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中华人民共和国反补贴条例(修订) PRC Anti-subsidy Regulations (Revised) 1

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国务院令第402号

(Promulgated by Decree No. 329 of the State Council of the People's Republic of China 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 PRC, Foreign Trade Law for the purpose of maintaining the foreign trade order and fair competition.

  Article 2 Where an imported product to which a subsidy is granted causes material injury or threat of material injury to an established domestic industry, or causes material retardation of the establishment of such an industry, an anti-subsidy investigation shall be initiated and anti-subsidy measures applied in accordance with the provisions hereof.

  PART TWO SUBSIDY AND INJURY

  Article 3 The term “subsidy” means a financial contribution or any form of income or price support which is provided by the government or any public body of an exporting country (region) and which will benefit the recipients.

  The government or any public body of an exporting country (region) is hereinafter collectively referred to as “the government of an exporting country (region)”。

  The term “financial contribution” in Paragraph One of this Article shall include:

  1. the government of an exporting country (region) directly provides funds in form of grants, loans, or equity infusion, etc., or potentially directly transfers funds or liabilities in form of loan guarantees or otherwise;

  2. the government of an exporting country (region) forgoes or does not collect revenue that is otherwise due;

  3. the government of an exporting country (region) provides goods or services other than general infrastructure, or purchases goods; and

  4. the government of an exporting country (region) carries out the afore-mentioned functions by making payments to a funding mechanism, or entrusts or directs a private body to carry out the afore-mentioned functions.

  Article 4 A subsidy subject to anti-subsidy investigation and anti-subsidy measures under these Regulations must be specific.

  A subsidy falling under one of the following circumstances shall be specific:

  1. the subsidy received by certain enterprises or industries explicitly specified by the government of an exporting country (region);

  2. the subsidy received by certain enterprises or industries explicitly provided for in laws and regulations of an exporting country (region);

  3. the subsidy received by enterprises or industries located within a designated specific area;

  4. the subsidy contingent upon export performance, including those illustrated in the List of Export Subsidies annexed to these Regulations; and

  5. the subsidy contingent upon the use of domestic over imported products.

  In determining the specificity of a subsidy, such factors as the number of subsidized enterprises, the amount, proportion, time duration, and form of the subsidy received by enterprises shall also be considered.

  Article 5 The Ministry of Commerce (hereinafter referred to as “MOFCOM”) shall be responsible for the investigation and determination of a subsidy.

  Article 6 The amount of a subsidy to an imported product shall be calculated according to the following methods in the light of different circumstances:

  1. where the subsidy is granted in the form of a grant, the amount of the subsidy shall be calculated on the basis of the actual amount received by an enterprise;

  2. where the subsidy is granted in form of a loan, the amount of the subsidy shall be calculated on the basis of the difference between the amount of interest an enterprise should pay on a loan in the ordinary commercial loan conditions and the amount of interest the enterprise pays on this loan;

  3. where the subsidy is granted in form of a loan guarantee, the amount of the subsidy shall be calculated on the basis of the difference between the amount of interest an enterprise should pay on a commercial loan in the absence of such guarantee and the amount of interest the enterprise actually pays on a loan guarantee;

  4. where the subsidy is granted in form of an equity infusion, the amount of the subsidy shall be calculated on the basis of the actual amount of the capital an enterprise receives;

  5. where the subsidy is granted in form of the provision of goods or services, the amount of the subsidy shall be calculated on the basis of the difference between the price of the goods or services at normal market price and the price that an enterprise actually pays;

  6. where the subsidy is granted in form of purchase of goods, the amount of the subsidy shall be calculated on the basis of the difference between the actual price the government pays and the normal market price of the goods; or

  7. where the subsidy is granted in form of forgoing or not collecting due revenue, the amount of the subsidy shall be calculated on the basis of the difference between the amount payable under law and the actual amount an enterprise pays;

  The amount of subsidies granted in forms other than those enumerated in the preceding paragraph shall be calculated in a fair and reasonable way.

  Article 7 The term “injury” means material injury or threat of material injury caused by a subsidy to an established domestic industry, or material retardation of the establishment of a domestic industry.

  MOFCOM shall be responsible for the investigation and determination of injury. The anti-subsidy investigation of injury to a domestic industry involving agricultural products shall be conducted by MOFCOM jointly with the Ministry of Agriculture.

  Article 8 The following factors shall be examined in the determination of injury caused by a subsidy to a domestic industry:

  1. the trade effects likely to arise from the subsidy;

  2. whether the volume of subsidized imports, including the volume of subsidized 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 subsidized imports;

  3. the effects of subsidized imports on prices, including the price undercutting of the subsidized imports, or the significant suppressing or depressing effects on the price of a like domestic product, etc.;

  4. the impact of the subsidized imports on the relevant economic factors and indices of the domestic industry;

  5. 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

  6. other factors that may cause or have caused injury to a domestic industry.

  The determination of threat of material injury shall be based on facts and not merely on allegation, conjecture or remote possibility.

  When determining the injury caused by a subsidy to a domestic industry, the determination shall be based on positive evidence, and the injuries caused by factors other than subsidy must not be attributed to the subsidy.

  Article 9 Where subsidized products from more than one country (region) simultaneously satisfy the following requirements, the effects of such subsidized imports on a domestic industry may be cumulatively assessed:

  1. the amount of subsidization established in relation to the subsidized imports from each country (region) is not de minimis, and the volume of imports from each country is not negligible; or

  2. a cumulative assessment of the effects of the subsidized imports is appropriate in light of the conditions of competition between the subsidized imports and the conditions of competition between the subsidized imports and the like domestic product.

  A subsidy is de minimis if the amount of the subsidy is less than 1% of the value of a product; however, with respect to the subsidized products from developing countries (regions), the subsidy is de minimis if the amount of the subsidy is less than 2% of the value of a product.

  Article 10 The effect of the subsidized 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 subsidized 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 subsidized products 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 subsidized product, or in the absence of such a product, another product that has characteristics closely resembling the subsidized product.

  PART THREE ANTI-SUBSIDY INVESTIGATION

  Article 13 Any domestic industry or 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 MOFCOM for an anti-subsidy investigation in accordance with the provisions hereof.

  Article 14 The application shall contain the following information:

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

  2. a complete description of the imported products in question, including the names of the products, the exporting countries (regions) or the countries (regions) of origin concerned, the identity of known exporters or producers, etc.;

  3. a description of the volume and value of domestic production of the like product;

  4. the effect of the volume and price of the imported product in question on the domestic industry; and

  5. other information that the applicant considers as necessary to submit.

  Article 15 The application shall be supported by the following evidence:

  1. existence of a subsidy to the imported product in question;

  2. injury caused to a domestic industry; and

  3. existence of a causal link between the subsidy and the injury;

  Article 16 MOFCOM 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 and the contents of the application and the evidence attached thereto, and shall decide whether or not to initiate an investigation. Under special circumstances, the examination period may be extended.

  Prior to the decision to initiate an investigation, the government of the country (region) the product of which may be subject to such investigation shall be invited for consultation regarding the subsidy in question.

  Article 17 An application shall be considered to have been made by or on behalf of the domestic industry, and an anti-subsidy investigation may be initiated, if the application is supported by those domestic producers whose collective output constitutes more than 50% 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% of total production of the like domestic product.

  Article 18 If, in special circumstances, MOFCOM does not receive any written application for an anti-subsidy investigation, but has sufficient evidence of a subsidy, injury and causal link between the two, it may decide to initiate an investigation.

  Article 19 MOFCOM shall publish the decision to initiate an investigation and notify the applicants, the known exporters and importers, other interested organizations and parties (hereinafter collectively referred to as “the interested parties”), and the government of an exporting country (region)。

  As soon as the decision to initiate an investigation has been published, MOFCOM shall provide the full text of the application to the known exporters and the government of the exporting country (region)。

  Article 20 MOFCOM may conduct investigation and collect information from interested parties by, among others, sending questionnaires, using samples, holding hearings and making on-the-spot verification.

  MOFCOM shall provide opportunities for all interested parties and the government of interested country (region) to present their views and supporting arguments.

  MOFCOM may send its staff members to the countries (regions) concerned to carry out investigations if it deems necessary to do so, unless the countries (regions) concerned object to such an investigation.

  Article 21 An interested party and the government of an interested country (region) shall provide authentic information and relevant documentation to MOFCOM in the process of the investigation. In the event that any interested party or the government of the interested country (region) 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 way, MOFCOM may make determinations on the basis of the facts available.

  Article 22 An interested party or the government of an interested country (region) may request MOFCOM to treat the information it provided as confidential if they consider that any disclosure of such information would create significantly adverse effect.

  MOFCOM shall treat the information submitted by the interested party or the government of the interested country (region) as confidential if they consider that the request for confidentiality is justifiable, and shall require the interested party and/or the government of the interested country (region) to provide non-confidential summaries thereof.

  The confidential information shall not be disclosed without permission of the interested party or the government of the interested country (region) submitting it.

  Article 23 MOFCOM shall allow applicants, interested parties and governments of interested countries (regions) to have access to the information relevant to the investigation, provided that the information has not been treated as confidential.

  Article 24 Throughout the period of investigation, the government of the country (region) the products of which are the subject of the investigation shall be afforded a reasonable opportunity to continue consultations. The consultations shall not prevent MOFCOM from conducting investigations and adopting anti-subsidy measures in accordance with the provisions hereof.

  Article 25 MOFCOM shall, on the basis of their findings, make a preliminary determination on subsidization, injury and whether there exists a causal link between subsidization and injury. The preliminary determinations shall be published by MOFCOM.

  Article 26 In the case where a preliminary determination on subsidization, injury and the causal link between the two is affirmative, MOFCOM shall conduct further investigations on the subsidization and its amount, the injury and its degree and make final determinations respectively on the basis of their findings. The final determinations shall be published by MOFCOM.

  Before the final determinations are made, MOFCOM shall inform all known interested parties and the government of the interested country (region) of the essential facts on which the final determinations are based.

  Article 27 An anti-subsidy 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 the extension shall be more than six months.

  Article 28 In any one of the following circumstances, an anti-subsidy investigation shall be terminated and such termination shall be published by MOFCOM:

  1. the application has been withdrawn by the applicant;

  2. there is no sufficient evidence of the existence of a subsidy, injury and causal link between them;

  3. the amount of the subsidy is de minimis;

  4. the actual or potential volume of the subsidized imports or the injury is negligible;

  5. an agreement has been reached with the government of the country (region) concerned after consultations, and therefore the anti-subsidy investigation is no longer necessary; or

  6. other circumstances that MOFCOM considers not appropriate to continue the anti-subsidy investigation.

  If the product under investigation imported from one country (region) or some countries (regions) falls into one of the circumstances set forth in Item (2), (3), (4) or (5) of the preceding paragraph, the anti-subsidy investigation on such product shall be terminated.

  PART FOUR ANTI-SUBSIDY MEASURES

  Section One: Provisional Measures

  Article 29 Provisional anti-subsidy measures may be applied if the preliminary determination establishes the existence of a subsidy and the injury caused by the subsidy to a domestic industry.

  Provisional anti-subsidy measures shall take the form of provisional anti-subsidy duties guaranteed by deposits or bonds.

  Article 30 The proposal applying provisional anti-subsidy measures shall be put forward by MOFCOM, on the basis of which the State Council Commission for Custom Duty Rules shall make a decision thereon. The decision shall be published by MOFCOM. Customs shall implement the decision from the effective date set forth in the public notice.

  Article 31 The period for applying provisional anti-subsidy measures shall not exceed four months from the effective date set forth in the public notice regarding the decision on provisional anti-subsidy measures.

  No provisional anti-subsidy measures shall be applied within 60 days from the date of publication of the decision to initiate the anti-subsidy investigation.

  Section Two: Undertakings

  Article 32 During the period of an anti-subsidy investigation, if the government of an exporting country (region) proposes an undertaking to eliminate or limit a subsidy or to take other relevant measures, or if an exporter proposes an undertaking to revise its prices, MOFCOM shall give it full consideration.

  MOFCOM may suggest price undertakings to an exporter or the government of an exporting country (region)。

  MOFCOM shall not force an exporter to enter into any undertaking.

  Article 33 The fact that exporters or governments of exporting countries (regions) do not offer undertakings, or do not accept any suggestion regarding price undertakings, shall in no way prejudice the investigation and determination of an anti-subsidy case. MOFCOM has the right to determine that a threat of injury is more likely to be realized if the exporters continue subsidizing the imports.

  Article 34 If considering that an undertaking is acceptable and in conformity with public interests, MOFCOM may decide to suspend or terminate the anti-subsidy investigation without applying provisional anti-subsidy measures or imposing anti-subsidy duties. The decision to suspend or terminate the anti-subsidy investigation shall be published by MOFCOM.

  If MOFCOM does not accept an undertaking, it shall provide the reasons therefor to the exporter concerned.

  Undertakings shall not be sought or accepted unless MOFCOM has made a preliminary affirmative determination of subsidization and injury caused by such subsidization. In the case where an exporter enters into an undertaking without consent of the government of an exporting country (region), MOFCOM shall not seek or accept such an undertaking.

  Article 35 After the suspension or termination of the investigation according to the provisions of Paragraph One, Article 34 hereof, MOFCOM shall continuously investigate the subsidization and injuries at the request of the government of the exporting country; or if MOFCOM deems it necessary, it may continuously investigate the subsidization and injuries.

  On the basis of the findings of the investigation, the undertaking shall automatically lapse if a negative determination is made on subsidization and injury, or shall remain in force if the determination is affirmative.

  Article 36 MOFCOM may require the exporter or the government of an exporting country (region) 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 37 In case of violation of an undertaking, MOFCOM may decide to resume the anti-subsidy investigation immediately in accordance with the provisions hereof, or on the basis of the best information available, decide to apply provisional anti-subsidy measures and levy an anti-subsidy duty retroactively on the product imported within 90 days prior to the application of such provisional anti-subsidy measures, except the product imported before the violation of the undertaking.

  Section Three: Anti-subsidy Duties

  Article 38 If the efforts made to complete consultations produce no positive results, and a final determination establishes the existence of subsidy and the injury caused by the subsidy to a domestic industry, an anti-subsidy duty may be imposed. Imposition of anti-subsidy duties shall be in conformity with the public interests.

  Article 39 The proposal imposing an anti-subsidy duty shall be put forward by MOFCOM, on the basis of which the State Council Commission for Custom Duty Rules shall make a decision which shall be published by MOFCOM. Customs shall implement the decision from the effective date set forth in the public notice.

  Article 40 Anti-subsidy duties shall be imposed on products imported after the date of the publication of the final determination, with the exception of circumstances set forth in Articles 37, 44 and 45 hereof.

  Article 41 Anti-subsidy duties shall be paid by importers of subsidized imports.

  Article 42 Anti-subsidy duties shall be determined separately on the basis of the amount of subsidy each exporter has received. Where it is necessary to impose an anti-subsidy duty on the subsidized imports of an exporter who was not actually investigated, an expedited review shall be conducted and an anti-subsidy duty applicable to the exporter shall be determined in a reasonable way.

  Article 43 No anti-subsidy duties shall be levied in excess of the amount of a subsidy as established in a final determination.

  Article 44 In the case where a final determination establishes the existence of a material injury, and provisional anti-subsidy measures have been applied prior to the final determination, anti-subsidy duties may be levied retroactively for the period for which provisional anti-subsidy measures have been applied.

  In the case where a final determination establishes the existence of a threat of material injury, and provisional anti-subsidy measures have been applied in the situation that the absence of such provisional anti-subsidy measures would have led to a determination of injury, anti-subsidy duties may be levied retroactively for the period for which provisional anti-subsidy measures have been applied.

  If the anti-subsidy duty determined in a final determination is higher than the amount guaranteed by the deposit or bond, the difference shall not be collected; if the duty is less than the amount guaranteed by the deposit or bond, the excess amount shall be reimbursed.

  Article 45 When the following three circumstances exist simultaneously, an anti-subsidy duty may, when necessary, be retroactively levied on products imported not more than 90 days prior to the date of application of provisional anti-subsidy measures:

  1. the subsidized imports increased massively during a short period of time;

  2. such increase has caused irremediable injury to a domestic industry; and

  3. such products have benefited from the subsidy.

  Article 46 Where a final determination decides not to levy an anti-subsidy duty, or does not decide a retroactive levy of an anti-subsidy duty, any deposit made during the period of the application of provisional anti-subsidy measures shall be refunded and any bonds released.

  PART FIVE DURATION AND REVIEW OF ANTI-SUBSIDY DUTIES AND UNDERTAKINGS

  Article 47 The period for the levy of an anti-subsidy duty and fulfilment of an undertaking shall not exceed five years. However, the period for the levy of the anti-subsidy duty may be extended as appropriate if, as a result of review, it is determined that the termination of the anti-subsidy duty would be likely to lead to continuation or recurrence of subsidization and injury.

  Article 48 After an anti-subsidy duty has taken effect, MOFCOM may decide on justifiable grounds to review the need for the continued imposition of the anti-subsidy duty; such a review may also be conducted, provided that a reasonable period of time has elapsed, upon request by any interested party and on the basis of examination of the relevant evidence submitted by the interested party.

  After an undertaking has taken effect, MOFCOM may, on justifiable grounds, decide to review the need for the continued fulfilment of an undertaking; such a review may also be conducted, provided that a reasonable period of time has elapsed, upon request by any interested party and on the basis of examination of the relevant evidence submitted by the interested party.

  Article 49 On the basis of the findings of a review, MOFCOM shall, in accordance with the provisions hereof, make a proposal on the retention, revision, or termination of an anti-subsidy duty. The State Council Commission for Custom Duty Rules shall, in light of the proposal made by MOFCOM, make a decision which shall be published by MOFCOM. Meanwhile, MOFCOM may make a decision on the retention, revision or termination of an undertaking and publish such decision in accordance with the provisions hereof.

  Article 50 The review proceedings shall be conducted with reference to the relevant provisions hereof on anti-subsidy investigation.

  Any review shall be concluded within 12 months of the date of decision of initiation of such a review.

  Article 51 During the period of review, the review proceedings shall not impede the application of anti-subsidy measures.

  PART SIX SUPPLEMENTARY PROVISIONS

  Article 52 Where any party is not satisfied with a final determination made under Article 26 hereof, or not satisfied with a decision on whether or not to impose an anti-subsidy duty and a decision on retroactive imposition of a duty, made under Part Four hereof, or not satisfied with the review findings made under Part Five hereof, it may, in accordance with the law, apply for administrative review, or file a lawsuit in the people's court.

  Article 53 A public notice issued under these Regulations shall contain, inter alia, important information, facts, reasons, basis, findings and conclusions, etc.

  Article 54 MOFCOM may take appropriate measures to prevent the circumvention of anti-subsidy measures.

  Article 55 Where any country (region) discriminatorily imposes anti-subsidy measures on exports from the People's Republic of China, the People's Republic of China may, on the basis of actual situations, response by taking corresponding measures against that country (region)。

  Article 56 MOFCOM shall be responsible for foreign-related consultations, notification and dispute settlement concerning anti-subsidy activities.

  Article 57 MOFCOM may, in accordance with these Regulations, formulate specific implementing measures of these Regulations.

  Article 58 These Regulations shall be effective as of 1 January 2002. The provisions on anti-subsidy measures contained in the PRC, Anti-dumping and Anti-subsidy Regulations promulgated by the State Council on 25 March 1997 shall be repealed simultaneously.

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