it may apply to the Ministry of Commerce for a separate determination for its dumping margin. The Ministry of Commerce shall immediately make an examination and then a final finding. In the process of the examination, the measures specified in Item (2) of Paragraph One of Article 28 hereof may be applied, but no anti-dumping duty shall be imposed on that product.

  PART FIVE TIME LIMIT FOR ANTI-DUMPING DUTY AND PRICE UNDERTAKING AND REVIEW

  Article 48 The time limit for the imposition of anti-dumping duty and the performance of the price undertaking shall not exceed five years. If a review determines that the termination of the anti-dumping duty may result in the continuation or recurrence of the dumping and injury, the time limit for the imposition of the anti-dumping duty may reasonably be extended.

  Article 49 After the anti-dumping duty is imposed, the Ministry of Commerce may, with good reasons, decide to make a review of the necessity to continue the imposition of the anti-dumping duty. After a reasonable period of time, the Ministry of Commerce may also decide to make a review of such necessity at the request of an Interested Party after examination of the relevant supporting documents provided by that interested party.

  After the price undertaking comes into effect, the Ministry of Commerce may, with good reasons, decide to make a review of the necessity to continue the performance of the price undertaking. After a reasonable period of time, the Ministry of Commerce may also decide to make a review of such necessity at the request of an Interested Party after examination of the relevant supporting documents providedby that Interested Party.

  Article 50 The Ministry of Commerce may, on the basis of findings of the review, propose to retain, modify or revoke the anti-dumping duty in accordance with the provisions hereof and the State Council Commission for Custom Duty Rules shall, on the basis of the suggestion, make a decision. The decision shall be publicly announced by the Ministry of Commerce. The Ministry of Commerce may also make a decision to retain, modify or revoke the price undertaking in accordance with the provisions hereof and publicly announce the decision.

  Article 51 For the procedure of a review, reference shall be made to the relevant provisions relating to anti-dumping investigations hereunder.

  The time limit for the review shall not exceed 12 months from the date on which the decision for the review was made.

  Article 52 In the process of the review, the review procedure shall not affect the implementation of the anti-dumping measures.

  PART SIX SUPPLEMENTARY PROVISIONS

  Article 53 Any party who objects to the final finding made under the provisions of Article 25 hereof, or to the decision on the imposition of the anti-dumping duty and the decision made under the provisions of Part Four hereof on the retroactive imposition of duty, duty rebate or the imposition of duty on new exporters, or to the decision for a review under the provisions of Part Five hereof may apply for an administrative review and may also bring an action in the people's court according to the law.

  Article 54 A public announcement made under the provisions hereof shall state important situations, facts, reasons, evidence, results and conclusions.

  Article 55 The Ministry of Commerce may take proper measures to prevent activities for evading the anti-dumping measures.

  Article 56 If any country (region) has applied discriminatory anti-dumping measures to goods exported from the People's Republic of China, the People's Republic of China may, depending on actual circumstances, adopt corresponding measures to be applied to that country (region)。

  Article 57 The Ministry of Commerce shall be responsible for consultations with foreign parties, notices, and dispute settlements relating to anti-dumping matters.

  Article 58 The Ministry of Commerce may formulate detailed procedures for implementation in accordance with these Regulations.

  Article 59 These Regulations shall take effect as of 1 January 2002 and the provisions relating to anti-dumping in the PRC, Anti-dumping and Anti-subsidy Regulations promulgated on 25 March 1997 shall be repealed at the same time.

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